21CA1822 Peo v Pride 07-03-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA1822
Jefferson County District Court No. 19CR2677
Honorable Jason Carrithers, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Christopher Michael Pride,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART AND VACATED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division VII
Opinion by JUDGE TAUBMAN*
Tow and Kuhn, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 3, 2024
Philip J. Weiser, Attorney General, Jessica E. Ross, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee
Eric A. Samler, Alternate Defense Counsel, Hollis A. Whitson, Alternate
Defense Counsel, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2023.
1
¶ 1 Defendant, Christopher Michael Pride, appeals the judgment
of conviction entered after a jury found him guilty of first degree
murder (felony murder), aggravated robbery, and conspiracy to
commit aggravated robbery. We vacate certain convictions based
on merger and double jeopardy, as discussed below, and we remand
the case to the trial court to correct the mittimus and conduct a
new abbreviated proportionality review. In all other respects, we
affirm.
I. Background
¶ 2 In June 2019, R.V. was shot and killed during a robbery at his
father’s trailer park. A.S. was also robbed and shot. However, A.S.
survived and suffered brain damage.
¶ 3 A police investigation determined that multiple people were
involved in the robbery and shooting, including Pride. The
prosecution charged Pride with (1) first degree murder (after
deliberation); (2) first degree murder (felony murder); (3) attempted
first degree murder; (4) attempted first degree assault; (5) multiple
counts of aggravated robbery; (6) multiple counts of conspiracy to
commit aggravated robbery; (7) multiple crime of violence counts;
and (8) habitual criminal charges.
2
¶ 4 Pride told investigators, and maintained throughout the trial,
that he was not involved in the robbery or shooting, and that he
was on his way to Colorado Springs at the time of the incident.
¶ 5 At trial, the prosecution relied on cell phone location data to
disprove Pride’s theory of defense. The prosecution’s witness,
Detective Daniel Simpson, who was accepted as an expert in
historical cellular analysis, testified that based on the data he
received from Pride’s and other suspects’ cell phone carriers, Pride’s
phone was in the area at the time of the burglary and murder. The
trial court also admitted Detective Simpson’s expert report, which
contained maps showing which cell phone towers Pride’s and other
suspects’ phones pinged when the incident occurred.
¶ 6 The trial court sentenced Pride to life in the custody of the
Department of Corrections without the possibility of parole for his
felony murder conviction, to sixty-four years in prison for each of
his aggravated robbery convictions, and twenty-four years in prison
for each of his conspiracy convictions. All of the sentences run
concurrently with the life sentence, except for one of the sixty-four-
year sentences, which runs consecutively.
3
¶ 7 On appeal, Pride asserts that (1) the multiple convictions
entered against him violate his right to be free from double
jeopardy; (2) the trial court abused its discretion by admitting the
expert’s report on historical cellular analysis; (3) the trial court’s
complicity liability instruction did not reflect the applicable law; (4)
the trial court did not conduct a proper abbreviated proportionality
review of his sentences; and (5) the statute requiring a life sentence
as the penalty for felony murder is unconstitutional. We address
each contention in turn.
II. Multiplicity and Double Jeopardy
¶ 8 Pride contends, the People concede,
1
and we agree that the
multiple convictions entered against him for aggravated robbery
and conspiracy to commit aggravated robbery violate his right to be
free from double jeopardy.
A. Standard of Review and Applicable Law
¶ 9 We review de novo whether “multiplicitous convictions violate
a defendant’s right to be free from double jeopardy.” People v. Meils,
1
We are not bound by the People’s concessions on legal issues,
People v. Sabell, 2018 COA 85, ¶ 48 n.5, 452 P.3d 91, 100 n.5.
4
2021 CO 84, ¶ 19, 500 P.3d 1095, 1101. “Double jeopardy
sentencing errors require automatic reversal even when the error [is
not] obvious to the district court.” Whiteaker v. People, 2024 CO
25, ¶ 2, 547 P.3d 1122, 1124.
