Peo v Vasquez

24CA1723 Peo v Vasquez 10-15-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1723
City and County of Denver District Court No. 12CR4100
Honorable Michael Spear, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jose Luis Vasquez,
Defendant-Appellant.
ORDER AFFIRMED
Division VII
Opinion by JUDGE PAWAR
Brown and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 15, 2026
Philip J. Weiser, Attorney General, Jessica E. Ross, Senior Assistant Attorney
General & Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee
Patrick R. Henson, Alternate Defense Counsel, Justin Twardowski, Alternate
Defense Counsel, Denver, Colorado, for Defendant-Appellant

1
¶ 1 Defendant, Jose Luis Vasquez, appeals the district court’s
order denying his Crim. P. 35(c) motion for postconviction relief
following an evidentiary hearing. We affirm.
I. Background
¶ 2 The prosecution charged Vasquez with sixteen criminal counts
based on allegations that he abused his two daughters and his son,
E.O., and, in violation of a criminal protection order, wrote letters to
them to influence their testimony at trial.
¶ 3 At trial, Vasquez defended against these charges by asserting
that he did not cause his children’s injuries or otherwise abuse
them; rather, his mother and E.O.’s mother fabricated the abuse so
that they could obtain custody of the children. Vasquez also
asserted that the letters he sent to his children were merely
admonitions to tell the truth and not an attempt by him to
influence their testimony at trial.
¶ 4 The jury convicted Vasquez of three counts of misdemeanor
child abuse, three counts of violation of a protection order, and
three counts of tampering with a witness or victim. He was
acquitted of four other felony offenses — two counts of child abuse
resulting in serious bodily injury and two counts of second degree

2
assault. The district court sentenced him to an aggregate term of
twenty-seven and a half years of incarceration — nine and a half
years in the Denver County Jail for the child abuse and violation of
a protection order convictions and eighteen years in the custody of
the Department of Corrections (DOC) for the tampering convictions.
The court ordered the jail and DOC sentences to be served
consecutively.
¶ 5 Vasquez appealed the judgment of conviction and sentence,
and a division of this court affirmed. People v. Vasquez, (Colo. App.
No. 13CA1601, Feb. 16, 2017) (not published pursuant to C.A.R.
35(e)). Thereafter, Vasquez filed pro se motions under Crim. P.
35(a) and (b), which the district court denied in a written order.
Vasquez did not appeal.
¶ 6 Next, Vasquez filed the pro se Crim. P. 35(c) motion underlying
this appeal. In the motion, he raised claims of ineffective assistance
of trial counsel and malicious prosecution. The district court
appointed postconviction counsel, who supplemented Vasquez’s pro
se motion, adding a claim based on newly discovered evidence. The
prosecution responded and the court agreed to hold an evidentiary
hearing on Vasquez’s ineffective assistance claims alleging that

3
counsel failed to (1) subpoena and interview several witnesses; (2)
litigate pretrial motions to sever the witness tampering counts from
the child abuse counts; and (3) contest the admission of evidence
that Vasquez used alcohol and marijuana. The court ruled that
Vasquez’s newly discovered evidence claim would be addressed
following the hearing. At the hearing, the court heard testimony
from Vasquez, his sister, trial counsel, and postconviction counsel’s
investigator. After the hearing, the court denied Vasquez’s motion
in a detailed written order.
II. Discussion
¶ 7 Vasquez contends that the district court erred by denying
without a hearing his newly discovered evidence claim. He also
contends that, contrary to the district court’s findings, the evidence
at the postconviction hearing established that his attorneys
provided ineffective assistance by failing to subpoena and interview
several witnesses before trial.1 We address and reject both
contentions in turn.
1 The claims raised in Vasquez’s postconviction motion but not
reasserted in this appeal are abandoned. See People v. Osorio, 170
P.3d 796, 801 (Colo. App. 2007).

4
A. Newly Discovered Evidence Claim
¶ 8 Vasquez asserts that he is entitled to an evidentiary hearing
because his claim of newly discovered evidence has arguable merit
and asserted facts that, if true, would entitle him to relief as to the
two witness tampering counts involving his son. We disagree.
1. Applicable Law and Standard of Review
¶ 9 Under Crim. P. 35(c)(2)(V), a defendant may seek
postconviction relief based on newly discovered evidence. People v.
Thompson, 2020 COA 117, ¶ 33. As relevant here, Rule 35(c)
requires defendants seeking a new trial in such circumstances to
show that on retrial, the newly discovered evidence would probably
produce an acquittal. People v. Bonan, 2014 COA 156, ¶ 27.
¶ 10 We review de novo a district court’s denial of a Crim. P. 35(c)
motion without a hearing. People v. Cali, 2020 CO 20, ¶ 14. A
district court may deny a defendant’s Crim. P. 35(c) motion without
an evidentiary hearing if the motion, files, and record of the case
show to the satisfaction of the court that the defendant is not
entitled to relief. Crim. P. 35(c)(3)(IV).

