v. Carter

     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
                                                              March 11, 2021

                                

No. 17CA2331, People v. Carter — Crimes — DUI — Prior

Convictions; Criminal Law — Constructive Amendments —

Structural Error

     A division of the court of appeals holds that a constructive

amendment to a criminal charge is not structural error, rejecting a

line of court of appeals cases holding that such an amendment is

“per se reversible.”
COLORADO COURT OF APPEALS                                          

Court of Appeals No. 17CA2331
Arapahoe County District Court No. 17CR435
Honorable Andrew C. Baum, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Wayne Henderson Carter,

Defendant-Appellant.


             JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
                 AND CASE REMANDED WITH DIRECTIONS

                                   Division V
                         Opinion by JUDGE J. JONES
                               Berger, J., concurs
                        J. Jones, J., concurs dubitante
                 Pawar, J., concurs in part and dissents in part

                          Announced March 11, 2021


Philip J. Weiser, Attorney General, Brian M. Lanni, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Rachel K. Mercer, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1       Defendant, Wayne Henderson Carter, appeals his convictions

 for felony driving under the influence (felony DUI) and failure to

 present proof of insurance. We conclude that the district court

 erred by (1) treating the requirement of three prior convictions for

 felony DUI as a sentence enhancer rather than an element of the

 offense and (2) constructively amending the failure to present proof

 of insurance charge by instructing the jury on operating a motor

 vehicle without insurance.

¶2       Linnebur v. People, 

, recently decided by the

 supreme court, requires that we reverse Carter’s conviction for

 felony DUI. On remand, the court may enter a conviction for

 misdemeanor DUI. If the People elect instead to retry Carter for

 felony DUI, and Carter raises a double jeopardy defense, the court

 should rule on the applicability of that defense to the facts of this

 case.

¶3       But as to the constructive amendment of the failure to present

 proof of insurance charge, we hold that Carter waived his

 contention on appeal or, alternatively, that the error wasn’t plain.

 In reaching the alternative holding that any error wasn’t plain, we

 decline to follow decisions by other divisions of this court treating


                                     1
 constructive amendments as “per se reversible.” We do so because

 (1) the Colorado Supreme Court has held that, outside the limited

 category of constitutional errors considered “structural,” there is no

 constitutional error that is automatically reversible and (2) a

 constructive amendment isn’t structural error. Nonetheless, the

 mittimus should reflect a conviction for operating a motor vehicle

 without insurance — the charge on which the jury was instructed

 — not failure to present proof of insurance.

¶4    We therefore reverse the conviction for felony DUI, affirm the

 conviction for operating a motor vehicle without insurance, and

 remand for correction of the mittimus and further proceedings

 consistent with this opinion.

                            I. Background

¶5    The prosecution alleged that Carter drove drunk and got in a

 series of hit and run accidents in the space of several hours. When

 police eventually contacted Carter later that day, he was at a

 friend’s house; his was car parked outside. He declined both a

 blood and breath test and didn’t provide insurance information for

 the vehicle when a police officer asked him for it.




                                    2
¶6    The People charged Carter with felony DUI, leaving the scene

 of an accident, and failure to present proof of insurance.1 A jury

 found Carter guilty of the first two offenses and of operating a motor

 vehicle without insurance. On appeal, he challenges only the felony

 DUI and insurance coverage convictions.

                            II. Felony DUI

¶7    DUI is ordinarily a misdemeanor, but it becomes felony DUI if

 it occurs after three or more prior convictions for DUI, DUI per se,

 or driving while ability impaired (DWAI). § 42-4-1301(1)(a), C.R.S.

 2020. Consequently, to prove felony DUI, the prosecution must

 prove that the defendant has three or more prior DUI, DUI per se,

 or DWAI convictions.

¶8    Carter filed a motion requesting that the prosecution be

 required to prove the three prior convictions to a jury beyond a

 reasonable doubt. The district court ruled that the requirement of

 three prior convictions for felony DUI is a sentence enhancer, not

 an element of the offense, and therefore allowed the prosecution to

 prove the prior convictions to the court by a preponderance of the


 1The People also charged Carter with driving after revocation
 prohibited, but the People later dismissed that charge.

                                   3
  evidence. (After the jury verdicts, the court found that Carter had

  three prior qualifying offenses.)

¶9     Carter argues on appeal, as he did below, that the requirement

  of three prior convictions is an element of felony DUI, and that the

  district court therefore violated his constitutional right to have a

  jury decide that element beyond a reasonable doubt.

¶ 10   After the briefing in this case, the supreme court addressed

  this issue in Linnebur. The court held that the requirement of three

  prior convictions is an element of felony DUI that must be proved to

  a jury beyond a reasonable doubt. Linnebur, ¶ 31. Based on

  Linnebur, we must conclude that the district court erred. We

  therefore reverse Carter’s felony DUI conviction. On remand, the

  court may sentence Carter for misdemeanor DUI. If the prosecution

  instead seeks to retry Carter on the felony DUI charge, and Carter

  raises a double jeopardy defense, the court must rule on that

  defense. Id. at ¶ 32.

           III. Operating a Motor Vehicle Without Insurance

¶ 11   Carter also contends that the district court constructively

  amended the failure to present proof of insurance charge in the

  complaint and information by instructing the jury on the elements


                                      4
  of a different and uncharged offense — operating a motor vehicle

  without insurance.

                 A. Preservation and Standard of Review

¶ 12   Carter and the People agree that this issue was unpreserved.

  Both note that Carter’s counsel failed to object to the court’s

  instruction to the jury setting forth the elements of operating a

  motor vehicle without insurance rather than failure to present proof

  of insurance, or to the court’s verdict form for operating a motor

  vehicle without insurance. Carter says this doesn’t matter because

  the court constructively amended the charge, which is a

  “structural” error requiring reversal in all circumstances. The

  People respond that while there was a constructive amendment of

  that charge, an error of this type isn’t structural, and we should

  review for plain error.2

¶ 13   We have an independent, affirmative obligation to determine

  whether a claim of error was preserved and to determine the

  appropriate standard of review under the law, notwithstanding the



  2 The People believe “[t]his issue was forfeited because defense
  counsel expressly agreed to the compulsory insurance jury
  instructions that [were] given.”

                                     5
  parties’ respective positions or concessions pertaining to those

  issues. In re Marriage of Hogsett, 

, ¶ 32 n.3 (an

  appellate court isn’t bound by a party’s concession regarding

  preservation), aff’d sub nom. Hogsett v. Neale, 

; People v.

  Carter, 

, ¶ 65 n.1 (J. Jones, J., specially concurring)

  (same); People v. Corral, 

 (Colo. App. 2007) (an

  appellate court isn’t bound by the parties’ agreement as to the

  appropriate remedy for an error); see also Commonwealth v. Aviles,

  

, 504 n.3 (Mass. App. Ct. 2010); State v. Laune, 

 (Or. Ct. App. 2020) (the appellate court is obligated to

  make its own preservation inquiry, notwithstanding any concession

  by the state).

