23CA0860 Peo v Montoya 06-04-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0860 Alamosa County District Court No. 22CR5011 Honorable Kim Cortez-Rodriguez, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Gilberto Andres Montoya,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division V Opinion by JUDGE LIPINSKY Yun and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 4, 2026
Philip J. Weiser, Attorney General, Patrick A. Withers, Assistant Solicitor General and Senior Assistant Attorney General, Denver, Colorado, for Plaintiff- Appellee
Megan A. Ring, Colorado State Public Defender, Julieanne Farchione, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Gilberto Andres Montoya appeals his convictions for first
degree burglary, second degree burglary, and menacing with a
deadly weapon. We reverse his conviction for first degree burglary
but otherwise affirm the judgment.
I. Background
¶2 A jury could have reasonably found the following facts from
the evidence introduced at trial.
¶3 One night, when a family, including a married couple (the
victims), returned home, they discovered that their front door was
open and that someone had entered the rental house where they
lived. The wife found Montoya, whom she recognized as the
landlord’s son, behind the house. She confronted Montoya, who
grabbed a steak knife and held it up to her. Montoya remained
behind the house, where he was arrested.
¶4 The victims smelled gasoline throughout the house. They also
discovered that the house had been “trashed” — an intruder had
strewn dishes and clothes everywhere, broken the hot water heater,
unplugged appliances, opened windows, and torn off closet doors.
¶5 Montoya was charged with first degree burglary, a class 3
felony; second degree burglary, a class 3 felony; and menacing with
1 a deadly weapon, a class 5 felony. The jury convicted Montoya as
charged.
¶6 On appeal, Montoya contends that the trial court erred by
(1) violating his statutory and constitutional speedy trial rights;
(2) failing to instruct the jury that first degree trespass is a lesser
included offense of first and second degree burglary; (3) not merging
his convictions for second degree burglary and menacing into his
conviction for first degree burglary; (4) denying his requests for
certain state-paid support services; and (5) rejecting his requests for
a change of venue.
II. Analysis
A. Montoya’s Speedy Trial Rights
¶7 Montoya contends that the trial court violated his statutory
and constitutional rights to a speedy trial. We disagree.
¶8 Because a defendant’s constitutional and statutory speedy
trial rights are different, we analyze those rights separately. See
People v. Harris, 914 P.2d 425, 430 (Colo. App. 1995) (“The
constitutional right to a speedy trial, derived from the Sixth
Amendment and from Colo. Const. art. II, § 16, is distinct from the
2 statutory speedy trial right and the determination as to one does
not necessarily dispose of the other.”).
1. The Trial Court Did Not Violate Montoya’s Statutory Speedy Trial Right
a. Standard of Review
¶9 We “review the [trial] court’s findings of fact for clear error,
disregarding them only if the record is devoid of support.” People v.
West, 2019 COA 131, ¶ 7, 461 P.3d 591, 596. However, we “review
de novo the trial court’s interpretation of Colorado’s speedy trial
statute.” Id.
b. Montoya Was Tried Within the Statutory Speedy Trial Period
¶ 10 Montoya argues that his statutory speedy trial right was
violated because he was brought to trial after the statutory
deadline, calculated from the date of his preliminary hearing
conducted in county court. We disagree.
¶ 11 A defendant must be brought to trial “within six months from
the date of the entry of a plea of not guilty.” § 18-1-405(1), C.R.S.
2025. If trial does not begin within that period, the charges must
be dismissed with prejudice. Id. For purposes of the statute, a
“month” is calculated by counting forward to the “same numerical
3 day in the concluding month as the day of the month from which
the computation is begun.” § 2-4-108(3), C.R.S. 2025; see West,
¶ 15, 461 P.3d at 597 (applying section 2-4-108 to calculate the
statutory speedy trial period).
¶ 12 In felony cases, a defendant must enter a plea in district court.
See Colo. Const. art. VI, § 9(1) (“The district courts shall be trial
courts of record with general jurisdiction, and shall have original
jurisdiction in all civil, probate, and criminal cases . . . .”). In
contrast, the county courts lack jurisdiction over felony
prosecutions. Colo. Const. art. VI, § 17 (“County courts shall have
such civil, criminal, and appellate jurisdiction as may be provided
by law, provided such courts shall not have jurisdiction of
felonies . . . .”).
¶ 13 Montoya entered a plea of not guilty at his arraignment in
district court on August 16, 2022. Calculating six months from
that date yields a speedy trial deadline of February 16, 2023. See
§ 2-4-108(3). Montoya’s trial began on February 13, 2023 — three
days before the expiration of that deadline. Accordingly, the trial
court did not violate Montoya’s statutory speedy trial right. See
§ 18-1-405(1).
