Peo v. Sandoval

22CA0824 Peo v Sandoval 10-30-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0824
City and County of Denver District Court No. 20CR2989
Honorable Christopher J. Baumann, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Edward R. Sandoval,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE FREYRE
Pawar and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 30, 2025

Philip J. Weiser, Attorney General, Brittany Limes Zehner, Senior Assistant
Attorney General and Assistant Solicitor General, Denver, Colorado, for
Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Emily Hessler, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Edward R. Sandoval, appeals the judgment of

conviction entered after a jury found him guilty of second degree

murder. We reverse the judgment and remand the case for a new

trial.

I. Background

¶2 In 2020, Sandoval shot and killed his mother’s boyfriend,

Dennis Lozoya. At the time, Sandoval was living in his mother’s

basement with his young daughter and his girlfriend. During a

family barbecue, Sandoval and his girlfriend got into an argument

in the basement. Lozoya came downstairs and told Sandoval’s

girlfriend to leave. Lozoya remained in the basement with Sandoval

and started arguing with him.

¶3 Moments later, Sandoval’s mother and girlfriend saw Lozoya

come upstairs and take something from a kitchen drawer.

According to their testimony, they both believed it was a gun. Other

witnesses testified that when Lozoya came upstairs, he said

Sandoval had threatened to shoot him. Shortly thereafter,

Sandoval came upstairs brandishing a gun, prompting Sandoval’s

girlfriend to run into the pantry to hide.

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¶4 Sandoval’s mother testified that Lozoya entered the kitchen

visibly angry and threatened her, Sandoval’s daughter, and

Sandoval’s girlfriend with a gun. Sandoval’s mother also testified

that she heard Sandoval say, “[P]ut the gun down,” before firing.

Sandoval then shot Lozoya fifteen times, killing him.

¶5 After the shooting, Sandoval’s mother told everyone to get out

of the house. Sandoval gave his daughter to his sister and fled to

his aunt’s house. He admitted to shooting Lozoya and later turned

himself in to the police.

¶6 The State charged Sandoval with first degree murder under

section 18-3-102(1)(a), C.R.S. 2025. Although a jury acquitted

Sandoval of first degree murder, it found him guilty of the lesser

included offense of second degree murder. The jury also found he

used a semiautomatic assault weapon, which served as a sentence

enhancer under section 18-1.3-406(2)(a)(I)(A), C.R.S. 2025. The

trial court sentenced Sandoval to forty years in the custody of the

Department of Corrections.

¶7 Sandoval challenges his conviction on five grounds and his

sentence on one ground. He contends that (1) the court violated his

Sixth Amendment right to a public trial by excluding all members of

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the public from jury selection; (2) the court erroneously instructed

the jury on the initial aggressor exception to self-defense; (3) the

prosecutor committed reversible misconduct during opening

statement and closing arguments; (4) the court erroneously ordered

discovery of the defense’s extraction information from a witness’s

cell phone; (5) cumulative trial errors require reversal; and (6) there

was insufficient evidence to support the sentence enhancer.

¶8 We agree with Sandoval’s first contention and conclude that

the trial court’s exclusion of the public from jury selection violated

his constitutional right to a public trial. Accordingly, we reverse the

judgment and remand for a new trial. Because the new trial will

proceed on the lesser included offense and the remaining issues are

unlikely to arise again, we do not further address them.

II. Public Trial

¶9 Sandoval contends that his constitutional right to a public

trial was violated when the court excluded the public from the

courtroom during jury selection due to a lack of space. We agree.

A. Additional Facts

¶ 10 Before trial, both parties requested an “expanded panel” of

seventy-five people for voir dire. The court granted the parties’

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request. Due to the expanded panel, thirty-seven potential jurors

sat in the courtroom gallery alongside members of the public.

¶ 11 Before jury selection began, the court informed the spectators

that they were in a “public courtroom” and that everyone “is

welcome to be here,” but that once jury selection began, they would

need to leave because there was not enough room for both the

public and the potential jurors. Both the prosecution and the

defense objected to this closure.

¶ 12 The prosecution argued that the exclusion would violate the

right to a public trial and urged the court to make findings under

Waller v. Georgia, 467 U.S. 39, 48 (1984). The defense agreed and

argued that the public nature of the proceedings should be

preserved. Both parties offered the court alternatives, such as

“simulcasting” the voir dire, doing two voir dire sessions, or

accommodating the spectators with the potential jury members and

instructing both groups not to commingle.

¶ 13 The court disagreed with the parties’ proposals and stated as

follows:

We’re bringing in 75 jurors. We have 38 up
front, which means we’re going to need 37 in
the back on a limited number of benches. And

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as I count, I think we have 12 members of the
public that are in the courtroom right now.

