22CA1822 Peo v Garcia 05-08-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1822 City and County of Denver District Court No. 19CR20013 Honorable Martin F. Egelhoff, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Anatolio Garcia,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE WELLING Kuhn and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 8, 2025
Philip J. Weiser, Attorney General, Sonia Raichur Russo, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Rachel C. Funez, Alternate Defense Counsel, Glenwood Springs, Colorado, for Defendant-Appellant ¶1 Defendant, Anatolio Garcia, appeals his conviction and
sentence for first degree extreme indifference assault and vehicular
homicide. We disagree and affirm.
I. Background
¶2 In May 2019, just after 2 p.m., the van Garcia was driving hit
a car. Garcia and his passengers picked up some debris from that
crash before getting back in the van and speeding away. Witnesses
watched as Garcia sped down a residential street and eventually hit
another car, killing the driver. The second collision was so violent
that Garcia’s van struck a house and injured an occupant of that
home. A passenger inside the van, S.P., suffered a spinal fracture.
¶3 Garcia was pulled from the driver’s seat and taken to the
hospital by ambulance. He told a police officer that he was the
driver of the van. The officer smelled alcohol on Garcia’s breath and
noticed that his eyes were bloodshot and watery, and that he was
slurring his speech. Garcia’s blood was drawn three times between
approximately 6 p.m. and 8 p.m., and his blood alcohol content
measured .243, .225, and .205 — two and a half to three times the
legal limit to operate a motor vehicle. Garcia also tested positive for
1 THC, the psychoactive ingredient in marijuana. Garcia had four
prior DUI convictions between 1992 and 2003.
¶4 Garcia was arrested and charged with thirteen different
crimes, including first degree murder, vehicular homicide, and first
degree extreme indifference assault.
¶5 For most of this case, Garcia maintained that he wasn’t
driving the van during the second accident — despite being pulled
from the driver’s seat by emergency medical services and reporting
he was the driver. Garcia was found incompetent to stand trial in
August 2020 and found competent in January 2021. He was
initially found to be incompetent because, among other reasons, his
account of events “contained several bizarre elements.” When he
was restored to competency in January 2021, the psychiatrist
didn’t find a mental or developmental disorder, instead postulating
that Garcia’s continued “fantastical” version of events might have
resulted from an alcoholic “blackout” that he backfilled with a story
created to help him cope “with a potentially life-changing event.”
His original counsel moved to withdraw in March 2021, and the
court appointed alternate defense counsel (ADC) — whom we will
refer to as plea counsel — to represent him.
2 ¶6 In October 2021, Garcia entered a guilty plea to first degree
extreme indifference assault and vehicular homicide in exchange for
dismissal of the eleven other charges. The court gave Garcia a very
thorough advisement concerning the rights he was relinquishing by
pleading guilty, including the right to defend against any of the
charges and the right to a trial. Garcia repeatedly affirmed his
desire to plead guilty during this advisement from the court.
¶7 The matter was set over for sentencing.
¶8 But three months after pleading guilty and before sentencing,
Garcia requested to withdraw his guilty plea, claiming that his plea
counsel had pressured him into pleading guilty to buy them time to
investigate certain leads. Garcia claimed that plea counsel
promised that he could withdraw his plea if they discovered
exculpatory information, but he says they never conducted the
promised investigation and didn’t provide him with the discovery in
his case until after he had pleaded guilty. Garcia claimed that once
he was provided with the discovery and had the opportunity to
review it, he was able to identify several potentially exculpatory
leads. Garcia requested the court allow him to withdraw his guilty
plea so that he could investigate these leads. Concurrent with
3 Garcia’s motion to withdraw his plea, plea counsel filed a motion to
withdraw.
¶9 The court granted plea counsel’s motion to withdraw and
appointed new ADC — whom we will refer to as final counsel — to
represent Garcia in moving to withdraw his guilty plea and at
sentencing if the motion to withdraw his plea was unsuccessful.
