The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY September 6, 2018
2018COA130
No. 2016CA1884, People v. Gwinn — Crimes — DUI — Prior Convictions
In this DUI case, a division of the court of appeals concludes,
as a matter of first impression, that a defendant is not entitled to
have a jury determine the existence of the prior DUI convictions
used to enhance his or her sentence from a misdemeanor to a
felony. The division further concludes that the prosecution’s
burden of proving prior convictions is by a preponderance of the
evidence.
The division also affirms the trial court’s orders granting a
motion to quash witness subpoenas, allowing impeachment
testimony, admitting a trial exhibit, and rejecting a tendered jury
instruction. COLORADO COURT OF APPEALS 2018COA130
Court of Appeals No. 16CA1884 Jefferson County District Court No. 16CR341 Honorable Tamara S. Russel, Judge Honorable Christopher C. Zenisek, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Michael Can Gwinn,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE FREYRE Terry and Navarro, JJ., concur
Announced September 6, 2018
Cynthia H. Coffman, Attorney General, Majid Yazdi, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Nancy C. Johnson, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Michael Can Gwinn, appeals his conviction for
driving while under the influence of alcohol (DUI) as a felony. He
contends that the trial court erred in (1) quashing eight subpoenas
for witnesses who would have testified about problems with the
Intoxilyzer 9000; (2) allowing the prosecution to impeach its own
witness using leading questions; (3) admitting the express consent
form; (4) refusing a jury instruction; and (5) denying his right to
have a jury determine the existence of his prior DUI convictions
beyond a reasonable doubt. We address and reject his first four
contentions, and, as a matter of first impression, we conclude that
he was not entitled to have a jury determine the existence of his
prior DUI convictions. Accordingly, we affirm his conviction.
I. Background
¶2 One night after work, Gwinn rear-ended another car while
driving home. Officer Trae Tripp responded to the accident and
spoke with Gwinn. He smelled the odor of an alcoholic beverage on
Gwinn’s breath, and observed that Gwinn had bloodshot eyes and
slurred speech. Gwinn admitted drinking four beers before the
accident occurred. Officer Tripp requested a DUI officer, and Officer
Jude Perez arrived to provide assistance.
1 ¶3 Officer Perez asked Gwinn if he would complete voluntary
roadside maneuvers, and Gwinn refused. Gwinn then told Officer
Perez that he drank three or four beers at a bar before the accident.
Officer Perez explained to Gwinn that if he refused to take a
chemical blood or breath test to determine his blood alcohol level,
then he would lose his license for one year. Gwinn refused all tests,
and Officer Perez arrested him.
¶4 After a jury convicted Gwinn of DUI and careless driving, the
trial court, in a separate proceeding, found that Gwinn had three
prior DUI convictions, adjudicated him a felony DUI offender, and
sentenced him to thirty months of probation, two years of work
release, and ninety days in the county jail.
II. No Error in Quashing Subpoenas
¶5 Gwinn first contends that the trial court’s refusal to allow the
testimony of eight current and former Colorado Department of
Public Health and Environment (CDPHE) employees deprived him of
his constitutional right to present a defense. We discern no error.
A. Standard of Review and Applicable Law
¶6 A trial court’s decision to exclude evidence, including witness
testimony, will not be disturbed on review absent an abuse of
2 discretion. People v. Rodriguez, 209 P.3d 1151, 1160-61 (Colo. App.
2008), aff’d, 238 P.3d 1283 (Colo. 2010). A court abuses its
discretion if its decision is manifestly arbitrary, unreasonable, or
unfair, or based on an erroneous understanding or application of
the law. Id. at 1161.
¶7 All relevant evidence is admissible unless otherwise provided
by constitution, statute, or rule. CRE 402; People v. Rath, 44 P.3d
1033, 1038 (Colo. 2002); People v. Cordova, 293 P.3d 114, 118
(Colo. App. 2011). Evidence is relevant where it has “any tendency
to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence.” CRE 401; Cordova, 293 P.3d at
118.
