Peo v. West

22CA2222 Peo v West 07-24-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA2222
City and County of Denver District Court No. 20CR20005
Honorable Christopher J. Baumann, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Dwan K. West,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE BERNARD*
Kuhn and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 24, 2025

Philip J. Weiser, Attorney General, Cata A. Cuneo, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Joseph Chase, Alternate Defense Counsel, Denver, 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, Dwan K. West, of second degree

murder and illegal discharge of a firearm, and the trial court

sentenced him as a habitual offender. He appeals. We affirm.

I. Background

¶2 Defendant had a beef, which may or may not have been gang-

related, with a woman named C.F. At the end of May 2020, they

were involved in a confrontation in a store. C.F. told one of her

companions to shoot defendant, using a racial epithet. The

companion did so, wounding defendant in the calf.

¶3 The next day, there was another encounter and another

altercation. C.F. again ordered a companion to shoot defendant,

using the same racial epithet. The companion fired, wounding

defendant twice in his shoulder.

¶4 At this point, defendant said that he was “terrified” because

there had been “two attempts on [his] life.” In addition to getting

shot twice, he and his family had been “attack[ed]” at their

apartment complex, and they therefore could not go home. Their

lives were “in danger.”

¶5 In mid-June, defendant and his family drove to pick up an

order from a food truck on Colfax Avenue. His wife parked blocks

1
away from the truck, and, leaving his family in his car, he walked

toward the truck. He carried a pistol in his hand, and its safety

was off. He was “in fear of my life as well as my stepkids’ life, my

common-law wife’s life, as well as my close friends, after two attacks

have already been made on my life.”

¶6 According to defendant, he saw C.F. She once again, using

the same racial epithet, instructed the man with her, A.F., to shoot

defendant. (There was no evidence that A.F. had been present at

either of the two prior shootings.)

¶7 Defendant saw A.F. pull out a gun, rack it, and point it at him.

Defendant thought he was “getting ready to die that day. I may not

make it home. I might not see my family again . . . . [I]f I don’t act

right now, I’m possibly about to die.” It was him or A.F.

¶8 Defendant fired six shots, but A.F. did not fire any. One bullet

struck A.F. A.F. fell, and, defendant said, A.F.’s gun clattered to the

ground. Defendant sprinted away. He later said that he was acting

in self-defense.

¶9 A.F. lingered for several weeks until he died.

¶ 10 There were some holes in defendant’s story.

2
¶ 11 The shooting was captured on video by an onlooker. It showed

defendant walking up to the food truck slowly, then accelerating

toward A.F., and then shooting him.

¶ 12 The gun that A.F. supposedly had was never recovered; the

only evidence of a firearm at the scene was shell casings from

defendant’s gun. A detective testified that he did not “encounter

anything that might suggest that [A.F.] was armed at the time that

he was shot,” and he did not find evidence of any altercation

preceding the shooting.

¶ 13 The food truck owner did not hear any threats, see any

weapons, or observe any fighting before defendant shot A.F. No one

said anything to defendant before he opened fire.

¶ 14 Rather, the food truck owner saw defendant, who was dressed

all in black and wearing the hood from his hoodie over his head,

walk swiftly by the truck and start to fire his handgun. The owner

saw some muzzle flashes, and he then saw defendant walk swiftly

away.

¶ 15 The prosecution charged defendant with first degree murder,

illegal discharge of a firearm, first degree assault, and six counts of

3
possession of a weapon by a previous offender. At trial, the only

issue was whether defendant acted in self-defense.

II. Evidence of Self-Defense

¶ 16 Defendant contends that the court’s ruling excluding certain

evidence of self-defense was erroneous, and the court’s decision

deprived him of his constitutional right to present a defense. We

disagree.

A. Additional Background

¶ 17 At trial, defendant testified that, after he had been shot in the

calf and shoulder, and a couple of weeks before he shot A.F., he

learned that “someone had a hit on [him].” He testified that a friend

had sent him a text message of a Facebook post containing his

picture, bearing the caption “SOS.” Defense counsel wanted to

introduce this post into evidence.

