v. Quezada-Caro , 2019 COA 155 ( 2019 )

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
October 17, 2019
2019COA155
No. 17CA0356, People v. Quezada-Caro — People v. Quezada-
Caro — Crimes — DUI — Prior Convictions; Regulation of
Vehicles and Traffic — Alcohol and Drug Offenses — Penalties
for Traffic Offenses Involving Alcohol and Drugs — Third and
Subsequent Offenses; Constitutional Law — Colorado
Constitution — Equal Protection
In this felony DUI case, a division of the court of appeals
agrees with the holding in People v. Gwinn, 2018 COA 130, that a
defendant is not entitled to have a jury determine beyond a
reasonable doubt the existence of the prior DUI convictions used to
enhance his or her sentence from a misdemeanor to a felony. The
division concludes that, based on the plain language of section 42-
4-1301(1)(a), C.R.S. 2019, proof of prior DUI convictions is a
sentence enhancer rather than an element of a felony DUI offense.
Further, as a matter of first impression, the division rejects the
defendant’s contention that, if prior convictions are considered a
sentence enhancer, section 42-4-1301(1)(a) violates his right to
equal protection because it proscribes the same conduct as section
42-4-1307(6), C.R.S. 2019, but exposes him to substantially greater
penalties. The division concludes that the statutes do not violate
the defendant’s right to equal protection because they proscribe
different conduct for which the legislature may impose different
penalties.
The division also finds that, although district courts have an
obligation to either correct a theory of defense instruction or
incorporate the substance of a theory of defense instruction into the
other jury instructions, that obligation only extends to tendered
theory of defense instructions. Because the defendant did not
tender an instruction that set forth a theory of defense, the district
court was not required to draft one on counsel’s behalf.
Accordingly, the division affirms the judgment of the district
court.
COLORADO COURT OF APPEALS 2019COA155
Court of Appeals No. 17CA0356
Arapahoe County District Court No. 15CR3137
Honorable Phillip L. Douglass, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Dolores Quezada-Caro,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II
Opinion by JUDGE BROWN
Dailey and Richman, JJ., concur
Announced October 17, 2019
Philip J. Weiser, Attorney General, Elizabeth Ford Milani, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Brian Cox, Deputy State Public
Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Dolores Quezada-Caro, appeals his judgment of
conviction for felony driving under the influence (DUI). Among
other things, he contends he was entitled to have a jury determine
beyond a reasonable doubt whether he had prior convictions for
impaired-driving offenses. If section 42-4-1301(1)(a), C.R.S. 2019,
is interpreted otherwise, he argues, it violates his right to equal
protection because it proscribes the same conduct as section 42-4-
1307(6), C.R.S. 2019, but carries harsher penalties.
¶2 Consistent with other divisions of this court, we conclude that
the felony DUI statute does not require prior convictions to be
proved to the jury beyond a reasonable doubt. And we reject
Quezada-Caro’s contention that section 42-4-1301(1)(a) violates his
right to equal protection. Because Quezada-Caro’s remaining
contentions also fail, we affirm.
I. Background
¶3 An officer with the Glendale Police Department was on patrol
at around 2:35 a.m. when he noticed a pickup truck parked in a
lane of traffic with its engine running and the lights on. When the
officer approached the truck, he found Quezada-Caro asleep in the
driver’s seat with vomit on his shirt and drool leaking from his
1
mouth. After several attempts, the officer was able to wake and
speak with Quezada-Caro.
¶4 The officer testified that, during the encounter, Quezada-
Caro’s eyes were bloodshot and watery, he had difficulty standing
and walking, and he smelled strongly of alcohol. Quezada-Caro told
the officer that he had been at a bar about 1.6 miles away and had
consumed three or four beers. Later, during the same conversation,
he admitted he actually had eight or more drinks that evening. The
officer arrested him.
¶5 At the police station, Quezada-Caro consented to a blood
draw, which showed his blood alcohol level was 0.207. Quezada-
Caro told the officer approximately fifty times that he did not care if
he had been driving drunk and that it was “no big deal.” The
prosecution charged Quezada-Caro with, as pertinent here, felony
DUI and DUI per se.
