Peo v. Astacio

23CA1076 Peo v Astacio 01-30-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1076
El Paso County District Court No. 22CR3066
Honorable Laura N. Findorff, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Joenny Manuel Astacio,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division II
Opinion by JUDGE GOMEZ
Fox and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 30, 2025

Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Joseph T. Goodner, Alternate Defense Counsel, Englewood, Colorado, for
Defendant-Appellant
¶1 Defendant, Joenny Manuel Astacio, appeals the judgment of

conviction entered on jury verdicts finding him guilty of reckless

child abuse resulting in death and two counts of drug possession

(fentanyl and cocaine). He contends that the trial court reversibly

erred by (1) allowing his counsel to concede his guilt on a lesser

child abuse charge and on the drug possession charges, despite his

wish to maintain his innocence; and (2) denying his motion to sever

his charges from those of his codefendant. As to the child abuse

conviction, we agree with Astacio’s first contention and, therefore,

reverse and remand for a new trial without considering the second

contention. As to the two drug possession convictions, we disagree

with both of Astacio’s contentions and, therefore, affirm.

I. Background

¶2 One morning, Astacio discovered his fifteen-month-old son

“lifeless” in bed next to the codefendant, who was Astacio’s partner

and the child’s mother. Astacio said he’d been downstairs with a

friend all night talking, playing video games, and doing fentanyl.

His codefendant had been in an upstairs bedroom with their son all

night, but Astacio said he’d gone up to check on them every twenty

minutes or so. Both defendants would ultimately test positive for

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fentanyl and other substances, and drugs and drug paraphernalia

would be found in the house, including in the bedroom where the

child was that night.

¶3 Astacio’s codefendant called 911 and the child was taken to

the hospital, where he was eventually pronounced dead. It was

later determined that the child died of a fentanyl overdose, though

it wasn’t clear how he’d accessed fentanyl. According to Astacio,

the couple had an agreement that neither of them would use

fentanyl in the same room as their child.

¶4 Astacio and his codefendant were both charged with reckless

child abuse resulting in death, as well as multiple counts of drug

possession.1 The trial court joined their cases for trial over the

defendants’ objection and denied the defendants’ motion to sever.

After the initial trial resulted in a mistrial, a second trial resulted in

identical convictions for Astacio and his codefendant.

1 In addition to the two drug possession charges for which Astacio

was convicted, he was also charged with — but was acquitted of —
unlawful possession of heroin.

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II. Right to Autonomy

¶5 Astacio contends that the trial court violated his Sixth

Amendment right to autonomy by allowing his counsel, over his

objection, to concede his guilt to the lesser included charge of

negligent child abuse resulting in death and to the drug possession

charges. We agree as to the child abuse charge but not as to the

drug possession charges.

A. Additional Facts

¶6 Before the start of the retrial, defense counsel alerted the trial

court to a potential conflict with Astacio. At a hearing held under

People v. Bergerud, 223 P.3d 686 (Colo. 2010), counsel stated,

[T]here is a conflict between the defense
counsel and Mr. Astacio on how to present his
defense. The jury instructions that we have
gotten from the District Attorneys have the
lesser included charge of child abuse resulting
in death - criminal negligence. As Your Honor
was aware, the last time we were in the trial
that was more or less the theme that the jury
should abide by the lesser included charge of
that. Mr. Astacio is objecting to us conceding
that in any type of opening or implying that in
any type of opening, and wishes to run a
complete “he did nothing wrong” defense.

I think it would be ineffective — in my opinion,
it would be ineffective of me, based upon the
facts, to do that. I’ve informed him that he has

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certain decisions that he can make as far as
testifying, not testifying, but that opening
statements, closing statements are the
determination of myself and [co-counsel]. And
Mr. Astacio is objecting to that and bringing
that to the Court’s attention.

(Emphasis added.)

¶7 When asked if there was anything he wanted to add or if his

counsel had encapsulated his objection, Astacio said, “My thing is

this: He’s telling me that I had knowledge of what was going on. I’m

telling him, no, I did not have knowledge. And that’s what I’m

standing at with it, and he’s trying to tell me — yes.”

¶8 The trial court found that there wasn’t a conflict between

Astacio and his counsel. The court also concluded that defense

counsel’s decision to concede guilt on the lesser offense was part of

the trial strategy that was within counsel’s purview.

