18CA1691 Peo v Gonzalez 01-20-2022
COLORADO COURT OF APPEALS
Court of Appeals No. 18CA1691
Eagle County District Court No. 17CR192
Honorable Paul R. Dunkelman, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Pedro Gonzalez,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II
Opinion by JUDGE PAWAR
Furman and Kuhn, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 20, 2022
Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Nathaniel E. Deakins, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
1
¶ 1 Defendant, Pedro Gonzalez, appeals the judgment of
conviction and sentence entered after a jury found him guilty of
attempted first degree murder (after deliberation) and first degree
assault. We affirm.
I. Background
¶ 2 Gonzalez was the last customer in the bar where the victim
worked as a bartender. After serving Gonzalez a drink at closing
time, the victim walked to the kitchen to sweep the floor. Gonzalez
followed her into the kitchen and attacked her, repeatedly hitting
her with a beer bottle and his fists before kicking and choking her.
The victim was eventually able to get up and run away.
¶ 3 The prosecution charged Gonzalez with attempted first degree
murder (after deliberation) and first degree assault. At trial, the
prosecution introduced a surveillance video of the assault.
Gonzalez testified that he assaulted the victim in the heat of
passion after the victim called him a racial slur. The victim testified
and denied calling him a slur. The jury convicted Gonzalez as
charged.
¶ 4 On appeal, Gonzalez argues his convictions should be reversed
because (1) the prosecution introduced insufficient evidence to
2
demonstrate that he acted after deliberation and (2) the prosecutor
committed misconduct when she misstated the law during closing
argument. He further asserts the trial court denied his statutory
right to present mitigating information at sentencing. We examine
each argument in turn.
II. Sufficiency of the Evidence
¶ 5 Gonzalez asserts the evidence was insufficient to prove that he
acted with the requisite mens rea to support his conviction for
attempted first degree murder after deliberation. Viewing the
evidence in the light most favorable to the prosecution, we disagree.
A. Applicable Law
¶ 6 We review de novo whether the evidence was sufficient to
support a conviction. See People v. Donald, 2020 CO 24, ¶ 18. In
doing so, we view the evidence as a whole and in the light most
favorable to the prosecution, giving the prosecution the benefit of all
reasonable inferences that might fairly be drawn from the evidence.
Id. at ¶¶ 18-19. “[I]f there is evidence upon which one may
reasonably infer an element of the crime, the evidence is sufficient
to sustain that element.” People v. Kessler, 2018 COA 60, ¶ 12
(quoting People v. Chase, 2013 COA 27, ¶ 50).
3
¶ 7 A person commits attempted first degree murder after
deliberation under sections 18-2-101(1) and 18-3-102(1), C.R.S.
2021, if “[a]fter deliberation and with the intent to cause the death
of a person other than himself,” he engages in conduct constituting
a substantial step toward causing the death of that person. As
used in the first degree murder statute, “[t]he term ‘after
deliberation’ means not only intentionally but also that the decision
to commit the act has been made after the exercise of reflection and
judgment concerning the act.” § 18-3-101(3), C.R.S. 2021. Thus,
“[a]n act committed after deliberation is never one which has been
committed in a hasty or impulsive manner.” Id.
¶ 8 The state of mind element of an offense “is normally not
subject to direct proof and must be inferred from [the defendant’s]
actions and the circumstances surrounding the occurrence.”
Kessler, ¶ 12.
¶ 9 The jury’s verdicts must ultimately be upheld if there is
sufficient evidence to support them. People v. Dunaway, 88 P.3d
619, 625 (Colo. 2004).
B. Discussion
¶ 10 The jury heard the following evidence at trial:
4
• The victim testified that Gonzalez hit her multiple times
with a beer bottle and his fists before attempting to choke
her on the floor.
• Gonzalez testified that he heard the victim call him a
racial slur before getting “real mad” and “going after her.”
He further testified that he wanted to hurt the victim
after he heard that comment.
• Video evidence showed Gonzalez stand at the bar for
several minutes after drinking his last beer before
following the victim into the kitchen and commencing the
attack.
• The surveillance video also showed Gonzalez stop to
remove his glasses and place them in the sink before
resuming his assault on the victim.
• Both the victim and Gonzalez testified that Gonzalez
followed the victim into the street when she ran away.
