23CA1463 Peo v Baca 02-26-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1463 Jefferson County District Court No. 15CR915 Honorable Jeffrey R. Pilkinton, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Pedro Baca,
Defendant-Appellant.
ORDER AFFIRMED
Division II Opinion by JUDGE FOX Kuhn and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 26, 2026
Philip J. Weiser, Attorney General, Cata A. Cuneo, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Rachel C. Funez, Alternate Defense Counsel, Glenwood Springs, Colorado, for Defendant-Appellant ¶1 Defendant, Pedro Baca, appeals the district court’s order
summarily denying his petition for postconviction relief. We affirm.
I. Background
¶2 In September 2014, Baca (then fifty-four years old) was selling
vacuums outside his apartment and asked J.M., an eleven-year-old
girl, to help him move them to a storage closet in the building.
People v. Baca, slip op. at ¶ 2 (Colo. App. No. 16CA1625, Dec. 12,
2019) (not published pursuant to C.A.R. 35(e)). Evidence at trial
established that Baca touched J.M.’s breasts, shoulders, and chest,
grabbed her neck, and pressed or rubbed his groin against her
backside. There was also evidence that Baca later pushed J.M.
onto a curb outside and put his hand between her legs. J.M.
testified that Baca left when J.M.’s friend, V.B., approached.
¶3 J.M.’s mother, R.M., testified that after the incident J.M. was
crying and extremely upset. Eventually, J.M. was calm enough to
relay the incident to R.M., who called the police. When police spoke
to Baca, he admitted he tickled J.M., hugged her from behind, and
touched her neck. At trial, Baca similarly testified that he touched
J.M.’s shoulder, hugged her, and tickled her waist.
1 ¶4 In 2016, Baca was convicted of one count of sexual assault on
a child by application of force, § 18-3-405(1), (2)(a), C.R.S. 2025.
He received an indeterminate sentence of eleven years to life. He
appealed, and a division of this court affirmed his conviction.
People v. Baca, No. 16CA1625, slip op. at ¶ 16. Baca then
unsuccessfully moved for reconsideration of his sentence.
¶5 Baca then filed a pro se petition for postconviction relief under
Crim. P. 35(c), which counsel later supplemented. The
postconviction court denied the petition, as supplemented, without
a hearing. Baca now appeals, arguing that he was entitled to a
hearing on his postconviction claims.
II. Standard of Review
¶6 We review the summary denial of postconviction relief de novo.
People v. Medina, 2019 COA 103M, ¶ 4. We presume the legality of
the judgment and the regularity of the postconviction proceeding.
Id. A defendant seeking postconviction relief under Crim. P. 35(c) is
entitled to a hearing “if he asserts specific facts that, if true, would
provide a basis for relief.” People v. Luong, 2016 COA 13M, ¶ 8. He
is not entitled to a hearing “if the claim raises only an issue of law
or if the allegations, even if true, do not provide a basis for relief.”
2 Id. And a court may summarily deny postconviction relief when the
allegations are “merely conclusory, vague, or lacking in detail.” Id.
(citation omitted).
III. Ineffective Assistance of Counsel
¶7 In his petition for postconviction relief, Baca alleged ineffective
assistance of counsel on several grounds. On appeal, he argues
that the postconviction court erred by denying his claims without a
hearing. We address and reject each argument in turn.
A. Applicable Law
¶8 Criminal defendants have a constitutional right to effective
assistance of counsel. People v. Houser, 2020 COA 128, ¶ 27. To
establish ineffective assistance, a defendant must show that
“(1) counsel’s performance was outside the wide range of
professionally competent assistance and (2) the defendant was
prejudiced by counsel’s substandard legal work.” Id. at ¶ 28 (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)). We apply the
same test to claims of ineffective appellate counsel. Silva v. People,
156 P.3d 1164, 1169 (Colo. 2007).
¶9 The first prong requires a showing “that counsel’s
representation fell below an objective standard of reasonableness.”
