Peo v. Chavira

23CA0389 Peo v Chavira 07-25-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0389

Pueblo County District Court No. 22CR566

Honorable Allison P. Ernst, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Joshua Lee Chavira,

Defendant-Appellant.

SENTENCE REVERSED AND CASE REMANDED WITH DIRECTIONS

Division I

Opinion by JUDGE SCHOCK

J. Jones and Welling, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 25, 2024

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Julieanne Farchione, Deputy

State Public Defender, Denver, Colorado, for Defendant-Appellant

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¶ 1 Defendant, Joshua Lee Chavira, appeals his aggravated seven-

year sentence for vehicular homicide. Because we conclude that

Chavira’s sentence violates his Sixth Amendment right to a jury

trial, as applied in Blakely v. Washington, 542 U.S. 296 (2004), we

reverse and remand the case to the district court for resentencing.

I. Background

¶ 2 Chavira pleaded guilty to one count of vehicular homicide after

he hit another vehicle from behind, killing the other driver. In

exchange for Chavira’s guilty plea, the People dismissed four other

counts. The plea agreement explained that the presumptive

sentencing range for the offense of conviction was two to six years

in prison but that “[i]f the Court finds the presence of one or more

extraordinary aggravating circumstances, the maximum term of

imprisonment could be twelve years.” The only sentencing

stipulation was that Chavira could not receive probation.

¶ 3 The probation department prepared an assessment summary

report (ASR) in advance of sentencing. The ASR identified several

prior driving-related misdemeanor convictions:

• June 18, 2021: driving after revocation prohibited

(habitual traffic offender);

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• December 20, 2017: driving after revocation prohibited

(habitual traffic offender);

• October 28, 2015: driving under restraint, alcohol-

related;

• August 22, 2015: driving under restraint, alcohol-related;

• February 2, 2011: driving under restraint, alcohol-

related; and

• August 23, 2005: driving while ability impaired (DWAI)

(and possession of drug paraphernalia).

¶ 4 The ASR also identified three non-driving-related prior

convictions: attempted second degree assault on a peace officer in

October 2018 (class 5 felony); attempted theft of $750-$2,000 in

January 2018 (class 2 misdemeanor); and distribution of marijuana

concentrate in February 2017 (level 1 drug misdemeanor).

¶ 5 At sentencing, the prosecutor requested that the district court

find extraordinary aggravating circumstances and impose the

maximum aggravated sentence of twelve years in prison. See § 18-

1.3-401(6), (7), C.R.S. 2023. He based this request on three factors:

the “extraordinary, aggravating circumstances” of the case,

Chavira’s criminal history, and Chavira’s statements in the ASR.

3

¶ 6 First, the prosecutor argued that the facts of the case justified

an aggravated sentence because Chavira dragged the other vehicle

hundreds of feet after hitting it, did not stop and render aid, fled the

scene, told officers he was carjacked, and avoided police contact

until he was arrested a month later. Second, he argued

Mr. Chavira’s criminal history justifies an

aggravated sentence. Mr. Chavira has not had

a valid driver’s license since 2005. Since

2005, he has picked up two convictions, three

[driving under restraint] convictions, and then

this case.

The prosecutor also mentioned Chavira’s felony conviction for

attempted assault on a peace officer and noted that the current

offense occurred within six months of his discharge from parole in

that case. Third, the prosecutor cited Chavira’s frequent

contradictions and minimization of his actions in the ASR.

¶ 7 Chavira’s counsel opposed the aggravated sentence and

argued for a sentence in the presumptive range of two to six years.

She acknowledged that “the Court can discretionarily aggravate,”

but she asserted that the parties had negotiated the plea based on

the presumptive range. She further argued that the court could not

rely on the facts of the offense to aggravate Chavira’s sentence and

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noted that, although Chavira had prior driving violations, none

resulted in injury to another person. She thus argued that Chavira

was not “eligible for an aggravated sentence under the law.”

