Peo v. Garcia Valdivia

23CA0719 Peo v Garcia Valdivia 04-16-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0719
Arapahoe County District Court No. 22CR972
Honorable Eric White, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jose Garcia Valdivia,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE LIPINSKY
Welling and Tow, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 16, 2026

Philip J. Weiser, Attorney General, Yaried A. Hailu, Assistant Attorney General
Fellow, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Sean James Lacefield, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Jose Garcia Valdivia appeals his conviction for felony

menacing. (At oral argument, Garcia Valdivia’s counsel requested

that we refer to his client as “Garcia.” We do so in this opinion.)

We reverse and remand for a new trial.

I. Background

A. The Shooting

¶2 Jose Mendoza called 911 early one morning to report that he

had been shot in the hand. When police officers arrived, Mendoza

told them that Garcia had shot him.

¶3 Mendoza testified at trial that a fight broke out between him

and Garcia at the apartment of their mutual friend Jannett Salazar.

Mendoza said Garcia pointed a gun at him, and when Mendoza

tried to grab it, the gun fired, striking him in the pinky finger.

¶4 Garcia was charged in Arapahoe County — the Eighteenth

Judicial District — with two counts of second degree assault, one

count of felony menacing, one count of first degree assault, and two

crime of violence sentence enhancers. Garcia’s theory of defense

was that, not only did he not shoot Mendoza, but he was never at

Salazar’s apartment the day of the shooting. At the conclusion of

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trial, the jury acquitted Garcia of all counts except felony menacing.

The trial court sentenced him to probation.

B. Mendoza’s and Salazar’s Testimony

¶5 Mendoza and Salazar were the only eyewitnesses who testified

at trial; Garcia exercised his constitutional right not to testify.

¶6 Before cross-examining Salazar, defense counsel informed the

court that Salazar had an “open and active” criminal case in the

Eighteenth Judicial District, the same jurisdiction in which the trial

was taking place. Defense counsel sought to ask Salazar about the

pending charges against her. Defense counsel asserted that

Salazar’s testimony about her open criminal matter was “relevant to

[Salazar’s] credibility or bias in her testimony” because she was

being prosecuted by the same district attorney’s office — the Office

of the District Attorney for the Eighteenth Judicial District (the

District Attorney’s Office) — that was calling her to the witness

stand. Defense counsel explained,

She’s being called to the stand as [the
prosecution’s] witness. She has a reason or a
motive to cooperate or give favorable testimony
for this district attorney’s office. Even if no
explicit promises have been made, she still has
an incentive to try to not upset the district

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attorney’s office when addressing her case with
them.

¶7 The trial court noted it “[didn’t] appear that . . . any

offers . . . [had] been made to Ms. Salazar in exchange for her

testimony . . . . [I]t doesn’t appear that the People have explicitly

made Ms. Salazar’s cooperation a condition of any plea or a

condition of any favorable treatment” in her case. The court asked

Salazar’s counsel, who was present in the courtroom, whether

Salazar had engaged in discussions with the District Attorney’s

Office that had led her “to believe that there would be a benefit

here.” Her counsel told the court that Salazar “ha[d] not received

any promises[] [and had] not received any benefits in exchange for

her testimony.”

¶8 The court ruled that defense counsel would not be permitted

to cross-examine Salazar on her pending charges. The court

explained that it may have ruled differently “if there were any actual

discussions or expectations that Ms. Salazar had about her

testimony in this case and whether she anticipated that there would

be some sort of benefit for her in testifying here.” On the witness

stand, both Mendoza and Salazar linked Garcia to the shooting.

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Mendoza testified that Garcia shot him and described the

circumstances of the shooting. Salazar testified that, although she

did not witness the shooting, she saw Garcia pull out a gun, she

heard Mendoza tell him “to put the weapon down” and “just stop,”

she witnessed the two men wrestle for the gun and Mendoza try to

take the gun away from Garcia, and “all of a sudden it went off.”

