22CA1333 Peo v Lucero 10-09-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1333 City and County of Denver District Court No. 20CR1660 Honorable Ericka F.H. Englert, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Lincoln Joshua Lucero,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division IV Opinion by JUDGE GOMEZ Freyre and Meirink, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 9, 2025
Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Tanja Heggins, Alternate Defense Counsel, Denver, Colorado, for Defendant- Appellant ¶1 Defendant, Lincoln Joshua Lucero, appeals the judgment of
conviction entered after a jury found him guilty of second degree
assault, three counts of possession of a weapon by a previous
offender (POWPO), and prohibited use of a weapon. He also appeals
the sentence the trial court entered after adjudicating him a
habitual offender.
¶2 On appeal, Lucero contends that (1) the evidence was
insufficient to support his conviction for second degree assault;
(2) the trial court erred by limiting his cross-examination of the
victim; (3) the trial court didn’t conduct a proper abbreviated
proportionality review of his habitual sentence; (4) the trial court
reversibly erred by ordering restitution after the prosecution didn’t
present the restitution information it had access to at the time of
sentencing; and (5) the cumulative effect of these errors requires
reversal of his convictions. We agree with the third contention but
reject the other contentions. Accordingly, we affirm the judgment in
part and reverse it in part, and we remand the case for the trial
court to conduct a new abbreviated proportionality review.
1 I. Background
¶3 In February 2020, Lucero was at a bar near downtown Denver.
The victim, S.V., and his family were also there, though they didn’t
know Lucero. Late in the evening, security cameras captured the
following events as Lucero was leaving the bar.
¶4 Lucero walked by and pointed a finger at the victim, who
began to follow him. Lucero walked outside, pulled out a gun, and
turned back toward the door just before the victim came outside.
Lucero aimed the gun at the victim, who continued following him.
As the victim walked toward Lucero, Lucero took a step back,
lowered the gun, and then raised the gun again and shot the victim
in the thigh, seriously injuring him.
¶5 Lucero was charged with first degree assault, three POWPO
counts, and three habitual criminal counts. At trial, his counsel
requested an instruction on prohibited use of a weapon while
intoxicated as a lesser nonincluded offense of the POWPO charges.
¶6 After a bifurcated trial, a jury found Lucero guilty of all
offenses except for first degree assault, instead finding him guilty of
the lesser included offense of second degree assault, and the trial
court then adjudicated Lucero a habitual offender. The court
2 sentenced Lucero to a total of thirty-two years in the custody of the
Department of Corrections (DOC).
¶7 This appeal followed.
II. Sufficiency of the Evidence
¶8 Lucero first contends that the prosecution failed to present
sufficient evidence to support his conviction for second degree
assault (recklessly causing serious bodily injury with a deadly
weapon). Specifically, he asserts that the evidence was insufficient
to negate his claim of self-defense and establish that he acted
recklessly. We disagree.
A. Standard of Review and Applicable Law
¶9 We review claims challenging the sufficiency of the evidence
de novo, determining whether the evidence presented was sufficient
in both quantity and quality to support the defendant’s conviction.
McCoy v. People, 2019 CO 44, ¶ 63. In doing so, we assess whether
the evidence, viewed in the light most favorable to the prosecution,
supports a reasonable conclusion that the defendant is guilty
beyond a reasonable doubt. People v. Tomaske, 2022 COA 52, ¶ 17.
However, an appellate court may not “serve as a thirteenth juror
and consider whether it might have reached a different conclusion
3 than the jury.” People v. Harrison, 2020 CO 57, ¶ 33. Thus, we will
disturb the verdict only if, despite drawing every reasonable
inference in favor of the prosecution, the record is unsubstantial
and insufficient to support a guilty verdict beyond a reasonable
doubt. Clark v. People, 232 P.3d 1287, 1291-92 (Colo. 2010);
People v. Thomas, 2021 CO 84, ¶ 10.
¶ 10 As relevant here, a person commits second degree assault if
they “recklessly cause[] serious bodily injury to another person by
means of a deadly weapon.” § 18-3-203(1)(d), C.R.S. 2025.
