Peo v. Flores

24CA0588 Peo v Flores 09-04-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0588
Larimer County District Court No. 15CR1412
Honorable Dinsmore Tuttle, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Andres M. Flores,

Defendant-Appellant.

ORDER AFFIRMED

Division I
Opinion by JUDGE J. JONES
Kuhn and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 4, 2025

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

Dolan + Zimmerman LLP, Sydney Dolan, Jennifer R. Zimmerman, Boulder,
Colorado, for Defendant-Appellant
¶1 Defendant, Andres M. Flores, appeals the postconviction

court’s order denying his Crim. P. 35(c) motion after an evidentiary

hearing. We affirm.

I. Background

¶2 The People charged Flores with second degree kidnapping,

menacing, third degree assault, and sexual assault based on a slew

of violent acts he committed against his ex-girlfriend, L.A.

According to the People, Flores had choked L.A., held a knife to her

throat, sexually assaulted her, threatened to kill her with a fork,

and forced her into his car, which L.A. later jumped out of in an

attempt to escape.

¶3 A jury found Flores guilty as charged. The trial court

sentenced him to an indefinite term of forty-two years to life in the

custody of the Department of Corrections.

¶4 A division of this court affirmed Flores’s convictions on direct

appeal in People v. Flores, (Colo. App. No. 17CA1597, June 13,

2019) (not published pursuant to C.A.R. 35(e)).

¶5 Through counsel, Flores filed a Crim. P. 35(c) motion for

postconviction relief, asserting, among other claims, that the

prosecutor violated his right to due process by knowingly

1
presenting false testimony at trial and that his trial counsel

provided ineffective assistance in numerous ways. After holding an

evidentiary hearing on Flores’s claims, the postconviction court

denied the motion.

II. Discussion

¶6 Flores appeals the postconviction court’s denial of his due

process claim and several of his ineffective assistance of trial

counsel claims. We address each claim in turn.

A. Standard of Review

¶7 In reviewing the denial of a Rule 35(c) motion after an

evidentiary hearing, we review the postconviction court’s

conclusions of law de novo but defer to the court’s findings of fact if

the evidence supports them. People v. Villanueva, 2016 COA 70,

¶ 28. We may affirm the postconviction court’s denial of a Rule

35(c) motion on any ground supported by the record, even if the

postconviction court didn’t consider or contemplate that ground.

People v. Hamm, 2019 COA 90, ¶ 23.

B. Due Process Claim

¶8 Flores asserted a claim that the prosecutor knowingly

presented false testimony at trial regarding his and L.A.’s

2
relationship status, thereby violating his right to due process.

Treating it as an ineffective assistance of counsel claim, the

postconviction court rejected it. We conclude that the claim fails

even if treated as a due process claim.

¶9 In his Rule 35(c) motion, Flores asserted that (1) he and L.A.

were married when the charged offenses occurred and that they

remain married; (2) throughout the police investigation and when

L.A. testified at trial, she “consistently falsely described their

relationship as simply a ‘relationship’ or as a ‘dating’ relationship”;

(3) the prosecutor knew that L.A.’s description was false because

documents in discovery showed L.A. as a dependent on Flores’s

health insurance, and only domestic partners and spouses qualify

as dependents as adults, see § 10-16-102(17), C.R.S. 2025; and

(4) the prosecutor’s failure to correct L.A.’s trial testimony about the

status of her and Flores’s relationship violated Flores’s right to due

process.

¶ 10 Whether Flores and L.A. were married was disputed at the

Rule 35(c) hearing. Flores testified that he and L.A. had signed a

declaration of common law marriage, and postconviction counsel

introduced into evidence the declaration, health insurance

3
documents showing that L.A. used Flores’s last name, and several

text messages L.A. had sent to Flores discussing the possibility of

divorce. But Flores also testified that during the police

investigation he had used the words “girlfriend” and “dating” to

describe his and L.A.’s relationship, he and L.A. had signed the

declaration of common law marriage only to secure health

insurance coverage for L.A., and he didn’t tell the police that they

were married because “[i]t just wasn’t a thing that we did.

