Peo v. Gonzales

• Court: Colorado Court of Appeals
• Decided: March 19, 2026
• Docket: 23CA1617
• Status: Unpublished

Opinion

23CA1617 Peo v Gonzales 03-19-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1617 Pueblo County District Court No. 23CR14 Honorable William Alexander, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

John Lee Gonzales,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV Opinion by JUDGE JOHNSON Harris and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 19, 2026

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Daniel J. Sequeira, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, John Lee Gonzales (Gonzales), appeals his

judgment of conviction entered on a jury verdict finding him guilty

of driving while ability impaired (DWAI) – fourth or subsequent

offense. Gonzales asserts that the district court erred by (1)

denying his motion to bifurcate; (2) admitting improper evidence

under CRE 404(b); (3) allowing improper expert testimony; (4)

denying his motion to suppress; (5) admitting blood sample

evidence without an established proper chain of custody; and (6)

allowing the prosecutor to engage in misconduct. He also contends

that the alleged errors cumulatively require reversal.

¶2 We disagree and, therefore, affirm the judgment.

I. Background

¶3 The prosecutor presented the following evidence upon which

the jury found Gonzales guilty.

¶4 A police officer observed Gonzales drifting within his lane while

driving a car with unlit license plate lights. The officer initiated a

traffic stop. While speaking with Gonzales, who was alone in the

car, the officer noticed a “moderate odor of an unknown alcoholic

beverage coming from the vehicle.” The officer also observed that

Gonzales had “watery” eyes and a “blank stare,” and that his

1 “speech was raspy and a bit disjointed.” Gonzales mentioned to the

officer that he had “had a few beers” with a friend.

¶5 Because the officer had concerns about Gonzales’s ability to

operate the car, he asked Gonzales to perform standard field

sobriety tests. Gonzales’s performance during the tests led the

officer to determine that he was incapable of operating the vehicle

safely. The officer then arrested Gonzales.

¶6 Another officer then conducted a drug recognition evaluation

(DRE) of Gonzales. And an “ultraviolet test” performed on

Gonzales’s tongue by this officer indicated potential recent cannabis

use. Gonzales’s performance during the DRE led the second officer

to conclude that Gonzales was incapable of safely operating the car

due to the combined influence of cannabis and alcohol.

¶7 Gonzales took a blood test approximately three hours after the

traffic stop, the results of which were admitted into evidence and

discussed during trial.

¶8 Gonzales was charged with driving under the influence (DUI) –

fourth or subsequent offense (felony DUI). The jury found him

guilty of the lesser included offense of DWAI – fourth or subsequent

2 offense. The district court sentenced Gonzales to two years in the

custody of the Department of Corrections.

II. Motion to Bifurcate

¶9 Gonzales argues the district court erred by denying his motion

to bifurcate, which requested a separate trial on the prior

convictions element of DUI or DWAI. We disagree.

A. Standard of Review and Applicable Law

¶ 10 We review a ruling on a motion to bifurcate for an abuse of

discretion. See People v. Harris, 2016 COA 159, ¶ 74. But whether

a court has the authority to bifurcate a trial from other elements of

the offense is a question of law that we review de novo. People v.

Kembel, 2023 CO 5, ¶ 24.

B. Analysis

¶ 11 At trial, Gonzales sought to bifurcate the prior convictions

element from the remainder of the felony DUI elements. The district

court denied the request, finding that the law was clear on this

point based on Kembel. In that case, the supreme court held that a

district court “may not bifurcate the elements of the offense of

felony DUI (or of any offense) during a jury trial” because Crim. P.

