Peo v. Garcia-Gonzales

24CA0551 Peo v Garcia-Gonzales 06-04-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0551
Weld County District Court No. 22CR1574
Honorable Timothy Kerns, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Norberto Garcia-Gonzales,

Defendant-Appellant.

SENTENCE AFFIRMED

Division I
Opinion by JUDGE J. JONES
Fox and Dunn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced June 4, 2026

Philip J. Weiser, Attorney General, Jessica E. Ross, Senior Assistant Attorney
General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kirstiana Perryman, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Norberto Garcia-Gonzales, appeals the district

court’s sentence imposed following the court’s acceptance of a plea

agreement under which Garcia-Gonzales pleaded guilty to leaving

the scene of an accident involving death. We affirm.

I. Background

¶2 While driving his car, Garcia-Gonzales hit and killed a

motorcyclist. After the crash, Garcia-Gonzales abandoned his car

and fled the scene on foot. Officers later apprehended Garcia-

Gonzales. The People charged him with leaving the scene of an

accident involving death, careless driving, driving under restraint

(alcohol related offense), and obstructing a peace officer.

¶3 Garcia-Gonzales entered into a plea agreement with the

prosecution in which he agreed to plead guilty to leaving the scene

of an accident and the People agreed to drop the remaining charges.

The leaving the scene of an accident charge carried a presumptive

sentencing range of four to twelve years in prison. See § 42-4-

1601(2)(c), C.R.S. 2025 (leaving the scene of an accident involving

death is a class 3 felony); § 18-1.3-401(1)(a)(V.5)(A), C.R.S. 2025 (a

class 3 felony has a presumptive sentencing range of four to twelve

years).

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¶4 Under the plea agreement, Garcia-Gonzales also agreed that

the court could consider aggravating circumstances, including two

prior DUI convictions, in determining whether to increase his

sentence under section 18-1.3-401(6). Under that statute, if the

court finds extraordinary aggravating circumstances, it may impose

a sentence that is up to twice the maximum presumptive sentence

— in this case, up to twenty-four years. See § 18-1.3-401(6). The

court also advised Garcia-Gonzales of this possibility at the

providency hearing, and Garcia-Gonzales said he understood that

was what he had agreed to.

¶5 At Garcia-Gonzales’s sentencing hearing, the prosecutor

requested a sentence of twenty-four years based on aggravating

factors. Specifically, the prosecutor mentioned Garcia-Gonzales’s

criminal history, including the two prior DUI convictions. The

prosecutor began discussing the facts of those cases.

¶6 Garcia-Gonzales’s counsel objected and argued that

considering the facts of the prior convictions would be “judicial fact

finding.” The court overruled the objection, saying that the parties

had stipulated in the plea agreement that the cases could be

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considered aggravating factors and it wouldn’t be “appropriate for

the Court to disregard the case files in those cases.”

¶7 The prosecutor continued describing the facts underlying

Garcia-Gonzales’s prior convictions:

He has a strong odor of alcohol. He tells one
officer that he had two and a half beers, he
tells another officer that he had none. There is
[a] bottle of [beer] found in the back of the car.
Ultimately, his blood test comes back a .184
and he pleads guilty and is sentenced to
probation . . . .

....

370 days later, after being placed on probation
for that offense, a call comes out where the
Weld County Sheriff’s Officer responds to a
traffic accident where a bystander called in
that a -- that there was a crash and that the
person took off.

And the deputy then sees someone matching
that description, contacts the defendant,
strong odor of alcohol, bloodshot, watery eyes
and keys to the vehicle in his pocket after he
had left the scene, after crashing his car into a
pile of rocks.

And based on that, the original probation was
revoked, he again was sentenced to probation
and he’s sentenced to 45-days jail with credit
time served of two days, and then the
defendant fails to serve those sentences and
warrants are issued. Those same warrants
were active on the day of this tragedy where
the defendant ran and kept running.

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¶8 In determining Garcia-Gonzales’s sentence, the court noted

Garcia-Gonzales’s two prior DUI convictions and referred to facts

relating to those prior convictions; for example, “there was a

statement that you fell asleep while drinking and then drove a

vehicle off the road,” and “[t]here was an opportunity in 2011, a

missed opportunity, to ensure that you received treatment to

understand the impacts of alcohol.”

