State v. Cortez-Izarraraz

2025 UT App 116
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
O MAR C ORTEZ -I ZARRARAZ ,
Appellant.
Opinion
No. 20220352-CA
Filed July 25, 2025
Third District Court, Salt Lake Department
The Honorable Richard McKelvie
No. 201907555
Freyja Johnson, Hannah K. Leavitt-Howell, and
Heather Ellison, Attorneys for Appellant
Derek E. Brown and Jonathan S. Bauer,
Attorneys for Appellee
JUDGE R YAN M. HARRIS authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER
and R YAN D. TENNEY concurred.
HARRIS, Judge:
¶1 	A jury convicted Omar Cortez-Izarraraz (Cortez) of seven
counts 	of 	felony 	discharge 	of 	a 	firearm 	and 	one 	count 	of
obstruction of justice. He appeals his convictions, asserting that
his trial attorney rendered constitutionally ineffective assistance
in various respects. We reject Cortez’s arguments and affirm his
convictions.

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BACKGROUND1
The Shooting
¶2 	One summer evening, Cortez and a friend (Friend) went to
a house party. One of the party hostesses had an older brother,
Nate,2 who was also at the party. At some point in the evening, an
altercation took place between Nate and Friend. During the
altercation, Nate slapped Friend and told him to leave the party
on foot. Nate then told Cortez, “I had to slap your homie. You
might want to go pick him up because I made him walk home.”
Cortez and some of his other friends “were really mad” that Nate
slapped Friend, and as they were leaving, Nate “didn’t know if
they were going to fight [him] or jump” him. But no fight occurred
at that point, and Cortez left the party.
¶3 	Over the next hour or so, the party dwindled, and all the
partygoers left except Nate, Nate’s sister, and “a couple of” other
women. Thinking the party was over, Nate locked the front door
and stayed in the living room, “chilling” and “drinking.” At some
point, Nate heard a knock on the door, and he answered it. It was
Cortez and Friend. Nate asked Cortez what was going on, and
after some words, Cortez approached Nate, grabbed his shoulder,
and said, “You sure you want to do this?” Nate then shoved
Cortez’s hand off his shoulder, and Cortez “pulled [a gun] out and
started shooting.” In all, Cortez fired seven shots, three of which
hit Nate, striking him in the elbow, back, and pelvis. Nate fell to
1. “When reviewing a jury verdict, we examine the evidence and
all 	reasonable 	inferences 	drawn 	therefrom 	in 	a 	light 	most
favorable to the verdict, and we recite the facts accordingly.” State
v. Popp, 2019 UT App 173, n.1, 453 P.3d 657 (cleaned up). In so
doing, “we present conflicting evidence only when necessary to
understand issues raised on appeal.” Id. (cleaned up).
2. A pseudonym.

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the ground and lost consciousness. He woke up in the hospital
two weeks later; he survived, but he ended up being hospitalized
for about three months.
¶4 	Law enforcement officers later found Cortez at his home,
and when they executed a search warrant, they found a gun box
and holster. The lead investigator (Detective) interviewed Cortez,
who initially denied being at the party and even knowing Friend.
Cortez had gotten “rid of” the gun and later told a cellmate that
he had thrown it in a river.
¶5 	The State eventually charged Cortez with seven counts of
felony discharge of a firearm. Three of those counts were charged
as first-degree felonies and concerned the three shots that actually
struck Nate; the other four counts were charged as third-degree
felonies and concerned the shots that missed. The State also
charged Cortez with one count of obstruction of justice, a second-
degree felony, for disposing of the gun.
Jury Selection
¶6 	Before 	trial 	began, 	the 	court 	sent 	questionnaires 	to
potential jurors to assess whether they had any biases that could
unduly affect their judgment in the case; these questionnaires
were to be completed under penalty of perjury. One of the
potential jurors (Juror 6) disclosed in the questionnaire that he had
“[p]articipated in controlled substance buys with the Salt Lake
County Sheriff’s Department” and had been “called to testify in
court on a few instances about [a] sting operation.” In response to
a question about whether he was related to, or was close friends
with, any prosecutors or law enforcement officers, Juror 6 stated
that he was “involved” in the law enforcement community and
that he worked in “Safety (Security)/EMS” where he was “in
charge of hiring all off duty” law enforcement officers. He further
stated that he had “close friendships” with officers from various
local 	police 	departments. 	Another 	potential 	juror 	(Juror 	7)
disclosed on the questionnaire that his “[b]rother was a chief of

State v. Cortez-Izarraraz
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police and [his] father is a retired police officer” and that he knew
“many police officers and federal agents.” Both Juror 6 and Juror
7, however, affirmed in the questionnaire that they would “not
give more or less weight to the testimony of a law enforcement
officer just because they are an officer.” And when asked if there
was “any reason [they] could not serve as . . . fair and impartial
juror[s],” both answered in the negative.
¶7 	On the first day of trial, during the jury selection process,
the court engaged in further questioning of the potential jurors.
When the court asked if any jurors might know one or more of the
police witnesses identified by the State, Jurors 6 and 7 both raised
their hands. Juror 6 told the court that he was “familiar with law
enforcement officers” because he worked with them “hand in
hand.” He stated that some of the police officer witnesses sounded
familiar to him but that he could not recall whether he knew them
individually. Juror 6 explained that he worked with “off duty
police officers” and “hired them to work with [him].” Juror 6 also
stated that he had “very good friends that [were] police officers
throughout the state” and that he had worked with officers from
several local police departments.
¶8 	When the court asked Juror 7 whether he knew the police
witnesses in the case, Juror 7 responded that he didn’t “know any
of them specifically.” And when the court later inquired further
about his relationships with law enforcement officers, Juror 7
explained that his father was a retired police officer and his
brother was a retired police lieutenant and former police chief.
Later, the court asked jurors to raise their hands if they “would
give more or less weight to the testimony of a police officer merely
by virtue of the fact that he or she is a law enforcement officer,”
and neither Juror 6 nor Juror 7 raised their hands.
¶9 	After the court’s questioning had concluded, Cortez’s
attorney (Counsel) moved to strike Juror 6 for cause, noting that
Juror 6 had been “involved in undercover activity” on behalf of

