Peo v. Garcia

Opinion

22CA2176 Peo v Garcia 10-17-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA2176 Adams County District Court No. 20CR3610 Honorable Robert W. Kiesnowski Jr., Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Reagan Christopher Garcia,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division V Opinion by JUDGE GROVE Freyre and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 17, 2024

Philip J. Weiser, Attorney General, Alejandro Sorg Gonzalez, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Krista A. Schelhaas, Alternate Defense Counsel, Littleton, Colorado, for Defendant-Appellant ¶1 Defendant, Reagan Christopher Garcia, appeals his

convictions and sentence entered on guilty verdicts for two counts

of stalking and four counts of violating protection orders.

¶2 Garcia raises two issues on appeal.1 First, he contends that

the cumulative effect of improperly admitted prior bad acts evidence

deprived him of a fair trial. Second, he argues that even if we affirm

his convictions, we should vacate his sentence and remand for

resentencing. We reject Garcia’s contentions of trial error, but we

agree he is entitled to a new sentencing hearing. Consequently, we

affirm Garcia’s convictions, reverse his sentence, and remand the

case for resentencing.

I. Background

¶3 The prosecution presented evidence at trial from which a

reasonable jury could have found the following.

¶4 Garcia and D.Q. were married for seven years and had three

children together. They divorced in 2010. Garcia’s conduct during

1 In his opening brief, Garcia argued that his convictions for

stalking under section 18-3-602(1)(c), C.R.S. 2024, must be reversed because that statute is unconstitutional, citing Counterman v. Colorado, 600 U.S. 66 (2023). Garcia withdrew this argument in his reply brief, so we do not address it on the merits.

1 and after the divorce resulted in four protection orders that were

active during the relevant times. The protection orders required

Garcia to not contact D.Q. and prohibited him from going near

D.Q.’s residence.

¶5 Between July and November 2020, Garcia violated the

protection orders many times. Some of these violations included

leaving menacing voicemails, attempting to break into D.Q.’s

residence multiple times while she and her family were inside, and

threatening to murder and dismember D.Q. and members of her

family.

¶6 Despite these incidents, D.Q. did, on a few occasions,

voluntarily spend some time with Garcia during this period. Garcia

hosted a birthday party for their son at his sister’s house that D.Q.

attended. D.Q. picked Garcia up from his sister’s house and gave

him rides a few times. D.Q. and Garcia went to a concert together,

and D.Q. allowed Garcia to stay one night at her house. Regarding

these interactions, D.Q. clarified that “99 percent of the time, we

were not cordial.”

¶7 Shortly after one of Garcia’s attempts to break into D.Q.’s

residence, Garcia was charged with one count of second degree

2 burglary, two counts of stalking, and ten counts of protection order

violations. After a jury trial, he was convicted of both stalking

counts and four of the protection order violations. The district

court sentenced Garcia to a controlling sentence of eight years in

the custody of the Department of Corrections.

II. Prior Bad Acts Evidence

¶8 Garcia contends that several references to prior criminality

and other bad acts, when viewed cumulatively, deprived him of a

fair trial. Because Garcia does not develop his argument to a

degree sufficient to allow adequate appellate review, we decline to

address the merits of the issue.

¶9 It is well established that we will not consider conclusory

arguments or bald legal assertions absent development or

argument. See, e.g., People v. Simpson, 93 P.3d 551, 555 (Colo.

App. 2003). Instead, an appellant must apply the legal principles to

the facts to establish legal error entitling him to relief.

¶ 10 Garcia lists the following evidence as allegedly improperly

admitted other bad acts:

• A police officer testified that Garcia had “an active

warrant.” Garcia objected to this testimony and

3 requested a mistrial. The district court sustained the

objection but rather than grant a mistrial, the court

instructed the jury to ignore the testimony.

• D.Q. mentioned that Garcia had entered her home

several times previously. Garcia objected to this

testimony and requested a mistrial; the district court did

not hear the reference, but it still instructed the jury to

ignore the testimony.

• Portions of admitted minute orders included the following

statements:

o “[Garcia’s parenting time] will be in the form of

reintegration therapy at a licensed facility 1 time a

week for up to 2 hours at a time. The reintegration

therapy will continue at the discretion of the

therapist.”

o “Parties were heard arguing in the hall.”

o “Petitioner states that there is a history of violence

from Respondent and she is not comfortable with

visits unless they are supervised.”

o “[D.Q. believes] that the children may be hurt.”