3 Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003). However, given the
breadth of reasonable strategic choices, our scrutiny is highly
deferential, and we “indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance.” Id. Under the second prong, the defendant must
establish “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Houser, ¶ 30 (quoting Strickland, 466 U.S. at 694). A
court may summarily deny a postconviction petition alleging
ineffective assistance when “the defendant’s allegations, even if
proven true, would fail to establish either constitutionally deficient
performance or prejudice.” Id. at ¶ 42 (citation omitted).
B. Failure to Present and Investigate DNA Evidence
¶ 10 Baca first contends that the court erred by summarily denying
the claim that his counsel provided ineffective assistance by failing
to pursue possibly exculpatory DNA evidence from the sweatshirt
J.M. wore during the incident. Baca contends that DNA testing
would have shown he touched J.M. only on her shoulders and
waist, not her breasts. He argues that counsel failed to (1) request
4 DNA testing; (2) investigate the case; (3) consult with a DNA expert;
and (4) present expert DNA testimony.
¶ 11 The postconviction court held that counsel’s decision not to
pursue DNA testing was reasonable because (1) the prosecution did
not present DNA evidence, so there was no evidence to rebut; (2)
Baca admitted he touched J.M., so his DNA would likely be on her
clothing; and (3) DNA evidence would not explain the red marks
that J.M.’s mother observed on J.M.’s chest.
¶ 12 We conclude that, even if true, Baca’s allegations do not
provide a basis for relief. Luong, ¶ 8. Even if testing would not
have revealed DNA on the breast area of J.M.’s sweatshirt, defense
counsel could have reasonably concluded that DNA evidence would
not have been exculpatory. First, a lack of DNA would not have
conclusively proved that Baca did not touch J.M.’s breasts. See
Skinner v. Switzer, 562 U.S. 521, 534 (2011) (explaining that DNA
testing would not necessarily be exculpatory where the results
could be inconclusive or incriminating). For example, a detective
involved in the case testified that her understanding was that DNA
evidence from someone touching a surface “would not likely be
definitive or effective on fabrics that are similar to the hoodie.” See
5 People v. Hood, 2024 COA 27, ¶ 27 (discussing expert testimony
that “‘touch DNA’ is left behind when a person touches a surface,
and whether and how much DNA is detected depends on the
texture of the surface, how long the contact was, and whether the
person sheds more DNA than others”).
¶ 13 Baca’s argument that testing would not reveal his DNA on the
breast area of J.M.’s sweatshirt is also speculative. See People v.
Aguilar, 2012 COA 181, ¶ 12 (concluding that a defendant was not
entitled to a hearing on a speculative claim that a DNA expert could
have contradicted certain evidence). For one, Baca admitted to
hugging J.M., so his DNA could have transferred to the breast area
of the sweatshirt even if he did not touch her breasts. See Hood,
¶ 27; People v. Ortega, 2016 COA 148, ¶¶ 32-33 (describing expert
testimony that touch DNA can be transferred from one surface to
another, and “DNA analysis could not conclusively establish how
DNA arrived on a piece of clothing”).
¶ 14 And if testing showed DNA on the breast area of J.M.’s
sweatshirt, such evidence would likely be incriminating. Counsel
could have chosen not to pursue testing for this reason. See
Cummings v. Sirmons, 506 F.3d 1211, 1222 n.2 (10th Cir. 2007)
6 (concluding that counsel performed adequately by not requesting
DNA testing because “[h]ad the DNA testing indicated a link to
Cummings, such evidence would clearly have been damaging”).
Indeed, the record suggests that counsel chose this strategy by
emphasizing the lack of DNA evidence and the fact that police did
not request DNA testing: “So no request was ever done to determine
if there was DNA across this area that [J.M.] described extensive
touching of?” See People v. Wardell, 2020 COA 47, ¶ 29 (ineffective
assistance involves errors “so flagrant that they more likely resulted
from neglect or ignorance rather than from informed professional
deliberation”).
