Peo v. Almeida

22CA1149 Peo v Almeida 01-15-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1149
Larimer County District Court No. 20CR340
Honorable C. Michelle Brinegar, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Efren Jose Almeida,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART AND VACATED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE DUNN
Lipinsky and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 15, 2026

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Amy D. Trenary, Alternate Defense Counsel, Broomfield, Colorado, for
Defendant-Appellant
¶1 Efren Jose Almeida appeals the judgment of conviction for first

degree felony murder1 and attempted aggravated robbery. He

mainly argues that we should vacate the first degree felony murder

conviction because the jury returned impermissibly inconsistent

verdicts. We disagree and affirm the felony murder conviction. We

also reject Almeida’s constitutional challenges to his life without

parole sentence for felony murder.

¶2 We agree, however, with Almeida’s contention that the district

court should have merged the attempted aggravated robbery

conviction into the felony murder conviction. We therefore vacate

the attempted aggravated robbery conviction and remand the case

to the district court to merge the convictions and correct the

mittimus.

I. Background

¶3 One winter evening, a warehouse worker discovered a

coworker’s body and called 911. The victim had been shot twice in

1 The statute in effect at the time of the charged crime classified

felony murder as first degree murder. § 18-3-102(1)(b), C.R.S.
2020. Though felony murder has since been reclassified as second
degree murder, see § 18-3-103(1)(b), C.R.S. 2025, we cite the
statute in effect at the time of the charged crime and refer to the
offense as felony murder.

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the chest and once in the head and had multiple blunt force

injuries, including a fractured skull. The resulting investigation

soon led to Nicole Gibson, the victim’s ex-girlfriend.

¶4 Gibson initially denied any involvement in the victim’s death.

But shortly after, Gibson admitted that she and Almeida had gone

to the warehouse to retrieve items that the victim had purportedly

stolen from Gibson’s father and that Almeida shot the victim.

¶5 The prosecution charged Gibson with several crimes, including

first degree murder after deliberation. The prosecution also charged

Almeida with first degree murder after deliberation, felony murder

(predicated on robbery or attempted robbery), tampering with

physical evidence, attempted aggravated robbery, and two

accompanying crime of violence sentence enhancers.2 Gibson

ultimately pleaded guilty to conspiracy to commit first degree

murder in exchange for testifying against Almeida.

¶6 Almeida didn’t testify at trial. His counsel defended on the

theory that although Almeida accompanied Gibson to the

2 The prosecution also charged Almeida with two counts of

possession of a weapon by a previous offender but later dismissed
those counts.

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warehouse, it was Gibson who shot the victim. Defense counsel

argued that Almeida had no advance knowledge of Gibson’s plan to

rob or kill the victim.

¶7 By contrast, Gibson testified that Almeida “volunteered” to

accompany her to the warehouse to retrieve the guns that the

victim had allegedly stolen from Gibson’s father. Although Gibson

admitted that she had threatened to kill the victim in the weeks

before his murder, Gibson testified that Almeida shot the victim

when she and Almeida confronted him about Gibson’s “stuff.”

Gibson explained that, after the shooting, she and Almeida fled,

burned the clothes that they had been wearing, and disposed of

other evidence.

¶8 Following the parties’ presentation of evidence, the court

provided the jury with a lengthy packet of jury instructions. The

instructions included a series of elemental instructions on the

charged crimes. It also instructed the jury on complicitor liability

for felony murder and attempted aggravated robbery, among other

charged crimes. The jury convicted Almeida of felony murder,

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attempted aggravated robbery, and tampering with physical

evidence, but it acquitted him on the remaining charges.3

¶9 Before sentencing, Almeida challenged the constitutionality of

the statutorily mandated life without parole sentence for felony

murder. The court rejected the challenge and sentenced Almeida to

life in prison without the possibility of parole for felony murder

along with concurrent sentences on the remaining counts.

II. Inconsistent Verdicts

¶ 10 Almeida contends that we must vacate the felony murder

conviction because the jury returned impermissibly inconsistent

verdicts. We disagree for a few reasons.

A. Preservation

¶ 11 The People say we shouldn’t review this contention because

Almeida waived it by not objecting to any purported inconsistency

when the verdicts were read aloud in court. We are unpersuaded,

however, that defense counsel’s lack of objection evinces awareness

of a purported inconsistency between verdicts on separate counts,

let alone an intentional relinquishment of Almeida’s right to legally

3 Almeida doesn’t challenge his conviction for tampering with

physical evidence.

