Peo v. Romero

20CA0143 Peo v Romero 12-05-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA0143
Weld County District Court No. 18CR881
Honorable Shannon D. Lyons, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Phillip Romero,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART AND CASE
REMANDED WITH DIRECTIONS

Division IV
Opinion by JUDGE PAWAR
Brown and Richman*, JJ., concur

Prior Opinion Announced October 13, 2022, Reversed in 22SC845

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 5, 2024

Philip J. Weiser, Attorney General, Erin K. Grundy, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Barbara A. Snow, Alternate Defense Counsel, Longmont, Colorado, for
Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Defendant, Phillip Romero, was convicted of various offenses

arising out of an incident in which he assaulted a sexual partner,

T.A. His convictions included several habitual criminal counts and

he was sentenced accordingly.

¶2 He appealed to this court, challenging the trial court’s denial

of his Batson challenge during jury selection and the propriety of

his sentence. Two members of this division agreed with his Batson

argument and therefore reversed without addressing his challenges

to his sentence. People v. Romero, 2022 COA 119, ¶ 3. The

supreme court granted certiorari and reversed that opinion, holding

that the trial court properly denied the Batson challenge. People v.

Romero, 2024 CO 62, ¶ 71. The supreme court remanded the case

to us to consider Romero’s remaining appellate arguments. We do

so now.

I. Background

¶3 According to evidence presented at trial, T.A. arrived at

Romero’s house in the morning and they spent most of the day

together. After having sex, Romero got angry with T.A., apparently

because she uttered another man’s name during sex. Romero

threatened T.A. and then physically beat her, first with his fists and

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then with a wooden board, breaking her lower leg. Romero initially

prevented T.A. from leaving the house after the assault. Eventually,

T.A. left the house and went to the hospital.

¶4 Romero was charged with first degree assault, second degree

assault, felony menacing, false imprisonment, and several habitual

criminal counts. At trial, T.A. testified but could not remember

much about the events in question. The trial court therefore

admitted audio recordings of two separate interviews she gave to

law enforcement, the first when she was still in the hospital

immediately after the assault and the second several months later.

¶5 The jury found Romero guilty of first and second degree

assault, felony menacing, and false imprisonment. At the habitual

criminal trial, the court found that the prosecution had proved the

habitual criminal counts. The court imposed a sixty-four-year

habitual criminal sentence for first degree assault to be served

consecutively to a thirty-two-year habitual criminal sentence for

second degree assault. Romero’s sentences for felony menacing and

false imprisonment were shorter and imposed concurrently with the

assault sentences. All told, Romero was sentenced to ninety-six

years in the custody of the Department of Corrections.

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¶6 There are three different sentencing issues we must address

on remand from the supreme court. First, Romero contends that

because there was only a single continuous assault, the trial court

violated his constitutional right to be free from double jeopardy by

imposing two separate assault sentences. Second, he argues that

even if the trial court had the discretion to impose consecutive

assault sentences, it abused that discretion by doing so. Third, he

argues that his sentence is disproportionate to his crimes and

therefore violates the Eighth Amendment.

¶7 We disagree with his first two arguments and remand on the

third.

II. Double Jeopardy

¶8 We review de novo whether the imposition of multiple

sentences constitutes a double jeopardy violation. People v. Valera-

Castillo, 2021 COA 91, ¶ 49. Because Romero did not raise this

argument in the trial court, it is unpreserved, and we will reverse

only if any error was plain. See Hagos v. People, 2012 CO 63, ¶ 14.

We perceive no error, let alone plain error.

¶9 The constitutional right to be free from double jeopardy

prohibits the imposition of multiple punishments for the same

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criminal conduct. People v. Wagner, 2018 COA 68, ¶ 11. However,

a defendant may be subject to multiple punishments for the same

offense if he commits that offense multiple times. Id. at ¶ 13.

Romero was not convicted of two counts of the same offense.

Nevertheless, second degree assault is a lesser included offense of

first degree assault, and double jeopardy principles therefore

require that the two counts merge unless supported by different

criminal conduct. See People v. Lovato, 2014 COA 113, ¶¶ 97-105.

¶ 10 To determine whether Romero’s conduct can support two

separate punishments, we consider whether the evidence

introduced at trial was sufficient to support distinct and separate

offenses. See Valera-Castillo, ¶ 53. Factors relevant to this inquiry

include the time and location of the events, Romero’s intent,

whether the acts were separated by intervening events or were the

product of new volitional departures, and whether the prosecution

presented the acts as legally separable. Id.

¶ 11 T.A.’s trial testimony did not shed any light on whether there

was a single assault or two legally separable ones. However, the

recordings of her two interviews with law enforcement did. In the

first interview, T.A. said that the physical abuse started downstairs

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in Romero’s house with Romero punching her in the side of the

head. T.A. said that it then escalated when Romero grabbed a

board and hit her with it multiple times.

¶ 12 In the second interview, T.A. specified that her leg broke when

Romero was hitting her with the board upstairs.

¶ 13 This evidence suggested that there was a volitional departure

between an initial assault in which Romero used only his fists and

a second assault in which he decided to grab a board and beat T.A.

with it.