B. Multiplicity
¶ 10 “Multiplicity is the charging of the same offense in several
counts, culminating in multiple punishments.” Meils, ¶ 40, 471
P.3d at 1138 (quoting People v. McMinn, 2013 COA 94, ¶ 19, 412
P.3d 551, 557). Multiplicitous “convictions are prohibited because
they violate the constitutional prohibition against double jeopardy.”
amends. V, XIV; Colo. Const. art. II, § 18. Accordingly, a defendant
may not be convicted of more than one crime for the same actions
unless the defendant’s “conduct constitutes factually distinct
offenses.” People v. Barry, 2015 COA 4, ¶ 97, 349 P.3d 1139, 1157;
see People v. Gillis, 2020 COA 68, ¶ 29, 471 P.3d 1197, 1203.
1. Conspiracy Convictions
¶ 11 “[A] single conspiratorial agreement may not be divided into
multiple charges,” even if the objective of the single agreement is to
5
commit multiple crimes. People v. Davis, 2017 COA 40M, ¶ 17, 488
P.3d 186, 191; § 18-2-201(4), C.R.S. 2023.
¶ 12 Pride was convicted on four separate charges for conspiracy to
commit aggravated robbery, two for each victim. The charges were
predicated on different subsections of the aggravated robbery
statute; however, the charges were based on one criminal episode.
Accordingly, only one conviction for conspiracy to commit
aggravated robbery can be entered against Pride. Therefore, counts
15, 16, and 17 must merge into count 14.
2. Aggravated Robbery Convictions
¶ 13 The jury also convicted Pride on four counts of aggravated
robbery, two for each victim. Like the conspiracy counts, the
aggravated robbery counts were predicated on different subsections
of the aggravated robbery statute. § 18-4-302, C.R.S. 2023.
¶ 14 In People v. Serna-Lopez, a division of this court determined
that “the General Assembly has not defined separate offenses under
section 18-4-302 but, rather, alternative means of committing the
same offense.” 2023 COA 21, ¶ 19, 531 P.3d 410, 415.
Accordingly, only two convictions for aggravated robbery, one for
each victim, can be entered against Pride. See Barry, ¶ 96, 349
6
P.3d at 1157 (where a single statute defines alternative ways of
committing the same offense, only a single conviction for that
offense can enter).
¶ 15 Multiplicitous convictions must merge, and in so doing, we
must maximize the effect of the jury verdicts. Meils, ¶ 45, 471 P.3d
at 1139. Therefore, count 8 must merge into count 7 for the
aggravated robbery of R.V. Because the sentence of sixty-four years
for Pride’s conviction on count 10 runs consecutively to his life
sentence while the sentence for his conviction on count 11 runs
concurrently with his life sentence, count 11 must merge into count
10 for the aggravated robbery of A.S.
C. Merger
¶ 16 “Merger gives effect to double jeopardy and seeks to protect a
defendant from being punished twice for a single criminal act.”
People v. Kirby, 2024 COA 20, ¶ 29, ___ P.3d ___, ___. The doctrine
of merger precludes a conviction for a crime that is the lesser
included offense of another crime for which the defendant has been
convicted in the same prosecution. People v. Wood, 2019 CO 7,
7
¶ 17 Accordingly, if a defendant is found guilty of both a greater
offense and its lesser included offense, the conviction for the lesser
included offense must merge into the conviction for the greater
offense. Page v. People, 2017 CO 88, ¶ 9, 402 P.3d 468, 470.
¶ 18 Because Pride’s charge for felony murder “required proof of the
very same elements essential to the charge of [aggravated] robbery,”
the aggravated robbery was a lesser included offense of felony
Wood, ¶ 30, 433 P.3d at 593. Accordingly, the remaining conviction
for the aggravated robbery of R.V., count 7, must merge into the
conviction for felony murder, count 2.
¶ 19 Accordingly, we determine that the trial court erred by
entering multiple convictions for aggravated robbery and conspiracy
to commit aggravated robbery against Pride. Therefore, we remand
the case for the trial court to merge counts 7 and 8 into count 2;
merge count 11 into count 10; and merge counts 15, 16, and 17
into count 14.
