Peo v. Gonzalez-Victoria

23CA0749 Peo v Gonzalez-Victoria 06-04-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0749
Weld County District Court No. 20CR1743
Honorable Vincente G. Vigil, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jose Roberto Gonzalez-Victoria,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE DUNN
J. Jones and Fox, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced June 4, 2026

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

Mallika L. Magner, Alternate Defense Counsel, Crested Butte, Colorado, for
Defendant-Appellant
¶1 A jury convicted defendant, Jose Roberto Gonzalez-Victoria, of

nineteen counts of drug-related crimes. Gonzalez-Victoria appeals

his judgment of conviction, arguing that the district court reversibly

erred by (1) failing to merge twelve conspiracy convictions into a

single conviction; (2) allowing the prosecutor to commit misconduct

throughout the trial; (3) admitting improper and prejudicial

evidence; and (4) admitting improper expert witness testimony.

Gonzalez-Victoria also argues that the cumulative effect of these

errors requires reversal. We agree with Gonzalez-Victoria that some

of the conspiracy convictions must merge, reverse that portion of

the judgment, but otherwise affirm.

I. Background

¶2 Near the end of 2019, the Weld County Drug Task Force

received information leading them to believe that Gonzalez-Victoria

was involved in the purchase and sale of drugs. Over the next few

months, Valentin Oliveros — an undercover investigator with the

Task Force — purchased fentanyl and cocaine from Gonzalez-

Victoria on four occasions. Officers then obtained a warrant to tap

Gonzalez-Victoria’s phone.

1
¶3 Between May and August 2020, officers monitored Gonzalez-

Victoria’s phone conversations and surveilled him. The officers

heard and observed Gonzalez-Victoria planning and executing

twelve transactions to buy or sell various drugs. In late August,

after monitoring communications suggesting that drugs would be

transported from Arizona to Colorado, officers stopped a truck and

found eighty-eight pounds of methamphetamine. A few days later,

officers arrested Gonzalez-Victoria.

¶4 The prosecution charged Gonzalez-Victoria with two counts of

money laundering, four counts of fentanyl distribution (including a

special offender count for distributing near a school), one count of

cocaine distribution, and twelve counts of conspiracy to distribute a

controlled substance.

¶5 Gonzalez-Victoria didn’t testify at trial. His counsel admitted

Gonzalez-Victoria’s guilt on the four distribution counts but

disputed the conspiracy charges primarily on the theory that the

quantity of drugs involved was unclear. The jury found Gonzalez-

Victoria guilty as charged. The district court sentenced Gonzalez-

Victoria to an aggregate 244-year prison term.

2
II. Merger

¶6 Gonzalez-Victoria contends that the People proved a single

conspiracy to distribute drugs and, therefore, his multiple

conspiracy convictions violate his right to be free from double

jeopardy. Thus, he argues that the district court erred by failing to

merge all the conspiracy convictions into a single conspiracy

conviction. While the evidence supports more than one conspiracy

conviction, we agree that some of Gonzalez-Victoria’s conspiracy

convictions must merge.

A. Additional Background

¶7 During the trial, the prosecution argued that Gonzalez-Victoria

was the “[m]ain source and distributor” of the “Gonzalez-Victoria

drug trafficking organization.” As part of its presentation, the

prosecution introduced an exhibit showing pictures of ten

individuals, including Gonzalez-Victoria (Exhibit 1). The exhibit

identified the names of the individuals and their roles in the

organization and showed arrows going to and from Gonzalez-

Victoria (who was roughly in the center). Some of the individuals’

phone numbers and addresses were also identified.

3
¶8 The prosecution also introduced evidence for each conspiracy

count consisting of (1) the wiretap conversations; (2) expert witness

testimony explaining the coded language used in the conversations

between Gonzalez-Victoria and various co-conspirators to arrange

drug transactions; and (3) testimony from officers who followed

Gonzalez-Victoria and witnessed him attend meetings that

corresponded with the transactions arranged in the conversations.