¶ 10 Final counsel requested that Garcia be evaluated a third time,
and he was found competent again in July 2022. After final
counsel presented Garcia’s motion to withdraw his guilty plea orally
and the prosecution responded, the court denied the motion. The
court then imposed the maximum sentence for both convictions —
thirty-two years for the first degree extreme indifference assault
conviction and twelve years for the vehicular homicide conviction —
and ordered that Garcia serve the sentences consecutively.
II. Issues on Appeal
¶ 11 Garcia raises four issues on appeal. Garcia contends that the
court erred by (1) appointing final counsel to investigate whether
there were grounds to file a motion to withdraw his guilty plea; (2)
denying his motion to withdraw his guilty plea; (3) imposing the
maximum sentence allowed by statute; and (4) imposing a
4 disproportionate sentence in violation of the Eighth Amendment
and the Colorado Constitution on the first degree extreme
indifference assault conviction. We address and reject each
contention in turn below.
A. Conflict of Interest
¶ 12 Garcia argues that the trial court created a conflict of interest
by appointing final counsel to “investigate whether or not there are
grounds to withdraw the guilty plea.” He argues the court’s
language when appointing final counsel created a conflict of interest
between final counsel’s responsibility to represent Garcia and her
mandate to investigate the merits of his motion to withdraw his
plea. We aren’t persuaded.
1. Standard of Review
¶ 13 Though we would normally review a court’s rulings on
appointment of counsel for an abuse of discretion, because Garcia
alleges the court’s order appointing counsel created a conflict of
interest, we review his claim de novo. Ronquillo v. People, 2017 CO
99, ¶ 13.
5 2. Additional Facts
¶ 14 After granting plea counsel’s motion to withdraw, the court
appointed final counsel:
I’ll appoint ADC . . . to investigate whether or not there are grounds to withdraw the guilty plea. If there are, there needs to be a motion filed and we’ll have a hearing on that motion. . . . If that motion is denied, he or she will proceed at Garcia’s time for sentencing. If it’s granted, he has a lawyer.
¶ 15 About a month later, final counsel appeared on Garcia’s behalf
at a hearing. The court commented on its previous order
appointing final counsel: “So the Court appointed ADC to
investigate whether or not there’s grounds to file a Motion to
Withdraw Mr. Garcia’s guilty pleas.”
¶ 16 And after final counsel requested a continuance, the court laid
out a roadmap for the case moving forward:
So we’ll need to be prepared to — if there’s grounds to . . . withdraw the guilty plea, you need to file a written motion with those grounds so the DA’s on notice. And if there’s a motion filed, we’ll have a hearing and determine whether there’s basis or not. And depending on the result of that, we’ll either proceed to sentencing or not.
6 ¶ 17 In March, at another hearing, final counsel cited attorney-
client privilege when limiting her discussion about what issues she
was investigating for Garcia. Shortly after that, the court clarified
the scope of her appointment:
THE COURT: So, Counsel, when we appointed you on this case, just remind me, would I be correct in presuming that you obviously are appointed to investigate and present any request on behalf of Mr. Garcia on his guilty plea? Presuming, just for the sake of argument, that motion is denied, then you would be then the counsel — or would it be (indiscernible) appointment to be the counsel to represent him during sentencing?
[ADC]: I would assume so. I would likely reach out to ADC, but I would assume that. I would do both for — unless Mr. Garcia had any objection just for kind of clarity’s sake that now I’m familiar with the case and with Mr. Garcia. . . .
THE COURT: And I guess if the Court made that an order, that would solve that problem, right?
[ADC]: I would agree, yeah.
THE COURT: So here again, I’m not asking you to divulge any confidential information, but let’s say I gave you a continuance — and I understand what you’re doing, and I — you know, everyone’s frustrated about the pace of the case and what’s happened here. And I guess what I’m trying to do is get the issues before the Court resolved and so we can
7 actually have a resolution that stands up one way or the other.
And so let’s just say that we give you the time that you need or maybe a little less, at that point in time, would you be in a position to both present whatever motion you’re going to present, and if that motion is indeed denied, just for the sake of argument, then be in a position then to proceed to sentencing?
¶ 18 Final counsel replied that she needed to confer with Mr.
