COLORADO COURT OF APPEALS                                    2017COA40M


Court of Appeals No. 14CA0842
Mesa County District Court No. 13CR443
Honorable Valerie J. Robison, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kelly Gene Davis,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                  Division II
                        Opinion by JUDGE J. JONES
                        Dailey and Berger, JJ., concur

             Prior Opinion Announced April 6, 2017, WITHDRAWN
                         Petition for Rehearing DENIED

                           Announced May 4, 2017


Cynthia H. Coffman, Attorney General, Brock J. Swanson, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Anne Stockham, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Kelly Gene Davis, appeals the judgment of

 conviction entered on a jury verdict finding him guilty of conspiracy

 to distribute a schedule II controlled substance and court verdicts

 finding him guilty on several habitual criminal charges. His

 primary contention on appeal is that the People were required to

 prove, and the jury was required to find, that he committed a

 particular overt act in furtherance of the alleged conspiracy. We

 hold, however, that where the People properly charge a single

 conspiracy, they are required to prove only that the defendant

 committed an overt act in furtherance of the conspiracy; that is, the

 jury must agree unanimously that the defendant committed such

 an overt act, but it need not agree unanimously that the defendant

 committed a particular overt act. It follows that the district court

 did not err in failing to require the prosecution to elect a particular

 overt act on which it was relying to prove the charge or in failing to

 give the jury a special unanimity instruction. Because we also

 reject defendant’s other contentions of error, we affirm the

 judgment of conviction.




                                    1
                            I. Background

¶2    In January 2013, the Grand Junction Police Department and

 a Drug Enforcement Agency Taskforce began investigating the

 activities of Leonel Gonzalez-Gonzalez. The investigation entailed

 wiretapping several of Mr. Gonzalez-Gonzalez’s telephones from

 February 2013 through April 2013. Police recorded several

 telephone calls between him and defendant during that time.

¶3    As a result of the investigation, the People charged defendant

 with one count of conspiracy to distribute a schedule II controlled

 substance (methamphetamine) and several habitual criminal

 counts.

¶4    At trial, Deziree Fisher, a named co-conspirator, testified to

 participating in and witnessing drug transactions involving

 defendant. She said that she provided defendant with drugs, which

 he would then sell, using the money he made to pay her back. Ms.

 Fisher also said that she had been convicted of intent to distribute

 a controlled substance for her role in drug sales involving defendant

 and other co-conspirators, and that she was testifying in the hope

 of receiving a sentence reduction.



                                      2
¶5    Terry Lawrence testified that he was present in January or

 February 2013 when Mr. Gonzalez-Gonzalez and his associate

 delivered an ounce or more of methamphetamine to defendant and

 collected money from him. At the time of the trial, Mr. Lawrence

 had been charged with racketeering and conspiracy to distribute

 drugs. He testified that he had not yet been convicted or entered

 into a plea agreement, and that he was testifying in the hope of

 receiving a favorable plea offer.

¶6    Detective Jason Sawyer testified that in phone calls recorded

 in February through April 2013, Mr. Gonzalez-Gonzalez agreed to

 supply defendant with methamphetamine to sell. He also testified

 that a series of recorded calls from April 1, 2013, showed Mr.

 Gonzalez-Gonzalez and defendant planning to rent a car to use to

 pick up drugs. Police officers watched the car rental franchise

 where the two had arranged to meet and identified one of the people

 who arrived at the meeting as defendant.

¶7    A jury convicted defendant of the conspiracy charge, and the

 district court, after finding that defendant was a habitual criminal,

 sentenced him to forty-eight years in the custody of the Department

 of Corrections.

                                     3
                             II. Discussion

¶8    Defendant contends that the district court erred in (1) not (a)

 requiring the prosecution to elect the overt act on which it was

 relying to prove the conspiracy charge or (b) giving the jury a

 special, modified unanimity instruction regarding the particular

 overt act; (2) not providing a limiting instruction to preclude the

 jury from considering witnesses’ guilty pleas or desires to plead

 guilty as evidence of his guilt; and (3) imposing an aggravated

 sentence based on its own findings of prior criminality. We address

 and reject each contention in turn.

                             A. Unanimity

                1. Preservation and Standard of Review

¶9    The parties agree that this issue was not preserved: defense

 counsel never requested that the prosecution elect a particular

 overt act, nor did counsel request a special unanimity instruction.

 Because of this, the People argue that defendant waived his

 contention. That is so, they say, because defendant didn’t make a

 duplicity challenge under Crim. P. 12(b). See Specht v. People, 156

 Colo. 12, 16, 396 P.2d 838, 840 (1964) (a duplicity challenge is

 waived if not raised before trial); Russell v. People, 155 Colo. 422,

                                    4
426, 395 P.2d 16, 18 (1964) (same).1 But defendant isn’t making a

duplicity challenge on appeal: he isn’t arguing that the People

charged more than one offense in a single count. See Specht, 156

Colo. at 16, 396 P.2d at 840; Russell, 155 Colo. at 426, 395 P.2d at

18.2 Rather, he argues that because the prosecution presented

evidence of more than one overt act in furtherance of the

1   Crim. P. 12(b)(2) provides, in relevant part, as follows:

             Defenses and objections based on defects in
             the institution of the prosecution or in the
             indictment or information or complaint, or
             summons and complaint, other than that it
             fails to show jurisdiction in the court or to
             charge an offense, may be raised only by
             motion. . . . Failure to present any such
             defense or objection constitutes a waiver of it,
             but the court for cause shown may grant relief
             from the waiver.
2 Count one of the indictment, charging conspiracy to distribute
controlled substances, plainly didn’t charge more than one offense.
It alleged in full as follows:

             Between and including February 21, 2013 and
             April 3, 2013, Kelly Gene Davis unlawfully,
             feloniously, and knowingly conspired with
             Leonel Gonzalez-Gonzalez, Desiree Fisher and
             a person or persons to the District Attorney
             unknown, to sell or distribute
             Methamphetamine and/or cocaine, a schedule
             II controlled substance; in violation of section
             18-18-405(1), (2)(a)(I)(A), C.R.S.

                                      5
  conspiracy, it should have been required to elect or the court

  should have given the jury a special unanimity instruction.

  Because he doesn’t assert that there is a defect in the charging

  document, Crim. P. 12(b) doesn’t apply and there was no waiver.

  See Reyna-Abarca v. People, 2017 CO 15, ¶¶ 38-45.

¶ 10   Reviewing defendant’s contention requires us to determine

  whether the court erred and, if so, whether the error requires

  reversal.

¶ 11   Determining whether to require the prosecution to elect a

  particular act on which it is relying to prove a charge involves an

  exercise of the district court’s discretion, see Thomas v. People, 803

  P.2d 144, 154 (Colo. 1990), as does determining whether to give a

  particular jury instruction, People v. Marks, 2015 COA 173, ¶ 53.

