Peo v. Talamantes

19CA1450 Peo v Talamantes 01-20-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 19CA1450

Arapahoe County District Court No. 16CR3391

Honorable Ben L. Leutwyler III, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Francisco Martin Talamantes,

Defendant-Appellant.

JUDGMENT AND SENTENCE AFFIRMED

Division V

Opinion by JUDGE YUN

Dunn and Welling, JJ., concur

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

Announced January 20, 2022

Philip J. Weiser, Attorney General, Elizabeth Rohrbough, Senior Assistant

Attorney General, Denver, Colorado, for Plaintiff-Appellee

Krista A. Schelhaas, Alternate Defense Counsel, Littleton, Colorado, for

Defendant-Appellant

1

¶ 1 Francisco Martin Talamantes appeals the district court’s

judgment convicting him of felony murder, burglary, aggravated

motor vehicle theft, arson, and tampering with physical evidence, as

well as five habitual criminal counts. He also appeals his sentence

of life in prison plus 126 years. We affirm the judgment and

sentence.

I. Background

¶ 2 At about 2 a.m. on Thanksgiving 2016, Talamantes drove two

other men to an Aurora motel in a stolen vehicle. According to the

People, the men went there with the aim of confronting people at a

party. Talamantes considered someone at the party a snitch whom

he wanted to harm, while one of the other two men believed that

there were individuals at the party who owed him money and whom

he wanted to rob.

¶ 3 Surveillance footage shows the three men, led by Talamantes,

enter a room on the second floor of the motel. Talamantes carried a

BB gun, while the other two men each carried a firearm. While

inside, one of the other two men demanded the victim’s cell phone

and, when the victim refused to comply, shot and killed him. The

2

three men then fled in the stolen car. After leading the police on a

chase, Talamantes set fire to the car.

¶ 4 The People charged Talamantes with, as pertinent here, first

degree felony murder, § 18-3-102(1)(b), C.R.S. 2016; first degree

burglary, § 18-4-202(1), C.R.S. 2021; second degree kidnapping,

§ 18-3-302(1), (4), C.R.S. 2021; first degree aggravated motor

vehicle theft, § 18-4-409(2), (3)(b), C.R.S. 2021; second degree

arson, § 18-4-103(1), C.R.S. 2021; tampering with physical

evidence, § 18-8-610(1)(a), C.R.S. 2021; five habitual criminal

counts, § 18-1.3-801, C.R.S. 2021; and two crime-of-violence

sentence enhancers, § 18-1.3-406(2)(a)(I)(A), C.R.S. 2021 (using,

possessing, or threatening the use of a deadly weapon);

§ 18-1.3-406(2)(a)(I)(B) (causing serious bodily injury or death to a

non-participant).

¶ 5 The case proceeded to trial. As relevant to this appeal, the

People argued that Talamantes was guilty of burglary (and felony

murder based on burglary) either as a principal or a complicitor.

They argued that he was guilty of kidnapping and robbery (and

felony murder based on those crimes) as a complicitor.

Talamantes’s defense was that he was in the wrong place, with the

3

wrong people, at the wrong time; that he did not know his associate

was going to shoot anyone; and that he did not go into the motel

room with the intent to commit any crime. But he conceded that he

was guilty of the arson and tampering charges.

¶ 6 The jury found Talamantes guilty of felony murder “based on

the commission or attempted commission” of both robbery and

burglary. It found him guilty of first degree burglary “based on the

commission or attempted commission” of assault, menacing, and

harassment. It also found him guilty of first degree aggravated

motor vehicle theft, second degree arson, and tampering with

physical evidence. The jury found Talamantes not guilty of second

degree kidnapping. The court later found him guilty of all five

habitual criminal counts.

¶ 7 After entering judgment of conviction, the district court

sentenced Talamantes to life in prison for felony murder, plus a

consecutive 126 years for the burglary, motor vehicle theft, arson,

and tampering charges.

1

1

Following a separate trial, the shooter was convicted of first degree

felony murder and burglary. See People v. Garcia, (Colo. App.

No. 18CA0776, June 24, 2021) (not published pursuant to C.A.R.

4

¶ 8 Talamantes now appeals the judgment of conviction and his

sentence.

II. Analysis

¶ 9 Talamantes makes four arguments. First, he contends that

the district court’s complicity instruction was plainly erroneous.

Second, he argues that prosecutorial misconduct violated his right

to a fair trial. Third, he argues that his convictions for burglary and

felony murder violated his right to be free from double jeopardy.

And fourth, he contends that the court erred by sentencing him to a

consecutive 126 years on top of his sentence to life in prison. We

address each of his arguments in turn.

A. Complicity Instruction

¶ 10 Talamantes contends that the district court plainly erred by

giving the jury an outdated complicity instruction. We disagree.

