Peo v. Poloa

23CA1392 Peo v Poloa 08-21-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1392
El Paso County District Court No. 21CR3700
Honorable Jessica L. Curtis, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Mikaele Jushawn Poloa,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division III
Opinion by JUDGE DUNN
Schock and Taubman*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 21, 2025

Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Lauretta A. Martin Neff, Alternate Defense Counsel, Montrose, Colorado, for
Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 A jury convicted defendant, Mikaele Jushawn Poloa, of

attempted sexual assault, criminal trespass, indecent exposure,

and attempt to influence a public servant. He appeals these

convictions. We affirm.

I. Background

¶2 Early one morning in 2021, a woman was sitting in her car in

the parking lot of an apartment complex when a man — later

identified as Poloa — opened her car door and attempted to sexually

assault her. Poloa said he had a gun and threatened to kill her if

she did not comply. After she fought back and screamed for help,

Poloa ran away.

¶3 Hours later in a nearby apartment complex, another woman

was sitting in her car when she noticed a man — again later

identified as Poloa — walking toward her. She got out of her car

and ran toward her apartment. As she ran, Poloa followed her,

exposing and rubbing his penis. She escaped into her apartment

and activated her car alarm. When she looked out her window,

Poloa was gone.

¶4 Both women called 911. When an investigating officer later

found Poloa, he gave the officer a false name.

1
¶5 The prosecution charged Poloa with attempted sexual assault,

criminal trespass, indecent exposure, and attempt to influence a

public servant.

¶6 Poloa testified at trial. He admitted to confronting the first

woman but claimed he did so to steal her car, not to sexually

assault her. He also admitted to giving the police a false name. But

he denied any involvement with the second woman.

¶7 The jury convicted Poloa as charged. The district court

adjudicated him a habitual criminal and sentenced him to a

controlling prison term of forty-eight years to life.

¶8 On appeal, Poloa contends that (1) the district court erred by

denying his request for substitute counsel; (2) the district court

erred by denying his objection to the prosecution’s exercise of a

peremptory strike under Batson v. Kentucky, 476 U.S. 79 (1986);

and (3) we must reverse his conviction for attempt to influence a

public servant due to a legislative amendment enacted after the

charged crime.

II. Substitution of Counsel

¶9 Poloa contends that the district court erred by denying his

request for substitute counsel. We disagree.

2
A. Additional Background

¶ 10 The district court appointed counsel to represent Poloa. At

Poloa’s request, defense counsel set a conflict hearing.

¶ 11 At the hearing, Poloa asked the court to appoint a new

attorney. He raised concerns that defense counsel (1) did not

communicate with his family; (2) had not met with him in person to

review discovery; and (3) was “not comfortable” taking the case to

trial. Poloa added that he was “always bumping heads” with

counsel because he had to “either see it [counsel’s] way or no way.”

¶ 12 Defense counsel addressed these points. He explained that

(1) his communication with Poloa’s family was limited to preserve

attorney-client privilege; (2) the pandemic affected in-person jail

visits, but he had reviewed all the discovery with Poloa via Webex;1

and (3) he didn’t remember saying he was “uncomfortable” taking

the case to trial, but he did speak with Poloa about what defense

they would run because, given the evidence against Poloa, “it’s not

1 Defense counsel added that if the pandemic restrictions eased and

the case were set for trial, he could arrange an in-person discovery
review.

3
prudent to set a case” like this one for trial “without having that

conversation.”

¶ 13 The district court found neither a “well founded reason for

believing [defense counsel] cannot or will not represent [Poloa]” nor

“a complete breakdown in communication” between defense counsel

and Poloa that prevented counsel “from putting on an adequate

defense.” The court therefore concluded that substitute counsel

wasn’t warranted under People v. Bergerud, 223 P.3d 686 (Colo.

2010), and denied Poloa’s request.2

B. Applicable Law and Standard of Review

¶ 14 When a defendant objects to court-appointed counsel, the

district court must inquire into the reasons for the dissatisfaction.