  So in reviewing both decisions for error, we must decide whether

  the district court abused its discretion.

¶ 12   But where the court did not have the opportunity to exercise

  discretion because the defendant did not move for an election or

  request the instruction now claimed to have been required, how can

  we even determine whether the court abused its discretion? We can

  do so by framing the inquiry in a slightly different way: had the

                                     6
  defendant timely moved for an election or asked for the instruction,

  would the court have abused its discretion in refusing either of

  those requests?

¶ 13   If, in this case, we answer that question “yes” with respect to

  either requiring an election or instruction, because defendant did

  not timely move for an election or ask for an instruction, we must

  then determine whether the error was plain. Under that standard,

  we will reverse only if the error is obvious and so undermined the

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

  reliability of the judgment of conviction. People v. Miller, 113 P.3d

  743, 750 (Colo. 2005).

                               2. Analysis

¶ 14   In Colorado, jury verdicts in criminal cases must be

  unanimous. § 16-10-108, C.R.S. 2016; Crim. P. 23(a)(8), 31(a)(3);

  People v. Durre, 690 P.2d 165, 173 (Colo. 1984). To ensure jury

  unanimity, when the prosecution offers “evidence of multiple acts,

  any one of which would constitute the offense charged, the People

  may be compelled to elect the acts or series of acts on which they

  rely for a conviction.” Melina v. People, 161 P.3d 635, 639 (Colo.

  2007) (citing People v. Estorga, 200 Colo. 78, 81, 612 P.2d 520, 523

                                     7
  (1980)). But when the People charge a defendant with crimes

  occurring in a single transaction, they do not have to elect among

  the acts that constitute the crime, and a special unanimity

  instruction — that is, one telling the jury that it must agree

  unanimously as to the act proving each element — need not be

  given. Id. at 639-42. The first issue before us, then, is what

  constitutes a single transaction in the context of a conspiracy

  charge.

¶ 15   The General Assembly’s enactments necessarily inform our

  inquiry. Section 18-2-204(1), C.R.S. 2016, provides that

  “[c]onspiracy is a continuing course of conduct which terminates

  when the crime or crimes which are its object are committed.”

  (Emphasis added.) Another statute also specifies that “[i]f a person

  conspires to commit a number of crimes, he is guilty of only one

  conspiracy so long as such multiple crimes are part of a single

  criminal episode.” § 18-2-201(4), C.R.S. 2016. Read together, the

  applicable statutes make clear that a defendant can participate in a

  number of crimes or events to accomplish a single conspiracy. Put

  another way, committing a number of crimes, or engaging in a



                                     8
  number of noncriminal overt acts, does not necessarily mean there

  is more than one conspiracy.

¶ 16   Accordingly, we must determine how broadly the prosecution

  may define a conspiracy without the charge encompassing multiple

  criminal episodes, consequently requiring either an election or a

  special unanimity instruction.

¶ 17   We begin with the principle that a single conspiratorial

  agreement may not be divided into multiple charges. E.g., United

  States v. Papa, 533 F.2d 815, 820 (2d Cir. 1976); United States v.

  Young, 503 F.2d 1072, 1075 (3d Cir. 1974); United States v.

  Palermo, 410 F.2d 468, 470 (7th Cir. 1969). The Supreme Court

  explained this principle in Braverman v. United States, 317 U.S. 49,

  53-54 (1942):

            Whether the object of a single agreement is to
            commit one or many crimes, it is in either case
            that agreement which constitutes the
            conspiracy which the statute punishes. The
            one agreement cannot be taken to be several
            agreements and hence several conspiracies
            because it envisages the violation of several
            statutes rather than one.

            . . . Since the single continuing agreement,
            which is the conspiracy here, thus embraces
            its criminal objects, it differs from successive


                                    9
            acts which violate a single penal statute and
            from a single act which violates two statutes.

  See also Model Penal Code § 5.03(3) (Am. Law Inst. 1985) (“If a

  person conspires to commit a number of crimes, he is guilty of only

  one conspiracy so long as such multiple crimes are the object of the

  same agreement or continuous conspiratorial relationship.”). As

  the above-quoted statutes indicate, Colorado has adopted this

  approach as it pertains to conspiracy charges. See also People v.

  Brown, 185 Colo. 272, 277, 523 P.2d 986, 989 (1974) (noting that

  Colorado has adopted the above-quoted language from Braverman),

  overruled on other grounds by Villafranca v. People, 194 Colo. 472,

  573 P.2d 540 (1978); People v. Bradley, 169 Colo. 262, 265-66, 455

  P.2d 199, 200 (1969) (adopting the above-quoted language from

  Braverman).

¶ 18   The supreme court has indicated that the following factors

  tend to show a single criminal episode: the acts alleged occurred

  during the same period, the type of overt act alleged is the same,

  the unlawful objective of the conspiracy is the same, the modus

  operandi is the same, and the same evidence would be relevant to

  the charges. Pinelli v. Dist. Court, 197 Colo. 555, 558, 595 P.2d


                                   10
  225, 227 (1979). Conversely, factors that may suggest that the

  People have charged multiple criminal episodes are that the

  defendant is “charged with conspiring (1) with different parties; (2)

  in different counties; (3) in different agreements; and [4] with

  allegations of different overt acts.” Id.

¶ 19   Federal courts employ a similar multi-factor test to determine

  whether there was only one agreement, and thus only one

  conspiracy. See, e.g., United States v. Rigas, 605 F.3d 194, 213 (3d

  Cir. 2010) (en banc) (considering whether the locations of the

  alleged conspiracies were the same; whether there was a significant

  degree of temporal overlap between the conspiracies charged;

  whether there was an overlap of personnel between the conspiracies

  (including unindicted as well as indicted co-conspirators); the

  nature of the overt acts charged; and whether the role played by the

  defendant was similar).

¶ 20   Applying the relevant factors, we conclude that the evidence

  presented in this case shows one criminal episode, and hence one

  conspiracy. First, the actions occurred in a relatively short time

  frame — from February 21, 2013, to April 8, 2013 — and in one

  county. Cf. People v. Rivera, 56 P.3d 1155, 1160 (Colo. App. 2002)

                                     11
(noting the two-year period over which the alleged crimes occurred

as one factor showing multiple conspiracies). Second, evidence of

defendant’s phone conversations with one person (Mr.

Gonzalez-Gonzalez) primarily established the conspiracy.3 Third, all

the overt acts on which the jury could have relied — defendant

ordering drugs from Mr. Gonzalez-Gonzalez, accepting drugs from

Ms. Fisher and Mr. Gonzalez-Gonzalez, and showing up to the car

rental franchise at Mr. Gonzalez-Gonzalez’s request — were done in

furtherance of the same unlawful objective — to distribute one type

of drug supplied by one co-conspirator. Though some of these acts

were not crimes,4 they were all a part of a single course of conduct

in which Mr. Gonzalez-Gonzalez would regularly supply

methamphetamine to defendant to sell. A single crime of

conspiracy can be defined this broadly. See Commonwealth v.