5
2. Analysis
¶ 11 In his supplemental motion, Vasquez alleged that new
evidence indicated that E.O.’s mother “bribed” him to make false
allegations of abuse. This new information came to Vasquez’s
attention after postconviction counsel’s investigator interviewed
E.O., now an adult, about his testimony at trial. In the interview,
E.O. stated that his mother told him he needed to “paint a picture
of his dad to be very abusive,” or he would not be able to live with
her. E.O. explained that many of the allegations he made at trial
were “overexaggerated” and while his father was “physically
abusive” to him it was “nothing to an extreme.” E.O. specifically
recanted his testimony underlying the counts Vasquez was
acquitted of involving a homemade shank made from a screwdriver.
When the investigator asked E.O. if he believed he was truthful
about everything he said in his testimony at trial, he replied, “Yes,
most of it.”
¶ 12 The district court denied the claim without a hearing. The
court found that the limited recantation outlined in the
investigator’s memorandum would not merit an evidentiary hearing

6
given E.O.’s acknowledgment that most of his trial testimony was
truthful. We agree with the district court.
¶ 13 Our supreme court has made clear that “the newly discovered
evidence must not only be relevant to material issues at trial but
. . . must also be of consequence to the outcome.” Farrar v. People,
208 P.3d 702, 706 (Colo. 2009). Moreover, the evidence “must be of
sufficient consequence for reasons other than its ability to impeach,
or cast doubt upon,” other evidence. Id. at 707. That is, the newly
discovered evidence “must be consequential in the sense of being
affirmatively probative of the defendant’s innocence.” Id. Therefore,
in order obtain relief, Vasquez must show that E.O.’s new testimony
would probably produce an acquittal if offered in a retrial on the
tampering charges related to the letters he sent to E.O.
¶ 14 On appeal, Vasquez argues that this new evidence would likely
lead to an acquittal on retrial of the two tampering counts involving
E.O. because, when read alongside E.O.’s new statements, the
letters show only that he urged E.O. to tell the truth, and not to
testify falsely. But E.O.’s trial testimony did not bear directly on the
tampering charges. In fact, E.O. did not testify about the letters
Vasquez sent to him at all. Rather, the letters themselves formed

7
the basis for the tampering charges, and to convict Vasquez of
tampering, the prosecution did not have to prove, nor did the jury
have to believe, the entirety of E.O.’s account of abuse — the jury
only needed to believe part of it. As the district court observed,
E.O.’s statement was only a partial recantation. That is, despite
agreeing that some of his prior allegations of abuse were untrue
(allegations that the jury apparently did not credit given acquittals
to those charges), E.O. maintained that his trial testimony was
mostly true. And because E.O. maintained the accuracy of much of
his testimony, the letters encouraging him to not lie could also be
viewed as encouraging him to testify falsely about those aspects
which he maintained were true. Given this, combined with the
other evidence that was presented at the trial concerning the
allegations of child abuse, we cannot say that E.O.’s partial
recantation would probably produce an acquittal on the two
tampering counts involving E.O. Therefore, we conclude that the
district court did not err when it denied this claim without a
hearing.

8
B. Ineffective Assistance of Counsel Claims
¶ 15 Next, Vasquez contends that trial counsel provided ineffective
assistance by failing to subpoena certain witnesses to testify at trial
and failing to interview others before trial. Because we agree with
the district court that Vasquez did not establish that counsel’s
purportedly deficient performance prejudiced him, we are not
persuaded.
1. Applicable Law and Standard of Review
¶ 16 “A criminal defendant is constitutionally entitled to effective
assistance from his counsel.” Ardolino v. People, 69 P.3d 73, 76
(Colo. 2003). To succeed on an ineffective assistance of counsel
claim, the defendant must establish that (1) counsel’s performance
was deficient, meaning it fell below an objective standard of
reasonableness; and (2) counsel’s deficient performance prejudiced
the defendant, meaning a reasonable probability exists that, but for
counsel’s deficient performance, the result of the proceeding would
have been different. Strickland v. Washington, 466 U.S. 668, 687-
88 (1984); Dunlap v. People, 173 P.3d 1054, 1062-63 (Colo. 2007).
A district court may deny an ineffective assistance of counsel claim

9
if the defendant fails to demonstrate either deficient performance or
prejudice. See People v. Aguilar, 2012 COA 181, ¶ 9.
¶ 17 We review the denial of a Crim. P. 35(c) motion after a hearing
as a mixed question of fact and law. People v. Corson, 2016 CO 33,
¶ 25. We defer to the district court’s factual findings but review de
novo the court’s ultimate conclusions regarding performance and
prejudice. See Carmichael v. People, 206 P.3d 800, 807-08 (Colo.
2009); People v. Sharp, 2019 COA 133, ¶ 12. The district court
determines the weight and credibility to give witness testimony at a
Crim. P. 35(c) hearing. People v. Hardin, 2016 COA 185, ¶ 39.
Accordingly, “[w]here the evidence in the record supports the
findings and holding of the postconviction court that presided over
an evidentiary hearing, the judgment will not be disturbed on
review.” People v. Wardell, 2020 COA 47, ¶ 27.
2. Failure to Subpoena Witnesses
¶ 18 Vasquez contends that trial counsel provided ineffective
assistance by failing to subpoena a Denver Human Services (DHS)
case worker, his sister, and his father to secure their trial
testimony. Had counsel subpoenaed these witnesses, he asserts,
they could have provided testimony regarding the “family dynamics”

