Peo v. Nieto

Opinion

24CA1841 Peo v Nieto 07-16-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1841 Alamosa County District Court No. 23CR308 Honorable Crista Newmyer-Olsen, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Angel Nieto,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division III Opinion by JUDGE FREYRE Kuhn and Taubman*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 16, 2026

Philip J. Weiser, Attorney General, Rachel Lieb, Assistant Attorney General II, Denver, Colorado, for Plaintiff-Appellee

Antony Noble, Alternate Defense Counsel, Bryan Collins, Alternate Defense Counsel, Lakewood, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 Defendant, Angel Nieto, appeals his escape convictions,

alleging that the trial court erroneously denied his constitutional

right to be present at trial and his motion to terminate counsel. We

disagree and affirm the judgment.

I. Background

¶2 Nieto, a parolee, was arrested by his parole officer on an

outstanding arrest warrant. Nieto asked if he could see his mother,

who was a few houses away, before he was taken into custody. The

officer handcuffed Nieto behind his back and placed Nieto in the

patrol car. The officer then went to the mother’s home. When

Nieto’s mother answered the door, the car alarm went off, and the

officer saw Nieto running down the street. He called dispatch to

report Nieto’s escape. After a short search, police officers found

Nieto hiding in a backyard shed and arrested him. The prosecution

charged Nieto with two counts of escape. Nieto attended all pretrial

hearings and participated in the jury selection process on the first

day of the trial. However, as described further below, he did not

return to court for the remainder of the trial, and the jury convicted

him as charged.

1 II. Right to be Present

¶3 Nieto contends that the trial court erred in finding that he

voluntarily absented himself from the trial and argues that his lack

of medication rendered his suicide attempts involuntary acts. We

are not persuaded.

A. Additional Facts

¶4 On the first day of trial, Nieto appeared with his attorney and

participated in jury selection. During the lunch break, Nieto spoke

with his attorney and returned to his holding cell. Nieto then began

screaming. When deputies arrived, Nieto “shoved his tie knot all

the way up around to his neck, pulling on it real hard, wrapped it

around his neck and then covered his neck with his hands so [the

deputies] could not get to it.” Deputies intervened and transferred

Nieto to the hospital, where he was cleared medically and

psychologically later that night. He was sent back to the jail and

placed on “precautions for suicidal ideations.”

¶5 The trial court received emails and heard testimony from

several deputies who said that they believed Nieto had faked his

mental health crisis. Deputy John Gonzales, who witnessed Nieto’s

2 attempt to self-harm on camera, was questioned by the prosecutor

in the following colloquy:

Q: And you didn’t notice anything about Mr. Nieto at all —

A: No. I was with him all morning and —

Q: Okay. Well, I mean at this point, did you notice — did you see the occurrence or anything afterwards —

A: Yes.

Q: You were able to observe him?

A: Yeah.

Q: Okay. Did you observe anything about his demeanor?

A: From my — to me, I was — I don’t how to put it politically, but I’ve done this a long time. I didn’t feel that it was — I felt it was an act. And —

Q: Okay. Tell us why.

A: Just because I’ve seen it a million times and he was responding to pain stimulus. [Another deputy] was giving him a sternal rub, and he would respond to that.

Q: Tell us about that. What does that mean?

A: It’s, like, something that paramedics and people do, just a sternal rub to see if they’re responsive for pain, like — just like an ammonia inhalant. You can’t not react to it.

3 Q: Okay. And he reacted to it?

Q: Okay. Thank you.

¶6 The trial court talked with counsel about how to proceed and

then released the jury for the day with instructions that the trial

would continue the following morning.

¶7 The next morning, Nieto refused to go to court and told the

deputies that he didn’t feel well and that he didn’t want to be

around anyone. Nieto then appeared via WebEx and the following

colloquy occurred.

[THE COURT]: All right. So Mr. Nieto, I have been informed this morning that you are not interested in coming to court today. Is that — tell me what your thoughts are about coming to court.

[NIETO]: I just feel like killing myself. I don’t feel like — I’m real depressed. I just — I don’t know what’s going on with me. I been hearing a lot of voices. I think I need to see a doctor.