¶6 Prior to trial, Quezada-Caro moved for a ruling that prior
impaired-driving convictions are an element of a felony DUI charge
that must be proved to a jury beyond a reasonable doubt. The
district court disagreed, concluding that prior convictions are a
sentence enhancer, which it would determine after trial.
2
¶7 A jury convicted Quezada-Caro of both counts. At a separate
hearing, the district court found, beyond a reasonable doubt, that
Quezada-Caro had three prior Colorado DUI convictions and at
least two prior California DUI convictions. The district court
sentenced Quezada-Caro to six years in the custody of the
Department of Corrections, suspended upon the successful
completion of fifteen years of probation. Quezada-Caro now appeals
his felony DUI conviction.
II. Analysis
¶8 Quezada-Caro contends that (1) he was entitled to have a jury
determine beyond a reasonable doubt whether he had prior
convictions for impaired-driving offenses and (2) the district court
erred by failing to modify his tendered definitional instruction into a
theory of the case instruction. We disagree.
A. Prior DUI Convictions
¶9 Quezada-Caro contends the district court erred by treating his
prior impaired-driving convictions as a sentence enhancer rather
than as an element of the offense that had to be proved to the jury
beyond a reasonable doubt. Specifically, Quezada-Caro argues that
(1) the legislature intended proof of prior impaired-driving
3
convictions to be a substantive element of a felony DUI offense; (2)
we should not apply the prior conviction exception to the general
rule that any fact increasing a penalty beyond the statutory
maximum must be submitted to a jury and proved beyond a
reasonable doubt; and (3) treating prior convictions as a sentence
enhancer rather than an element of the offense violates his right to
equal protection. We reject each contention.
1. Prior Convictions Are a Sentence Enhancer for a DUI Offense
¶ 10 Whether a statutory provision is a sentence enhancer or a
substantive element of an offense is a question of law that we review
de novo. Lopez v. People, 113 P.3d 713, 720 (Colo. 2005); People v.
Gwinn, 2018 COA 130, ¶ 20. We interpret the plain language of a
statute to give full effect to the intent of the General Assembly.
People v. Griego, 2018 CO 5, ¶ 25. When the statutory language is
clear, we apply the plain and ordinary meaning of the provision. Id.In doing so, we give consistent, harmonious, and sensible effect to
each part of the statute, and we render no words or phrases
superfluous. Id.¶ 11 “A statutory provision is a sentence enhancer when the
defendant may be convicted of the underlying offense without any
4
proof of the prior conviction.” Gwinn, ¶ 44; see People v. Schreiber,
226 P.3d 1221, 1223 (Colo. App. 2009); People v. Whitley, 998 P.2d
31, 33 (Colo. App. 1999). In contrast, elements of a crime are the
“the legal components that are necessary to establish criminal
liability.” People v. Hopkins, 2013 COA 74, ¶ 8. Thus, a fact is a
sentence enhancer rather than a substantive element of an offense
if (1) a defendant may be convicted of the underlying offense
without any proof of the fact and (2) the fact merely increases the
defendant’s potential punishment. People v. Becker, 2014 COA 36,
¶ 11.
¶ 12 The felony DUI statute, section 42-4-1301(1)(a), provides that
“[a] person who drives a motor vehicle . . . under the influence of
alcohol . . . commits driving under the influence.” These are the
only elements that must be proved to convict a defendant of DUI.
See Gwinn, ¶ 49.
¶ 13 The statute continues:
Driving under the influence is a misdemeanor, but
it is a class 4 felony if the violation occurred after
three or more prior convictions, arising out of
separate and distinct criminal episodes, for DUI,
DUI per se, or [driving while ability impaired
(DWAI)]; vehicular homicide . . . ; vehicular
assault . . . ; or any combination thereof.
