Peo v. Apodaca

22CA1157 Peo v Apodaca 11-13-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1157
Pueblo County District Court No. 20CR1754
Honorable Thomas B. Flesher, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Issaiah Lee Apodaca,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE SCHOCK
Harris and Berger*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 13, 2025

Philip J. Weiser, Attorney General, Frank R. Lawson, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Shann Jeffery, Deputy State
Public Defender, 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, Issaiah Lee Apodaca, appeals his conviction and

sentence for first degree murder. He argues that the district court

erred by (1) declining to instruct the jury on the lesser included

offenses of manslaughter and criminally negligent homicide and

(2) excluding evidence of the gang affiliations of individuals involved

in the incident. He also contends that his statutorily mandated

sentence of life imprisonment without the possibility of parole is

unconstitutional given his young age. We affirm the judgment.

I. Background

¶2 There was evidence at trial to support the following facts.

Apodaca was at the mall with his brother, Gary Apodaca,1 and his

friend, L.J-D.,2 when they encountered the victim and his friend,

Austin Aragon. The two groups, who knew each other and did not

get along, got into a verbal altercation, calling each other names.

¶3 The altercation picked back up in the mall parking lot. The

groups again argued, calling each other names and “disrespecting

each other’s dead friends.” L.J-D. pulled out a gun, which Gary

1 Because Gary Apodaca shares defendant’s last name, we refer to

him by his first name, intending no disrespect.

2 We refer to L.J-D. by his initials because he was a minor.

1
took and put in his waistband. According to L.J-D., Aragon also

appeared to be holding a gun in his waistband and threatened to

shoot the other group. Aragon later denied that he had a gun.

¶4 The two groups then drove off, the victim driving with Aragon

in one car, and the others, with Gary driving, following in another.

As the victim stopped at a stoplight, Gary pulled up next to him and

the groups continued to argue. Apodaca then pointed a gun at the

victim and Aragon. He lowered the gun after “a second or two” and

taunted them for being “scared.” But when the stoplight turned

green and the victim began to drive forward, Apodaca raised the

gun again and fired a single shot into the victim’s car, striking the

victim in the head and killing him. L.J-D. originally told police that

Aragon had pointed a gun at the car with Apodaca’s group first.

But at trial, L.J-D. denied ever seeing Aragon draw a gun.

¶5 Apodaca was charged with first degree murder after

deliberation. His primary defense at trial was that he had acted in

self-defense after Aragon pointed a gun at him. The jury convicted

Apodaca, and the district court sentenced him to life in prison

without the possibility of parole, as mandated by statute.

2
II. Denial of Lesser Included Offense Instructions

¶6 Apodaca first contends that the district court reversibly erred

by denying his request to instruct the jury on the lesser included

offenses of manslaughter and criminally negligent homicide. We

disagree. We conclude that the district court properly declined to

instruct the jury on criminally negligent homicide and that any

error in failing to instruct the jury on manslaughter would be

harmless in light of the instruction on second degree murder.

A. Applicable Law and Standard of Review

¶7 A district court must instruct the jury on a lesser included

offense if “there is a rational basis for a verdict acquitting the

defendant of the offense charged and convicting him of the included

offense.” § 18-1-408(6), C.R.S. 2025. In a homicide case, “[o]nly a

slight amount of evidence” supporting the lesser included offense is

required. Grissom v. People, 115 P.3d 1280, 1287 (Colo. 2005). If

there is “any evidence whatever” tending to establish the lesser

offense, “the defendant is entitled to an instruction thereon,

regardless of how ‘incredible or unreasonable’ his contention may

be, or how ‘improbable, unreasonable, or slight’ it might be.” Mata-

Medina v. People, 71 P.3d 973, 979 (Colo. 2003) (citations omitted).

3
In making this determination, the district court must consider the

evidence in the light most favorable to the defendant. Id.

¶8 We review the denial of a lesser included offense instruction

for an abuse of discretion. People v. Buell, 2017 COA 148, ¶ 31,

aff’d, 2019 CO 27. A district court abuses its discretion when its

decision is manifestly arbitrary, unreasonable, or unfair, or when it

misapplies the law. People v. Draper, 2021 COA 120, ¶ 16,

overruled on other grounds by, Garcia v. People, 2023 CO 30, ¶ 22.