4 ¶ 14 Nonetheless, Montoya argues that the speedy trial period did
not begin on August 16 but, rather, on July 21, 2022, when he
announced at a preliminary hearing conducted in county court that
he wanted to plead not guilty. For the reasons noted above,
however, the county court lacked jurisdiction to accept Montoya’s
plea to the felony charges. See Colo. Const. art. VI, § 17; see also
§ 13-6-106, C.R.S. 2025 (outlining county courts’ limited
jurisdiction).
¶ 15 At the preliminary hearing, the county court explained that its
role was limited to determining whether there was probable cause
for the felony counts against Montoya. If probable cause existed,
the court continued, it would “bind [the case] over to the [d]istrict
[c]ourt as quickly as” it could. At the conclusion of the hearing, the
county court found probable cause for the case to be bound over,
and all further proceedings in the matter were conducted in district
court.
¶ 16 Accordingly, Montoya’s attempt to plead not guilty at the
preliminary hearing in county court had no legal effect. See People
v. Jachnik, 116 P.3d 1276, 1277 (Colo. App. 2005) (“[A]bsent a valid
appointment order, a county court judge lacks jurisdiction to act as
5 a district court judge and preside over any stage of a felony trial.
Thus, a verdict reached under such circumstances is void.”).
¶ 17 Montoya argues that, even if his attempted plea was
“irregular[],” it still triggered his statutory speedy trial right under
Harrington v. District Court, 559 P.2d 225, 227 (Colo. 1977). We
disagree.
¶ 18 In Harrington, the supreme court concluded that the
defendant’s written not guilty plea, entered through counsel, was
“not in accordance with the statutes and court rules of procedures.”
Id. Nevertheless, the court held that the plea was effective to
commence the statutory speedy trial period for two reasons. See id.
First, the trial court and the parties had “affirmatively proceeded on
the basis that a plea of not guilty had been entered.” Id. Second,
because arraignment procedures are designed to protect
defendants, a defendant may “waive any technical irregularity in the
proceeding” so long as none of his substantial rights are affected.
Id.
¶ 19 Montoya’s reliance on Harrington is misplaced.
¶ 20 Unlike in Harrington, the county court explicitly told Montoya
that it lacked authority to receive his plea, stating that its role was
6 limited to conducting the preliminary hearing in his case. At
Montoya’s arraignment on August 16, 2022, the district court
reaffirmed the county court’s statements by telling Montoya that he
could not enter his plea in county court. The district court
explained that only a district court can accept the defendant’s plea
in a felony case. Further, at his next appearance in the district
court, Montoya confirmed that he had entered his not guilty plea on
August 16.
¶ 21 Therefore, unlike in Harrington, neither the courts nor the
parties in this case “affirmatively proceeded on the basis that a plea
of not guilty had been entered” at the county court preliminary
hearing or otherwise presumed Montoya had pleaded not guilty
before August 16. Id.
¶ 22 In addition, Harrington dealt with procedural irregularities —
not jurisdictional defects — under the criminal rules. The
defendant in that case was charged with driving under the
influence — a class 1 traffic misdemeanor — and not a felony. See
id. at 226-27. The parties in Harrington did not contest the county
court’s jurisdiction over the misdemeanor charge. Rather, the only
defect that the supreme court identified in Harrington was a
7 procedural irregularity under the Colorado Rules of Criminal
Procedure — defense counsel’s submission of his client’s written
plea, which was “not in accordance with” Crim. P. 10(a) or Crim. P.
11(c). Id. at 227.
¶ 23 The procedural defect in Harrington was materially different
from the jurisdictional defect in this case, when the county court
lacked authority to accept Montoya’s felony plea. See Colo. Const.
art. VI, § 17. Moreover, unlike the procedural protections identified
in Harrington, parties “cannot consent to or waive jurisdiction when
a court does not have jurisdiction.” People in Interest of D.S., 2012
COA 199, ¶ 7, 292 P.3d 1210, 1212. Accordingly, Montoya’s
attempted plea in county court on July 21 had no legal effect.
¶ 24 Montoya also presents an alternative argument: that the
speedy trial period began to run on August 2 — the date of his first
appearance in district court. The district court continued
Montoya’s first appearance date because it conducted the August 2
proceeding via Webex, and Montoya asserted his right to appear in
person.
¶ 25 This argument runs afoul of the plain language of the speedy
trial statute, which specifies that the six-month speedy trial period
8 begins to run “from the date of the entry of a plea of not guilty.”
