Peo v. Marentes

23CA0433 Peo v Marentes 01-08-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0433
City and County of Denver District Court No. 21CR570
Honorable Jay S. Grant, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Edwin Marentes,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE J. JONES
Grove, J., concurs
Schutz, J., specially concurs

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 8, 2026

Philip J. Weiser, Attorney General, Paul Koehler, Senior Counsel, Denver,
Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Mark Evans, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Edwin Marentes, appeals the district court’s

judgment of conviction entered on a jury verdict finding him guilty

of felony murder. He also appeals the district court’s sentence. We

affirm.

I. Background

¶2 Marentes and his nephew went to a party at his nephew’s

friend’s apartment. A group of about eight or nine people attended

the party, including, among others, party host J.P-D. (also known

as Junior), M.Z., and S.D. At the party, sixteen-year-old M.Z.

communicated with nineteen-year-old Imanol Del Valle, the victim

in this case, on Snapchat, as she had in the past (though she

hadn’t previously met him).1 Previously, Del Valle had sent M.Z.

messages that included pictures of his genitals, and she had told

him to stop. M.Z. complained to the other partygoers about Del

Valle’s messages because of their age difference, erroneously

believing that Del Valle was in his mid-to-late twenties.

1 Snapchat is a social media platform on which users can send

photos, videos, and messages that often disappear after being
viewed.

1
¶3 The prosecution’s theory of what happened next went as

follows. The partygoers had been drinking and doing drugs. M.Z.,

S.D., Junior, and Marentes were upset that Del Valle, who they

believed was much older than M.Z., had sent her pictures of his

genitals. So they formed a plan to rob Del Valle. Marentes told

M.Z. to tell Del Valle she wanted to meet to have a threesome with

him, and she did. Marentes and Junior also told M.Z. where to

meet Del Valle.

¶4 Six people left the party to meet Del Valle: Marentes and

Junior each went armed with guns, and M.Z., S.D., Marentes’

nephew, and a driver from the party joined them. Marentes turned

his phone off on the way. When they arrived at the meeting spot,

Marentes and Junior walked to the dark margins of the street, M.Z.

and S.D. walked to a well-lit area, and Marentes’ nephew stayed in

the car with the driver. When Del Valle arrived, M.Z. — following

Marentes’ instructions — pretended to be drunk and fell down in

the street to coax Del Valle out of his car. Del Valle opened his door

and got out to help M.Z. up. He also took S.D.’s phone out of her

hand, thinking it was his, and accidentally dropped it.

2
¶5 As Del Valle bent over to pick up the phone, Marentes and

Junior came out of the shadows and ambushed him. With their

guns raised and pointed at Del Valle, Marentes and Junior shouted

at him that he was being robbed. Del Valle quickly got back into

his car and started to drive away. As he did, Marentes and Junior

shot at him, hitting him four times. One shot from Marentes hit Del

Valle in the head, killing him.

¶6 The group returned to the party. Marentes and Junior

bragged about killing Del Valle and told the other witnesses not to

tell anyone about what had happened.

¶7 The defense — relying on Marentes’ testimony — said the

night unfolded differently. Marentes said, “The alcohol was running

low” at the party. So M.Z. and others planned to temporarily leave

the party and get alcohol from Del Valle by using their “female

charm.” The group of six left to meet with Del Valle, with Marentes

and Junior joining for “protection” from Del Valle, whom they

believed to be a much older man. When they arrived, Marentes’

drinking had caught up to him. He walked off to the dark margins

of the street to urinate.

3
¶8 Del Valle arrived a few minutes later. Marentes said he had to

urinate a second time. After doing so, he turned around and saw

M.Z. on the ground and Del Valle out of his car grabbing S.D.’s

phone. Marentes started running toward Del Valle, who got back

into his car. Marentes saw Del Valle reaching for his vehicle’s

center console, and he believed Del Valle was reaching for a gun.

Marentes then pulled out his gun. After hearing what he thought

was a gunshot, Marentes began shooting at Del Valle in self-

defense. Del Valle then drove off and crashed the vehicle; and he

died the following day from the shot to his head.

¶9 The parties don’t dispute the relevant events after that

evening. About a week later, a police officer saw Marentes, who ran

away from the officer. The officer followed, detained him, and

patted him down, finding an ammunition magazine in Marentes’

pocket. Officers found a gun on the ground behind a car Marentes

had briefly crouched behind during the chase. No magazine was in

the gun. The police later determined that the gun was the murder

weapon.

¶ 10 The People charged Marentes with first degree murder after

deliberation and felony murder. Marentes asserted that he had

4
acted in self-defense. The jury found Marentes guilty of the lesser

included offense of second degree murder and of felony murder.

The district court merged the second degree murder conviction into

the conviction for felony murder and sentenced Marentes to life in

prison without the possibility of parole (LWOP).

II. Discussion

¶ 11 Marentes contends that the judgment should be reversed

because the district court erred by (1) denying his counsel’s request

for a mistrial; (2) admitting inadmissible hearsay and opinion

testimony; and (3) allowing improper argument by the prosecutor.

He also contends that, if none of these errors individually merit

reversal, they do when considered cumulatively. In the alternative,

Marentes contends that his LWOP sentence is unconstitutional. We

don’t see any error requiring reversal of his conviction and conclude

that Marentes’ sentence isn’t unconstitutional.

