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22CA1591 Peo v Castorena 10-24-2024 modified

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1591
Adams County District Court No. 20CR1055
Honorable Robert W. Kiesnowski, Jr., Judge

The People of the State of Colorado,

Plaintiff-Appellee,

Juan Manuel Castorena,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE LUM
Freyre and Grove, JJ., concur

Opinion Modified On the Court’s Own Motion
and Petition for Rehearing DENIED

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 24, 2024

Philip J. Weiser, Attorney General, Sonia Raichur Russo, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, John Plimpton, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
OPINION is modified as follows:

Page 3, ¶ 8 currently reads:

The suppression hearing took place in early 2020, about two

years after the shooting.

Opinion now reads:

The suppression hearing took place in early 2022, about four

years after the shooting.

Page 6, ¶ 17 currently reads:

The suppression hearing took place at the beginning of 2020,

two years after the shooting.

Opinion now reads:

The suppression hearing took place at the beginning of 2022,

four years after the shooting.
¶1 Defendant, Juan Manuel Castorena, appeals his judgment of

conviction for first degree murder. He argues that the district court

reversibly erred by denying his motion to suppress a witness’s out-

of-court identification and prohibiting the admission of the

witness’s prior inconsistent testimony. Because we agree with

Castorena’s first contention, we need not reach the second. We

reverse and remand for a new trial.

I. Background

¶2 One night, a Facebook account linked to Castorena messaged

the victim with instructions to meet at the mailboxes near the

parking lot of the victim’s apartment complex. Around the time of

the Facebook messages, multiple witnesses saw two men attacking

the victim in the parking lot. They left the victim on the ground and

walked back towards their car, which was parked near the

mailboxes. One witness saw the victim get up and begin following

the assailants toward the mailboxes.

¶3 Araceli Puebla heard the altercation and walked to the front of

her building to see what was going on. She saw a man exit from the

passenger side of a car parked near the mailboxes, draw a gun, and

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shoot the victim. None of the other witnesses saw who the shooter

was. Puebla gave descriptions of the shooter to police officers that

night. Several months later, a different officer showed her a six-

person photo array, from which she identified Castorena as the

shooter.

¶4 Before trial, Castorena moved to suppress Puebla’s out-of-

court identification. While the district court found the photo array

impermissibly suggestive, it denied the motion to suppress because

it concluded that Puebla’s identification was otherwise sufficiently

reliable.

¶5 At trial, Castorena’s defense was that he wasn’t the shooter

and that Puebla’s out-of-court identification wasn’t reliable.

Castorena didn’t testify. On direct examination, Puebla testified

that she didn’t see the shooter in the courtroom. Castorena

extensively cross-examined Puebla regarding inconsistencies in her

testimony and interviews with police about the events on the night

the victim was shot. The officer who had conducted the photo array

identification testified that Puebla identified Castorena as the

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shooter in a photo lineup. The photo array with Puebla’s initials by

Castorena’s photo was admitted into evidence.

¶6 The jury found Castorena guilty of first degree murder. He

now appeals.

II. Out-of-Court Photo Identification

¶7 Castorena argues that the district court erred by not

suppressing Puebla’s out-of-court photo identification because the

identification wasn’t sufficiently reliable to overcome the

suggestiveness of the photo array. We agree.

A. Additional Facts

¶8 The suppression hearing took place in early 2022, about four

years after the shooting. The following evidence was presented

about Puebla’s various descriptions of the shooter and the photo

identification:

1. Night of the Shooting

¶9 Immediately after the shooting, Officer Mark Jarvis interviewed

Puebla in her apartment. Puebla spoke Spanish, and her daughter

translated. Puebla said she saw the shooting and that the shooter

was the passenger of the car that was parked at the mailboxes

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during the altercation. She described the shooter as a heavyset,

Hispanic male.

¶ 10 Detective Scott Mehle interviewed Puebla later that same night

at a police station.1 Puebla’s daughter again translated. Puebla

told Detective Mehle that it was dark out when she saw the victim

arguing with the tall, skinny driver of the car parked by the

mailboxes. Puebla watched from the sidewalk along the apartment

complex’s parking lot. Initially, the shooter was in the passenger

seat of the parked car, but Puebla saw the shooter get out of the

car, take a gun out of his waistband, and shoot the victim.

¶ 11 Puebla told Detective Mehle that the shooter directly faced her

several times. She also said that the parking lot was well lit from

surrounding street lights and lighting on surrounding buildings.