5
§ 42-4-1301(1)(a). Thus, as the division in Gwinn explained, a
defendant may be convicted of DUI without any proof of prior
convictions, and proof of prior convictions only increases the
potential punishment. See Gwinn, ¶¶ 44-49. Accordingly, the
statute unambiguously demonstrates that “the General Assembly
intended prior DUI convictions to constitute a sentence enhancer
rather than an element of DUI.” Id. at ¶ 49. We see no reason to
depart from this well-reasoned opinion.
¶ 14 Nevertheless, Quezada-Caro urges us to reject the division’s
holding in Gwinn, arguing that the statutory structure reveals that
the General Assembly intended prior convictions to be an element of
felony DUI rather than a sentence enhancer. We are not
persuaded.
¶ 15 First, Quezada-Caro contends that, by referencing prior
convictions in the same subsection as the elemental definition of
the crime, the General Assembly intended prior convictions to be an
element of the offense. See § 42-4-1301(1)(a). But the structure of
the statute does not change its plain language. And we know of no
authority or rule of statutory construction that would require a
6
sentence enhancer to be set off from the elements of an offense in a
separate subsection.
¶ 16 Although the elements of DUI and the prior conviction
sentence enhancer appear in the same statutory subsection, the
prior conviction language is in a separate sentence that follows the
substantive definition of the crime. See § 42-4-1301(1)(a). This
construction reflects a legislative intent to treat prior convictions
separately from the substantive elements or definition of the
offense. See Hopkins, ¶ 20 (rejecting argument that placing a prior
conviction provision in the same statutory subsection as an element
reflects legislative intent to treat a prior conviction as an element).
¶ 17 If the General Assembly intended to make prior convictions an
element of felony DUI, it could have done so. See Vensor v. People,
151 P.3d 1274, 1275 (Colo. 2007) (“[I]t is the prerogative of the
legislature to define crimes and prescribe punishments.”). Indeed,
the possession of a weapon by a prior offender (POWPO) statute is
one example of the General Assembly expressing in plain language
its intent that a prior conviction be an element of the offense. See
§ 18-12-108(1), C.R.S. 2019.
7
¶ 18 Based on the plain language of the POWPO statute, a
defendant cannot be convicted of POWPO without proof of a prior
felony conviction. See id. (“A person commits the crime of
possession of a weapon by a previous offender if the person
knowingly possesses, uses, or carries upon his or her person a
firearm . . . subsequent to the person’s conviction for a felony . . . .”)
(emphasis added). The prior conviction requirement is included in
the definition and is an element of the POWPO offense. People v.
Dist. Court, 953 P.2d 184, 189 (Colo. 1998) (stating that a prior
felony conviction is an element of POWPO offense).
¶ 19 In contrast, as explained above, a defendant may be convicted
of DUI without proof of a prior conviction. The prior conviction
requirement is not included in the definition and is not an element
of felony DUI. Therefore, contrary to Quezada-Caro’s contention,
the felony DUI statute is unlike the POWPO statute.
¶ 20 Second, Quezada-Caro contends that by referencing prior
convictions in the same section as the elements of DUI, rather than
in the separate DUI sentencing section, the General Assembly
intended that prior convictions be considered an element of the
offense. See § 42-4-1301(1)(a) (elements and prior convictions
8
sentence enhancer); see also §§ 18-1.3-401, 42-4-1307(6.5)
(presumptive penalties for felonies and penalties for felony DUI,
respectively). But, again, the structure of the statute does not
change its plain language. And, in other statutory schemes, the
General Assembly similarly placed a prior conviction sentence
enhancer in the same section as the elements of the offense, rather
than in a separate sentencing section. See, e.g., § 18-7-302, C.R.S.
2019 (elements of indecent exposure and prior conviction sentence
enhancer); see also §§ 18-1.3-401, 18-1.3-501, C.R.S. 2019
(presumptive penalties for felonies and misdemeanors, respectively);
Schreiber, 226 P.3d at 1223 (holding that prior convictions for
indecent exposure are a sentence enhancer). That the prior
conviction sentence enhancer appears in section 42-4-1301(1)(a)
rather than section 42-4-1307(6.5) does not mean the General
Assembly intended prior convictions to be an element of the offense.
