Peo v. Johnson

23CA0397 Peo v Johnson 09-11-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0397
City and County of Denver District Court No. 21CR156
Honorable Martin F. Egelhoff, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Dejon Alexander Johnson,

Defendant-Appellant.

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

Division VII
Opinion by JUDGE MOULTRIE
Lipinsky and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 11, 2025

Philip J. Weiser, Attorney General, Marixa Frias, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Joshua Martin, Alternate Defense Counsel, Grand Junction, Colorado, for
Defendant-Appellant
¶1 Defendant, Dejon Alexander Johnson, appeals his convictions

for one count of second degree assault on a peace officer, two

counts of second degree assault on a peace officer while in custody,

and two counts of third degree assault on a first responder. We

affirm in part, reverse in part, and remand the case with directions.

I. Background

¶2 In January 2021, Johnson was arrested for burglary and

motor vehicle theft. A struggle occurred during the arrest in which

Johnson kicked Officers Christopher Hill and Reyes Trujillo in the

face, and Officer Brian Urlik fell and broke his ankle. The

prosecution initiated a case (the assault case) and charged Johnson

with the following relevant counts:

(1) two counts of assault in the second degree under section

18-3-203(1)(c.5), C.R.S. 2025;

(2) one count of assault in the second degree under section

18-3-203(2)(b.5);

(3) one count of assault in the second degree under section

18-3-203(1)(c);

(4) one count of assault in the second degree under section

18-3-203(1)(g); and

1
(5) one count of criminal attempt to commit second degree

burglary under sections 18-4-203(1), (2)(a), C.R.S. 2020,1

and section 18-2-101, C.R.S. 2025.

All the assault charges related to Officer Urlik’s injuries.

¶3 Two days after the prosecution filed the initial complaint

(initial complaint), Johnson appeared before a magistrate for an

advisement. At that hearing, Johnson’s public defender told the

magistrate that Johnson wanted to proceed without an attorney.

The magistrate provided Johnson with a Crim. P. 5 advisement and

entered a minute order that said, “Def[endant] req[uests] to proceed

without [a public defender]. Req[uest] granted.” The magistrate

also scheduled the case for a preliminary hearing a few weeks later.

¶4 At the preliminary hearing, which was conducted in county

court, Johnson appeared with a public defender and again

indicated his desire to proceed without an attorney. The county

court continued the preliminary hearing and did not terminate the

public defender’s appointment. Johnson also appeared with a

1 Because section 18-4-203(2)(a), C.R.S. 2020, has been amended,

we cite the version in effect on the date the offenses occurred. See
Ch. 298, sec. 10, § 18-4-203(2)(a), 2023 Colo. Sess. Laws 1784-85.

2
public defender at the continued preliminary hearing, at which the

public defender raised concerns about Johnson’s competency. The

county court bound the case over to the district court for a status

hearing. The day before the status hearing, the public defender

filed a motion to determine Johnson’s competency.

¶5 During the status hearing, Johnson again expressed his desire

to proceed without an attorney. The district court informed

Johnson he “ha[d] the right to decide whether [he] want[ed] to have

a lawyer or not” but said that it first needed to determine whether

Johnson was competent. The district court ordered a competency

evaluation and suspended the proceedings until the evaluation

process was complete.

¶6 Nearly two months later, the district court conducted a

hearing at which Johnson appeared with a public defender. The

court reviewed the competency evaluation results and found

Johnson competent to proceed. Johnson again confirmed that he

desired to proceed without an attorney, arguing that the county

court had already granted his oral motion to proceed without an

attorney. The district court disagreed with Johnson’s assertion that

the county court had authorized him to represent himself, noting

3
that there wasn’t a finding in the file “that satisfie[d] [the court] that

[Johnson] ha[d] knowingly[,] . . . voluntarily[,] and intelligently

waived [his] right to counsel.” The district court set a hearing for

the following day to advise Johnson about waiving his right to

counsel and to make the appropriate waiver findings on the record.

A. First Arguello2 Advisement

¶7 Johnson appeared for the advisement hearing and again

argued that he had “already been notified of [his] . . . waiver of

counsel.” The district court explained to Johnson that it had the

county court minute orders, but the court file didn’t contain

findings sufficient to demonstrate that Johnson had validly waived

his right to counsel.

¶8 The district court provided Johnson with a five-page written

advisement that contained several questions mostly requiring a yes

or no response. Question number six addressed the charges

Johnson faced and appeared as follows:

2 An “Arguello advisement,” named after People v. Arguello, 772 P.2d

87, 95 (Colo. 1989), requires a trial court to conduct a specific
inquiry on the record to ensure that a defendant is voluntarily,
knowingly, and intelligently waiving their right to counsel.