¶9 Six of the charges involved wholesale transactions where

Gonzalez-Victoria bought drugs from three main sources in bulk.

The other six charges related to distribution transactions where

Gonzalez-Victoria sold smaller quantities of drugs to different

individuals.

¶ 10 After trial, Gonzalez-Victoria asked the court to merge the

twelve conspiracy convictions into one conviction, arguing that “the

evidence adduced at trial proved the existence of a single conspiracy

between [him] and all other named or unknown conspirators to

engage in the sale and distribution of controlled substances.”

¶ 11 The court denied the request, finding that the transactions

were not part of the same criminal episode because they occurred in

“separate and distinct states, involv[ed] several different co-

4
conspirators[, and] . . . involv[ed] several different types of

controlled substances, in different quantities in exchange for

differing amounts of values.”

B. Legal Principles and Standard of Review

¶ 12 An individual is guilty of a conspiracy to commit a crime if he

“agrees with another person or persons that they . . . will engage in

conduct which constitutes a crime or an attempt to commit a crime”

and he has “the intent to promote or facilitate its commission.”

§ 18-2-201(1), C.R.S. 2025. “If a person conspires to commit a

number of crimes, he is guilty of only one conspiracy so long as

such multiple crimes are part of a single criminal episode.” § 18-2-

201(4). Thus, “a single conspiratorial agreement may not be divided

into multiple charges.” People v. Davis, 2017 COA 40M, ¶ 17.

¶ 13 To determine whether the evidence established a single

conspiracy to commit multiple crimes versus multiple discrete

conspiracies, we consider various factors. That the alleged acts

occurred during the same period, the type of overt act is the same,

the unlawful objective of the conspiracy is the same, the modus

operandi is the same, and the same evidence would be relevant to

the charges tends to show a single conspiracy. Pinelli v. Dist. Ct.,

5
595 P.2d 225, 227 (Colo. 1979); accord Davis, ¶ 18. By contrast,

evidence that a defendant conspired with different parties, in

different counties, and in different agreements and committed

separate overt acts indicates multiple, distinct criminal episodes.

Davis, ¶ 18.

¶ 14 Because the double jeopardy clause protects criminal

defendants from multiple punishments for a single crime, see

People v. Arzabala, 2012 COA 99, ¶¶ 20-21, if the evidence

supports only a single conspiracy, the remaining conspiracy

convictions must merge into a single conviction, see Whiteaker v.

People, 2024 CO 25, ¶ 24 (“[W]hen a defendant establishes that a

[district] court entered multiplicitous punishments in violation of

double jeopardy principles, merger is the remedy.”).

¶ 15 We review double jeopardy claims de novo. People v. Wambolt,

2018 COA 88, ¶ 8. We likewise review de novo whether evidence

shows a single agreement. People v. Woodyard, 2023 COA 78, ¶ 85.

C. Hub and Spoke Theory

¶ 16 Although Gonzalez-Victoria generally asserts that the Pinelli

factors favor merger, he also seems to suggest — with little

explanation — that his conspiracy convictions must merge as a

6
single “wheel and hub” conspiracy. To the extent he develops this

argument — and that’s debatable — we disagree.

¶ 17 A wheel and hub conspiracy requires that “each conspirator

knew or had reason to know of the existence and scope of the

conspiracy and that each had reason to believe that his benefit

depended upon the success of the entire venture.” People v.

Serrano, 804 P.2d 253, 254 (Colo. App. 1990). And Gonzalez-

Victoria doesn’t point us to any evidence in the record that all his

co-conspirators were aware of each other or that “an overall plan

with a common object” existed. Id. Nor could he, as several of the

charges involved unknown individuals or isolated transactions

without any connecting evidence. We therefore disagree that the

conspiracy counts merge under the wheel and hub theory.

D. The Buying Convictions

¶ 18 Counts 4, 8, 10, 11, 12, and 18 involve wholesale transactions

in which Gonzalez-Victoria bought drugs from three different

sources. Without analyzing any of his convictions individually, or

the evidence supporting them, Gonzalez-Victoria broadly asserts

that his convictions “involve the same cast of characters” on Exhibit

7
1, and that all the overt acts were “ordering the same three drugs

from the same sources and distributing to the same sources.”

