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20CA1377 Peo v Vega Gomez 09-05-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA1377

Arapahoe County District Court No. 18CR960

Honorable Darren L. Vahle, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

Francisco Vega Gomez,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V

Opinion by JUDGE FREYRE

Yun and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced September 5, 2024

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant

Attorney General, Denver, Colorado, for Plaintiff-Appellee

Lucy H. Deakins, Alternate Defense Counsel, Denver, Colorado for Defendant-

Appellant

¶ 1 Defendant, Francisco Vega Gomez, appeals his convictions of

first degree assault, aggravated robbery, two counts of vehicular

eluding, three counts of aggravated motor vehicle theft, and

conspiracy to commit aggravated motor vehicle theft. We affirm.

I. Background

¶ 2 The trial evidence established that in March 2018, police

officers received a report of a stolen white Ford F-350 pickup truck

(F-350). When other officers found the F-350, Sergeant Claude

Burns responded to the scene. Burns began following the F-350 in

his marked patrol car. Burns noticed that a Ford Econoline box

truck (box truck) was traveling with the F-350. The two trucks

began driving faster than the posted speed limit and were swerving

in and around the lanes without signaling.

¶ 3 A second responding officer, Captain Stephen Redfearn,

attempted to stop the box truck. The box truck began changing

lanes, thereby preventing Redfearn from pulling alongside it.

Eventually, Redfearn turned off his emergency lights but continued

following the box truck. Then, the F-350 pulled behind Redfearn at

a high speed. Anticipating that the F-350 was going to hit him,

Redfearn swerved onto the shoulder. Subsequently, the trucks

went separate ways. The box truck continued on the highway,

while the F-350 exited. Redfearn followed the F-350 but backed off

significantly. After the F-350 arrived at a gas station, Redfearn

observed the driver, later identified as Gomez, jump across the gas

pump into a different pickup truck, a Ford F-250 (F-250). After

struggling with the driver, Gomez took control of the F-250, hit a

trailer, and then drove toward the highway. Redfearn followed the

F-250, which traveled at over one hundred miles per hour. The

Colorado State Patrol deployed spike strips, which caused the

F-250 to roll several times. Gomez was ejected from the truck and

was identified as its driver.

¶ 4 The prosecution charged Gomez with three counts of first

degree assault, aggravated robbery, two counts of vehicular eluding,

three counts of aggravated motor vehicle theft, and conspiracy to

commit motor vehicle theft. A jury acquitted him of two first degree

assault charges and convicted him of the remaining charges. The

court sentenced Gomez to sixteen years in the custody of the

Department of Corrections.

¶ 5 Gomez challenges his convictions on four grounds, asserting

the trial court erred by (1) refusing to allow him to question two of

the prospective jurors; (2) denying his challenge for cause to several

prospective jurors; (3) denying his Batson v. Kentucky, 476 U.S. 79

(1986), challenge; and (4) permitting the prosecution to

impermissibly shift the burden of proof in closing argument.

Gomez also alleges that cumulative error in jury selection deprived

him of a fair trial. We remanded this case for the trial court to

make findings under the three steps articulated in Batson and

recertified the case on appeal after receiving those findings. Based

on the record now before us and the parties’ supplemental briefs,

we affirm.

II. Jury Selection

¶ 6 Gomez alleges three errors in the jury selection process. In

addressing each claim separately, we disagree.

A. Batson Challenge

¶ 7 Gomez first contends that the trial court erred by denying his

Batson challenge. We disagree.

1. Additional Facts

¶ 8 On his juror questionnaire, prospective Juror W indicated that

he had been convicted of a crime and stated that he had “a lot” of

“bad” experiences with police officers. In response to whether there

were any reasons he could not be fair and impartial, Juror W

responded, “I don’t believe in CO system.”

¶ 9 The court asked the jurors whether “[a]nybody ha[d] strong

feelings about prosecutors, about criminal defense lawyers, about

defendants, one side or the other?” Juror Wh responded.

[JUROR WH]: I have extensive experience with

the Arapahoe County DA’s Office . . . . So

while serving as the Department of Corrections

Director for the State of Colorado, I had

extensive experience with the Arapahoe

County DA’s office around death penalty cases

as well as other prosecution of inmates at the

Colorado Department of Corrections.

[COURT]: Okay. And so in this case do you

feel like you’re leaning toward one side or the

other?

[JUROR WH]: Well, I believe there’s a pattern

of the Arapahoe County District Attorney’s

Office particularly with people of color being

excessive in their charges.

[COURT]: All right. So it sounds like you’re

leaning against the District Attorney in this

case?

[JUROR WH]: Yes, sir.

¶ 10 Next, Juror W addressed the court’s question.

[JUROR W]: Same thing. I’ve been in this

courthouse myself. I do feel the same way she

just said about the District Attorney as well.

[COURT]: Okay. Did you have a case in this

courtroom?

[JUROR W]: I had a couple.

[COURT]: Okay. Was I the judge on those

matters?

[JUROR W]: No.

[COURT]: And I’ll let the lawyers ask you some

further questions about that. I appreciate

that.

¶ 11 The court then called a bench conference and dismissed Juror

Wh for cause. Later, the court asked Juror W to clarify his

comments.

[COURT]: You mentioned that you were

charged in a matter. Was it more than one?

[JUROR W]: Yeah, but I don’t want to bring it

up.