1 Neither Officer Jarvis nor Detective Mehle testified at the

suppression hearing. Rather, Detective Steve Sanders testified
about the content of Puebla’s interviews based on Officer Jarvis’s
reports and video of Detective Mehle’s interview. Detective Luis
Lopez and another detective testified about conducting Puebla’s
out-of-court identification.
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¶ 12 Puebla described the shooter as heavyset, short, round faced,

and wearing a blue or dark-colored shirt. She said the shooter was

bald but then described his hair like Detective Mehle’s, which was a

“close shave.” She also said that the shooter was shorter than the

driver and didn’t have any facial hair. Although somewhat unclear,

the testimony suggests Puebla said that she did not know the

shooter’s race (although she might be able to identify the shooter’s

complexion). She also told Detective Mehle that she wouldn’t be

able to identify his face.

¶ 13 After the interview, Puebla (through her daughter) wrote a

statement saying that the shooter was “not white,” chubby, bald,

and wearing a black sweater.

2. Photo Array Identification

¶ 14 Puebla’s out-of-court photo identification took place in May

2018, about four months after the shooting. Two weeks before the

identification, Detective Luis Lopez, who spoke Spanish, contacted

Puebla to obtain her description of the shooter. She described the

shooter as a Hispanic male with a round face and wearing a hoodie.

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¶ 15 Detective Lopez went to Puebla’s home for the identification.

He brought a photo array of six photos, consisting of a photo of

Castorena and five photos of other men of similar skin color and

facial hair. Castorena’s photo was taken from an unrelated

booking. He was the only man in the photos wearing a hoodie, and

the hood came up partially around his head.

¶ 16 After viewing the photos for four minutes, Puebla told

Detective Lopez that Castorena looked “most like the person who

[she] saw commit the homicide.” On a scale of one to ten, with ten

being “a perfect match,” she described herself as being at an eight

in certainty that Castorena’s photo matched the shooter.

3. Suppression Hearing Description

¶ 17 The suppression hearing took place at the beginning of 2022,

four years after the shooting. Puebla estimated that she witnessed

the altercation and shooting from forty feet away, close enough to

hear the men at the mailboxes arguing. However, Detective Steve

Sanders, the lead detective on the case, testified that the actual

distance based on where Puebla said she was standing was closer

to 100 feet. Puebla said she could see the incident because “[i]t was

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very clear” due to lighting at the mailboxes, in the parking lot, and

around the apartment buildings. Detective Sanders testified that,

based on his personal experience, the parking lot was sufficiently lit

to allow a person to recognize someone else at night.

¶ 18 Puebla watched the incident unfold for two minutes. Initially,

the shooter sat in the passenger seat of the car. Puebla saw him

outside the car for forty seconds, during which time he shot the

victim. Puebla testified that she was “surprised” by the shooting,

but she only felt scared after the fact. She said the shooter faced

her during the shooting, and she described him as being tall,

overweight, dark skinned, round faced, bearded, and with short

hair.

¶ 19 Puebla also testified that the shooter was taller than the

driver, even though this conflicted with the description she gave to

Detective Mehle. She didn’t recall telling the detectives on the night

of the shooting that she would not be able to identify the shooter’s

face.

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B. District Court’s Ruling

¶ 20 The district court found that the men in the photo array all

looked similar to one another. Nevertheless, the court concluded

that the photo array was impermissibly suggestive because, after

Puebla told Detective Lopez that the shooter wore a hoodie,

Castorena was the only person wearing a hoodie in the array. The

court was also concerned because Castorena’s hoodie was drawn

around his head so as to highlight him, “almost like a halo.”

¶ 21 Nevertheless, the court further ruled that the People met their

burden under the totality of the circumstances of showing that

Puebla’s identification was reliable. The court noted that Puebla’s

inconsistent statements about whether the shooter was taller or

shorter than the driver of the vehicle “weigh[ed] against a

determination of reliability” but “did not, by itself, demonstrate a

completely inaccurate recollection.” The court also found that

Puebla observed the shooting from “either 40 or 100 feet away” and

saw the shooter for about forty seconds. The court concluded that

forty seconds was “not too short a time to make a reliable

determination of identity.” And despite the distance, the court

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impliedly found that the area was sufficiently lit for Puebla to view

the altercation and that she had a clear view of the shooter’s face.

The court also credited Puebla’s “eight out of ten” confidence in

selecting Castorena’s photograph and concluded that the four

month delay between the shooting and the identification would not

“materially erode” a witness’s memory.

C. Applicable Law

¶ 22 “Due process of law protects the accused against the

introduction of evidence tainted by unreliable pretrial identifications

obtained through unnecessarily suggestive procedures.” People v.

Plancarte, 232 P.3d 186, 189 (Colo. App. 2009).

¶ 23 In Bernal v. People, the Colorado Supreme Court adopted a

two-part test for determining if a defendant’s due process rights are

violated by the admission of an identification made during a

photographic lineup. 44 P.3d 184, 191 (Colo. 2002); see Plancarte,

232 P.3d at 189. First, the defendant must demonstrate that the

photo array was impermissibly suggestive. Bernal, 44 P.3d at 191.

