People v. Garcia

493 P.3d 929

2021 COA 65

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

v.Rafael Aguilar GARCIA, Defendant-Appellant.

Court of Appeals No. 17CA1911

Colorado Court of Appeals, Division I.

Announced May 13, 2021

Philip J. Weiser, Attorney General, Brian M. Lanni, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Joseph Paul Hough, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Dailey and Tow, JJ., concur

Opinion by JUDGE GRAHAM^*

¶ 1 Defendant, Rafael Aguilar Garcia, appeals his conviction for first degree murder. He contends that double jeopardy barred his retrial and that the trial court erred by instructing the jury that it could not consider self-defense. We reject these contentions and affirm his conviction. We also conclude, for the first time, that section 18-1-303, C.R.S. 2020, does not apply to prior prosecutions by foreign countries, distinguishing People v. Morgan , 785 P.2d 1294 (Colo. 1990).

I. Background

¶ 2 Evidence adduced at trial demonstrated the following. In 1989 Garcia and his wife, J.G., separated. Garcia told J.G. that if he saw any men at the house, they would be dead. Thereafter, J.G. began a relationship with C.P., and Garcia said he would kill C.P. if he went near J.G. Garcia also struck C.P.’s car from behind at a gas station and wrote several journal entries about his hatred for C.P. and his intent to kill him.

¶ 3 One night, a little after midnight, J.G. and C.P. were watching a movie together in J.G.’s living room when Garcia came to the door with a pump-action shotgun. Garcia struck J.G. in the head with it, and C.P. began fighting with Garcia. Garcia stabbed C.P. in the back with a knife. C.P. ran into a bedroom and locked the door. Garcia fired the shotgun through the door, fatally hitting C.P. in the chest and head.

¶ 4 Garcia fled to Mexico. The Mesa County District Attorney's Office attempted to extradite Garcia; however, its efforts were unsuccessful. As an alternative to extradition, the District Attorney's Office, along with the Foreign Prosecutions Unit at the Colorado Attorney General's Office, compiled a casebook and sent it to Mexico so Garcia could be prosecuted under Article IV of Mexico's Federal Penal Code. The Mexican tribunal considered the case on submitted documents. Garcia was acquitted of C.P.’s murder in Mexico.

¶ 5 In 2016, Garcia was arrested on an outstanding Colorado warrant upon arriving at Denver International Airport.

¶ 6 At the trial here, Garcia testified in his own defense. According to Garcia, J.G. had answered the door that night while C.P. snuck out another door and attacked him from behind. A struggle ensued, J.G. attempted to call the police, and Garcia cut the phone cord with a knife. C.P. retreated into a bedroom and locked the door. Garcia pursued C.P., broke a hole in the door with the barrel of the gun, and blindly fired the shotgun twice through the hole. Both shots incidentally struck C.P. in the chest and head.

¶ 7 Garcia testified that he did not mean the threats he wrote in his journal but conceded that he knowingly killed C.P. and that he did not act in self-defense. Garcia argued that the killing was committed under a sudden heat of passion, which, in 1989, constituted manslaughter. The jury convicted him of first degree murder, and Garcia now appeals.

II. Double Jeopardy

¶ 8 Garcia first argues that because he was acquitted of C.P.’s murder in Mexico, his retrial in Colorado violated his right to be free from double jeopardy under the federal and state constitutions. He further argues that his conviction violated his right to be free from double jeopardy as extended and codified in section 18-1-303. He also argues that the common law doctrines of jurisdictional waiver and laches prevented his retrial and conviction. We disagree with all these arguments.

A. Neither the Federal Constitution Nor the Colorado Constitution Barred Garcia's Prosecution in Colorado

1. Standard of Review and Preservation

¶ 9 We review double jeopardy claims de novo. People v. Frye , 2014 COA 141, ¶ 30, 356 P.3d 1000. Garcia preserved his double jeopardy claim by filing a motion to dismiss on double jeopardy grounds in the trial court.

2. Law

¶ 10 Both the federal and state constitutions contain provisions protecting individuals from being "twice put in jeopardy" for "the same offense." U.S. Const. amends. V, XIV ; Colo. Const. art. II, § 18. As pertinent here, these provisions generally protect an individual against a second prosecution after an acquittal for the same offense. See People v. Leske , 957 P.2d 1030, 1035 n.5 (Colo. 1998).

¶ 11 Under the dual-sovereignty doctrine, separate sovereigns like "the state and federal governments may prosecute a person for the same offense without violating the double jeopardy prohibition of the federal constitution." Chatfield v. Colo. Ct. of Appeals , 775 P.2d 1168, 1174 n.7 (Colo. 1989). "The dual sovereignty doctrine is founded on the common-law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the ‘peace and dignity’ of two sovereigns by breaking the laws of each, he has committed two distinct ‘offences.’ " Heath v. Alabama , 474 U.S. 82, 88, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985) (citation omitted).