¶ 21 Finally, relying on People v. Tafoya, 2019 CO 13, Quezada-
Caro contends that the DUI statute is ambiguous. In Tafoya, the
Colorado Supreme Court held that a defendant charged with felony
DUI was entitled to a preliminary hearing under the plain language
of section 16-5-301(1)(b)(II), C.R.S. 2019, and Crim. P. 7(h). Tafoya,
9
¶ 16. The court stated, “section 42-4-1301(1)(a) and its related
penalty provisions alternately accord the prior convictions qualities
of both elements of an offense and sentence enhancers.” Id. at
¶ 27. The court also acknowledged that section 42-4-1301(1)(a)
raises “difficult questions” regarding “whether a repeat DUI
offender’s prior convictions are elements of a felony DUI that must
be proved at trial.” Id. at ¶ 28 n.2.
¶ 22 But the court was clear to “express no opinion” on this
question, instead encouraging the legislature to address it. Id. 1
Ultimately, the court concluded, “regardless of whether [the
1The supreme court recently granted certiorari on the following
question:
Whether the court of appeals erred in
concluding that the portion of section 42-4-
1301, C.R.S. (2018), that elevates a
misdemeanor to a class four felony for driving
under the influence . . . after three or more
prior convictions for certain enumerated
offenses establishes a sentence enhancer and
not an element of the offense for purposes of
determining whether jury findings are
required.
Linnebur v. People, No. 18SC884, 2019 WL 3934483, at *1 (Colo.
Aug. 19, 2019) (unpublished order); see People v. Linnebur, (Colo.
App. No. 16CA2133, Nov. 8, 2018) (not published pursuant to
C.A.R. 35(e)).
10
defendant’s] prior convictions could be deemed sentence enhancers,
the prosecution ‘accused’ [the defendant] of committing a class four
felony DUI” and she was entitled to a preliminary hearing. Id. at ¶
27 (emphasis added).
¶ 23 The dicta in Tafoya does not change our analysis here, which
is based on the plain language of the statute. The court’s
statements are not binding on us, nor do they require a finding that
the DUI statutes are ambiguous. See Main Elec., Ltd. v. Printz
Servs. Corp., 980 P.2d 522, 526 n.2 (Colo. 1999) (stating dictum is
not controlling precedent). In reaching its conclusion, the court did
not decide whether prior convictions were an element or a sentence
enhancer under the DUI statute and did not address the division’s
holding in Gwinn. Rather, the court’s limited holding turned on the
fact that the defendant was entitled to additional procedural
protections because she had been charged with a class 4 felony.
11
¶ 24 Based on the plain language of the statute, we conclude that
prior DUI convictions are a sentence enhancer rather than an
element of felony DUI. 2
2. Prior Convictions are Blakely-Exempt Facts Appropriately
Decided by a Judge
¶ 25 Quezada-Caro next contends that, even if prior convictions are
a sentence enhancer, we should still require that they be proved to
a jury beyond a reasonable doubt because (1) the prior conviction
exception is unsound and should be rejected by this court and (2)
they transform a misdemeanor into a felony.
¶ 26 “Generally, any fact, other than the fact of a prior conviction,
that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury and proved beyond
a reasonable doubt.” Gwinn, ¶ 45 (emphasis added); see Blakely v.
Washington, 542 U.S. 296, 303 (2004); Apprendi v. New Jersey, 530
U.S. 466, 490 (2000); Lopez, 113 P.3d at 723. In other words, proof
of prior convictions are “Blakely-exempt” facts that sentencing
2 Because our conclusion rests on the unambiguous language of the
statute, we need not consider Quezada-Caro’s legislative history or
lenity arguments. See Candelaria v. People, 2013 CO 47, ¶ 12
(stating rule that when the statutory language is clear, appellate
courts do not resort to other rules of statutory construction).