14 allows for the severance of counts or defendants, but “it does not

3 authorize the bifurcation of elements of an individual offense

charged.” Id. at ¶¶ 38, 57. Instead, Kembel indicated that a jury

must be instructed that the evidence presented may only be

considered for the “limited purpose of determining whether the

[prosecution has] proved beyond a reasonable doubt each prior

conviction included in the element of prior convictions and may not

be considered for any other reason.” Id. at ¶ 52. Although Kembel

acknowledged that there was a risk of prejudice in allowing the jury

to hear evidence of a defendant’s prior convictions during a felony

DUI/DWAI trial, any prejudice was not unfair because the evidence

is “always relevant and admissible” if the prior convictions are an

element of the substantive offense charged. Id. at ¶ 54.

¶ 12 Gonzales argues that our supreme court’s decision in Kembel

is no longer binding in light of the U.S. Supreme Court’s decision in

Erlinger v. United States, 602 U.S. 821 (2024). We disagree for three

reasons.

¶ 13 First, Erlinger was not decided until after Gonzales’s trial, so

even assuming there was merit to this contention, the district court

properly relied on Kembel at the time of trial.

4 ¶ 14 Second, Erlinger is inapposite to this situation. The language

Gonzales relies on from Erlinger recognizes that proof of prior

convictions can be bifurcated from the substantive offense, but this

observation has no relevance to Kembel’s holding that prohibits

bifurcation of the prior convictions in the DUI/DWAI context when

the prior convictions are elements of the offense.

¶ 15 At issue in Erlinger was whether the defendant was entitled to

have a jury determine whether his prior offenses were committed on

separate occasions under the Armed Career Criminal Act (ACCA).

Id. at 834-35, 840. For enhanced sentencing under the ACCA to

apply, the defendant’s predicate offenses that included “violent

felon[ies]” or “serious drug offense[s]” had to be “committed on

occasions different from one another,” which the Supreme Court

held was a fact-laden inquiry. Id. at 834 (quoting 18 U.S.C.

§ 924(e)(1)). Those predicate offenses, however, were not elements

of the underlying substantive offense. Therefore, the ACCA is

different from Colorado’s DUI/DWAI statutory scheme.

¶ 16 Finally, without “some clear indication” that Kembel has been

overruled, we are bound by supreme court precedent. Silver v. Colo.

Cas. Ins. Co., 219 P.3d 324, 330 (Colo. App. 2009) (noting that the

5 court of appeals is not at liberty to disregard a rule announced in a

supreme court case without “some clear indication” that the case

has been overruled). Thus, even assuming Erlinger’s language on

bifurcation was more than dicta, if supreme court precedent “has

direct application in a case, yet appears to rest on reasons rejected

in some other line of decisions,” the court of appeals should apply

“the case which directly controls,” leaving the supreme court with

“the prerogative of overruling its own decisions.” People v.

Denhartog, 2019 COA 23, ¶ 78 (quoting Rodriguez de Quijas v.

Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)). This means

we must follow Kembel, as it is the most direct case on point, and

leave it to the supreme court to overrule its own precedent.

¶ 17 Thus, the district court did not err when it denied Gonzales’s

motion to bifurcate.

III. Evidentiary Rulings

¶ 18 Gonzales claims the district court erred by admitting irrelevant

and prejudicial evidence in violation of CRE 404(b) — specifically,

(1) portions of Gonzales’s driving record and prior conviction

exhibits and (2) expert testimony about “past cocaine use.” As to

the first issue, we agree that the court erred, but we conclude that

6 the error was harmless. As to the second issue, we assume without

deciding that there was error but conclude that it too was harmless.

A. Additional Facts

¶ 19 Gonzales objected on hearsay grounds to the admission of his

certified driving record and records of his prior DWAI convictions,

which comprised three separate trial exhibits. The district court

overruled the hearsay objection but instructed the prosecutor to

redact all of the “collateral” information about Gonzales’s prior

probation revocations from the exhibits, reiterating, “You’ve got the

record of conviction. That’s all.” The prosecutor said he would

redact the information over the lunch break and provide the

exhibits to the court.