A. Motion for Mistrial

¶ 12 Marentes first contends that the district court should have

granted a mistrial because a juror’s conduct denigrated the defense

and conveyed to other jurors the juror’s opinion that Marentes was

guilty. The juror’s conduct, he says, violated his due process and

5
Sixth Amendment rights to an impartial jury. We conclude that the

district court didn’t abuse its discretion by denying the request for a

mistrial.

1. Additional Background

¶ 13 At the end of the third day of trial, Juror 2 approached the

district court’s clerk to raise a concern. The clerk told the court

that “[s]ome of the jurors are making comments while they’re

writing notes” in the jury room.

¶ 14 The next morning, the court’s clerk and judicial assistant

conveyed a second concern. Juror 9, a baker by trade, had told the

judicial assistant that she had brought cookies for the jurors,

cupcakes for court staff, a baguette for the judge, and brownies for

the prosecution, but had said that “they’re not for those people,

meaning the Defense. She was very adamant about that.” Juror 9

later told the clerk, Juror 1, and Juror 5 that “the brownies are for

the [prosecutor], but not for [the defense].”

¶ 15 The court discharged Juror 9 based on the concern that she

might be biased against Marentes. The court decided to question

each juror separately to determine whether Juror 9’s comments and

6
actions had impacted them. It questioned each of the jurors in

camera (with prosecutors and defense counsel present).

¶ 16 Juror 1 said that she had heard Juror 9 say she had brought

various baked goods. Juror 1 also said that the jurors hadn’t been

discussing the case in the jury room and there weren’t any

comments about who the baked goods weren’t for. Juror 1 left the

court’s chambers for a moment but came back before the next juror

and said, “I said one thing that was not true. . . . She did say who

[the baked goods] were not for. I’m sorry.” She confirmed that

Juror 9 didn’t intend to give baked goods to the defense. But

Juror 1 also said that she could be unbiased and fair and “[t]hat

[the] whole baked goods thing, that has absolutely nothing to do

with it. I mean, this is important business.”

¶ 17 Juror 2 asserted that it was Juror 9 who had been mumbling

under her breath the previous day. She said she wasn’t sure

whether Juror 9 was mumbling about the case. But she said she

was uncomfortable with “the things that [Juror 9 was] saying under

their breath and the way they’re presenting themselves when they

go to the jury room.” Juror 9 had apparently said something that

7
sounded like “a friend” when she got back to the jury room and

some of Juror 9’s “mannerisms” made Juror 2 uncomfortable.

¶ 18 Juror 3 said the day before he had heard an inappropriate

comment by Juror 9 to the effect of “well, shit, if you know he did

it.” But Juror 3 hadn’t heard anything about the baked goods.

¶ 19 Juror 5 said that Juror 9 had brought baked goods “for the

People and the Judge, [judicial assistant], [clerk], and not for [the

defense].” Juror 5 said she was “taken aback by the anger inside

[Juror 9]” but that the incident didn’t impact her “ability to judge

and do what I feel is right.”

¶ 20 Juror 6 said she hadn’t heard any comments from any of the

jurors, including Juror 9. But when defense counsel pressed her

for more information, she said, “There was a moment yesterday

where somebody muttered something under their breath that, like,

gave me pause, but I do not remember -- like, truly, I do not

remember who it was. I just remember having the thought of like

maybe you shouldn’t say that.”

¶ 21 Juror 10 said he had heard the baked goods were for the

prosecutors and the court but not the defense. He also heard

8
Juror 9 make comments like “why did he run.” But he said he

could remain fair and impartial.

¶ 22 Juror 11 said that he heard Juror 9 make comments like “no,

no, no” during one of the witness’s testimony. But he said he was

annoyed by her comments and had tried to ignore them.

¶ 23 Jurors 4, 7, 12, and 13 said they hadn’t heard any improper

comments by other jurors or anything about baked goods.

¶ 24 After these interviews, Marentes’ counsel moved for a mistrial,

“given that a number of jurors heard the comments by [Juror 9,]

and they weren’t solely about baked goods but rather there were

comments denigrating the [d]efense throughout the trial. And,

additionally, she was attempting to communicate with witnesses

testifying or had audible comments on witnesses testifying.”

Counsel added, “[T]he first juror was so concerned about these

circumstances that she initially told us something that wasn’t

truthful and then came back and . . . admitted to that happening.

That, to me, says the jurors are conscious that something not

appropriate is happening.”

¶ 25 The district court denied the motion for a mistrial. It found

that “the jurors are incredibly fair [and] unbiased.” And the court

9
concluded that the remaining jurors weren’t “moved by [Juror 9’s]

comments, and I think, for the lack of a better word, offended by

them in terms of their duties as jurors.”

2. Applicable Law and Standard of Review

¶ 26 “The due process clauses of the United States and Colorado

Constitutions guarantee every criminal defendant the right to a trial

by an impartial jury.” People v. Dahl, 160 P.3d 301, 304 (Colo. App.

2007) (quoting People ex rel. Faulk v. Dist. Ct., 673 P.2d 998, 1000

(Colo. 1983)).

Central to the right to a fair trial, guaranteed
by the Sixth and Fourteenth Amendments, is
the principle that “one accused of a crime is
entitled to have his guilt or innocence
determined solely on the basis of the evidence
introduced at trial, and not on grounds of
official suspicion, indictment, continued
custody, or other circumstances not adduced
as proof at trial.”

Holbrook v. Flynn, 475 U.S. 560, 567 (1986) (quoting Taylor v.

Kentucky, 436 U.S. 478, 485 (1978)).