¶ 11 Viewing this evidence in the light most favorable to the
prosecution, we conclude that the jury could reasonably infer “from
[Gonzalez’s] actions and the circumstances surrounding the
occurrence” that he attempted to cause the victim’s death after
5
deliberation and with intent. Kessler, ¶ 12; § 18-2-101(1); § 18-3-
102(1). Gonzalez’s own testimony acknowledged that he acted out
of a desire to hurt the victim. See § 18-1-501(5), C.R.S. 2021 (“A
person acts . . . ‘with intent’ when his conscious objective is to
cause the specific result proscribed by the statute defining the
offense.”). And the evidence showed he did so by beating her with a
beer bottle, punching her with his fists, choking her with his hands,
and kicking her with his feet to inflict multiple injuries on the
victim’s face, head, and body, including visible bruising on her
neck. See People v. Dist. Ct., 779 P.2d 385, 388 (Colo. 1989); see
also People v. Saleh, 45 P.3d 1272, 1275 (Colo. 2002) (“Any object
can be a deadly weapon if it is used in a manner capable of
producing death or serious bodily injury.”); People v. Bartowsheski,
661 P.2d 235, 242 (Colo. 1983) (“[T]he nature and number of these
wounds were such as to permit the inference that the attack on the
victim continued even after she had been rendered helpless.”).
¶ 12 Evidence that Gonzalez stopped to remove his glasses and
place them in the sink before resuming the attack and later followed
the victim into the street when she was able to escape the attack
further support an inference of deliberation. See People v. McBride,
6
228 P.3d 216, 226 (Colo. App. 2009) (finding evidence of
deliberation where the defendant had been angry at the victim and
“had enough time . . . to reflect on what he was about to do”);
People v. Mackey, 185 Colo. 24, 32, 521 P.2d 910, 915 (1974)
(finding sufficient evidence to support a first degree murder
conviction where “the victim fell to the floor and tried to crawl to
safety, but several more shots were fired at him” and “[t]he
defendant followed the unarmed victim into another room” before
shooting at him again).
¶ 13 We are not persuaded by Gonzalez’s arguments that the
prosecution failed to prove deliberation because there was no pre-
existing hostility between Gonzalez and the victim, the victim’s
injuries were not deadly, and Gonzalez never boasted of the attack.
While circumstantial evidence of deliberation “may include” these
factors, they are not required in every case. Dist. Ct., 779 P.2d at
388 (relying on, but not requiring, use of a deadly weapon as
indirect evidence of deliberation and intent).
¶ 14 Likewise, although Gonzalez emphasizes the evidence he
asserts demonstrated that he acted in the heat of the moment, the
jury was entitled to weigh the evidence and come to its own
7
conclusion on this issue. For example, Gonzalez points to the
victim calling him a racial slur making him so angry “he couldn’t
control his behavior” as evidence that he acted in haste and without
deliberation. But the victim denied calling Gonzalez a racial slur,
and “it is for the fact finder to determine the difficult questions of
witness credibility and the weight to be given to conflicting items of
evidence.” Kessler, ¶ 12.
¶ 15 Because reasonable minds could differ, we conclude the
evidence of deliberation was sufficient to support Gonzalez’s
conviction for attempted first degree murder after deliberation. Id.
III. Prosecutorial Misconduct
¶ 16 Gonzalez also argues the prosecutor committed plain error by
misstating the law during closing argument. Although we agree
that the prosecutor incorrectly stated the “after deliberation”
element to the jury, we conclude the error is not reversible.
A. Additional Facts
¶ 17 During closing argument, the prosecutor argued:
Now, after deliberation. This sounds like it’s
going to take a lot of time and you have to
think about it and ponder it and maybe write
down a pro and a con list and meditate on it
and bounce it off other people. No, you don’t.
8
That’s not what the law says. Premeditation
requires time for one thought to follow
another. That’s it. That can happen in a
fraction of a second.
The case law also says that no particular time
needs pass in order to establish deliberation
and premedi[t]ation. The important thing is
that there must be at least enough time to
permit one thought to follow another.
¶ 18 Referencing Gonzalez’s theory that he heard the victim call
him a slur and attacked her out of anger, the prosecutor then
argued Gonzalez “took the beer and he stepped and he stepped and
he stepped and he followed her. That is plenty of time for
deliberation and premeditation.”
¶ 19 Gonzalez did not object.
B. Applicable Law
¶ 20 “[A] prosecutor, while free to strike hard blows, is not at liberty
to strike foul ones.” Domingo-Gomez v. People, 125 P.3d 1043, 1048
(Colo. 2005) (citation omitted). The prosecutor may use every
legitimate means to bring about a just conviction but must avoid
using improper methods designed to obtain an unjust result,
including misstating or misinterpreting the law. Id.; People v.
Grant, 174 P.3d 798, 810 (Colo. App. 2007).