¶ 19 Because that broad assertion is neither helpful nor accurate,

we turn to the evidence supporting the convictions on counts 4, 8,

10, 11, 12, and 18. The counts all charged “Conspiracy –

Controlled Substances” with specific offense dates between May and

August 2020.

¶ 20 The evidence supporting count 4 established that on May 30-

31 Gonzalez-Victoria coordinated the purchase of

methamphetamine from an Arizona supplier. Officers observed the

supplier meet with Gonzalez-Victoria in Greeley.

¶ 21 In support of count 8, the prosecution presented evidence that

on June 7 Gonzalez-Victoria arranged to buy a quarter of a

kilogram of cocaine from a Denver source. A driver then took

Gonzalez-Victoria to Denver. Officers followed Gonzalez-Victoria

and observed him meet the supplier in a parking lot.

¶ 22 The evidence supporting count 10 showed that on July 7

Gonzalez-Victoria arranged to purchase methamphetamine from a

Greeley associate. And officers observed a courier delivering a box

to Gonzalez-Victoria’s home.

8
¶ 23 The prosecution presented evidence for count 11 that on

August 2 Gonzalez-Victoria arranged to purchase 1,000 fentanyl

pills from the Denver source. They arranged to meet at a

restaurant in Brighton. Officers observed Gonzalez-Victoria,

Greeley associates, and the Denver supplier meeting at the

restaurant.

¶ 24 The evidence supporting count 12 showed that on August 28-

30 Gonzalez-Victoria communicated with the Arizona source about

buying fentanyl pills. They discussed a courier coming to Denver.

The Arizona source also asked Gonzalez-Victoria about taking a

load of methamphetamine. Officers stopped the courier in Colorado

and found eighty-eight pounds of methamphetamine hidden in the

truck.

¶ 25 And the evidence for count 18 established that on July 26

Gonzalez-Victoria arranged to buy 500 fentanyl pills from the

Denver supplier and meet at the same Brighton restaurant where

they had engaged in the transaction charged in count 11. Officers

saw Gonzalez-Victoria, a Greeley associate, and the Denver supplier

meeting at the restaurant.

9
¶ 26 Considering the Pinelli factors and the evidence presented, we

conclude that Gonzalez-Victoria’s convictions for counts 11 and 18

should merge.1 Those convictions involved purchases from the

same drug supplier with the same unlawful objective to purchase

fentanyl pills. See Davis, ¶ 20 (finding “same unlawful objective”

between actors “to distribute one type of drug supplied by one co-

conspirator”). And the transactions were arranged by Gonzalez-

Victoria in the same way and occurred days apart at the same

Brighton location. Highlighting the overlapping nature of the two

transactions, the prosecutor described the two counts as “eerily

similar” in closing argument.

¶ 27 For similar reasons, we conclude that Gonzalez-Victoria’s

convictions for counts 4 and 12 should merge.2 These convictions

involve Gonzalez-Victoria agreeing to make two large purchases of

methamphetamine from the same Arizona drug source within three

months of each other. See id. (determining two-month period to be

“relatively short time frame”). The transactions shared the same

1 Counts 11 and 18 are both level 2 drug felonies. § 18-18-
405(2)(b)(I)(A), C.R.S. 2025.
2 Counts 4 and 12 are both level 1 drug felonies. § 18-18-

405(2)(a)(I)(A).

10
modus operandi of smuggling drugs from Arizona to Weld County

and were arranged in the same way by the same co-conspirators.

See id. at ¶ 26 (concluding that “ongoing phone calls and

transactions with one person ordering methamphetamine in similar

quantities” in one county over a few months was one criminal

episode).

¶ 28 But the remaining buying convictions — counts 8 and 10

— are different. Count 8 involved a large purchase of cocaine.