¶ 20 From our review of the record, it appears that the three

exhibits were not properly redacted, as the documents still

contained information about Gonzales’s prior DUI charges that did

not result in convictions and a probation revocation. At the end of

the trial, the district court included a jury instruction informing the

jurors that prior conviction evidence may not be considered “as

evidence that the defendant [was] more or less likely to have

committed the charged offense or any lesser offenses.”

7 ¶ 21 The jury submitted a question during deliberations about the

exhibits, asking “what about the defense attorney[’]s argument

involving the trial exhibits” since the jury was provided the “entire

document.”

¶ 22 Gonzales also objected to expert testimony about the presence

of benzoylecgonine, a metabolite of cocaine, in his blood test, which

the expert opined indicated past cocaine use. The district court

ultimately overruled the objection, allowing the expert to testify that

the presence of the metabolite indicated “past cocaine use.”

B. Standard of Review and Applicable Law

¶ 23 We review a district court’s evidentiary rulings “for an abuse of

discretion.” Rojas v. People, 2022 CO 8, ¶ 16. A court abuses its

discretion where “its ruling is ‘manifestly arbitrary, unreasonable,

or unfair,’ or where it is based on an erroneous view of the law.”

People v. Elmarr, 2015 CO 53, ¶ 20 (quoting People v. Stewart, 55

P.3d 107, 122 (Colo. 2002)).

¶ 24 Preserved evidentiary errors are reviewed for harmless error.

See People v. Quillen, 2023 COA 22M, ¶ 14. Under this standard,

error requires reversal unless it has been shown “that there is ‘no

reasonable possibility that [the error] contributed to the defendant’s

8 conviction.’” People v. Vigil, 2024 COA 72, ¶ 20 (quoting People v.

Baker, 2019 COA 165, ¶ 13).

¶ 25 Evidence of other crimes or bad acts is not admissible to prove

a person’s character in order to show that on a particular occasion

the person acted in conformity with the character. CRE 404(b)(1).

However, such evidence of other acts or crimes suggestive of bad

character is admissible if (1) it is logically relevant, (2) to a material

fact, (3) independent of the prohibited inference of the defendant’s

bad character, and (4) its probative value is not substantially

outweighed by the risk of unfair prejudice. Rojas, ¶ 28.

C. Analysis

1. Driving Record and Prior Convictions Evidence

¶ 26 The Attorney General does not fully concede that the court

erred by inadvertently allowing the jury to review the unredacted

driving records but does acknowledge that the prosecutor agreed he

would redact the documents and apparently did not. Even so, the

Attorney General contends that the prosecutor did not engage in

bad faith and, thus, Gonzales’s conviction should not be reversed.

And the Attorney General contends that this issue is not preserved

because Gonzales is objecting on different grounds on appeal than

9 he relied on below. Even assuming the district court erred by

allowing the jury to view the unredacted exhibits, any error was

harmless for three reasons.

¶ 27 First, this case is similar to People v. Schlehuber, 2025 COA

50, ¶¶ 50-52, in which a division of this court determined that

extraneous information admitted into evidence at the defendant’s

felony DUI trial — the defendant’s prior charged but dismissed

offenses, probation violations, and comments that although the

defendant had been provided many “rehabilitative efforts,” he

appeared to be unable to “adopt a more conventional lifestyle and

avoid legal conflicts” — was error, but harmless. The division

determined, as relevant here, that the jury had heard testimony

“that [the defendant] had a history of alcohol-related convictions,”

which was at least as prejudicial as the challenged documentary

evidence, and the jury was properly instructed on how it could use

the prior convictions evidence. Id. at ¶¶ 52, 54; see also People v.

Carian, 2017 COA 106, ¶ 44 (determining that prior drug offense

likely had minimal impact on the jury when the jury was already

aware of evidence that the defendant had issues with drugs).

10 ¶ 28 Like in Schlehuber, the jury heard about Gonzales’s three prior

DWAI convictions, rendering the information about his prior DUI

charges that did not result in convictions less prejudicial. And the

jury was properly instructed that it could use the three exhibits

solely to determine whether the prosecution had proved beyond a

reasonable doubt that Gonzales had three or more qualifying

convictions. See Schlehuber, ¶ 54.

