23CA0433 Peo v Marentes 01-08-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0433 City and County of Denver District Court No. 21CR570 Honorable Jay S. Grant, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Edwin Marentes,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division I Opinion by JUDGE J. JONES Grove, J., concurs Schutz, J., specially concurs
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 8, 2026
Philip J. Weiser, Attorney General, Paul Koehler, Senior Counsel, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Mark Evans, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Edwin Marentes, appeals the district court’s
judgment of conviction entered on a jury verdict finding him guilty
of felony murder. He also appeals the district court’s sentence. We
affirm.
I. Background
¶2 Marentes and his nephew went to a party at his nephew’s
friend’s apartment. A group of about eight or nine people attended
the party, including, among others, party host J.P-D. (also known
as Junior), M.Z., and S.D. At the party, sixteen-year-old M.Z.
communicated with nineteen-year-old Imanol Del Valle, the victim
in this case, on Snapchat, as she had in the past (though she
hadn’t previously met him).1 Previously, Del Valle had sent M.Z.
messages that included pictures of his genitals, and she had told
him to stop. M.Z. complained to the other partygoers about Del
Valle’s messages because of their age difference, erroneously
believing that Del Valle was in his mid-to-late twenties.
1 Snapchat is a social media platform on which users can send
photos, videos, and messages that often disappear after being viewed.
1 ¶3 The prosecution’s theory of what happened next went as
follows. The partygoers had been drinking and doing drugs. M.Z.,
S.D., Junior, and Marentes were upset that Del Valle, who they
believed was much older than M.Z., had sent her pictures of his
genitals. So they formed a plan to rob Del Valle. Marentes told
M.Z. to tell Del Valle she wanted to meet to have a threesome with
him, and she did. Marentes and Junior also told M.Z. where to
meet Del Valle.
¶4 Six people left the party to meet Del Valle: Marentes and
Junior each went armed with guns, and M.Z., S.D., Marentes’
nephew, and a driver from the party joined them. Marentes turned
his phone off on the way. When they arrived at the meeting spot,
Marentes and Junior walked to the dark margins of the street, M.Z.
and S.D. walked to a well-lit area, and Marentes’ nephew stayed in
the car with the driver. When Del Valle arrived, M.Z. — following
Marentes’ instructions — pretended to be drunk and fell down in
the street to coax Del Valle out of his car. Del Valle opened his door
and got out to help M.Z. up. He also took S.D.’s phone out of her
hand, thinking it was his, and accidentally dropped it.
2 ¶5 As Del Valle bent over to pick up the phone, Marentes and
Junior came out of the shadows and ambushed him. With their
guns raised and pointed at Del Valle, Marentes and Junior shouted
at him that he was being robbed. Del Valle quickly got back into
his car and started to drive away. As he did, Marentes and Junior
shot at him, hitting him four times. One shot from Marentes hit Del
Valle in the head, killing him.
¶6 The group returned to the party. Marentes and Junior
bragged about killing Del Valle and told the other witnesses not to
tell anyone about what had happened.
¶7 The defense — relying on Marentes’ testimony — said the
night unfolded differently. Marentes said, “The alcohol was running
low” at the party. So M.Z. and others planned to temporarily leave
the party and get alcohol from Del Valle by using their “female
charm.” The group of six left to meet with Del Valle, with Marentes
and Junior joining for “protection” from Del Valle, whom they
believed to be a much older man. When they arrived, Marentes’
drinking had caught up to him. He walked off to the dark margins
of the street to urinate.
3 ¶8 Del Valle arrived a few minutes later. Marentes said he had to
urinate a second time. After doing so, he turned around and saw
M.Z. on the ground and Del Valle out of his car grabbing S.D.’s
phone. Marentes started running toward Del Valle, who got back
into his car. Marentes saw Del Valle reaching for his vehicle’s
center console, and he believed Del Valle was reaching for a gun.
Marentes then pulled out his gun. After hearing what he thought
was a gunshot, Marentes began shooting at Del Valle in self-
defense. Del Valle then drove off and crashed the vehicle; and he
died the following day from the shot to his head.
¶9 The parties don’t dispute the relevant events after that
evening. About a week later, a police officer saw Marentes, who ran
away from the officer. The officer followed, detained him, and
patted him down, finding an ammunition magazine in Marentes’
pocket. Officers found a gun on the ground behind a car Marentes
had briefly crouched behind during the chase. No magazine was in
the gun. The police later determined that the gun was the murder
weapon.
¶ 10 The People charged Marentes with first degree murder after
deliberation and felony murder. Marentes asserted that he had
4 acted in self-defense. The jury found Marentes guilty of the lesser
included offense of second degree murder and of felony murder.
The district court merged the second degree murder conviction into
the conviction for felony murder and sentenced Marentes to life in
prison without the possibility of parole (LWOP).
II. Discussion
¶ 11 Marentes contends that the judgment should be reversed
because the district court erred by (1) denying his counsel’s request
for a mistrial; (2) admitting inadmissible hearsay and opinion
testimony; and (3) allowing improper argument by the prosecutor.
He also contends that, if none of these errors individually merit
reversal, they do when considered cumulatively. In the alternative,
Marentes contends that his LWOP sentence is unconstitutional. We
don’t see any error requiring reversal of his conviction and conclude
that Marentes’ sentence isn’t unconstitutional.