State v. Cortez-Izarraraz
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police and asserting that Juror 6 had “connections with law
enforcement almost to a degree that make him law enforcement.”
Counsel noted that Juror 6 had indicated he could be fair and
impartial, but Counsel expressed doubt about that statement,
arguing that Juror 6’s “inability to even recognize . . . a hint of that
bias” was itself “questionable.” The court denied the challenge,
explaining that there is no per se rule that would prohibit
members of any particular profession, including law enforcement,
from sitting on juries. The court noted that Juror 6 had indicated
that he would not be biased, and it stated that, “in absence of any
overt expression of bias,” it was “not going to infer any bias
based” merely on Juror 6’s relationships with police officers.
Cortez did not make a for-cause objection to Juror 7, and he did
not use a peremptory challenge to strike Juror 6 or Juror 7; both
were eventually impaneled.
The Trial
¶10 	After that, the trial—which lasted for three days—began in
earnest, and the State presented its case-in-chief, calling as
witnesses Nate, Nate’s sister, several partygoers, three police
officers, two detectives, and the trauma surgeon who treated
Nate, all of whom testified about the events described above.
¶11 	During Nate’s testimony, he described his interaction with
Cortez after Cortez returned to the house with Friend. Nate
testified that he “already knew” there would be trouble when he
opened the door to find Cortez and Friend. Nate stated that he
always carried a knife on his person, including on the night of the
party, but that during the incident, he did not take the knife out
or threaten anyone with it. He testified that when he took Cortez’s
hand off his shoulder, “it was all bad after that,” and he offered
his impression that Cortez “emptied the whole clip” at him.
¶12 	On cross-examination, Nate testified that he had been
drinking at the party and had been “sloppy drunk” that night.

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When 	Counsel 	asked 	Nate 	whether 	Cortez 	seemed 	sober
throughout the evening, Nate provided the following testimony:
[Nate]: Yeah, I think so, you mean. I can’t tell you
because I don’t remember. I wasn’t keeping track of
him, but.
[Counsel]: Right.
[Nate]: 	But 	I 	think 	he 	was 	on 	probation 	or
something, you mean, because I smoke weed, you
know.
[Counsel]: Okay.
[Nate]: And I mean I was offering and I don’t think
I remember him smoking and I think that’s why that
give me, oh, yeah, he can’t drink or, I mean, I’m not
sure though, you mean.
[Counsel]: Sure. Okay.
[Nate]: I’m not 100 percent.
[Counsel]: But what I’m getting at, it’s a party
environment?
[Nate]: Yeah.
Counsel did not object or move to strike Nate’s reference to Cortez
possibly being “on probation or something” as a reason he had
not been drinking or smoking at the party.
¶13 	Several police officers testified. One officer testified about
treating Nate’s wounds at the scene. He testified that Nate’s hands
were empty and that he did not see any weapon on Nate’s person.
Another officer testified that he did not see a knife when he
searched the area for shell casings. A third officer testified about

State v. Cortez-Izarraraz
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receiving a bag from hospital staff containing “items that [Nate]
had with him” when he arrived at the hospital. These items
included bloody shorts and a folding knife in the closed position,
with dried blood on the handle but not on the blade.
¶14 	Detective testified about his investigation of the case. He
described identifying Cortez as a suspect in Nate’s shooting based
on interviews with partygoers. He then described his initial
interview with Cortez, during which Cortez denied being at the
party, claimed he was at home, and denied even knowing Friend.
Detective stated that Cortez was “smirking a lot” during the
interview, was not being forthcoming with information, and
appeared to be “kind of deceitful going around things.” Detective
then testified about the crime scene generally, describing a bullet
hole in the gas tank of a vehicle that had been parked near the
shooting and testifying about gunshots that could be heard on a
doorbell video recording.
¶15 	After the State rested, Cortez presented his defense, the
main thrust of which was that Cortez had acted in self-defense.
Cortez called Friend to testify, and Friend stated that Cortez was
a “peacemaker” who had never started a fight in their ten-year
friendship. Friend testified that after he left the party to walk
home, Cortez caught up with him and the two returned to the
house to get “the car and leave.” At that point, Cortez told Friend
he was going to “talk to” Nate and “calm him down.” According
to Friend, Nate was outside of the house on the steps when he and
Cortez returned; Nate and Cortez then went inside the house for
“like 20 seconds” while Friend waited on the sidewalk, and as
Cortez and Nate emerged from the house, Nate was “already
being verbal” with Cortez. Friend testified that Cortez and Nate
“circled” around each other and were “about five feet apart”
when Cortez “pull[ed] his gun out.” Friend testified that Nate
taunted Cortez that he “wasn’t going to do anything with the gun
and . . . to not pull it out if he wasn’t going to use it.” According
to Friend, Nate walked up to Cortez, “tri[ed] to reach for his gun