4
¶9 The district court reviewed the written advisement with

Johnson on the record, confirmed Johnson’s signature on the last

page, and orally advised Johnson about the possible penalties he

faced (first Arguello advisement). As relevant here, the district court

advised Johnson during the following colloquy:

The court: [W]ith respect to the possible
penalties, sir, as to the . . . class 3 felony —
and counsel, correct me if I’m wrong — the
range of penalties is anywhere from four to . . .
to twelve years.

Johnson: It’s ten to thirty-two [years].

The court: Is that correct, counsel?

Johnson: It’s ten to thirty-two [years].
Extraordinary risk, Your Honor.

....

5
The court: Is it four to twelve [years] or four to
sixteen [years]?

Prosecutor: [On the class 3 felony,] I believe it’s
four to sixteen [years], Your Honor.

The court: All right. So[,] . . . the subject range
is anywhere from four years to sixteen years in
the Department of Corrections, all right?

Johnson: Um-hum.

The court: If there are . . . extraordinary
aggravating circumstances, that can extend it
up to thirty-six years, all right?

As to the second degree assault class 4
felonies, . . . the range in those is anywhere
from two years to eight years. Again, it could
be as much as sixteen years in the Department
of Corrections.

¶ 10 Johnson confirmed that he understood the pending charges

and their potential penalties. The district court also advised

Johnson that

• he had the right to a court-appointed attorney if he

couldn’t otherwise afford one;

• there would be various pretrial proceedings leading up to

trial that could consist of several phases;

• an attorney could help him to navigate the complex

judicial system;

6
• the rules, procedures, and standards applicable to

attorneys would be equally applicable to Johnson during

his self-representation; and

• neither his lack of knowledge of the rules or procedures

nor his own ineffectiveness during self-representation

would be grounds for an appeal or postconviction relief.

¶ 11 The district court determined that nothing about Johnson’s

education level or his physical, mental, or emotional state prevented

him from understanding the advisement. After the oral advisement,

Johnson confirmed that he still wanted to proceed with self-

representation, his choice was voluntary, and no one had forced,

coerced, or influenced him in making his decision. After finding

that Johnson made a knowing, voluntary, and intelligent waiver of

his right to counsel, the district court allowed the public defender to

withdraw.

¶ 12 Immediately after the district court found that Johnson had

validly waived his right to counsel, the prosecutor clarified that

count one — the class 3 felony — carried a potential range of ten to

thirty-two years in the custody of the Department of Corrections

(DOC). Given the corrected information about the potential range of

7
penalties for count one, the district court asked Johnson whether

he still wanted to proceed without an attorney. Johnson said that

he did.

¶ 13 The district court then reset the preliminary hearing and

allowed Johnson to be released on bond under pretrial supervision.

When Johnson appeared at the preliminary hearing, he was back in

custody on unrelated charges. Johnson remained in custody until

he entered a guilty plea in the assault case several months later.

B. Johnson’s Plea Agreement

¶ 14 The prosecution dismissed counts one and two of the initial

complaint in July 2021. That same day, the district court

appointed advisory counsel to assist Johnson.

¶ 15 In September, the prosecution simultaneously filed a plea

agreement and a motion to add an eighth count through a second

amended complaint. The prosecution agreed to dismiss the

remaining counts as part of its plea agreement with Johnson.

Johnson entered a guilty plea, but the judicial officer presiding over

the hearing rejected the plea agreement.

¶ 16 Less than two weeks later, a different judicial officer accepted

the plea agreement, and Johnson went to immediate sentencing.

8
The district court sentenced Johnson to ninety days in jail with

credit for time served and two years of supervised probation.

C. Invalidation of Johnson’s Guilty Plea

¶ 17 In January 2022, the district court issued a warrant for

Johnson’s arrest based on allegations he had violated the

conditions of his probation. The public defender’s office was

appointed to represent Johnson with respect to the probation

revocation, and again, the public defender raised concerns about

Johnson’s competency to proceed. Johnson again indicated that he

desired to represent himself. The court ordered a second

competency evaluation for Johnson.

¶ 18 After reviewing the second competency evaluation, the district

court found Johnson competent and gave him an additional

Arguello advisement (second Arguello advisement), which largely

incorporated the district court’s findings in the first Arguello

advisement. The district court also reviewed with Johnson the

allegations in the prosecution’s complaint to revoke his probation,

his rights with respect to the complaint, and the consequences of

9
proceeding without an attorney.3 After Johnson confirmed that he

was thinking clearly and understood the rights he would be giving

up by proceeding without an attorney, the district court found

Johnson had knowingly, voluntarily, and intelligently waived his

right to counsel.

