23CA1932 Peo v Montoya 05-28-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1932 Adams County District Court No. 21CR341 Honorable Patrick H. Pugh, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
James Paul Montoya,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VII Opinion by JUDGE SULLIVAN Pawar and Meirink, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 28, 2026
Philip J. Weiser, Attorney General, Melissa D. Allen, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Mallika L. Magner, Alternate Defense Counsel, Crested Butte, Colorado, for Defendant-Appellant ¶1 Defendant, James Paul Montoya, appeals the judgment of
conviction entered on a jury verdict finding him guilty of second
degree kidnapping, first degree assault, three counts of second
degree assault, two counts of first degree burglary, and two counts
of stalking. We affirm.
I. Background
¶2 The following facts are supported by evidence introduced at
trial.
¶3 Montoya and the victim were in a long-term relationship and
lived together with their two daughters. But in August 2020, a
court issued a protection order that, among other things, required
Montoya to vacate the victim’s house and prohibited him from
contacting the victim or visiting locations she frequented. In
response, Montoya moved in with his mother while the victim
continued living at her house with their daughters.
¶4 The court later modified the protection order to allow Montoya
to contact his daughters if authorized by the victim, but it still
prohibited Montoya from visiting the locations the victim
frequented. Nonetheless, communication between Montoya and the
victim became more frequent, and eventually the victim allowed
1 Montoya to visit the house. They spoke about reconciling and
resumed a sexual relationship.
¶5 Montoya then started accusing the victim of cheating, and by
January 2021 things became tense between the two. At that time,
Montoya wasn’t living with the victim but visited her at her house
on weekends.
¶6 On February 4, 2021, the victim returned home after dropping
her daughters off at school. Montoya approached her from around
the side of the house. After going inside together, Montoya told the
victim that he knew she was cheating. He started asking questions,
became increasingly agitated, and eventually put the victim in a
headlock. He slammed the victim’s head into the tile floor and then
cut her laptop’s charging cord with a box cutter, using it to tie her
wrists together. When the victim asked Montoya why he was doing
this, he told her that she had taken his manhood away.
¶7 Montoya then took the victim to the basement and bound her
legs, ankles, and wrists with rope. He put duct tape over her
mouth and asked her questions, ripping the tape off to allow her to
answer. This continued for about five hours.
2 ¶8 During this time, Montoya also cut the victim’s toes, pushed a
box cutter into her leg, sliced off her clothing, burned her cheek
with a lighter, and burned her feet by creating a blowtorch with a
lighter and an aerosol can. He threatened her with death and
continued torture. At one point, the victim admitted to having an
affair.
¶9 Montoya eventually released the victim and fled the scene
before police arrived.
¶ 10 After the February 4 incident, the victim and her daughters
went into hiding. The three started staying at a safe location while
the victim’s brother started staying at her house. The victim and
her brother eventually developed a routine in which the brother
would pick the victim and her daughters up from the safe location
and drop the girls off at school. The two would then go to the
victim’s house to complete chores and spend time with her pets.
¶ 11 On February 26, 2021, consistent with their routine, the
victim’s brother picked up the victim and her daughters and
dropped the girls off at school. The pair then drove to the victim’s
house. The brother let the victim into the home before returning to
the car to grab some things.
3 ¶ 12 Unbeknownst to the victim and her brother, Montoya had
broken into the house and was waiting in the kitchen. He
approached the victim and grabbed her, causing her to scream.
The brother then ran into the house and pushed the victim outside,
telling her to call 911.
¶ 13 Inside the house, Montoya stabbed the brother before fleeing.
The brother exited the house and retrieved a gun from the trunk of
his car. After grabbing the gun, the brother went back inside the
house, realized Montoya was gone, and stepped outside to the
porch. Police officers and an ambulance eventually arrived.
¶ 14 A jury found Montoya guilty of second degree kidnapping, first
degree assault, three counts of second degree assault, two counts of
first degree burglary, and two counts of stalking. It found him not
guilty of attempted first degree murder.
II. Discussion
¶ 15 Montoya appeals. He contends that the trial court erred by
denying his (1) challenge to the prosecution’s use of a peremptory
strike on a Black prospective juror; (2) mistrial requests; and
(3) request that it instruct the jury on heat of passion. We address
and reject each in turn.