Albert, 745 N.E.2d 990, 997 (Mass. App. Ct. 2001) (“No unanimity

3 Ms. Fisher testified that in January or February 2013, Mr.
Gonzalez-Gonzalez supplied drugs to someone who then sold them
to her. She sold those drugs to defendant, who then sold them to
others. She stopped selling drugs to defendant after about a month
and a half, after which Mr. Gonzalez-Gonzalez supplied defendant
directly.
4See Braverman v. United States, 317 U.S. 49, 53 (1942) (“The overt
act . . . need not be itself a crime.”).
                                 12
  instruction was required because a conspiracy refers to a

  continuing course of conduct, rather than a succession of clearly

  detached incidents.”). And given the nature and limited scope of

  defendant’s arrangement with Mr. Gonzalez-Gonzalez, it is clear

  that “[n]o danger exists that some jurors would think [defendant]

  was guilty of one conspiracy and others would think []he was guilty

  of a different one.” People v. Russo, 25 P.3d 641, 647-48 (Cal.

  2001).

¶ 21   Though the prosecution alleged numerous overt acts in

  furtherance of the single conspiracy, that did not require

  unanimous agreement by the jurors as to the precise overt act

  defendant committed. This is so because the Colorado Supreme

  Court has held that “unanimity is required only with respect to the

  ultimate issue of the defendant’s guilt or innocence of the crime

  charged and not with respect to alternative means by which the

  crime was committed.” People v. Taggart, 621 P.2d 1375, 1387 n.5

  (Colo. 1981).5 Indeed, it has long been established that a jury need


  5 The supreme court’s decision in James v. People, 727 P.2d 850
  (Colo. 1986), can be read as retreating from this position, although
  it dealt with a somewhat different issue. In that case, the court
  held that due process requires that when the People present
                                   13
  not unanimously decide “which of several possible sets of

  underlying brute facts make up a particular element,” or “which of

  several possible means the defendant used to commit an element of

  the crime.” Richardson v. United States, 526 U.S. 813, 817 (1999);

  see also Schad v. Arizona, 501 U.S. 624, 631 (1991) (plurality

  opinion) (“[A]n indictment need not specify which overt act, among

  several named, was the means by which a crime was committed.”);

  United States v. Griggs, 569 F.3d 341, 343 (7th Cir. 2009) (“The law

  distinguishes between the elements of a crime, as to which the jury

  must be unanimous, and the means by which the crime is

  committed.”) (jury not required to agree unanimously on particular

  overt act taken in support of conspiracy).

¶ 22   In United States v. Gonzalez, 786 F.3d 714, 718 (9th Cir.

  2015), the Ninth Circuit, addressing the overt act element of

  conspiracy specifically, reasoned as follows:



  different theories of how a defendant committed an offense, each
  such theory must be supported by evidence sufficient to meet the
  proof beyond a reasonable doubt test. Id. at 853-55. In so holding,
  the court rejected any contrary implication in People v. Taggart, 621
  P.2d 1375 (Colo. 1981), and other cases. But in People v.
  Dunaway, 88 P.3d 619 (Colo. 2004), the court expressly overruled
  James on this point, relying on Griffin v. United States, 502 U.S. 46
  (1991).
                                    14
             To be sure, because the instruction for the
             overt-act element requires the jury to find
             merely “[a]n overt act” committed by a person
             who has agreed and intended to commit a
             particular murder, it is possible that, although
             the jury unanimously agreed that an overt act
             was taken with respect to the unanimously
             agreed-upon murder conspiracy, different
             jurors may have concluded that different
             particular overt acts satisfied this element.
             Even if this occurred, however, [the
             defendant’s] right to a unanimous jury verdict
             was not violated because, so long as the jurors
             unanimously agreed that the overt-act element
             was satisfied, it was not necessary for them to
             agree on which overt act satisfied this element.

¶ 23   Courts in other jurisdictions have also applied this principle to

  the overt act requirement of conspiracy charges. The California

  Supreme Court, for example, has explained that the element of an

  overt act “consists of an overt act, not a specific overt act.” Russo,

  25 P.3d at 647; see also United States v. Kozeny, 667 F.3d 122, 132

  (2d Cir. 2011) (“[W]hich overt act among multiple such acts

  supports a proof of a conspiracy conviction is a brute fact and not

  itself an element of the crime.”); Griggs, 569 F.3d at 343; State v.

  Ayala-Leyva, 848 N.W.2d 546, 553-54 (Minn. Ct. App. 2014) (the

  jury was not required to unanimously agree on which of twenty

  overt acts had been committed in furtherance of drug conspiracy;


                                     15
  distinguishing between unanimity on the elements of a crime and

  unanimity as to the facts establishing each element of a crime).

  Colorado’s statute criminalizing conspiracy reflects this approach.

  § 18-2-201(2) (“No person may be convicted of conspiracy to commit

  a crime, unless an overt act in pursuance of that conspiracy is

  proved . . . .”) (emphasis added).

¶ 24   In sum, courts agree that “a special unanimity instruction is

  not necessary where an indictment charges a single conspiracy

  because ‘the crux of a conspiracy charge . . . [is] [t]he defendant’s

  voluntary agreement with another or others to commit an offense.’”

  United States v. Dvorin, 817 F.3d 438, 447 (5th Cir. 2016)

  (alterations in original) (quoting United States v. Dillman, 15 F.3d

  384, 391 (5th Cir. 1994)); see also United States v. Cromer, 436 F.

  App’x 490, 493 (6th Cir. 2011) (“[T]he jury need only unanimously

  decide that there was an agreement to violate drug laws . . . .”).

¶ 25   People v. Rivera, on which defendant relies, is distinguishable.

  In that case, the prosecution presented evidence of securities

  transactions “involving at least twenty-five investors, concerning

  two proposed daycare facilities in different cities, and spanning a

  two-year period.” 56 P.3d at 1160. Further, there was substantial

                                       16
  variety in the defendant’s involvement in the various acts:

  “Defendant took part in soliciting some investors, but not others,

  and as to at least one transaction there was no evidence that she

  had any direct contact with the investor.” Id. The division therefore

  concluded that “[u]nder these circumstances, there is a reasonable

  likelihood that the jury could have disagreed concerning the act or

  acts defendant committed.” Id. In essence, there were multiple

  conspiracies.