¶ 8 The district court sentenced Chavira to an aggravated

sentence of seven years in prison. The court explained:

[I]n terms of the aggravators, the Court can

sentence in the discretionary aggravators. I

think the aggravators are — the aggravation

argument by the District Attorney, I think, is

well taken. I — my concern is that you haven’t

had a driver’s license since 2005, and didn’t

bother to get one. And your mother lent you

her car, and you — this is sort of what

happened, ends up happening.

Honestly, my concern was with this idea that

this would have happened regardless, and I

just — I can’t really get around that. And

maybe it would have happened, but had you

not been speeding, perhaps, [the victim] would

still be with us today.

The Court is going to find the Defendant’s

statements, the fact that it was just an

accident, the — he fled the scene, and just for

the record, this is not because he had set this

matter for trial. He has every right to set this

for trial. Because he fled the scene that was a

Class 3 felony, leaving the scene of that

accident involving death. The Court will

aggravate the sentence to seven years . . . .

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II. Blakely Challenge

¶ 9 Chavira contends that the district court violated his right to a

jury trial by imposing an aggravated sentence based on facts not

found by a jury or otherwise permitted under Blakely. We agree.

A. Preservation

¶ 10 The parties disagree as to whether Chavira preserved his

Blakely challenge. Chavira asserts that his attorney preserved the

issue by arguing that (1) the court could not aggravate the sentence

based on the facts of the crime itself, and (2) the available

sentencing range was the presumptive range of two to six years.

¶ 11 But as the People point out, Chavira’s counsel did not ground

either of these objections in the constitutional right to a jury trial.

See Martinez v. People, 244 P.3d 135, 140 (Colo. 2010) (holding that

objection must be “sufficiently specific to call the attention of the

trial court” to the potential constitutional error); People v. Banark,

155 P.3d 609, 611 (Colo. App. 2007) (expressing doubt that the

defendant preserved a Blakely challenge where counsel “did not

mention Blakely, Apprendi [v. New Jersey, 530 U.S. 466 (2000)], or,

more generally, defendant’s right to have a jury decide the facts

upon which the court relied in aggravating defendant’s sentence”).

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¶ 12 Nor did Chavira’s counsel argue that the court could not find

the aggravating circumstances. To the contrary, she explicitly

agreed that the court could “discretionarily aggravate.” She just

argued that it shouldn’t. Thus, Chavira did not preserve his

Blakely challenge. See People v. Sandoval, 2016 COA 19, ¶ 11

(Sandoval I) (rejecting argument that “[mere] mention of aggravation

implies that defense counsel was raising a Blakely issue about the

length of the sentence”), aff’d, 2018 CO 21 (Sandoval II).

1

¶ 13 We review unpreserved Blakely arguments for plain error.

Sandoval II, ¶ 11; see Banark, 155 P.3d at 611. Chavira argues

otherwise. He asserts that a Blakely challenge is a Crim. P. 35(a)

illegal manner claim that need not be preserved. See Fransua v.

People, 2019 CO 96, ¶ 13. But a Blakely claim is cognizable under

Crim. P. 35(c), not Crim. P. 35(a). People v. Collier, 151 P.3d 668,

671 (Colo. App. 2006); see also People v. Wenzinger, 155 P.3d 415,

418-19 (Colo. App. 2006) (holding that a Blakely claim is not

cognizable as an “illegal sentence” claim); Crim. P. 35(c)(2)(I)

1

The People do not argue that Chavira waived this argument.

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(providing for relief where sentence was imposed “in violation of the

Constitution or laws of the United States”).

¶ 14 We therefore review Chavira’s Blakely argument for plain

error. Plain error is error that is “obvious and substantial” and that

“undermined the fundamental fairness of the [proceeding] so as to

cast serious doubt on the reliability of the judgment.” Sandoval II,

¶ 11 (citations omitted). We review de novo whether the sentence

violated Blakely. Lopez v. People, 113 P.3d 713, 720 (Colo. 2005).