¶ 27 We won’t second-guess a district court’s ruling denying a

request for a mistrial absent a showing of a gross abuse of

discretion and prejudice to the defendant. People v. Owens, 2024

CO 10, ¶ 125. “A mistrial is the most drastic of remedies.” Id.

10
(quoting People v. Collins, 730 P.2d 293, 303 (Colo. 1986)). “[I]t is

warranted only when the prejudice to the defendant is too

substantial to be remedied by other means.” Id.

3. Analysis

¶ 28 We conclude that the district court didn’t abuse its discretion

by denying Marentes’ counsel’s motion for a mistrial, for four

related reasons.

¶ 29 First, there’s no evidence that the remaining jurors deliberated

before being instructed by the court to do so. Some jurors heard

Juror 9 making statements under her breath, but the jurors who

did were annoyed or confused about what she was saying. The

remaining jurors relayed that Juror 9 had said, “a friend”; “no, no,

no”; “well, shit, if you know he did it”; or “why did he run.” Her

comments may have bewildered the other jurors, but there’s no

indication in the record that the remarks led any of them to

predeliberate. Cf. People v. Clark, 2015 COA 44, ¶¶ 230, 239-244

(remanding for an evidentiary hearing on consideration of

extraneous information and possible juror predeliberation with an

alternate juror); People v. Kinney, 148 P.3d 318, 324-25 (Colo. App.

2006) (“There is nothing whatever in the record to support

11
defendant’s speculation that keeping the transcripts in the

notebooks ‘likely encouraged predeliberation.’”), rev’d, 187 P.3d 548

(Colo. 2008).

¶ 30 Second, there is no evidence in the record that any of the

remaining jurors acted in a way suggesting bias against the

defense. The remaining jurors said things like “[t]hat whole baked

goods thing, that has absolutely nothing to do with it [—] I mean,

this is important business”; the events wouldn’t affect the juror’s

“ability to judge and do what I feel is right”; and any comments

Juror 9 made were inappropriate — meaning if she was denigrating

the defense, the other jurors felt that she was being unfair. See

People v. Manzanares, 942 P.2d 1235, 1238-39 (Colo. App. 1996)

(refusal to grant a mistrial wasn’t an abuse of discretion where a

discharged juror knew the defendant’s father and told other jurors),

abrogated on other grounds by, Riley v. People, 266 P.3d 1089, 1094

(Colo. 2011).

¶ 31 Third, there is no evidence in the record showing that the

remaining jurors were somehow unable to disregard Juror 9’s

conduct. The court questioned each juror, and none of them

indicated that they were influenced by Juror 9’s comments or

12
behavior, even when they understood what Juror 9 had said.

Indeed, several of the jurors indicated that they had tried to ignore

Juror 9. See People v. Johnson, 757 P.2d 1098, 1100 (Colo. App.

1988) (“[D]efendant has failed to show that the remaining jurors

were unfair or biased, or that he was actually prejudiced by the

dismissal and replacement of this particular juror.”).

¶ 32 Finally, there is no evidence in the record indicating that the

remaining jurors couldn’t be fair and impartial. After dismissing

Juror 9, the court found, based on the jurors’ answers to questions,

that each juror could be fair and impartial. This was so even as to

Juror 1, who admitted that she hadn’t been entirely truthful during

her first conversation with the court and counsel. It was within the

district court’s discretion to credit the jurors’ assurances of their

ability to be fair and impartial. People v. Christopher, 896 P.2d 876,

878 (Colo. 1995) (“The trial court is in the best position to view the

demeanor of a juror claiming impartiality, and the record must

affirmatively demonstrate that the trial court abused its discretion

before its decision can be disturbed on appeal.”).

¶ 33 Nonetheless, Marentes contends that unrelated instances of

audible crying in the courtroom emphasized the need to declare a

13
mistrial. While he concedes that these incidents didn’t, by

themselves, justify declaring a mistrial, he argues that they added

to the prejudice caused by Juror 9’s misconduct. But, as an

analytical matter, we don’t see what these incidents add to the

assessment of whether a mistrial was required based on Juror 9’s

conduct. As Marentes concedes, these incidents weren’t related to

that conduct. Thus, they have relevance only if, separate from

Juror 9’s conduct, they required a mistrial — an argument

Marentes expressly disavows.

¶ 34 In any event, we don’t see any added unfair prejudice created

by these incidents.

¶ 35 Sometime after the prosecution introduced a door-security-

camera video in which yelling and gunshots can be heard,

Marentes’ counsel told the court during a bench conference that

“there was some audible crying out in -- and weeping out in the

courtroom by the victim’s family.” Counsel didn’t ask the court to

do anything other than to exercise caution in distributing to the

jury another video that was about to be introduced. The court

noted that the family members making the noise had left the

courtroom by the time Marentes’ counsel raised the concern.

14
¶ 36 During the prosecutor’s closing argument, the victim’s mother

started crying. Marentes’ counsel asked the court during a bench

conference to order the victim’s family members to leave the

courtroom if they weren’t “able to control their emotions.” The

court and both parties’ counsel noted that the victim’s mother had

been crying but had already left the courtroom on her own volition

by the time Marentes’ counsel raised the issue. The court found

that the jury had “a relatively short period of time” to hear the

crying.

¶ 37 The emotional impact of the evidence, and, indeed, of the

murder itself and the resulting trial, on the victim’s family is to be

expected in a case of this nature, and we doubt the jurors would be

surprised or swayed by the limited showings of emotion in question.