12
judges consider without further jury involvement. Lopez, 113 P.3d
at 723; see also Becker, ¶ 9 (“When a prior conviction serves as a
sentence enhancer rather than as an element of a substantive
crime, the court — not the jury — decides the prior conviction
question.”); Schreiber, 226 P.3d at 1223 (“[T]he court decides this
sentence enhancer because . . . a defendant ‘has no constitutional
right to a jury trial to determine whether he has a prior conviction.’”
(quoting People v. French, 165 P.3d 836, 841 (Colo. App. 2007))).
And while “there is some doubt about the continued vitality of the
prior conviction exception,” Lopez, 113 P.3d at 723, it remains
valid. See Misenhelter v. People, 234 P.3d 657, 660 (Colo. 2010)
(“[T]he [Supreme] Court has now firmly established that the fact of a
prior conviction is specifically exempted and need not be proven to
a jury beyond a reasonable doubt.”); People v. Huber, 139 P.3d 628,
631 (Colo. 2006) (declining to readdress the validity of the prior
conviction exception absent new legal developments).
¶ 27 Even so, Quezada-Caro contends that the prior conviction
exception should not apply where, as here, proof of prior
convictions transforms a misdemeanor into a felony because (1)
felonies carry significantly greater collateral consequences and (2)
13
misdemeanors are not subject to the same procedural protections
that attach to felonies.
¶ 28 We recognize “that the consequences of transforming a
misdemeanor offense into a felony offense involve more than simply
increasing the punishment and that critical constitutional and
statutory protections attend felony charges.” Gwinn, ¶ 52; see also
Schreiber, 226 P.3d at 1225 (Bernard, J., concurring in part and
dissenting in part) (acknowledging “there are substantial differences
between misdemeanors and felonies beyond the prospect of a longer
sentence in a county jail if one is convicted of a felony”). However,
we are aware of no authority holding that the severity of collateral
consequences affects whether prior convictions are Blakely-exempt
facts. See, e.g., Gwinn, ¶¶ 51-54; Schreiber, 226 P.3d at 1223(stating that other state courts that have addressed the collateral
consequences argument still treat prior convictions as Blakely-
exempt facts (citing State v. Palmer, 189 P.3d 69, 76 (Utah Ct. App.
2008) (collecting cases))). 3 Rather, prior convictions are Blakely-
3Quezada-Caro cites United States v. Rodriguez-Gonzales, 358 F.3d
1156, 1160 (9th Cir. 2004), for the proposition that the prior
conviction exception should not apply when the prior conviction
14
exempt facts because they have already been determined by a jury
beyond a reasonable doubt or admitted by a defendant in a knowing
and voluntary plea agreement. Lopez, 113 P.3d at 730.
¶ 29 And, that Quezada-Caro’s prior convictions were
misdemeanors does not preclude applicability of the prior
conviction exception. Quezada-Caro does not contend that his prior
misdemeanor proceedings were constitutionally flawed.
Accordingly, Quezada-Caro’s Sixth Amendment rights were
protected because his prior convictions were established through
adequate procedures. See id. A sentencing judge “no more has to
find additional facts when the defendant’s prior conviction is for a
misdemeanor than when it is for a felony.” Huber, 139 P.3d at 632
(finding a judge could enhance the defendant’s sentence based on
previous misdemeanors if the prior convictions arose from
procedures that satisfy the Sixth and Fourteenth Amendments).
transforms a misdemeanor into a felony. However, that case is
readily distinguishable because the Ninth Circuit had previously
determined that prior convictions were an element of the offense at
issue in that case. Id. In contrast, we have determined that prior
convictions are not an element of felony DUI.
15
¶ 30 Likewise, Colorado’s felony DUI statute provides a defendant
adequate constitutional and procedural protection. Section 42-4-
1301 requires the prosecution to set forth a felony DUI charge and
identify the previous impaired-driving convictions in an “indictment
or information.” Gwinn, ¶ 53. And the felony DUI prosecution
occurs in district court where heightened protections exist. Id.
