Peo v. Nunez-Bustamante

24CA0531 Peo v Nunez-Bustamante 02-19-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0531
El Paso County District Court No. 22CR5042
Honorable Lin Billings Vela, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Joseph Nunez-Bustamante,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE MEIRINK
J. Jones and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 19, 2026

Philip J. Weiser, Attorney General, Jessica E. Ross, Senior Assistant Attorney
General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

Tillman Clark, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
¶1 Defendant, Joseph Nunez-Bustamante, appeals the sentencing

court’s denial of his request for presentence confinement credit

(PSCC) against his three-year sentence to the Youth Offender

System (YOS). We affirm.

I. Factual and Procedural Background

¶2 According to Nunez-Bustamante’s presentence investigation

report (PSIR), he used a fake Facebook account to message the

victim for the express purpose of setting her up to be robbed by two

of his friends. He messaged the victim with the pretext of

purchasing marijuana and told her to meet him at a location where,

unbeknownst to her, his friends would be waiting. During the

planning of the robbery, Nunez-Bustamante suggested to his

friends that they arm themselves. Although Nunez-Bustamante

was not physically present for the robbery, he informed his friends

when the victim arrived at the agreed-upon location. Nunez-

Bustamante’s friends then approached the victim’s car, threw

counterfeit money at her, drew a firearm, and told her to give them

her belongings. One of the robbers took the victim’s belongings,

including the marijuana, from her at gunpoint. The victim reported

hearing “multiple guns being fired at once.”

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¶3 For his participation in the incident, Nunez-Bustamante was

originally charged with twenty-four counts. As part of a global plea

agreement involving the underlying case and two other juvenile

cases, however, Nunez-Bustamante pleaded guilty to (1) aggravated

robbery under section 18-4-302(1)(d), C.R.S. 2025, a class 3 felony;

and (2) a crime of violence under section 18-1.3-406(2)(a)(I)(A),

C.R.S. 2025, a special sentence enhancer. In the plea agreement,

Nunez-Bustamante stipulated to a three-year YOS sentence with a

suspended twelve-year sentence in the custody of the Department

of Corrections (DOC). Nunez-Bustamante had served 536 days in

presentence confinement.

¶4 At sentencing, defense counsel asked the court to award

Nunez-Bustamante credit for his presentence confinement, arguing

that even if Nunez-Bustamante were awarded 365 days of PSCC, he

would still meet the minimum two-year YOS sentence. Nunez-

Bustamante then read a prepared written statement. The court

recognized that the statement was articulate and thoughtful and

demonstrated that he was already thinking about doing better. But

it declined to award PSCC for the following reasons:

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• In the court’s experience, to see “somebody successfully

restored” in the YOS, a three-year sentence was

“therapeutically appropriate.”

• The court didn’t want to condense the YOS sentence,

which consisted of three phases, requiring Nunez-

Bustamante to work to complete his education and

engage in community programs, which would take time.

• The court wanted to ensure that Nunez-Bustamante

continued to receive counseling and substance use

treatment as he matured and came into “the right frame

of mind.”

• The court wanted to “make sure [Nunez-Bustamante had]

the maximum amount of time to benefit from [YOS]

programming,” while not “diminish[ing] in anyway [sic]

. . . the seriousness of these offenses.”

• The time spent in the program would allow Nunez-

Bustamante to acquire “amazing tools and skills when

[he left] YOS” and returned home to his family.

Accordingly, the court sentenced Nunez-Bustamante to a

controlling three-year sentence in the YOS with no PSCC.

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II. Analysis

¶5 Nunez-Bustamante contends that the court erred by declining

to award him PSCC for three reasons: (1) the court applied People v.

Garcia, 2016 COA 124, which incorrectly interpreted section 18-

1.3-407(2)(a)(I), C.R.S. 2025, and was wrongly decided; (2) the court

abused its discretion by determining that, in Nunez-Bustamante’s

case, granting PSCC was inappropriate; and (3) a discretionary

interpretation of section 18-1.3-407(2)(a)(I) violates equal protection.

We disagree with these contentions.

A. Garcia and Section 18-1.3-407(2)(a)(I)

¶6 Nunez-Bustamante first urges us to depart from Garcia, which

he argues misinterpreted section 18-1.3-407(2)(a)(I) by holding that

an award of PSCC for a YOS offender is discretionary. He asserts

that the division’s interpretation conflicts with section 18-1.3-405,

C.R.S. 2025, which requires courts to apply PSCC, and that the

court erroneously considered section 18-1.3-407(2)(a)(I) in isolation

instead of considering it in the broader context of the YOS statute.