Whenever I introduced her, I never introduced her as my wife, and

when she introduced me, she never introduced me as [her]

husband.” L.A. testified that she didn’t remember using Flores’s

last name on health insurance documents or in everyday life and

that she didn’t hold herself out to be Flores’s wife.

¶ 11 In its order denying Flores’s Rule 35(c) motion, the

postconviction court — characterizing Flores’s due process claim as

an ineffective assistance of trial counsel claim — concluded that

counsel didn’t provide ineffective assistance by choosing not to

confront L.A. about the nature of her relationship with Flores

because there was little, if any, evidence that Flores and L.A. held

4
themselves out to be married or referred to themselves as husband

and wife.

¶ 12 Flores contends that the postconviction court failed to rule on

his due process claim because the court mischaracterized it as an

ineffective assistance claim. But the claim fails as a due process

claim for two reasons.

¶ 13 First, Rule 35(c)(3)(VII) provides that “[t]he court shall deny

any claim that could have been presented in an appeal previously

brought.” While there are exceptions to this rule for certain claims,

including claims “based on events that occurred after initiation of

the defendant’s prior appeal” and claims “based on evidence that

could not have been discovered previously through the exercise of

due diligence,” Crim. P. 35(c)(3)(VII)(a)-(b), none apply in this case.

Indeed, the essence of Flores’s due process claim is that the

prosecutor knew at the time of trial that L.A.’s description of her and

Flores’s relationship as a “dating” relationship was false because

documents in discovery indicated that they were married. And all

the evidence relevant to this claim was presented at trial. Thus,

Flores could have raised this argument on direct appeal, and

because he didn’t, Rule 35(c)(3)(VII) bars this claim.

5
¶ 14 In any event, the claim also fails as a due process claim

because the record doesn’t support Flores’s assertion that the

prosecutor knowingly presented false testimony — let alone that the

testimony was material, see People v. Medina, 260 P.3d 42, 48

(Colo. App. 2010). Whether Flores and L.A. were married was

disputed at trial and at the postconviction hearing, and, as the

postconviction court found, little, if any, evidence supports the

notion that Flores and L.A. held themselves out to be married or

referred to themselves as husband and wife. Indeed, as noted

above, there was evidence that they weren’t married. Consequently,

on this record, it can’t be said that the prosecutor knew or should

have known that L.A.’s trial testimony was false. It follows that

there was no due process violation.

¶ 15 People v. Terry, 720 P.2d 125 (Colo. 1986), DeLuzio v. People,

494 P.2d 589 (Colo. 1972), and Napue v. Illinois, 360 U.S. 264

(1959), on which Flores relies, don’t warrant a contrary conclusion.

In each of those three cases, the prosecutor had offered perjured

testimony at trial, and the record plainly demonstrated that the

testimony was false and that the prosecutor had known as much

and failed to disclose it to defense counsel or the court. See Terry,

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720 P.2d at 130-31; DeLuzio, 494 P.2d at 592; Napue, 360 U.S. at

269. In this case, however, the record doesn’t plainly demonstrate

that the prosecutor knowingly presented false testimony. To the

contrary, based on the evidence admitted, the prosecutor had wide

latitude to reasonably infer that L.A. and Flores weren’t married.

See People v. Herald, 2024 COA 53, ¶¶ 82-85 (prosecutor did not

intentionally misstate the evidence by arguing a reasonable

inference from a witness’s vague testimony).

C. Ineffective Assistance of Trial Counsel Claims

¶ 16 Flores claims that his trial counsel provided ineffective

assistance by (1) failing to investigate Flores’s neighbors; (2) failing

to challenge L.A.’s trial testimony that Flores had previously

attempted suicide; (3) mishandling CRE 404(b) evidence of Flores’s

previous assault on his ex-wife; and (4) failing to interview certain

witnesses counsel had endorsed before trial. He also claims that

his counsel’s errors cumulatively deprived him of his right to

effective assistance of counsel. We reject each of Flores’s claims.

