v. Lopez

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
August 6, 2020

2020COA119

No. 16CA1876, People v. Lopez — Crimes — Public Indecency

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

that the common area of a prison facility is “public” for purposes of

the public indecency statute.
COLORADO COURT OF APPEALS 2020COA119

Court of Appeals No. 16CA1876
Logan County District Court No. 15CR210
Honorable Michael K. Singer, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Gage Walker Lopez,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division II
Opinion by JUDGE TOW
Román and Pawar, JJ., concur

Announced August 6, 2020

Philip J. Weiser, Attorney General, Joseph G. Michaels, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jason C. Middleton, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Gage Walker Lopez, appeals the judgment of

conviction entered on a jury verdict finding him guilty of indecent

exposure. Concluding, apparently for the first time, that the

common area in a prison facility is a “public” area for purposes of

the public indecency statute, we hold that Lopez was entitled to an

instruction on the lesser nonincluded offense of public indecency.

Because the trial court declined his request to give that instruction,

we reverse and remand the case for a new trial.

¶2 We further conclude that one of Lopez’s prior convictions for

indecent exposure was void because the initial charge in that case

was filed after the statute of limitations had expired. Accordingly,

on retrial, the People cannot rely on that conviction to elevate the

current indecent exposure charge to a felony.

I. Background

¶3 Lopez, an inmate at a Department of Corrections (DOC)

facility, walked inside from the prison yard and twice exposed his

genitals to a case manager in the doorway leading into the unit. He

was charged with felony indecent exposure — third or subsequent

offense under section 18-7-302(1)(a), (4), C.R.S. 2019.

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¶4 At trial, defense counsel argued that Lopez did not commit

indecent exposure because he did not act with the requisite sexual

intent, but rather exposed himself so he could be placed in

administrative segregation. She also requested an instruction on

the lesser nonincluded offense of public indecency, arguing that

because Lopez acted without sexual intent the jury could acquit

him of indecent exposure but convict him of public indecency. The

court rejected the instruction, finding that a secured area in a DOC

facility was not “public” under the public indecency statute.

¶5 The jury convicted Lopez as charged. The court sentenced him

to five years supervised probation.

II. The Trial Court Erred by Failing to Instruct the Jury on the
Lesser Nonincluded Offense

¶6 Lopez first argues that the trial court erred by failing to

instruct the jury on the lesser nonincluded offense of public

indecency. We agree.

A. Standard of Review

¶7 In cases where the court’s decision to instruct the jury on a

lesser offense turns on a comparison of statutory elements, we

review that legal issue de novo. People v. Ramirez, 18 P.3d 822, 827

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(Colo. App. 2000). We also review de novo matters of statutory

interpretation. People v. Perez, 2016 CO 12, ¶ 8.

¶8 The standard we apply in reviewing the trial court’s decision

not to provide an instruction on a lesser nonincluded offense is not

clearly established. Some divisions of this court have held that

whether the evidence in the record is sufficient to give the requested

instruction is a factual inquiry that we review for an abuse of

discretion. See, e.g., People v. Wartena, 2012 COA 12, ¶ 30. Other

divisions have reviewed the issue de novo. See, e.g., People v.

Rubio, 222 P.3d 355, 360 (Colo. App. 2009). However, a trial

court’s misapplication of the law is also an abuse of discretion.

People v. Henson, 2013 COA 36, ¶ 9. Thus, we need not

conclusively resolve which standard of review applies, because

either one requires us to interpret the statute de novo.

¶9 Finally, in deciding whether to instruct the jury on a lesser

offense requested by the defense, a trial court must consider the

evidence in the light most favorable to the defendant. Mata-Medina

v. People, 71 P.3d 973, 979 (Colo. 2003). Nonetheless, “there must

also be a rational basis in the evidence to support a verdict

acquitting the defendant of a greater offense and convicting him of

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the lesser offense.” Wartena, ¶ 30. And “the mere chance that a

jury may reject uncontroverted testimony and convict on the lesser

charge does not require the trial court to instruct the jury on the

lesser charge.” Ramirez, 18 P.3d at 827.