¶9 When the district court errs by failing to give a jury instruction

on a lesser included offense, we review for nonconstitutional

harmless error. Mata-Medina, 71 P.3d at 980. Under that

standard, we will reverse only if there is “a reasonable probability

that [the error] contributed to the defendant’s conviction.” Id.

B. Analysis

¶ 10 As charged in this case, first degree murder requires that the

defendant caused the death of another person “[a]fter deliberation

and with . . . intent.” § 18-3-102(1)(a), C.R.S. 2025. At Apodaca’s

request, the district court also instructed the jury on the lesser

included offense of second degree murder — “knowingly caus[ing]

the death of a person.” § 18-3-103(1)(a), C.R.S. 2025. But the

4
court denied Apodaca’s request for instructions on the still lesser

offenses of manslaughter and criminally negligent homicide.

¶ 11 As to criminally negligent homicide, we perceive no abuse of

discretion. That offense requires proof that the defendant caused

the death of another person “by conduct amounting to criminal

negligence.” § 18-3-105, C.R.S. 2025. A person acts with criminal

negligence “when, through a gross deviation from the standard of

care that a reasonable person would exercise, he fails to perceive a

substantial and unjustifiable risk that a result will occur or that a

circumstance exists.” § 18-1-501(3), C.R.S. 2025 (emphasis added).

¶ 12 On the facts of this case, there was no rational basis for a jury

to conclude that Apodaca was unaware of the risk that, by shooting

into the victim’s car, he might kill someone. The uncontroverted

evidence established that Apodaca deliberately fired from an

adjacent lane at a car he knew contained two occupants. He did

not claim to have shot inadvertently or without knowing what he

was doing. Cf. People v. Castro, 10 P.3d 700, 702 (Colo. 2000)

(holding that district court erred by failing to instruct on criminally

negligent homicide where the defendant was intoxicated and did not

remember shooting gun). If the jury found Apodaca acted in self-

5
defense, then it would have acquitted him. But otherwise, it “defies

logic” to conclude that Apodaca did not perceive the substantial and

unjustifiable risk of shooting into an occupied car. Draper, ¶ 21.

¶ 13 The manslaughter instruction is a closer call. A person

commits manslaughter when “[s]uch person recklessly causes the

death of another person.” § 18-3-104(1)(a), C.R.S. 2025. And a

person acts recklessly when they “consciously disregard[] a

substantial and unjustifiable risk that a result will occur or that a

circumstance exists.” § 18-1-501(8). There is arguably some

evidence to support a jury finding that Apodaca shot at the victim’s

car merely recklessly — perhaps to scare the witness or Aragon —

but did not intend to kill anyone or know he was practically certain

to do so. Specifically, L.J-D. testified that when Apodaca fired his

gun, both cars were moving, the victim’s windows were rolled up,

and he could only “kind of” see inside the victim’s car. And the

bullet did not go directly through the victim’s driver’s side window;

instead, it went through the closed back left window.

¶ 14 But even assuming the district court erred by failing to

instruct the jury on manslaughter, we conclude that any error was

6
harmless.3 When a jury is instructed on a lesser included offense

but convicts the defendant of the greater offense, the failure to

instruct the jury on a further lesser included offense of the one the

jury was instructed on is harmless error. Mata-Medina, 71 P.3d at

982. That is because “a jury’s rejection of an intermediate offense

constitutes an implicit rejection of omitted lesser [included]

offenses.” Id. at 983; see also People v. Roman, 2017 CO 70, ¶ 18

(noting that the jury’s finding in Mata-Medina that the defendant

caused the victim’s death knowingly rather than recklessly

“foreclosed any possibility that it could have found he did so only by

acting with criminal negligence”).4 It also ensures that the jury did

not convict the defendant of the greater offense “simply because it

had no less serious option short of acquittal.” Roman, ¶ 20.

3 Our harmlessness analysis would apply to the district court’s

rejection of the criminally negligent homicide instruction as well.

4 In People v. Roman, the supreme court held that when the omitted

lesser included offense is not also included in the lesser offense the
jury was instructed on, “more is required to demonstrate
harmlessness than merely the rejection of [the] comparable lesser
offense.” 2017 CO 70, ¶ 19. But under the circumstances here,
the conviction on the greater offense is not just “the rejection of a
comparable lesser offense.” Id. (emphasis added). It is the
rejection, albeit implicit, of the omitted offense itself. Id. at ¶ 18.

