v. Lopez, 2020 COA 119

Lopez, a DOC inmate, walked in from the prison yard and twice exposed his genitals to a case manager in the doorway of his unit.
He was charged with felony indecent exposure (third-or-subsequent offense) based on two prior indecent-exposure convictions.
At trial Lopez testified he exposed himself to get placed in administrative segregation and denied sexual intent; defense requested an instruction on the lesser nonincluded offense of public indecency.
The trial court refused the public-indecency instruction, finding the secured DOC common area was not a “public place”; the jury convicted Lopez and the court sentenced him to probation.
On appeal the court held the common area is a “public place” for the public indecency statute, reversed for failure to instruct on the lesser offense, and ruled one prior conviction void because charges were filed after the statute of limitations, so it cannot be used to enhance a future conviction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court erred by refusing a jury instruction on the lesser nonincluded offense of public indecency	The secured DOC area is not a public place, so the lesser instruction was not applicable	Lopez lacked sexual intent; evidence supported conviction for public indecency instead of indecent exposure	Reversed: common area is a public place; trial court should have given the lesser nonincluded instruction; failure was not harmless and requires retrial
Whether a prior indecent-exposure conviction can be used to enhance the current charge when the original charge was filed after the statute of limitations	Prior plea waived defects and the prior conviction can be used for enhancement	The 2014 conviction is void because the initial charge was filed after the statute of limitations, implicating subject-matter jurisdiction	Held for Lopez: guilty plea does not cure a jurisdictional defect; the 2014 conviction is void and cannot be used to elevate a future conviction

Mata-Medina v. People, 71 P.3d 973 (Colo. 2003) (standards for lesser-offense instruction and harmless-error review)
People v. Ramirez, 18 P.3d 822 (Colo. App. 2000) (lesser-offense instruction analysis)
People v. Hoskay, 87 P.3d 194 (Colo. App. 2003) (dormitory/common areas held to be public places)
People v. Rubio, 222 P.3d 355 (Colo. App. 2009) (discussion of review standards for jury-instruction rulings)
People v. Wilson, 251 P.3d 507 (Colo. App. 2010) (distinguished on statute-of-limitations/timeliness facts)
Apodaca v. People, 712 P.2d 467 (Colo. 1985) (lesser-included instruction not warranted when completed crime is undisputed)
People v. Carroll, 939 P.2d 452 (Colo. App. 1996) (guilty plea waives nonjurisdictional defects)
People v. Owen, 122 P.3d 1006 (Colo. App. 2005) (guilty plea does not waive jurisdictional defects)