¶ 10 When a trial court erroneously fails to give a jury instruction

that the defendant requested and to which he was entitled, we

review that omission under the harmless error standard.

Mata-Medina, 71 P.3d at 980. Applying that standard, reversal is

warranted only if the error affected the defendant’s substantial

rights. Crim. P. 52(a). An error impacts a defendant’s substantial

rights if there is “a reasonable probability that it contributed to the

defendant’s conviction.” Mata-Medina, 71 P.3d at 980.

B. Law and Application

¶ 11 As relevant here, a person commits indecent exposure “[i]f

he . . . knowingly exposes his . . . genitals to the view of any person

under circumstances in which such conduct is likely to cause

affront or alarm to the other person with the intent to arouse or to

satisfy the sexual desire of any person.” § 18-7-302. A person

commits public indecency by — “in a public place or [in a place]

where the conduct may reasonably be expected to be viewed by

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members of the public” — “knowing[ly] expos[ing] . . . the person’s

genitals to the view of a person under circumstances in which such

conduct is likely to cause affront or alarm to the other person.”

§ 18-7-301(1)(e), C.R.S. 2019. A public place is “a place to which

the public or a substantial number of the public has access, and

includes but is not limited to . . . the common areas of public and

private buildings and facilities.” § 18-1-901(3)(n), C.R.S. 2019.

¶ 12 Lopez argues, the People concede, and we agree that the

common area of a DOC facility is a public place for the purposes of

the public indecency statute because it is used by other inmates

and staff. See People in Interest of D.C., 2019 COA 22, ¶ 15 (holding

that a Division of Youth Corrections classroom was a place where

conduct may reasonably be expected to be viewed by members of

the public because staff and juvenile residents may use the

classrooms); People v. Hoskay, 87 P.3d 194, 199 (Colo. App. 2003)

(holding that dormitory room of the detoxification facility was a

public place because it is “open to any man admitted to the facility,

as well as to the staff”). No other elements of the public indecency

statute were disputed as inapplicable, and the instruction was

consistent with Lopez’s defense. Therefore, public indecency was a

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lesser nonincluded offense of indecent exposure and the trial

court’s failure to instruct the jury on the lesser offense was error.

¶ 13 Next, we must determine whether this was a reversible error.

As already noted, a defendant is entitled to a lesser nonincluded

instruction if the evidence establishes a rational basis both to

acquit the defendant on the greater charge and to convict the

defendant on the lesser charge. Cf. Apodaca v. People, 712 P.2d

467 (Colo. 1985) (holding that instruction for lesser included offense

of attempted second degree kidnapping was not warranted where

undisputed evidence clearly established the completed crime of

second degree kidnapping).

¶ 14 We reject the People’s argument that no rational basis for

acquittal exists because the jury returned a guilty verdict on the

indecent exposure charge. A jury may convict a defendant because

they believed that a crime was committed and only one crime was

charged. The lesser offense instruction is designed to “help[] ensure

that a jury does not convict a defendant of a greater offense than

the one actually committed merely because the greater offense is

the only crime charged.” People v. Naranjo, 2017 CO 87, ¶ 16. As a

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result, we look at the evidence presented rather than the jury’s

verdict to determine whether the error is reversible.

¶ 15 Here, there is a rational basis to acquit Lopez of the indecent

exposure charge and convict him of public indecency. Lopez’s

defense was that he lacked the requisite intent to commit indecent

exposure. Specifically, Lopez testified that he experiences anxiety

and on the day of the incident, “my anxiety had finally gotten away

from me and I decided to act out and run away from the

situation . . . I am going to expose myself to this person and get

thrown in segregation.” He also testified that he was not trying to

arouse the case manager or himself. A DOC investigator also

testified that inmates sometimes want to go to segregation and

Lopez told him that he acted out because of anxiety stemming from

his living arrangement. This evidence supports Lopez’s defense that

he lacked the requisite intent. None of the other elements of public

indecency are disputed. Therefore, there is a reasonable probability

that the trial court’s failure to give the lesser nonincluded

instruction contributed to the verdict and absence of the requested

instruction was not harmless. We reverse Lopez’s conviction for

indecent exposure and remand for a new trial.