So I will, just for jury selection, broadcast it via
Webex. I will make it available publicly via
Webex. That’s not ideal, perhaps, for some of
you. But, most importantly, what I need to do
this morning and for the rest of the day is get a
jury picked in this case so we can proceed
forward with this trial, while at the same time
balancing your desire to want to watch this
case.

As I stated, generally, there are not a lot of
people in the courtroom other than jurors, if
any, for jury selection, but that’s just not the
situation we’re in today. So I’m not going with
less than 75 jurors, and I’m not going to make
37 jurors sit on one side of the courtroom.
There’s just not enough space for that to
happen.

¶ 14 Voir dire lasted the entire day, and members of the public

were not permitted to re-enter the courtroom until the following

morning. During voir dire, the court noted that the “Web[e]x is

open and available right now for anybody — any member of the

public that would like to observe jury selection.” The court

continued, “I don’t see that anybody has logged into Web[e]x yet,

but it is open [and the court’s] audio and video camera are on.”

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B. Standard of Review and Applicable Law

¶ 15 “A trial court’s decision to close the courtroom presents a

mixed question of law and fact.” People v. Hassen, 2015 CO 49,

¶ 5. This means that we accept the trial court’s findings of fact

absent an abuse of discretion, but we review the court’s legal

conclusions de novo. Rios v. People, 2025 CO 46, ¶ 17.

¶ 16 Defendants in criminal trials are guaranteed the right to a

public trial under both the United States and Colorado

Constitutions. U.S. Const. amends. VI, XIV; Colo. Const. art. II,

§ 16. The right to a public trial extends to “any stage of a criminal

trial,” including “the jury selection phase of trial.” Presley v.

Georgia, 558 U.S. 209, 212-13 (2010). “[I]n the broadest terms,

public access to criminal trials permits the public to participate in

and serve as a check upon the judicial process — an essential

component in our structure of self-government.” Globe Newspaper

Co. v. Superior Ct., 457 U.S. 596, 606 (1982). The right to a public

trial instills public confidence in the justice system by allowing the

public to see that the court is being fair and that the letter and

spirit of the law is being properly discharged. See Rios, ¶ 20. A

violation of the right to a public trial constitutes structural error,

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requiring automatic reversal. See Weaver v. Massachusetts, 582

U.S. 286, 296 (2017); Rios, ¶ 24; People v. Bialas, 2025 CO 45, ¶ 9.

¶ 17 While the closure of a physical courtroom may violate a

defendant’s right to a public trial, People v. Jones, 2020 CO 45,

¶ 27, “the Sixth Amendment is not necessarily violated ‘every time

the public is excluded from the courtroom.’” People v. Lujan, 2020

CO 26, ¶ 16 (quoting Peterson v. Williams, 85 F.3d 39, 40 (2d Cir.

1996)). “[S]ome closures are simply so trivial that they do not rise

to the level of a constitutional violation.” Id. In determining

whether a closure was trivial, “courts look to the totality of the

circumstances surrounding the closure.” Id. at ¶ 19.

“Factors to be considered [in determining
triviality] include the duration of the closure,
the substance of the proceedings that occurred
during the closure, whether the proceedings
were later memorialized in open court or
placed on the record, whether the closure was
intentional, and whether the closure was total
or partial.”

¶ 18 Lujan, ¶ 19. No one factor is determinative, and other

considerations may also be relevant. Id.

¶ 19 A total closure occurs “when state action prevents the public

from having any reasonable opportunity to observe proceedings

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contemporaneously in the physical courtroom.” Rios, ¶ 33. A

partial closure occurs “when the state action excludes one or more

individuals from the reasonable opportunity to observe the physical

courtroom.” Id. Even if a closure is nontrivial, it does not

necessarily mean that a party’s right to a public trial was violated

because the right itself is not absolute and, at times, must yield to

competing interests. Waller, 467 U.S. at 45; Rios, ¶ 24.

¶ 20 In Waller, the Supreme Court set forth a four-part test for

courts to apply in deciding whether a courtroom closure complies

with the Sixth Amendment. Rios, ¶ 24 (citing Waller, 467 U.S. at

48.) The Waller test requires that (1) “the party seeking to close the

[trial proceeding] must advance an overriding interest that is likely

to be prejudiced,” (2) “the closure must be no broader than

necessary to protect that interest,” (3) “the trial court must consider

reasonable alternatives to closing the proceeding,” and (4) “[the trial

court] must make findings adequate to support the closure.” Rios,

¶ 24 (quoting Waller, 467 U.S. at 48). A nontrivial closure that

does not meet this test is an unconstitutional deprivation of a

defendant’s right to a public trial that constitutes structural error.

Id.

