     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
                                                          September 6, 2018

                               2018COA130

No. 2016CA1884, People v. Gwinn — Crimes — DUI — Prior
Convictions

     In this DUI case, a division of the court of appeals concludes,

as a matter of first impression, that a defendant is not entitled to

have a jury determine the existence of the prior DUI convictions

used to enhance his or her sentence from a misdemeanor to a

felony. The division further concludes that the prosecution’s

burden of proving prior convictions is by a preponderance of the

evidence.

     The division also affirms the trial court’s orders granting a

motion to quash witness subpoenas, allowing impeachment

testimony, admitting a trial exhibit, and rejecting a tendered jury

instruction.
COLORADO COURT OF APPEALS                                     2018COA130


Court of Appeals No. 16CA1884
Jefferson County District Court No. 16CR341
Honorable Tamara S. Russel, Judge
Honorable Christopher C. Zenisek, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Michael Can Gwinn,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                 Division VI
                         Opinion by JUDGE FREYRE
                        Terry and Navarro, JJ., concur

                        Announced September 6, 2018


Cynthia H. Coffman, Attorney General, Majid Yazdi, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Nancy C. Johnson, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Michael Can Gwinn, appeals his conviction for

 driving while under the influence of alcohol (DUI) as a felony. He

 contends that the trial court erred in (1) quashing eight subpoenas

 for witnesses who would have testified about problems with the

 Intoxilyzer 9000; (2) allowing the prosecution to impeach its own

 witness using leading questions; (3) admitting the express consent

 form; (4) refusing a jury instruction; and (5) denying his right to

 have a jury determine the existence of his prior DUI convictions

 beyond a reasonable doubt. We address and reject his first four

 contentions, and, as a matter of first impression, we conclude that

 he was not entitled to have a jury determine the existence of his

 prior DUI convictions. Accordingly, we affirm his conviction.

                           I.    Background

¶2    One night after work, Gwinn rear-ended another car while

 driving home. Officer Trae Tripp responded to the accident and

 spoke with Gwinn. He smelled the odor of an alcoholic beverage on

 Gwinn’s breath, and observed that Gwinn had bloodshot eyes and

 slurred speech. Gwinn admitted drinking four beers before the

 accident occurred. Officer Tripp requested a DUI officer, and Officer

 Jude Perez arrived to provide assistance.


                                    1
¶3    Officer Perez asked Gwinn if he would complete voluntary

 roadside maneuvers, and Gwinn refused. Gwinn then told Officer

 Perez that he drank three or four beers at a bar before the accident.

 Officer Perez explained to Gwinn that if he refused to take a

 chemical blood or breath test to determine his blood alcohol level,

 then he would lose his license for one year. Gwinn refused all tests,

 and Officer Perez arrested him.

¶4    After a jury convicted Gwinn of DUI and careless driving, the

 trial court, in a separate proceeding, found that Gwinn had three

 prior DUI convictions, adjudicated him a felony DUI offender, and

 sentenced him to thirty months of probation, two years of work

 release, and ninety days in the county jail.

                  II.     No Error in Quashing Subpoenas

¶5    Gwinn first contends that the trial court’s refusal to allow the

 testimony of eight current and former Colorado Department of

 Public Health and Environment (CDPHE) employees deprived him of

 his constitutional right to present a defense. We discern no error.

             A.         Standard of Review and Applicable Law

¶6    A trial court’s decision to exclude evidence, including witness

 testimony, will not be disturbed on review absent an abuse of


                                       2
 discretion. People v. Rodriguez, 209 P.3d 1151, 1160-61 (Colo. App.

 2008), aff’d, 238 P.3d 1283 (Colo. 2010). A court abuses its

 discretion if its decision is manifestly arbitrary, unreasonable, or

 unfair, or based on an erroneous understanding or application of

 the law. Id. at 1161.

¶7      All relevant evidence is admissible unless otherwise provided

 by constitution, statute, or rule. CRE 402; People v. Rath, 44 P.3d

 1033, 1038 (Colo. 2002); People v. Cordova, 293 P.3d 114, 118

 (Colo. App. 2011). Evidence is relevant where it has “any tendency

 to make the existence of any fact that is of consequence to the

 determination of the action more probable or less probable than it

 would be without the evidence.” CRE 401; Cordova, 293 P.3d at

 118.