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III. The Trial Court Erred by Using a Void Prior Conviction to
Enhance Lopez’s Conviction

¶ 16 Lopez also argues that the trial court erred by using a void

prior conviction to enhance his conviction to a felony. Because this

issue is likely to arise on retrial, we address it. We agree.

A. Additional Background

¶ 17 The prosecution charged indecent exposure as a felony

because Lopez had two prior indecent exposure convictions. See

§ 18-7-302(4) (“Indecent exposure is a class 6 felony if the violation

is committed subsequent to two prior convictions of a violation of

this section . . . .”).

¶ 18 Prior to sentencing, Lopez filed a brief asserting that one of his

prior convictions could not be used to enhance his conviction.

Specifically, he argued that because the prior conviction was based

on a charge filed outside of the statute of limitations, the court did

not have subject matter jurisdiction to convict him. The trial court

denied the motion.

B. Waiver

¶ 19 As a preliminary matter, the People argue that Lopez waived

this claim by pleading guilty to the prior charge. We disagree. A

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voluntary guilty plea waives nonjurisdictional defects in the

proceedings against a defendant. People v. Carroll, 939 P.2d 452,

454 (Colo. App. 1996). It does not waive jurisdictional defects in

those proceedings. People v. Owen, 122 P.3d 1006, 1007-08 (Colo.

App. 2005). Consequently, Lopez is not barred from bringing this

claim.

C. Standard of Review

¶ 20 “Whether a court has subject matter jurisdiction is a question

of law we review de novo.” People v. Wunder, 2016 COA 46, ¶ 9.

D. Law and Application

¶ 21 A judgment is void if the court that entered it lacked subject

matter jurisdiction. People v. Sandoval, 2016 COA 57, ¶ 53. A void

judgment can be collaterally attacked at any time. See

§ 16-5-402(2)(a), C.R.S. 2019.

¶ 22 Here, the underlying incident resulting in the prior conviction

occurred on September 20, 2012. The trial court found that Lopez

was not charged with misdemeanor indecent exposure for the

incident until April 11, 2014, over eighteen months later. But the

statute of limitations for the prosecution of misdemeanors is

eighteen months. § 16-5-401(1)(a), C.R.S. 2019. Thus, the statute

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of limitations expired before charges were filed. “[O]ur case law is

clear: a claimed statute of limitations violation in a criminal case

implicates the court’s subject matter jurisdiction.” People v. Butler,

2017 COA 117, ¶ 14.

¶ 23 Although there is an exception to the statute of limitations,

that exception does not apply here. “The applicable period of

limitations . . . shall not apply to charges of offenses or delinquent

acts brought to facilitate the disposition of a case, or to lesser

included or non-included charges of offenses or delinquent acts

given to the court or a jury . . . by the accused.” § 16-5-401(12).

But the indecent exposure charge filed against Lopez was the

original charge. It was not “brought to facilitate the disposition of

[the] case” nor was it a “lesser included or non-included charge[].”

Id. In other words, this exception applies only when the court had

obtained subject matter jurisdiction over the initial charge as a

result of a timely initial filing of charges.

¶ 24 The People’s reliance on People v. Wilson, 251 P.3d 507 (Colo.

App. 2010), is unavailing. There, when the complaint was originally

filed, the statute of limitations had not run on the original felony

charges filed against the defendant. See id. at 508. Consequently,

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Wilson did not involve the scenario presented here, in which the

invocation of the trial court’s subject matter jurisdiction was

untimely from the outset of the case.

¶ 25 Because the statute of limitations period had expired before

the prosecutor filed the initial charge against Lopez in 2014, the

court did not have subject matter jurisdiction over the charge.

Consequently, should Lopez be convicted of indecent exposure upon

retrial, the 2014 judgment of conviction cannot be used to enhance

the current conviction to a felony.

IV. Remaining Contentions

¶ 26 In light of our disposition of the jury instruction issue, and

because we cannot say if, how, or in what context Lopez’s

remaining issues will arise on retrial, we decline to address them.

V. Conclusion

¶ 27 The judgment is reversed, and the case is remanded for a new

trial.

JUDGE ROMÁN and JUDGE PAWAR concur.

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