¶ 17 To prevail on an ineffective assistance of counsel claim, a

defendant must prove by a preponderance of the evidence that

(1) his counsel’s performance was deficient and (2) the deficient

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performance prejudiced him. Strickland v. Washington, 466 U.S.

668, 687-94 (1984); Dunlap v. People, 173 P.3d 1054, 1061-62

(Colo. 2007). As for the performance prong, a defendant must show

that his counsel’s representation fell below an objective standard of

reasonableness. Strickland, 466 U.S. at 688. As for the prejudice

prong, a defendant must show a reasonable probability that, but for

the deficient performance, “the result of the proceeding would have

been different.” Id. at 694. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id.

¶ 18 A court may deny an ineffective assistance claim on either

prong of the Strickland test without addressing the other. People v.

Gandiaga, 70 P.3d 523, 526 (Colo. App. 2002).

1. Flores’s Neighbors

¶ 19 Flores contends that his counsel provided ineffective

assistance by failing to investigate Flores’s neighbors, Mr. and Mrs.

Bayless. We disagree.

¶ 20 The Baylesses lived in the apartment directly above Flores’s

when the incident giving rise to the charged offenses occurred. The

prosecution filed a pretrial notice endorsing them as witnesses, but

they were never called to testify during trial.

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¶ 21 Flores’s Rule 35(c) motion alleged as follows: when the police

had interviewed the Baylesses, they said they hadn’t heard

screaming on the night in question and that, if they had, they

would have called the police; when a post-trial investigator

interviewed Mr. Bayless, he said he recalled seeing Flores and L.A.

during the night when he awoke and looked outside his window,

and they didn’t appear to be fighting; and if trial counsel had

interviewed Mr. Bayless and called him to testify during Flores’s

trial, his testimony would have created reasonable doubt regarding

L.A.’s account of what occurred inside Flores’s apartment, which

would have significantly undermined L.A.’s credibility and resulted

in an acquittal on some or all of the charges.

¶ 22 During the Rule 35(c) hearing, trial counsel testified that he

vaguely remembered reviewing the police report of the Baylesses’

interviews in discovery, he didn’t recall whether he or his pretrial

investigator had interviewed the Baylesses, and he vaguely

remembered that they didn’t want to be involved in the case.

¶ 23 The post-trial investigator also testified during the hearing.

When postconviction counsel asked the investigator to testify about

9
what Mr. Bayless had said in his post-trial interview, however, the

postconviction court sustained the prosecutor’s hearsay objection.

¶ 24 In its order denying Flores’s Rule 35(c) motion, the

postconviction court rejected Flores’s claim that trial counsel

provided ineffective assistance by failing to investigate the

Baylesses. It reasoned that “evidence from other sources

corroborate [L.A.]’s claims about a physical altercation, whereby the

value of any supportive evidence from the Baylesses is only

speculative,” and that “Flores did not present evidence from the

Baylesses at the [Rule] 35(c) hearing from which this court might

conclude that failure to interview them rises to the level of

ineffective assistance of counsel.”

¶ 25 Flores asks us to reverse and remand for a new hearing “due

to the arbitrary and inequitable way that the postconviction court

conducted the [Rule] 35(c) hearing.” He specifically takes issue with

the court’s exclusion of the post-trial investigator’s testimony about

what Mr. Bayless said in his interview. Flores asserts that the

testimony wasn’t hearsay because postconviction counsel sought to

admit Mr. Bayless’s statements not to prove the truth of the matter

10
asserted, but to establish what Mr. Bayless likely would have said if

trial counsel had called him to testify. See CRE 801(c).

¶ 26 In Rule 35(c) hearings, however, “courts have broad discretion

to control the ‘mode and extent of the presentation of evidence.’”

People v. Finney, 2012 COA 38, ¶ 64 (quoting People v. Cole, 654

P.2d 830, 832 (Colo. 1982)), aff’d, 2014 CO 38. We conclude that

the postconviction court acted within that broad discretion by

precluding the investigator’s testimony, as it was reasonable for the

court to conclude that Mr. Bayless’s statements would not have

been relevant at Flores’s trial unless they were offered for their

truth. See CRE 802.