¶8 The exclusion of evidence may, in some circumstances,
implicate a defendant’s Sixth Amendment right to present a
defense; however, every restriction on a defendant’s evidence is not
constitutional error. Krutsinger v. People, 219 P.3d 1054, 1062
(Colo. 2009). Instead, “the right to present a defense is not
absolute; it requires only that the accused be permitted to introduce
all relevant and admissible evidence.” Rodriguez, 209 P.3d at 1160.
3 Thus, a defendant must prove that the evidence is both relevant
and admissible. See Taylor v. Illinois, 484 U.S. 400, 410 (1988)
(“The accused does not have an unfettered right to offer [evidence]
that is incompetent, privileged, or otherwise inadmissible under
standard rules of evidence.”).
¶9 The parties dispute whether this alleged error should be
reviewed for constitutional harmless error or harmless error. We
need not resolve this dispute because we conclude there was no
error.
B. Analysis
¶ 10 Knowing that the jury would be instructed that it could
consider his refusal to submit to a chemical test when it determined
guilt, see § 42-4-1301(6)(d), Gwinn sought to introduce the
testimony of eight current and former employees of the CDPHE to
show that the Intoxilyzer 9000 breath test machine did not satisfy
the requirements of section 42-4-1301.1(2)(a), C.R.S. 2017, and,
thus, did not produce an accurate result. Gwinn’s counsel argued
that the jury should be permitted to infer from this testimony that
Gwinn’s refusal was supported by the absence of a competent
4 intoxilyzer machine. The CDPHE moved to quash the witnesses’
subpoenas.
¶ 11 The trial court asked defense counsel whether Gwinn knew of
the intoxilyzer’s alleged deficiencies or whether any other witness
could establish that Gwinn knew of them. Counsel said she did not
believe that was required since the prosecution could argue the
negative inference based on no evidence. When pressed, counsel
stated that she did not have any witnesses to establish Gwinn’s
knowledge of the intoxilyzer’s purported deficiencies. The trial court
granted the motion to quash finding that the testimony was
irrelevant to Gwinn’s refusal because it failed to establish Gwinn’s
knowledge of the Intoxilyzer 9000’s alleged deficiencies at the time
he refused to submit to chemical testing.
¶ 12 We discern no abuse of discretion in the trial court’s ruling.
First, because Gwinn refused chemical testing and never actually
blew into the Intoxilyzer 9000, the machine’s operability and
accuracy were irrelevant. See Long v. Colo. Dep’t of Revenue, 2012
COA 130, ¶ 31 (when a breath test is refused, the operability of the
breathalyzer is not at issue). And while the DUI statute allows a
defendant to challenge the accuracy of a particular test, it only
5 applies when the defendant actually submits to the test and
questions its accuracy. § 42-4-1301(6)(c)(II), C.R.S. 2017; see also
Long, ¶ 31 (“Once plaintiff refused to take the breath test after the
deputy informed him that the breathalyzer was functioning
properly, the operability of the breathalyzer was not at issue.”).
¶ 13 Second, Gwinn failed to show that his reason for refusing to
take a chemical test was related to his knowledge of problems with
the Intoxilyzer 9000. Without this evidence, testimony about the
intoxilyzer’s deficiencies did not make the negative inference from
his refusal more or less probable. CRE 401. Indeed, such
testimony could only be probative if Gwinn knew of the intoxilyzer’s
alleged deficiencies and if this knowledge caused his refusal.
Absent evidence of this knowledge, the jury could only speculate
about the importance of the machine’s operability in relation to the
evidence presented. Cf. People v. Salazar, 2012 CO 20, ¶ 17 (noting
that evidence “which has only the most minimal probative value,
and which requires a jury to engage in undue speculation as to the
probative value of that evidence” can be excluded (quoting People v.
Welsh, 80 P.3d 296, 307 (Colo. 2003))).
6 ¶ 14 Gwinn also contends that the trial court’s ruling violated his
Fifth Amendment right to remain silent. We disagree. The trial
court stated:
[U]nless Mr. Gwinn takes the stand and testifies that he knew about the problems that you’ve just mentioned, . . . if he takes the stand and says [that he] knew about all of those problems with the Intoxilyzer, and, therefore, [he] refused to take the breath test, it might be relevant. However, otherwise it’s absolutely not relevant. . . .
