Peo v. Garcia

22CA1822 Peo v Garcia 05-08-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1822
City and County of Denver District Court No. 19CR20013
Honorable Martin F. Egelhoff, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Anatolio Garcia,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE WELLING
Kuhn and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 8, 2025

Philip J. Weiser, Attorney General, Sonia Raichur Russo, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Rachel C. Funez, Alternate Defense Counsel, Glenwood Springs, Colorado, for
Defendant-Appellant
¶1 Defendant, Anatolio Garcia, appeals his conviction and

sentence for first degree extreme indifference assault and vehicular

homicide. We disagree and affirm.

I. Background

¶2 In May 2019, just after 2 p.m., the van Garcia was driving hit

a car. Garcia and his passengers picked up some debris from that

crash before getting back in the van and speeding away. Witnesses

watched as Garcia sped down a residential street and eventually hit

another car, killing the driver. The second collision was so violent

that Garcia’s van struck a house and injured an occupant of that

home. A passenger inside the van, S.P., suffered a spinal fracture.

¶3 Garcia was pulled from the driver’s seat and taken to the

hospital by ambulance. He told a police officer that he was the

driver of the van. The officer smelled alcohol on Garcia’s breath and

noticed that his eyes were bloodshot and watery, and that he was

slurring his speech. Garcia’s blood was drawn three times between

approximately 6 p.m. and 8 p.m., and his blood alcohol content

measured .243, .225, and .205 — two and a half to three times the

legal limit to operate a motor vehicle. Garcia also tested positive for

1
THC, the psychoactive ingredient in marijuana. Garcia had four

prior DUI convictions between 1992 and 2003.

¶4 Garcia was arrested and charged with thirteen different

crimes, including first degree murder, vehicular homicide, and first

degree extreme indifference assault.

¶5 For most of this case, Garcia maintained that he wasn’t

driving the van during the second accident — despite being pulled

from the driver’s seat by emergency medical services and reporting

he was the driver. Garcia was found incompetent to stand trial in

August 2020 and found competent in January 2021. He was

initially found to be incompetent because, among other reasons, his

account of events “contained several bizarre elements.” When he

was restored to competency in January 2021, the psychiatrist

didn’t find a mental or developmental disorder, instead postulating

that Garcia’s continued “fantastical” version of events might have

resulted from an alcoholic “blackout” that he backfilled with a story

created to help him cope “with a potentially life-changing event.”

His original counsel moved to withdraw in March 2021, and the

court appointed alternate defense counsel (ADC) — whom we will

refer to as plea counsel — to represent him.

2
¶6 In October 2021, Garcia entered a guilty plea to first degree

extreme indifference assault and vehicular homicide in exchange for

dismissal of the eleven other charges. The court gave Garcia a very

thorough advisement concerning the rights he was relinquishing by

pleading guilty, including the right to defend against any of the

charges and the right to a trial. Garcia repeatedly affirmed his

desire to plead guilty during this advisement from the court.

¶7 The matter was set over for sentencing.

¶8 But three months after pleading guilty and before sentencing,

Garcia requested to withdraw his guilty plea, claiming that his plea

counsel had pressured him into pleading guilty to buy them time to

investigate certain leads. Garcia claimed that plea counsel

promised that he could withdraw his plea if they discovered

exculpatory information, but he says they never conducted the

promised investigation and didn’t provide him with the discovery in

his case until after he had pleaded guilty. Garcia claimed that once

he was provided with the discovery and had the opportunity to

review it, he was able to identify several potentially exculpatory

leads. Garcia requested the court allow him to withdraw his guilty

plea so that he could investigate these leads. Concurrent with

3
Garcia’s motion to withdraw his plea, plea counsel filed a motion to

withdraw.

¶9 The court granted plea counsel’s motion to withdraw and

appointed new ADC — whom we will refer to as final counsel — to

represent Garcia in moving to withdraw his guilty plea and at

sentencing if the motion to withdraw his plea was unsuccessful.