¶8      The exclusion of evidence may, in some circumstances,

 implicate a defendant’s Sixth Amendment right to present a

 defense; however, every restriction on a defendant’s evidence is not

 constitutional error. Krutsinger v. People, 219 P.3d 1054, 1062

 (Colo. 2009). Instead, “the right to present a defense is not

 absolute; it requires only that the accused be permitted to introduce

 all relevant and admissible evidence.” Rodriguez, 209 P.3d at 1160.


                                    3
  Thus, a defendant must prove that the evidence is both relevant

  and admissible. See Taylor v. Illinois, 484 U.S. 400, 410 (1988)

  (“The accused does not have an unfettered right to offer [evidence]

  that is incompetent, privileged, or otherwise inadmissible under

  standard rules of evidence.”).

¶9     The parties dispute whether this alleged error should be

  reviewed for constitutional harmless error or harmless error. We

  need not resolve this dispute because we conclude there was no

  error.

                              B.   Analysis

¶ 10   Knowing that the jury would be instructed that it could

  consider his refusal to submit to a chemical test when it determined

  guilt, see § 42-4-1301(6)(d), Gwinn sought to introduce the

  testimony of eight current and former employees of the CDPHE to

  show that the Intoxilyzer 9000 breath test machine did not satisfy

  the requirements of section 42-4-1301.1(2)(a), C.R.S. 2017, and,

  thus, did not produce an accurate result. Gwinn’s counsel argued

  that the jury should be permitted to infer from this testimony that

  Gwinn’s refusal was supported by the absence of a competent




                                    4
  intoxilyzer machine. The CDPHE moved to quash the witnesses’

  subpoenas.

¶ 11   The trial court asked defense counsel whether Gwinn knew of

  the intoxilyzer’s alleged deficiencies or whether any other witness

  could establish that Gwinn knew of them. Counsel said she did not

  believe that was required since the prosecution could argue the

  negative inference based on no evidence. When pressed, counsel

  stated that she did not have any witnesses to establish Gwinn’s

  knowledge of the intoxilyzer’s purported deficiencies. The trial court

  granted the motion to quash finding that the testimony was

  irrelevant to Gwinn’s refusal because it failed to establish Gwinn’s

  knowledge of the Intoxilyzer 9000’s alleged deficiencies at the time

  he refused to submit to chemical testing.

¶ 12   We discern no abuse of discretion in the trial court’s ruling.

  First, because Gwinn refused chemical testing and never actually

  blew into the Intoxilyzer 9000, the machine’s operability and

  accuracy were irrelevant. See Long v. Colo. Dep’t of Revenue, 2012

  COA 130, ¶ 31 (when a breath test is refused, the operability of the

  breathalyzer is not at issue). And while the DUI statute allows a

  defendant to challenge the accuracy of a particular test, it only


                                    5
  applies when the defendant actually submits to the test and

  questions its accuracy. § 42-4-1301(6)(c)(II), C.R.S. 2017; see also

  Long, ¶ 31 (“Once plaintiff refused to take the breath test after the

  deputy informed him that the breathalyzer was functioning

  properly, the operability of the breathalyzer was not at issue.”).

¶ 13   Second, Gwinn failed to show that his reason for refusing to

  take a chemical test was related to his knowledge of problems with

  the Intoxilyzer 9000. Without this evidence, testimony about the

  intoxilyzer’s deficiencies did not make the negative inference from

  his refusal more or less probable. CRE 401. Indeed, such

  testimony could only be probative if Gwinn knew of the intoxilyzer’s

  alleged deficiencies and if this knowledge caused his refusal.

  Absent evidence of this knowledge, the jury could only speculate

  about the importance of the machine’s operability in relation to the

  evidence presented. Cf. People v. Salazar, 2012 CO 20, ¶ 17 (noting

  that evidence “which has only the most minimal probative value,

  and which requires a jury to engage in undue speculation as to the

  probative value of that evidence” can be excluded (quoting People v.

  Welsh, 80 P.3d 296, 307 (Colo. 2003))).




                                     6
¶ 14   Gwinn also contends that the trial court’s ruling violated his

  Fifth Amendment right to remain silent. We disagree. The trial

  court stated:

            [U]nless Mr. Gwinn takes the stand and
            testifies that he knew about the problems that
            you’ve just mentioned, . . . if he takes the
            stand and says [that he] knew about all of
            those problems with the Intoxilyzer, and,
            therefore, [he] refused to take the breath test,
            it might be relevant. However, otherwise it’s
            absolutely not relevant. . . .

