People v. Fuentes
258 P.3d 320
Colo. Ct. App.2011Background
- Fuentes and another man forced entry into C.M. and N.M.'s home, then fought with occupants in the street after being pushed outside.
- Two separate first degree burglary counts were charged—one tied to N.M. and one to C.M.—based on assaults by Fuentes or co-defendant.
- Jury convicted Fuentes on both burglary counts and on assault for N.M.; conviction forms specified burglary counts as to N.M. and C.M., and the assault as to N.M.
- The defense argued double jeopardy barred multiple burglary convictions for a single unlawful entry when multiple assaults occur.
- The trial court later addressed speedy trial issues and continued the trial date without Fuentes present at that ruling.
- The court vacated one burglary conviction and affirmed others, ultimately remanding for mittimus correction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does a single unlawful entry with multiple assaults support multiple burglary convictions? | Fuentes argues double jeopardy prohibits more than one burglary conviction. | Fuentes contends multiple assaults on different victims arise from one entry, creating a single burglary offense. | One entry may support only one first degree burglary conviction. |
| Does third degree assault merge into burglary for N.M. under section 18-1-408? | People concede merger for N.M. under current framework. | Fuentes seeks merger of third degree assault into burglary as to N.M. | Third degree assault as to N.M. does not merge after vacating the N.M. burglary conviction. |
| Was there sufficient evidence the assault occurred in immediate flight from the home for C.M.? | Evidence supports assault during immediate flight from the residence. | Evidence shows flight ended before the assault. | Evidence supports the assault occurring in immediate flight as to C.M. |
| Was Fuentes' absence at a trial-continuance hearing harmless error? | Non-presence at a non-critical ruling should not affect verdict. | Right to be present was violated by ruling in absence. | No reversible or constitutional error; harmless error analysis applies. |
Key Cases Cited
- People v. Borghesi, 66 P.3d 93 (Colo. 2003) (robbery framework held not to require multiple burglary convictions when single entry with multiple victims)
- People v. Nave, 689 P.2d 645 (Colo. App. 1984) (courts may decline to accept concession on merger; multiple convictions context)
- People v. Ramirez, 18 P.3d 822 (Colo. App. 2000) (merger and dual-count considerations in burglary/assault contexts)
- People v. Bielecki, 964 P.2d 598 (Colo. App. 1998) (second degree burglary as lesser included of first degree burglary)
- Auman v. People, 109 P.3d 647 (Colo. 2005) (immediate flight concept applied to felony-murder statute; parallels to immediate flight in burglary context)
- People v. McCrary, 190 Colo. 538 (Colo. 1976) (flight continuity concept supporting broad interpretation of immediate flight)