¶ 18 The prosecutor promptly objected, and the court dismissed the

jury to discuss the objection. Defense counsel said that “SOS”

meant “shoot-on-sight.” The Facebook post, counsel continued,

therefore supported defendant’s self-defense claim because it

helped explain his fearful state of mind shortly before the shooting

at the food truck.

4
¶ 19 The prosecutor responded: “The fact that someone out on the

internet might have posted a hit on him, might have posted this

message and the way that [defendant] feels about that” is irrelevant

because “they have to be able to show that there’s a connection to

[A.F.] in this case and that’s what caused the imminent fear. They

haven’t done that at all.”

¶ 20 When asked about the connection between the Facebook post

and A.F., defense counsel said that “[i]t’s my understanding that

[the post] is attributed to potentially the Bloods,” a criminal gang,

because the Facebook post “says CMGB, which is Crenshaw Mafia

Gangster Bloods[,] SOS.” (C.F. and A.F. were both allegedly

members of this gang.)

¶ 21 “[B]ut,” defense counsel said, “I don’t want to get into that.”

Instead, counsel “want[ed] to keep it limited” to the SOS component

of the Facebook post “so we don’t open the door to the gang stuff.”

(The parties agreed before trial that they would not go into

defendant’s or A.F.’s alleged gang affiliations.)

¶ 22 The court decided that it would not admit defendant’s

testimony about the Facebook post:

5
My concern is based on the offer of proof from
[d]efense that there is no connection or nexus
to the shooting at the food truck. And
evidence that the defendant is on a, I guess,
heightened state of alert in general because of
a [Facebook post] that was relayed to him by
an acquaintance without any connection to
[A.F,] or [C.F.] or otherwise is, in my opinion or
judgment, irrelevant and excludable under
[CRE] 401, 402. . . .

B. Standard of Review and Applicable Law

¶ 23 “We review a trial court’s evidentiary rulings for abuse of

discretion.” Nicholls v. People, 2017 CO 71, ¶ 17. A trial court

abuses its discretion when its decision is manifestly arbitrary,

unreasonable, unfair, or is based on a misunderstanding or

misapplication of the law. People v. Thompson, 2017 COA 56, ¶ 91.

¶ 24 Evidence is relevant if it tends to make a fact of consequence

more or less probable. CRE 401. “Evidence which is not relevant is

not admissible.” CRE 402.

¶ 25 A trial court’s erroneous evidentiary ruling may amount to

constitutional error if it deprives the defendant of a meaningful

opportunity to present a complete defense. People v. Conyac, 2014

COA 8M, ¶ 93; see also Krutsinger v. People, 219 P.3d 1054, 1062

(Colo. 2009)(“[T]he standard or test for assessing whether a

6
defendant’s right to confront or present a defense has been violated

by evidentiary rulings is clearly dependent upon the extent to which

he was permitted to subject the prosecutor’s case to ‘meaningful

adversarial testing.’” (quoting Crane v. Kentucky, 476 U.S. 683, 691

(1986))). “A defendant’s right to present a defense is violated only

where the defendant was denied virtually his only means of

effectively testing significant prosecution evidence.” Conyac, ¶ 93.

C. Analysis

¶ 26 Defendant contends that the court erred when it excluded his

testimony about the Facebook post. He asserts that such testimony

was relevant to the issue of whether he acted in self-defense

because it made his reasonable belief in imminent danger more

probable than it would have been without the testimony. See § 18-

1-704(1), (2)(a), C.R.S. 2024 (a person is justified in using deadly

force upon another person to defend himself from that person if,

among other things, he has reasonable ground to believe that he is

in imminent danger of being killed or receiving great bodily injury).

He reasons that C.F. had told someone to shoot him on two

previous occasions, “so his belief in imminent danger would

7
obviously increase once he realizes [C.F.]’s people were putting out

a message to shoot him on sight.”

¶ 27 But defense counsel chose not to present evidence of gang

affiliation, which included evidence of who “C.F.’s people” were.

Without such evidence, defendant’s testimony about the Facebook

post would not logically relate to the issue of self-defense because it

did not make it more probable that defendant feared imminent

danger of being shot by A.F. at the food truck. Cf. People v.

Jimenez, 217 P.3d 841, 866 (Colo. App. 2008)(the usefulness of

testimony, for purposes of relevance, “hinges on whether there is a

logical relation between the proffered testimony and the factual

issues involved in the case.” (quoting People v. Ramirez, 155 P.3d

371, 379 (Colo. 2007))).