¶ 26   As discussed above, the conspiracy in this case occurred over

  only a few months in one county. There is also a uniformity of

  defendant’s involvement in the acts that was lacking in Rivera —

  defendant was convicted based on ongoing phone calls and

  transactions with one person ordering methamphetamine in similar

  quantities. See United States v. Sutherland, 656 F.2d 1181, 1202

  (5th Cir. 1981) (“[T]he evidence as to each [of the overt acts] is

  remarkably similar. Therefore this series of alleged acts comprises

  one ‘conceptual group’ and the jury need not have unanimously

  agreed as to which was proven.”).

¶ 27   We therefore conclude that the People charged only one

  criminal episode. It follows that the district court did not err, much

                                     17
  less plainly err, in failing to require an election or to give the jury a

  special unanimity instruction.6

                            B. Limiting Instruction

¶ 28       We also reject defendant’s contention that the district court

  erred by failing to provide a limiting instruction telling the jurors

  they could not consider Ms. Fisher’s guilty plea and Mr. Lawrence’s

  desire to receive a favorable plea offer as evidence of defendant’s

  guilt.

¶ 29       Because defendant did not request a limiting instruction, we

  review for plain error. People v. Griffin, 224 P.3d 292, 298 (Colo.

  App. 2009).



  6 Given the abundance of authority holding that no special
  instruction is required in comparable circumstances, any error was
  certainly not “so clear cut and so obvious that a trial judge should
  have been able to avoid it without benefit of the objection.” People
  v. Conyac, 2014 COA 8M, ¶ 54. “Generally, an error is obvious
  when the action challenged on appeal contravenes (1) a clear
  statutory command; (2) a well-settled legal principle; or (3) Colorado
  case law.” People v. Dinapoli, 2015 COA 9, ¶ 30; accord People v.
  Pollard, 2013 COA 31M, ¶ 40; see also People v. Valdez, 2014 COA
  125, ¶ 27 (where case law on an issue is unsettled, an error is not
  obvious); Dougherty v. State, 21 A.3d 1, 6-7 (Del. 2011) (“Several
  state and federal courts have concluded that a trial judge does not
  commit plain error where defense counsel fails to request, and the
  trial judge does not give sua sponte, a specific unanimity
  instruction on the overt act requirement of a conspiracy count.”).
                                       18
¶ 30   Pursuant to CRE 105, where there is evidence that is

  admissible for one purpose but not for another, “the court, upon

  request, shall restrict the evidence to its proper scope and instruct

  the jury accordingly.” And, “[a]s a general rule, defense counsel is

  charged with the task of deciding whether a limiting instruction is

  desirable,” Griffin, 224 P.3d at 298, because “for strategic or tactical

  reasons, [defense counsel] may consider that such an instruction

  would be more harmful than beneficial.” People v. Gladney, 194

  Colo. 68, 72, 570 P.2d 231, 234 (1977) (A limiting instruction

  “might tend to draw special attention to the evidence, thus giving it

  greater emphasis and jury impact than it would have had if left

  alone.”).

¶ 31   Thus, absent a special statutory duty, a trial court has no

  duty to give a limiting instruction sua sponte. See, e.g., Davis v.

  People, 2013 CO 57, ¶ 21 (“Unless a limiting instruction is either

  required by statute or requested by a party, a trial court has no

  duty to provide one sua sponte.”). Defendant does not point to any

  such statutory duty applicable in this case.

¶ 32   Defendant’s reliance on People v. Brunner, 797 P.2d 788, 789

  (Colo. App. 1990), is misplaced. In that case, the division held that

                                     19
  a trial court “should normally instruct the jury that [an

  accomplice’s guilty plea] may be used only for limited purposes and

  may not be used as substantive evidence of another’s guilt.” Id.

  But in this case, because defense counsel failed to request such an

  instruction, “appellate review is limited to determining whether

  plain error occurred.” People v. Shepherd, 43 P.3d 693, 696 (Colo.

  App. 2001). And numerous cases hold that a trial court’s failure to

  give a limiting instruction sua sponte does not constitute plain

  error. See, e.g., People v. Montalvo-Lopez, 215 P.3d 1139, 1145

  (Colo. App. 2008) (failure to request a limiting instruction on how

  the jury should consider an accomplice’s guilty plea did not place a

  duty on the trial court to give one sua sponte). None of the cases

  defendant cites says otherwise.

¶ 33   Further, there was no obvious error. The testimony was

  relevant for two reasons. First, it allowed the People to “blunt an

  expected attack on the credibility of the accomplice as a witness.”

  Brunner, 797 P.2d at 789. Second, it “show[ed] acknowledgement

  by the accomplice of participation in the offense,” id., which is

  particularly relevant in establishing a conspiracy. And defendant



                                    20
  took strategic advantage of the witnesses’ plea and potential plea,

  using the testimony to undermine their credibility.

¶ 34   Given all this, the district court “did not commit the kind of

  obvious error that may lead to reversal under the plain error

  doctrine.” Griffin, 224 P.3d at 299; see also People v. Pollard, 2013

  COA 31M, ¶ 40 (for an error to be obvious, it must contravene a

  clear statutory command, a well-settled legal principle, or Colorado

  case law).

           C. Judicial Determination of Habitual Criminality

¶ 35   Lastly, defendant contends that his rights to a trial by a jury

  and to due process of law were violated when the judge, instead of a

  jury, found that he had been convicted of three prior felonies.

¶ 36   As the law stands today, “[o]ther than the fact of a prior

  conviction, any fact that increases the penalty for a crime beyond

  the prescribed statutory maximum must be submitted to a jury,

  and proved beyond a reasonable doubt.” Apprendi v. New Jersey,

  530 U.S. 466, 490 (2000) (emphasis added); see also Blakely v.

  Washington, 542 U.S. 296, 301 (2004) (applying this rule). The

  Colorado Supreme Court, in applying this rule, has held that the

  fact of a prior conviction, called a “Blakely-exempt” fact, “is

                                     21
  expressly excepted from the jury trial requirement” for aggravated

  sentencing. Lopez v. People, 113 P.3d 713, 723 (Colo. 2005); see

  also People v. Huber, 139 P.3d 628, 630 (Colo. 2006). The court has

  said that, “[a]lthough there is some doubt about the continued

  vitality of the prior conviction exception, we conclude that it

  remains valid after Blakely.” Lopez, 113 P.3d at 723 (footnote

  omitted); see also Huber, 139 P.3d at 631.

¶ 37   Defendant argues that Lopez was wrongly decided or that

  developments after Lopez indicate that the “prior conviction

  exception” is no longer valid. Specifically, he asserts that, “[w]hile it

  has not been expressly overruled,” the case from which the prior

  conviction exception arose — Almendarez-Torres v. United States,

  523 U.S. 224 (1998) — has been called into question and will be

  overturned by the United States Supreme Court when the

  opportunity arises. See Apprendi, 530 U.S. at 488-90; Misenhelter

  v. People, 234 P.3d 657, 660 (Colo. 2010).