¶ 14   We conclude that Carter didn’t merely forfeit any claim of

  error, he waived it, meaning it isn’t reviewable. But, in the

  alternative, we hold that even if Carter didn’t waive the claim of

  error, it is subject to review for plain error because a constructive

  amendment isn’t a structural error. And we further conclude that

  while there was a constructive amendment, the error wasn’t plain.




                                     6
                                1.   Waiver

¶ 15   The People charged Carter with failing to present proof of

  insurance under section 42-4-1409(3)(a), C.R.S. 2020. The

  elements of that offense are that (1) after an accident or request to

  present evidence of a complying policy or certificate of

  self-insurance in full force and effect as required by law following

  any lawful traffic contact or during any traffic investigation by a

  peace officer; (2) an owner or operator of a motor vehicle; (3) fails to

  present such evidence. At trial, the prosecution introduced police

  officer body-camera video showing an investigating officer asking

  Carter for proof of insurance and Carter failing to present any.

¶ 16   At the jury instruction conference before testimony from the

  last witness, the court asked counsel how they wanted to handle

  the instructions, which they had reviewed.3 Carter’s attorney

  responded, “We have very few that are not stipulated to. So I think

  we can just talk about those, and then the rest of them there’s not

  an objection from the defense side and there’s no objection from the




  3 The record doesn’t say which side tendered any particular
  instruction. But it is clear each side had reviewed a packet of
  proposed instructions before the instruction conference.

                                     7
DA.” (Emphasis added.) The court and counsel then discussed the

few proposed instructions as to which defense counsel had

concerns or objections. Those instructions didn’t include the

elemental instruction for the insurance charge or the related

instruction concerning proof of that charge, even though the

elemental instruction for the insurance charge didn’t recite the

elements for failure to present proof of insurance but instead

recited the elements for operating a motor vehicle without

insurance under section 42-4-1409(2). That instruction read as

follows:

           The elements of the crime of operation without
           insurance are:

           1. That Mr. Carter,

           2. in the State of Colorado, at or about the
              date and place charged,

           3. operated a motor vehicle,

           4. on a public highway of this state,

           5. without a complying policy or certificate of
              self-insurance in full force and effect as
              required by law.

           After considering all of the evidence, if you
           decide the prosecution has proven each of the
           elements beyond a reasonable doubt, you



                                   8
               should find Mr. Carter guilty of operating
               without insurance.

               After considering all the evidence, if you decide
               the prosecution has failed to prove any one or
               more of the elements beyond a reasonable
               doubt, you should find Mr. Carter not guilty of
               operating without insurance.

¶ 17      This instruction therefore clearly labeled the offense “operation

  without insurance,” not failure to present proof of insurance. And it

  included elements differing from the originally charged offense: (1) it

  required proof that Carter operated, rather than “owne[d] or

  operat[ed],” see § 42-4-1409(3)(a), a motor vehicle; (2) it required

  proof that Carter didn’t have insurance for the vehicle, not merely

  that he didn’t present proof of insurance when asked; and (3) it

  didn’t require proof of a request by a peace officer for proof of valid

  insurance.

¶ 18      This elemental instruction was coupled with an instruction

  relating to proof of the charge of “operation without insurance.” It

  said,

               As to the charge of operation without
               insurance, testimony that an operator of a
               motor vehicle failed to immediately present
               evidence of a complying policy or certificate of
               self-insurance in full force and effect as
               required by law, when requested to do so by a


                                       9
            peace officer, gives rise to a permissible
            inference that Mr. Carter did not have such a
            policy or certificate.

            A permissible inference allows, but does not
            require, you to find a fact from proof of another
            fact or facts, if that conclusion is justified by
            the evidence as a whole. It is entirely your
            decision to determine what weight shall be
            given to the evidence.

            You must bear in mind that the prosecution
            always has the burden of proving each element
            of the offense beyond a reasonable doubt, and
            that a permissible inference does not shift that
            burden to Mr. Carter.

¶ 19   This instruction tracked section 42-4-1409(5), which says an

  inference of lack of insurance may be drawn as to the offense of

  operating a motor vehicle without insurance under section 42-4-

  1409(2) based on a driver’s failure to present proof of insurance

  when asked for it.

¶ 20   So this instruction, too, labeled the offense “operation without

  insurance.” And, as a logical matter and under the express

  statutory language, such an instruction is not given in connection

  with a charge of failure to present proof of insurance under section

  42-4-1409(3)(a).




                                   10
¶ 21   The verdict form for the charge was labeled “CHARGE OF

  OPERATING WITHOUT INSURANCE.” And it twice more identified

  the charge as “OPERATING WITHOUT INSURANCE.”

¶ 22   Following a break and testimony from the last witness, the

  court and the attorneys went back on the record to discuss the

  instructions, some of which had been revised based on the earlier

  discussion. The court went through each instruction separately,

  asking each attorney whether counsel objected. As to the two

  instructions at issue, the following colloquy took place:

            THE COURT: Number 17 is the elements of
            operating a vehicle without insurance. Any
            objection from the People?

            [PROSECUTOR]: No.

            THE COURT: From the defense?

            [DEFENSE COUNSEL]: No.

            THE COURT: And that is regarding the
            operation [sic] a vehicle without insurance is
            the permissible inference regarding insurance
            policy [sic]. Any objection by the People?

            [PROSECUTOR]: No.

            THE COURT: From the defense?

            [DEFENSE COUNSEL]: No.

  (Emphasis added.)


                                    11
¶ 23   They later covered the verdict forms.

            THE COURT: Next is Count No. 3, jury verdict
            form, Operating without Insurance. Any
            objection from the People?

            [PROSECUTOR]: No.

            THE COURT: From the defense?

            [DEFENSE COUNSEL]: No.

  (Emphasis added.)

¶ 24   The prosecutor didn’t mention the insurance charge

  specifically during closing argument. Defense counsel tried to

  convince the jury that Carter wasn’t operating the vehicle at the

  time of the events giving rise to the charges. (This was consistent

  with Carter’s theory of the case instruction, which articulated this

  theory as his only defense.) Defense counsel twice referred to the

  insurance charge — once as “Driving Without Insurance” and later

  as “driving while not having any insurance.”

¶ 25   Putting all this together, we conclude that Carter waived any

  contention that the court erred by constructively amending the

  charge.

¶ 26   “Waiver . . . is ‘the intentional relinquishment of a known right

  or privilege.’” People v. Rediger, 

 (quoting Dep’t of


                                    12
  Health v. Donahue, 

 (Colo. 1984)). It differs from

  forfeiture, which is “the failure to make the timely assertion of a

  right.” 

 at ¶ 40 (quoting United States v. Olano, 

 (1993)). And the consequences for either accordingly differ: if a

  contention is waived, the appellate court won’t review it at all; if it is

  merely forfeited, the appellate court may review it for plain error.

  

¶ 27    We don’t presume a waiver; we presume to the contrary. Id. at

  ¶¶ 39, 46. But at the same time, a waiver can be implied; it doesn’t

  need to be express. Id. at ¶ 42; accord Phillips v. People, 

.