¶ 12 In Bartkus v. Illinois , the Supreme Court suggested an exception to the dual-sovereignty doctrine for sham prosecutions. 359 U.S. 121, 123-24, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). A prosecution by one sovereign is a sham, precluding the application of the dual-sovereignty doctrine, where one sovereign dominates, controls, and manipulates the other sovereign into prosecuting the defendant. Id. ; see United States v. Moore , 370 F. App'x 559, 561 (5th Cir. 2010) (per curiam); United States v. Dowdell , 595 F.3d 50, 63 (1st Cir. 2010). The Bartkus exception is narrow and hard to prove. United States v. Rashed , 234 F.3d 1280, 1282 (D.C. Cir. 2000). "[R]outine intergovernmental assistance" and "[c]ooperative law enforcement efforts" between independent sovereigns, without more, do not satisfy the Bartkus test. Dowdell , 595 F.3d at 63 (quoting United States v. Guzman , 85 F.3d 823, 828 (1st Cir. 1996) ); Moore , 370 F. App'x at 561.

3. Application

¶ 13 Garcia was tried for and convicted of C.P.’s murder in Colorado after his acquittal for the same crime in Mexico. There is no dispute that Mexico qualifies as a sovereign nation for purposes of the dual-sovereignty doctrine. United States v. Hughes , 211 F.3d 676, 688 (1st Cir. 2000) ; see Moore , 370 F. App'x at 560. Nonetheless, Garcia urges us to hold that double jeopardy barred his retrial in Colorado because Mexico's legal authority to prosecute Garcia depended entirely upon the explicit consent and aid of Colorado authorities who compiled a casebook and presented it to Mexican prosecutors.

¶ 14 True, the Mesa County District Attorney's Office decided to participate in a foreign prosecution in Mexico under Article IV after multiple unsuccessful attempts to extradite Garcia. However, after presentation of the casebook, no Colorado officials were actively involved in the case in Mexico.

¶ 15 Preparing a casebook and presenting it to the Mexican tribunal falls far short of domination, control, or manipulation of the Mexican government. Rather, as in Moore , Garcia has failed to show or even allege that Colorado "so thoroughly dominated or manipulated" the Mexican prosecutorial machinery that the Mexican authorities "retain[ed] little or no volition" in their own proceedings such that they were a "mere tool" of their counterparts in Colorado. See Moore , 370 F. App'x at 560-61. Instead, his argument that Mexico's legal authority to prosecute Garcia depended entirely upon the explicit consent and aid of Colorado authorities is barely sufficient to show routine intergovernmental assistance and cooperation.

¶ 16 Accordingly, Garcia's argument that his prosecution was barred by the Double Jeopardy Clauses of the United States and Colorado Constitutions fails.

B. Section 18-1-303 Does Not Apply to Foreign Prosecutions

¶ 17 We now address, as a matter of first impression, whether section 18-1-303 applies to prosecutions in foreign countries. Based on the plain language of the statute, we conclude that it does not.

1. Standard of Review and Preservation

¶ 18 Statutory interpretation is a question of law that we review de novo. Smith v. Exec. Custom Homes, Inc. , 230 P.3d 1186, 1189 (Colo. 2010). Garcia preserved this claim by filing a motion to dismiss under section 18-1-303 in the trial court.

2. Law

¶ 19 When interpreting a statute, we look first to its plain language. Smith , 230 P.3d at 1189. When the plain language is clear, our job ends, and we must apply the statute as written. Id.

¶ 20 We may not add words to or subtract words from the statute. See People v. Diaz , 2015 CO 28, ¶ 12, 347 P.3d 621 ; People v. Benavidez , 222 P.3d 391, 393-94 (Colo. App. 2009) ("[I]n interpreting a statute, we must accept the General Assembly's choice of language and not add or imply words that simply are not there."). Additionally, "when the legislature speaks with exactitude, we must construe the statute to mean that the inclusion or specification of a particular set of conditions necessarily excludes others." Lunsford v. W. States Life Ins. , 908 P.2d 79, 84 (Colo. 1995).

¶ 21 Despite the ability of separate sovereigns to prosecute an individual for the same offense, many states, including Colorado, have partially rejected or limited this doctrine by statute. See § 18-1-303. Section 18-1-303 provides, in pertinent part, as follows:

(1) If conduct constitutes an offense within the concurrent jurisdiction of this state and of the United States, or another state, or of a municipality, a prosecution in any other of these jurisdictions is a bar to a subsequent prosecution in this state under either of the following circumstances:

(a) The

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