Garcia. After they spoke off the record, final counsel confirmed
that, if his motion to withdraw his guilty plea was denied, Mr.
Garcia wanted to proceed with her as his attorney through
sentencing and that she felt she would be ready to represent him at
sentencing.
¶ 19 Finally, the court warned Garcia:
And so I want to make very clear to you, Mr. Garcia, that I’ve appointed one more lawyer for you to proceed with this motion and proceed to sentencing. And if conflicts arise with respect to this lawyer, you may very well be to the point where you have forfeited your right to counsel and you’ll proceed without counsel. And I’m not talking about a waiver; I’m talking about a forfeiture of your right to counsel.
3. Analysis
¶ 20 Garcia argues that the court created a conflict of interest that
denied him effective assistance of counsel when it appointed final
8 counsel to investigate whether there were grounds for Garcia to
withdraw his guilty plea. Garcia argues that by imposing on final
counsel the obligation to investigate whether there were grounds for
Garcia’s motion to withdraw, the court split counsel’s loyalty
between investigating on behalf of the court and representing Mr.
Garcia’s interests.
¶ 21 Garcia relies on People v. Breaman, 939 P.2d 1348 (Colo.
1997), to support his argument. In Breaman, the court appointed
an attorney for Breaman “to review [Breaman’s] submissions,
consult with [Breaman,] and make such further investigations as
may be appropriate to determine if a meritorious issue exists.” Id.
at 1350. The attorney filed a status report detailing how he had
reviewed the files and transcripts from the case, discussed the case
with the arresting officer and the attorney who had previously
represented Breaman, and researched the applicable law. Our
supreme court held that, while a court may remind an attorney of
their duty not to pursue meritless claims, the Breaman court’s
language impermissibly limited the scope of the attorney’s
appointment to be the “court’s fact-finder.” Id. at 1351-52. The
court supported its decision with a couple of key observations: (1)
9 the attorney’s status report didn’t indicate that he had spoken with
Breaman at all, and (2) the attorney “reviewed the claims and
reported directly to the court.” Id. at 1352.
¶ 22 But the facts in these cases are distinguishable. First, the
court’s language when it appointed final counsel was broader than
that of the district court in Breaman. For example, the trial court
initially described an arrangement where final counsel would
present a motion to withdraw the guilty plea, and if it was denied
final counsel “will proceed at Garcia’s time for sentencing. If it’s
granted, he has a lawyer.” This describes the full scope of a normal
attorney-client relationship during a criminal trial — not a limited
role as the court’s investigator. And the court clarified its language,
ensuring that there could be no question that final counsel wasn’t
the court’s fact finder, stating that “if there’s a motion filed, we’ll
have a hearing and determine whether there’s basis or not. And
depending on the result of that, we’ll either proceed to sentencing or
not.”
¶ 23 The court clearly reserved the responsibility to determine if
final counsel had established a basis for withdrawing the plea at the
hearing — and didn’t place that responsibility on final counsel as
10 the court did in Breaman. 939 P.2d at 1350. Moreover, the court
warned Garcia that if final counsel withdrew due to yet another
conflict, it would constitute a forfeiture of Garcia’s right to counsel.
By framing what legal right Garcia stood to lose if final counsel were
to withdraw due to a conflict, the court made it clear that final
counsel was to act as Garcia’s legal counsel, not the court’s fact
finder.
¶ 24 Second, final counsel did confer with Garcia, including
obtaining Garcia’s explicit consent to represent him at the
sentencing phase. This is in contrast to the attorney in Breaman,
who didn’t speak with Breaman at all. Id. at 1351. And final
counsel presented Garcia’s motion to withdraw his guilty plea,
albeit orally, in contrast to the attorney in Breaman who simply
filed a status report detailing the attorney’s findings. Id. at 1350.
¶ 25 Moreover, final counsel clearly understood that she was being
appointed as Garcia’s counsel, and not as the court’s fact finder,
because she upheld her obligations to Garcia when she protected
the attorney-client privilege at a hearing, and when she made a
motion requesting Garcia’s fitness be evaluated again — for the
third time. See Colo. RPC 1.6.