¶ 19 The following week, Johnson filed a motion to withdraw his

July 2021 guilty plea, arguing that the sentencing judge had

misadvised him about the possible sentencing consequences of his

plea if his probation was revoked. After considering arguments

from Johnson and the prosecution, the district court vacated

Johnson’s guilty plea and sentence.

¶ 20 The district court informed the parties that they needed to

“start over” and told Johnson, “I’ve vacated your plea in [the assault

case] . . . . So basically[,] the charges are reinstated.”

¶ 21 In June 2022, the prosecution filed a motion to add seven new

counts to the initial complaint and to dismiss original counts one

through four and eight, as reflected in a third amended complaint.

The relevant newly added counts were

3 The district court also referred to a written advisement that

doesn’t appear in the record.

10
• count ten: assault in the second degree under sections

18-3-203(1)(f), (2)(b.5), a class 3 felony;

• count eleven: assault in the second degree under section

18-3-203(1)(f), a class 4 felony;

• count twelve: assault in the second degree under section

18-3-203(1)(f), a class 4 felony;

• count thirteen: assault in the second degree under

section 18-3-203(1)(c), a class 4 felony; and

• count fourteen: assault in the second degree under

section 18-3-203(1)(c), a class 4 felony.

Count ten related to Officer Urlik’s injuries, counts eleven and

thirteen related to Officer Trujillo’s injuries, and counts twelve and

fourteen related to Officer Hill’s injuries.

¶ 22 The prosecutor provided Johnson with a copy of the third

amended complaint at a hearing held three days later. The district

court explained to Johnson that the prosecution was “dismissing

the assault counts that allege an attempt to cause bodily injury or

serious bodily injury and amend[ing] to an assault where you

applied physical force to a peace officer. That’s the sum and

11
substance of their amendment. It doesn’t change the classification

of the felonies or anything.”

¶ 23 Johnson requested a bench trial, which the district court set

for November 2022.

D. Additional Amended Complaints

¶ 24 On the day of the bench trial, the prosecution filed three more

amended complaints that amended only count ten of the third

amended complaint. The first was filed at 8:30 a.m., the second at

8:47 a.m., and the last (the sixth amended complaint) at 1:21 p.m.

The prosecution filed the sixth amended complaint over the lunch

break after it had put on its case-in-chief. As relevant here, the

sixth amended complaint listed count ten as assault in the second

degree under section 18-3-203(1)(c), a class 4 felony.

¶ 25 When the time came for Johnson to present evidence, Johnson

chose not to testify and didn’t otherwise present any evidence. After

the prosecutor and Johnson made their respective closing

arguments, the district court found that the prosecution had proved

beyond a reasonable doubt that Johnson was guilty of counts ten,

eleven, and twelve of the sixth amended complaint. With respect to

counts thirteen and fourteen, the district court found that the

12
prosecution proved beyond a reasonable doubt that Johnson acted

recklessly and found him guilty of two counts of a lesser included

offense that the prosecution had not requested — third degree

assault on a first responder under section 18-3-204(1)(a), C.R.S.

2025 — a class 1 misdemeanor.

E. Sentencing

¶ 26 In January 2023, the district court sentenced Johnson to two

years in the custody of the DOC for each of the three felony

convictions, to be served consecutively, for a total of six years, and

imposed a three-year mandatory parole period. For the two

misdemeanor convictions, the district court sentenced Johnson to

two years and one day in the county jail for each conviction. The

district court ordered the misdemeanor sentences to run

concurrently with each other but consecutively to the felony

sentences, with the county jail sentences to be served first.

¶ 27 Johnson appeals, asserting that the district court reversibly

erred by (1) interfering with his right to self-representation and

continuing the preliminary hearing beyond the statutory timeframe

over his objection; (2) finding he validly waived his right to counsel;

and (3) sua sponte finding him guilty of lesser included offenses.

13
¶ 28 As discussed below, we reject Johnson’s first and second

contentions but agree with his third.

II. Legal Principles

A. Preliminary Hearing Timeframe

¶ 29 Crim. P. 5(a)(4)(I) provides that a preliminary hearing “shall be

held within 35 days of the day of setting, unless good cause for

continuing the hearing beyond that time is shown to the court.”

B. Constitutional Right to Counsel and Valid Waiver Thereof

¶ 30 A defendant’s right to legal counsel is protected under both the

United States and the Colorado Constitutions. See U.S. Const.

amend. VI; Colo. Const. art. II, § 16; see also People v. Arguello, 772

P.2d 87, 92 (Colo. 1989) (noting that the right to counsel is

“considered essential to a fair trial”). “As a corollary to the Sixth

Amendment’s right to counsel, a defendant has the alternative right

to self-representation.” Arguello, 772 P.2d at 92; see People v.

