Peo v. Redd

22CA1031 Peo v Redd 09-11-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1031
Jefferson County District Court No. 20CR4050
Honorable Laura A. Tighe, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Clenon Shernar Redd,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE KUHN
Moultrie and Martinez*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 11, 2025

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Ainsley Bochniak, 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. 2025.
¶1 Defendant, Clenon Shernar Redd, appeals the judgment of

conviction entered after a jury found him guilty of first degree felony

murder, four counts of aggravated robbery, tampering with physical

evidence, and two crime of violence sentence enhancers. We affirm.

I. Background

¶2 We glean the following factual background from the evidence

that the jury heard at trial.

¶3 One day in December 2020, C.W. (the victim) approached

Amelia Perea near a motel where the victim had been staying. They

engaged in a conversation during which the victim, who was

homeless, asked for help retrieving her car from her boyfriend.

Because Perea didn’t have a car, she reached out to Redd, who

agreed to give her and the victim a ride in exchange for gas money.

¶4 Redd picked up the two women at the motel but didn’t take

them to the victim’s car. Instead, after telling his passengers that

something was wrong with his SUV, Redd pulled over to a parking

lot behind a Safeway grocery store. What happened next was

captured on a surveillance video from a nearby apartment complex.

It showed the following:

1
• Redd getting out of the SUV, lifting the hood, and making a

phone call;

• Redd standing at the front of his SUV and looking at a

corner where the grocery store’s and the apartment

complex’s parking lots meet;

• Redd opening the front driver’s and passenger’s side doors

and popping the trunk;

• a man, later identified as Donald Robinson, climbing over a

fence in the corner of the parking lots and approaching the

SUV;

• Robinson changing course and walking past the vehicle

toward the grocery store after seeing someone in the

apartment complex’s parking lot;

• Redd pacing back and forth along the passenger’s side of

his SUV;

• Robinson reappearing in the surveillance footage, walking

close to the SUV, and stopping near the spot where he had

climbed over the fence;

• Redd again walking in front of the SUV’s open hood and

looking in Robinson’s direction;

2
• Redd slowly leaning inside the open front driver’s side door;

• Robinson approaching the SUV from the rear driver’s side,

seemingly cocking a gun, and joining Redd;

• the two men engaging in a struggle with one of the

passengers in the vehicle;

• approximately ten seconds later, Robinson running away

from the SUV with an item in his hands;

• Perea — who was sitting in the front passenger’s seat —

getting out of the SUV, walking around the vehicle to the

front driver’s side area, briefly looking inside the vehicle,

and hurriedly walking away from the scene; and

• Redd pulling the victim out of the SUV, laying her on the

ground, and then driving away at a high rate of speed.

¶5 During the incident, the victim was robbed of her purse and

was fatally shot once in the chest. Robinson later admitted to the

shooting. The prosecution charged Redd with first degree felony

murder predicated on robbery; five counts of aggravated robbery,

premised on alternative theories of how Redd committed the offense

(Counts 2 through 6); tampering with physical evidence; and two

counts of crime of violence sentence enhancers based on allegations

3
that Redd “used, or possessed and threatened the use of, a deadly

weapon,” and caused the victim’s death in connection with the

crimes.1 See § 18-3-102(1)(b), C.R.S. 2020;2 § 18-4-302(1)(a)-(c),

C.R.S. 2025; § 18-8-610(1)(a), C.R.S. 2025; § 18-1.3-406(1)(a),

(2)(a)(I)(A)-(B), C.R.S. 2025.

¶6 In March 2022, the jury found Redd guilty of all charges

except for Count 2, aggravated robbery involving the use of a deadly

weapon with the intent to kill, maim, or wound the person being

robbed. See § 18-4-302(1)(a). The trial court sentenced Redd to the

custody of the Department of Corrections for life without the

possibility of parole (LWOP) on the first degree felony murder count

and a consecutive three-year term on the tampering with physical

evidence count. The court then sentenced Redd on each of the four

1 The prosecution also charged Redd with tampering with a

deceased human body. See § 18-8-610.5, C.R.S. 2025. But after
conducting a preliminary hearing, the trial court dismissed this
charge because the evidence showed that the victim was still alive
when Redd removed her from his SUV.

2 Throughout this opinion, we cite the version of the felony murder

statute in effect at the time of Redd’s offense. Felony murder has
since been reclassified as second degree murder. See Ch. 58, sec.
2, § 18-3-103(1)(b), 2021 Colo. Sess. Laws 236.