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¶ 21 Recently, the Colorado Supreme Court decided two public trial

cases involving the use of video and audio streaming over a virtual

platform. In Rios, a case that was tried during the COVID-19

pandemic, the supreme court held that a virtual platform is not a

substitute for public access, but an additional means of access. Id.

at ¶ 36. And when a trial court conducts a trial virtually, a total

closure occurs. Id. at ¶ 38. However, to implicate the public trial

right, the closure must be nontrivial. Id. The court held that

conducting an entire trial virtually constituted an intentional and

nontrivial closure. Id. at ¶ 40. But, applying the Waller factors, it

found no constitutional violation because (1) the public health

restrictions justified the closure; (2) the closure was no broader

than necessary to comply with the restrictions; (3) there were no

other reasonable alternatives to the closure; and (4) the trial court

made adequate findings concerning the closure. Id. at ¶¶ 42-49.

¶ 22 In Bialas, ¶¶ 3-7, the trial court had removed all spectators

from the courtroom midtrial, based on misconduct by some of the

spectators, and allowed them to watch the remainder of the trial

virtually. A division of this court reversed the conviction and

remanded for a new trial after it determined that the removal was a

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nontrivial closure that was not justified by the Waller factors. Id. at

¶¶ 8-9.

¶ 23 The supreme court affirmed and first held that totally

excluding the public from the physical courtroom constituted a

closure. Id. at ¶ 24. The court next held that the closure was

intentional and nontrivial because it encompassed more than a half

day of a four-day trial. Id. at ¶¶ 29-30. The court then applied the

Waller factors and held that a constitutional violation warranting

reversal had occurred. Id. at ¶ 31. While recognizing a trial court’s

ability to control its courtroom, the supreme court found there was

no reason to remove the defendant’s family (who were not

responsible for the disruption) or to close the entire courtroom to

the public. Id. at ¶ 33. Likewise, alternatives to complete closure

existed and the closure was broader than necessary because the

trial court could have removed only the disruptive spectators. Id. at

¶ 34. Finally, the supreme court found that the trial court did not

make adequate findings to support the closure. Id. at ¶ 35.

¶ 24 The United States Supreme Court decision in Presley is also

instructive. There, the trial judge excluded the defendant’s uncle,

the only spectator present at the time, from the courtroom during

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jury selection. Presley, 558 U.S. at 210. The defendant objected,

but the trial court explained that, given the size of the jury pool,

“[t]here just isn’t space for them to sit in the audience,” and the

“uncle cannot sit and intermingle with members of the jury panel.”

Id. After the defendant was convicted, he moved for a new trial and

presented evidence showing that prospective jurors could have been

accommodated in the jury box and one half of the courtroom,

leaving the other half of the courtroom open for public seating. Id.

at 210-11. The trial judge denied the motion, expressing concern

that “family members in the courtroom [might have] . . .

intermingle[d] with the jurors.” Id. at 211.

¶ 25 The Supreme Court reversed the defendant’s conviction. In

applying the Waller test, the Court concluded,

The generic risk of jurors overhearing
prejudicial remarks, unsubstantiated by any
specific threat or incident, is inherent
whenever members of the public are present
during the selection of jurors. If broad
concerns of this sort were sufficient to override
a defendant’s constitutional right to a public
trial, a court could exclude the public from
jury selection almost as a matter of course.

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Id. at 215. It also concluded that the trial court did not “consider

all reasonable alternatives to closure,” id. at 216, explaining as

follows:

Trial courts are obligated to take every
reasonable measure to accommodate public
attendance at criminal trials. . . . Without
knowing the precise circumstances, some
possibilities include reserving one or more
rows for the public; dividing the jury venire
panel to reduce courtroom congestion; or
instructing prospective jurors not to engage or
interact with audience members.

Id. at 215.
C. Application

¶ 26 Applying both Rios and Bialas, we first conclude that a total

closure occurred when the court excluded all members of the public

from the courtroom during voir dire. See People v. Black, 2022 COA

127, ¶ 46 (“[B]y telling the only member of the public who was

present at the start of voir dire to leave (albeit temporarily), the

district court completely closed the courtroom to the public.”). The

record shows, and no one disputes, that the court excluded the

public from the physical courtroom for jury selection, which lasted

the entire first day of trial. Thus, a total closure occurred. Bialas,

¶ 24. Moreover, for the reasons articulated in Rios and Bialas, we

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reject the People’s argument that the public’s opportunity to view

jury selection virtually constituted an acceptable alternative. Rios,

¶ 36; Bialas, ¶ 21. Indeed, while the constitutional right to a public

trial is not without limits, it requires the reasonable opportunity to

be physically present to observe those court proceedings that fall

within the public trial right. Waller, 467 U.S. at 48.