I will not allow your client to testify about not taking the intoxilyzer unless he has a good faith basis to state on the record that he knew about all of these problems and that’s one of the reasons he didn’t take it. Or if you have some other witness who is going to testify that Mr. Gwinn knew about this.
Contrary to Gwinn’s assertion, the court simply explained to
counsel the various avenues through which Gwinn’s knowledge
could be established that would then make the evidence relevant for
admission: e.g., through Gwinn’s own testimony or from a friend or
family member who could establish that Gwinn knew of the
intoxilyzer’s alleged deficiencies. Thus, while Gwinn’s testimony
was one method of establishing knowledge and thereby relevance, it
was not his only option.
7 ¶ 15 Because the accuracy of the Intoxilyzer 9000 was not relevant,
the court did not deprive Gwinn of his right to present a defense.
See id. (explaining that the right to present a defense is limited to
relevant and admissible evidence).
III. Prosecutor’s Impeachment Was Proper
¶ 16 Gwinn next contends that the trial court erroneously
permitted the prosecutor to lead a friendly witness, Officer Perez,
“under the guise of impeachment” where no impeachment occurred.
We disagree.
A. Standard of Review and Preservation
¶ 17 A trial court’s ruling on evidentiary issues is reviewed for an
abuse of discretion and will be upheld unless it is manifestly
arbitrary, unreasonable, or unfair, or contrary to law. See Kinney v.
People, 187 P.3d 548, 558 (Colo. 2008).
¶ 18 The Attorney General contends that Gwinn did not preserve
his challenge based on improper leading questions and
impeachment and that our review should be for plain error. We
need not decide preservation because we conclude no error
occurred.
8 B. Additional Facts
¶ 19 While questioning Officer Perez, the prosecutor asked, “Did
you observe anything specific about Mr. Gwinn’s speech?” Officer
Perez responded, “Other than himself being polite and things like
that, it seemed overall normal.” The prosecutor then questioned
Officer Perez about a sobriety examination form that he completed
during the booking process. Gwinn’s counsel objected, saying there
was “no reason to review [the form] unless the officer says that he
cannot remember and then only for that purpose.” The prosecutor
said she was impeaching Officer Perez and the trial court overruled
the objection.
¶ 20 The following colloquy then occurred:
Q: Officer Perez, do you recall that the defendant had mumbled spe[ech] when you spoke to him?
A: Yes.
Q: You took a look at the sobriety examination record. Why do you fill that out?
A: For our recollection. There is a series of questions on here that are relevant to indicia of intoxication.
....
9 Q: Do you recall the defendant saying I am familiar with the law, I made my bed, I’ll sleep in it?
Q: Did you write that in quotations in your record?
A: I did.
Q: What do quotations in the report mean?
A: A specific statement by someone in my report.
C. Analysis
¶ 21 The conduct of the trial is within the trial court’s discretion.
See Maloney v. Brassfield, 251 P.3d 1097, 1101 (Colo. App. 2010).
CRE 607 provides that “[t]he credibility of a witness may be
attacked by any party, including the party calling him. Leading
questions may be used for the purpose of attacking such
credibility.” Moreover, leading questions are proper during direct
examination “as may be necessary to develop” witness testimony.
CRE 611(c); see also People v. Raehal, 971 P.2d 256, 258 (Colo.
App. 1998).
¶ 22 Because Officer Perez’s direct testimony that Gwinn’s speech
“sounded normal” was contradicted by his previous statement in
10 the sobriety examination report that Gwinn’s speech was
“mumbled,” we conclude that no error occurred when the trial court
allowed impeachment with leading questions about a prior
statement. See Babcock v. People, 13 Colo. 515, 520, 22 P. 817,
819 (1889) (“Where a party is really taken by surprise at the
conduct of his own witness, it is in the discretion, and is often the
duty, of the trial court to allow a party to put leading questions to
his own witness . . . .”); see also People v. Gillis, 883 P.2d 554, 561
(Colo. App. 1994) (“[A] trial court is vested with substantial
discretion in determining whether leading questions are
permissible.”). The two leading questions were direct references to
the sobriety examination record and were asked in response to an
inconsistent statement by Officer Perez — that Gwinn’s speech was
normal. Cf. People v. Stewart, 2017 COA 99, ¶ 11 (concluding the
trial court erred in allowing the prosecutor to lead a witness where
there was no lack of recollection, no writing introduced, and no
foundation for impeachment was laid). Therefore, no error occurred
in the questioning.