Romero, 694 P.2d 1256, 1263-64 (Colo. 1985).

¶ 31 If a defendant requests to proceed with self-representation, the

court must “conduct a specific inquiry on the record to ensure that

the defendant is voluntarily, knowingly and intelligently waiving the

right to counsel” before it can grant the request. Arguello, 772 P.2d

14
at 95. Arguello sets forth a nonexclusive list of questions that a

court should ask a defendant before allowing them to waive their

right to counsel. Id. at 95-96. The court is responsible for ensuring

that a defendant is “made aware of the dangers and disadvantages

of self-representation, so that the record will establish that ‘[the

defendant] knows what he is doing and his choice is made with eyes

open.’” Faretta v. California, 422 U.S. 806, 835 (1975) (quoting

Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)).

However, “[a] court’s failure to comply substantially with this

requirement does not automatically render the waiver invalid, but

[rather] is an exception which should rarely be invoked.” Arguello,

772 P.2d at 96.

¶ 32 “A waiver is voluntary if it is ‘not extracted by threats or

violence, promises, or undue influence.’” People v. Lavadie, 2021

CO 42, ¶ 27 (quoting People v. Davis, 2015 CO 36M, ¶ 18). It is

knowing and intelligent if the record clearly
shows that the defendant understood the
nature of the charges, the statutory offenses
included within them, the range of allowable
punishments, the possible defenses to the
charges and circumstances in their mitigation,
and all other facts essential to a broad
understanding of the whole matter.

15
Id. at ¶ 28.

C. Second Degree Assault

¶ 33 Section 18-3-203 describes alternative ways by which a person

can commit second degree assault. As relevant here, a person

commits second degree assault if they know or should know a

person is a peace officer and the person

• intentionally causes bodily injury to any person while

intentionally trying to prevent a peace officer from

performing a lawful duty, § 18-3-203(1)(c);

• intentionally causes serious bodily injury to any person

while intentionally trying to prevent a peace officer from

performing a lawful duty, § 18-3-203(1)(c.5); or

• while lawfully in custody, “knowingly and violently”

applies physical force against a peace officer who is

engaged in the performance of their duties, § 18-3-

203(1)(f).

¶ 34 Second degree assault is a class 4 felony. § 18-3-203(2)(b).

But if the victim suffers “serious bodily injury during the

commission or attempted commission of or flight from the

16
commission or attempted commission of” a burglary, it becomes a

class 3 felony. § 18-3-203(2)(b.5).

D. Sentencing Statutes

¶ 35 For crimes committed on or after July 1, 2020, the

presumptive sentencing range for class 4 felonies is two to six years

in the custody of the DOC, and the presumptive sentencing range

for class 3 felonies is four to twelve years.

§ 18-1.3-401(1)(a)(V.5)(A), C.R.S. 2025. If a crime presents an

“extraordinary risk of harm to society,” a sentencing court is

required to increase the maximum sentence in the presumptive

range by two years for class 4 felonies and four years for class 3

felonies. § 18-1.3-401(10)(a).

¶ 36 Crimes of violence present such an “extraordinary risk of harm

to society.” § 18-1.3-401(10)(b)(XII). A defendant convicted under

subsection (1)(c) of the 2020 version of the second degree assault

statute, § 18-3-203(2)(c)(II), C.R.S. 2020,4 and who caused serious

4 Because the sentencing provisions of the second degree assault

statute, subsections (2)(c)(I) and (2)(c)(II) of section 18-3-203, C.R.S.
2020, have been amended, we cite the 2020 version of those
provisions, in effect when Johnson was convicted. See Ch. 298,
sec. 5, § 18-3-203(2)(c)(I)-(II), 2023 Colo. Sess. Laws 1783-84.

17
bodily injury to a victim, is subject to a crime of violence sentence

enhancer that increases the sentence, if imposed, to at least the

midpoint but not more than twice the maximum of the presumptive

range. See § 18-1.3-406(1)(a), (2)(a)(I)(B), (2)(a)(II)(C), C.R.S. 2025;

see also People v. Austin, 2018 CO 47, ¶ 12 (noting that the 2016

amendments to section 18-3-203 still required a defendant

convicted under subsection (1)(c) to be sentenced “in accordance

with the provisions of section 18-1.3-406,” but no longer required a

mandatory prison sentence). Thus, the possible sentencing ranges

for Johnson’s second degree assault convictions were five to sixteen

years for the class 4 felonies and ten to thirty-two years for the

class 3 felonies.

¶ 37 Finally, a court is required to sentence a defendant convicted

of second degree assault under section 18-3-203(1)(f) to

incarceration in the custody of the DOC.