A. Motion for Mistrial
¶ 12 Marentes first contends that the district court should have
granted a mistrial because a juror’s conduct denigrated the defense
and conveyed to other jurors the juror’s opinion that Marentes was
guilty. The juror’s conduct, he says, violated his due process and
5 Sixth Amendment rights to an impartial jury. We conclude that the
district court didn’t abuse its discretion by denying the request for a
mistrial.
1. Additional Background
¶ 13 At the end of the third day of trial, Juror 2 approached the
district court’s clerk to raise a concern. The clerk told the court
that “[s]ome of the jurors are making comments while they’re
writing notes” in the jury room.
¶ 14 The next morning, the court’s clerk and judicial assistant
conveyed a second concern. Juror 9, a baker by trade, had told the
judicial assistant that she had brought cookies for the jurors,
cupcakes for court staff, a baguette for the judge, and brownies for
the prosecution, but had said that “they’re not for those people,
meaning the Defense. She was very adamant about that.” Juror 9
later told the clerk, Juror 1, and Juror 5 that “the brownies are for
the [prosecutor], but not for [the defense].”
¶ 15 The court discharged Juror 9 based on the concern that she
might be biased against Marentes. The court decided to question
each juror separately to determine whether Juror 9’s comments and
6 actions had impacted them. It questioned each of the jurors in
camera (with prosecutors and defense counsel present).
¶ 16 Juror 1 said that she had heard Juror 9 say she had brought
various baked goods. Juror 1 also said that the jurors hadn’t been
discussing the case in the jury room and there weren’t any
comments about who the baked goods weren’t for. Juror 1 left the
court’s chambers for a moment but came back before the next juror
and said, “I said one thing that was not true. . . . She did say who
[the baked goods] were not for. I’m sorry.” She confirmed that
Juror 9 didn’t intend to give baked goods to the defense. But
Juror 1 also said that she could be unbiased and fair and “[t]hat
[the] whole baked goods thing, that has absolutely nothing to do
with it. I mean, this is important business.”
¶ 17 Juror 2 asserted that it was Juror 9 who had been mumbling
under her breath the previous day. She said she wasn’t sure
whether Juror 9 was mumbling about the case. But she said she
was uncomfortable with “the things that [Juror 9 was] saying under
their breath and the way they’re presenting themselves when they
go to the jury room.” Juror 9 had apparently said something that
7 sounded like “a friend” when she got back to the jury room and
some of Juror 9’s “mannerisms” made Juror 2 uncomfortable.
¶ 18 Juror 3 said the day before he had heard an inappropriate
comment by Juror 9 to the effect of “well, shit, if you know he did
it.” But Juror 3 hadn’t heard anything about the baked goods.
¶ 19 Juror 5 said that Juror 9 had brought baked goods “for the
People and the Judge, [judicial assistant], [clerk], and not for [the
defense].” Juror 5 said she was “taken aback by the anger inside
[Juror 9]” but that the incident didn’t impact her “ability to judge
and do what I feel is right.”
¶ 20 Juror 6 said she hadn’t heard any comments from any of the
jurors, including Juror 9. But when defense counsel pressed her
for more information, she said, “There was a moment yesterday
where somebody muttered something under their breath that, like,
gave me pause, but I do not remember -- like, truly, I do not
remember who it was. I just remember having the thought of like
maybe you shouldn’t say that.”
¶ 21 Juror 10 said he had heard the baked goods were for the
prosecutors and the court but not the defense. He also heard
8 Juror 9 make comments like “why did he run.” But he said he
could remain fair and impartial.
¶ 22 Juror 11 said that he heard Juror 9 make comments like “no,
no, no” during one of the witness’s testimony. But he said he was
annoyed by her comments and had tried to ignore them.
¶ 23 Jurors 4, 7, 12, and 13 said they hadn’t heard any improper
comments by other jurors or anything about baked goods.
¶ 24 After these interviews, Marentes’ counsel moved for a mistrial,
“given that a number of jurors heard the comments by [Juror 9,]
and they weren’t solely about baked goods but rather there were
comments denigrating the [d]efense throughout the trial. And,
additionally, she was attempting to communicate with witnesses
testifying or had audible comments on witnesses testifying.”
Counsel added, “[T]he first juror was so concerned about these
circumstances that she initially told us something that wasn’t
truthful and then came back and . . . admitted to that happening.
That, to me, says the jurors are conscious that something not
appropriate is happening.”
¶ 25 The district court denied the motion for a mistrial. It found
that “the jurors are incredibly fair [and] unbiased.” And the court
9 concluded that the remaining jurors weren’t “moved by [Juror 9’s]
comments, and I think, for the lack of a better word, offended by
them in terms of their duties as jurors.”
2. Applicable Law and Standard of Review
¶ 26 “The due process clauses of the United States and Colorado
Constitutions guarantee every criminal defendant the right to a trial
by an impartial jury.” People v. Dahl, 160 P.3d 301, 304 (Colo. App.
2007) (quoting People ex rel. Faulk v. Dist. Ct., 673 P.2d 998, 1000
(Colo. 1983)).
Central to the right to a fair trial, guaranteed by the Sixth and Fourteenth Amendments, is the principle that “one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial.”
Holbrook v. Flynn, 475 U.S. 560, 567 (1986) (quoting Taylor v.
Kentucky, 436 U.S. 478, 485 (1978)).