¶ 38   But because the Supreme Court has not overruled the prior

  conviction exception recognized in Apprendi and Blakely, those

  authorities continue to control our resolution of defendant’s

  argument. See People v. Hopkins, 2013 COA 74, ¶ 25; see also

                                     22
  People v. Gladney, 250 P.3d 762, 768 n.3 (Colo. App. 2010) (“[W]e

  are bound to follow supreme court precedent.”). “We do not have

  the power to ignore those precedents based on speculation of how

  the Court might rule in a future case.” Hopkins, ¶ 25. Therefore,

  defendant’s argument fails.

                            III. Conclusion

¶ 39   The judgment is affirmed.

       JUDGE DAILEY and JUDGE BERGER concur.




                                   23
COLORADO COURT OF APPEALS                                      2017COA40


Court of Appeals No. 14CA0842
Mesa County District Court No. 13CR443
Honorable Valerie J. Robison, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kelly Gene Davis,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                  Division II
                        Opinion by JUDGE J. JONES
                        Dailey and Berger, JJ., concur

                           Announced April 6, 2017


Cynthia H. Coffman, Attorney General, Brock J. Swanson, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Anne Stockham, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Kelly Gene Davis, appeals the judgment of

 conviction entered on a jury verdict finding him guilty of conspiracy

 to distribute a schedule II controlled substance and court verdicts

 finding him guilty on several habitual criminal charges. His

 primary contention on appeal is that the People were required to

 prove, and the jury was required to find, that he committed a

 particular overt act in furtherance of the alleged conspiracy. We

 hold, however, that where the People properly charge a single

 conspiracy, they are required to prove only that the defendant

 committed an overt act in furtherance of the conspiracy; that is, the

 jury must agree unanimously that the defendant committed such

 an overt act, but it need not agree unanimously that the defendant

 committed a particular overt act. It follows that the district court

 did not err in failing to require the prosecution to elect a particular

 overt act on which it was relying to prove the charge or in failing to

 give the jury a special unanimity instruction. Because we also

 reject defendant’s other contentions of error, we affirm the

 judgment of conviction.




                                    1
                            I. Background

¶2    In January 2013, the Grand Junction Police Department and

 a Drug Enforcement Agency Taskforce began investigating the

 activities of Leonel Gonzalez-Gonzalez. The investigation entailed

 wiretapping several of Mr. Gonzalez-Gonzalez’s telephones from

 February 2013 through April 2013. Police recorded several

 telephone calls between him and defendant during that time.

¶3    As a result of the investigation, the People charged defendant

 with one count of conspiracy to distribute a schedule II controlled

 substance (methamphetamine) and several habitual criminal

 counts.

¶4    At trial, Deziree Fisher, a named co-conspirator, testified to

 participating in and witnessing drug transactions involving

 defendant. She said that she provided defendant with drugs, which

 he would then sell, using the money he made to pay her back. Ms.

 Fisher also said that she had been convicted of intent to distribute

 a controlled substance for her role in drug sales involving defendant

 and other co-conspirators, and that she was testifying in the hope

 of receiving a sentence reduction.



                                      2
¶5    Terry Lawrence testified that he was present in January or

 February 2013 when Mr. Gonzalez-Gonzalez and his associate

 delivered an ounce or more of methamphetamine to defendant and

 collected money from him. At the time of the trial, Mr. Lawrence

 had been charged with racketeering and conspiracy to distribute

 drugs. He testified that he had not yet been convicted or entered

 into a plea agreement, and that he was testifying in the hope of

 receiving a favorable plea offer.

¶6    Detective Jason Sawyer testified that in phone calls recorded

 in February through April 2013, Mr. Gonzalez-Gonzalez agreed to

 supply defendant with methamphetamine to sell. He also testified

 that a series of recorded calls from April 1, 2013, showed Mr.

 Gonzalez-Gonzalez and defendant planning to rent a car to use to

 pick up drugs. Police officers watched the car rental franchise

 where the two had arranged to meet and identified one of the people

 who arrived at the meeting as defendant.

¶7    A jury convicted defendant of the conspiracy charge, and the

 district court, after finding that defendant was a habitual criminal,

 sentenced him to forty-eight years in the custody of the Department

 of Corrections.

                                     3
                             II. Discussion

¶8    Defendant contends that the district court erred in (1) not (a)

 requiring the prosecution to elect the overt act on which it was

 relying to prove the conspiracy charge or (b) giving the jury a

 special, modified unanimity instruction regarding the particular

 overt act; (2) not providing a limiting instruction to preclude the

 jury from considering witnesses’ guilty pleas or desires to plead

 guilty as evidence of his guilt; and (3) imposing an aggravated

 sentence based on its own findings of prior criminality. We address

 and reject each contention in turn.

                             A. Unanimity

               1. Preservation and Standard of Review

¶9    The parties agree that this issue was not preserved: defense

 counsel never requested that the prosecution elect a particular

 overt act, nor did counsel request a special unanimity instruction.

 Because of this, the People argue that defendant waived his

 contention. That is so, they say, because defendant didn’t make a

 multiplicity challenge under Crim. P. 12(b).1 But the supreme court


 1The Double Jeopardy Clauses of the United States and Colorado
 Constitutions protect “against multiple punishments for the same
                                    4
  recently rejected this argument in People v. Zadra, 2017 CO 18,

  ¶ 17, and Reyna-Abarca v. People, 2017 CO 15, ¶¶ 38-45.

¶ 10   Reviewing defendant’s contention requires us to determine

  whether the court erred and, if so, whether the error requires

  reversal.

¶ 11   Determining whether to require the prosecution to elect a

  particular act on which it is relying to prove a charge involves an

  exercise of the district court’s discretion, see Thomas v. People, 803

  P.2d 144, 154 (Colo. 1990), as does determining whether to give a

  particular jury instruction, People v. Marks, 2015 COA 173, ¶ 53.


  offense.” Woellhaf v. People, 105 P.3d 209, 214 (Colo. 2005)
  (quoting Whalen v. United States, 445 U.S. 684, 688 (1980)).
  “Multiplicity” — the charging of multiple counts and the imposition
  of multiple punishments for the same offense — is a way of running
  afoul of this prohibition. See Quintano v. People, 105 P.3d 585, 589
  (Colo. 2005); Woellhaf, 105 P.3d at 214. Crim. P. 12(b)(2) provides,
  in relevant part, as follows:

              Defenses and objections based on defects in
              the institution of the prosecution or in the
              indictment or information or complaint, or
              summons and complaint, other than that it
              fails to show jurisdiction in the court or to
              charge an offense, may be raised only by
              motion. . . . Failure to present any such
              defense or objection constitutes a waiver of it,
              but the court for cause shown may grant relief
              from the waiver.