¶ 28 Indeed, defendant concedes as much by asserting in his

opening brief that his testimony about the Facebook post “made it

more probable that [he] believed that he was in danger at any time

and any place.” (Emphasis added.) This is insufficient to establish

relevance because, to conclude that defendant was legally

authorized to use deadly physical force upon another person, the

jurors needed to find that defendant (1) used that deadly physical

8
force “in order to defend himself . . . from what he reasonably

believe[d] to be the use or imminent use of unlawful physical force

by that other person,” and (2) “ha[d] a reasonable ground to believe,

and [did] believe, that he . . . [was] in imminent danger of being

killed [by] or of receiving great bodily injury” from that other person.

See § 18-1-704(1), (2)(a). Without evidence indicating that A.F. was

an intended recipient of the Facebook post, the post, by itself, did

not show that defendant (1) reasonably believed that A.F. would

use, or was about to use, unlawful physical force against him, or (2)

had reasonable grounds to believe, and did believe, that A.F. was

imminently about to kill him or inflict great bodily injury on him. In

other words, the gang evidence that counsel declined to introduce

would have linked the Facebook post and the reasonableness of

defendant’s alleged belief that A.F. was going to try to kill him.

¶ 29 We therefore conclude that the record supports the court’s

determination that evidence about the Facebook post was irrelevant

under CRE 401 and 402. As a result, the court’s decision to

exclude the evidence was not manifestly arbitrary, unreasonable,

unfair, or based on a misunderstanding or misapplication of the

law. See Thompson, ¶ 91.

9
¶ 30 Because the evidence of the Facebook post was not relevant, it

was not admissible. CRE 402 (“Evidence which is not relevant is

not admissible.”). Defendant therefore could not use it to support

his self-defense claim because he did not “have an unfettered right

to offer [evidence] that [was] incompetent, privileged, or otherwise

inadmissible under standard rules of evidence.” Taylor v. Illinois,

484 U.S. 400, 410 (1988).

¶ 31 We further conclude that the exclusion of the evidence

concerning the Facebook post did not deprive defendant of his

constitutional right to present a defense. That right “requires only

that the accused be permitted to introduce all relevant and

admissible evidence.” People v. Scearce, 87 P.3d 228, 233 (Colo.

App. 2003)(emphasis added); accord People v. Sims, 2019 COA 66,

¶ 52. “[T]he right to present a defense does not guarantee a

defendant a right to question witnesses in violation of the rules of

evidence . . . .” Scearce, 87 P.3d at 233.

III. Defendant’s Habitual Criminal Sentence

¶ 32 Defendant raises two issues concerning his habitual criminal

sentence. First, he asserts that the court did not conduct an

adequate abbreviated proportionality review. Second, he submits

10
that, applying Erlinger v. United States, 602 U.S. 821 (2024), a jury,

instead of the court, should have decided factual questions such as

whether defendant’s prior convictions had been separately brought

and tried, whether defendant was the person who had been

convicted in those prior cases, and whether the prior crimes were

“eligible” as predicate convictions. Because a jury did not make

those decisions, he continues, we should reverse his habitual

criminal sentence and remand the case to the court for sentencing

within the statutory range for second degree murder. We disagree

with both assertions.

A. Gross Disproportionality

1. Additional Background

¶ 33 The prosecution charged defendant as a habitual criminal

based on six prior felony convictions: aggravated robbery, three

theft convictions, possession of a weapon by a previous offender,

and providing false information to a pawnbroker. At the habitual

criminal evidentiary hearing, the prosecution presented evidence

that defendant had committed these six offenses; his aggravated

robbery conviction had involved the use of a deadly weapon; and, as

to one of his theft convictions, the prosecution had originally

11
charged him with burglary, assault, menacing, theft, and robbery

because the circumstances involved entering a residence and

strangling someone.

¶ 34 The court determined that the prosecution had proven each of

the prior felonies and adjudicated defendant a habitual criminal

under section 18-1.3-801(2)(a)(I), C.R.S. 2024. It imposed

sentences of ninety-six years for the second degree murder

conviction and twelve years for the illegal discharge of a firearm

conviction, to be served concurrently. See § 18-1.3-801(2)(a)(I)(A);

§ 18-1.3-401(1)(a)(V.5)(A), C.R.S. 2024.