¶ 11 The use of physical force in defense of oneself is governed by
section 18-1-704, C.R.S. 2025. When a defendant raises self-
defense with respect to a crime requiring recklessness, self-defense
is not an affirmative defense; instead, it is a traverse that negates
the mental state element because it’s impossible for a person to act
both recklessly and in self-defense. People v. Pickering, 276 P.3d
553, 556 (Colo. 2011); People v. Luna, 2020 COA 123M, ¶¶ 10-11.
Self-defense requires a person to act reasonably, see § 18-1-704(1),
while recklessness requires a person to act with conscious
disregard of a substantial and unjustifiable risk, see § 18-1-501(8),
C.R.S. 2025.
4 B. Analysis
¶ 12 Lucero’s theory of defense at trial was that he acted in self-
defense when he shot the victim in the leg outside the bar. His
counsel argued that, because of his chronic post-traumatic stress
disorder (PTSD), he is “always scanning for a threat” and that’s
what he perceived the victim to be when the victim continued
walking toward him. Accordingly, defense counsel theorized that
Lucero used a degree of force necessary to defend himself from what
he reasonably believed to be the use or imminent use of unlawful
force by the victim.
¶ 13 We conclude that the evidence presented at trial is sufficient
for the jury to have rejected Lucero’s claim of self-defense and found
that he acted recklessly. In particular, the witness testimony and
video surveillance footage supports the following:
• Lucero pointed his finger at the victim, goading the victim
to follow him.
• Lucero cocked his gun as he walked out of the bar and
turned back to face the door just before the victim exited.
• As soon as the victim walked out of the bar, unarmed,
Lucero pointed the gun at him.
5 • As the victim continued to walk toward Lucero, Lucero
shot him in the leg, causing serious bodily injury.
¶ 14 While there was conflicting evidence as to whether Lucero may
have reasonably believed he was acting in self-defense due to his
PTSD diagnosis and the circumstances of the encounter, it was up
to the jury — not us — to resolve such conflicts. See People v.
Perez, 2016 CO 12, ¶ 31 (“A court must not invade the province of
the jury by second-guessing its conclusion when the record
supports the jury’s findings.”).
III. Limitation of Cross-Examination
¶ 15 Lucero next contends that the trial court abused its discretion
by limiting his cross-examination of the victim following a jury
question. He further argues that this error implicated his right to
confront witnesses and present relevant evidence to support his
defense. We aren’t persuaded.
A. Additional Facts
¶ 16 During redirect examination, the prosecutor asked the victim,
“Why are you going towards [Lucero]?” The victim answered,
“I didn’t realize it was a serious situation.”
6 ¶ 17 Following this testimony, the jury asked the victim, “Why was
someone who was pointing a gun at you not a serious situation?”
The victim responded, “I’ve never been in a situation like that
before. Didn’t think anything was going to happen.”
¶ 18 Defense counsel requested a sidebar discussion. Initially, she
argued that the victim’s response “opened the door to at least
asking if he’s had assaults previously or fights in public previously,”
noting that he had multiple assault convictions. After the
prosecutor disagreed about the meaning of the victim’s response,
defense counsel indicated that she could “ask a simple clarifying
question if he meant that he’s never been in that situation where
he’s had an altercation or never been in that situation where a gun
has been pointed at him” and that “[i]f he says that he’s never had
an altercation, then clearly that’s incorrect.” The trial court
permitted defense counsel to ask the victim follow-up questions,
indicating that the questions should not directly lead the victim into
opening the door but should be phrased so as to inquire what he
meant by his earlier response. Defense counsel didn’t object.
¶ 19 Defense counsel then engaged in the following examination of
the victim:
7 Q. [I]n response to one of the questions by the jurors, you said you had never been in that situation before. What did you mean by that?
A. I guess a dangerous situation.
Q. What do you mean by “dangerous”?
A. The possibility I could be hurt.
Q. Hurt by?
A. Hurt by being shot.
¶ 20 Defense counsel didn’t raise any further objections or request
permission to ask any further questions on the issue.
B. Standard of Review and Applicable Law
¶ 21 The Confrontation Clauses of the United States and Colorado
Constitutions guarantee a criminal defendant’s right to cross-
examine prosecution witnesses. U.S. Const. amend. VI; Colo.