III. Expert’s Report
¶ 20 Pride contends that the trial court abused its discretion by
admitting Detective Simpson’s expert report on historical cellular
8
analysis because it constituted inadmissible hearsay. We disagree
and also conclude that any error was harmless.
A. Standard of Review and Applicable Law
¶ 21 We review a trial court’s rulings on the admissibility of
evidence for an abuse of discretion. People v. Brown, 2022 COA 19,
¶ 57, 510 P.3d 579, 590. A court abuses its discretion when its
ruling is “manifestly arbitrary, unreasonable, or unfair.” Id.
we determine that the trial court abused its discretion, we only
reverse if we find that the error was not harmless — meaning it
substantially influenced the verdict or affected the fairness of the
trial. People v. Thames, 2019 COA 124, ¶ 59, 467 P.3d 1181, 1193.
¶ 22 Hearsay is “a statement other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.” CRE 801(c). Hearsay statements
are generally inadmissible unless an exception applies. CRE 802.
B. Additional Facts
¶ 23 At trial, the prosecution sought to introduce Detective
Simpson’s expert report on historical cell phone analysis.
9
¶ 24 The first portion of the report explained the technology and
methodology behind historical cellular analysis and the cell phone
information for various suspects that Detective Simpson received
from their respective cell phone carriers. The second portion of the
report contained maps plotting the historical cellular data from
those suspects.
¶ 25 During a bench conference concerning the admissibility of the
report, the trial court permitted the prosecution to divide the report
into two exhibits. The first portion of the report was to be used as a
demonstrative aid, and only the second portion would be admitted
into evidence and allowed to go to the jury.
C. Analysis
¶ 26 We conclude that the trial court did not abuse its discretion by
admitting the second portion of the report containing only the cell
phone tower maps because they were not inadmissible hearsay.
The maps were automatically generated based on the information
Detective Simpson provided to the software. Accordingly, the data
and maps are not statements within the meaning of CRE 801. See
People v. Woodyard, 2023 COA 78, ¶ 82, 540 P.3d 278, 296.
10
¶ 27 Pride also relies on CRE 703 — which provides that “[f]acts or
data that are otherwise inadmissible shall not be disclosed to the
jury by the proponent of the opinion or inference unless the court
determines that their probative value in assisting the jury to
evaluate the expert’s opinion substantially outweighs their
prejudicial effect” — to assert that the information should not have
been disclosed to the jury. However, Pride’s argument only focuses
on the first half of this rule and does not acknowledge that the trial
court determined that the second portion of the report was
admissible because “it will assist [the jury].”
¶ 28 Pride further asserts that the record indicates that the entirety
of Detective Simpson’s report was submitted to the jury rather than
only the portion containing the cellular tower maps. However, we
need not determine whether only a portion or the entirety of the
report was submitted to the jury because any error was harmless.
¶ 29 The information on the methodology and technology of
historical cellular analysis contained in the first portion of Detective
Simpson’s report was already properly admitted through the
detective’s testimony and was therefore cumulative. See People v.
Stone, 2021 COA 104, ¶ 32, 498 P.3d 666, 673 (“Because the
11
photographs were cumulative of Westbrook’s testimony, the trial
court’s error in admitting them could not have contributed to the
jury’s verdict and was therefore . . . harmless error.”) (cert. granted
see also Golob v. People, 180 P.3d 1006, 1010 (Colo. 2008) (CRE
703 permits “an expert to testify to facts and data that are
otherwise inadmissible in evidence so long as they formed the basis
of the expert’s opinion and are of the type reasonably relied upon by
experts in the field”).
¶ 30 Accordingly, the trial court did not abuse its discretion by
admitting the second portion of the report containing the cellular
tower maps, and any error in submitting the first portion of the
report to the jury was harmless.