            I will not allow your client to testify about not
            taking the intoxilyzer unless he has a good
            faith basis to state on the record that he knew
            about all of these problems and that’s one of
            the reasons he didn’t take it. Or if you have
            some other witness who is going to testify that
            Mr. Gwinn knew about this.

  Contrary to Gwinn’s assertion, the court simply explained to

  counsel the various avenues through which Gwinn’s knowledge

  could be established that would then make the evidence relevant for

  admission: e.g., through Gwinn’s own testimony or from a friend or

  family member who could establish that Gwinn knew of the

  intoxilyzer’s alleged deficiencies. Thus, while Gwinn’s testimony

  was one method of establishing knowledge and thereby relevance, it

  was not his only option.



                                    7
¶ 15   Because the accuracy of the Intoxilyzer 9000 was not relevant,

  the court did not deprive Gwinn of his right to present a defense.

  See id. (explaining that the right to present a defense is limited to

  relevant and admissible evidence).

              III.    Prosecutor’s Impeachment Was Proper

¶ 16   Gwinn next contends that the trial court erroneously

  permitted the prosecutor to lead a friendly witness, Officer Perez,

  “under the guise of impeachment” where no impeachment occurred.

  We disagree.

                 A.   Standard of Review and Preservation

¶ 17   A trial court’s ruling on evidentiary issues is reviewed for an

  abuse of discretion and will be upheld unless it is manifestly

  arbitrary, unreasonable, or unfair, or contrary to law. See Kinney v.

  People, 187 P.3d 548, 558 (Colo. 2008).

¶ 18   The Attorney General contends that Gwinn did not preserve

  his challenge based on improper leading questions and

  impeachment and that our review should be for plain error. We

  need not decide preservation because we conclude no error

  occurred.




                                     8
                         B.    Additional Facts

¶ 19   While questioning Officer Perez, the prosecutor asked, “Did

  you observe anything specific about Mr. Gwinn’s speech?” Officer

  Perez responded, “Other than himself being polite and things like

  that, it seemed overall normal.” The prosecutor then questioned

  Officer Perez about a sobriety examination form that he completed

  during the booking process. Gwinn’s counsel objected, saying there

  was “no reason to review [the form] unless the officer says that he

  cannot remember and then only for that purpose.” The prosecutor

  said she was impeaching Officer Perez and the trial court overruled

  the objection.

¶ 20   The following colloquy then occurred:

            Q: Officer Perez, do you recall that the
            defendant had mumbled spe[ech] when you
            spoke to him?

            A: Yes.

            Q: You took a look at the sobriety examination
            record. Why do you fill that out?

            A: For our recollection. There is a series of
            questions on here that are relevant to indicia
            of intoxication.

            ....




                                    9
            Q: Do you recall the defendant saying I am
            familiar with the law, I made my bed, I’ll sleep
            in it?

            A: Yes.

            Q: Did you write that in quotations in your
            record?

            A: I did.

            Q: What do quotations in the report mean?

            A: A specific statement by someone in my
            report.

                              C.    Analysis

¶ 21   The conduct of the trial is within the trial court’s discretion.

  See Maloney v. Brassfield, 251 P.3d 1097, 1101 (Colo. App. 2010).

  CRE 607 provides that “[t]he credibility of a witness may be

  attacked by any party, including the party calling him. Leading

  questions may be used for the purpose of attacking such

  credibility.” Moreover, leading questions are proper during direct

  examination “as may be necessary to develop” witness testimony.

  CRE 611(c); see also People v. Raehal, 971 P.2d 256, 258 (Colo.

  App. 1998).

¶ 22   Because Officer Perez’s direct testimony that Gwinn’s speech

  “sounded normal” was contradicted by his previous statement in



                                    10
the sobriety examination report that Gwinn’s speech was

“mumbled,” we conclude that no error occurred when the trial court

allowed impeachment with leading questions about a prior

statement. See Babcock v. People, 13 Colo. 515, 520, 22 P. 817,

819 (1889) (“Where a party is really taken by surprise at the

conduct of his own witness, it is in the discretion, and is often the

duty, of the trial court to allow a party to put leading questions to

his own witness . . . .”); see also People v. Gillis, 883 P.2d 554, 561

(Colo. App. 1994) (“[A] trial court is vested with substantial

discretion in determining whether leading questions are

permissible.”). The two leading questions were direct references to

the sobriety examination record and were asked in response to an

inconsistent statement by Officer Perez — that Gwinn’s speech was

normal. Cf. People v. Stewart, 2017 COA 99, ¶ 11 (concluding the

trial court erred in allowing the prosecutor to lead a witness where

there was no lack of recollection, no writing introduced, and no

foundation for impeachment was laid). Therefore, no error occurred

in the questioning.