¶ 35 The court then conducted an abbreviated proportionality

review of defendant’s sentence, finding that the second degree

murder conviction, the illegal discharge of a firearm conviction, and

the aggravated robbery conviction were all grave and serious. The

court said:

Given that this is a second[]degree murder
case, given the history that’s been described
today during the hearing, including a prior
aggravated robbery offense, also three
convictions for felony theft, also a conviction
for possession of a weapon by a previous
offender, the [c]ourt does not find that the
sentence of [ninety-six] years is grossly

12
disproportionate. And, therefore, the [c]ourt
will decline to reduce that sentence.

2. Standard of Review and Applicable Law

¶ 36 We review de novo whether a sentence is grossly

disproportionate in violation of the constitutional protection against

cruel and unusual punishment. Wells-Yates v. People, 2019 CO

90M, ¶ 35.

¶ 37 In evaluating whether a sentence is grossly disproportionate, a

court must conduct an abbreviated proportionality review by

comparing the gravity or seriousness of the offense and the

harshness of the penalty. Id. at ¶ 7. In the habitual criminal

context, “[a]s to each sentence, the inquiry is whether the

corresponding triggering offense and the predicate offenses,

considered together, are so lacking in gravity or seriousness as to

suggest that the sentence is grossly disproportionate.” Id. at ¶ 24.

¶ 38 For crimes that have not been designated as per se grave and

serious offenses, the court considers “the harm caused or

threatened to the victim or society” and “the culpability of the

offender” to determine whether a crime is grave and serious. Id. at

¶ 12 (quoting Solem v. Helm, 463 U.S. 277, 292 (1983)). “This

13
analysis generally requires a consideration of the facts and

circumstances underlying the defendant’s conviction.” People v.

Caime, 2021 COA 134, ¶ 43. The court should also consider “any

relevant legislative amendments enacted after the dates of those

offenses, even if the amendments do not apply retroactively.”

People v. McRae, 2019 CO 91, ¶ 13.

¶ 39 If the abbreviated proportionality review “does not give rise to

an inference of gross disproportionality, the proportionality

challenge fails and the sentence must be upheld.” Wells-Yates, ¶ 8.

3. Analysis

¶ 40 Defendant concedes that the court properly found his second

degree murder conviction, his illegal discharge of a firearm

conviction, and his aggravated robbery conviction were all grave

and serious. But he asserts that we must remand for a new

abbreviated proportionality review because the court did not

conduct a “refined analysis” of his remaining predicate offenses —

namely, the three theft convictions, the possession of a weapon by a

previous offender conviction, and the providing false information to

a pawnbroker conviction. As we understand his argument, he

submits that, if the court had considered the underlying facts of

14
these predicate offenses and any relevant legislative amendments to

the statutes upon which they were based, it would have found that

they are not grave and serious.

¶ 41 We conclude, for the following reasons, that (1) the court was

not required to do what defendant says it should have done, and

(2) the record supports the court’s determination that defendant’s

habitual criminal sentence was not grossly disproportionate. See

id. at ¶ 35.

¶ 42 Rather than deciding that each predicate offense was grave

and serious, the court was only required to consider “whether each

triggering offense and the predicate offenses, in combination, are so

lacking in gravity or seriousness as to give rise to an inference that

the sentence imposed on that particular triggering offense is grossly

disproportionate.” Id. at ¶ 38 (emphasis added); see also People v.

Strock, 252 P.3d 1148, 1158 (Colo. App. 2010)(“[I]t is not necessary

for each offense to be grave and serious for a court to conclude that

the offenses taken together are grave and serious.”). The court

complied with this requirement when, as we have quoted above, it

considered all the offenses together and concluded that, in

combination, they were sufficiently grave and serious.