IV. Complicity Jury Instruction
¶ 31 Pride also contends that the trial court failed to properly
instruct the jury on the applicable law. Specifically, he asserts that
the trial court plainly erred by using a jury instruction on
complicity liability that did not mirror the model jury instruction or
incorporate the changes to complicity liability outlined in People v.
Childress, 2015 CO 65M, ¶ 34, 363 P.3d 155, 165. We disagree.
12
A. Standard of Review and Applicable Law
¶ 32 The trial court has a duty to instruct the jury correctly on all
matters of law. People v. Knapp, 2020 COA 107, ¶ 20, 487 P.3d
1243, 1250.
¶ 33 We agree with the parties that this issue is not preserved for
our review because while defense counsel objected to the trial
court’s complicity jury instruction, she did not object on the ground
that the instruction did not reflect the current governing law.
Accordingly, we review for plain error. Garcia v. People, 2019 CO
64, ¶ 20, 445 P.3d 1065, 1068. An error is plain if it is both
obvious and substantial — meaning it “so undermine[d] the
fundamental fairness of the trial as to cast serious doubt on the
reliability of the judgment of conviction.” Gillis, ¶ 26, 471 P.3d at
1203 (citation omitted).
B. Analysis
¶ 34 The trial court gave the following jury instruction on
complicity liability:
Complicity is not a separate crime. Rather, it
is a legal theory by which one person may be
found guilty of a criminal offense that was
committed [in whole or in part] by another
person. To be guilty as a complicitor, the
13
prosecution must prove each of the following
circumstances beyond a reasonable doubt:
1. A crime must have been committed.
2. Another person must have committed all or
part of the crime.
3. The defendant must have had knowledge
that the other person intended to commit all or
part of the crime.
4. The defendant must have had the intent to
promote or facilitate the commission of the
crime.
5. The defendant must have aided, abetted,
advised, or encouraged the other person in
planning or committing the crime.
¶ 35 Under the complicity statute, “[a] person is legally accountable
as [the] principal for the behavior of another constituting a criminal
offense if, with the intent to promote or facilitate the commission of
the offense, he or she aids, abets, advises, or encourages the other
person in planning or committing the offense.” § 18-1-603, C.R.S.
2023. In Childress, the supreme court clarified that complicity
liability has a “dual mental state requirement,” meaning that the
complicitor must have
(1) the intent, in the commonly understood
sense of desiring or having a purpose or
design, to aid, abet, advise, or encourage the
principal in his criminal act or conduct, and
14
(2) an awareness of those circumstances
attending the act or conduct he seeks to
further that are necessary for commission of
the offense in question.
Childress, ¶ 29, 363 P.3d at 164.
¶ 36 While the trial court’s complicity instruction did not mirror the
updated pattern jury instruction on complicity liability or explicitly
mention the dual mental state requirement reflected in Childress,
we perceive no error.
¶ 37 First, a trial court is not required to use pattern jury
this court has held that a jury instruction nearly identical to the
one in this case sufficiently reflected the state of complicitor liability
after Childress, though it did not consider the new pattern jury
instruction. People v. Jackson, 2018 COA 79, ¶ 66, 474 P.3d 60,
¶ 38 Accordingly, we conclude that the trial court did not err by
using a complicity jury instruction that pre-dated Childress.
Regardless, even if the instruction was erroneous, any error was not
15
390 P.3d 832, 835 (“[A]n error will not ordinarily be deemed
‘obvious’ when either this court or a division of the court of appeals
has previously rejected an argument being advanced by a
subsequent party who is asserting plain error.”).
¶ 39 We also reject Pride’s contention that the trial court should
have provided a separate complicity instruction for each offense.
Pride asserts that not doing so was obvious error because a
comment to the COLJI states, “If the court decides to instruct the
jury on the theory of complicity liability with respect to multiple
crimes, it should provide a separate complicity liability instruction
for each crime.” COLJI-Crim. J:03 cmt. 9 (2023). However, while a
pattern jury instruction and its accompanying comments are
guidelines that carry weight, they are not controlling. People v.
Rester, 36 P.3d 98, 102 (Colo. App. 2001).
