Peo v. Gallegos-Valdez

21CA1942 Peo v Gallegos-Valdez 07-10-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA1942
Weld County District Court No. 19CR2084
Honorable Thomas J. Quammen, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Ivan Jose Gallegos-Valdez,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE WELLING
Kuhn and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 10, 2025

Philip J. Weiser, Attorney General, Brock J. Swanson, First Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Andrea R. Gammell, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Ivan Jose Gallegos-Valdez appeals his convictions for

aggravated robbery, felony menacing, and aggravated motor vehicle

theft. Because we agree with Gallegos-Valdez’s contention that the

trial court erred by allowing the victim’s two identifications of him

to be admitted as evidence at trial, we reverse the convictions and

remand for a new trial.

I. Background

¶2 K.B. left his shift as a pizza delivery driver and walked to his

car. Just after he sat down and closed his car door, a man opened

the driver’s side door from the outside and told K.B. to leave the

keys in the ignition and move to the passenger seat. K.B. never saw

a weapon on the man but noticed him reach toward his hip, which

he took as a sign that the man was armed. K.B. got into the

passenger seat and promptly exited through the passenger door.

The man then sped away in K.B.’s car.

¶3 K.B. ran back to his employer and called 911 to report that his

car had been stolen. K.B. told the dispatcher that the man who

stole his car was “a Mexican guy” in his mid-twenties or early

thirties with “a little goatee” and wearing a white shirt and “regular

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jeans.” Sergeant Matthew Rundle responded to the scene shortly

thereafter.

¶4 Sergeant Rundle obtained a limited description of the

perpetrator — mostly of his clothes — from K.B. at the scene and

began searching for surveillance cameras at nearby businesses.

Based on K.B.’s description, Sergeant Rundle obtained footage of a

man inside a nearby liquor store around the time of the vehicle

theft. Sergeant Rundle presented K.B. with a screenshot of the

liquor store surveillance footage. He told K.B., “[W]e saw the crime

happen, and the individual, before the crime happened, went into

the liquor store.” Then Sergeant Rundle asked K.B., “Is this the guy

that stole your vehicle?” K.B. got excited and said, “That’s him.

That’s him. That’s him.”

¶5 The next day, after determining that the man from the

screenshot was Gallegos-Valdez, Sergeant Rundle asked K.B. to

come to the police station to participate in a photo array

identification. When Sergeant Rundle showed K.B. the array of six

photos, K.B. immediately identified the photograph of Gallegos-

Valdez as the person who had stolen his car.

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¶6 Gallegos-Valdez was arrested and charged with three felonies

— robbery, theft, and menacing. Prior to trial, Gallegos-Valdez

moved to suppress the initial show-up identification as unduly

suggestive and all the subsequent identifications as tainted by the

initial one. The trial court held a hearing that spanned three days

during which Seargent Rundle testified about his investigation that

led to K.B.’s two identifications of Gallegos-Valdez. K.B. didn’t

testify at the suppression hearing. While the court found that the

show-up identification was suggestive, it concluded that K.B.’s

identification was sufficiently reliable to admit as evidence.

¶7 At trial, K.B. testified that the man who stole his car wore a

white t-shirt, a grey backward flat-billed hat, and “jean-like

clothing,” and had a goatee. K.B. also testified that the perpetrator

was Mexican and didn’t have any face tattoos. The jury found

Gallegos-Valdez guilty of aggravated robbery, felony menacing, and

aggravated motor vehicle theft.

II. Discussion

A. Issues on Appeal

¶8 Gallegos-Valdez advances four contentions on appeal.

Specifically, he contends that the trial court erred when it (1) denied

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his motion to suppress K.B.’s identification of him; (2) allowed an

officer to testify about video evidence not admitted at trial;

(3) allowed expert testimony under the guise of lay testimony; and

(4) expanded the deadly weapon element of robbery and menacing.

Gallegos-Valdez also argues that the cumulative effect of these

errors deprived him of his right to a fair trial. Because we agree

that the court erred by admitting K.B.’s identification of Gallegos-

Valdez, and because this error requires reversal, we don’t address

his other arguments, which are unlikely to arise in the same

posture on remand.