¶ 29 Second, the prosecutor did not mention in his closing

argument the improper evidence about Gonzales’s prior probation

revocation or charged DUIs that did not result in convictions.

¶ 30 And finally, Gonzales makes no argument as to how there was

a reasonable possibility the extraneous information contributed to

his conviction. He argues that because there was error, it is

reversible; but the introduction of improper criminal history

evidence does not by itself necessarily require reversal if that error

did not prejudice the defendant.

¶ 31 Therefore, we conclude that the error was harmless because

there is no reasonable possibility that the admission of the

improper evidence in the partially redacted exhibits contributed to

Gonzales’s conviction. See Vigil, ¶ 20.

11 2. Evidence of Prior Cocaine Use

¶ 32 The prosecution’s expert testified that four drugs were present

in Gonzales’s blood test, one of which was benzoylecgonine, a

cocaine metabolite indicating prior cocaine use. Gonzales contends

that this testimony was improperly admitted under CRE 404(b).

¶ 33 Even assuming the court erred by allowing this testimony, it

was harmless. The evidence against Gonzales that he was driving

while under the influence of alcohol or drugs was strong: The officer

testified that he observed indicia of Gonzales’s intoxication;

Gonzales failed the field sobriety tests twice; four drugs — one of

which was methamphetamine suggesting more recent drug use —

were present in his blood; Gonzales had alcohol containers in his

car; and he admitted to drinking and taking drugs. Given that the

expert’s testimony amounted to one brief sentence, and the expert

testified more thoroughly that the benzoylecgonine indicated only

past cocaine use because the metabolite was not active in

Gonzales’s central nervous system, we cannot say that based on the

other properly admitted evidence, there was a reasonable possibility

that this error contributed to Gonzales’s conviction. See Vigil, ¶ 20.

12 IV. Expert Testimony

¶ 34 Gonzales argues the district court erred by admitting expert

testimony relating to the effects of cocaine and methamphetamine

use. We disagree.

¶ 35 As discussed, the prosecutor’s drug expert testified that

Gonzales had benzoylecgonine present in his blood. The expert also

testified that methamphetamine and amphetamine, a metabolite of

methamphetamine, were found at detectable levels in Gonzales’s

blood, and he testified about the impairing effects of the drug,

including during the withdrawal phase. In response to the

prosecutor’s questions, the expert explained that cocaethylene is

another metabolite of cocaine. Neither cocaine nor cocaethylene

was detected in Gonzales’s blood sample.

¶ 36 We review the admission of expert testimony “for an abuse of

discretion and will reverse only when that decision is manifestly

erroneous.” People v. Cooper, 2021 CO 69, ¶ 44 (quoting People v.

Rector, 248 P.3d 1196, 1200 (Colo. 2011)).

13 ¶ 37 When determining whether expert testimony is admissible

under CRE 702, district courts employ “a Shreck analysis, which

requires that: (1) the scientific principles underlying the testimony

are reasonably reliable; (2) the expert is qualified to opine on such

matters; (3) the expert testimony will be helpful to the jury; and (4)

the evidence satisfies CRE 403.” Rector, 248 P.3d at 1200; People v.

Shreck, 22 P.3d 68 (Colo. 2001). To satisfy CRE 403, the probative

value of the expert testimony must not be substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or

misleading the jury.