I woke up in the hospital with vital signs all over me. I got in an argument.

[COURT]: So, Mr. Nieto, the likelihood is that this trial is going to proceed today with or without you; do you understand that?

4 [NIETO]: I understand. I understand I’m not going to be there. I don’t feel — I want to fire my lawyer, for sure. He’s the devil.

[COURT]: Well, so you understand that if you’re not here, the jury — I plan to instruct the jury they are not to infer anything by you not being here, but they’re certainly going to know that you’re not here. Do you understand that?

[NIETO]: Yeah, let them know that I — I don’t even know what’s going on today. I don’t even know what day it is.

[COURT]: Right.

[NIETO]: I just know I woke up in the infirmary, and I know that they keep bothering me. There is blood all over me. I know that they killed my sister here.

I just don’t think that I’m competent. I’m not going to trial. I want to see a doctor. And if my lawyer wants to pursue the issue — because the way Alamosa is, is that they’re going to keep — try rush everything through and forcing me to go to trial. I ain’t never [sic] — I didn’t even know today was the trial.

You know, I woke up in the hospital. I don’t know — I want to fire my lawyer. That’s it. He’s not my lawyer. He’s not helping me. He’s not communicating with me.

I have — I don’t feel good. I need to go to the doctor. They haven’t given me my meds in five days. I’m on psych meds, Zoloft and all kinds of crap, and they haven’t given me my medicine in five days.

5 So you’re not supposed to cut somebody off their psych meds. They cut me off my psych meds. And I just know that everybody is a devil.

[COURT]: So, Mr. Nieto, my understanding is you told your lawyer yesterday that you didn’t want to go to trial yesterday, that you —

[NIETO]: I told him that since the day before yesterday.

¶8 Nieto then told the court he had not been present for jury

selection and did not have any clothes to wear to trial. The court

reminded Nieto that he had been present for jury selection, and his

counsel confirmed he dropped off clothes for Nieto the day before

and that morning.

¶9 As to Nieto’s refusal to participate, the trial court found, “[H]e’s

been cleared mentally to be held. No one has filed an M-1 against

him — or on him,”1 but he “clearly does not — want to come to

1 In Colorado, an “M-1 hold” is a legal order allowing medical and

mental health professionals to intervene if the individual appears to have a mental health disorder and presents an “imminent danger to themselves or others.” Colo. Off. of Behav. Health, Colo. Dep’t of Hum. Servs., Involuntary Mental Health Treatment (2026), https://perma.cc/Q2Y8-B397.

6 court today and is refusing to come to court today.” The court

continued:

We started the trial yesterday. I think that the provisions of [Crim. P.] 43 come into play. . . .

[T]he Court may complete the trial under [Rule] 43(b) and the defendant shall be considered to have waived his right to be present whenever a defendant initially present, one, voluntarily absences himself after the trial has commenced, whether or not he’s been informed by the Court of his obligation to remain during trial.

¶ 10 The trial court further explained its findings:

Mr. Nieto had stated this morning that he felt he was not competent to proceed. The Court’s take on all of that is that Mr. Nieto is desperately trying to get out of the trial rather than he’s not competent, and I will so find based on my observations of him, based on his behavior yesterday in court, based on his statements this morning.

I don’t think there is enough information to ask for a competency evaluation and to proceed down that trail so I will not.

I will find that Mr. Nieto has voluntarily waived his right to be present at trial, that the waiver is in fact knowing, voluntary, and intelligent, and we will proceed this morning.

¶ 11 After the trial court made its findings, it gave Nieto another

chance to come to court, and Nieto said that he wished to come,

7 although he was not sure he could make it out of his cell and

wanted to see a doctor. The trial court told Nieto to be ready to

proceed at 10 a.m. When the trial resumed, Nieto had not left the

jail. Another jailhouse deputy testified that Nieto attempted self-

harm again, just before he had to leave for court. The trial court

stated, “I still think we’re still under Rule 43 and the Price case, and

the indications continue [that Neito] has caused — has taken the

action that causes him to be absent from court, and we will proceed

without him.” Defense counsel renewed his objection to continuing

trial without Neito present.