B. The Identification

¶9 Gallegos-Valdez contends that the trial court improperly

declined to suppress evidence of the show-up identification because

the procedures used were impermissibly suggestive and the

following identifications were unreliable under the totality of the

circumstances. We agree with the trial court’s conclusion that the

show-up identification procedure was suggestive. But the evidence

doesn’t support the trial court’s conclusion that K.B.’s

identifications were nonetheless reliable and therefore admissible.

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1. Applicable Law and Standard of Review

¶ 10 A court analyzes a claim that an identification procedure was

unduly suggestive in two parts. First, the court must determine if

the identification procedure was impermissibly suggestive. People

v. Williams, 2019 COA 32, ¶ 8. Then, the court has to determine if

the subsequent identification is reliable. Id. at ¶ 10.

¶ 11 Initially, the defendant has the burden of proving that an

identification procedure used by the State was “impermissibly

suggestive.” Bernal v. People, 44 P.3d 184, 191 (Colo. 2002). An

impermissibly suggestive procedure may “give rise to a very

substantial likelihood of irreparable misidentification.” People v.

Jaquez, 2018 COA 76, ¶ 49. A one-on-one identification — also

referred to as a “show-up” identification — occurs when the

eyewitness is asked to identify a single person who appears in-

person or through a video or photograph. Such procedures are

disfavored and “tend to be suggestive” because they are more likely

to lead to a mistaken identification than a lineup. People v. Walker,

666 P.2d 113, 119 (Colo. 1983); People v. McCants, 2021 COA 138,

¶ 19.

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¶ 12 An eyewitness may also be asked to identify a suspect through

the presentation of an array of photos depicting people with similar

characteristics. There are several factors that a court should

consider when determining if a photo array identification procedure

is unduly suggestive, including (1) the size of the array; (2) the

manner of its presentation; and (3) the details of the photographs.

Williams, ¶ 9. A procedure that only includes one photo that

matches the description of the perpetrator can be impermissibly

suggestive. Id.

¶ 13 If the defendant carries their burden to show that the

identification procedures were unduly suggestive, then the

prosecution has the burden of proving by clear and convincing

evidence that subsequent identifications of the defendant weren’t

the result of an unduly suggestive procedures, but instead were

based on the witness’s “independent observations of the defendant

during the commission of the crime.” Walker, 666 P.2d at 119.

¶ 14 The trial court must determine whether the identification “is

reliable under the totality of the circumstances.” Id. When

assessing the totality of the circumstances of a show-up

identification, a court considers

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(1) the opportunity of the witness to view the
criminal at the time of the crime; (2) the
witness’s degree of attention; (3) the accuracy
of the witness’s prior description of the
criminal; (4) the level of certainty
demonstrated by the witness at the
confrontation; and (5) the length of time
between the crime and the confrontation.

Bernal, 44 P.3d at 192; see also People v. Mascarenas, 666 P.2d

101, 109 (Colo. 1983); Neil v. Biggers, 409 U.S. 188, 199-200

(1972). Once the court has considered whether the subsequent

identifications were tainted by the suggestive procedure, if “the

totality of the circumstances does not suggest a very substantial

likelihood of misidentification, identification testimony will be

admissible.” People v. Borghesi, 66 P.3d 93, 104 (Colo. 2003).

¶ 15 “The ultimate question as to the constitutionality of pretrial

identification procedures is a mixed question of law and fact.”

Bernal, 44 P.3d at 190. We defer to the trial court on findings of

fact if they’re supported by the record but review the trial court’s

legal conclusions de novo. McCants, ¶ 20. While a trial court’s

findings of fact are entitled to deference, we may “give different

weight to those facts and may reach a different conclusion.” Bernal,

44 P.3d at 190.

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¶ 16 “A defendant is denied due process when an in-court

identification is based upon an out-of-court identification which is

so suggestive as to render the in-court identification unreliable.”

Borghesi, 66 P.3d at 103.

¶ 17 Gallegos-Valdez preserved his contentions regarding the

inadmissibility of the identifications, and because Gallegos-Valdez’s

due process rights are implicated, we review for constitutional

harmless error. Hagos v. People, 2012 CO 63, ¶ 11. Applying that

standard, we reverse unless there is no reasonable doubt that the

error might have contributed to the conviction. Zoll v. People, 2018

CO 70, ¶ 18; see also Hagos, ¶ 11.