¶ 27 But even if the postconviction court should have allowed the

investigator to testify about what Mr. Bayless said in his interview,

Flores’s claim doesn’t satisfy either prong of the Strickland test. For

one, his assertion that trial counsel failed to interview the Baylesses

misrepresents the record: at the hearing, trial counsel testified that

he didn’t recall whether he or his pretrial investigator had

interviewed the Baylesses and that he vaguely remembered them

not wanting to be involved. Likewise, the record doesn’t support

Flores’s assertion that Mr. Bayless’s testimony would have been

11
“wholly inconsistent” with L.A.’s account of what occurred inside

Flores’s apartment: Mr. Bayless merely said that he didn’t hear

screaming and that when he looked outside his window and saw

Flores and L.A., they didn’t appear to be fighting. And to the extent

the jury could have found Mr. Bayless’s statements at odds with

L.A.’s, there isn’t a reasonable probability that his testimony would

have affected the outcome of the case. As the postconviction court

found, the prosecution presented substantial other evidence at trial

corroborating L.A.’s testimony that she and Flores fought inside his

apartment. That evidence included pictures of broken blinds in the

bedroom, knives and forks strewn about the kitchen floor, and

L.A.’s blood smears on the apartment door and carport post. See

Strickland, 466 U.S. at 695-96.

2. Flores’s Suicide Attempt

¶ 28 Flores next contends that his counsel provided ineffective

assistance by failing to challenge L.A.’s trial testimony that Flores

had previously attempted suicide. Again, we disagree.

¶ 29 At trial, L.A. testified that she had jumped out of Flores’s car

on the night of the charged offenses not because she was suicidal

but because she “believed that he was going to kill me in a field. He

12
had been telling me for a few weeks prior about a field he liked to go

to to think, and it kind of clicked in my memory that he . . . maybe

had already planned to take me there.” She continued,

Several nights in a row he called and said he
was going to commit suicide and — from the
field and FaceTimed me. And once I called the
police, and they found him in the field. And he
told them that he wasn’t doing anything and
that I was crazy.

And then he went home, and he would
FaceTime me with a red handkerchief wrapped
around his throat and told me that’s how he
was going to kill himself. And I didn’t really
know what to do because I already called the
police, and they didn’t — they didn’t believe
me, I guess. They believed him more than
me.

Trial counsel didn’t object to this testimony.

¶ 30 In his Rule 35(c) motion, Flores asserted that a post-trial

investigator determined that the local police departments didn’t

have any record of L.A. calling 911 about Flores. Had trial counsel

requested such records, Flores asserted, counsel would have

realized that L.A. never called the police and thus would have been

able to impeach her trial testimony on this subject, which, in turn,

would have undermined her credibility.

13
¶ 31 At the Rule 35(c) hearing, a criminal defense expert witness

testified that the absence of these records “is some of the strongest

impeachment I think I have ever seen, . . . in the sense of

somebody’s credibility relating to the central theme that this is why

she jumped from the car.” But the records custodian for one of the

local police departments testified that, although she didn’t find a

record of L.A. calling to report Flores missing or in need of a welfare

check, she couldn’t confirm that such a call never took place

because the 911 call dispatch system generally retains call records

for only two years. Only calls connected to a resulting case would

have records after that two-year period.

¶ 32 In its order denying Flores’s Rule 35(c) motion, the court ruled

that trial counsel’s failure to challenge L.A.’s testimony about

Flores’s suicide attempt was deficient but that Flores didn’t

demonstrate a reasonable probability that, but for trial counsel’s

deficient performance, the jury would have acquitted Flores. See

Strickland, 466 U.S. at 694.

¶ 33 We agree with the postconviction court that Flores’s claim fails

under Strickland’s prejudice prong.

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¶ 34 Contrary to Flores’s assertion, the record doesn’t establish a

reasonable probability that the result at trial would have been

different had trial counsel challenged L.A.’s testimony. Indeed,

Flores’s Rule 35(c) motion made only a conclusory assertion that

trial counsel’s failure to challenge L.A.’s testimony prejudiced him;

the motion didn’t include any explanation as to why that was so.