§ 18-1-405(1) (emphasis added). Montoya relies on inapposite rules
and on section 18-1-1001(2), C.R.S. 2025 — a protection order
statute — to assert that a defendant’s first appearance is equivalent
to an arraignment at which the defendant pleads not guilty. We
decline Montoya’s invitation to rewrite section 18-1-405(1). See
McBride v. People, 2022 CO 30, ¶ 27, 511 P.3d 613, 618 (“We must
apply our statute as written, and we may not add words to it.”).
¶ 26 In sum, Montoya’s speedy trial period began on August 16,
2022, when he entered a not guilty plea in district court. Because
Montoya’s trial commenced within six months of that date, the trial
court did not violate his statutory speedy trial right.
2. The Trial Court Did Not Violate Montoya’s Constitutional Speedy Trial Right
¶ 27 We review de novo a trial court’s decision on whether a
defendant was deprived of his constitutional speedy trial right.
People v. Glaser, 250 P.3d 632, 636 (Colo. App. 2010).
9 b. The Length of the Delay in Montoya’s Trial Was Not Presumptively Prejudicial
¶ 28 Montoya contends that the trial court violated his
constitutional right to a speedy trial. We disagree.
¶ 29 As noted, both the United States and Colorado constitutions
guarantee the right to a speedy trial. Id. at 635. “[T]he defendant
has the burden of proving that his constitutional speedy trial right
has been denied.” Id. (quoting People v. Small, 631 P.2d 148, 154
(Colo. 1981)).
¶ 30 In evaluating a defendant’s constitutional speedy trial claim,
“[t]here is no established time period that automatically constitutes
undue delay.” Id. Instead, “[t]he determination of such a claim is
measured by an ad hoc balancing of four factors” — known as the
Barker factors — “the length of the delay, the reasons for the delay,
the defendant’s assertion or demand for a speedy trial, and
prejudice to the defendant.” Id.; see Barker v. Wingo, 407 U.S. 514,
530 (1972).
¶ 31 No single Barker factor is dispositive. See Glaser, 250 P.3d at
636. However, if the length of the delay is not “presumptively
prejudicial” under the first Barker factor, no further analysis is
10 necessary. People v. Sandoval-Candelaria, 2014 CO 21, ¶ 39, 321
P.3d 487, 493. A delay generally becomes “presumptively
prejudicial” when the time between charging or arrest and trial
approaches one year. Id. at ¶ 36, 321 P.3d at 493.
¶ 32 Montoya’s trial began on February 13, 2023, eight months and
three days after his arrest on June 10, 2022.
¶ 33 An eight-month delay is less than the one-year period that
marks a presumptively prejudicial delay. See People v. O’Neill, 523
P.2d 123, 125 (Colo. 1974) (holding that there was no constitutional
speedy trial violation arising from a ten-month delay because the
defendant failed to show that his trial was not held “within a period
of time consistent with the court’s trial docket”); West, ¶ 14, 461
P.3d at 596-97 (“[T]he constitutional right attached at the time of
[the defendant’s] arrest, which was eight months and six days
before the first day of trial. . . . Accordingly, we conclude that the
delay here did not prejudice [the defendant] and thus we need not
consider the remaining factors.” (citations omitted)). Because the
delay in Montoya’s case did not approach the one-year threshold for
presumptive prejudice, Montoya’s constitutional claim fails, and we
11 need not analyze the remaining Barker factors. See Sandoval-
Candelaria, ¶ 39, 321 P.3d at 493.
¶ 34 For these reasons, we conclude that Montoya failed to
establish that the trial court violated his constitutional speedy trial
right.
B. The Proposed Instruction that First Degree Trespass Is a Lesser Included Offense of First Degree Burglary
¶ 35 Montoya contends that the trial court erred by denying his
request for a jury instruction explaining that first degree trespass is
a lesser included offense of first degree burglary. We agree.
However, we reject Montoya’s unpreserved argument that the court
should also have instructed the jury that first degree trespass is a
lesser included offense of second degree burglary.
1. Standard of Review
¶ 36 We review de novo whether one offense is a lesser included
offense of another. People v. Lopez, 2020 COA 119, ¶¶ 7-8, 471
P.3d 1285, 1287-88.
2. Additional Facts
¶ 37 During the jury instruction conference, Montoya asked the
court for an instruction that first degree trespass is a lesser
12 included offense of first degree burglary and that second degree
trespass is a lesser included offense of second degree burglary. The
prosecutor objected to both requests, asserting that, under People v.
Garcia, 940 P.2d 357, 362 (Colo. 1997), abrogated by, Reyna-
Abarca v. People, 2017 CO 15, 390 P.3d 816, first degree trespass is
not a lesser included offense of first (or second) degree burglary.
The prosecutor argued that, unlike first and second degree
burglary, first degree trespass requires proof of entry into a
dwelling.