State v. Cortez-Izarraraz
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and then [Nate was] shot.” Friend testified that he did not see any
weapon in Nate’s hands as Cortez was pointing the gun at him.
¶16 	Cortez took the stand in his own defense. He told the jury
that he had wanted to “kind of apologize” to Nate for Friend’s
actions earlier in the evening and that he had approached the door
with that goal in mind. He testified that when he knocked, Nate
opened the door and responded by “jumping” at him, taunting
him with statements like, “Oh, you came back,” and “You want
some.” Cortez testified that Nate “pulled out a blade” and said,
“If you really want to get down, let’s get down.” Cortez clarified
that he only initially perceived a blade because he heard the “pop”
of a knife latching. He also testified that Nate had taken an
aggressive “stance” and that as Nate walked toward him, Cortez
saw “the gleam of a blade.” Cortez testified that he opened fire
when Nate “reach[ed]” at him while advancing toward him.
¶17 	Cortez further stated that he fled the scene because he
“didn’t know what to do.” He testified that he got “rid of” the
gun, went home, and messaged a few friends that he “ain’t
coming home.” He explained that, in his initial interview with
police, he had denied that he had been involved in the incident
because “it didn’t seem like it was going to go the way [he]
thought it was going to go.” Cortez also testified that he told his
cellmate the details of the incident, including that Nate had a
knife. In rebuttal, the State called Cortez’s cellmate, who testified
that Cortez had told him about the shooting “about a dozen
times” 	during 	their 	incarceration 	together 	but 	had 	never
mentioned that Nate had a knife.
¶18 	At the conclusion of evidence, the trial court instructed the
jury, and it included instructions regarding perfect self-defense.
But no instructions were requested or given regarding imperfect
self-defense.
¶19 	After deliberation, the jury convicted Cortez on all eight
charges. At sentencing, Cortez asked for a one-step reduction of

State v. Cortez-Izarraraz
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his first-degree-felony convictions under section 76-3-402 of the
Utah Code (a “402 reduction”), asserting that the State’s decision
to charge him with seven felony discharge counts rather than one
count of attempted murder was a “legal technique[]” that the
State had employed to, among other things, preclude him from
asserting imperfect self-defense. The State denied that accusation
and asserted that it had not charged Cortez with attempted
murder because, in its view, the evidence did not support that
charge. The trial court denied Cortez’s request for a 402 reduction,
stating that it did not “find that the State ha[d] operated in a way
that would be contrary to the fundamental interest of justice.” The
court then sentenced Cortez to prison.
Post-Trial Events
¶20 	After Cortez’s conviction, an investigator (Investigator)
working with Cortez’s appellate attorneys interviewed Juror 6.
Juror 6 told Investigator that he “does not have any relatives that
are in law enforcement” but that he “works on a regular basis with
law enforcement officers.” He also reiterated that he has “several
good friends that are in the police departments, law enforcement
services and corrections.” And he told Investigator, among other
things, that he was “surprised he was selected to be on this jury
based on his connection to law enforcement.” When Investigator
asked Juror 6 if he would tend to give more credit to a law
enforcement 	officer’s 	testimony 	than 	to 	other 	witnesses’
testimony, Juror 6 told Investigator that “as a general statement,
he 	would 	put 	more 	credibility 	toward 	law 	enforcement.
However, he would try not to be biased. Nonetheless, he would
lean closer to law enforcement in most cases.”
¶21 	Investigator also interviewed Juror 7, who acknowledged
that “he has two relatives in law enforcement,” and he described
the law enforcement profession as the “family business.” He
explained that “[b]oth his father and brother are graduates of the
FBI National Academy and through that association, . . . [he has

State v. Cortez-Izarraraz
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been] connected for many decades with police administrators,
executives and others in law enforcement and the FBI.” Juror 7
told Investigator that if he had been asked “whether he would
believe a police officer over a citizen, he would have applied the
‘innocent until proven guilty’ standard.” But he added that “it is
typically not the case where the police have arrested the wrong
person.” Juror 7 also stated that he was “surprised” that he had
been selected to serve on the jury.
ISSUE AND STANDARD OF REVIEW
¶22 	Cortez now appeals, asserting that he is entitled to a new
trial 	because 	Counsel 	rendered 	constitutionally 	ineffective
assistance. “When an ineffective assistance claim is raised for the
first time on appeal, it presents a question of law.” State v. Rivera,
2022 UT App 44, ¶ 21, 509 P.3d 257. Cortez acknowledges that
some of his ineffective assistance claims cannot be supported by
the evidence in the record, and with regard to these claims he
seeks a remand, pursuant to rule 23B of the Utah Rules of
Appellate Procedure, to enable him to supplement the record with
evidence to support the claims. “A remand under rule 23B is
available only upon a nonspeculative allegation of facts, not fully
appearing in the record on appeal, which, if true, could support a
determination that counsel was ineffective.” State v. Tuinman,
2023 UT App 83, ¶ 53, 535 P.3d 362 (cleaned up), cert. denied, 540
P.3d 79 (Utah 2023).
ANALYSIS
¶23 	To succeed on an ineffective assistance claim, Cortez must
make a two-part showing: (1) that Counsel’s performance was
deficient 	in 	that 	it 	“fell 	below 	an 	objective 	standard 	of
reasonableness,” 	and 	(2) 	that 	this 	deficient 	performance
“prejudiced 	the 	defense” 	such 	that 	“there 	is 	a 	reasonable
probability that, but for [C]ounsel’s unprofessional errors, the