¶ 28    Rediger, like this case, involved a claim of a constructive

  amendment. The charging document charged the offense under

  one subsection of a statute, but the elemental instruction tracked a

  different subsection of the same statute. Rediger, ¶¶ 7-8. (The

  charged subsection required proof of an element that the instructed

  charge didn’t, lessening the prosecution’s burden of proof. Id. at

  ¶ 51.) At the jury instruction conference, defense counsel said he

  had read the proposed instructions but didn’t say anything about

  the elemental instruction. Before the court read the instructions to


                                     13
  the jury, it asked whether defense counsel was “satisfied with the

  instructions.” Defense counsel said, “Yes, Defense is satisfied.” Id.

  at ¶ 10.

¶ 29   The supreme court held that defense counsel’s statement,

  “standing alone,” didn’t show a waiver of the constructive

  amendment issue. Id. at ¶ 41. It based this conclusion on (1) the

  fact that there was only this one, equivocal statement; (2) that

  statement related to the instructions as a whole; (3) there was no

  record indication that the elemental instruction had been discussed

  “at all”; and (4) there was no apparent reason for counsel not to

  object the instruction. Id. at ¶¶ 41-43. Considering all the

  circumstances, the court concluded that “neglect, not intent,

  explain[ed]” counsel’s failure to object. Id. at ¶ 44; see also People

  v. Smith, 

 (no waiver under similar

  circumstances).

¶ 30   This case is very different. Defense counsel expressly

  indicated that she had been through the instructions to determine

  which ones she was concerned with or objected to and which ones

  she and the prosecutor “stipulated to.” The instructions and verdict

  form at issue fall into the latter category. Further, the court went


                                     14
  through each instruction and the verdict forms one by one with

  counsel. The court expressly identified the two insurance charge

  instructions as relating to “operating a motor vehicle without

  insurance” and the charge on the verdict form as “operating without

  insurance.” Defense counsel said she didn’t object to any of them.

  As well, the second instruction — relating to the permissible

  inference — by its clear language related to the charge of operating

  a motor vehicle without insurance: it is impossible to read that

  instruction as potentially relating to a charge of failure to present

  proof of insurance. (As noted, the statute says clearly that this

  inference applies to a charge of driving without insurance, but the

  inference does not apply to a charge of failure to present proof of

  insurance.) If all this weren’t enough to show that defense counsel

  was aware that the charge had been changed, she twice in closing

  argument demonstrated such knowledge by referring to the charge

  as driving without insurance.

¶ 31   This case also differs from Rediger in that Carter’s counsel had

  an obvious strategic reason not to object to the change in the

  charge. Recall, Carter’s only defense was that he hadn’t driven the

  vehicle. That would be a complete defense to a charge of operating


                                    15
  a motor vehicle without insurance because such a charge requires

  proof of operating the vehicle. A charge of failure to present proof of

  insurance, on the other hand, doesn’t require proof of operating the

  vehicle; proof of ownership suffices. § 42-4-1409(3)(a) (“owner or

  operator”). And there was evidence Carter owned the vehicle.

¶ 32   Allowing the charge to be changed presented another strategic

  advantage for the defense. The only evidence that Carter didn’t

  have insurance was the video showing the officer asking Carter for

  proof of insurance and Carter failing to present it. That evidence

  was unrebutted and unchallenged. For a charge of failure to

  present proof of insurance, this would be direct evidence of the

  offense. But it wouldn’t be for a charge of operating a motor vehicle

  without insurance. Rather, as the jury instruction said, it would

  instead be evidence from which the jury could, but was not required

  to, infer a lack of insurance. So, given the nature of the evidence,

  the charge of operating a motor vehicle without insurance left more

  wiggle room for the defense than did a charge of failure to present

  proof of insurance.

¶ 33   In sum, we conclude that the totality of the relevant

  circumstances reveals far more than a single rote statement that


                                    16
counsel was not objecting to the jury instructions as a whole, as in

Rediger. It shows knowledge that the charge had changed and a

decision to go along with it. This was a waiver. Cf. Richardson v.

People, 

 (alleged error of allowing

judge’s wife to serve on jury was waived where defense counsel was

aware the prospective juror was the judge’s wife but didn’t

challenge her for cause or use a peremptory challenge to exclude

her); Stackhouse v. People, 

 (counsel waived

objection to closure of courtroom by remaining silent when the

court closed it; counsel was obviously aware of the issue)4; People v.

Tee, 

 (counsel waived contention as to

pre-deliberation by jurors by expressing the concern but choosing

not to request a mistrial); People v. Gregor, 

(Colo. App. 2000) (challenge to instruction barred by invited error

because defense counsel expressly approved that particular

instruction).




4 In Phillips v. People, 

, the supreme court
recognized the continued validity of Stackhouse after Rediger.

                                  17
¶ 34   But even if Carter didn’t waive this contention, we conclude in

  the alternative that plain error review applies, that there was a

  constructive amendment, and that the error wasn’t plain.5




  5 The partial dissent chides us for considering Carter’s constructive
  amendment contention for plain error after concluding that Carter
  waived it. But we do so only in the alternative. See, e.g., People v.
  Murray, 

, ¶ 45 (addressing contention for plain error
  in the alternative after concluding that the contention was waived);
  cf. Spectrum Stores, Inc. v. Citgo Petroleum Corp., 

  (5th Cir. 2011) (after determining that the district court lacked
  subject matter jurisdiction, holding in the alternative that the
  plaintiffs had failed to state a claim). There is no authority of which
  we are aware that says an appellate court can’t, or even shouldn’t,
  resolve contentions on alternative bases. Indeed, that practice is so
  common that it would seemingly need no defense. See State v.
  Robertson, 

 (Utah 2017) (explaining that
  alternative holdings are common and serve legitimate purposes).
  Nor is there any authority of which we are aware that says waiver is
  an exception to a court’s ability to take such a belt and suspenders
  approach. And we see no logical reason for such a rule — one that
  would be completely at odds with notions of judicial efficiency. For
  instance, an alternative holding may eliminate the need for further
  time- and resource-consuming proceedings by the appellate court
  in the event of a reversal on one issue by a higher court. Similarly,
  such a holding may enable a higher court to affirm the lower court’s
  ruling notwithstanding its disagreement with one basis for the lower
  court’s decision, eliminating the need for further proceedings. Nor
  does it matter, as the partial dissent suggests, that the People don’t
  argue waiver. After all, as the partial dissent correctly notes, “[w]e
  have an affirmative and independent obligation to determine
  whether a claim of error was preserved and what the proper
  standard of review is.” See infra ¶ 75.


                                    18
                2.    Structural Error versus Plain Error

¶ 35   If not waived, we first review de novo whether a constructive

  amendment occurred. See People v. Rail, 

,

  aff’d on other grounds, 

. If it did, we must then

  determine whether the constructive amendment requires reversal.

  Determining the correct test for reversal depends on whether we

  conclude that constructive amendments can be reviewed for plain

  error or are, instead, structural errors that require reversal in all

  circumstances.