¶ 38 Gonzales claims that the probative value of the expert’s

testimony was outweighed by the danger of unfair prejudice,

misleading the jury, and confusing the issues in violation of CRE

403. He argues that the jury heard significant, prejudicial evidence

about methamphetamine and cocaine despite (1) a lack of evidence

that Gonzales was under the influence of those substances at the

time he was operating the vehicle and (2) the officers’ testimony that

their concerns were alcohol and cannabis. We disagree for two

14 ¶ 39 First, the evidence was relevant to explain that the

methamphetamine may have impaired his driving, and the expert

mitigated any prejudice by explaining that the inactive metabolites

did not affect the central nervous system. The fact that the officers

may have been unaware of these other substances does not make

the results of the blood test irrelevant. And while the expert did not

opine on whether the amounts of the drugs found in Gonzales’s

blood would have caused impairment, she testified that combining

drugs increases the likelihood of possible impairment during even

the withdrawal period. In short, this testimony helped the jury

understand and contextualize relevant evidence of what substances

were present in Gonzales’s system based on the blood test.

¶ 40 Second, while this evidence was prejudicial, it was not unfairly

so. See Kembel, ¶ 53 (the fact that evidence is prejudicial does not

render it inadmissible; only unfairly prejudicial evidence is

inadmissible). Unfair prejudice is not “prejudice that results from

the legitimate probative force of the evidence.” People v. Gibbens,

905 P.2d 604, 608 (Colo. 1995). Again, the expert made clear that

she did not know whether Gonzales was impaired at the time he

15 was driving, testifying only about the general effects that might

occur if such substances were present in a person’s blood.

¶ 41 Thus, the district court did not err in allowing the expert

testimony.

V. Motion to Suppress

¶ 42 Gonzales asserts the district court erred by denying his motion

to suppress because (1) it misapplied the law regarding reasonable

suspicion and (2) there was not an objectively reasonable basis for

the traffic stop. We disagree.

¶ 43 Gonzales filed a motion to suppress evidence obtained during

the traffic stop, which the district court denied in an oral ruling.

After reviewing body worn camera footage and hearing testimony,

the court recounted the facts leading up to the stop — that

Gonzales’s license plate lights were not working and that his car

was swerving in its lane — finding that the officer had reasonable

suspicion to “conduct a traffic stop.” The district court also found,

based on its review of the footage and the officers’ testimony about

Gonzales’s behavior, that there was probable cause to arrest him for

DUI.

16 B. Standard of Review and Applicable Law

¶ 44 When reviewing a ruling on a motion to suppress, we “defer to

a trial court’s findings of fact if they are supported by competent

evidence in the record.” People v. Campbell, 2018 COA 5, ¶ 9 (citing

People v. King, 16 P.3d 807, 812 (Colo. 2001)). Questions of law are

reviewed de novo. People v. Minor, 222 P.3d 952, 955 (Colo. 2010).

¶ 45 An officer “with ‘an objectively reasonable basis to believe that

a driver has committed a traffic offense’ is justified in making a

stop.” People v. Chavez-Barragan, 2016 CO 16, ¶ 11 (quoting

People v. Vaughn, 2014 CO 71, ¶ 11).

¶ 46 When deciding whether a lawful traffic stop was unreasonably

extended, we must “consider[] the facts and circumstances that

gave rise to the initial stop plus any additional information learned

by the officer before issuing a warning or citation.” People v.

Gamboa-Jimenez, 2022 COA 10, ¶ 39 (quoting People v. Cervantes-

Arredondo, 17 P.3d 141, 148 (Colo. 2001)).

1. Reasonable Suspicion

¶ 47 The district court did not misapply the law relating to

reasonable suspicion.

17 ¶ 48 The record supports the court’s conclusion that the officer had

reasonable suspicion to initiate a traffic stop. The officer testified

that Gonzales was weaving within the boundary of his lane and that

his license plate lights were unlit, a traffic infraction. See § 42-4-

206(3), C.R.S. 2025. The district court also relied on the dashcam

video and made findings that the license plate was not lit. And we

must defer to the court’s finding that the officer’s testimony was

credible. See People v. Griffiths, 251 P.3d 462, 465 (Colo. App.

2010) (“We do not reweigh the evidence or assess witnesses’

credibility on appeal because the jury is the sole judge of witness

credibility.”).