¶ 27 We won’t second-guess a district court’s ruling denying a
request for a mistrial absent a showing of a gross abuse of
discretion and prejudice to the defendant. People v. Owens, 2024
CO 10, ¶ 125. “A mistrial is the most drastic of remedies.” Id.
10 (quoting People v. Collins, 730 P.2d 293, 303 (Colo. 1986)). “[I]t is
warranted only when the prejudice to the defendant is too
substantial to be remedied by other means.” Id.
3. Analysis
¶ 28 We conclude that the district court didn’t abuse its discretion
by denying Marentes’ counsel’s motion for a mistrial, for four
related reasons.
¶ 29 First, there’s no evidence that the remaining jurors deliberated
before being instructed by the court to do so. Some jurors heard
Juror 9 making statements under her breath, but the jurors who
did were annoyed or confused about what she was saying. The
remaining jurors relayed that Juror 9 had said, “a friend”; “no, no,
no”; “well, shit, if you know he did it”; or “why did he run.” Her
comments may have bewildered the other jurors, but there’s no
indication in the record that the remarks led any of them to
predeliberate. Cf. People v. Clark, 2015 COA 44, ¶¶ 230, 239-244
(remanding for an evidentiary hearing on consideration of
extraneous information and possible juror predeliberation with an
alternate juror); People v. Kinney, 148 P.3d 318, 324-25 (Colo. App.
2006) (“There is nothing whatever in the record to support
11 defendant’s speculation that keeping the transcripts in the
notebooks ‘likely encouraged predeliberation.’”), rev’d, 187 P.3d 548
(Colo. 2008).
¶ 30 Second, there is no evidence in the record that any of the
remaining jurors acted in a way suggesting bias against the
defense. The remaining jurors said things like “[t]hat whole baked
goods thing, that has absolutely nothing to do with it [—] I mean,
this is important business”; the events wouldn’t affect the juror’s
“ability to judge and do what I feel is right”; and any comments
Juror 9 made were inappropriate — meaning if she was denigrating
the defense, the other jurors felt that she was being unfair. See
People v. Manzanares, 942 P.2d 1235, 1238-39 (Colo. App. 1996)
(refusal to grant a mistrial wasn’t an abuse of discretion where a
discharged juror knew the defendant’s father and told other jurors),
abrogated on other grounds by, Riley v. People, 266 P.3d 1089, 1094
(Colo. 2011).
¶ 31 Third, there is no evidence in the record showing that the
remaining jurors were somehow unable to disregard Juror 9’s
conduct. The court questioned each juror, and none of them
indicated that they were influenced by Juror 9’s comments or
12 behavior, even when they understood what Juror 9 had said.
Indeed, several of the jurors indicated that they had tried to ignore
Juror 9. See People v. Johnson, 757 P.2d 1098, 1100 (Colo. App.
1988) (“[D]efendant has failed to show that the remaining jurors
were unfair or biased, or that he was actually prejudiced by the
dismissal and replacement of this particular juror.”).
¶ 32 Finally, there is no evidence in the record indicating that the
remaining jurors couldn’t be fair and impartial. After dismissing
Juror 9, the court found, based on the jurors’ answers to questions,
that each juror could be fair and impartial. This was so even as to
Juror 1, who admitted that she hadn’t been entirely truthful during
her first conversation with the court and counsel. It was within the
district court’s discretion to credit the jurors’ assurances of their
ability to be fair and impartial. People v. Christopher, 896 P.2d 876,
878 (Colo. 1995) (“The trial court is in the best position to view the
demeanor of a juror claiming impartiality, and the record must
affirmatively demonstrate that the trial court abused its discretion
before its decision can be disturbed on appeal.”).
¶ 33 Nonetheless, Marentes contends that unrelated instances of
audible crying in the courtroom emphasized the need to declare a
13 mistrial. While he concedes that these incidents didn’t, by
themselves, justify declaring a mistrial, he argues that they added
to the prejudice caused by Juror 9’s misconduct. But, as an
analytical matter, we don’t see what these incidents add to the
assessment of whether a mistrial was required based on Juror 9’s
conduct. As Marentes concedes, these incidents weren’t related to
that conduct. Thus, they have relevance only if, separate from
Juror 9’s conduct, they required a mistrial — an argument
Marentes expressly disavows.
¶ 34 In any event, we don’t see any added unfair prejudice created
by these incidents.
¶ 35 Sometime after the prosecution introduced a door-security-
camera video in which yelling and gunshots can be heard,
Marentes’ counsel told the court during a bench conference that
“there was some audible crying out in -- and weeping out in the
courtroom by the victim’s family.” Counsel didn’t ask the court to
do anything other than to exercise caution in distributing to the
jury another video that was about to be introduced. The court
noted that the family members making the noise had left the
courtroom by the time Marentes’ counsel raised the concern.
14 ¶ 36 During the prosecutor’s closing argument, the victim’s mother
started crying. Marentes’ counsel asked the court during a bench
conference to order the victim’s family members to leave the
courtroom if they weren’t “able to control their emotions.” The
court and both parties’ counsel noted that the victim’s mother had
been crying but had already left the courtroom on her own volition
by the time Marentes’ counsel raised the issue. The court found
that the jury had “a relatively short period of time” to hear the
crying.
¶ 37 The emotional impact of the evidence, and, indeed, of the
murder itself and the resulting trial, on the victim’s family is to be
expected in a case of this nature, and we doubt the jurors would be
surprised or swayed by the limited showings of emotion in question.