¶9 During the trial, defense counsel conceded that Astacio bore

some responsibility for what had happened to his son. Instead of

maintaining Astacio’s complete innocence, as Astacio wanted,

counsel defended the child abuse charge on the basis that Astacio

acted with mere negligence (which would’ve made him guilty of the

lesser offense of negligent child abuse resulting in death) and not

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with recklessness (which would’ve made him guilty of the charged

offense of reckless child abuse resulting in death).

¶ 10 For instance, in opening statements, defense counsel stated,

[R]ecklessly means they have to show that [the
defendants] saw it, they knew it, and they were
aware of it and they said, I just don’t give a
rat’s ass. Negligence means because of their
addiction, they failed to realize how dangerous
this situation was for their child. If they’re
guilty of anything, they’re guilty of negligence.

Everybody wants to hold somebody
accountable when we have a dead child, and I
understand that and I see that, but hold them
accountable for what the law says they should
be held accountable for and nothing more.

¶ 11 Then, in closing argument, defense counsel maintained, “We’re

not here denying anything.” Instead, counsel reiterated that “[the

prosecution is] gonna say reckless, we’re arguing negligence.”

Counsel expressly admitted that Astacio “was negligent” and was

“guilty” of “negligence.” And counsel closed by asking the jury to

“make the right” decision: “Make the one that Mr. Astacio is guilty

of, and that’s negligent child abuse resulting in the death of his son.

He’s not guilty of the reckless form.” Counsel also conceded

Astacio’s guilt on the drug possession charges.

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B. Standard of Review and Applicable Law

¶ 12 The Sixth Amendment guarantees a criminal defendant the

right to counsel to assist in their defense. U.S. Const. amend. VI.

When a defendant is represented by counsel, that counsel has the

right to make certain decisions involving strategy and trial

management, such as deciding “what arguments to pursue, what

evidentiary objections to raise, and what agreements to conclude

regarding the admission of evidence.” McCoy v. Louisiana, 584 U.S.

414, 422 (2018) (quoting Gonzalez v. United States, 553 U.S. 242,

248 (2008)). But other decisions are so fundamental that they are

solely the defendant’s to make, like “whether to plead guilty, waive

the right to a jury trial, testify in one’s own behalf, . . . forgo an

appeal, . . . [and] decide that the objective of the defense is to assert

innocence.” Id. Such decisions “are not strategic choices about

how best to achieve a client’s objectives; they are choices about

what the client’s objectives in fact are.” Id. Interference with a

defendant’s right to make these choices — for instance, by

“allow[ing] defense counsel to concede guilt over the defendant’s

intransigent and unambiguous objection” — violates the

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defendant’s right to autonomy secured by the Sixth Amendment.

Id. at 420; see also id. at 422-24, 427.

¶ 13 We review de novo an alleged violation of a defendant’s

constitutional rights. People v. Cuevas, 2024 COA 84, ¶ 21.

¶ 14 “[C]ounsel’s admission of a client’s guilt over the client’s

express objection is error structural in kind.” McCoy, 584 U.S. at

427. “[S]tructural errors . . . require automatic reversal without

individualized analysis of how the error impairs the reliability of the

judgment of conviction.” Hagos v. People, 2012 CO 63, ¶ 10; see

also McCoy, 584 U.S. at 427-28 (violation of the defendant’s right to

autonomy was structural error and, thus, required a new trial

without any need for the defendant to establish prejudice).

C. Child Abuse Charge

¶ 15 This case is strikingly similar to McCoy and, therefore, leads to

the same result. Like the defendant in that case, Astacio developed

a conflict with his counsel over his desire to maintain a defense of

innocence. See McCoy, 584 U.S. at 418-19. And, as in that case,

the trial court here dismissed Astacio’s concerns and ruled that his

counsel could concede his guilt, which his counsel went on to do.

See id. at 419-20. Just as that action violated the defendant’s Sixth

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Amendment right to autonomy in McCoy, id. at 422-24, so, too,

defense counsel’s concession of Astacio’s guilt on the child abuse

charge over his objection violated his right to autonomy.