[COURT]: Okay. And was that matter handled

by a dismissal or by a plea of some kind or by

a trial?

[JUROR W]: It was a plea.

[COURT]: Do you feel like you were treated

fairly in that matter?

[JUROR W]: Not at all.

[COURT]: Okay. How do you feel like that will

affect you, if at all, with regard to being fair in

this matter?

[JUROR W]: I just don’t agree with everything,

you know, they say and come forth with.

[COURT]: Okay. One of the great things about

our system — and I mentioned this this

morning when I talked to the jury — a lot of

countries, if a prosecutor or a police officer

says you committed a crime, guess what? You

committed that crime, and you have to try and

prove that you didn’t do it.

In our country one of the great things we have

is a jury trial, and the jury gets to assess the

evidence and decide whether the evidence is

sufficient or not.

Do you feel like you would be able to assess

the evidence and decide whether they can

prove their case? Or are you telling me that

you just don’t think you could find in favor of

the District Attorney?

[JUROR W]: I just feel as if there’s probably

more information that’s not necessarily, you

know, told to everybody.

¶ 12 The prosecutor then asked Juror W if his experience with the

district attorney’s office was weighing on his mind.

[JUROR W]: Of course.

[PROSECUTOR]: Something that maybe you

are thinking, [y]ou know, I haven’t heard any

evidence yet, but the scales are already kind of

tilted in the other direction?

[JUROR W]: Yes.

[PROSECUTOR]: Is that a “yes?” Excuse me.

Sorry about that. Is that something that you

think you’re gonna be able to shake during

this, or is that something that’s going to stay

with you?

[JUROR W]: I can try hard as I can, but I’ve

been in his shoes.

[PROSECUTOR]: Is it fair to say, you are

already kind of deferring to his side of things?

[JUROR W]: Yes.

[PROSECUTOR]: Understanding that what we

are doing here right now is just to see are you

the right juror for this type of case? Do you

have concerns about your ability to be 100

percent fair and impartial in this case?

[JUROR W]: I’ll be fair.

[PROSECUTOR]: You’ll be fair?

[JUROR W]: I know when my mind is set.

[PROSECUTOR]: Okay. I want to push back a

little bit here. Even though you’ve already

said, you know, that you’ve kind of had some

bad experiences in here, and you are already

leaning towards the Defense side of things, you

still think you’ll be able to be fair?

[JUROR W]: As much as I can.

[PROSECUTOR]: As much as you can?

[JUROR W]: Yes.

[PROSECUTOR]: How are you going to handle

that conflict in your head if you are hearing

evidence in the courtroom here today, and

your personal experience is kind of weighing

on your shoulders? How are you going to be

able to separate those two?

[JUROR W]: I mean, I still know, you know,

what’s right is right, wrong is wrong. But I

also know that I’ve been in his shoes so

everything’s not probably going to be out there

for us to see.

[PROSECUTOR]: And I guess the main crux of

my question in here then is understanding

that you’ll only be able to base your decision

on the evidence that you hear from that

witness stand right there, if you don’t hear it

from the witness stand or you don’t see it in an

exhibit, you don’t get to consider that. Is that

something you’ll be able to do?

[JUROR W]: Yes.

¶ 13 Later Juror W expressed skepticism regarding police officers’

credibility:

[PROSECUTOR]: [Juror W], you also had your

hand up. Is your past experience maybe

clouding how you might view police officers if

they came in here?

[JUROR W]: Not just my past experience, other

experiences whether it’s social media or

whatever it may be. I feel like a lot of police

officers say what they have to say versus

what’s the truth, say what they have to say to

get the job done or to finish out whatever they

already started with. If that makes sense.

[PROSECUTOR]: No. And fair to say social

media and even just the news media in

general, they put a pretty big spotlight on the

actions of police nowadays; is that fair to say?

[JUROR W]: And I don’t just look at negative

either. I look for positive as well. It’s coming

from both ends. I feel it’s more negative than

positive a majority of the time.

[PROSECUTOR]: Now, in this case I know

we’ve already had this discussion,

understanding that you have to base your

decision based only on what you hear there, if

you see a police officer come in, he’s got the

badge on, maybe he’s got a gun on his hip,

he’s in full uniform; are you kind of getting an

emotional response from just seeing a police

officer sit down that you are already having

concerns one way or another about his

credibility?

[JUROR W]: Yeah, I do.

[PROSECUTOR]: And what are those concerns

that you’re having?

. . . .

[JUROR W]: I guess like I said, saying what he

has to say versus the truth.

[PROSECUTOR]: And that’s based on —

[JUROR W]: To make his credibility stronger.

[PROSECUTOR]: Stronger, sure. And that’s

based on your personal experiences as well as

everything else that you’ve heard kind of going

on?

[JUROR W]: Exactly.

[PROSECUTOR]: And is that something you

think you’ll be able to set aside, or something

that’s going to be struck with you?

[JUROR W]: That’s stuck.

[PROSECUTOR]: So fair to say if a police officer

takes the stand, he’s already at a different level

than some lay person who might take that

stand?

[JUROR W]: Yeah. But like I said, I see

everybody for what they say, how they act, of

course, but I will have that little bit different.

[PROSECUTOR]: A little bit different?

[JUROR W]: Yeah.