And, in this case, unlike the cases on which Marentes relies, no one
in the audience organized a display in support of conviction. See
Norris v. Risley, 918 F.2d 828, 830 (9th Cir. 1990); Woods v.
Dugger, 923 F.2d 1454, 1457 (11th Cir. 1991). Given all that, we
fail to see how the incidents “confirmed the need for a mistrial.”
15 B. Detective’s Testimony
¶ 38 Marentes next contends that the district court reversibly erred
by allowing Detective Crider to testify that (1) he didn’t think self-
defense was applicable to this case and (2) M.Z.’s contradictory
statements in her police interview didn’t give him pause because
M.Z.’s testimony incriminating Marentes was corroborated by other
evidence. We conclude that, even assuming that the district court
erred by admitting the statements, the errors were harmless.
1. Comment on Self-Defense
a. Additional Background
¶ 39 Marentes’ first contention is based on the following exchange:
[Prosecutor:] And did any of the interviews that you conducted, did they lead you to believe this case was – had anything to do with self- defense?
[Detective Crider:] No, sir.
[Defense counsel:] Objection, calls for legal conclusion, move to strike.
The Court: I think he’s asking if there’s any associated evidence to lead you to believe that there was – that there was a self-defense – that a person was acting in self-defense.
[Prosecutor:] That’s correct.
The Court: Overruled.
16 b. Standard of Review and Applicable Law
¶ 40 “Trial courts have broad discretion to determine the
admissibility of evidence, and we review those rulings for an abuse
of discretion.” People v. Ray, 2025 CO 42M, ¶ 19 (citing Davis v.
People, 2013 CO 57, ¶ 13). A court abuses its discretion if its
decision is manifestly arbitrary, unreasonable, or unfair, or if it
misapplies the law. Id. (citing People v. Montoya, 2024 CO 20,
¶ 47).
¶ 41 We consider arguments pertaining to the admission of
evidence that were preserved by timely objection under the
harmless error standard. Id. (citing Montoya, ¶ 47).2 We reverse for
2 We decline Marentes’ request to apply a constitutional harmless
error standard of reversal. He relies on Andrew v. White, 604 U.S. 86 (2025), for the proposition that the Due Process Clause protects against “unduly prejudicial evidence at a criminal trial.” But in that case, the Supreme Court explicitly didn’t address whether the errors in question were harmless in light of the substantial evidence of guilt. Id. at 89 n.1 (“The Court today says nothing about the strength of the evidence against Andrew because the issue of prejudice in both the guilt and sentencing phases of the trial is one for the Tenth Circuit to consider on remand.”). And the law is clear in Colorado that we apply the constitutional harmless error standard only if the error “specifically and directly offend[s] a defendant’s constitutional rights.” Wend v. People, 235 P.3d 1089, 1097 (Colo. 2010). That standard doesn’t apply to a garden-variety evidentiary error. See Krutsinger v. People, 219 P.3d 1054, 1062 (Colo. 2009).
17 nonconstitutional trial error “only if the error affects the substantial
rights of the parties.” Hagos v. People, 2012 CO 63, ¶ 12.
¶ 42 “Testimony in the form of an opinion or inference otherwise
admissible is not objectionable because it embraces an ultimate
issue to be decided by the trier of fact.” People v. Baker, 2021 CO
29, ¶ 31 (quoting CRE 704). “[I]n some circumstances, police
officers may testify about the reasons they took certain investigative
steps, even where this testimony touches upon prohibited subjects.”
People v. Penn, 2016 CO 32, ¶ 32. But “a witness cannot testify
that he believes that the defendant committed the crime at issue.”
Id. at ¶ 31.
c. Analysis
¶ 43 Even if we assume that the district court erred by admitting
Detective Crider’s response, any error was harmless.3 Detective
Crider’s testimony was a two-word response to a single question on
3 The People argue that Marentes’ counsel “opened the door” by
“direct attacks on the detective’s honesty and professional competence, that his investigation was not looked at or even cared whether the defendant shot the victim in self-defense, and that the detective had assembled the evidence to conform with his pre- conceived, corrupt and irresponsible theory about the case.” See, e.g., People v. Cohen, 2019 COA 38, ¶ 26. Because we conclude that any error was harmless, we won’t address this argument.
18 the issue of self-defense. See People v. Ornelas, 937 P.2d 867, 872
(Colo. App. 1996) (a police detective’s “fleeting” reference to evidence
supporting a search warrant didn’t undermine the fundamental
fairness of the trial). Also, the evidence of Marentes’ guilt is
substantial. Witnesses testified that Marentes conspired with
others to rob Del Valle, concealed himself in darkness after luring
Del Valle with promises of sex, and shot Del Valle in the head as he
drove away. Afterward at the party, Marentes and Junior bragged
that they had killed Del Valle. And Marentes’ attempt to evade
apprehension and dispose of the murder weapon was clear evidence
of a guilty mind. See Tevlin v. People, 715 P.2d 338, 342 (Colo.
1986) (“In light of the overwhelming evidence of guilt produced in
this case, we conclude that the error in admitting this testimony
was harmless.”).