1. Additional Facts

¶ 11 The district court provided the jury with the following

Instruction 27 on complicitor liability:

35(e)) (reversing and remanding for a new trial based on violations

of CRE 403). The third associate was found dead hours after the

motel murder and never charged.

5

Complicity is not a separate crime. Rather, it

is a legal theory by which one person may be

found guilty of a criminal offense that was

committed in whole or in part by another

person.

To be found guilty as a complicitor, the

prosecution must prove each of the following

circumstances beyond a reasonable doubt:

1. A crime must have been committed.

2. Another person must have committed all or

part of the crime.

3. The defendant must have had knowledge

that the other person intended to commit all or

part of the crime.

4. The defendant must have had the intent to

promote or facilitate the commission of the

crime.

5. The defendant must have aided, abetted,

advised, or encouraged the other person in

planning or committing the crime.

This instruction tracked the model instruction in use at the time of

his trial in January 2019, see COLJI-Crim. G1:06 (2017), and

Talamantes did not object to it.

¶ 12 Next, the court instructed the jury that

the elements of the crime of first degree

burglary are:

1. That the defendant,

6

2. in the State of Colorado, at or about the

date and place charged,

3. knowingly,

4. entered unlawfully, or remained unlawfully

after a lawful or unlawful entry,

5. in a building or occupied structure,

6. with intent,

7. to commit therein the crime(s) of

kidnapping, (see instruction 21), and/or

menacing (see instruction 20), and/or assault

(see instruction 20) and/or harassment (see

instruction 20), and

8. in effecting entry or while in the building or

occupied structure or in immediate flight from

the building or occupied structure,

9. the defendant or another participant in the

crime committed the crime of assault or the

crime of menacing against any person.

Other instructions provided the jury with the elements of the

offenses of kidnapping, menacing, assault, and harassment.

¶ 13 As it deliberated, the jury sent the district court a question:

“Does the notion/definition of ‘complicity’ (Instruction 27) apply to

all aspects of all charges; specifically, does the definition of

complicity apply to sub-distinctions/rulings of count two [first

degree burglary] subsections.” Defense counsel asked the court to

7

refer the jury back to the instructions. The prosecutor, however,

noted that “even recently our Supreme Court has said that [the

notion of complicity] has to apply to intent, and it has to apply to

mens rea,” and suggested to the court that “the answer is quite

clearly yes.”

¶ 14 The court decided to answer the jury’s question “simply” with

“yes.” It reasoned that this answer was “certainly a correct

statement of the law” and that it would “clarify the confusion the

jury has expressed through this question, without unnecessary

elaboration.”

¶ 15 When the jury returned its first degree burglary verdict, it

unanimously found, beyond a reasonable doubt, that Talamantes

was guilty of the burglary based on “the commission or attempted

commission” of assault, menacing, and harassment.

2. Standard of Review and Preservation

¶ 16 The district court has a duty to instruct the jury correctly on

the applicable law. Townsend v. People, 252 P.3d 1108, 1111 (Colo.

2011). We review the court’s instructions as a whole de novo to

determine whether they accurately informed the jury of the

governing law. Riley v. People, 266 P.3d 1089, 1092-93 (Colo.

8

2011). But so long as the instructions are “correct statements of

the law and fairly and adequately cover the issues presented,” the

court “has substantial discretion in formulating” them. People v.

Payne, 2019 COA 167, ¶ 16 (citation omitted). We therefore review

a court’s decisions on the form and style of instructions for abuse of

discretion. Townsend, 252 P.3d at 1111.

¶ 17 The parties agree that Talamantes did not preserve this issue

for appeal, so our review is for plain error. Hagos v. People, 2012

CO 63, ¶ 14; see also Crim. P. 52(b). A plain error is one that is

obvious and substantial. Hagos, ¶ 14. An error is obvious if it

contravenes a clear statutory command, a well-settled legal

principle, or Colorado case law. Scott v. People, 2017 CO 16, ¶ 16.

An error is substantial, in turn, if it so undermines the fundamental

fairness of the trial itself as to cast serious doubt on the reliability

of the judgment of conviction. Hagos, ¶ 14. In the jury instruction

context, “the defendant must ‘demonstrate not only that the

instruction affected a substantial right, but also that the record

reveals a reasonable possibility that the error contributed to his

conviction.’” Hoggard v. People, 2020 CO 54, ¶ 13 (quoting

People v. Miller, 113 P.3d 743, 750 (Colo. 2005)).

9

3. Governing Law

¶ 18 “The United States and Colorado Constitutions guarantee the

defendant in a criminal case both the right to have a jury decide his

case and the right to have the prosecutor prove to that jury, beyond

a reasonable doubt, every element of the charged offense.” Griego v.