We are unpersuaded and decline to depart from Garcia.

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1. Standard of Review and Applicable Law

¶7 “Statutory interpretation is a question of law we review de

novo.” A.S. v. People, 2013 CO 63, ¶ 10. When interpreting a

statute, our primary purpose is to ascertain and give effect to the

intent of the legislature. People v. Market, 2020 COA 90, ¶ 16. We

assume that the intent of the legislature “has been expressed in the

chosen language.” People v. Coleman, 2018 COA 67, ¶ 41. We look

first to the statute’s language and seek “to give its words and

phrases their plain and ordinary meanings.” Market, ¶ 16.

Statutory words and phrases are read in context and construed

“according to the rules of grammar and common usage.” McCoy v.

People, 2019 CO 44, ¶ 37. “We must construe the statute so as to

give effect to every word, and we may not adopt a construction that

renders any term superfluous or meaningless.” People v. Rice, 2015

COA 168, ¶ 12.

¶8 If the statute is clear and unambiguous, we look no further

and apply the statute as written. People v. Sullivan, 53 P.3d 1181,

1182 (Colo. App. 2002). When the plain language of a statute is

ambiguous or conflicts with other statutes, we may look to other

tools of statutory interpretation. Coleman, ¶ 41. “When it appears

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that two statutes conflict, we strive to ‘construe the statutes in

harmony [to] give effect to each.’” Market, ¶ 18 (quoting DeCordova

v. State, 878 P.2d 73, 75 (Colo. App. 1994)). We are obligated to

interpret two conflicting statutes in a manner that avoids

inconsistency. Id. “When the General Assembly chooses to legislate

in an area, we presume it is aware of its own prior enactments.”

A.S., ¶ 11.

¶9 Section 18-1.3-405 provides that

[a] person who is confined for an offense prior
to the imposition of sentence for said offense is
entitled to credit against the term of his or her
sentence for the entire period of such
confinement. At the time of sentencing, the
court shall make a finding of the amount of
presentence confinement to which the offender
is entitled and shall include such finding in
the mittimus.

Section 18-1.3-407(2)(a)(I) provides, in relevant part, that “[t]he

court may award an offender sentenced to the [YOS] credit for

presentence confinement; except that such credit shall not reduce

the offender’s actual time served in the [YOS] to fewer than two

years.” (Emphasis added.) And section 18-1.3-407(1)(d) provides

that “[i]t is the intent of the general assembly that offenders

sentenced to the [YOS] be sentenced as adults and be subject to all

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laws and [DOC] rules, regulations, and standards pertaining to

adult inmates, except as otherwise provided in this section.”

¶ 10 In Garcia, this court analyzed whether “may” in section 18-

1.3-407(2)(a)(I) means “shall” because section 18-1.3-407(1)(d)

requires courts to sentence YOS offenders as adults, or whether

“may” is permissive and gives courts discretion to award PSCC to

YOS offenders. Garcia, ¶¶ 4-5. The division concluded that “[t]he

legislature’s use of the term ‘may’ is generally indicative of a grant

of discretion or choice among alternatives,” id. at ¶ 13 (citation

omitted), and held that the word “may” does “not mandate that a

court award PSCC when it sentences a defendant to the YOS,” id. at

¶ 18. Instead, consistent with its unambiguous and ordinary

meaning, the word “may” gives the court discretion to “determin[e]

whether to award PSCC based on the circumstances of each case,”

consistent with the purpose of the YOS. Id.

2. Analysis

¶ 11 Nunez-Bustamante asks us to decide the same question

presented in Garcia — whether sentencing courts have discretion

under section 18-1.3-407(2)(a)(I) to award PSCC when section 18-

1.3-407(1)(d) requires YOS offenders to be sentenced as adults, and

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section 18-1.3-405 requires courts to award PSCC when a

defendant is sentenced to the DOC. He claims that the statutory

provisions conflict with one another, which is the same argument

the defendant in Garcia made. Next, he argues that “may” in

section 18-1.3-407(2)(a)(I) refers to the court’s discretion to

sentence a juvenile to YOS, not its discretion to award PSCC, which

is still governed by section 18-1.3-405.

¶ 12 First, while we aren’t bound by the decisions of other

divisions, Garcia already concluded — and we agree — that the

statutory provisions do not conflict. See Chavez v. Chavez, 2020

COA 70, ¶ 13 (one division is not bound by the holding of another

division). Section 18-1.3-407(1)(d) requires YOS offenders to be

“sentenced as adults” and to be subject to the same laws as adult

inmates, “except as otherwise provided in this section.”

