Peo v. Longoria

22CA1768 Peo v Longoria 08-15-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1768

Pueblo County District Court No. 20CR7

Honorable Amiel Markenson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Ysidro Derrick Longoria Jr.,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I

Opinion by JUDGE J. JONES

Welling and Schock, JJ., concur

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

Announced August 15, 2024

Philip J. Weiser, Attorney General, Jacob R. Lofgren, Senior Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Casey J. Mulligan, Alternate Defense Counsel, Boulder, Colorado, for

Defendant-Appellant

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¶ 1 Defendant, Ysidro Derrick Longoria Jr., appeals the district

court’s judgment of conviction entered on jury verdicts finding him

guilty of first degree burglary and attempted sexual assault.

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We

affirm.

I. Background

¶ 2 Late one night, Longoria climbed into the victim’s apartment

through a window. The victim and her children were asleep. The

victim woke up, saw Longoria (whom she didn’t know), and started

to ask him who he was. Before she could finish the sentence,

Longoria hit her in the face, knocking her unconscious. When the

victim awoke, Longoria was on top of her in her bed. Longoria

spread the victim’s legs apart with his hands “all the way up” her

inner thighs and used his own legs to keep the victim from closing

hers. The victim said, “Oh, my God, you’re going to rape me.”

Longoria said, “Sshhh.”

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Longoria was also found guilty of second degree assault, but he

doesn’t challenge his conviction for that offense. And the jury

found Longoria guilty of a crime of violence sentence enhancer in

connection with the attempted sexual assault charge, but Longoria

doesn’t raise any separate challenge to that verdict: it stands or

falls based on the outcome of his challenges to the first degree

burglary and attempted sexual assault charges.

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¶ 3 When the victim tried to fight Longoria off, he smothered her

with a hand on her face and punched her. He also pressed his

forearm down on her neck, using his bodyweight. The victim

managed to roll off the bed onto the floor. Longoria punched and

kicked the victim, who yelled for help. This woke up the victim’s

oldest son, who started yelling. Longoria fled.

¶ 4 The People charged Longoria with second degree assault, first

degree burglary, attempted sexual assault, and a crime of violence

sentence enhancer. The first degree burglary charge alleged that

Longoria intended to commit sexual assault when he broke into the

apartment. See § 18-4-202(1), C.R.S. 2024 (an element of first

degree burglary is that the defendant intended to commit a crime

when he unlawfully entered or remained in an occupied structure).

¶ 5 One jury found Longoria guilty of second degree assault, and a

later jury found him guilty of the other charges.

II. Discussion

¶ 6 Longoria contends that (1) the district court plainly erred by

failing to define certain terms used in the instruction defining

“sexual penetration” and (2) the evidence was insufficient to support

the convictions for first degree burglary and attempted sexual

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assault (and therefore the related jury finding of a sentence

enhancer) because there was insufficient evidence of an intent or

attempt to commit sexual assault. We address, and reject, these

contentions in turn.

A. Definition of Terms

¶ 7 The court’s instruction to the jury on the elements of

attempted sexual assault included as an element that Longoria

“engaged in conduct constituting a substantial step toward sexual

assault.” It separately instructed the jury on the elements of sexual

assault, one of which was “inflict[ing] sexual intrusion or

penetration on a person.” And the court separately instructed the

jury on the meanings of sexual intrusion and sexual penetration as

follows:

“SEXUAL INTRUSION” means any intrusion,

however slight, by an object or any part of a

person’s body, except the mouth, tongue, or

penis, into the genital or anal opening of

another person’s body if that sexual intrusion

can reasonably be construed as being for the

purpose of sexual arousal, gratification, or

abuse.

“SEXUAL PENETRATION” means sexual

intercourse, cunnilingus, fellatio, analingus, or

anal intercourse. Emission need not be proved

as an element of sexual penetration. Any

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penetration during sexual intercourse,

cunnilingus, fellatio, analingus, or anal

intercourse, however slight, is sufficient.

Longoria’s attorney didn’t object to these instructions, nor did he

ask the court to define for the jury any term used in these

instructions.

¶ 8 On appeal, however, Longoria contends that the district court

was required to provide the jury with definitions of “cunnilingus,”

“fellatio,” “analingus,” and “anal intercourse.”

1. Standard of Review

¶ 9 To determine whether the district court erred, we will review

Longoria’s contention de novo. See Townsend v. People, 252 P.3d

1108, 1111 (Colo. 2011) (“[W]e review legal conclusions implicit in

jury instructions de novo . . . .”); People v. Maloy, 2020 COA 71,

¶ 54 (a court abuses its discretion in formulating jury instructions

if, among other things, it misapplies the law).