11 IV. Exhibit 1 Properly Admitted
¶ 23 Gwinn next contends that the trial court erroneously admitted
People’s Exhibit 1, an express consent affidavit and notice of
revocation form,1 under CRE 403, arguing that it misled the jury
and was “distracting.” We discern no error.
A. Standard of Review and Reversal
¶ 24 A trial court’s ruling on evidentiary issues is reviewed for an
abuse of discretion and will be upheld unless it is manifestly
arbitrary, unreasonable, or unfair, or contrary to law. See Kinney,
187 P.3d at 558.
¶ 25 Evidence is relevant if it has any tendency to make the
existence of a fact more or less probable. CRE 401. Relevant
evidence is admissible, CRE 402, but may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice or if its admission would mislead the jury. CRE 403;
1 Exhibit 1 is not part of the appellate record. Although Gwinn’s opening brief argues that the improper impeachment and Exhibit 1 issues are connected, the impeachment issue concerned the sobriety examination form, while Exhibit 1 is the express consent affidavit and notice of revocation form.
12 People v. Greenlee, 200 P.3d 363, 366 (Colo. 2009); People v.
Nuanez, 973 P.2d 1260, 1262-63 (Colo. 1999).
¶ 26 Because Gwinn argues for the first time on appeal that the
court erroneously admitted Exhibit 1 under CRE 403, we review
this contention for plain error. People v. Ujaama, 2012 COA 36,
¶ 37 (noting that issues are unpreserved when the grounds raised
on appeal are different from those raised below). Plain error is (1)
an error, (2) that is obvious, and (3) that causes serious doubt
about the reliability of the judgment of conviction. Hagos v. People,
2012 CO 63, ¶ 14.
B. Additional Facts
¶ 27 During direct examination, the prosecutor showed Officer
Perez Exhibit 1 and sought its admission in the following colloquy:
Q: And is that a copy of the form that you went over with Mr. Gwinn during booking?
Q: Is it a fair and accurate copy of that form?
Q: Is that a form that you keep within the normal course of business at the police department?
A: It is.
13 Q: Is it kept with the files or the records specific to a defendant or case number?
¶ 28 Gwinn made a foundation objection and argued that Officer
Perez was not a records custodian and that the document was not
certified. The trial court admitted Exhibit 1 over Gwinn’s objection.
¶ 29 We discern no abuse of discretion in the court’s admission of
Exhibit 1 under CRE 403. First, as noted by the Attorney General,
the trial court properly admitted Exhibit 1 under CRE 803(6)
(records of regularly conducted activity) — not, as asserted by
Gwinn, under CRE 803(5) (recorded recollection). And Gwinn does
not challenge the court’s basis for admitting the exhibit on appeal.
Rather, Gwinn now argues that Exhibit 1 “distract[ed] the jury from
the potential explanation that the Defendant may have refused a
[breathalyzer] test because, as explained[,] the officer did not claim
to have probable cause.” However, Officer Perez testified that he
reviewed the express consent affidavit with Gwinn, which made the
affidavit relevant to Gwinn’s knowledge of the consequences of his
refusal to take a chemical test. Because Gwinn does not further
14 explain how this “distracted” or “misled” the jury, we reject his
contention. See People v. Simpson, 93 P.3d 551, 555 (Colo. App.
2003) (“We decline to consider a bald legal proposition presented
without argument or development . . . .”). For the same reason, we
decline to address Gwinn’s conclusory assertion that Officer Perez
violated Colorado law by refusing to issue a required temporary
permit, which Gwinn contends constituted official misconduct
under section 18-8-404, C.R.S. 2017, and section 18-8-405, C.R.S.
2017. Accordingly, we discern no error, let alone plain error, in the
trial court’s decision to admit Exhibit 1.