Here, the record demonstrates that Quezada-Caro received felony
protections before his felony DUI conviction. 4
¶ 31 We conclude that the district court properly decided Quezada-
Caro’s prior convictions as Blakely-exempt facts rather than
requiring that they be submitted to the jury as a substantive
element of the offense.
3. The Felony DUI Statute Does Not Violate Quezada-Caro’s Right
to Equal Protection
¶ 32 Finally, for the first time on appeal, Quezada-Caro contends
that, if prior convictions are considered a sentence enhancer,
section 42-4-1301(1)(a) violates his right to equal protection
4 Quezada-Caro argues that, under the Colorado Constitution, he
had a right to be tried to a jury of twelve before being convicted of a
felony. Because he was, in fact, tried to a jury of twelve, we reject
this argument.
16
because it proscribes the same conduct as section 42-4-1307(6) but
exposes him to substantially greater penalties.5 Because the
statutes proscribe different conduct, for which the legislature may
impose different penalties, we reject Quezada-Caro’s equal
protection argument.
¶ 33 The constitutionality of a statute is a question of law that we
review de novo. Dean v. People, 2016 CO 14, ¶ 8. A statute is
presumed to be constitutional, and the challenging party bears the
burden of proving its unconstitutionality beyond a reasonable
doubt. Id.5 The prosecution argues that we should decline to address this
unpreserved constitutional challenge. Quezada-Caro contends that
he is not challenging the constitutionality of the felony DUI statute,
but instead arguing that we should apply the doctrine of
constitutional avoidance in interpreting the statutory language.
Because we have concluded the statute is unambiguous, we need
not resort to rules of construction such as constitutional avoidance.
People in Interest of T.B., 2019 CO 53, ¶ 34. Still, in the interests of
judicial economy and efficiency, we exercise our discretion to
evaluate whether the plain language of the felony DUI statute
violates Quezada-Caro’s right to equal protection. See People v.
Houser, 2013 COA 11, ¶ 35 (concluding that an appellate court
may, as a matter of discretion, take up an unpreserved
constitutional challenge when doing so would further judicial
economy).
17
¶ 34 “Equal protection of the laws is guaranteed by the fourteenth
amendment of the United States Constitution and by the due
process clause in article II, section 25, of the Colorado
Constitution.” People v. Alexander, 797 P.2d 1250, 1255 (Colo.
1990) (quoting People v. Rickstrew, 775 P.2d 570, 574 (Colo. 1989)).
Under the Colorado Constitution, “equal protection of the laws
requires that statutory classifications of crimes be based on
differences that are real in fact and reasonably related to the
general purposes of criminal legislation.” People v. Marcy, 628 P.2d
69, 74 (Colo. 1981). Thus, equal protection is not violated if the
legislative classification is not arbitrary or unreasonable, and the
differences in the statutes bear a reasonable relationship to the
public policy to be achieved. Dean, ¶ 16. But, equal protection is
violated where two criminal statutes proscribe identical conduct, yet
one punishes that conduct more harshly. Id. at ¶ 14.
¶ 35 Quezada-Caro contends that, for a fourth or subsequent
impaired-driving offense, a defendant could be charged with either a
felony or a misdemeanor and both offenses would require only that
(1) a jury find the defendant drove under the influence of alcohol
and (2) the court find three or more prior convictions. In other
18
words, for identical conduct, a defendant could be charged with
either a felony or a misdemeanor based solely on the prosecution’s
charging decision. And, because felony DUI carries harsher
penalties, such disparate treatment of persons engaging in the
same conduct violates their right to equal protection. We disagree.
¶ 36 Section 42-4-1307(6) is the penalty provision generally
applicable when a defendant is found guilty of a third or
subsequent impaired-driving offense. Before 2015, the statute
applied to any person who was “convicted of DUI, DUI per se, or
DWAI who, at the time of sentencing, [also] has two or more prior
convictions” for one or any combination of seven specific offenses:
(1) DUI; (2) DUI per se; (3) DWAI; (4) vehicular homicide; (5)
vehicular assault; (6) aggravated driving with a revoked license; or
(7) driving while the person’s driver’s license was under restraint.