7
¶ 15 That is what happened in this case. The jury was instructed

on both first degree murder and the lesser included offense of

second degree murder. Thus, if the jury was unconvinced that

Apodaca was guilty of first degree murder, it had an option short of

acquittal. But the jury convicted Apodaca of first degree murder,

finding that he acted intentionally and after deliberation, not merely

knowingly. By doing so, the jury necessarily rejected all lesser

included offenses of second degree murder, including manslaughter

(and criminally negligent homicide). See Mata-Medina, 71 P.3d at

983. The district court’s failure to instruct the jury on

manslaughter, even if erroneous, was therefore harmless. See id.

¶ 16 Apodaca contends that the putative error was not harmless

because the jury could have found him guilty of manslaughter

based on a theory of imperfect self-defense, despite rejecting the

second degree murder charge. Imperfect self-defense — a theory

that has not been expressly recognized in Colorado — provides that

a defendant who “subjectively believed that the use of deadly force

was necessary to prevent death or great bodily harm to himself or

others, but [whose] belief was not objectively reasonable,” is guilty

of manslaughter. United States v. Britt, 79 F.4th 1280, 1287 (10th

8
Cir. 2023); cf. Sanchez v. People, 470 P.2d 857, 860 (Colo. 1970)

(holding that the defendant could be convicted of manslaughter

where he did not intend to kill the victim). Apodaca argues that the

jury could have rejected second degree murder because he shot the

victim intentionally but convicted him of manslaughter because he

subjectively (but unreasonably) believed deadly force was necessary.

¶ 17 There are three problems with this argument. First, to the

extent Colorado has recognized some form of imperfect self-defense,

it is only because such a theory can “negate the elements of first-

and second-degree murder.” People v. Miller, 529 P.2d 648, 649

(Colo. 1974). No Colorado case suggests that a defendant who

subjectively but unreasonably fears for their life may only be

convicted of manslaughter despite — as the jury found here —

intending to kill the victim. See People v. Jones, 2023 COA 104,

¶¶ 33-35 (affirming second degree murder conviction and holding

that the defendant was not entitled to assert self-defense where the

defendant’s claimed subjective fear was not objectively reasonable).

¶ 18 Second, even if the law in Colorado could support such a

theory, the jury was not instructed on it. Without such an

instruction, the jury would have had no basis to find that Apodaca’s

9
actions — if short of first degree murder — could only support a

manslaughter conviction and not second degree murder.

¶ 19 Third, to the extent Apodaca suggests in his reply brief that

the district court should have given an imperfect self-defense

instruction, he never requested one, and he did not raise this issue

in his opening brief. See People v. Dominguez, 2024 COA 32, ¶ 11

(declining to address issue first raised in reply brief) (cert. granted in

part Dec. 23, 2024). Nor could Apodaca show plain error given the

lack of any Colorado case law recognizing imperfect self-defense as

Apodaca frames it on appeal. See People v. Crabtree, 2024 CO 40M,

¶ 42 (“[T]o be deemed plain, an error must contravene a clear

statutory command, a well-settled legal principle, or established

Colorado case law.”).

¶ 20 Finally, to the extent Apodaca suggests that Mata-Medina does

not apply to any case involving self-defense, we see no basis for that

distinction. When asserted as an affirmative defense, as in this

case, self-defense is a “complete defense.” Galvan v. People, 2020

CO 82, ¶ 20. Thus, by convicting Apodaca of first degree murder,

the jury necessarily found that Apodaca did not act in self-defense.

10
It follows that self-defense offered no basis for a jury to convict

Apodaca of manslaughter despite rejecting second degree murder.

¶ 21 We therefore conclude that, under the facts of this case, there

is no reasonable probability that a jury presented with a lesser

included instruction on manslaughter would have convicted

Apodaca of that offense and acquitted him of first degree murder.

III. Gang-Related Evidence

¶ 22 Apodaca next argues that the district court erred by

precluding him from cross-examining Aragon, L.J-D., and another

witness about the gang affiliations of the two groups.5 He argues

that such evidence was relevant to (1) the bias of the witnesses and

(2) Apodaca’s reasonable fear. We perceive no abuse of discretion.