¶ 36   Our supreme court has never held that a constructive

  amendment constitutes structural error. See Rediger, ¶ 47 n.4

  (“Because we conclude that the error was plain, we need not

  consider whether a constructive amendment amounts to structural

  error.”). But divisions of this court have held (or assumed) on

  several occasions that an error in allowing a constructive

  amendment is “per se reversible,” meaning that it is always

  reversible. See Rail, ¶ 50; People v. Vigil, 

, ¶ 30,

  aff’d, 

; People v. Gallegos, 

 (Colo. App.

  2010); People v. Pahl, 

 (Colo. App. 2006); People v.

  Huynh, 

 (Colo. App. 2004); People v. Foster, 971


                                     

 (Colo. App. 1998). In effect, these divisions treated

  this kind of error as what current jurisprudence on standards of

  review calls “structural.” Because the result in this case differs

  depending on whether the error is structural, we must decide

  whether this line of Colorado Court of Appeals case law is correct.

¶ 37   Foster is the first case in which a division of this court held

  that a constructive amendment is “per se reversible,” and all the

  subsequent cases so holding can trace their lineage to Foster. In

  Foster, the division cited United States v. Wright, 

 (10th

  Cir. 1991), overruled on other grounds by United States v. Flowers,

  

 (10th Cir. 2006), for the proposition that a

  constructive amendment “is reversible per se.” 971 P.2d at 1087.

  That case did so hold. It cited earlier Tenth Circuit decisions which

  ultimately relied on Stirone v. United States, 

 (1960).

  Stirone, then, is the fountainhead of this maxim.

¶ 38   But does Stirone actually support the notion that a

  constructive amendment always requires reversal? And even if it

  does, is such a rule consistent with intervening Supreme Court

  precedent? The answer to the first question is “maybe,” but the

  answer to the second is “no.”


                                    20
¶ 39   In Stirone, the district court allowed the prosecution to prove

  the offense charged in the indictment with evidence of acts different

  from those charged in the indictment. 

. The Court

  held that this ran afoul of the Fifth Amendment’s requirement that

  a prosecution be commenced by an indictment from a grand jury;

  only a grand jury can amend an indictment. 

 at 215-17 (citing

  Ex parte Bain, 

 (1887)). The Court regarded a

  violation of this grand jury indictment requirement as “far too

  serious to be treated as nothing more than a variance and then

  dismissed as harmless error.” Id. at 217. From this, courts derived

  the automatic reversal rule for constructive amendments (even

  though the error in Stirone was preserved).

¶ 40   We note initially that Stirone was based on the Fifth

  Amendment’s grand jury indictment clause, a provision of the

  United States Constitution that doesn’t apply to state prosecutions.

  Alexander v. Louisiana, 

 (1972); Hurtado v.

  California, 

 (1884); Losavio v. Robb, 

, 536 n.2, 

, 1154 n.2 (1978). Nor, for that matter

  is there any right to a grand jury indictment under the Colorado

  Constitution. Losavio, 

, 

. This


                                   21
  isn’t to say that a constructive amendment doesn’t give rise to a

  constitutional violation — it has been said to be a due process

  violation, see People v. Deutsch, 

, ¶ 25 — but it is to

  say that the right to a grand jury indictment that Stirone deemed so

  important that an infringement couldn’t be harmless simply isn’t

  implicated in a state prosecution.

¶ 41   More importantly, in United States v. Cotton, 

  (2002), the Court significantly weakened, if not outright eliminated,

  Stirone’s basis for its apparent automatic reversal rule. It did so by

  overruling Ex parte Bain, on which Stirone so heavily relied, in so far

  as that case treated defects in indictments as “jurisdictional.” 

; see also People v. Rodriguez, 

, 257 (Colo.

  1996) (observing that Stirone was premised on federal courts’

  jurisdiction). In the course of doing so, the Court observed that in

  Stirone the defendant had objected in the trial court. Cotton, 

. The Court then went on to apply plain error review to

  a defect in an indictment that under Ex parte Bain would have been

  treated as a jurisdictional defect requiring reversal. 

.

  And in doing that, it relied on much more recent Supreme Court

  precedent expanding the application of plain error review — Olano,


                                    22
  

, and Johnson v. United States, 

 (1997).

  Cotton, 

.

¶ 42   And that brings us to the most important reason that Stirone

  can’t be relied on as dictating a rule of “per se” or “automatic”

  reversal for constructive amendments: such a rule can’t be squared

  with much more recent Supreme Court authority.

¶ 43   In People v. Novotny, 

, the Colorado Supreme

  Court discussed the evolution of United States Supreme Court

  precedent distinguishing among constitutional errors. Under that

  precedent, there are trial errors, which may be deemed harmless,

  and structural errors, which may not be. Id. at ¶¶ 17-20. The

  supreme court held that, under current jurisprudence, apart from

  structural error there is no error, constitutional or otherwise,6 that

  requires automatic reversal; rather, all errors that aren’t structural

  must be assessed using the appropriate case-specific, outcome-

  determinative test. Id. at ¶¶ 21-22, 27. Indeed, this conclusion

  necessarily follows from the Court’s decisions in Olano, Johnson,



  6The exception is when there is an express legislative mandate.
  People v. Abu-Nantambu-El, 

; People v. Novotny,
  

.

                                    23
  and Neder v. United States, 

 (1999), among other

  cases.

¶ 44   So the question becomes: Does Stirone or any other controlling

  authority hold that allowing a constructive amendment is a

  structural error? The United States Supreme Court has never

  included constructive amendments when listing those errors

  considered structural. See, e.g., Weaver v. Massachusetts, 

, ___, 

 (2017); United States v. Gonzalez-

  Lopez, 

 (2006); Neder, 

; Arizona

  v. Fulminante, 

 (1991). Nor has the Colorado

  Supreme Court ever done so. See, e.g., Hagos v. People, 

; Lehnert v. People, 

 (Colo. 2010).

¶ 45   Because of the relatively recent developments in the Supreme

  Court’s constitutional error jurisprudence, other courts have

  concluded that the error addressed in Stirone is not structural.

  E.g., United States v. Allen, 

 (8th Cir. 2005)

  (en banc).7 The Colorado Supreme Court hasn’t gone so far as to



  7Candidly, some courts continue to apply the reversible per se rule,
  but as far as we can tell, they do so without analyzing its continued
  validity.

                                   24
  expressly so hold, but it has done the next best thing. In People v.

  Weinreich, 

 (Colo. 2005), the court reviewed a

  constructive amendment for plain error. See also People v. Weeks,

  

 (applying plain error review to a constructive

  amendment, citing Weinreich); § 16-10-202, C.R.S. 2020 (a variance

  from a charging document is not grounds for acquittal unless it “is

  material to the merits of the case or may be prejudicial to the

  defendant”). The court did so in Rediger, ¶ 47 n.4, as well, though

  it said it didn’t need to consider whether such an error is

  structural.