People v. Arguello, 772 P.2d 87, 94 (Colo. 1989). A defendant,

however, is not entitled to substitute court-appointed counsel

except on a showing of “good cause, such as a conflict of interest, a

complete breakdown of communication or an irreconcilable

conflict.” Ronquillo v. People, 2017 CO 99, ¶ 19 (citation omitted).

2 Defense counsel later requested a second conflict hearing.

Because Poloa doesn’t raise any argument about this hearing, we
don’t address it.

4
And the court may refuse to substitute counsel if it concludes that

the attorney-client relationship has not deteriorated to the point

where counsel cannot effectively present an adequate defense.

People v. Schultheis, 638 P.2d 8, 15 (Colo. 1981).

¶ 15 We review a district court’s refusal to appoint substitute

counsel for an abuse of discretion. People v. Ramcharan, 2024 COA

110, ¶ 85; see also Bergerud, 223 P.3d at 696 n.4.

C. The Court Did Not Abuse Its Discretion by Refusing to
Substitute Counsel

¶ 16 The district court did not abuse its discretion by declining

Poloa’s request to appoint substitute counsel.

¶ 17 As to communications with Poloa’s family and the discovery

review, Poloa doesn’t appear to now argue that either concern

established good cause to substitute counsel. Indeed, the record

shows that defense counsel’s reasons for limiting communication

with Poloa’s family and for reviewing discovery via Webex were

legitimate and reasonable.

¶ 18 That leaves Poloa’s claim that a complete breakdown in

communication occurred because he and his counsel were

“bumping heads” and he had to “see it [counsel’s] way or no way.”

5
This at most describes communication difficulties and

disagreements about trial strategy or preparation. That’s not

enough to demonstrate a complete breakdown in communication.

See People v. Johnson, 2016 COA 15, ¶ 32 (noting that “[m]ere

communication difficulties” do not show a complete breakdown in

communication); People v. Kelling, 151 P.3d 650, 653 (Colo. App.

2006) (“Disagreements pertaining to matters of trial preparation,

strategy, and tactics do not establish good cause for substitution of

counsel.”).

¶ 19 And given the seriousness of the charges and the potential

evidence against Poloa, counsel’s earnest question about possible

defenses doesn’t indicate that counsel was unwilling or unable to

defend Poloa. See McKee v. Harris, 649 F.2d 927, 932 (2d Cir.

1981) (“The starting point for effective representation is a realistic

assessment of the prospects of success in light of the risks of

failure.”). While the pointed question may have reduced Poloa’s

confidence and trust in counsel, that alone doesn’t require the

appointment of substitute counsel. See People v. Tresco, 2019 COA

61, ¶ 17 (observing that counsel’s “lack of confidence in a

defendant’s ability to prevail at trial does not automatically create a

6
conflict”; collecting cases); McKee, 649 F.2d at 932 (concluding that

the defendant’s “loss of trust” in counsel did not amount to good

cause for substituting counsel).

¶ 20 Finally, to the extent Poloa now challenges his counsel’s

performance, those issues weren’t raised at the conflict hearing

and, in any event, are more appropriately addressed in a

postconviction claim for ineffective assistance of counsel. See

People v. Thomas, 867 P.2d 880, 886 (Colo. 1994) (“[T]his court has

expressed a preference for having ineffective assistance of counsel

claims brought in Crim. P. 35(c) proceedings.”).3

¶ 21 All this said, we conclude that the district court didn’t abuse

its discretion by denying Poloa’s request for substitute counsel.

III. Batson Challenge

¶ 22 We turn next to Poloa’s contention that the district court erred

by rejecting his Batson challenge to the exclusion of prospective

Juror 29. We are not persuaded.

3 We express no opinion on the merits of any ineffective assistance

claims Poloa may later bring under Crim. P. 35(c).

7
A. Additional Background

¶ 23 During voir dire, defense counsel asked prospective Juror 29,

“What have you heard so far today that you want to talk about?”

Juror 29 responded:

Feelings aren’t facts. . . .

The bottom line, beyond a reasonable doubt.
I’m not worried about how I feel. I want to
know the facts. And the facts can look
different all across the board. So — I mean,
that’s just how I look at it. So how somebody
might look or sound, that’s all feelings. That’s
a feeling. It’s not facts.

