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People v. Trejo Lopez

Court of Appeals of Colorado, First Division

August 23, 2018

The People of the State of Colorado, Plaintiff-Appellee,
Victor Leobardo Trejo Lopez, Defendant-Appellant.

          Jefferson County District Court No. 13CR2662 Honorable Christopher J. Munch, Judge.

          Cynthia H. Coffman, Attorney General, Carmen Moraleda, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Megan A. Ring, Colorado State Public Defender, Rachel K. Mercer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant


          NIETO [*] JUDGE.

         ¶ 1 Defendant, Victor Leobardo Trejo Lopez, appeals the trial court's judgment entered on a jury verdict finding him guilty of theft from an at-risk adult. We affirm.

         I. Background

         ¶ 2 Defendant and the victim had been neighbors in a mobile home park. In August 2013, defendant visited the victim in his small fifth wheel travel trailer. It was estimated to be eight feet wide and thirty feet long. He asked the victim if he could borrow some money; the victim said no. Defendant asked if he could use the bathroom, which was adjacent to the living room where the victim was sitting and watching television. The victim's gun was hanging on the wall in the bathroom. Defendant put the gun in his backpack and came out to the living room. He told the victim he needed to go, and he left the trailer. At the time of the visit, the victim was seventy years old.

         ¶ 3 The victim later learned the gun was missing and reported it to the police. The victim said defendant was the only other person who had been inside his house recently. The day after the victim made the police report, he asked defendant where his gun was. Defendant apologized and said he did not mean to steal the gun, but that he did not know where the gun was. Defendant later admitted to the police that he had stolen the gun from the victim.

         ¶ 4 Defendant was charged with theft and a statutory enhancer for either committing the theft with knowledge the victim was over seventy years old and therefore an at-risk elder, under section 18-6.5-103(5.5), C.R.S. 2015, or committing the theft within the victim's presence, under section 18-6.5-103(5), C.R.S. 2017.[1] At trial, defendant admitted he took the victim's gun and committed theft, but he argued that neither statutory enhancer should apply. The jury convicted defendant of theft from an at-risk adult under section 18-6.5-103(5), finding that he committed an element or portion of the offense in the presence of the victim. The trial court sentenced him to one year of probation.

         II. Juror Challenge

         ¶ 5 Defendant contends the trial court erred when it denied his challenge for cause to prospective juror H.S. Because H.S. ultimately sat on the jury, defendant argues that reversal is required. We disagree.

         A. Standard of Review

         ¶ 6 We review the trial court's denial of a juror challenge for cause for an abuse of discretion. See, e.g., People v. Bondsteel, 2015 COA 165, ¶ 77 (cert. granted Oct. 31, 2016). We review the entire voir dire of the prospective juror to determine whether the trial court abused its discretion. People v. Friend, 2014 COA 123M, ¶ 21 (citing Carrillo v. People, 974 P.2d 478, 486 (Colo. 1999)) (cert. granted on other grounds Feb. 8, 2016). We defer to the trial court's credibility assessments, "recognizing that court's unique perspective in evaluating the demeanor and body language of live witnesses." People v. Conyac, 2014 COA 8M, ¶ 13. If the trial court permitted a biased or incompetent juror to sit on the jury and participate in determining the defendant's guilt, the defendant's right to an impartial jury has been violated and reversal is required. People v. Maestas, 2014 COA 139M, ¶ 20; People v. Marciano, 2014 COA 92M-2, ¶ 10.

         B. Law

         ¶ 7 The United States and Colorado Constitutions guarantee criminal defendants the right to a trial by an impartial jury. U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16. Thus, the trial court must sustain a challenge for cause if, as relevant here, there exists

a state of mind in the juror evincing enmity or bias toward the defendant or the state; however, no person summoned as a juror shall be disqualified by reason of a previously formed or expressed opinion with reference to the guilt or innocence of the accused, if the court is satisfied, from the examination of the juror or from other evidence, that he will render an impartial verdict according to the law and the evidence submitted to the jury at the trial.

§ 16-10-103(1)(j), C.R.S. 2017.

         ¶ 8 It is normal for a prospective juror to arrive for jury duty without knowing the relevant law and with some preconceived expectations. People v. Clemens, 2017 CO 89, ¶ 17. If, after the trial judge explains the correct legal principles during voir dire, and the prospective juror is willing to apply the law as instructed by the court, the prospective juror is rehabilitated and may serve. Id. A court may consider the prospective juror's assurances that he or she can fairly and impartially serve on the case. People v. Gilbert, 12 P.3d 331, 334 (Colo.App. 2000). Even a prospective juror's silence in response to questions posed to the venire can be sufficient evidence of rehabilitation after the prospective juror has indicated a preconceived notion. Clemens, ¶ 12.

         C. Analysis

         ¶ 9 Before voir dire, the trial court informed the jury that the parties had stipulated that defendant committed the basic elements of theft, but that defendant disputed the enhancers. The court instructed the jury about general principles of applicable law, including the presumption of innocence and the burden of proof. The court asked the jury, "Does anybody disagree with the basic concept that in a criminal case there has to be proof beyond a reasonable doubt?" No juror expressed any disagreement.

         ¶ 10 The trial court next addressed each individual juror and asked, "Do you think you can give us the assurance that you will be fair to both sides?" H.S. replied, "I will be fair to both sides."

         ¶ 11 During defense counsel's questioning of H.S., she expressed confusion about the presumption of innocence since defendant had admitted the theft. The following exchange took place:

[H.S.]: I'm confused because he isn't innocent because he did steal the gun. I know that he's guilty of a crime, and that is dealing with guns, which I don't agree with. And then stealing, which is a bad crime as well.
So that is a little contradictory.
[Defense Counsel]: I think you're totally right. It's a hard distinction to sort of admit to one piece because he said, Yeah, I'm guilty of this one issue, this theft issue. But, no, I'm not guilty of these other - the Judge calls them aggravators or enhancers.
I think that's a difficult thing to separate out. Do you think that's something you're going to be able to do that you can presume him innocent of sentence enhancers, knowing that he is guilty of something?
[H.S.]: Um, well, I don't know because I didn't know that ever happened. Like, I wouldn't see someone who did a crime as an innocent person because I didn't know that you can separate out enhancers before.

         ¶ 12 The juror's answers to additional questions from defense counsel continued to show confusion. When defense counsel asked directly if she could afford defendant the presumption of innocence, H.S. did not say that she could not or would not do so, but said, "It's hard." Her difficulty appears to have arisen from defendant's admission ...

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