2. Additional Facts

¶ 18 As noted above, after Gallegos-Valdez moved to suppress both

of K.B.’s identifications, the trial court held a suppression hearing

that spanned three relatively brief days.

¶ 19 The first day of the hearing just consisted of Sergeant Rundle’s

testimony. He testified about the circumstances of the crime:

Okay. So [K.B.] made it to his vehicle. Before
he made it to his vehicle, he noticed a male
and a female sitting at the bench at the rear of
the establishment. Didn’t pay much attention
to them. Walked to his vehicle, got into his

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vehicle, was attempting to shut the door, got
the door shut, and as soon as the door latched
it was reopened immediately. A male then told
him to get to the passenger’s side of the vehicle
and leave the keys in the ignition. At that time
[K.B.] jumped to the passenger’s side of the
vehicle. He stated that he was in fear of his
life because the individual had his hands in
his pockets and — portraying that the suspect
had some type of weapon on him, that he was
in fear for his life, so he jumped to the
passenger’s side of the vehicle, ended up
jumping out of the vehicle, scratching his — I
do believe it was right knee on the floor,
banging it on the floor. At that time the
vehicle sped off at a high rate of speed out of
the parking lot.

¶ 20 After Sergeant Rundle arrived on the scene, K.B. gave him a

limited description of the car thief:

[Defense counsel:] . . . [K.B.] described the
person he saw in his vehicle?

[Sergeant Rundle:] He actually described what
he was wearing, so his description —

Q. So the clothing?

A. Correct.

Q. [K.B.] didn’t tell you that [the perpetrator]
had a goatee on his face?

A. I — it’s unknown at this time. I — I don’t
remember if he told me he had facial hair or
not.

Q. Or a thin mustache?

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A. He might have.

Q. Okay. You don’t remember that he said
that it was a Mexican guy?

A. I — I don’t believe he mentioned a race.

Q. Were you able to hear the 911 call that he
made —

A. No.

Q. — prior to this hearing?

A. No.

¶ 21 Moments later, Sergeant Rundle was unable to remember

exactly how K.B. described the car thief again:

[Sergeant Rundle:] I don’t remember the
conversation that we had between him [sic].
At the time [K.B.] had stated that — what the
individual was wearing, and that’s the
individual that I observed inside the liquor
store.

[Prosecutor:] And those clothes — you can —
you can tell what the person is wearing based
on the liquor store surveillance of the interior
of the liquor store?

A. Absolutely.

¶ 22 On the day of the incident, Sergeant Rundle found a video of

the crime from the outside of a nearby business, and another video

of a man who he thought matched K.B.’s description in a nearby

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liquor store shortly before the crime occurred. Through these

contacts, Sergeant Rundle identified the man in the liquor store

video as Gallegos-Valdez.

¶ 23 Sergeant Rundle next testified about the initial one-picture

showup that he presented to K.B.:

[Prosecutor:] And [K.B.] gave — it sounded like
you were describing a vague description of the
person?

[Sergeant Rundle:] Mostly what the individual
was wearing, but, yes.

Q. And did [K.B.] give any indication as to race
or facial hair or anything like that to your
recollection?

A. I don’t remember. I don’t remember if he
did or not.

Q. So then you start pulling video, and it
sounds like several hours —

A. Correct.

Q. — pulling video, looking for someone
around, and you get this still shot from the
liquor store’s video?

A. Correct.

Q. And that picture you actually show [K.B.]
at about that time?

A. Correct.

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Q. And what did that conversation sound like?

A. I said, “Hey, we just watched — what you’re
describing happened, we watched it on the
video surveillance from the liquor store, and
that individual was actually inside the liquor
store.” I then showed him a still picture of
that video . . . . I then had told him that we
saw the crime happen and the individual,
before the crime happened, went into the
liquor store, from what I believed. And at that
time I showed the victim the picture, and I
said, “Is this the guy that stole your vehicle,”
and he got excited and said, “That’s him.
That’s him. That’s him.”

Q. Did he say anything else at that time?

A. Not — not that — not to my knowledge.
Just — it was very positive that that was him.

Q. Did he say anything — any indication he
had any doubts about that?

A. No. No doubts whatsoever.

¶ 24 The day after the show-up identification, K.B. and his father

met Sergeant Rundle at the Eaton Police Department. Sergeant

Rundle presented K.B. with a six-photo lineup that included

photographs of Gallegos-Valdez and five other similar-looking men.