Although Mendoza contradicted himself regarding other facts,

neither witness expressed any doubt that Garcia was the shooter or

suggested that anyone other than Garcia fired the shot that struck

Mendoza’s finger.

¶9 During closing argument, the prosecutor asserted that both

Mendoza and Salazar identified Garcia as the shooter and explained

to the jury why it should believe Salazar’s testimony: “Now

[Salazar], she clearly did not want to be here. She told you that she

had maintained a relationship with [Garcia] but did not maintain a

relationship with . . . Mendoza and she still identified [Garcia] as

the shooter.”

¶ 10 Defense counsel attacked both witnesses’ credibility by noting

the internal inconsistencies in Mendoza’s testimony, the differences

between his and Salazar’s versions of events, and Salazar’s

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“avoidant demeanor” on the witness stand. Defense counsel argued

that Salazar had been “withdrawn[] [and] hunched over” while

testifying and “visibly reluctant to answer” the prosecutor’s

questions. Further, defense counsel specifically said that Salazar

reluctantly gave “answers that supported Mr. Mendoza’s story” only

because he intimidated her while she was on the witness stand:

Mendoza “wasn’t just sitting quietly, he was getting up and down,

moving in the courtroom, coming in and out, making sure she knew

he was there.”

II. The Trial Court’s Order Barring Garcia from
Inquiring into Salazar’s Pending Criminal Case

¶ 11 Garcia contends the court violated his Sixth Amendment right

to confront the prosecution’s witness by precluding him from

cross-examining Salazar about her pending charges. We agree.

A. Standard of Review

¶ 12 “Trial courts have discretion to impose limits on

cross-examination of witnesses, and we will not disturb rulings on

those limits absent an abuse of that discretion.” Margerum v.

People, 2019 CO 100, ¶ 9, 454 P.3d 236, 239.

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¶ 13 If an error “is a preserved one of constitutional dimension, we

review for constitutional harmless error. To deem a constitutional

error harmless, the error must be found harmless beyond a

reasonable doubt.” Id. at ¶ 14, 454 P.3d at 240. “An error is not

harmless beyond a reasonable doubt if ‘there is a reasonable

possibility that the [error] might have contributed to the

conviction.’” Id. (quoting Hagos v. People, 2012 CO 63, ¶ 11, 288

P.3d 116, 119). When we review for constitutional harmless error,

“the question ‘is not whether, in a trial that occurred without the

error, a guilty verdict would surely have been rendered, but whether

the guilty verdict actually rendered in this trial was surely

unattributable to the error.’” Zoll v. People, 2018 CO 70, ¶ 18, 425

P.3d 1120, 1126 (quoting Sullivan v. Louisiana, 508 U.S. 275, 279

(1993)).

B. A Defendant’s Right to Confront the Prosecution’s Witnesses
About Their Involvement with the Criminal Justice System

¶ 14 A criminal defendant is guaranteed the right to “be confronted

with the witnesses against [them].” U.S. Const. amend. VI; Colo.

Const. art. II, § 16. This means that criminal defendants have a

constitutional right to confront the witnesses who testify against

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them. People v. Harmon, 2025 COA 38M, ¶ 51, 570 P.3d 499, 509.

“This right is primarily secured through cross-examination.”

Margerum, ¶ 10, 454 P.3d at 239.

¶ 15 In Margerum, the supreme court held that, for three reasons, a

defendant “must be permitted to question a prosecution’s witness

about her probationary status when the witness is on probation in

the same sovereign as the prosecution.” Id. at ¶ 12, 454 P.3d at

240. “First, a prosecution witness who is on probation in the same

state court system in which she is testifying is in a vulnerable

position” because the “witness’s ability to remain on probation is

potentially in jeopardy and the threat of probation revocation —

whether real or merely perceived — creates an incentive for a

witness to try to curry favor with the prosecution who can seek the

revocation of that witness’s probation.” Id. Second, “the desire to

potentially curry favor with a prosecutor who can affect a witness’s

probation creates at least a perception that the witness has a

motive to provide favorable testimony for the prosecution.” Id. And

third, “the witness’s credibility is always relevant, meaning parties

should be afforded wide latitude during cross-examination to

discover any potential source of bias and, more importantly, to

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provide the jury with all relevant information needed to make a

credibility determination.” Id.

