Peo v. Archuleta

• Court: Colorado Court of Appeals
• Decided: October 7, 2021
• Docket: 18CA1794
• Status: Unknown

Opinion

18CA1794 Peo v Archuleta 10-07-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 18CA1794

El Paso County District Court No. 18CR435

Honorable Theresa M. Cisneros, Judge

Honorable Daphne R. Burlingame, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jacob William Archuleta,

Defendant-Appellant.

JUDGMENT AFFIRMED AND CASE

REMANDED WITH DIRECTIONS

Division III

Opinion by JUDGE BROWN

Furman and Lipinsky, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced October 7, 2021

Philip J. Weiser, Attorney General, Patrick A. Withers, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jacob B. McMahon, Deputy

State Public Defender, Denver, Colorado, for Defendant-Appellant

1

¶ 1 Defendant, Jacob William Archuleta, appeals the judgment of

conviction entered on a jury verdict finding him guilty of second

degree aggravated motor vehicle theft. We affirm but remand the

case to the district court to correct the mittimus to reflect that

Archuleta pleaded not guilty and was tried by a jury.

I. Background

¶ 2 When the victim left his 2000 GMC Yukon running

unattended in his driveway in Colorado Springs, someone stole it.

Police found the vehicle ten days after it was reported stolen,

parked in front of a residence in Fountain.

¶ 3 Officers saw two people inside; one of them was later identified

as Archuleta. Police placed spike sticks and stop sticks in front of

and behind the vehicle’s tires. An officer then used the patrol car’s

public address system to announce police presence. Officers

observed movement inside the vehicle and then the vehicle drove

away.

¶ 4 Police pursued the vehicle in a low speed chase but, because

all four tires were punctured from the spike sticks, the vehicle

eventually skidded off the road to a stop. Once the vehicle stopped,

Archuleta exited from the driver’s side and the passenger exited

2

from the passenger side. Both individuals ran from police but were

apprehended. During the arrest, an officer found a syringe in

Archuleta’s pocket.

¶ 5 The prosecution charged Archuleta with second degree

aggravated motor vehicle theft, vehicular eluding, obstructing a

peace officer, possession of drug paraphernalia, and possession of a

defaced firearm. The jury convicted him of all charges except

possession of a defaced firearm.

¶ 6 The district court sentenced Archuleta to ninety days in jail

and three years of supervised probation through recovery court.

After his probation was revoked, the court sentenced him to two

years in prison.

II. Analysis

¶ 7 Archuleta contends that (1) there was insufficient evidence to

support his conviction for second degree aggravated motor vehicle

theft; (2) the district court erred by not answering a jury question;

and (3) the prosecutor engaged in misconduct during closing

argument. We reject each of these contentions. However, we agree

with Archuleta that the case must be remanded to correct the

mittimus.

3

A. Sufficiency of the Evidence

1. Standard of Review and Generally Applicable Law

¶ 8 “The Due Process Clauses of the Colorado and United States

Constitutions require the prosecution to prove the existence of every

element of a charged offense beyond a reasonable doubt.” People v.

Espinoza, 195 P.3d 1122, 1127-28 (Colo. App. 2008).

¶ 9 We review de novo whether the evidence is sufficient to sustain

a conviction. McCoy v. People, 2019 CO 44, ¶ 19. In doing so, we

assess “whether the relevant evidence, both direct and

circumstantial, when viewed as a whole and in the light most

favorable to the prosecution, is substantial and sufficient to support

a conclusion by a reasonable mind that the defendant is guilty of

the charge beyond a reasonable doubt.” Clark v. People, 232 P.3d

1287, 1291 (Colo. 2010) (quoting People v. Bennett, 183 Colo. 125,

130, 515 P.2d 466, 469 (1973)). And we give the prosecution the

benefit of every inference that may reasonably be drawn from the

evidence. People v. Carrasco, 85 P.3d 580, 582-83 (Colo. App.

2003).

4

2. Knowingly Without Authorization

¶ 10 Archuleta contends that the prosecution failed to present

sufficient evidence that he knew his control over the vehicle was

without authorization. We are not persuaded.

a. Applicable Law

¶ 11 As relevant here, a person commits second degree aggravated

motor vehicle theft if they knowingly obtain or exercise control over

the motor vehicle of another without authorization. § 18-4-409(4),

C.R.S. 2020. The culpable mental state “knowingly” applies both to

the defendant’s exercise of control over the vehicle and their

awareness of their lack of authority. People v. Vialpando, 2020 COA

42, ¶ 21 (cert. granted Oct. 12, 2020).