                                   11
                      IV.   Exhibit 1 Properly Admitted

¶ 23   Gwinn next contends that the trial court erroneously admitted

  People’s Exhibit 1, an express consent affidavit and notice of

  revocation form,1 under CRE 403, arguing that it misled the jury

  and was “distracting.” We discern no error.

                 A.     Standard of Review and Reversal

¶ 24   A trial court’s ruling on evidentiary issues is reviewed for an

  abuse of discretion and will be upheld unless it is manifestly

  arbitrary, unreasonable, or unfair, or contrary to law. See Kinney,

  187 P.3d at 558.

¶ 25   Evidence is relevant if it has any tendency to make the

  existence of a fact more or less probable. CRE 401. Relevant

  evidence is admissible, CRE 402, but may be excluded if its

  probative value is substantially outweighed by the danger of unfair

  prejudice or if its admission would mislead the jury. CRE 403;




  1 Exhibit 1 is not part of the appellate record. Although Gwinn’s
  opening brief argues that the improper impeachment and Exhibit 1
  issues are connected, the impeachment issue concerned the
  sobriety examination form, while Exhibit 1 is the express consent
  affidavit and notice of revocation form.

                                     12
  People v. Greenlee, 200 P.3d 363, 366 (Colo. 2009); People v.

  Nuanez, 973 P.2d 1260, 1262-63 (Colo. 1999).

¶ 26   Because Gwinn argues for the first time on appeal that the

  court erroneously admitted Exhibit 1 under CRE 403, we review

  this contention for plain error. People v. Ujaama, 2012 COA 36,

  ¶ 37 (noting that issues are unpreserved when the grounds raised

  on appeal are different from those raised below). Plain error is (1)

  an error, (2) that is obvious, and (3) that causes serious doubt

  about the reliability of the judgment of conviction. Hagos v. People,

  2012 CO 63, ¶ 14.

                          B.   Additional Facts

¶ 27   During direct examination, the prosecutor showed Officer

  Perez Exhibit 1 and sought its admission in the following colloquy:

            Q: And is that a copy of the form that you went
            over with Mr. Gwinn during booking?

            A: Yes.

            Q: Is it a fair and accurate copy of that form?

            A: Yes.

            Q: Is that a form that you keep within the
            normal course of business at the police
            department?

            A: It is.

                                    13
             Q: Is it kept with the files or the records
             specific to a defendant or case number?

             A: Yes.

¶ 28   Gwinn made a foundation objection and argued that Officer

  Perez was not a records custodian and that the document was not

  certified. The trial court admitted Exhibit 1 over Gwinn’s objection.

                               C.   Analysis

¶ 29   We discern no abuse of discretion in the court’s admission of

  Exhibit 1 under CRE 403. First, as noted by the Attorney General,

  the trial court properly admitted Exhibit 1 under CRE 803(6)

  (records of regularly conducted activity) — not, as asserted by

  Gwinn, under CRE 803(5) (recorded recollection). And Gwinn does

  not challenge the court’s basis for admitting the exhibit on appeal.

  Rather, Gwinn now argues that Exhibit 1 “distract[ed] the jury from

  the potential explanation that the Defendant may have refused a

  [breathalyzer] test because, as explained[,] the officer did not claim

  to have probable cause.” However, Officer Perez testified that he

  reviewed the express consent affidavit with Gwinn, which made the

  affidavit relevant to Gwinn’s knowledge of the consequences of his

  refusal to take a chemical test. Because Gwinn does not further



                                     14
  explain how this “distracted” or “misled” the jury, we reject his

  contention. See People v. Simpson, 93 P.3d 551, 555 (Colo. App.

  2003) (“We decline to consider a bald legal proposition presented

  without argument or development . . . .”). For the same reason, we

  decline to address Gwinn’s conclusory assertion that Officer Perez

  violated Colorado law by refusing to issue a required temporary

  permit, which Gwinn contends constituted official misconduct

  under section 18-8-404, C.R.S. 2017, and section 18-8-405, C.R.S.