Though the Denver source supplied the cocaine, the exchange was

in a location different from the others, and the evidence to prove

this transaction did not overlap with the evidence regarding the

purchase of fentanyl pills. And count 10 involved an agreement to

purchase methamphetamine from a Greeley source; thus, it

involved an entirely different supplier than the other buying

transactions.

¶ 29 We therefore conclude that the district court should have

merged Gonzalez-Victoria’s convictions for counts 11 and 18 into

one conviction and his convictions for counts 4 and 12 into one

conviction. We thus remand the case to the district court for

correction of the mittimus.

11
E. The Selling Convictions

¶ 30 The remaining conspiracy convictions — counts 3, 5, 6, 7, 9,

and 17 — involve Gonzalez-Victoria selling drugs to other

individuals. Though he again broadly argues that all the conspiracy

convictions should merge, even he concedes that counts 3, 9, and

17 involved the sale of drugs in small quantities to unknown people

or individuals who didn’t participate in any of the other

transactions and are not identified on Exhibit 1. And he develops

no argument explaining why these convictions should merge into

any other conviction. We therefore consider the evidence

supporting the convictions on counts 5, 6, and 7.

¶ 31 Doing that shows that each of these counts concerns a

discrete criminal episode. For counts 5, 6, and 7, the prosecution

presented evidence that, on different dates, Gonzalez-Victoria

agreed to sell different quantities of drugs to different individuals,

and the transactions were completed at different locations. See

Davis, ¶ 18. Gonzalez-Victoria does not explain how the evidence

supporting these counts “would be relevant” to each other (or any

other count). See id.

12
¶ 32 Because counts 3, 5, 6, 7, 9, and 17 arose from multiple,

discrete criminal episodes, the district court didn’t err by declining

to merge these convictions

III. Prosecutorial Misconduct

¶ 33 Gonzalez-Victoria next contends that the prosecutor

committed pervasive misconduct throughout the trial. We disagree.

A. Legal Principles and Standard of Review

¶ 34 When reviewing a claim of prosecutorial misconduct, we

consider whether the prosecutor’s conduct was improper and

whether any impropriety requires reversal. Wend v. People, 235

P.3d 1089, 1096 (Colo. 2010). “Whether a prosecutor’s statements

constitute misconduct is generally a matter left to the [district]

court’s discretion.” Domingo-Gomez v. People, 125 P.3d 1043, 1049

(Colo. 2005).

¶ 35 We review preserved claims of prosecutorial misconduct for

harmless error, reversing only if the error substantially influenced

the verdict or affected the fairness of the trial. People v. Walker,

2022 COA 15, ¶ 28.

¶ 36 For unpreserved claims, we review for plain error. See People

v. Licona-Ortega, 2022 COA 27, ¶ 88. Only misconduct that is

13
“flagrantly, glaringly, or tremendously improper” warrants reversal

under the plain error standard. Domingo-Gomez, 125 P.3d at 1053

(citation omitted); see also People v. Smalley, 2015 COA 140, ¶ 37

(“Prosecutorial misconduct in closing argument rarely constitutes

plain error.”).

B. Voir Dire: Bolstering

¶ 37 At the beginning of voir dire, the court read the charges

against Gonzalez-Victoria. It then instructed the venire that the

charges “are not evidence of anything,” Gonzalez-Victoria is

presumed innocent, and the prosecution has the burden to prove

the charges beyond a reasonable doubt.

¶ 38 During the second day of voir dire, after several prospective

jurors were excused, the attorneys questioned new venire members.

During that questioning, the prosecutor asked one prospective juror

the following:

Is there anything about this case that makes
you think that you couldn’t be fair and
impartial as it pertains to the subject matter,
number of counts, and those things? And let
me start with do you recall the discussion
yesterday that I’ve essentially brought these
charges, they’re accusations only, and
therefore, I have a long list of things to back
up?

14
¶ 39 After the prospective juror responded, the prosecutor

continued, “Ultimately, do you believe you can decide whether I’ve

met my burden of proof based on the evidence that would be

presented at trial?”

