People v. Garcia-Gonzalez

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
November 25, 2020

2020COA166

No. 20CA0980, People v. Garcia-Gonzalez — Crimes — Offenses
Related to Marijuana and Marijuana Concentrate

In this prosecution appeal, a division of the court of appeals

concludes that “land” — as used in section 18-18-406(3)(a)(I),

C.R.S. 2020 — excludes an enclosed, locked space on residential

property. The division also holds that a prosecution under section

18-18-406(3)(a)(II) does not preclude prosecution under other

applicable statutes. The division affirms the district court’s order

dismissing the section 18-18-406(3)(a)(I) charge against Oel

Garcia-Gonzalez and remands for trial of the remaining charges,

including the added charge under section 18-18-406(3)(a)(II).
COLORADO COURT OF APPEALS 2020COA166

Court of Appeals No. 20CA0980
Pueblo County District Court No. 19CR2376
Honorable Larry C. Schwartz, Judge

The People of the State of Colorado,

Plaintiff-Appellant,

v.

Oel Garcia-Gonzalez,

Defendant-Appellee.

ORDER AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division II
Opinion by JUDGE FOX
Román and Gomez, JJ., concur

Announced November 25, 2020

J. E. Chostner, District Attorney, Emily A. Vandenburg, Deputy District
Attorney, Pueblo, Colorado, for Plaintiff-Appellant

Cabral Law P.C., Miles Cabral, Denver, Colorado, for Defendant-Appellee
¶1 This People’s appeal asks us to decide whether “land” — as

used in section 18-18-406(3)(a)(I), C.R.S. 2020, and in the context

of a marijuana grow operation — excludes an enclosed, locked

space on residential property. We conclude that it does. We also

hold that a prosecution under section 18-18-406(3)(a)(II) does not

preclude prosecution under other applicable statutes. Accordingly,

we affirm the district court’s order dismissing the charge under

section 18-18-406(3)(a)(I) against Oel Garcia-Gonzalez, albeit on

different grounds, and remand for the prosecution to proceed as we

explain.1

¶2 The district court dismissed a charge brought under section

18-18-406(3)(a)(I), while allowing a charge under section 18-18-

406(3)(a)(II) to proceed. The People appeal under section 16-12-

102(1), C.R.S. 2020,2 and argue that (1) the court construed section

18-18-406(3)(a)(I) too narrowly by interpreting “land” to mean “open

1 We also decide the prosecution’s appeal in People v. Sanchez-Diaz,
an unpublished companion case.
2 Section 16-12-102(1), C.R.S. 2020, states: “The prosecution may

appeal any decision of a court in a criminal case upon any question
of law. Any order of a court that . . . dismisses one or more counts
of a charging document prior to trial . . . shall constitute a final
order that shall be immediately appealable pursuant to this
subsection (1).”
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space”; (2) section 18-18-406(3)(a)(V) evinces the legislature’s intent

to provide multiple avenues for prosecution of illicit residential

marijuana grow operations; and (3) the legislative declaration

accompanying HB 17-1220 expresses the lawmakers’ desire to

mitigate illegal marijuana cultivation on residential property,

further supporting the effort to prosecute under section 18-18-

406(3)(a)(I).

I. Background

¶3 The Pueblo Police Department arrested Garcia-Gonzalez and

Addiel Sanchez-Diaz in 2019 during the execution of a search

warrant at a suspected residential marijuana grow operation.

Officers found thirty-two mature marijuana plants growing in the

home’s detached garage. The prosecution claims that Garcia-

Gonzalez informed law enforcement that he and Sanchez-Diaz were

growing the marijuana for personal medical use and to sell to

dispensaries. Garcia-Gonzalez claims he holds a registered medical

marijuana permit and a prescription to grow up to sixty plants.

¶4 Garcia-Gonzalez was charged with (1) possession with intent

to manufacture or distribute marijuana or marijuana concentrate,

in violation of section 18-18-406(2)(b)(I), (III)(A), a class 1 drug

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felony; (2) cultivation of marijuana, in violation of section 18-18-

406(3)(a)(I), (III)(A), a class 3 drug felony; and (3) being a special

offender, in violation of section 18-18-407(1)(a), C.R.S. 2020.