Const. art. II, § 16; People v. Carter, 2015 COA 24M-2, ¶ 30.
¶ 22 Nonetheless, a trial court has “wide latitude” to place
reasonable limits on the nature and scope of cross-examination.
People v. Margerum, 2018 COA 52, ¶ 25, aff’d on other grounds,
2019 CO 100; Merritt v. People, 842 P.2d 162, 166 (Colo. 1992). We
review a court’s limits on cross-examination, like other evidentiary
rulings, for an abuse of discretion. People v. Morse, 2023 COA 27,
8 ¶ 42. “While the court has discretion to limit cross-examination, it
is constitutional error to limit excessively a defendant’s cross-
examination.” Margerum, ¶ 30; accord Carter, ¶ 30.
C. Preservation
¶ 23 The People assert that Lucero preserved the issue of whether
the victim’s response opened the door to examination about his
prior convictions but didn’t preserve the issue of whether excluding
that evidence violated his right to confrontation. We conclude that
Lucero didn’t preserve either issue. See People v. Backus, 952 P.2d
846, 850 (Colo. App. 1998) (“[W]e may choose to accept, but we are
not bound by, the concessions of counsel regarding [the appellate
record’s] contents or the inferences that properly may be drawn
from it.”).
¶ 24 It is true that defense counsel initially requested permission to
cross-examine the victim about his previous assault convictions.
But she thereafter modified her request, suggesting that she could
simply ask the victim to clarify his earlier answers and that she
would seek further follow-up only if, in his clarification, he
indicated that he had never been in an altercation before. But the
victim’s clarification did not indicate that he’d never been in an
9 altercation before. And afterward defense counsel didn’t lodge any
objection or request permission to ask any further questions. Thus,
counsel didn’t preserve an objection to any limitation of the
questioning.
¶ 25 Because Lucero didn’t preserve his appellate arguments, our
review is for plain error. See People v. Campos, 2015 COA 47, ¶ 29.
An error is plain when it is obvious and is so substantial as to
“undermine[] the fundamental fairness of the trial itself [and] cast
serious doubt on the reliability of the judgment of conviction.”
People v. Crabtree, 2024 CO 40M, ¶ 43 (quoting Wilson v. People,
743 P.2d 415, 420 (Colo. 1987)).
D. Analysis
¶ 26 Lucero asserts that the trial court erred by not permitting
defense counsel to cross-examine [the victim] as to “whether he has
had assaults previously or fights in public previously or whether he
has had altercations with other people before in order to protect
Mr. Lucero’s constitutional rights to a fair trial, impartial jury, to
cross-examine witnesses, and to present a defense.”
10 ¶ 27 We conclude that the trial court didn’t err — let alone plainly
err — to the extent that it prevented defense counsel from
questioning the victim about his prior assault convictions.
¶ 28 The trial court acted within its discretion by allowing defense
counsel, at her own request, to ask the victim follow-up questions
about his response that he hadn’t “realize[d] it was a serious
situation.” When this examination revealed that the victim meant
he’d never had a gun pointed at him before, the court again acted
within its discretion to the extent that it concluded the victim
hadn’t opened the door to questioning about his prior assault
convictions. Once the follow-up questioning confirmed that the
victim wasn’t suggesting he’d never been in an altercation before,
there was nothing misleading about his testimony and, thus, no
reason to find the door had been opened to questioning about the
earlier convictions. See People v. Heredia-Cobos, 2017 COA 130,
¶ 20 (“The concept of ‘opening the door’ represents an effort by
courts to prevent one party in a criminal trial from gaining and
maintaining an unfair advantage by the selective presentation of
facts that, without being elaborated or placed in context, create an
11 incorrect or misleading impression.” (quoting People v. Murphy, 919
P.2d 191, 195 (Colo. 1996))).
¶ 29 Therefore, we conclude that the trial court didn’t plainly err to
the extent that it limited Lucero’s examination of the victim.