III. Standard of Review

¶ 38 It’s generally within a court’s discretion to grant or deny a

motion for a continuance, Miller v. People, 497 P.2d 992, 993 (Colo.

1972), and a party asking to continue a preliminary hearing beyond

thirty-five days must demonstrate good cause for doing so, People v.

18
Hogland, 543 P.2d 1298, 1300 (Colo. App. 1975). Accordingly, we

review a court’s ruling on a request to continue a preliminary

hearing for an abuse of discretion. People ex rel. Gallagher v. Cnty.

Ct., 759 P.2d 859, 860 (Colo. App. 1988). A trial court abuses its

discretion if its ruling is manifestly arbitrary, unreasonable, or

unfair or if it misapplies the law. People v. Payne, 2019 COA 167,

¶ 5.

¶ 39 Whether a defendant validly waived his right to counsel is a

mixed question of fact and law. Lavadie, ¶ 22. The validity of a

defendant’s waiver is evaluated by considering the totality of

circumstances at the time of the waiver. See Davis, ¶ 18. As a

reviewing court, “we ‘accept the trial court’s findings of historic fact

if those findings are supported by competent evidence, but we

assess the legal significance of the facts de novo.’” Lavadie, ¶ 22

(citation omitted); see also United States v. Erskine, 355 F.3d 1161,

1166-67 (9th Cir. 2004) (collecting cases and noting that de novo

review is appropriate because courts cannot “expect defendants to

recognize that they have not been correctly and fully advised, let

alone to point out the court’s errors”).

19
IV. Analysis

A. The District Court Didn’t Violate Johnson’s Right to
Self-Representation or Err by Continuing Johnson’s
Preliminary Hearing

¶ 40 Johnson contends that the district court violated his right to

self-representation by requiring his public defender to remain on

the case even though the county court had previously granted his

request to proceed without an attorney. We disagree.

¶ 41 Johnson asserted on multiple occasions that, at the initial

advisement hearing, the county court had authorized him to

proceed without counsel. But as Johnson acknowledges, the

county court didn’t give him an Arguello advisement; rather, the

county court advised Johnson under Crim. P. 5(a)(2). An Arguello

advisement and the defendant’s valid waiver of the right to counsel

are prerequisites to a court’s authorization of a defendant’s self-

representation. Arguello, 772 P.2d at 95. Thus, the district court

didn’t err when it declined to accept that the county court’s minute

order or Crim. P. 5(a)(2) advisement authorized Johnson to proceed

with self-representation.

20
¶ 42 Johnson also contends that there wasn’t good cause for

continuing the preliminary hearing in his assault case beyond

thirty-five days over his objection. We aren’t persuaded.

¶ 43 The county court set a preliminary hearing in the assault case

for February 9 but continued the hearing because a prosecution

witness wasn’t available on that date. Johnson failed to include a

transcript of the February 9 hearing in the record. Thus, we must

assume the prosecution demonstrated good cause to continue the

preliminary hearing. See People v. Schupper, 2014 COA 80M, ¶ 31

n.3 (noting that a reviewing court can assume the trial court’s

findings are record supported when an appellant fails to provide a

transcript).

¶ 44 We acknowledge that, in March 2021, Johnson filed a pro se

motion for dismissal of the assault case because a preliminary

hearing had not yet been held. But the proceedings were

suspended at the time of his motion due to a pending competency

evaluation. And because Johnson’s former counsel raised concerns

about Johnson’s competency at the same time he requested to

proceed without counsel, the district court needed to ensure that

Johnson was competent to effect a valid waiver of his right to

21
counsel before considering whether to allow him to represent

himself at the preliminary hearing. See People v. Woods, 931 P.2d

530, 534 (Colo. App. 1996) (noting a defendant must be competent

to effect a valid waiver of the right to counsel); see also Blehm v.

People, 817 P.2d 988, 994 (Colo. 1991) (“When a question is raised

concerning the defendant’s competency, . . . the judge must take

steps to resolve that question, and the record must contain clear

evidence in support of any determination of competency before any

further proceedings may validly be conducted.”).

¶ 45 The district court found Johnson competent to proceed on

April 22, 2021, and resumed the proceedings. The following day,

the district court granted his request for self-representation,

dismissed the public defender, and set a preliminary hearing on the

charges in the initial complaint for May 7 — within thirty-five days

of April 22.

¶ 46 Because the district court necessarily assessed Johnson’s

competency before authorizing him to represent himself at the

preliminary hearing and then set the preliminary hearing within

thirty-five days of determining he was competent to proceed, we see

no error.

22
B. Johnson’s Waiver of the Right to Counsel Was Valid

1. Johnson’s Waiver was Voluntary

¶ 47 The People assert we should decline to consider Johnson’s

claims regarding the “voluntary” element of a valid waiver of counsel

because they are undeveloped. But it’s the People’s burden to

establish a prima facie case that Johnson’s waiver was valid, which

includes demonstrating that his waiver was voluntary. See King v.