¶ 12 After conferring with counsel, the court instructed the jury as

follows:

You may notice that Mr. Nieto is not here this morning. Let me tell you that you are not to use that fact in any way. That is not evidence of anything.

It is not to be construed against him. You are to draw no inferences as a result of his absence. The fact that he’s not here is — you may hear with other things that occur in Court — is not evidence. It’s not something for you to consider in this case.

8 B. Standard of Review and Applicable Law

¶ 13 A defendant has a constitutional right to be present during

trial. U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16; People

v. Janis, 2018 CO 89, ¶ 16. However, the right to be present is not

absolute and may be waived. Id. at ¶ 17. A defendant may waive

the right to be present either expressly or through conduct,

including through voluntary absence after the trial has commenced

in the defendant’s presence. People v. Daley, 2021 COA 85, ¶ 28.

¶ 14 As relevant here, Crim. P. 43(b)(1) provides:

The trial court in its discretion may complete the trial, and the defendant shall be considered to have waived his right to be present, whenever a defendant, initially present:

(1) Voluntarily absents himself after the trial has commenced, whether or not he has been informed by the court of his obligation to remain during the trial . . . .

¶ 15 “The purpose of this principle is to prevent a defendant from

frustrating a trial in progress by his own conduct.” People v. Price,

240 P.3d 557, 560 (Colo. App. 2010). Whether a defendant’s

absence is voluntary may be inferred from the circumstances.

People v. Burnell, 2019 COA 142, ¶ 16. Moreover, a defendant’s

9 absence may be deemed voluntary when he creates a medical

necessity to cause his absence from trial. Price, 240 P.3d at 560-

61; see People v. Stephenson, 165 P.3d 860, 868-70 (Colo. App.

2007). Determining whether a defendant is “voluntarily absent”

requires a fact-specific inquiry into the medical condition and the

circumstances surrounding his absence, including the defendant’s

conduct and statements. Id. at 870. “[T]he preferred method of

establishing a waiver [of appearance] is through colloquy with the

defendant . . . .” Price, 240 P.3d at 560. “An absence is voluntary

if the defendant knows that the proceedings are taking place and

does not attend.” Stephenson, 165 P.3d at 869.

¶ 16 Whether a waiver of the defendant’s constitutional right to be

present was valid presents a mixed question of fact and law. Price,

240 P.3d at 560. We review the court’s factual findings for clear

error, and we defer to those findings if there is any record support

for them. Daley, ¶ 26. We review de novo the question of whether

the court violated a defendant’s constitutional right to be present.

Zoll v. People, 2018 CO 70, ¶ 15. When a trial court proceeds with

the trial despite a defendant’s absence, we review that decision for

an abuse of discretion. People v. Trefethen, 751 P.2d 657, 658

10 (Colo. App. 1987). A court abuses its discretion when it misapplies

the law or when its ruling is manifestly arbitrary, unreasonable, or

unfair. People v. Vanderpauye, 2023 CO 42, ¶ 23.

¶ 17 We review preserved constitutional errors for constitutional

harmless error, reversing if “there is a reasonable possibility that

the [error] might have contributed to the conviction.” People v.

Aldridge, 2018 COA 131, ¶ 19 (quoting Hagos v. People, 2012 CO

63, ¶ 11). “The People bear the burden of proving that the error

was harmless beyond a reasonable doubt.” Id.

C. Analysis

¶ 18 We discern no error in the trial court’s conclusion that Nieto

voluntarily waived his right to be present and, thus, no abuse of

discretion in its decision to proceed with the trial in his absence, for

three reasons.

¶ 19 First, before the trial began, the record shows that Nieto

attended all court appearances with counsel and gave no indication

of any mental health concerns. Indeed, the record contains no

evidence to support Nieto’s claim that, before the start of trial, jail

personnel had suddenly ceased giving him his prescribed mental

health medications five days earlier.