V. The Court Properly Rejected the Tendered Jury Instruction
¶ 30 Gwinn contends that the trial court erroneously rejected a
tendered instruction informing the jury that law enforcement may
obtain a search warrant to compel a defendant to submit to a blood
test and instructing the jury that it was permitted to draw an
inference from an officer’s failure to employ this procedure that the
officer did not believe there was evidence to support a search
warrant. We disagree.
15 A. Standard of Review and Law
¶ 31 Trial courts have a duty to correctly instruct the jury on all
pertinent matters of law. People v. Garcia, 28 P.3d 340, 343 (Colo.
2001). We review de novo whether jury instructions accurately
reflect the law. Riley v. People, 266 P.3d 1089, 1092 (Colo. 2011).
Generally, instructions that accurately track the language of
applicable statutes and pattern instructions are sufficient. People
v. Gallegos, 260 P.3d 15, 26 (Colo. App. 2010). However, whether to
give a particular instruction lies within the trial court’s discretion,
and we will not disturb the court’s ruling absent a showing that the
court abused its discretion in rejecting a particular instruction.
Bedor v. Johnson, 2013 CO 4, ¶ 8. A court abuses its discretion if it
bases its ruling on an erroneous view of the law or a clearly
erroneous assessment of the evidence. Banning v. Prester, 2012
COA 215, ¶ 9.
¶ 32 During Officer Perez’s cross-examination, defense counsel
asked whether the officer could have obtained a search warrant to
“seize” Gwinn’s blood for testing. Officer Perez said he could have,
but explained that this was not usually done in DUI cases. Counsel
16 asked whether probable cause to believe a DUI had occurred would
be required to obtain a warrant, and Officer Perez confirmed that it
would. He also said he took no steps to obtain a search warrant
when Gwinn refused testing.
¶ 33 Gwinn tendered the following instruction and argued that it
accurately stated the law set forth in section 13-14-103(c), C.R.S.
2017, and Crim. P. 41(c)(3).
The Court instructs you that Colorado law requires that in each judicial district, a judge be available, 24 hours a day seven days a week, to pass upon electronic or telephonic search or arrest warrant applications. This procedure permits judges to receive electronically the sworn affidavits of law enforcement officers, to determine the existence of probable cause, and issue the appropriate warrants.
This procedure would be available to any law enforcement officer who believed they had probable cause to believe that an individual was operating a motor vehicle while impaired, or under the influence of of [sic] alcohol or drugs, and who could establish that evidence of that crime could be gathered by the issuance of a search warrant. Search warrants can authorize, without the consent of a defendant, the drawing of the defendant’s blood for testing.
You are permitted, but not required, to draw an inference from a police officer’s failure or
17 refusal to collect evidence, that the officer believed that such evidence would not support the actions he was otherwise taking.
¶ 34 Defense counsel admitted that this was not a stock Colorado
jury instruction and that she was unaware of any case law to
support it.2
¶ 35 The trial court denied the tendered instruction, finding that it
“risks the Court weighing into the evidence and commenting and
providing inferences to the jury.” It found that this was an
appropriate subject for argument by counsel.
¶ 36 Gwinn now asserts that the absence of this instruction
precluded him from arguing the inference stated in it. We are not
persuaded for several reasons. First, as the trial court found, the
tendered instruction unduly highlighted one piece of evidence: the
officer’s ability to discretionarily seek a search warrant for a blood
draw. The court, therefore, did not err in rejecting the instruction
2 In the trial court, the prosecutor characterized the tendered instruction as a “theory of the case” instruction; however, Gwinn never made this argument, and the trial court made no findings under that body of law. On appeal, Gwinn cites to People v. Jones, 675 P.2d 9 (Colo. 1984), as “instructive,” but, again, does not characterize the instruction as a theory of the case instruction or discuss the related case law. Therefore, neither do we.
18 on this basis alone. See Krueger v. Ary, 205 P.3d 1150, 1157 (Colo.
2009) (explaining that “we disfavor instructions emphasizing
specific evidence” because they “confuse the jury and result in
incorrect directives regarding evidentiary weight”); People v. Nerud,
2015 COA 27, ¶ 43 (jury instructions that emphasize specific
evidence are disfavored); cf. People v. Omwanda, 2014 COA 128,
¶ 42 (“The contested portion simply highlighted one piece of
evidence: that other people had access to defendant’s phone.”).
