People v. Garcia

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
December 31, 2025

2025COA98

No. 23CA1371, People v. Garcia — Criminal Law — Appeals —
Sufficiency of the Evidence — Waiver

A division of the court of appeals concludes for the first time in

a published opinion that when defense counsel tells the jury to find

the defendant guilty of one of the charged offenses during closing

argument, the defendant waives the ability to claim on appeal that

there was insufficient evidence to support a conviction for that

offense.
2025COA98
COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1371
City and County of Denver District Court No. 19CR4659
Honorable Alex C. Myers, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Anthony Garcia,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE TOW
Lum and Graham*, JJ., concur

Announced December 31, 2025

Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

William Holzer, Alternate Defense Counsel, Littleton, Colorado, for Defendant-
Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2025.
¶1 Defendant, Anthony Garcia, appeals the judgment of

conviction entered on a jury verdict finding him guilty of resisting

arrest. We conclude — for the first time in a published appellate

case in Colorado — that when defense counsel tells the jury to find

the defendant guilty of one of the charged offenses during closing

argument, the defendant has waived the ability to claim on appeal

that there was insufficient evidence to support a conviction for that

offense. And because the only claim asserted on appeal was

waived, we affirm.

I. Background

¶2 At trial, the prosecution presented evidence from which the

jury could make the following findings.

¶3 The police suspected Garcia had been involved in a shooting

they were investigating. While surveilling him, they saw him get

into the passenger seat of a car, and the car drove away. They tried

to pull the car over, but Garcia yelled at the driver to keep going.

When the car eventually stopped, Garcia jumped out and ran. The

police followed him and yelled at him to “get down.” Garcia kept

running and got into a truck through the driver’s side door.

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¶4 Officers opened the driver’s side door and a “struggle” ensued.

Officers were able to open the passenger side door and pull Garcia

out of the truck. An officer testified that Garcia would not comply

when they were attempting to arrest him and that he “turtled up,”

meaning he put his hands underneath him and rolled into a ball to

prevent officers from gaining control of his hands. Officers

eventually arrested Garcia, and he was charged with and tried for

resisting arrest.

¶5 Garcia was also charged with attempted first degree murder,

first degree assault, and tampering with physical evidence. The

jury acquitted him of the first two charges but convicted him of the

tampering charge — a class 5 felony — which conviction he does

not challenge on appeal. He received a one-year prison sentence

on the felony and a six-month jail sentence for resisting arrest, to

be served concurrently with each other and with a five-year prison

sentence he received the same day in a separate case.

¶6 During opening statement, defense counsel said, “Garcia is

guilty of [r]esisting [a]rrest, absolutely.” At trial, the jury viewed a

body camera video from one of the arresting officers showing the

altercation in the truck and Garcia’s subsequent arrest. Then

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during closing arguments, defense counsel argued to the jury that

there was no evidence that Garcia committed the attempted

homicide. But defense counsel told the jury, “[a]s I told you in

opening statement, resisting arrest, 100 percent. But he ran, he

knows that. He ran, tried his best to get away. Obviously, it didn’t

work out. Resisting arrest, go back, first box you check, guilty.

Okay.” The jury did just that, finding Garcia guilty of resisting

arrest.

¶7 On appeal, Garcia’s sole contention is that the People failed to

introduce sufficient evidence that he resisted arrest — in particular,

that there was no evidence that Garcia used physical force or

violence, which is an element of the offense. We conclude, however,

that Garcia waived any challenge to the sufficiency of the evidence

when his counsel conceded his guilt on that charge in closing

argument.

II. Preservation and Standard of Review

¶8 The People did not initially assert that counsel’s actions

waived Garcia’s appellate claim. Nevertheless, we have “an

independent, affirmative duty to determine whether a claim is

preserved and what standard of review should apply, regardless of

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the positions taken by the parties.” Forgette v. People, 2023 CO 4,

¶ 15 (quoting People v. Tallent, 2021 CO 68, ¶ 11). This obligation

extends to a determination of whether a defendant waived their

appellate claim. Id. To assist us in discharging our obligation, we

ordered the parties to file supplemental briefs on the issue.

¶9 Waiver is “the intentional relinquishment of a known right or

privilege.” People v. Rediger, 2018 CO 32, ¶ 39 (quoting Dep’t of

Health v. Donahue, 690 P.2d 243, 247 (Colo. 1984)). “Whether a

particular right is waivable; whether the defendant must participate

personally in the waiver; whether certain procedures are required

for waiver; and whether the defendant’s choice must be particularly

informed or voluntary, all depend on the right at stake.” Phillips v.

People, 2019 CO 72, ¶ 16 (quoting United States v. Olano, 507 U.S.

725, 733 (1993)). We review de novo whether a waiver occurred.

Forgette, ¶ 12.