B. Legal Standard

¶ 15 Other than the fact of a prior conviction, any fact that

increases the maximum sentence for a crime must be submitted to

a jury and proved beyond a reasonable doubt (or admitted by the

defendant). Blakely, 542 U.S. at 301; Erlinger v. United States, 602

U.S. ___, ___, 144 S. Ct. 1840, 1851, 1853 (2024). This means that

an aggravated sentence must be based on one of four kinds of facts:

(1) facts found by a jury beyond a reasonable doubt; (2) facts

admitted by the defendant; (3) facts found by a judge after the

defendant stipulates to judicial factfinding for sentencing purposes;

or (4) the fact of a prior conviction. Mountjoy v. People, 2018 CO

92M, ¶ 15. The “prior conviction” exception allows the sentencing

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judge to “do no more . . . than determine what crime, with what

elements, the defendant was convicted of.” Erlinger, 602 U.S. at

___, 144 S. Ct. at 1854 (citation omitted).

¶ 16 To impose an aggravated sentence, a district court must make

“specific findings on the record . . . detailing the specific

extraordinary circumstances” that warrant a sentence above the

presumptive range. § 18-1.3-401(7). In doing so, the court must

rely on “facts outside of the elements of the crime itself.” Mountjoy,

¶ 13. At least one of those facts must comply with Blakely or fall

within the “prior conviction” exception. Id. at ¶¶ 15, 29.

2

C. Analysis

¶ 17 The district court’s explanation of its aggravated sentence

identifies four potential aggravating circumstances: (1) Chavira had

not had a driver’s license since 2005 and did not bother to get one;

2

Chavira contends that Mountjoy v. People, 2018 CO 92M, was

wrongly decided, and he urges us to “decline to follow” it, insofar as

it held that a judge may find that specific facts constitute the

“extraordinary aggravating circumstances” necessary to impose an

aggravated sentence. Id. at ¶¶ 17-19. But in so arguing, Chavira

relies on the same United States Supreme Court case law that

Mountjoy considered in rejecting the same argument. See id. at

¶ 19 (concluding that defendant’s reliance on United States v.

Gaudin, 515 U.S. 506 (1995), “is misplaced”). We are bound by

Mountjoy. See People v. Melendez, 2024 COA 21M, ¶ 19.

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(2) Chavira’s mother lent him the car; (3) Chavira indicated in his

ASR interview that “this would have happened regardless”; and

(4) Chavira fled the scene of the accident. The People do not

dispute that the last three of these facts do not satisfy Blakely. See

People v. McAfee, 160 P.3d 277, 282 (Colo. App. 2007) (holding that

admissions in presentence report or elsewhere in the record do not

qualify as an “admitted fact” absent a knowing, voluntary, and

intelligent waiver of the defendant’s Blakely rights). But they argue

that the court’s reliance on Chavira’s lack of a driver’s license was

permissible under the “prior conviction” exception. We disagree.

¶ 18 Initially, the People are correct that the district court could

have relied on Chavira’s prior convictions to aggravate his sentence.

See People v. Kirby, 2024 COA 20, ¶ 59. But we disagree that the

court did so. In imposing the aggravated sentence, the district

court did not once mention Chavira’s prior convictions or criminal

history. Sandoval II, ¶ 14 (concluding district court erred under

Blakely where it “never mentioned prior convictions as a basis for

its sentence”). Although the prosecution in its argument had cited

both Chavira’s criminal history and his lack of a valid driver’s

license since 2005, the district court only mentioned the latter.

10

¶ 19 The People nevertheless argue that the district court must

have relied on Chavira’s prior convictions because it found the

prosecution’s argument — which had identified Chavira’s criminal

history as an aggravated circumstance — “well taken.” They further

assert that the court’s mention of Chavira’s lack of a valid driver’s

license for years was “clearly referencing” the prior convictions.

¶ 20 But a district court must make “specific findings” as to the

extraordinary circumstances on which it relies. § 18-1.3-401(7).

And right after saying the prosecution’s argument was “well taken,”

the court did just that, omitting any reference to prior convictions.