  2017. Accordingly, we discern no error, let alone plain error, in the

  trial court’s decision to admit Exhibit 1.

       V.     The Court Properly Rejected the Tendered Jury Instruction

¶ 30        Gwinn contends that the trial court erroneously rejected a

  tendered instruction informing the jury that law enforcement may

  obtain a search warrant to compel a defendant to submit to a blood

  test and instructing the jury that it was permitted to draw an

  inference from an officer’s failure to employ this procedure that the

  officer did not believe there was evidence to support a search

  warrant. We disagree.




                                       15
                    A.    Standard of Review and Law

¶ 31   Trial courts have a duty to correctly instruct the jury on all

  pertinent matters of law. People v. Garcia, 28 P.3d 340, 343 (Colo.

  2001). We review de novo whether jury instructions accurately

  reflect the law. Riley v. People, 266 P.3d 1089, 1092 (Colo. 2011).

  Generally, instructions that accurately track the language of

  applicable statutes and pattern instructions are sufficient. People

  v. Gallegos, 260 P.3d 15, 26 (Colo. App. 2010). However, whether to

  give a particular instruction lies within the trial court’s discretion,

  and we will not disturb the court’s ruling absent a showing that the

  court abused its discretion in rejecting a particular instruction.

  Bedor v. Johnson, 2013 CO 4, ¶ 8. A court abuses its discretion if it

  bases its ruling on an erroneous view of the law or a clearly

  erroneous assessment of the evidence. Banning v. Prester, 2012

  COA 215, ¶ 9.

                               B.    Analysis

¶ 32   During Officer Perez’s cross-examination, defense counsel

  asked whether the officer could have obtained a search warrant to

  “seize” Gwinn’s blood for testing. Officer Perez said he could have,

  but explained that this was not usually done in DUI cases. Counsel


                                     16
  asked whether probable cause to believe a DUI had occurred would

  be required to obtain a warrant, and Officer Perez confirmed that it

  would. He also said he took no steps to obtain a search warrant

  when Gwinn refused testing.

¶ 33   Gwinn tendered the following instruction and argued that it

  accurately stated the law set forth in section 13-14-103(c), C.R.S.

  2017, and Crim. P. 41(c)(3).

            The Court instructs you that Colorado law
            requires that in each judicial district, a judge
            be available, 24 hours a day seven days a
            week, to pass upon electronic or telephonic
            search or arrest warrant applications. This
            procedure permits judges to receive
            electronically the sworn affidavits of law
            enforcement officers, to determine the
            existence of probable cause, and issue the
            appropriate warrants.

            This procedure would be available to any law
            enforcement officer who believed they had
            probable cause to believe that an individual
            was operating a motor vehicle while impaired,
            or under the influence of of [sic] alcohol or
            drugs, and who could establish that evidence
            of that crime could be gathered by the
            issuance of a search warrant. Search
            warrants can authorize, without the consent of
            a defendant, the drawing of the defendant’s
            blood for testing.

            You are permitted, but not required, to draw
            an inference from a police officer’s failure or


                                   17
             refusal to collect evidence, that the officer
             believed that such evidence would not support
             the actions he was otherwise taking.

¶ 34   Defense counsel admitted that this was not a stock Colorado

  jury instruction and that she was unaware of any case law to

  support it.2

¶ 35   The trial court denied the tendered instruction, finding that it

  “risks the Court weighing into the evidence and commenting and

  providing inferences to the jury.” It found that this was an

  appropriate subject for argument by counsel.

¶ 36   Gwinn now asserts that the absence of this instruction

  precluded him from arguing the inference stated in it. We are not

  persuaded for several reasons. First, as the trial court found, the

  tendered instruction unduly highlighted one piece of evidence: the

  officer’s ability to discretionarily seek a search warrant for a blood

  draw. The court, therefore, did not err in rejecting the instruction




  2 In the trial court, the prosecutor characterized the tendered
  instruction as a “theory of the case” instruction; however, Gwinn
  never made this argument, and the trial court made no findings
  under that body of law. On appeal, Gwinn cites to People v. Jones,
  675 P.2d 9 (Colo. 1984), as “instructive,” but, again, does not
  characterize the instruction as a theory of the case instruction or
  discuss the related case law. Therefore, neither do we.

                                     18
  on this basis alone. See Krueger v. Ary, 205 P.3d 1150, 1157 (Colo.