¶ 38 The trial court concluded that first degree criminal trespass is
not a lesser included offense of first degree burglary and declined to
give the requested instruction. However, the court agreed with
Montoya that second degree trespass is a lesser included offense of
second degree burglary and instructed the jury accordingly.
3. The Trial Court Erred by Not Instructing the Jury that First Degree Trespass Is a Lesser Included Offense of First or Second Degree Burglary
¶ 39 Montoya argues, the People concede, and we agree, that the
court erred by not instructing the jury that first degree trespass is a
lesser included offense of first or second degree burglary.
13 ¶ 40 “A person commits the crime of first degree criminal trespass
if,” as relevant here, such person “[k]nowingly and unlawfully enters
or remains in a dwelling of another.” § 18-4-502(1)(a), C.R.S. 2025.
¶ 41 A person commits first degree burglary if the person
knowingly enters unlawfully, or remains unlawfully after a lawful or unlawful entry, in a building or occupied structure with intent to commit therein a crime, other than trespass as defined in this article, against another person or property, and if in effecting entry or while in the building or occupied structure or in immediate flight therefrom, the person or another participant in the crime assaults or menaces any person.
§ 18-4-202(1), C.R.S. 2025.
¶ 42 Finally, a person commits second degree burglary if the person
“knowingly breaks an entrance into, enters unlawfully in, or
remains unlawfully after a lawful or unlawful entry in a building or
occupied structure with intent to commit therein a crime against
another person or property.” § 18-4-203(1), C.R.S. 2025.
¶ 43 As relevant here, one offense is included within another if it “is
established by proof of the same or less than all the facts required
to establish the commission of the offense charged,”
§ 18-1-408(5)(a), C.R.S. 2025, or if it “differs from the offense
14 charged only in the respect that a less serious injury or risk of
injury to the same person, property, or public interest or a lesser
kind of culpability suffices to establish its commission,”
§ 18-1-408(5)(c). Under this test, “[a]n offense is a lesser-included
offense if at least one of the ways to commit the greater offense
necessarily establishes all the elements of the lesser offense.”
Whiteaker v. People, 2024 CO 25, ¶¶ 11, 18, 547 P.3d 1122,
1125-26.
¶ 44 A trial court must give a lesser included offense instruction
when “some evidence tend[s] to establish the lesser included
offense,” People v. Stafford, 890 P.2d 244, 248 (Colo. App. 1994),
and there is a “rational basis for a verdict acquitting the defendant
of the offense charged and convicting him of the included offense,”
§ 18-1-408(6).
¶ 45 “[I]n deciding whether to instruct the jury on a lesser offense
requested by the defense, a trial court must consider the evidence
in the light most favorable to the defendant.” Lopez, ¶ 9, 471 P.3d
at 1288. “The lesser offense instruction is designed to ‘help[]
ensure that a jury does not convict a defendant of a greater offense
than the one actually committed merely because the greater offense
15 is the only crime charged.’” Id. at ¶ 14, 471 P.3d at 1289 (quoting
People v. Naranjo, 2017 CO 87, ¶ 16, 401 P.3d 534, 538).
¶ 46 First degree trespass is a lesser included offense of both first
degree burglary, People v. Miller, 2024 COA 66, ¶¶ 68-69, 556 P.3d
1262, 1273-74, and second degree burglary, Whiteaker, ¶ 20, 547
P.3d at 1126-27. (Although we are not bound by the division’s
decision in Miller, see Campbell v. People, 2020 CO 49, ¶ 41, 464
P.3d 759, 767, we agree with the division’s reasoning in that case.)
¶ 47 First degree trespass is a lesser included offense of second
degree burglary because a person commits the former offense by
“[k]nowingly and unlawfully enter[ing] or remain[ing] in a dwelling
of another,” § 18-4-502(1)(a), and can commit the latter offense by
“knowingly break[ing] an entrance into, enter[ing] unlawfully in, or
remain[ing] unlawfully after a lawful or unlawful entry in a building
or occupied structure,” § 18-4-203(1). These elements of second
degree burglary also satisfy the elements of first degree trespass.
See Miller, ¶ 68, 556 P.3d at 1273-74. And first degree trespass is
also a lesser included offense of first degree burglary, which
likewise requires that the person “knowingly enter[ed] unlawfully, or
remain[ed] unlawfully after a lawful or unlawful entry, in a building
16 or occupied structure.” § 18-4-202(1); see Miller, ¶ 69, 556 P.3d at
1274.
¶ 48 The evidence established that Montoya entered the victims’
house knowingly and unlawfully, in violation of the first degree
trespass statute. See § 18-4-502(1)(a).