¶ 16 In Reynolds-Wynn, a division of this court extended

Margerum’s reasoning to situations where the prosecution’s case

rested on the testimony of a witness who faced a criminal charge in

the same judicial district in which the defendant was being

prosecuted. People v. Reynolds-Wynn, 2024 COA 33, ¶ 4, 551 P.3d

1211, 1214-15.

¶ 17 A restriction on a defendant’s right to cross-examine a

prosecution witness rises to the level of a constitutional violation if

it excessively limits the defendant’s ability to do so, “especially . . .

concerning the witness’[s] bias, prejudice, or motive for testifying.”

Id. at ¶ 24, 551 P.3d at 1216 (quoting Merritt v. People, 842 P.2d

162, 167 (Colo. 1992)). A defendant establishes a Confrontation

Clause violation by showing that he “‘was prohibited from engaging

in otherwise appropriate cross-examination designed to show a

prototypical form of bias on the part of the witness,’ and thereby to

expose jurors to facts from which they could ‘appropriately draw

inferences’ related to the witness’s reliability.” Id. at ¶ 24, 551 P.3d

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at 1216-17 (quoting Kinney v. People, 187 P.3d 548, 559 (Colo.

2008)).

C. The Trial Court Abused Its Discretion by
Barring Defense Counsel from Cross-Examining Salazar
About Her Pending Criminal Charges

¶ 18 We agree with Garcia that the trial court violated his Sixth

Amendment right to confront his accusers by precluding him from

questioning Salazar about her pending criminal charges. See

Reynolds-Wynn, ¶ 36, 551 P.3d at 1218.

¶ 19 Salazar was in a vulnerable position because she faced

criminal charges in the Eighteenth Judicial District — the same

jurisdiction in which Garcia was being tried. See Kinney, 187 P.3d

at 559 (“Although evidence of pending charges cannot be admitted

to challenge a witness’s general credibility, this evidence is

admissible to show a witness’s motive, bias, prejudice, or interest in

the outcome of a trial.”).

¶ 20 Contrary to the trial court’s suggestion, defense counsel’s right

to cross-examine Salazar did not hinge on whether she had spoken

with a prosecutor at the District Attorney’s Office regarding benefits

she might receive in her own case if she testified against Garcia. As

the supreme court said in Kinney, “[e]ven when there has not been

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an explicit promise of leniency made by the prosecution,” a

witness’s pending charges are sufficient to satisfy the “nexus

between the pending case and the witness’s testimony.” 187 P.3d

at 561. In addition, Salazar’s personal interest in currying favor

with the prosecution created “at least a perception that [she had] a

motive to provide favorable testimony for the prosecution.”

Margerum, ¶ 12, 454 P.3d at 240 (explaining that a witness’s

testimony may be colored by her mere perception that her

testimony against the defendant will impact the prosecution’s

leniency towards her in her own case). And because Salazar’s

credibility was relevant, defense counsel was entitled to “discover

any potential source of bias and, more importantly, to provide the

jury with all relevant information needed to make a credibility

determination.” Id. Accordingly, the mere existence of an active

case against Salazar in the District Attorney’s Office was sufficient

to trigger defense counsel’s right to question her about the pending

charges against her.