And, in this case, unlike the cases on which Marentes relies, no one

in the audience organized a display in support of conviction. See

Norris v. Risley, 918 F.2d 828, 830 (9th Cir. 1990); Woods v.

Dugger, 923 F.2d 1454, 1457 (11th Cir. 1991). Given all that, we

fail to see how the incidents “confirmed the need for a mistrial.”

15
B. Detective’s Testimony

¶ 38 Marentes next contends that the district court reversibly erred

by allowing Detective Crider to testify that (1) he didn’t think self-

defense was applicable to this case and (2) M.Z.’s contradictory

statements in her police interview didn’t give him pause because

M.Z.’s testimony incriminating Marentes was corroborated by other

evidence. We conclude that, even assuming that the district court

erred by admitting the statements, the errors were harmless.

1. Comment on Self-Defense

a. Additional Background

¶ 39 Marentes’ first contention is based on the following exchange:

[Prosecutor:] And did any of the interviews that
you conducted, did they lead you to believe
this case was – had anything to do with self-
defense?

[Detective Crider:] No, sir.

[Defense counsel:] Objection, calls for legal
conclusion, move to strike.

The Court: I think he’s asking if there’s any
associated evidence to lead you to believe that
there was – that there was a self-defense – that
a person was acting in self-defense.

[Prosecutor:] That’s correct.

The Court: Overruled.

16
b. Standard of Review and Applicable Law

¶ 40 “Trial courts have broad discretion to determine the

admissibility of evidence, and we review those rulings for an abuse

of discretion.” People v. Ray, 2025 CO 42M, ¶ 19 (citing Davis v.

People, 2013 CO 57, ¶ 13). A court abuses its discretion if its

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

misapplies the law. Id. (citing People v. Montoya, 2024 CO 20,

¶ 47).

¶ 41 We consider arguments pertaining to the admission of

evidence that were preserved by timely objection under the

harmless error standard. Id. (citing Montoya, ¶ 47).2 We reverse for

2 We decline Marentes’ request to apply a constitutional harmless

error standard of reversal. He relies on Andrew v. White, 604 U.S.
86 (2025), for the proposition that the Due Process Clause protects
against “unduly prejudicial evidence at a criminal trial.” But in that
case, the Supreme Court explicitly didn’t address whether the
errors in question were harmless in light of the substantial evidence
of guilt. Id. at 89 n.1 (“The Court today says nothing about the
strength of the evidence against Andrew because the issue of
prejudice in both the guilt and sentencing phases of the trial is one
for the Tenth Circuit to consider on remand.”). And the law is clear
in Colorado that we apply the constitutional harmless error
standard only if the error “specifically and directly offend[s] a
defendant’s constitutional rights.” Wend v. People, 235 P.3d 1089,
1097 (Colo. 2010). That standard doesn’t apply to a garden-variety
evidentiary error. See Krutsinger v. People, 219 P.3d 1054, 1062
(Colo. 2009).

17
nonconstitutional trial error “only if the error affects the substantial

rights of the parties.” Hagos v. People, 2012 CO 63, ¶ 12.

¶ 42 “Testimony in the form of an opinion or inference otherwise

admissible is not objectionable because it embraces an ultimate

issue to be decided by the trier of fact.” People v. Baker, 2021 CO

29, ¶ 31 (quoting CRE 704). “[I]n some circumstances, police

officers may testify about the reasons they took certain investigative

steps, even where this testimony touches upon prohibited subjects.”

People v. Penn, 2016 CO 32, ¶ 32. But “a witness cannot testify

that he believes that the defendant committed the crime at issue.”

Id. at ¶ 31.

c. Analysis

¶ 43 Even if we assume that the district court erred by admitting

Detective Crider’s response, any error was harmless.3 Detective

Crider’s testimony was a two-word response to a single question on

3 The People argue that Marentes’ counsel “opened the door” by

“direct attacks on the detective’s honesty and professional
competence, that his investigation was not looked at or even cared
whether the defendant shot the victim in self-defense, and that the
detective had assembled the evidence to conform with his pre-
conceived, corrupt and irresponsible theory about the case.” See,
e.g., People v. Cohen, 2019 COA 38, ¶ 26. Because we conclude
that any error was harmless, we won’t address this argument.

18
the issue of self-defense. See People v. Ornelas, 937 P.2d 867, 872

(Colo. App. 1996) (a police detective’s “fleeting” reference to evidence

supporting a search warrant didn’t undermine the fundamental

fairness of the trial). Also, the evidence of Marentes’ guilt is

substantial. Witnesses testified that Marentes conspired with

others to rob Del Valle, concealed himself in darkness after luring

Del Valle with promises of sex, and shot Del Valle in the head as he

drove away. Afterward at the party, Marentes and Junior bragged

that they had killed Del Valle. And Marentes’ attempt to evade

apprehension and dispose of the murder weapon was clear evidence

of a guilty mind. See Tevlin v. People, 715 P.2d 338, 342 (Colo.

1986) (“In light of the overwhelming evidence of guilt produced in

this case, we conclude that the error in admitting this testimony

was harmless.”).