                                     5
  So in reviewing both decisions for error, we must decide whether

  the district court abused its discretion.

¶ 12   But where the court did not have the opportunity to exercise

  discretion because the defendant did not move for an election or

  request the instruction now claimed to have been required, how can

  we even determine whether the court abused its discretion? We can

  do so by framing the inquiry in a slightly different way: had the

  defendant timely moved for an election or asked for the instruction,

  would the court have abused its discretion in refusing either of

  those requests?

¶ 13   If, in this case, we answer that question “yes” with respect to

  either requiring an election or instruction, because defendant did

  not timely move for an election or ask for an instruction, we must

  then determine whether the error was plain. Under that standard,

  we will reverse only if the error is obvious and so undermined the

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

  reliability of the judgment of conviction. People v. Miller, 113 P.3d

  743, 750 (Colo. 2005).




                                     6
                               2. Analysis

¶ 14   In Colorado, jury verdicts in criminal cases must be

  unanimous. § 16-10-108, C.R.S. 2016; Crim. P. 23(a)(8), 31(a)(3);

  People v. Durre, 690 P.2d 165, 173 (Colo. 1984). To ensure jury

  unanimity, when the prosecution offers “evidence of multiple acts,

  any one of which would constitute the offense charged, the People

  may be compelled to elect the acts or series of acts on which they

  rely for a conviction.” Melina v. People, 161 P.3d 635, 639 (Colo.

  2007) (citing Laycock v. People, 66 Colo. 441, 182 P. 880 (1919)).

  But when the People charge a defendant with crimes occurring in a

  single transaction, they do not have to elect among the acts that

  constitute the crime, and a special unanimity instruction — that is,

  one telling the jury that it must agree unanimously as to the act

  proving each element — need not be given. Id. at 639-42. The first

  issue before us, then, is what constitutes a single transaction in the

  context of a conspiracy charge.

¶ 15   The General Assembly’s enactments necessarily inform our

  inquiry. Section 18-2-204(1), C.R.S. 2016, provides that

  “[c]onspiracy is a continuing course of conduct which terminates

  when the crime or crimes which are its object are committed.”

                                    7
  (Emphasis added.) Another statute also specifies that “[i]f a person

  conspires to commit a number of crimes, he is guilty of only one

  conspiracy so long as such multiple crimes are part of a single

  criminal episode.” § 18-2-201(4), C.R.S. 2016. Read together, the

  applicable statutes make clear that a defendant can participate in a

  number of crimes or events to accomplish a single conspiracy. Put

  another way, committing a number of crimes, or engaging in a

  number of noncriminal overt acts, does not necessarily mean there

  is more than one conspiracy.

¶ 16   Accordingly, we must determine how broadly the prosecution

  may define a conspiracy without the charge encompassing multiple

  criminal episodes, consequently requiring either an election or a

  special unanimity instruction.

¶ 17   We begin with the principle that a single conspiratorial

  agreement may not be divided into multiple charges. E.g., United

  States v. Papa, 533 F.2d 815, 820 (2d Cir. 1976); United States v.

  Young, 503 F.2d 1072, 1075 (3d Cir. 1974); United States v.

  Palermo, 410 F.2d 468, 470 (7th Cir. 1969). The Supreme Court

  explained this principle in Braverman v. United States, 317 U.S. 49,

  53-54 (1942):

                                    8
          Whether the object of a single agreement is to
          commit one or many crimes, it is in either case
          that agreement which constitutes the
          conspiracy which the statute punishes. The
          one agreement cannot be taken to be several
          agreements and hence several conspiracies
          because it envisages the violation of several
          statutes rather than one.

          . . . Since the single continuing agreement,
          which is the conspiracy here, thus embraces
          its criminal objects, it differs from successive
          acts which violate a single penal statute and
          from a single act which violates two statutes.

See also Model Penal Code § 5.03(3) (Am. Law Inst. 1985) (“If a

person conspires to commit a number of crimes, he is guilty of only

one conspiracy so long as such multiple crimes are the object of the

same agreement or continuous conspiratorial relationship.”). As

the above-quoted statutes indicate, Colorado has adopted this

approach as it pertains to conspiracy charges. See also People v.

Brown, 185 Colo. 272, 277, 523 P.2d 986, 989 (1974) (noting that

Colorado has adopted the above-quoted language from Braverman),

overruled on other grounds by Villafranca v. People, 194 Colo. 472,

573 P.2d 540 (1978); People v. Bradley, 169 Colo. 262, 265-66, 455

P.2d 199, 200 (1969) (adopting the above-quoted language from

Braverman).


                                  9
¶ 18   The supreme court has indicated that the following factors

  tend to show a single criminal episode: the acts alleged occurred

  during the same period, the type of overt act alleged is the same,

  the unlawful objective of the conspiracy is the same, the modus

  operandi is the same, and the same evidence would be relevant to

  the charges. Pinelli v. Dist. Court, 197 Colo. 555, 558, 595 P.2d

  225, 227 (1979). Conversely, factors that may suggest that the

  People have charged multiple criminal episodes are that the

  defendant is “charged with conspiring (1) with different parties; (2)

  in different counties; (3) in different agreements; and [4] with

  allegations of different overt acts.” Id.

¶ 19   Federal courts employ a similar multi-factor test to determine

  whether there was only one agreement, and thus only one

  conspiracy. See, e.g., United States v. Rigas, 605 F.3d 194, 213 (3d

  Cir. 2010) (en banc) (considering whether the locations of the

  alleged conspiracies were the same; whether there was a significant

  degree of temporal overlap between the conspiracies charged;

  whether there was an overlap of personnel between the conspiracies

  (including unindicted as well as indicted co-conspirators); the



                                     10
  nature of the overt acts charged; and whether the role played by the

  defendant was similar).

¶ 20   Applying the relevant factors, we conclude that the evidence

  presented in this case shows one criminal episode, and hence one

  conspiracy. First, the actions occurred in a relatively short time

  frame — from February 21, 2013, to April 8, 2013 — and in one

  county. Cf. People v. Rivera, 56 P.3d 1155, 1160 (Colo. App. 2002)

  (noting the two-year period over which the alleged crimes occurred

  as one factor showing multiple conspiracies). Second, evidence of

  defendant’s phone conversations with one person (Mr. Gonzalez-

  Gonzalez) primarily established the conspiracy.2 Third, all the overt

  acts on which the jury could have relied — defendant ordering

  drugs from Mr. Gonzalez-Gonzalez, accepting drugs from Ms. Fisher

  and Mr. Gonzalez-Gonzalez, and showing up to the car rental

  franchise at Mr. Gonzalez-Gonzalez’s request — were done in

  furtherance of the same unlawful objective — to distribute one type

  2 Ms. Fisher testified that in January or February 2013, Mr.
  Gonzalez-Gonzalez supplied drugs to someone who then sold them
  to her. She sold those drugs to defendant, who then sold them to
  others. She stopped selling drugs to defendant after about a month
  and a half, after which Mr. Gonzalez-Gonzalez supplied defendant
  directly.

