People v. Naranjo

405 P.3d 279

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

v.Gilbert Arturo NARANJO, Defendant–Appellant.

Court of Appeals No. 13CA1063

Colorado Court of Appeals, Div. II.

Announced May 7, 2015

Rehearing Denied June 18, 2015

Cynthia H. Coffman, Attorney General, John T. Lee, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee

Douglas K. Wilson, Colorado State Public Defender, Joseph P. Hough, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant

Opinion by JUDGE DUNN

¶ 1 Defendant, Gilbert Arturo Naranjo, appeals the judgment of conviction entered on jury verdicts finding him guilty of two counts of felony menacing. He contends that the trial court erred in declining to instruct the jury on the lesser non-included offense of disorderly conduct with a deadly weapon. We agree, and because we conclude the error was not harmless, we reverse and remand for a new trial.

I. Background

¶ 2 After a highway confrontation, Naranjo was charged with two counts of felony menacing. The victims, a father and daughter, testified at a jury trial. The daughter testified that, as her father was merging onto the highway in their truck, Naranjo cut them off. Her father, who she characterized as a "fast driver," threw up his hands in frustration and attempted to pass Naranjo. After several attempts to pass Naranjo's vehicle, during which Naranjo repeatedly maneuvered in front of them, her father slowed down. Naranjo also slowed down and, according to the daughter, rested a gun on the inside of his open window and stated, "You don't want to fuck with me." The father testified consistently with his daughter's version of the events, but added that Naranjo repeated his threat twice and pointed the gun at his daughter. Both father and daughter testified that they were in fear when they saw the gun. And the father testified that, upon seeing the gun, he quickly braked and called 911. He then began to follow Naranjo, stating that he "[ran] red lights and stop signs" to keep up.

¶ 3 Naranjo also testified at trial. He stated that as he merged onto the highway, a truck began tailgating him. As a result, Naranjo slowed down, hoping that the truck would go around him. As he braked, Naranjo noticed that his gun—which he testified he had inadvertently left in his vehicle after target shooting the day before—was sliding off the passenger seat. Afraid that the gun would accidentally discharge if it fell to the floor, Naranjo "reached over to pick it up and ... put it into [the] glove box." He further testified that, as he was putting the gun in the glove box, the truck began to pass him and the driver yelled at him to "pull over." Naranjo denied that he threatened the occupants of the truck or intended to put them in fear. He denied pointing or brandishing his gun at anyone, but admitted that he "raised the gun up in the air" in order to get it into the glove box. Although he was unaware that the people in the truck had seen the gun, Naranjo testified that he would understand if they "misinterpreted the fact that I was putting the gun in the glove box as maybe me pulling it out."

¶ 4 After resting his case, Naranjo requested that the jury be instructed on the lesser non-included offense of disorderly conduct with a deadly weapon. In support of his request, he argued that the testimony supported a conclusion that he recklessly displayed a deadly weapon in a public place in a manner calculated to alarm. Specifically, he argued that the evidence demonstrated that he chose to handle his gun in plain view in the midst of a "rolling confrontation" on a public highway, an act that was "inherently" alarming.

¶ 5 Stating that a lesser non-included offense instruction must "fit the [d]efendant's theory of the case," the trial court denied Naranjo's request. The court found that "the theory put forth by the [d]efendant is that he simply reached over, inside of his car, and put the gun directly into ... the glove box." The trial court noted that Naranjo's "clear testimony was that there was absolutely no calculation to alarm whatsoever, and that ... he wasn't consciously disregarding anything, he was simply putting the gun away in a perfectly benign way with perfectly benign mens rea." As a result, the court concluded that there was "absolutely nothing about what [Naranjo] did that would be even reckless or frankly in a public place." Thus, the court could not "find any way to bend the facts that [Naranjo was] putting forth in his theory of the case that would mean that this was disorderly conduct with a deadly weapon."

¶ 6 After receiving additional time to consider other possible defense strategies, Naranjo requested an instruction on the lesser non-included offense of harassment for his "actions not related to the gun." The trial court granted the request.

¶ 7 The jury convicted Naranjo of the two felony menacing counts, but acquitted him of the two added harassment counts. II. Lesser Non–Included Offense Instruction

¶ 8 Naranjo contends that the trial court reversibly erred in declining to instruct the jury on the lesser non-included offense of disorderly conduct with a deadly weapon. We agree.

