Opinion
No. 75-814
Decided November 18, 1976. Rehearing denied December 9, 1976. Certiorari granted February 14, 1977.
From conviction of aggravated robbery and conspiracy to commit robbery, with a sentence to identical concurrent terms of imprisonment on each offense, defendant appealed.
Affirmed
1. CRIMINAL LAW — Sentencing — Defendant — Convicted of Two Crimes — Identical Concurrent Sentences — Errors in One Conviction — Not Prejudicial. Where a defendant convicted of aggravated robbery and conspiracy to commit robbery made contentions of error directed at only the conspiracy conviction, any error which might have been committed by the trial court with regard to the conspiracy charge was not prejudicial to defendant, he having been sentenced to identical concurrent terms on each offense.
2. Jury Instructions — Refusal of Instruction — Identity and Credibility — Not Error — Other Instructions Sufficient. In a criminal trial for aggravated robbery and conspiracy to commit robbery, since a general instruction on credibility and instructions dealing with the presumption of innocence and the concept of reasonable doubt were submitted to the jury, and since the jury was apprised of each element of the crime, and was instructed that it must find beyond a reasonable doubt that defendant committed the requisite acts, the trial court's refusal of a tendered instruction on identity and credibility was not error.
3. Jury Instructions — Theory of Case — Separate Instruction Unnecessary — Encompassed in Other Instructions. Although a defendant in a criminal trial is entitled to have a tendered instruction on his "theory of the defense" submitted to the jury, no such entitlement accrues where the matters contained in the tendered charge are fully encompassed in the instructions actually submitted to the jury.
Appeal from the District Court of the County of Larimer, Honorable Conrad L. Ball, Judge.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, David K. Rees, Assistant Attorney General, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, for defendant-appellant.
Defendant, John Villafranca, was convicted of aggravated robbery and conspiracy to commit robbery, and was sentenced to identical concurrent terms of imprisonment on each offense. He contends that the trial court erred (1) in admitting into evidence a statement attributed to an alleged co-conspirator; (2) in submitting an instruction regarding the elements of conspiracy; (3) in refusing an instruction submitted by defendant on identity and credibility. We affirm.
[1] Defendant's first two contentions of error are directed at the conspiracy conviction. The challenged instruction did not relate to the aggravated robbery charge, and the disputed testimony did not implicate defendant in any criminal activity; hence, neither could have had any effect upon the jury's conclusion that defendant was guilty of aggravated robbery. Since the sentence imposed on the conspiracy conviction did not exceed that for robbery, defendant was not prejudiced by any error which might have been committed by the trial court with regard to the conspiracy charge. Gallegos v. People, 139 Colo. 166, 337 P.2d 961 (1959). See also People v. Wieckert, 191 Colo. 511, 554 P.2d 688 (1976); People v. Morgan, 189 Colo. 256, 539 P.2d 130 (1975); People v. Brown, 185 Colo. 272, 523 P.2d 986 (1974).
[2] Nor does the trial court's refusal of defendant's tendered instruction on identity and credibility warrant reversal. A general instruction on credibility was submitted to the jury, as were instructions dealing with the presumption of innocence and the concept of reasonable doubt. The jury was apprised of each element of aggravated robbery, and was instructed that it must find beyond a reasonable doubt that defendant committed the requisite acts. Hence, the trial court's refusal of the tendered instruction on identity and credibility was not error. People v. Palumbo, 192 Colo. 7, 555 P.2d 521 (1976); People v. Lopez, 182 Colo. 152, 511 P.2d 889 (1973).
[3] Although defendant asserts that he was entitled to have the tendered instruction submitted to the jury as his "theory of defense," no such entitlement accrues where the matters contained in the tendered charge are fully encompassed in the instructions actually submitted to the jury. People v. Moya, 182 Colo. 290, 512 P.2d 1155 (1973). See also People v. Akins, 36 Colo. App. 337, 541 P.2d 338 (1975).
Judgment affirmed.
JUDGE VAN CISE concurs.
JUDGE KELLY specially concurs.