¶ 37 Second, the instruction contains argument — that the jury
could infer that Officer Perez did not have probable cause to believe
that Gwinn was driving while impaired. See People v. Merklin, 80
P.3d 921, 927 (Colo. App. 2003) (“[A] trial court may refuse an
instruction if it is argumentative, unduly emphasizes particular
evidence, or contains statements not supported by the evidence.”).
¶ 38 Finally, because Officer Perez testified that he could have
sought a search warrant for a blood draw and did not usually do so
in these types of cases, we necessarily reject Gwinn’s argument that
he was precluded from arguing the instruction’s inference in closing
argument. Moreover, he does not explain how he was precluded
from doing so. See People v. Trujillo, 2018 COA 12, ¶ 9 (“[T]he trial
19 court permitted defense counsel to argue the issues raised in the
instructions during closing argument.”). Accordingly, we find no
abuse of discretion and affirm the court’s ruling.
VI. Felony DUI Determination
¶ 39 Gwinn last contends that his prior DUI convictions trial,
conducted by the trial court (as authorized by section 42-4-
1301(1)(a) and (j)), violated his federal constitutional right to a jury
trial.3 We disagree and conclude that, similar to habitual criminal
findings, prior DUI convictions constitute sentence enhancers that
do not require a jury finding, rather than elements of the crime that
do.
A. Additional Facts
¶ 40 The prosecutor charged Gwinn with DUI as a class 4 felony,
alleging that he had three prior convictions for DUI, DUI per se, or
DWAI under section 42-4-1301(1)(a) and (j). Gwinn’s counsel
argued that because his prior DUI’s were misdemeanors, and
3 Gwinn asserted an equal protection challenge to the statute in the trial court, but he did not reassert that challenge on appeal. Accordingly, we deem it waived. See Moody v. People, 159 P.3d 611, 614 (Colo. 2007) (“Our starting point is the basic principle of appellate jurisprudence that arguments not advanced on appeal are generally deemed waived.”).
20 because identity was an issue, the prosecution was required to
prove them to a jury beyond a reasonable doubt.
¶ 41 The trial court rejected this argument and instead applied
People v. Schreiber, which held that prior convictions are sentence
enhancers, not elements. 226 P.3d 1221, 1223 (Colo. App. 2009).
The court admitted and considered copies of certified sentencing
orders for each prior conviction and a Department of Motor Vehicles
(DMV) record for each prior conviction that included a photograph
of Gwinn, his full name, his birthdate, and the conviction
recognized by the DMV. The court found that the prosecution met
its burden and convicted Gwinn of felony DUI.
B. Legal Discussion
¶ 42 We review de novo a trial court’s determination that a
statutory provision is a sentence enhancer rather than an element
of the offense. Lopez v. People, 113 P.3d 713, 720 (Colo. 2005).
¶ 43 State legislatures have plenary authority to define the
elements of a crime; therefore, we look to the plain language of the
statute to decide whether the prior convictions are elements or
sentence enhancers. Vega v. People, 893 P.2d 107, 112 (Colo.
1995); People v. Low, 732 P.2d 622, 627 (Colo. 1987). If the
21 legislative intent is clear from the plain language of the statute, our
analysis is complete. People v. Vigil, 2013 COA 102, ¶ 13.
¶ 44 A statutory provision is a sentence enhancer when the
defendant may be convicted of the underlying offense without any
proof of the prior conviction. People v. Whitley, 998 P.2d 31, 33
(Colo. App. 1999); see also Vega, 893 P.2d at 112; Armintrout v.
People, 864 P.2d 576, 580 (Colo. 1993); Schreiber, 226 P.3d at
1223. Linking the severity of punishment to the presence or
absence of an identified fact does not automatically make that fact
an element. Almendarez-Torres v. United States, 523 U.S. 224, 242
(1998).