State v. Cortez-Izarraraz
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result of the proceeding would have been different.” See Strickland
v. Washington, 466 U.S. 668, 687–88, 694 (1984); accord State v. Scott,
2020 UT 13, ¶ 28, 462 P.3d 350; State v. Ray, 2020 UT 12, ¶ 24, 469
P.3d 871. Failure to prove either component is fatal to the claim;
“[u]nless a defendant makes both showings, it cannot be said that
the conviction . . . resulted from a breakdown in the adversary
process that renders the result unreliable.” Strickland, 466 U.S. at
687. Thus, “if either is lacking, the claim fails and this court need
not address the other.” State v. Kufrin, 2024 UT App 86, ¶ 55, 551
P.3d 416 (cleaned up).
¶24 	In 	this 	case, 	Cortez 	claims 	that 	Counsel 	rendered
ineffective assistance in three ways: (1) by failing to challenge the
constitutionality of Utah’s affirmative defense statutory scheme,
a scheme which precluded him from asserting imperfect self-
defense to defend the felony discharge of a firearm charges; (2) by
not objecting to (or moving to strike) Nate’s testimony about
Cortez being on probation; and (3) by not engaging in a more
searching inquiry into the potential biases of Juror 6 and Juror 7.
Cortez attempts to support the first two claims by pointing to
evidence already in the record. But Cortez acknowledges that his
third claim is unsupported by evidence in the record, and with
regard to that claim he seeks a remand, pursuant to rule 23B, to
allow him to supplement the record. For the reasons discussed
below, we reject each of Cortez’s ineffective assistance claims, and
we deny Cortez’s motion for a rule 23B remand.
I. The Constitutional Challenge
¶25 	Cortez 	first 	asserts 	that 	Counsel 	rendered 	ineffective
assistance by failing to mount a state constitutional challenge to a
provision of Utah’s criminal code that prevented Cortez from
raising an imperfect-self-defense claim in this case. For the
reasons discussed, we disagree.
¶26 	The Utah Constitution states that “[a]ll laws of a general
nature shall have uniform operation.” Utah Const. art. I, § 24. This

State v. Cortez-Izarraraz
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provision 	is 	intended 	to 	restrain 	our 	legislature 	“from 	the
fundamentally unfair practice of classifying persons in such a
manner that those who are similarly situated with respect to the
purpose of a law are treated differently by that law, to the
detriment of some of those so classified.” State v. Outzen, 2017 UT
30, ¶ 16, 408 P.3d 334 (cleaned up). “A statute is not uniform in its
operation, and is thus unconstitutional, if (1) the statute creates
any classifications, (2) those classifications impose any disparate
treatment on persons similarly situated, and (3) the legislature
had no reasonable objective that warrants the disparity.” Id.
(cleaned up).
¶27 	Cortez’s 	argument 	centers 	on 	a 	provision 	in 	Utah’s
criminal code that allows a defendant to assert “imperfect self-
defense” to defend against a charge of murder or attempted
murder but not to defend against other charges, including (as
relevant here) charges of felony discharge of a firearm. See Utah
Code § 76-5-203(4)(a) (limiting imperfect self-defense to “a charge
of murder or attempted murder”); see also State v. Campos, 2013 UT
App 213, ¶ 72 n.8, 309 P.3d 1160 (“Imperfect self-defense is
available only as a defense to a charge of murder or attempted
murder.”). “Imperfect self-defense applies where the jury finds
that the defendant had a reasonable belief that the circumstances
provided a legal justification or excuse for the conduct although
the conduct was not legally justifiable or excusable under the
existing circumstances.” State v. Flynn, 2022 UT App 89, ¶ 15, 515
P.3d 492 (cleaned up). Unlike perfect self-defense, which if proved
results in acquittal, “imperfect self-defense is a partial defense,
which reduces a charge of murder to manslaughter” or attempted
murder to attempted manslaughter. State v. Grant, 2021 UT App
104, ¶ 32, 499 P.3d 176 (cleaned up); see also Utah Code § 76-5-
203(4)(c).
¶28 	Cortez claims that this statutory scheme, which limits the
applicability of imperfect self-defense to charges of murder or
attempted 	murder, 	unconstitutionally 	“creates 	two 	distinct

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classes 	of 	people—those 	who 	are 	charged 	with 	murder 	or
attempted murder and those charged with any other crime.” In
his view, this classification results in disparate treatment because
persons who are charged with murder or attempted murder have
the option of being able to assert imperfect self-defense, unlike
those charged with any other crime. In Cortez’s situation, he
argues that the State had a choice in how to charge him in this
case: it could have charged him with either attempted murder or
felony discharge because, in his view, the allegations “qualified to
be charged as attempted murder.” And if he had been charged
with attempted murder, imperfect self-defense would have been
available 	to 	him. 	Yet 	because 	he 	was 	charged 	with 	felony
discharge instead, Cortez argues that he “received different
treatment than similarly situated criminal defendants . . . based
on the whim of the prosecutor in deciding which of two possible
charges to bring.”
¶29 	Against this backdrop, we must assess whether Counsel
provided ineffective assistance by opting not to challenge the
constitutionality of this statutory scheme. Under the relevant
framework, for Cortez’s claim to succeed, Counsel’s performance
must have been deficient in that it “fell below an objective
standard of reasonableness.” Strickland, 466 U.S. at 687–88. In
evaluating the reasonableness of an attorney’s performance, we
often look to whether the attorney’s actions were motivated by
strategy. See Scott, 2020 UT 13, ¶ 35 (“To be sure, the performance
inquiry will often include an analysis of whether there could have
been a sound strategic reason for counsel’s actions.”). And while
“the ultimate question is not whether there was a possible
strategic reason for counsel’s conduct, but instead whether that
conduct was objectively reasonable,” id., “[i]f it appears counsel’s
actions could have been intended to further a reasonable strategy,
a 	defendant 	has 	necessarily 	failed 	to 	show 	unreasonable
performance,” Ray, 2020 UT 12, ¶ 34; see also Strickland, 466 U.S. at
689 (“There are countless ways to provide effective assistance in