¶ 49 As other divisions of this court have held, a traffic infraction —

even a minor one — may constitute reasonable suspicion for an

officer to pull over a vehicle. See Chavez-Barragan, 2016 CO 16,

¶ 20 (holding that reasonable suspicion supported a traffic stop

where the defendant had weaved across a traffic lane); see also

People v. Brant, 252 P.3d 459, 462 (Colo. 2011) (“A traffic infraction,

such as driving with a broken taillight, is sufficient justification for

a police vehicle stop.”).

18 ¶ 50 Nonetheless, Gonzales argues that the court erred by relying

on the “cumulative effect” of three buckets of evidence for the initial

stop: the lamp light and reflectors, the fictitious plates, and the

suspicions of DUI. But we do not read the court’s ruling in that

manner. In finding reasonable suspicion for the stop, the court

relied on the lack of a functioning license plate light, noting that the

license plate was only visible because of the officer’s headlights and

the “reflective nature of the plates.” The court also relied on

Gonzales’s “swerving slowly within the boundaries of the marked

lane.” But the court did not rely on the fictitious license plates

because “[i]t wasn’t entirely clear” from the testimony whether the

officer initiated the stop because of the fictitious plates or only

learned of this information after speaking with Gonzales. Although

the court referred to the cumulative effect of these facts, a

reasonable interpretation of the court’s ruling is that it did not rely

on the fictitious plates or other information gathered by the officer

after making contact with Gonzales in determining whether

reasonable suspicion existed to stop Gonzales.

19 ¶ 51 Because the district court’s conclusion that there was

reasonable suspicion for the officer to conduct a traffic stop is

supported by competent evidence in the record, we discern no error.

2. Objectively Reasonable Basis for the Traffic Stop

¶ 52 Gonzales also argues that the officer did not have an

objectively reasonable basis to initiate the traffic stop because the

officer was mistaken about the law.

¶ 53 Gonzales argues that the officer was sixty feet from Gonzales’s

car when he stopped him, and state law only requires license plate

legibility within fifty feet of the rear of a vehicle; thus, he contends

that the officer had no objectively reasonable justification for the

stop. See § 42-4-206(3) (“Either a tail lamp or a separate lamp shall

be so constructed and placed as to illuminate with a white light the

rear registration plate and render it clearly legible from a distance of

fifty feet to the rear.”).

¶ 54 This is beside the point. The dashcam footage supported the

district court’s findings that the license plate light was out, and the

only reason the license plate was illuminated was because of the

officer’s headlights. The purpose of the statute is to ensure license

plates are clearly visible, illuminated by either a license plate light

20 or tail lamps, and though Gonzales had working tail lamps, the

dashcam footage supports that the license plate was not

illuminated and clearly legible by the tail lamps. Therefore, it was

the lack of illumination of Gonzales’s license plate generally — not

the distance between the vehicles — that gave rise to the officer’s

reasonable suspicion. Indeed, as the officer neared Gonzales’s

vehicle, the lack of illumination of Gonzales’s license plate became

even more stark because it was only visible due to the officer’s

headlights.

¶ 55 Thus, we discern no error.

VI. Blood Sample Evidence

¶ 56 Gonzales claims the district court erred by admitting blood

sample evidence without a proper chain of custody. We disagree.

¶ 57 Gonzales’s blood sample was sent to the Colorado Bureau of

Investigation (CBI), which tested it and generated a report. Photos

of the kit and the corresponding CBI report were admitted during

trial. One of the officers testified that he sealed, initialed, dated,

and then stored the test-kit in a refrigerator before it was sent to

CBI. A CBI analyst testified about the procedures CBI and law

21 enforcement followed while transferring the test-kit. The analyst

testified that certain photos admitted into evidence were of the test-

kit, taken by a technician when it was opened. But another

individual at CBI, who did not testify at trial, broke the outer seal of

the package and conducted initial testing before it reached the

analyst.

B. Standard of Review

¶ 58 As stated above, we review evidentiary rulings for an abuse of

discretion. Rojas, ¶ 16.

