People v. Garcia

536 P.3d 847

2023 COA 58

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Kenneth L. GARCIA, Defendant-Appellant.

Court of Appeals No. 21CA0834

Colorado Court of Appeals, Division IV.

Announced June 29, 2023

Philip J. Weiser, Attorney General, Jessica E. Ross, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Tracy C. Renner, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE FOX

¶ 1 Defendant, Kenneth L. Garcia, appeals the judgment of conviction entered on jury verdicts finding him guilty of burglary and forgery. This case presents two distinct waiver issues. The first issue is whether, pursuant to Stackhouse v. People , 2015 CO 48, 386 P.3d 440, Garcia waived his right to a public trial by failing to object to a known closure. The second issue is whether, pursuant to People v. Rediger , 2018 CO 32, 416 P.3d 893, Garcia waived his right to be tried in conformity with the charging instrument by failing to object to a constructive amendment. Reconciling Stackhouse and Rediger , we conclude that Garcia waived the first right and forfeited the second.

¶ 2 We also conclude that Garcia's claim of prosecutorial misconduct does not establish plain error, so we affirm his convictions. We do, however, agree with the parties that remand is required so that Garcia can move the trial court to waive his costs and surcharges. Thus, we affirm the judgment of conviction and remand the case for further proceedings related to the imposition of costs and surcharges.

I. Background

¶ 3 On March 25, 2020, at around 7 p.m., Michael Falls entered his condominium to discover a stranger—identified as Garcia in a photo lineup and at trial—lying on his couch. The condo was Falls's primary residence, but he frequently rented it out through Airbnb and had listed it for sale. Thus, Falls was not in the unit every day. But because the COVID-19 pandemic was just beginning, every late-March Airbnb guest had cancelled, prompting Falls to return home on March 25. He testified that he had not been in the condo since March 20.

¶ 4 Falls testified that, upon entering, Garcia stood up and said, "Oh, Michael, you're here. I was thinking about buying this place." Garcia then pivoted, instead explaining that he had given Falls's real estate agent $500 to stay in the condo overnight. Falls called 911 and ran to the building's front door where a security guard was stationed. By the time police arrived to clear the unit, Garcia was gone.

¶ 5 As Falls enlisted building security's assistance, another resident heard a loud noise from an adjacent stairwell and went to investigate. The resident saw a man, whom he later identified as Garcia, dragging a moving dolly full of bags and clothing down the stairwell and out a rear building exit. Finding it strange that someone would hurriedly drag a loaded cart down the back staircase—as opposed to using the elevator at the front of the building—the resident took Garcia's picture from his third-story balcony and then followed him outside, taking several more pictures of him before turning back. Falls later identified the moving dolly, as documented in the resident's photographs, as one that was stolen from his condo.

¶ 6 Garcia left Falls's condo in disarray. Items were strewn throughout the condo, empty or partially consumed cans and bottles littered each room, Falls's three beds appeared to have been slept in, and Falls's electronics were stacked on the floor. Personal items were taken from Falls's closets and used, Falls's personal collection of liquor was largely consumed, and a ring of dark hair dye stained one of the bathtubs. Based on the condition of the beds and the amount of alcohol consumed, Falls deduced that the condo had been occupied for a while, possibly by multiple people.¹

¶ 7 Falls reported many items missing, including two moving dollies, a fifty-five-inch television, electronics, ceramics, furs, clothing, camping gear, and a large steel safe. The safe contained jewelry, old and current checkbooks, and Falls's personal identifying documents.

¶ 8 Garcia left behind a laptop with a home screen showing an account for "Kenneth Garcia." A truck registered to Garcia was also parked outside the building around that time.

¶ 9 Normally, Falls secured his condo's front door with a keypad lock that could be unlocked by code or key. Falls also hung a lockbox nearby that contained a spare key for his real estate agent to use. While there were no obvious signs of forced entry, Falls noticed that the code to unlock his spare key lockbox no longer worked, suggesting that someone had tampered with it.

¶ 10 A MoneyTree employee testified that on March 23, 2020—two days before Falls found Garcia in his home—a man she identified as Garcia tried to cash a $7,000 check from one of Falls's checkbooks. The checkbook had been stored in the missing safe and documented checks paid from Falls's closed business bank account. The employee called Falls, who informed her that the account was closed and that he did not authorize the check.