K.B. “instantaneously” identified Gallegos-Valdez as the man who

stole his car.

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¶ 25 The car was found in Greeley the day after it was stolen.

When it was found, the vehicle contained items that didn’t belong to

K.B., including a love letter signed by a woman named Olivia to a

man she called “My Droopy.” Sergeant Rundle called Gallegos-

Valdez’s parole officer — Officer Abriana Fernandez — and asked if

she knew of any connections Gallegos-Valdez might have with a

woman named Olivia. Officer Fernandez said that she believed

Gallegos-Valdez had a girlfriend or a cousin named Olivia. No

evidence was offered at the hearing about the identity of “My

Droopy.”

¶ 26 Following the hearing, the trial court found that the initial

show-up identification was unduly suggestive because Sergeant

Rundle had identified the person in the picture as the perpetrator

before asking K.B. if that was true. So the trial court considered

the five Bernal factors, finding that each of them supported the

conclusion that K.B.’s identifications were reliable.

¶ 27 Last, the trial court found that Olivia’s letter found in the car

was “part of the totality of the circumstances as well” since

Sergeant Rundle testified that Gallegos-Valdez’s parole officer had

told him that Olivia was Gallegos-Valdez’s cousin or girlfriend.

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Based on all of these findings, the trial court concluded that K.B.’s

identification of Gallegos-Valdez was reliable.

3. Analysis

¶ 28 Gallegos-Valdez contends that the trial court erred by denying

his motion to suppress both of K.B.’s identifications of him. We

agree for three reasons.

a. The Prosecution Didn’t Meet Its Burden

¶ 29 First, the prosecution didn’t offer adequate evidence at the

suppression hearing to meet its burden.

¶ 30 Consider Sergeant Rundle’s testimony — he couldn’t

remember any identifying information that K.B. communicated to

him before identifying Gallegos-Valdez as the person who stole his

car. Sergeant Rundle only testified that K.B. had given him a

description of the perpetrator’s clothing — “At the time [K.B.] had

stated that — what the individual was wearing, and that’s the

individual that I observed inside the liquor store.” This testimony

doesn’t contain any objective information that would tend to

support the reliability of K.B.’s identification. Instead, Sergeant

Rundle’s testimony was conclusory — that K.B.’s identification was

reliable because his description of the perpetrator matched

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Gallegos-Valdez. But that was for the court to decide based on

specific facts.

¶ 31 For example, Sergeant Rundle didn’t testify what color K.B.

said the perpetrator’s clothes were, how tall or old he was, his

approximate weight, what his facial hair looked like, or his skin,

hair, or eye color.1 He only testified that K.B.’s description of

Gallegos-Valdez’s clothes was consistent with what Gallegos-Valdez

was wearing in the video from the liquor store.2

¶ 32 To be sure, the prosecution presented relevant evidence —

that the show-up identification occurred between one to two hours

after the crime, that K.B. was “very positive” that Gallegos-Valdez

was the perpetrator during the showup, and that K.B. had the

1 The procedure of the six-photo lineup was captured on Sergeant

Rundle’s body camera, and the video recording of that procedure
was admitted as an exhibit at the suppression hearing. During that
procedure, K.B. did indicate that the person who stole his car had
facial hair. But that video — and the details that K.B. provided
when making the identification from the photo array — didn’t have
any bearing or shed any light on what details K.B. provided to
Sergeant Rundle before being shown the still photograph from the
liquor store video.
2 Even this testimony is inconclusive, since the color of Gallegos-

Valdez’s clothing is grey and black in the video, but bright white in
the picture. Without knowing how K.B. specifically described the
perpetrator, it is impossible to determine if his description was
accurate.

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opportunity to see the perpetrator during the crime. But without

more detail about K.B.’s initial description of the perpetrator, it isn’t

possible to determine whether K.B.’s show-up identification was

reliable.

b. The Trial Court’s Findings Are Not Supported

¶ 33 Second, while the trial court made specific findings regarding

the reliability of K.B.’s identifications, most of those findings aren’t

supported by competent evidence in the record.

i. Opportunity of the Witness to View the Perpetrator
at the Time of the Crime

¶ 34 The trial court found that the first Bernal factor supported

K.B.’s identification of Gallegos-Valdez:

Factors to be considered include the
opportunity of the witness to view the — the
criminal at the time of the crime. This was not
a passive contact. This wasn’t contact that a
person had of another contact that was
unremarkable at the time of the — of the
observation. This was a person who was
trying to take the victim’s car and succeeded in
that and the victim was in the car itself when
the perpetrator entered the vehicle, told him to
slide over and was suggesting that he had and
was then armed.