4
aggravated robbery convictions and merged them all into his

conviction for first degree felony murder.

II. Analysis

¶7 On appeal, Redd contends that his judgment of conviction

can’t stand because (1) section 18-3-102(1)(b), the felony murder

statute under which he was convicted, violates his equal protection

rights under the United States and Colorado Constitutions; (2) the

evidence was insufficient to sustain his convictions for first degree

felony murder and aggravated robbery; and (3) his sentence to

LWOP is unconstitutionally disproportionate. We consider each of

these contentions in turn.

A. The Constitutionality of Section 18-3-102(1)(b)

¶8 Redd first contends that the first degree felony murder statute

is unconstitutional because it violates his right to equal protection.

We disagree.

1. Equal Protection Principles and Standard of Review

¶9 The Equal Protection Clause of the Fourteenth Amendment

provides that no state shall deny to any person the “equal

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

all persons who are similarly situated must receive like treatment,

5
People v. Lee, 2020 CO 81, ¶ 12. Although the Colorado

Constitution doesn’t contain equivalent language, the due process

clause of the state constitution implies a similar guarantee. Id.; see

Colo. Const. art. II, § 25. In the criminal law context, the state

equal protection guarantee is violated “where two criminal statutes

proscribe identical conduct, yet one punishes that conduct more

harshly.” Dean v. People, 2016 CO 14, ¶ 14.

¶ 10 When, as in this case, an equal protection claim alleges that a

statute is unconstitutional because it treats two groups of people

differently, the threshold inquiry is whether those two groups are

similarly situated. People v. Castillo, 2022 COA 20, ¶ 18. “Unless

they are similarly situated, the equal protection guarantee is not

implicated.” Id. (quoting Buckley Powder Co. v. State, 70 P.3d 547,

562 (Colo. App. 2002)).

¶ 11 In reviewing an equal protection challenge, we must employ

the appropriate level of judicial scrutiny. Dean, ¶ 12. Rational

basis applies when the challenged law does not impact a

traditionally suspect class or implicate a fundamental right. Id.

Redd does not allege disparate treatment based on a suspect class,

and an adult has no fundamental liberty interest in freedom from

6
incarceration, Castillo, ¶ 20, so rational basis applies. “Under

rational basis review, the challenging party 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.”

Dean, ¶ 12.

¶ 12 We review de novo the constitutionality of statutes. Id. at ¶ 8.

Statutes are presumed to be constitutional, id., and declaring a

statute unconstitutional is one of the gravest duties impressed

upon the courts, Woo v. El Paso Cnty. Sheriff’s Off., 2022 CO 56,

¶ 20. Consequently, for a defendant to succeed with an equal

protection challenge to a statute, the defendant must establish that

the statute is unconstitutional beyond a reasonable doubt. Dean,

¶ 8.

¶ 13 We review constitutional and nonconstitutional errors that

were not preserved by objection for plain error. See Hagos v.

People, 2012 CO 63, ¶ 14. To qualify as plain error, an error must

be obvious and substantial. Id. We reverse only when the error so

undermined the fundamental fairness of the trial that it casts

serious doubt on the reliability of the judgment of conviction. Id.

7
An error is obvious if, at the time of trial, the action challenged on

appeal contravened a clear statutory command, a well-settled legal

principle, or Colorado case law. See People v. Crabtree, 2024 CO

40M, ¶¶ 42, 53.

2. Redd’s Arguments

¶ 14 As relevant here, section 18-3-102(1)(b) provides that a

defendant, acting either alone or with one or more persons,

commits felony murder if the defendant commits robbery and “in

the course of or in furtherance of the crime . . . , or of immediate

flight therefrom, the death of a person, other than one of the

participants, is caused by anyone.” At the time Redd committed his

offense, felony murder was a class 1 felony, see § 18-3-102(3), that

carried a mandatory LWOP sentence, see § 18-1.3-401(1)(a)(V.5)(A),

C.R.S. 2025. The General Assembly repealed section 18-3-102(1)(b)

in 2021, and reclassified felony murder from first degree murder to

second degree murder, a class 2 felony punishable by a term of

sixteen to forty-eight years in prison. See Ch. 58, sec. 2,

§ 18-3-103(1)(b), 2021 Colo. Sess. Laws 236;

§ 18-1.3-401(1)(a)(V.5)(A); § 18-1.3-406(1)(a), (2)(a). The

reclassification took effect on September 15, 2021, and applies only

8
to offenses committed on or after that date. See Sec. 6, 2021 Colo.