4
consistent verdicts. See Rail v. People, 2019 CO 99, ¶¶ 35-37; see

also People v. Shockey, 2023 COA 121, ¶¶ 31-32 (concluding that

the defendant did not waive “the inconsistent verdict issue” by not

contemporaneously objecting before the court released the jurors)

(cert. granted Sept. 30, 2024).

B. Legal Principles and Standard of Review

¶ 12 “[D]ue process prevents a defendant from being convicted of

crimes with mutually exclusive elements.” People v. Delgado, 2019

CO 82, ¶ 27. “[T]wo guilty verdicts are mutually exclusive when the

existence of an element of one of the crimes negates the existence of

an element of the other crime.” People v. Rigsby, 2020 CO 74, ¶ 27;

accord Shockey, ¶ 41. When that occurs, the verdicts “are legally

and logically inconsistent and should not be sustained.” Rigsby,

¶ 16 (citation omitted). But consistency between a guilty verdict on

one count and an acquittal on another count is not necessary. See

People v. Frye, 898 P.2d 559, 571 (Colo. 1995); see also Dunn v.

United States, 284 U.S. 390, 393-94 (1932) (noting general rule that

consistency between guilty and not guilty verdicts is not required).

¶ 13 We review de novo whether verdicts are mutually exclusive,

Delgado, ¶ 13, or impermissibly inconsistent, see People v. Brooks,

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2020 COA 25, ¶¶ 19-20 (applying de novo standard of review to

determine “whether a verdict is internally inconsistent and thus

ambiguous”).

C. Felony Murder — Predicated on Robbery or Attempted Robbery

¶ 14 Almeida argues that we must vacate the felony murder

conviction because it is “irreconcilably inconsistent with the jury’s

finding that Almeida or a complicitor did not cause [the victim’s]

death during the predicate aggravated robbery attempt.” (Emphasis

added.)

¶ 15 This fundamental premise — that the felony murder conviction

is predicated on attempted aggravated robbery — is wrong. The

prosecution charged Almeida with felony murder predicated on

robbery or attempted robbery. Consistent with that charge, the

court instructed the jury on the elements of felony murder as

follows:

1. That the defendant,

2. in the State of Colorado, at or about the date and place

charged,

3. acting alone or with one or more persons,

4. committed or attempted to commit Robbery, and

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5. in the course of or in furtherance of the crime of Robbery

that he was committing or attempting to commit, or in

the immediate flight therefrom,

6. the death of a person, other than one of the participants,

was caused by anyone.

(Emphases added.)

¶ 16 The court also properly instructed the jury that a person

commits robbery if he knowingly took “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, and that a person

commits attempted robbery if he takes a “substantial step” towards

committing robbery, see § 18-2-101(1), C.R.S. 2025 (outlining

elements of criminal attempt).

¶ 17 Because “the commission or attempt to commit the predicate

offense is an essential element of felony murder,” Doubleday v.

People, 2016 CO 3, ¶ 22, to convict Almeida of felony murder, the

jury had to find that Almeida (or a complicitor) committed or

attempted to commit robbery and that, in the course of or in

furtherance of the robbery or attempted robbery, or the immediate

flight therefrom, “anyone” caused the victim’s death, § 18-3-

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102(1)(b). But the jury did not have to find that that the victim died

to find that Almeida committed robbery or attempted robbery. See

§ 18-4-301(1). Because “simple robbery suffices as the predicate

felony” for felony murder, the jury did not have to find Almeida

“guilty of committing the element of aggravation” to find him guilty

of felony murder. People v. Driggers, 812 P.2d 702, 705 (Colo. App.

1991).

¶ 18 Thus, we disagree with Almeida to the extent he claims that

the felony murder verdict must be vacated due to some

inconsistency between the felony murder conviction and the

charged predicate felony. Cf. Brooks, ¶¶ 22-25 (discussing internal

inconsistencies within a single verdict).

D. Attempted Aggravated Robbery — Special Interrogatory

¶ 19 Setting aside Almeida’s misinterpretation of the predicate

felony, his argument, as we understand it, is that an inconsistency

exists between the jury’s verdict on the felony murder count and its

finding that the prosecution had not proved one of the crime of

violence counts related to the attempted aggravated robbery count.

¶ 20 Separate from felony murder, the prosecution charged Almeida

with attempted aggravated robbery and two accompanying crime of

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violence counts. The court accordingly instructed the jury on the

elements of aggravated robbery as follows:

1. That the defendant,

2. in the State of Colorado, at or about the date and place

charged,

3. knowingly,

4. took anything of value,

5. from the person or presence of another,

6. by the use of force, threats, or intimidation, and

7. during the act of robbery or immediate flight therefrom,

8. knowingly,

9. wounded or struck any person,

10. with a deadly weapon.