¶ 10 Final counsel requested that Garcia be evaluated a third time,

and he was found competent again in July 2022. After final

counsel presented Garcia’s motion to withdraw his guilty plea orally

and the prosecution responded, the court denied the motion. The

court then imposed the maximum sentence for both convictions —

thirty-two years for the first degree extreme indifference assault

conviction and twelve years for the vehicular homicide conviction —

and ordered that Garcia serve the sentences consecutively.

II. Issues on Appeal

¶ 11 Garcia raises four issues on appeal. Garcia contends that the

court erred by (1) appointing final counsel to investigate whether

there were grounds to file a motion to withdraw his guilty plea; (2)

denying his motion to withdraw his guilty plea; (3) imposing the

maximum sentence allowed by statute; and (4) imposing a

4
disproportionate sentence in violation of the Eighth Amendment

and the Colorado Constitution on the first degree extreme

indifference assault conviction. We address and reject each

contention in turn below.

A. Conflict of Interest

¶ 12 Garcia argues that the trial court created a conflict of interest

by appointing final counsel to “investigate whether or not there are

grounds to withdraw the guilty plea.” He argues the court’s

language when appointing final counsel created a conflict of interest

between final counsel’s responsibility to represent Garcia and her

mandate to investigate the merits of his motion to withdraw his

plea. We aren’t persuaded.

1. Standard of Review

¶ 13 Though we would normally review a court’s rulings on

appointment of counsel for an abuse of discretion, because Garcia

alleges the court’s order appointing counsel created a conflict of

interest, we review his claim de novo. Ronquillo v. People, 2017 CO

99, ¶ 13.

5
2. Additional Facts

¶ 14 After granting plea counsel’s motion to withdraw, the court

appointed final counsel:

I’ll appoint ADC . . . to investigate whether or
not there are grounds to withdraw the guilty
plea. If there are, there needs to be a motion
filed and we’ll have a hearing on that
motion. . . . If that motion is denied, he or she
will proceed at Garcia’s time for sentencing. If
it’s granted, he has a lawyer.

¶ 15 About a month later, final counsel appeared on Garcia’s behalf

at a hearing. The court commented on its previous order

appointing final counsel: “So the Court appointed ADC to

investigate whether or not there’s grounds to file a Motion to

Withdraw Mr. Garcia’s guilty pleas.”

¶ 16 And after final counsel requested a continuance, the court laid

out a roadmap for the case moving forward:

So we’ll need to be prepared to — if there’s
grounds to . . . withdraw the guilty plea, you
need to file a written motion with those
grounds so the DA’s on notice. And if there’s a
motion filed, we’ll have a hearing and
determine whether there’s basis or not. And
depending on the result of that, we’ll either
proceed to sentencing or not.

6
¶ 17 In March, at another hearing, final counsel cited attorney-

client privilege when limiting her discussion about what issues she

was investigating for Garcia. Shortly after that, the court clarified

the scope of her appointment:

THE COURT: So, Counsel, when we appointed
you on this case, just remind me, would I be
correct in presuming that you obviously are
appointed to investigate and present any
request on behalf of Mr. Garcia on his guilty
plea? Presuming, just for the sake of
argument, that motion is denied, then you
would be then the counsel — or would it be
(indiscernible) appointment to be the counsel
to represent him during sentencing?

[ADC]: I would assume so. I would likely reach
out to ADC, but I would assume that. I would
do both for — unless Mr. Garcia had any
objection just for kind of clarity’s sake that
now I’m familiar with the case and with Mr.
Garcia. . . .

THE COURT: And I guess if the Court made
that an order, that would solve that problem,
right?

[ADC]: I would agree, yeah.

THE COURT: So here again, I’m not asking you
to divulge any confidential information, but
let’s say I gave you a continuance — and I
understand what you’re doing, and I — you
know, everyone’s frustrated about the pace of
the case and what’s happened here. And I
guess what I’m trying to do is get the issues
before the Court resolved and so we can

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actually have a resolution that stands up one
way or the other.

And so let’s just say that we give you the time
that you need or maybe a little less, at that
point in time, would you be in a position to
both present whatever motion you’re going to
present, and if that motion is indeed denied,
just for the sake of argument, then be in a
position then to proceed to sentencing?

¶ 18 Final counsel replied that she needed to confer with Mr.