4 o “Garcia called from Colorado Corrections.”

o “There is also a pending D&N case involving the

parties’ children.”

¶ 11 Cumulative error requires reversal when the trial court

commits several errors that individually do not necessitate reversal

but that, when viewed as a whole, are so prejudicial that the

defendant was denied a fair trial. Howard-Walker v. People, 2019

CO 69, ¶ 24. However, before we can assess the prejudicial effect of

erroneously admitted evidence — if any — Garcia must first

establish that errors occurred. But on appeal, Garcia fails to

develop any argument as to why the various pieces of other acts

evidence he identifies were admitted in error. Indeed, Garcia does

not even mention the analytical framework for determining whether

5 admitted evidence violates CRE 404(b). 2 Rather, he simply lists the

allegedly improper pieces of evidence, without offering argument as

to why they were inadmissible under CRE 404(b) or relying on any

authority governing the admission of that evidence, and then

argues that the cumulative effect of these alleged errors deprived

him of a fair trial. We will not develop Garcia’s arguments for him,

Scholle v. Ehrichs, 2022 COA 87M, ¶ 80, aff’d in part and rev’d in

part, 2024 CO 22, and therefore decline to consider whether and

why the evidence he identifies was properly or improperly admitted.

And without a showing from Garcia as to why any of the other bad

acts evidence should have been excluded — much less all of it — he

cannot prevail on his argument that cumulative error requires

reversal.

2 The Colorado Supreme Court most recently discussed the proper

framework for analyzing objections to prior bad acts evidence in Rojas v. People, 2022 CO 8. To determine whether evidence is improper other acts evidence, the trial court must first determine if the evidence is extrinsic or intrinsic to the charged offense. Id. at ¶ 44. If the evidence is extrinsic (and supports an improper inference that the defendant has a bad character), then the prosecution must establish the evidence is relevant to a common plan, motive, opportunity, or intent. Id. at ¶ 48. Once the prosecution establishes a non-propensity purpose for admitting the evidence, then the court weighs the probative value of the evidence against the risk of unfair prejudice. Id. at ¶ 52.

6 III. Sentencing

¶ 12 In supplemental briefing submitted in response to an order of

this court, Garcia contends that his sentence must be vacated

because the district court lacked authority to impose it while

Garcia’s motion to recuse the trial judge was pending. We agree.

A. Additional Facts

¶ 13 Garcia was represented by a public defender throughout the

pretrial and trial proceedings. At the sentencing hearing, however,

Garcia announced that he no longer wished to be represented by

his appointed public defender because he believed his public

defender was ineffective. In essence, Garcia argued that his public

defender had given the prosecution access to his trial strategy by

conspiring with the prosecution and jail deputies to have the jail

deputies film Webex conferences between Garcia and his counsel.

Additionally, Garcia claimed counsel intimidated him when advising

him on various matters, including about whether to speak at

sentencing. The court attempted to explain, to no avail, that legal

strategy was the province of his attorney. Ultimately, however, the

court determined that an irreconcilable conflict had arisen,

disqualified the public defender’s office from representing Garcia,

7 and granted Garcia’s request to have alternate defense counsel

(ADC) appointed for sentencing. The court continued sentencing

and scheduled a status conference to be held several weeks later.

¶ 14 A day before the new sentencing date, Garcia filed a pro se

motion seeking a continuance and the appointment of new counsel.

Garcia retracted the request for new counsel at the hearing, but

ADC requested a continuance so that he could explore a potential

motion for a new trial. The court granted the continuance over the

prosecutor’s objection and rescheduled sentencing for September 1,

2022. The court emphasized that if a motion for a new trial with

new evidence was not filed by then, sentencing would proceed as

scheduled.

¶ 15 Three days before the rescheduled sentencing hearing, the

court held a hearing on two pro se motions that Garcia had filed.

Taken together, the motions sought (1) a new trial based on

ineffective assistance of trial counsel and (2) to fire ADC and

proceed pro se. ADC explained that Garcia wished to proceed pro

se due to fundamental disagreements over strategy — specifically,

Garcia’s insistence that they litigate his ineffective assistance of

counsel claims before sentencing.

8 ¶ 16 After confirming with ADC that the conflict had arisen because

Garcia was “requesting that [counsel] take a course of action that

[he did] not believe [was] legally justified,” the court advised Garcia

about his right to representation and inquired into his

understanding of the charges against him and the possible

penalties. The court emphasized the complexity and difficulties of

self-representation, attempted to explain some aspects of

sentencing and appellate procedure, and pointed out that

sentencing would need to be complete before any ineffective

assistance claims could be raised. Garcia reaffirmed he would like

to fire ADC, and the court granted the request. However, the court

again expressed concern about Garcia’s ability to represent himself

and inquired further into his wish to proceed pro se.