¶ 10 Because Longoria’s attorney didn’t preserve this issue, if we

determine that the court erred, we will reverse only if Longoria

establishes that the error was plain. People v. Sepulveda, 65 P.3d

1002, 1006 (Colo. 2003); People v. Zadra, 2013 COA 140, ¶ 50,

aff’d, 2017 CO 18. This means that Longoria must show that any

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error was obvious and “so undermined the fundamental fairness of

the trial . . . as to cast serious doubt on the reliability of the

judgment of conviction.” Hagos v. People, 2012 CO 63, ¶ 14

(quoting People v. Miller, 113 P.3d 743, 750 (Colo. 2005)). In the

context of jury instructions specifically, this means that Longoria

must show “not only that the instruction affected a substantial

right, but also that the record reveals a reasonable possibility that

the error contributed to his conviction.” People v. Garcia, 28 P.3d

340, 344 (Colo. 2001) (quoting Bogdanov v. People, 941 P.2d 247,

255-56 (Colo. 1997)).

2. Analysis

¶ 11 The premise of Longoria’s contention is that the terms

“cunnilingus,” “fellatio,” “analingus,” and “anal intercourse” “have

acquired technical or particular meanings.” Therefore, his

argument continues, under Griego v. People, 19 P.3d 1, 7 (Colo.

2001), the court was required to instruct the jury on those

meanings. We reject Longoria’s premise.

¶ 12 In support of his premise, Longoria relies on definitions of

three of these terms — “cunnilingus,” “fellatio,” and “anal

intercourse” — in section 18-7-401, C.R.S. 2024; comments in the

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Model Criminal Jury Instructions; section 2-4-101, C.R.S. 2024;

and People v. Fell, 832 P.2d 1015 (Colo. App. 1991). None of these

authorities support Longoria’s position.

¶ 13 The definitions of three of the relevant terms in section 18-7-

401 expressly apply only to child prostitution charges under part 4

of article 7 of title 18. See also § 18-7-201, C.R.S. 2024 (defining

the same three terms the same way for purposes of section 2 of

article 7 of title 18, relating to prostitution offenses). Sexual assault

isn’t such a charge: it is proscribed by section 18-3-402, C.R.S.

2024.

¶ 14 But more importantly, Longoria hasn’t argued, much less

shown, that the statutory definitions of these terms in section 18-7-

401 differ in any meaningful sense from their commonly understood

meanings. And we fail to see any such difference.

¶ 15 For instance, section 18-7-401(3) defines “cunnilingus” as

“any act of oral stimulation of the vulva or clitoris.” A common

dictionary definition is “stimulation of the vulva or clitoris with the

lips or tongue.” Webster’s Third New International Dictionary 554

(2002). Section 18-7-401(4) defines “fellatio” as “any act of oral

stimulation of the penis.” Webster’s defines it as “the practice of

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obtaining sexual satisfaction by oral stimulation of the penis.”

Webster’s at 836; see Veith v. People, 2017 CO 19, ¶ 15 (a court

may consult recognized dictionaries to determine a term’s ordinary

meaning).

¶ 16 The same can be said for the comments in the Model Jury

Instructions, which include definitions of the relevant terms.

Indeed, Longoria concedes that the definition of “analingus” in

those comments simply tracks a dictionary definition. And as for

the other three terms, the comments merely note statutory

definitions, none of which differ materially from commonly

understood meanings. See COLJI-Crim. F:343 cmts. 2 & 3 (2023)

(cross-referencing COLJI-Crim. F:16, F:81, and F:147). Moreover,

no relevant model instruction says that these definitions must be

given to a jury.

¶ 17 As Longoria points out, section 2-4-101 says that “[w]ords and

phrases that have acquired a technical or particular meaning,

whether by legislative definition or otherwise, shall be construed

accordingly.” This is a legislatively mandated canon of statutory

construction. It doesn’t say that every legislative definition is “a

technical or particular meaning” of a term, only that if such a

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definition differs from common understanding — that is, has been

given a technical or particular meaning by statute — that meaning

should guide interpretation of a statute to which the definition

applies. As discussed, none of the statutory definitions at issue

give any of the terms a meaning different from the commonly

understood meaning.

¶ 18 Longoria’s reliance on Fell fares no better. In Fell, the jury

sent a note to the court asking for clarification of the definition of

“sexual penetration” — specifically, “Does penetration by fingers

qualify under this definition?” 832 P.2d at 1019. The division held

that the district court erred by refusing to answer that question

directly because the jury had affirmatively indicated a potential

misunderstanding of the term. Id. In the course of resolving the

issue, the court said in dictum that the terms “fellatio,”

“cunnilingus,” and “anilingus” “carry specific meanings that many

jurors may not understand.” Id. (emphasis added).