§ 42-4-1307(6), C.R.S. 2014.
¶ 37 In 2015, the General Assembly amended the DUI statute to,
among other things, increase penalties for certain repeat DUI
offenders. See Ch. 262, sec. 1, § 42-4-1301, 2015 Colo. Sess. Laws
990-91. Under the new provision, a defendant found guilty of DUI
commits a class 4 felony, rather than a misdemeanor,
19
if the violation occurred after three or more
prior convictions, arising out of separate and
distinct criminal episodes, for DUI, DUI per se,
or DWAI; vehicular homicide, as described in
section 18-3-106(1)(b), C.R.S.; vehicular
assault, as described in section 18-3-205(1)(b),
C.R.S.; or any combination thereof.
§ 42-4-1301(1)(a); see also § 42-4-1301(1)(b) (DWAI); § 42-4-
1301(2)(a) (DUI per se). Notably, this provision does not include
aggravated driving with a revoked license or driving while under
restraint in the types of prior convictions that give rise to felony
DUI. Compare § 42-4-1301(1)(a), with § 42-4-1307(6). Also, the
three or more prior convictions on which a felony-level offense can
be based must “aris[e] out of separate and distinct criminal
episodes.” § 42-4-1301(1)(a), (1)(b), (2)(a).
¶ 38 At the same time, the General Assembly amended section 42-
4-1307(6), limiting its application to third or subsequent impaired-
driving offenses, “[e]xcept as provided in section 42-4-1301(1)(a),
(1)(b), and (2)(a) . . . .” See Ch. 262, sec. 2, § 42-4-1307(6), 2015
Colo. Sess. Laws 993.
¶ 39 Thus, for a defendant’s fourth offense, a DUI conviction
becomes a class 4 felony subject to the penalties described in
sections 18-1.3-401 and 42-4-1307(6.5), rather than a
20
misdemeanor subject to the penalties described in section 42-4-
1307(6), when the defendant has three prior convictions for DUI,
DUI per se, DWAI, vehicular homicide, or vehicular assault. In
contrast, for a defendant’s fourth offense, a DUI conviction remains
a misdemeanor if (1) the defendant has up to two prior convictions
for DUI, DUI per se, DWAI, vehicular homicide, or vehicular assault;
and (2) one or more convictions for aggravated driving with a
revoked license or driving under restraint, for a total of three prior
convictions. This is because a felony DUI charge cannot be based
on prior convictions for the latter two offenses. Compare § 42-4-
1301(1)(a), (1)(b), (2)(a), with § 42-4-1307(6).
¶ 40 Thus, once a defendant collects three or more convictions for
DUI, DUI per se, DWAI, vehicular homicide, or vehicular assault,
section 42-4-1307(6) no longer provides the penalties for
subsequent impaired-driving offenses; instead, sections 18-1.3-401
and 42-4-1307(6.5) apply. Because different conduct gives rise to
different penalties, we conclude that the DUI statutes do not violate
Quezada-Caro’s right to equal protection.
¶ 41 Furthermore, the distinction between the conduct falling
under the misdemeanor and felony DUI provisions is not arbitrary
21
and the differences in the provisions bear a reasonable relationship
to the public policy to be achieved. It is well settled that “the
General Assembly has the prerogative to establish the penalties for
criminal offenses and is entitled to establish more severe penalties
for acts it believes have greater social impact and graver
consequences.” Dean, ¶ 16. Here, the DUI statutes target repeat
offenders and impose punishments that increase with the number
and severity of the prior offenses. It is reasonable for the General
Assembly to find that defendants with three or more prior DUI
offenses pose a greater societal risk and should be charged with a
felony offense. It is likewise reasonable for the General Assembly to
differentiate between the risks associated with the prior convictions
giving rise to a DUI felony offense and those giving rise to a
misdemeanor.