¶ 40 Moreover, we decline to address Pride’s contention that he was
entitled to his proffered “mere presence” instruction. Because we
conclude that the complicity instruction properly instructed the
jury on the applicable law, a “mere presence” instruction was not
required because it was encompassed by the instructions as a
whole. See People v. Simien, 671 P.2d 1021, 1024 (Colo. App. 1983)
16
(“[W]here proper instructions are given concerning the presumption
of innocence, the prosecution’s burden of proof, reasonable doubt,
the essential elements of the offenses, and the definition of the
requisite mens rea, the so called ‘mere presence’ instruction is
necessarily encompassed by the instructions as a whole, and need
not be given.”).
V. Abbreviated Proportionality Review
¶ 41 Pride contends that the trial court did not conduct a proper
abbreviated proportionality review to determine whether his
habitual offender sentences are disproportionate to the nature and
severity of his offenses in violation of article II, section 20 of the
Colorado Constitution
2
and the Eighth Amendment. We agree and
remand for the trial court to conduct an abbreviated proportionality
review in accordance with the principles set forth in Wells-Yates v.
People, 2019 CO 90M, 454 P.3d 191.
2
We do not separately address Pride’s challenge under the Colorado
Constitution because he does not make a distinct argument from
his federal constitutional challenge. See People v. Lewis, 2017 COA
147, ¶ 12 n.2, 433 P.3d 70, 74 n.2.
17
A. Additional Facts
¶ 42 The trial court determined that Pride was a habitual offender
based on (1) a conviction for aggravated motor vehicle theft; (2) a
conviction for criminal attempt to commit illegal discharge of a
firearm; (3) a federal conviction for being a felon in possession of a
firearm and aiding and abetting; and (4) a federal conviction for
being a felon in possession of a firearm.
¶ 43 Pursuant to the habitual offender statute, section 18-1.3-801,
C.R.S. 2023, the trial court sentenced Pride to life without the
possibility of parole for the felony murder conviction, sixty-four
years running consecutively to the life sentence for the aggravated
robbery conviction, and twenty-four years running concurrently to
the life sentence for the conspiracy conviction.
3
Pride’s defense
counsel then requested that the trial court conduct an abbreviated
proportionality review. In its review, which did not mirror the two-
step analysis set forth in Wells-Yates, the trial court concluded,
[C]onsidering what the Court knows about the
allegations in other cases, the use of weapons
in other cases, or the aggravated nature of
3
This statement reflects what Pride’s sentences will be after the
mittimus is corrected to merge and vacate certain convictions in
accordance with this opinion.
18
some of the other cases, the Court at this point
is comfortable with the sentence. I find the
sentence to be appropriate, supported by
statute, and supported by the facts of the case,
and I’m not going to conduct any additional
abbreviated review.
B. Standard of Review and Applicable Law
¶ 44 We review de novo whether a sentence is constitutionally
proportionate. See Wells-Yates, ¶ 35, 454 P.3d at 204.
¶ 45 The United States and Colorado Constitutions prohibit
“extreme sentences that are ‘grossly disproportionate’ to the crime.”
Id. at ¶¶ 5, 10, 454 P.3d at 196-97 (quoting Harmelin v. Michigan,
501 U.S. 957, 1001 (1991) (Kennedy, J., concurring in part and
concurring in the judgment)); see also U.S. Const. amend. VIII;
Colo. Const. art. II, § 20. In conducting an abbreviated
proportionality review, a trial court must engage in a two-step
analysis.
¶ 46 First, the court must consider the “triggering offense and the
predicate offenses together and determine whether, in combination,
they are so lacking in gravity or seriousness as to raise an inference
that the sentence imposed on that triggering offense is grossly
disproportionate.” Wells-Yates, ¶ 2, 454 P.3d at 195. “If there are
19
multiple triggering offenses, the reviewing court must look at the
sentence imposed for each such offense and engage in a
proportionality review of that sentence because each sentence
represents a separate punishment for a distinct and separate
crime.” Id. at ¶ 24, 454 P.3d at 201.