IV. Proportionality Review
¶ 30 Lucero also contends that the trial court didn’t conduct a
proper abbreviated proportionality review to determine whether his
habitual offender sentence was disproportionate to the nature and
severity of his offenses. Specifically, Lucero contends that the trial
court erred by (1) concluding that some of his predicate offenses
were per se grave or serious and (2) failing to consider the
harshness of the penalty. We agree with Lucero’s second
contention. Accordingly, without addressing his first contention, we
reverse this portion of the judgment and remand the case for the
trial court to conduct a new abbreviated proportionality review in
accordance with the principles set forth in Wells-Yates v. People,
2019 CO 90M.
12 A. Additional Facts
¶ 31 At the sentencing hearing, after adjudicating Lucero a habitual
offender, the trial court conducted the following abbreviated
proportionality review:
On Count 5, Mr. Lucero was previously convicted of attempted murder, which is a class 3 felony, in Arapahoe County in 2009. And as to that count, the Court finds that the underlying offense was a grave and serious crime and that it is, by case law, a “per se” grave and serious crime, as well as the fact that it involved weapons and a victim.
Likewise, with regard to Count Number 6, we have . . . illegal discharge of a firearm, a class 5 felony, from Larimer County in 1999 . . . with a conviction in 2000. Here, although there may be not be case law determining whether or not illegal discharge of a firearm is a grave and serious offense, the Court finds that for the purposes of today’s sentencing, that it is a grave and serious offense and that it involves a firearm. And, in addition, the underlying circumstances and facts demonstrate that weapons were involved, as well as victims, making the offense grave or serious.
On Count 7, the charge of menacing in the Denver case in 1997, again, the Court finds that, by case law, this is a grave and serious offense for the purposes of this proportionality review.
The case in question also involves a firearm, as well as a victim who was shot and suffered
13 injury. The defendant was found by the jury to be the person who shot the victim in this case.
¶ 32 The court went on to sentence Lucero to a total of thirty-two
years in the custody of the DOC. The court explained its reasoning
for the sentence as follows:
Now, the reason why I am sentencing Mr. Lucero in this manner is: I sat through the trial. The Court presided over the trial in this case, and . . . the Court finds that the evidence at trial supported the conviction.
The Court . . . has very serious concerns regarding Mr. Lucero’s conduct in this case, as well as conduct from prior cases. However, I’ve also reviewed the mitigation report, and I understand that Mr. Lucero has been in and out of prison since he was 16 years old, and that he is now taking steps in the jail to be a model inmate . . . .
And, Mr. Lucero, you have a very serious pattern of committing extensive crimes that involve weapons and shooting of people, and I don’t want to minimize that at all. However, I do want to encourage you to continue on in the path that it seems that you have taken now in making some changes in your life.
I realize that you’re going to have to continue on in the [DOC] to make those changes, and that’s a difficult place to do that. But it will be up to you, and I’m going to give you the opportunity to do that. You also are at an age when you have to make some very serious decisions about how you want to conduct yourself in the future.
14 That’s the basis for my sentence in [this case].
¶ 33 Immediately thereafter, the court referred back to the
proportionality of the sentence:
The Court finds, based on the proportionality review that I stated, that the criminal sentence imposed in this matter — habitual criminal sentence is not grossly disproportionate.
¶ 34 We review de novo whether a sentence is constitutionally
proportionate. Sellers v. People, 2024 CO 64, ¶ 16.
¶ 35 The United States and Colorado Constitutions prohibit
“extreme sentences that are ‘grossly disproportionate’ to the crime.”
Wells-Yates, ¶¶ 5, 10 (quoting Harmelin v. Michigan, 501 U.S. 957,
1001 (1991) (Kennedy, J., concurring in part and concurring in the
judgment)); see U.S. Const. amend. VIII; Colo. Const. art. II, § 20.
In determining whether a sentence is grossly disproportionate to the
crime, a trial court first conducts a two-step abbreviated
proportionality review. Wells-Yates, ¶¶ 10-11.
¶ 36 First, the court must consider the gravity or seriousness of the
offense. Id. at ¶ 11. For a habitual sentence like this one, this
means considering the gravity or seriousness of the triggering
15 offense and each of the predicate offenses. Id. at ¶ 23. If any of the
offenses are not per se grave and serious — meaning that, based on
their elements, they don’t necessarily involve grave or serious
conduct — this step involves, as to each offense, consideration of
the magnitude of the crime; whether it is a lesser included offense
or the greater inclusive offense; whether it involves a completed act
or an attempt to commit an act; whether the defendant was a
principal or an accessory after the fact; what the defendant’s motive
was; and whether the defendant’s acts were negligent, reckless,
knowing, intentional, or malicious. Id. at ¶¶ 12-13, 23, 63.