2. Comment on M.Z.’s Interview

a. Additional Background

¶ 44 The jury watched a video recording of an interview Detective

Crider conducted with M.Z. During that interview, M.Z. made

contradictory statements about who had planned to rob Del Valle

and who had shot him. During Detective Crider’s testimony, he

19
discussed M.Z.’s contradictions. Later, the court asked him the

following question from a juror without objection: “Given [M.Z.’s]

numerous contradictory statements [re]: events and parties

involved, did you have any concerns about her credibility as a key

witness?” He responded,

Sure. I mean, we saw her interview. But,
again, we’re able to corroborate a lot of her
interview with evidence that we have, with
phone records that we have, with Snapchat
that we have, and six other people at the party.
So we don’t just rely on [M.Z.’s interview] at
all.

Defense counsel objected on both hearsay and confrontation

grounds. The court overruled both objections.

b. Applicable Law and Standard of Review

¶ 45 Hearsay is inadmissible unless it falls within an exception or

exclusion in a rule or statute. CRE 802. Hearsay is an out-of-court

statement “offered in evidence to prove the truth of the matter

asserted.” CRE 801(c). A statement is an oral or written assertion,

or communicative nonverbal conduct. CRE 801(a). “The rule

against hearsay encompasses not only verbatim out-of-court

statements, but also implied hearsay or testimony that raises an

20
inference of out-of-court statements.” People v. Vigil, 2024 COA 72,

¶ 28.

¶ 46 Because Marentes’ counsel objected on hearsay grounds, we

review any hearsay error for ordinary harmlessness. Hagos, ¶ 12.

¶ 47 “The Sixth Amendment of the United States Constitution

affords to the accused the right ‘to be confronted with the witnesses

against him.’” Marshall v. People, 2013 CO 51, ¶ 15 (quoting U.S.

Const. amend. VI). The Confrontation Clause prohibits “admission

of testimonial statements of a witness who did not appear at trial

unless he was unavailable to testify, and the defendant had had a

prior opportunity for cross-examination.” Crawford v. Washington,

541 U.S. 36, 53-54 (2004).

¶ 48 We apply the constitutional harmless error standard to

constitutional trial errors, including Confrontation Clause

violations. Raile v. People, 148 P.3d 126, 133 (Colo. 2006) (citing

People v. Fry, 92 P.3d 970 (Colo. 2004)).4 Under this standard, the

4 Marentes contends — and the People concede — that he preserved

this issue for appeal. We note, however, that his trial counsel didn’t
object to the juror’s question, which called for Detective Crider’s
opinion of M.Z.’s credibility as it related to the evidence discovered
in his investigation.

21
People must show that the error was harmless beyond a reasonable

doubt, meaning that the jury’s verdict was surely unattributable to

the error. People v. Stone, 2021 COA 104, ¶ 29. Admission of

cumulative evidence that doesn’t substantially influence the verdict

or affect the fairness of proceedings is harmless beyond a

reasonable doubt. People v. Griffin, 985 P.2d 15, 19 (Colo. App.

1998) (citing People v. Fuller, 788 P.2d 741 (Colo. 1990)).

c. Analysis

¶ 49 Without deciding whether the district court erred by allowing

this testimony, we conclude that any error was harmless beyond a

reasonable doubt. As noted, Detective Crider said that he was able

to “corroborate a lot of [M.Z.’s] interview with evidence that we have,

with phone records that we have, with Snapchat that we have, and

six other people at the party.” The jury had already seen the

Snapchat clip, the phone records had also already been admitted

into evidence, and several witnesses (both of the incident and the

party) testified. Marentes therefore wasn’t prejudiced by Detective

Crider’s repeating things the jury already knew or would come to

know by the end of the presentation of evidence. See Griffin, 985

P.2d at 19.

22
¶ 50 We also agree with the People that because the detective

referred to the witnesses “at the party,” and Marentes’ behavior at

the party was uncontested, the detective’s testimony was minimally

prejudicial.

¶ 51 Lastly, as discussed, the evidence of Marentes’ guilt was

overwhelming. See Blecha v. People, 962 P.2d 931, 944 (Colo. 1998)

(independent evidence substantiating the defendant’s conviction

makes erroneously admitted evidence “‘so unimportant and

insignificant’ that it is to be deemed harmless” (quoting Chapman v.

California, 386 U.S. 18, 22 (1967))); People v. Caswell, 2021 COA

111, ¶ 32 (error is harmless beyond a reasonable doubt where

properly admitted evidence of guilt was “overwhelming”), aff’d, 2023

CO 50.5

¶ 52 Having concluded that any Confrontation Clause error was

harmless beyond a reasonable doubt, it follows that any hearsay

error was harmless. Hagos, ¶ 12 (“Reversal is more difficult to

5 Marentes relies on Golob v. People, 180 P.3d 1006 (Colo. 2008).

But in that case, the court only decided whether the testimony at
issue was admissible: It didn’t decide whether the error in admitting
the testimony required reversal. Id. at 1011. In this case, we
decide only the latter question.

23
obtain under [the harmless error standard] than under the

constitutional harmless error standard because this standard

requires that the error impair the reliability of the judgment of

conviction to a greater degree than the constitutional harmless

error standard requires.” (citing Krutsinger v. People, 219 P.3d

1054, 1058 (Colo. 2009)).

C. Prosecutorial Misconduct

¶ 53 Marentes also contends that the district court erred by

allowing the prosecutor to argue that S.D.’s testimony was more

credible because she received immunity from the prosecution. We

disagree.

1. Additional Background

¶ 54 S.D. testified that she was at both the party and the scene of

Del Valle’s murder. During that testimony, the prosecutor and

Marentes’ counsel asked her about the immunity she had received

in exchange for her truthful testimony. S.D. said immunity meant

that nothing truthful that she said could be used against her. She

also acknowledged that if she were charged as an adult and

convicted for Del Valle’s murder, she could be sentenced to life in

prison with the possibility of parole after forty years.