¶ 12 At trial, direct evidence of a defendant’s culpable mental state

is seldom available, see United States v. Johnson, 971 F.2d 562, 566

(10th Cir. 1992), so it often must be inferred from their actions and

the surrounding circumstances, see Vialpando, ¶ 19. See also

People v. Liggett, 114 P.3d 85, 90 (Colo. App. 2005) (“Proof of intent

is often necessarily indirect, and the fact finder thus may ‘infer an

intent to cause the natural and probable consequences of unlawful

5

voluntary acts.’” (quoting People v. Fisher, 759 P.2d 33, 38 (Colo.

1988))), aff’d, 135 P.3d 725 (Colo. 2006).

b. Application

¶ 13 At trial, the prosecution presented the following evidence

relevant to whether Archuleta knew he lacked authorization from

the vehicle’s owner to obtain or exercise control over the vehicle:

• The vehicle owner testified unequivocally that he did not

know Archuleta or give him permission to take the vehicle.

• Officer Eric Moore testified that he was dispatched to a

“suspicious incident” and located the vehicle, which had

been reported stolen and bore license plates registered to a

different vehicle. The officer testified that while he was

attempting to contact the occupants of the residence where

the vehicle was parked, other officers noticed that there

were people sleeping in the vehicle. Officer Greg Morris

testified that he observed Archuleta lying in the back seat of

the vehicle.

• The officers testified that they placed spike sticks and stop

sticks around the vehicle, which would puncture the

vehicle’s tires if it drove over them. They testified that

6

police activated their lights and sirens and used the public

address system on a patrol car to give verbal commands to

the occupants of the vehicle.

• Officer Moore told the jury that he heard the vehicle’s

engine start, saw its brake lights turn on, and saw it drive

away in an attempt to flee the scene. Because the vehicle

drove over the spike sticks, its tires quickly deflated or blew

out; the vehicle was driving on rims. In a low speed chase,

Officer Moore pursued the vehicle with lights and sirens

activated. Eventually, the driver lost control and the vehicle

skidded off the road. Officer Morris similarly described the

pursuit.

• Officer Moore testified that, immediately after the vehicle

came to a stop, a male occupant exited from the driver’s

side and a female occupant exited from the passenger side.

Both individuals fled on foot but were apprehended. Officer

Moore identified Archuleta as the male occupant who fled

from the driver’s side of the vehicle.

• Officer Morris also testified that Archuleta exited from the

driver’s side of the vehicle and fled on foot. The officer

7

chased Archuleta and “gave loud verbal commands for him

to stop running,” but Archuleta “didn’t listen and continued

to run.” Ultimately, Officer Morris apprehended Archuleta.

• The prosecution admitted body camera footage of the

incident from each of the testifying officers.

¶ 14 In support of his argument that this evidence was insufficient

to prove that he knew his control over the vehicle was without the

owner’s authorization, Archuleta contends that the only evidence

the prosecution presented at trial was that police officers found him

sleeping in the stolen vehicle. He argues there was no evidence that

he knew the vehicle was stolen and the prosecution’s evidence did

not rule out that he believed the vehicle had been abandoned or

that someone else gave him authorization to use it.

¶ 15 As an initial matter, although the motor vehicle theft statute

does not expressly identify whose “authorization” must be given, see

§ 18-4-409(4), Archuleta argues that the prosecution was required

to show that he knew his control over the vehicle was without the

owner’s authorization. See People v. Stellabotte, 2016 COA 106,

¶ 26, aff’d, 2018 CO 66. So, based on Archuleta’s own argument,

8

evidence that someone other than the owner of the vehicle

authorized him to use it would have been irrelevant.

¶ 16 As noted, a defendant’s culpable mental state rarely can be

proven by direct evidence; it must frequently be inferred from the

defendant’s conduct and the surrounding circumstances. See

Vialpando, ¶ 19; Liggett, 114 P.3d at90. Further, given that the

prosecution could not force Archuleta to testify, it could only prove

his mental state by circumstantial evidence. As the Colorado

Supreme Court explained in Garcia v. People,

[w]e have consistently upheld the right of the

trier of the fact to draw inferences of guilt on

the basis of circumstantial evidence. The

defendant’s right to remain silent places the

burden on the People to prove the case against

him by evidence other than his account of the

transaction in question. But the privilege

against self-incrimination in no way limits the

right of the trier of the fact to draw reasonable

inferences from the People’s evidence.