4 A. Batson Challenge
¶ 16 Montoya contends that the trial court erred by denying his
challenge to the prosecution’s use of a peremptory strike on Juror B
under Batson v. Kentucky, 476 U.S. 79 (1986). Specifically, he
argues that the court erred because it didn’t (1) perform step three
of the Batson analysis; (2) allow defense counsel to rebut the
prosecution’s argument at Batson’s second step; or (3) weigh all the
pertinent circumstances. He further contends that the court
should have compared Juror B to other empaneled jurors. We
disagree.
1. Applicable Law and Standard of Review
¶ 17 Colorado law permits a party to use a peremptory strike to
excuse a potential juror “for almost any reason.” People v. Johnson,
2024 CO 35, ¶ 11. But the Fourteenth Amendment’s Equal
Protection Clause prohibits excusing a juror based on the juror’s
race. Batson, 476 U.S. at 86-87; Johnson, ¶ 13; see also Colo.
Const. art. II, § 25.
¶ 18 When a party objects to their opponent’s use of a peremptory
strike as racially motivated, Colorado courts follow the three-step
framework set forth in Batson. Johnson, ¶ 17.
5 ¶ 19 At Batson’s first step, the objecting party must make a prima
facie showing that their opponent used a peremptory strike based
on the juror’s race. Johnson, ¶ 18. At step two, the burden shifts
to the striking party to provide a race-neutral explanation for using
the strike. Id. at ¶ 19. The objecting party may then rebut the
striking party’s stated reason. Id.
¶ 20 At step three, the court must consider all the circumstances
related to purposeful discrimination, including the striking party’s
demeanor, the reasonableness of the striking party’s race-neutral
explanation, and whether that explanation is based in acceptable
trial strategy. Id. at ¶ 20. While the court must consider all
relevant evidence, it need not make express findings regarding how
that evidence contributed to its ultimate conclusion. People v.
Beauvais, 2017 CO 34, ¶ 32.
¶ 21 To prevail on a Batson challenge, the objecting party must
prove purposeful discrimination by a preponderance of the
evidence. Johnson, ¶ 21; see also Beauvais, ¶ 24 (a trial court
should sustain a Batson challenge only if the non-discriminatory
reasons are so incredible that a discriminatory hypothesis better
fits the evidence). And “the ultimate burden of persuasion
6 regarding racial motivation rests with, and never shifts from, the
opponent of the strike.” Johnson, ¶ 20 (quoting People v. Wilson,
2015 CO 54M, ¶ 14).
¶ 22 We review a trial court’s conclusions at step one and step two
de novo. Id. at ¶ 21. But we review a trial court’s step-three
conclusion for clear error. Id. We therefore defer to a trial court’s
ultimate Batson ruling if the record (1) demonstrates that the court
considered all relevant circumstances and (2) supports the court’s
conclusion. People v. Romero, 2024 CO 62, ¶¶ 47, 66.
2. Additional Background
¶ 23 During voir dire, the prosecutor asked prospective jurors to
raise their hands if they knew anyone who had been a victim of
domestic violence. Many raised their hands, and the prosecutor
questioned some of them individually. Juror B, who was Black,
raised his hand but asked to discuss his experience in private.
¶ 24 Defense counsel then individually asked nineteen prospective
jurors whether they thought someone could claim to be a victim of
domestic violence but exaggerate what had happened. Each
answered affirmatively. Defense counsel deferred asking Juror B
the same question until their private discussion.
7 ¶ 25 The parties and the court then questioned Juror B in private.
Juror B stated that he had a deferred judgment in a domestic
violence case from approximately ten years ago. While he felt he
had been treated fairly by “the system,” he said he thought the
required classes were “a little overboard.”
¶ 26 Juror B also agreed with defense counsel that domestic
violence victims may exaggerate, noting that someone could hold a
towel to a minor cut on their knee to make it look like they lost a
significant amount of blood. He suggested that such a scenario had
occurred in his case. But Juror B consistently stated that he
wouldn’t hold his experience against either party, their attorneys, or
police officers. When asked by the court whether anything about
his experience would render him unable to be fair and impartial to
both sides, Juror B responded, “Not at all.”