Relevant factors in determining whether the array is impermissibly

suggestive include the size of the array, the manner of its

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presentation by officers, and the details of the photographs

themselves. Id.

¶ 24 Second, if the array is impermissibly suggestive, the burden

shifts to the prosecution to show that the “identification was

nevertheless reliable under the totality of the circumstances.”

People v. Campbell, 2018 COA 5, ¶ 55. To determine reliability,

courts consider the following factors:

(1) the opportunity of the witness to view the criminal at the

time of the crime;

(2) the witness’s degree of attention;

(3) the accuracy of the witness’s prior description of the

criminal;

(4) the level of certainty demonstrated by the witness at the

confrontation; and

(5) the length of time between the crime and the

confrontation.

Bernal, 44 P.3d at 192.

¶ 25 “Ultimately, the suggestiveness of the identification procedure

must be balanced against the indicia of reliability; provided that

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there is not a ‘very substantial likelihood of irreparable

misidentification,’ the identification is admissible.” Campbell, ¶ 56

(quoting Bernal, 44 P.3d at 192).

D. Standard of Review

¶ 26 We review the constitutionality of pretrial identification

procedures as a mixed question of law and fact. Bernal, 44 P.3d at

190. We defer to the district court’s factual findings but review its

legal conclusions de novo. Plancarte, 232 P.3d at 189. Thus, while

affording deference to the district court’s findings of fact, we may

weigh those facts differently and reach a different conclusion.

Bernal, 44 P.3d at 190.

E. Suggestiveness (Alternative Grounds to Affirm)

¶ 27 Initially, we decline the People’s invitation to affirm the district

court’s ruling on the grounds that the photo array wasn’t suggestive

(and that the district court erred by finding it was). While the facial

features of the men in the photos were all similar, Castorena’s

hoodie made his photo noticeably stand out from the others. Id. at

191. Moreover, even though Puebla described the shooter’s clothing

inconsistently, the hoodie featured in the only description she gave

close in time to the photo lineup. Thus, regardless of the
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description’s accuracy, the hoodie rendered Castorena’s photo

“unique in a manner directly related to an important identification

factor.” Id. at 192. Accordingly, we agree with the district court

that the photo array was impermissibly suggestive.

F. Reliability Analysis

¶ 28 Castorena contends that the district court erred by

determining that the prosecution had proved that Puebla’s out-of-

court identification was reliable. Applying the Bernal factors, we

agree.

1. Opportunity to View

¶ 29 The record supports the district court’s findings about the

length of time Puebla saw the shooter (forty seconds); and that she

was positioned to get a clear view of the shooter’s face. The record

also supports the court’s implied finding that the area was

sufficiently lit for Puebla to view the altercation.

¶ 30 We conclude that the length of time and positioning favor

reliability. Forty seconds is a relatively long time to observe

someone, particularly given Puebla’s testimony that the shooter

looked directly at her several times. Indeed, identifications based

on observations as short as a few seconds have been found reliable.
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See United States v. Gallegos, 111 F.4th 1068, 1083-84 (10th Cir.

2024) (collecting cases indicating that “identification testimony —

even though based on seconds-long observations — can be

reliable”); Campbell, ¶ 58 (upholding identification as reliable when

a witness saw the suspect for “one or two seconds in a well-lit

area”).

¶ 31 However, the district court didn’t resolve the conflicting

testimony about Puebla’s distance from the shooter (40 or 100 feet),

and it’s unclear what weight (if any) the court put on distance. We

have found a few cases upholding identifications made from twenty

to fifty feet away, but those cases involved daylight conditions. See

Gallegos, 111 F.4th at 1084-85 (witness viewed the suspect from

twenty to forty feet away in “broad daylight”); Brisco v. Ercole, 565

F.3d 80, 83, 93 (2d. Cir. 2009) (witness viewed the suspect from

“fifteen to fifty” feet away at 11:30 a.m.). In contrast, while the

parking lot here was lit enough for Puebla to “view the altercation,”

the encounter nevertheless took place at nighttime, and Puebla told

Detective Mehle that it was too dark to see if the windows of the car

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were tinted or not.2 Moreover, the People don’t cite, and we haven’t

found, any case upholding an identification from more than fifty

feet away (much less one made at 100 feet) in any lighting

conditions.

¶ 32 We conclude that the distance, combined with the “sufficient”

but less-than-optimal lighting conditions, significantly undercuts

the weight that the viewing time and positioning would otherwise

give to this factor. On balance, this factor is neutral.

2. Degree of Attention

¶ 33 This factor is neutral. While Puebla paid attention to the

altercation and the shooting, any possible reliability boost is greatly

diminished by Puebla’s statement to Detective Mehle that she

wouldn’t be able to recognize the shooter’s face.