2. Comment on M.Z.’s Interview
¶ 44 The jury watched a video recording of an interview Detective
Crider conducted with M.Z. During that interview, M.Z. made
contradictory statements about who had planned to rob Del Valle
and who had shot him. During Detective Crider’s testimony, he
19 discussed M.Z.’s contradictions. Later, the court asked him the
following question from a juror without objection: “Given [M.Z.’s]
numerous contradictory statements [re]: events and parties
involved, did you have any concerns about her credibility as a key
witness?” He responded,
Sure. I mean, we saw her interview. But, again, we’re able to corroborate a lot of her interview with evidence that we have, with phone records that we have, with Snapchat that we have, and six other people at the party. So we don’t just rely on [M.Z.’s interview] at all.
Defense counsel objected on both hearsay and confrontation
grounds. The court overruled both objections.
b. Applicable Law and Standard of Review
¶ 45 Hearsay is inadmissible unless it falls within an exception or
exclusion in a rule or statute. CRE 802. Hearsay is an out-of-court
statement “offered in evidence to prove the truth of the matter
asserted.” CRE 801(c). A statement is an oral or written assertion,
or communicative nonverbal conduct. CRE 801(a). “The rule
against hearsay encompasses not only verbatim out-of-court
statements, but also implied hearsay or testimony that raises an
20 inference of out-of-court statements.” People v. Vigil, 2024 COA 72,
¶ 28.
¶ 46 Because Marentes’ counsel objected on hearsay grounds, we
review any hearsay error for ordinary harmlessness. Hagos, ¶ 12.
¶ 47 “The Sixth Amendment of the United States Constitution
affords to the accused the right ‘to be confronted with the witnesses
against him.’” Marshall v. People, 2013 CO 51, ¶ 15 (quoting U.S.
Const. amend. VI). The Confrontation Clause prohibits “admission
of testimonial statements of a witness who did not appear at trial
unless he was unavailable to testify, and the defendant had had a
prior opportunity for cross-examination.” Crawford v. Washington,
541 U.S. 36, 53-54 (2004).
¶ 48 We apply the constitutional harmless error standard to
constitutional trial errors, including Confrontation Clause
violations. Raile v. People, 148 P.3d 126, 133 (Colo. 2006) (citing
People v. Fry, 92 P.3d 970 (Colo. 2004)).4 Under this standard, the
4 Marentes contends — and the People concede — that he preserved
this issue for appeal. We note, however, that his trial counsel didn’t object to the juror’s question, which called for Detective Crider’s opinion of M.Z.’s credibility as it related to the evidence discovered in his investigation.
21 People must show that the error was harmless beyond a reasonable
doubt, meaning that the jury’s verdict was surely unattributable to
the error. People v. Stone, 2021 COA 104, ¶ 29. Admission of
cumulative evidence that doesn’t substantially influence the verdict
or affect the fairness of proceedings is harmless beyond a
reasonable doubt. People v. Griffin, 985 P.2d 15, 19 (Colo. App.
1998) (citing People v. Fuller, 788 P.2d 741 (Colo. 1990)).
¶ 49 Without deciding whether the district court erred by allowing
this testimony, we conclude that any error was harmless beyond a
reasonable doubt. As noted, Detective Crider said that he was able
to “corroborate a lot of [M.Z.’s] interview with evidence that we have,
with phone records that we have, with Snapchat that we have, and
six other people at the party.” The jury had already seen the
Snapchat clip, the phone records had also already been admitted
into evidence, and several witnesses (both of the incident and the
party) testified. Marentes therefore wasn’t prejudiced by Detective
Crider’s repeating things the jury already knew or would come to
know by the end of the presentation of evidence. See Griffin, 985
P.2d at 19.
22 ¶ 50 We also agree with the People that because the detective
referred to the witnesses “at the party,” and Marentes’ behavior at
the party was uncontested, the detective’s testimony was minimally
prejudicial.
¶ 51 Lastly, as discussed, the evidence of Marentes’ guilt was
overwhelming. See Blecha v. People, 962 P.2d 931, 944 (Colo. 1998)
(independent evidence substantiating the defendant’s conviction
makes erroneously admitted evidence “‘so unimportant and
insignificant’ that it is to be deemed harmless” (quoting Chapman v.
California, 386 U.S. 18, 22 (1967))); People v. Caswell, 2021 COA
111, ¶ 32 (error is harmless beyond a reasonable doubt where
properly admitted evidence of guilt was “overwhelming”), aff’d, 2023
CO 50.5
¶ 52 Having concluded that any Confrontation Clause error was
harmless beyond a reasonable doubt, it follows that any hearsay
error was harmless. Hagos, ¶ 12 (“Reversal is more difficult to
5 Marentes relies on Golob v. People, 180 P.3d 1006 (Colo. 2008).
But in that case, the court only decided whether the testimony at issue was admissible: It didn’t decide whether the error in admitting the testimony required reversal. Id. at 1011. In this case, we decide only the latter question.
23 obtain under [the harmless error standard] than under the
constitutional harmless error standard because this standard
requires that the error impair the reliability of the judgment of
conviction to a greater degree than the constitutional harmless
error standard requires.” (citing Krutsinger v. People, 219 P.3d
1054, 1058 (Colo. 2009)).
C. Prosecutorial Misconduct
¶ 53 Marentes also contends that the district court erred by
allowing the prosecutor to argue that S.D.’s testimony was more
credible because she received immunity from the prosecution. We
disagree.
¶ 54 S.D. testified that she was at both the party and the scene of
Del Valle’s murder. During that testimony, the prosecutor and
Marentes’ counsel asked her about the immunity she had received
in exchange for her truthful testimony. S.D. said immunity meant
that nothing truthful that she said could be used against her. She
also acknowledged that if she were charged as an adult and
convicted for Del Valle’s murder, she could be sentenced to life in
prison with the possibility of parole after forty years.