¶9 At the end of the hearing, the court said, “What I do know is

that I have -- I simply do not have any confidence that the

imposition of a sentence that is focused on rehabilitation will result

in any reception by you, it hasn’t happened in the last dozen years.”

The court concluded that “24 years in the Department of

Corrections is reasonable and just and required,” and it sentenced

Garcia-Gonzales accordingly.

II. Discussion

¶ 10 Garcia-Gonzales contends that (1) the district court erred by

considering facts not proved beyond a reasonable doubt to a jury;

(2) Colorado’s extraordinary aggravating circumstances sentencing

statute is unconstitutional because it allows a judge to find

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aggravating factors; and (3) that statute is also unconstitutionally

vague. We address and reject each contention in turn.

A. The Court Properly Found Aggravating Circumstances

¶ 11 Garcia-Gonzales contends that the district court erred by

relying on facts relating to his prior DUI convictions to impose an

aggravated sentence because he hadn’t stipulated to the use of

these facts or to judicial factfinding. We disagree.

1. Additional Facts

¶ 12 In the plea agreement, Garcia-Gonzales stipulated as follows:

Mr. Garcia-Gonzales agrees that he has prior
convictions for DUI in Weld County cases
13T85 and 11T5389 and stipulates that the
Court can consider these Blakely-exempt facts
in considering imposing an aggravated range
sentence, though he does not stipulate or
agree that the Court should or must impose
such a sentence and may argue against it. In
sum, the range of prison would be a minimum
of four (4) years and a possibility of up to
twenty[-]four (24) years.

And at the providency hearing, the district court asked Garcia-

Gonzales if he understood he was stipulating that he had the two

prior convictions and to allowing the court to consider “the

[Blakely-]exempt facts in considering and imposing an aggravated

range sentence.” Garcia-Gonzales said that he did.

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2. The Court Properly Relied on Blakely-Exempt Facts

¶ 13 The court didn’t err by considering the facts of Garcia-

Gonzales’s prior convictions.

a. Applicable Law

¶ 14 Under section 18-1.3-401(6), a court can impose a sentence

that is up to twice the maximum presumptive range if it finds the

existence of extraordinary aggravating circumstances.

¶ 15 But, “[o]ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a

reasonable doubt.” People v. Elie, 148 P.3d 359, 365 (Colo. App.

2006) (quoting Blakely v. Washington, 542 U.S. 296, 301 (2004)).

Such facts include “all facts that are not reflected in a jury verdict

or, in the case of a plea bargain, to all facts beyond those that

establish the elements of the charged offense.” People v. Isaacks,

133 P.3d 1190, 1193 (Colo. 2006). Thus, a court may rely only on

Blakely-compliant or Blakely-exempt facts to impose an aggravated

sentence. Lopez v. People, 113 P.3d 713, 719-20, 723 (Colo. 2005).

¶ 16 Blakely-compliant facts include facts found by a jury beyond a

reasonable doubt, facts admitted by the defendant, and facts found

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by a judge after the defendant stipulates to judicial factfinding. The

fact of a prior conviction is a Blakely-exempt fact. Id. And “[t]his

prior conviction exemption is not limited to just the fact of

conviction. It extends to any facts ‘regarding’ the prior conviction

that can be found in conclusive judicial records . . . .” People v.

Alvarado, 284 P.3d 99, 103 (Colo. App. 2011) (quoting People v.

Huber, 139 P.3d 628, 633 (Colo. 2006)). If a court relies on at least

one Blakely-exempt fact, “the aggravated range sentence is

constitutional, even if the court also considered facts that did not

fall into one of the four categories [of Blakely-compliant or Blakely-

exempt facts].” Elie, 148 P.3d at 366 (first citing Lopez, 113 P.3d

713; and then citing People v. Martinez, 128 P.3d 291 (Colo. App.

2005)); see also People v. Banark, 155 P.3d 609, 613 (Colo. App.