A. Additional Background

¶ 23 Initially, the prosecution framed this case as one of gang

violence and sought, over Apodaca’s objection, to admit evidence

that the two groups were affiliated with rival gangs. Specifically, the

prosecution alleged that Apodaca and Gary were Ace gang

members, Aragon was a Duke Sureno gang member, and the Duke

5 Apodaca also refers to “evidence of prior violent events,” but he

does not identify any such events in his opening brief.

11
Sureno gang is a rival of the Ace gang. But after a pretrial hearing

where Aragon testified that the altercation was unrelated to the

parties’ gang affiliations, the prosecution abandoned this theory.

¶ 24 Defense counsel, however, maintained that the parties’ gang

affiliation was a “key component” of Apodaca’s self-defense claim

because it explained the reasonable basis for his fear of the victim

and Aragon. She said Apodaca was not a gang member but

believed he was targeted due to his affiliation with Gary, who was.

¶ 25 The district court ruled that the prosecution could not make

any gang-related references during its case-in-chief. But it did not

bar the defense from doing so. Instead, it told the defense that if it

wanted to introduce evidence of particular gang-related incidents

during its case, it should raise those issues outside the presence of

the jury. The court later clarified that evidence of prior incidents in

which Apodaca was targeted by members of the Duke gang other

than Aragon or the victim would not be admitted.

¶ 26 Before Aragon testified, the prosecution reiterated its position

that gang membership was irrelevant. The court explained that it

had not closed the door on such evidence and that it would rule on

relevance when the questions were asked. Defense counsel later

12
sought to cross-examine Aragon about his and Gary’s gang

affiliation because “the hostilities between [Aragon] and Gary . . .

started over them being in rival gangs.” The court sustained the

prosecution’s objection, concluding that gang affiliation was not

relevant “based on the state of the evidence” at that point.

¶ 27 Later, the prosecution called another witness, A.O., who had

seen the altercation between the two groups in the parking lot.

Again, defense counsel sought to cross-examine her on the groups’

gang affiliations. Outside the presence of the jury, A.O. testified

that (1) she grew up with Aragon and knew the victim through

Aragon; (2) Aragon was a Duke gang member and she believed (but

was not sure) that the victim was a member of a different gang;

(3) Gary was a member of the Ace gang; (4) members of the Ace

gang did not like her or her family; and (5) she made a derogatory

remark about Ace gang members during the altercation. Defense

counsel argued that this testimony was relevant to A.O.’s credibility

and her bias toward Aragon and the victim and against Apodaca.

¶ 28 The district court ruled that defense counsel could cross-

examine A.O. on her relationship with Aragon and the victim, as

well as the derogatory remark she made toward Gary and Apodaca.

13
But the court prohibited defense counsel from asking A.O. about

Aragon’s or the victim’s gang affiliation because it was irrelevant.6

B. Standard of Review and Applicable Law

¶ 29 We generally review evidentiary rulings, including limitations

on cross-examination, for an abuse of discretion. People v. Beverly,

2025 CO 18, ¶ 22; People v. Morse, 2023 COA 27, ¶ 42. A district

court abuses its discretion when its ruling is “manifestly arbitrary,

unreasonable, or unfair, or stems from an erroneous view of the

law.” Beverly, ¶ 22. To the extent Apodaca contends that the

evidentiary rulings violated his constitutional rights, we review that

issue de novo. People v. Reynolds-Wynn, 2024 COA 33, ¶ 31.

¶ 30 A defendant has a constitutional right to present a defense

and cross-examine witnesses, especially as to “bias, prejudice, or

motive for testifying.” People v. Gonzales-Quevedo, 203 P.3d 609,

611, 614 (Colo. App. 2008) (citation omitted). But a district court

has wide latitude to place reasonable limitations on cross-

6 Apodaca also asserts in his opening brief that L.J-D. was

precluded from testifying about the parties’ gang affiliations and
gang rivalry, but he does not point to anywhere in the record that
he sought to cross-examine L.J-D. on these issues. To the extent
he suggests that the court’s prior rulings prevented him from doing
so, our analysis below would apply to L.J-D.’s testimony as well.