¶ 27 Next, we conclude that the closure was intentional and

nontrivial. The record shows, and the parties do not dispute, that

the court’s decision was intentional and elicited an objection from

both sides. Additionally, the closure lasted for one full day of an

eight-day trial, encompassed all of jury selection, and was not later

memorialized in open court. See Lujan, ¶ 19; see also Jones, ¶¶ 41-

42 (holding that a closure lasting an entire afternoon during a ten-

day trial was nontrivial); Hassen, ¶ 16 (holding that a closure

during two witnesses’ testimony was nontrivial).

¶ 28 Having found a nontrivial closure, we now turn to the Waller

factors. Concerning the first factor, we note that neither party

sought to close the proceedings to the public, but the trial court

acted sua sponte. The court cited space limitations in the

courtroom and noted there were only twelve spectators. It decided

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to permit the twelve members of the public to view jury selection

virtually in lieu of watching in person and said they could return to

the courtroom after voir dire. We are not convinced that space

alone constitutes an overriding interest justifying a complete

closure. Cf. Black, ¶ 47 (a “good reason” was given when the trial

court asked a lone observer to temporarily leave at the outset of voir

dire because an additional chair could not be accommodated in the

courtroom due to “fire safety”). But even if it were, we conclude

that the remaining Waller factors are not satisfied.

¶ 29 The record shows that the prosecutor suggested that the court

split voir dire into two sessions.1 See Bucci v. United States, 662

F.3d 18, 26 (1st Cir. 2011) (“[E]ven if the courtroom were completely

filled with prospective jurors, it would likely not justify the closure

in this case. The Supreme Court in Presley made clear that

alternative methods of increasing the available public seating, such

as splitting the venire, must be adopted if reasonable.”).

1 The prosecutor also suggested simultaneous virtual proceedings in

another courtroom and streaming the proceedings virtually, options
that the supreme court rejected in Rios and Bialas because they
failed to satisfy the public trial right. Rios, ¶ 45; Bialas, ¶ 3.

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Additionally, defense counsel proposed that the court allow jurors

on one side of the courtroom and spectators on the other side with

an instruction that the two groups do not commingle. Another

option, assuming there was inadequate space for all twelve

spectators present at the beginning of voir dire to remain seated,

could have been to admit members of the public to the courtroom

as jurors were excused. See Owens v. United States, 483 F.3d 48,

62 (1st Cir. 2007) (“Even assuming that the courtroom needed to be

initially cleared of spectators, once prospective jurors began to leave

the courtroom, . . . we see no state interest — compelling or

otherwise — in not permitting [the defendant’s] family, friends, or

other members of the public to observe the proceedings.” (footnote

omitted)), abrogated on other grounds by, Weaver, 582 U.S. at 293-

301.

¶ 30 The court rejected these suggestions without explaining why

they would not work and presumably based on its belief that

livestreaming voir dire was sufficient to preserve Sandoval’s right to

a public trial. Accordingly, we conclude the trial court failed to

consider reasonable alternatives and that the closure was broader

than necessary.

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¶ 31 Finally, despite the prosecutor’s specific request to make

findings under Waller, the trial court did not do so. See Waller, 467

U.S. at 48 (holding that the trial court “must make findings

adequate to support [a] closure”). “[I]f a court intends to exclude

the public from a criminal proceeding, it must first analyze the

Waller factors and make specific findings with regard to those

factors.” United States v. Gupta, 699 F.3d 682, 687 (2d Cir. 2012).

“If a trial court fails to adhere to this procedure, any intentional

closure is unjustified and will, in all but the rarest of cases, require

reversal.” Id.

¶ 32 Accordingly, because the exclusion of the entire public from

the physical courtroom during jury selection constituted a

nontrivial closure that did not satisfy the Waller factors, we

conclude that the closure violated Sandoval’s Sixth Amendment

right to a public trial. We reverse his conviction and sentence and

remand for a new trial.

III. Remaining Issues

¶ 33 Because the jury acquitted Sandoval of first degree murder

and he will be retried on the lesser offense of second degree murder,

we conclude that the remaining issues raised in his opening brief

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are unlikely to occur on a retrial; thus, we do not address them

further. See People v. Curtis, 2014 COA 100, ¶ 12 (The “cardinal

principle of judicial restraint [is that] if it is not necessary to decide

more, it is necessary not to decide more.” (quoting PDK Lab’ys Inc.

v. U.S. Drug Enf’t Admin., 362 F.3d 786, 799 (D.C. Cir. 2004)

(Roberts, J., concurring in part and concurring in the judgment))).

IV. Disposition

¶ 34 The judgment is reversed, and the case is remanded for a new

trial.

JUDGE PAWAR and JUDGE YUN concur.

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