     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
                                                               August 6, 2020

                               2020COA119

No. 16CA1876, People v. Lopez — Crimes — Public Indecency

     A division of the court of appeals concludes for the first time

that the common area of a prison facility is “public” for purposes of

the public indecency statute.
COLORADO COURT OF APPEALS                                       2020COA119


Court of Appeals No. 16CA1876
Logan County District Court No. 15CR210
Honorable Michael K. Singer, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Gage Walker Lopez,

Defendant-Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                Division II
                          Opinion by JUDGE TOW
                        Román and Pawar, JJ., concur

                          Announced August 6, 2020


Philip J. Weiser, Attorney General, Joseph G. Michaels, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jason C. Middleton, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Gage Walker Lopez, appeals the judgment of

 conviction entered on a jury verdict finding him guilty of indecent

 exposure. Concluding, apparently for the first time, that the

 common area in a prison facility is a “public” area for purposes of

 the public indecency statute, we hold that Lopez was entitled to an

 instruction on the lesser nonincluded offense of public indecency.

 Because the trial court declined his request to give that instruction,

 we reverse and remand the case for a new trial.

¶2    We further conclude that one of Lopez’s prior convictions for

 indecent exposure was void because the initial charge in that case

 was filed after the statute of limitations had expired. Accordingly,

 on retrial, the People cannot rely on that conviction to elevate the

 current indecent exposure charge to a felony.

                           I.   Background

¶3    Lopez, an inmate at a Department of Corrections (DOC)

 facility, walked inside from the prison yard and twice exposed his

 genitals to a case manager in the doorway leading into the unit. He

 was charged with felony indecent exposure — third or subsequent

 offense under section 18-7-302(1)(a), (4), C.R.S. 2019.




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¶4         At trial, defense counsel argued that Lopez did not commit

 indecent exposure because he did not act with the requisite sexual

 intent, but rather exposed himself so he could be placed in

 administrative segregation. She also requested an instruction on

 the lesser nonincluded offense of public indecency, arguing that

 because Lopez acted without sexual intent the jury could acquit

 him of indecent exposure but convict him of public indecency. The

 court rejected the instruction, finding that a secured area in a DOC

 facility was not “public” under the public indecency statute.

¶5         The jury convicted Lopez as charged. The court sentenced him

 to five years supervised probation.

     II.    The Trial Court Erred by Failing to Instruct the Jury on the
                            Lesser Nonincluded Offense

¶6         Lopez first argues that the trial court erred by failing to

 instruct the jury on the lesser nonincluded offense of public

 indecency. We agree.

                            A.    Standard of Review

¶7         In cases where the court’s decision to instruct the jury on a

 lesser offense turns on a comparison of statutory elements, we

 review that legal issue de novo. People v. Ramirez, 18 P.3d 822, 827



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 (Colo. App. 2000). We also review de novo matters of statutory

 interpretation. People v. Perez, 2016 CO 12, ¶ 8.

¶8    The standard we apply in reviewing the trial court’s decision

 not to provide an instruction on a lesser nonincluded offense is not

 clearly established. Some divisions of this court have held that

 whether the evidence in the record is sufficient to give the requested

 instruction is a factual inquiry that we review for an abuse of

 discretion. See, e.g., People v. Wartena, 2012 COA 12, ¶ 30. Other

 divisions have reviewed the issue de novo. See, e.g., People v.

 Rubio, 222 P.3d 355, 360 (Colo. App. 2009). However, a trial

 court’s misapplication of the law is also an abuse of discretion.

 People v. Henson, 2013 COA 36, ¶ 9. Thus, we need not

 conclusively resolve which standard of review applies, because

 either one requires us to interpret the statute de novo.

¶9    Finally, in deciding whether to instruct the jury on a lesser

 offense requested by the defense, a trial court must consider the

 evidence in the light most favorable to the defendant. Mata-Medina

 v. People, 71 P.3d 973, 979 (Colo. 2003). Nonetheless, “there must

 also be a rational basis in the evidence to support a verdict

 acquitting the defendant of a greater offense and convicting him of


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  the lesser offense.” Wartena, ¶ 30. And “the mere chance that a

  jury may reject uncontroverted testimony and convict on the lesser

  charge does not require the trial court to instruct the jury on the

  lesser charge.” Ramirez, 18 P.3d at 827.