¶ 15 Although Baca suggests that a hearing is necessary to
determine whether his counsel’s choice was reasonable, the record
shows that counsel did not simply forget about DNA evidence but
made a tactical decision not to present it. See People v. Phipps,
2016 COA 190M, ¶ 19 (summary denial of a postconviction motion
is appropriate “if the record directly refutes the defendant’s claims”);
Ardolino, 69 P.3d at 76 (“Strategic choices made after thorough
investigation of the law and facts relevant to plausible options are
virtually unchallengeable . . . .”).
7 ¶ 16 Therefore, we agree with the postconviction court that Baca
failed to allege facts that, if true, would establish that his counsel
performed deficiently by failing to request DNA testing. See Houser,
¶ 42. Moreover, even assuming counsel performed deficiently and
that DNA testing would have yielded the results Baca claims, he
still cannot show a reasonable probability that the result of his trial
would have been different but for counsel’s errors. See id. at ¶ 30.
For example, the absence (or inconclusive nature) of DNA evidence
could have been explained by nonexculpatory causes such as the
fabric’s material or the presence of other DNA on the sweatshirt.
And even without DNA evidence that Baca touched J.M.’s breasts,
the jury heard testimony that he touched her breasts and rubbed
his groin against her backside.
¶ 17 Baca next contends that the postconviction court erred by
overlooking his argument that counsel performed deficiently by
“fail[ing] to sufficiently investigate or even consult with a DNA
expert to find out if the DNA evidence would have been helpful.” As
for the failure to investigate argument, Baca does not articulate
what counsel should have investigated beyond consulting with a
DNA expert, which he frames as a separate argument. His
8 postconviction petition similarly lacked detail on this point. Thus,
this argument was “conclusory, vague, or lacking in detail” and did
not warrant relief. Luong, ¶ 8 (citation omitted); see also People v.
Washington, 2014 COA 41, ¶ 46 (a court’s “failure to make findings
of fact and to state conclusions of law is harmless” if it properly
denies a Crim. P. 35(c) motion).
¶ 18 We also reject Baca’s argument that the postconviction court
erred by not considering his claim that counsel was ineffective for
not consulting with a DNA expert. See Aguilar, ¶ 12 (“[The]
defendant failed to alleged facts establishing that counsel’s choice
[to not call a rebuttal DNA expert] was outside the wide range of
professionally competent assistance.”). We see little difference
between this argument and the argument that counsel should have
requested DNA testing. Consulting with an expert could have
potentially revealed, for example, that the sweatshirt’s material
would make DNA testing difficult or that testing could suggest
where Baca touched J.M. But the consultation could not have
conclusively established that Baca did not touch J.M.’s breasts.
The postconviction court could have reasonably concluded that it
implicitly addressed the expert consultation argument when it
9 determined that counsel’s failure to request DNA testing did not
warrant a hearing. In any case, we may affirm on any basis
supported by the record. People v. Taylor, 2018 COA 175, ¶ 8.
¶ 19 Finally, Baca contends that the court failed to address his
argument about counsel’s failure to present expert testimony that
DNA evidence could have established where J.M. was touched. But
Baca’s petition did not develop this argument; he merely asserted
that “[e]xpert testimony to say the prosecution could have found
physical evidence, if it was there, if they had looked, would have
been very helpful to the defense.” Therefore, had the court
addressed this argument, it would not have warranted a hearing
because it was conclusory and lacked detail. Luong, ¶ 8; see
Washington, ¶ 46.
¶ 20 In sum, we conclude that Baca’s claims regarding the DNA
evidence in his petition for postconviction relief did not raise “facts
that, if true, would provide a basis for relief” such that he was
entitled to a hearing on these claims. Luong, ¶ 8.
C. Failure to Call V.B. as a Witness
¶ 21 Baca next asserts that he was entitled to a hearing on his
claim that his counsel performed deficiently by failing to call V.B. —
10 J.M.’s friend — as a witness. According to Baca, V.B. would have
testified that J.M. never mentioned any sexual touching and that
V.B. did not see J.M. and Baca sitting on the curb. V.B. was
originally subpoenaed to testify, but she was not subpoenaed again
after the trial was continued. Baca argued that, although a
detective testified about V.B.’s statements to police — including that
J.M. did not report sexual touching to V.B. — this was less effective
than V.B.’s direct testimony. The postconviction court disagreed,
concluding that there was no dispute about who witnessed the
crime and that further testimony would have been cumulative and
“could have opened the door to” potentially harmful inconsistencies.