Garcia-Gonzalez filed a motion to dismiss.

¶5 The district court dismissed the section 18-18-406(3)(a)(I)

class 3 drug felony charge. The court also ordered that a petty

marijuana-cultivation charge, under section 18-18-406(3)(a)(II) and

(IV), be added. The People appeal.

II. Cultivation on “Land” Under Section 18-18-406(3)(a)(I)

¶6 The People — arguing that the legislature used “land” in

section 18-18-406(3)(a)(I) to broadly include residential property,

buildings, and structures — challenge the district court’s more

narrow interpretation of the term to mean only “open land.” We

agree in part but conclude that the district court’s dismissal was

nevertheless warranted.

A. Preservation and Standard of Review

¶7 The People’s response to Garcia-Gonzalez’s motion to dismiss

preserved this issue.

¶8 We review the interpretation of statutes de novo. See Finney v.

People, 2014 COA 38, ¶ 12. “Our goal is to give effect to the intent

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of the legislature.” Montez v. People, 2012 CO 6, ¶ 7. “We accord

words and phrases their plain and ordinary meaning.” Id. We

interpret the statute within the context of its broader scheme to give

consistent, harmonious, and sensible effects to all its parts. Martin

v. People, 27 P.3d 846, 851 (Colo. 2001). “We . . . reject

interpretations that render words or phrases superfluous, and

harmonize potentially conflicting provisions, if possible.” People v.

Cross, 127 P.3d 71, 73 (Colo. 2006). Context and accompanying

legislative policy statements can help us determine a statute’s

intended meaning. Id.

B. Law and Analysis

¶9 Colorado approved constitutional protections for the

cultivation and use of medical marijuana in 2000 and recreational

marijuana in 2012. Adults twenty-one years or older may cultivate

up to six plants (only three of them mature), but a patient or

caregiver may grow more based on medical necessity. See Colo.

Const. art. 18, § 14(4)(b); see also § 25-1.5-106(2.5)(g)(I)(B) and

(8.6), C.R.S. 2020 (limiting patient and caregiver grows). In 2017,

the General Assembly enacted HB 17-1220, now codified at section

18-18-406, to address penalties for large-scale cultivation of

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marijuana plants in residential areas based on concern for public

safety, nuisance, and the negative impacts on neighborhood

property values.

¶ 10 Consistent with Colorado’s Constitution, a person may grow

marijuana, provided “the growing takes place in an enclosed, locked

space, is not conducted openly or publicly, and is not made

available for sale.” Colo. Const. art. 18, § 16(3)(b). An “enclosed”

space is “a permanent or semi-permanent area covered and

surrounded on all sides.” § 18-18-102(14.5), C.R.S. 2020. A

“[l]ocked” space is one that is “secured at all points of ingress or

egress with a locking mechanism designed to limit access such as

with a key or combination lock.” § 18-18-102(16.5).

¶ 11 Section 18-18-406(3)(a)(I), implementing the constitutional

right, states that “[i]t is unlawful for a person to knowingly

cultivate, grow, or produce a marijuana plant . . . on land that the

person owns, occupies, or controls.” § 18-18-406(3)(a)(I). Violation

of this statute is a level 3 drug felony if the offense involves more

than thirty plants. § 18-18-406(3)(a)(III)(A).

¶ 12 While the statute does not define “land,” the term must be

interpreted in harmony with the constitutional provision it

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implements. See Zaner v. City of Brighton, 917 P.2d 280, 286 (Colo.

1996) (recognizing that legislation that furthers the purpose of

self-executing constitutional provisions or facilitates their

enforcement is permissible); Bd. of Cnty. Comm’rs v. Vail Assocs., 19

P.3d 1263, 1272 (Colo. 2001) (we afford the language of

constitutions its ordinary and common meaning).