¶ 17 172 Colo. 329, 332, 473 P.2d 169, 170-71 (1970) (citation

omitted).

¶ 18 Here, the prosecution presented evidence that the owner of the

vehicle did not authorize Archuleta to exercise control over the

vehicle. It also presented evidence that Archuleta fled the scene —

9

both in the stolen vehicle and on foot once the vehicle became

inoperable. Although we acknowledge that there could be other

reasons why Archuleta fled, that does not mean it would be

unreasonable for a juror to infer that Archuleta was aware that he

lacked authority to exercise control over the vehicle when he drove

away from the police, crashed the car, and then continued running

on foot. See Vialpando, ¶ 29 (concluding that a reasonable juror

could infer that defendant was aware she lacked authority to

exercise control over the car when she knew police were seeking

her, drove away from the motel, and crashed the car); see also

Whaley v. People, 171 Colo. 287, 292, 466 P.2d 927, 929 (1970)

(concluding that the jury was justified in inferring defendant’s

knowledge that goods were stolen from the circumstantial evidence

and that, in the absence of testimony or evidence offered by the

defendant or anyone else in his behalf, the defendant was “in no

position to complain because the jury drew inferences which were

unfavorable to him but nonetheless were warranted by the

evidence”).

¶ 19 When viewed as a whole and in the light most favorable to the

prosecution, the evidence was substantial and sufficient to support

10

a conclusion by a reasonable juror that Archuleta was guilty of

second degree aggravated motor vehicle theft beyond a reasonable

doubt.

3. Vehicle Value

¶ 20 Second degree aggravated motor vehicle theft is a class 6

felony if the vehicle is worth at least $1,000 but not more than

$20,000. § 18-4-409(4)(b). Archuleta contends that the

prosecution did not prove beyond a reasonable doubt that the

vehicle was worth at least $1,000, so his conviction should be

reduced to a class 1 misdemeanor. § 18-4-409(4)(c). We disagree.

a. Applicable Law

¶ 21 A jury does not need to find the precise value of a stolen

vehicle. People v. Anders, 38 Colo. App. 185, 189, 559 P.2d 239,

242 (1976). But “[w]here the value of the goods stolen determines

the grade of the offense, there must be some basis other than pure

speculation for determination of the real value.” People v. A.G., 43

Colo. App. 514, 516, 605 P.2d 487, 489 (1979). Indeed, the

prosecution has the burden to “present competent evidence of the

reasonable market value of the item at the time of the commission

of the alleged offense.” People v. Jaeb, 2018 COA 179, ¶ 40.

11

Market value is what a willing buyer would pay and a willing seller

would accept for the stolen items. People v. Vigil, 2015 COA 88M,

¶ 80, aff’d, 2019 CO 105. In determining a vehicle’s market value,

a jury may consider the use of the vehicle and use its common

knowledge. See People v. Early, 692 P.2d 1116, 1120 (Colo. App.

1984).

b. Application

¶ 22 At trial, the prosecution presented the following evidence

relevant to the value of the stolen vehicle:

• The vehicle’s owner testified that he bought the 2000 GMC

Yukon used in 2005 — thirteen years before it was stolen —

for $13,000.

• The prosecution admitted Exhibit 13, the vehicle

registration, which listed the purchase price as $13,000.

• The owner told the jury that, since purchasing the vehicle,

he had kept it in good working order. He acknowledged,

however, that the vehicle leaked a quart of oil every two

weeks and that it had been driven over 230,000 miles.

• The owner testified that the vehicle was the “XL version”

with heated leather seats, cruise control, wheel tilt, AM/FM

12

cassette and CD player, four-wheel drive, and “all the bells

and whistles.”

• The owner testified that, shortly before the vehicle was

stolen, he paid $600 for repairs and purchased tires for it

that cost $120.

¶ 23 Archuleta contends that this evidence was insufficient for a

reasonable juror to conclude that the vehicle was worth at least

$1,000. He argues that there was no direct evidence of value,

highlighting the fact that the owner did not testify to the vehicle’s

current value; instead, the owner testified to the purchase price

from approximately thirteen years earlier. Archuleta further argues

that the circumstantial evidence should have left any reasonable

juror with reasonable doubt that the vehicle was worth $1,000 or

more.