Considering the plain language of section 18-1.3-407(1)(d) in the

context of the YOS, the General Assembly intended for section 18-

1.3-407(2)(a)(I) to control over the general law applicable to adult

offenders. Simply put, the legislature specified that courts have

discretion to award PSCC for YOS offenders. The clause prevents

inconsistency between the discretionary credit in section 18-1.3-

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407(2)(a)(I) and mandatory credit in section 18-1.3-405. This is

consistent with the legislature’s intent that the YOS statute’s

provisions control over any conflicting provisions. Finally,

interpreting section 18-1.3-407(2)(a)(I) as mandatory would be

contrary to the rehabilitative purpose of the YOS, which is to

provide a sentencing alternative for YOS offenders. Garcia, ¶ 15.

¶ 13 Second, we reject Nunez-Bustamante’s argument that the

“may” in section 18-1.3-407(2)(a)(I) refers to the court’s discretion to

sentence an offender to the YOS instead of to the DOC and not to

the application of PSCC after YOS is selected. Nunez-Bustamante

claims that, once the court exercises its discretion to impose a YOS

sentence, it must follow the same rules regarding PSCC that apply

to all DOC sentences.

¶ 14 The first sentence of section 18-1.3-407(2)(a)(I) provides that

“[a] juvenile may be sentenced to the [YOS] created pursuant to this

section . . . .” (Emphasis added.) That “may” exists in a sentence

independent from the “may” contained in the sentence, “The court

may award an offender sentenced to the [YOS] credit for

presentence confinement.” § 18-1.3-407(2)(a)(I) (emphasis added).

Interpreting the statute as Nunez-Bustamante asks us to would fail

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to give effect to the General Assembly’s choice to use “may,” both

when referring to sentencing a juvenile to YOS and to granting

PSCC. Contrary to what Nunez-Bustamante contends, courts have

discretion to sentence juvenile offenders to the YOS and to award

YOS offenders PSCC. Further, reading the second “may” as

mandatory would fail to give effect to the plain meaning of “may”

and would conflict with the General Assembly’s choice to use the

mandatory “shall” in other parts of the subsection. See A.S., ¶ 21

(“Where both mandatory and directory verbs are used in the same

statute, . . . it is a fair inference that the legislature realized the

difference in meaning, and intended that the verbs should carry

with them their ordinary meanings.” (citation omitted)).

Accordingly, we decline to adopt Nunez-Bustamante’s reading of the

statute.

¶ 15 Finally, Nunez-Bustamante contends that the rule of lenity

applies because Garcia created ambiguity by acknowledging that

YOS offenders are subject to the laws pertaining to adults but that

“that overlay must yield to the extent [that] it is at odds with the

YOS statute’s broader objectives.” Garcia, ¶ 16. The rule of lenity

is “a rule of last resort invoked only ‘if after utilizing the various

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aids of statutory construction, the General Assembly’s intent

remains obscured.’” People v. Summers, 208 P.3d 251, 258 (Colo.

2009) (quoting People v. Thoro Prods. Co., 70 P.3d 1188, 1198 (Colo.

2003)). Because, for the reasons explained, sections 18-1.3-

407(1)(d) and 18-1.3-407(2)(a)(I) are unambiguous, the rule of lenity

doesn’t apply.

B. Abuse of Discretion

¶ 16 Nunez-Bustamante contends that even if Garcia correctly

interpreted section 18-1.3-407(2)(a)(I), the court abused its

discretion because its decision to deny PSCC was punitive and

contradicted the court’s assessment of his rehabilitative potential.

We disagree.

1. Standard of Review and Applicable Law

¶ 17 We review de novo a sentencing court’s interpretation of the

statutory sentencing scheme. Rice, ¶ 10. But we review the court’s

refusal to award PSCC for an abuse of discretion. Garcia, ¶ 21.

The sentencing court abuses its discretion when its ruling is

manifestly arbitrary, unreasonable, or unfair or when it misapplies

or misinterprets the law. People v. Chavez, 2020 COA 80M, ¶ 8;

People v. Hoskins, 2014 CO 70, ¶ 17.

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¶ 18 The purpose of the YOS is to provide, “as a sentencing option

for certain youthful offenders[,] a controlled and regimented

environment that affirms dignity of self and others, promotes the

value of work and self-discipline, and develops useful skills and

abilities through enrich[ing] program[s].” § 18-1.3-407(1)(a). The

program was created to provide “a new approach to solving the

problem of violent juvenile offenders.” People v. Espinoza, 990 P.2d

1117, 1119 (Colo. App. 1999) (quoting § 16-11-311(12), C.R.S.