¶ 22 First, as to Baca’s argument that J.M. did not report any
sexual touching to V.B., we agree with the postconviction court that
this testimony would have been cumulative. Detective Faith
Stevens testified that V.B. said J.M. did not mention Baca
“push[ing] his front part into the back of her” and that J.M. “never
told [V.B.] that [Baca] touched [J.M.] on her hips, chest, or bottom
area.” This contradicted J.M.’s testimony that she told V.B. that
Baca touched her chest.
11 ¶ 23 Stevens’ testimony revealed other inconsistencies between
J.M.’s testimony and V.B.’s statements to police. For example,
Stevens testified to V.B.’s statement that J.M. said Baca pushed her
against a wall, grabbed her, and would not let go. But J.M. testified
that she did not remember telling V.B. this. V.B.’s testimony would
have been cumulative of Stevens’ and potentially less persuasive.
See Washington, ¶ 35 (counsel’s failure to present cumulative
evidence was not constitutionally ineffective). Stevens’ testimony
was based on interview notes made days after the incident; V.B.
would have testified from memory about an incident that occurred
two years prior.
¶ 24 Finally, Baca argues that V.B. would have testified that she
saw J.M. running out of the building after the incident, while J.M.
testified that V.B. walked up to her and Baca sitting on the curb.
Baca asserts that V.B.’s testimony that she did not see Baca sitting
on the curb or touching J.M.’s leg would have undermined J.M.’s
credibility. But it was undisputed that V.B. encountered J.M.
shortly after the assault, and we disagree that the different
recollections would have cast so much doubt on J.M.’s credibility as
12 to undermine her testimony about Baca’s sexual touching in the
storage closet.
¶ 25 Additionally, V.B. disclosed other potentially incriminating
information to Stevens. For example, V.B. told Stevens that J.M.
said “she ‘could have been raped’” and generally described J.M.’s
fear and emotion after the incident. V.B. also told Stevens that
Baca once “‘grabbed [V.B.] by the waist’ in an attempt to joke and
scare her.” Stevens did not testify to these statements, and Baca’s
counsel could have reasonably concluded that calling V.B. as a
witness risked revealing potentially harmful evidence. See People v.
Bergerud, 223 P.3d 686, 704 (Colo. 2010) (“The decision not to call
a particular witness is typically a question of trial strategy that
reviewing courts are ill-suited to second-guess.” (quoting Greiner v.
Wells, 417 F. 3d 305, 323 (2d Cir. 2005))).
¶ 26 Because Baca failed to allege facts establishing that counsel’s
failure to call V.B. was deficient performance, he was not entitled to
a hearing on this claim. See Houser, ¶¶ 28, 42.
D. Failure to Call Baca’s Family Members as Witnesses
¶ 27 Baca next contends that the postconviction court erred by
summarily denying his claim that defense counsel acted
13 unreasonably by failing to call certain members of his family as
witnesses. He argues that they could have testified that he had a
reputation for helpfulness and had shown nonsexual affection
toward other children. The court held that this evidence would
have been cumulative of R.M.’s testimony that Baca had been
helpful and that she “considered him to be a nice guy.” We agree,
and we also agree with the court’s reasoning that Baca’s “reputation
for helpfulness does not render him incapable of sexual assault.”
¶ 28 Baca also argues that counsel should have called his sister,
M.B., as a witness. On the day of the incident, M.B. apparently
called her mother to say she was picking Baca up and arrived at
Baca’s apartment approximately ten minutes later but saw no one
outside. Baca contends that this testimony would have established
a timeline, “leaving very little time for Baca to assault J.M.” But his
petition did not indicate when the phone call occurred, when M.B.
arrived, or how that timeline related to the assault. So this
argument was conclusory and lacked supporting detail. Luong, ¶ 8.