¶ 40 With another prospective juror, the prosecutor similarly

stated, “I make the charges and I intend to back them up,” and

“your role would be to decide based on the evidence that I provide

whether or not I’ve done that. Do you feel comfortable with that?”

¶ 41 The prosecutor had the following similar colloquy with a third

prospective juror:

Prosecutor: Do you understand I brought these
charges?

Prospective Juror: Yes.

Prosecutor: I need to back them up?

Prospective Juror: Yeah.

Prosecutor: And you have to wait until the
evidence, right? Any other concerns
whatsoever?

¶ 42 Though defense counsel didn’t object to these specific

comments, Gonzalez-Victoria now argues that they were improper

“bolstering” and vouched “for the strength of the case.” But none of

these comments goes to the credibility of any witness or the

15
prosecutor’s belief in the strength of the case. Read in context, they

are all proper comments on the fact that the charges are not

evidence, and that the prosecution has the burden to present

evidence to support the charges.

¶ 43 Gonzalez-Victoria next argues that after one of the references

to backing up the charges, the prosecutor committed misconduct

by remarking, over his counsel’s objection, “And I would provide

you evidence . . . I want to get rid of this secret . . . I wouldn’t be

here if I didn’t believe that. We have standards for that, right?”

Gonzalez-Victoria specifically argues that this comment

“impermissibly let the jury know that [the prosecutor] believed in

the strength of the case, and that the case had met the ‘standards’

for a successful prosecution.”

¶ 44 While it’s unclear exactly what the prosecutor meant, we can’t

say that it was an improper comment on screening procedures or

an expression of personal opinion. Rather, in context, the

statement appears to have conveyed that although the prosecution

couldn’t present evidence in voir dire (which is true), it would

present evidence to meet its burden at trial. Though the phrasing

16
was awkward and not ideal, voir dire is not perfectly scripted. We

thus don’t agree that the court abused its discretion by allowing it.

¶ 45 The same is true for the prosecutor’s comment to a juror that

“I can’t present evidence at this point, I can’t tell you what evidence

I would present at this point. So again, this hypothetical is pretty

tough.” Again, this was an accurate statement. After all, the

purpose of voir dire is to determine whether any jurors possess

beliefs that would prevent the defendant from receiving a fair trial.

See People v. Wilson, 2013 COA 75, ¶ 12. It is not to present

evidence to support the charged crimes.

¶ 46 Thus, the district court didn’t err by allowing these comments

during voir dire.

C. Voir Dire: Picture

¶ 47 During voir dire, defense counsel objected to a couple of

demonstrative pictures that were apparently displayed at some

point — one of which showed a stock image of children running a

lemonade stand with the word “DRUGS” on a sign above it.3

3 Though Gonzalez-Victoria asserts that this image was also shown

during opening statement, he does not direct us to any portion of
the record supporting that claim, and we see no indication that the
picture was shown during opening statement.

17
Defense counsel objected because the demonstratives were not in

the record. As part of that objection, defense counsel commented

on the lemonade stand picture, stating that it wasn’t “particularly

appropriate to be interjecting children into this case because there

are none.”

¶ 48 The prosecution responded that it planned to use the pictures

to help it gauge the venire’s response to the “fact that these are

undercover operations” and “not happening out in the public.”

¶ 49 The district court ordered the prosecution to include the

pictures in the record but overruled any objection to the manner of

questioning. And as to the picture with the lemonade stand, the

court commented, “I don’t think anybody would believe that to be

an actual depiction of children running a drug stand.”

¶ 50 Gonzalez-Victoria now argues that it was improper to display

the picture because it “had no connection to anything adduced at

trial” and implied that the drugs he sold went to children.

¶ 51 But the record doesn’t say whether the prosecution continued

to display the picture. All we know is that the picture wasn’t

introduced into evidence, and Gonzalez-Victoria admits that “the

prosecutor here did not comment on the photograph[].” And even

18
assuming the prosecution displayed it for at least some portion of

the voir dire, Gonzalez-Victoria doesn’t elaborate on how the picture

— which was not brought to the venire’s attention — could have

possibly influenced the jury or affected the fairness of the trial.