Court: Is anyone forcing you, threatening you?

Garcia: No.

Court: Coercing you or putting any pressure on you to get you to waive your right to counsel?

Court: And you’re not under the influence of any drugs, alcohol, intoxicants, or prescription medication that might impact your ability to

9 understand your waiver of the right to counsel?

Court: Do you suffer from any emotional or mental disability or illness that might impact your ability to understand what you’re doing here today?

¶ 17 After some further discussion in which the court explained the

procedural steps that had to happen before Garcia could raise an

ineffective assistance claim, Garcia eventually asked that his ADC

be reinstated as his counsel for sentencing. The court granted the

request, but before it did so, it denied Garcia’s pending pro se

motions during the brief window that he was representing himself.

The court rescheduled sentencing for September 8, 2022.

¶ 18 Later the same week, ADC requested a status conference after

“receiving a message . . . from a family member of Mr. Garcia

indicating that [Garcia] believe[ed] there [was] a conflict with [ADC’s]

representation.” When asked to explain the conflict, Garcia told the

court that he had a conflict with ADC “because of the simple fact

I’m suing the [Office of Alternate Defense Counsel] and the public

defenders [office].” The court agreed that this development created

10 a conflict and pointed out another problem: by pursuing his

lawsuit, Garcia would be conflicting out every potential court-

provided attorney in the state. In response, Garcia requested

appointment of an attorney “outside of the [Office of Alternate

Defense Counsel], but the court declined, stating that it did not

“have that ability.” The court then listed Garcia’s two options: “You

can hire private counsel . . . . You can represent yourself. I don’t

have any other lawyers to give you.”

¶ 19 Garcia responded, “I need somebody to help me — assistance

of counsel to help me understand or go through these motions of

the due process motion that you have.” After the court reminded

Garcia that it had already denied his pro se motions, Garcia

attempted to pivot, claiming that his ADC had not prepared for

sentencing. At this point, the court grew frustrated and issued the

following ruling:

That’s not true, Mr. Garcia. You are just blowing smoke at me now. Okay? We continued the matter from the 29th so as to afford [counsel] an opportunity to get prepared, to speak with your sister, your family members, those individuals. Okay.

I’m not buying any of this crap. Okay? It’s plain and simple. I’m not.

11 ....

What you are doing at this point in time is you are trying to just simply delay the inevitable. You are trying to delay the imposition of a sentence. And this is all a bunch of — it’s a game at this point in time. Okay?

So what’s going on is you’re pulling out every stop you can think of to derail you getting sentenced. Okay? You concocted all this nonsense about the public defender’s office being in cahoots with the district attorney’s office. Okay? And I gave you the benefit of the doubt; so I removed [the public defender].

I appointed [ADC] to represent you. Okay? You couldn’t get along with [ADC], okay, because you know better than the trained lawyer about what needs to be argued. Okay. That’s what’s going on. This is nothing but delay. Okay?

There has never been an issue with the public defender’s office being in league or conspiring to turn over client confidences, therefore, they know strategy and game plan. That’s all nonsense. It didn’t happen. You know it. . . . You don’t want to get sentenced. Okay. But you’re going to get sentenced. It’s as simple as that. Okay?

You have basically thwarted every attorney’s efforts to work with you. All right? . . . You are going to represent yourself at this point in time. Okay? I have given you every chance to have counsel to represent you, and you are just playing a game with me.

12 ¶ 20 Garcia attempted to argue with the court that he still had due

process claims and ineffective assistance of counsel claims that he

needed help with. He again requested appointment of counsel other

than an ADC attorney; the court reiterated, “I don’t have the ability

to appoint anyone other than alternate defense counsel. What are

you not grasping?” The court concluded the hearing, “So it seems

to me you’ve put yourself in a position that you are forced to

represent yourself or hire a new lawyer. You have until September

8th to hire a new lawyer.”

¶ 21 On September 6, using the Adams County Detention Facility’s

legal mail system, Garcia mailed a pro se motion to the district

court titled “Motion for Judge to Recuse Himself and for

Appointment of Defense Counsel.” As grounds for his request,

Garcia argued that the trial judge had exhibited actual bias against

him, including by “lo[sing] his proffessional [sic] composure,”

“le[aving] his seat,” “plac[ing] everyone in the Courtroom in fear for

their safety,” and announcing before sentencing that he was already

planning on sending Garcia back to prison. The motion was

stamped received by the district court on September 8, the day of

the sentencing hearing.