¶ 11 The People charged Garcia with second degree burglary and forgery. A jury found Garcia guilty as charged. The trial court sentenced Garcia to fourteen years in the custody of the Department of Corrections for the burglary conviction and a consecutive term of two years for the forgery conviction.

¶ 12 Garcia asserts four errors on appeal. He contends that the trial court violated his right to a public trial and allowed a constructive amendment, claiming each was a structural error. The People counter that we should not review the contentions because defense counsel waived them. Garcia next argues that the trial court plainly erred by failing to intervene and remedy, sua sponte, prosecutorial misconduct. Finally, Garcia requests a remand so he can move the trial court to waive his costs and surcharges. The People concede that a remand is appropriate for that limited purpose.

II. Waiver

¶ 13 We first address whether Garcia waived his right to a public trial, concluding that he did. Next, we consider whether Garcia waived his right to be tried in conformity with the charges set out in the complaint and conclude that he forfeited that right. Thus, we then turn to whether the court reversibly erred by allowing the constructive amendment.

A. Applicable Law and Standard of Review

¶ 14 "Constitutional and statutory rights can be waived or forfeited." Richardson v. People , 2020 CO 46, ¶ 24, 481 P.3d 1.

Waiver is "the intentional relinquishment of a known right or privilege." Rediger , ¶ 39 (quoting Dep't of Health v. Donahue , 690 P.2d 243, 247 (Colo. 1984) ). While waivers may be explicit or implied, they must be supported by some evidence of intent to relinquish the known right. Forgette v. People , 2023 CO 4, ¶¶ 28–29, 524 P.3d 1. We "do not presume acquiescence in the loss of fundamental constitutional rights, and therefore indulge every reasonable presumption against waiver." Rediger , ¶ 39 (quoting People v. Curtis , 681 P.2d 504, 514 (Colo. 1984) ).

¶ 15 Forfeiture, on the other hand, is the failure to make a timely assertion of a right. Forgette , ¶ 29. Forfeitures generally occur through neglect. Rediger , ¶ 40.

¶ 16 We review claims of waiver de novo. Richardson , ¶ 21. If we conclude that Garcia waived his contentions, our analysis necessarily ends. Rediger , ¶ 40 ("[A] waiver extinguishes error, and therefore appellate review ...."). But if we conclude that Garcia forfeited either contention, we then consider whether any error was structural or plain. Forgette , ¶ 30 ("[U]nlike in the case of a waiver, an appellate court may review a forfeited error under the plain error standard.").

1. Was the Right or Privilege Known?

¶ 17 We first examine how appellate courts define the "known" prong of the waiver test. Rediger , ¶ 39.

¶ 18 "Defendants ... affirmatively waive their right to public trial by not objecting to known [courtroom] closures." Stackhouse , ¶ 17, cited with approval in People v. Hernandez , 2021 CO 45, ¶ 35, 488 P.3d 1055. In Stackhouse , ¶ 2, the trial court closed the courtroom to the public during jury selection due to space limitations and to prevent interaction between family members and potential jurors. The court explained its reasoning to the parties and asked if the parties had "anything further" for the court to consider; defense counsel did not object. Id. Our supreme court concluded that, under the circumstances, the closure was known to counsel. See id. at ¶¶ 9–10, 16 ; see also Forgette , ¶¶ 6–8 (concluding that where the parties alerted the trial court to a sleeping juror, but where defense counsel did not object or request relief, defense counsel knew the right at stake, and thus waived the claim of error).

¶ 19 In contrast, our supreme court did not find evidence of knowledge in Rediger . There, an elemental jury instruction did not match the charging document, resulting in a constructive amendment. Rediger , ¶¶ 8–10. The trial court asked the attorneys for their positions on the jury instructions; defense counsel replied that he was "satisfied" with the instructions. Id. at ¶ 10. Reasoning that the record reflected no express or implied evidence of counsel's intent to waive the objection—or that counsel was even aware of the discrepancy—the supreme court concluded that Rediger did not waive, and instead forfeited, his objection. Id. at ¶¶ 42–44. The Rediger court relied, in part, on the fact that the record revealed "no discussion of this particular instruction at all." Id. at ¶ 43. That defense counsel read the instructions was an insufficient basis from which to infer that counsel recognized, or was aware of, the particular error at issue. Id. at ¶ 45.

¶ 20 The distinguishing factor between Stackhouse and Rediger is some evidence of presumed awareness or recognition of the claimed error in light of the surrounding context. See Forgette , ¶ 34 ("Here, as in Stackh...