¶ 21 For the same reasons, the People’s attempt to distinguish

Reynolds-Wynn fails. It is of no moment that “nothing in this

record suggests that the pending charge [against Salazar] created

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any vulnerability” because, unlike in Reynolds-Wynn, the

prosecutor here had not taken steps to prevent the witness’s arrest

on an outstanding warrant when the witness testified. See

Reynolds-Wynn, ¶ 15, 551 P.3d at 1215. The rule articulated in

cases such as Kinney, Margerum, and Reynolds-Wynn is

sweeping — as relevant here, the trial court must allow a criminal

defendant to cross-examine any witness who is testifying in the

same judicial district in which the witness faces criminal charges,

regardless of whether the witness received a promise of leniency if

the witness testified against the defendant. See Kinney, 187 P.3d at

560; Margerum, ¶ 12, 454 P.3d 240; Reynolds-Wynn, ¶¶ 37-38, 551

P.3d at 1218-19.

¶ 22 In sum, the trial court abused its discretion and violated

Garcia’s Confrontation Clause rights by denying his request to

cross-examine Salazar regarding her pending charges.

D. The Error Was Not Harmless

¶ 23 When assessing whether a Confrontation Clause error was

harmless beyond a reasonable doubt, we consider (1) the

importance of the witness’s testimony in the prosecution’s case;

(2) whether the testimony was cumulative; (3) the presence or

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absence of evidence corroborating or contradicting the witness’s

testimony on material points; (4) the extent of cross-examination

otherwise permitted; and (5) the overall strength of the

prosecution’s case. People v. Jones, 2023 COA 104, ¶ 44, 543 P.3d

419, 427.

¶ 24 Under the five considerations articulated in Jones, we cannot

say that the guilty verdict rendered in Garcia’s trial was “surely

unattributable” to the trial court’s error in improperly curtailing the

defense’s cross-examination of Salazar. Zoll, ¶ 18, 425 P.3d at 1126

(quoting Sullivan, 508 U.S. at 279); see also Merritt, 842 P.2d at 167

(noting that the constitutional harmless error doctrine “is to be

sparingly applied” (quoting People v. Myrick, 638 P.2d 34, 38 (Colo.

1981))). Because the jury acquitted Garcia of assault, in reviewing

for constitutional harmless error, we focus on the role Salazar’s

testimony played in Garcia’s conviction for felony menacing. To

convict Garcia of that offense, the prosecution needed to prove

beyond a reasonable doubt that, while using a firearm, Garcia

“knowingly place[d] or attempt[ed] to place [Mendoza] in fear of

imminent serious bodily injury.” § 18-3-206, C.R.S. 2025.

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¶ 25 First, both sides recognized Salazar’s importance to the case.

During closing argument, the prosecutor presented reasons why the

jury should believe her. The prosecutor described Salazar as a

disinterested and, therefore, credible witness, and noted that she

had testified for the prosecution despite her relationship with

Garcia. The prosecutor also argued that Salazar was credible by

reminding the jury that her testimony “line[d] up with” Mendoza’s.

Defense counsel also focused on Salazar. During closing argument,

defense counsel took pains to attack Salazar’s credibility. Defense

counsel responded to the prosecution’s credibility argument by

asserting that the testimonies of Salazar and Mendoza “d[id]n’t

match” and that Salazar was “obviously not telling the truth”

because Mendoza had intimidated her while she was on the witness

stand.

¶ 26 Salazar’s credibility was indeed critical to the case. As noted

above, the defense theory was that Garcia had never been to

Salazar’s apartment. Given the lack of physical evidence linking

Garcia to the apartment, Salazar’s testimony placing Garcia in the

apartment at the time of the shooting directly undercut the

defense’s theory. Accordingly, there is a reasonable possibility that

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the jury relied on Salazar’s testimony to convict Garcia of felony

menacing.

¶ 27 Second, not only was Salazar an important witness, but

without her testimony, the prosecution’s case could have

collapsed — even though her testimony corroborated Mendoza’s

testimony. Because of the extent to which the two witnesses’

accounts coincided, the jury was more likely to deem Mendoza

credible if it also believed Salazar. Conversely, without Salazar’s

supporting testimony, the jury could have found that Mendoza was

not credible. The record supports defense counsel’s argument in

closing that Mendoza contradicted himself on the witness stand.