¶ 14 The prosecutor challenged Juror W for cause, stating,

Your Honor, over several different topic areas

in speaking with him talking about, you know,

credibility of law enforcement officers and then

his past experience with the system, he always

started out in kind of affirming his belief that

he would hold the Prosecution to a higher

standard, [t]hat he was critical of the evidence

we would put on, [t]hat he knows there’s more

evidence that he’s not going to hear, and that

he has a problem with police officers.

Each time I questioned him, it seemed like he

was fighting back to try and find a middle

point, but kept reaffirming the biases that he

would have.

I would note for the Court that in our brief

review of our records, we know that [Juror W]

is currently on probation in Arapahoe county.

He had a case as recent as of January of this

year.

So I think that based on his statements on his

questionnaire, his statements to the Court,

and then his statements to us, understanding

his history, that he does rise to a level of

excusal for cause.

At this point, I don’t believe he could be fair or

impartial to the People in this matter.

¶ 15 Defense counsel responded, “Your Honor, I’ll agree with the

prosecution that [Juror W] had some statements, which there were

issues. But when pressed, he would say, Yes, I could be fair. So I

object to the challenge for cause.”

¶ 16 The court denied the challenge for cause as follows:

All right. And the Court is going to apply the

same standard both ways here. We have had

jurors who have said essentially they like

prosecutors and they like police officers and

they trust them. And we’ve had jurors who

said they don’t like prosecutors and they don’t

like police officers and they don’t generally

trust them. And both of those are opinions

which are just fine for jurors to have, and they

are not reasons to excuse them for cause.

I understand the People’s motion with regard

to [Juror W]. He has significant concerns that

he has raised, but at the same time, [Juror W]

has said he’ll judge each person on their own

merits. And so if the People raise a peremptory

challenge, the Court would clearly have a race

neutral reason under the Batson rubric whereby

that challenge would be unchallengeable,

but — given his statements he’s said is he

doesn’t like police, he doesn’t trust them, but

he would judge each one as it comes.

So the Court will deny the challenge with

regard to [Juror W].

(Emphasis added.)

¶ 17 Subsequently, the prosecutor excused Juror W with a

peremptory challenge, and the defense lodged a Batson objection

arguing,

Your Honor, [Juror W] is the only African

American individual on the panel at this time.

I’m asking that the Court reseat him at this

time. I believe it’s — under Batson, I can ask

for the People for a race neutral reason as to

why he was being dismissed. I believe it’s

because he’s an African American juror.

¶ 18 The trial court denied the challenge, finding,

With regard to [Juror W], [he] came very close

to disqualifying himself in his statements, and

the Court already made a record that there

were clearly race neutral reasons to excuse

[Juror W] given his statement that he doesn’t

like officers, he doesn’t like the Prosecutor, he

doesn’t believe them, and thinks that they are

essentially — I’m trying to think of how he said

it that they essentially will say things

necessary to get the job done whether it’s the

truth or not.

So the Court does not perceive a racial pattern

of any kind. But even if there were shown, the

People would simply have to produce a race

neutral reason, which there clearly are. So I’ll

deny a Batson challenge in regard to

[Juror W].

¶ 19 The court denied the Batson challenge without completing the

three-step analysis. Accordingly, the case was remanded for further

findings.

¶ 20 At the hearing on remand, the defense reiterated that Juror W

was the only African American on the jury and the prosecution had

excused Juror W because he was African American. The remand

court inquired whether defense counsel had any case law

supporting the assertion that simply being African American was

sufficient to satisfy the prima facie requirement of step one under

Batson. Defense counsel responded, “No.”

¶ 21 The court then found that Gomez failed to make a prima facie

showing that the prosecution’s peremptory challenge raised an

inference of discriminatory intent. The court stated:

The law cited here says that as long as the

totality of the relevant circumstances raises an

inference of racial motivation, the objecting

party has satisfied his or her step one burden.

The trial court considers the totality of the

circumstances to include the first juror who

was challenged for cause by the People, who

my recollection — correct me if I’m wrong —

was a white woman. She raised issues about

her particular beliefs about the Arapahoe

County District Attorney’s Office, their racial

motivation, that they were harder on African-

Americans. She had knowledge about,

essentially, racial motivation from the district

attorney. That woman was challenged for

cause.

The only reason I bring her up is that the voir

dire of the challenged juror, Juror W., sort of

dovetailed with hers because he referenced her

statements and essentially said, I believe the

same thing. And then he went on to talk

about how he had multiple convictions in

Arapahoe County, that he had multiple cases

in the very courtroom in which the trial was

being heard, and that he would be thinking of

other things that were not allowed in evidence,

that he knew that there were things that

wouldn’t come before a jury, and he would be

thinking of those things.

So, the totality of the circumstances. And he

went on, frankly, in his statement to talk

about police officers, how he felt like police

officers would say whatever was necessary to

get a conviction in court rather than the truth.

He would have difficulty believing police

officers, that he thought police officers — he

generally thinks they were lying to start with,

essentially. He made significant comments

prior to the challenge for cause raised by the

People.

The Court did a poor job of following the three

steps of Batson. The Court initially found on

the record that I didn’t find any racial pattern.

And I understand the Court of Appeals’

description that a pattern meaning the excusal

of more than one juror of a particular race is

not necessary in order to find that there is a

racial basis for the challenge. What the Court

meant to say was that given the totality of the

circumstances and all of the statements that

were made by Juror W., and specifically the

challenge for cause which was raised — which,

now reviewing, I think could have been

sustained — the Court did not find at the time

and does not find there was any way that the

Court, looking at the totality of the relevant

circumstances — I do not believe that the

challenge raised an inference of racial

motivation. So the Court finds that step one of

the challenge has failed. The Court will deny

the Batson challenge.