We cannot infer that the court relied on Chavira’s prior convictions

simply because the prosecution argued them — particularly when

the court said what it was relying on. See People v. Elie, 148 P.3d

359, 366 (Colo. App. 2006) (declining to “infer that, because the

trial court noted defendant’s prior convictions, it necessarily

considered them to be an extraordinary aggravating circumstance”).

¶ 21 Nor is Chavira’s lack of a driver’s license since 2005 an

element of his prior convictions. See Erlinger, 602 U.S. at ___, 144

S. Ct. at 1854 (noting that the “prior conviction” exception includes

the elements of that conviction); Mountjoy, ¶ 16 (“One type of

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Blakely-compliant fact includes facts that constitute an element of

a crime of conviction . . . .”). Chavira’s prior convictions for driving

under restraint and driving after revocation establish that he did

not have a valid license at the time of those offenses — in February

2011, August 2015, October 2015, December 2017, and June 2021.

See § 42-2-206(1)(a)(I), C.R.S. 2023; § 42-2-138(1)(d)(I), C.R.S.

2023. The district court therefore could have permissibly relied on

Chavira’s lack of a valid license at those snapshots in time. See

Erlinger, 602 U.S. at ___, 144 S. Ct. at 1854. But nothing in the

elements of Chavira’s prior convictions conclusively established, as

the district court found, that he had not had a driver’s license for

the entire period since 2005.

¶ 22 We recognize that this is a formalistic way of looking at

Chavira’s serial prior convictions. It would be reasonable to infer

that, at least since his first driving under restraint conviction in

2011, and likely since his DWAI conviction in 2005, Chavira has

not had a valid license. But the constitutional right to a jury trial

does not give way when the inquiry is straightforward. Id. at ___,

144 S. Ct. at 1856. A defendant has a right to have a jury “resolve

unanimously even seemingly straightforward factual questions

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under a daunting reasonable doubt standard.” Id. at ___, 144 S. Ct.

at 1860. To determine that Chavira had not had a driver’s license

since 2005, “the district court had to do more than identify his

previous convictions and the legal elements required to sustain

them.” Id. at ___, 144 S. Ct. at 1854. It had to fill in the gaps

between those convictions. Clear-cut or not, the status of Chavira’s

license during those gaps has not “passed through the safeguards

of [a jury trial] or plea proceedings.” Lopez, 113 P.3d at 730.

¶ 23 We note that, in Lopez, the Colorado Supreme Court used the

somewhat more expansive phrase “facts regarding prior convictions”

to refer to Blakely’s prior conviction exception. Id. at 716. And a

handful of Colorado cases have followed suit, relying on that more

expansive phrase to extend the exception to facts that are

“inextricably linked” to a prior conviction, such as a defendant’s

parole or probationary status. People v. Montoya, 141 P.3d 916,

922-23 (Colo. App. 2006); see also People v. Huber, 139 P.3d 628,

633 (Colo. 2006); People v. Hines, 2021 COA 45, ¶¶ 63-65.

¶ 24 To the extent Lopez’s articulation of the prior conviction

exception allows a sentencing court to consider facts beyond “what

crime, with what elements, the defendant was convicted of,” we

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question whether it survives the United States Supreme Court’s

more recent delineation of the limits of the exception. Erlinger, 602

U.S. at ___, 144 S. Ct. at 1854 (citation omitted); see also Mountjoy,

¶ 15 n.2 (noting disparity between language in Lopez and language

in Blakely and “adopt[ing] the language of Blakely” without

“express[ing] any opinion regarding the language used in Lopez”).

¶ 25 But in any event, this case does not concern “a defendant’s

custodial status” after a prior conviction. Hines, ¶ 64. Nor does the

ASR indicate that Chavira’s lack of a valid driver’s license — for any

period, much less the entire period from 2005 to 2022 — was a

“necessary component” of his prior convictions. Id. at ¶¶ 64-66

(citation omitted). Indeed, the ASR’s summary of Chavira’s prior

convictions does not say anything about the loss of his license.