¶ 28 More significantly, the jury must have disbelieved significant

portions of Mendoza’s testimony because it acquitted Garcia of the

three assault counts. If Mendoza’s testimony had been completely

credible, it would have supported convictions on all counts.

¶ 29 Thus, had the trial court permitted defense counsel to disclose

to the jury Salazar’s incentive to curry favor with the prosecution,

the jury could have questioned Salazar’s veracity and concluded it

could not convict Garcia based on Mendoza’s testimony alone.

(Because Salazar’s testimony did not address Mendoza’s credibility,

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we disagree with Garcia’s assertion that Salazar “bolstered”

Mendoza’s testimony. See People v. Battigalli-Ansell, 2021 COA

52M, ¶ 53, 492 P.3d 376, 387 (holding that a witness engaged in

bolstering when he suggested that the defendant had been telling

the truth on a material issue). In any event, Salazar’s testimony

provided important support for Mendoza’s testimony regardless of

whether her testimony was cumulative of or bolstered Mendoza’s

testimony.)

¶ 30 Third, because Mendoza’s credibility was reasonably subject to

attack, the fact that Salazar’s testimony was cumulative of

Mendoza’s does not weigh in favor of determining that the court’s

error was harmless beyond a reasonable doubt. The only evidence

placing Garcia in Salazar’s apartment at the time of the shooting

was Mendoza’s and Salazar’s testimonies. And Salazar’s testimony

was the only evidence that corroborated Mendoza’s account.

Absent that corroboration, the jury may have discredited Mendoza’s

testimony.

¶ 31 Fourth, although the trial court allowed the defense to

cross-examine Salazar on issues unrelated to her pending charges,

the jury never learned of her significant incentive to cooperate with

15
the prosecution. This line of questioning could have caused greater

damage to Salazar’s credibility in the eyes of the jury than any of

the questions the trial court allowed the defense to ask on

cross-examination. See Merritt, 842 P.2d at 170 (noting that, unlike

those subjects on which the defense was permitted to

cross-examine the witnesses, the prohibited cross-examination into

their receipt of use immunity directly concerned their “bias or

motive to lie or dissemble” about “the facts in this case”).

¶ 32 Fifth, the evidence supporting Garcia’s felony menacing

conviction was not overwhelming. As noted above, the testimony of

both Salazar and Mendoza was the only evidence placing Garcia in

the apartment at the time of the shooting.

¶ 33 Further, we disagree with the People’s assertion that the split

verdict “shows that rather than being prejudiced against him, the

jury carefully considered the evidence supporting each charge.”

Salazar testified that, although she did not actually witness the

shooting, she saw the fight that led up to it. The split verdict could

also have meant that the prosecution’s case was weak and only

Salazar’s testimony convinced the jury to convict on felony

menacing. See United States v. Kallin, 50 F.3d 689, 695 (9th Cir.

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1995) (explaining that a split verdict on its own is ambiguous

because “it could just as well indicate that the jury was predisposed

to acquit on all counts but was influenced to partially convict by”

considering inadmissible evidence).

¶ 34 For these reasons, we conclude that the court’s error in

barring the defense from cross-examining Salazar on her pending

charges was not harmless beyond a reasonable doubt.

III. The Trial Court’s Dismissal of Jurors
Based Solely on Their Jury Questionnaire Responses

¶ 35 Garcia contends that the trial court violated his constitutional

rights to due process, equal protection, and an impartial jury by

striking two jurors without allowing defense counsel to voir dire and

attempt to rehabilitate them. We need not reach this issue,

however, in light of our reversal of Garcia’s conviction based on the

violation of his Confrontation Clause rights and because the juror

issue is unlikely to arise on remand.

IV. Disposition

¶ 36 The judgment of conviction is reversed, and the case is

remanded to the trial court for further proceedings consistent with

this opinion.

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JUDGE WELLING and JUDGE TOW concur.

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