¶ 27 Later that day, the prosecution used a peremptory strike to
dismiss Juror B. Defense counsel raised a Batson challenge.
¶ 28 Defense counsel argued that everyone agreed Juror B was fair,
and that Juror B said he wouldn’t hold his domestic violence case
against anyone. Defense counsel therefore requested that the
8 prosecution provide a race-neutral reason for striking one of only
two Black jurors on the panel.
¶ 29 In response, the prosecutor agreed that Juror B was
reasonable. But she argued that Juror B was biased against
domestic violence victims, minimized his behavior in his own
domestic violence case, and offered an example of a domestic
violence victim allegedly exaggerating that was similar to an
allegation in the instant case.
¶ 30 The trial court agreed that defense counsel had made a prima
facie showing that the prosecution’s peremptory strike was based
on Juror B’s race. But it also found that the prosecutor provided a
race-neutral explanation for the strike. While the court
acknowledged that Juror B stated he could be fair despite his prior
domestic violence case, the court ultimately denied Montoya’s
Batson challenge.
3. Analysis
¶ 31 We first reject Montoya’s contentions that the trial court didn’t
perform step three of the Batson analysis or allow defense counsel
to rebut the prosecutor’s race-neutral explanation at the second
step. By denying the Batson challenge, the court implicitly
9 performed step three and credited the prosecution’s race-neutral
explanation. See Romero, ¶¶ 20, 62; Beauvais, ¶¶ 32-33. And
while defense counsel never presented any argument after the
prosecutor provided a race-neutral explanation, it was defense
counsel’s responsibility to challenge that explanation. See Johnson,
¶ 20; People v. O’Shaughnessy, 275 P.3d 687, 694 (Colo. App. 2010)
(Because defendant bears the burden of proving discrimination,
“the trial court properly could have considered defendant’s failure to
rebut as acquiescence in the prosecution’s explanation.”), aff’d,
2012 CO 9; cf. People v. Hall, 2021 CO 71M, ¶ 32 (“We do not
believe that defense counsel was deprived of [the opportunity to
present additional argument] merely because counsel declined the
opportunity.”).
¶ 32 As to Montoya’s remaining contentions, we conclude that the
trial court “considered all the relevant circumstances” and that the
record supports its ruling that Montoya failed to prove purposeful
discrimination by a preponderance of the evidence. See Romero,
¶¶ 47, 66.
¶ 33 The prosecutor’s explanation — including Juror B’s attitude
toward domestic violence victims and the example of a victim’s
10 exaggerated injury he provided from his own domestic violence
case — is supported by the record. See Beauvais, ¶ 33. Moreover,
the trial court didn’t find the prosecutor’s explanation pretextual,
nor did it find that the prosecutor wasn’t credible. See id.
¶ 34 The record also reflects that the trial court considered Juror
B’s statements that he could be fair despite his prior domestic
violence case. See id. at ¶¶ 33-34. And while we agree that the
court apparently didn’t compare Juror B to other stricken jurors,
defense counsel didn’t ask the court to do so. Cf. id. at ¶ 50 (“At the
very least, an objecting party’s failure to raise an alleged similarity
to the trial court suggests that it is not a useful comparison.”).
¶ 35 Still, we may conduct our own comparative analysis if “the
record facilitates a comparison of whether the jurors are similarly
situated.” Id. at ¶ 52. An empaneled juror is similarly situated to a
stricken juror if they have “the same characteristics for which the
striking party dismissed the [stricken] juror.” Id. at ¶ 57.
¶ 36 Here, Montoya argues that, like Juror B, several empaneled
jurors agreed that domestic violence victims may exaggerate their
injuries. But none of those jurors identified themselves as a
defendant in a prior domestic violence case. Id. at ¶¶ 57-61. Nor
11 did any empaneled juror offer a detailed example, like Juror B’s, of
a domestic violence victim exaggerating their injuries that
resembled an allegation in this case. Id.
¶ 37 Accordingly, we conclude that the trial court didn’t err by
denying Montoya’s Batson challenge.