11 ¶ 20 Second, the record shows that the court conducted the

requisite fact-specific inquiry and supports the court’s finding that

Nieto created the medical necessity that caused his absence from

the trial. It shows that Nieto waited until the deputies entered the

holding cell to tie the knot around his neck that resulted in his

transport to the hospital. Thereafter, the court questioned the

deputies involved in the incident about their observations and

opinions; it learned that doctors had medically and psychologically

cleared Nieto and that Nieto had been returned to the jail without

any type of mental health hold.

¶ 21 Third, the court questioned Nieto directly the next day after

receiving information from the deputies that Nieto was refusing to

come to court, said he was not going anywhere, and wished to go to

a mental hospital. While Nieto contends that his statements to the

deputies and the court reflected his mental health deterioration and

his lack of access to medications, thereby rendering his suicide

attempts involuntary, the record shows otherwise. Nieto said he

understood that the trial would proceed in his absence and that the

jury would be instructed not to consider his absence in its

deliberations. Despite Nieto’s assertion that he was not competent

12 and had not received his medications for five days, defense counsel

never moved to determine Neito’s competency. And he does not

identify any record evidence showing that he did not understand

the nature of the proceedings or could not assist counsel in his

defense. See § 16-8.5-101(12), C.R.S. 2025 (A defendant is

incompetent to proceed if, “as a result of a mental disability or

developmental disability,” he lacks “sufficient present ability to

consult with [his] lawyer with a reasonable degree of rational

understanding in order to assist in the defense,” or he “does not

have a rational and factual understanding of the criminal

proceedings.”). Moreover, other than Nieto’s own statements,

nothing in the record shows that Nieto was not given his psychiatric

medications or that he had stopped taking them. The court rejected

Nieto’s contention that he was incompetent based upon its

observations of him, his behavior, and his statements. See People

v. Morino, 743 P.2d 49, 52 (Colo App. 1987) (a trial judge who had

the opportunity to observe the defendant, his actions, and general

demeanor, has substantial discretion to determine whether an issue

regarding his competency has been raised).

13 ¶ 22 After finding that Nieto had voluntarily waived his right to be

present, the court gave Nieto another chance to come to court.

Nieto said he would be present, but he never appeared.

¶ 23 Because the trial court conducted a proper inquiry into the

facts surrounding Nieto’s suicide attempts and because its findings

are supported by the record, we agree that Nieto voluntarily waived

his right to be present at his trial. See People v. Perea, 74 P.3d 326,

331 (Colo. App. 2002).

¶ 24 We reject Nieto’s argument that the court misapplied Price and

instead conclude that Price supports our conclusion. In Price, the

defendant attempted suicide midtrial by cutting his wrists and

throat, which required his hospitalization. Id. at 561. The

defendant left a note that said, “I cannot live with the crap trial that

I am going through in Douglas County. It’s all lies and coached by

the D.A.’s office.” Id. In holding that the defendant was voluntarily

absent, a division of this court reasoned that the defendant “was

aware his trial was taking place by attending the first day. His

suicide note . . . reflected both that he understood the proceedings

against him and that he purposefully determined to absent himself

from the trial.” Id.

14 ¶ 25 As in Price, Nieto attended and participated in jury selection

on the morning of the first day of trial and then voluntarily

absented himself from the proceeding when he attempted suicide

over the lunch break. He told the court he understood he had a

right to be present and that the trial would proceed in his absence.

Therefore, the record shows that the trial court did not abuse its

discretion when it found that Nieto had waived his right to be

present. See Price, 240 P.3d at 561-63; see also Daley, ¶ 35

(affirming trial court’s finding of voluntary absence when the

defendant attempted suicide); United States v. Yannai, 791 F.3d

226, 244-45 (2d Cir. 2015) (defendant who overdosed on pills found

to be voluntarily absent from trial); United States v. Crites, 176 F.3d

1096, 1098 (8th Cir. 1999) (defendant’s attempted suicide rendered

him voluntarily absent from trial).

¶ 26 We are also not persuaded that United States v. Latham, 874

F.2d 852, 858 (1st Cir. 1989), requires a different result. There, the

defendant ingested cocaine to calm himself, which ultimately

required his hospitalization, although he stated he was not

attempting suicide. Id. The court found that simply taking drugs

did not render his absence from trial voluntary. Id. In contrast, in

15 this case, Nieto told the deputies (and inconsistently the court) that

he was not coming to court, wanted to go to a mental hospital, and

was trying to kill himself.