¶ 42 Therefore, we conclude that Quezada-Caro’s equal protection
rights were not violated when the district court treated his prior DUI
convictions as a sentence enhancer rather than an element of the
offense.
22
B. Jury Instructions
¶ 43 Quezada-Caro contends that the district court erred when it
failed to construe the instruction he tendered on the definition of
“drove” as a theory of defense instruction.6 We reject this
contention.
¶ 44 A defendant is entitled to a jury instruction encompassing his
theory of the case provided evidence in the record supports the
instruction. People v. Bruno, 2014 COA 158, ¶ 18. We review de
novo whether the defendant has met this burden. People v. Green,
2012 COA 68M, ¶ 14.
¶ 45 A theory of defense instruction is general and brief, and must
explain the evidence and its legal effect. Bruno, ¶ 19. A trial court
may refuse to give an instruction that is “argumentative, contains
errors of law, merely reiterates portions of the evidence, or is
encompassed within the other instructions.” Id. (quoting People v.
Lee, 30 P.3d 686, 689 (Colo. App. 2000)). But a trial court has an
6 The parties disagree as to whether this error was preserved
because Quezada-Caro did not tender a theory of defense
instruction or ask the district court to help craft a theory of defense
instruction based on the definition of “drove.” Because we perceive
no error, we need not resolve this dispute.
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obligation to cooperate with counsel to either correct a tendered
theory of defense instruction or incorporate the substance of such
instruction into an instruction drafted by the court. Id.¶ 46 At trial, the prosecution and Quezada-Caro tendered proposed
instructions defining “drove” under the DUI statute. See § 42-4-
1301. Both proposed instructions listed factors for the jury to
consider when deciding whether Quezada-Caro had been driving a
motor vehicle the night of his arrest. The prosecution objected to
Quezada-Caro’s tendered instruction.
¶ 47 At the close of evidence, the district court used the
prosecution’s proposed definition of “drove,” stating that “it’s a
correct statement of the law.” The court reasoned that the
prosecution’s instruction “gives more of a generic description of
what it constitutes to drive,” while Quezada-Caro’s instruction “is
basically their argument in the case.” The court concluded that it
did not “want to include as an instruction on the law a Defense
argument.”
¶ 48 Defense counsel did not argue that the definitional instruction
should be used as a theory of defense instruction or propose an
additional instruction reflecting his theory of the case. Nonetheless,
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relying on People v. Nunez, 841 P.2d 261 (Colo. 1992), Quezada-
Caro argues the district court erred by failing to recognize the
definitional instruction as a theory of defense instruction and by
not working with counsel to modify it and present it to the jury.
¶ 49 In Nunez, the trial court refused to give the defendant’s
tendered alibi defense instruction, which improperly suggested that
alibi was an affirmative defense. Id. at 263. The Colorado Supreme
Court concluded the trial court properly denied the instruction as
inconsistent with Colorado law. Id. at 264. Nevertheless, the court
held that the trial court erred by failing to correct the defendant’s
tendered instruction or incorporate the substance of the instruction
into one drafted by the court. Id. at 266.
¶ 50 But Quezada-Caro’s reliance on Nunez is misplaced. Nunez
does not stand for the proposition that a trial court has an
affirmative obligation to transform any tendered instruction into a
theory of defense instruction. Rather, a court’s obligation is limited
to either correcting a tendered theory of defense instruction or
incorporating the substance of a tendered theory of defense
instruction into the other jury instructions. Id.; Bruno, ¶ 19.
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¶ 51 Here, unlike the alibi instruction in Nunez, Quezada-Caro’s
tendered instruction did not set forth a theory of defense; it
explained a term used in an elemental instruction. Because
Quezada-Caro did not submit an instruction that set forth a theory
of defense, the district court was not required to draft one on
counsel’s behalf. We perceive no error.
III. Conclusion
¶ 52 The judgment is affirmed.
JUDGE DAILEY and JUDGE RICHMAN concur.
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