¶ 49 But although Montoya admitted that he entered the victims’
house, he denied that he did so with the intent to commit a crime.
Rather, he testified that he entered the house only to prevent an
explosion after smelling gas fumes while walking by. This
testimony would support Montoya’s defense that he lacked the
necessary intent to commit burglary. See Stafford, 890 P.2d at 248
(reversing for failure to give a lesser included instruction when the
record contained evidence supporting a rational basis to acquit of
the greater offense and to convict of the lesser).
¶ 50 Accordingly, the jury could have rationally believed that
Montoya did not intend to commit a crime against a person or
property when he unlawfully entered the house. Thus, it could
have acquitted him of first or second degree burglary while finding
sufficient evidence that he committed first degree trespass.
17 ¶ 51 Because there was a rational basis for the jury to acquit
Montoya of first or second degree burglary, yet to convict him of
first degree trespass, the court erred by declining to instruct the
jury that first degree trespass is a lesser included offense of both
forms of burglary.
4. The Trial Court’s Error in Not Providing an Instruction that First Degree Trespass Is a Lesser Included Offense of First Degree Burglary Was Not Harmless
a. Standard of Reversal
¶ 52 “When a trial court erroneously fails to give a jury instruction
that the defendant requested and to which he was entitled, we
review that omission under the harmless error standard.” Lopez,
¶ 10, 471 P.3d at 1288. Under that standard, reversal is only
warranted if “there is ‘a reasonable probability that [the error]
contributed to the defendant’s conviction.’” Id. (quoting
Mata-Medina v. People, 71 P.3d 973, 980 (Colo. 2003)).
b. There Is a Reasonable Probability that the Trial Court’s Error Contributed to Montoya’s Conviction
¶ 53 We agree with Montoya there is a reasonable probability that
the court’s error in not instructing the jury that first degree
18 trespass is a lesser included offense of first degree burglary
contributed to the jury’s verdict.
¶ 54 When “the defendant concede[s] committing the elements of
the lesser offense of trespass in h[is] testimony at trial and denie[s]
committing the greater offense of burglary on the basis of h[is]
subjective intent alone,” there is “a reasonable probability the jury
would not have found h[im] guilty of burglary had it been permitted
to find instead that [he] committed” first degree trespass. People v.
Rock, 2017 CO 84, ¶ 24, 402 P.3d 472, 480.
¶ 55 Because second degree trespass is a less serious offense than
first degree trespass, we cannot infer, as the People argue, that the
jury’s conviction of Montoya for first degree burglary — but not
second degree trespass — renders harmless the trial court’s error in
not instructing the jury that first degree trespass is a lesser
included offense of first degree burglary. As the supreme court
explained, when a court “fails to instruct on an intermediate
offense, conviction of a greater offense does not carry the same
implicit rejection of lesser offenses.” Mata-Medina, 71 P.3d at 981.
Therefore, the jury’s conviction of Montoya for first degree burglary,
despite receiving an instruction on second degree criminal trespass,
19 does not show that the lack of a first degree trespass instruction
was harmless.
¶ 56 For this reason, we reverse the judgment of conviction on the
first degree burglary charge. See Lopez, ¶ 15, 471 P.3d at 1289.
5. The Trial Court Did Not Plainly Err by Not Instructing the Jury that First Degree Trespass Is a Lesser Included Offense of Second Degree Burglary
a. Plain Error
¶ 57 Montoya did not ask the court to instruct the jury that first
degree trespass is a lesser included offense of second degree
burglary. Accordingly, we review for plain error. See Hagos v.
People, 2012 CO 63, ¶ 14, 288 P.3d 116, 120.
¶ 58 An error is plain if it is “obvious and substantial,” id., and it is
obvious if it is “so clear-cut” that “a trial judge should be able to
avoid it without benefit of objection,” People v. Crabtree, 2024 CO
40M, ¶ 42, 550 P.3d 656, 667 (quoting Romero v. People, 2017 CO
37, ¶ 6, 393 P.3d 973, 976). The defendant bears the burden to
establish that an error occurred and that it was both obvious and
substantial. See Kaufman v. People, 202 P.3d 542, 549 (Colo.
2009).
20 b. The Error Was Not Obvious
¶ 59 We disagree with Montoya’s argument that the trial court
plainly erred by not sua sponte instructing the jury that first degree
trespass is a lesser included offense of second degree burglary.