24
¶ 55 The prosecutor mentioned S.D.’s immunity during his rebuttal

closing argument:

[Prosecutor:] You also heard that we provided
use immunity for [S.D.]. What that means is
that we cannot prosecute her for anything that
she said on the stand except for perjury. It
also means she can’t claim a Fifth Amendment
right not to testify. She was ordered to testify.
If anything, that situation, immunity, should
give more credibility to [S.D.], right?

Defense counsel objected that the prosecutor was vouching for

S.D.’s credibility. The court overruled that objection. The

prosecutor continued,

When she’s on the stand, the only thing she
needs to worry about is perjury. We can’t
prosecute her for anything she said. That
lends credibility to her testimony.

2. Applicable Law and Standard of Review

¶ 56 “Prosecutors are generally given ‘wide latitude to make

arguments based on facts in evidence and reasonable inferences

drawn from those facts.’” Ray, ¶ 129 (quoting People v. Strock, 252

P.3d 1148, 1153 (Colo. App. 2010)). But “while prosecutors ‘can

use every legitimate means to bring about a just conviction,’ they

have ‘a duty to avoid using improper methods designed to obtain an

unjust result.’” Id. (quoting Domingo-Gomez v. People, 125 P.3d

25
1043, 1048 (Colo. 2005)). “Comments calculated to mislead the

jury or that suggest the prosecution has access to evidence the

jurors don’t are improper.” Id. (citing Domingo-Gomez, 125 P.3d at

1048-49).

¶ 57 When we review a claim of prosecutorial misconduct, we first

review the prosecutor’s statements to determine whether they were

improper based on the totality of the circumstances. Wend v.

People, 235 P.3d 1089, 1096 (Colo. 2010). If we determine that any

of the statements were improper, we then apply the appropriate

standard of reversal. Id. We review a preserved challenge to

prosecutorial misconduct of nonconstitutional dimension for

harmless error. Id. at 1097.

3. Analysis

¶ 58 The evidence of a plea agreement was admissible, as was

evidence of its terms, as it related to the consequences S.D. faced if

she didn’t testify truthfully. People v. Racheli, 878 P.2d 46, 48

(Colo. App. 1994) (Evidence of a plea agreement is admissible to

allow “the finder of fact to consider all the pertinent factors

surrounding such agreement in making its assessment of the

witness’ credibility.”). Though witnesses in a criminal case

26
obviously face the prospect of perjury charges for testifying falsely,

S.D. had added incentive to testify truthfully because, given her role

and the plea agreement, she faced the prospect of imminent, even

more serious charges relating to the murder itself if she testified

untruthfully. Accordingly, the prosecutor could argue that the jury

could use that evidence to determine S.D.’s credibility. See Strock,

252 P.3d at 1153. That is especially so because defense counsel

tried to create the impression on cross-examination that the plea

agreement necessarily shielded her from a potential murder charge.

¶ 59 Marentes asks us to adopt the Ninth Circuit’s reasoning in

United States v. Roberts, 618 F.2d 530 (9th Cir. 1980). In Roberts,

the court concluded that a prosecutor couldn’t argue that a witness

was more believable because he had agreed to testify truthfully in

exchange for a guilty plea on a reduced charge. Id. at 536. But

several other courts, including a division of this court, have rejected

the reasoning in Roberts. See Racheli, 878 P.2d at 48 (courts may

admit “evidence of a plea agreement even if such agreement

requires the witness to testify truthfully as a condition thereof”);

State v. Ish, 208 P.3d 1281, 1287 (Wash. Ct. App. 2009) (the trial

court didn’t abuse its discretion by admitting evidence of a witness’

27
plea agreement requiring him to testify truthfully), aff’d, 241 P.3d

389 (Wash. 2010); see also State v. Flores, 281 A.3d 420, 445

(Conn. 2022) (“[A]lthough it would have been better if this particular

reference to truthfulness had been omitted — and although we

believe that, in the future, the state should avoid such language —

we stop short of concluding that the trial court abused its discretion

in admitting that portion of the cooperation agreement.”). In any

event, even the Ninth Circuit has limited Roberts’ application,

holding that “references to requirements of truthfulness in plea

bargains do not constitute vouching when the references are

responses to attacks on the witness’ credibility because of his plea

bargain.” United States v. Shaw, 829 F.2d 714, 716 (9th Cir. 1987)

(citing cases). And, as noted above, that is what defense counsel

did on cross-examination.

¶ 60 In People v. Sellers, 2022 COA 102 (Sellers I), aff’d on other

grounds, 2024 CO 64 (Sellers II), the division held that

[t]he specifics of a plea agreement between the
prosecution and a witness — including the
requirement that the witness provide “truthful
testimony” — is admissible, at least where the
prosecutor does not express an opinion that
the witness actually told the truth and there is

28
no suggestion that the prosecutor possesses
information unavailable to the jury.

Id. at ¶ 30. Therefore, the court further held, the prosecutor didn’t

commit misconduct by telling the jury in opening statement about a

plea deal the prosecution entered into with a witness to get the

witness to “testify truthfully.” Id. at ¶¶ 29-31.