¶ 27 Relatedly, Nieto asks us to take judicial notice “of the

undisputed scientific fact that the sudden cessation of

antipsychotic medication can have an adverse effect on a patient,

up to and including the rapid onset or relapse of psychotic

symptoms.”

¶ 28 We note that as a threshold matter, Nieto did not make this

request in the trial court. Regardless, even if this fact is the type of

adjudicative fact “generally known within the territorial jurisdiction

of the trial court” or “capable of accurate and ready determination

by resort to sources whose accuracy cannot reasonably be

questioned,” CRE 201(b), we are not convinced that it would affect

the outcome here. Nothing in the record shows that Nieto suffered

from a psychotic disorder, that he was prescribed an antipsychotic

medication, or that he had been prescribed medication for

psychosis. So even if we take judicial notice of the fact that

abruptly discontinuing an antipsychotic medication can cause a

16 psychotic episode, nothing in the record connects Neito’s

circumstances to that fact pattern.

¶ 29 Accordingly, we discern no violation of Nieto’s constitutional

right to be present.

III. Waiver of Counsel

¶ 30 Nieto contends that the trial court erroneously denied his

request to terminate counsel and proceed pro se. We disagree.

¶ 31 Early in the case, Nieto and his counsel disagreed about

whether he should waive his preliminary hearing. Defense counsel

explained that they had talked at length about his preliminary

hearing waiver in one of Nieto’s other cases and that Nieto was now

suggesting that counsel had lied. Based on these concerns, counsel

moved to withdraw. The trial court found no basis to allow defense

counsel to withdraw and denied the motion. Nothing in the record

shows any conflict existed between Nieto and his counsel until after

the jury selection in this case and Nieto’s suicide attempts.

¶ 32 When the trial court told Nieto the trial would proceed without

him, Nieto asked to proceed pro se. Nieto alleged that his attorney

was friends with the prosecutor based on a comment made by a

17 prospective juror that he had worked with both the prosecutor and

Nieto’s defense counsel before. He said:

The DA and [my attorney] are best friends. That’s a conflict of interest right now, even if we want to go to trial. They’re friends. You heard the lady say that. They’re all friends. That’s a conflict of interest. How can my lawyer be best friends with the DA?

¶ 33 After the court questioned Nieto regarding his presence at

trial, Nieto asked to speak with his lawyer before the trial

reconvened. (“I want to talk to my lawyer. Lawyer, can you come

get me?”). Because the trial break was scheduled to end at 10:00

a.m., the court told Nieto he could speak to his lawyer if he arrived

before then.

¶ 34 Counsel then moved to withdraw, stating, “[Nieto has]

indicated he wants to fire me, quote, his language, fire me.” The

following colloquy occurred:

[COURT]: So, Mr. Nieto, the — you made that statement. What is your preference in terms of proceeding with or without [counsel], understanding that if [counsel] is allowed to withdraw, I will take that as a waiver of your right to counsel at all.

[NIETO]: Me and my lawyer have no communication. When he first — when he came in it’s on the record that he did want to

18 withdraw from my case from the beginning. So he’s been wanting to withdraw from my case from the beginning, so I’m just letting him — I been knowing that he hasn’t been helping me —

[COURT]: Here [are] the choices for you, Mr. Nieto. You can either proceed with [present counsel] as your attorney and have him proceed with the trial or you can proceed to trial without an attorney. Those are your two choices today.

[NIETO]: That’s fine.

[COURT]: Which one do you want, which one?

[NIETO]: I want to fire my lawyer, that’s what I want.

[COURT]: So you’re going to come to court and represent yourself?

[NIETO]: Yes.

[COURT]: You understand that if you represent yourself, you’re going to be held to the same standard as if you were a lawyer? In other words, you’re going to need to know what the rules of procedure and the rules of evidence are and you’re going to be proceeding at your own peril, so to speak, by representing yourself. Do you understand that?