B. Mistrial
¶ 38 Montoya next contends that the trial court erred by denying
his mistrial motions. In seeking a mistrial, Montoya asserted that
the court improperly allowed the jury to hear testimony from
(1) Montoya’s son that he was cooperating with police because he
didn’t want his sisters going through “that”; and (2) the victim’s
neighbor about Montoya being an aggressive person. Montoya
argues that this testimony was improper under CRE 404(b) and
that no remedy could cure the prejudice. We perceive no error.
1. Standard of Review and Applicable Law
¶ 39 A mistrial is a drastic remedy, and a trial court has broad
discretion to grant or deny a mistrial motion. People v. Owens,
2024 CO 10, ¶ 125. We reverse only if we find a “gross abuse of
discretion” that caused “prejudice to the defendant [that was] too
substantial to be remedied by other means.” Id.
12 ¶ 40 In determining whether a mistrial is warranted, a court
considers “the nature of the inadmissible evidence, the weight of the
admissible evidence of the defendant’s guilt, and the value of a
cautionary instruction.” People v. Van Meter, 2018 COA 13, ¶ 11.
Fleeting or ambiguous references to a defendant’s prior bad acts are
less prejudicial and typically don’t warrant a mistrial. People v.
Salas, 2017 COA 63, ¶ 12. And because we presume that a jury
understands and follows a trial court’s curative instructions, a
mistrial is warranted when the court gives a curative instruction
only if “the evidence at issue ‘is so highly prejudicial . . . it is
conceivable that but for its exposure, the jury may not have found
the defendant guilty.’” Owens, ¶ 128 (quoting People v. Goldsberry,
509 P.2d 801, 803 (Colo. 1973)).
¶ 41 The following exchange occurred while Lazareth Dominguez,
Montoya’s son, was testifying on redirect for the prosecution:
[PROSECUTOR]: And is it fair to say, prior to February of 2021, you and your dad were working on repairing your relationship?
[DOMINGUEZ]: Yes.
13 [PROSECUTOR]: But despite this, you were cooperating with the police in your father’s apprehension?
[PROSECUTOR]: And why were you doing that?
[DOMINGUEZ]: Because – I mean, my sisters didn’t deserve any of that.
¶ 42 Defense counsel objected, but the trial court overruled the
objection and allowed the prosecutor to repeat the question:
[PROSECUTOR]: Why were you cooperating with the police?
[DOMINGUEZ]: For my sisters’ sake really. I grew up like that. And it was just something I didn’t want them to keep going through either. So I thought enough was enough.
¶ 43 Defense counsel then requested a mistrial, arguing the
prosecution had improperly introduced evidence prohibited by
CRE 404(b). See CRE 404(b)(1) (“Evidence of any other crime,
wrong, or act 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.”). The trial court found that the
prosecutor’s question didn’t elicit prohibited testimony, although
the testimony implicated some “generic” prior behavior. The court
14 therefore instructed the jury to disregard the question and answer.
The court concluded, however, that the testimony didn’t prejudice
Montoya enough to warrant granting a mistrial.
¶ 44 Later the same day, the following exchange occurred during
the prosecution’s direct examination of the victim’s neighbor:
[PROSECUTOR]: . . . I think [the last question] was describe your relationship with Mr. Montoya and [the victim].
[NEIGHBOR]: Yeah. We pretty much know them from just -- from outside because we never actually have -- I think with Mr. Montoya it was just one time we have a conversation. And from the other neighbors, we kind of knew that he was kind of, like, an aggressive person.
¶ 45 Defense counsel objected, and the trial court sustained the
objection and ordered the jury to disregard the testimony. Defense
counsel then requested a mistrial, arguing the court had now
allowed the jury to hear improper testimony from both the neighbor
and Dominguez. Before ruling on that request, the court permitted
the prosecution to attempt to rehabilitate the neighbor.
¶ 46 In denying Montoya’s second mistrial motion, the court found
that the prosecution didn’t deliberately elicit Dominguez’s or the
neighbor’s challenged testimony. It also noted that both statements
15 were fleeting and ambiguous and that “the evidence against
[Montoya] does appear to be substantial.”
¶ 47 Even so, the court wasn’t convinced that the neighbor could
be rehabilitated or refrain from making off-the-cuff remarks. It
therefore struck his entire testimony and precluded him from
testifying. It also allowed Montoya to submit a curative jury
instruction and directed the jury to disregard the neighbor’s
testimony.