And we don’t see how it could have been, especially given that the

absence of a police department’s record of L.A.’s phone call doesn’t

necessarily mean that L.A. didn’t call the police regarding Flores’s

suicide attempt. As the records custodian explained at the hearing,

the 911 call dispatch system generally retains records for only two

years, so she couldn’t confirm that a call never took place. And L.A.

could have contacted a different police department.

¶ 35 Accordingly, Flores can’t demonstrate that trial counsel would

have been able to directly impeach L.A. based on the absence of a

record. While Flores points to the criminal defense expert witness’s

opinion to the contrary, the postconviction court wasn’t required to

accept the expert’s opinion. See Scott v. People, 444 P.2d 388, 393

(Colo. 1968) (a fact finder isn’t required to accept an expert

witness’s testimony); Gandiaga, 70 P.3d at 526 (“The

15
[postconviction] court determines the weight and credibility to be

given the testimony of witnesses in a Crim. P. 35(c) hearing.”); see

also Rocky Mountain Gun Owners v. Polis, 2020 CO 66, ¶ 75 n.14 (a

court does not have to accept even unrebutted expert testimony).

Because Flores’s claim doesn’t satisfy Strickland’s prejudice prong,

the postconviction court properly denied this claim. See Gandiaga,

70 P.3d at 526.

3. Flores’s Previous Assault

¶ 36 We also reject Flores’s contention that his counsel provided

ineffective assistance by mishandling CRE 404(b) evidence of

Flores’s previous assault on his ex-wife.

¶ 37 Before trial, the prosecution notified defense counsel and the

court of its intent to introduce evidence that Flores had previously

assaulted his ex-wife, N.M., in view of N.M.’s neighbor, S.M. At a

pretrial hearing addressing this evidence, S.M. testified that Flores

had choked N.M. and held a knife to her throat, while N.M. testified

that she didn’t remember being choked or threatened with a knife.

The trial court ruled that the evidence was admissible to prove

motive and to refute the defenses of fabrication and consent. See

CRE 404(b); § 18-6-801.5(2)-(3), C.R.S. 2025.

16
¶ 38 About a week before trial, the prosecution notified the court

that N.M. would be out of town during Flores’s trial and asked for

permission to read to the jury a transcript of her testimony from the

pretrial evidentiary hearing instead. Trial counsel expressed

concerns that allowing S.M. to testify at trial without having N.M.

available to testify “puts Mr. Flores at an extreme disadvantage” and

told the court that “if [N.M.] is unavailable, [S.M.] shouldn’t be

permitted to testify” either.

¶ 39 The court ruled that if N.M. was unavailable, the prosecution

could read the transcript of N.M.’s pretrial hearing testimony to the

jury, and S.M. could testify in person at trial. The following

exchange ensued:

THE COURT: [Trial counsel], the People have
suggested that they would be willing to not
bring in [S.M.] to testify and have her
testimony by transcript as well.

[TRIAL COUNSEL]: If the Court’s decision is to
allow the testimony of [S.M.], then we would
ask for both to be presented by transcripts
rather than one by live testimony and the
other by transcript.

THE COURT: Okay. All right. [Prosecutor],
that was your offer?

[PROSECUTOR]: I did say that. I mean —

17
THE COURT: I mean, technically she is not
unavailable under [CRE] 804.

[PROSECUTOR]: Right.

THE COURT: But in — I think there are some
extenuating circumstances in this case where
the Court could make a determination that
that stipulation that you offered would be an
appropriate way to address the differences in
the testimony.

[PROSECUTOR]: And I think this Court could.
My request to the Court would be to allow for
the live testimony. There is not bad faith on
behalf of the People that we want a favorable
witness here and we will just disregard what
the unfavorable witness says. We have tried
diligently to get both witnesses here. . . . I
would ask for the live testimony, but
understand the Court’s ruling, even under a
[CRE] 403 analysis [I] could see how the Court
could get there.