Garcia. After they spoke off the record, final counsel confirmed

that, if his motion to withdraw his guilty plea was denied, Mr.

Garcia wanted to proceed with her as his attorney through

sentencing and that she felt she would be ready to represent him at

sentencing.

¶ 19 Finally, the court warned Garcia:

And so I want to make very clear to you, Mr.
Garcia, that I’ve appointed one more lawyer for
you to proceed with this motion and proceed to
sentencing. And if conflicts arise with respect
to this lawyer, you may very well be to the
point where you have forfeited your right to
counsel and you’ll proceed without counsel.
And I’m not talking about a waiver; I’m talking
about a forfeiture of your right to counsel.

3. Analysis

¶ 20 Garcia argues that the court created a conflict of interest that

denied him effective assistance of counsel when it appointed final

8
counsel to investigate whether there were grounds for Garcia to

withdraw his guilty plea. Garcia argues that by imposing on final

counsel the obligation to investigate whether there were grounds for

Garcia’s motion to withdraw, the court split counsel’s loyalty

between investigating on behalf of the court and representing Mr.

Garcia’s interests.

¶ 21 Garcia relies on People v. Breaman, 939 P.2d 1348 (Colo.

1997), to support his argument. In Breaman, the court appointed

an attorney for Breaman “to review [Breaman’s] submissions,

consult with [Breaman,] and make such further investigations as

may be appropriate to determine if a meritorious issue exists.” Id.

at 1350. The attorney filed a status report detailing how he had

reviewed the files and transcripts from the case, discussed the case

with the arresting officer and the attorney who had previously

represented Breaman, and researched the applicable law. Our

supreme court held that, while a court may remind an attorney of

their duty not to pursue meritless claims, the Breaman court’s

language impermissibly limited the scope of the attorney’s

appointment to be the “court’s fact-finder.” Id. at 1351-52. The

court supported its decision with a couple of key observations: (1)

9
the attorney’s status report didn’t indicate that he had spoken with

Breaman at all, and (2) the attorney “reviewed the claims and

reported directly to the court.” Id. at 1352.

¶ 22 But the facts in these cases are distinguishable. First, the

court’s language when it appointed final counsel was broader than

that of the district court in Breaman. For example, the trial court

initially described an arrangement where final counsel would

present a motion to withdraw the guilty plea, and if it was denied

final counsel “will proceed at Garcia’s time for sentencing. If it’s

granted, he has a lawyer.” This describes the full scope of a normal

attorney-client relationship during a criminal trial — not a limited

role as the court’s investigator. And the court clarified its language,

ensuring that there could be no question that final counsel wasn’t

the court’s fact finder, stating that “if there’s a motion filed, we’ll

have a hearing and determine whether there’s basis or not. And

depending on the result of that, we’ll either proceed to sentencing or

not.”

¶ 23 The court clearly reserved the responsibility to determine if

final counsel had established a basis for withdrawing the plea at the

hearing — and didn’t place that responsibility on final counsel as

10
the court did in Breaman. 939 P.2d at 1350. Moreover, the court

warned Garcia that if final counsel withdrew due to yet another

conflict, it would constitute a forfeiture of Garcia’s right to counsel.

By framing what legal right Garcia stood to lose if final counsel were

to withdraw due to a conflict, the court made it clear that final

counsel was to act as Garcia’s legal counsel, not the court’s fact

finder.

¶ 24 Second, final counsel did confer with Garcia, including

obtaining Garcia’s explicit consent to represent him at the

sentencing phase. This is in contrast to the attorney in Breaman,

who didn’t speak with Breaman at all. Id. at 1351. And final

counsel presented Garcia’s motion to withdraw his guilty plea,

albeit orally, in contrast to the attorney in Breaman who simply

filed a status report detailing the attorney’s findings. Id. at 1350.

¶ 25 Moreover, final counsel clearly understood that she was being

appointed as Garcia’s counsel, and not as the court’s fact finder,

because she upheld her obligations to Garcia when she protected

the attorney-client privilege at a hearing, and when she made a

motion requesting Garcia’s fitness be evaluated again — for the

third time. See Colo. RPC 1.6.