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any given case. Even the best criminal defense attorneys would
not defend a particular client in the same way.”).
¶30 	Here, Counsel’s trial strategy was objectively reasonable
even if it did not include a challenge to the constitutionality of
Utah’s 	imperfect-self-defense 	law. 	In 	this 	case, 	there 	were
strategic reasons to forgo an opportunity to assert imperfect self-
defense. As noted, imperfect self-defense, even if successful, does
not lead to complete acquittal but, instead, to a reduction in
charges. Effectively, it allows the jury to convict a defendant of a
lesser offense, and it offers the jury a middle-ground way to
convict 	a 	defendant 	of 	something 	while 	not 	convicting 	the
defendant of the more serious charged offense.
¶31 	In a similar context involving the decision to request a
lesser-included-offense 	instruction, 	we 	have 	often 	held 	that
attorneys do not act unreasonably when they opt for an all-or-
nothing strategy that might give the defendant the best chance at
complete acquittal. See, e.g., Flynn, 2022 UT App 89, ¶ 18 (“Even
when there is a basis for a lesser-included-offense instruction,
counsel can reasonably decide not to request one.” (cleaned up)).
Indeed, “counsel may have perfectly valid tactical reasons to
forgo 	[a 	lesser-included-offense] 	instruction 	and 	to 	instead
present an all or nothing defense that entails avoiding a lesser-
included-offense instruction in the hopes the jury will find the
defendant totally innocent of any wrongdoing.” Id. (cleaned up);
accord State v. Hull, 2017 UT App 233, ¶ 16, 414 P.3d 526. For this
reason alone, we simply cannot conclude that Counsel’s decision
not to fight harder for an imperfect-self-defense instruction was
constitutionally unreasonable.
¶32 	Moreover, 	Counsel’s 	strategy 	appears 	even 	more
reasonable when one considers that she had the option here—
which she pursued—of seeking a lighter sentence, following
conviction, through a 402 reduction. Instead of mounting a
constitutional challenge in an effort to make an imperfect-self-

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defense argument on the front end—and thereby providing the
jury an attractive middle ground upon which it could have
convicted 	Cortez—Counsel 	tried 	to 	get 	her 	client 	acquitted
outright (at least on the firearm charges) by arguing perfect self-
defense, and when that didn’t work, Counsel argued on the back
end for a more lenient sentence by asserting that the State unfairly
prosecuted Cortez by pursuing felony discharge rather than
attempted murder, thereby depriving Cortez of the opportunity
to claim imperfect self-defense. We cannot say that this strategy
was objectively unreasonable.
¶33 	Finally, our conclusion in this regard is bolstered by our
perception of the difficulty of the constitutional challenge that
Counsel opted to forgo. The argument Cortez now suggests
Counsel should have made appears to be an entirely novel one.
That is, Cortez does not point to any specific authority—in Utah
or elsewhere—indicating that his challenge to Utah’s imperfect-
self-defense law would have been successful. And when there is
an 	absence 	of 	authority 	supporting 	such 	an 	argument, 	an
attorney’s decision not to make that argument might very well be
a 	reasonable 	one. 	See 	generally 	Strickland, 	466 	U.S. 	at 	689
(explaining that courts “must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance”).
¶34 	To be sure, an attorney’s obligation to render effective
assistance will sometimes require that attorney to raise arguments
that are not entirely based on settled law. See State v. Silva, 2019
UT 36, ¶ 19, 456 P.3d 718 (stating that an attorney’s performance
should not be judged “based only on settled law” and that
attorneys are not “categorically excused” from raising arguments
that are “not supported by existing legal precedent”). But Cortez
must 	demonstrate 	that 	Counsel’s 	choice, 	in 	this 	case, 	was
unreasonable. See id. ¶ 20 (stating that, regardless of whether
precedent supports an argument, “the proper measure of attorney
performance remains simply reasonableness under prevailing

State v. Cortez-Izarraraz
20220352-CA 	16 	2025 UT App 116
professional norms” (cleaned up)). Cortez has not made the
necessary showing. As noted, Cortez cites no specific Utah case
law supporting his argument, nor has he demonstrated that this
issue is percolating in other jurisdictions in his favor. He offers no
analogous cases interpreting the Equal Protection Clause of the
federal constitution, nor does he cite any academic literature or
commentary supporting the argument. And the State, in its brief,
offers possible reasons why our legislature might have rationally
wanted to draw a distinction between murder crimes and other
crimes 	for 	purposes 	of 	allowing 	an 	imperfect-self-defense
argument. While we stop well short of deciding the merits of the
constitutional argument, we agree with the State’s assertion that
Counsel “could . . . have reasonably concluded that a rational
basis exists for the long-established limitation of imperfect self-
defense to murder crimes.”
¶35 	Thus, when we consider the circumstances as a whole—the
difficulty of the constitutional argument, the potential upside to
an all-or-nothing defense, and the post-trial fail-safe option of
being able to argue for a 402 reduction—we conclude that Counsel
did 	not 	perform 	deficiently 	by 	opting 	not 	to 	mount 	a
constitutional challenge to Utah’s imperfect-self-defense law. On
this basis, we reject Cortez’s first ineffective assistance claim.
II. The Probation Testimony
¶36 	Next, Cortez asserts that Counsel rendered ineffective
assistance by failing to object—or move to strike or for a curative
instruction—after Nate mentioned, during his trial testimony,
that he thought Cortez might have been on probation. Cortez
argues that Nate’s statement in this regard was inadmissible
under various evidentiary rules and that competent counsel
would have taken action. But on the record before us, there were
strategic reasons why Counsel may have decided to forgo an
objection 	or 	other 	request 	for 	relief. 	Therefore, 	we 	cannot
conclude that Counsel’s performance was deficient.