¶ 16 We reject the People’s arguments to the contrary. First, we

reject the People’s argument that Astacio’s objection was neither

intransigent nor unambiguous. Particularly through his counsel’s

description of the conflict, Astacio made it clear that he wished to

maintain his complete innocence on the child abuse charge,

without admitting either reckless or negligent child abuse. See id.

at 419 (the defendant raised the issue of his right to autonomy

when his counsel told the trial court about their disagreement over

conceding guilt and he told the court he didn’t agree with his

counsel’s concession of guilt); cf. Cuevas, ¶ 34 (discerning no

violation of the right to autonomy where “nothing in the record

indicates that [the defendant] expressly objected to counsel’s

concession” of guilt). And once the trial court rejected the claimed

conflict and ruled that defense counsel had the prerogative to

concede Astacio’s guilt on the lesser offense, Astacio didn’t need to

reraise the issue later in the proceedings, request a new attorney, or

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do anything else to maintain his objection. See generally Crim. P.

51; Bondsteel v. People, 2019 CO 26, ¶ 28.

¶ 17 We also reject the People’s argument that a complete

innocence defense wasn’t viable in this case. Regardless of how

weak defense counsel may have believed such a defense would be,

asserting that defense was Astacio’s choice to make. See McCoy,

584 U.S. at 422, 424 (even if defense counsel “reasonably assess[ed]

a concession of guilt as best suited to avoiding the death penalty,”

“it was not open to [defense counsel] to override [the defendant’s]

objection” to that concession); Turner v. State, 570 S.W.3d 250,

276-77 (Tex. Crim. App. 2018) (defense counsel violated the

defendant’s right to autonomy by conceding his guilt over his

objection, even though “they believed they were ethically obligated

to act contrary to his wishes in order to best serve his interests”).

¶ 18 Finally, we reject the People’s argument that Astacio’s right to

autonomy wasn’t violated because defense counsel conceded guilt

on a lesser offense instead of the greater, charged offense.2 The

2 Relatedly, the People argue that defense counsel “only conceded

the lesser included element of negligence.” To the extent that the
People suggest defense counsel conceded only one of the elements

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McCoy case itself involved greater and lesser offenses, as defense

counsel conceded the defendant’s guilt of second degree murder in

an attempt to avoid the death penalty in a first degree capital

murder case; and in that context, the Supreme Court held that the

concession, over the defendant’s objection, violated the defendant’s

right to autonomy. 584 U.S. at 418 n.1, 422-24. Following McCoy,

other courts have held that the right to autonomy is violated when

defense counsel concedes a lesser offense despite the defendant’s

desire to maintain innocence. See, e.g., People v. Bloom, 508 P.3d

737, 760-61 (Cal. 2022) (“McCoy makes clear that the decision

whether to concede the defendant should be found guilty of a

crime — even a lesser crime than the one the prosecution

charged — is a decision that necessarily belongs to the defendant.”);

see also Turner, 570 S.W.3d at 275-77; State v. Horn, 2016-0559,

pp. 9-11 (La. 9/7/18), 251 So. 3d 1069, 1075-76.

of the charged crime, we disagree. Defense counsel clearly
conceded all the elements of the lesser offense of negligent child
abuse resulting in death.

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¶ 19 Accordingly, we conclude that the trial court erred when it

allowed defense counsel to concede Astacio’s guilt to negligent child

abuse resulting in death over Astacio’s objection.

¶ 20 This error is structural in nature and requires reversal. See

McCoy, 584 U.S. at 427-28; Hagos, ¶ 10; Bloom, 508 P.3d at 762-

63. We therefore reverse Astacio’s conviction for reckless child

abuse resulting in death and remand for a new trial on that charge.

D. Drug Possession Charges

¶ 21 With respect to the drug possession charges, however,

“nothing in the record indicates that [Astacio] expressly objected to

counsel’s concession” of guilt. Cuevas, ¶ 34. Indeed, there was

ample evidence of Astacio’s possession of fentanyl and cocaine; the

colloquy with the court concerning his conflict with defense counsel

centered solely on the child abuse charge; and Astacio hasn’t

pointed to any place in the record (nor have we found any) where he

expressed any objection to his counsel’s concession of guilt on the

drug possession charges.

¶ 22 Accordingly, we conclude that Astacio’s right to autonomy was

not violated with respect to the two drug possession charges on

which he was convicted. See id. at ¶¶ 22-34; see also Florida v.