24 ¶ 55 The prosecutor mentioned S.D.’s immunity during his rebuttal
closing argument:
[Prosecutor:] You also heard that we provided use immunity for [S.D.]. What that means is that we cannot prosecute her for anything that she said on the stand except for perjury. It also means she can’t claim a Fifth Amendment right not to testify. She was ordered to testify. If anything, that situation, immunity, should give more credibility to [S.D.], right?
Defense counsel objected that the prosecutor was vouching for
S.D.’s credibility. The court overruled that objection. The
prosecutor continued,
When she’s on the stand, the only thing she needs to worry about is perjury. We can’t prosecute her for anything she said. That lends credibility to her testimony.
¶ 56 “Prosecutors are generally given ‘wide latitude to make
arguments based on facts in evidence and reasonable inferences
drawn from those facts.’” Ray, ¶ 129 (quoting People v. Strock, 252
P.3d 1148, 1153 (Colo. App. 2010)). But “while prosecutors ‘can
use every legitimate means to bring about a just conviction,’ they
have ‘a duty to avoid using improper methods designed to obtain an
unjust result.’” Id. (quoting Domingo-Gomez v. People, 125 P.3d
25 1043, 1048 (Colo. 2005)). “Comments calculated to mislead the
jury or that suggest the prosecution has access to evidence the
jurors don’t are improper.” Id. (citing Domingo-Gomez, 125 P.3d at
1048-49).
¶ 57 When we review a claim of prosecutorial misconduct, we first
review the prosecutor’s statements to determine whether they were
improper based on the totality of the circumstances. Wend v.
People, 235 P.3d 1089, 1096 (Colo. 2010). If we determine that any
of the statements were improper, we then apply the appropriate
standard of reversal. Id. We review a preserved challenge to
prosecutorial misconduct of nonconstitutional dimension for
harmless error. Id. at 1097.
¶ 58 The evidence of a plea agreement was admissible, as was
evidence of its terms, as it related to the consequences S.D. faced if
she didn’t testify truthfully. People v. Racheli, 878 P.2d 46, 48
(Colo. App. 1994) (Evidence of a plea agreement is admissible to
allow “the finder of fact to consider all the pertinent factors
surrounding such agreement in making its assessment of the
witness’ credibility.”). Though witnesses in a criminal case
26 obviously face the prospect of perjury charges for testifying falsely,
S.D. had added incentive to testify truthfully because, given her role
and the plea agreement, she faced the prospect of imminent, even
more serious charges relating to the murder itself if she testified
untruthfully. Accordingly, the prosecutor could argue that the jury
could use that evidence to determine S.D.’s credibility. See Strock,
252 P.3d at 1153. That is especially so because defense counsel
tried to create the impression on cross-examination that the plea
agreement necessarily shielded her from a potential murder charge.
¶ 59 Marentes asks us to adopt the Ninth Circuit’s reasoning in
United States v. Roberts, 618 F.2d 530 (9th Cir. 1980). In Roberts,
the court concluded that a prosecutor couldn’t argue that a witness
was more believable because he had agreed to testify truthfully in
exchange for a guilty plea on a reduced charge. Id. at 536. But
several other courts, including a division of this court, have rejected
the reasoning in Roberts. See Racheli, 878 P.2d at 48 (courts may
admit “evidence of a plea agreement even if such agreement
requires the witness to testify truthfully as a condition thereof”);
State v. Ish, 208 P.3d 1281, 1287 (Wash. Ct. App. 2009) (the trial
court didn’t abuse its discretion by admitting evidence of a witness’
27 plea agreement requiring him to testify truthfully), aff’d, 241 P.3d
389 (Wash. 2010); see also State v. Flores, 281 A.3d 420, 445
(Conn. 2022) (“[A]lthough it would have been better if this particular
reference to truthfulness had been omitted — and although we
believe that, in the future, the state should avoid such language —
we stop short of concluding that the trial court abused its discretion
in admitting that portion of the cooperation agreement.”). In any
event, even the Ninth Circuit has limited Roberts’ application,
holding that “references to requirements of truthfulness in plea
bargains do not constitute vouching when the references are
responses to attacks on the witness’ credibility because of his plea
bargain.” United States v. Shaw, 829 F.2d 714, 716 (9th Cir. 1987)
(citing cases). And, as noted above, that is what defense counsel
did on cross-examination.
¶ 60 In People v. Sellers, 2022 COA 102 (Sellers I), aff’d on other
grounds, 2024 CO 64 (Sellers II), the division held that
[t]he specifics of a plea agreement between the prosecution and a witness — including the requirement that the witness provide “truthful testimony” — is admissible, at least where the prosecutor does not express an opinion that the witness actually told the truth and there is
28 no suggestion that the prosecutor possesses information unavailable to the jury.
Id. at ¶ 30. Therefore, the court further held, the prosecutor didn’t
commit misconduct by telling the jury in opening statement about a
plea deal the prosecution entered into with a witness to get the
witness to “testify truthfully.” Id. at ¶¶ 29-31.
¶ 61 In this case, too, the prosecutor didn’t express a personal
opinion that S.D. had testified truthfully or indicate that she had
information not before the jury, but instead argued that the
obligation to testify truthfully supported her credibility. Thus, the
prosecutor didn’t commit misconduct.