11 ¶ 26 Because the court didn’t limit the scope of final counsel’s
representation of Garcia, and because final counsel acted as
Garcia’s counsel and not as a fact finder for the court, we discern
no error in the court’s order appointing Garcia final counsel.
B. The Motion to Withdraw the Plea
¶ 27 Next, Garcia contends that the trial court erred by denying his
motion to withdraw his guilty plea because his motion was timely,
the prosecution wouldn’t have been prejudiced if the court had
granted the motion, and he had a fair and just reason for
withdrawing his plea. We disagree.
¶ 28 A defendant must demonstrate a fair and just reason in order
to withdraw a guilty plea. People v. Chippewa, 751 P.2d 607, 609
(Colo. 1988). We review a denial of a motion to withdraw a guilty
plea for an abuse of discretion. Id. A trial court abuses its
discretion if its ruling is manifestly arbitrary or unreasonable, or if
it misapplies the law. People v. Burlingame, 2019 COA 17, ¶ 10.
2. Additional Facts
¶ 29 Final counsel argued that Garcia didn’t receive his discovery
until after he entered his guilty plea, and that once he received
12 discovery in his case, Garcia identified several “areas of reasonable
doubts.” When the court asked final counsel to clarify, she
responded:
Areas of reasonable doubt that Mr. Garcia has identified is essentially a witness that saw two individuals running from the scene shortly after the accident.
Mr. Garcia has also identified another witness that stated the wrong color of construction vest, that of the person that was driving the car.
Mr. Garcia also identified a witness that stated that the victim in this case was driving about [seventy] to [eighty] miles per hour very quickly down the road. . . .
And, Your Honor, Mr. Garcia also identified that some of the officer’s bodycam footage does not show a complete interaction of that day, and only does show Mr. Garcia once he is in the . . . the ambulance, excuse me, not prior to that.
¶ 30 The trial court rejected Garcia’s claim that he didn’t receive
discovery until after he pleaded guilty as not credible. The trial
court also referenced its extensive advisement to Garcia regarding
the implications of pleading guilty — and specifically the part where
Garcia stated he was satisfied with his counsel at the time. The
court concluded that, even if Garcia had intended to plead guilty
13 and withdraw that plea later, that wasn’t “a good and just reason
now to allow him to withdraw his guilty plea.” The court also
rejected Garcia’s claim that he had determined areas of doubt in the
discovery because Garcia was found behind the wheel of the van
after it had hit the house, was transported to the hospital via
ambulance, and admitted on camera that he was driving the van.
¶ 31 Garcia argues that he had two fair and just reasons to
withdraw his guilty plea. First, he argues that he only entered the
guilty plea because his plea counsel promised he would investigate
certain aspects of the case and that if these investigations produced
any exculpatory evidence Garcia could then withdraw his guilty
plea. But his argument fails for two reasons.
¶ 32 First, the idea that Garcia could expect to plead guilty as a
method of buying more time to gather evidence contradicts the
terms of the plea agreement. Remember that prior to entering his
plea Garcia was explicitly advised by the court that by pleading
guilty he was abandoning any defenses he might have to the
charges — not buying time to discover such defenses. Because
14 Garcia’s argument is contrary to the definition and purpose of a
plea bargain, we reject it.
¶ 33 Second, given the overwhelming nature of the evidence against
him, there was no real possibility that plea counsel would discover
any exculpatory evidence. Consider that Garcia was pulled from
the driver’s seat of the van by emergency medical services, and he
told police that he was the driver of the van on camera. It would
have served no purpose, for example, for plea counsel to have
investigated the GPS data for Garcia’s phone as he requested, since
all that would prove is that his phone was somewhere other than
the scene of the crash — not that Garcia wasn’t driving the van.
¶ 34 Garcia next argues that, once he received discovery, he found
several “areas of doubt” that provided him with a defense to the
charges. But these “areas of doubt” are either irrelevant or
insufficient to cast reasonable doubt on the evidence that he was
driving the van. For example, at the hearing Garcia alleged that
witnesses saw two people running from the scene of the accident,
that a witness testified that Garcia was wearing the wrong color
safety vest, and that the officer’s body camera footage was
incomplete. Garcia didn’t identify where in the record some of these
15 instances occurred or, more importantly, how they would prove he
was innocent even if he could prove them.