¶ 60 Courts presume that the lack of an instruction on a lesser
included offense means that the defendant “elected to take his
chance on an outright acquittal or conviction of the principal
charge.” People v. Romero, 694 P.2d 1256, 1269 (Colo. 1985). This
presumption is particularly strong in this case because Montoya
argued that second degree trespass, but not first degree trespass, is
a lesser included offense of second degree burglary. And an error
cannot be obvious when the record suggests that the defense may
have deliberately pursued that position. See People v. Peterson, 656
P.2d 1301, 1303-04 (Colo. 1983) (explaining that an omission is not
plain error when the record shows it was “at least equally likely” the
result of the defense’s strategy).
¶ 61 Accordingly, the trial court did not obviously err when it did
not, on its own initiative, instruct the jury that first degree trespass
is a lesser included offense of second degree burglary. For this
21 reason, we hold that the court’s error not to provide such an
instruction was not obvious and, therefore, not plain.
C. Merger
¶ 62 Montoya argues, and the People concede, that Montoya’s
second degree burglary and menacing with a deadly weapon
convictions merge into his conviction for first degree burglary.
Although we reverse Montoya’s first degree burglary conviction, we
address his merger argument because the issue “may arise on
retrial.” Kinney v. People, 187 P.3d 548, 554 (Colo. 2008).
¶ 63 “[A] defendant’s double jeopardy rights are violated for failure
to merge a lesser included offense into a greater offense . . . .”
Reyna-Abarca, ¶ 81, 390 P.3d at 828. “[W]e ‘review de novo a
defendant’s claim that a conviction violates the constitutional
protection against double jeopardy.’” Whiteaker, ¶ 9, 547 P.3d at
1125 (quoting Garcia v. People, 2023 CO 41, ¶ 13, 530 P.3d 1200,
1203).
22 2. If Montoya Is Convicted of First Degree Burglary at a New Trial, the Trial Court Must Merge Montoya’s Other Convictions with First Degree Burglary
¶ 64 “[S]econd degree burglary of a dwelling is a lesser included
offense of . . . first degree burglary.” Armintrout v. People, 864 P.2d
576, 582 (Colo. 1993). In addition, a defendant’s conviction for
menacing merges into a first degree burglary conviction if the latter
is predicated on the defendant’s unlawful entry into a building or
occupied structure with the intent to commit menacing, and, while
inside, the defendant menaced any person. See People v. Ramirez,
18 P.3d 822, 825-26, 830 (Colo. App. 2000).
¶ 65 Thus, we agree that, if Montoya is convicted of first degree
burglary at a new trial, then his convictions for second degree
burglary and menacing with a deadly weapon must merge with the
first degree burglary conviction. See Armintrout, 864 P.2d at 582;
Ramirez, 18 P.3d at 830.
D. Montoya’s Requests for Support Services
¶ 66 “[A] trial court has discretion to grant a motion for support
services to a defendant.” People v. Stroud, 2014 COA 58, ¶ 5, 356
P.3d 903, 906. “A court abuses its discretion when its decision is
23 manifestly arbitrary, unreasonable, or unfair, or based on an
erroneous understanding or application of the law.” Id.
¶ 67 “[A] trial court erroneously denies a defendant’s request for
support services if the defendant shows that the requested services
were reasonable, necessary, and helpful to the defense.” Id.
(emphasis added).
2. The Trial Court Reasonably Provided a Media Player for Montoya’s Use
¶ 68 Montoya contends that the trial court erred by denying him
access to a media player during his cross-examination of Deputy
Austin Reneau, a prosecution witness. Montoya argues that the
media player would have allowed him to refresh Deputy Reneau’s
memory with Officer Jareb Aziz’s body camera video, potentially
eliciting testimony that the garage door was closed when officers
arrived at the victims’ house. Such testimony, Montoya argues,
would have contradicted the victims’ testimony that the garage door
was open when the police arrived. We disagree with Montoya’s
argument.
¶ 69 At the outset, we note that the trial court did not entirely deny
Montoya access to a court-provided media player. Montoya asked
24 for a media player in the midst of his cross-examination of Deputy
Reneau to play Officer Aziz’s body camera video and refresh Deputy
Reneau’s recollection. In response, a sergeant offered to retrieve a
laptop from the jail so Montoya could play the video. Due to time
constraints, however, the court declined to allow the sergeant to
retrieve the laptop. But the court provided Montoya with a laptop
for the completion of his cross-examination of Deputy Reneau after
the lunch recess. Thus, the court could only have erred if it was
required to provide Montoya with a laptop during the first part of
Deputy Reneau’s cross-examination.
¶ 70 We agree with the trial court’s conclusion that it was
unreasonable for Montoya to expect the court to provide a media
player on such short notice. Under the circumstances, the trial
court did not abuse its discretion by waiting until after the lunch
recess to provide Montoya with the laptop he requested. See id.