State v. Cortez-Izarraraz
20220352-CA 	17 	2025 UT App 116
¶37 	It is important here that Nate’s testimony about Cortez
being on probation was unsolicited. The statement came out
during cross-examination, and the discussion was sparked by
Counsel asking Nate whether Cortez seemed sober on the evening
in question. Nate answered, “Yeah, I think so,” and he noted that
Cortez hadn’t responded positively to Nate’s offer to share
“weed” with him. Unsolicited, Nate then speculated that Cortez
might 	have 	turned 	down 	such 	offers 	because 	he 	“was 	on
probation or something.” This testimony was not responsive to
the original question—which simply asked whether Nate thought
Cortez was sober—and as a result, Counsel could not as a
practical matter have headed Nate’s statement off at the pass by
asking a different question. Thus, the only recourse available to
Counsel was to move to strike the testimony after it had come in
and to obtain a curative instruction telling the jury to disregard it.
See, e.g., State v. King, 2024 UT App 151, ¶¶ 32–33, 559 P.3d 96.
¶38 	In this light, the question is whether it was reasonable for
Counsel to simply move forward with her cross-examination
instead of moving to strike. As explained above, when evaluating
the reasonableness of an attorney’s performance, we will often
look to whether the attorney’s actions were motivated by strategy.
See Scott, 2020 UT 13, ¶ 35. In doing so, we have held that
“decisions regarding whether to move to strike and seek a
curative instruction are highly strategic ones that courts are loathe
to second-guess.” King, 2024 UT App 151, ¶ 33. After all, a curative
instruction often “invoke[s] the pink-elephant paradox: by being
told not to think about a thing, jurors may actually be more likely
to think about that thing.” Id.; see also State v. Popp, 2019 UT App
173, ¶ 50, 453 P.3d 657 (“[A] curative instruction may actually
serve to draw the jury’s attention toward the subject matter of the
instruction and further emphasize the issue the instruction is
attempting to cure.”); State v. Garrido, 2013 UT App 245, ¶ 26, 314
P.3d 1014 (“Choosing to forgo a limiting instruction can be a
reasonable decision to avoid drawing attention to unfavorable
testimony.”).

State v. Cortez-Izarraraz
20220352-CA 	18 	2025 UT App 116
¶39 	In this case, Counsel could have reasonably chosen not to
reemphasize Nate’s unanticipated made-in-passing speculative
reference to Cortez possibly being on probation. Counsel could
have reasonably believed that moving to strike the testimony and
obtaining a curative instruction would have been overkill and that
doing so would have risked emphasizing the point to the jury.
Thus, Cortez has not demonstrated that Counsel performed
deficiently by opting not to take action. On this basis, we reject
Cortez’s second claim of ineffective assistance.
III. The Rule 23B Motion
¶40 	Finally, Cortez takes issue with certain aspects of the jury
selection process. Notably, Cortez does not appeal the trial court’s
denial of his for-cause objection to Juror 6; instead, Cortez asserts
that Counsel rendered ineffective assistance during jury selection
by failing to engage in a more searching colloquy with Juror 6 and
Juror 7. Cortez acknowledges that the record does not support this
claim, but he asks us to remand the case, pursuant to rule 23B of
the Utah Rules of Appellate Procedure, for additional proceedings
in which he can further develop the record in support of this
claim. Under this rule, a defendant must make a four-part
showing to obtain a remand order. State v. Norton, 2015 UT App
263, ¶ 6, 361 P.3d 719. First, the rule 23B motion “must be
supported by affidavits setting forth facts that are not contained
in the existing record.” Id. (cleaned up). Second, the affidavits
must contain “allegations of fact that are not speculative.” Id.
(cleaned up). Third, the allegations contained in the affidavits
“must show deficient performance by counsel.” Id. (cleaned up).
And finally, the affidavits “must also allege facts that show the
claimed prejudice suffered by the appellant as a result of the
claimed deficient performance.” Id. (cleaned up).
¶41 	Cortez 	has 	satisfied 	the 	first 	two 	requirements 	by
providing 	us 	with 	affidavits 	containing 	nonspeculative
allegations which are not set forth in the existing record. Thus, the