2007).

b. Analysis

¶ 17 In determining Garcia-Gonzales’s sentence, the court relied on

two Blakely-exempt facts — the two prior convictions. Because the

court properly relied on two Blakely-exempt facts, the aggravated

sentence is constitutional even if the court also considered facts

about Garcia-Gonzales’s prior convictions that weren’t Blakely-

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exempt. See Lopez, 113 P.3d at 731; People v. Scott, 140 P.3d 98,

100 (Colo. App. 2005). Therefore, the court didn’t err by

considering facts regarding Garcia-Gonzales’s prior convictions.

¶ 18 Nonetheless, Garcia-Gonzales argues that the court erred

because it relied on facts that aren’t Blakely-exempt or Blakely-

compliant and the Blakely-exempt facts in the aggregate, rather

than relying on Blakely-exempt facts independently as, he says,

Colorado case law requires. But the case law on which he relies

tells a different story.

¶ 19 In Lopez, 113 P.3d 713, the district court considered several

factors in aggravating Lopez’s sentence “that included the vehicular

homicide convictions and Lopez’s conduct during the period of

deferred judgment on the possession offense.” Id. at 716 (emphasis

added). And the Colorado Supreme Court affirmed the sentence,

saying that the district court properly “aggravated [Lopez’s]

sentence in part on the prior conviction facts.” Id. (emphasis

added). As well, the court held that the existence of even one

Blakely-compliant or Blakely-exempt fact “opens a wider sentencing

range under section 18-1.3-401(6),” allowing a court to also

consider facts that aren’t Blakely-compliant or Blakely-exempt. Id.

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at 731. Thus, it appears that both the district court and the

supreme court considered the Blakely-exempt facts and the other

facts in the aggregate. See id. The court used the same reasoning

in DeHerrera v. People, 122 P.3d 992 (Colo. 2005), when it affirmed

a district court’s aggravated sentence based on three factors, two of

which were Blakely-exempt. See id. at 994. These cases therefore

don’t bear the weight Garcia-Gonzales places on them.

¶ 20 In sum, Garcia-Gonzales’s sentence doesn’t run afoul of

Blakely.

B. Garcia-Gonzales Waived His Argument That the Statute Is
Unconstitutional Because It Allows a Judge to Find
Aggravating Facts

¶ 21 Garcia-Gonzales contends that the extraordinary aggravating

circumstances provision is unconstitutional because it allows a

judge, rather than a jury, to find whether aggravating

circumstances exist. But he waived this argument.

¶ 22 “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)). Waiver of a

right extinguishes appellate review. Id. at ¶ 40. A defendant can

waive his right to challenge a court’s sentencing determination in

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his plea agreement. See People v. Villela, 2019 COA 95, ¶ 24;

Villanueva v. People, 199 P.3d 1228, 1235 (Colo. 2008). And a

defendant can, of course, waive even constitutional rights. See

Medina v. People, 2023 CO 46, ¶ 17; Stackhouse v. People, 2015 CO

48, ¶ 8.

¶ 23 As previously mentioned, Garcia-Gonzales stipulated in his

plea agreement that the court could consider his prior convictions

in determining whether to impose an aggravated sentence. By

consenting to this in his plea agreement, he effectively waived his

argument that the court violated his constitutional right to a jury

finding of those aggravating circumstances. See Villela, ¶ 24.

¶ 24 Garcia-Gonzales argues in his reply brief that he didn’t waive

this argument because he “expressly reserved his right to argue

that the court should not or must not” impose an aggravated

sentence. But that isn’t what the plea agreement says. It says that

the court could “consider these Blakely-exempt facts in considering

imposing an aggravated sentencing range”; Garcia-Gonzales wasn’t

stipulating that “the court should or must impose such a sentence.”

In other words, Garcia-Gonzales reserved the right to argue that the

court should not impose an aggravated sentence and wasn’t

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required to do so. That isn’t the same as arguing that the court

couldn’t impose an aggravated sentence based on the prior

convictions without having the existence of those convictions found

by a jury, which is what he seeks to argue on appeal. Because he

waived that argument, we won’t consider it. See Rediger, ¶ 40.

C. The Aggravating Circumstances Provision Isn’t
Unconstitutionally Vague

¶ 25 Garcia-Gonzales contends that the aggravating circumstances

statute is unconstitutionally vague because the United States

Supreme Court has implicitly overruled controlling Colorado case

law holding that it isn’t. Again, we disagree.