1998) (analyzing the YOS statute in its previous location at 16-11-

311(12), C.R.S. 1998). The program provides juvenile offenders

highly structured community supervision and education and

treatment programs. People v. Miller, 25 P.3d 1230, 1231 (Colo.

2001). Although courts have discretion to award PSCC, to achieve

its rehabilitative purpose, the court cannot reduce an offender’s

YOS sentence below two years. § 18-1.3-407(2)(a)(I). A sentence to

the YOS therefore “should be more rehabilitative than punitive.”

Garcia, ¶ 15.

2. Analysis

¶ 19 Nunez-Bustamante contends that the court’s denial of PSCC is

counter to the statute’s rehabilitative purpose. Specifically, he

12
argues the court’s statements that it didn’t want to “diminish the

seriousness of the offenses” demonstrate that it denied PSCC for

punitive reasons.

¶ 20 While part of the court’s rationale in denying PSCC was to not

diminish the seriousness of the offenses, the court emphasized that

its main reason for denying the request was to allow sufficient time

for rehabilitation and treatment. The court recognized the need to

address Nunez-Bustamante’s mental health and substance use

issues. It emphasized that while Nunez-Bustamante had been

working with a probation officer, he had not prioritized his

treatment. The PSIR supports the court’s assessment of treatment

and describes how Nunez-Bustamante struggled with mental health

and substance abuse issues, including prior cocaine use. The court

stated that it wanted Nunez-Bustamante to be successful and have

the maximum benefit from the program.

¶ 21 Nunez-Bustamante also asserts that by denying PSCC, the

court failed to recognize his rehabilitative potential. However,

because the court recognized his rehabilitative potential, it didn’t

want to condense the time in which Nunez-Bustamante had to

complete the multiple phases of the program. Further, the court

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stated that while Nunez-Bustamante exhibited a desire to do better,

he wasn’t yet at the point where he prioritized his treatment and

learned from his mistakes so he could move forward. The PSIR

supports the court’s assessment. The detective who prepared the

PSIR noted that Nunez-Bustamante attended substance abuse

treatment and cognitive skills groups but didn’t follow through with

treatment goals, appointments, or urinary analysis tests. Similarly,

in discussing probation supervision, the PSIR indicated that Nunez-

Bustamante “did not put in the effort to make the changes he knew

he needed to make.”

¶ 22 The court recognized Nunez-Bustamante’s desire to do better.

But it also acknowledged that he would benefit from more time in

the program to reach his rehabilitative potential. The court’s

rationale for denying PSCC was supported by Nunez-Bustamante’s

rehabilitation needs, his past participation with treatment efforts,

and the intensity of the program. The sentence was in line with

Garcia and the statutory purpose of the YOS, and we discern no

abuse of discretion.

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C. Unpreserved Equal Protection Challenge

¶ 23 Nunez-Bustamante contends that the court erred by denying

him PSCC because interpreting 18-1.3-407(2)(a)(I) as discretionary

violates federal and state equal protection guarantees by creating

disparate treatment between YOS and DOC inmates, and between

YOS offenders who can afford bond and those who cannot. We

disagree.

1. Preservation

¶ 24 Nunez-Bustamante acknowledges that he did not explicitly

raise this issue before the sentencing court but asks us to exercise

our discretion to consider his unpreserved constitutional challenge.

He does, however, assert that the argument presented before the

court implicated the constitution. Because a constitutional

challenge to a statute must be explicitly raised, Nunez-Bustamante

did not preserve his constitutional challenge. See People v. Allman,

2012 COA 212, ¶ 13 (“Constitutional arguments must be explicitly

raised in the trial court; implicit claims are unpreserved.”).

¶ 25 We review this contention for plain error. See People v. Price,

2023 COA 96, ¶ 47 (“[W]e only reverse unpreserved constitutional

errors for plain error.”). An error is plain when it is obvious and

15
substantial. Hagos v. People, 2012 CO 63, ¶ 14. An obvious error

is one that “contravene[s] a clear statutory command, a well-settled

legal principle, or established Colorado case law,” People v.