¶ 37 Second, the court must consider the harshness of the penalty
imposed. Id. at ¶ 14. This includes consideration of parole
eligibility, which may reduce the period of confinement and render
the penalty less harsh. Id. If there are multiple triggering offenses,
the court has to consider the sentence imposed for each sentence.
Id. at ¶ 24. “As to each sentence, the inquiry is whether the
corresponding triggering offense and the predicate offenses,
considered together, are so lacking in gravity or seriousness as to
suggest that the sentence is grossly disproportionate.” Id.
16 ¶ 38 Only if the abbreviated proportionality review gives rise to an
inference of gross disproportionality must the court conduct an
extended proportionality review, in which the court compares the
sentence to sentences for other crimes in the same jurisdiction and
sentences for the same crime in other jurisdictions. Id. at ¶¶ 15-17.
C. Analysis
¶ 39 Without addressing whether the trial court classified Lucero’s
predicate offenses as per se grave and serious or, if so, whether it
was proper to do so, we conclude that the court’s abbreviated
proportionality review was inadequate because it didn’t address the
harshness of the penalty.
¶ 40 The trial court conducted the first subpart of an abbreviated
proportionality review, considering the gravity or seriousness of
Lucero’s predicate and triggering offenses, but nowhere did the
court analyze the harshness of the penalty. Our supreme court has
made clear that “it would be improper for a court to skip the second
subpart of an abbreviated proportionality review and neglect to
consider the harshness of the penalty.” Id. at ¶ 27; see also People
v. Wright, 2021 COA 106, ¶ 84 (“[T]he court’s apparent belief that it
need not also consider the harshness of the penalty in an
17 abbreviated proportionality review is inconsistent with the supreme
court’s guidance in Wells-Yates.”); People v. Tran, 2020 COA 99,
¶ 102 (remanding for a new abbreviated proportionality review
because, among other things, “after concluding that [the defendant]
had four per se grave and serious offenses, it appears that the trial
court did not analyze the harshness of [the defendant’s] sentence”).
¶ 41 True, the trial court did explain its reasoning for imposing the
sentence, following the standard sentencing considerations
provided in section 18-1.3-401(1)(b)(I), C.R.S. 2025, including the
nature and elements of the offense, the offender’s character and
record, and any aggravating or mitigating circumstances. But what
it did not do is “assess[] the harshness of the penalty, . . . tak[ing]
into account both the length of the sentence and parole eligibility.”
People v. Lopez, 2025 COA 73, ¶ 12; accord Wells-Yates, ¶¶ 14, 24.
¶ 42 While the People contend that we can analyze the harshness of
the penalty on appeal, we decline to do so. Conducting such an
analysis requires factual determinations that trial courts are
“uniquely suited” to make. Wells-Yates, ¶ 75 (quoting People v.
Gaskins, 825 P.2d 30, 35 (Colo. 1992)). Moreover, neither of the
18 parties has addressed in any detail Lucero’s parole eligibility and
how it affects the harshness of his sentence.
¶ 43 Accordingly, we remand the case for the trial court to conduct
a new abbreviated proportionality review in accordance with the
principles set forth in Wells-Yates.
V. Restitution
¶ 44 Lucero further contends that the trial court reversibly erred by
imposing restitution despite the prosecution’s alleged lack of
diligence in presenting restitution information to the court at the
time of sentencing. We aren’t persuaded.
¶ 45 At the sentencing hearing on July 1, 2022, the prosecutor
asked to reserve restitution in order to “give [the victim] a chance to
provide [his medical bills].” The court accordingly ordered
restitution in an unknown amount and ordered the prosecution to
file its motion for restitution within the statutory timeframe. The
defense didn’t object to the prosecutor’s request or the court’s order
of restitution in an unknown amount.
¶ 46 On August 12, 2022, the prosecution filed a motion for
restitution in the amount of $6,000 to the Victim Compensation
19 Fund for payments relating to the victim’s lost employment. The
referenced payment had been made to the victim two years earlier,
and a “claim payment summary” had been printed the same day.