III. Sufficiency of the Evidence Claims Are Waivable

¶ 10 When a defendant challenges the sufficiency of the evidence,

they are “asserting that the prosecution has not proven every fact

necessary to establish the crime at issue, and thus, it has not

established that the defendant, in fact, committed a crime.” McCoy

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v. People, 2019 CO 44, ¶ 20. “[A] defendant effectively challenges

the sufficiency of the evidence presented at trial by contesting that

evidence at the trial,” and no other form of objection directed at the

evidence as a whole is required. Id. at ¶ 22. Thus, the supreme

court held that sufficiency of the evidence claims may be raised for

the first time on appeal and are reviewed de novo. Id. at ¶ 27.

¶ 11 But the supreme court did not have occasion in McCoy, or

apparently since, to address whether a sufficiency of the evidence

claim can be waived.

¶ 12 Initially, we recognize that in McCoy, the supreme court cited,

with apparent approval, Haskell v. State, 2018 WY 85, ¶ 27, for the

proposition that the Wyoming Supreme Court “does not apply

waiver to a claim that the evidence was legally insufficient to

support the defendant’s conviction because the proposition that a

defendant’s guilt must be established by competent evidence

proving each element of the crime at issue invokes a fundamental

right.” McCoy, ¶ 24. But Haskell did not involve a waiver in the

sense that is at issue here, as, in that case, there was no claim that

counsel took any affirmative step that amounted to an “intentional

relinquishment of a known right.” Rediger, ¶ 39 (quoting Donahue,

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690 P.2d at 247). Rather, Haskell presented a run-of-the-mill

failure to preserve a claim where the defendant pursued an

argument on appeal that he had not raised in the trial court.

Haskell, ¶ 26.

¶ 13 Moreover, the Haskell court drew the language about “not

apply[ing] waiver,” id. at ¶ 27 (emphasis added), in this context

from an earlier case, Thompson v. State, 2018 WY 3, ¶ 25. That

case, like Haskell, simply involved a defendant’s challenge to the

sufficiency of the evidence on a basis not asserted at trial. Id.

Thus, notwithstanding the use of the word “waiver,” Haskell merely

stands for the proposition that a sufficiency claim may be raised for

the first time on appeal. We do not view our supreme court’s

endorsement of Haskell, therefore, as a suggestion that a

sufficiency of the evidence claim cannot be waived.

¶ 14 And we see nothing in our waiver jurisprudence to suggest

that it cannot and, perhaps more importantly, much to suggest that

it can.

¶ 15 We acknowledge, as we must, that “the Due Process Clause

protects the accused against conviction except upon proof beyond a

reasonable doubt of every fact necessary to constitute the crime

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with which he is charged.” McCoy, ¶ 20 (quoting In re Winship, 397

U.S. 358, 364 (1970)). But the mere fact that a defendant’s due

process right is involved does not immunize from waiver an

appellate claim that such a right was violated. See, e.g., People v.

Carter, 2021 COA 29, ¶ 25 (concluding that the defendant waived

his due process claim arising from a constructive amendment).

¶ 16 Indeed, even a structural error — i.e., an error that so

interferes with the fundamental fairness of the trial process itself

that reversal is mandated without a showing of prejudice, see

People v. Lopez, 2024 CO 50, ¶ 3 — can be waived. Stackhouse v.

People, 2015 CO 48, ¶ 8. In Stackhouse, defense counsel failed to

object to a known court closure. Id. at ¶ 2. Our supreme court

held that “even fundamental rights can be waived, regardless of

whether the deprivation thereof would otherwise constitute

structural error.” Id. at ¶ 8. In addition to Stackhouse, our

supreme court has found waiver of such structural errors on other

occasions as well. See People v. Garcia, 2024 CO 41M, ¶ 54 (the

defendant’s lack of objection waived claim that the judge presiding

over his trial was biased because she was counsel of record in the

case before she was appointed to the bench); Richardson v. People,

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2020 CO 46, ¶ 28 (the defendant waived claim that trial judge’s

spouse having sat on the jury meant that his jury had a biased

juror).

¶ 17 True, a conviction based on insufficient evidence is not a

structural error. “A claim of insufficiency of the evidence doesn’t

challenge the ‘framework’ of the trial or even the process by which

guilt is decided.” People v. Kadell, 2017 COA 124, ¶ 57 (J. Jones,

J., concurring in part and dissenting in part). Though our supreme

court has not clearly established the standard of reversal for a

sufficiency claim, it has been suggested that if “the appellate court

finds error (i.e., insufficient evidence), the standard of reversal is

constitutional harmless error.” Maestas v. People, 2019 CO 45, ¶

23 n.2 (Samour, J., joined by Coats and Boatright, JJ., concurring

in the judgment).1 Nevertheless, if even structural error can be

1 The majority concluded only that the court of appeals division

erred by applying the plain error standard of reversal and remanded
“with instructions that the division perform an appropriate de novo
review of Maestas’s contention that insufficient evidence supported
this conviction.” Maestas v. People, 2019 CO 45, ¶ 16. The
majority did not address Justice Samour’s observation regarding
the application of constitutional harmless error review.