¶ 52 Under these circumstances, we can’t conclude that the court

abused its discretion by allowing the prosecution to display the

picture.

D. Closing Argument: Facts Not in Evidence

¶ 53 We also reject Gonzalez-Victoria’s claim that the prosecutor

committed misconduct by referring to “facts not in evidence” when

he argued that “if we had panned out” of a picture of Gonzalez-

Victoria walking to the drug transaction in count 16 (the special

offender count for selling drugs within 1,000 feet of a school), “we’d

see kids playing hopscotch and dodgeball.”

¶ 54 It is undisputed that Gonzalez-Victoria sold drugs to Oliveros

within 1,000 feet of a school in the middle of the week during school

hours — indeed his attorney admitted that at trial. And while the

prosecutor may have overstated what the picture might have shown

had it been enlarged, that children were playing around the school

during the transaction is a reasonable inference from the admitted

19
evidence. See People v. Vialpando, 2022 CO 28, ¶ 23 (stating that a

prosecutor may draw reasonable inferences from the evidence).

E. Closing Argument: Inflaming Passions and Denigrating the
Defense

¶ 55 Gonzalez-Victoria asserts that the prosecutor improperly

inflamed the passions of the jury in its closing argument by, among

other things, referring to drugs as “poison” and describing the

amount of drugs and money in the case as “sickening” and

“disgusting.” And he asserts that the prosecutor denigrated the

defense and Gonzalez-Victoria by commenting on the evidence that

Gonzalez-Victoria was a drug dealer and had a predisposition to

selling drugs.

¶ 56 But beyond simply identifying the challenged comments,

Gonzalez-Victoria doesn’t develop this argument or explain how any

of the comments were obviously and substantially improper. We

therefore don’t review this contention. See People v. Relaford, 2016

COA 99, ¶ 70 n.2.

F. Cartel Evidence

¶ 57 Gonzalez-Victoria next claims that the prosecutor committed

misconduct by including “a reference to the Sinaloa cartel” in

20
Exhibit 1, which he says implied that he “[w]as [i]nvolved in the

Sinaloa [c]artel.”4 He also argues that this evidence was

inadmissible under CRE 402 and 403.

¶ 58 Gonzalez-Victoria admits that the prosecution “never

introduced evidence that connected [him] or any of his

co[-]conspirators to the Sinaloa cartel.” Even so, he says a portion

of Exhibit 1, shown below, implied that he is part of the Sinaloa

cartel.

The Portion of Exhibit 1 Displaying the “Sinaloa” Reference

¶ 59 Gonzalez-Victoria argues that the identification of a Mexican

phone number and the single reference to Sinaloa — which was

never commented on at trial — constitute improper evidence linking

him to the Sinaloa cartel. We are unpersuaded, however, that a

4 The district court denied defense counsel’s request to strike the

portion of Exhibit 1 that referenced a Mexican phone number and
the state of Sinaloa.

21
Mexican phone number and reference to the Mexican state of

Sinaloa, untethered to any testimony about Sinaloa or the cartel,

constitutes improper evidence that Gonzalez-Victoria had ties to a

cartel.5

¶ 60 For all these reasons, we reject Gonzalez-Victoria’s claims that

the prosecutor engaged in pervasive misconduct.

IV. Expert Witness Testimony

¶ 61 Gonzalez-Victoria contends that the district court erred by

admitting portions of Oliveros’ expert testimony. We are

unconvinced that the court plainly erred.

A. Additional Background

¶ 62 On the first day of trial, Oliveros — the Task Force’s

undercover investigator — testified about his experience and

specialized training in narcotics investigations. Over Gonzalez-

Victoria’s counsel’s objection, the court qualified Oliveros as an

expert in the Spanish language and “narcotics and culture,

including prices, amounts for personal use and distribution, as well

as terminology.” Oliveros testified multiple times during the trial.

5 The only reference to the Sinaloa cartel during trial was in defense

counsel’s closing argument.