State v. Cortez-Izarraraz
20220352-CA 	19 	2025 UT App 116
question is whether his new allegations support an ineffective
assistance claim. Indeed, “if the defendant could not meet the test
for ineffective assistance of counsel, even if his new factual
allegations were true, there is no reason to remand the case, and
we should deny the motion.” State v. Griffin, 2015 UT 18, ¶ 20, 441
P.3d 1166. As explained above, for Cortez to succeed, he must
make a two-part showing: (1) that Counsel’s performance was
deficient 	in 	that 	it 	“fell 	below 	an 	objective 	standard 	of
reasonableness,” 	and 	(2) 	that 	this 	deficient 	performance
“prejudiced 	the 	defense” 	such 	that 	“there 	is 	a 	reasonable
probability that, but for [C]ounsel’s unprofessional errors, the
result 	of 	the 	proceeding 	would 	have 	been 	different.” 	See
Strickland, 466 U.S. at 687–88, 694. And failure to prove either
component is fatal to his claim; “if either is lacking, the claim fails
and this court need not address the other.” Kufrin, 2024 UT App
86, ¶ 55 (cleaned up).
¶42 	Cortez centers this ineffective assistance claim on juror
bias. The Sixth Amendment to the U.S. Constitution “guarantees
a criminal defendant the right to an unbiased and impartial jury.”
State v. King, 2008 UT 54, ¶ 15, 190 P.3d 1283. The Utah Rules of
Criminal 	Procedure 	further 	implement 	safeguards 	for 	juror
impartiality. See Utah R. Crim. P. 18. Those rules provide that a
juror should be removed for cause based on “[t]he existence of
any social, legal, business, fiduciary or other relationship between
the prospective juror and any party, [or] witness,” where the
relationship “suggest[s] to reasonable minds that the prospective
juror would be unable or unwilling to return a verdict which
would be free of favoritism.” Id. R. 18(e)(4). This rule also provides
that a juror should not be impaneled if his or her “[c]onduct,
responses, state of mind or other circumstances . . . reasonably
lead the court to conclude the juror is not likely to act impartially.”
Id. R. 18(e)(14).
¶43 	In this case, Cortez asserts that Counsel should have
inquired 	further 	into 	Juror 	6’s 	and 	Juror 	7’s 	personal 	and

State v. Cortez-Izarraraz
20220352-CA 	20 	2025 UT App 116
professional relationships with law enforcement officers and
potential for bias toward law enforcement officer testimony. We
discuss Cortez’s claims with regard to each of these jurors, in turn,
beginning with Juror 7, and for the reasons discussed we reject
Cortez’s assertions and deny his motion for a rule 23B remand.
A. 	Juror 7
¶44 	Cortez’s challenge regarding Juror 7 fails on prejudice
grounds. Even if we assume, for purposes of the discussion only,
that Counsel performed deficiently by not asking additional
questions of Juror 7, Cortez has not demonstrated that this
deficient performance resulted in prejudice because the post-trial
affidavit regarding Juror 7 adds no new material information and
doesn’t demonstrate juror bias.
¶45 	With 	respect 	to 	his 	personal 	relationships 	with 	law
enforcement officers, Juror 7 is quoted in the post-trial affidavit as
stating that his “father and brother were in law enforcement” and
as describing the law enforcement profession as the “family
business.” He also told Investigator that he had close personal
relationships with law enforcement throughout his life, stating
that “[b]oth his father and brother are graduates of the FBI
National Academy and through that association, [he has been]
connected 	for 	many 	decades 	with 	police 	administrators,
executives and others in law enforcement and the FBI.”
¶46 	But Juror 7 had already disclosed this information in his
questionnaire before trial, stating that his “[b]rother was a chief of
police and [his] father is a retired police officer” and that he knew
“many police officers and federal agents.” And he again disclosed
this information on the record during the jury selection process,
explaining that his father is a retired police officer and that his
brother is a retired police lieutenant and chief of police. Thus, the
post-trial affidavit regarding Juror 7 contains no new material
details about his relationships with law enforcement.

State v. Cortez-Izarraraz
20220352-CA 	21 	2025 UT App 116
¶47 	The same is true of Juror 7’s statements regarding potential
bias 	toward 	law-enforcement 	testimony. 	In 	his 	pretrial
questionnaire, Juror 7 stated that he would “not give more or less
weight to the testimony of a law enforcement officer just because
they are an officer” and that there was no “reason [he] could not
serve as a fair and impartial juror.” And he confirmed this during
jury selection, declining to raise his hand when the court asked
whether he would be partial to law-enforcement testimony.
Importantly, he didn’t back down at all from these statements in
the post-trial affidavit, responding to a query about “whether he
would believe a police officer over a citizen” by stating that he
“would have applied the ‘innocent until proven guilty’ standard.”
Although Juror 7 was quoted in the post-trial affidavit as stating
that “it is typically not the case where the police have arrested the
wrong person in his perspective” and that he was “surprised” that
he was impaneled on the jury, we do not discern in these
statements an indication that Juror 7 would give more weight to
the credibility of law-enforcement testimony on a given issue.
¶48 	Thus, in the post-trial affidavit, just as in his pretrial
questionnaire and in the jury selection process, Juror 7 disclosed
his relationships with law enforcement officers and maintained
that these relationships would not cause him to be partial toward
law-enforcement-officer testimony. For that reason, Cortez has
not demonstrated that any deficient performance on Counsel’s
part prejudiced him with regard to Juror 7.3
3. Our conclusion as to prejudice is bolstered by the fact that law-
enforcement testimony did not play a central role in this case. In
State v. Arriaga, 2012 UT App 295, 288 P.3d 588, we analyzed
whether two jurors’ potential bias toward law-enforcement-
officer testimony had prejudiced the defendant’s case, and in that
analysis, we considered whether the officer’s testimony and
credibility were central to the case. Id. ¶ 16. We emphasized that
(continued…)