Sess. Laws at 238.

¶ 15 Against the backdrop of this statutory amendment, Redd

challenges the constitutionality of section 18-3-102(1)(b). Redd

contends that his conviction under the first degree felony murder

statute violates his right to equal protection because (1) he and

Robinson “were similarly situated” because they were charged with

the same offenses in connection with the incident, but Robinson

was only convicted of second degree murder and sentenced to

forty-three years in prison while Redd received LWOP; (2) section

18-3-102(1)(b) “has no rational relationship to a legitimate

legislative purpose”; and (3) the statutory amendment provides for a

lesser punishment of felony murders committed on or after

September 15, 2021, but does not offer a reasonable distinction for

9
excluding from its application those offenders who had committed

the crime before that date.3

3. Preservation

¶ 16 Initially, we disagree with Redd’s position that he preserved

his equal protection arguments in the trial court. In support, Redd

directs us to part of his closing argument where he asserted that

despite Robinson having “confessed to struggling with [the victim]”

and shooting her to death, Robinson “got [forty-three] years in [the

Department of Corrections] for second degree murder” while Redd

was facing first degree murder charges. Redd argues that because

he appeared pro se at trial and was only appointed advisory

3 It is somewhat unclear from Redd’s briefing if he argues that

section 18-3-102(1)(b), C.R.S. 2020, is unconstitutional because it
doesn’t require a culpable mental state as to the resulting homicide,
yet it imposes a greater punishment than the second degree murder
statute that does prescribe a culpable mental state. To the extent
Redd advances this argument, we disagree. See People v. Morgan,
637 P.2d 338, 345 (Colo. 1981) (rejecting the defendant’s claim that
the first degree felony murder statute violated equal protection
principles because, unlike criminally negligent homicide, the
statute didn’t include a culpable mental state yet imposed a greater
punishment); People v. Jones, 990 P.2d 1098, 1105 (Colo. App.
1999) (reaffirming the holding of Morgan and noting that “the fact
that felony murder does not require proof of a mental state
independent of the mental state associated with the underlying
felony does not violate equal protection, even though other less
serious forms of homicide do require proof of a mental state”).

10
counsel, his statements should be broadly construed in support of

preservation.

¶ 17 Even if we were to construe these comments broadly, they

don’t support preservation of this issue. First, Redd’s general

remarks about Robinson’s conviction and the length of his

punishment were made to the jury. Redd didn’t make any

argument to the trial court or seek any relief. To the contrary, the

record shows that the prosecutor repeatedly objected to Redd’s

references to Robinson’s case because Redd was arguing facts not

in evidence. As well, the trial court repeatedly told Redd to stop his

improper argument and eventually removed him.

¶ 18 Second, even if we construe the comments as being directed at

the trial court, Redd didn’t present to the court the arguments he

raises in this appeal: He and Robinson were treated disparately

even though they were similarly situated based on their charges,

and Redd’s conviction under the first degree felony murder statute

violates his right to equal protection because that statute isn’t

11
rationally related to a legitimate legislative purpose.4 Instead, Redd

argued that it was unfair that Robinson was convicted of second

degree, rather than first degree, murder despite confessing to

shooting the victim.

¶ 19 Under these circumstances, we conclude that Redd didn’t give

the trial court a meaningful opportunity to address the equal

protection arguments that he pursues in this appeal. See People v.

Anderson, 2020 COA 56, ¶ 11 (noting that to properly preserve an

issue for appeal, a party’s request must be specific enough to draw

the trial court’s attention to the asserted error and provide the court

with a meaningful opportunity to focus on the issue). Accordingly,

we review these arguments for plain error. See Hagos, ¶ 14.

4 Likewise, Redd failed to raise this specific argument in his “Motion

to Strike the Sentencing Provision of Life Without Parole and Apply
the Current Sentencing Provisions Regarding Felony Murder,”
which he filed roughly one month after the trial court had imposed
his sentence. Rather, he merely asserted that his felony murder
conviction and LWOP sentence implicated equal protection
concerns because the legislature reclassified that offense as second
degree murder. And in his appellate briefing, Redd doesn’t argue
that this assertion alerted the court to the issues that he raises in
this appeal. Under these circumstances, the post-sentencing
motion doesn’t support preservation of his equal protection claims.