¶ 24 In support of his argument, Archuleta relies on Vigil, ¶¶ 81-83,

in which a division of this court called it “a close question” whether

the prosecution presented sufficient evidence of the value of a

stolen vehicle where the owner testified he “would give a thousand

dollars for it.” Ultimately, the division concluded that the evidence

13

was sufficient. Id. at ¶ 83. Archuleta argues that the prosecution

presented even less evidence in this case.

¶ 25 An owner of goods is always competent to testify to the value

of their property. People v. Paris, 182 Colo. 148, 151, 511 P.2d 893,

894 (1973). However, an owner’s testimony as to a vehicle’s

purchase price is competent evidence of market value only where

the item is so new and has depreciated so insubstantially as to

allow a reasonable inference that the purchase price is comparable

to the current market value. Id.

¶ 26 So we agree with Archuleta that the owner’s testimony as to

the stale purchase price of the vehicle, standing alone, would not

have been sufficient for the jury to reasonably conclude that its

current market value was equal to or greater than $1,000. But

there was other circumstantial evidence of value from which the

jury reasonably could reach that conclusion. Specifically, the

owner testified that he recently invested $720 for repairs and tires

and explained the upgraded features of the vehicle. Cf. People v.

Jamison, 220 P.3d 992, 995 (Colo. App. 2009) (rejecting the People’s

argument that the “items themselves” could be considered some

evidence of their value but noting that “no evidence was presented

14

in this case as to the condition, age, and other factors which the

jury could consider in determining value”).

¶ 27 Giving the prosecution the benefit of every reasonable

inference that may be drawn from the evidence, Carrasco, 85 P.3d

at 582-83, we conclude that the totality of the evidence of the

vehicle’s age, make, model, size, features, condition, and cost of

recent repairs and updates, see id. — particularly when combined

with the jury’s use of its common knowledge, see Early, 692 P.2d at

1120 — was substantial and sufficient to support a conclusion by a

reasonable juror that the stolen vehicle was worth at least $1,000.

B. Jury Question

¶ 28 Archuleta contends that the district court erred by not

answering a jury question seeking clarification on the “without

authorization” element of second degree aggravated motor vehicle

theft. We perceive no plain error.

1. Standard of Review and Applicable Law

¶ 29 We review jury instructions de novo to determine if they

correctly informed the jury of the applicable law. People v. Luna,

2020 COA 123M, ¶ 8. The trial court has substantial discretion in

formulating the jury instructions so long as the instructions are

15

correct statements of the law and fairly and adequately cover the

issues presented. People v. Pahl, 169 P.3d 169, 183 (Colo. App.

2006). And whether to provide the jury with additional instructions

in response to a juror question is a determination within the trial

court’s sound discretion. People v. Bass, 155 P.3d 547, 552 (Colo.

App. 2006).

¶ 30 Absent evidence to the contrary, a jury is presumed to

understand and follow the trial court’s instructions. Leonardo v.

People, 728 P.2d 1252, 1256 (Colo. 1986). This presumption may

be overcome “when the jury indicates to the judge that it does not

understand an element of the offense charged or some other matter

of law central to the guilt or innocence of the accused.” Id. at 1256.

On receipt of a jury’s question regarding a point of law, a court

should give further instructions to the jury unless the question can

be answered by the instructions already given, is not relevant to the

law at issue, or asks the court to decide issues of fact. People v.

Chase, 2013 COA 27, ¶ 38.

¶ 31 Because Archuleta’s contention is unpreserved, we review for

plain error and reverse only if the error was obvious and so

undermined the fundamental fairness of the trial as to cast serious

16

doubt on the reliability of the judgment of conviction. Hagos v.

People, 2012 CO 63, ¶ 14. To be obvious, the error ordinarily must

contravene a clear statutory command, a well-settled legal principle,

or Colorado case law. People v. Conyac, 2014 COA 8M, ¶ 143.

Under plain error review as applied to jury instructions, the

defendant must demonstrate that the error affected a substantial

right and that the record reveals a reasonable possibility that it

contributed to the conviction. People v. Miller, 113 P.3d 743, 750

(Colo. 2005).