  2009) (explaining that “we disfavor instructions emphasizing

  specific evidence” because they “confuse the jury and result in

  incorrect directives regarding evidentiary weight”); People v. Nerud,

  2015 COA 27, ¶ 43 (jury instructions that emphasize specific

  evidence are disfavored); cf. People v. Omwanda, 2014 COA 128,

  ¶ 42 (“The contested portion simply highlighted one piece of

  evidence: that other people had access to defendant’s phone.”).

¶ 37   Second, the instruction contains argument — that the jury

  could infer that Officer Perez did not have probable cause to believe

  that Gwinn was driving while impaired. See People v. Merklin, 80

  P.3d 921, 927 (Colo. App. 2003) (“[A] trial court may refuse an

  instruction if it is argumentative, unduly emphasizes particular

  evidence, or contains statements not supported by the evidence.”).

¶ 38   Finally, because Officer Perez testified that he could have

  sought a search warrant for a blood draw and did not usually do so

  in these types of cases, we necessarily reject Gwinn’s argument that

  he was precluded from arguing the instruction’s inference in closing

  argument. Moreover, he does not explain how he was precluded

  from doing so. See People v. Trujillo, 2018 COA 12, ¶ 9 (“[T]he trial


                                    19
  court permitted defense counsel to argue the issues raised in the

  instructions during closing argument.”). Accordingly, we find no

  abuse of discretion and affirm the court’s ruling.

                     VI.   Felony DUI Determination

¶ 39    Gwinn last contends that his prior DUI convictions trial,

  conducted by the trial court (as authorized by section 42-4-

  1301(1)(a) and (j)), violated his federal constitutional right to a jury

  trial.3 We disagree and conclude that, similar to habitual criminal

  findings, prior DUI convictions constitute sentence enhancers that

  do not require a jury finding, rather than elements of the crime that

  do.

                           A.   Additional Facts

¶ 40    The prosecutor charged Gwinn with DUI as a class 4 felony,

  alleging that he had three prior convictions for DUI, DUI per se, or

  DWAI under section 42-4-1301(1)(a) and (j). Gwinn’s counsel

  argued that because his prior DUI’s were misdemeanors, and



  3 Gwinn asserted an equal protection challenge to the statute in the
  trial court, but he did not reassert that challenge on appeal.
  Accordingly, we deem it waived. See Moody v. People, 159 P.3d 611,
  614 (Colo. 2007) (“Our starting point is the basic principle of
  appellate jurisprudence that arguments not advanced on appeal are
  generally deemed waived.”).

                                     20
  because identity was an issue, the prosecution was required to

  prove them to a jury beyond a reasonable doubt.

¶ 41   The trial court rejected this argument and instead applied

  People v. Schreiber, which held that prior convictions are sentence

  enhancers, not elements. 226 P.3d 1221, 1223 (Colo. App. 2009).

  The court admitted and considered copies of certified sentencing

  orders for each prior conviction and a Department of Motor Vehicles

  (DMV) record for each prior conviction that included a photograph

  of Gwinn, his full name, his birthdate, and the conviction

  recognized by the DMV. The court found that the prosecution met

  its burden and convicted Gwinn of felony DUI.

                         B.    Legal Discussion

¶ 42   We review de novo a trial court’s determination that a

  statutory provision is a sentence enhancer rather than an element

  of the offense. Lopez v. People, 113 P.3d 713, 720 (Colo. 2005).

¶ 43   State legislatures have plenary authority to define the

  elements of a crime; therefore, we look to the plain language of the

  statute to decide whether the prior convictions are elements or

  sentence enhancers. Vega v. People, 893 P.2d 107, 112 (Colo.

  1995); People v. Low, 732 P.2d 622, 627 (Colo. 1987). If the


                                   21
  legislative intent is clear from the plain language of the statute, our

  analysis is complete. People v. Vigil, 2013 COA 102, ¶ 13.

¶ 44   A statutory provision is a sentence enhancer when the

  defendant may be convicted of the underlying offense without any

  proof of the prior conviction. People v. Whitley, 998 P.2d 31, 33

  (Colo. App. 1999); see also Vega, 893 P.2d at 112; Armintrout v.

  People, 864 P.2d 576, 580 (Colo. 1993); Schreiber, 226 P.3d at

  1223. Linking the severity of punishment to the presence or

  absence of an identified fact does not automatically make that fact

  an element. Almendarez-Torres v. United States, 523 U.S. 224, 242

  (1998).