¶ 29 Overall, Baca failed to allege facts that, if true, would establish
that counsel was ineffective for failing to call his family members as
14 witnesses. See Houser, ¶¶ 28, 42. Having so concluded, we need
not address the claimed prejudice. Id. at ¶¶ 28, 30.
E. Failure to Object to Violations of a Sequestration Order
¶ 30 Baca next argues that he was entitled to a hearing on his
claim that counsel failed to object to violations of a witness
sequestration order. He submitted several statements from people
who alleged that witnesses were sitting together and speaking in the
courtroom. The postconviction court explained that “[n]either the
parties, counsel, nor the court saw a violation of the sequestration
order.”
¶ 31 Although Baca contends that the court improperly relied on its
own recollection, his petition admitted that “[d]efense counsel . . .
state[d] that if she would have known of any violation of the
sequestration order, she would have brought it to the court’s
attention.” Baca has not alleged any facts to suggest that counsel
knew of any such violation. See Dever v. Kan. State Penitentiary, 36
F.3d 1531, 1538 (10th Cir. 1994) (counsel is not ineffective for not
objecting to something which she had no knowledge of). Further,
none of the statements alleging a violation of the sequestration
order described the contents of the conversations between the
15 sequestered witnesses. So Baca has not alleged any facts
suggesting he was prejudiced. See Houser, ¶¶ 28, 30. And his
allegation that R.M. was “coaching” J.M. is speculative and
conclusory. See Luong, ¶ 8.
F. Failure to Challenge Sufficiency
¶ 32 Baca argues that his trial and appellate counsel were
ineffective for failing to challenge the sufficiency of the evidence
presented. At trial, defense counsel moved for a judgment of
acquittal based on a lack of corroborating evidence and
inconsistencies in the testimony. Baca’s direct appeal did not raise
a sufficiency argument and instead argued that the district court
erred by failing to give a special unanimity jury instruction. Baca,
No. 16CA1625, slip op. at ¶¶ 6-12. He also argued that a clerical
mistake in the mittimus warranted correction. Id. at ¶ 13.
¶ 33 In his Crim. P. 35(c) petition, Baca contended that his trial
and appellate counsel performed deficiently by failing to argue that
the prosecution did not prove all the elements of the charged crime
beyond a reasonable doubt. At trial, the prosecution had to prove
that Baca “applie[d] force against the victim in order to accomplish
or facilitate sexual contact.” § 18-3-405(2)(a). Sexual contact is
16 “[t]he knowing touching of the victim’s intimate parts . . . or the
knowing touching of the clothing covering the immediate area of the
victim’s or actor’s intimate parts if that sexual contact is for the
purposes of sexual arousal, gratification, or abuse.” § 18-3-401(4)(a),
C.R.S. 2025 (emphasis added). Baca contends that the prosecution
did not prove the sexual purpose element of sexual contact. He
argues that trial and appellate counsel were ineffective for not
raising this argument and that the postconviction court erred by
summarily denying this contention.
¶ 34 Baca’s petition argued that there was insufficient evidence of
sexual purpose because there was no evidence that he made sexual
statements or sounds, nor did he tell J.M. not to discuss what
happened or try to prevent her from speaking to friends or family.
He relied on People in Interest of J.O., 2022 COA 65M, ¶¶ 1-2, which
considered whether evidence was sufficient to conclude that a
juvenile acted with a sexual purpose. The division held that
juveniles (there, an eleven-year-old) can act with a sexual purpose,
but evidence beyond the sexual contact itself is required. Id. at
¶ 29. Such evidence could include “removing clothing, heavy
breathing, placing the victim’s hand on the accused’s genitals, an
17 erection, other observable signs of arousal, the relationship of the
parties, sexually explicit comments, coercing or deceiving the victim
to obtain cooperation, attempting to avoid detection, or instructing
the victim not to disclose the occurrence.” Id.