People, 19 P.3d 1, 7 (Colo. 2001); see also U.S. Const. art. III, § 2,

cl. 3; U.S. Const. amends. VI, XIV; Colo. Const. art. II, §§ 16, 23,

25.

¶ 19 According to the complicity statute, “[a] person is legally

accountable as principal for the behavior of another constituting a

criminal offense if, with the intent to promote or facilitate the

commission of the offense, he or she aids, abets, advises, or

encourages the other person in planning or committing the offense.”

§ 18-1-603, C.R.S. 2021.

¶ 20 In People v. Childress, 2015 CO 65M, ¶ 2, our supreme court

addressed the reach of complicitor liability, concluding that it “is

not limited to crimes defined as containing a culpable mental state”

but “can extend to strict liability offenses.” In doing so, the

supreme court defined the “dual mental state” necessary for

complicitor liability, requiring that the complicitor have both

10

(1) the intent, in the commonly understood

sense of desiring or having a purpose or

design, to aid, abet, advise, or encourage the

principal in his criminal act or conduct, and

(2) an awareness of those circumstances

attending the act or conduct he seeks to

further that are necessary for commission of

the offense in question. By “circumstances

attending the act or conduct,” we intend those

elements of the offense describing the

prohibited act itself and the circumstances

surrounding its commission, including a

required mental state, if any . . . .

Id. at ¶ 29.

¶ 21 According to a comment to the 2015 model jury instructions

on complicity, Childress “substantially modified” the supreme

court’s earlier decision in Bogdanov v. People, 941 P.2d 247 (Colo.),

amended, 955 P.2d 997 (Colo. 1997), disapproved of on other

grounds by Griego, 19 P.3d 1. The Model Criminal Jury

Instructions Committee (Committee) therefore said that it was

“currently reviewing these instructions.” COLJI-Crim. G1:06 cmt. 2

(2015). The 2017 model jury instruction on complicity, however —

the one in use at the time of Talamantes’s trial — contained

elements identical to those in the 2015 model instructions.

Compare COLJI-Crim. G1:06 (2017), with COLJI-Crim. G1:06

(2015). “[W]hile simply following model instructions does not

11

provide ‘safe harbor that insulates instructional error from reversal,’

it certainly makes any error that occurred . . . less obvious.”

Hoggard, ¶ 17 (citation omitted).

4. Discussion

¶ 22 Talamantes asserts that, in the wake of Childress, and based

on a new model instruction released after his trial,

2

“a complicity

jury instruction for the crime of first degree burglary” should

specifically state that the following elements must be proved:

1. Another person committed the crime of first

degree burglary, as defined at the end of this

Instruction, and

2. the defendant, with the desire or the

purpose or design to aid, abet, advise, or

encourage the other person in planning or

committing that crime,

3. aided, abetted, advised, or encouraged the

other person in planning or committing that

crime, and

4. the defendant was aware of all of the

elements of that crime, as defined at the end of

this Instruction.

For purposes of this Instruction, another

person committed the crime of first degree

2

Talamantes’s proposal resembles the 2018 model instruction on

complicity. COLJI-Crim. J:03 (2018). That model instruction,

which was released two weeks after his trial, adds the requirement

that “the defendant was aware of all of the elements of that crime.”

12

burglary if the prosecution proves each of the

following elements beyond a reasonable

doubt . . . .

He argues that the district court’s complicity instruction violated

due process because, unlike the instruction above, it (1) lowered the

burden of proof; (2) improperly included the “all or part of”

language; and (3) “allowed the jury to intermix the various offenses

for each element of the complicity instruction.”

¶ 23 First, we disagree that, by failing to expressly require the jury

to find that Talamantes was aware of the shooter’s intent to commit

kidnapping, menacing, assault, or harassment inside the motel

room, the court’s complicity instruction improperly lowered the

burden of proof. The court’s instruction informed the jury that to

find Talamantes guilty as a complicitor of any crime — e.g., first

degree burglary — it had to find that he “had the intent to promote

or facilitate the commission of the crime” and that he had

“knowledge that the other person intended to commit all or part of

the crime.” It thus directed the jury to the elements of “the

crime” — first degree burglary — contained in a separate

instruction. That instruction included the requirement of intent to

commit kidnapping, menacing, assault, or harassment. Read as a

13

whole, then, the instructions ensured that the jury would find

Talamantes guilty of first degree burglary as a complicitor only if he

was aware of the principal’s intent to commit kidnapping,

menacing, assault, or harassment inside the motel room. See

Childress, ¶ 29.

¶ 24 To the extent that the court’s instruction did not explicitly

direct the jury to find that he “was aware of all of the elements of

that crime,” including the principal’s mental state, we conclude that

the omission — if erroneous — was not obvious. As mentioned

above, the court’s instruction tracked the model instruction in use

at the time, COLJI-Crim. G1:06 (2017). Hoggard, ¶ 17. And though

the 2015 model instructions indicate that Childress “substantially

modified” the court’s earlier precedent and that the Committee was

“currently reviewing” its complicity instructions, COLJI-Crim. G1:06

cmt. 2 (2015), the Committee had not actually changed anything by

the time of Talamantes’s trial, almost four years later.