¶ 19 Unlike in Fell, the jury in this case didn’t indicate any

uncertainty as to any term in the definitional instruction. And in

any event, the division didn’t say that a court always must give

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definitions of these terms to a jury. Longoria doesn’t cite any case

holding that the court must do so, and we haven’t found one.

¶ 20 In sum, we aren’t persuaded that these terms are beyond the

understanding of ordinary jurors. Nor are we persuaded that they

have acquired any technical meaning — by statute or otherwise —

different from their commonly understood meanings. Therefore, the

court didn’t err by failing to sua sponte define these terms for the

jury. See People v. Payne, 2019 COA 167, ¶ 18 (“A definitional

instruction is not required for a term or phrase familiar to a

reasonable person of common intelligence, especially when the

term’s ‘meaning is not so technical or mysterious as to create

confusion in the jurors’ minds.’” (quoting People v. Thoro Prods. Co.,

45 P.3d 737, 745 (Colo. App. 2001))); see also Saucedo v. State, No.

11-22-00227-CR, 2024 WL 1447285, at *3 (Tex. App. Apr. 4, 2024)

(unpublished opinion) (where a term has a commonly understood

meaning, and that meaning is similar to the statutory definition of

the term, the court need not define that term for the jury); State v.

Valles, 780 P.2d 1049, 1054-55 (Ariz. Ct. App. 1989) (same); State

v. Barnett, 691 P.2d 683, 686 (Ariz. 1984) (same); People v. Peebles,

465 N.E.2d 539, 543 (Ill. App. Ct. 1984) (same); Rizzuto v. State,

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407 A.2d 225, 225-26 (Del. 1979) (where statutory definition of

“sexual contact” tracked commonly understood meaning, court

wasn’t required to define the term for the jury); People v. Robideau,

289 N.W.2d 846, 849-50 (Mich. Ct. App. 1980) (“The term fellatio is

one generally understood by laymen, and possesses no distinct legal

definition.”) (emphasis added), aff’d, 355 N.W.2d 592, 605 n.9

(Mich. 1984), overruled on other grounds by People v. Smith, 733

N.W.2d 351 (Mich. 2007).

¶ 21 As well, we aren’t persuaded that any error should have been

obvious to the district court. Again, no statute says and no case

holds that these terms must be defined for a jury. See People v.

Crabtree, 2024 CO 40M, ¶ 42 (“[T]o be deemed plain, an error must

contravene a clear statutory command, a well-settled legal principle,

or established Colorado case law.”).

¶ 22 Lastly, any error didn’t so undermine the fundamental

fairness of the trial as to cast serious doubt on the reliability of the

judgment of conviction. For one thing, Longoria didn’t base his

defense on a challenge to his alleged acts, but rather on a theory

that he lacked the requisite intent. For another, the evidence of

Longoria’s guilt was quite strong. Longoria came into the victim’s

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apartment through a window. After knocking her unconscious,

Longoria straddled the victim (who was wearing only a t-shirt and

underwear) on her bed, spread her legs apart with his hands (on the

upper part of her inner thighs), and used his legs to keep the

victim’s legs apart. When the victim regained consciousness and

said, “Oh, my God, you’re going to rape me,” Longoria only

responded by making a shushing sound. These acts were “strongly

corroborative of the firmness of [Longoria’s] purpose to complete the

commission of the offense” of sexual assault. See § 18-2-101(1),

C.R.S. 2024 (defining criminal attempt); see also People v. Sloan,

2024 COA 52M, ¶¶ 39, 50 (we consider the strength of the evidence

in assessing the third prong of the plain error test).

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Indeed,

Longoria’s defense was remarkably weak. His attorney asserted

(without evidence) that Longoria came into the victim’s house for

some unexplained reason without any intent to do anything. That

defense utterly failed to engage with the evidence of his actions in

the apartment, none of which Longoria’s counsel meaningfully

contested.

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The victim had visible injuries following the assault, as defense

counsel conceded.

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B. Sufficiency of the Evidence

¶ 23 Longoria contends that the evidence of a “substantial step”

toward committing sexual assault was insufficient, rendering his

convictions for attempted sexual assault and, hence, first degree

burglary unsustainable. He relies on a list of acts that he did not

do — acts that would have constituted substantial steps. But as we

have already determined, the acts Longoria did do were strongly

corroborative of his purpose to commit sexual assault. That he

didn’t commit other acts that also would have been strongly

corroborative of that purpose is of no consequence. So, viewing the

evidence in the light most favorable to the verdicts, we conclude

that the quantity and quality of the relevant evidence supports a

fair-minded jury’s finding that Longoria took a substantial step

toward committing sexual assault. See People v. Perez, 2016 CO

12, ¶¶ 24-25; People v. Woodyard, 2023 COA 78, ¶ 44.

III. Disposition

¶ 24 The judgment is affirmed.

JUDGE WELLING and JUDGE SCHOCK concur.