12
4. Redd’s As-Applied Equal Protection Claim Fails

¶ 20 Constitutional arguments generally must be explicitly raised in

the trial court not only to alert the court to the challenger’s

contentions but also to allow the court to ensure an adequate

factual record on the issue. People v. Allman, 2012 COA 212, ¶ 13.

That is particularly true when a party asserts on appeal that a

statute is unconstitutional as applied to their conduct. People v.

Veren, 140 P.3d 131, 140 (Colo. App. 2005). If a party fails to

preserve their challenge to the constitutionality of a statute in the

trial court, then the court has not had the opportunity to make

factual findings regarding that claim for our review. See Allman,

¶¶ 15-17.

¶ 21 Here, Redd contends that because he and Robinson were

similarly situated in connection to the incident, the trial court’s

application of the first degree felony murder statute to his conduct,

as opposed to the second degree murder statute he alleges was

applied in Robinson’s case, constituted a violation of his right to

equal protection of the laws. But because Redd didn’t raise this

as-applied constitutional challenge in the trial court, the court

didn’t make factual findings regarding the nature and

13
circumstances of Robinson’s conviction and sentence, any plea

bargain or basis for the conviction, or any other findings of fact that

would facilitate our review. Accordingly, we lack a developed

factual record to review this argument. See id.; see also Veren, 140

P.3d at 140 (For an appellate court to entertain an unpreserved

as-applied constitutional challenge, “it is imperative that the trial

court make some factual record that indicates what causes the

statute to be unconstitutional as applied.”); People v. Patrick, 772

P.2d 98, 100 (Colo. 1989) (“We again stress that we cannot

determine the as-applied constitutionality of a statute based upon

an incomplete record of the facts.”).

¶ 22 Regardless, Redd’s argument that his first degree felony

murder conviction is unconstitutional on equal protection grounds

because he received a harsher punishment than his codefendant

fails under plain error review. He directs us to no Colorado

appellate opinion — and we’re aware of none — holding that for

purposes of an equal protection claim, a defendant and codefendant

are similarly situated merely because they are charged with the

same crime in connection with the same incident. To the contrary,

cases addressing selective prosecution claims provide that disparate

14
treatment of defendants in relation to the same charge, standing

alone, is insufficient to establish an equal protection violation. See

People in Interest of T.B., 2016 COA 151M, ¶¶ 66-67 (stating that a

decision to prosecute must not be based on an unjustifiable

standard such as race, religion, or other arbitrary classification,

and the mere “fact that some people escaped prosecution under a

statute is not a denial of equal protection”), aff’d, 2019 CO 53; In re

United States, 397 F.3d 274, 285 (5th Cir. 2005) (“[S]haring a

charge alone does not make defendants ‘similarly situated’ for

purposes of a selective prosecution claim.”). And importantly,

Redd’s admission that Robinson was convicted of second degree

murder after confessing to killing the victim supports an inference

that they were not similarly situated because Robinson accepted

accountability for his crimes. See State v. Moore, 2014-Ohio-5135,

at ¶ 51 n.11 (Ct. App.) (Gallagher, J., concurring in judgment only

in part and dissenting in part) (noting that a defendant wasn’t

similarly situated to his codefendant for the purposes of sentencing,

in part because the codefendant accepted responsibility for his

actions by pleading guilty); State v. Cottingham, No. 2014AP648-CR,

2015 WL 13134097, at *2 (Wis. Ct. App. Apr. 1, 2015) (summary

15
disposition order) (affirming a postconviction court’s decision that a

defendant’s sentence, which was harsher than the sentence his

codefendant received, didn’t implicate an equal protection violation

because, among other things, the codefendant accepted

responsibility by pleading guilty to the charged offense).

¶ 23 When Colorado statutory law or case law would not have

alerted the trial judge to an unobjected-to error, the error can’t be

deemed obvious. Crabtree, ¶ 42; see also People v. Taylor, 2021

COA 133, ¶ 15 (“Statutes are entitled to a presumption of

constitutionality, rooted in the doctrine of separation of powers,

through which ‘the judiciary respects the roles of the legislature and

the executive in the enactment of laws.’” (quoting Rocky Mountain

Gun Owners v. Polis, 2020 CO 66, ¶ 30)). And because any

factually dependent as-applied constitutional error that Redd raises

in this appeal wasn’t obvious at the time of his trial, the error

wasn’t plain. See Crabtree, ¶¶ 41-43 (noting that an error is plain

only if it’s both obvious and substantial).