2. Additional Background

¶ 32 The district court gave the jury Instruction Number 14 which

set forth the elements of second degree aggravated motor vehicle

theft:

1. That the defendant,

2. in the State of Colorado, at or about the

date and place charged,

3. knowingly,

4. obtained or exercised control over the motor

vehicle of another,

5. without authorization, or by threat or

deception.

¶ 33 During deliberations, the jury submitted a written question to

the court which said, “For Instruction No. 14 is line 5 ‘without

17

authorization’ referring to authorization only from the direct owner

of the vehicle[?]” The trial court replied, “In response to your

question . . . you are instructed to consider the instructions

together as a whole.”

3. Application

¶ 34 Archuleta contends that the district court erred by directing

the jury back to the existing instructions. He argues that the court

should have answered the jury’s question “yes” because a defendant

must know that his possession or control of the vehicle was without

authorization of the owner. See Stellabotte, ¶ 26.

¶ 35 Even assuming the district court’s response to the jury’s

question was obviously erroneous, however, there is no reasonable

possibility that it contributed to Archuleta’s conviction. Any jury

confusion inured to Archuleta’s benefit because it allowed the jury

to believe either (1) that the authorization in question must be from

the vehicle’s owner, which is what Archuleta argues would have

been the correct answer to the jury question; or (2) that someone

else could have authorized Archuleta’s control of the vehicle, which

would have supported his theory of defense.

18

¶ 36 Indeed, beginning with opening statement, Archuleta’s

attorney told the jury that the evidence of Archuleta’s knowledge

was insufficient because he did not know the car was stolen. Any

confusion on the jury’s part about whether the owner alone had to

authorize Archuleta’s possession, or whether someone else could

have authorized it, only bolstered his defense.

¶ 37 Under these circumstances, we conclude that any error by the

district court in not answering the jury’s question did not affect a

substantial right and that there is not a reasonable possibility that

it contributed to Archuleta’s conviction. Miller, 113 P.3d at 750.

We discern no plain error.

C. Prosecutorial Misconduct

¶ 38 Archuleta contends that the prosecution engaged in reversible

misconduct when the prosecutor misstated the mens rea

requirement for second degree aggravated motor vehicle theft,

thereby reducing the prosecution’s burden of proof. We disagree.

1. Applicable Law and Standard of Review

¶ 39 We engage in a two-step analysis when reviewing claims of

prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096

(Colo. 2010). First, we determine whether the prosecutor’s conduct

19

was improper based on the totality of the circumstances. Id.

Second, we decide whether such actions warrant reversal under the

proper standard of review. Id.

¶ 40 Where, as here, there is no contemporaneous objection, we

review the alleged misconduct for plain error. People v. Rhea, 2014

COA 60, ¶ 43. “To constitute plain error, prosecutorial misconduct

must be flagrant or glaringly or tremendously improper, and it must

so undermine the fundamental fairness of the trial as to cast

serious doubt on the reliability of the judgment of conviction.”

People v. McMinn, 2013 COA 94, ¶ 58. Prosecutorial misconduct in

closing argument rarely constitutes plain error. People v. Estes,

2012 COA 41, ¶ 19; People v. Strock, 252 P.3d 1148, 1152-53 (Colo.

App. 2010).

2. Additional Background

¶ 41 During her closing argument, the prosecutor explained what

was required to prove second degree aggravated motor vehicle theft:

Now, this is charged as aggravated motor

vehicle theft in the second degree. And why is

that important? We got a juror question to

[the vehicle owner], and the question was

about whether or not he had seen anything

funny happening.

20

This is not aggravated motor vehicle [theft] in

the first degree. We are not proving that

[Archuleta] stole the car right from [the

owner’s] driveway. That is not what we are

here for. This is second degree motor vehicle

theft. And all we have to prove is that he

obtained or executed control. Obtained or

executed control.

Whenever you see an “or” when you go back

there and you are looking through these, that

means we have to prove one or the other. So

did he exercise control over that vehicle? Sure.

He was sleeping in it. And if sleeping in it isn’t

enough for you, he drove the car. So he

absolutely exercised control.

Over the motor vehicle of another. You know

that it was another’s motor vehicle. You heard

right from [the owner]. We also brought in the

registration. You see owner name . . . right

there. And we have proven that element

beyond a reasonable doubt.

Without authorization or by threat or

deception. We only have to prove one, and

what we are proving is without authorization.