¶ 35 Because Garcia didn’t have a fair and just reason to withdraw
his guilty plea, we discern no error in the trial court’s denial of his
motion.
C. The Maximum Consecutive Sentence
¶ 36 Garcia contends that the court erred when it sentenced him to
serve the maximum number of years for both charges consecutively.
But we decline to address his argument because Garcia doesn’t
have the right to appeal his sentence on these grounds. § 18-1-
409(1), C.R.S. 2024 (“[I]f the sentence is within a range agreed upon
by the parties pursuant to a plea agreement, the defendant shall
not have the right of appellate review of the propriety of the
sentence.”); People v. Scofield, 74 P.3d 385, 387 (Colo. App. 2002)
(holding that section 18-1-409(1) bars review of sentence imposed
in the aggravated range where, as part of a plea agreement, “the
parties expressly agreed that defendant would be sentenced within
the aggravated sentencing range”).
¶ 37 At the sentencing hearing, the trial court confirmed the
possible sentencing ranges for both of his charges, including
16 possible fines, and asked Garcia if he understood those penalties.
Garcia replied, “Yes, I do, Your Honor.” The court confirmed his
desire to plead guilty just a moment later:
THE COURT: And that was my next question was in light of the things we’ve talked about this morning, do you feel that you’ve understood what we’ve talked about this morning?
THE DEFENDANT: I most certainly have, Your Honor.
THE COURT: Okay. And in light of that discussion, you still want to persist in this plea?
THE DEFENDANT: Yes, I do.
¶ 38 Relying on People v. O’Dell, 53 P.3d 655, 657 (Colo. App.
2001), Garcia contends that because the plea agreement “left
sentencing open [to the court] and contained no stipulation as to
the sentence to be imposed,” section 18-1-409(1) doesn’t bar him
from challenging the propriety of the sentence on appeal. We
disagree.
¶ 39 In O’Dell, the division concluded that appellate review of a
sentence wasn’t barred because there the defendant was merely
advised of the sentencing range for the charge he pleaded to and
there was “no indication in the record that [the defendant’s] plea
17 agreement included any type of agreed sentencing range or cap.”
Id. That’s not the case here. Garcia’s plea agreement explicitly
provided that the court would impose a sentence in the presumptive
range of four to twelve years on the vehicular homicide conviction
and in the aggravated range of ten to thirty-two years on the first
degree extreme indifference assault conviction, and that the court
could impose sentence consecutively. Such a provision in a plea
agreement is adequate to bar appellate review under section 18-1-
409(1). See People v. Dobler, 2015 COA 25, ¶ 30 (“Because the
sentence imposed was ‘within a range agreed upon by the parties
pursuant to a plea agreement,’ defendant is precluded from
challenging the propriety of his sentence on appeal.” (first citing
§ 18-1-409(1); and then citing Scofield, 74 P.3d at 387)); Scofield, 74
P.3d at 387 (declining to apply O’Dell where the parties’ entered a
plea agreement providing that “defendant would be sentenced
within the aggravated sentencing range for” the offense to which he
was pleading guilty). This is true even when the sentencing range
agreed to by the parties doesn’t “confer a sentencing benefit or
concession on the defendant.” Scofield, 74 P.3d at 386-87.
18 ¶ 40 Accordingly, since the trial court’s sentence was within the
range contemplated by Garcia’s plea agreement and explicitly
agreed to by Garcia, we decline to consider his appeal of the
sentence on these grounds.1
D. Proportionality
¶ 41 Last, Garcia contends that the court’s thirty-two-year sentence
for his first degree extreme indifference assault conviction is
disproportionate in violation of the Eighth Amendment to the
United States Constitution and article II of the Colorado
Constitution. We disagree.
¶ 42 We review de novo whether a sentence is “grossly
disproportionate in violation of the Eighth Amendment to the U.S.