10
and “some of the motivation” behind the allegations that were
lodged against him — namely, his mother and E.O.’s mother’s
desires to obtain custody of the children.
¶ 19 In rejecting this claim, the district court ruled that Vasquez
failed to prove prejudice. The court noted that the claims raised in
the motion related only to Vasquez’s felony convictions — the
tampering counts — because any challenges to the remaining
misdemeanor convictions were untimely. As to the tampering
counts, the court found that the purported testimony of these three
witnesses had little relevance as testimony concerning “family
dynamics” had little to do with the issue of the authorship of the
letters and Vasquez’s intent in writing them.
¶ 20 This conclusion is supported by the evidence at the hearing.
Vasquez testified that these three witnesses could testify that his
mother and E.O.’s mother “were trying to take custody of [his]
children.” But he presented no evidence that these witnesses could
have testified about the letters he wrote to his children or what he
meant when he sent them. See People v. Tackett, 742 P.2d 957,
960 (Colo. App. 1987) (failure to present “inconsequential” evidence
did not establish prejudice under Strickland).

11
¶ 21 Vasquez argues on appeal that the testimony of these three
witnesses would have laid the foundation to more thoroughly
question his mother and E.O.’s mother at trial concerning their
“coordinated effort to find fault” with him and encourage the
children to lie or exaggerate the allegations of abuse. But trial
counsel testified that the defense strategy was to portray Vasquez’s
mother and E.O.’s mother as having fabricated the allegations of
child abuse and having encouraged the children to do the same to
obtain custody from Vasquez. Our review of the record confirms
that this strategy was employed throughout the trial. For example,
trial counsel told the jury, “[t]his case is about the efforts that a
mom will go to gain custody of her son” and to regain custody she
needed to make Vasquez “into a monster.” In support, counsel
cross examined E.O.’s mother about how she “hate[s]” Vasquez and
when she lost custody of E.O. to him worked to regain it, having
successfully obtained “[j]ust about” full custody at the time of the
trial. And counsel cross examined Vasquez’s mother about how she
too now has “physical custody” of E.O.’s sisters. To the extent that
the unobtained testimony from the three witnesses had any
relevance to the tampering counts, the testimony was not so

12
different from the admitted evidence of Vasquez’s mother’s and
E.O.’s mother’s motive to fabricate the abuse that there is a
reasonable probability the outcome of the trial would have been
different had the testimony been presented. See Strickland, 466
U.S. at 694.
¶ 22 Accordingly, we agree with the district court that Vasquez
failed to carry his burden to show that he was prejudiced by
counsel’s alleged failure to call his proposed witnesses at trial.
3. Failure to Interview Witnesses
¶ 23 Vasquez also contends that trial counsel provided ineffective
assistance by failing to interview his mother and E.O.’s mother
before trial. He asserts that counsel’s failure to interview these
witnesses prevented him from conducting a more thorough cross-
examination that would have exposed these witnesses’ efforts to
obtain custody of the children and may have “exposed the
allegations of abuse as lies.”
¶ 24 We agree with the district court that even if counsel had
interviewed Vasquez’s mother and E.O.’s mother before trial, the
outcome of the tampering convictions would not have been
different. No evidence was presented at the hearing that these two

13
witnesses had any information relating to the letters that formed
the basis of the tampering charges. Indeed, their testimony — and
Vasquez’s defense theory concerning it — pertained only to the
child abuse allegations. As the court observed, the connection
between the tampering charges and the child abuse charges was
“tenuous.” As discussed, the tampering charges were based on
letters Vasquez wrote to the children urging them to change their
testimony concerning the abuse allegations. But the child abuse
allegations did not consist solely of witness testimony; rather,
photographs of bruising and expert testimony about the children’s
injuries were also presented to the jury. Thus, even if a pretrial
interview would have better prepared counsel to attempt to confront
Vasquez’s mother and E.O.’s mother concerning their purported
motivations, given the other evidence of abuse presented at trial, we
cannot say the result of the proceeding would have been different.
¶ 25 We also disagree with Vasquez’s assertion that a pretrial
interview of Vasquez’s mother and E.O.’s mother might have
exposed false allegations of abuse (based on E.O.’s recent interview
with postconviction counsel). Vasquez’s argument presumes that
these witnesses would have consented to an interview with trial

14
counsel in the first place. As the district court noted, these
witnesses were not aligned with the defense, and no evidence was
presented that either of them would agree to a pretrial interview
had trial counsel contacted them for one.
¶ 26 Accordingly, we conclude that Vasquez failed to demonstrate
that he was prejudiced by counsel’s failure to interview his mother
and E.O.’s mother before trial, and therefore, that the district court
did not err in denying this claim.
III. Disposition
¶ 27 The order is affirmed.
JUDGE BROWN and JUDGE MOULTRIE concur.