14
examination to, among other things, prevent prejudice and issue

confusion. Id. at 614-15. A court may also limit cross-examination

that is “only marginally relevant.” Id. at 615 (citation omitted).

¶ 31 A witness’s gang affiliation may be admissible to show bias in

favor of someone who is affiliated with the same gang or against

someone who is not. Id. It may also be admissible to “explain a

circumstance of the crime [or] to show a motive for the crime.”

People v. James, 117 P.3d 91, 94 (Colo. App. 2004) (citation

omitted). In addition, a victim’s prior violent acts, known to the

defendant at the time, may be relevant to the reasonableness of the

defendant’s belief in the need for self-defense. People v. Jones, 675

P.2d 9, 17 (Colo. 1984).

¶ 32 But gang-related evidence must be “admitted with care.”

People v. Trujillo, 2014 COA 72, ¶ 72 (citation omitted). As with all

evidence, it must be relevant under the facts of the case — that is,

it must have a “tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or

less probable than it would be without the evidence.” CRE 401; see

also People v. Chavez, 2012 COA 61, ¶ 32 (“Absent a specific basis

for admission, . . . evidence of mere gang association is irrelevant.”).

15
And even if marginally relevant, it may be excluded if its probative

value is substantially outweighed by the danger of confusion and

unfair prejudice. Gonzales-Quevedo, 203 P.3d at 615; CRE 403.

C. Bias

¶ 33 To the extent Apodaca sought to present evidence of the

parties’ gang affiliations for the purpose of showing witness bias,

the district court did not abuse its discretion by excluding it.

¶ 34 The only witness for whom Apodaca advanced this theory of

admissibility was A.O. But A.O. testified (outside the presence of

the jury) that she was not in a gang. And there was no evidence

that Apodaca was in a gang either. Although A.O. testified that Ace

gang members did not like her or her family, her relationship with

Aragon (and to some extent, the victim) came from growing up

together, “before anything gang-related.” A.O. did not have

personal knowledge that Gary was in a gang and believed the victim

was a member of a different gang — neither the Duke gang nor the

Ace gang. Given this evidence, the suggestion that A.O. would be

biased toward Aragon and the victim and against Apodaca based on

their gang affiliations (or in the case of Apodaca, his brother’s gang

affiliation) rested predominantly on “generalities about gang

16
membership and not on specific facts.” Chavez, ¶ 41; see also

Gonzales-Quevedo, 203 P.3d at 615 (affirming limits on cross-

examination into topics that were “speculative and conclusory”).

¶ 35 Moreover, the district court allowed defense counsel to cross-

examine A.O. about her relationship with Aragon and the victim.

The court also allowed cross-examination regarding A.O.’s

derogatory remark to Apodaca and his brother. See Chavez, ¶ 44

(holding that district court did not err by excluding evidence of the

victims’ gang affiliation where the defendant introduced “evidence of

bias and animosity between the parties without relying on evidence

of the victims’ gang affiliation”). This was enough to call A.O.’s

neutrality into question without getting into the tangential and

potentially prejudicial issue of who belonged to what gang.

¶ 36 As to the cross-examination of Aragon, defense counsel never

argued that his gang affiliation was relevant to bias. She argued

only that his gang affiliation was relevant because the animosity

between Gary and Aragon was due to their membership in rival

gangs. But again, there was no evidence that the altercation was

gang related. See id. at ¶ 43 (holding that gang affiliation was

irrelevant where “there was no evidence that the incident was gang-

17
related”). And as with A.O., Aragon testified that he did not get

along with Apodaca’s group, regardless of why. See id. at ¶ 44.

¶ 37 Under these circumstances, the district court did not abuse its

discretion by concluding that the gang affiliations of Gary, Aragon,

and the victim were not relevant to the witnesses’ credibility.

D. Reasonable Fear

¶ 38 Apodaca also argues that the parties’ gang affiliations were

relevant to the reasonableness of his fear of Aragon and the victim

and, thus, to his claim of self-defense. Although he made this

argument generally before trial, he did not raise it as a ground for

his request to cross-examine Aragon or A.O. on this issue. But

even assuming this argument is preserved, we perceive no error.