[NIETO]: — makes you happy at the end of the day, okay sir. Whatever you’re trying to satisfy, I hope your dream comes true today. Going to be my life in a casket because you don’t care about —

19 [COURT]: Mr. Nieto — Mr. Nieto, I need an answer about whether you want to fire your attorney or not.

[NIETO]: Yes, I do. I been trying to fire him. Yes, I do.

[COURT]: You understand that if you do that, you’ll proceed to trial today without an attorney? Do you understand that?

[NIETO]: I’m not saying nothing. My Fifth Amendment.

[COURT]: This is not a Fifth Amendment question sir.

[NIETO]: Well it is to me. I want to be silent right now until I talk to my lawyer and let him know what you’re trying to do here.

[COURT]: All right. What I’m going to do is — sorry [counsel], but I’m going to deny your request to withdraw.

B. Applicable Law and Standard of Review

¶ 35 The Sixth Amendment to the United States Constitution

guarantees defendants the right to counsel and implies a right to

self-representation. People v. Lavadie, 2021 CO 42, ¶ 23.

Similarly, the Colorado Constitution provides criminal defendants

the “right to appear and defend in person.” Colo. Const. art. II,

§ 16. Because self-representation relinquishes “many of the

traditional benefits associated with the right to counsel,” Faretta v.

20 California, 422 U.S. 806, 835 (1975), the right to self-representation

is conditioned on a defendant’s intelligent understanding of the

consequences of proceeding without counsel, People v. Arguello, 772

P.2d 87, 92 (Colo. 1989).

¶ 36 A defendant validly waives his right to counsel if he “(1) is

competent to waive the right, and (2) makes the waiver voluntarily,

knowingly, and intelligently.” People v. Davis, 2015 CO 36M, ¶ 15.

A defendant is competent to waive representation if he has

sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding and has a rational and

factual understanding of the proceedings against him. Id. at ¶ 16.

¶ 37 A waiver is voluntary if it is not extracted by threats, violence,

promises, or undue influence. Id. at ¶ 18. A waiver is knowing and

intelligent if the totality of the circumstances shows that the

defendant understands the nature of the charges, the possible

penalties, the possible defenses, and all other facts essential to a

broad understanding of the whole case. Arguello, 772 P.2d at 94.

Other factors bearing on whether a waiver is knowing and

intelligent include “whether the defendant understood the

requirement of complying with the rules of procedure at trial,

21 whether the exchange between the defendant and the judge

consisted merely of pro forma answers to pro forma questions, and

whether the defendant was attempting to delay or manipulate the

proceedings.” Id. at 94-95. A court “must indulge every reasonable

presumption against finding a waiver of the right to counsel.”

Lavadie, ¶ 29.

¶ 38 Whether a defendant validly waived his right to counsel

presents a mixed question of law and fact. Id. at ¶ 22. We accept

the court’s factual findings if they are supported by competent

evidence in the record, and we review the legal significance of those

facts de novo. Id. A trial court’s denial of the right to self-

representation constitutes structural error. Hagos, ¶ 10.

¶ 39 We discern no error in the court’s ruling denying counsel’s

motion to withdraw. While we agree with Nieto that he clearly and

unequivocally expressed his desire to fire counsel, the record

demonstrates that he never stated an understanding of the

consequences of that decision, and thus, a valid waiver of the right

to counsel never occurred. Indeed, the court explained the

consequences of proceeding to trial without an attorney and asked

22 Nieto twice whether he understood those consequences. On both

occasions, Nieto gave a nonresponsive answer and invoked the Fifth

Amendment. Consequently, the record is devoid of any evidence

that Nieto voluntarily, knowingly, and intelligently waived his right

to counsel. Additionally, when viewed in light of the circumstances

surrounding his voluntary absence from the trial, the record

supports the court’s finding that Nieto was “desperately trying to get

out of the trial” and to delay the proceedings. Under these

circumstances, we conclude the trial court properly denied

counsel’s motion to withdraw and Nieto’s request to proceed pro se.

IV. Disposition

¶ 40 The judgment is affirmed.

JUDGE KUHN and JUDGE TAUBMAN concur.