¶ 45   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. Blakely v. Washington, 542 U.S. 296, 303

  (2004); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

  “Although there is some doubt about the continued vitality of the

  prior conviction exception,” Lopez, 113 P.3d at 723, the United

  States Supreme Court and the Colorado Supreme Court have

  repeatedly affirmed this exception, see United States v. Booker, 543


                                    22
  U.S. 220, 224 (2005); Blakely, 542 U.S. at 301; People v. Huber,

  139 P.3d 628, 631 (Colo. 2006); Lopez, 113 P.3d at 723.

¶ 46   Moreover, Apprendi’s prior conviction exception extends to the

  additional statutory factual findings for each conviction necessary

  to support an enhanced sentence, including (1) that each prior

  conviction was separately brought and tried; (2) that each prior

  conviction arose out of separate and distinct criminal episodes; and

  (3) that the accused was the person named in each prior conviction.

  Lopez, 113 P.3d at 726; People v. Parks, 2015 COA 158, ¶¶ 28-29;

  People v. Conyac, 2014 COA 8M, ¶ 167; People v. Poindexter, 2013

  COA 93, ¶¶ 72-73 (rejecting contention that habitual sentence must

  be vacated because it was based on facts found by a judge rather

  than a jury); People v. LaPage, 397 P.3d 1074, 1082-83 (Colo. App.

  2011) (“There is no right to a jury determination of habitual

  criminal charges.”), aff’d on other grounds, 2014 CO 13; People v.

  Moore, 226 P.3d 1076, 1089-90 (Colo. App. 2009) (rejecting the

  defendant’s claim that his Sixth Amendment right to a jury trial was

  violated because a judge, rather than a jury, determined the

  habitual criminal counts); People v. Nunn, 148 P.3d 222, 226-28

  (Colo. App. 2006) (habitual criminality may be constitutionally


                                   23
  adjudicated by a judge and not a jury); People v. Felder, 129 P.3d

  1072, 1074 (Colo. App. 2005) (rejecting the defendant’s argument

  that under Apprendi and Blakely his habitual criminality should

  have been pleaded and proved to a jury); People v. Flowers, 128

  P.3d 285, 289 (Colo. App. 2005) (noting that Apprendi does not

  require a jury to determine whether a defendant’s prior convictions

  were separately brought and tried); People v. Benzor, 100 P.3d 542,

  545 (Colo. App. 2004); People v. Carrasco, 85 P.3d 580, 582 (Colo.

  App. 2003).

                             C.    Analysis

¶ 47   Section 42-4-1301(1)(a) provides in relevant part as follows:

            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 DWAI . . . or
            any combination thereof.

¶ 48   Section 42-4-1301(1)(j) provides in relevant part as follows:

            For the purposes of this section, a person is
            deemed to have a prior conviction for DUI, DUI
            per se or DWAI; . . . if the person has been
            convicted under the laws of this state or under
            the laws of any other state, the United States,
            or any territory subject to the jurisdiction of
            the United States, of an act that, if committed
            within this state, would constitute any of these


                                   24
            offenses. The prosecution shall set forth such
            prior convictions in the indictment or
            information.

¶ 49   The plain language of the statute convinces us that the

  General Assembly intended prior DUI convictions to constitute a

  sentence enhancer rather than an element of DUI. Section 42-4-

  1301(1)(a) makes it unlawful for a person to “drive[] a motor vehicle

  or vehicle under the influence of alcohol or one or more drugs, or a

  combination of both alcohol and one or more drugs.” These are the

  only elements necessary to convict Gwinn of DUI. The fact of his

  prior convictions served only to determine the severity of his

  punishment. See Schreiber, 226 P.3d at 1223 (concluding that an

  enhancement from a misdemeanor was not an element “because: (1)

  a defendant may be convicted of the underlying offense without any

  proof regarding the sentence enhancer; and (2) the sentence

  enhancement provision only increases the potential punishment”).

¶ 50   To the extent that Gwinn claims the burden of proof should

  have been beyond a reasonable doubt, rather than a preponderance

  of the evidence, we are not persuaded. Unlike the habitual criminal

  statute, section 18-1.3-803(4)(b), C.R.S. 2017, which clearly states

  that the “prosecuting attorney has the burden of proving beyond a


                                    25
  reasonable doubt that the defendant has been previously convicted

  as alleged,” the DUI statute contains no such requirement.