Crabtree, 2024 CO 40M, ¶ 42, and that a judge should be able to

avoid without the benefit of an objection, People v. Conyac, 2014

COA 8M, ¶ 54. “An error is ‘substantial’ enough to warrant reversal

if it ‘so undermine[d] the fundamental fairness of the trial itself as

to cast serious doubt on the reliability of the judgment of

conviction.’” People v. Perez, 2024 COA 94, ¶ 26 (quoting Cardman

v. People, 2019 CO 73, ¶ 19).

2. The Equal Protection Clause

¶ 26 The Equal Protection Clause of the Fourteenth Amendment

prohibits states from denying “to any person within its jurisdiction

the equal protection of the laws.” U.S. Const. amend. XIV, § 1.

Colorado doesn’t have an equal protection clause, but our supreme

court has construed the due process clause of the Colorado

Constitution to imply a similar guarantee. Dean v. People, 2016 CO

14, ¶ 11. The level of judicial scrutiny we apply when a defendant

raises an equal protection challenge depends on the type of

classification identified and the nature of the right affected. People

16
v. Hernandez, 2021 CO 45, ¶ 38. “We apply rational basis review

where, as here, the challenged law does not impact a traditionally

suspect class or implicate a fundamental right.” Dean, ¶ 12. Under

rational basis review, the party challenging the law “must prove

that the statute’s classification bears no rational relationship to a

legitimate legislative purpose or government objective, or that the

classification is otherwise unreasonable, arbitrary, or capricious.”

Id.

3. Analysis

¶ 27 Nunez-Bustamante argues that the discretionary

interpretation of section 18-1.3-407(2)(a)(I) violates equal protection

because it creates two unconstitutional disparities — one that

treats YOS offenders differently from DOC inmates and a second

that creates disparity between wealthy and indigent YOS offenders.

We disagree with both contentions.

¶ 28 First, courts have already rejected similar equal protection

arguments to a discretionary adult PSCC statutory scheme. Before

section 18-1.3-405 mandated PSCC for DOC offenders, courts had

discretion to award PSCC to adults. People v. Dennis, 649 P.2d

321, 321 (Colo. 1982). When the discretionary scheme was

17
challenged on equal protection grounds, our supreme court rejected

the argument, stating that “[i]dentical arguments have been found

to be without merit and rejected by this court.” Id. at 322-23.

Additionally, as previously mentioned, the purpose of the YOS

system is to provide a sentencing alternative that allows for

intensive supervision and rehabilitation of juvenile offenders, while

providing education and treatment to YOS offenders. Garcia, ¶ 15;

§ 18-1.3-407(1)(a). Providing courts with discretion to award PSCC

in YOS cases — while making PSCC mandatory for DOC

offenders — is rationally related to the YOS’s purpose because

courts can tailor a sentence to the YOS offender’s individual

educational, treatment, and rehabilitative needs. See People v.

Alderman, 720 P.2d 1000, 1002 (Colo. App. 1986) (“Rehabilitation,

one of the purposes of sentencing, constitutes a legitimate state

interest.”).

¶ 29 Second, Nunez-Bustamante contends that the discretionary

PSCC system creates wealth-based disparity among YOS inmates.

Although he offers a hypothetical situation illustrating the

difference between a wealthy YOS offender and an indigent one, he

doesn’t articulate how discretionary PSCC is unreasonable or

18
arbitrary or fails to meet the legislature’s purpose or objective of

providing an alternative sentencing scheme designed to rehabilitate,

educate, and treat YOS offenders. Because his argument is

undeveloped, we decline to consider it on the merits. See People v.

Stone, 2021 COA 104, ¶ 52. We therefore perceive no error with the

court’s interpretation and application of section 18-1.3-407(2)(a)(I)

as it pertains to Nunez-Bustamante’s equal protection challenge.

¶ 30 Even if the court erred, any error was not obvious under the

plain error review standard. With respect to similarly situated YOS

and DOC inmates, the cases addressing PSCC before section 18-

1.3-405 was enacted held that there is no constitutional right to

PSCC. People v. Jones, 489 P.2d 596, 600 (Colo. 1971) (“Without

legislation, credit for [presentence] confinement is not a matter of

right . . . .”). Because such challenges have already been rejected,

the court didn’t contravene a well-settled legal principle or

established case law, and there was no obvious error. Likewise,

with respect to Nunez-Bustamante’s argument that the

discretionary application of PSCC causes disparity between YOS

inmates, any error was not obvious because the court was required

19
to follow and apply Garcia. Accordingly, the court did not plainly

err by denying Nunez-Bustamante PSCC.

III. Disposition

¶ 31 The judgment is affirmed.

JUDGE J. JONES and JUDGE LUM concur.

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