Peo v. Longoria
Peo v. Longoria
Peo v. Longoria
Opinion
22CA1768 Peo v Longoria 08-15-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1768
Pueblo County District Court No. 20CR7
Honorable Amiel Markenson, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Ysidro Derrick Longoria Jr.,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division I
Opinion by JUDGE J. JONES
Welling and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 15, 2024
Philip J. Weiser, Attorney General, Jacob R. Lofgren, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Casey J. Mulligan, Alternate Defense Counsel, Boulder, Colorado, for
Defendant-Appellant
1
¶ 1 Defendant, Ysidro Derrick Longoria Jr., appeals the district
court’s judgment of conviction entered on jury verdicts finding him
guilty of first degree burglary and attempted sexual assault.
1
We
affirm.
I. Background
¶ 2 Late one night, Longoria climbed into the victim’s apartment
through a window. The victim and her children were asleep. The
victim woke up, saw Longoria (whom she didn’t know), and started
to ask him who he was. Before she could finish the sentence,
Longoria hit her in the face, knocking her unconscious. When the
victim awoke, Longoria was on top of her in her bed. Longoria
spread the victim’s legs apart with his hands “all the way up” her
inner thighs and used his own legs to keep the victim from closing
hers. The victim said, “Oh, my God, you’re going to rape me.”
Longoria said, “Sshhh.”
1
Longoria was also found guilty of second degree assault, but he
doesn’t challenge his conviction for that offense. And the jury
found Longoria guilty of a crime of violence sentence enhancer in
connection with the attempted sexual assault charge, but Longoria
doesn’t raise any separate challenge to that verdict: it stands or
falls based on the outcome of his challenges to the first degree
burglary and attempted sexual assault charges.
2
¶ 3 When the victim tried to fight Longoria off, he smothered her
with a hand on her face and punched her. He also pressed his
forearm down on her neck, using his bodyweight. The victim
managed to roll off the bed onto the floor. Longoria punched and
kicked the victim, who yelled for help. This woke up the victim’s
oldest son, who started yelling. Longoria fled.
¶ 4 The People charged Longoria with second degree assault, first
degree burglary, attempted sexual assault, and a crime of violence
sentence enhancer. The first degree burglary charge alleged that
Longoria intended to commit sexual assault when he broke into the
apartment. See § 18-4-202(1), C.R.S. 2024 (an element of first
degree burglary is that the defendant intended to commit a crime
when he unlawfully entered or remained in an occupied structure).
¶ 5 One jury found Longoria guilty of second degree assault, and a
later jury found him guilty of the other charges.
II. Discussion
¶ 6 Longoria contends that (1) the district court plainly erred by
failing to define certain terms used in the instruction defining
“sexual penetration” and (2) the evidence was insufficient to support
the convictions for first degree burglary and attempted sexual
3
assault (and therefore the related jury finding of a sentence
enhancer) because there was insufficient evidence of an intent or
attempt to commit sexual assault. We address, and reject, these
contentions in turn.
A. Definition of Terms
¶ 7 The court’s instruction to the jury on the elements of
attempted sexual assault included as an element that Longoria
“engaged in conduct constituting a substantial step toward sexual
assault.” It separately instructed the jury on the elements of sexual
assault, one of which was “inflict[ing] sexual intrusion or
penetration on a person.” And the court separately instructed the
jury on the meanings of sexual intrusion and sexual penetration as
follows:
“SEXUAL INTRUSION” means any intrusion,
however slight, by an object or any part of a
person’s body, except the mouth, tongue, or
penis, into the genital or anal opening of
another person’s body if that sexual intrusion
can reasonably be construed as being for the
purpose of sexual arousal, gratification, or
abuse.
“SEXUAL PENETRATION” means sexual
intercourse, cunnilingus, fellatio, analingus, or
anal intercourse. Emission need not be proved
as an element of sexual penetration. Any
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penetration during sexual intercourse,
cunnilingus, fellatio, analingus, or anal
intercourse, however slight, is sufficient.
Longoria’s attorney didn’t object to these instructions, nor did he
ask the court to define for the jury any term used in these
instructions.
¶ 8 On appeal, however, Longoria contends that the district court
was required to provide the jury with definitions of “cunnilingus,”
“fellatio,” “analingus,” and “anal intercourse.”
1. Standard of Review
¶ 9 To determine whether the district court erred, we will review
Longoria’s contention de novo. See Townsend v. People, 252 P.3d
1108, 1111 (Colo. 2011) (“[W]e review legal conclusions implicit in
jury instructions de novo . . . .”); People v. Maloy, 2020 COA 71,
¶ 54 (a court abuses its discretion in formulating jury instructions
if, among other things, it misapplies the law).