¶ 25 Second, we disagree that the district court plainly erred by

including “all or part of” in the elements (1) “[a]nother person must

have committed all or part of the crime” and (2) “[t]he defendant

must have had knowledge that the other person intended to commit

14

all or part of the crime.” The “all or part of” language does not

appear in the current model instruction. In Bogdanov, 941 P.2d at

256, however, our supreme court explained that this language

applies to “the fact pattern wherein the principal and at least one

other person, possibly the defendant, together commit the essential

elements of the crime.” By contrast, when the defendant has

committed none of the elements of the crime and one principal

alone has committed them all, the Bogdanov court saw “no need”

for the instruction to contain the “all or part of” language. Id.; see

also COLJI-Crim. G1:06 cmt. 4 (2015) (including the “all or part of”

language “[c]onsistent with the supreme court’s direction in

Bogdanov”).

¶ 26 Its inclusion in the latter situation, however, is usually

superfluous rather than prejudicial. See Bogdanov, 941 P.2d at

252, 256 (rejecting the defendant’s contention that the “all or part

of” language allowed the jury to find him guilty even if he did not

know the principal intended to commit the crime but, rather, knew

only that the principal intended to commit part of the crime);

People v. Osborne, 973 P.2d 666, 670 (Colo. App. 1998) (“[I]f the

principal committed the crime in its entirety and the complicitor did

15

not perform any of the elements of the offense, then the inclusion of

the ‘all or part’ language of the instruction is superfluous and any

error is harmless.”). Thus, the court did not plainly err by including

the “all or part of” language in its complicity instruction.

¶ 27 Third, relying on Butler v. People, 2019 CO 87, Talamantes

argues that the district court’s complicity instruction, by referring

generically to “a crime” and “the crime,” allowed the jury to

“intermix” different offenses in the instruction. That case, however,

did not concern jury instructions; the issue in Butler, ¶ 11, had to

do with the sufficiency of the evidence supporting the defendant’s

money laundering conviction under a complicity theory. The

supreme court’s statement that, “[b]y focusing on the entire

operation rather than the specific acts charged, the court of appeals

lowered the bar for the prosecution” is therefore inapposite here.

See id. at ¶ 17. Instead, reading the court’s instructions as a whole,

they clearly informed the jury that complicity was a theory of

liability potentially applicable to each of the charged offenses.

¶ 28 We are not persuaded otherwise by Talamantes’s argument

that the jury’s question about the complicity instruction proves the

instruction’s inadequacy. The jury’s question — “Does the

16

notion/definition of ‘complicity’ (Instruction 27) apply to all aspects

of all charges; specifically, does the definition of complicity apply to

sub-distinctions/rulings of count two [first degree burglary]

subsections” — arguably shows that it was confused about how to

apply the complicity instruction. But the court’s answer — “yes” —

removed any confusion. It told the jury to apply the definition of

complicity to the “sub-distinctions” of first degree burglary,

including the intent to commit any of one or more crimes inside the

motel room.

¶ 29 Accordingly, we conclude that the district court’s complicity

instruction was not plainly erroneous.

B. Prosecutorial Misconduct

¶ 30 Talamantes next contends that, from voir dire through closing

arguments, the prosecutors made improper, misleading statements

about complicity, reasonable doubt, and Talamantes’s veracity that

violated his right to a fair trial. We disagree.

1. Standard of Review and Governing Law

¶ 31 In reviewing a claim of prosecutorial misconduct, we employ a

two-step analysis. Wend v. People, 235 P.3d 1089, 1096 (Colo.

2010). First, we ask whether the prosecutor’s conduct was

17

improper based on the totality of the circumstances. Id. Second, if

the prosecutor’s conduct was improper, then we ask whether the

conduct warrants reversal under the proper standard of review. Id.

¶ 32 At the first step of the analysis, it is well settled that in closing

argument a prosecutor may not convey an opinion about the truth

or falsity of a witness’s testimony; nor may the prosecutor suggest

“personal knowledge of evidence unknown to the jury.”

Domingo-Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005). And

during voir dire, a prosecutor may not misstate the law. People v.

Carter, 2015 COA 24M-2, ¶ 71. A prosecutor may, however, “point

to circumstances that raise questions about, or cast doubt on, a

witness’s testimony, and may draw reasonable inferences from the

evidence as to the credibility of witnesses.” People v. Sommers,

200 P.3d 1089, 1096 (Colo. App. 2008) (quoting People v. Welsh,

176 P.3d 781, 788 (Colo. App. 2007)).

¶ 33 Turning to the second step, when, as here, the defendant did

not contemporaneously object to the alleged prosecutorial

misconduct, we review it for plain error. People v. Lovato, 2014

COA 113, ¶ 58. “To constitute plain error, prosecutorial

misconduct must have been so flagrant, glaring, or tremendously

18

improper that the trial court should have intervened sua sponte.”