  Similarly, unlike crime of violence counts, which must be submitted

  to the jury (§ 18-1.3-406(4), C.R.S. 2017) and proven beyond a

  reasonable doubt (People v. Russo, 713 P.2d 356, 364 (Colo. 1986)),

  the DUI statute does not require that prior convictions be submitted

  to a jury. We may not add language to a statute that does not exist.

  See People v. Diaz, 2015 CO 28, ¶ 12 (“We do not add words to the

  statute or subtract words from it.” (quoting Turbyne v. People, 151

  P.3d 563, 567 (Colo. 2007))).

¶ 51   Moreover, when a sentencing statute does not establish a

  burden of proof, a court may properly apply the preponderance of

  the evidence standard. See People v. Wilson, 2013 COA 75, ¶ 58

  (finding prior drug felony used to enhance sentence properly proved

  by a preponderance of the evidence); Schreiber, 226 P.3d at 1224

  (where a statute does not establish a burden of proof,

  preponderance of the evidence determined by a judge is proper); see

  also People v. Lacey, 723 P.2d 111, 124 (Colo. 1986) (prosecution

  required to prove the defendant was on probation by a

  preponderance of the evidence standard at revocation hearing).


                                   26
¶ 52   We acknowledge 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. See Vigil, ¶ 27 (citing

  Schreiber, 226 P.3d at 1225 (Bernard, J. dissenting)). Indeed,

  article II, section 23 of the Colorado Constitution provides “a right

  to a jury of twelve in criminal cases in courts of record that cannot

  be circumscribed by the General Assembly or any rule of

  procedure.” Id. at ¶ 28 (quoting People v. Rodriguez, 112 P.3d 693,

  699 (Colo. 2005)). And our supreme court has interpreted this

  provision to require a jury of twelve in felony cases, as opposed to

  the jury of six a defendant receives in a misdemeanor case. See

  § 18-1-406(1), C.R.S. 2017; Crim. P. 23(a)(1)(2); see also Rodriguez,

  112 P.3d at 703 (right to twelve jurors does not extend to

  misdemeanor cases).

¶ 53   But this case is not like Vigil, where the defendant received no

  constitutional or procedural protections but instead, was charged,

  tried, and convicted of a misdemeanor in county court and then

  sentenced for a felony in county court based on his prior

  misdemeanor convictions. Rather, section 42-4-1301 requires the


                                    27
  prosecution to bring a felony DUI charge in an “indictment or

  information,” and to identify the prior DUI convictions that make it

  a felony. See § 42-4-1301(1)(j), C.R.S. 2017; see also § 16-5-101,

  C.R.S. 2017 (describing how felony charges are brought by

  indictment, information in district court and felony complaint).

  Consequently, the DUI prosecution occurs in the district court

  where felony protections exist. And the record here demonstrates

  that (1) the prosecution charged Gwinn by felony complaint and

  information; (2) the case proceeded in the district court; and (3) a

  jury of twelve persons convicted him of DUI.

¶ 54   Finally, we note that courts in other jurisdictions with felony

  DUI statutes have consistently applied the holdings of Apprendi and

  Almendarez-Torres to find that prior convictions need not be

  submitted to a jury or be proved beyond a reasonable doubt. See

  State v. Palmer, 189 P.3d 69, 75-76 (Utah Ct. App. 2008) (collecting

  cases).

¶ 55   To the extent Gwinn claims the prosecution failed to plead the

  prior convictions in the charging document, we reject that

  contention because the only charging document in the appellate

  record charges DUI as a class 4 felony. We note that the document


                                    28
  in the record is obscured and less than clear. However, the burden

  rests with the appellant to provide a complete appellate record, and

  we must presume the correctness of documents discussed by the

  court but not before us. See People v. Ullery, 984 P.2d 586, 591

  (Colo. 1999) (explaining that an appealing party must provide a

  complete record, without which we presume the correctness of the

  trial court’s proceedings); People in the Interest of A.W., 2015 COA

  144M, ¶ 18 (same).

¶ 56   Because we agree with the reasoning of the cases cited above,

  and because we are bound by our supreme court’s recognition of

  the prior conviction exception, we perceive no error in the trial

  court’s adjudication of Gwinn as a felony DUI offender and affirm

  his conviction.

                             VII. Conclusion

¶ 57   The judgment is affirmed.

       JUDGE TERRY and JUDGE NAVARRO concur.




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