22CA1157 Peo v Apodaca 11-13-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1157 Pueblo County District Court No. 20CR1754 Honorable Thomas B. Flesher, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Issaiah Lee Apodaca,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division IV Opinion by JUDGE SCHOCK Harris and Berger*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 13, 2025
Philip J. Weiser, Attorney General, Frank R. Lawson, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Shann Jeffery, Deputy State Public Defender, 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. 2025. ¶1 Defendant, Issaiah Lee Apodaca, appeals his conviction and
sentence for first degree murder. He argues that the district court
erred by (1) declining to instruct the jury on the lesser included
offenses of manslaughter and criminally negligent homicide and
(2) excluding evidence of the gang affiliations of individuals involved
in the incident. He also contends that his statutorily mandated
sentence of life imprisonment without the possibility of parole is
unconstitutional given his young age. We affirm the judgment.
I. Background
¶2 There was evidence at trial to support the following facts.
Apodaca was at the mall with his brother, Gary Apodaca,1 and his
friend, L.J-D.,2 when they encountered the victim and his friend,
Austin Aragon. The two groups, who knew each other and did not
get along, got into a verbal altercation, calling each other names.
¶3 The altercation picked back up in the mall parking lot. The
groups again argued, calling each other names and “disrespecting
each other’s dead friends.” L.J-D. pulled out a gun, which Gary
1 Because Gary Apodaca shares defendant’s last name, we refer to
him by his first name, intending no disrespect.
2 We refer to L.J-D. by his initials because he was a minor.
1 took and put in his waistband. According to L.J-D., Aragon also
appeared to be holding a gun in his waistband and threatened to
shoot the other group. Aragon later denied that he had a gun.
¶4 The two groups then drove off, the victim driving with Aragon
in one car, and the others, with Gary driving, following in another.
As the victim stopped at a stoplight, Gary pulled up next to him and
the groups continued to argue. Apodaca then pointed a gun at the
victim and Aragon. He lowered the gun after “a second or two” and
taunted them for being “scared.” But when the stoplight turned
green and the victim began to drive forward, Apodaca raised the
gun again and fired a single shot into the victim’s car, striking the
victim in the head and killing him. L.J-D. originally told police that
Aragon had pointed a gun at the car with Apodaca’s group first.
But at trial, L.J-D. denied ever seeing Aragon draw a gun.
¶5 Apodaca was charged with first degree murder after
deliberation. His primary defense at trial was that he had acted in
self-defense after Aragon pointed a gun at him. The jury convicted
Apodaca, and the district court sentenced him to life in prison
without the possibility of parole, as mandated by statute.
2 II. Denial of Lesser Included Offense Instructions
¶6 Apodaca first contends that the district court reversibly erred
by denying his request to instruct the jury on the lesser included
offenses of manslaughter and criminally negligent homicide. We
disagree. We conclude that the district court properly declined to
instruct the jury on criminally negligent homicide and that any
error in failing to instruct the jury on manslaughter would be
harmless in light of the instruction on second degree murder.
A. Applicable Law and Standard of Review
¶7 A district court must instruct the jury on a lesser included
offense if “there is a rational basis for a verdict acquitting the
defendant of the offense charged and convicting him of the included
offense.” § 18-1-408(6), C.R.S. 2025. In a homicide case, “[o]nly a
slight amount of evidence” supporting the lesser included offense is
required. Grissom v. People, 115 P.3d 1280, 1287 (Colo. 2005). If
there is “any evidence whatever” tending to establish the lesser
offense, “the defendant is entitled to an instruction thereon,
regardless of how ‘incredible or unreasonable’ his contention may
be, or how ‘improbable, unreasonable, or slight’ it might be.” Mata-
Medina v. People, 71 P.3d 973, 979 (Colo. 2003) (citations omitted).
3 In making this determination, the district court must consider the
evidence in the light most favorable to the defendant. Id.
¶8 We review the denial of a lesser included offense instruction
for an abuse of discretion. People v. Buell, 2017 COA 148, ¶ 31,
aff’d, 2019 CO 27. A district court abuses its discretion when its
decision is manifestly arbitrary, unreasonable, or unfair, or when it
misapplies the law. People v. Draper, 2021 COA 120, ¶ 16,
overruled on other grounds by, Garcia v. People, 2023 CO 30, ¶ 22.