People, 728 P.2d 1264, 1268 (Colo. 1986) (“The state bears the

burden of demonstrating that a waiver of counsel was knowingly,

intelligently, and voluntarily made.”) Nevertheless, the record

demonstrates that Johnson’s waiver was voluntary because it

wasn’t achieved through threats or violence, promises, or undue

influence. See Lavadie, ¶ 27.

¶ 48 During the first Arguello advisement, Johnson confirmed that

he was voluntarily waiving his right to counsel. During the second

Arguello advisement, Johnson continued to assert his right to

self-representation and again said that his decision to waive

counsel was voluntary.

¶ 49 Johnson’s persistence in seeking to act as his own attorney

throughout the proceedings persuades us that his waiver was

23
indeed voluntary, and nothing in our review of the record indicates

otherwise. However, “even if the choice to proceed pro se is

‘voluntary,’ the waiver is not valid until the court ensures that the

waiver is made knowingly and intelligently.” Arguello, 772 P.2d at

94.

2. Johnson’s Waiver Was Knowing and Intelligent

¶ 50 Johnson asserts that the waiver of his right to counsel was

invalid because, during the first Arguello advisement, the district

court misadvised him of the possible penalties he faced. We

conclude Johnson’s waiver was knowing and intelligent under the

totality of the circumstances because the range of penalties

Johnson faced at the time of the first Arguello advisement was

commensurate with those he faced at the time of the bench trial.

¶ 51 The below chart summarizes the relevant charges Johnson

faced during the assault case. The initial complaint — the one for

which the district court gave Johnson the first Arguello

advisement — is represented in the first column. The sixth

amended complaint is represented in the second column and

contains the charges Johnson faced during the bench trial.

24
Initial Complaint Sixth Amended Complaint
Count one: second degree Count ten: second degree
assault under section assault under section
18-3-203(1)(c.5) and (2)(b.5), a 18-3-203(1)(c), a class 4
class 3 felony, against Officer felony, against Officer Urlik
Urlik

Count two: second degree Count eleven: second degree
assault under section assault under section
18-3-203(1)(c.5), a class 4 18-3-203(1)(f), a class 4
felony, against Officer Urlik felony, against Officer Trujillo

Count three: second degree Count twelve: second degree
assault under section assault under section
18-3-203(1)(c), a class 4 18-3-203(1)(f), a class 4
felony, against Officer Urlik felony, against Officer Hill

Count four: second degree Count thirteen: second degree
assault under section assault under section
18-3-203(1)(g), a class 4 18-3-203(1)(c), a class 4
felony, against Officer Urlik felony, against Officer Trujillo

Count fourteen: second
degree assault under section
18-3-203(1)(c), a class 4
felony, against Officer Hill

¶ 52 Johnson raises multiple issues involving the first Arguello

advisement that he says demonstrate his waiver of counsel wasn’t

knowing and intelligent.

25
¶ 53 For instance, Johnson takes issue with the district court’s use

of the words “possible” and “potential” in reference to the penalties

he faced for counts one and two because he faced mandatory prison

time if convicted under those counts. He also argues that the

district court misadvised him on counts two and four because those

counts were extraordinary risk crimes subject to a crime of violence

sentence enhancer, which exposed him to a nonmandatory prison

sentence of between five and sixteen years. He further argues that,

because count three was a per se crime of violence, but not an

extraordinary risk crime, that count was subject to a nonmandatory

prison sentence with a presumptive range of four to twelve years,

and not two to sixteen years as the district court advised him.

¶ 54 The People concede — and we agree — that the district court

misadvised Johnson regarding the range of penalties for counts

two, three, and four. The People agree with Johnson that the

penalty range for counts two and four was five to sixteen years.

However, the People assert that the presumptive range for count

three was two to six years.

¶ 55 Johnson argues that the People’s understanding of the

sentencing range for count three is incorrect because they rely on

26
the current version of section 18-3-203(2)(c)(II), C.R.S. 2025, to

calculate the presumptive sentencing range. He argues that the

presumptive range for count three was four to twelve years because

section 18-1.3-406(1)(a) required him to be sentenced to a term of

incarceration of at least the midpoint, but not more than twice the

maximum of the presumptive range, and he was sentenced under

the 2020 version of section 18-3-203(2)(c)(II), which had a

presumptive sentencing range of two to six years.