¶ 22 After finding no prima facie case had been established, the

court nevertheless addressed steps two and three, in the following

colloquy.

[COURT]: So had the court found an inference

of racial motivation, what would the People’s

race-neutral reasons be?

[PROSECUTOR]: Thank you, Your Honor. The

People’s race-neutral reasons would be that

the People had concerns about Juror W’s

ability to fairly assess the credibility of all

witnesses in the case based on his comments

about how he would view law enforcement,

witnesses, how he viewed the district

attorney’s office as holding information that he

knew we would not present, and how he would

potentially be skeptical of all evidence that was

put in place because of his experience with the

system.

Juror W. was pressed several times about his

ability to be fair and impartial, given those

beliefs, and he would ultimately acquiesce and

say, Well, I know myself, and I know I can be

fair. I will be fair here. However, continuously

throughout the jury selection process, he

would raise additional concerns of hidden

evidence, inability to fairly assess the

credibility of all witnesses, and inserting his

personal experience into his role as a juror. It

is for those reasons that the People originally

challenged for cause and ultimately exercised

a peremptory challenge.

[COURT]: Then, any argument with regard to

those allegedly race-neutral reasons that the

defense wishes to propound?

. . . .

[DEFENSE COUNSEL]: I mean me, my client,

and Juror W. were the only African — are the

only minorities in the courtroom, while the

only minority in the jury pool, to my

recollection was Juror W.

¶ 23 The court found that the prosecution provided race-neutral

reasons satisfying step two. It also found that the defense failed to

rebut the race-neutral reasons provided by the prosecution. The

court reasoned:

The Court does find that if I’d sustained the

challenge at phase one, the People have

provided race-neutral reasons. There are no

arguments that there are other persons on the

jury who were similarly prejudiced and had

similar issues raised by Juror W, who were not

excused, who were not minorities. Lastly, I’ll

note that [four of the seated jurors], all appear

to have Hispanic surnames or be Hispanic.

So, the Court would not in any circumstance

sustain a Batson challenge in this case. To

me, frankly, this was not even close. So the

Court did a poor job of following the three

steps, but the Court finds that step one fails,

and there’s no inference of a racial challenge.

Two, the Court finds that there are race-

neutral reasons that were given by the People,

which are not only plausible, they are

demonstrable. And then, three, the Court

finds that the defense has failed to show

that — let me make sure I get the language

correctly. Excuse me, correct. So in step

three, defense has the opportunity to rebut the

race-neutral reasons, and the Court has to

determine whether the objecting party has

established purposeful racial discrimination.

The Court finds that that has not been

established.

2. Standard of Review and Controlling Law

¶ 24 The Equal Protection Clause of the Fourteenth Amendment

precludes a juror challenge based on race. Batson, 476 U.S. at 89.

“Purposeful racial discrimination in selection of the venire violates a

defendant’s right to equal protection because it denies him the

protection that a trial by jury is intended to secure.” Id. at 86.

¶ 25 Batson provides a three-step process for evaluating claims of

racial discrimination in jury selection. People v. Johnson, 2024 CO

35, ¶ 17; People v. Austin, 2024 CO 36, ¶ 7. First, the opponent of

a peremptory strike must make a prima facie showing that the

proponent used the strike against a potential juror because of race.

Johnson, ¶ 18. As long as the totality of the relevant circumstances

raises an inference of racial motivation, the objecting party has

satisfied his or her step-one burden. Batson, 476 U.S. at 96; accord

Valdez v. People, 966 P.2d 587, 589 (Colo. 1998). At step two, the

proponent of the strike must offer a race-neutral explanation for the

strike — an explanation based on something other than the race of

the juror. Johnson, ¶ 19. Because it is the prosecutor’s

responsibility to establish a nondiscriminatory purpose, the trial

court may not offer up its own plausible reasons for the strike at

issue. People v. Ojeda, 2022 CO 7, ¶ 29. The striking party may

“provide any race-neutral justification for the strike, regardless of

implausibility or persuasiveness.” Id. at ¶ 24. Then, at step three,

the opponent may rebut the proponent’s explanation, and the court

must determine “[w]hether the objecting party has established

purposeful [racial] discrimination.” Id. at ¶ 27. “In assessing the

credibility of the proponent of the strike, the court may consider a

number of factors, including the proponent’s demeanor, how

reasonable or improbable the proponent’s explanations are, and

whether the proffered rationale has some basis in accepted trial

strategy.” People v. Collins, 187 P.3d 1178, 1182 (Colo. App. 2008).

For a Batson challenge to succeed, the court must “find by a

preponderance of the evidence that one or more potential jurors

were excluded because of race.” Valdez, 966 P.2d at 590.

¶ 26 Different steps of the Batson analysis are subject to separate

standards of review. Ojeda, ¶ 30. We review steps one and two de

novo. Id. At step three, the trial court’s final determination as to

the existence of racial discrimination is an issue of fact that we

review for clear error. Id.; see also Snyder v. Louisiana, 552 U.S.

472, 477 (2008). We defer to the trial court’s step-three ruling “so

long as the record reflects that the trial court weighed all of the

pertinent circumstances.” Johnson, ¶ 21 (quoting People v.