¶9 When the district court errs by failing to give a jury instruction
on a lesser included offense, we review for nonconstitutional
harmless error. Mata-Medina, 71 P.3d at 980. Under that
standard, we will reverse only if there is “a reasonable probability
that [the error] contributed to the defendant’s conviction.” Id.
B. Analysis
¶ 10 As charged in this case, first degree murder requires that the
defendant caused the death of another person “[a]fter deliberation
and with . . . intent.” § 18-3-102(1)(a), C.R.S. 2025. At Apodaca’s
request, the district court also instructed the jury on the lesser
included offense of second degree murder — “knowingly caus[ing]
the death of a person.” § 18-3-103(1)(a), C.R.S. 2025. But the
4 court denied Apodaca’s request for instructions on the still lesser
offenses of manslaughter and criminally negligent homicide.
¶ 11 As to criminally negligent homicide, we perceive no abuse of
discretion. That offense requires proof that the defendant caused
the death of another person “by conduct amounting to criminal
negligence.” § 18-3-105, C.R.S. 2025. A person acts with criminal
negligence “when, through a gross deviation from the standard of
care that a reasonable person would exercise, he fails to perceive a
substantial and unjustifiable risk that a result will occur or that a
circumstance exists.” § 18-1-501(3), C.R.S. 2025 (emphasis added).
¶ 12 On the facts of this case, there was no rational basis for a jury
to conclude that Apodaca was unaware of the risk that, by shooting
into the victim’s car, he might kill someone. The uncontroverted
evidence established that Apodaca deliberately fired from an
adjacent lane at a car he knew contained two occupants. He did
not claim to have shot inadvertently or without knowing what he
was doing. Cf. People v. Castro, 10 P.3d 700, 702 (Colo. 2000)
(holding that district court erred by failing to instruct on criminally
negligent homicide where the defendant was intoxicated and did not
remember shooting gun). If the jury found Apodaca acted in self-
5 defense, then it would have acquitted him. But otherwise, it “defies
logic” to conclude that Apodaca did not perceive the substantial and
unjustifiable risk of shooting into an occupied car. Draper, ¶ 21.
¶ 13 The manslaughter instruction is a closer call. A person
commits manslaughter when “[s]uch person recklessly causes the
death of another person.” § 18-3-104(1)(a), C.R.S. 2025. And a
person acts recklessly when they “consciously disregard[] a
substantial and unjustifiable risk that a result will occur or that a
circumstance exists.” § 18-1-501(8). There is arguably some
evidence to support a jury finding that Apodaca shot at the victim’s
car merely recklessly — perhaps to scare the witness or Aragon —
but did not intend to kill anyone or know he was practically certain
to do so. Specifically, L.J-D. testified that when Apodaca fired his
gun, both cars were moving, the victim’s windows were rolled up,
and he could only “kind of” see inside the victim’s car. And the
bullet did not go directly through the victim’s driver’s side window;
instead, it went through the closed back left window.
¶ 14 But even assuming the district court erred by failing to
instruct the jury on manslaughter, we conclude that any error was
6 harmless.3 When a jury is instructed on a lesser included offense
but convicts the defendant of the greater offense, the failure to
instruct the jury on a further lesser included offense of the one the
jury was instructed on is harmless error. Mata-Medina, 71 P.3d at
982. That is because “a jury’s rejection of an intermediate offense
constitutes an implicit rejection of omitted lesser [included]
offenses.” Id. at 983; see also People v. Roman, 2017 CO 70, ¶ 18
(noting that the jury’s finding in Mata-Medina that the defendant
caused the victim’s death knowingly rather than recklessly
“foreclosed any possibility that it could have found he did so only by
acting with criminal negligence”).4 It also ensures that the jury did
not convict the defendant of the greater offense “simply because it
had no less serious option short of acquittal.” Roman, ¶ 20.
3 Our harmlessness analysis would apply to the district court’s
rejection of the criminally negligent homicide instruction as well.