5. The Remaining Equal Protection Arguments

¶ 24 As noted above, Redd asserts two additional arguments in

challenging the constitutionality of the first degree felony murder

16
statute. First, he contends that section 18-3-102(1)(b) and its

mandatory LWOP sentence don’t further the state’s legitimate

interests in preventing and deterring crime, punishing criminal

conduct, and rehabilitating defendants. The Colorado Supreme

Court has recently held that an LWOP sentence for first degree

felony murder isn’t categorically unconstitutional, in part because

that sentence serves the penological goals of retribution, deterrence,

and incapacitation. See Sellers v. People, 2024 CO 64, ¶¶ 34, 36.5

In doing so, the court observed that the fact that an LWOP sentence

imposed under section 18-3-102(1)(b) perhaps doesn’t promote

every legitimate purpose of criminal legislation, such as

rehabilitation of a defendant, doesn’t automatically mean that the

sentence is unconstitutional. Id. at ¶ 35. Consequently, we

disagree with Redd’s assertion that the statute is unconstitutional

because it isn’t reasonably related to a legitimate state interest.

¶ 25 And we also disagree with Redd’s final equal protection

argument that the General Assembly’s decision to apply the

amendments to the felony murder statute prospectively — i.e., the

5 Sellers v. People, 2024 CO 64, was announced several months

after Redd filed his opening brief in this case.

17
amendments only apply to offenses committed on or after the

effective date of September 15, 2021 — constitutes an unreasonable

classification of offenders in violation of equal protection of the

laws. See People v. Montoya, 647 P.2d 1203, 1205-06 (Colo. 1982)

(fixing punishment based on the date a crime is committed is

reasonably related to a legitimate government interest in

maintaining finality of judgments).

¶ 26 For all the reasons stated above, then, we conclude that

Redd’s conviction for first degree felony murder under section

18-3-102(1)(b) isn’t constitutionally infirm on equal protection

grounds.

B. Sufficiency of the Evidence

¶ 27 Redd next contends that the prosecution failed to present

sufficient evidence in support of his convictions for first degree

felony murder and aggravated robbery. We discern no error.

1. Standard of Review and Applicable Law

¶ 28 “[W]e review the record de novo to determine whether the

evidence before the jury was sufficient both in quantity and quality

to sustain the convictions.” Dempsey v. People, 117 P.3d 800, 807

(Colo. 2005).

18
¶ 29 In doing so, we employ the substantial evidence test and ask

whether the evidence — viewed as a whole and in the light most

favorable to the prosecution — is substantial and sufficient to

support a conclusion by a reasonable mind that the defendant is

guilty of the charge beyond a reasonable doubt. Gorostieta v.

People, 2022 CO 41, ¶ 16. “A verdict cannot rest on guessing,

speculation, conjecture, or a mere modicum of relevant evidence.”

McBride v. People, 2022 CO 30, ¶ 38. However, “[a]n appellate court

may not serve as a thirteenth juror and consider whether it might

have reached a different conclusion than the jury.” People v.

Harrison, 2020 CO 57, ¶ 33. Rather, we “must ‘give the prosecution

the benefit of every reasonable inference which might be fairly

drawn from the evidence.’” Gorostieta, ¶ 17 (quoting

Harrison, ¶ 32).

¶ 30 “It is the fact finder’s role to weigh the credibility of witnesses,

to determine the weight to give all parts of the evidence, and to

resolve conflicts, inconsistencies, and disputes in the evidence.”

People v. Poe, 2012 COA 166, ¶ 14. Consequently, determinations

on issues of credibility and weight will not be disturbed on appeal

“unless the evidence is legally insufficient to support a finding of

19
guilt beyond a reasonable doubt.” People v. Padilla, 113 P.3d 1260,

1261 (Colo. App. 2005).