People v. Cordova, 293 P.3d 114, 121 (Colo. App. 2011). We

evaluate the misconduct claim “in the context of the argument as a

whole and in light of the evidence before the jury.” People v.

Geisendorfer, 991 P.2d 308, 312 (Colo. App. 1999). A prosecutor’s

misstatement in closing argument thus rarely rises to the level of

plain error. People v. Ujaama, 2012 COA 36, ¶ 70. Misconduct

does so only when “its probable effect is a verdict based on bias and

prejudice rather than on the relevant facts and applicable law.” Id.

2. Discussion

¶ 34 Talamantes takes issue with the prosecutors’ comments on

three topics: complicity, reasonable doubt, and his own

truthfulness. We address each topic separately.

a. Complicity

¶ 35 Talamantes points to multiple times, particularly during voir

dire and closing argument, when the prosecutor made what he

deems misleading statements about complicity. During voir dire,

for example, one of the prosecutors asked a prospective juror

whether they were okay with the fact that “[i]f you knew a robbery

was going to go down, even without a gun, and somebody pulls a

19

gun, the law says you are still on the hook for that, too.” And

during closing argument, the prosecutor contended that

Talamantes was guilty as a complicitor because he was “an active

participant,” “actively involved in many bad things that happened in

the early morning of Thanksgiving 2016,” and “actively involved in a

series of events that led to [the victim] violently losing his life.”

¶ 36 Talamantes is correct that none of these statements fully

explain Childress’s conclusion about the “dual mental state

requirement” of complicitor liability — i.e., that a complicitor must

have both an intent to aid the principal and “an awareness of those

circumstances attending the act or conduct he seeks to further that

are necessary for commission of the offense.” But the prosecutor’s

statements during closing argument, when considered as a whole

and in context, were permissible comments on the evidence.

People v. Walters, 148 P.3d 331, 334 (Colo. App. 2006). He was not

instructing the jury about the law on complicity. As for voir dire,

though he may have used the metaphor loosely, the prosecutor

again was not trying to inform the prospective jurors about the law

of complicity. Carter, ¶ 71. Rather, in context, he was testing

20

whether the prospective jurors held beliefs that would prevent them

from reaching a guilty verdict based on complicitor liability.

¶ 37 In sum, the prosecutor’s statements about complicity were not

improper.

b. Reasonable Doubt

¶ 38 Talamantes asserts that the prosecutors made several

statements that “trivialized” reasonable doubt.

¶ 39 First, during voir dire, one of the prosecutors asked,

“Understanding that beyond a reasonable doubt is still really the

highest standard in any justice system in the world, understanding

it’s really high, is it something less than I know 100 percent that

this thing is true?” He continued, “Ninety, 91, 98, 98.99999 —

whatever. Can it be less than a hundred?”

¶ 40 Then, during Talamantes’s closing argument, defense counsel

used the following hypothetical to describe reasonable doubt:

[I]magine that you are driving down the street

in your vehicle, and you are approaching an

intersection, and you get to a street in front of

you that these people have a stop sign. You

don’t have a stop sign.

So you are driving down the street, but you see

a car kind of coming up. You are not sure,

maybe going a little fast, not sure if they are

21

going to stop. In that situation, maybe you

touch the brakes. Maybe you just take your

foot, and you put your foot over the brake and

cover the brake, just being precautious in case

that person doesn’t want to stop at that stop

sign they are going to run through it, and they

hit you.

You hesitate.

That’s based on your reason and common

sense. That’s you assessing the situation and

hesitating. That’s the type of doubt we are

talking about now. You may never hit the

brakes. You might put your foot over the

brake, cover it, take it back off, continue

without slowing down, but you hesitated for no

matter how long, that’s the type of doubt we

are talking about.

¶ 41 During rebuttal closing argument, the prosecutor called

defense counsel’s hypothetical “a really bad and a really

nonsensical explanation and illustration of what reasonable doubt

is and is not.” The prosecutor said that the application of

reasonable doubt involves a hypothetical reasonable person

engag[ing] in the same deliberative process

that every single one of us, every single one of

you, do every single day about ordinary life

decisions, right?

Reasonable doubt isn’t some unattainable,

unknown standard, guys. It’s the same

standard of deliberation and decision making

that we use every single day to make all

manner of normal decisions.