15
¶ 43 Even if we were to assume that the theft convictions, the

possession of a weapon conviction, and the false information

conviction were not grave and serious, the court had determined

that three other offenses — the second degree murder conviction

and illegal discharge of a weapon conviction in this case, and the

aggravated robbery conviction — were grave and serious. This was

enough to avoid an inference of gross disproportionality. See Rutter

v. People, 2015 CO 71, ¶¶ 24-25 (upholding the defendant’s

habitual sentence even though only the triggering offense was grave

and serious); People v. Cooper, 205 P.3d 475, 481 (Colo. App.

2008)(upholding the defendant’s habitual sentence even though

neither the triggering nor the predicate offenses were individually

grave and serious), abrogated on other grounds by Scott v. People,

2017 CO 16. Accordingly, we reject defendant’s assertion that we

must remand this case for a new abbreviated proportionality review.

B. Findings During the Habitual Criminal Proceeding

1. Additional Background

¶ 44 Under section 18-1.3-803(1) and (4), C.R.S. 2024, trial courts

used to hold post-conviction evidentiary hearings to decide whether

defendants would be sentenced as habitual criminals. (The

16
legislature recently amended that statute, and juries will make that

decision from now on. 2025 Colo. Legis. Serv. Ch. 25-189 (West).)

¶ 45 At the habitual criminal evidentiary hearing in this case, the

court asked whether the defense had any preliminary issues.

Defense counsel said, “[W]e object — we think the — this trial needs

to go to a jury under the United States and Colorado Constitutions.”

The prosecution responded that, under Apprendi v. New Jersey, 530

U.S. 466 (2000), defendant was not entitled to a jury on the

habitual criminal counts. Defense counsel replied,

[O]ur response is Apprendi says that any sort
of evidence that enhances a sentence needs to
go to the jury. This would be one of those
pieces of evidence, the prior habituals.

I understand the state of the law. I’m doing it
primarily for appellate purposes. And so as
long as our argument is preserved, I don’t have
any further record. But that’s where we’re —
that’s where we stand today.

¶ 46 The court rejected defense counsel’s argument, reasoning that

Colorado law does not require habitual criminal counts to be tried

to a jury. It then proceeded with the evidentiary hearing, during

which the prosecution presented evidence of defendant’s six

previous convictions.

17
¶ 47 At the end of the hearing, the court found that the prosecution

had met its burden of proving beyond a reasonable doubt that

defendant had been previously convicted of the six prior felonies,

that he was the person who had been convicted in those cases, and

that his prior convictions arose out of separate and distinct criminal

episodes. The court then adjudicated him to be a habitual criminal,

and it imposed the sentence we described above.

2. Standard of Review and Preservation

¶ 48 We review constitutional challenges to a trial court’s

sentencing determinations de novo. Villanueva v. People, 199 P.3d

1228, 1231 (Colo. 2008).

¶ 49 As a threshold matter, the prosecution submits that we should

not address defendant’s challenge to his habitual criminal sentence

because he did not raise it on appeal until his reply brief. While

appellate courts generally do not consider arguments raised for the

first time in a reply brief, see People v. Owens, 2024 CO 10,

¶¶ 90-91, we will in this case because Erlinger, the United States

Supreme Court’s opinion on which defendant’s challenge relies, was

not announced until after defendant filed his opening brief. See

18
Griffith v. Kentucky, 479 U.S. 314, 328 (1987)(applying new rule of

criminal law to “all cases . . . pending on direct review”).

3. Analysis

a. Erlinger

¶ 50 Erlinger dealt with a sentencing provision of the federal Armed

Career Criminal Act. It enhanced the sentence of a defendant

convicted of being a felon possessing a firearm if the defendant had

three or more qualifying prior convictions for offenses committed on

separate occasions. 602 U.S. at 835. The United States Supreme

Court held that the Fifth and Sixth Amendments required a jury,

rather than a judge, to decide, unanimously and beyond a

reasonable doubt, whether the prior convictions had indeed

occurred on separate occasions.

¶ 51 In reaching this holding, the Court reiterated that the prior

criminality exception under Almendarez-Torres v. United States, 523

U.S. 224 (1998), “persists as a ‘narrow exception’ permitting judges

to find only ‘the fact of a prior conviction.’” Erlinger, 602 U.S. at

823 (quoting Alleyne v. United States, 570 U.S. 99, 111 n.1 (2013)).