¶ 39 We first reject the notion that gang membership, without

more, is necessarily admissible to show that a defendant reasonably

feared the victim for purposes of a claim of self-defense. See

Chavez, ¶ 32 (requiring “specific basis for admission”); cf. Trujillo,

¶ 64 (holding that evidence of gang culture was inadmissible

without a connection to the charged crimes). Membership in a gang

is not a violent act. See Jones, 675 P.2d at 17. Nor is it, in and of

itself, evidence of an individual’s violent disposition. See id.

18
¶ 40 But as to Aragon and A.O., “mere gang association” is all there

was. Chavez, ¶ 32. Apodaca did not seek to cross-examine Aragon

or A.O. about a specific prior act of violence by Aragon or the victim.

See Jones, 675 P.2d at 17. He merely wanted to show that Aragon

and Gary were in rival gangs. Without more, such gang affiliation

— even if a cause of the verbal altercation — was not relevant to

whether Apodaca reasonably believed he was in imminent danger of

being killed or greatly injured. See § 18-1-704(2)(a), C.R.S. 2025.

¶ 41 In his reply brief, Apodaca argues that the district court

erroneously excluded testimony from his girlfriend that Aragon had

previously threatened Apodaca and had allegedly shot at a home

Apodaca was in. But although the People raised this issue in their

answer brief, Apodaca never mentioned it in his opening brief. We

will not consider a claim of error that Apodaca raised only in his

reply brief. See People v. Dubois, 216 P.3d 27, 28 (Colo. App. 2007),

aff’d, 211 P.3d 41 (Colo. 2009).

E. Constitutional Rights

¶ 42 We likewise reject Apodaca’s claim that his constitutional

rights were violated by the exclusion of the gang-related evidence.

19
¶ 43 The district court did not “excessively limit cross-

examination.” Chavez, ¶ 31. It simply barred any reference to gang

affiliations where the witnesses’ direct testimony did not address it

and there were no facts to suggest that the incident was gang

related or that the witnesses’ testimony was influenced by the

parties’ gang affiliations. Subject to this limitation, Apodaca was

permitted to cross-examine the witnesses about the animosity

between the two groups, A.O.’s animosity toward Apodaca’s group,

and A.O.’s relationship with Aragon. See id. at ¶ 35. For the

reasons above, these limitations were reasonable. See id. at ¶ 31.

¶ 44 Apodaca also was not deprived of his opportunity to present a

meaningful defense. See People v. Sauser, 2020 COA 174, ¶ 57. To

the contrary, he pursued his self-defense theory throughout trial,

including by eliciting testimony from L.J-D. that Aragon appeared

to have a gun in the parking lot and that L.J-D. previously told

police that Aragon pointed a gun at them at the stoplight. Without

some specific basis for Apodaca to reasonably fear Aragon or the

victim, the gang affiliations of Gary and Aragon (but not Apodaca

himself) were, at best, ancillary to Apodaca’s fundamental narrative

that he reasonably feared for his life because Aragon threatened

20
him with a gun. See id. at ¶ 60 (holding that exclusion of testimony

did not deprive the defendant of his right to present a defense where

it “would have expanded on” the defense, “but was not necessary to

make it coherent”). And in any event, the constitutional right to

present a defense must yield to ordinary limitations of relevance

and admissibility. See People v. Salazar, 2012 CO 20, ¶ 17.

IV. Constitutionality of Sentence

¶ 45 Apodaca finally argues that sections 18-3-102 and 18-1.3-

401(4)(a), C.R.S. 2025 — which, together, mandated a sentence of

life imprisonment without the possibility of parole (LWOP) — are

unconstitutional as applied to him because he was only nineteen

years old at the time of his offense. He urges us to extend the

constitutional ban on mandatory LWOP sentences for juveniles, see

Miller v. Alabama, 567 U.S. 460, 479 (2012), to “emerging adults”

who share similar developmental characteristics. Notwithstanding

some intuitive appeal to this argument, we are not persuaded.