Everybody remembers [the owner], right? He

was a character. And he sat right there, and I

asked him if he knew [Archuleta], if he had

ever met him. He said no. Did you give him

authorization to be in your car or take your

car? No. So he did not have authorization to

be in [the owner’s] car. And we have proven

that beyond a reasonable doubt.

21

¶ 42 During her closing argument, addressing the “obtains or

exercises control” element of second degree aggravated motor

vehicle theft, defense counsel argued,

As for whether or not Mr. Archuleta actually

stole the vehicle. So the district attorney is

right, there [are] two ways that they could

prove this. One is that he obtained control

over the motor vehicle; that he stole it. And

again, think of the investigation that could

have been done to exonerate [Archuleta] of

this.

¶ 43 Defense counsel then highlighted the deficiencies in the police

investigation and the fact that police did not identify who stole the

vehicle from the victim’s driveway. The clear implication from

defense counsel’s argument was that Archuleta was not guilty

because the prosecution had not proved that he was the person

who stole the vehicle in the first instance.

¶ 44 Defense counsel continued,

The other way the district attorney can prove

this charge is if they show that he exercised

control. . . . So they have to prove that

[Archuleta] knowingly obtained or exercised

control over it, and that he did so knowing that

he didn’t have authorization or that he knew it

was by threat or deception.

22

So yes, he exercised control over it. He was in

possession of a stolen vehicle. But he didn’t

know that it was stolen.

¶ 45 Then, during rebuttal closing, the prosecutor argued that

second degree aggravated motor vehicle theft did not require proof

that Archuleta had stolen the vehicle, only that he controlled it

without authorization:

It doesn’t matter who stole the car because

that is not what he is charged with. I am

asking you to read those instructions carefully.

Did he knowingly exercise control over a

vehicle that was not his? Absolutely. That is

all second degree motor vehicle theft is.

3. Application

¶ 46 As noted and as relevant here, a person commits second

degree aggravated motor vehicle theft if they knowingly obtain or

exercise control over the motor vehicle of another without

authorization. § 18-4-409(4).

¶ 47 Archuleta contends that the prosecutor misstated the law by

telling the jury that the crime of second degree aggravated motor

vehicle theft required only that Archuleta knowingly exercised

control over a vehicle that was not his. According to Archuleta, the

prosecutor failed to tell the jury that the prosecution must also

23

prove that Archuleta knew his exercise of control over the vehicle

was without the owner’s authorization. By omitting an element,

Archuleta argues, the prosecutor lowered the prosecution’s burden

of proof.

¶ 48 When the prosecutor’s statement is read in the context of the

overall closing argument, however, she did not tell the jury that the

prosecution only had to prove that Archuleta knowingly exercised

control over a vehicle that did not belong to him to convict him of

second degree aggravated motor vehicle theft. Nor did she tell the

jury that the mens rea element — knowledge — did not apply to the

“without authorization” element. Instead, the prosecutor appeared

to be responding to defense counsel’s argument that Archuleta was

not guilty because the prosecution did not prove that he stole the

vehicle from the owner’s driveway. A prosecutor is entitled to

respond to defense counsel’s argument. See People v. Wilson, 2014

COA 114, ¶ 69. And to be sure, the prosecutor discussed all

elements of the crime in her initial closing argument.

¶ 49 In context, and although inartful, the prosecutor’s statement

during rebuttal closing was not “flagrant or glaringly or

tremendously improper” such that it undermined the fundamental

24

fairness of the trial or cast serious doubt on the reliability of

Archuleta’s conviction. See McMinn, ¶ 58; People v. McBride, 228

P.3d 216, 221 (Colo. App. 2009) (explaining that because

arguments are delivered in the heat of trial, we afford prosecutors

the benefit of the doubt when their remarks are ambiguous or

inartful). We perceive no plain error.

D. Mittimus Correction

¶ 50 We agree with both parties that we must remand the case to

the district court to correct the mittimus. The mittimus states that

Archuleta pleaded guilty, but he pleaded not guilty and was

convicted after a jury trial. So we remand and instruct the district

court to correct the mittimus accordingly. See People v. Mintz, 165

P.3d 829, 836 (Colo. App. 2007).

III. Conclusion

¶ 51 We remand the case to the district court to correct the

mittimus. Otherwise we affirm the judgment of conviction.

JUDGE FURMAN and JUDGE LIPINSKY concur.