People v. Serna-Lopez.
2023 COA 21. No. 20CA0227. Double Jeopardy—Multiplicity—Aggravated Robbery—Menacing—Possession of a Controlled Substance—Sentencing—Penalty Enhancers—Modified Unanimity Instruction—Cumulative Errors.
March 9, 2023
Serna-Lopez participated in robbing the victim using what appeared to be a handgun. Serna-Lopez was later arrested at a traffic stop, during which 0.6 grams of methamphetamine and a BB pistol were found on the floorboard at his feet. He was convicted of two counts of aggravated robbery (counts 1 and 6), one count of menacing, and one count of possession of a controlled substance. The jury also convicted him on two sentence enhancer counts. The trial court imposed concurrent prison sentences of 12 years on the two counts of aggravated robbery and a consecutive sentence of three years for menacing. On the controlled substance charge, the court applied the special offender enhancer counts to increase the offense from a level 4 drug felony to a level 1 drug felony, and it sentenced him to 12 years in the custody of the Colorado Department of Corrections, to run consecutively to the other two sentences.
On appeal, Serna-Lopez argued that the trial court violated double jeopardy by not merging the two counts of aggravated robbery. If a defendant is charged and convicted under a single statute defining alternative means of committing the same offense, the two convictions must be merged. The elemental subsections of the aggravated robbery statute set forth alternative means of committing the same offense. Here, Serna-Lopez was charged with separate crimes based on these alternative means by which he committed aggravated robbery against the same victim; the jury returned two separate convictions for aggravated robbery, one based on each count; and the district court entered separate felony convictions for the separate counts. Because the two counts of aggravated robbery established a single offense, they must be merged, and the failure to merge the two offenses is not harmless beyond a reasonable doubt.
Serna-Lopez also argued that the trial court reversibly erred in not ensuring a unanimous verdict on the two special offender sentence enhancer counts because it did not require the prosecution to elect the provision it relied on or, alternatively, give a modified unanimity instruction. If the prosecution presents evidence of multiple distinct acts where any of those acts could constitute the offense charged, and the jury could reasonably disagree regarding which act was committed, the district court must either (1) require the prosecution to elect the act it is relying on to establish the count or (2) provide a modified unanimity jury instruction. Here, Serna-Lopez was charged with and convicted of possession of a controlled substance, and in conjunction with that charge, the prosecution also charged him with two special offender sentence enhancers. The trial court combined the two special offender sentence enhancers into a single instruction, did not require the prosecution to elect the special offender sentence enhancer it was relying upon, and did not give a modified unanimity instruction. Because a reasonable juror could have rejected either special offender sentence enhancer alternative, the failure to give the modified unanimity instruction casts serious doubt on the special offender sentence enhancer conviction. Therefore, the court committed obvious error.
Serna-Lopez further contended that there was insufficient evidence for a reasonable juror to conclude that a BB gun is a deadly weapon. Here, while the BB gun was not fired during the robbery, it was specifically used to instill fear, and expert testimony was not needed to establish that the BB gun was capable of producing death or serious bodily injury. Sufficient evidence was presented to permit, but not require, a reasonable juror to conclude beyond a reasonable doubt that the BB gun was capable of causing serious bodily injury and therefore met the definition of a deadly weapon.
Serna-Lopez also asserted that cumulative errors violated his right to a fair trial. Here, no cumulative error exists because while two errors were committed, the court of appeals addressed and cured the merger issue, which is independent of the special offender sentence enhancer counts; and it reversed the drug possession enhanced sentence, so any additional errors associated with those counts are moot.
Serna-Lopez’s conviction on count 6 was vacated and the trial court was directed to issue a new mittimus indicating count 6 was merged into count 1. Serna-Lopez’s judgment and sentence on the special offender sentence enhancer counts was reversed. The case was remanded to the trial court to allow the prosecution to elect between resentencing on the controlled substance count as a level 4 drug felony or proceeding with a new trial on the two special offender sentence enhancer counts. The remaining convictions and sentences were affirmed.