Although it may be possible to reach that conclusion by piecing

14

together the relevant statutes,

3

such an exercise — which, notably,

the district court did not undertake — would be “too far removed

from the conclusive significance of a prior judicial record” to fall

within the prior conviction exception. Montoya, 141 P.3d at 923

(citation omitted).

¶ 26 Thus, we conclude that the district court erred by imposing an

aggravated sentence based on facts that were neither Blakely-

exempt nor Blakely-compliant. That error was obvious. See

Sandoval II, ¶¶ 12-13. Both the Blakely rule and the “narrow

exception” for “the fact of a prior conviction” are well settled.

Mountjoy, ¶ 11; Sandoval II, ¶ 12. And no Colorado case would

suggest that the district court’s reference to Chavira’s lack of a

license since 2005 (or the other facts on which the court relied) fell

3

The People cite section 42-2-138(1)(e) and (3), C.R.S. 2023, which

provides that a person who is convicted of a driving offense while

their license is under restraint loses their license for one year, and a

person who is convicted of a second or subsequent offense for

driving under an alcohol-related restraint loses their license for four

years. They do not explain how this statute (or any other)

establishes that Chavira lacked a license from 2005 to 2022 —

particularly the six years after Chavira’s 2005 DWAI conviction and

the four years after his first driving under restraint conviction.

15

within that narrow exception. See Sandoval II, ¶ 13 (noting the lack

of any Colorado decisions suggesting that Blakely might not apply).

¶ 27 The error was also substantial. See id. at ¶ 14. The

presumptive maximum sentence for Chavira’s offense — the

maximum sentence the court could impose based on the guilty plea

alone — was six years. He was sentenced to seven. See United

States v. Anderson, 201 F.3d 1145, 1152 (9th Cir. 2000) (“An error

that results in a longer sentence undoubtedly affects substantial

rights.”); cf. Glover v. United States, 531 U.S. 198, 203 (2001) (“[A]ny

amount of actual jail time has Sixth Amendment significance.”).

That the district court could have, and might have, reached the

same sentencing decision based on Chavira’s prior convictions does

not change the substantial nature of the error. Sandoval II, ¶ 14.

¶ 28 We therefore conclude that the district court plainly erred by

imposing an aggravated sentence.

III. Resentencing on Remand

¶ 29 Having concluded that Chavira’s sentence cannot stand, we

must determine the appropriate remedy on remand. Chavira

contends that he must be resentenced within the presumptive

range of two to six years. The People contend that, on remand, the

16

district court can still impose an aggravated sentence so long as it

relies on Chavira’s prior convictions. We agree with the People.

¶ 30 Generally, “[t]he proper procedure for an appellate court to

follow upon finding Blakely error is to remand the case to the trial

court for resentencing within the presumptive range.” People v.

Isaacks, 133 P.3d 1190, 1196 (Colo. 2006). But where a defendant

has prior convictions, nothing precludes a district court from

“discretionarily aggravating [a] defendant’s sentence on remand . . .

based upon [the defendant’s] prior convictions.” Elie, 148 P.3d at

367; see also Villanueva v. People, 199 P.3d 1228, 1238 (Colo.

2008) (holding that trial court was “not prevented from imposing a

sentence in the aggravated range” based on subsequent conviction).

¶ 31 Thus, on remand, the district court may, in its discretion,

impose an aggravated sentence under section 18-1.3-401(7),

provided that it does so based on the fact of Chavira’s prior

convictions. See Elie, 148 P.3d at 367; Mountjoy, ¶ 15. It may not,

however, impose a sentence in excess of the one originally imposed

based on prior convictions that were known to the court at the time

of the original sentence. See § 18-1-409(3), C.R.S. 2023.

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IV. Disposition

¶ 32 The sentence is reversed, and the case is remanded for

resentencing consistent with this opinion.

JUDGE J. JONES and JUDGE WELLING concur.