¶ 24 Defense counsel followed up by asking, “And one of the

instructions that the [court] is going to give ties to that in a way. It

says that sympathy or prejudice can’t be part of the decision. I’m

not quoting exactly. You have to look at the evidence? Does that

make sense to you?” Juror 29 answered, “Yeah . . . . I mean, we

want to be gentle, not judgmental, right? So feelings aren’t facts.”

¶ 25 At the end of voir dire, the prosecutor used a peremptory

strike on Juror 29. Defense counsel raised a Batson challenge,

stating only that Juror 29 is “African-American, and [Poloa] is a

person of color.”

¶ 26 In response, the prosecutor explained:

8
[Juror 29] indicated [that she] wanted to be
“gentle, not judgmental.” The People kind of
perceive that to be more sympathetic towards
[Poloa]. She stated repeatedly that feelings
aren’t facts, which kind of gave rise to the
People’s apprehension that she wouldn’t be
able to read the body language of somebody
who’s testifying, and there would be no other
testifying — she is too fact oriented, and not
allowed to follow her feelings toward what a
person’s credibility is. I’m trying to best
articulate what that concern is.

¶ 27 The court then asked, “Do you think that’s sufficient to rise to

for cause?” Defense counsel immediately answered that the

prosecutor “[didn’t] want someone to consider the facts in the case.”

¶ 28 The court responded, “I didn’t interpret it that way. I

interpreted it as — that the [p]rosecution wanted someone who

would judge credibility not from just a fact-based analysis.”

Though the court didn’t explicitly rule, it implicitly denied the

Batson challenge.

B. Applicable Law and Standard of Review

¶ 29 The Equal Protection Clause of the Fourteenth Amendment

forbids a challenge to a potential juror based solely on race.

Batson, 476 U.S. at 89; see also People v. Owens, 2024 CO 10,

¶ 75.

9
¶ 30 When a party raises a Batson challenge, the district court

must apply the three-step analysis first outlined in Batson to

determine whether a peremptory strike is discriminatory. Batson,

476 U.S. at 96; Owens, ¶ 75. First, the objecting party must make

a prima facie showing that the strike was based on the prospective

juror’s race. Owens, ¶ 76. Second, if this showing is made, the

burden shifts to the striking party to provide a race-neutral

explanation for the strike. Id. at ¶ 77. Third, after the objecting

party has had a chance to rebut the striking party’s explanation,

the court must decide whether the objecting party has established

purposeful discrimination. Id. at ¶ 78. The court should sustain a

Batson challenge only if the objecting party proves that the

peremptory strike was substantially motivated by discriminatory

intent. See id.

¶ 31 We review Batson’s first and second steps de novo but the

third step for clear error. Id. at ¶ 79. To survive clear error review,

a step-three finding need only have some support in the record and

show that the district court considered all the relevant

circumstances. People v. Romero, 2024 CO 62, ¶ 66.

10
C. The Court Properly Denied the Batson Challenge

¶ 32 As best we can tell, Poloa challenges the prosecutor’s step-two

explanation for striking prospective Juror 29 and the court’s

implicit finding that Poloa did not establish purposeful

discrimination at step three. We perceive no error under either

step.

¶ 33 Though Poloa says the prosecutor’s step-two explanation

“boiled down to the suggestion that [Juror 29] would sympathize

with Poloa because of their shared race,” he didn’t argue that before

the district court. Regardless, that’s not an accurate summary of

the prosecutor’s explanation. The prosecutor explained that Juror

29’s comment that “feelings aren’t facts” and her desire to be

“gentle, not judgmental” might lead her to sympathize with Poloa

and affect her ability to assess credibility. The explanation was

tethered to Juror 29’s responses, not to any alleged “shared race.”

Because the explanation for the strike was based on something

other than race, the prosecutor satisfied his burden at step-two.

See Hernandez v. New York, 500 U.S. 352, 360 (1991) (plurality

opinion) (noting that a race-neutral explanation means “an

explanation based on something other than the race of the juror”).

11
¶ 34 Turning to step three, Poloa first argues that the district court

did not make any findings under step three and that we should

remand for a step-three analysis. Alternatively, he says that any

findings the court made are clearly erroneous.

