23CA1392 Peo v Poloa 08-21-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1392 El Paso County District Court No. 21CR3700 Honorable Jessica L. Curtis, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Mikaele Jushawn Poloa,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division III Opinion by JUDGE DUNN Schock and Taubman*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced August 21, 2025
Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Lauretta A. Martin Neff, Alternate Defense Counsel, Montrose, 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. 2024. ¶1 A jury convicted defendant, Mikaele Jushawn Poloa, of
attempted sexual assault, criminal trespass, indecent exposure,
and attempt to influence a public servant. He appeals these
convictions. We affirm.
I. Background
¶2 Early one morning in 2021, a woman was sitting in her car in
the parking lot of an apartment complex when a man — later
identified as Poloa — opened her car door and attempted to sexually
assault her. Poloa said he had a gun and threatened to kill her if
she did not comply. After she fought back and screamed for help,
Poloa ran away.
¶3 Hours later in a nearby apartment complex, another woman
was sitting in her car when she noticed a man — again later
identified as Poloa — walking toward her. She got out of her car
and ran toward her apartment. As she ran, Poloa followed her,
exposing and rubbing his penis. She escaped into her apartment
and activated her car alarm. When she looked out her window,
Poloa was gone.
¶4 Both women called 911. When an investigating officer later
found Poloa, he gave the officer a false name.
1 ¶5 The prosecution charged Poloa with attempted sexual assault,
criminal trespass, indecent exposure, and attempt to influence a
public servant.
¶6 Poloa testified at trial. He admitted to confronting the first
woman but claimed he did so to steal her car, not to sexually
assault her. He also admitted to giving the police a false name. But
he denied any involvement with the second woman.
¶7 The jury convicted Poloa as charged. The district court
adjudicated him a habitual criminal and sentenced him to a
controlling prison term of forty-eight years to life.
¶8 On appeal, Poloa contends that (1) the district court erred by
denying his request for substitute counsel; (2) the district court
erred by denying his objection to the prosecution’s exercise of a
peremptory strike under Batson v. