Peo v. Perez

23CA1831 Peo v Perez 05-21-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1831
Boulder County District Court No. 22CR119
Honorable Robert R. Gunning, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Eliseo Perez,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE J. JONES
Fox and Dunn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 21, 2026

Philip J. Weiser, Attorney General, Sonia Raichur Russo, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Madeline B. Dobkin, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Eliseo Perez, appeals the district court’s judgment

of conviction entered on a jury verdict finding him guilty of felony

driving while ability impaired (FDWAI). We affirm.

I. Background

¶2 One afternoon, Perez drove his car to a Walmart Auto Center

to have it serviced. Security camera footage showed Perez parking

his car in the Walmart parking lot and walking inside.

¶3 Inside the Auto Center, Perez checked in his car with an

associate. Perez asked for several different services, first requesting

one tire change, then two. He also wanted the service to be done

immediately. When the associate told Perez that he would have to

wait for his car to be serviced, Perez became frustrated and raised

his voice. Upon hearing the yelling, the Auto Center supervisor

approached Perez. According to the supervisor, Perez slurred his

words and smelled of alcohol. Perez seemed unable to understand

that there would be a wait for his car to be serviced or that the

technicians needed his keys to perform the requested services.

Perez became frustrated, grabbed his keys, and left the building.

¶4 Security camera footage showed that Perez left the Auto Center

and sat in his car in the Walmart parking lot for about twenty-five

1
minutes. When Perez returned to the Auto Center, the supervisor

noticed that he was “being very loud and belligerent, yelling,

shouting, [and] cussing.” His slurring had also become worse, to

the point where the supervisor couldn’t understand what Perez was

saying.

¶5 Perez eventually gave his keys to the supervisor so the

technicians could service his car. He sat down in a chair in the

Auto Center’s waiting area and began to doze off.

¶6 An associate went to Perez’s car to drive it into the garage to

be serviced. When he opened the car door, he found several open

bottles of alcohol in the car’s passenger seat. The associate alerted

the supervisor to the alcohol. The supervisor then alerted the

store’s asset manager. Per Walmart’s policy, the asset manager

called the police and reported a potentially intoxicated person in the

store.

¶7 Police officers arrived and found Perez sitting in the chair. The

officers observed that Perez’s eyes were bloodshot and glassy, his

speech was slurred, and he smelled strongly of alcohol. The officers

asked Perez if he had been drinking, and he responded, “Yes.” They

2
also asked Perez if he had driven himself to the Walmart, and he

again responded, “Yes.”

¶8 The officers arrested Perez. Because Perez had been convicted

of driving under the influence (DUI) or driving while ability impaired

(DWAI) on five prior occasions, the People charged him with felony

DUI (FDUI) under section 42-4-1301(1)(a), C.R.S. 2025. A jury

found Perez guilty of FDWAI. See § 42-4-1301(1)(b). The district

court sentenced him to three years in the custody of the

Department of Corrections.

II. Discussion

¶9 Perez contends that the district court erred by (1) refusing to

give the jury part of his theory of defense instruction; (2) denying

his attorney’s motion to bifurcate the trial so that the jury would

decide the existence of his prior convictions only if and after it first

found him guilty of DUI or DWAI; (3) denying his counsel’s objection

to the court’s reasonable doubt instruction; and (4) entering

judgment on the FDWAI verdict because (a) FDWAI isn’t a lesser

included offense of FDUI, and (b) the judgment violated his

constitutional right to equal protection. He also asserts cumulative

error.

3
A. Theory of Defense Instruction

¶ 10 Perez contends that the court abused its discretion by refusing

to give the jury part of his attorney’s tendered theory of defense

instruction. We conclude that, even if the court abused its

discretion by omitting the subject sentence, the error was harmless.

1. Additional Background

¶ 11 Before trial, defense counsel sent a tendered theory of defense

instruction to the court and the prosecution. It read as follows:

Mr. Perez asserts that he never drove or
operated his vehicle while under the influence
or impaired. Mr. Perez asserts that the only
alcoholic drink was after driving to the
Walmart. Mr. Perez asserts that he only
showed signs of impairment after he exited the
vehicle and was inside the Walmart.

