Maestas v. People

          Rehearing Denied June 24, 2019

Page 395

          Certiorari to the Colorado Court of Appeals, Court of Appeals Case No. 11CA2084

         Attorneys for Petitioner: Megan A. Ring, Public Defender, Sarah A. Kellogg, Deputy Public Defender, Denver, Colorado

          Attorneys for Respondent: Philip J. Weiser, Attorney General, Brock J. Swanson, Assistant Attorney General, Denver, Colorado

         OPINION

         GABRIEL, JUSTICE

         [¶1] We granted certiorari to review the court of appeals division’s opinion affirming Bob Maestas’s conviction for second degree burglary. People v. Maestas, No. 11CA2084, 2015 WL 222407 (Colo.App. Jan. 15, 2015).^[1] We now reverse and remand for further proceedings.

         [¶2] For the reasons discussed in McCoy v. People, 2019 CO 44, 442 P.3d 379, which we are also announcing today, we conclude that sufficiency of the evidence claims may be raised for the first time on appeal and are not subject to plain error review. Accordingly, appellate courts should review sufficiency claims de novo (i.e., in the same manner as if the claims were preserved), and not under a plain error standard of review, including when the claims involve preliminary questions of statutory construction. Because the division reviewed Maestas’s sufficiency claim for plain error and affirmed the trial court’s ruling without considering the merits of Maestas’s assertion that insufficient evidence supported his conviction for second degree burglary, we reverse the portion of the judgment concerning that count and remand this case with instructions that the division perform a de novo review of Maestas’s sufficiency claim.

          I. Facts and Procedural History

         [¶3] The charge at issue arose after a witness spotted someone later identified as Maestas ringing the doorbell of an elderly neighbor’s home and then walking around the side of the house and attempting to open the gate. The witness saw Maestas ride his bicycle away and then return a few minutes later, apparently attempting to walk around the home on the other side. The witness called 911, and the police responded.

         [¶4] The responding officer walked between the two homes described by the witness and saw Maestas. The officer pulled out his gun, identified himself as a police officer, and ordered Maestas to the ground. Maestas looked at the officer, froze momentarily, and then ran away. The officer gave chase, but he subsequently lost sight of Maestas and stopped chasing him. The officer called for

Page 396

backup support, and the police set up a perimeter in order to search for Maestas.

         [¶5] Shortly thereafter, a different neighbor approached one of the officers who had arrived to assist. This neighbor reported that he had heard someone try to open his front door. The officer accompanied the neighbor back to his house to look around. When they got to the neighbor’s detached garage, they noticed that the padlock on the door had been broken. The officer investigated and found Maestas hiding behind a couch in the garage. Investigating officers later also discovered that the sliding glass door in the back of the elderly neighbor’s house had been opened, despite the fact that she had left it closed the night before.

         [¶6] The prosecution charged Maestas with attempted second degree burglary for opening the door of the elderly neighbor’s house and second degree burglary for Maestas’s entry into the garage with the intent to commit therein the crime of obstructing a peace officer.

         [¶7] The case proceeded to trial, and at trial, Maestas requested that the jury be instructed on the lesser non-included offense of third degree trespass. The court granted that request.

         [¶8] At the close of the prosecution’s case, Maestas moved for a judgment of acquittal, arguing that the evidence was insufficient to convict him of either attempted second degree burglary or second degree burglary. The court denied that motion. Thereafter, at the conclusion of all of the evidence, Maestas again moved for a judgment of acquittal. The court again denied the motion.

         [¶9] The jury ultimately convicted Maestas of all three charges against him, and he appealed, arguing, as pertinent here, that under the plain language of the burglary statute, section 18-4-203(1), C.R.S. (2018), the crime of obstructing a peace officer is not sufficient to establish the element of "intent to commit therein a crime against another person or property." Maestas, slip op. at 11.

         [¶10] In a split unpublished opinion, the division affirmed Maestas’s conviction on the burglary count. The majority concluded that although Maestas had properly challenged the sufficiency of the evidence by twice moving for a judgment of acquittal in the trial court, he did not properly preserve the precise argument that he was making on appeal. Id. at 13. The majority therefore concluded that the appropriate standard of review was for plain error and proceeded to review Maestas’s sufficiency claim pursuant to that standard. Id. In conducting this review, the majority assumed without deciding that the trial court had erred by permitting Maestas to be convicted of second degree burglary with the predicate offense of obstructing a peace officer. Id. at 14. The majority determined, however, that this error was not plain because at the time Maestas was tried, the law on the issue was unsettled and therefore any error could not have been obvious. Id. The majority thus affirmed Maestas’s conviction without determining whether his alleged obstruction of a peace officer sufficiently supported his conviction for second degree burglary. Id. at 15, 21.

         [¶11] Judge Lichtenstein dissented. Id. at 22-24 (Lichtenstein, J., concurring in part and dissenting in part). In her view, a plain error analysis of a sufficiency claim like the one at issue leads to unjust results. Id. at 23. She stated:

I simply cannot countenance that when, as here, a non-final judgment of conviction is fundamentally unjust, an appellate court can nonetheless decline to vacate that conviction. Maestas’s second degree burglary conviction is not based on any legally cognizable crime. In my view, it is our imperative to correct his fundamentally unjust conviction and unjust incarceration.

Id.

         [¶12] Maestas then petitioned this court for certiorari review, and we granted his petition.

          II. Analysis

         [¶13] In McCoy v. People, ¶ 69, 442 P.3d at 393, which we are also announcing today, we conclude that appellate courts should review sufficiency of the evidence claims de novo, including when such claims are raised for the ...