People v. Garcia.

2023 COA 58. No. 21CA0834. Sixth Amendment Right to Public Trial—Waiver—Due Process—Charging Instruments—Constructive Amendment—Prosecutorial Misconduct—Surcharges and Fees.

June 29, 2023

Garcia was charged with second-degree burglary and forgery. His jury trial was one of the first in-person trials held in Denver after the second COVID-19 pandemic lockdown. In the courtroom and on the record, the trial court explained that social distancing space limitations resulted in limited public access and that the proceedings were being made available to the public by audio videoconferencing. The court also explained its policy to the parties during a pretrial hearing. Neither party objected to the court’s procedures. Garcia was convicted of burglary and forgery.

On appeal, Garcia contended that the trial court violated his right to a public trial because the video livestream did not show the lawyers or jury, and the record does not reflect whether jury selection was livestreamed. However, Garcia waived this argument because defense counsel was in the courtroom during the court’s discussions about its proposed COVID-19 protocols, leaving no reasoned doubt that counsel recognized the public trial right at stake, and counsel failed to object to the known courtroom closure.

Garcia also argued that the court violated his right to be tried in conformity with the charging instrument by allowing a constructive amendment to the forgery charge and that the error was structural. The People conceded that a jury instruction constructively amended the complaint. However, constructive amendments are not structural errors, so the court of appeals reviewed for plain error. Here, even if the error was obvious, it was not substantial and does not cast serious doubt on the reliability of the conviction because (1) it is unlikely that the jury convicted Garcia of forgery on any basis other than forging a check, and (2) overwhelming evidence supported Garcia’s forgery conviction.

Garcia also contended that the prosecutor committed reversible prosecutorial misconduct during rebuttal closing argument by alluding to a “screening process.” Here, the statements did not suggest that some additional unadmitted evidence supported Garcia’s guilt but rather attempted to explain why police did not investigate the individual whose fingerprint was found on the scene. Further, overwhelming evidence supported Garcia’s burglary conviction, and defense counsel’s failure to contemporaneously object to the statements indicates that the comments were not overly damaging in the context of live argument. Therefore, even assuming that the prosecutor’s challenged statements were improper screening arguments that revealed the prosecutor’s opinion of Garcia’s guilt, reversal is not required because the statements did not so undermine the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction.

Lastly, Garcia asserted, and the People conceded, that the sentencing court imposed statutorily mandated but waivable surcharges and fees outside Garcia’s presence, thus depriving him of the opportunity to request a waiver or reduction due to indigency.

The judgment of conviction was affirmed, and the case was remanded to allow Garcia to request a waiver of surcharges and fees.