(The tendered instruction isn’t in the record. Perez represents that

this is what the tendered instruction said, and the People don’t take

issue with that representation.)

¶ 12 The prosecutor objected to the second sentence of the

instruction, asserting that it argued facts not in evidence. Defense

counsel responded that “the defendant is entitled to an instruction

on the [d]efense theory of the case when there’s any evidence to

support it, no matter how improbable or unreasonable the theory

4
may be.” And defense counsel asserted that there was no evidence

that Perez drank before arriving at the Walmart.

¶ 13 The court agreed with the prosecutor and said that “there[

was] no affirmative evidence” or “direct evidence” that Perez drank

alcohol only after he arrived at the Walmart. The court noted that

defense counsel was “free to make argument regarding the second

sentence as part of the closing argument.” The court removed the

second sentence, and the instruction given to the jury read,

Mr. Perez asserts that he never drove or
operated his vehicle while under the influence
or impaired. Mr. Perez asserts that he only
showed signs of impairment after he exited his
vehicle and was inside the Walmart.

¶ 14 During closing argument, defense counsel discussed Perez’s

theory of defense at length, saying, among other things, “[T]he

evidence is showing you that what he drank was after he had driven

there while he was sitting in his car.”

2. Standard of Review and Applicable Law

¶ 15 “We review a trial court’s decision to modify a tendered theory

of defense instruction for an abuse of discretion.” People v.

Martinez, 2020 COA 141, ¶ 79. A court abuses its discretion if its

ruling is manifestly arbitrary, unreasonable, or unfair, or based on

5
an erroneous understanding or application of the law. People v.

Gallegos, 2023 COA 47, ¶ 15, aff’d, 2025 CO 41M; People v. Trujillo,

2018 COA 12, ¶ 11. But a court doesn’t err by rejecting a theory of

defense instruction if it is “argumentative or merely highlights

specific pieces of evidence.” People v. Omwanda, 2014 COA 128,

¶ 41.

¶ 16 “When a defendant objects to the trial court’s ruling on a jury

instruction, we review for nonconstitutional harmless error and will

thus affirm if ‘there is not a reasonable probability that the error

contributed to the defendant’s conviction.’” Trujillo, ¶ 12 (quoting

People v. Garcia, 28 P.3d 340, 344 (Colo. 2001)); see also People v.

Joosten, 2018 COA 115, ¶ 40 (“A court’s improper rejection of a

theory of the case instruction is harmless if it does not adversely

affect the defendant’s substantial rights.”).

¶ 17 “A defendant is entitled to a jury instruction encompassing his

theory of the case so long as evidence in the record supports the

instruction.” People v. Bruno, 2014 COA 158, ¶ 18. A theory of

defense instruction must be given if “the record contains any

evidence” supporting the defendant’s theory. People v. Nunez, 841

P.2d 261, 264 (Colo. 1992) (emphasis added); see also People v.

6
Green, 2012 COA 68M, ¶ 13 (“[A] defendant is not entitled to an

instruction on a theory of defense unless there is ‘a scintilla of

evidence’ (or ‘some credible evidence’) supporting it.” (quoting People

v. Saavedra-Rodriguez, 971 P.2d 223, 228 (Colo. 1998))). “We

review de novo whether the defendant . . . met this burden,

considering the evidence in the light most favorable to the

defendant.” Green, ¶ 14.

3. Analysis

¶ 18 Perez argues that the district court applied the wrong standard

in ruling on his proposed instruction by requiring “affirmative

evidence” or “direct evidence” and that there was some evidence to

support his theory that he only drank alcohol in the parking lot.

¶ 19 We agree with Perez that an affirmative defense may be

supported by circumstantial evidence. In this case, there was video

evidence of Perez parking in the Walmart parking lot “with no signs

of impairment,” and, given that Perez went back to his car for half

an hour, one could reasonably infer that he drank during that time.

¶ 20 But even if we assume that the district court abused its

discretion by omitting the second sentence of the proposed

instruction, any error was harmless, for three related reasons.

7
¶ 21 First, Perez’s counsel extensively promoted the theory in full

during closing argument. She argued, based on the evidence, that

Perez didn’t show any sign of intoxication when he arrived, parked,

and walked into the Walmart for the first time; Perez drank while

sitting in the parking lot when he returned to his car; and Perez

showed signs of intoxication only when he went back inside the

Walmart. For example, counsel said, “So that evidence of

impairment you’ve been shown, over an hour after Mr. Perez had

driven to the Walmart, the evidence is showing you that what he

drank was after he had driven there while he was sitting in his car.”

Indeed, Perez concedes in his opening brief that, “[d]espite the

objection, defense counsel’s closing argument touched on

substantial evidence supporting a drink-after-drive inference.”

Thus, the jury was presented with Perez’s theory that he showed

signs of intoxication only when he went back into the Walmart. See

People v. Dore, 997 P.2d 1214, 1222 (Colo. App. 1999) (“In

determining whether the jury has been adequately informed of the

defendant’s theory of defense, . . . [t]he court may also consider

whether defense counsel’s closing argument fairly represented [the]

defendant’s theory to the jury.” (citation omitted)); see also

8
Omwanda, ¶ 42 (apparently treating the district court’s refusal of a

portion of the defendant’s theory of the case instruction as

harmless because counsel conveyed that information to the jury

during closing argument).

¶ 22 Second, the evidence supporting Perez’s theory was weak,

while the prosecution’s evidence that Perez was impaired when he

first entered the Walmart was strong. The Walmart supervisor

testified that, during Perez’s first trip into the store, he was slurring

his speech and smelled of alcohol. Perez was unable to follow the

conversation with the supervisor and didn’t understand that he

needed to give her his keys for his car to be serviced. And Perez

was in the car for only about twenty-five minutes before reentering

Walmart and acting belligerently.

¶ 23 Third, even if Perez became impaired while he was in the car,

that wouldn’t be a defense to the charge. Perez seems to assume

that he must have actually operated the car while impaired to be

found guilty. That isn’t so. In this context, a person “drives” a

vehicle if he has “actual physical control” over the vehicle: The term

doesn’t require proof of actual physical movement of the vehicle or

that the vehicle traveled any distance. People v. Valdez, 2014 COA

9
125, ¶¶ 10-11 (quoting People v. Stewart, 55 P.3d 107, 115 (Colo.

2002)). The evidence overwhelmingly showed that Perez was in an

operable vehicle with the keys when he sat in it for about twenty-

five minutes. He concedes that he drank alcohol while he was in

the car and showed signs of impairment when he got out of the car

and went back into the Walmart. Thus, even if he became impaired

while in the car, he could be found to have “driven” the car while

impaired.1

¶ 24 Considering all these circumstances, we conclude that any

error by the district court in refusing to give the jury the second

sentence of Perez’s proposed instruction was harmless.

B. Motion to Bifurcate

¶ 25 Perez next contends that the district court erred by denying

his motion to bifurcate the determination of his prior convictions

from the trial on the underlying DUI charge in violation of his right

to due process as construed in Erlinger v. United States, 602 U.S.

821 (2024). We disagree.

1 Indeed, during deliberations the jury asked a question about what

evidence was needed to find Perez guilty of DUI if he drank in his
car “to a point of inebriation in the driver’s seat . . . with [his] keys.”

10
1. Additional Background

¶ 26 At a pretrial hearing, defense counsel moved to bifurcate the

trial so that the jurors wouldn’t hear about Perez’s prior convictions

until after they had found him guilty of DUI (or, presumably, DWAI).

The prosecution objected in writing, arguing, “[T]he prior acts are

an element of the charged offense. When proving a felony DUI, the

prior DUI-DWAI offenses are elements rather than a sentence

enhancement.” Defense counsel then responded with a written

motion, arguing that bifurcation was proper because there “is

inherent prejudice in having the prior convictions heard at the same

time as the substantive charge.” The district court denied the

motion. The court did the same after defense counsel reraised the

motion the morning of the first day of trial.

2. Standard of Review

¶ 27 We review a court’s ruling on a motion to bifurcate for an

abuse of discretion. See People v. Harris, 2016 COA 159, ¶ 74. A

court abuses its discretion when “its decision is manifestly

arbitrary, unreasonable, or unfair, or if its decision is based on an

erroneous understanding or application of the law.” Id.