¶ 56 Johnson also relies on People v. Hodge, 205 P.3d 481, 486

(Colo. App. 2008), to support his argument that his waiver wasn’t

knowing and intelligent. In Hodge, the defendant argued he didn’t

knowingly and intelligently enter a guilty plea because the trial

court incorrectly advised him about the applicable sentencing

range, which was aggravated due to the defendant’s probationary

status. 205 P.3d at 484-85. The trial court advised Hodge that the

applicable sentencing range was four to thirty-two years when, in

fact, it was eight to twenty-four years. Id. at 485. A division of this

court concluded that Hodge was entitled to a hearing on his motion

to withdraw his plea because it was impossible for the court to have

sentenced him to less than eight years, so “[the] benefit of his

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bargain was illusory.” Id. at 485. Johnson thus argues that, under

Hodge, his waiver of counsel wasn’t knowing and intelligent

because the district court advised him of a lighter sentence than

that for which he was eligible.

¶ 57 In turn, the People argue that the district court’s misadvising

Johnson about the correct sentencing ranges for counts two, three,

and four couldn’t have meaningfully impacted whether he

knowingly waived his right to counsel because the district court

correctly advised Johnson that count one — the class 3 felony —

was subject to a sentencing range of ten to thirty-two years in the

custody of the DOC.

¶ 58 We reject Johnson’s arguments that his waiver wasn’t knowing

and intelligent for three reasons.

¶ 59 First, his argument that his waiver was invalidated by the

district court’s word choice of “potential” or “possible” to describe

the penalties he faced is unconvincing and conclusory. We fail to

see how the district court’s use of the words “possible” and

“potential” amounts to error — let alone reversible error — when the

district court was advising Johnson of the penalties he faced if he

was convicted. We therefore decline to address this argument

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further. See People v. Thompson, 2017 COA 56, ¶ 199 (noting that

we won’t review underdeveloped or conclusory contentions).

¶ 60 Second, we acknowledge that the district court initially

misadvised Johnson about the presumptive sentencing range for

counts one through four. However, the district court later correctly

advised Johnson that the presumptive sentencing range for count

one was ten to thirty-two years and, after doing so, reaffirmed with

Johnson that he still desired to proceed without an attorney.

Hodge is inapplicable because that case involved the defendant’s

waiver of rights before entering a guilty plea, not a waiver of the

right to counsel. And in any event, Johnson knew the correct

sentencing range for count one before the district court’s correction.

See Lavadie, ¶ 28 (a defendant must understand the range of

allowable punishments to effect a valid waiver of their right to

counsel). Thus, we aren’t persuaded by Johnson’s argument that

the initial inaccuracies in the district court’s first Arguello

advisement invalidated his waiver of the right to counsel.

¶ 61 Third, the district court later correctly informed Johnson that

he faced between ten and thirty-two years in the custody of the

DOC if convicted on count one. Recall that Johnson was convicted

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of three class 4 felonies: one count under section 18-3-203(1)(c) and

two counts under section 18-3-203(1)(f). Notably, the sentences for

those convictions were within the sentencing ranges the district

court specified during the first Arguello advisement. See People v.

Nagi, 2014 COA 12, ¶ 30 (concluding the court’s erroneous

advisement was harmless when the defendant’s sentence fell within

the incorrect sentencing range relied upon by the court and the

correct sentencing range), aff’d, 2017 CO 12. Yet Johnson

remained steadfast in his desire to represent himself. See People v.

Smith, 881 P.2d 385, 388 (Colo. App. 1994) (a defendant’s waiver of

the right to counsel is intelligent if the defendant makes his choice

“with eyes open to the consequences”).

¶ 62 Thus, under the totality of the circumstances, we conclude

that the district court’s advisement of penalties during the first

Arguello advisement was sufficient to ensure that Johnson’s waiver

of the right to counsel was made with “eyes open” to the

consequences. Faretta, 422 U.S. at 835 (citation omitted); Woods,

931 P.2d at 533; see People v. Johnson, 2015 COA 54, ¶ 18 (an

“intelligent” waiver refers to the defendant’s understanding of the

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consequences rather than the wisdom of the waiver (citation

omitted)).

3. The District Court Didn’t Have an Affirmative Duty to Readvise
Johnson

¶ 63 Although he concedes that a court generally doesn’t have an

affirmative duty to readvise a defendant about their waiver of

counsel if the prosecution amends a complaint, Johnson asserts

that, under the circumstances, the district court should have

readvised him. The People acknowledge that federal case law

supports readvising a defendant if there has been a substantial

change in circumstances but note there is no similar requirement

under Colorado law and, even if there were, the amended charges in

this case didn’t amount to a substantial change in circumstances.

We agree with the People.