2 While we acknowledge Detective Sanders’ testimony that nighttime

lighting would have allowed a person to “recognize somebody that’s
walking through the parking lot,” he wasn’t asked if it would be
possible to do so from any particular distance away.

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3. Accuracy of Prior Description

¶ 34 Throughout her descriptions of the shooter, Puebla

consistently identified that he was heavyset with a round face.

These features match Castorena, who is described in police records

as being five feet, five inches tall and 280 pounds and who appears

to have a round face in his lineup photo and in photos of him

introduced at trial. However, Puebla’s descriptions of all other

features — hair, facial hair, race, clothing, and height — have been

inconsistent:

• The shooter’s race varied between unknown, a mix between

white and Hispanic, and Hispanic.

• Puebla variously described the shooter as bald or with short

hair.

• Although Puebla told Detective Mehle that the shooter

didn’t have facial hair, she described him at the

suppression hearing as having a beard.

• Puebla variously described the shooter’s clothing as a dark

blue shirt, a black sweater, and a hoodie.

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• Puebla described the driver of the car as being taller than

the shooter in her interview with Detective Mehle, but in the

suppression hearing, she said that the driver was shorter

than the shooter.

¶ 35 In addition to being inconsistent, we can’t discern the

accuracy of Puebla’s descriptions with respect to Castorena’s hair,

facial hair, and clothing. All three features can be easily (and

relatively quickly) changed, and the record doesn’t reflect what

Castorena’s hair, facial hair, or clothing actually looked like on the

night of the shooting. And for the characteristics for which we can

discern accuracy — particularly Castorena’s height relative to the

driver of the car — the discrepancies are troubling.

¶ 36 For these reasons, this factor weighs slightly against

reliability.

4. Level of Certainty

¶ 37 The district court weighed this factor in favor of reliability

because of Puebla’s eighty percent confidence rating. It credited

Puebla as “reasonabl[y] confiden[t]” in her photo selection and noted

that her confidence didn’t waver at the suppression hearing.

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¶ 38 We place little weight on this factor in this case. Although

Puebla asserted that her confidence level was relatively high, it’s

difficult to tell how much of that confidence was attributable to the

suggestive nature of the photo array, particularly given Puebla’s

statement on the night of the shooting that she wouldn’t be able to

identify the shooter’s face. And unlike the district court, we don’t

accord much weight to Puebla’s perceived confidence during the

suppression hearing because she displayed the same level of

confidence while testifying inaccurately about the details of her

prior statements to law enforcement officials.

5. Time Between Crime and Confrontation

¶ 39 The fact that several months passed between the crime and

Puebla’s identification weighs against reliability. Cf. Manson v.

Brathwaite, 432 U.S. 98, 115-16 (1977) (noting that the officer’s

photographic identification taking place only two days after the

crime favored reliability because it was not “the passage of weeks or

months between the crime and the viewing of the photograph”)

(emphasis added).

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6. Balancing Suggestiveness and Reliability Factors

¶ 40 In sum, we conclude that none of the factors weigh in favor of

reliability. The factors are either neutral (viewing conditions and

degree of attention), unweighted (confidence), or weigh against or

slightly against reliability (accuracy and time). It is the

prosecution’s burden to prove that, under the totality of the

circumstances, the suggestive procedure didn’t create a “very

substantial likelihood of misidentification.” Bernal, 44 P.3d at 192.

We conclude the prosecution didn’t meet that burden in this case.

III. Constitutional Harmless Error

¶ 41 Because the admission of a suggestive identification impacts

Castorena’s constitutional rights and because Castorena preserved

the error for review, it is subject to a constitutional harmless error

analysis. People v. Martinez, 2015 COA 37, ¶ 10. To be

constitutionally harmless error, the court “must be confident

beyond a reasonable doubt that the error did not contribute to the

guilty verdict.” Bernal, 44 P.3d at 200.

¶ 42 The People argue that any error in declining to suppress the

photo line up is harmless beyond a reasonable doubt. We disagree.

Castorena’s primary defense was that someone else was the
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shooter. While other witnesses and evidence placed Castorena at

the apartment complex that evening and linked him to the fight

with the victim, Puebla’s out-of-court identification was the only

evidence that Castorena — and not the driver or anyone else — had

shot the victim. Although Castorena extensively cross-examined

Puebla about her identification and inconsistent descriptions, we

cannot conclude, under these circumstances, that the guilty verdict

is “surely unattributable” the suppression error. Id. at 201.

IV. Disposition

¶ 43 We reverse the judgment of conviction and remand for a new

trial.

JUDGE FREYRE and JUDGE GROVE concur.

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22CA1591 Peo v Castorena 10-24-2024