¶ 35 The record, however, shows that the district court correctly

applied Batson’s third step and made supported findings. The

prosecution explained that it struck Juror 29 because — based on

her comments — she appeared to be sympathetic to Poloa and

unable to judge witness credibility. In response, defense counsel

didn’t argue that the proffered reason was racially motivated or a

pretext for discrimination. Instead, defense counsel simply asserted

that the prosecution “[didn’t] want someone to consider the facts in

the case.” The court disagreed with counsel’s rebuttal and credited

the prosecution’s explanation for the strike by ruling, “I interpreted

it as — that the [p]rosecution wanted someone who would judge

credibility not from just a fact-based analysis.” We therefore

disagree with Poloa that the record is “silent about” and “completely

devoid of” any step-three findings.

¶ 36 To be sure, the court’s ruling was brief, but so too was defense

counsel’s rebuttal. Because defense counsel never argued that the

12
prosecution’s step-two explanation was pretextual or racially

motivated, we don’t see what other facts or circumstances the court

should’ve considered in rejecting his Batson challenge.4 See People

v. Wilson, 2015 CO 54M, ¶ 14 (“Though the [district] court must

evaluate all relevant facts, ‘the ultimate burden of persuasion

regarding racial motivation rests with, and never shifts from, the

opponent of the strike.’” (quoting Purkett v. Elem, 514 U.S. 765, 768

(1995))); cf. People v. O’Shaughnessy, 275 P.3d 687, 695 (Colo. App.

2010) (explaining that the district court “properly could have

considered [the] defendant’s failure to rebut as acquiescence in the

prosecution’s explanation” at step three), aff’d, 2012 CO 9; State v.

King, 735 A.2d 267, 281 (Conn. 1999) (noting that the defendant’s

failure to argue that the prosecutor’s race-neutral explanation was

“insufficient or pretextual” at step three “may be treated as

acquiescence in the validity of” the explanation) (citation omitted).

And insofar as Poloa faults the court for not expressly evaluating

4 In fact, we question whether Poloa preserved any step-three

arguments for our review. See People v. Francis, 731 N.Y.S.2d 706,
707 (App. Div. 2001) (“Since [the] defendant did not contest the
race-neutral explanation offered by the prosecutor for the
peremptory challenge at issue, [the] defendant’s [Batson claim] is
unpreserved, and we decline to review it . . . .”) (citation omitted).

13
the prosecutor’s credibility, demeanor, and intent, the court

implicitly considered as much by crediting the prosecution’s race-

neutral explanation for the strike. See Romero, ¶ 43 (“[W]hile not

ideal, implicit demeanor and credibility findings may suffice.”); see

also People v. Beauvais, 2017 CO 34, ¶ 30 n.5 (collecting cases from

this court holding that “step-three rulings based on implicit

credibility determinations can survive clear error review”). Thus,

“we conclude that the [district] court’s step-three analysis here was

adequate because the court properly conducted a Batson analysis

and issued a Batson ruling that could be reviewed on the record.”

Beauvais, ¶ 33.

¶ 37 To the extent Poloa now raises different step-three arguments

never presented to the district court — for example, that the

prosecution’s race-neutral explanation was pretextual, or that the

prosecution made a “similar objectionable peremptory strike”

against a different juror in a separate case — such arguments

aren’t properly before us. That’s because Batson’s three-step

framework is limited “to events that occurred on the record and in

front of the court.” People v. Madrid, 2023 CO 12, ¶ 43. Madrid

held that the prosecution is prohibited from introducing new race-

14
neutral justifications to support a peremptory strike on remand for

additional findings, id. at ¶¶ 1-2, 38-57, and we see no reason —

and Poloa offers none — why Madrid’s holding and rationale apply

just to the prosecution or remand proceedings. Because our only

job at step three is to determine whether the record supports the

district court’s ruling, Romero, ¶ 66, and because Poloa didn’t

present the arguments he now makes with respect to step three, we

decline to consider them, see Madrid, ¶ 43; see also Wright v. State,

708 S.W.3d 888, 897 (Mo. Ct. App. 2025) (refusing to review

“grounds for Batson challenges that were not raised in the [district]

court,” including “arguments of pretext raised for the first time on

appeal”) (citation omitted); People v. Torres, 737 N.Y.S.2d 282, 282

(App. Div. 2002) (declining to review unpreserved claim that “the

race-neutral explanations offered by the prosecutor . . . were

pretextual”).