¶ 10 Because Longoria’s attorney didn’t preserve this issue, if we
determine that the court erred, we will reverse only if Longoria
establishes that the error was plain. People v. Sepulveda, 65 P.3d
aff’d, 2017 CO 18. This means that Longoria must show that any
5
error was obvious and “so undermined the fundamental fairness of
the trial . . . as to cast serious doubt on the reliability of the
judgment of conviction.” Hagos v. People, 2012 CO 63, ¶ 14
(quoting People v. Miller, 113 P.3d 743, 750 (Colo. 2005)). In the
context of jury instructions specifically, this means that Longoria
must show “not only that the instruction affected a substantial
right, but also that the record reveals a reasonable possibility that
the error contributed to his conviction.” People v. Garcia, 28 P.3d
340, 344 (Colo. 2001) (quoting Bogdanov v. People, 941 P.2d 247,
255-56 (Colo. 1997)).
2. Analysis
¶ 11 The premise of Longoria’s contention is that the terms
“cunnilingus,” “fellatio,” “analingus,” and “anal intercourse” “have
acquired technical or particular meanings.” Therefore, his
argument continues, under Griego v. People, 19 P.3d 1, 7 (Colo.
2001), the court was required to instruct the jury on those
meanings. We reject Longoria’s premise.
¶ 12 In support of his premise, Longoria relies on definitions of
three of these terms — “cunnilingus,” “fellatio,” and “anal
intercourse” — in section 18-7-401, C.R.S. 2024; comments in the
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Model Criminal Jury Instructions; section 2-4-101, C.R.S. 2024;
and People v. Fell, 832 P.2d 1015 (Colo. App. 1991). None of these
authorities support Longoria’s position.
¶ 13 The definitions of three of the relevant terms in section 18-7-
401 expressly apply only to child prostitution charges under part 4
of article 7 of title 18. See also § 18-7-201, C.R.S. 2024 (defining
the same three terms the same way for purposes of section 2 of
article 7 of title 18, relating to prostitution offenses). Sexual assault
isn’t such a charge: it is proscribed by section 18-3-402, C.R.S.
2024.
¶ 14 But more importantly, Longoria hasn’t argued, much less
shown, that the statutory definitions of these terms in section 18-7-
401 differ in any meaningful sense from their commonly understood
meanings. And we fail to see any such difference.
¶ 15 For instance, section 18-7-401(3) defines “cunnilingus” as
“any act of oral stimulation of the vulva or clitoris.” A common
dictionary definition is “stimulation of the vulva or clitoris with the
lips or tongue.” Webster’s Third New International Dictionary 554
(2002). Section 18-7-401(4) defines “fellatio” as “any act of oral
stimulation of the penis.” Webster’s defines it as “the practice of
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obtaining sexual satisfaction by oral stimulation of the penis.”
Webster’s at 836; see Veith v. People, 2017 CO 19, ¶ 15 (a court
may consult recognized dictionaries to determine a term’s ordinary
meaning).
¶ 16 The same can be said for the comments in the Model Jury
Instructions, which include definitions of the relevant terms.
Indeed, Longoria concedes that the definition of “analingus” in
those comments simply tracks a dictionary definition. And as for
the other three terms, the comments merely note statutory
definitions, none of which differ materially from commonly
understood meanings. See COLJI-Crim. F:343 cmts. 2 & 3 (2023)
(cross-referencing COLJI-Crim. F:16, F:81, and F:147). Moreover,
no relevant model instruction says that these definitions must be
given to a jury.
¶ 17 As Longoria points out, section 2-4-101 says that “[w]ords and
phrases that have acquired a technical or particular meaning,
whether by legislative definition or otherwise, shall be construed
accordingly.” This is a legislatively mandated canon of statutory
construction. It doesn’t say that every legislative definition is “a
technical or particular meaning” of a term, only that if such a
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definition differs from common understanding — that is, has been
given a technical or particular meaning by statute — that meaning
should guide interpretation of a statute to which the definition
applies. As discussed, none of the statutory definitions at issue
give any of the terms a meaning different from the commonly
understood meaning.
¶ 18 Longoria’s reliance on Fell fares no better. In Fell, the jury
sent a note to the court asking for clarification of the definition of
“sexual penetration” — specifically, “Does penetration by fingers
qualify under this definition?” 832 P.2d at 1019. The division held
that the district court erred by refusing to answer that question
directly because the jury had affirmatively indicated a potential
misunderstanding of the term. Id. In the course of resolving the
issue, the court said in dictum that the terms “fellatio,”
“cunnilingus,” and “anilingus” “carry specific meanings that many
jurors may not understand.” Id. (emphasis added).