¶ 14 We recognize that the prosecutor’s closing argument did not

clearly present the two assaults as legally separable. In closing, the

prosecutor reminded the jury that there was evidence that Romero

beat T.A. with a board both upstairs and downstairs. And the only

distinction the prosecutor made between the two assault counts

was that one resulted in mere bruises (second degree assault) and

the other resulted in a broken leg (first degree assault).

¶ 15 Nevertheless, we conclude that T.A.’s interview sufficiently

established two legally separable assaults — the second degree

assault occurred when Romero punched T.A. in the head

downstairs, and the first degree assault occurred when Romero

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abandoned that mode of attack and beat T.A. with a board both

upstairs and downstairs, breaking her leg. Accordingly, the trial

court did not err, plainly or otherwise, by imposing separate

punishments for the assault counts.

¶ 16 Romero also argues that the court violated his due process

rights in that the prosecutor misstated the evidence to the court

and that the evidence could not possibly have supported separate

convictions and punishments. See People v. Tuffo, 209 P.3d 1226,

1231 (Colo. App. 2009) (due process requires that sentencing

determinations are based on reliable evidence, not misinformation).

However, as explained above, the evidence did support separate

convictions and punishments. We therefore reject Romero’s due

process argument.

III. Consecutive Sentencing

¶ 17 Romero next asserts two challenges to the court’s imposition

of consecutive sentences for the assault counts. He first argues

that the relevant sentencing statutes required the court to impose

the assault sentences concurrently. We review this issue de novo.

See People v. Phillips, 2012 COA 176, ¶ 171.

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¶ 18 He then argues that even if the trial court had discretion to

impose consecutive sentences, the court abused that discretion by

failing to support its decision to run the sentences consecutively.

We review this issue for an abuse of discretion. See Juhl v. People,

172 P.3d 896, 900 (Colo. 2007).

¶ 19 We disagree with both of these arguments.

A. The Court Had Discretion to Run Sentences Consecutively

¶ 20 In general, trial courts have discretion to impose either

concurrent or consecutive sentences. Id. at 899. However, when a

defendant is convicted of multiple crimes of violence arising out of

the same criminal episode (as Romero was here), concurrent

sentences for crimes of violence are required only if they are

supported by identical evidence. See People v. Espinoza, 2017 COA

122, ¶ 32, rev’d on other grounds, 2020 CO 43. Whether the

evidence supporting two convictions is identical is an “evidentiary

test” that asks “whether the charges result from the same act, so

that the evidence of the act is identical, or from two or more acts

fairly considered to be separate acts, so that the evidence is

different.” Juhl, 172 P.3d at 902.

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¶ 21 We conclude that the two assault convictions were based on

different acts and therefore non-identical evidence. As explained

above, the second degree assault conviction was based on the initial

stage of the physical abuse when Romero was punching T.A. in the

head downstairs. The first degree assault conviction was based on

a different act, namely Romero picking up a board and beating T.A.

with it, both upstairs and downstairs, breaking her leg.

B. Consecutive Sentences Were Not an Abuse of Discretion

¶ 22 We are similarly unpersuaded by Romero’s abuse of discretion

argument. When a court has discretion to impose either concurrent

or consecutive sentences, it must exercise that discretion in

consideration of “the nature of the offense, the character and

rehabilitative potential of the offender, the development of respect

for the law and the deterrence of crime, and the protection of the

public.” People v. Fuller, 791 P.2d 702, 708 (Colo. 1990). And as

Romero points out, “[t]he sentencing court must ‘state on the record

the basic reasons for imposing the sentence.’” Id. (quoting People v.

Watkins, 613 P.2d 633, 637 (1980)).

¶ 23 Romero argues that even if the trial court here had discretion

to impose consecutive sentences, it abused that discretion because

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the court “neither made findings, nor stated factual considerations,

as to whether the assault evidence was identical.” Although the

court did not address the identical evidence issue at the sentencing

hearing, the evidence supporting the two assault convictions was

not identical, as explained above. And in imposing consecutive

sentences, the court did address Romero’s character and

rehabilitative potential, his respect for the law, and the protection of

the public. This fulfilled the court’s duty to explain the basic

reasons for the sentence. We therefore conclude that the court did

not abuse its discretion by imposing consecutive sentences.

IV. Proportionality Review

¶ 24 Romero next argues that his habitual criminal sentences were

disproportionate to his crimes and therefore violated the Eighth

Amendment’s prohibition of cruel and unusual punishment. That

Romero failed to raise this issue in the trial court does not prevent

us from addressing it for the first time here. See People v. Session,

2020 COA 158, ¶ 51. However, the first step in a proportionality

review requires an analysis of the facts and circumstances

surrounding the triggering and predicate offenses. See Wells-Yates

v. People, 2019 CO 90M, ¶ 75. And unlike us, trial courts are

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“uniquely suited” to conduct such analyses in the first instance. Id.

We therefore decline to conduct an abbreviated proportionality

review for the first time on appeal and remand the case to the trial

court with directions to conduct one in accordance with Wells-

Yates.

V. Disposition

¶ 25 The case is remanded to the trial court with directions to

conduct a proportionality review. The judgment of conviction is

otherwise affirmed.

JUDGE BROWN and JUDGE RICHMAN concur.

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