22

¶ 42 As an initial matter, though it is improper to “trivialize” the

state’s burden by quantifying the reasonable doubt standard,

People v. Camarigg, 2017 COA 115M, ¶ 44, the prosecutor’s

statement during voir dire did not so. The prosecutor’s statement

quantifying reasonable doubt (questioning whether “beyond a

reasonable doubt” might mean “[n]inety, 91, 98, 98.99999” percent)

was made for a permissible purpose: “to convey the difference

between proof beyond a reasonable doubt and proof beyond all

doubt.” Id. at ¶ 49. In context, the prosecutor’s statement was

intended to tease out the prospective jurors’ views on the state’s

burden of proof rather than to trivialize it. Cf. Pettigrew v. People,

2022 CO 2, ¶ 45 (“[T]he fact that the court’s comment came in the

course of a colloquy designed to tease out a particular prospective

juror’s possible bias — rather than as part of the court’s general

explanation of the law . . . — reduces the statement’s potential

impact as an erroneous instruction of law.”).

¶ 43 The prosecutor’s statement about reasonable doubt during

rebuttal closing, however, was improper. It is improper to “equate

the burden of proof to an everyday choice,” as the prosecutor did

here. Id. at ¶ 46; see also People v. Vialpando, 2020 COA 42,

23

¶¶ 54-55 (concluding that the prosecutor “trivialized reasonable

doubt” by asking potential jurors whether “they could recognize,

‘beyond a reasonable doubt,’ the American flag in the courtroom

even though it was folded and not entirely visible” and whether, if a

potential juror was on the gameshow “Who Wants to be a

Millionaire,” she could identify the flag for the million-dollar

question) (cert. granted Oct. 12, 2020); cf. Tibbels v. People, 2022

CO 1, ¶ 3 (concluding that a trial court’s voir dire comments

equating reasonable doubt with evaluating a home purchase

lowered the prosecution’s burden of proof).

¶ 44 In context, however, the prosecutor’s statement, though

improper, was not so flagrantly, glaringly, or tremendously

improper that the district court “should have intervened sua

sponte.” Cordova, 293 P.3d at 121.

¶ 45 First, the district court itself correctly instructed the jury on

the definition of reasonable doubt. The court also told the jury, “It

is my job to decide what rules of law apply to the case. While the

attorneys may comment on some of these rules, you must follow the

instructions I give you.” Absent an indication to the contrary, we

24

presume that the jury followed the court’s instructions. People v.

Lomanaco, 802 P.2d 1143, 1145 (Colo. App. 1990).

¶ 46 And second, the prosecutor’s statements in rebuttal closing,

which improperly equated reasonable doubt to everyday

decision-making, Camarigg, ¶ 46, were made in response to defense

counsel doing the same thing — equating reasonable doubt with

approaching an intersection and wondering whether oncoming

traffic would stop.

¶ 47 Under these circumstances, we conclude that the prosecutor’s

comment on reasonable doubt during rebuttal closing argument,

though improper, does not warrant reversal.

c. Comments on Talamantes’s Veracity

¶ 48 Finally, Talamantes asserts that the prosecutors improperly

expressed their personal opinions on his guilt and veracity.

Specifically, he points to closing argument, during which one of the

prosecutors tried to refute the idea that the shooter was in the car

and forced Talamantes to set fire to it. The prosecutor questioned

why, if the shooter was in the car, none of the responding police

officers saw the shooter fleeing from it. He described the idea as

“fantastical,” “manifestly made up,” and “manifestly impossible.”

25

He said, “It is a creation. It is fake. It is not real. It is something

that this Defendant creates when he knows he’s going up the creek

a little bit.” Then, the other prosecutor began her rebuttal closing

argument with the following:

Ladies and gentlemen, to conceive of Francisco

Talamantes of being not guilty, to conceive of

Francisco Talamantes as being nothing more

than an innocent bystander, who got caught

up with the wrong people with the wrong

crowd at the wrong time, then one must

necessarily concede [sic] of Francisco

Talamantes as being deaf, dumb, mute, and

blind.

¶ 49 As Talamantes correctly points out, it is an improper

expression of personal opinion for a prosecutor to use any form of

the word “lie” to describe a witness’s testimony. Domingo-Gomez,

125 P.3d at 1051. “In cases that turn on the credibility of witness

testimony,” however, “the line between [proper] argument about

whether the jury can rely on the testimony of witnesses and

improper expressions of personal opinion becomes hard to draw.”

Id. Here, the prosecutor’s statements properly asked the jurors to

disbelieve Talamantes’s explanation that the shooter forced him to

burn the stolen car and asked them, instead, to believe police

26

officers responding to the scene, who did not see the shooter fleeing

from the car with Talamantes.

¶ 50 Thus, we conclude that the prosecutors’ statements on

Talamantes’s veracity were not improper.

C. Double Jeopardy

¶ 51 Third, Talamantes argues that the district court reversibly

erred and violated his right to be free from double jeopardy by not

merging his burglary conviction into his felony murder conviction.