13 ¶ 22 No one mentioned the motion during the sentencing hearing,

but a week later, on September 15, the district court issued an

order granting it. For reasons the record does not reveal, however,

the judge who granted the motion subsequently issued several

procedural orders. And despite the recusal, neither party objected

to these orders and there is no indication in the record that another

judicial officer was appointed to replace the original judge before

Garcia filed his notice of appeal.

B. A New Sentencing Hearing is Required

¶ 23 When a party files a motion for substitution of a judge based

on a claim that the judge is “in any way interested or prejudiced

with respect to the case, the parties, or counsel,” “all other

proceedings in the case shall be suspended until a ruling is made

thereon.” Crim. P. 21(b)(1)(IV), (3). “The rule is designed to ensure

that a judge who is the subject of recusal proceedings will not

exercise any authority over any aspect of the case so long as that

judge’s neutrality is questioned.” People v. Bossert, 722 P.2d 998,

1007 (Colo. 1986). And it applies when “the judge’s manifestation

of hostility or ill will is apparent from the motion and affidavits and

14 indicates the absence of the impartiality required for a fair trial.”

Brewster v. Dist. Ct., 811 P.2d 812, 814 (Colo. 1991).

¶ 24 The People do not dispute that, by utilizing the Adams County

Detention Facility’s system for legal mail, Garcia’s motion was

deemed filed on September 6, 2022 — two days before the

sentencing hearing. See Crim. P. 45(f); see also Wallin v. Cosner,

210 P.3d 479, 480 (Colo. App. 2009) (explaining that a complaint

filed by an inmate through the prison mail system is filed when it is

received by the institution’s internal mailing system). Instead, the

People point out that the motion was procedurally deficient, and

they also argue Garcia waived or forfeited the right to have the

motion decided by failing to mention during the sentencing hearing

that it had been filed and was still pending.

¶ 25 The People’s arguments would have some force if the judge

had not later granted the motion. But he did grant it, and he did so

without offering any reasons for his decision.3 In the absence of an

3 In their supplemental briefing, the People seem to imply that the

trial judge did not actually mean to recuse himself because he subsequently ruled on two of Garcia’s procedural motions. The judge’s actions are indeed puzzling, and it is at least conceivable that his order granting the recusal motion was the result of a

15 explanation, we can only conclude the trial judge decided to step

aside on the grounds asserted in the motion — that he was

“interested or prejudiced with respect to the case [or] the parties.”

Crim. P. 21(b)(1)(IV).

¶ 26 Thus, regardless of the timing of Garcia’s motion or whether

he should have orally raised it at the sentencing hearing, the record

establishes that, one week after sentencing — and with no other

proceedings having occurred in the interim — the trial judge

recused himself from the case on grounds of actual bias. 4 By

granting the motion, the court rendered questions of preservation

irrelevant. And on these facts, we can only conclude the timing of

the judge’s order granting Garcia’s motion establishes that, during

clerical error. Under some circumstances it might be fruitful to remand the case for clarification of this question. But here, that is impossible because the trial judge is no longer on the bench. See In re Kiesnowski, 2024 CO 12. 4 We note that Garcia’s assertions of actual bias were based on the

conflict that arose between himself and the trial judge after the trial but before the sentencing date. We have found nothing in Garcia’s motion or elsewhere in the record suggesting that the judge harbored any bias against Garcia before or during trial. Thus, our opinion should not be read to suggest that Garcia’s convictions were tainted by judicial bias.

16 sentencing, he harbored the same bias that led to his subsequent

recusal.

¶ 27 The judge’s decision to recuse himself shows he recognized

that he had a “bent of mind” against Garcia. People v. Drake, 748

P.2d 1237, 1249 (Colo. 1988). And when a judge is actually biased

against a party, “we question the result” of the proceeding. People

in Interest of A.P., 2022 CO 24, ¶ 29. Accordingly, because the

record establishes that the judge presiding over Garcia’s case was

no longer neutral at the time of sentencing, we must reverse

Garcia’s sentence and remand the case so that Garcia may be

resentenced by a different judge.

IV. Disposition

¶ 28 We affirm Garcia’s convictions. We reverse the order imposing

his sentence and remand the case for resentencing by a different

judge.

JUDGE FREYRE and JUDGE LUM concur.