¶ 46   Controlling authority holds that structural errors are limited

  to those errors that “affect[] the framework within which the trial

  proceeds” and “defy analysis by ‘harmless-error’ standards.”

  Fulminante, 

; accord Weaver, 

,

  

. Different kinds of errors may not be

  amenable to harmless error analysis for different reasons. First,

  harm may be “irrelevant to the basis underlying the right,” such as

  when “the right at issue is not designed to protect the defendant

  from erroneous conviction but instead protects some other

  interest.” Weaver, 

, 

 (giving the


                                    25
  defendant’s right to conduct his own defense as an example).

  Second, “the effect of the error [may be] simply too hard to

  measure.” 

 (giving the right to choose one’s attorney as an

  example). And third, the error may “always result[] in fundamental

  unfairness.” 

 (giving denial of counsel and failing to give a

  reasonable doubt instruction as examples).

¶ 47   A constructive amendment doesn’t fit any of these categories.

  Such an amendment implicates the defendant’s right to be

  protected from an erroneous conviction: it doesn’t protect some

  other interest. And as the facts of this case clearly demonstrate,

  see Part III.B infra, the effect of such an error isn’t necessarily too

  hard to measure and doesn’t always result in fundamental

  unfairness. See United States v. Jingles, 

 (9th

  Cir. 2012) (a constructive amendment claim is, after Cotton,

  reviewable for plain error if not objected to at trial); United Sates v.

  Brandao, 

 (1st Cir. 2008) (noting the shift among

  the federal circuit courts away from regarding constructive

  amendment as structural error).

¶ 48   We therefore conclude that allowing a constructive

  amendment isn’t structural error. We turn, then, to whether there


                                     26
  was a constructive amendment and, if so, whether allowing it was

  plain error.

¶ 49   Plain error is error that is obvious and that so undermined the

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

  reliability of the judgment of conviction. Hagos, ¶ 14. The

  defendant has the burden of showing that any error was plain.

  People v. Conyac, 

; People v. Boykins, 

 (Colo. App. 2005).

                               B. Analysis

¶ 50   Carter and the People agree that the district court allowed a

  constructive amendment of the complaint. Although we are not

  bound by the parties’ concessions and must independently analyze

  this issue, we come to the same conclusion.

¶ 51   “A constructive amendment occurs when a court ‘changes an

  essential element of the charged offense and thereby alters the

  substance of the charging instrument.’” People v. Hoggard, 

 (quoting Rodriguez, 914 P.2d at 257),8 aff’d on other


  8 Another kind of variance — a simple variance — occurs “when the
  elements of the charged crime remain unchanged, ‘but the evidence
  presented at trial proves facts materially different from those alleged
  in the indictment.’” People v. Vigil, 

, ¶ 30 (quoting

                                    27
  grounds, 

. This violates a defendant’s constitutional

  right to due process because it presents a risk that the defendant

  will be convicted of an offense or conduct that was not originally

  charged. See Deutsch, ¶ 25; Hoggard, ¶ 27.

¶ 52   Even where the elements of the charged and instructed

  offenses are different, a constructive amendment has not occurred

  if the charged offense is a lesser included offense of the instructed

  offense. See Hoggard, ¶ 33; People v. Riley, 

.

  This is because, despite the instructional error, the jury will

  necessarily have considered all the elements of the charged offense

  (as well as the additional elements of the instructed offense). But

  that isn’t what happened in this case.

¶ 53   The complaint and information charged Carter with violating

  section 42-4-1409(3) — failure to present proof of insurance. As

  noted, the elements of this offense, as relevant in this case, are that

  (1) after an accident or request to do so following any lawful traffic

  contact with a peace officer; (2) an owner or operator of a motor




  People v. Pahl, 

 (Colo. App. 2006)), aff’d on other
  grounds, 

.

                                    28
  vehicle; (3) fails to present evidence of motor vehicle insurance in

  full force and effect as required by law. 

¶ 54   The district court didn’t instruct the jury on these elements.

  Instead, the court instructed the jury on the elements of operating a

  motor vehicle without insurance. See § 42-4-1409(2). As laid out

  in the jury instructions, the elements of this offense were that

  Carter “[1] operated a motor vehicle, [2] on a public highway of this

  state, [3] without a complying policy or certificate of self-insurance

  in full force and effect as required by law.”

¶ 55   Thus, the elements of the charged and instructed offenses

  differed. To prove the charged offense (failure to present proof of

  insurance), the prosecution had to prove that Carter failed to

  present proof of insurance to the officer, regardless of whether his

  vehicle was insured. To prove the instructed offense, the

  prosecution had to prove that Carter’s vehicle was actually

  uninsured when he drove it. These offenses prohibit different

  conduct — one prohibits failing to present proof of insurance and

  the other driving without insurance in the first place. Cf. People v.

  Martinez, 

 (Colo. App. 2007) (rejecting an

  argument that the offenses of failing to present proof of insurance


                                     29
  and driving without insurance must be interpreted together and

  instead holding that they are separate offenses with distinct

  elements).

¶ 56   Failure to present proof of insurance isn’t a lesser included

  offense of operating a motor vehicle without insurance. It is true

  that a jury’s determination that the defendant is guilty of operating

  a motor vehicle without insurance necessarily means that the

  defendant could not have presented evidence of insurance when the

  officer asked him for it. But it doesn’t necessarily mean that the

  jury found that the defendant did not actually present evidence of

  insurance when asked. Put differently, a finding of guilt of

  operating a motor vehicle without insurance will not always support

  a finding of guilt for failing to present proof of insurance. An

  individual who is guilty of driving without insurance may not have

  committed the offense of failure to present proof of insurance if he

  was stopped by police and never asked to present proof of

  insurance. Practically, these circumstances may be unlikely to

  occur. Ordinarily, an officer will discover that a driver is uninsured

  by the driver failing to present proof of insurance when asked. But

  that point isn’t relevant to our analysis (at this juncture). What


                                    30
  matters is that a jury’s determination that a driver drove without

  insurance doesn’t necessarily mean that the fact finder found that

  the driver also failed to present proof of insurance when asked.

¶ 57   So there was error and that error was obvious.9 But the error

  doesn’t meet the third prong of the plain error test. The jury found

  that Carter didn’t have insurance for the vehicle. And it necessarily

  so found based solely on the inference it could draw from Carter’s

  failure to present proof of insurance (for which Carter was charged).

  An officer’s body-camera video showed that she asked Carter for

  proof of insurance, but Carter didn’t provide any. These facts were

  uncontested, and no evidence was presented that didn’t relate to

  the original charge. Carter’s only defense was that he wasn’t the

  driver; the jury obviously rejected that defense. Therefore, there is

  no reasonable possibility that the error was prejudicial. People v.

  Miller, 

 (Colo. 2005) (“[A]n erroneous jury

  instruction does not normally constitute plain error where the issue




  9“An error is obvious when it contravenes a clear statutory
  command, a well-settled legal principle, or Colorado case law.”
  Thompson v. People, 

. Colorado case law does not
  permit a constructive amendment absent the defendant’s consent.