¶ 47 Second, the court must consider “the harshness of the
sentence imposed.” Id. at ¶ 23, 454 P.3d at 201. If the abbreviated
proportionality review does not give rise to an inference of gross
disproportionality, the court need not conduct an extended
proportionality review. See id. at ¶ 15, 454 P.3d at 198-99.
¶ 48 When multiple triggering offenses are involved, the court must
examine each sentence separately to determine “whether the
corresponding triggering offense and the predicate offenses,
considered together, are so lacking in gravity or seriousness as to
suggest that the sentence is grossly disproportionate.” Id. at ¶ 24,
454 P.3d at 202. A court will only conduct an extended
proportionality review of a habitual offender sentence “if the
abbreviated proportionality review raises an inference that the
defendant’s sentence was ‘grossly disproportionate’ to the gravity of
his offense.” People v. Tran, 2020 COA 99, ¶ 82, 469 P.3d 568, 579.
20
C. Analysis
¶ 49 Certain crimes are considered “inherently (or per se) grave or
serious for proportionality purposes.” Wells-Yates, ¶ 13, 454 P.3d
at 198. “[O]thers may be grave or serious depending on their
particular facts and circumstances.” People v. Loris, 2018 COA
101, ¶ 12, 434 P.3d 754, 757. If an offense is per se grave or
serious, the court need not further consider the facts and
circumstances surrounding the offense but may proceed directly to
the question of whether the sentence imposed was grossly
disproportionate to the crimes of conviction. Wells-Yates, ¶¶ 13,
75, 454 P.3d at 198, 211.
¶ 50 However, if a crime is not per se grave or serious, the court
“should consider ‘the harm caused or threatened to the victim or
society,’ as well as ‘the culpability of the offender.’” Id. at ¶ 12, 454
P.3d at 198 (quoting Solem v. Helm, 463 U.S. 277, 292 (1983)).
Relevant factors include the magnitude of the offense; “whether the
crime is a lesser-included offense or the greater-inclusive offense;
whether the crime involves a completed act or an attempt to commit
an act; and whether the defendant was a principal or an accessory
after the fact in the criminal episode.” Id. In considering the
21
defendant’s culpability, the court should also consider the
defendant’s motive and mental state. Id.
¶ 51 Pride concedes that his conviction for the triggering offense of
aggravated robbery is per se grave or serious. See id. at ¶ 65, 454
P.3d at 209. Felony murder is also a per se grave or serious crime.
People v. Sellers, 2022 COA 102, ¶ 65, 521 P.3d 1066, 1079 (cert.
granted May 15, 2023). As Pride asserts, none of his predicate
offenses — aggravated motor vehicle theft, attempted illegal
discharge of a weapon, being a felon in possession of a firearm, and
aiding and abetting — is per se grave or serious. Accordingly, the
trial court should have considered the factual basis for these
convictions to determine their magnitude. See People v. Wright,
not present any evidence pertaining to the factual circumstances
underlying the predicate offenses, the trial court could not have
meaningfully considered their gravity or seriousness.
¶ 52 Pride seems to overlook that even if the trial court had found
that his predicate offenses were not grave or serious, it would not
end the trial court’s inquiry into the proportionality of the sentence.
Id. at ¶ 65, 498 P.3d at 1161. Rather,
22
“even when the triggering offenses and/or the
predicate offenses supporting a habitual
criminal sentence include grave or serious
crimes” — either per se grave or serious crimes
or those crimes where the underlying conduct
is found to have been grave or serious — “it
would be improper for a court to skip the
second subpart of an abbreviated
proportionality review and neglect to consider
the harshness of the penalty or to conclude
that when the circumstances described are
present there can be no inference of gross
disproportionality.”
Id. at ¶ 86, 498 P.3d at 1164 (quoting Wells-Yates, ¶ 27, 454 P.3d at
202).
¶ 53 Therefore, because we are not in a position to analyze the facts
and circumstances surrounding each of Pride’s convictions for the
predicate offenses, we remand the case for the trial court to conduct
an abbreviated proportionality review of all Pride’s sentences,
including the life sentence, in accordance with the precepts of
23
Wells-Yates.