¶ 35 In rejecting Baca’s argument, the postconviction court
distinguished the eleven-year-old defendant in J.O. from the adult
Baca and cited the division’s conclusion that “[i]t may not — and
often will not — be appropriate for a fact finder to ascribe the same
intent to a juvenile’s act that one could reasonably ascribe to the
same act if performed by an adult.” Id. at ¶ 28. We agree. Not only
is J.O. distinguishable on this basis, but it was also decided after
Baca’s trial and direct appeal. See Houser, ¶ 33 (“[A] lawyer does
not perform deficiently by ‘failing to raise novel arguments that are
unsupported by then-existing precedent.’” (citation omitted)).
¶ 36 Moreover, while J.O. was decided after Baca’s trial and direct
appeal, we do not see why he could not have argued in his direct
appeal that his trial counsel was ineffective for failing to argue
insufficient evidence of a sexual purpose. See Crim. P. 35(c)(3)(VII)
(prohibiting most arguments that could have been brought on direct
appeal). J.O. was not the first case to consider a sufficiency
18 challenge to the sexual purpose element of sexual contact. E.g.,
People v. West, 724 P.2d 623, 627-28, 630 (Colo. 1986).
¶ 37 But even assuming Baca properly presented the argument
that his trial counsel performed deficiently, there was
circumstantial evidence of a sexual purpose. See J.O., ¶ 20 (Intent
is often “inferred from the nature of and the circumstances
surrounding the sexual touching.”). For example, there was
evidence that most of the sexual touching (including Baca rubbing
his groin against J.M.) occurred in private. See id. at ¶ 29 (attempt
to avoid detection may be evidence of a sexual purpose). Baca also
told police he believed they were contacting him “in reference to
touching or harassing somebody” named J.M.
¶ 38 And, as discussed, evidence of sexual intent is not the same
for adults and juveniles. Id. at ¶¶ 25, 28. For example, in West,
witnesses testified that an adult defendant put his hands over the
part of a child victim’s clothing that covered “his intimate parts,”
and the touching “appeared to be deliberate and not accidental.”
724 P.2d at 631. The supreme court rejected an argument that this
was insufficient “to establish that the touching was for the purpose
of sexual arousal, gratification, or abuse.” Id. at 630. Here, there
19 was evidence from which the jury could have inferred that Baca
touched J.M.’s breasts and rubbed his groin against her for a
sexual purpose.
¶ 39 Therefore, Baca failed to establish that his intent argument
was “clearly stronger than those presented” at trial and on appeal
such that “the presumption of effective assistance of counsel [may]
be overcome.” People v. Huggins, 2019 COA 116, ¶ 48 (citation
omitted). Accordingly, the postconviction court properly denied this
portion of Baca’s petition without a hearing. See Luong, ¶ 8.
IV. The Postconviction Court’s Failure to Address Arguments
¶ 40 Baca next asserts that the postconviction court erred by not
addressing several of his arguments, including that trial counsel
failed to (1) properly investigate; (2) consult a DNA expert and
present expert testimony; (3) present a recorded 911 call that did
not disclose sexual touching; and (4) present a hospital examination
report from the night of the incident, which did not mention marks
on J.M.’s neck or sexual touching.
¶ 41 Although a court must enter findings of fact and conclusions
of law when denying a Crim. P. 35(c) motion, failure to do so is
harmless if the court properly denies relief. Washington, ¶ 46.
20 Because the postconviction court properly denied Baca’s motion, its
failure to address some of his arguments was harmless.
¶ 42 We addressed Baca’s arguments about the DNA evidence
supra Part III.B. Regarding Baca’s argument about counsel’s failure
to investigate the case, he cited a portion of his pro se petition that
described certain evidence presented at trial, but he did not discuss
counsel’s failure to investigate with any particular detail beyond
stating that counsel failed to “call critical witnesses, present
exculpatory evidence, and otherwise challenge the prosecution’s
case-in-chief.” This argument is vague and unsupported, and it
overlaps with several of Baca’s other arguments. So even if the
court should have addressed this argument, Baca was not entitled
to a hearing. See id.; Taylor, ¶ 8.