¶ 21 It also instructed the jury on the elements of attempt to

commit aggravated robbery. And finally, the court instructed the

jury that, if it found Almeida guilty of attempted aggravated

robbery, it should answer two verdict questions (which related to

the two accompanying crime of violence counts): (1) Did the

defendant cause serious bodily injury or death during the

attempted aggravated robbery; and (2) did the defendant use, or

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possess and threaten the use of, a deadly weapon during the

attempted aggravated robbery?

¶ 22 The jury returned the following guilty verdict for attempted

aggravated robbery:

¶ 23 Almeida has directed us to no authority — and we are aware of

none — that has found a legal inconsistency between a general

verdict on one count and a finding that the prosecution had not

proved a crime of violence on a separate count. And while Almeida

relies on Brooks and Shockey to support his claim that the verdicts

are legally inconsistent, those cases involve internal inconsistencies

10
between a verdict and a related crime of violence finding on a single

count. See Brooks, ¶¶ 22-25; Shockey, ¶¶ 35, 42, 51.

¶ 24 Take Brooks for example. There, the prosecution charged the

defendant with first degree burglary as a crime of violence. Brooks,

¶ 4. The jury convicted the defendant as charged, which required a

finding that the defendant committed the burglary with a deadly

weapon. Id. at ¶ 24. In response to the related crime of violence

special interrogatory, however, the jury found that the defendant

did not commit burglary with a deadly weapon. Id. Because the

special interrogatory finding negated an element of first degree

burglary in the same count, the Brooks division held it was

inconsistent. Id. at ¶ 25; see also Shockey, ¶¶ 1, 51 (concluding

that second degree murder verdict was ambiguous where the jury’s

response to the crime of violence count associated with the second

degree murder charge negated elements of second degree murder).

¶ 25 But the Brooks division disagreed with the defendant that the

special interrogatory finding that the defendant did not use a deadly

weapon during the burglary negated an element of his separate

menacing convictions, which also required a finding that defendant

used a deadly weapon. See Brooks, ¶¶ 7, 34. The division observed

11
that the defendant “misapprehend[ed] the nature of mutually

exclusive verdicts” and that the defendant “is actually attacking a

perceived conflict between a not guilty verdict on the crime of

violence and the guilty verdict on the felony menacing charges.” Id.

at ¶¶ 34, 37. And because consistency is not required between

guilty and not guilty verdicts, the division affirmed the menacing

convictions. Id. at ¶¶ 37, 40; see also Dunn, 284 U.S. at 393-94.

¶ 26 As in Brooks, we cannot conclude that the jury’s conviction on

felony murder is impermissibly inconsistent with its attempted

aggravated robbery conviction. Nothing in the essential elements of

felony murder and attempted aggravated robbery negate one

another. See Delgado, ¶¶ 2-3. And while the jury found that the

prosecution had not proved one crime of violence count for

attempted aggravated robbery, consistency is not required between

a finding of not guilty on a crime of violence count related to one

crime and a guilty finding on a separate crime. Brooks, ¶¶ 12-13;

see also Armintrout v. People, 864 P.2d 576, 580 (Colo. 1993)

(although a sentence enhancer is not an essential element of an

offense, it must still be proved beyond a reasonable doubt).

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¶ 27 Even beyond that, we have an obligation to “reconcile and

uphold verdicts if the evidence so permits.” Shockey, ¶ 33 (citation

omitted). Based on the evidence presented at trial, the jury could

have found that Almeida (or a complicitor) committed attempted

aggravated robbery without regard to the victim’s death. Indeed,

Gibson testified that she and Almeida went to the warehouse to

take back items that Gibson claimed the victim had stolen, that

Almeida had a gun, and that they confronted the victim and

demanded Gibson’s “stuff.” The prosecution also presented

evidence that the victim had multiple blunt force head injuries from

which the jury could infer that one or both of the confederates

“wounded or struck” the victim. That’s all that was required to find

Almeida guilty of attempted aggravated robbery. See § 18-4-

302(1)(b), C.R.S. 2025 (defining aggravated robbery); § 18-2-101(1).