¶ 48 We will assume without deciding that the testimony above that
Montoya challenges was inadmissible under CRE 404(b). See
People v. Vigil, 718 P.2d 496, 505 (Colo. 1986) (“We assume for
purposes of discussion that the reference to contraband qualifies as
evidence of a crime other than the crimes for which the defendant
was on trial.”). But even making that assumption, we conclude the
trial court didn’t err by denying Montoya’s requests for a mistrial.
We reach this conclusion for five reasons.
¶ 49 First, we agree with the trial court that the prosecution didn’t
deliberately elicit improper testimony. Salas, ¶ 17; People v. Scott,
10 P.3d 686, 689 (Colo. App. 2000). Defense counsel asked
16 Dominguez questions on cross-examination regarding his
relationship with his father, including that, “from about 12 to 18
years old, your dad wasn’t really involved in your life at all, right?”
Given this, we agree with the trial court that defense counsel’s
questions were meant “to show that there was some distance
between Mr. Dominguez and Mr. Montoya,” rendering it permissible
for the prosecutor to ask Dominguez clarifying questions about
their relationship on redirect, including why he was assisting the
prosecution. See Abeyta v. People, 400 P.2d 431, 432 (Colo. 1965)
(prosecutor has an “unqualified right” to rebut unfavorable
inferences the jury may have drawn from the cross-examination of a
witness); People v. Nunez, 684 P.2d 945, 947 (Colo. App. 1984)
(defense counsel opened the door to prosecutor’s question about
what the witness had received in exchange for her testimony by
repeatedly asking the witness if she had received a deal to testify).
¶ 50 As to the neighbor, the prosecutor asked only that he describe
his relationship with the victim and Montoya; counsel didn’t ask
about the neighbor’s opinion of Montoya or about Montoya’s
reputation.
17 ¶ 51 Second, neither statement explicitly referred to Montoya’s
prior acts. See Salas, ¶ 15. Indeed, Dominguez’s statements were
ambiguous. Rather than referencing prior bad acts by Montoya,
Dominguez merely mentioned growing up “like that,” a generic
statement that could refer to almost anything. See Scott, 10 P.3d at
689. The neighbor similarly didn’t mention any specific prior bad
act by Montoya but instead said that he was an “aggressive person.”
¶ 52 Third, we agree with the trial court that the evidence of
Montoya’s guilt was substantial. See Vigil, 718 P.2d at 506.
Specifically, the jury heard evidence that Montoya
• used a GPS tracker that he installed on the victim’s car
and a camera that he installed in her bedroom to keep
tabs on her;
• followed the victim;
• sent the victim constant messages accusing her of
cheating and asking her to confirm her location;
• bound the victim’s arms and legs with a computer cord
and tortured her for hours;
• broke into the victim’s home, grabbed her, and stabbed
her brother; and
18 • wrote letters to family members expressing remorse and
disparaging the victim.
¶ 53 Fourth, Dominguez’s statements were brief. Van Meter, ¶ 13.
And the neighbor’s statement was a “single, fleeting, nonresponsive
comment.” Salas, ¶ 15.
¶ 54 Finally, the court gave curative instructions and struck the
challenged testimony. See id. at ¶ 17; People v. Cousins, 181 P.3d
365, 373 (Colo. App. 2007) (“We presume the jurors followed the
court’s curative instruction.”). In addition, the court went further
by prohibiting the neighbor from testifying. Cf. Owens, ¶ 130
(mistrial not warranted when court “employed several curative
measures”).1
¶ 55 Given all this, we conclude the trial court didn’t abuse its
discretion by denying Montoya’s mistrial motions. See Salas,
¶¶ 15-18.
1 To the extent Montoya argues that the court needed to confirm
that the testimony complied with the requirements of People v. Spoto, 795 P.2d 1314 (Colo. 1990), before admitting it, we note that the trial court didn’t admit the testimony; rather, the court struck the testimony and instructed the jury to disregard it.