We disagree.

1. Additional Background

¶ 52 Talamantes was charged with first degree felony murder based

on robbery, burglary, and kidnapping. The district court instructed

the jury that, to find Talamantes guilty of felony murder, it had to

find that he “committed or attempted to commit the crime(s) of

Robbery . . . and/or Burglary . . . and/or Kidnapping” and that, in

the course of or in furtherance of the crime (or crimes), someone

other than one of the participants died. The court separately

instructed the jury on the elements of robbery, burglary, and

kidnapping.

27

¶ 53 When the jury returned its verdicts, it unanimously found,

beyond a reasonable doubt, that both robbery and burglary were

“the basis for [its] finding of guilt for felony murder.”

2. Standard of Review and Preservation

¶ 54 “Whether convictions for different offenses merge is a question

of law that we review de novo.” Page v. People, 2017 CO 88, ¶ 6.

But Talamantes concedes that he did not preserve his double

jeopardy objection. We review unpreserved double jeopardy claims

for plain error — that is, for error that is obvious and substantial.

Reyna-Abarca v. People, 2017 CO 15, ¶ 47; Hagos, ¶ 14.

3. Discussion

¶ 55 “The Double Jeopardy Clauses of the United States and

Colorado Constitutions protect an accused against being twice

placed in jeopardy for the same crime.” Woellhaf v. People,

105 P.3d 209, 214 (Colo. 2005) (citing U.S. Const. amend. V; Colo.

Const. art. II, § 18). The bar against multiplicity — that is, “the

charging of multiple counts and the imposition of multiple

punishments for the same criminal conduct,” id. — lies “at the core”

of double jeopardy protections, Quintano v. People, 105 P.3d 585,

590 (Colo. 2005). See also § 18-1-408(1)(a), C.R.S. 2021 (A

28

defendant “may not be convicted of more than one offense if . . .

[o]ne offense is included in the other.”).

¶ 56 In the felony murder context, this means that, because the

predicate felony is a lesser included offense of felony murder, a

defendant cannot be convicted of both offenses. See Boulies v.

People, 770 P.2d 1274, 1282 (Colo. 1989) (“An offense is ‘lesser

included’ for purposes of merging into a greater offense when proof

of the essential elements of the greater offense necessarily

establishes all of the elements required to prove the lesser

offense.”). Rather, the defendant’s conviction for the predicate

felony merges into his felony murder conviction. See id.

¶ 57 Here, the jury found Talamantes guilty of felony murder based

on his commission or attempted commission (as principal or

complicitor) of burglary and robbery. He was not separately

charged with robbery, so the jury did not return a separate verdict

finding him guilty of that offense. But based on the felony murder

instruction, by finding him guilty of felony murder based on

robbery, the jury necessarily found that he committed or attempted

to commit robbery (as either principal or complicitor). See

Lomanaco, 802 P.2d at 1145 (“In the absence of any indication to

29

the contrary,” we presume that the jury follows the instructions it is

given.).

¶ 58 Accordingly, because Talamantes was convicted of felony

murder based on robbery but not convicted of robbery, merger

principles do not require that any of his convictions be vacated. Cf.

Callis v. People, 692 P.2d 1045, 1054 (Colo. 1984) (“[W]hen a

defendant is convicted of multiple felonies, all of which are alleged

as the legal predicates for the commission of felony murder, that

felony which most directly contributes to the death of the victim

should serve as the essential element of the felony murder

conviction.”).

D. Sentencing

¶ 59 Last, Talamantes argues that the district court reversibly erred

by ordering all his sentences to run consecutively. In the

alternative, he argues that the court reversibly erred by not ordering

his arson and tampering sentences, at least, to run concurrently.

We disagree.

1. Additional Background

¶ 60 At the sentencing hearing, which followed Talamantes’s

habitual criminal adjudication, the parties agreed that the district

30

court had little discretion regarding what sentences to impose. The

only available sentence for first degree felony murder was life in

prison. See § 18-1.3-401(1)(a)(I), C.R.S. 2021. And based on its

finding that he had previously been convicted of at least three

felonies arising out of separate and distinct criminal episodes,

section 18-1.3-801(2)(a)(I)(A) required the court to impose four times

the presumptive maximum sentence for each of his other

convictions. Both parties thus agreed that the court had to impose

sentences of forty-eight years for first degree burglary, forty-eight

years for first degree aggravated motor vehicle theft, twenty-four

years for second degree arson, and six years for tampering with

physical evidence.

¶ 61 The prosecutor asked for the sentences to run consecutively,

summing up to a total of life plus 126 years in prison. Talamantes,

while recognizing that “[o]bviously, the Court doesn’t have too much

discretion here,” asked for the sentences to run concurrent to each

other.