22
He first testified as a fact witness and described his four drug

purchases from Gonzalez-Victoria. Oliveros then testified that he

had listened to “thousands” of wiretap calls between Gonzalez-

Victoria and others and opined about the potential meaning of

various coded conversations. Gonzalez-Victoria did not object to

this testimony.

¶ 63 For each of the twelve conspiracy charges, the prosecution

also asked Oliveros whether, in his expert opinion, he believed that

the evidence introduced proved some of the elements of the

conspiracy charges. On each count, Oliveros opined that he

believed that Gonzalez-Victoria entered into an agreement to

commit the conspiracy and took overt acts to complete it.

Gonzalez-Victoria’s counsel also did not object to this testimony.

¶ 64 Gonzalez-Victoria now complains that the district court plainly

erred by allowing Oliveros to testify in a “dual capacity,” improperly

summarize factual evidence, opine beyond the scope of his expert

qualification, and usurp the jury’s function.

B. Legal Principles and Standard of Review

¶ 65 A witness may be qualified as an expert if he has specialized

knowledge that will “assist the trier of fact to understand the

23
evidence or to determine a fact in issue.” CRE 702. Expert

testimony must be both reliable and relevant, meaning it “would be

useful to the jury.” People v. Shreck, 22 P.3d 68, 77 (Colo. 2001).

And while an expert may opine on an ultimate issue of fact, CRE

704, an expert may not usurp the jury’s function of weighing the

evidence and determining witness credibility. See People v. Baker,

2021 CO 29, ¶ 34.

¶ 66 To determine whether opinion testimony is admissible under

CRE 702 and CRE 704, we consider several factors, including

whether (1) the testimony was clarified on cross-examination;

(2) the expert expressed an opinion on the applicable law or legal

standards and thereby usurped the court’s function; (3) the court

properly instructed the jury on the law and that it could accept or

reject the expert’s opinion; and (4) the expert opined that the

defendant had committed the crime or that there was a particular

likelihood that the defendant had done so. People v. Rector, 248

P.3d 1196, 1203 (Colo. 2011).

¶ 67 We review a district court’s admission of expert testimony for

an abuse of discretion. Baker, ¶ 29. A court abuses its discretion

24
when its ruling is manifestly arbitrary, unreasonable, or unfair, or

when it misapplies the law. Id.

¶ 68 When — as is the case here — defense counsel does not object

to any of the challenged testimony at trial, we review for plain error.

Id. at ¶ 36. An error is plain, and therefore requires reversal, if it

was obvious and “so undermined the fundamental fairness of the

trial itself . . . as to cast serious doubt on the reliability of the

judgment of conviction.” Hagos v. People, 2012 CO 63, ¶ 14

(citation omitted).

C. Dual Capacity

¶ 69 Oliveros testified as a fact witness about his drug purchases

from Gonzalez-Victoria and offered expert opinion testimony about

Gonzalez-Victoria’s conversations arranging drug transactions with

others.

¶ 70 Insofar as Gonzalez-Victoria suggests that the court plainly

erred by allowing Oliveros to testify as a fact and expert witness,

because Colorado doesn’t categorically ban such “dual capacity”

testimony, People v. Fortson, 2018 COA 46M, ¶ 97, any error could

not have been plain. See People v. Crabtree, 2024 CO 40M, ¶ 42

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

25
command, a well-settled legal principle, or established Colorado

case law.”).

D. Factual Summary

¶ 71 We next reject Gonzalez-Victoria’s claim that the district court

plainly erred by allowing Oliveros to improperly “interpret and

summarize factual evidence derived from the investigation.”

¶ 72 Though Gonzalez-Victoria doesn’t point to any particular

testimony that he claims was an improper factual summary,

Oliveros was qualified in narcotics distribution and terminology.

Because slang used in narcotics transactions is not generally

known to people who don’t participate in narcotics distribution, his

testimony assisted the jury in understanding the coded

conversations. See People v. Bryant, 2018 COA 53, ¶ 73 (noting

that defining drug related slang is expert testimony). And to the

extent Oliveros also interpreted and explained the coded

conversations based on his experience and training, this too aided

the jury in understanding the evidence and thus was permissible.