4 In People v. Roman, the supreme court held that when the omitted
lesser included offense is not also included in the lesser offense the jury was instructed on, “more is required to demonstrate harmlessness than merely the rejection of [the] comparable lesser offense.” 2017 CO 70, ¶ 19. But under the circumstances here, the conviction on the greater offense is not just “the rejection of a comparable lesser offense.” Id. (emphasis added). It is the rejection, albeit implicit, of the omitted offense itself. Id. at ¶ 18.
7 ¶ 15 That is what happened in this case. The jury was instructed
on both first degree murder and the lesser included offense of
second degree murder. Thus, if the jury was unconvinced that
Apodaca was guilty of first degree murder, it had an option short of
acquittal. But the jury convicted Apodaca of first degree murder,
finding that he acted intentionally and after deliberation, not merely
knowingly. By doing so, the jury necessarily rejected all lesser
included offenses of second degree murder, including manslaughter
(and criminally negligent homicide). See Mata-Medina, 71 P.3d at
983. The district court’s failure to instruct the jury on
manslaughter, even if erroneous, was therefore harmless. See id.
¶ 16 Apodaca contends that the putative error was not harmless
because the jury could have found him guilty of manslaughter
based on a theory of imperfect self-defense, despite rejecting the
second degree murder charge. Imperfect self-defense — a theory
that has not been expressly recognized in Colorado — provides that
a defendant who “subjectively believed that the use of deadly force
was necessary to prevent death or great bodily harm to himself or
others, but [whose] belief was not objectively reasonable,” is guilty
of manslaughter. United States v. Britt, 79 F.4th 1280, 1287 (10th
8 Cir. 2023); cf. Sanchez v. People, 470 P.2d 857, 860 (Colo. 1970)
(holding that the defendant could be convicted of manslaughter
where he did not intend to kill the victim). Apodaca argues that the
jury could have rejected second degree murder because he shot the
victim intentionally but convicted him of manslaughter because he
subjectively (but unreasonably) believed deadly force was necessary.
¶ 17 There are three problems with this argument. First, to the
extent Colorado has recognized some form of imperfect self-defense,
it is only because such a theory can “negate the elements of first-
and second-degree murder.” People v. Miller, 529 P.2d 648, 649
(Colo. 1974). No Colorado case suggests that a defendant who
subjectively but unreasonably fears for their life may only be
convicted of manslaughter despite — as the jury found here —
intending to kill the victim. See People v. Jones, 2023 COA 104,
¶¶ 33-35 (affirming second degree murder conviction and holding
that the defendant was not entitled to assert self-defense where the
defendant’s claimed subjective fear was not objectively reasonable).
¶ 18 Second, even if the law in Colorado could support such a
theory, the jury was not instructed on it. Without such an
instruction, the jury would have had no basis to find that Apodaca’s
9 actions — if short of first degree murder — could only support a
manslaughter conviction and not second degree murder.
¶ 19 Third, to the extent Apodaca suggests in his reply brief that
the district court should have given an imperfect self-defense
instruction, he never requested one, and he did not raise this issue
in his opening brief. See People v. Dominguez, 2024 COA 32, ¶ 11
(declining to address issue first raised in reply brief) (cert. granted in
part Dec. 23, 2024). Nor could Apodaca show plain error given the
lack of any Colorado case law recognizing imperfect self-defense as
Apodaca frames it on appeal. See People v. Crabtree, 2024 CO 40M,
¶ 42 (“[T]o be deemed plain, an error must contravene a clear
statutory command, a well-settled legal principle, or established
Colorado case law.”).
¶ 20 Finally, to the extent Apodaca suggests that Mata-Medina does
not apply to any case involving self-defense, we see no basis for that
distinction. When asserted as an affirmative defense, as in this
case, self-defense is a “complete defense.” Galvan v. People, 2020
CO 82, ¶ 20. Thus, by convicting Apodaca of first degree murder,
the jury necessarily found that Apodaca did not act in self-defense.
10 It follows that self-defense offered no basis for a jury to convict
Apodaca of manslaughter despite rejecting second degree murder.
¶ 21 We therefore conclude that, under the facts of this case, there
is no reasonable probability that a jury presented with a lesser
included instruction on manslaughter would have convicted
Apodaca of that offense and acquitted him of first degree murder.
III. Gang-Related Evidence
¶ 22 Apodaca next argues that the district court erred by
precluding him from cross-examining Aragon, L.J-D., and another
witness about the gang affiliations of the two groups.5 He argues
that such evidence was relevant to (1) the bias of the witnesses and
(2) Apodaca’s reasonable fear. We perceive no abuse of discretion.