11
¶ 28 But we review de novo whether a court must bifurcate the

elements of an offense. People v. Kembel, 2023 CO 5, ¶ 24.2

3. Analysis

¶ 29 A DUI or DWAI offense increases from a misdemeanor to a

felony if the offense “occurred after three or more prior [DUI or

DWAI] convictions.” § 42-4-1301(1)(b). The Colorado Supreme

Court has held that whether the defendant has three or more prior

convictions is a substantive element of the felony offense that the

prosecution must prove beyond a reasonable doubt. Linnebur v.

People, 2020 CO 79M, ¶ 8, abrogated on other grounds by, People v.

Crabtree, 2024 CO 40M.

¶ 30 And the Colorado Supreme Court has held that “a trial court

may not bifurcate the elements of the offense of felony DUI (or of

any offense) during a jury trial.” Kembel, ¶ 57. Because the

supreme court hasn’t overruled Kembel, we are bound by that

2 The People argue that Perez didn’t preserve his claim because he

never argued in the district court that People v. Kembel, 2023 CO 5,
was wrongly decided. However, defense counsel renewed the
motion to bifurcate on the first day of trial, and the court denied it
based on Kembel. Counsel argued that bifurcation was required for
the reasons Perez now argues on appeal; asserting that Kembel was
wrongly decided would have been futile.

12
decision. See People v. Novotny, 2014 CO 18, ¶ 26 (The supreme

court “alone can overrule [its] prior precedents concerning matters

of state law.”).

¶ 31 Perez argues, however, that the district court erred because

Erlinger effectively overruled Kembel. We disagree.

¶ 32 In Erlinger, the Court held that a defendant is entitled to have

a jury decide unanimously and beyond a reasonable doubt whether,

for purposes of the Armed Career Criminal Act, his past offenses

were committed on separate occasions. 602 U.S. at 834-35. The

Court didn’t hold that a trial must be bifurcated so that the prior

offenses are determined only after the jury determines guilt on the

underlying charge; it only suggested that would be good practice.

Id. at 847-48; see id. at 868 (Kavanaugh, J., dissenting) (“States

remain free not to bifurcate . . . .”). Therefore, Kembel remains good

law.

¶ 33 Because Kembel remains binding precedent, the district court

wasn’t at liberty to bifurcate the trial in the manner Perez

requested.

13
C. Reasonable Doubt Instruction

¶ 34 Perez contends that the district court erred by giving the jury a

reasonable doubt instruction that erroneously explained proof

beyond a reasonable doubt, thereby lowering the prosecution’s

burden of proof. We disagree.

1. Additional Background

¶ 35 Defense counsel objected to the proposed reasonable doubt

jury instruction, which replicated the instruction approved in 2022

by the Colorado Model Criminal Jury Instructions Committee.

Counsel argued that “[t]he wording of the new instruction suggests

to jurors that the defense has a burden to establish the possibility

of their clients’ innocence rather than requiring the government to

extinguish any and all possibility of innocence.” Counsel asked the

court to use the pre-2022 model instruction. The court declined,

saying it was “planning to read to the jurors the newly enacted jury

instruction as to reasonable doubt.” It did so.

2. Standard of Review

¶ 36 “We review de novo whether a jury instruction impermissibly

lowered the prosecution’s burden of proof.” People v. Schlehuber,

2025 COA 50, ¶ 15 (citing Tibbels v. People, 2022 CO 1, ¶ 22).

14
“Instructions that lower the prosecution’s burden of proof below the

reasonable doubt standard constitute structural error and require

automatic reversal.” Tibbels, ¶ 22.

3. Analysis

¶ 37 Perez argues that the 2022 reasonable doubt instruction is

constitutionally defective in three ways. First, by failing to include

the term “lack of evidence,” the instruction could have led the jurors

to believe that they couldn’t consider the lack of evidence

supporting the charge, thereby lowering the prosecution’s burden of

proof. Second, by failing to include the phrase “hesitate to act,” the

jury was “left without anything concrete or relatable to understand”

reasonable doubt. Third, the “real possibility” language in the

instruction was too confusing for jurors and shifted the burden to

the defense.