                                    31
  is not contested at trial or where the record contains overwhelming

  evidence of the defendant’s guilt.”).

¶ 58   The fact remains that the jury found Carter guilty of operating

  a motor vehicle without insurance, not failure to present proof of

  insurance. The mittimus, however, shows a conviction for failure to

  present proof of insurance. It needs to be corrected.

                              IV. Conclusion

¶ 59   The conviction for felony DUI is reversed, the conviction for

  operating a motor vehicle without insurance is affirmed, and the

  case is remanded to the district court to correct the mittimus to

  reflect the conviction under section 42-4-1409(2) rather than

  section 42-4-1409(3)(a) and for further proceedings consistent with

  this opinion.

       JUDGE BERGER concurs.

       JUDGE J. JONES concurs dubitante.

       JUDGE PAWAR concurs in part and dissents in part.




                                     32
       J. JONES, J., concurring dubitante.1

¶ 60   As to Carter’s felony DUI conviction, Linnebur v. People, 

, controls both the question of error and the requirement of

  reversal. I write separately, however, because, in my view, the

  majority in Linnebur failed to account for United States Supreme

  Court and Colorado Supreme Court precedent in determining that

  the error of omitting the prior convictions element from the

  elemental instruction on the felony DUI offense requires reversal in

  all circumstances. As I explain below, such an error isn’t

  structural. Therefore, it should be evaluated under the appropriate,

  outcome-determinative standard of reversal.




  1“Dubitante” is a Latin word meaning “[d]oubting.” Black’s Law
  Dictionary 631 (11th ed. 2019). In a dubitante opinion, a judge
  may indicate doubt about the majority’s rationale or result without
  dissenting from either. Or, as is the case with this separate
  opinion, a judge may believe that a result is dictated by precedent
  but doubt that the precedent is correct. See, e.g., United States v.
  Jeffries, 

 (6th Cir. 2012) (Sutton, J., dubitante),
  abrogated by Elonis v. United States, 

 (2015); Majors v.
  Abell, 

 (7th Cir. 2004) (Easterbrook, J.,
  dubitante); Sherman v. State, 

 (Fla. Dist. Ct.
  App. 2018) (Makar, J., concurring in result dubitante), decision
  quashed, Case No. SC18-949 (Fla. Apr. 16, 2019) (unpublished
  order); see generally Jason J. Czarnezki, The Dubitante Opinion, 

 (2006).

                                   33
¶ 61   In Linnebur, the court held that the felony DUI and DWAI

  statutes’ requirement that the defendant was previously convicted

  three or more times for DUI, DUI per se, or DWAI, see § 42-4-

  1301(1)(a), (b), C.R.S. 2020, is an element of the felony offense that

  must be found by a jury beyond a reasonable doubt. In that case,

  the trial court found that fact. Without analysis, the supreme court

  held that “[b]ecause Linnebur was sentenced for a crime different

  from the one on which the jury’s verdict was based, his conviction

  of felony DUI and sentence must be reversed.” Linnebur, ¶ 32

  (citing Medina v. People, 

 (Colo. 2007)).

¶ 62   With respect, I believe that the court’s treatment of the error

  as one requiring reversal in all circumstances is contrary to United

  States Supreme Court and Colorado Supreme Court precedent.

¶ 63   In People v. Novotny, 

, the Colorado Supreme

  Court held that outside the limited class of those errors deemed

  “structural,” there is no error, constitutional or otherwise, that

  requires reversal in all circumstances: “automatic” reversal outside

  of structural error is no longer countenanced by Colorado law,

  unless there is an “express legislative mandate” to that effect. 

 at




                                    34
  ¶ 27.2 Rather, whether reversal is required for any nonstructural

  error depends on application of the “appropriate case specific,

  outcome-determinative analysis” — i.e., harmless error (ordinary or

  constitutional) or plain error. Id.; accord People v. Abu-Nantambu-

  El, 

; Vigil v. People, 

.

¶ 64    So, unless the error in this case — the same error as in

  Linnebur — is structural, there should be no automatic reversal of

  the felony conviction and sentence: review in this case should be for

  plain error because Carter’s attorney didn’t object to the court

  finding the fact of three previous convictions. See Hagos v. People,

  

 (“[W]e review all other errors, constitutional and

  nonconstitutional, that were not preserved by objection for plain

  error.”).

¶ 65    The error in this case — as Linnebur itself holds — was failing

  to submit an element of the felony offense to the jury. In Neder v.

  United States, 

 (1999), the United States Supreme



  2 The court’s decision traces the development of harmless error
  since the Supreme Court’s decision in Chapman v. California, 

 (1967); under current law, constitutional errors are either
  trial errors, which may be harmless, or structural errors, which
  can’t be. People v. Novotny, 

.

                                    35
  Court held that such an error is not structural. (Indeed, the Court

  said, “[t]he error at issue here — a jury instruction that omits an

  element of the offense — differs markedly from the constitutional

  violations we have found to defy harmless-error review.” Id. at 8.)

  And in Griego v. People, 

 (Colo. 2001), the Colorado

  Supreme Court followed Neder and held that “when a trial court

  misinstructs the jury on an element of an offense, either by omitting

  or misdescribing that element, that error is subject to constitutional

  harmless error or plain error analysis and is not reviewable under

  structural error standards.” As recently as 2011, the court said,

  “[i]t is now well-settled that error in the form of a misdescription or

  omission of an element of an offense does not, for that reason alone,

  constitute structural error.” Tumentsereg v. People, 

 (Colo. 2011) (citing Neder and Griego).

¶ 66   Neder and Griego would seem to dictate the standard of

  reversal applicable in this case, and in Linnebur. Nonetheless, the

  majority in Linnebur treated the error of omitting an element as

  structural, without labeling it as such, and without acknowledging

  Neder or Griego.




                                     36
¶ 67   In concluding that reversal was required without application of

  an appropriate, outcome-determinative standard, the majority cited

  Medina. But Medina is clearly distinguishable. In that case, the

  offense for which the court entered a judgment of conviction was

  never even charged. 

 (distinguishing Neder and

  Griego on this basis). And no one — not the jury or the court —

  ever found the element in question. 

; see Lehnert v.

  People, 

, 1186 n.7 (Colo. 2010) (limiting Medina to

  these facts). In fact, Medina expressly recognized the distinction

  between the error in that case and the error of misdescribing or

  omitting an element of an offense, distinguishing Neder and Griego

  on that basis. 

 In Linnebur (as in this case), however, the felony

  offense was charged, and the court found the element of prior

  convictions.

¶ 68   Nor is the error in this case (and in Linnebur) like the error in

  Sullivan v. Louisiana, 

 (1993), on which the court relied

  in Medina to conclude that the failure of a charge or verdict (by any

  fact finder) constituted structural error. The error in Sullivan was

  in giving the jury an instruction defining reasonable doubt that was

  unconstitutional because it set the bar too low. 