¶ 28 The prosecution did not need to prove — and the jury did not

need to find — that anyone caused the victim’s death to convict

Almeida of attempted aggravated robbery. Indeed, the prosecutor

argued in closing argument that, in addition to shooting the victim

during the attempted robbery, Almeida “struck [the victim] with a

deadly weapon.” Thus, because evidence was presented from which

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the jury could have found Almeida guilty of attempted aggravated

robbery unrelated to the shooting, we disagree with Almeida that

the felony murder, attempted aggravated robbery, and crime of

violence counts were “based on identical evidence.”4 Because the

evidence supports consistent verdicts, we presume “that the jury

took that view.” People v. Scearce, 87 P.3d 228, 232 (Colo. App.

2003).

¶ 29 But even if the evidence was “identical,” consistency between a

not guilty verdict on one count and an acquittal of a crime of

violence on another count is not required. See Frye, 898 P.2d at

566-68. After all, such a verdict “may have been the result of

compromise, or of a mistake on the part of the jury,” and we will not

speculate about the jury’s reasons for seemingly inconsistent

verdicts. Dunn, 284 U.S. at 394.

4 And, indeed, the crime of violence count that the jury found the

prosecution had proved beyond a reasonable doubt (that Almeida or
a complicitor used, possessed, or threatened the use of a deadly
weapon) is consistent with the tenth element of the attempted
aggravated robbery instruction.

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III. Felony Murder Sentence

¶ 30 Almeida next challenges the constitutionality of his life without

parole sentence for felony murder. He argues that the sentence is

categorically unconstitutional, and, alternatively, that it is grossly

disproportionate to the offense. We disagree.

A. Categorical Challenge

¶ 31 Almeida contends that his life without parole sentence is

categorically unconstitutional given the legislature’s decision to

reclassify felony murder from a class 1 felony to a class 2 felony.

He argues that the reclassification demonstrates that the life

without parole sentence “no longer comports with evolving

standards of decency.”

¶ 32 But during the pendency of this appeal, the supreme court

considered and rejected this precise contention. Sellers v. People,

2024 CO 64, ¶ 19 (Sellers II), aff’g, 2022 COA 102 (Sellers I). After

assessing the objective indicia of society’s standards, as well as

exercising its independent judgment, the court held that a life

without parole sentence “for felony murder [for an adult offender] is

not categorically unconstitutional” under either the federal or state

constitutions. Id. at ¶ 37.

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¶ 33 Because we’re bound by Sellers II, we reject Almeida’s claim

that his life without parole sentence is categorically

unconstitutional.5

B. Proportionality Challenge

¶ 34 The district court conducted an abbreviated proportionality

review and concluded that Almeida’s life without parole sentence

was not grossly disproportionate to his felony murder conviction.

Almeida challenges the district court’s abbreviated proportionality

review, again arguing that his life without parole sentence is grossly

disproportionate.

1. Legal Principles and Standard of Review

¶ 35 The United States and Colorado Constitutions prohibit the

infliction of “cruel and unusual punishments.” U.S. Const. amend.

VIII; Colo. Const. art. II, § 20. This prohibition applies to

punishments that are “disproportionate to the crime committed.”

5 In his opening brief, Almeida specifically “adopt[ed] the arguments

presented in the Sellers brief.” See People v. Sellers, 2022 COA 102
(Sellers I), aff’d, 2024 CO 64 (Sellers II). But in his reply brief (after
the supreme court decided Sellers II), he shifted gears and argued
that his case “presents a narrower question than the one rejected”
in Sellers II. We do not consider new arguments in reply briefs. See
People v. Woodyard, 2023 COA 78, ¶ 15 n.3.

16
Solem v. Helm, 463 U.S. 277, 284 (1983); People v. Kennedy, 2025

CO 63, ¶ 12. But “strict proportionality” isn’t required; only a

“grossly disproportionate” sentence is unconstitutional. Wells-Yates

v. People, 2019 CO 90M, ¶ 5 (citation omitted).

¶ 36 To determine whether a sentence is grossly disproportionate,

we conduct a two-step analysis. Sellers II, ¶ 44. Under step one,

we conduct an abbreviated proportionality review, which has two

subparts. Id. We assess (1) the gravity or seriousness of the

offense and (2) the harshness of the sentence imposed. Id.

¶ 37 Regarding the first subpart, certain crimes are considered per

se grave or serious. Id. at ¶ 48. If a crime is per se grave or

serious, we skip the first subpart and jump directly to the second

subpart to assess the harshness of the sentence. Id.; see also

Kennedy, ¶ 16 (referring to this as “The ‘Per Se’ Shortcut”). In

assessing the sentence’s harshness, we consider parole eligibility.

Id. at ¶ 51.