A. Additional Background
¶ 23 Initially, the prosecution framed this case as one of gang
violence and sought, over Apodaca’s objection, to admit evidence
that the two groups were affiliated with rival gangs. Specifically, the
prosecution alleged that Apodaca and Gary were Ace gang
members, Aragon was a Duke Sureno gang member, and the Duke
5 Apodaca also refers to “evidence of prior violent events,” but he
does not identify any such events in his opening brief.
11 Sureno gang is a rival of the Ace gang. But after a pretrial hearing
where Aragon testified that the altercation was unrelated to the
parties’ gang affiliations, the prosecution abandoned this theory.
¶ 24 Defense counsel, however, maintained that the parties’ gang
affiliation was a “key component” of Apodaca’s self-defense claim
because it explained the reasonable basis for his fear of the victim
and Aragon. She said Apodaca was not a gang member but
believed he was targeted due to his affiliation with Gary, who was.
¶ 25 The district court ruled that the prosecution could not make
any gang-related references during its case-in-chief. But it did not
bar the defense from doing so. Instead, it told the defense that if it
wanted to introduce evidence of particular gang-related incidents
during its case, it should raise those issues outside the presence of
the jury. The court later clarified that evidence of prior incidents in
which Apodaca was targeted by members of the Duke gang other
than Aragon or the victim would not be admitted.
¶ 26 Before Aragon testified, the prosecution reiterated its position
that gang membership was irrelevant. The court explained that it
had not closed the door on such evidence and that it would rule on
relevance when the questions were asked. Defense counsel later
12 sought to cross-examine Aragon about his and Gary’s gang
affiliation because “the hostilities between [Aragon] and Gary . . .
started over them being in rival gangs.” The court sustained the
prosecution’s objection, concluding that gang affiliation was not
relevant “based on the state of the evidence” at that point.
¶ 27 Later, the prosecution called another witness, A.O., who had
seen the altercation between the two groups in the parking lot.
Again, defense counsel sought to cross-examine her on the groups’
gang affiliations. Outside the presence of the jury, A.O. testified
that (1) she grew up with Aragon and knew the victim through
Aragon; (2) Aragon was a Duke gang member and she believed (but
was not sure) that the victim was a member of a different gang;
(3) Gary was a member of the Ace gang; (4) members of the Ace
gang did not like her or her family; and (5) she made a derogatory
remark about Ace gang members during the altercation. Defense
counsel argued that this testimony was relevant to A.O.’s credibility
and her bias toward Aragon and the victim and against Apodaca.
¶ 28 The district court ruled that defense counsel could cross-
examine A.O. on her relationship with Aragon and the victim, as
well as the derogatory remark she made toward Gary and Apodaca.
13 But the court prohibited defense counsel from asking A.O. about
Aragon’s or the victim’s gang affiliation because it was irrelevant.6
B. Standard of Review and Applicable Law
¶ 29 We generally review evidentiary rulings, including limitations
on cross-examination, for an abuse of discretion. People v. Beverly,
2025 CO 18, ¶ 22; People v. Morse, 2023 COA 27, ¶ 42. A district
court abuses its discretion when its ruling is “manifestly arbitrary,
unreasonable, or unfair, or stems from an erroneous view of the
law.” Beverly, ¶ 22. To the extent Apodaca contends that the
evidentiary rulings violated his constitutional rights, we review that
issue de novo. People v. Reynolds-Wynn, 2024 COA 33, ¶ 31.
¶ 30 A defendant has a constitutional right to present a defense
and cross-examine witnesses, especially as to “bias, prejudice, or
motive for testifying.” People v. Gonzales-Quevedo, 203 P.3d 609,
611, 614 (Colo. App. 2008) (citation omitted). But a district court
has wide latitude to place reasonable limitations on cross-
6 Apodaca also asserts in his opening brief that L.J-D. was
precluded from testifying about the parties’ gang affiliations and gang rivalry, but he does not point to anywhere in the record that he sought to cross-examine L.J-D. on these issues. To the extent he suggests that the court’s prior rulings prevented him from doing so, our analysis below would apply to L.J-D.’s testimony as well.