¶ 47 On August 16, 2022, the trial court ordered Lucero to file an
objection to the prosecution’s motion by August 30, or the motion
would be deemed confessed. On August 31, with no objection
having been filed, the court granted the motion.
B. Waiver and Invited Error
¶ 48 As a preliminary matter, the People assert that Lucero waived
this issue (or, alternatively, invited any error) when he failed to
object at the time of sentencing to the prosecution’s having more
time to present restitution information and then again failed to
object in response to the prosecution’s later motion for restitution.
¶ 49 We review de novo whether a claim is waived or an error is
invited. Babcock v. People, 2025 CO 26, ¶ 28; People v. Becker,
2014 COA 36, ¶ 20.
¶ 50 Waiver of a statutory right, as is argued here, “must be
voluntary, but need not be knowing and intelligent.” People v.
Roberson, 2025 CO 30, ¶ 13 (quoting Finney v. People, 2014 CO 38,
¶ 16). Waiver may be explicit, such as “when a party expressly
20 abandons an existing right or privilege,” or implied, such as “when
a party engages in conduct that manifests an intent to relinquish a
right or privilege or acts inconsistently with its assertion.” Forgette
v. People, 2023 CO 4, ¶ 28. Waiver extinguishes error and therefore
any appellate review. People v. Rediger, 2018 CO 32, ¶ 40.
¶ 51 Under the invited error doctrine, a party may not complain
about an error they invited or injected into the case but, instead,
must abide by the consequences of their own acts. Horton v.
Suthers, 43 P.3d 611, 618 (Colo. 2002). Thus, if a party invites an
error, they cannot raise the error on appeal. Rediger, ¶ 34.
¶ 52 Here, Lucero didn’t explicitly or implicitly waive his statutory
right to have the prosecution do its due diligence to present
restitution information at sentencing. Nor did he invite any error in
this regard. While he failed to object on multiple occasions — even
when ordered to do so by the court — this failure, standing alone,
doesn’t constitute waiver or invited error. See Phillips v. People,
2019 CO 72, ¶ 21 (“mere failure to raise an issue” isn’t sufficient to
establish an unequivocal act or a clear manifestation of an intent to
relinquish a claim, both of which are necessary to establish waiver);
Horton, 43 P.3d at 619 n.9 (“merely failing to object” is “distinct”
21 from “[e]xpressly agreeing to conduct by the trial court or opposing
party,” which may establish invited error); cf. Babcock, ¶ 30 (the
defendant waived his right to have the court determine the amount
of restitution within ninety-one days where he requested a hearing
date that fell after expiration of the deadline); Roberson, ¶ 17 (the
defendant waived her right to have the court determine the amount
of restitution within ninety-one days where she didn’t object to the
trial court’s suggestion to hold a hearing outside that timeline and
then requested four additional continuances of that hearing).
¶ 53 Without more, we conclude that while Lucero’s actions equate
to forfeiture, they don’t amount to waiver or invited error. See
Rediger, ¶¶ 34, 39-40 (distinguishing among the three doctrines).
C. Standard of Review and Applicable Law
¶ 54 Because Lucero’s restitution claim is unpreserved, we
ordinarily would review it for plain error and, thus, would reverse
only if any error was both obvious and substantial. See Hagos v.
People, 2012 CO 63, ¶ 14. But he also raises the claim under Crim.
P. 35(a), and such a claim doesn’t require preservation and may be
raised for the first time on direct appeal. See Fransua v. People,
2019 CO 96, ¶ 13; People v. Martinez Rubier, 2024 COA 67, ¶ 23.
22 Accordingly, we review the trial court’s interpretation of the
restitution statute de novo, and we will not reverse if any error in
interpreting and applying the statute was harmless. See Martinez
Rubier, ¶¶ 23, 25, 48.
¶ 55 At the time of Lucero’s sentencing, the restitution statute
required that when a trial court ordered restitution at sentencing
but left the amount open, the court had to resolve the amount
within ninety-one days, absent an extension of time for good cause.