The Court reaffirmed its prior holding that a sentencing judge

“‘cannot go beyond identifying the crime of conviction to explore the

19
manner in which the defendant committed that offense. . . . He can

do no more, consistent with the Sixth Amendment, than determine

what crime, with what elements, the defendant was convicted of.’”

Id. at 840 n.3 (quoting Mathis v. United States, 579 U.S. 500, 511-

512 (2016)).

¶ 52 Defendant asserts that, under Erlinger, a jury, rather than the

court, should have decided whether his prior convictions had been

separately brought and tried, whether he was the person who had

been convicted of those prior convictions, and whether his prior

offenses were “eligible” as predicate convictions, for purposes of

sentencing him as a habitual criminal. He adds that, because of

this alleged error, we must remand the case to the court for

sentencing within the statutory range for second degree murder

because empaneling a new jury to retry his habitual criminal

counts would violate the Constitution’s Double Jeopardy Clause.

¶ 53 We will assume, without deciding, that Erlinger controls our

decision and that the jury, rather than the court, should have made

the three findings that defendant claims it should have made.

Doing so, we nonetheless conclude that (1) the putative error was

not structural; (2) we will apply plain error review; (3) the putative

20
error was not obvious; and, (4) even if it were preserved, there was

sufficient evidence in the record to show that the putative error was

harmless beyond a reasonable doubt. As a result of these

conclusions, we need not address defendant’s contention, based on

the Double Jeopardy Clause, that we must remand the case to the

court for resentencing within the statutory range for second degree

murder.

b. No Structural Error

¶ 54 Contrary to defendant’s assertion, any Erlinger error in this

case was not structural, and is not, therefore, subject to automatic

reversal. See Washington v. Recuenco, 548 U.S. 212, 222

(2006)(“Failure to submit a sentencing factor to the jury, like failure

to submit an element to the jury, is not structural error.”); People v.

Crabtree, 2024 CO 40M, ¶¶ 31-35 (where an element of the

substantive crime was proven to a judge, rather than a jury, the

error was not structural).

c. Plain Error Review

i. Preservation

¶ 55 Defendant did not preserve the contentions that he now

makes.

21
¶ 56 “Raising the ‘sum and substance’ of an argument is sufficient

to preserve it,” People v. Cooley, 2020 COA 101, ¶ 24, and “[a]n

objection is sufficiently specific when it draws the court’s attention

to the asserted error,” id. Although we do not require talismanic

language to preserve arguments, “[p]arties must make objections

that are specific enough to draw the trial court’s attention to the

asserted error.” Martinez v. People, 2015 CO 16, ¶ 14. Parties must

give the trial court an opportunity to make findings of fact and to

reach conclusions of law. Id. “An adequate objection allows the

trial court a meaningful chance to prevent or correct the error and

creates a record for appellate review.” Id.

¶ 57 Although defense counsel made a general objection that “this

trial needs to go to a jury under the United States and Colorado

Constitutions,” counsel did not say that the jury should decide

specific factual questions such as whether defendant’s prior

convictions had been separately brought and tried, whether he was

the person who had been convicted in those prior cases, and

whether the prior crimes were eligible as predicate convictions. As

a result, counsel’s general objection did not alert the court to what

he now asserts are reasons to reverse defendant’s sentence so that

22
the court could find facts and reach legal conclusions. Rather, the

court was not given a chance to prevent or to correct any error.

¶ 58 We will therefore review defendant’s assertions for plain error.

See Hagos v. People, 2012 CO 63, ¶ 14.

ii. Obviousness

¶ 59 To warrant reversal under plain error review, the court’s error

must, among other things, be obvious. Id. To be obvious “an error

must contravene a clear statutory command, a well-settled legal

principle, or established Colorado case law.” Crabtree, ¶ 42. And

we must decide whether the error was obvious at the time it

occurred in the trial court, not at the time of the appeal. Id. at

¶¶ 6-8.

¶ 60 The putative error in this case was not obvious because, when

the court denied defense counsel’s request for a jury to resolve the

habitual criminal counts, it followed existing Colorado law. See

People v. Huber, 139 P.3d 628, 633 (Colo. 2006); Lopez v. People,

113 P.3d 713, 723 (Colo. 2005); People v. Session, 2020 COA 158,

¶ 26. And, because it followed binding Colorado precedent, its

putative error was not plain. See People v. Tun, 2021 COA 34, ¶ 48.