¶ 43 Similarly, because Baca’s arguments about the 911 call and
the hospital report would not have entitled him to a hearing, we
conclude that any error in the postconviction court’s failure to
address them was harmless. See Washington, ¶ 46. First, we agree
with the State that the 911 call would have been cumulative of
evidence from R.M. and the 911 operator, who both testified that
R.M. did not report sexual touching in the 911 call. See id. at ¶ 35
21 (counsel is not constitutionally ineffective for failing to obtain and
present cumulative evidence). Similarly, the hospital report would
have been cumulative of evidence that J.M. did not initially report
sexual touching and of an officer’s testimony that he did not
observe any injuries or visible marks on J.M. after the assault.
¶ 44 Moreover, defense counsel moved to suppress evidence of
J.M.’s hospital visit, arguing that it was cumulative and prejudicial.
The district court agreed, explaining that it could create unfair
sympathy and confuse the issues. It seems that counsel
strategically chose not to introduce evidence of the hospital visit,
including the examination report, to avoid potential prejudice. See
Ardolino, 69 P.3d at 76 (Counsel’s informed strategic choices “are
virtually unchallengeable.”). Thus, any error in failing to address
Baca’s argument regarding the hospital report was harmless.
V. Proportionality
¶ 45 Lastly, we consider and reject Baca’s argument that his
sentence was unconstitutionally disproportionate.
22 A. Standard of Review and Applicable Law
¶ 46 Whether a sentence is unconstitutionally disproportionate is a
question of law that we review de novo. Wells-Yates v. People, 2019
CO 90M, ¶ 35. The Eighth Amendment prohibits sentences that
are grossly disproportionate to the severity of the crime committed.
People v. Duran, 2025 COA 34, ¶ 27. But strict proportionality is
not required; the Constitution prohibits “only extreme sentences
that are grossly disproportionate to the crime.” Id. Our supreme
court has explained that sentences in noncapital cases are rarely
grossly disproportionate. Rutter v. People, 2015 CO 71, ¶ 16.
¶ 47 Under Colorado’s “abbreviated proportionality review,” we first
“compare[] the gravity and seriousness of the offense with the
harshness of the penalty.” Duran, ¶ 28. However, if a crime is per
se gave and serious for proportionality purposes, we do not address
gravity or seriousness and begin with the penalty’s harshness. Id.
at ¶ 30. If the abbreviated review “gives rise to an inference of gross
disproportionality,” we conduct an extended review. Id. at ¶ 28.
¶ 48 When considering a penalty’s harshness, we give considerable
deference to the legislature’s sentencing scheme. Id. at ¶ 31; People
v. Oglethorpe, 87 P.3d 129, 135 (Colo. App. 2003). To assess
23 harshness, we consider “the sentence’s length and the defendant’s
parole eligibility.” Duran, ¶ 31.
B. Application
¶ 49 Because sexual assault on a child is a per se grave and
serious offense,1 People v. Strean, 74 P.3d 387, 396 (Colo. App.
2002), we begin by considering the harshness of Baca’s sentence.
Duran, ¶ 30. Our analysis continues only if there is an inference of
gross disproportionality. Duran, ¶ 28.
¶ 50 Sexual assault on a child by application of force is a class 3
felony. § 18-3-405(1), (2)(a). As mentioned, Baca received an
indeterminate sentence of eleven years to life. See Chavez v. People,
2015 CO 62, ¶ 11 (explaining the indeterminate sentencing scheme
for sex offenders); § 18-1.3-1004(1), C.R.S. 2025. The presumptive
sentencing range for class 3 felonies is a minimum of four years
and a maximum of twelve years. § 18-1.3-401(1)(a)(V)(A), C.R.S.
2025. However, the “force” component of Baca’s conviction elevated
it to a crime of violence. See § 18-3-405(3); § 18-1.3-406, C.R.S.
2025. Sex offenses that constitute crimes of violence are subject to
1 Baca does not appear to dispute that sexual assault on a child is a
per se grave and serious offense.
24 an indeterminate sentencing range of “at least the midpoint in the
presumptive range . . . and a maximum of the sex offender’s natural
life.” § 18-1.3-1004(1)(b).