2. Sufficient Evidence Supported Redd’s
Conviction for First Degree Felony Murder

¶ 31 As an initial matter, the People contend that we should only

consider whether there was sufficient evidence in support of Redd’s

conviction for first degree felony murder. The People argue, and we

agree, that if we conclude that the evidence was sufficient as to that

conviction, we need not address Redd’s sufficiency challenge to his

aggravated robbery convictions because the trial court properly

merged those convictions into his felony murder conviction. See

People v. Bartowsheski, 661 P.2d 235, 245-46 (Colo. 1983) (holding

that because robbery is a lesser included offense of felony murder

predicated on the robbery victim’s death, a trial court may not enter

convictions for both felony murder and the robbery).

¶ 32 Again, section 18-3-102(1)(b) provides that a defendant like

Redd commits felony murder if, acting alone or with one or more

persons, he commits robbery and, in the course of the crime, in the

furtherance of it, or in the immediate flight therefrom, a person

other than a participant in the crime dies. In turn, the defendant

20
commits robbery if he “knowingly takes anything of value from the

person or presence of another by the use of force, threats, or

intimidation.” § 18-4-301(1), C.R.S. 2025.

¶ 33 Here, the prosecution presented sufficient evidence for a

reasonable juror to find that Redd committed a robbery, and in the

course of that offense, his confederate, Robinson, caused the

robbery victim’s death. For starters, the record shows that Redd

and Robinson knew each other and, on the day of the incident, they

extensively communicated with one another. Detective Danny

Simpson, who was qualified as an expert in forensic and historical

cell phone analysis, detailed seven phone calls between Redd and

Robinson within the hour before the shooting. He testified that the

last call, which went to Robinson’s voicemail, had been made so

close to the shooting that when the first 911 call came in, the line

between Redd’s phone and Robinson’s voicemail was likely still

open. Detective Simpson said that in examining the “call detail

records” associated with the motel’s, the victim’s, Redd’s, and

Robinson’s phone numbers, he noticed “a pattern that each time

that [the motel’s], or [the victim’s] phone spoke to Mr. Redd’s phone,

21
Mr. Redd’s phone would reach out to Mr. Robinson’s phone right

after that call was made and they would have a conversation.”

¶ 34 Likewise, Detective Simpson and Dawn Fink, a digital forensic

analyst, testified that Redd and Robinson had exchanged text

messages about ten minutes before the shooting. Redd wrote, “It’s

the white bitch” — a description that matched the victim’s

race — and Robinson responded, “Wya.”6 And recall that the video

surveillance footage shows Redd looking in Robinson’s direction

frequently. Indeed, just before Redd approached the SUV from the

front driver’s side door, he was standing over the engine

compartment and moving his head as if gesturing to Robinson to

join him, which Robinson did shortly thereafter.

¶ 35 Finally, the prosecution presented evidence that Redd took the

victim’s purse. Specifically, Perea testified that Redd grabbed the

purse and pulled on it with so much force that he dragged the

victim from the driver’s side backseat over the center console.

Perea said that Redd eventually stole the purse and handed it to

Robinson. Then, as the victim was still leaning forward trying to

6 Detective Simpson and Fink testified that “wya” was an acronym

for “where you at.”

22
protect her belongings from the perpetrators, Robinson fatally shot

her in the chest.

¶ 36 Viewing the above evidence in the light most favorable to the

prosecution, see Gorostieta, ¶ 16, a reasonable juror could have

found that Redd and Robinson devised a plan to rob the victim;

Redd actively participated in carrying out that plan because he

described the target to Robinson, brought her to the location where

Robinson joined him, and took the victim’s purse by force; and in

the course of the robbery, Robinson killed the victim. Because we

conclude that the prosecution presented sufficient evidence in

support of Redd’s conviction for first degree felony murder, we don’t

address his claim that the evidence was insufficient to sustain the

merged aggravated robbery convictions.

¶ 37 Accordingly, Redd’s sufficiency challenges must fail.

C. Redd’s LWOP Sentence for First Degree Felony Murder
Isn’t Categorically Unconstitutional

¶ 38 Lastly, Redd contends that the trial court erred by sentencing

him to LWOP for first degree felony murder because that sentence is

unconstitutional under the United States and Colorado

Constitutions. He argues both that his sentence is categorically

23
unconstitutional and, in his reply brief, that it is unconstitutional

based on the facts of his case.

¶ 39 Both the Eighth Amendment and its Colorado analogue

prohibit “cruel and unusual punishments.” U.S. Const. amend.