11
¶ 26 Because the court didn’t limit the scope of final counsel’s

representation of Garcia, and because final counsel acted as

Garcia’s counsel and not as a fact finder for the court, we discern

no error in the court’s order appointing Garcia final counsel.

B. The Motion to Withdraw the Plea

¶ 27 Next, Garcia contends that the trial court erred by denying his

motion to withdraw his guilty plea because his motion was timely,

the prosecution wouldn’t have been prejudiced if the court had

granted the motion, and he had a fair and just reason for

withdrawing his plea. We disagree.

1. Standard of Review

¶ 28 A defendant must demonstrate a fair and just reason in order

to withdraw a guilty plea. People v. Chippewa, 751 P.2d 607, 609

(Colo. 1988). We review a denial of a motion to withdraw a guilty

plea for an abuse of discretion. Id. A trial court abuses its

discretion if its ruling is manifestly arbitrary or unreasonable, or if

it misapplies the law. People v. Burlingame, 2019 COA 17, ¶ 10.

2. Additional Facts

¶ 29 Final counsel argued that Garcia didn’t receive his discovery

until after he entered his guilty plea, and that once he received

12
discovery in his case, Garcia identified several “areas of reasonable

doubts.” When the court asked final counsel to clarify, she

responded:

Areas of reasonable doubt that Mr. Garcia has
identified is essentially a witness that saw two
individuals running from the scene shortly
after the accident.

Mr. Garcia has also identified another witness
that stated the wrong color of construction
vest, that of the person that was driving the
car.

Mr. Garcia also identified a witness that stated
that the victim in this case was driving about
[seventy] to [eighty] miles per hour very quickly
down the road. . . .

And, Your Honor, Mr. Garcia also identified
that some of the officer’s bodycam footage does
not show a complete interaction of that day,
and only does show Mr. Garcia once he is in
the . . . the ambulance, excuse me, not prior to
that.

¶ 30 The trial court rejected Garcia’s claim that he didn’t receive

discovery until after he pleaded guilty as not credible. The trial

court also referenced its extensive advisement to Garcia regarding

the implications of pleading guilty — and specifically the part where

Garcia stated he was satisfied with his counsel at the time. The

court concluded that, even if Garcia had intended to plead guilty

13
and withdraw that plea later, that wasn’t “a good and just reason

now to allow him to withdraw his guilty plea.” The court also

rejected Garcia’s claim that he had determined areas of doubt in the

discovery because Garcia was found behind the wheel of the van

after it had hit the house, was transported to the hospital via

ambulance, and admitted on camera that he was driving the van.

3. Analysis

¶ 31 Garcia argues that he had two fair and just reasons to

withdraw his guilty plea. First, he argues that he only entered the

guilty plea because his plea counsel promised he would investigate

certain aspects of the case and that if these investigations produced

any exculpatory evidence Garcia could then withdraw his guilty

plea. But his argument fails for two reasons.

¶ 32 First, the idea that Garcia could expect to plead guilty as a

method of buying more time to gather evidence contradicts the

terms of the plea agreement. Remember that prior to entering his

plea Garcia was explicitly advised by the court that by pleading

guilty he was abandoning any defenses he might have to the

charges — not buying time to discover such defenses. Because

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Garcia’s argument is contrary to the definition and purpose of a

plea bargain, we reject it.

¶ 33 Second, given the overwhelming nature of the evidence against

him, there was no real possibility that plea counsel would discover

any exculpatory evidence. Consider that Garcia was pulled from

the driver’s seat of the van by emergency medical services, and he

told police that he was the driver of the van on camera. It would

have served no purpose, for example, for plea counsel to have

investigated the GPS data for Garcia’s phone as he requested, since

all that would prove is that his phone was somewhere other than

the scene of the crash — not that Garcia wasn’t driving the van.

¶ 34 Garcia next argues that, once he received discovery, he found

several “areas of doubt” that provided him with a defense to the

charges. But these “areas of doubt” are either irrelevant or

insufficient to cast reasonable doubt on the evidence that he was

driving the van. For example, at the hearing Garcia alleged that

witnesses saw two people running from the scene of the accident,

that a witness testified that Garcia was wearing the wrong color

safety vest, and that the officer’s body camera footage was

incomplete. Garcia didn’t identify where in the record some of these

15
instances occurred or, more importantly, how they would prove he

was innocent even if he could prove them.