¶ 51 “[A] court imposing an indeterminate sentence will arrive at a
sentence of some minimum number of years to life.” Chavez, ¶ 11.
For a sex offense that is also a crime of violence, a court must
“impose[] an indeterminate sentence with a maximum term of the
offender’s natural life, but the crime-of-violence enhancement
boosts the minimum term.” Id. at ¶ 15. Considering a sex offense
that was a class 3 felony and a crime of violence, the Chavez court
concluded that the indeterminate sentence’s minimum range was
between eight and twenty-four years. Id. at ¶ 23; see People v.
Hunsaker, 2013 COA 5, ¶ 39 (“[T]he bottom end of an indeterminate
sentence for a sex offense that is also a crime of violence is . . .
between the midpoint in, and twice the maximum of, the
presumptive range for the applicable felony class.”), aff’d, 2015 CO
46.
¶ 52 The same ranges apply here, so the court “was required to
sentence [Baca] to a minimum term of between eight and twenty-
four years and a maximum term of his life.” Chavez, ¶¶ 2, 23.
25 Baca primarily argues that his sentence was disproportionate
because his maximum possible sentence is the remainder of his life.
But because his sentence is indeterminate, he is eligible for parole
(subject to the parole board’s discretion) after serving the minimum
range (eleven years) less credit for time served (144 days). See
Godinez v. Williams, 2024 CO 14, ¶ 24 (citing § 18-1.3-1006(1)(a),
C.R.S. 2025). This undermines Baca’s argument that he received a
life sentence. See Wells-Yates, ¶ 14 (Parole eligibility can “render
the penalty less harsh.”).
¶ 53 Our supreme court has also repeatedly explained that the
statutory scheme mandates a maximum indeterminate sentence of
“the sex offender’s natural life.” E.g., Godinez, ¶ 24; Chavez, ¶ 11.
And Colorado courts have repeatedly rejected constitutional
challenges to this indeterminate sentencing scheme. E.g., People v.
White, 656 P.2d 690, 695 (Colo. 1983) (holding that indeterminate
sentencing for sex offenders is not unconstitutional); Oglethorpe, 87
P.3d at 135 (rejecting a proportionality challenge to a potential life
sentence imposed via indeterminate sentencing); People v. Dash,
104 P.3d 286, 288, 293 (Colo. App. 2004) (rejecting an Eighth
Amendment challenge to an indeterminate sentence of five years to
26 life). We therefore conclude that the postconviction court did not
err by rejecting Baca’s argument that the maximum range of his
indeterminate sentence was grossly disproportionate.
¶ 54 To the extent that Baca challenges the eleven-year minimum
range of his indeterminate sentence, we similarly reject his
arguments. It is extremely rare “for a sentence to be deemed so
extreme that it is grossly disproportionate.” Wells-Yates, ¶ 5. The
postconviction court explained that Baca’s sentence was on the
lower end of the presumptive minimum range and was “a significant
sentence reflective of a significant crime.” “[I]f a crime is grave or
serious, and so long as the penalty is within the statutory range,
the sentence is nearly impervious to attack.” People v. Kennedy,
2023 COA 83M, ¶ 15, aff’d, 2025 CO 63. Because Baca’s sentence
“fell within the presumptive range[,] . . . the sentence is not grossly
disproportionate.” People v. Thomeczek, 284 P.3d 110, 117-18
(Colo. App. 2011) (affirming a twelve-year sentence with a
presumptive range of four to twelve years); see also People v. Hall,
87 P.3d 210, 212 (Colo. App. 2003) (affirming an eight-year
sentence with a presumptive range of two to eight years).
27 ¶ 55 In sum, the harshness of Baca’s sentence did not give rise to
an inference of gross proportionality, and the postconviction court
properly denied Baca’s request for a hearing on his proportionality
claim. See Duran, ¶¶ 28, 30; see also Luong, ¶ 8 (summary denial
is appropriate for issues of law).
VI. Disposition
¶ 56 The postconviction court’s order is affirmed.
JUDGE KUHN and JUDGE SULLIVAN concur.