¶ 59 Evidence must be authenticated to be admissible. CRE

901(a). To authenticate evidence, the proponent must produce

“evidence sufficient to support a finding that the matter in question

is what its proponent claims.” Id. “‘[S]o long as the evidence was

accounted for at all times, the evidence is admissible’[;] . . . absent

any evidence of tampering or lack of authentication, the proponent

of the evidence is not required to call each witness who may have

handled the item.” People v. Valencia, 257 P.3d 1203, 1206 (Colo.

App. 2011) (quoting People v. Atencio, 565 P.2d 921, 923 (Colo.

1977)).

22 ¶ 60 Contrary to Gonzales’s assertion, the blood test-kit was

accounted for at all times, so the prosecutor was not required to call

each witness who handled the kit. See id. The CBI analyst and the

officer established through testimony that both entities

photographed and catalogued the kit’s chain of custody from intake

through testing. See id. (where an expert describes an object as

having identifying marks placed on the item or its packaging, and

there is no evidence of any interim tampering, such identification

may well be sufficient to justify its admission). And while Gonzales

suggests that the investigation surrounding Yvonne “Missy” Woods

at CBI suggests tampering, Gonzales has not pointed to any

evidence in the record that she had any involvement with this case.1

Absent actual evidence of Woods’s involvement, we cannot infer

tampering. Thus, we discern no error.

VII. Prosecutorial Misconduct

¶ 61 Gonzales argues the prosecutor committed reversible

misconduct during closing arguments by (1) misstating facts and

1 Yvonne “Missy” Woods is a former CBI DNA analyst now facing

criminal charges for allegedly tampering with DNA testing evidence in “numerous cases over the course of decades.” People v. Sotade, 2025 CO 38, ¶ 4.

23 making improper argument relating to cocaine; (2) referring to facts

not in evidence; and (3) denigrating the defense. We disagree.

¶ 62 During closing arguments, the prosecutor said the following:

And how do we know he is driving under the influence? Well, he’s got a smorgasbord of drugs in his system. He’s got alcohol. He’s got methamphetamine. He’s got a cocaine metabolite and, according to his own admission, his own statement, probably synthetic THC, cannabinoids in his system. If that doesn’t make you substantially incapable, four cornucopias of medicines, I don’t know what this is. I don’t know what is substantially incapable. You saw it on the roadsides.

He also referred to the presence of cocaine in Gonzales’s

system.

¶ 63 Also, during closing arguments, defense counsel said:

The [prosecutor] chose which clips to introduce as evidence. [The officer] claimed he saw more than that, but those clips were not introduced. None of that evidence was made available to you for you to see with your own eyes how he was walking, how he was talking, how he was acting.

The prosecutor responded:

[Defense counsel] suggested that I hid information from you. I didn’t provide you

24 evidence. Ladies and gentlemen, that’s preposterous. You saw [defense counsel] go up here and hand the DVD and show DVDs and show videos to [the officer]. Did you not? If it was so important, put those in.

¶ 64 We engage “in a two-step analysis to review claims of

prosecutorial misconduct.” People v. Robinson, 2019 CO 102, ¶ 18.

First, we determine whether the prosecutor’s conduct was improper

“based on the totality of the circumstances.” Id. (quoting Wend v.

People, 235 P.3d 1089, 1096 (Colo. 2010). If the conduct was

improper, we consider whether reversal is warranted under the

applicable standard of review. Id.

¶ 65 The prosecutor’s conduct was not improper based on the

totality of the circumstances, but even if it was, any error in

permitting it was not plain. See Hagos v. People, 2012 CO 63, ¶ 14.

1. Misstating Facts and Improper Argument Relating to Cocaine

¶ 66 Prosecutors must avoid “arguments calculated to appeal to

prejudices or to mislead the jury.” People v. Mason, 643 P.2d 745,

752 (Colo. 1982).