1. Standard of Review

¶ 26 Because Garcia-Gonzales didn’t raise this contention below, it

is unpreserved. See People v. Miller, 113 P.3d 743, 748-49 (Colo.

2005). We review unpreserved vagueness challenges for plain error.

People v. Allman, 2012 COA 212, ¶ 17. Plain error is error that is

obvious and so undermined the fundamental fairness of the

proceeding (in this case, sentencing) as to cast serious doubt on its

reliability. Hagos v. People, 2012 CO 63, ¶ 14; Banark, 155 P.3d at

611.

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2. As-Applied Vagueness Challenge

¶ 27 A defendant may challenge a statute as unconstitutionally

vague either on its face or as applied to the defendant’s conduct.

People v. Devorss, 277 P.3d 829, 835 (Colo. App. 2011). “A statute

is vague as applied if it does not, with sufficient clarity, prohibit the

conduct against which it is to be enforced.” Id.

¶ 28 But “[a] person who engages in conduct that is clearly

proscribed by the statute cannot complain of the vagueness of the

law as applied to the conduct of others.” People v. Perea, 74 P.3d

326, 332 (Colo. App. 2002). In this case, Garcia-Gonzales

stipulated in his plea agreement that the aggravated circumstances

statute applied to him because he agreed that the court could

consider his prior convictions. Therefore, he can’t now argue that

the statute is unconstitutionally vague as applied to him. See id.

3. Phillips Remains Good Law

¶ 29 Even if Garcia-Gonzales could raise an argument that the

statute is unconstitutionally vague, his argument is barred by

controlling Colorado case law, which would require us to reject it.

¶ 30 In People v. Phillips, 652 P.2d 575 (Colo. 1982), the Colorado

Supreme Court held that a prior version of the aggravating

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circumstances statute wasn’t unconstitutionally vague. Id. at 580

(citing § 18-1-105(6), C.R.S. 1981). The current statute is

materially identical to the prior version. Compare § 18-1.3-401(6),

C.R.S. 2025, with § 18-1-105(6), C.R.S. 1981.

¶ 31 Garcia-Gonzales argues, however, that Phillips is no longer

controlling law and we should depart from its holding. His

argument is based on two United States Supreme Court cases:

Johnson v. United States, 576 U.S. 591 (2015), and Beckles v.

United States, 580 U.S. 256 (2017). In Johnson, the Court held that

constitutional vagueness principles apply to statutes that fix

sentences. See 576 U.S. at 596. And in Beckles, the Court held

that range-altering statutes may be challenged on vagueness

grounds. 580 U.S. at 262-63. Garcia-Gonzales argues that

Johnson and Beckles effectively overruled Phillips because the

analysis underlying their holdings differs from Phillips’s vagueness

analysis.

¶ 32 But Phillips’s holding is consistent with Johnson and Beckles.

In Johnson, the Court held that a statute requiring a sentence

enhancement if the defendant had been previously convicted of

three “violent felonies” was unconstitutionally vague because “[i]t

13
ties the judicial assessment of risk to a judicially imagined ‘ordinary

case’ of a crime, not to real-world facts or statutory elements,” and

it left “uncertainty about how much risk it takes for a crime to

qualify as a violent felony.” 576 U.S. at 597-98; see also Sessions v.

Dimaya, 584 U.S. 148, 161-62 (2018) (same); United States v. Davis,

588 U.S. 445, 451-53 (2019) (same). But the Court clarified that a

statute that required the court to consider the facts of each case

rather than an imagined ordinary case wouldn’t be

unconstitutionally vague. Johnson, 576 U.S. at 603-04; see also

Davis, 588 U.S. at 454.

¶ 33 The statute at issue in this case requires a case-by-case

assessment of the relevant facts. Phillips recognized this. See 652

P.2d at 577-78. And, as the People correctly point out, Lopez

further limits the kinds of facts the court may consider, all of which

must be based on evidence in the record. 113 P.3d at 731. Thus,

Phillips is consistent with later Supreme Court precedent. It follows

that the district court didn’t err, much less plainly err, by applying

the aggravating circumstances statute to Garcia-Gonzales.

III. Disposition

¶ 34 We affirm the sentence.

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JUDGE FOX and JUDGE DUNN concur.

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