3. The Trial Court’s Errors in Not Providing Montoya with a Transcript or an Investigator Were Harmless Beyond a Reasonable Doubt
¶ 71 Montoya argues, and the People concede, that the trial court
erred by failing to provide Montoya with a transcript of the
preliminary hearing (the transcript) and an investigator. Because
25 Chief Justice Directive 04-04, Appointment of State-Funded
Counsel in Criminal Cases and for Contempt of Court, section
(V)(D)(1)-(2) (amended Nov. 2014), https://perma.cc/6TF5-4EEF,
authorizes trial courts to provide such resources at state expense,
we agree with the parties. Therefore, we must address whether the
court’s decision not to provide these services to Montoya warrants a
new trial on all counts.
¶ 72 “Because a court’s erroneous denial of a defendant’s request
for support services is subject to constitutional harmless error
review, we reverse a defendant’s conviction unless the error is
harmless beyond a reasonable doubt.” Stroud, ¶ 6, 356 P.3d at
907. “In other words, we reverse if ‘there is a reasonable possibility
that the [error] might have contributed to the conviction.’” Hagos,
¶ 11, 288 P.3d at 119 (quoting Chapman v. California, 386 U.S. 18,
23 (1967)). Conversely, reversal is unwarranted if the record
establishes, beyond a reasonable doubt, that the jury’s verdict was
“surely unattributable to the error.” Griego v. People, 19 P.3d 1, 9
(Colo. 2001) (quoting Blecha v. People, 962 P.2d 931, 942 (Colo.
1998)).
26 b. There Is No Reasonable Possibility that Montoya’s Lack of the Transcript Might Have Contributed to His Convictions
¶ 73 Montoya contends that he needed the transcript to “impeach
portions of [the victims’] trial testimony and to show his consistent
assertion that he didn’t intend to commit a crime when he entered
their house.” But the victims did not testify at the preliminary
hearing. Therefore, Montoya could not have used the transcript to
impeach them. See State ex rel. Coffman v. Robert J. Hopp &
Assocs., LLC, 2018 COA 69M, ¶ 97, 442 P.3d 986, 1005
(“[I]mpeachment generally refers to proof a witness made [prior]
statements inconsistent with his or her present testimony.”).
¶ 74 It is unclear whether, by arguing that the transcript would
have shown “his consistent assertion that he didn’t intend to
commit a crime when he entered their house,” Montoya contends
that he should have been allowed to introduce the transcript into
evidence or whether he intended to tie this statement to his
impeachment argument.
¶ 75 In any event, even if the transcript were admissible under the
Colorado Rules of Evidence, it would not have aided Montoya in
identifying or developing evidence of his intent at the time of the
27 offense. At the preliminary hearing, Officer Aziz testified that
Montoya denied that he intended to start a fire when he entered the
house. But Montoya did not need the transcript to prove that he
made this statement because the court admitted into evidence a
bodycam video of Montoya’s interaction with Officer Aziz. The
bodycam video duplicated Officer Aziz’s testimony regarding
Montoya’s statements. Therefore, the transcript could not have
assisted Montoya in rebutting the prosecution’s allegations.
¶ 76 Because there is no possibility that the transcript would have
helped Montoya persuade the jury, the court’s ruling that Montoya
was not entitled to the transcript was harmless beyond a
reasonable doubt. See Hagos, ¶ 11, 288 P.3d at 119.
c. There Is No Reasonable Possibility that the Trial Court’s Decision Not to Provide Montoya with an Investigator Might Have Contributed to His Convictions
¶ 77 Montoya further contends that he required the assistance of
an investigator to locate witnesses who could testify that he “wasn’t
inside the house long enough to cause the damage.” But as with
the court’s denial of Montoya’s request for the transcript, its
decision not to provide Montoya with an investigator could not have
affected the jury’s verdict.
28 ¶ 78 On the bodycam video, which the jury viewed, Montoya said
that he “went through all the rooms” in the victims’ house. And
Montoya’s testimony regarding his actions inside the house
corroborated what he told officers at the scene. Therefore, any
testimony suggesting that Montoya was in the house for only a brief
period of time would have contradicted his own statements and
undermined his credibility.
¶ 79 In addition, Montoya’s argument relies on the mistaken
assumption that causing the damage required a substantial
amount of time and that evidence that he was only in the house
briefly would establish that he did not engage in criminal
mischief — the predicate offense for the burglary charges. To
commit criminal mischief, a person need only damage “real or
personal property,” and the statute sets no minimum length of time
for the defendant’s actions. § 18-4-501(1), C.R.S. 2025. And the
damage to the house, such as wires pulled from a wall, was not
particularly time-consuming. Accordingly, evidence that Montoya
was only in the house for a brief time would not have materially
advanced his argument that he did not commit criminal mischief.