¶ 35 Because Garcia didn’t have a fair and just reason to withdraw

his guilty plea, we discern no error in the trial court’s denial of his

motion.

C. The Maximum Consecutive Sentence

¶ 36 Garcia contends that the court erred when it sentenced him to

serve the maximum number of years for both charges consecutively.

But we decline to address his argument because Garcia doesn’t

have the right to appeal his sentence on these grounds. § 18-1-

409(1), C.R.S. 2024 (“[I]f the sentence is within a range agreed upon

by the parties pursuant to a plea agreement, the defendant shall

not have the right of appellate review of the propriety of the

sentence.”); People v. Scofield, 74 P.3d 385, 387 (Colo. App. 2002)

(holding that section 18-1-409(1) bars review of sentence imposed

in the aggravated range where, as part of a plea agreement, “the

parties expressly agreed that defendant would be sentenced within

the aggravated sentencing range”).

¶ 37 At the sentencing hearing, the trial court confirmed the

possible sentencing ranges for both of his charges, including

16
possible fines, and asked Garcia if he understood those penalties.

Garcia replied, “Yes, I do, Your Honor.” The court confirmed his

desire to plead guilty just a moment later:

THE COURT: And that was my next question
was in light of the things we’ve talked about
this morning, do you feel that you’ve
understood what we’ve talked about this
morning?

THE DEFENDANT: I most certainly have, Your
Honor.

THE COURT: Okay. And in light of that
discussion, you still want to persist in this
plea?

THE DEFENDANT: Yes, I do.

¶ 38 Relying on People v. O’Dell, 53 P.3d 655, 657 (Colo. App.

2001), Garcia contends that because the plea agreement “left

sentencing open [to the court] and contained no stipulation as to

the sentence to be imposed,” section 18-1-409(1) doesn’t bar him

from challenging the propriety of the sentence on appeal. We

disagree.

¶ 39 In O’Dell, the division concluded that appellate review of a

sentence wasn’t barred because there the defendant was merely

advised of the sentencing range for the charge he pleaded to and

there was “no indication in the record that [the defendant’s] plea

17
agreement included any type of agreed sentencing range or cap.”

Id. That’s not the case here. Garcia’s plea agreement explicitly

provided that the court would impose a sentence in the presumptive

range of four to twelve years on the vehicular homicide conviction

and in the aggravated range of ten to thirty-two years on the first

degree extreme indifference assault conviction, and that the court

could impose sentence consecutively. Such a provision in a plea

agreement is adequate to bar appellate review under section 18-1-

409(1). See People v. Dobler, 2015 COA 25, ¶ 30 (“Because the

sentence imposed was ‘within a range agreed upon by the parties

pursuant to a plea agreement,’ defendant is precluded from

challenging the propriety of his sentence on appeal.” (first citing

§ 18-1-409(1); and then citing Scofield, 74 P.3d at 387)); Scofield, 74

P.3d at 387 (declining to apply O’Dell where the parties’ entered a

plea agreement providing that “defendant would be sentenced

within the aggravated sentencing range for” the offense to which he

was pleading guilty). This is true even when the sentencing range

agreed to by the parties doesn’t “confer a sentencing benefit or

concession on the defendant.” Scofield, 74 P.3d at 386-87.

18
¶ 40 Accordingly, since the trial court’s sentence was within the

range contemplated by Garcia’s plea agreement and explicitly

agreed to by Garcia, we decline to consider his appeal of the

sentence on these grounds.1

D. Proportionality

¶ 41 Last, Garcia contends that the court’s thirty-two-year sentence

for his first degree extreme indifference assault conviction is

disproportionate in violation of the Eighth Amendment to the

United States Constitution and article II of the Colorado

Constitution. We disagree.

1. Standard of Review

¶ 42 We review de novo whether a sentence is “grossly

disproportionate in violation of the Eighth Amendment to the U.S.

Constitution and article II, section 20 of the Colorado Constitution.”