¶ 10   When a trial court erroneously fails to give a jury instruction

  that the defendant requested and to which he was entitled, we

  review that omission under the harmless error standard.

  Mata-Medina, 71 P.3d at 980. Applying that standard, reversal is

  warranted only if the error affected the defendant’s substantial

  rights. Crim. P. 52(a). An error impacts a defendant’s substantial

  rights if there is “a reasonable probability that it contributed to the

  defendant’s conviction.” Mata-Medina, 71 P.3d at 980.

                        B.    Law and Application

¶ 11   As relevant here, a person commits indecent exposure “[i]f

  he . . . knowingly exposes his . . . genitals to the view of any person

  under circumstances in which such conduct is likely to cause

  affront or alarm to the other person with the intent to arouse or to

  satisfy the sexual desire of any person.” § 18-7-302. A person

  commits public indecency by — “in a public place or [in a place]

  where the conduct may reasonably be expected to be viewed by


                                     4
  members of the public” — “knowing[ly] expos[ing] . . . the person’s

  genitals to the view of a person under circumstances in which such

  conduct is likely to cause affront or alarm to the other person.”

  § 18-7-301(1)(e), C.R.S. 2019. A public place is “a place to which

  the public or a substantial number of the public has access, and

  includes but is not limited to . . . the common areas of public and

  private buildings and facilities.” § 18-1-901(3)(n), C.R.S. 2019.

¶ 12   Lopez argues, the People concede, and we agree that the

  common area of a DOC facility is a public place for the purposes of

  the public indecency statute because it is used by other inmates

  and staff. See People in Interest of D.C., 2019 COA 22, ¶ 15 (holding

  that a Division of Youth Corrections classroom was a place where

  conduct may reasonably be expected to be viewed by members of

  the public because staff and juvenile residents may use the

  classrooms); People v. Hoskay, 87 P.3d 194, 199 (Colo. App. 2003)

  (holding that dormitory room of the detoxification facility was a

  public place because it is “open to any man admitted to the facility,

  as well as to the staff”). No other elements of the public indecency

  statute were disputed as inapplicable, and the instruction was

  consistent with Lopez’s defense. Therefore, public indecency was a


                                    5
  lesser nonincluded offense of indecent exposure and the trial

  court’s failure to instruct the jury on the lesser offense was error.

¶ 13   Next, we must determine whether this was a reversible error.

  As already noted, a defendant is entitled to a lesser nonincluded

  instruction if the evidence establishes a rational basis both to

  acquit the defendant on the greater charge and to convict the

  defendant on the lesser charge. Cf. Apodaca v. People, 712 P.2d

  467 (Colo. 1985) (holding that instruction for lesser included offense

  of attempted second degree kidnapping was not warranted where

  undisputed evidence clearly established the completed crime of

  second degree kidnapping).

¶ 14   We reject the People’s argument that no rational basis for

  acquittal exists because the jury returned a guilty verdict on the

  indecent exposure charge. A jury may convict a defendant because

  they believed that a crime was committed and only one crime was

  charged. The lesser offense instruction is designed to “help[] ensure

  that a jury does not convict a defendant of a greater offense than

  the one actually committed merely because the greater offense is

  the only crime charged.” People v. Naranjo, 2017 CO 87, ¶ 16. As a




                                     6
  result, we look at the evidence presented rather than the jury’s

  verdict to determine whether the error is reversible.

¶ 15   Here, there is a rational basis to acquit Lopez of the indecent

  exposure charge and convict him of public indecency. Lopez’s

  defense was that he lacked the requisite intent to commit indecent

  exposure. Specifically, Lopez testified that he experiences anxiety

  and on the day of the incident, “my anxiety had finally gotten away

  from me and I decided to act out and run away from the

  situation . . . I am going to expose myself to this person and get

  thrown in segregation.” He also testified that he was not trying to

  arouse the case manager or himself. A DOC investigator also

  testified that inmates sometimes want to go to segregation and

  Lopez told him that he acted out because of anxiety stemming from

  his living arrangement. This evidence supports Lopez’s defense that

  he lacked the requisite intent. None of the other elements of public

  indecency are disputed. Therefore, there is a reasonable probability

  that the trial court’s failure to give the lesser nonincluded

  instruction contributed to the verdict and absence of the requested

  instruction was not harmless. We reverse Lopez’s conviction for

  indecent exposure and remand for a new trial.