29 ¶ 80 Further, the time required to cause the damage was irrelevant
because Montoya admitted to damaging the victims’ property. He
testified, among other things, that he removed the door from the
room where the water heater was located. Montoya also admitted to
“shut[ting] down” the boiler and “turn[ing] off” the water heater,
which the victims were unable to restart.
¶ 81 Most significantly, the prosecution did not need to prove that
Montoya committed criminal mischief to prove that he committed
burglary; it needed only to prove that he intended to do so. See
§§ 18-4-202(1), 18-4-203(1). The amount of time Montoya spent in
the victims’ house was irrelevant to this question of intent. For
these reasons, an investigation into the length of time Montoya
remained in the victims’ house would not have affected the jury’s
verdict.
¶ 82 In sum, neither the transcript nor the services of an
investigator would have supported Montoya’s defense. Accordingly,
the judgment is “surely unattributable” to the trial court’s errors in
denying Montoya a transcript and an investigator. Griego, 19 P.3d
at 9 (quoting Blecha, 962 P.2d at 942). Therefore, any such errors
30 were harmless beyond a reasonable doubt and do not warrant
reversal.
E. Montoya’s Requests for a Change of Venue
¶ 83 “We review a trial court’s decision to grant or deny a change of
venue for an abuse of discretion.” People v. Hankins, 2014 COA 71,
¶ 6, 361 P.3d 1033, 1035.
2. Montoya Did Not Establish that He Could Not Receive a Fair Trial in Alamosa County
¶ 84 Montoya contends the trial court reversibly erred by denying
his requests for a change of venue because of his prior relationships
with various prosecutors, law enforcement personnel, and the
preliminary hearing judge. We disagree.
¶ 85 A trial’s venue should be changed only if the court determines
that a “fair or expeditious trial cannot take place in the county or
district in which the trial is pending.” Crim. P. 21(a)(1); accord
§ 16-6-101(1)(a), C.R.S. 2025. “In the absence of such grounds,” a
court may not transfer venue. People v. Reed, 132 P.3d 347, 351
(Colo. 2006).
31 ¶ 86 But venue must be transferred if pretrial publicity is so
“massive, pervasive and prejudicial as to create a presumption that
the defendant [will be denied] a fair trial.” Hankins, ¶ 11, 361 P.3d
at 1036 (quoting People v. Bartowsheski, 661 P.2d 235, 240 (Colo.
1983)). “Alternatively, the defendant can demonstrate that any
publicity will create actual prejudice and hostility in the jury panel.”
Id.; see Groppi v. Wisconsin, 400 U.S. 505, 510 (1971) (holding that
a change of venue may be required when the community is
“permeated with hostility” toward the defendant and other
measures cannot ensure an impartial jury). A defendant must
support a change of venue claim with “one or more affidavits setting
forth the facts upon which [he] relies.” Crim. P. 21(a)(2)(I).
¶ 87 First, Montoya failed to submit any affidavits in support of his
change of venue requests. Because Montoya did not comply with
Crim. P. 21(a)(2)(I)’s affidavit requirement, the trial court acted
within its discretion in denying his requests for a change of venue.
See People v. Martinez, 2015 COA 33, ¶ 28, 350 P.3d 986, 991
(acknowledging, in the jurisdictional context, that a “party’s failure
to comply with a procedural requirement may justify the court’s
32 dismissal of the action within its discretion” (quoting SMLL, L.L.C. v.
Peak Nat’l Bank, 111 P.3d 563, 566 (Colo. App. 2005)).
¶ 88 Second, Montoya concedes that there was no pretrial publicity
regarding his trial. As a result, he fails to meet the standard for
presumed prejudice. See Hankins, ¶ 11, 361 P.3d at 1036.
¶ 89 Third, contrary to Montoya’s argument, his past associations
with various criminal justice officials do not demonstrate that the
community was “permeated with hostility” toward him or that the
court was incapable of empaneling a fair jury. Groppi, 400 U.S. at
510. Indeed, Montoya’s allegations do not even establish that the
officials he identified were biased against him. In the absence of
evidence of bias, the trial court did not abuse its discretion by
determining that Montoya could receive a fair trial in Alamosa
County.
¶ 90 Thus, the trial court properly denied Montoya’s requests for a
change of venue.
III. Disposition
¶ 91 Montoya’s conviction for first degree burglary is reversed. The
judgment is otherwise affirmed. On remand, the prosecution may
request that the court (1) enter a judgment for second degree
33 burglary and menacing with a deadly weapon or (2) set a new trial
on the first degree burglary count.
JUDGE YUN and JUDGE SCHUTZ concur.