1 Even if we were to review Garcia’s sentence for an abuse of

discretion, the trial court’s decision was within the sentencing
range contemplated by the legislature and the court supported its
decision with ample and adequate findings; thus we discern no
abuse of discretion. See People v. Herrera, 2014 COA 20, ¶ 16 (“We
review a trial court’s sentencing decision for an abuse of discretion.
A court abuses its discretion when its decision is manifestly
arbitrary, unreasonable, or unfair . . . .”) (citations omitted); People
v. Voth, 2013 CO 61, ¶ 15 (“A trial court necessarily abuses its
discretion if its ruling is based on an erroneous view of the law.”).

19
Wells-Yates v. People, 2019 CO 90M, ¶ 35. “It is ‘exceedingly rare’

for a sentence to be deemed so extreme that it is grossly

disproportionate to the crime.” Id. at ¶ 5 (quoting Harmelin v.

Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring in

part and concurring in the judgment)).

¶ 43 Relying on People v. Walker, 2022 COA 15, the People contend

that because Garcia never raised the issue of proportionality at

trial, we should review the claim for plain error. Garcia contends

we should decline to follow Walker because, he argues, the division

was incorrect in deciding that plain error applies to unpreserved

proportionality claims. But because we discern no error, we need

not resolve this conflict regarding the appropriate standard of

review. See People v. Carter, 2015 COA 24M-2, ¶ 29 (noting that

when a reviewing court discerns no error, it “need not decide

whether the plain error standard applies”).

¶ 44 In the first step of a proportionality review, the court “should

consider (1) the gravity or seriousness of the offense and (2) the

harshness of the penalty.” Wells-Yates, ¶ 7. If that consideration

gives rise to an inference of gross disproportionality, then the court

moves to the second step — comparing “the challenged sentence to

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sentences for other crimes in the same jurisdiction and sentences

for the same crime in other jurisdictions” — but if there is no

inference of disproportionality then the sentence must be upheld.

Id. Whether a sentence is parole eligible is relevant to its harshness

since “parole can reduce the actual period of confinement and

render the penalty less harsh.” Id. at ¶ 14.

2. Additional Facts

¶ 45 At the sentencing hearing, the trial court made findings before

it sentenced Garcia.

This — this is a very serious and aggravated
case for a lot of reasons, much of which has
been discussed by the Prosecution, but I’ll
highlight a few things.

This is a case where the driving behavior was
extraordinarily dangerous. . . . It sounds like
it was residential streets, during school hours,
school children present. I watched the videos
as part of the litigation in terms of what they
saw and how they were endangered. It was —
the rate of the car, the speed was obviously
very high going through traffic control devices
and stop signs and such. That alone is a very
serious and scary and dangerous behavior
aggravated by the fact that Mr. Garcia, you
were very, very drunk at the time.

....

There’s also this history, Mr. Garcia, with
respect to the four prior DUIs. And that’s, in

21
my view, have been — and one way to look at a
pattern a long time ago. Another way to look
at is you’ve got four chances to address these
behaviors. And I certainly know back when
you got those DUIs that there was
requirements for education, treatment, and
such. And the fact that you had this level of
intoxication and these behaviors so many
years afterwards tells me it was a lifelong
problem. . . .

So in terms — the purposes of sentencing is
obviously, rehabilitation is a very important
function. Mr. Garcia has had that opportunity
with the prior DUIs. And we’ve got this terrible
circumstance. The Court needs to consider a
punishment for an individual and this kind of
behavior warrants a substantial punishment.

The Court also needs to consider the
community at large. And the community at
large needs to understand two things.

One, that this sort of behavior is absolutely
unacceptable. And, two, there’s consequences
for that behavior if it happens. So there’s the
necessity of deterrence and community safety
as well.

¶ 46 The court imposed a sentence that included the possibility of

parole.

3. Analysis

¶ 47 A person commits assault in the first degree if “[u]nder

circumstances manifesting extreme indifference to the value of

human life, he knowingly engages in conduct which creates a grave

22
risk of death to another person, and thereby causes serious bodily

injury to any person.” § 18-3-202(1)(c), C.R.S. 2024.