. . . So, this was a remarkable event. And so,
the Court finds that [K.B.] had the opportunity
to witness and had a good view of the witness

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[sic]. Even though it may not have been
hours, it doesn’t take long to make an
identification of something that is happening
that is significant in your life.

¶ 35 But this finding is unsupported by the record. It was a

reasonable inference from the circumstances this was a

“remarkable event” in K.B.’s life. But because K.B. didn’t testify at

the suppression hearing, there was no basis for the court to

conclude that K.B. “had the opportunity to witness and had a good

view” of the perpetrator. And because Sergeant Rundle didn’t (or

couldn’t) testify to the identifying details K.B. provided to him, there

wasn’t even circumstantial evidence that K.B. had a good

opportunity to view the perpetrator.

ii. The Witness’s Degree of Attention

¶ 36 The trial court found that K.B. was focused on the perpetrator

during the car theft:

Two, [t]he witness’ degree of attention. Well,
his attention was the armed person that was
stealing his car. That was the focus of his
attention.

¶ 37 But the court’s findings aren’t supported by the record. Again,

K.B. didn’t testify at the suppression hearing, so the court didn’t

have any grounds for concluding that K.B.’s attention “was on the

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person stealing his car.” In addition, the total encounter between

the man and K.B. lasted approximately twenty seconds, and for

portions of that time K.B. was focused on what he thought may be a

gun, moving from the driver’s seat to the passenger seat, and

exiting out the passenger door. Thus, the time period for K.B. to

actually focus on the man’s identifying features was limited.

Moreover, the absence of any corroborating evidence from Sergeant

Rundle’s testimony means that the court’s findings are, at best,

speculative.

iii. The Accuracy of the Witness’s Prior Description

¶ 38 The trial court found that Sergeant Rundle’s testimony was

sufficient to satisfy the third Bernal factor:

Three. The accuracy of the witness’ prior
description of the criminal. The clothing that
he described was a match in the view of the —
as testified by the Sergeant. It was a match
and although the Sergeant was not able to
describe the — the physical features of the
face, he did get a description of that from the
Defendant — I mean from the victim. And it
was accurate with the photograph that was
taken.

¶ 39 But Sergeant Rundle didn’t testify that K.B. described the

perpetrator’s face. Instead, Sergeant Rundle testified that he wasn’t

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sure whether K.B. described anything about the perpetrator other

than his clothing. So this portion of the trial court’s findings are

contradicted by the record.

¶ 40 Moreover, Sergeant Rundle’s testimony at the suppression

hearing didn’t include any of the details that K.B. provided of the

perpetrator’s clothing. Instead, Sergeant Rundle merely concluded

that the description he received from K.B. matched the clothing

Gallegos-Valdez was wearing in the liquor store. Because Sergeant

Rundle’s testimony lacked any detail, the court, as the fact finder,

couldn’t independently assess whether K.B.’s description of the

man’s identifying features matched Gallegos-Valdez. That’s

problematic. Cf. People v. Daley, 2021 COA 85, ¶¶ 91-94 (observing

that a detective’s testimony that a witness’s earlier statements were

consistent with later statements, without any details about the two

statements, usurps the fact finder’s function).

iv. The Level of Certainty Demonstrated by the Witness at the
Confrontation

¶ 41 The trial court noted K.B.’s confidence during the showup:

[Four:] The level of certainty demonstrated by
the witness at the confrontation. Well, as I
said, according to the testimony that was
given, is this the guy that stole your vehicle?

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[K.B.] got excited, so his demeanor is
corroborating what he’s about to say. He got
excited and said, that’s him, that’s him, that’s
him. He was very positive that was him. So,
the degree of certainty was high.