Constitution and article II, section 20 of the Colorado Constitution.”
1 Even if we were to review Garcia’s sentence for an abuse of
discretion, the trial court’s decision was within the sentencing range contemplated by the legislature and the court supported its decision with ample and adequate findings; thus we discern no abuse of discretion. See People v. Herrera, 2014 COA 20, ¶ 16 (“We review a trial court’s sentencing decision for an abuse of discretion. A court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair . . . .”) (citations omitted); People v. Voth, 2013 CO 61, ¶ 15 (“A trial court necessarily abuses its discretion if its ruling is based on an erroneous view of the law.”).
19 Wells-Yates v. People, 2019 CO 90M, ¶ 35. “It is ‘exceedingly rare’
for a sentence to be deemed so extreme that it is grossly
disproportionate to the crime.” Id. at ¶ 5 (quoting Harmelin v.
Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring in
part and concurring in the judgment)).
¶ 43 Relying on People v. Walker, 2022 COA 15, the People contend
that because Garcia never raised the issue of proportionality at
trial, we should review the claim for plain error. Garcia contends
we should decline to follow Walker because, he argues, the division
was incorrect in deciding that plain error applies to unpreserved
proportionality claims. But because we discern no error, we need
not resolve this conflict regarding the appropriate standard of
review. See People v. Carter, 2015 COA 24M-2, ¶ 29 (noting that
when a reviewing court discerns no error, it “need not decide
whether the plain error standard applies”).
¶ 44 In the first step of a proportionality review, the court “should
consider (1) the gravity or seriousness of the offense and (2) the
harshness of the penalty.” Wells-Yates, ¶ 7. If that consideration
gives rise to an inference of gross disproportionality, then the court
moves to the second step — comparing “the challenged sentence to
20 sentences for other crimes in the same jurisdiction and sentences
for the same crime in other jurisdictions” — but if there is no
inference of disproportionality then the sentence must be upheld.
Id. Whether a sentence is parole eligible is relevant to its harshness
since “parole can reduce the actual period of confinement and
render the penalty less harsh.” Id. at ¶ 14.
¶ 45 At the sentencing hearing, the trial court made findings before
it sentenced Garcia.
This — this is a very serious and aggravated case for a lot of reasons, much of which has been discussed by the Prosecution, but I’ll highlight a few things.
This is a case where the driving behavior was extraordinarily dangerous. . . . It sounds like it was residential streets, during school hours, school children present. I watched the videos as part of the litigation in terms of what they saw and how they were endangered. It was — the rate of the car, the speed was obviously very high going through traffic control devices and stop signs and such. That alone is a very serious and scary and dangerous behavior aggravated by the fact that Mr. Garcia, you were very, very drunk at the time.
....
There’s also this history, Mr. Garcia, with respect to the four prior DUIs. And that’s, in
21 my view, have been — and one way to look at a pattern a long time ago. Another way to look at is you’ve got four chances to address these behaviors. And I certainly know back when you got those DUIs that there was requirements for education, treatment, and such. And the fact that you had this level of intoxication and these behaviors so many years afterwards tells me it was a lifelong problem. . . .
So in terms — the purposes of sentencing is obviously, rehabilitation is a very important function. Mr. Garcia has had that opportunity with the prior DUIs. And we’ve got this terrible circumstance. The Court needs to consider a punishment for an individual and this kind of behavior warrants a substantial punishment.
The Court also needs to consider the community at large. And the community at large needs to understand two things.
One, that this sort of behavior is absolutely unacceptable. And, two, there’s consequences for that behavior if it happens. So there’s the necessity of deterrence and community safety as well.
¶ 46 The court imposed a sentence that included the possibility of
parole.
¶ 47 A person commits assault in the first degree if “[u]nder
circumstances manifesting extreme indifference to the value of
human life, he knowingly engages in conduct which creates a grave
22 risk of death to another person, and thereby causes serious bodily
injury to any person.” § 18-3-202(1)(c), C.R.S. 2024.
