Garcia v. People

          Petition for Rehearing Denied August 19, 2019

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          Certiorari to the Colorado Court of Appeals, Court of Appeals Case No. 13CA2117

         Attorneys for Petitioner: Megan A. Ring, Public Defender, Ned R. Jaeckle, Deputy Public Defender, Denver, Colorado

          Attorneys for Respondent: Philip J. Weiser, Attorney General, William G. Kozeliski, Assistant Attorney General, Denver, Colorado

         OPINION

         HOOD, JUSTICE.

         [¶1] A restraining order prohibited defendant Juvenal Onel Garcia from contacting C.G. Almost two years after the issuance of the restraining order, Garcia allegedly attempted to sexually assault C.G. Based on events related to that criminal episode, a jury convicted Garcia of first degree burglary, attempted sexual assault, unlawful sexual contact, third degree assault, violation of a protection order, and obstruction of telephone service.

         [¶2] Garcia appealed, raising two unpreserved claims: (1) the trial court improperly instructed the jury regarding the sexual assault charge; and (2) the trial court improperly instructed the jury regarding the force sentence enhancer related to his attempted sexual assault conviction.

         [¶3] Because the alleged errors weren’t preserved at trial, they are subject to plain error review. See Tumentsereg v. People, 247 P.3d 1015, 1019 (Colo. 2011). This means that Garcia’s convictions won’t be overturned unless at least one error was "both obvious and substantial." See People v. Miller, 113 P.3d 743, 750 (Colo. 2005). To constitute a basis for reversal, any such error must have "so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction." Hagos v. People, 2012 CO 63, ¶ 18, 288 P.3d 116, 121 (quoting Wilson v. People, 743 P.2d 415, 420 (Colo. 1987)).

         [¶4] A division of the court of appeals affirmed Garcia’s convictions. First, it concluded that any error regarding the sexual assault instruction wasn’t obvious because the instruction matched "the Model Jury Instructions that existed at th[e] time" of trial. People v. Garcia, 2017 COA 1, ¶ 10, __ P.3d __. Next, the division concluded that because a published court of appeals opinion refuted Garcia’s contention regarding the sentence enhancer, any instructional error wasn’t obvious, and thus wasn’t plain. Id. at ¶ 26.

         [¶5] Having agreed to review the judgment of the division, we consider: (1) whether the division incorrectly held that an instructional error is not plain if it tracks the model jury instruction existing at the time of trial; (2) whether plain error should be assessed at the time of trial or the time of direct appeal; and (3) whether the sentence enhancer requires proof of the mens rea "knowingly."

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         [¶6] We conclude that the division erred in holding that simply following the model instructions avoids plain error. But, for different reasons, we agree that any error regarding the sexual assault instruction doesn’t require reversal. We do so because Garcia failed to show that any error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of Garcia’s convictions. Because we resolve this issue based on lack of prejudice, we need not reach the question of whether the obviousness of an error should be assessed at the time of trial or the time of direct appeal. We also conclude that the force sentence enhancer doesn’t include a mens rea requirement, and, therefore, there was no error with respect to that instruction.

         [¶7] Accordingly, we affirm the judgment of the court of appeals.

          I. Facts and Procedural History

         [¶8] Garcia and C.G. met in middle school, married when C.G. turned 18, and have two children together. In 2010, they separated, and in August 2010, a protection order was issued prohibiting Garcia from contacting C.G. However, Garcia, C.G., and their children continued to participate in some family outings together, and Garcia would occasionally babysit their children.

         [¶9] On the night of April 12, 2012, Garcia had agreed to babysit the children in C.G.’s home. But he arrived hours late. C.G. testified that Garcia was drunk when he arrived, so she told him to leave. Garcia left, taking C.G.’s car. He didn’t return for several hours, prompting C.G. to report her car stolen to the police.

         [¶10] Around 4:00 a.m., Garcia returned and entered the apartment using a key he had taken with him. Garcia and C.G. both ...