¶ 42 The court’s findings regarding the fourth Bernal factor are

indeed supported by the record, specifically Sergeant Rundle’s

testimony regarding his observations of K.B. during the

identifications.

v. The Length of Time Between the Crime and the Confrontation

¶ 43 Lastly, the trial court recounted Sergeant Rundle’s testimony

about the timing of the showup:

[Five:] The length of time between the crime
and the confrontation; this was just a matter
of a couple of hours.

¶ 44 Because the court’s findings here are also derived from, and

supported by, Sergeant Rundle’s testimony, they are supported by

the record.

vi. Weighing the Factors

¶ 45 Because the court’s findings on the first three Bernal factors

were unsupported by the record, they must be excluded. Our task

is to determine whether the remaining two factors offer adequate

support for the trial court’s conclusion that K.B.’s identification of

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Gallegos-Valdez was reliable. The trial court’s explanation for why

it determined that the show-up procedure was impermissibly

suggestive is relevant to our analysis:

Well, as far as the first step of the analysis, the
Court finds that this was suggestive. I mean
it’s — the Officer is basically telling the victim,
we saw the crime occur, we saw that the
person who committed this crime was in the
liquor store just before this. Now, is this a
picture of him? Well, that is suggestive. He
didn’t just — show him the photograph and —
and asked if this was or was not him and so,
the Court finds that that was suggestive and
that the Defense has met their burden on Step
[one] . . . .

¶ 46 The trial court emphasized that the showup was impermissibly

suggestive in large part due to Sergeant Rundle’s decision to tell

K.B. that the person in the liquor store surveillance photo was the

same person who committed the crime. We agree with the trial

court’s logic.

¶ 47 But that logic requires reversal. Because Sergeant Rundle

identified Gallegos-Valdez as the perpetrator before asking K.B. if he

recognized him, the fourth factor — K.B.’s level of certainty — could

just as easily be attributed to Sergeant Rundle’s statements at the

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suggestive showup as to K.B.’s independent observation. As a

result, that factor isn’t dispositive on its own.

¶ 48 And the fifth factor doesn’t help either, since Sergeant

Rundle’s statements could have invited K.B.’s enthusiastic response

regardless of the amount of time that had elapsed.

¶ 49 Under these circumstances, the first three factors are more

objective, and at the very least could have provided circumstantial

evidence supporting K.B.’s identification. For example, if the trial

court had adequate details about how K.B. described the

perpetrator to Sergeant Rundle, then the trial court would have had

an objective measure of how accurate K.B.’s show-up identification

was. But the court’s findings regarding the first three factors had

no record support.3

3 The trial court also said that the letter from Olivia found in the car

supported its conclusion that K.B.’s identification was reliable. But
supporting evidence isn’t necessarily corroborating evidence.
Moreover, the trial court didn’t tie the relevance of the letter to a
particular Bernal factor. And even if the Bernal factors aren’t
exclusive, we fail to see, and the trial court didn’t explain, how the
love letter from Olivia makes K.B.’s identification more reliable.

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¶ 50 Therefore, because the excluded factors are decisive in

determining whether K.B.’s identification was reliable, the court’s

conclusion was error.

c. The Error Wasn’t Harmless

¶ 51 The third and final reason the erroneous admission of the

identifications warrants reversal is that the error was not harmless.

Identification of the accused is a necessary element to prove any

crime. People v. Watkins, 553 P.2d 819, 821 (Colo. 1976) (“Of

course, the identity of the defendant as the perpetrator of the crime

charged is an element of the crime which must be proven beyond a

reasonable doubt.”). Because K.B. made the only identifications of

Gallegos-Valdez, and those identifications are unreliable, the trial

court’s error cannot be harmless. Accordingly, we reverse Gallegos-

Valdez’s convictions and remand the case to the trial court for a

new trial. However, the issue of whether K.B.’s identifications of

Gallegos-Valdez are admissible may not be re-litigated on remand.

People v. Null, 233 P.3d 670, 681 (Colo. 2010) (denying the

prosecution “a second bite at the apple” when the prosecution failed

to meet its evidentiary burden at a suppression hearing (quoting

Burks v. United States, 437 U.S. 1, 17 (1978))).

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¶ 52 Because we reverse Gallegos-Valdez’s convictions on the issue

of identification, we do not address his other contentions.

III. Disposition

¶ 53 The judgment is reversed, and the case is remanded with

directions.

JUDGE KUHN and JUDGE SCHUTZ concur.

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