14 examination to, among other things, prevent prejudice and issue
confusion. Id. at 614-15. A court may also limit cross-examination
that is “only marginally relevant.” Id. at 615 (citation omitted).
¶ 31 A witness’s gang affiliation may be admissible to show bias in
favor of someone who is affiliated with the same gang or against
someone who is not. Id. It may also be admissible to “explain a
circumstance of the crime [or] to show a motive for the crime.”
People v. James, 117 P.3d 91, 94 (Colo. App. 2004) (citation
omitted). In addition, a victim’s prior violent acts, known to the
defendant at the time, may be relevant to the reasonableness of the
defendant’s belief in the need for self-defense. People v. Jones, 675
P.2d 9, 17 (Colo. 1984).
¶ 32 But gang-related evidence must be “admitted with care.”
People v. Trujillo, 2014 COA 72, ¶ 72 (citation omitted). As with all
evidence, it must be relevant under the facts of the case — that is,
it must have a “tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence.” CRE 401; see
also People v. Chavez, 2012 COA 61, ¶ 32 (“Absent a specific basis
for admission, . . . evidence of mere gang association is irrelevant.”).
15 And even if marginally relevant, it may be excluded if its probative
value is substantially outweighed by the danger of confusion and
unfair prejudice. Gonzales-Quevedo, 203 P.3d at 615; CRE 403.
C. Bias
¶ 33 To the extent Apodaca sought to present evidence of the
parties’ gang affiliations for the purpose of showing witness bias,
the district court did not abuse its discretion by excluding it.
¶ 34 The only witness for whom Apodaca advanced this theory of
admissibility was A.O. But A.O. testified (outside the presence of
the jury) that she was not in a gang. And there was no evidence
that Apodaca was in a gang either. Although A.O. testified that Ace
gang members did not like her or her family, her relationship with
Aragon (and to some extent, the victim) came from growing up
together, “before anything gang-related.” A.O. did not have
personal knowledge that Gary was in a gang and believed the victim
was a member of a different gang — neither the Duke gang nor the
Ace gang. Given this evidence, the suggestion that A.O. would be
biased toward Aragon and the victim and against Apodaca based on
their gang affiliations (or in the case of Apodaca, his brother’s gang
affiliation) rested predominantly on “generalities about gang
16 membership and not on specific facts.” Chavez, ¶ 41; see also
Gonzales-Quevedo, 203 P.3d at 615 (affirming limits on cross-
examination into topics that were “speculative and conclusory”).
¶ 35 Moreover, the district court allowed defense counsel to cross-
examine A.O. about her relationship with Aragon and the victim.
The court also allowed cross-examination regarding A.O.’s
derogatory remark to Apodaca and his brother. See Chavez, ¶ 44
(holding that district court did not err by excluding evidence of the
victims’ gang affiliation where the defendant introduced “evidence of
bias and animosity between the parties without relying on evidence
of the victims’ gang affiliation”). This was enough to call A.O.’s
neutrality into question without getting into the tangential and
potentially prejudicial issue of who belonged to what gang.
¶ 36 As to the cross-examination of Aragon, defense counsel never
argued that his gang affiliation was relevant to bias. She argued
only that his gang affiliation was relevant because the animosity
between Gary and Aragon was due to their membership in rival
gangs. But again, there was no evidence that the altercation was
gang related. See id. at ¶ 43 (holding that gang affiliation was
irrelevant where “there was no evidence that the incident was gang-
17 related”). And as with A.O., Aragon testified that he did not get
along with Apodaca’s group, regardless of why. See id. at ¶ 44.
¶ 37 Under these circumstances, the district court did not abuse its
discretion by concluding that the gang affiliations of Gary, Aragon,
and the victim were not relevant to the witnesses’ credibility.
D. Reasonable Fear
¶ 38 Apodaca also argues that the parties’ gang affiliations were
relevant to the reasonableness of his fear of Aragon and the victim
and, thus, to his claim of self-defense. Although he made this
argument generally before trial, he did not raise it as a ground for
his request to cross-examine Aragon or A.O. on this issue. But
even assuming this argument is preserved, we perceive no error.