¶ 38 We continue to step two — an extended proportionality

review — only if the abbreviated proportionality review gives rise to

an inference of gross disproportionality. Id. at ¶ 45. “[A]n

abbreviated proportionality review will almost always yield a finding

17
that the sentence is not unconstitutionally disproportionate.”

Wells-Yates, ¶ 21.

¶ 39 We review de novo whether Almeida’s sentence is grossly

disproportionate. Sellers II, ¶ 16.

2. Almeida’s Sentence Isn’t Grossly Disproportionate

¶ 40 Almeida argues that “in light of the legislative reclassification,

felony murder cannot be deemed a per se grave and serious

offense.”

¶ 41 But a division of this court rejected that argument in Sellers I.

In that case, the defendant and some companions robbed two drug

dealers. Sellers I, ¶ 1. One of the defendant’s companions shot and

killed one of the drug dealers. Id. The defendant was convicted of

felony murder and sentenced to life without parole. Id. at ¶¶ 1, 33.

On appeal, a division of this court rejected the defendant’s claim

that the reclassification of felony murder affected the gravity or

seriousness of the offense. Id. at ¶ 66. It held that “[f]elony murder

is a per se grave or serious offense because it necessarily involves

committing a violent predicate felony that results in the death of a

person.” Id. at ¶ 65. “Thus, every factual scenario giving rise to a

charge of felony murder will be grave or serious.” Id.; see also

18
Wells-Yates, ¶ 64 (noting that robbery is a per se grave or serious

offense). On certiorari review, the supreme court left that holding

undisturbed. See Sellers II, ¶ 49.

¶ 42 Though Almeida disagrees with Sellers I, he offers no

compelling reason why we should depart from it. Regardless, we

agree with that division’s well-reasoned conclusion that felony

murder is a per se grave and serious offense. Having so concluded,

we do not address Almeida’s claim that the facts and circumstances

of the crime are not grave and serious (though we acknowledge that

the district court separately found that “the facts of this case are

grave and serious”). See Wells-Yates, ¶ 13.

¶ 43 We instead jump to the second subpart and consider the

harshness of Almeida’s sentence. Id. We acknowledge, of course,

that life without parole is a harsh sentence. But we cannot

conclude that a life without parole sentence is grossly

disproportionate to the per se grave and serious offense of felony

murder. Sellers I, ¶ 67; see Sellers II, ¶¶ 51-53. After all, the jury’s

verdict leaves no doubt it found that Almeida participated in a

violent per se grave and serious predicate felony that resulted in the

victim’s death. See Wells-Yates, ¶ 64.

19
¶ 44 We therefore affirm the sentence without the need for an

extended proportionality review.

IV. Merger

¶ 45 Almeida contends — and the People agree — that “[t]he

attempted aggravated robbery conviction and sentence should be

vacated because that predicate felony is subsumed by felony

murder.”

¶ 46 The problem, of course, is that attempted aggravated robbery

isn’t the predicate felony — robbery or attempted robbery is. Still,

the parties’ position is not without legal support. Despite

misidentifying the predicate felony, both parties cite People v.

Raymer, 662 P.2d 1066 (Colo. 1983). In that case, the supreme

court concluded that “[t]he charge of aggravated robbery qualifies as

a lesser included offense of felony murder.” Id. at 1069. It reached

that conclusion based on the merger test in section 18-1-408(5)(c),

C.R.S. 2025, which, as relevant here, “expands the definition of a

lesser included offense to include an offense which ‘differs from the

offense charged only in the respect that less serious injury or risk of

injury’” to the same person “suffices to establish its commission.”

Raymer, 662 P.2d at 1069 (quoting § 18-1-408(5)(c)); see also People

20
v. Rock, 2017 CO 84, ¶¶ 12-14 (describing section 18-1-408(5)(c) as

providing a broader merger test than the “statutory or strict

elements test” in section 18-1-408(5)(a)). Thus, where, as here, “the

defendant’s conviction for felony murder is based upon the

causation of the robbery victim’s death during the course of the

robbery, a charge of aggravated robbery of the same victim is a

lesser included offense of the felony murder charge.” Raymer, 662

P.2d at 1070.

¶ 47 Given Raymer, and without any argument that the attempted

aggravated robbery conviction should not merge into the felony

murder conviction, we vacate the attempted aggravated robbery

conviction and sentence.

V. Disposition

¶ 48 We vacate Almeida’s conviction and sentence for attempted

aggravated robbery and remand for the district court to merge the

attempted aggravated robbery conviction into the felony murder

conviction and correct the mittimus accordingly. We affirm the

judgment in all other respects.

JUDGE LIPINSKY and JUDGE KUHN concur.

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