¶ 13 Here, the district court construed the term “land” to mean

“open land,” such as farmland or unsheltered fields. Objecting to

the district court’s interpretation, the People argue that the

legislature intended the statute to cover not only grows on open

land but also grows housed in buildings, structures, or other types

of residential property. Since “land” is not defined in section 18-18-

406, or within article 18 of the criminal code, the People urge us to

look to broader definitions of land found in civil statutes. See, e.g.,

§ 36-1-100.3(2), C.R.S. 2020; § 38-30-150(2), C.R.S. 2020.

¶ 14 Without resorting to other statutes and other interpretative

tools, we first seek guidance from the immediate statutory scheme

governing marijuana cultivation. Martin, 27 P.3d at 851. In

contrast to section 18-18-406(3)(a)(I) — which makes it unlawful to

grow or cultivate any amount of marijuana plants on “land” —

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section 18-18-406(3)(a)(II)(A) makes it unlawful to grow or cultivate

more than twelve marijuana plants on “residential property.”

“Residential property,” in turn, means “a single unit providing

complete living facilities for one or more persons, including

permanent provisions for living, sleeping, eating, cooking, and

sanitation . . . [and] includes the real property surrounding a

structure.” § 18-18-406(3)(c)(III).

¶ 15 Interpreting the statute within its context and giving

consistent, harmonious, and sensible effects to all its parts, see

Martin, 27 P.3d at 851, we conclude that the property surrounding

a residence can be “land” as that term is used in section 18-18-

406(3)(a)(I). While a residence, including a garage, may be on that

land, the residence or the garage could be an “enclosed, locked

space,” Colo. Const. art. 18, § 16(3)(b), where, within applicable

limits, marijuana can be grown. It makes sense, then, that “land”

as used here does not contemplate an “enclosed, locked space,” id.,

where it is legal, within operative constraints, to grow marijuana.

To say that the residence or the garage is the “land” would

eviscerate this constitutional protection. See Vail Assocs., 19 P.3d

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at 1272 (recognizing that we must afford the language of

constitutions and statutes their ordinary and common meaning).

¶ 16 Concluding that section 18-18-406(3)(a)(II) alone applies, the

district court dismissed the section 18-18-406(3)(a)(I) charge. Given

the proffers made to the district court, we conclude that the

dismissal was proper, but not for the reasons the district court

employed. See Moody v. People, 159 P.3d 611, 615 (Colo. 2007)

(recognizing that “appellate courts have the discretion to affirm . . .

on any basis for which there is a record sufficient to permit

conclusions of law, even though they may be on grounds other than

those relied upon by the trial court”).

¶ 17 But this interpretation does not tell us whether a prosecution

under section 18-18-406(3)(a)(II) precludes prosecution under other

statutes.

III. Limits on Prosecution

¶ 18 According to the prosecution, Garcia-Gonzalez was growing

thirty-two marijuana plants inside a garage associated with a home

in Pueblo. Given the information provided to the district court, the

court correctly concluded that section 18-18-406(3)(a)(II), rather

than section 18-18-406(3)(a)(I), applies. Presumably a garage would

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qualify as an enclosed space. But cf. People v. King, 804 N.W.2d

911, 913-17 (Mich. Ct. App. 2011) (a locked chain-link dog kennel

that was not attached to the ground and was not covered on top

was not an “enclosed, locked facility” pursuant to Michigan’s

Medical Marijuana Act), rev’d sub nom. on other grounds, People v.

Kolanek, 817 N.W.2d 528 (Mich. 2012). On remand, the parties can

litigate whether the garage in question was locked, what defenses

apply, and what penalties are appropriate.

¶ 19 Nothing in the text of section 18-18-406(3)(a)(II) immunizes a

residential grow operation from potentially violating other sections

of the code. In fact, section 18-18-406(3)(a)(V) provides that

prosecution under section 18-18-406(3)(a)(II) “does not prohibit

prosecution under any other section of the law.” Where the facts so

warrant, therefore, the prosecution can proceed under both

subsections.

IV. Conclusion

¶ 20 The district court’s order is affirmed for the reasons stated in

this opinion. The case is remanded to the district court to allow the

prosecution to proceed on the other charges, including the added

charge pursuant to section 18-18-406(3)(a)(II).

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JUDGE ROMÁN and JUDGE GOMEZ concur.

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