9
¶ 21 In reviewing prosecutorial misconduct claims, we engage in a
two-step analysis, determining, first, whether the prosecutor’s
conduct was improper based on the totality of the circumstances
and, second, whether such actions warrant reversal. Wend v.
People, 235 P.3d 1089, 1096 (Colo. 2010). We evaluate claims of
impropriety “in the context of the argument as a whole and in light
of the evidence before the jury.” People v. Samson, 2012 COA 167,
¶ 30; see also People v. Hogan, 114 P.3d 42, 55 (Colo. App. 2004)
(“In determining whether prosecutorial misconduct mandates a new
trial, an appellate court must evaluate the severity and frequency of
misconduct, . . . and the likelihood that the misconduct constituted
a material factor leading to the defendant’s conviction.”).
¶ 22 When a defendant does not object contemporaneously, we
App. 2010). “Plain error is error that is ‘obvious and substantial.’”
People v. Pollard, 2013 COA 31M, ¶ 24 (quoting Hagos v. People,
2012 CO 63, ¶ 14). In other words, to qualify as plain error, an
error must both (1) be “so clear-cut, so obvious, that a trial judge
should be able to avoid it without benefit of objection”; and (2) so
undermine the fundamental fairness of the trial itself as to cast
10
serious doubt on the reliability of the judgment of conviction. Id. at
¶¶ 39, 43.
C. Discussion
¶ 23 The prosecution concedes, and we agree, that the prosecutor
misstated the law governing deliberation. See Key v. People, 715
P.2d 319, 322-23 (Colo. 1986) (holding a court-issued jury
instruction “that deliberation requires only an ‘interval sufficient for
one thought to follow another’” was constitutional error). As
Gonzalez correctly points out, multiple divisions of this court have
disapproved a prosecutor’s definition of “after deliberation” as
requiring only the amount of time for “one thought to follow
another.” See People v. Cevallos-Acosta, 140 P.3d 116, 123 (Colo.
App. 2005); Grant, 174 P.3d at 810 (“We agree with defendant that
the prosecution’s comments referenced a legal standard that has
not been in effect since 1973.”).
¶ 24 Likewise, the prosecutor’s statement that premeditation and
deliberation can happen in “a fraction of a second” was improper.
See McBride, 228 P.3d at 225 (noting that a prosecutor’s comment
that deliberation could happen in as “‘fast’ as ‘[a] second’”
contradicted Colorado law requiring that some appreciable length of
11
time must have elapsed to allow deliberation). Because the
prosecutor’s comments contravened well-settled legal principles and
Colorado case law, we conclude these errors were obvious. Pollard,
¶ 40.
¶ 25 Even obvious error is not reversible, however, in the absence
of a substantial impact on the fairness of a defendant’s trial.
Hagos, ¶ 18 (“We have recognized plain error as those errors that
‘so undermined the fundamental fairness of the trial itself as to cast
serious doubt on the reliability of the judgment of conviction.’”
(quoting Wilson v. People, 743 P.2d 415, 420 (Colo. 1987))). Here,
we cannot conclude the prosecutor’s misstatement of the law
constituted a material factor leading to Gonzalez’s conviction.
¶ 26 As an initial matter, we disagree with Gonzalez that the
prosecutor’s misstatement had the effect of lowering the burden of
proof. The jury was properly instructed on the correct definition of
“after deliberation,”
1
and we presume the jury followed this
1
Consistent with section 18-3-101(3), C.R.S. 2021, the jury was
instructed: “The term ‘after deliberation’ means not only
intentionally, but also that the decision to commit the act has been
made after the exercise of reflection and judgment concerning the
act. An act committed after deliberation is never one which has
been committed in a hasty or impulsive manner.”
12
instruction. Cevallos-Acosta, 140 P.3d at 123. Defense counsel
also highlighted the correct definition in closing argument. And
though the prosecutor improperly referenced “the case law”
governing deliberation, she began her closing argument by
emphasizing that “the jury instructions . . . are the laws that you
have to apply to the evidence that you have seen and heard here.”
Viewed in this context, we conclude the prosecutor’s misstatement
of the law “did not so distort the definition of ‘after deliberation’ . . .
that the prosecution was relieved of its burden of proving the
mental culpability requirement of [attempted] first-degree murder
beyond a reasonable doubt.” Martinez v. People, 2015 CO 16, ¶ 19
(quoting Key, 715 P.2d at 323).