                                    11
  of drug supplied by one co-conspirator. Though some of these acts

  were not crimes,3 they were all a part of a single course of conduct

  in which Mr. Gonzalez-Gonzalez would regularly supply

  methamphetamine to defendant to sell. A single crime of

  conspiracy can be defined this broadly. See Commonwealth v.

  Albert, 745 N.E.2d 990, 997 (Mass. App. Ct. 2001) (“No unanimity

  instruction was required because a conspiracy refers to a

  continuing course of conduct, rather than a succession of clearly

  detached incidents.”). And given the nature and limited scope of

  defendant’s arrangement with Mr. Gonzalez-Gonzalez, it is clear

  that “[n]o danger exists that some jurors would think [defendant]

  was guilty of one conspiracy and others would think []he was guilty

  of a different one.” People v. Russo, 25 P.3d 641, 647-48 (Cal.

  2001).

¶ 21   Though the prosecution alleged numerous overt acts in

  furtherance of the single conspiracy, that did not require

  unanimous agreement by the jurors as to the precise overt act

  defendant committed. This is so because the Colorado Supreme


  3See Braverman v. United States, 317 U.S. 49, 53 (1942) (“The overt
  act . . . need not be itself a crime.”).
                                   12
  Court has held that “unanimity is required only with respect to the

  ultimate issue of the defendant’s guilt or innocence of the crime

  charged and not with respect to alternative means by which the

  crime was committed.” People v. Taggart, 621 P.2d 1375, 1387 n.5

  (Colo. 1981). Indeed, it has long been established that a jury need

  not unanimously decide “which of several possible sets of

  underlying brute facts make up a particular element,” or “which of

  several possible means the defendant used to commit an element of

  the crime.” Richardson v. United States, 526 U.S. 813, 817 (1999);

  see also Schad v. Arizona, 501 U.S. 624, 631 (1991) (plurality

  opinion) (“[A]n indictment need not specify which overt act, among

  several named, was the means by which a crime was committed.”);

  United States v. Griggs, 569 F.3d 341, 343 (7th Cir. 2009) (“The law

  distinguishes between the elements of a crime, as to which the jury

  must be unanimous, and the means by which the crime is

  committed.”) (jury not required to agree unanimously on particular

  overt act taken in support of conspiracy).

¶ 22   In United States v. Gonzalez, 786 F.3d 714, 718 (9th Cir.

  2015), the Ninth Circuit, addressing the overt act element of

  conspiracy specifically, reasoned as follows:

                                    13
             To be sure, because the instruction for the
             overt-act element requires the jury to find
             merely “[a]n overt act” committed by a person
             who has agreed and intended to commit a
             particular murder, it is possible that, although
             the jury unanimously agreed that an overt act
             was taken with respect to the unanimously
             agreed-upon murder conspiracy, different
             jurors may have concluded that different
             particular overt acts satisfied this element.
             Even if this occurred, however, [the
             defendant’s] right to a unanimous jury verdict
             was not violated because, so long as the jurors
             unanimously agreed that the overt-act element
             was satisfied, it was not necessary for them to
             agree on which overt act satisfied this element.

¶ 23   Courts in other jurisdictions have also applied this principle to

  the overt act requirement of conspiracy charges. The California

  Supreme Court, for example, has explained that the element of an

  overt act “consists of an overt act, not a specific overt act.” Russo,

  25 P.3d at 647; see also United States v. Kozeny, 667 F.3d 122, 132

  (2d Cir. 2011) (“[W]hich overt act among multiple such acts

  supports a proof of a conspiracy conviction is a brute fact and not

  itself an element of the crime.”); Griggs, 569 F.3d at 343; State v.

  Ayala-Leyva, 848 N.W.2d 546, 553-54 (Minn. Ct. App. 2014) (the

  jury was not required to unanimously agree on which of twenty

  overt acts had been committed in furtherance of drug conspiracy;


                                     14
  distinguishing between unanimity on the elements of a crime and

  unanimity as to the facts establishing each element of a crime).

  Colorado’s statute criminalizing conspiracy reflects this approach.

  § 18-2-201(2) (“No person may be convicted of conspiracy to commit

  a crime, unless an overt act in pursuance of that conspiracy is

  proved . . . .”) (emphasis added).

¶ 24   In sum, courts agree that “a special unanimity instruction is

  not necessary where an indictment charges a single conspiracy

  because ‘the crux of a conspiracy charge . . . [is] [t]he defendant’s

  voluntary agreement with another or others to commit an offense.’”

  United States v. Dvorin, 817 F.3d 438, 447 (5th Cir. 2016)

  (alterations in original) (quoting United States v. Dillman, 15 F.3d

  384, 391 (5th Cir. 1994)); see also United States v. Cromer, 436 F.

  App’x 490, 493 (6th Cir. 2011) (“[T]he jury need only unanimously

  decide that there was an agreement to violate drug laws . . . .”).

¶ 25   People v. Rivera, on which defendant relies, is distinguishable.

  In that case, the prosecution presented evidence of securities

  transactions “involving at least twenty-five investors, concerning

  two proposed daycare facilities in different cities, and spanning a

  two-year period.” 56 P.3d at 1160. Further, there was substantial

                                       15
  variety in the defendant’s involvement in the various acts:

  “Defendant took part in soliciting some investors, but not others,

  and as to at least one transaction there was no evidence that she

  had any direct contact with the investor.” Id. The division therefore

  concluded that “[u]nder these circumstances, there is a reasonable

  likelihood that the jury could have disagreed concerning the act or

  acts defendant committed.” Id. In essence, there were multiple

  conspiracies.

¶ 26   As discussed above, the conspiracy in this case occurred over

  only a few months in one county. There is also a uniformity of

  defendant’s involvement in the acts that was lacking in Rivera —

  defendant was convicted based on ongoing phone calls and

  transactions with one person ordering methamphetamine in similar

  quantities. See United States v. Sutherland, 656 F.2d 1181, 1202

  (5th Cir. 1981) (“[T]he evidence as to each [of the overt acts] is

  remarkably similar. Therefore this series of alleged acts comprises

  one ‘conceptual group’ and the jury need not have unanimously

  agreed as to which was proven.”).

¶ 27   We therefore conclude that the People charged only one

  criminal episode. It follows that the district court did not err, much

                                     16
  less plainly err, in failing to require an election or to give the jury a

  special unanimity instruction.4

                            B. Limiting Instruction

¶ 28       We also reject defendant’s contention that the district court

  erred by failing to provide a limiting instruction telling the jurors

  they could not consider Ms. Fisher’s guilty plea and Mr. Lawrence’s

  desire to receive a favorable plea offer as evidence of defendant’s

  guilt.

