Peo v. Arellano

• Court: Colorado Court of Appeals
• Decided: April 16, 2026
• Docket: 23CA1897
• Status: Unpublished

Opinion

23CA1897 Peo v Arellano 04-16-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1897 Jefferson County District Court No. 22CR2704 Honorable Randall C. Arp, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Richard Lee Arellano,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII Opinion by JUDGE PAWAR Johnson and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 16, 2026

Philip J. Weiser, Attorney General, Patrick A. Withers, Assistant Solicitor General and Senior 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 ¶1 Defendant, Richard Lee Arellano, appeals his convictions for

various offenses arising out of an incident in which he stole

numerous items from a Walmart. We affirm.

I. Background

¶2 Arellano and a companion attempted to leave a Walmart

through a fire exit with a shopping cart full of unpaid-for items. A

first loss prevention officer (LPO) confronted them near the exit and

told them to leave the items and come to the office. Arellano

refused and opened his jacket pocket, revealing something metallic

inside.

¶3 At this moment, a second LPO approached. When the second

LPO was about fifteen feet away, Arellano took a gun from his

pocket and pointed it at the second LPO, who backed up and told

Arellano to take the items. Arellano then fled the store, fled from

police, fired his gun at police, and was eventually arrested.

¶4 Arellano was ultimately convicted of two counts of attempted

second degree murder for shooting at two police officers, one count

of attempted reckless manslaughter for shooting at a third police

officer, and felony menacing. He was also convicted of four counts

of aggravated robbery — two for each LPO (the multiple aggravated

1 robbery counts for each victim were based on slightly different

theories). At sentencing, the four aggravated robbery convictions

merged into two, such that Arellano was punished for one

aggravated robbery conviction for each LPO.

¶5 On appeal, Arellano argues that the evidence was insufficient

to support his aggravated robbery convictions as to the second LPO

and that the trial court erred by denying his Batson challenge to a

prospective juror. We disagree with both arguments and affirm.

II. Sufficiency of the Evidence

¶6 We review the sufficiency of the evidence de novo. People v.

Black, 2020 COA 136, ¶ 34. This inquiry requires us to view the

evidence as a whole and in the light most favorable to the

prosecution, giving the prosecution the benefit of all reasonable and

fair inferences from the evidence. Id. Viewing the evidence this

way, it is sufficient if it would support a conclusion by a reasonable

mind that the defendant is guilty of the offense beyond a reasonable

doubt. People v. Donald, 2020 CO 24, ¶ 18.

¶7 Arellano argues that there was insufficient evidence that he

took something from the person or presence of the second LPO — a

required element of both aggravated robbery convictions at issue

2 here. See §§ 18-4-301(1), 18-4-302(1)(b), (d), C.R.S. 2025. We

disagree.

¶8 Property is in a victim’s presence if (1) the victim has the right

to exercise control over the property; and (2) the property is within

the victim’s reach, inspection, or observation such that the victim

would be able to retain control over the property but for the

defendant’s threat of force. People v. Mortenson, 2023 COA 92, ¶ 8.

Arellano concedes, and we agree, that the second LPO had the right

to exercise control over the items in the shopping cart. And the

evidence was more than sufficient to establish that the second LPO

was able to observe the items and would have been able to exercise

control over them had Arellano not pointed a gun at him.

¶9 In his opening brief, Arellano does not dispute that the

evidence showed that when the second LPO approached Arellano

and the items in the shopping cart, Arellano pointed a gun at him.

Arellano also concedes that the second LPO was about fifteen feet

away when Arellano pointed his gun at him. He further concedes

that the second LPO then started stepping backwards and told

Arellano to take the items in the shopping cart.

3 ¶ 10 Viewing this evidence in the light most favorable to the

prosecution, we conclude it was sufficient to establish that the

stolen property was within the second LPO’s observation and he

would have taken it back had Arellano not pointed a gun at him.