23
iii. Constitutional Harmlessness

¶ 61 What if we assume that defendant’s assertions had been

preserved? We will review the putative error for constitutional

harmless error. See Hagos, ¶ 11.

¶ 62 But, doing so, we will not reverse defendant’s sentence

because we conclude that the Erlinger error was harmless beyond a

reasonable doubt. The record shows that any rational jury would

have found, beyond a reasonable doubt, that at least four of

defendant’s prior convictions had been separately brought and

tried, that he was the person who had been convicted in those

cases, and that his prior offenses were eligible as predicate

convictions. See United States v. Butler, 122 F.4th 584, 589 (5th

Cir. 2024)(an Erlinger error is harmless if, “[a]fter a careful review of

the whole record . . . any rational petit jury, when presented with a

proper jury instruction, would have found beyond a reasonable

doubt” that the defendant’s prior offenses occurred on different

occasions).

¶ 63 The record reflects that, before the crimes in this case,

defendant pled guilty to six felonies: aggravated robbery in

Tennessee on September 18, 2006; two separately filed cases

24
alleging counts of theft on November 5, 2010; providing false

information to a pawnbroker on September 28, 2012; theft on

October 2, 2012; and possession of a weapon by a previous offender

on March 4, 2016.

¶ 64 The record contains evidence showing that at least four of the

six felonies were separately brought and tried. See § 18-1.3-

801(2)(a)(I) (“[E]very person convicted . . . of any felony, who has

been three times previously convicted . . . of a felony . . . shall be

adjudged an habitual criminal . . . .”). Defendant asserts that his

three theft convictions were not separately brought and tried

because they arose out of incidents occurring within a single week

and that he pled guilty to two of them on the same day. But, even if

defendant’s theft convictions had arisen out of a single criminal

episode, defendant does not dispute that four of his prior

convictions — aggravated robbery, the “package” of the three theft

convictions, possession of a weapon by a previous offender, and

providing false information to a pawnbroker — arose out of separate

and distinct criminal episodes and were separately brought and

tried, as required under the habitual sentencing statute, see § 18-

1.3-801(2)(a)(I)(A).

25
¶ 65 As proof that there were at least four felonies that were

separately brought and tried, the record contains charging

documents for each conviction. The charging documents listed the

dates of the offenses, and they showed that the felonies had arisen

out of separate criminal incidents. “Charges are separately brought

and tried where they are ‘in separate informations, with separate

docket numbers, arising out of separate criminal incidents.’” People

v. Williams, 2019 COA 32, ¶ 38 (quoting Gimmy v. People, 645 P.2d

262, 267 (Colo. 1982)). “A predicate conviction can result from

either a conviction following trial or a guilty plea.” Id.

¶ 66 The prosecution presented evidence proving that defendant

was the same person as the person convicted in each of the prior

felonies. For example, the prosecution’s proof

• compared defendant’s fingerprints taken at the time of

his arrest in this case with fingerprints taken from his

arrests in the six felony cases listed above and

determined that all the prints came from the same

person;

• contained photographs taken of defendant at the time

of his arrests in all the cases; and

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• listed the same name, birthdate, Social Security

Number, and place of birth in all the cases.

¶ 67 On top of the factors we have already discussed, a conviction

must be a felony to be eligible to enhance a defendant’s sentence

under section 18-1.3-801(2)(a)(I). And, if the conviction occurred in

another state, such as defendant’s Tennessee conviction for

aggravated robbery in this case, it must be for a crime that would

be a felony in Colorado. Id. Documents in the record show that all

the Colorado predicate convictions were for felonies and that the

Tennessee aggravated robbery conviction would have been a felony

in Colorado.

¶ 68 Last, defendant does not assert that any of the felonies are no

longer eligible to support a habitual criminal sentence. See, e.g.,

Thomas v. People, 2021 CO 84, ¶ 60 (based on a statutory exception

in the habitual criminal statute, level 4 drug felonies are not

“predicate offenses for habitual criminal purposes”).

¶ 69 The judgment of conviction and the sentence are affirmed.

JUDGE KUHN and JUDGE MOULTRIE concur.

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