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waived, we see no reason why a sufficiency of the evidence claim

cannot be.

¶ 18 Of course, the supreme court did say in Maestas that “a

conviction that is based on legally insufficient evidence cannot

stand.” Id. at ¶ 13 (majority opinion). Notwithstanding this broad

statement of a general principle (with which we take no issue), our

supreme court and other divisions of this court have found that

defendants waived appellate claims of this type on numerous

occasions. Perhaps most fundamentally, it is beyond dispute that

by entering a guilty plea, a defendant waives his right to insist that

the prosecution establish his guilt beyond a reasonable doubt. See,

e.g., Patton v. People, 35 P.3d 124, 128 (Colo. 2001). But that is not

the only scenario in which a defendant has been found to have

waived an appellate challenge to the sufficiency of the evidence

supporting the conviction.

¶ 19 In Medina v. People, 2023 CO 46, the defendant had entered

what is known as an Alford plea — a process approved by the

United States Supreme Court in North Carolina v. Alford, 400 U.S.

25, 39 (1970), in which a defendant enters a guilty plea despite

maintaining his innocence. The United States Supreme Court held

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that such a plea does not violate due process provided “the record

before the judge contains strong evidence of actual guilt.” Id. at 37.

But, in Medina, our supreme court rejected the defendant’s claim

that an Alford plea violates due process if the defendant is

permitted to waive the establishment of the factual basis for the

offense. Such a waiver, the defendant argued, prevents the record

from containing the “strong evidence of actual guilt” the United

States Supreme Court insisted on in Alford. Medina, ¶ 29. Instead,

our supreme court held that a defendant can waive the

establishment of the factual basis entirely. Id. at ¶ 40.

¶ 20 In Montoya v. People, 2017 CO 40, the defendant was charged

with attempted extreme indifference murder, reckless

manslaughter, and criminally negligent homicide after he and his

cousin each fired several shots in the direction of a group of people.

Id. at ¶ 1. At the request of the defendant’s counsel, the jury was

also instructed on the lesser nonincluded offense of accessory to

crime. Id. at ¶ 6. On appeal, the defendant sought to challenge the

sufficiency of the evidence supporting his conviction for accessory.

Id. at ¶ 31. The supreme court held that the defendant was

“effectively estopped” from asserting this claim on appeal because

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he had “expressly made the tactical choice to request that the

charge of accessory to crime be added to the existing charges

against him and submitted to the jury . . . in the hope that the jury

would convict him of that lesser offense in lieu of the homicide

itself.” Id. The court further held, “A criminal defendant’s due

process right to insist that there be substantial evidence supporting

a conviction is therefore not violated by forbidding him from taking

a position on appeal contrary to the one he successfully urged upon

the trial court.” Id. at ¶ 36.

¶ 21 Thus, existing precedent makes clear that a defendant can

waive the right to have the prosecution prove guilt beyond a

reasonable doubt.

¶ 22 Further, this right may be waived by defense counsel. Defense

counsel is permitted to concede a defendant’s guilt as part of their

trial strategy, at least where the defendant does not expressly object

to that concession.2 See People v. Cuevas, 2024 COA 84, ¶¶ 18, 32.

¶ 23 That is what happened here. Defense counsel expressly told

the jury to find Garcia guilty on the resisting arrest charge in

2 The record does not reflect any such objection from Garcia.

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closing argument. See Rediger, ¶ 39. This is akin to defense

counsel stating that there was sufficient evidence to convict Garcia

of resisting arrest. See Montoya, ¶ 36.

¶ 24 And this was likely a strategic decision: concede Garcia’s guilt

as to the misdemeanor offense but contest it on the felony offenses.

Indeed, defense counsel signaled this strategy as early as his

opening statement.3

¶ 25 Accordingly, we conclude that Garcia’s defense counsel waived

any argument that there was insufficient evidence of resisting

arrest, and we will not consider it. See Rediger, ¶ 40 (“[W]aiver

extinguishes error, and therefore appellate review . . . .”). And

because there is no other appellate claim before us, we affirm the

judgment.

3 We do not suggest that defense counsel’s similar concession

during his opening statement would alone amount to waiver. At
that point, counsel was only discussing the evidence that he
reasonably anticipated would be presented. If, in fact, the
prosecution had not presented such evidence, counsel would have
been free to pivot. (Notably, he did not.) We mention counsel’s
comment during opening statement because it reflects that
conceding guilt on the misdemeanor charge was a strategic gambit
rather than an oversight.

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IV. Disposition

¶ 26 The judgment of conviction is affirmed.

JUDGE LUM and JUDGE GRAHAM concur.

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