¶ 45 Generally, any fact, other than the fact of a prior conviction,
that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury and proved beyond
a reasonable doubt. Blakely v. Washington, 542 U.S. 296, 303
(2004); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
“Although there is some doubt about the continued vitality of the
prior conviction exception,” Lopez, 113 P.3d at 723, the United
States Supreme Court and the Colorado Supreme Court have
repeatedly affirmed this exception, see United States v. Booker, 543
22 U.S. 220, 224 (2005); Blakely, 542 U.S. at 301; People v. Huber,
139 P.3d 628, 631 (Colo. 2006); Lopez, 113 P.3d at 723.
¶ 46 Moreover, Apprendi’s prior conviction exception extends to the
additional statutory factual findings for each conviction necessary
to support an enhanced sentence, including (1) that each prior
conviction was separately brought and tried; (2) that each prior
conviction arose out of separate and distinct criminal episodes; and
(3) that the accused was the person named in each prior conviction.
Lopez, 113 P.3d at 726; People v. Parks, 2015 COA 158, ¶¶ 28-29;
People v. Conyac, 2014 COA 8M, ¶ 167; People v. Poindexter, 2013
COA 93, ¶¶ 72-73 (rejecting contention that habitual sentence must
be vacated because it was based on facts found by a judge rather
than a jury); People v. LaPage, 397 P.3d 1074, 1082-83 (Colo. App.
2011) (“There is no right to a jury determination of habitual
criminal charges.”), aff’d on other grounds, 2014 CO 13; People v.
Moore, 226 P.3d 1076, 1089-90 (Colo. App. 2009) (rejecting the
defendant’s claim that his Sixth Amendment right to a jury trial was
violated because a judge, rather than a jury, determined the
habitual criminal counts); People v. Nunn, 148 P.3d 222, 226-28
(Colo. App. 2006) (habitual criminality may be constitutionally
23 adjudicated by a judge and not a jury); People v. Felder, 129 P.3d
1072, 1074 (Colo. App. 2005) (rejecting the defendant’s argument
that under Apprendi and Blakely his habitual criminality should
have been pleaded and proved to a jury); People v. Flowers, 128
P.3d 285, 289 (Colo. App. 2005) (noting that Apprendi does not
require a jury to determine whether a defendant’s prior convictions
were separately brought and tried); People v. Benzor, 100 P.3d 542,
545 (Colo. App. 2004); People v. Carrasco, 85 P.3d 580, 582 (Colo.
App. 2003).
¶ 47 Section 42-4-1301(1)(a) provides in relevant part as follows:
Driving under the influence is a misdemeanor, but it is a class 4 felony if the violation occurred after three or more prior convictions, arising out of separate and distinct criminal episodes, for DUI, DUI per se, or DWAI . . . or any combination thereof.
¶ 48 Section 42-4-1301(1)(j) provides in relevant part as follows:
For the purposes of this section, a person is deemed to have a prior conviction for DUI, DUI per se or DWAI; . . . if the person has been convicted under the laws of this state or under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States, of an act that, if committed within this state, would constitute any of these
24 offenses. The prosecution shall set forth such prior convictions in the indictment or information.
¶ 49 The plain language of the statute convinces us that the
General Assembly intended prior DUI convictions to constitute a
sentence enhancer rather than an element of DUI. Section 42-4-
1301(1)(a) makes it unlawful for a person to “drive[] a motor vehicle
or vehicle under the influence of alcohol or one or more drugs, or a
combination of both alcohol and one or more drugs.” These are the
only elements necessary to convict Gwinn of DUI. The fact of his
prior convictions served only to determine the severity of his
punishment. See Schreiber, 226 P.3d at 1223 (concluding that an
enhancement from a misdemeanor was not an element “because: (1)
a defendant may be convicted of the underlying offense without any
proof regarding the sentence enhancer; and (2) the sentence
enhancement provision only increases the potential punishment”).
¶ 50 To the extent that Gwinn claims the burden of proof should
have been beyond a reasonable doubt, rather than a preponderance
of the evidence, we are not persuaded. Unlike the habitual criminal
statute, section 18-1.3-803(4)(b), C.R.S. 2017, which clearly states
that the “prosecuting attorney has the burden of proving beyond a
25 reasonable doubt that the defendant has been previously convicted
as alleged,” the DUI statute contains no such requirement.
Similarly, unlike crime of violence counts, which must be submitted
to the jury (§ 18-1.3-406(4), C.R.S. 2017) and proven beyond a
reasonable doubt (People v. Russo, 713 P.2d 356, 364 (Colo. 1986)),
the DUI statute does not require that prior convictions be submitted
to a jury. We may not add language to a statute that does not exist.