¶ 19 Unlike in Fell, the jury in this case didn’t indicate any
uncertainty as to any term in the definitional instruction. And in
any event, the division didn’t say that a court always must give
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definitions of these terms to a jury. Longoria doesn’t cite any case
holding that the court must do so, and we haven’t found one.
¶ 20 In sum, we aren’t persuaded that these terms are beyond the
understanding of ordinary jurors. Nor are we persuaded that they
have acquired any technical meaning — by statute or otherwise —
different from their commonly understood meanings. Therefore, the
court didn’t err by failing to sua sponte define these terms for the
jury. See People v. Payne, 2019 COA 167, ¶ 18 (“A definitional
instruction is not required for a term or phrase familiar to a
reasonable person of common intelligence, especially when the
term’s ‘meaning is not so technical or mysterious as to create
confusion in the jurors’ minds.’” (quoting People v. Thoro Prods. Co.,
11-22-00227-CR, 2024 WL 1447285, at *3 (Tex. App. Apr. 4, 2024)
(unpublished opinion) (where a term has a commonly understood
meaning, and that meaning is similar to the statutory definition of
the term, the court need not define that term for the jury); State v.
Valles, 780 P.2d 1049, 1054-55 (Ariz. Ct. App. 1989) (same); State
v. Barnett, 691 P.2d 683, 686 (Ariz. 1984) (same); People v. Peebles,
465 N.E.2d 539, 543 (Ill. App. Ct. 1984) (same); Rizzuto v. State,
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407 A.2d 225, 225-26 (Del. 1979) (where statutory definition of
“sexual contact” tracked commonly understood meaning, court
wasn’t required to define the term for the jury); People v. Robideau,
289 N.W.2d 846, 849-50 (Mich. Ct. App. 1980) (“The term fellatio is
one generally understood by laymen, and possesses no distinct legal
definition.”) (emphasis added), aff’d, 355 N.W.2d 592, 605 n.9
(Mich. 1984), overruled on other grounds by People v. Smith, 733
N.W.2d 351 (Mich. 2007).
¶ 21 As well, we aren’t persuaded that any error should have been
obvious to the district court. Again, no statute says and no case
holds that these terms must be defined for a jury. See People v.
Crabtree, 2024 CO 40M, ¶ 42 (“[T]o be deemed plain, an error must
contravene a clear statutory command, a well-settled legal principle,
or established Colorado case law.”).
¶ 22 Lastly, any error didn’t so undermine the fundamental
fairness of the trial as to cast serious doubt on the reliability of the
judgment of conviction. For one thing, Longoria didn’t base his
defense on a challenge to his alleged acts, but rather on a theory
that he lacked the requisite intent. For another, the evidence of
Longoria’s guilt was quite strong. Longoria came into the victim’s
11
apartment through a window. After knocking her unconscious,
Longoria straddled the victim (who was wearing only a t-shirt and
underwear) on her bed, spread her legs apart with his hands (on the
upper part of her inner thighs), and used his legs to keep the
victim’s legs apart. When the victim regained consciousness and
said, “Oh, my God, you’re going to rape me,” Longoria only
responded by making a shushing sound. These acts were “strongly
corroborative of the firmness of [Longoria’s] purpose to complete the
commission of the offense” of sexual assault. See § 18-2-101(1),
C.R.S. 2024 (defining criminal attempt); see also People v. Sloan,
2024 COA 52M, ¶¶ 39, 50 (we consider the strength of the evidence
in assessing the third prong of the plain error test).
2
Indeed,
Longoria’s defense was remarkably weak. His attorney asserted
(without evidence) that Longoria came into the victim’s house for
some unexplained reason without any intent to do anything. That
defense utterly failed to engage with the evidence of his actions in
the apartment, none of which Longoria’s counsel meaningfully
contested.
2
The victim had visible injuries following the assault, as defense
counsel conceded.
12
B. Sufficiency of the Evidence
¶ 23 Longoria contends that the evidence of a “substantial step”
toward committing sexual assault was insufficient, rendering his
convictions for attempted sexual assault and, hence, first degree
burglary unsustainable. He relies on a list of acts that he did not
do — acts that would have constituted substantial steps. But as we
have already determined, the acts Longoria did do were strongly
corroborative of his purpose to commit sexual assault. That he
didn’t commit other acts that also would have been strongly
corroborative of that purpose is of no consequence. So, viewing the
evidence in the light most favorable to the verdicts, we conclude
that the quantity and quality of the relevant evidence supports a
fair-minded jury’s finding that Longoria took a substantial step
toward committing sexual assault. See People v. Perez, 2016 CO
12, ¶¶ 24-25; People v. Woodyard, 2023 COA 78, ¶ 44.
III. Disposition
¶ 24 The judgment is affirmed.
JUDGE WELLING and JUDGE SCHOCK concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.