D. Cumulative Error
¶ 62 We reject Marentes’ cumulative error argument. Considering
the two errors we have assumed for purposes of argument (allowing
the detective’s statements), we don’t perceive that Marentes was
denied his right to a fair trial. Howard-Walker v. People, 2019 CO
69, ¶ 24.
E. LWOP Sentence
¶ 63 Marentes contends that the district court erred by sentencing
him to LWOP for felony murder because that sentence is
29 categorically unconstitutional or, in the alternative, is grossly
disproportionate to his offense in violation of the Eighth
Amendment to the United States Constitution and article II, section
20 of the Colorado Constitution. We reject both contentions.
1. Standard of Review and Applicable Law
¶ 64 “We review de novo the constitutionality of statutes.” Sellers
II, ¶ 16. We also review de novo whether a sentence is grossly
disproportionate to the offense in violation of the Eighth
Amendment and article II, section 20 of the Colorado Constitution.
Wells-Yates v. People, 2019 CO 90M, ¶ 35.
¶ 65 The Eighth Amendment and article II, section 20 provide that
“[e]xcessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.” U.S. Const. amend.
VIII; Colo. Const. art. II, § 20. “This prohibition ‘guarantees
individuals the right not to be subjected to excessive sanctions.’”
Sellers II, ¶ 17 (quoting Miller v. Alabama, 567 U.S. 460, 469
(2012)). “This right stems from the concept that punishment for a
crime should be proportionate to both the offender and the offense.”
Id.
30 2. Categorical Unconstitutionality
¶ 66 Marentes argues that LWOP sentences for felony murder are
categorically unconstitutional. But, as Marentes acknowledges, we
are bound by the supreme court’s decision in Sellers II, in which the
court held that such a sentence isn’t categorically unconstitutional.
3. Disproportionality
¶ 67 Marentes also contends that his sentence is grossly
disproportionate. We disagree.
¶ 68 The Eighth Amendment “forbids only extreme sentences that
are ‘grossly disproportionate’ to the crime.” Wells-Yates, ¶ 5
(quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy,
J., concurring in part and concurring in the judgment)); accord
Rutter v. People, 2015 CO 71, ¶ 15. “[I]n conducting proportionality
reviews in non-capital cases, courts will rarely conclude that a
defendant’s sentence is grossly disproportionate.” Rutter, ¶ 16.
Because fixing prison sentences for crimes is uniquely within the
General Assembly’s province, courts “grant ‘substantial deference to
the broad authority that legislatures necessarily possess in
determining the types and limits of punishments for crimes, as well
as to the discretion that trial courts possess in sentencing convicted
31 criminals.’” Sellers II, ¶ 41 (quoting Solem v. Helm, 463 U.S. 277,
290 (1983)).
¶ 69 To determine whether a sentence is constitutionally
proportionate to the crime, we apply a two-step process. Id. at ¶ 44.
The first step is an abbreviated proportionality review: We consider
“(a) the gravity or seriousness of the offense along with (b) the
harshness of the penalty.” Id. “When a crime is per se grave or
serious, a sentencing court may skip the determination regarding
the gravity or seriousness of the offense and proceed directly to
assess the harshness of the penalty.” Id. at ¶ 48.
¶ 70 If the abbreviated proportionality review gives rise to an
inference of gross disproportionality, we go to step two — the
extended proportionality review. Id. at ¶ 45. In step two, “the court
may compare the defendant’s sentence to sentences for other
crimes in the same jurisdiction and to sentences for the same crime
committed in other jurisdictions.” Id. at ¶ 44.
¶ 71 Applying step one, we agree with the division’s reasoning in
Sellers I: “Felony murder is a per se grave or serious offense
because it necessarily involves committing a violent predicate felony
that results in the death of a person. Thus, every factual scenario
32 giving rise to a charge of felony murder will be grave or serious.”
Sellers I, ¶ 65. And robbery, the predicate crime for Marentes’
felony murder conviction, is also a per se grave or serious crime.
Wells-Yates, ¶ 64 (“A conviction for robbery is per se grave or
serious because it will always involve knowing conduct and grave
harm (or the threat of grave harm) to the victim or society (or
both).”); accord People v. Kennedy, 2025 CO 63, ¶ 19. It would be
an odd result indeed to conclude that robbery loses this status
when it leads to the death of another person.6
¶ 72 Turning to the harshness of the penalty, the facts in this case
are at least as grave or serious as those in Sellers I — in which the
defendant was convicted of conspiracy to murder the victim — and
Harmelin — in which the defendant received a LWOP sentence for
possessing 672 grams of cocaine. See Sellers I, ¶¶ 5-6; Harmelin,
501 U.S. at 988. Marentes conspired with others to rob Del Valle.
Marentes and Junior hid in the shadows with their guns loaded
while M.Z. lured Del Valle from his car and into the street. And as
6 The court instructed the jury that robbery or attempted robbery
was an element of the felony murder charge that the prosecution was required to prove beyond a reasonable doubt. And the court instructed the jury on the elements of robbery.