¶ 64 Johnson has not directed us to, nor have we found, any

Colorado law that requires a court to readvise a defendant if

charges are reinstated or amended. And, in any event, he hasn’t

adequately explained how the reinstated and amended

complaints — which were based on the same factual allegations as

the initial complaint and subject to many of the same

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consequences — amounted to a significant change in circumstances

that required a new advisement when the first Arguello advisement

was sufficient to establish that Johnson’s waiver was voluntary,

knowing, and intelligent. See Nagi, ¶ 30; Johnson, ¶ 18.

¶ 65 Regardless of the fact that it wasn’t required, the record

reflects that the district court did further advise Johnson with

respect to whether he wanted to waive his right to counsel when it

gave him the second Arguello advisement. Although that

advisement preceded the reinstatement of the initial complaint by a

few weeks, the district court reconfirmed that Johnson wished to

represent himself. Moreover, Johnson never revoked his waiver of

the right to counsel, and the district court wasn’t obligated to

reaffirm his waiver. See United States v. Vann, 776 F.3d 746, 764

(10th Cir. 2015) (noting that when a court provides a defendant

with a sufficient advisement to ensure a voluntary, knowing, and

intelligent waiver of the right to counsel, the court isn’t required to

hold “a separate hearing of equal depth” each time the option to

proceed without counsel arises).

¶ 66 For the foregoing reasons, we conclude that Johnson’s waiver

of the right to counsel was valid.

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4. Johnson’s Other Contentions

¶ 67 Johnson also argues — without citation to authority — that he

“cannot reasonably be said to have understood the nature of the

charges and the statutory offenses included within them without

there ever having been a discussion of the elements of the charges.”

Because Johnson’s argument is conclusory, we decline to address it

further. See People v. Venzor, 121 P.3d 260, 264 (Colo. App. 2005).

Likewise, Johnson asserts that the district court failed to consider

statements he made during closing argument that evidenced his

alleged mental health issues. But as previously discussed, the

district court addressed Johnson’s competency twice during the

case, and both times the district court found him competent to

proceed. And to the extent that he may have been concerned or

confused about how the case was proceeding after he validly waived

his right to counsel, he assumed that risk by choosing to represent

himself despite the district court’s advisement that an attorney

could assist him in navigating the complexities of the legal system.

See Smith, 881 P.2d at 388 (“[T]he court must honor a defendant’s

request for self-representation as long as the court is satisfied that

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the defendant knows what he is doing and that his choice is made

with eyes open to the consequences.”).

¶ 68 Johnson raises several other arguments in support of his

claim that his waiver of counsel wasn’t valid. Because most of

these arguments are based on circumstances that occurred after

the first Arguello advisement, we reject them. See Davis, ¶ 18.

C. The District Court Erred by Sua Sponte Considering Lesser
Included Offenses

¶ 69 Lastly, Johnson asserts that the district court abused its

discretion when it sua sponte considered lesser included offenses.

In support, Johnson references People in Interest of J.A.M., 43 P.3d

673, 675 (Colo. App. 2001). In J.A.M., a division of this court

reversed a judgment because, during a bench trial, the trial court

sua sponte considered lesser included offenses after the parties’

closing arguments. The People, relying on People v. Santisteven,

693 P.2d 1008, 1014 (Colo. App. 1984), assert that, because the

district court served as the fact finder, it was allowed to consider

lesser included offenses.

¶ 70 We agree with Johnson that circumstances here are similar to

those in J.A.M. and that the district court reversibly erred.

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¶ 71 Here, as in J.A.M., neither party requested that the court

consider lesser included offenses; yet, the district court did so after

closing arguments. That the defendant in J.A.M. was represented

by counsel — not self-represented like Johnson — persuades us

further that the district court reversibly erred. As the division

explained in J.A.M., “[u]nder appropriate circumstances, either the

prosecution or the defense is entitled to have the finder of fact

consider a lesser included offense.” 43 P.3d at 675. But there is no

“Colorado decision, statute, or rule that allows a trial court in a

bench trial to consider a lesser included offense where neither party

makes such a request.” Id. In contrast, in Santisteven, the division

didn’t consider whether the trial court erred by sua sponte

instructing the jury on lesser included offenses; rather, the division

focused on — and rejected — the defendant’s contention that “the

evidence was insufficient to permit these instructions to be given.”

Santisteven, 693 P.2d at 1014.

¶ 72 Because we agree with the J.A.M. division’s reasoning, and we

reject the People’s assertion that Santisteven undercuts Johnson’s

argument, we vacate Johnson’s convictions on counts thirteen and

fourteen.

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V. Disposition

¶ 73 The judgment is affirmed in part and reversed in part, and the

case is remanded to the district court with directions to vacate

Johnson’s convictions on counts thirteen and fourteen and amend

the mittimus accordingly.

JUDGE LIPINSKY and JUDGE JOHNSON concur.

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