Beauvais, 2017 CO 34, ¶ 2).

3. Analysis

¶ 27 We first conclude that any decision that was made at step one

is moot because the trial court proceeded to steps two and three.

See People v. Gabler, 958 P.2d 505, 508 (Colo. App. 1997).

Therefore, we decline the prosecution’s invitation to decide, as a

matter of law, whether a juror’s racial identity alone is sufficient to

establish a prima facie case of discriminatory intent at step one.

¶ 28 We next conclude that the record demonstrates that the

prosecution offered a race-neutral reason for excusing Juror W.

The burden at step two is not high; the prosecution need only

tender a facially race-neutral explanation. Valdez, 966 P.2d at 591.

“Unless a discriminatory intent is inherent in the prosecutor’s

explanation, the reason offered will be deemed race neutral.”

Hernandez v. New York, 500 U.S. 352, 360 (1991). The court does

not consider whether the explanation is plausible or persuasive.

Johnson, ¶ 19.

¶ 29 Here, the prosecution challenged Juror W because of concerns

about whether he could fairly assess the witnesses’ credibility. This

reason is supported by the record. Juror W expressed his belief

that the Arapahoe County District Attorney’s Office was harder on

minorities, that he would have difficulty believing police officers,

and that he might consider things that were not allowed into

evidence, based on his prior experience with criminal trials. This

explanation constitutes a race-neutral reason for exercising a

peremptory challenge on Juror W and thus, satisfies the step two

requirement.

¶ 30 At step three, the objecting party may rebut the prosecution’s

race-neutral explanation, and the trial court must decide the

ultimate question: Whether the objecting party has established

purposeful discrimination? Ojeda, ¶27. Gomez argued only that

Juror W was the only African American in the jury pool.

¶ 31 We conclude that without more, Gomez has not established

purposeful discrimination. As the trial court found, Juror W was

treated no differently than Juror Wh, who expressed the same

beliefs. And the court noted that there were other minorities on the

jury, “who all appear to have Hispanic surnames or be Hispanic.”

Moreover, the court credited the prosecution’s race-neutral reason

for challenging Juror W, which is supported by the record.

¶ 32 We conclude that, on remand, the trial court considered all the

pertinent circumstances and that its ruling is supported by the

record. See Johnson, ¶ 52. Accordingly, we discern no error in the

court’s decision to deny Gomez’s Batson challenge.

B. Challenge for Cause

¶ 33 Gomez next contends that the trial court erred by refusing to

allow him to question prospective Jurors Wh and C before the court

dismissed them for cause. He also argues that the court erred by

denying his challenge for cause to Juror G because the juror

expressed “an incorrect view of the burden of proof.” We disagree

with both contentions.

1. Standard of Review and Applicable Law

¶ 34 The United States and Colorado Constitutions both guarantee

a defendant the right to a trial by a fair and impartial jury. U.S.

Const. amends. VI, XIV; Colo. Const. art. II, § 16; People v.

Abu-Nantambu-El, 2019 CO 106, ¶ 14. To protect this right, a

district court must sustain a challenge for cause when a juror has

indicated “enmity or bias toward the defendant or the state.”

§ 16-10-103(1)(j), C.R.S. 2024; see also Crim. P. 24(b)(1)(X). “Actual

bias is a state of mind that prevents a juror from deciding the case

impartially and without prejudice to a substantial right of one of the

parties.” People v. Macrander, 828 P.2d 234, 238 (Colo. 1992),

overruled on other grounds by People v. Novotny, 2014 CO 18. The

question whether a prospective juror has actual bias “such that

[they] cannot judge the matter fairly and impartially is necessarily a

matter involving an exercise of discretion on the part of the trial

court and therefore a range of permissible judgments about the

ability and willingness of that prospective juror.” Vigil v. People,

2019 CO 105, ¶ 14.

¶ 35 We will overturn a trial court’s ruling on a challenge for cause

only upon an affirmative showing that the court abused its

discretion. Carrillo v. People, 974 P.2d 478, 485 (Colo. 1999). A

trial court abuses its discretion by removing a prospective juror for

cause in the absence of firm and clear evidence that the juror held

actual bias that they could not set aside. People v. Lefebre, 5 P.3d

295, 302 (Colo. 2000), overruled on other grounds by Novotny, 2014

CO 18. This is a “very high standard of review” that accords

deference to the trial court’s superior ability to assess a potential

juror’s credibility, demeanor, and sincerity. People v. Young, 16

P.3d 821, 824 (Colo. 2001) (quoting Carrillo, 974 P.2d at 485-86);

Morrison v. People, 19 P.3d 668, 672 (Colo. 2000). In determining

whether a court has abused its discretion in ruling on a challenge

for cause, we must review the entire voir dire of the prospective

juror. Carrillo, 974 P.2d at 486.

2. Juror G

a. Additional Facts

¶ 36 During voir dire, defense counsel stated:

First thing I need to talk to you about is — and

I know Judge Vahle kind of went over this

briefly —

Now, but one of the things we talked about

specifically was that Mr. Vega Gomez and

myself, myself and Mr. Vega Gomez, there is

no burden on this side of the room. And when

Judge Vahle talked to you guys everybody

nodded and said, Yeah, completely

understand. There’s no burden over here.

What I need to know — and I’ll start with

[Juror N] — when I say “no burden,” that

means I can sit on this side of the room and do

nothing.