¶ 38 In Schlehuber, 2025 COA 50, a division of this court

thoroughly considered materially identical arguments and held that

the modified 2022 version of the reasonable doubt instruction

doesn’t lower the prosecution’s burden of proof or undermine the

presumption of innocence. Accord People v. Berumen, 2025 COA

93, ¶ 33; see also People v. Melara, 2025 COA 48, ¶¶ 24-32 (holding

15
that a district court doesn’t commit structural error by failing to

include “lack of evidence” language in the instruction).

¶ 39 Though Perez urges us to hold to the contrary, we conclude

that Schlehuber is well reasoned and therefore follow it.

D. Equal Protection

¶ 40 Perez contends that the court violated his right to equal

protection of the laws by allowing the jury to consider the offense of

FDWAI if it didn’t convict him of FDUI. He says this is so because

the FDUI and FDWAI statutes impose identical penalties for

different levels of culpability. Again, we disagree.

1. Additional Background

¶ 41 During the instruction conference, the prosecutor asked that

FDWAI be included on the verdict form as a lesser included offense

of FDUI. Defense counsel objected, arguing that, in Perez’s

situation, FDWAI wasn’t a lesser offense “as far as sentencing goes”

and that including it would, in effect, lessen the prosecution’s

burden of proof. The court determined that evidence was presented

that could cause the jury to find Perez not guilty of FDUI but guilty

of FDWAI — specifically, the “ramping up” of Perez’s behavior

during his second entry into the Walmart. The court included

16
FDWAI as a lesser included offense in the instructions and on the

verdict form. The jury found Perez guilty of that offense.

2. Standard of Review and Applicable Law

¶ 42 “We review the constitutionality of statutes de novo.” People v.

Lente, 2017 CO 74, ¶ 10. “A statute is presumed to be

constitutional; the challenging party bears the burden of proving its

unconstitutionality beyond a reasonable doubt.” Dean v. People,

2016 CO 14, ¶ 8.3

¶ 43 A defendant has a constitutional right to “notice of the charges

which have been made against him.” People v. Cooke, 525 P.2d

426, 428 (Colo. 1974). To protect this right, a court may only

instruct the jury on a lesser included offense, over the defendant’s

objection, “where the lesser offense is ‘easily ascertainable from the

3 The People argue that Perez didn’t preserve this argument for

appeal because his argument “that FDWAI isn’t a lesser offense of
FDUI is unrelated to contending that the FDUI/FDWAI statutory
scheme violated [Perez’s] equal protection right.” But “[w]e do not
require that parties use ‘talismanic language’ to preserve an
argument for appeal.” Rael v. People, 2017 CO 67, ¶ 17 (quoting
People v. Melendez, 102 P.3d 315, 322 (Colo. 2004)). “The objection
need only draw the trial court’s attention to the asserted error . . . .”
Id. We will assume that, by objecting that FDWAI wouldn’t be a
lesser included offense for Perez, defense counsel properly brought
both the lesser included offense and the statutory scheme issues to
the district court’s attention.

17
charging instrument’ and is ‘not so remote in degree from the

offense charged that the prosecution’s request appears to be an

attempt to salvage a conviction from a case which has proven to be

weak . . . .’” People v. Jimenez, 217 P.3d 841, 870 (Colo. App. 2008)

(quoting Cooke, 525 P.2d at 428-29).

¶ 44 A “greater offense includes a lesser offense when the

establishment of the essential elements of the greater necessarily

establishes all of the elements required to prove the lesser.” Daniels

v. People, 411 P.2d 316, 317 (Colo. 1966) (emphasis omitted). A

lesser included offense can have the same criminal sanctions as the

greater offense. See People v. Aragon, 653 P.2d 715, 718 (Colo.

1982) (“[W]e have repeatedly held that an equal protection problem

arises under the Colorado Constitution only when different statutes

proscribe the same criminal conduct with disparate criminal

sanctions.” (emphasis added)); People v. Nguyen, 900 P.2d 37, 41

(Colo. 1995) (same).

¶ 45 As relevant to this case, subsections (1)(a) and (1)(b) of section

42-4-1301 set forth the elements of FDUI and FDWAI, respectively.