¶ 39 We first reject the notion that gang membership, without
more, is necessarily admissible to show that a defendant reasonably
feared the victim for purposes of a claim of self-defense. See
Chavez, ¶ 32 (requiring “specific basis for admission”); cf. Trujillo,
¶ 64 (holding that evidence of gang culture was inadmissible
without a connection to the charged crimes). Membership in a gang
is not a violent act. See Jones, 675 P.2d at 17. Nor is it, in and of
itself, evidence of an individual’s violent disposition. See id.
18 ¶ 40 But as to Aragon and A.O., “mere gang association” is all there
was. Chavez, ¶ 32. Apodaca did not seek to cross-examine Aragon
or A.O. about a specific prior act of violence by Aragon or the victim.
See Jones, 675 P.2d at 17. He merely wanted to show that Aragon
and Gary were in rival gangs. Without more, such gang affiliation
— even if a cause of the verbal altercation — was not relevant to
whether Apodaca reasonably believed he was in imminent danger of
being killed or greatly injured. See § 18-1-704(2)(a), C.R.S. 2025.
¶ 41 In his reply brief, Apodaca argues that the district court
erroneously excluded testimony from his girlfriend that Aragon had
previously threatened Apodaca and had allegedly shot at a home
Apodaca was in. But although the People raised this issue in their
answer brief, Apodaca never mentioned it in his opening brief. We
will not consider a claim of error that Apodaca raised only in his
reply brief. See People v. Dubois, 216 P.3d 27, 28 (Colo. App. 2007),
aff’d, 211 P.3d 41 (Colo. 2009).
E. Constitutional Rights
¶ 42 We likewise reject Apodaca’s claim that his constitutional
rights were violated by the exclusion of the gang-related evidence.
19 ¶ 43 The district court did not “excessively limit cross-
examination.” Chavez, ¶ 31. It simply barred any reference to gang
affiliations where the witnesses’ direct testimony did not address it
and there were no facts to suggest that the incident was gang
related or that the witnesses’ testimony was influenced by the
parties’ gang affiliations. Subject to this limitation, Apodaca was
permitted to cross-examine the witnesses about the animosity
between the two groups, A.O.’s animosity toward Apodaca’s group,
and A.O.’s relationship with Aragon. See id. at ¶ 35. For the
reasons above, these limitations were reasonable. See id. at ¶ 31.
¶ 44 Apodaca also was not deprived of his opportunity to present a
meaningful defense. See People v. Sauser, 2020 COA 174, ¶ 57. To
the contrary, he pursued his self-defense theory throughout trial,
including by eliciting testimony from L.J-D. that Aragon appeared
to have a gun in the parking lot and that L.J-D. previously told
police that Aragon pointed a gun at them at the stoplight. Without
some specific basis for Apodaca to reasonably fear Aragon or the
victim, the gang affiliations of Gary and Aragon (but not Apodaca
himself) were, at best, ancillary to Apodaca’s fundamental narrative
that he reasonably feared for his life because Aragon threatened
20 him with a gun. See id. at ¶ 60 (holding that exclusion of testimony
did not deprive the defendant of his right to present a defense where
it “would have expanded on” the defense, “but was not necessary to
make it coherent”). And in any event, the constitutional right to
present a defense must yield to ordinary limitations of relevance
and admissibility. See People v. Salazar, 2012 CO 20, ¶ 17.
IV. Constitutionality of Sentence
¶ 45 Apodaca finally argues that sections 18-3-102 and 18-1.3-
401(4)(a), C.R.S. 2025 — which, together, mandated a sentence of
life imprisonment without the possibility of parole (LWOP) — are
unconstitutional as applied to him because he was only nineteen
years old at the time of his offense. He urges us to extend the
constitutional ban on mandatory LWOP sentences for juveniles, see
Miller v. Alabama, 567 U.S. 460, 479 (2012), to “emerging adults”
who share similar developmental characteristics. Notwithstanding
some intuitive appeal to this argument, we are not persuaded.