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Nixon, 543 U.S. 175, 192 (2004) (finding no constitutional violation

where the defendant neither approved nor protested his counsel’s

strategy to concede guilt).

III. Denial of Motion to Sever

¶ 23 Astacio also contends that the trial court erred by denying his

motion to sever his charges from those of his codefendant. Because

we are reversing the conviction for reckless child abuse resulting in

death, we consider this issue only as it relates to the remaining

drug possession convictions. And as to those convictions, we

perceive no reversible error.

A. Standard of Review and Applicable Law

¶ 24 Charges against two or more defendants may be filed or joined

together if the defendants are alleged to have participated in the

same act or series of acts arising from the same criminal episode.

Crim. P. 8(b), 13. Thereafter, a defendant has a right to have their

charges severed from those of a codefendant if the court finds that

the prosecution will probably present prejudicial evidence (other

than reputation or character testimony) that wouldn’t be admissible

if the defendants were tried separately. § 16-7-101, C.R.S. 2024;

Crim. P. 14.

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¶ 25 But where a defendant isn’t entitled to severance as a matter

of right, the trial court has discretion to decide whether to grant a

motion to sever. People v. Black, 2022 COA 127, ¶ 60. We won’t

disturb such a decision “absent a showing of abuse of discretion

and actual prejudice.” Id. (quoting People v. Johnson, 30 P.3d 718,

725 (Colo. App. 2000)). In considering whether actual prejudice

resulted from a trial court’s denial of a motion to sever, we consider

(1) “whether the number of defendants or the complexity of evidence

is such that the jury will confuse the evidence and the law

applicable to each defendant”; (2) “whether, despite admonitory

instructions, evidence admissible against one defendant will

improperly be considered against another”; and (3) “whether the

defenses are antagonistic.” Id. (quoting Johnson, 30 P.3d at 725-

26).3

B. Application

¶ 26 Astacio doesn’t develop any argument that he was entitled to

severance as a matter of right with respect to the drug possession

charges. Nor do we perceive any possibility that he could show the

3 We reject Astacio’s assertion that a constitutional harmless error

standard applies. See Washington v. People, 2024 CO 26, ¶ 21 n.4.

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prejudicial impact of any evidence admissible only as a result of the

joinder, as would be required to establish his entitlement to

severance as a matter of right on the drug possession charges. See

§ 16-7-101; Crim. P. 14. And we needn’t determine whether the

trial court erred by denying his motion to sever as a matter of

discretion because we conclude that no actual prejudice resulted

relating to the drug possession charges.

¶ 27 Although Astacio appears to raise this challenge with respect

to all of his charges, his arguments focus almost entirely on the

child abuse charge. For instance, in his argument regarding

prejudice, he asserts that he was prejudiced by the joinder because

(1) he had two opponents, insofar as the prosecution and his

codefendant both emphasized the evidence against him and sought

to undermine his narrative on the child abuse charge; (2) his

defense of the child abuse charge was diluted; (3) he lost persuasive

evidence relating to the child abuse charge; (4) he faced delay and

disruptions in the trial date to accommodate the codefendant; and

(5) he was hindered in jury selection by having to share eight

peremptory challenges with his codefendant rather than having his

own five challenges. He doesn’t articulate any prejudice relating

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specifically to the drug possession charges, and we don’t perceive

any. And his generic arguments regarding trial delays and shared

peremptory challenges don’t establish the requisite prejudice.

¶ 28 Indeed, the evidence relating to the drug possession charges

was overwhelming and nearly identical for Astacio and his

codefendant. Both defendants tested positive for fentanyl and

cocaine. Astacio also admitted to investigators that he’d done

fentanyl during the night before finding his son nonresponsive.

And investigators recovered fentanyl, cocaine, and drug

paraphernalia in the home where the defendants were staying.

¶ 29 Accordingly, we perceive no actual prejudice resulting from the

denial of Astacio’s motion to sever as it relates to his convictions for

drug possession.

IV. Disposition

¶ 30 Astacio’s conviction for reckless child abuse resulting in death

is reversed, and the case is remanded for a new trial on that charge.

The judgment is otherwise affirmed.

JUDGE FOX and JUDGE LUM concur.

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