¶ 62 The court acknowledged that “there is some discretion

permitted regarding consecutive versus concurrent, but even that is

limited.” “Given the facts of this case” and “the nature of the

31

ongoing criminal enterprise,” it ordered the sentences to run

consecutively. Later in the proceeding, the court remarked that “[a]

person’s life was taken for absolutely no reason” and that the case

involved “absolutely senseless violence.”

2. Standard of Review and Preservation

¶ 63 At the sentencing hearing, Talamantes requested that the

district court impose concurrent sentences, but he did not make

the arguments he makes on appeal: that the court misunderstood

its discretion to do so and that it was required to impose concurrent

sentences for two of his convictions. Accordingly, we review those

issues for plain error — that is, error that is obvious and

substantial. Martinez v. People, 2015 CO 16, ¶ 14 (Plain error

review applies “when a party raises a new argument on appeal” or

“alters the grounds for his objection on appeal.”); Hagos, ¶ 14.

3. Governing Law and Discussion

¶ 64 Generally, “[w]hen a defendant is convicted of multiple

offenses, the sentencing court has the discretion to impose either

concurrent or consecutive sentences.” Juhl v. People, 172 P.3d 896,

899 (Colo. 2007). And “[a]s long as each sentence falls within the

range established by the legislature,” we will usually uphold

32

consecutive sentences against a charge that the court abused its

discretion. People v. Montgomery, 669 P.2d 1387, 1390 (Colo.

1983). The court must, however, “state on the record the basic

reasons for imposing the sentence.” People v. Watkins, 200 Colo.

163, 167, 613 P.2d 633, 637 (1980).

¶ 65 When consecutive sentences result in an “extraordinarily long

prison term,” however, that term “must be supported by evidence in

the record justifying the trial judge’s action.” Montgomery, 669 P.2d

at 1390 (quoting People v. Edwards, 198 Colo. 52, 56, 598 P.2d

126, 129 (1979)). “In exercising sentencing discretion, a trial court

must consider the nature of the offense, the character and

rehabilitative potential of the offender, the development of respect

for the law and the deterrence of crime, and the protection of the

public.” People v. Fuller, 791 P.2d 702, 708 (Colo. 1990).

¶ 66 As a threshold matter, we reject Talamantes’s argument that

the district court reversibly erred because it misunderstood its

authority to impose concurrent sentences. The court’s recognition

that it had “some discretion . . . regarding consecutive versus

concurrent” belies that assertion. To the extent that the court

implied that its discretion was limited, we agree with the People

33

that, in context, the court was probably referring to the mandatory

sentences required by section 18-1.3-801(2)(a)(I)(A).

¶ 67 Nor are we persuaded by Talamantes’s argument that the

district court’s sentencing order must be vacated because the court

did not explain its reasoning. The court said that consecutive

sentences were warranted “[g]iven the facts of this case” and “the

nature of the ongoing criminal enterprise.” More specifically, it

observed that a life had been “taken for absolutely no reason” and

that the case involved “absolutely senseless violence.” We perceive

no abuse of discretion there. Fuller, 791 P.2d at 708 (“If the

sentence is within the range required by law, is based on

appropriate considerations as reflected in the record, and is

factually supported by the circumstances of the case, an appellate

court must uphold the sentence.”).

¶ 68 Turning to Talamantes’s alternative argument, we disagree

that, because his convictions for arson and tampering were based

on identical evidence — i.e., torching the stolen car — section

18-1-408(3) required the sentences for those convictions to run

concurrently. Section 18-1-408(3) expressly grants the sentencing

court discretion to impose consecutive sentences “where multiple

34

victims are involved.” See also People v. Cullen, 695 P.2d 750, 752

(Colo. App. 1984) (When “multiple convictions arise from crimes

committed upon multiple victims, the evidence is not identical and

therefore [section 18-1-408(3)] is inapplicable.”).

¶ 69 Here, as the People point out, arson and tampering harmed

separate victims. The victim of the arson was the car’s owner, who

lost her car, while the victim of the tampering charge was the State,

whose ability to prosecute the murder was impaired. See

§ 18-8-610(1)(a) (“A person commits tampering with physical

evidence if, believing that an official proceeding is pending or about

to be instituted . . . , he . . . [d]estroys, mutilates, conceals,

removes, or alters physical evidence with intent to impair its verity

or availability in the pending or prospective official

proceeding . . . .”). Contrary to Talamantes’s assertion, nothing in

section 18-1-408(3) indicates that the legislature intended that the

provision apply only to “traditional, named victims.”

¶ 70 In sum, we perceive no error, let alone plain error, in the

district court’s imposition of consecutive sentences.

35

III. Conclusion

¶ 71 For these reasons, we affirm the judgment of conviction and

sentence.

JUDGE DUNN and JUDGE WELLING concur.