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People v. Villa-Villa6/10/1999
versible error. See Cooper v. People, 973 P.2d 1234 (Colo. l999)(applying structural error analysis where error in the jury instruction omits an essential element of the offense).
The elements of the offense of driving after judgment prohibited are, in pertinent part, that defendant, having been found to be an habitual traffic offender by the Division of Motor Vehicles, with actual knowledge of the revocation of his or her privilege to drive, did operate a motor vehicle while the revocation of the Department prohibiting such operation remained in effect.
As noted, at the time of defendant's trial, Parga had not been announced and the court gave the jury the pattern jury instruction. It stated that the People had to prove defendant had notice of the revocation order, see COLJI-Crim. No. 37:03 (1983), but did not mention actual knowledge. The trial court refused defendant's tendered instruction informing the jury that defendant's actual knowledge of the revocation order was an element of the offense.
Because the instruction given left out an essential element of the offense of driving after judgment prohibited, the judgment of conviction must be reversed.
III.
Given our Conclusion that a new trial is required, we do not address defendant's contention that the trial court erred in assessing costs for transcripts and a court-appointed interpreter pursuant to §21-1-106, C.R.S. 1998, because it failed to make the required finding that defendant was able to pay the expenses. Should the circumstance arise on remand, however, the court should make a finding regarding defendant's ability to pay before ordering costs. See §21-1-106, C.R.S. 1998 (requiring court to find that defendant is able to repay all or part of state-supplied expenses).
The judgment is reversed and the cause is remanded for a new trial consistent with the views expressed in this opinion.
JUDGE NEY and JUDGE RULAND concur.
These opinions are not final. They may be modified, changed or withdrawn in accordance with Rules 40 and 49 of the Colorado Appellate Rules. Changes to or modifications of these opinions resulting from any action taken by the Court of Appeals or the Supreme Court are not incorporated here.
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