¶ 61 In this case, too, the prosecutor didn’t express a personal

opinion that S.D. had testified truthfully or indicate that she had

information not before the jury, but instead argued that the

obligation to testify truthfully supported her credibility. Thus, the

prosecutor didn’t commit misconduct.

D. Cumulative Error

¶ 62 We reject Marentes’ cumulative error argument. Considering

the two errors we have assumed for purposes of argument (allowing

the detective’s statements), we don’t perceive that Marentes was

denied his right to a fair trial. Howard-Walker v. People, 2019 CO

69, ¶ 24.

E. LWOP Sentence

¶ 63 Marentes contends that the district court erred by sentencing

him to LWOP for felony murder because that sentence is

29
categorically unconstitutional or, in the alternative, is grossly

disproportionate to his offense in violation of the Eighth

Amendment to the United States Constitution and article II, section

20 of the Colorado Constitution. We reject both contentions.

1. Standard of Review and Applicable Law

¶ 64 “We review de novo the constitutionality of statutes.” Sellers

II, ¶ 16. We also review de novo whether a sentence is grossly

disproportionate to the offense in violation of the Eighth

Amendment and article II, section 20 of the Colorado Constitution.

Wells-Yates v. People, 2019 CO 90M, ¶ 35.

¶ 65 The Eighth Amendment and article II, section 20 provide that

“[e]xcessive bail shall not be required, nor excessive fines imposed,

nor cruel and unusual punishments inflicted.” U.S. Const. amend.

VIII; Colo. Const. art. II, § 20. “This prohibition ‘guarantees

individuals the right not to be subjected to excessive sanctions.’”

Sellers II, ¶ 17 (quoting Miller v. Alabama, 567 U.S. 460, 469

(2012)). “This right stems from the concept that punishment for a

crime should be proportionate to both the offender and the offense.”

Id.

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2. Categorical Unconstitutionality

¶ 66 Marentes argues that LWOP sentences for felony murder are

categorically unconstitutional. But, as Marentes acknowledges, we

are bound by the supreme court’s decision in Sellers II, in which the

court held that such a sentence isn’t categorically unconstitutional.

3. Disproportionality

¶ 67 Marentes also contends that his sentence is grossly

disproportionate. We disagree.

¶ 68 The Eighth Amendment “forbids only extreme sentences that

are ‘grossly disproportionate’ to the crime.” Wells-Yates, ¶ 5

(quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy,

J., concurring in part and concurring in the judgment)); accord

Rutter v. People, 2015 CO 71, ¶ 15. “[I]n conducting proportionality

reviews in non-capital cases, courts will rarely conclude that a

defendant’s sentence is grossly disproportionate.” Rutter, ¶ 16.

Because fixing prison sentences for crimes is uniquely within the

General Assembly’s province, courts “grant ‘substantial deference to

the broad authority that legislatures necessarily possess in

determining the types and limits of punishments for crimes, as well

as to the discretion that trial courts possess in sentencing convicted

31
criminals.’” Sellers II, ¶ 41 (quoting Solem v. Helm, 463 U.S. 277,

290 (1983)).

¶ 69 To determine whether a sentence is constitutionally

proportionate to the crime, we apply a two-step process. Id. at ¶ 44.

The first step is an abbreviated proportionality review: We consider

“(a) the gravity or seriousness of the offense along with (b) the

harshness of the penalty.” Id. “When a crime is per se grave or

serious, a sentencing court may skip the determination regarding

the gravity or seriousness of the offense and proceed directly to

assess the harshness of the penalty.” Id. at ¶ 48.

¶ 70 If the abbreviated proportionality review gives rise to an

inference of gross disproportionality, we go to step two — the

extended proportionality review. Id. at ¶ 45. In step two, “the court

may compare the defendant’s sentence to sentences for other

crimes in the same jurisdiction and to sentences for the same crime

committed in other jurisdictions.” Id. at ¶ 44.

¶ 71 Applying step one, we agree with the division’s reasoning in

Sellers I: “Felony 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. Thus, every factual scenario

32
giving rise to a charge of felony murder will be grave or serious.”

Sellers I, ¶ 65. And robbery, the predicate crime for Marentes’

felony murder conviction, is also a per se grave or serious crime.

Wells-Yates, ¶ 64 (“A conviction for robbery is per se grave or

serious because it will always involve knowing conduct and grave

harm (or the threat of grave harm) to the victim or society (or

both).”); accord People v. Kennedy, 2025 CO 63, ¶ 19. It would be

an odd result indeed to conclude that robbery loses this status

when it leads to the death of another person.6

¶ 72 Turning to the harshness of the penalty, the facts in this case

are at least as grave or serious as those in Sellers I — in which the

defendant was convicted of conspiracy to murder the victim — and

Harmelin — in which the defendant received a LWOP sentence for

possessing 672 grams of cocaine. See Sellers I, ¶¶ 5-6; Harmelin,

501 U.S. at 988. Marentes conspired with others to rob Del Valle.

Marentes and Junior hid in the shadows with their guns loaded

while M.Z. lured Del Valle from his car and into the street. And as

6 The court instructed the jury that robbery or attempted robbery

was an element of the felony murder charge that the prosecution
was required to prove beyond a reasonable doubt. And the court
instructed the jury on the elements of robbery.