¶ 46 The supreme court recently considered this argument in

People v. Ray, 2025 CO 42M. Like Apodaca, the defendant in Ray

was nineteen years old at the time of his offense and argued that,

as an “emerging adult,” he should be included in the prohibition on

21
LWOP sentences for juveniles. Id. at ¶ 174. The supreme court did

not definitively decide the issue because it concluded that the

defendant had received “individualized consideration” of his “youth

and attendant characteristics” during the penalty phase of his

capital trial. Id. at ¶¶ 178-79 (citation omitted). But in doing so,

the court explained that the Colorado legislature and the United

States Supreme Court recognize eighteen as the age that divides

juveniles — who cannot be sentenced to mandatory LWOP — from

adults — who can. Id. at ¶ 176. And it noted that “Colorado has

not yet followed suit” of other states that have expanded this

prohibition to include defendants older than eighteen. Id. at ¶ 177.

¶ 47 We may not expand the boundaries of the Eighth Amendment

beyond those set by the United States Supreme Court. As a general

matter, “an LWOP sentence imposed upon a class-1-felony

conviction is facially constitutional.” Id. at ¶ 175. In carving out an

exception for juveniles, Miller drew the line between children and

adults — not between categories of adults or between those adults

whose brains are fully developed and those whose brains are not.

567 U.S. at 471. And the United States Supreme Court has drawn

the line between childhood and adulthood for purposes of the

22
Eighth Amendment at the age of eighteen — “where society draws

the line for many purposes.” Roper v. Simmons, 543 U.S. 551, 574

(2005). That bright line may in some sense be artificial. Id. But as

long as mandatory LWOP sentences are constitutional, the line

must be drawn somewhere. Id. And we may not move the line the

United States Supreme Court has drawn.7 See Ray, ¶ 171

(recognizing that, subject to the Eighth Amendment, “it is the

legislature’s prerogative to define crimes and punishments”).

¶ 48 We acknowledge that some states have moved this line —

either by statute or by judicial interpretation of their state

constitutions. See, e.g., Commonwealth v. Mattis, 224 N.E.3d 410,

415 (Mass. 2024) (holding that mandatory LWOP sentences for

defendants under twenty-one years old violate state constitution); In

re Monschke, 482 P.3d 276, 279-81 & n.6 (Wash. 2021) (noting that

state constitution provides greater protection than Eighth

7 Apodaca notes that the Colorado legislature recently expanded

eligibility for specialized sentencing programs previously available
only to juveniles to young adults between the ages of eighteen and
twenty. See §§ 17-34-101, 17-34-102, 17-22.5-403.7(1)(a)(III),
C.R.S. 2025. But in doing so, it expressly excluded young adults
sentenced to LWOP from these programs. See § 17-34-101(1)(a);
§ 17-22.5-403.7(1)(b), (2); People v. Ray, 2025 CO 42M, ¶ 177.

23
Amendment in juvenile sentencing context); see also Ray, ¶ 177

(citing cases). But as the supreme court noted in Ray, Colorado

has not done so, and Apodaca makes no separate argument under

the Colorado Constitution. See Ray, ¶ 177.8 As to the bounds of

the Eighth Amendment, we are bound by Miller and Roper.

¶ 49 Apodaca also asserts that his mandatory LWOP sentence is

unconstitutional because of his “intellectual and psychiatric

disabilities,” including emotional and learning disabilities, a low IQ,

and ADHD. But other than a general reference to Atkins v. Virginia,

536 U.S. 304, 321 (2002) — which prohibited capital punishment for

individuals with “significantly subaverage intellectual functioning”

and limitations on basic adaptive skills, id. at 308 n.3 — he cites no

authority to support this argument. For the same reasons that we

will not expand the Miller rule to a nonjuvenile, we see no basis to

expand it based on Apodaca’s low intellectual functioning.

¶ 50 Finally, Apodaca asks that, if we do not reverse his sentence

outright, we remand the case for an evidentiary hearing on his as-

8 Indeed, unlike Massachusetts and Washington, Colorado case law

has not interpreted Colorado’s constitutional prohibition on cruel
and unusual punishments to provide greater protection than the
Eighth Amendment. See Sellers v. People, 2024 CO 64, ¶ 36.

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applied challenge. We decline to do so because Apodaca has not

identified any relevant facts that need to be developed. His

argument is based entirely on his age and, to some extent, his

intellectual disability — neither of which we have concluded can

render his statutorily mandated LWOP sentence unconstitutional.

V. Disposition

¶ 51 The judgment is affirmed.

JUDGE HARRIS and JUDGE BERGER concur.

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