¶ 27 Moreover, the prosecutor’s improper statement of law was
isolated and occurred in the context of arguing that the evidence
showed Gonzalez acted after sufficient time for reflection and
judgment. Specifically, the prosecutor argued that under
Gonzalez’s own theory, the video evidence showed Gonzalez waited
for six minutes after being called a slur before he attacked the
13
victim.
2
See Grant, 174 P.3d at 811 (concluding that “only one brief
reference in argument to the improper definition of ‘after
deliberation’” was not plain error); Cevallos-Acosta, 140 P.3d at 123
(finding no plain error where “[a]lthough the prosecutor . . . made
one brief comment improperly defining this element during
summation, she did not focus on it”). Thus, despite the
misstatement, the prosecutor properly focused the jury’s attention
on evidence that Gonzalez deliberated for an appreciable length of
672 (Colo. App. 2001) (finding no plain error where an improper
statement of the law occurred only once, the jury was properly
instructed on the law, and “the prosecutor argued in closing that
defendant had to have taken time to make a decision”).
Accordingly, reversal is not warranted. Hagos, ¶ 18.
2
Specifically, the prosecutor argued,
He claims he heard this slur. He got angry
. . . . And then what did he do? . . . In that
video you will see him standing at the bar
while she’s going from the bar into the kitchen
and back and forth. And he’s standing there
drinking that beer. And it’s from 1:12 am until
the attack, six minutes.
14
IV. Right to Present Mitigating Sentencing Information
¶ 28 Finally, Gonzalez argues the trial court denied his right to
present information in mitigation of punishment when it refused to
allow a juror to testify on his behalf at sentencing. We discern no
abuse of discretion.
A. Additional Facts
¶ 29 At sentencing, defense counsel indicated that a member of the
jury that deliberated at Gonzalez’s trial desired to make “a brief
statement . . . asking the [c]ourt to essentially acknowledge that
[Gonzalez is] a human being and not give him the maximum.” The
trial court stated it was concerned because the juror had been
instructed not to think about sentencing during deliberations, and
it did not want to set a precedent for future jurors to be “thinking
about what the sentence is going to be.” It further noted its
concern that the juror would “get[] on the podium [and] start[]
talking about deliberations,” bringing in information that is
irrelevant to sentencing. In light of these considerations, the court
refused to allow defense counsel to call the juror as a witness but
allowed the juror’s written statement to be included as part of the
sentencing record.
15
B. Applicable Law
¶ 30 After receiving a presentence report prepared by a probation
officer, the sentencing court must grant the defendant “an
opportunity to make a statement in his or her own behalf and to
present any information in mitigation of punishment.” § 16-11-
102(5), C.R.S. 2021; Crim. P. 32(b).
¶ 31 The court’s decision to exclude evidence in a sentencing
hearing will not be reversed absent an abuse of discretion. People
v. Borrego, 774 P.2d 854, 856 (Colo. 1989); Romero v. People, 2017
CO 37, ¶ 11 (noting a court abuses its discretion if its evidentiary
ruling is “manifestly arbitrary, unreasonable, or unfair” (quoting
People v. Stewart, 55 P.3d 107, 122 (Colo. 2002))).
C. Discussion
¶ 32 Although a defendant has a right to present mitigating
information at sentencing, “[t]his right to present information is
limited . . . by the context of the proceeding in which it occurs.”
People v. Padilla, 907 P.2d 601, 608 (Colo. 1995). And at
sentencing, the court is entitled to “wide discretion to determine
what evidence is relevant and admissible.” Borrego, 774 P.2d at
855. Thus, despite section 16-11-102’s use of the word “any,” a
16
defendant’s right to present mitigating information is not absolute.
See Padilla, 907 P.2d at 609 (citing United States v. Giltner, 889
F.2d 1004, 1008 (11th Cir. 1989), for the proposition that such
right does not encompass the right to an evidentiary hearing or to
“call and cross-examine witnesses to rebut the information” relied
upon by the sentencing court).
¶ 33 In allowing defense counsel to read the juror’s full written
statement into the record, the trial court emphasized its desire to
“err on the side of letting [Gonzalez] present the evidence he thinks
he needs for sentencing.” Its decision not to allow the juror to
testify directly was supported by sound rationale related to the
juror’s role in deliberations and the risk that she might introduce
irrelevant information at the sentencing stage. See Borrego, 774
P.2d at 855. Because the court’s ruling was not “manifestly
arbitrary, unreasonable, or unfair,” we will not disturb it. Romero,
¶ 11 (quoting Stewart, 55 P.3d at 122).
V. Conclusion
¶ 34 The judgment is affirmed.
JUDGE FURMAN and JUDGE KUHN concur.