                                     7
       III.   The Trial Court Erred by Using a Void Prior Conviction to
                            Enhance Lopez’s Conviction

¶ 16      Lopez also argues that the trial court erred by using a void

  prior conviction to enhance his conviction to a felony. Because this

  issue is likely to arise on retrial, we address it. We agree.

                            A.   Additional Background

¶ 17      The prosecution charged indecent exposure as a felony

  because Lopez had two prior indecent exposure convictions. See

  § 18-7-302(4) (“Indecent exposure is a class 6 felony if the violation

  is committed subsequent to two prior convictions of a violation of

  this section . . . .”).

¶ 18      Prior to sentencing, Lopez filed a brief asserting that one of his

  prior convictions could not be used to enhance his conviction.

  Specifically, he argued that because the prior conviction was based

  on a charge filed outside of the statute of limitations, the court did

  not have subject matter jurisdiction to convict him. The trial court

  denied the motion.

                                   B.   Waiver

¶ 19      As a preliminary matter, the People argue that Lopez waived

  this claim by pleading guilty to the prior charge. We disagree. A



                                        8
  voluntary guilty plea waives nonjurisdictional defects in the

  proceedings against a defendant. People v. Carroll, 939 P.2d 452,

  454 (Colo. App. 1996). It does not waive jurisdictional defects in

  those proceedings. People v. Owen, 122 P.3d 1006, 1007-08 (Colo.

  App. 2005). Consequently, Lopez is not barred from bringing this

  claim.

                        C.    Standard of Review

¶ 20   “Whether a court has subject matter jurisdiction is a question

  of law we review de novo.” People v. Wunder, 2016 COA 46, ¶ 9.

                        D.   Law and Application

¶ 21   A judgment is void if the court that entered it lacked subject

  matter jurisdiction. People v. Sandoval, 2016 COA 57, ¶ 53. A void

  judgment can be collaterally attacked at any time. See

  § 16-5-402(2)(a), C.R.S. 2019.

¶ 22   Here, the underlying incident resulting in the prior conviction

  occurred on September 20, 2012. The trial court found that Lopez

  was not charged with misdemeanor indecent exposure for the

  incident until April 11, 2014, over eighteen months later. But the

  statute of limitations for the prosecution of misdemeanors is

  eighteen months. § 16-5-401(1)(a), C.R.S. 2019. Thus, the statute


                                    9
  of limitations expired before charges were filed. “[O]ur case law is

  clear: a claimed statute of limitations violation in a criminal case

  implicates the court’s subject matter jurisdiction.” People v. Butler,

  2017 COA 117, ¶ 14.

¶ 23   Although there is an exception to the statute of limitations,

  that exception does not apply here. “The applicable period of

  limitations . . . shall not apply to charges of offenses or delinquent

  acts brought to facilitate the disposition of a case, or to lesser

  included or non-included charges of offenses or delinquent acts

  given to the court or a jury . . . by the accused.” § 16-5-401(12).

  But the indecent exposure charge filed against Lopez was the

  original charge. It was not “brought to facilitate the disposition of

  [the] case” nor was it a “lesser included or non-included charge[].”

  Id. In other words, this exception applies only when the court had

  obtained subject matter jurisdiction over the initial charge as a

  result of a timely initial filing of charges.

¶ 24   The People’s reliance on People v. Wilson, 251 P.3d 507 (Colo.

  App. 2010), is unavailing. There, when the complaint was originally

  filed, the statute of limitations had not run on the original felony

  charges filed against the defendant. See id. at 508. Consequently,


                                      10
  Wilson did not involve the scenario presented here, in which the

  invocation of the trial court’s subject matter jurisdiction was

  untimely from the outset of the case.

¶ 25       Because the statute of limitations period had expired before

  the prosecutor filed the initial charge against Lopez in 2014, the

  court did not have subject matter jurisdiction over the charge.

  Consequently, should Lopez be convicted of indecent exposure upon

  retrial, the 2014 judgment of conviction cannot be used to enhance

  the current conviction to a felony.

                          IV.   Remaining Contentions

¶ 26       In light of our disposition of the jury instruction issue, and

  because we cannot say if, how, or in what context Lopez’s

  remaining issues will arise on retrial, we decline to address them.

                                V.    Conclusion

¶ 27       The judgment is reversed, and the case is remanded for a new

  trial.

           JUDGE ROMÁN and JUDGE PAWAR concur.




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