19 C. Heat of Passion Instruction
¶ 56 Montoya last contends that the trial court erred by denying his
request to provide the jury with a heat of passion instruction.2 He
argues that the evidence supported the inference that, on February
26, the victim’s brother “surprised [him] with [a] gun,” an act that
satisfied the low standard required to entitle him to a heat of
passion instruction. We disagree.
¶ 57 Heat of passion is a mitigating circumstance that, if proved by
the defense, reduces a second degree assault conviction from a
class 4 felony to a class 6 felony. § 18-3-203(2)(a), (b), C.R.S. 2025;
People v. Howard, 89 P.3d 441, 444 (Colo. App. 2003). Heat of
passion requires the defense to prove that (1) the defendant acted
“upon a sudden heat of passion”; (2) caused by the intended
victim’s “serious and highly provoking act”; (3) that was sufficient
“to excite an irresistible passion in a reasonable person”; and (4) the
interval between the provoking act and the injury was insufficient
2 Colorado courts have used the terms “heat of passion” and
“provocation” interchangeably in this context. See Cassels v. People, 92 P.3d 951, 955 n.5 (Colo. 2004). For consistency, we use heat of passion throughout this opinion.
20 for the defendant to hear “the voice of reason and humanity.” § 18-
3-203(2)(a); see Howard, 89 P.3d at 444.
¶ 58 The trial court must provide the jury with a heat of passion
instruction if the defendant shows some supporting evidence on
each element, regardless of how incredible, unreasonable,
improbable, or slight it may be. Cassels v. People, 92 P.3d 951, 956
(Colo. 2004); Howard, 89 P.3d at 445. But the defendant is entitled
to the instruction only if “the heat of passion is unexpected,
unforeseen, and immediate.” People v. Valdez, 183 P.3d 720, 723
(Colo. App. 2008). Thus, no instruction is necessary “when a
person intentionally seeks out the highly provoking act in question.”
Id.
¶ 59 We review de novo whether sufficient evidence supported a
requested heat of passion instruction. See Castillo v. People, 2018
CO 62, ¶ 32. In doing so, we consider the evidence in the light most
favorable to the defendant. Cassels, 92 P.3d at 955.
¶ 60 Montoya’s contention relies primarily on the testimony of a
bystander who was sitting in a car across the street from the
victim’s house on February 26. The bystander’s testimony
21 suggested that Montoya didn’t stab the victim’s brother until after
the brother returned to the house with a gun.
¶ 61 Defense counsel asked the trial court to provide a heat of
passion interrogatory to the jury based on the bystander’s
testimony. The court denied the request, reasoning that it wasn’t
“unexpected or unforeseen that [the victim] or someone else would
attempt to protect either the home or [the victim] from further
incidents after an unlawful entry by [Montoya], particularly in
consideration of the events of February 4.”
¶ 62 The undisputed evidence established that Montoya was
already inside the victim’s house on February 26 when the victim
and her brother arrived. Because Montoya broke into the victim’s
house, in violation of a protection order, he intentionally put
himself in the provoking situation and therefore wasn’t entitled to a
heat of passion instruction. See Valdez, 183 P.3d at 723 (defendant
wasn’t entitled to heat of passion instruction because he
“intentionally put himself in the provoking situation by going to his
estranged wife’s house for the purpose of being there while she
engaged in sexual relations with her boyfriend”).
22 ¶ 63 We aren’t convinced otherwise by Montoya’s argument that the
victim frequently permitted Montoya to access the house despite the
protection order. Montoya doesn’t point to any evidence suggesting
that the victim continued to allow him access to the house after the
February 4 incident; to the contrary, the victim had moved out of
the house and into a safe location to avoid encountering Montoya.
¶ 64 Nor are we convinced by Montoya’s attempts to distinguish
Valdez. Indeed, the two cases are similar. Like the defendant in
Valdez, Montoya broke into his former partner’s house, in violation
of a protection order and with the knowledge that she was in a
relationship with another person. See id. at 722-23. Under such
circumstances, both defendants could have reasonably foreseen
that breaking into their former partners’ house might lead to a
confrontation.
¶ 65 Accordingly, the trial court didn’t err by denying Montoya’s
requested heat of passion instruction.
III. Disposition
¶ 66 We affirm the judgment.
JUDGE PAWAR and JUDGE MEIRINK concur.