33 soon as he got out of his car, Marentes ambushed him, shouted
that he was robbing him, raised his gun (with a bullet in the
chamber), and subsequently fired the shot that killed Del Valle. Put
simply, Marentes wasn’t a getaway driver; he was the trigger man.7
¶ 73 We recognize that LWOP is the most severe sentence
authorized by the General Assembly. “Nonetheless, the Supreme
Court has concluded that sentencing certain defendants who have
committed felonies to LWOP does not necessarily run afoul of the
Eighth Amendment.” Sellers II, ¶ 52 (citing Harmelin, 501 U.S. at
994-96). Thus, we conclude that Marentes’ sentence doesn’t give
rise to an inference of gross disproportionality, and therefore an
extended proportionality review isn’t warranted. See id. at ¶ 53.
III. Disposition
¶ 74 We affirm the district court’s judgment and sentence.
JUDGE GROVE concurs.
JUDGE SCHUTZ specially concurs.
7 These facts also support the conclusion that Marentes’ offense
was, in fact, grave or serious. See Sellers v. People, 2024 CO 64, ¶¶ 49-50.
34 JUDGE SCHUTZ, specially concurring.
¶ 75 I agree with the result reached in the majority opinion and
nearly all of the majority’s reasoning. I write separately, however,
because I believe the majority opinion unnecessarily concludes that
felony murder is per se grave or serious.
¶ 76 As the majority correctly notes, in People v. Sellers, 2022 COA
102 (Sellers I), aff’d on other grounds, 2024 CO 64 (Sellers II), a
division of this court held that “[f]elony murder is a per se grave or
serious offense because it necessarily involves committing a violent
predicate felony that results in the death of a person. Thus, every
factual scenario giving rise to a charge of felony murder will be
grave or serious.” Sellers I, ¶ 65.
¶ 77 But the conclusion in Sellers I was not endorsed on appeal.
Rather, the supreme court stated as follows:
[W]e begin by noting that we have never determined whether felony murder is a per se grave or serious offense. Unlike the division below, . . . we perceive no need to decide whether it is because even assuming without deciding that it is not per se grave or serious, the application of the above-described factors to this case establish that Sellers’s offense was, in fact, grave and serious.
Sellers II, ¶ 49.
35 ¶ 78 I would heed the supreme court’s judicial restraint in this case
as well. In my estimation, there is no need to decide whether felony
murder is per se grave or serious because, as the majority correctly
reasons, the specific facts of this case make clear that the felony
murder Marentes committed was grave or serious.
¶ 79 As the supreme court recently reminded us,
[d]espite [the] benefits of efficiency and consistency, we have encouraged caution before labeling a crime as per se grave or serious. Wells-Yates [v. People, 2019 CO 90M], ¶¶ 61-62. We have done so because the label eliminates a longstanding layer of due process for criminal defendants. Hence, we have observed that the per se designation should rarely be used. Id. at ¶ 63.
People v. Kennedy, 2025 CO 63, ¶ 17. Because we have an
alternative option in this case, I would avoid any suggestion that,
“based on the elements of the offense, there’s ‘no set of
circumstances’ where the conduct and culpability of a convicted
individual aren’t grave and serious.” Id. at ¶ 18 (quoting United
States v. Salerno, 481 U.S. 739, 745 (1987)).
¶ 80 Such caution is particularly appropriate in the felony murder
context given recent legislation that changed felony murder from
murder in the first degree to murder in the second degree, see Ch.
36 58, secs. 1, 2, §§ 18-3-102, -103, 2021 Colo. Sess. Laws 235-36,
and established an affirmative defense for someone charged with
felony murder who was not as culpable as others who were involved
in the underlying felony:
It is an affirmative defense to [felony murder] that the defendant:
(a) Was not the only participant in the underlying crime; and
(b) Did not commit the homicidal act or in any way solicit, request, command, importune, cause, or aid the commission thereof; and
(c) Was not armed with a deadly weapon; and
(d) Did not engage himself or herself in or intend to engage in and had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious bodily injury.
§ 18-3-103(1.5), C.R.S. 2025. This legislation, which became
effective after Marentes’s crime, reflects a continuing evolution in
Colorado’s assessment of the severity of felony murder, and it
establishes an affirmative defense for some participants in an
underlying felony murder by which they could now be found not
37 guilty. See Wells-Yates, ¶¶ 54-73 (reviewing recent legislation and
concluding that not all drug offenses, generally, and narcotics
possession, specifically, are per se grave or serious).
¶ 81 Finally, I am persuaded that judicial restraint is particularly
important in creating new classes of “per se grave or serious” crimes
given the supreme court’s ongoing reflection and disagreement on
whether this unique Colorado doctrine should be completely
jettisoned. Compare Kennedy, ¶ 23 (concluding that vehicular
homicide is not per se grave or serious), with id. at ¶ 48 (Boatright,
J., concurring in part and concurring in the judgment) (“[V]ehicular
homicide — DUI should be deemed per se grave or serious . . . .”),
and id. at ¶ 49 (Samour, J., specially concurring) (“[T]here are
compelling reasons for our court to rid our jurisprudence of the ‘per
se grave or serious’ designation in proportionality reviews of
sentences.”).
The recently enacted affirmative defense would not apply to Marentes’s crime because the crime was committed before the statute was enacted and, in any event, his actions did not meet the enumerated criteria for the affirmative defense. But that is the point: The per se grave or serious designation captures any conviction for the labeled offense regardless of the specific actions of differently situated parties convicted under that offense.
38 ¶ 82 Because I think judicial restraint in addressing whether felony
murder is per se grave or serious is particularly warranted in this
case, I would not address that issue in any manner.
Accordingly, I concur in the judgment.