4
See id. at ¶¶ 86-87, 498 P.3d at 1164. Specifically,
the court should consider the per se grave or serious nature of
Pride’s triggering offenses together with the predicate offenses to
determine whether the sentences imposed are grossly
disproportionate. Wells-Yates, ¶¶ 13, 75, 454 P.3d at 198, 211.
VI. Constitutionality of the Felony Murder Statute
¶ 54 Last, Pride challenges the statute requiring a life sentence
without the possibility of parole for a felony murder conviction on
various constitutional grounds: (1) article II, section 20 and the
Eighth Amendment categorically bar a mandatory life sentence for
felony murder as cruel and unusual punishment; (2) a mandatory
life sentence for felony murder is a constitutionally disproportionate
penalty; and (3) the prospective language of the General Assembly’s
4
We also remand for the trial court to amend the mittimus to add
Pride’s convictions on habitual counts 27, 28, 29, and 30, which
were inadvertently not included. See Crim. P. 52(b) (we may notice
errors that are plain, even when the parties did not bring them to
our attention); Crim. P. 36 (“Clerical mistakes in judgments, orders,
or other parts of the record and errors in the record arising from
oversight or omission may be corrected by the court at any time and
after such notice, if any, as the court orders.”); People v. Wood,
2019 CO 7, ¶ 40, 433 P.3d 585, 595.
24
recently amended statute is unconstitutional.
5
For the reasons
explained below, we exercise our discretion and decline to address
these contentions.
¶ 55 We review de novo the constitutionality of a sentence. People
v. Hines, 2021 COA 45, ¶ 59, 491 P.3d 578, 589. To the extent that
our review requires consideration of constitutionality of a statute,
our review is also de novo. People v. Stone, 2020 COA 23, ¶ 23, 471
P.3d 1148, 1153.
¶ 56 However, we may exercise our discretion in addressing an
unpreserved challenge to the constitutionality of a statute, “but only
where doing so would clearly further judicial economy.” People v.
Houser, 2013 COA 11, ¶¶ 31, 35, 337 P.3d 1238, 1247-48.
Judicial economy can be examined from two
perspectives. The narrower view looks only
forward, from the case pending before the
appellate court, in deciding whether efficiency
can be achieved by that court deciding an
issue because it is likely to arise in a later
proceeding below. The broader view looks
systemically, from the start of the case, in also
5
We decline to address Pride’s contention that a mandatory life
sentence for felony murder violates his right to due process because
it is not developed. See People v. West, 2019 COA 131, ¶ 23, 461
P.3d 591, 598. To the extent that Pride’s due process argument is
couched as a proportionality claim, we decline to address it for the
reasons stated above.
25
considering the efficiency that could have been
achieved by raising the issue earlier.
Id. at ¶ 36, 337 P.3d at 1248.
¶ 57 Pride did not raise his constitutional arguments until this
direct appeal of his conviction. Accordingly, we decline to address
Pride’s constitutional challenges of two reasons: (1) the issues Pride
raises were largely addressed by a division of this court in Sellers,
which the Colorado Supreme Court is already reviewing; and
(2) Pride does not explain, nor do we discern, how addressing his
challenge would promote judicial economy. See People v. Duncan,
2023 COA 122, ¶ 25, 545 P.3d 963, 971; People v. Butler, 2017 COA
117, ¶ 36, 431 P.3d 643, 650.
VII. Disposition
¶ 58 Accordingly, we vacate the convictions that violate Pride’s right
to be free from double jeopardy and remand the case for the
correction of the mittimus to reflect the merger of counts 7 and 8
into count 2, merger of count 11 into count 10, and merger of
counts 15, 16, and 17 into count 14. On remand, the trial court
must also conduct a new abbreviated proportionality review of
Pride’s sentences. In all other respects, the judgment is affirmed.
26
JUDGE TOW and JUDGE KUHN concur.