§ 18-1.3-603(1)(b), C.R.S. 2022; People v. Weeks, 2021 CO 75, ¶ 3.1
¶ 56 As pertinent here, the restitution statute also provided,
The court shall base its order for restitution upon information presented to the court by the prosecuting attorney, who shall compile such information through victim impact statements or other means to determine the amount of restitution and the identities of the victims. Further, the prosecuting attorney shall present this information to the court prior to the order of conviction or within ninety-one days, if it is not available prior to the order of conviction.
§ 18-1.3-603(2)(a), C.R.S. 2022. This provision required (and still
requires) the prosecution to exercise reasonable diligence to
1 The deadline is currently sixty-three days. See § 18-1.3-603(1)(b), C.R.S. 2025.
23 determine the amount of restitution and present it to the court at or
before the sentencing hearing. People v. Brassill, 2024 COA 19,
¶ 30 (cert. granted in part Aug. 4, 2025).
¶ 57 We first note that the trial court was not deprived of its
authority to order restitution because it entered the order within
the statutory ninety-one-day deadline. See Weeks, ¶ 45; Martinez
Rubier, ¶ 47; Brassill, ¶ 58.
¶ 58 It’s not clear, based on the record before us, whether the
prosecution failed to exercise reasonable diligence in gathering and
presenting restitution information to the trial court by the time of
sentencing. The prosecution may not have provided information
about the $6,000 in lost employment at the time of sentencing
because it hadn’t conducted its due diligence as of that time. But it
also may not have provided this information simply because it was
working with the victim to obtain information about his medical
bills and wanted to present all the restitution information at once.
And we don’t know what efforts the prosecution may have
undertaken to obtain the medical bill information from the victim
and whether those efforts were diligent. Thus, we cannot conclude
24 that the prosecutor’s request to reserve the amount of restitution so
that she could “give [the victim] a chance to provide [his medical
bills]” necessarily demonstrates a lack of due diligence in acquiring
and presenting restitution information by the time of sentencing.
¶ 59 Regardless, even if the trial court erred by allowing the
prosecution to delay providing restitution information it could’ve
obtained by the time of sentencing, Lucero hasn’t established that
any error was harmful. See Crim. P. 52(a) (“Any error, defect,
irregularity, or variance which does not affect substantial rights
shall be disregarded.”). Specifically, Lucero hasn’t articulated any
prejudice created by the delay in the presentation of restitution
information, such as any difference in his ability to respond to the
particular amounts of restitution requested. See Martinez Rubier,
¶ 49 (trial court’s error in extending the prosecution’s deadline to
submit restitution information was harmless because the defendant
didn’t argue that the delay caused him prejudice, such as by
“hamper[ing] counsel’s ability to challenge the alleged link between
[the defendant’s] actions and the damage [claimed] . . . or the
reasonableness of the [amount requested]”). Nor did any error
violate Lucero’s due process rights, given that he received notice of
25 the requested amount of restitution and had an opportunity to
object to it before the court ruled on it. See id.
¶ 60 We therefore decline to vacate the trial court’s restitution
order.
VI. Cumulative Error
¶ 61 Lastly, Lucero contends that the cumulative effect of the
alleged errors deprived him of a fair trial, thus requiring reversal of
his convictions. We aren’t persuaded.
¶ 62 Although a single irregularity in a criminal trial may be
deemed harmless, “[n]umerous formal irregularities . . . may in the
aggregate show the absence of a fair trial, in which event a reversal
would be required.” People v. Sauser, 2020 COA 174, ¶ 106
(alteration in original) (quoting Howard-Walker v. People, 2019 CO
69, ¶ 24). But this doctrine “requires that numerous errors be
committed, not merely alleged.” Id.; accord People v. Rivas, 77 P.3d
882, 893 (Colo. App. 2003) (“The cumulative error doctrine applies
only if the trial court committed numerous errors, and mere
assertions of error by the defendant are insufficient.”).
¶ 63 Because we have identified only one error in this case, relating
to the trial court’s proportionality review, the doctrine doesn’t apply.
26 VII. Disposition
¶ 64 The judgment is affirmed in part and reversed in part, and the
case is remanded for the trial court to conduct a new abbreviated
proportionality review.
JUDGE FREYRE and JUDGE MEIRINK concur.