See People v. Davis, 2012 COA 56, ¶ 56 (concluding court properly

admitted a detective’s testimony interpreting coded gang messages

because it “is an appropriate area for expert testimony by a police

26
officer who has intensively investigated a gang and its methods of

communication”).

E. Scope of Qualifications

¶ 73 Gonzalez-Victoria next complains that Oliveros “gave opinions

that far exceeded the scope of his expert qualification.” The only

thing he identifies in this regard, however, is “[d]efendant’s state of

mind.” But he points to no testimony that he claims is an opinion

about his state of mind.

¶ 74 And to the extent Gonzalez-Victoria generally complains that

Oliveros testified about the types and quantities of drugs discussed

on the wiretap calls, the course of the investigation, and the people

involved in the various drug transactions that are reflected in

Exhibit 1, that testimony was tethered to the investigation and was

based on his experience and expertise in narcotics investigations. It

was therefore well within the scope of his qualifications. See People

v. Munoz-Casteneda, 2012 COA 109, ¶ 28 (describing evidence

about the defendant’s involvement in drug trafficking organization

as required for conspiracy charge).

27
F. Usurping the Jury’s Function

¶ 75 Gonzalez-Victoria also argues that Oliveros improperly testified

that Gonzalez-Victoria “was guilty of each of the twelve conspiracy

counts” because he opined that Gonzalez-Victoria entered into

conspiratorial agreements and took overt acts toward completing

them. While Oliveros didn’t testify to Gonzalez-Victoria’s guilt, it’s

true that — at the prosector’s prompting — Oliveros did opine that

Gonzalez-Victoria entered into conspiratorial agreements and took

overt acts toward completing them. We agree that those portions of

Oliveros’ testimony were improper expressions “of the applicable

law or legal standards.” Rector, 248 P.3d at 1203. But even so, we

can’t conclude the court plainly erred. That’s so for two reasons.

First, the other Rector factors support the admissibility of the

testimony. After all, defense counsel cross-examined Oliveros at

length, making it clear that Oliveros’ testimony was his “opinion.”

And the court properly instructed the jury on the law and that it

could accept or reject an expert’s opinion. Id. Finally, Oliveros

never testified that Gonzalez-Victoria was guilty of conspiracy to

distribute controlled substances. Id.

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¶ 76 Second, Gonzalez-Victoria bears the burden to show plain

error. See Walker, ¶ 36. But Gonzalez-Victoria does not assert that

the admission of the testimony satisfies the plain error test, much

less explain how it does so.6 Indeed, given that Oliveros testified

about the conversations establishing each transaction and other

officers corroborated the corresponding meetings, Gonzalez-Victoria

has not demonstrated substantial prejudice from Oliveros’ response

to the prosecutor’s questions.

V. Cumulative Error

¶ 77 Gonzalez-Victoria asserts that, collectively, the district court’s

errors violated his right to a fair trial, entitling him to a new one.

See Howard-Walker v. People, 2019 CO 69, ¶ 24. But cumulative

error requires multiple errors resulting in cumulative prejudice. Id.

at ¶ 25. And even assuming the district court should have sua

sponte struck some of Oliveros’ testimony and should have merged

two convictions, these errors didn’t substantially affect the fairness

6 Though Gonzalez-Victoria recognizes that this contention is

unpreserved, he argues that the error is not harmless. But that is
the wrong standard of reversal.

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of the trial proceedings and the integrity of the factfinding. Thus,

reversal for cumulative error isn’t warranted.

VI. Disposition

¶ 78 We reverse the portion of the judgment showing separate

convictions for counts 4 and 12 and counts 11 and 18, otherwise

affirm the judgment, and remand to the district court to (1) merge

the convictions on counts 11 and 18; (2) merge the convictions on

counts 4 and 12; (3) amend the mittimus to reflect the merger; and

(4) resentence Gonzalez-Victoria, if necessary.

JUDGE J. JONES and JUDGE FOX concur.

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