15
¶ 38 For these reasons, we conclude that the district court did not

err by rejecting Poloa’s Batson challenge.5

IV. Amendatory Legislation

¶ 39 Poloa asks us to reverse his conviction for attempt to influence

a public servant because in his view, he’s entitled to the benefit of a

legislative amendment that “decriminalize[d] the act of giving false

identifying information to an officer.” Again, we disagree.

¶ 40 For giving a false name to police, Poloa was charged with and

convicted of attempt to influence a public servant under section 18-

8-306, C.R.S. 2020, a class 4 felony.

¶ 41 In 2021, the legislature amended section 18-8-306 to state

that it is not a violation of that section to provide false identifying

information to law enforcement; instead, that conduct is now

criminalized as a misdemeanor under a different statute. Ch. 462,

5 Because defense counsel never argued that the prosecutor’s race-

neutral explanation was pretextual or racially motivated, the brevity
of the district court’s Batson ruling wasn’t fatal here. But in future
rulings, the district court should undertake a complete Batson
analysis and make express demeanor and credibility findings at
step three. See People v. Romero, 2024 CO 62, ¶¶ 36-44, 72-74
(repeatedly emphasizing the importance of express step-three
findings for appellate review).

16
secs. 278, 295, §§ 18-8-111.5, 18-8-306, 2021 Colo. Sess. Laws

3196, 3200.

¶ 42 A defendant may be entitled to the benefit of ameliorative

legislation if he requests such relief before the conviction becomes

final. People v. Stellabotte, 2018 CO 66, ¶¶ 3, 29; see also People v.

Thomas, 525 P.2d 1136, 1137-38 (Colo. 1974). But regardless of

the ameliorative nature of a legislative amendment, “we apply

expressly prospective statutes only prospectively.” Stellabotte, ¶ 29.

¶ 43 We review de novo whether an amended statute applies

prospectively or retroactively. See id. at ¶¶ 3, 10.

¶ 44 Doing that here, we conclude that the statute isn’t retroactive.

The legislature made clear that the amendment “takes effect March

1, 2022,” and “applies to offenses committed on or after” that date.

Sec. 803, 2021 Colo. Sess. Laws at 3331-32. Because Poloa

committed the charged offense in July 2021, he isn’t entitled to the

benefit of the legislative amendment. See Stellabotte, ¶ 29; see also

People v. Hamm, 2019 COA 90, ¶ 27 (“Statutes that, by their terms,

are effective ‘on or after’ a specified date do not apply

retroactively.”).

17
¶ 45 Still, Poloa maintains that he should benefit from the

amendment because section 18-8-306 does not itself include

language that it is effective only prospectively. However, Poloa

directs us to no authority — nor could we find any — that supports

this argument. To the contrary, the session laws are “the official

publication of the enactments” of the legislature. People v.

Washington, 969 P.2d 788, 789 (Colo. App. 1998); see also § 24-70-

223(1), C.R.S. 2024. And here, the session law plainly provides

that the amendment to section 18-8-306 applies prospectively. See

People v. Schnorenberg, 2023 COA 82, ¶ 44 (relying on language in

session laws to conclude that statutory amendment applied

prospectively), aff’d, 2025 CO 43.

¶ 46 We therefore conclude that Poloa is not entitled to the benefit

of the amendment to section 18-8-306.6

V. Disposition

¶ 47 We affirm the judgment.

6 Because they were raised for the first time in his reply brief, we do

not consider Poloa’s arguments that the prosecution “overreach[ed]”
by charging him under section 18-8-306, C.R.S. 2020, or that
section 18-8-306 violates his right to equal protection. See People
v. Owens, 2024 CO 10, ¶ 90.

18
JUDGE SCHOCK and JUDGE TAUBMAN concur.

19