A. Governing Standards

¶ 9 A lesser non-included offense is an offense less serious than the charged offense. People v. Garcia, 17 P.3d 820, 826 (Colo.App.2000). It arises from the same facts but contains at least one element different from the original charge. Id. A lesser non-included offense instruction is tantamount to a theory of the case instruction. People v. Skinner, 825 P.2d 1045, 1047 (Colo.App.1991). Typically, by asking for such an instruction, a defendant denies the original charge, but admits committing a lesser offense which carries a less severe penalty. Id. Nothing, however, prevents a jury from convicting a defendant of both the original offense and any lesser non-included offense. Id. at 1047–48.

¶ 10 No absolute right to a lesser non-included offense instruction exists. But such an instruction should be given if (1) it is supported by the evidence; (2) the defendant requests it; and (3) there is a rational basis for the jury to acquit the defendant of the offense charged and simultaneously find him guilty of the lesser offense. People v. Rivera, 186 Colo. 24, 28, 525 P.2d 431, 434 (1974) ; Skinner, 825 P.2d at 1047 ; see also Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988) ("As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.").

¶ 11 Whether the record contains evidentiary support for a lesser non-included offense instruction is a factual inquiry which we review for an abuse of discretion.

People v. Wartena, 2012 COA 12, ¶ 30, 296 P.3d 136. But where, as here, a trial court interprets statutory elements in determining whether a rational basis exists to support a verdict acquitting the defendant of a greater offense and convicting him of the lesser offense, we review the trial court's conclusions de novo. Id.

B. Disorderly Conduct with a Deadly Weapon

¶ 12 As relevant here, a person commits disorderly conduct with a deadly weapon if he recklessly displays a deadly weapon in a public place in a manner calculated to alarm. § 18–9–106(1)(f), C.R.S.2014. A person acts recklessly if he consciously disregards a substantial and unjustifiable risk that a result will occur or that a circumstance exists. § 18–1–501(8), C.R.S.2014.

¶ 13 Our supreme court has interpreted the actus reus of disorderly conduct with a deadly weapon as "[t]he display of a deadly weapon in an alarming manner in a public place." People v. Torres, 848 P.2d 911, 915 (Colo.1993). Whether a deadly weapon is displayed in an alarming manner is an objective element of the crime. Id. at 915 n. 5. That is, to establish the crime of disorderly conduct with a deadly weapon, it is not relevant whether anyone was actually alarmed, if the act of displaying the deadly weapon would alarm a reasonable observer. Id.

C. Public Place

¶ 14 As an initial matter, Naranjo argues that the trial court erred in concluding that his actions did not occur in a public place. The People do not dispute that Naranjo was in a public place and we agree that he was.

¶ 15 Section 18–9–106(1)(f) does not define the phrase "public place." Thus, the general definition set forth in the criminal code applies. See § 18–1–901(1), C.R.S.2014 ("Definitions set forth in any section of this title apply wherever the same term is used in the same sense in another section of this title unless the definition is specifically limited or the context indicates that it is inapplicable.").

¶ 16 A public place is "a place to which the public or a substantial number of the public has access," including but not limited to "highways, transportation facilities, schools, places of amusement, parks, playgrounds, and the common areas of public and private buildings and facilities." § 18–1–901(3)(n), C.R.S.2014.

¶ 17 Nothing in the plain language of the definition of public place excepts any particular type of transportation that an actor uses while in a public place. Id. Rather, the phrase is defined in terms of fixed physical locations. Id.; People v. Jackson, 18 N.Y.3d 738, 944 N.Y.S.2d 715, 967 N.E.2d 1160, 1164 (2012) (interpreting a substantially similar definition of "public place" and concluding that a person is in a public place when located on a highway even if he or she is inside a personal automobile). We thus conclude that the method of transportation a person uses on a highway—whether walking, biking, driving, or some other type of transport—does not alter the fact that the person is on a highway, and therefore in a public place. See Jackson, 944 N.Y.S.2d 715, 967 N.E.2d at 1164 ; see also Whatley v. State, 708 N.E.2d 66, 68 (Ind.Ct.App.1999) (concluding that a person driving a semi-trailer truck on the highway while nude was in a public place...