. That


                                    37
  didn’t happen in this case (or Linnebur). As well, in Neder, the

  Supreme Court expressly repudiated some of the Court’s reasoning

  in Sullivan — that “harmless-error analysis cannot be applied to a

  constitutional error that precludes the jury from rendering a verdict

  of guilty-beyond-a-reasonable-doubt” — saying, “it cannot be

  squared with our harmless-error cases.” Neder, 

.

  But that was the reasoning relied on by the court in Medina, and

  therefore Medina rests, perhaps, on a foundation of sand.3

¶ 69   One other case — Sanchez v. People, 

 — merits

  discussion. In that case, the jury actually returned a verdict of not

  guilty on a charge of sexual assault as part of a pattern of abuse,

  but the jury indicated on a verdict form that the prosecution had

  proved two of the six incidents of alleged abuse. Id. at ¶¶ 7-8. The

  Colorado Supreme Court held that the instructions, including the

  elemental instructions, special interrogatories, and verdict forms,

  didn’t clearly show that the jury had found that the defendant had



  3 This is not to say that I believe that Medina was necessarily
  wrongly decided as to the remedy applied (reversal for structural
  error). It is to say that its rationale — ultimately applied by
  Linnebur to a different type of error — is arguably untenable under
  Supreme Court case law post-dating Sullivan.

                                    38
  engaged in a pattern of sexual abuse. Id. at ¶¶ 3-8, 12-13, 16-17.

  In other words, there was no clear guilty verdict. And the court

  held that this error was structural. Id. at ¶ 19.

¶ 70   This case obviously involves a different type of error than that

  in Sanchez. See Rail v. People, 

 (discussing

  the factual limitations of Sanchez). But in any event, Sanchez relied

  on Medina and Sullivan in concluding that the error was structural.

  More specifically, it relied on that portion of the rationale in Sullivan

  that the Court later disavowed in Neder. Indeed, Sanchez didn’t cite

  Neder or Griego, much less grapple with Neder’s rejection of a part

  of Sullivan’s rationale. Sanchez, too, therefore rests on shaky

  ground.

¶ 71   In sum, if I were writing on a clean slate, I would follow Neder

  and Griego and hold that the error in this case isn’t structural. I

  would then assess whether the error was plain. But I’m not writing

  on a clean slate: as it now stands, Linnebur dictates reversal, even

  though, in my view, it conflicts with Neder and Griego. See People v.

  Washington, 

 (where precedents conflict, the

  court of appeals must follow the supreme court’s more recent




                                     39
pronouncement).4 So I am left only to concur, while expressing the

hope that the Colorado Supreme Court will revisit its jurisprudence

on this point.




4 Neder is not controlling on this issue because states are free to
adopt standards of direct review for federal constitutional issues
that are more stringent than those adopted by federal courts. See,
e.g., Greene v. Georgia, 

 (1996) (per curiam).

                                 40
       JUDGE PAWAR, concurring in part and dissenting in part.

¶ 72   I disagree with the majority’s constructive amendment

  analysis for three reasons. First, I believe it is improper for the

  majority to conclude that the constructive amendment issue was

  waived and then proceed to address the merits of that issue.

¶ 73   Second, I disagree with the majority’s substantive waiver

  analysis — Carter did not waive his constructive amendment

  argument.

¶ 74   Third, although I agree with the majority that a constructive

  amendment occurred, I disagree with the majority’s conclusion that

  constructive amendments are subject to any kind of harmless error

  review. I conclude that constructive amendments require automatic

  reversal. The majority may be correct that, under the peculiar facts

  of this case, the jury’s finding of guilt on the constructively

  amended offense necessarily means it would have found Carter

  guilty of the charged offense. But when a defendant is convicted of

  an offense for which he was not charged, reversal is required.

                  I. The Majority’s Alternative Analyses

¶ 75   Neither Carter nor the prosecution raised the prospect of

  waiver. Indeed, the prosecution argued on appeal that the


                                     41
  constructive amendment argument was unpreserved, not waived,

  under People v. Rediger, 

. The majority is correct that

  we are not bound by the parties’ representations on these issues.

  We have an affirmative and independent obligation to determine

  whether a claim of error was preserved and what the proper

  standard of review is. But once we make that determination, we

  should abide by it.

¶ 76   “[W]aiver extinguishes error, and therefore appellate review.”

  Id. at ¶ 40. The majority concludes that Carter waived his

  constructive amendment argument. The majority should stop

  there. After all, if the issue is waived, the error is “extinguishe[d]”

  and there is no error left to review. See id. But the majority does

  not stop there. Instead, immediately after concluding that the

  constructive amendment issue was waived, the majority addresses

  the merits of that issue.

¶ 77   Resolving issues on alternative grounds may be appropriate

  and even helpful in certain cases. This is not one of them. For the

  sake of clarity, the majority should choose one ground on which to

  resolve the constructive amendment issue. If it was waived, the

  error is extinguished and further appellate review is unnecessary.


                                     42
  If the issue was not waived, there is no point in saying anything

  about waiver — the parties did not raise it and it is completely

  irrelevant to resolving the appeal. See In re Parental Responsibilities

  Concerning M.W., 

 (declining to address

  argument that is unnecessary to resolve the appeal).

¶ 78   That said, because the majority concludes that Carter waived

  his constructive amendment argument, I next explain why I think

  he did not.

   II. Carter Did Not Waive His Constructive Amendment Argument

¶ 79   Waiver is the intentional relinquishment of a known right.

  Rediger, ¶ 39. We must “indulge every reasonable presumption

  against waiver.” 

 (quoting People v. Curtis, 

  (Colo. 1984)). The majority does the opposite of indulging every

  reasonable presumption against waiver — instead, the majority’s

  conclusion that Carter waived this issue is based on an

  unsupported inference.

¶ 80   Carter was charged with failure to present proof of insurance.

  But the jury was instructed on and found him guilty of operating a

  vehicle without insurance. Waiver here required that defense

  counsel was not only aware of the discrepancy between the charged


                                    43
  offense and the constructively amended offense, but that defense

  counsel intended to waive Carter’s right raise that discrepancy. 

  The record contains no such evidence.

¶ 81   The majority spends many paragraphs laying out facts that

  establish defense counsel knew that the jury was being instructed

  on the offense of operating a vehicle without insurance (the

  constructively amended offense). I agree that defense counsel knew

  that operating a vehicle without insurance was the offense

  submitted to the jury. But the majority cites no facts, and there are

  none in the record, indicating that defense counsel both realized

  that this was not the charged offense and intended to relinquish the

  right to instruct the jury on the charged offense. The majority

  infers that defense counsel must have realized this discrepancy

  merely because the discrepancy existed and the constructive

  amendment inured to Carter’s benefit. Making this inference can

  hardly be said to be “indulg[ing] every reasonable presumption

  against waiver.” 

 at ¶ 39 (quoting Curtis, 

). In

  my view, the equally if not more reasonable presumption under the

  facts of this case is that nobody — not the prosecutor, defense




                                   44
  counsel, or trial court — realized that the original charge had been

  changed.