State v. Cortez-Izarraraz
20220352-CA 	22 	2025 UT App 116
B. 	Juror 6
¶49 	Cortez’s ineffective assistance claim regarding Juror 6
likewise fails, parts of it for similar reasons as Juror 7 and parts of
it for different reasons.
¶50 	With regard to Juror 6, Cortez first asserts that Counsel
rendered ineffective assistance by not asking Juror 6—for a third
time 	during 	jury 	selection—whether 	he 	could 	be 	fair 	and
impartial. We reject this claim on deficient-performance grounds
because Juror 6 had already answered that question twice—once
in the questionnaire, in writing, and once during live jury
selection, by not raising his hand—and had thereby already given
two sworn answers indicating that, despite his contacts with law
enforcement, he believed he could nevertheless be fair and
impartial. We cannot fault Counsel for opting not to ask that
question again, because Counsel could have reasonably believed
that she was unlikely to get a different answer the third time.
the case did not involve “a trial in which the outcome hinged on
the testimony of police officers” and that “the officer’s credibility
was not really at issue.” Id. And we held that, under those
circumstances, it was “difficult to see any possibility of prejudice”
to the defendant. Id.
So too here. The only witnesses who saw the altercation
between Cortez and Nate moments before the shooting were
Nate, Friend, and Cortez. The law enforcement officers in this case
arrived on the scene later, and they mostly testified as to the
aftermath—Nate’s 	injuries, 	the 	crime 	scene 	generally, 	and
investigative interviews with Cortez. On these facts, the law-
enforcement testimony did not directly bear on whether Cortez
was justified in firing the gun in self-defense. This context
constitutes an additional reason for us to conclude that Cortez’s
prejudice arguments are unpersuasive.

State v. Cortez-Izarraraz
20220352-CA 	23 	2025 UT App 116
¶51 	We acknowledge that Juror 6 did indeed give a different
answer later, in the post-trial affidavit. There, he offered a
“general statement” that “he would put more credibility toward
law enforcement,” but he stated that “he would try not to be
biased” even though “he would lean closer to law enforcement in
most cases.” This statement is certainly problematic, and if Juror
6 had given that statement in the questionnaire or during jury
selection, it would have been incumbent upon the trial court or
defense counsel to, at a minimum, engage in a more searching
inquiry about Juror 6’s potential bias. See State v. Taylor, 2025 UT
App 14, ¶¶ 26–27, 564 P.3d 962 (concluding that a juror’s
comments that she would give “law enforcement testimony”
“more weight than the testimony of anybody else that testified”
and that she “would have a hard time” “if it came down to the
police officer’s word versus the defendant” were problematic and
indicative of juror bias (cleaned up)).
¶52 	But we judge Counsel’s performance based on what was
known in the moment, see State v. Nelson, 2015 UT 62, ¶ 14, 355
P.3d 1031 (assessing whether defense counsel’s actions were
competent “in the real-time context of trial” (cleaned up)), and in
the moment when Counsel had to decide whether to dig deeper
about Juror 6’s ability to be fair and impartial, Counsel already
had Juror 6 on the record—twice—on the topic. On these facts,
Cortez has not demonstrated that Counsel acted unreasonably by
not asking the same question for a third time.
¶53 	Cortez next asserts that Counsel was ineffective for not
asking follow-up questions designed to elicit additional details
about 	Juror 	6’s 	already-disclosed 	relationships 	with 	law
enforcement officers. On this point, we conclude—as we did with
Juror 	7—that 	Cortez 	has 	not 	demonstrated 	that 	Counsel’s
decision not to follow up with Juror 6 on this subject caused him
to sustain any prejudice.

State v. Cortez-Izarraraz
20220352-CA 	24 	2025 UT App 116
¶54 	As with Juror 7, the post-trial affidavit regarding Juror 6
simply doesn’t contain any additional material details about his
relationships with law enforcement officers. After trial, Juror 6
told Investigator that he “does not have any relatives that are in
law enforcement” but that he “works on a regular basis with law
enforcement officers because of his role within EMS.” He also
reiterated that he has “several good friends that are in the police
departments, law enforcement services and corrections.”
¶55 	Yet Juror 6 had already disclosed this information before
trial. In the pretrial questionnaire, Juror 6 stated that he had
“[p]articipated in controlled substance buys with the Salt Lake
County Sheriff’s Department” and was “called to testify in court
on a few instances about [a] sting operation.” And he stated that
he 	had 	personal 	and 	professional 	relationships 	with 	law
enforcement officers. Then, during live jury selection, Juror 6 told
the court he was “familiar with law enforcement officers” because
he worked with them “hand in hand,” and that he worked with
“off duty police officers” where he had “hired them to work with
[him].” Juror 6 also stated that he had “very good friends that
[were] police officers throughout the state.”
¶56 	Indeed, given these relationships, Counsel moved to strike
Juror 6 from the jury for cause based on “his connections with law
enforcement almost to a degree that make him law enforcement”
and his lack of recognition that he might be biased. The court
denied the challenge, explaining correctly that there is no rule
prohibiting members of any particular profession—including law
enforcement—from sitting on juries. For our purposes here, the
key point is that no new information came to light regarding Juror
6’s personal and professional relationships with law enforcement
in the post-trial affidavit, so Cortez cannot show that Counsel’s

State v. Cortez-Izarraraz
20220352-CA 	25 	2025 UT App 116
failure to engage in further inquiry on this point during jury
selection would have changed the outcome here.4
CONCLUSION
¶57 	For the reasons discussed, Cortez has not carried his
burden 	of 	demonstrating 	that 	Counsel 	rendered 	ineffective
assistance in any of the particulars he asserts. We therefore affirm
his convictions and deny his motion for a rule 23B remand.
4. As we explained earlier, see supra note 3, the law enforcement
officers’ testimony in this case was not central to the ultimate issue
of whether Cortez was acting in self-defense when he fired shots
at Nate. Thus, as in Arriaga, this fact provides an additional basis
for our conclusion that Cortez has not demonstrated that he was
prejudiced by Counsel’s decision not to ask additional questions
of Juror 6 about his law enforcement connections. See 2012 UT
App 295, ¶ 16.