¶ 48 Garcia argues that his crime of first degree extreme
indifference assault wasn’t grave or serious because (1) Garcia
didn’t mean to hurt anyone; (2) the accident was the result of
Garcia’s untreated alcoholism; and (3) the extent of S.P.’s injuries
aren’t known, S.P. was a willing passenger despite knowing that
Garcia was drunk, and S.P. didn’t participate in the sentencing
hearing. We disagree for three reasons.
¶ 49 First, regardless of Garcia’s intention to hurt anyone, he
pleaded guilty to “knowingly engaging in conduct so dangerous”
that it created a “grave risk of death” to another person. Garcia
knew he was speeding through residential streets, and by doing so
he was risking the lives of others. He didn’t have to intend to hurt
or kill another person in order to create the grave risk that someone
may be killed. Because Garcia’s doesn’t dispute that his culpability
was sufficient under statute to be guilty of first degree extreme
indifference assault, we reject his argument.
¶ 50 Second, while the accident might have been the result of
Garcia’s alcoholism, as the court pointed out, Garcia’s alcoholism
23 certainly wasn’t untreated. Garcia has three previous DUI
convictions, one in 1993, one in 2001, and one in 2003. The court
noted that Garcia would have been required to complete some
education and treatment requirements. Those previous DUIs
should have served as learning and treatment opportunities for
Garcia to address his alcoholism. Because Garcia was given three
chances previously to obtain treatment for his alcoholism, his
argument that the crash was the result of untreated alcoholism
isn’t borne out by the record and we reject it.
¶ 51 Third, Garcia’s arguments relating to his injured passenger,
S.P., confuse the results of the crash with the nature of the
behavior that led to the crash. Whether S.P.’s injury was serious,
whether he was a willing passenger, and whether or not he wanted
to participate in the sentencing hearing are questions largely
secondary to whether Garcia’s behavior was grave and serious.
a. The Crime Was Grave and Serious
¶ 52 The court’s findings show that Garcia’s behavior was grave
and serious. The court noted that Garcia sped through residential
neighborhoods and school zones during school hours, disregarded
traffic control devices and stop signs, and nearly hit several people.
24 And all of this behavior was after the initial crash, which Garcia
fled. The People also note that Garcia was travelling so fast that
half of the van was lodged inside of the house he collided with, and
the occupant of the home had minor injuries. And while we don’t
know the severity of S.P.’s injury, we do know that it was a
substantial injury — a cervical spine fracture. And Garcia was
very, very drunk. Four hours after the accident his blood alcohol
content was .243 — over three times the legal limit.
¶ 53 All of these findings support the conclusion that Garcia’s
conduct was grave and serious because, consistent with section 18-
3-202(1)(c), they created the undeniable risk that someone could be
killed.
b. The Sentence Isn’t Disproportionate
¶ 54 Having determined that Garcia committed a grave and serious
crime,2 we must determine if the sentence was so harsh as to give
rise to an inference of disproportionality. We determine that it
doesn’t, for two reasons. First, the sentence was within the range of
2 Because Garcia’s crime of first degree extreme indifference assault
is grave and serious as committed, we need not address whether that charge is grave and serious per se.
25 sentences prescribed by the legislature, which are due great
deference in proportionality reviews. See People v. Kennedy, 2023
COA 83M, ¶ 15 (“[I]f a crime is grave or serious, and so long as the
penalty is within the statutory range, the sentence is nearly
impervious to attack” on an Eighth Amendment proportionality
review. (citing Wells-Yates, ¶ 62)) (cert. granted Aug. 5, 2024).
¶ 55 Second, the sentence is parole eligible — which means that
Garcia has the opportunity to be released before completing the full
thirty-two-year sentence. See Wells-Yates, ¶ 14. Additionally, the
trial court made it clear that the sentence was calculated to deter
future, similar behavior and thereby protect the community.
¶ 56 We discern no error in the trial court’s decision to sentence
Garcia to the maximum sentence allowed by statute for his
conviction for first degree extreme indifference assault.
III. Disposition
¶ 57 The judgment is affirmed.
JUDGE KUHN and JUDGE SCHUTZ concur.