¶ 82   In my view, this case is indistinguishable from Rediger.

  Defense counsel certainly had a chance to review the instructions

  and assented to instructing the jury on the constructively amended

  offense. But there is nothing in the record indicating that defense

  counsel understood that the instructions constituted a constructive

  amendment. The fact that the constructive amendment was hiding

  in plain sight is not enough to constitute a waiver under Rediger.

¶ 83   I would therefore conclude that Carter did not waive his

  constructive amendment argument. Accordingly, I proceed to

  explain why I disagree with the majority’s constructive amendment

  analysis.

          III. Constructive Amendments Are Reversible Per Se

¶ 84   I agree with the majority that the trial court erred by

  constructively amending the charged offense. But unlike the

  majority, I conclude that such an error is automatically reversible.

¶ 85   As the majority recognizes, numerous divisions of this court

  have concluded that constructive amendments are reversible per se.

  E.g., People v. Rail, 

, aff’d on other grounds, 2019


                                    

; People v. Vigil, 

, ¶ 30, aff’d, 

.

  Yet the majority in this case comes to the opposite conclusion by

  reasoning that only structural errors are reversible per se, and

  constructive amendments are not structural errors. I disagree

  because I conclude that constructive amendments fit squarely in

  the category of structural error.

         A. Our Supreme Court Has Not Addressed This Issue

¶ 86   The majority correctly notes that in People v. Weinreich, 

 (Colo. 2005), our supreme court held that a constructive

  amendment constituted plain error. But the Weinreich court did

  not frame the issue as whether a constructive amendment

  occurred. Instead, the court framed the issue as whether “the trial

  court committed plain and reversible error by failing to give an

  instruction that substantially conformed to the existing reckless

  child abuse resulting in death statute under which the prosecution

  charged Weinreich.” 

. Only in the summary paragraph

  of its analysis did the supreme court characterize the error, for the

  first and only time, as a constructive amendment. 

.

¶ 87   By pointing this out, I do not mean to suggest that the

  supreme court did not review a constructive amendment for plain


                                      46
  error — it did. But it is clear that the supreme court did not fully

  consider or analyze whether constructive amendments constitute

  structural errors. Indeed, because the supreme court reversed

  under plain error, it was unnecessary to resolve that issue because

  the outcome would have been the same if the error was structural.

¶ 88   More recently, our supreme court demonstrated in Rediger

  that whether constructive amendments are structural errors is still

  an open question. In that case, the supreme court framed the issue

  from the beginning as examining whether a constructive

  amendment required reversal. Rediger, ¶ 32 (“Rediger next asserts

  that his conviction . . . resulted from an impermissible constructive

  amendment of the charging document.”). And in reviewing the

  constructive amendment for plain error, the court expressly avoided

  deciding whether constructive amendments constitute structural

  error, demonstrating that this was still an open question: “Because

  we conclude that the error was plain, we need not consider whether

  a constructive amendment amounts to structural error.” 

 at ¶ 47

  n.4. If, as the majority here holds, the supreme court’s prior

  precedents dictated that constructive amendments are not




                                    47
  structural errors, the supreme court would have presumably said

  so in Rediger. It did not.

          B. Constructive Amendments Are Structural Errors

¶ 89   So, our supreme court has not ruled on whether constructive

  amendments are structural errors.1 The question then becomes

  whether constructive amendments are the type of error that should

  be classified as structural. The majority says no. I say yes.

¶ 90   The majority rightly states that structural errors are only

  those that “affect[] the framework within which the trial proceeds”

  and “defy analysis by ‘harmless-error’ standards.” Arizona v.

  Fulminante, 

 (1991). The majority then

  identifies three ways in which errors may defy harmless error

  analysis: (1) harm may be irrelevant to the basis underlying the

  right; (2) the effect of the harm may be too hard to measure; and (3)

  the error may always result in fundamental unfairness. See Weaver

  v. Massachusetts, 

, ___, 

 (2017).



  1 I take the majority’s point that neither the United States Supreme
  Court nor our supreme court has included constructive
  amendments when listing examples of structural errors. But
  neither has either court held that constructive amendments are not
  structural errors.

                                   48
¶ 91   I agree with the majority that the first category does not apply

  to constructive amendments. But I disagree with the majority on

  the second and third categories.

   1. Measuring the Harm of Constructive Amendments is Too Hard

¶ 92   When a constructive amendment occurs at trial, a verdict is

  rendered on elements that the defendant had no notice of until trial,

  and usually after the evidence is closed. This means that the

  defendant prepared for and defended himself at trial based on an

  incorrect understanding of what elements would be submitted to

  the jury. This makes it nearly impossible to measure the effect of

  the error. How can a reviewing court say that the evidence of a

  defendant’s guilt was overwhelming when that evidence was

  introduced, admitted, and challenged before the defendant (or the

  prosecution and trial court, for that matter) knew what the

  elements of the offense were?

¶ 93   Any harmlessness analysis will turn on a reviewing court’s

  evaluation of the strength of the admitted evidence. But the

  elements of the charged offense drive the presentation of evidence.

  If the elements change, what evidence is relevant and challenged

  will almost certainly change, too. This means that any


                                     49
  harmlessness analysis in a constructive amendment case will

  require a reviewing court to evaluate how strongly the evidence the

  parties introduced on the charged offense supports the jury’s

  verdict on the different, constructively amended offense — it will be

  impossible for the reviewing court to know what evidence the

  parties might have introduced if the constructively amended offense

  had been charged in the first place. Without that information, I do

  not see how a reviewing court can properly determine whether the

  evidence of the defendant’s guilt was so strong that the constructive

  amendment was harmless.

        2. Constructive Amendments are Fundamentally Unfair

¶ 94   Furthermore, a constructive amendment always deprives the

  defendant of the fundamental constitutional right to notice of the

  charges against him. See United States v. Miller, 

 (10th Cir. 2018) (holding that “[t]he constructive amendment

  of an indictment violates [a defendant’s] Sixth Amendment right to

  receive notice of [the] charges” against him, albeit while reviewing a

  constructive amendment argument for plain error); People v. Melillo,

  

 (Colo. 2001) (“The right of an accused to notice of

  the charges which have been made against him constitutes a


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  fundamental constitutional guarantee and lies at the foundation of

  due process of law.” (quoting People v. Cooke, 

, 

 (1974))).

¶ 95   The majority believes this does not matter here because, under

  the unique facts of this case, we can measure the harm, and the

  constructive amendment did not result in fundamental unfairness.

  But this ignores the fact that a constructive amendment always

  deprives a defendant of his fundamental constitutional right to

  notice of the charged offense. See Miller, 

; Melillo,

  

. I conclude that depriving a defendant of a

  fundamental constitutional right that “lies at the foundation of due

  process of law,” Melillo, 

 (quoting Cooke, 

, 

), is always fundamentally unfair. I would

  therefore follow other divisions of this court and hold that a

  constructive amendment is reversible per se and reverse Carter’s

  insurance conviction.

¶ 96   I concur in all other parts of the majority’s opinion.




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