¶ 46 The supreme court recently considered this argument in
People v. Ray, 2025 CO 42M. Like Apodaca, the defendant in Ray
was nineteen years old at the time of his offense and argued that,
as an “emerging adult,” he should be included in the prohibition on
21 LWOP sentences for juveniles. Id. at ¶ 174. The supreme court did
not definitively decide the issue because it concluded that the
defendant had received “individualized consideration” of his “youth
and attendant characteristics” during the penalty phase of his
capital trial. Id. at ¶¶ 178-79 (citation omitted). But in doing so,
the court explained that the Colorado legislature and the United
States Supreme Court recognize eighteen as the age that divides
juveniles — who cannot be sentenced to mandatory LWOP — from
adults — who can. Id. at ¶ 176. And it noted that “Colorado has
not yet followed suit” of other states that have expanded this
prohibition to include defendants older than eighteen. Id. at ¶ 177.
¶ 47 We may not expand the boundaries of the Eighth Amendment
beyond those set by the United States Supreme Court. As a general
matter, “an LWOP sentence imposed upon a class-1-felony
conviction is facially constitutional.” Id. at ¶ 175. In carving out an
exception for juveniles, Miller drew the line between children and
adults — not between categories of adults or between those adults
whose brains are fully developed and those whose brains are not.
567 U.S. at 471. And the United States Supreme Court has drawn
the line between childhood and adulthood for purposes of the
22 Eighth Amendment at the age of eighteen — “where society draws
the line for many purposes.” Roper v. Simmons, 543 U.S. 551, 574
(2005). That bright line may in some sense be artificial. Id. But as
long as mandatory LWOP sentences are constitutional, the line
must be drawn somewhere. Id. And we may not move the line the
United States Supreme Court has drawn.7 See Ray, ¶ 171
(recognizing that, subject to the Eighth Amendment, “it is the
legislature’s prerogative to define crimes and punishments”).
¶ 48 We acknowledge that some states have moved this line —
either by statute or by judicial interpretation of their state
constitutions. See, e.g., Commonwealth v. Mattis, 224 N.E.3d 410,
415 (Mass. 2024) (holding that mandatory LWOP sentences for
defendants under twenty-one years old violate state constitution); In
re Monschke, 482 P.3d 276, 279-81 & n.6 (Wash. 2021) (noting that
state constitution provides greater protection than Eighth
7 Apodaca notes that the Colorado legislature recently expanded
eligibility for specialized sentencing programs previously available only to juveniles to young adults between the ages of eighteen and twenty. See §§ 17-34-101, 17-34-102, 17-22.5-403.7(1)(a)(III), C.R.S. 2025. But in doing so, it expressly excluded young adults sentenced to LWOP from these programs. See § 17-34-101(1)(a); § 17-22.5-403.7(1)(b), (2); People v. Ray, 2025 CO 42M, ¶ 177.
23 Amendment in juvenile sentencing context); see also Ray, ¶ 177
(citing cases). But as the supreme court noted in Ray, Colorado
has not done so, and Apodaca makes no separate argument under
the Colorado Constitution. See Ray, ¶ 177.8 As to the bounds of
the Eighth Amendment, we are bound by Miller and Roper.
¶ 49 Apodaca also asserts that his mandatory LWOP sentence is
unconstitutional because of his “intellectual and psychiatric
disabilities,” including emotional and learning disabilities, a low IQ,
and ADHD. But other than a general reference to Atkins v. Virginia,
536 U.S. 304, 321 (2002) — which prohibited capital punishment for
individuals with “significantly subaverage intellectual functioning”
and limitations on basic adaptive skills, id. at 308 n.3 — he cites no
authority to support this argument. For the same reasons that we
will not expand the Miller rule to a nonjuvenile, we see no basis to
expand it based on Apodaca’s low intellectual functioning.
¶ 50 Finally, Apodaca asks that, if we do not reverse his sentence
outright, we remand the case for an evidentiary hearing on his as-
8 Indeed, unlike Massachusetts and Washington, Colorado case law
has not interpreted Colorado’s constitutional prohibition on cruel and unusual punishments to provide greater protection than the Eighth Amendment. See Sellers v. People, 2024 CO 64, ¶ 36.
24 applied challenge. We decline to do so because Apodaca has not
identified any relevant facts that need to be developed. His
argument is based entirely on his age and, to some extent, his
intellectual disability — neither of which we have concluded can
render his statutorily mandated LWOP sentence unconstitutional.
V. Disposition
¶ 51 The judgment is affirmed.
JUDGE HARRIS and JUDGE BERGER concur.