See People v. Diaz, 2015 CO 28, ¶ 12 (“We do not add words to the
statute or subtract words from it.” (quoting Turbyne v. People, 151
P.3d 563, 567 (Colo. 2007))).
¶ 51 Moreover, when a sentencing statute does not establish a
burden of proof, a court may properly apply the preponderance of
the evidence standard. See People v. Wilson, 2013 COA 75, ¶ 58
(finding prior drug felony used to enhance sentence properly proved
by a preponderance of the evidence); Schreiber, 226 P.3d at 1224
(where a statute does not establish a burden of proof,
preponderance of the evidence determined by a judge is proper); see
also People v. Lacey, 723 P.2d 111, 124 (Colo. 1986) (prosecution
required to prove the defendant was on probation by a
preponderance of the evidence standard at revocation hearing).
26 ¶ 52 We acknowledge that the consequences of transforming a
misdemeanor offense into a felony offense involve more than simply
increasing the punishment and that critical constitutional and
statutory protections attend felony charges. See Vigil, ¶ 27 (citing
Schreiber, 226 P.3d at 1225 (Bernard, J. dissenting)). Indeed,
article II, section 23 of the Colorado Constitution provides “a right
to a jury of twelve in criminal cases in courts of record that cannot
be circumscribed by the General Assembly or any rule of
procedure.” Id. at ¶ 28 (quoting People v. Rodriguez, 112 P.3d 693,
699 (Colo. 2005)). And our supreme court has interpreted this
provision to require a jury of twelve in felony cases, as opposed to
the jury of six a defendant receives in a misdemeanor case. See
§ 18-1-406(1), C.R.S. 2017; Crim. P. 23(a)(1)(2); see also Rodriguez,
112 P.3d at 703 (right to twelve jurors does not extend to
misdemeanor cases).
¶ 53 But this case is not like Vigil, where the defendant received no
constitutional or procedural protections but instead, was charged,
tried, and convicted of a misdemeanor in county court and then
sentenced for a felony in county court based on his prior
misdemeanor convictions. Rather, section 42-4-1301 requires the
27 prosecution to bring a felony DUI charge in an “indictment or
information,” and to identify the prior DUI convictions that make it
a felony. See § 42-4-1301(1)(j), C.R.S. 2017; see also § 16-5-101,
C.R.S. 2017 (describing how felony charges are brought by
indictment, information in district court and felony complaint).
Consequently, the DUI prosecution occurs in the district court
where felony protections exist. And the record here demonstrates
that (1) the prosecution charged Gwinn by felony complaint and
information; (2) the case proceeded in the district court; and (3) a
jury of twelve persons convicted him of DUI.
¶ 54 Finally, we note that courts in other jurisdictions with felony
DUI statutes have consistently applied the holdings of Apprendi and
Almendarez-Torres to find that prior convictions need not be
submitted to a jury or be proved beyond a reasonable doubt. See
State v. Palmer, 189 P.3d 69, 75-76 (Utah Ct. App. 2008) (collecting
cases).
¶ 55 To the extent Gwinn claims the prosecution failed to plead the
prior convictions in the charging document, we reject that
contention because the only charging document in the appellate
record charges DUI as a class 4 felony. We note that the document
28 in the record is obscured and less than clear. However, the burden
rests with the appellant to provide a complete appellate record, and
we must presume the correctness of documents discussed by the
court but not before us. See People v. Ullery, 984 P.2d 586, 591
(Colo. 1999) (explaining that an appealing party must provide a
complete record, without which we presume the correctness of the
trial court’s proceedings); People in the Interest of A.W., 2015 COA
144M, ¶ 18 (same).
¶ 56 Because we agree with the reasoning of the cases cited above,
and because we are bound by our supreme court’s recognition of
the prior conviction exception, we perceive no error in the trial
court’s adjudication of Gwinn as a felony DUI offender and affirm
his conviction.
VII. Conclusion
¶ 57 The judgment is affirmed.
JUDGE TERRY and JUDGE NAVARRO concur.