VIII; Colo. Const. art. II, § 20. The prohibition applies not only to

“inherently barbaric” punishments but also to punishments that

are “disproportionate to the crime.” Graham v. Florida, 560 U.S. 48,

59 (2010). Proportionality claims generally come in two varieties:

(1) categorical challenges to a sentence based on the nature of the

offense or the characteristics of the offender and (2) challenges to

the length of a specific sentence based on the particular

circumstances of the case. Sellers, ¶ 18 (citing Graham, 560 U.S. at

59).

¶ 40 A defendant’s claim under the latter category proceeds in two

steps. Wells-Yates v. People, 2019 CO 90M, ¶ 10. In step one — an

abbreviated proportionality review — a court must consider the

gravity or seriousness of the defendant’s offense along with the

harshness of the imposed penalty. Id. at ¶ 7. If the abbreviated

proportionality review gives rise to an inference of gross

disproportionality, then the court must proceed to step two, an

24
extended proportionality review. Id. “In the rare situation in which

the analysis advances to step two,” the court should compare the

defendant’s sentence to sentences for other crimes in the same

jurisdiction and to sentences for the same crime in other

jurisdictions. Id. at ¶¶ 7, 15.

¶ 41 In light of these principles, we first consider the type of claim

that Redd makes in challenging the proportionality of his LWOP

sentence. After the trial court imposed the sentence, Redd filed,

and the court denied, a “Motion to Strike the Sentencing Provision

of Life Without Parole and Apply the Current Sentencing Provisions

Regarding Felony Murder.” He argued that an LWOP sentence for

felony murder violated the state and federal constitutional

prohibitions against cruel and unusual punishment because the

General Assembly’s decision to reclassify felony murder from a class

1 felony to a class 2 felony constituted “clear evidence that

Colorado’s evolving standards of decency no longer sanction[ed]

LWOP for felony murder.”

¶ 42 However, the Colorado Supreme Court recently considered and

rejected this exact claim. See Sellers, ¶¶ 19-37. It held that

“[b]ased on objective indicia of societal standards and evolving

25
standards of decency as expressed in legislative action and state

practice, as well as the exercise of our independent

judgment, . . . an LWOP sentence for felony murder for an adult

offender is not categorically unconstitutional.” Id. at ¶ 2. Thus,

Redd’s claim that his LWOP sentence for first degree felony murder

is categorically unconstitutional must fail. See People v. Melendez,

2024 COA 21M, ¶ 19 (“‘[W]e are bound by the rule[s] as expressed

by the Colorado Supreme Court, and we are not free to depart from

[its] precedent.’” (quoting People v. Robson, 80 P.3d 912, 914 (Colo.

App. 2003))).

¶ 43 As for Redd’s length-of-sentence proportionality claim, the

People argue that he failed to properly raise, and thus preserve for

appeal, this claim in the trial court. We agree.

¶ 44 As noted above, Redd filed his motion to strike the sentencing

provision after the court had already sentenced him. The court

concluded that since Redd was challenging the court’s “imposing” a

sentence that had already been imposed, the issue was moot. And

to the extent that Redd intended to challenge his sentence

subsequent to sentencing, the court concluded that the motion was

procedurally defective. The court therefore denied the motion on

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procedural grounds and determined that Redd “retain[ed] his

statutory rights to bring postconviction motions pursuant to Crim.

P. 35.”

¶ 45 Since the trial court didn’t rule substantively on Redd’s

post-sentencing proportionality challenge — and since Redd doesn’t

challenge the mootness or procedural denial rulings — we conclude

that Redd has not yet properly raised a length-of-sentence

proportionality challenge for our review.7

III. Disposition

¶ 46 The judgment is affirmed.

JUDGE MOULTRIE and JUSTICE MARTINEZ concur.

7 In addition, Redd’s opening brief only focuses on the statutory

change, which is just one factor that a court must address when
conducting an abbreviated proportionality review. But Redd doesn’t
identify in his opening brief, let alone discuss, any facts in his case
establishing gross disproportionality of his LWOP sentence. In
other words, Redd doesn’t argue in his opening brief that the trial
court erred by imposing the LWOP sentence because that sentence
was grossly disproportionate to the circumstances of his particular
case. While Redd contends for the first time in the reply brief that
his LWOP sentence was grossly disproportionate considering the
nature of his conduct, we decline to consider that argument. See
People v. Vanderpauye, 2021 COA 121, ¶ 69 n.10 (“We do not
address issues raised for the first time in a reply brief.”), aff’d, 2023
CO 42.

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