¶ 48 Garcia argues that his crime of first degree extreme

indifference assault wasn’t grave or serious because (1) Garcia

didn’t mean to hurt anyone; (2) the accident was the result of

Garcia’s untreated alcoholism; and (3) the extent of S.P.’s injuries

aren’t known, S.P. was a willing passenger despite knowing that

Garcia was drunk, and S.P. didn’t participate in the sentencing

hearing. We disagree for three reasons.

¶ 49 First, regardless of Garcia’s intention to hurt anyone, he

pleaded guilty to “knowingly engaging in conduct so dangerous”

that it created a “grave risk of death” to another person. Garcia

knew he was speeding through residential streets, and by doing so

he was risking the lives of others. He didn’t have to intend to hurt

or kill another person in order to create the grave risk that someone

may be killed. Because Garcia’s doesn’t dispute that his culpability

was sufficient under statute to be guilty of first degree extreme

indifference assault, we reject his argument.

¶ 50 Second, while the accident might have been the result of

Garcia’s alcoholism, as the court pointed out, Garcia’s alcoholism

23
certainly wasn’t untreated. Garcia has three previous DUI

convictions, one in 1993, one in 2001, and one in 2003. The court

noted that Garcia would have been required to complete some

education and treatment requirements. Those previous DUIs

should have served as learning and treatment opportunities for

Garcia to address his alcoholism. Because Garcia was given three

chances previously to obtain treatment for his alcoholism, his

argument that the crash was the result of untreated alcoholism

isn’t borne out by the record and we reject it.

¶ 51 Third, Garcia’s arguments relating to his injured passenger,

S.P., confuse the results of the crash with the nature of the

behavior that led to the crash. Whether S.P.’s injury was serious,

whether he was a willing passenger, and whether or not he wanted

to participate in the sentencing hearing are questions largely

secondary to whether Garcia’s behavior was grave and serious.

a. The Crime Was Grave and Serious

¶ 52 The court’s findings show that Garcia’s behavior was grave

and serious. The court noted that Garcia sped through residential

neighborhoods and school zones during school hours, disregarded

traffic control devices and stop signs, and nearly hit several people.

24
And all of this behavior was after the initial crash, which Garcia

fled. The People also note that Garcia was travelling so fast that

half of the van was lodged inside of the house he collided with, and

the occupant of the home had minor injuries. And while we don’t

know the severity of S.P.’s injury, we do know that it was a

substantial injury — a cervical spine fracture. And Garcia was

very, very drunk. Four hours after the accident his blood alcohol

content was .243 — over three times the legal limit.

¶ 53 All of these findings support the conclusion that Garcia’s

conduct was grave and serious because, consistent with section 18-

3-202(1)(c), they created the undeniable risk that someone could be

killed.

b. The Sentence Isn’t Disproportionate

¶ 54 Having determined that Garcia committed a grave and serious

crime,2 we must determine if the sentence was so harsh as to give

rise to an inference of disproportionality. We determine that it

doesn’t, for two reasons. First, the sentence was within the range of

2 Because Garcia’s crime of first degree extreme indifference assault

is grave and serious as committed, we need not address whether
that charge is grave and serious per se.

25
sentences prescribed by the legislature, which are due great

deference in proportionality reviews. See People v. Kennedy, 2023

COA 83M, ¶ 15 (“[I]f a crime is grave or serious, and so long as the

penalty is within the statutory range, the sentence is nearly

impervious to attack” on an Eighth Amendment proportionality

review. (citing Wells-Yates, ¶ 62)) (cert. granted Aug. 5, 2024).

¶ 55 Second, the sentence is parole eligible — which means that

Garcia has the opportunity to be released before completing the full

thirty-two-year sentence. See Wells-Yates, ¶ 14. Additionally, the

trial court made it clear that the sentence was calculated to deter

future, similar behavior and thereby protect the community.

¶ 56 We discern no error in the trial court’s decision to sentence

Garcia to the maximum sentence allowed by statute for his

conviction for first degree extreme indifference assault.

III. Disposition

¶ 57 The judgment is affirmed.

JUDGE KUHN and JUDGE SCHUTZ concur.

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