THE COURT: Okay. I think under all of the
circumstances here and given, interestingly
enough, we do have the benefit of prior
testimony, which we often don’t have in [CRE]
404(b) cases anyway, I do think that it would
be appropriate to proceed as a way of
minimizing any risk of unfair prejudice to
allow testimony to be presented to the jury by
transcript for both of those witnesses.

¶ 40 In his postconviction motion, Flores asserted that trial

counsel’s “failure to have N.M. served with a subpoena, like his

failure to object to the transcript-reading procedure, was

18
constitutionally ineffective” because “the outlandish and prejudicial

way in which [the CRE 404(b) evidence] was admitted had the effect

of lowering the prosecution’s burden of proof and denying Mr.

Flores’s right to confront and cross-examine witnesses against

him.” At the Rule 35(c) hearing, the criminal defense expert witness

opined that trial counsel’s performance in this regard was

unreasonable.

¶ 41 In its order denying Flores’s Rule 35(c) motion, the

postconviction court said that trial counsel testified that his

handling of the CRE 404(b) evidence was strategic. And it noted

that the issue whether the trial court plainly erred by admitting

evidence of Flores’s previous assault by means of N.M.’s and S.M.’s

transcript testimony rather than their live testimony had been

raised and rejected on direct appeal in Flores, No. 17CA1597, slip

op. at ¶¶ 59, 68. The postconviction court therefore concluded that

trial counsel made a legitimate strategic decision to forgo these

witnesses’ live testimony.

¶ 42 Flores contends that the postconviction court

mischaracterized the record because trial counsel didn’t testify at

the Rule 35(c) hearing that his handling of the CRE 404(b) evidence

19
was strategic. But even if trial counsel didn’t so testify, the record

supports the postconviction court’s conclusion that his decision

was strategic. When the prosecutor asked the court for permission

to admit transcripts of N.M.’s pretrial hearing testimony based on

her unavailability, trial counsel expressed concerns that allowing

S.M. to testify at trial without having N.M. available to testify would

put him “at an extreme disadvantage,” presumably because S.M.’s

testimony was more favorable to the prosecution than N.M.’s

testimony. The trial court and prosecutor also acknowledged the

prejudicial effect of allowing S.M. to testify at trial if N.M. couldn’t.

To minimize that effect, the prosecutor offered, trial counsel agreed,

and the court ruled, that neither witness would testify live. As the

division acknowledged in Flores’s direct appeal, this shows a

strategic decision. See Flores, No. 17CA1597, slip op. at ¶ 67

(“[Trial counsel] strategically agreed to admit [S.M.’s] testimony by

transcript to avoid any extra emphasis that might result from her

live testimony.”). Accordingly, Flores can’t demonstrate that trial

counsel’s handling of the CRE 404(b) evidence was deficient. See

Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003) (“Strategic choices

20
made after thorough investigation of the law and facts relevant to

plausible options are virtually unchallengeable . . . .”).

¶ 43 Nor can Flores demonstrate prejudice. The division on direct

appeal concluded that the evidence of Flores’s previous assault was

admissible, the trial court didn’t plainly err by admitting transcripts

of N.M.’s and S.M.’s pretrial hearing testimony, and trial counsel

had an adequate opportunity to cross-examine N.M. and S.M. at the

pretrial hearing. Flores, No. 17CA1597, slip op. at ¶¶ 59, 66-68;

see People v. Washington, 2014 COA 41, ¶¶ 40-41 (no prejudice

from counsel’s failure to object to the admission of CRE 404(b)

evidence where the appellate court held on direct appeal that the

evidence was admissible). And Flores doesn’t assert that N.M.’s and

S.M.’s live testimony would have differed from their pretrial

testimony, or that, by being able to cross-examine them at trial,

trial counsel would have caused the jury to doubt whether he

assaulted L.A. Accordingly, Flores can’t show a reasonable

possibility that, but for trial counsel’s decision to forgo N.M.’s and

S.M.’s live testimony, the result at trial would have been different.

See Strickland, 466 U.S. at 694.

21
4. Endorsed Witnesses

¶ 44 Flores next contends that his counsel provided ineffective

assistance by failing to interview five witnesses endorsed by the

defense before trial.