33
soon as he got out of his car, Marentes ambushed him, shouted

that he was robbing him, raised his gun (with a bullet in the

chamber), and subsequently fired the shot that killed Del Valle. Put

simply, Marentes wasn’t a getaway driver; he was the trigger man.7

¶ 73 We recognize that LWOP is the most severe sentence

authorized by the General Assembly. “Nonetheless, the Supreme

Court has concluded that sentencing certain defendants who have

committed felonies to LWOP does not necessarily run afoul of the

Eighth Amendment.” Sellers II, ¶ 52 (citing Harmelin, 501 U.S. at

994-96). Thus, we conclude that Marentes’ sentence doesn’t give

rise to an inference of gross disproportionality, and therefore an

extended proportionality review isn’t warranted. See id. at ¶ 53.

III. Disposition

¶ 74 We affirm the district court’s judgment and sentence.

JUDGE GROVE concurs.

JUDGE SCHUTZ specially concurs.

7 These facts also support the conclusion that Marentes’ offense

was, in fact, grave or serious. See Sellers v. People, 2024 CO 64,
¶¶ 49-50.

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JUDGE SCHUTZ, specially concurring.

¶ 75 I agree with the result reached in the majority opinion and

nearly all of the majority’s reasoning. I write separately, however,

because I believe the majority opinion unnecessarily concludes that

felony murder is per se grave or serious.

¶ 76 As the majority correctly notes, in People v. Sellers, 2022 COA

102 (Sellers I), aff’d on other grounds, 2024 CO 64 (Sellers II), a

division of this court 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. Thus, every

factual scenario giving rise to a charge of felony murder will be

grave or serious.” Sellers I, ¶ 65.

¶ 77 But the conclusion in Sellers I was not endorsed on appeal.

Rather, the supreme court stated as follows:

[W]e begin by noting that we have never
determined whether felony murder is a per se
grave or serious offense. Unlike the division
below, . . . we perceive no need to decide
whether it is because even assuming without
deciding that it is not per se grave or serious,
the application of the above-described factors
to this case establish that Sellers’s offense
was, in fact, grave and serious.

Sellers II, ¶ 49.

35
¶ 78 I would heed the supreme court’s judicial restraint in this case

as well. In my estimation, there is no need to decide whether felony

murder is per se grave or serious because, as the majority correctly

reasons, the specific facts of this case make clear that the felony

murder Marentes committed was grave or serious.

¶ 79 As the supreme court recently reminded us,

[d]espite [the] benefits of efficiency and
consistency, we have encouraged caution
before labeling a crime as per se grave or
serious. Wells-Yates [v. People, 2019 CO 90M],
¶¶ 61-62. We have done so because the label
eliminates a longstanding layer of due process
for criminal defendants. Hence, we have
observed that the per se designation should
rarely be used. Id. at ¶ 63.

People v. Kennedy, 2025 CO 63, ¶ 17. Because we have an

alternative option in this case, I would avoid any suggestion that,

“based on the elements of the offense, there’s ‘no set of

circumstances’ where the conduct and culpability of a convicted

individual aren’t grave and serious.” Id. at ¶ 18 (quoting United

States v. Salerno, 481 U.S. 739, 745 (1987)).

¶ 80 Such caution is particularly appropriate in the felony murder

context given recent legislation that changed felony murder from

murder in the first degree to murder in the second degree, see Ch.

36
58, secs. 1, 2, §§ 18-3-102, -103, 2021 Colo. Sess. Laws 235-36,

and established an affirmative defense for someone charged with

felony murder who was not as culpable as others who were involved

in the underlying felony:

It is an affirmative defense to [felony murder]
that the defendant:

(a) Was not the only participant in the
underlying crime; and

(b) Did not commit the homicidal act or in any
way solicit, request, command, importune,
cause, or aid the commission thereof; and

(c) Was not armed with a deadly weapon; and

(d) Did not engage himself or herself in or
intend to engage in and had no reasonable
ground to believe that any other participant
intended to engage in conduct likely to result
in death or serious bodily injury.

§ 18-3-103(1.5), C.R.S. 2025. This legislation, which became

effective after Marentes’s crime, reflects a continuing evolution in

Colorado’s assessment of the severity of felony murder, and it

establishes an affirmative defense for some participants in an

underlying felony murder by which they could now be found not

37
guilty. See Wells-Yates, ¶¶ 54-73 (reviewing recent legislation and

concluding that not all drug offenses, generally, and narcotics

possession, specifically, are per se grave or serious).

¶ 81 Finally, I am persuaded that judicial restraint is particularly

important in creating new classes of “per se grave or serious” crimes

given the supreme court’s ongoing reflection and disagreement on

whether this unique Colorado doctrine should be completely

jettisoned. Compare Kennedy, ¶ 23 (concluding that vehicular

homicide is not per se grave or serious), with id. at ¶ 48 (Boatright,

J., concurring in part and concurring in the judgment) (“[V]ehicular

homicide — DUI should be deemed per se grave or serious . . . .”),

and id. at ¶ 49 (Samour, J., specially concurring) (“[T]here are

compelling reasons for our court to rid our jurisprudence of the ‘per

se grave or serious’ designation in proportionality reviews of

sentences.”).


The recently enacted affirmative defense would not apply to
Marentes’s crime because the crime was committed before the
statute was enacted and, in any event, his actions did not meet the
enumerated criteria for the affirmative defense. But that is the
point: The per se grave or serious designation captures any
conviction for the labeled offense regardless of the specific actions of
differently situated parties convicted under that offense.

38
¶ 82 Because I think judicial restraint in addressing whether felony

murder is per se grave or serious is particularly warranted in this

case, I would not address that issue in any manner.

Accordingly, I concur in the judgment.

39