¶ 11 We are not persuaded otherwise by Arellano’s reliance on

Mortenson. In that case, the evidence was insufficient to establish

aggravated robbery because the defendant did not successfully take

anything from the alleged victim’s presence — the alleged victim

tackled the defendant before that could happen, thereby retaining

control over the supposedly stolen property. Id. at ¶ 14. Here,

there is no dispute that Arellano left with the stolen property after

threatening the second LPO with a gun.

¶ 12 We therefore reject Arellano’s sufficiency challenge.

III. Batson Challenge

¶ 13 Arellano also argues that the trial court erred by ruling that

the prosecution’s peremptory strike of a Hispanic juror was not

motivated by race. We disagree.

¶ 14 A peremptory strike may not be used to excuse a juror based

on their race. People v. Beauvais, 2017 CO 34, ¶ 20. Batson v.

Kentucky, 476 U.S. 79 (1986), lays out the three-part procedure

4 meant to enforce this rule. First, the objecting party must make a

prima facie showing that the strike is based on the juror’s race.

Batson, 476 U.S. at 96. Second, if the step-one showing is made,

the burden shifts to the striking party to provide a

nondiscriminatory reason for the strike. Id. at 97. Third, if the

step-two reasons are nondiscriminatory, the court must determine

if the objecting party has shown purposeful discrimination by a

preponderance of the evidence. Id. at 98.

¶ 15 Arellano challenges only the trial court’s step-three

determination that he failed to show purposeful discrimination. We

review step-three determinations for clear error. Beauvais, ¶ 22.

This means we give great deference to the trial court’s ruling and

will reverse only if the ruling “find[s] no support in the record.” Id.

at ¶¶ 22, 25. Indeed, reversal of a step-three ruling is proper only

under exceptional circumstances. Id. at ¶ 22.

¶ 16 The juror in question here, Juror M, was a Hispanic man.

After defense counsel alleged that the strike was based on his race,

the prosecution offered three nondiscriminatory reasons for the

strike: (1) Juror M put too much emphasis on body camera footage;

(2) he misapprehended what it means to act after deliberation; and

5 (3) his cell phone went off several times during voir dire, creating

disruptions. The trial court accepted these reasons and found that

Arellano had not proved purposeful discrimination. We perceive no

clear error because there is at least some record support for this

ruling.

¶ 17 First, during voir dire, Juror M said that it would be “tough” to

decide what happened in a case without video evidence, including

bodycam footage, of the incident.

¶ 18 Second, Juror M demonstrated some difficulty with the

concept of acting after deliberation. The prosecutor showed the jury

pool a clip from a movie in which a character is playing a guitar

downstairs at a party. Another character walks down the stairs,

hears the guitar, stops, and then approaches the guitarist and

grabs the guitar. The prosecutor asked jurors, including Juror M,

whether the character who grabbed the guitar did so after

deliberation:

Prosecutor: [D]o you think that [the character] acted in deliberation or do you think it was a spur of the moment type thing?

Juror M: Probably a spur of [the] moment.

Prosecutor: And why do you think that?

6 Juror M: Just the way he came down the stairs and what his body language was.

This exchange at least suggested that Juror M misunderstood the

concept of acting after deliberation.

¶ 19 Third, as for the repeated disruption from Juror M’s cell

phone, the record does not indicate that there was more than one

disruption, or that the single recorded disruption was Juror M’s

phone. But as the prosecution points out, all that is required to

survive clear error review at step three is the absence of affirmative

evidence in the record refuting the plausibility of the

nondiscriminatory reason. People v. Romero, 2024 CO 62, ¶ 54.

And there is nothing in the record here affirmatively refuting this

third nondiscriminatory reason.

¶ 20 We therefore conclude that the record supports the trial

court’s determination that Arellano failed to establish purposeful

discrimination at step three. Accordingly, the court did not clearly

err by denying Arellano’s Batson challenge.

IV. Disposition

¶ 21 The judgment of conviction is affirmed.

JUDGE JOHNSON and JUDGE GOMEZ concur.