¶ 45 We conclude that Flores abandoned this claim.

¶ 46 In his Rule 35(c) motion, Flores alleged that trial counsel had

filed a pretrial notice endorsing five witnesses but didn’t interview

these witnesses or call them to testify during trial. “Had trial

counsel contacted the witnesses that he himself endorsed,” Flores

alleged, “he would have discovered that they had exculpatory

evidence to contribute to Mr. Flores’s defense.” In particular, a

post-trial investigator contacted Ms. Woodson, one of the five

endorsed witnesses, who said Flores is a peaceful person unlikely to

commit a violent crime and recalled several instances in which L.A.

was hospitalized for self-harm and suicidality.

¶ 47 At the Rule 35(c) hearing, however, postconviction counsel told

the court that she needed to “essentially retract” this allegation

because she “subsequently interviewed Ms. Woodson in preparation

for this hearing. That is not what she said during that interview. I

am not calling her as a witness at this hearing, and so I want the

22
Court to disregard that.” See People v. Smith, 2024 CO 3, ¶ 17 (a

party’s decision not to pursue claims previously raised constitutes

an abandonment of those claims).

¶ 48 Flores didn’t allege in his Rule 35(c) motion that the post-trial

investigator had contacted the other four witnesses trial counsel

had endorsed, nor did he allege what any of them would have said

had they testified. Postconviction counsel didn’t present any

evidence regarding the four witnesses at the hearing, and she

omitted this claim from the proposed order she submitted after the

hearing. See People v. Geisick, 2016 COA 113, ¶ 16 (“When a party

specifically removes issues from a trial court’s consideration, the

party has waived those issues and we may not review them on

appeal.”); cf. Smith, ¶¶ 7, 18-20 (postconviction counsel abandoned

claims asserted in pro se Rule 35(c) motion by, in part, failing to

include them in the supplemental motion).

¶ 49 In any event, Flores’s claim fails on its merits. We don’t know

what Ms. Woodson’s trial testimony would have been because, as

postconviction counsel explained at the hearing, Ms. Woodson

didn’t say what Flores had alleged she said. We don’t know what

the other four witnesses’ testimony would have been either. Absent

23
evidence of what these five witnesses would have said, Flores can’t

demonstrate a reasonable probability that trial counsel’s failure to

interview them prejudiced him. See People v. Chambers, 900 P.2d

1249, 1252 (Colo. App. 1994) (The court rejected the defendant’s

claim that trial counsel provided ineffective assistance by failing to

investigate witnesses because the defendant “failed to produce any

evidence as to who these potential witnesses might be, their

willingness to testify (or their amenability to process), and the

substance, credibility, or admissibility of their testimony. Without

some such showing, [the] defendant cannot demonstrate that

counsel’s failure to investigate resulted in any prejudice to him.”);

Gandiaga, 70 P.3d at 526 (same).

5. Cumulative Ineffective Assistance of Counsel

¶ 50 Lastly, Flores contends that his trial counsel’s errors

cumulatively deprived him of his right to effective assistance of

counsel. Because there was only one potential instance of deficient

performance — counsel’s failure to challenge L.A.’s testimony about

Flores’s suicide attempt (as to which Flores didn’t show prejudice)

— we reject his claim of cumulative ineffective assistance of

counsel. See People v. Walton, 167 P.3d 163, 169 (Colo. App. 2007)

24
(rejecting the defendant’s claim of cumulative ineffective assistance

because there weren’t multiple incidents of deficient performance to

compound); see also Howard-Walker v. People, 2019 CO 69, ¶ 26

([R]eversal is warranted when numerous errors in the aggregate

show the absence of a fair trial . . . .”).

III. Abandoned Claims

¶ 51 We deem abandoned the remaining Rule 35(c) claims Flores

raised in his postconviction motion but has not reasserted on

appeal. See People v. Osorio, 170 P.3d 796, 801 (Colo. App. 2007).

IV. Disposition

¶ 52 The order is affirmed.

JUDGE KUHN and JUDGE MOULTRIE concur.

25