¶ 37 A back and forth between defense counsel and several jurors

took place before defense counsel first addressed another juror and

then Juror G:

[DEFENSE COUNSEL]: Talk to me about

wanting me to put on a case. Talk to me about

what you would need from me.

. . . .

I am not here to change your mind. I am not

here to convince you that I can sit over here

and play Candy Crush. That is not what I’m

here for. What I need to know is what you

need and what you need from me going

forward before we can pick a jury. Now

[Juror G]?

[JUROR G]: What do I need from you? If their

case is not clear, then I’d like to hear your side

of it. If their case if — if you’ve got another

perspective on what they’ve presented, I want

to hear that other perspective. If you don’t,

then I only need to hear from them and decide

based on what they’ve presented.

[DEFENSE COUNSEL]: Okay. Thank you,

[Juror G].

Your — and I don’t want to put words in your

mouth. So I can understand, they have a

perspective, correct?

[JUROR G]: Yes.

[DEFENSE COUNSEL]: And if our perspectives

are different, then I should probably do

something?

[JUROR G]: Correct.

¶ 38 Defense counsel challenged Juror G for cause, stating, “Your

Honor, based on, I believe, [Juror G] indicated [that] she would both

need me to put on a defense and to hear from Mr. Vega Gomez.

Based on that, obviously shifting the burden to the Defense side,

I’m asking that she be excused.”

¶ 39 The following discussion ensued:

[PROSECUTOR]: Your Honor, [Juror G] stated

that she wanted to hear another perspective on

things, but wanting to hear a perspective on

other things and not being able to follow the

law are two different things.

She did state if she was not given that other

perspective, then she would have to base her

decision solely on the People’s case. So I do

believe she is able to follow the law. I don’t

think she was confronted to the point where

she said she would not follow the law.

[COURT]: All right. With regard to the putting

on a defense, the record at this point is

somewhat muddled. The question was: If I

don’t put on a defense or who needs me to put

on a defense?

We know that to mean that we are going to call

witnesses and perhaps call the Defendant. I

think the nonlawyers in the room simply mean

“do something.” And I have tried cases with

[defense counsel] and he’s not going to do

nothing. And so I think that sort of starts the

questioning off on a footing that’s a bit false

because he’s not going to do nothing.

With regard to [Juror G] specifically, she said

that she’d like to hear from both sides, but

that she understands that the law doesn’t

require it. And if she didn’t hear from both

sides, she would simply have to assess the

credibility of the testimony brought out by the

People. So I’ll deny as to [Juror G].

¶ 40 As well, Juror G indicated on her juror questionnaire that

nothing prevented her from being fair and impartial.

b. Analysis

¶ 41 Gomez contends that Juror G’s responses reflected her belief

that Gomez bore a burden in presenting a defense. Although close,

we disagree and conclude that a review of the entire record refutes

this contention. Juror G stated that she would “like” to hear the

defense’s perspective and that if the defense did not provide a

different perspective from the prosecution, then she would “only

need to hear from [the prosecution] and decide based on what

they’ve presented.” Thus, Juror G stated if there was no evidence

from the defense, she would base her verdict on the prosecution’s

evidence. Juror G never expressed an inability to hold the

prosecution to the correct burden of proof. See Morrison, 19 P.3d at

674 (statement about hearing both sides provides no basis to

conclude juror is unable or unwilling to hold the prosecution to its

burden of proof). Further, Juror G’s questionnaire shows that

nothing prevented her from being fair and impartial to both sides.

¶ 42 Accordingly, because we conclude the court’s findings are

supported by the record, it did not abuse its discretion in denying

the challenge for cause to Juror G. See People v. Sandoval, 733

P.2d 319, 320 (Colo. 1987) (if the trial court is reasonably satisfied

that the prospective juror is willing and able to be fair and follow its

instruction, the person should not be disqualified).

3. Dismissal of Jurors Wh and C

a. Additional Facts

¶ 43 As noted above, Juror Wh expressed a bias against the

prosecution. Shortly thereafter, Juror C raised his hand and said:

[JUROR C]: I’ve been a defendant in a criminal

case and in the same civil cases twice so three

times. In both cases or all three times,

however you want to look at it, I’m aware of

the things that aren’t allowed to be told to us

that gets omitted, and they really would

change my mind. So even going through all

the evidence, I don’t think I can remain — or

get beyond a reasonable doubt at the end

knowing that there’s information I don’t have.

So I can say probably pretty — I can’t stay

impartial.

[COURT]: Do you feel like you can be fair in

the matter or no?

[JUROR C]: No, I don’t.

¶ 44 During a bench conference, the court asked counsel for

positions on Juror Wh.

[PROSECUTOR]: The People would be asking

to exclude [Juror Wh] at this time, Your Honor.

I think she was pretty clear that her past

experiences with the Arapahoe County District

Attorney’s Office makes her biased against our

office, and likely that she would not be able to

keep an open mind to evidence presented by

the People in this case.

So I would ask to excuse [Juror Wh] at this

point.

[DEFENSE COUNSEL]: I’d like to be given the

opportunity to talk to her.

[COURT]: I’m going to excuse [Juror Wh], and

here’s the reason: She seems rather proud of

herself given the statement she just made.

And as a law enforcement officer, she should

know better than to say that in public. And so

to me she seems to be trying to poison the jury

panel, so I’m going to excuse her before she

says another word in open court.