They provide in relevant part as follows:

18
(1)(a) . . . Driving under the influence is a
misdemeanor, but it is a class 4 felony if the
violation occurred after three or more prior
convictions, arising out of separate and
distinct criminal episodes, for DUI, DUI per se,
or DWAI . . . or any combination thereof.

(b) . . . Driving while ability impaired is a
misdemeanor, but it is a class 4 felony if the
violation occurred after three or more prior
convictions, arising out of separate and
distinct criminal episodes, for DUI, DUI per se,
or DWAI . . . or any combination thereof.

3. Analysis

¶ 46 Perez argues that FDWAI isn’t a permissible lesser included

offense of FDUI. But he provides no support for this argument.

And other divisions of this court have concluded that a greater

offense includes a lesser offense when the lesser offense differs only

by degree as to one element. See, e.g., Jimenez, 217 P.3d at 870.

FDUI and FDWAI share the same elements except that FDUI

requires proof of a higher level of impairment: FDUI requires proof

that the defendant was “substantially incapable” of operating a

vehicle, while FDWAI requires proof that the defendant was

impaired to “the slightest degree.” § 42-4-1301(1)(f)-(g). Therefore,

FDWAI is a lesser included offense of FDUI. And because FDWAI is

a lesser included offense, the prosecution could ask the jury to

19
consider it over defense counsel’s objection. See People v. Skinner,

825 P.2d 1045, 1047 (Colo. App. 1991) (“[B]oth the prosecutor and

the defendant may ask the court to instruct the jury on lesser

included offenses . . . .”).4

¶ 47 Perez also argues that the statutory scheme for FDUI and

FDWAI violates equal protection because the punishment for

FDWAI is just as harsh as the punishment for FDUI. But the

Colorado Supreme Court has held that “where the legislature

provides the same penalty for different crimes, or the same penalty

for the same crime with alternate culpability requirements there is

no equal protection violation.” Nguyen, 900 P.2d at 41. A violation

only occurs when less culpable conduct is punished more harshly.

Id.

¶ 48 FDUI and FDWAI are both class 4 felonies and carry the same

penalty. See § 42-4-1301(1)(a)-(b). Thus, there is no equal

protection violation.

4 Perez seems to assume that whether an offense is a lesser

included offense of another depends on the attached penalty.
However, whether one offense is a lesser included offense of another
offense is based on the offenses’ elements, not their penalties. See
People v. Jimenez, 217 P.3d 841, 870 (Colo. App. 2008).

20
¶ 49 Perez argues that Nguyen doesn’t apply to this case for three

reasons: (1) Nguyen only discussed the element of attempt to

commit bodily injury for assault, and FDUI needs an individual

analysis; (2) Nguyen doesn’t explain how identical punishment for

nonidentical behavior comports with equal protection; and

(3) Nguyen’s rationale doesn’t account for whether imposing

identical punishments for FDUI and FDWAI disrespects the jury’s

determination that Perez was less culpable. But, as the People

correctly point out, these arguments don’t justify ignoring Nguyen’s

binding holding that a defendant’s right to equal protection isn’t

violated when two different crimes have the same penalty.

¶ 50 We also observe that Perez’s position, if accepted, could lead to

an absurd result. Both DUI and DWAI become felonies when a

defendant has three or more previous convictions of any

combination of DUI, DWAI, or DUI per se. § 42-4-1301(1)(a)-(b).

Were Perez’s position to prevail, if a defendant was previously

convicted of three DUIs and his fourth offense was a DWAI, he

would receive a lesser penalty than someone who had three prior

DWAIs and whose fourth offense was a DUI. That doesn’t make any

sense.

21
E. Cumulative Error

¶ 51 We reject Perez’s cumulative error argument. Because we

have assumed only one error, the cumulative error doctrine doesn’t

apply. See Howard-Walker v. People, 2019 CO 69, ¶ 24; People v.

Jones, 2025 COA 43, ¶ 56 (cert. granted on other grounds Jan. 20,

2026); People v. Thames, 2019 COA 124, ¶ 69.

III. Disposition

¶ 52 We affirm the judgment.

JUDGE FOX and JUDGE DUNN concur.

22