¶ 29       Because defendant did not request a limiting instruction, we

  review for plain error. People v. Griffin, 224 P.3d 292, 298 (Colo.

  App. 2009).



  4 Given the abundance of authority holding that no special
  instruction is required in comparable circumstances, any error was
  certainly not “so clear cut and so obvious that a trial judge should
  have been able to avoid it without benefit of the objection.” People
  v. Conyac, 2014 COA 8M, ¶ 54. “Generally, an error is obvious
  when the action challenged on appeal contravenes (1) a clear
  statutory command; (2) a well-settled legal principle; or (3) Colorado
  case law.” People v. Dinapoli, 2015 COA 9, ¶ 30; accord People v.
  Pollard, 2013 COA 31M, ¶ 40; see also People v. Valdez, 2014 COA
  125, ¶ 27 (where case law on an issue is unsettled, an error is not
  obvious); Dougherty v. State, 21 A.3d 1, 6-7 (Del. 2011) (“Several
  state and federal courts have concluded that a trial judge does not
  commit plain error where defense counsel fails to request, and the
  trial judge does not give sua sponte, a specific unanimity
  instruction on the overt act requirement of a conspiracy count.”).
                                       17
¶ 30   Pursuant to CRE 105, where there is evidence that is

  admissible for one purpose but not for another, “the court, upon

  request, shall restrict the evidence to its proper scope and instruct

  the jury accordingly.” And, “[a]s a general rule, defense counsel is

  charged with the task of deciding whether a limiting instruction is

  desirable,” Griffin, 224 P.3d at 298, because “for strategic or tactical

  reasons, [defense counsel] may consider that such an instruction

  would be more harmful than beneficial.” People v. Gladney, 194

  Colo. 68, 72, 570 P.2d 231, 234 (1977) (A limiting instruction

  “might tend to draw special attention to the evidence, thus giving it

  greater emphasis and jury impact than it would have had if left

  alone.”).

¶ 31   Thus, absent a special statutory duty, a trial court has no

  duty to give a limiting instruction sua sponte. See, e.g., Davis v.

  People, 2013 CO 57, ¶ 21 (“Unless a limiting instruction is either

  required by statute or requested by a party, a trial court has no

  duty to provide one sua sponte.”). Defendant does not point to any

  such statutory duty applicable in this case.

¶ 32   Defendant’s reliance on People v. Brunner, 797 P.2d 788, 789

  (Colo. App. 1990), is misplaced. In that case, the division held that

                                     18
  a trial court “should normally instruct the jury that [an

  accomplice’s guilty plea] may be used only for limited purposes and

  may not be used as substantive evidence of another’s guilt.” Id.

  But in this case, because defense counsel failed to request such an

  instruction, “appellate review is limited to determining whether

  plain error occurred.” People v. Shepherd, 43 P.3d 693, 696 (Colo.

  App. 2001). And numerous cases hold that a trial court’s failure to

  give a limiting instruction sua sponte does not constitute plain

  error. See, e.g., People v. Montalvo-Lopez, 215 P.3d 1139, 1145

  (Colo. App. 2008) (failure to request a limiting instruction on how

  the jury should consider an accomplice’s guilty plea did not place a

  duty on the trial court to give one sua sponte). None of the cases

  defendant cites says otherwise.

¶ 33   Further, there was no obvious error. The testimony was

  relevant for two reasons. First, it allowed the People to “blunt an

  expected attack on the credibility of the accomplice as a witness.”

  Brunner, 797 P.2d at 789. Second, it “show[ed] acknowledgement

  by the accomplice of participation in the offense,” id., which is

  particularly relevant in establishing a conspiracy. And defendant



                                    19
  took strategic advantage of the witnesses’ plea and potential plea,

  using the testimony to undermine their credibility.

¶ 34   Given all this, the district court “did not commit the kind of

  obvious error that may lead to reversal under the plain error

  doctrine.” Griffin, 224 P.3d at 299; see also People v. Pollard, 2013

  COA 31M, ¶ 40 (for an error to be obvious, it must contravene a

  clear statutory command, a well-settled legal principle, or Colorado

  case law).

           C. Judicial Determination of Habitual Criminality

¶ 35   Lastly, defendant contends that his rights to a trial by a jury

  and to due process of law were violated when the judge, instead of a

  jury, found that he had been convicted of three prior felonies.

¶ 36   As the law stands today, “[o]ther than the fact of a prior

  conviction, any fact that increases the penalty for a crime beyond

  the prescribed statutory maximum must be submitted to a jury,

  and proved beyond a reasonable doubt.” Apprendi v. New Jersey,

  530 U.S. 466, 490 (2000) (emphasis added); see also Blakely v.

  Washington, 542 U.S. 296, 301 (2004) (applying this rule). The

  Colorado Supreme Court, in applying this rule, has held that the

  fact of a prior conviction, called a “Blakely-exempt” fact, “is

                                     20
  expressly excepted from the jury trial requirement” for aggravated

  sentencing. Lopez v. People, 113 P.3d 713, 723 (Colo. 2005); see

  also People v. Huber, 139 P.3d 628, 630 (Colo. 2006). The court has

  said that, “[a]lthough there is some doubt about the continued

  vitality of the prior conviction exception, we conclude that it

  remains valid after Blakely.” Lopez, 113 P.3d at 723 (footnote

  omitted); see also Huber, 139 P.3d at 631.

¶ 37   Defendant argues that Lopez was wrongly decided or that

  developments after Lopez indicate that the “prior conviction

  exception” is no longer valid. Specifically, he asserts that, “[w]hile it

  has not been expressly overruled,” the case from which the prior

  conviction exception arose — Almendarez-Torres v. United States,

  523 U.S. 224 (1998) — has been called into question and will be

  overturned by the United States Supreme Court when the

  opportunity arises. See Apprendi, 530 U.S. at 488-90; Misenhelter

  v. People, 234 P.3d 657, 660 (Colo. 2010).

¶ 38   But because the Supreme Court has not overruled the prior

  conviction exception recognized in Apprendi and Blakely, those

  authorities continue to control our resolution of defendant’s

  argument. See People v. Hopkins, 2013 COA 74, ¶ 25; see also

                                     21
  People v. Gladney, 250 P.3d 762, 768 n.3 (Colo. App. 2010) (“[W]e

  are bound to follow supreme court precedent.”). “We do not have

  the power to ignore those precedents based on speculation of how

  the Court might rule in a future case.” Hopkins, ¶ 25. Therefore,

  defendant’s argument fails.

                            III. Conclusion

¶ 39   The judgment is affirmed.

       JUDGE DAILEY and JUDGE BERGER concur.




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