¶ 45 The court then asked about Juror C.

[COURT]: With regard to [Juror C] who says he

knows about things that should come into trial

that don’t, and he couldn’t be fair. Any

thoughts from either side on that?

[PROSECUTOR]: Your Honor, I would ask to

excuse [Juror C], also concerning [to] the

People on his questionnaire, he wrote

specifically, I will side with the Defendant on

this matter.

I think that there were already concerns and

that his statements to the jury panel at this

point have heightened those concerns. I would

be afraid with [Juror C] of any further

poisoning of the jury as well.

[DEFENSE COUNSEL]: Your Honor, I think we

need further inquiry . . . . I believe I need

additional time to speak to [Juror C]. While he

did indicate some concerns on his sheet, I

don’t think he’s gotten there with what he

stated when the Court questioned him, so I’m

going to ask that he be allowed — I be allowed

to talk to him [and] the People be allowed to

talk to him.

[COURT]: All right. It’s very unusual. I will tell

you in hundreds of trials that I’ve conducted,

I’ve never had a panel sort of be this blatant

the first time out of the gate, but his statement

on Question 12 is: I will side with the

Defendant, and then he said he could not be

fair because of things he knows don’t come in

to trial that he thinks should come into trial.

And once again, I’m afraid that he’s going to

talk more about that if we talk to him. So I’m

going to excuse [Juror C].

¶ 46 Later in the bench conference, defense counsel made a further

record concerning Juror Wh.

[DEFENSE COUNSEL]: Just to make a record

on [Juror Wh]. My understanding of

[Juror Wh] was that she was no longer

employed by —

[COURT]: I am not excusing her because she’s

currently a peace officer. I’m excusing her

based on her — what I’ll call an attempt to

poison the jury against the District Attorney.

b. Analysis

¶ 47 Gomez contends that the trial court’s actions were arbitrary

and capricious because it failed to apply the same standard to all of

the potential jurors in ruling on challenges for cause. He argues

that Jurors Wh and C expressed the same sentiments as Juror W,

who was not dismissed for cause and that this evidences the court’s

application of varying standards.

¶ 48 We disagree because the record shows that Jurors Wh and C

explicitly stated they could not be fair. On his questionnaire, Juror

C stated, “I will side with the defendant,” and he then confirmed

that he could not be fair during questioning. Similarly, Juror Wh

stated that she could not be impartial on her juror questionnaire

and then confirmed to the court that she was “leaning against the

District Attorney in this case.” And the court expressed its concern

that further questioning of these jurors might taint the rest of the

panel.

¶ 49 As Gomez concedes, a challenge for cause should be granted

when the court is not satisfied that the juror will render an

impartial verdict based solely upon the evidence and instructions of

the court. See Morrison, 19 P.3d at 672. The record shows that

Jurors Wh and C were not willing to set aside their personal feelings

and decide the case based on the evidence. Conversely, while

Juror W agreed with Juror Wh’s statements, he stated he could be

fair, and he confirmed to the court that he would judge each

witness on the merits of their testimony. Thus, the record shows

that the court did not apply different standards. Moreover, while a

juror may be rehabilitated after expressing preconceived beliefs and

serve on the jury, the court has wide discretion in conducting voir

dire. See Crim. P. 24(a)(3); People v. Rudnick, 878 P.2d 16, 21

(Colo. App. 1993) (so long as voir dire is conducted in such a

manner that it facilitates an intelligent exercise of challenges for

cause and preemptory challenges, a court may reasonably limit the

time available in the interest of judicial economy). Because the trial

court was in the best position to evaluate the jurors, and because

the record supports the court’s ruling, we discern no abuse of

discretion in its dismissal of Jurors Wh and C without permitting

additional questioning. See People v. Shover, 217 P.3d 901, 907

(Colo. App. 2009) (we accord great deference to the trial court’s

handling of challenges for cause because such decisions turn on an

assessment of the juror’s credibility, demeanor, and sincerity in

explaining their state of mind).

III. Cumulative Error in Jury Selection

¶ 50 When reviewing for cumulative error, we ask whether

“numerous formal irregularities, each of which in itself might be

deemed harmless, may in the aggregate show the absence of a fair

trial.” Howard-Walker v. People, 2019 CO 69, ¶ 24 (quoting Oaks v.

People, 371 P.2d 443, 446 (Colo. 1962)). Because cumulative error

requires numerous errors and we have found none, we decline to

find cumulative error.

IV. Prosecutorial Misconduct

¶ 51 Gomez last contends that the prosecutor shifted the burden of

proof during closing argument. We disagree.

A. Additional Facts

¶ 52 During the defense’s closing argument, counsel argued:

I want you to think back to when Joshua

Teeples came in here and told you how

terrified he was that Ford truck was bearing

down on him. Wait a minute. Joshua Teeples

did not come and tell you that. What you

heard was that the vehicle that they say Mr.

Vega Gomez was driving was trying to avoid

everybody, specifically the vehicle being driven

by Joshua Teeples. All right.

Well, let’s look at Joshua Teeples’ dash cam.

Okay. Well, we had two officers in a vehicle,

and they are saying — one says specifically, He

tried to ram us. Well, let’s just look at the

dash cam. We don’t have the dash cam. Well,

let’s just ask Joshua Teeples. Okay. We don’t

have Joshua Teeples. Let’s just look at his

body cam. We don’t have the body cam.