25 ¶ 67 The prosecutor seemingly overstated the significance of the

presence of cocaine metabolite in Gonzales’s blood sample. Still,

even assuming the argument amounted to misconduct, and even

assuming the misconduct was obvious such that the district court

should have intervened sua sponte, any error was not substantial.

See Hagos, ¶ 14. Because the prosecutor’s expert testified that the

cocaine metabolite was inactive and would not have impaired

Gonzales’s ability to drive at the time he operated the motor vehicle,

we cannot say that the prosecutor’s comments “so undermined the

fundamental fairness of the trial itself so as to cast serious doubt

on the reliability of the judgment of conviction.” Id. (quoting People

v. Miller, 113 P.3d 743, 748–50 (Colo. 2005)).

2. Referring to Facts Not in Evidence

¶ 68 The prosecutor’s reference to the DVDs was in response to

defense counsel’s implication that exculpatory evidence was not

shown to the jury and that the prosecutor had cherry-picked

inculpatory clips from the body worn camera footage. In effect,

defense counsel suggested in her closing argument that there were

facts not in evidence that the prosecutor was avoiding. The

prosecutor responded during rebuttal, pointing out that defense

26 counsel did not admit the complete DVDs into evidence either.

While neither party should have referred to facts not in evidence,

the prosecutor’s argument was not improper because defense

counsel first implied that the prosecutor sought to avoid the

unadmitted portions of the DVDs. See People v. Lovato, 2014 COA

113, ¶ 63 (“In considering whether prosecutorial remarks are

improper, the reviewing court must weigh the effect of those

remarks on the trial, and also take into account defense counsel’s

‘opening salvo.’” (quoting People v. Perea, 126 P.3d 241, 247 (Colo.

App. 2005))).

3. Denigrating the Defense

¶ 69 A prosecutor “may not . . . denigrate defense counsel.” People

v. Carter, 2015 COA 24M-2, ¶ 70. But prosecutors are afforded

“considerable latitude in replying to opposing counsel’s argument.”

People v. Iversen, 2013 COA 40, ¶ 37.

¶ 70 Gonzales claims that the prosecutor denigrated defense

counsel during rebuttal with his argument that she was hiding

information by not introducing the DVDs. But as discussed,

defense counsel in her closing argument first implied that the

prosecutor did not want the full DVDs admitted. The prosecutor’s

27 rebuttal, in essence stating that defense counsel also could have

sought to introduce the entirety of the DVDs, did not denigrate the

defense. See id. at ¶¶ 37-38 (prosecutor’s remark was in response

to defense counsel’s arguments and not made for the purpose of

attacking defense counsel); cf. People v. Coria, 937 P.2d 386, 391

(Colo. 1997) (prosecutor’s references to “smoke and mirrors” and

“diversionary tactics” would be improper if used as a means to

attack or mock defense counsel).

¶ 71 The prosecutor’s conduct was not improper, so the district

court did not err in allowing the statements.

VIII. Cumulative Error

¶ 72 Finally, Gonzales claims that the cumulative effect of the

district court’s alleged errors warrants reversal. Cumulative error

occurs “when numerous errors in the aggregate show the absence

of a fair trial.” Howard-Walker v. People, 2019 CO 69, ¶ 26.

¶ 73 While we assumed errors regarding the unredacted exhibits,

expert testimony claims, and overstating the significance of the

presence of cocaine metabolite in the blood sample, even in

combination, these errors do not warrant reversal. As already

discussed, the evidence that Gonzales was driving while his ability

28 was impaired by alcohol or drugs was strong and the errors were

minimally prejudicial. When viewed “in the aggregate and against

the backdrop of other evidence,” the cumulative effect of the district

court’s errors was slight and did not deprive Gonzales of a fair trial.

People v. Vialpando, 2022 CO 28, ¶ 64.

IX. Conclusion

¶ 74 We affirm the judgment of conviction.

JUDGE HARRIS and JUDGE SCHOCK concur.