People v. Chavez

2012 COA 61, 318 P.3d 22, 2012 WL 1231834, 2012 Colo. App. LEXIS 556
CourtColorado Court of Appeals
DecidedApril 12, 2012
DocketNo. 10CA1382
StatusPublished
Cited by13 cases

This text of 2012 COA 61 (People v. Chavez) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Chavez, 2012 COA 61, 318 P.3d 22, 2012 WL 1231834, 2012 Colo. App. LEXIS 556 (Colo. Ct. App. 2012).

Opinion

Opinion by

Judge TAUBMAN.

¶1 Defendant, Daniel M. Chavez, appeals the trial court's judgment of conviction entered upon jury verdicts finding him guilty of second degree assault and felony menacing. We affirm.

I. Background

T2 In November 2006, Daniel Chavez and his brother Mario were driving through a parking lot when they encountered J.R.V. and D.D., good friends who had known each other since elementary school. The Chavez brothers, J.R.V., and D.D. grew up in the same neighborhood and had a confrontational relationship.

3 When they saw each other that night, they parked their trucks side by side and exchanged words. Then J.R.V. got out of his truck to fight and approached Mario, who was driving. Chavez got out of the passenger side and walked around the back, carrying a gun. Chavez pointed the gun at J.R.V. and told him to "back off." J.R.V. got back into his truck,. As J.RV. and D.D. drove away, they heard gunshots. 'The last person they saw with the gun was Chaves. After driving for a short time, J.R.V. realized that he had been shot in the leg.

T4 At trial, Chaver's defense theory was that Mario had grabbed the gun from him and shot at J.R.V. and D.D. as they drove away. Chavez argued that he only took out the gun to scare J.R.V. and D.D. to stop them from hurting his brother. Although J.R.V. and D.D. testified that they did not see who pulled the trigger, they identified Chavez as the shooter.

T 5 The trial court initially precluded Chavez from introducing evidence about the vie-tims' gang affiliation. After a prosecution witness testified that the police gang unit took over investigation of the crime because it believed the incident might be gang-related, the court allowed Chavez to pursue whether the crime itself was gang-related. The court agreed that if Chavez could establish that the crime was gang-related, he could ask further questions regarding whether the victims were affiliated with a gang. However, Chavez never recalled the victims to testify further. The limitation on this evidence is a basis for this appeal.

16 The jury acquitted Chavez of first degree attempted murder and convicted him of assault in the second degree against J.R.V. and one count of menacing against D.D.

T7 At sentencing, Chavez had an interpreter. The court noted that there was no interpreter at trial, nor had a request for an interpreter been made, and assumed that an interpreter was not necessary at trial. Defense counsel explained that he did not request an interpreter earlier because Chavez did not testify, he could explain everything to Chavez at other times, and he did not want to burden the court with the cost of an interpreter. Defense counsel stated that Chavez wanted an interpreter at sentencing because he would feel more comfortable. The absence of an interpreter at trial for Chavez is also a basis for this appeal. We begin with this issue because if Chavez is correct, we need not address the possible evidentiary error.

II. No Interpreter at Trial

18 Chavez contends that his rights to be present, to confront the witnesses against him, to testify, and to receive the effective assistance of counsel were violated because he did not have an interpreter at trial. We disagree.

A. Standard of Review

T9 Chavez contends that we must review this contention for structural error. We disagree.

110 Structural error is a defect that infects the entire trial process and renders a trial fundamentally unfair, People v. Boykins, 140 P.3d 87, 94 (Colo.App.2005). This type of error is found in a limited class of [26]*26cases; none of these cireumstances is present in this case. See Johnson v. Unmited States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).

1111 Failure to provide an interpreter may be structural error when either a request for an interpreter is denied or the trial court is on notice that the defendant needs an interpreter but fails to inquire. Luu v. People, 841 P.2d 271, 275 (Colo.1992) (Quinn, J., specially concurring). However, because Chavez did not request an interpreter and the trial court was not on notice that he needed one, plain error analysis is appropriate.

112 Nonstructural constitutional errors that were not preserved at trial are subject to plain error analysis. People v. Miller, 118 P.B8d 7483, 749-50 (Colo.2005). Under plain error review, reversal is warranted only when an error is obvious and substantial, and so undermines the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. Id.; People v. Sepulve-da, 65 P.3d 1002, 1006 (Colo.2003).

113 Chavez and his attorney did not request an interpreter during trial or object that one was not provided. This issue was not preserved; therefore, plain error analysis applies.

B. Analysis

{14 When a defendant does not speak or understand English, using an interpreter is "crucial to safeguarding the fundamental fairness of the trial." People v. Avila, 797 P.2d 804, 806 (Colo.App.1990). Without an interpreter, such a defendant would effectively be denied various constitutional rights, including the right to confront witnesses and the right to effective assistance of counsel. United States v. Cirrin-cione, 780 F.2d 620, 633 (7th Cir.1985). "The right to an interpreter rests most fundamentally, however, on the notion that no defendant should face the Kafkaesque spec-tre of an incomprehensible ritual which may terminate in punishment." - Unmited States v. Carrion, 488 F.2d 12, 14 (Ist Cir.1978).

{15 However, a judge is not required to advise every defendant that he or she can request an interpreter. Id. at 14-15 (holding that the trial court has wide discretion to decide whether an interpreter is necessary); see also People v. Ochou-Magana, 36 P.83d 141, 144 (Colo.App.2001) (trial court had no duty to advise defendant that he could use interpreter services to communicate with his attorney, absent "other particularized showing of need for a personal interpreter"). Only if it is apparent that the defendant has a significant language difficulty must the court act.

{16 At the time of Chavez's trial, the court was required to provide and pay for language interpretation services when a defendant, one of the parties, a victim, a witness, or the parent or legal guardian of a minor charged as a juvenile was a non-English speaker. Chief Justice Directive (CJD) 06-08 (version in effect before June 2011). At that time, CJD 06-08 used the terms "non-English speaker" and "limited English proficient" (LEP) interchangeably and did not define either term. Now, however, the amended Chief Justice Directive, defines LEP as "n-dividuals who do not speak English as their primary language and who have a limited ability to read, speak, write, or understand English." Id. § I(J) (version effective June 2011).

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Bluebook (online)
2012 COA 61, 318 P.3d 22, 2012 WL 1231834, 2012 Colo. App. LEXIS 556, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-chavez-coloctapp-2012.