Well, Officer Sweeney’s here. We’ll talk to

Officer Sweeney. He’ll tell us. What did he tell

you? What did he tell you? He was so afraid

that this truck — this massive truck was

barreling down on him that they turn around

immediately and chase this truck down. No,

they didn’t. No, they didn’t. They keep

driving. They kept driving.

¶ 53 In rebuttal closing, the prosecutor argued:

With regard to the dash cam and the body

cam, [defense counsel] just stood here and

asked you, Where is the dash cam from the

Aurora Police Department officers? Members

of the jury, [defense counsel] knows that the

Aurora Police Department does not have dash

cams. Colorado State Patrol has dash cams,

which is why there was a dash cam from

Trooper Sankey that shows the crash after the

stop sticks were deployed. The Aurora Police

Department has body cams. [Defense counsel]

knows that as well.

[Defense counsel] received every second of

footage from every body camera associated

with this case, and he knows that when a

police officer is driving a vehicle, if that body

cam is activated, you are looking at the

steering wheel the entire time. The body

camera doesn’t know what’s going on in the

road in front of the officer. It shows the

steering wheel.

Certainly, [defense counsel] had the ability to

put any of that footage into this trial that he

wanted to. We could have sat here for hours

watching body-camera footage of a steering

wheel. It doesn’t change anything. Body

cameras, dash cameras, this evidence is no

different in terms of weight than someone

swearing to tell the truth sitting next to the

judge, looking in your eyes, and telling you

what happened.

And unless you think those people are

perjuring themselves, just making this up out

of whole cloth, you have that evidence in front

of you.

¶ 54 Defense counsel did not object.

B. Standard of Review and Controlling Law

¶ 55 A reviewing court employs a two-step analysis to allegations of

prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096

(Colo. 2010). First, it determines whether the prosecutor’s conduct

was improper based on the totality of the circumstances. Id.

Second, it determines whether the conduct warrants reversal

according to the proper standard of review. Id. Unpreserved claims

are reviewed for plain error, and we will only reverse when the error

is obvious and so undermined the fundamental fairness of the trial

itself to cast serious doubt on the reliability of the conviction.

Hagos v. People, 2012 CO 63, ¶ 14.

¶ 56 It is the prosecution’s burden to establish the defendant’s

guilt, and the prosecution may not shift that burden to the

defendant by arguing that the defendant must prove his innocence.

People v. Santana, 255 P.3d 1126, 1130 (Colo. 2011). In assessing

allegations of burden shifting, we consider whether (1) the

prosecutor specifically argued or intended to establish that the

defendant carried the burden of proof; (2) the prosecutor’s actions

constituted a fair response to the questioning and comments of

defense counsel; and (3) the jury is informed by counsel and the

court about the defendant’s presumption of innocence and the

prosecution’s burden of proof. Id. at 1131-32.

C. Analysis

¶ 57 The prosecution did not shift or lower the burden of proof in

this case for four reasons. First, the prosecutor “never explicitly

argued that the defendant [had] the burden of proof.” Id. at 1133.

Second, the prosecutor’s argument constituted a fair response to

defense counsel’s arguments and explained why the video argued

by defense counsel did not exist and would not be helpful. See id.

Third, the written jury instructions, including the burden of proof

and the elemental instructions, properly informed the jury of the

prosecution’s burden of proof. In the absence of contrary evidence,

we presume that the jury understood and followed the trial court’s

instructions. Id. at 1132-33. Finally, the argument elicited no

objection from defense counsel, indicating that it was not glaringly

improper. See Domingo-Gomez v. People, 125 P.3d 1043, 1054

(Colo. 2005) (defense counsel’s failure to make a contemporaneous

objection to the prosecutor’s remarks evidences that he perceived

no obvious prejudice).

¶ 58 Accordingly, we discern no error.

V. Disposition

¶ 59 The judgment is affirmed.

JUDGE YUN and JUDGE KUHN concur.

20CA1377 Peo v Vega Gomez 09-05-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA1377
Arapahoe County District Court No. 18CR960
Honorable Darren L. Vahle, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

Francisco Vega Gomez,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE FREYRE
Yun and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 5, 2024

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Lucy H. Deakins, Alternate Defense Counsel, Denver, Colorado for Defendant-
Appellant
¶1 Defendant, Francisco Vega Gomez, appeals his convictions of

first degree assault, aggravated robbery, two counts of vehicular

eluding, three counts of aggravated motor vehicle theft, and

conspiracy to commit aggravated motor vehicle theft. We affirm.

I. Background

¶2 The trial evidence established that in March 2018, police

officers received a report of a stolen white Ford F-350 pickup truck

(F-350). When other officers found the F-350, Sergeant Claude

Burns responded to the scene. Burns began following the F-350 in

his marked patrol car. Burns noticed that a Ford Econoline box

truck (box truck) was traveling with the F-350. The two trucks

began driving faster than the posted speed limit and were swerving

in and around the lanes without signaling.

¶3 A second responding officer, Captain Stephen Redfearn,

attempted to stop the box truck. The box truck began changing

lanes, thereby preventing Redfearn from pulling alongside it.

Eventually, Redfearn turned off his emergency lights but continued

following the box truck. Then, the F-350 pulled behind Redfearn at

a high speed. Anticipating that the F-350 was going to hit him,

Redfearn swerved onto the shoulder. Subsequently, the trucks

1
went separate ways. The box truck continued on the highway,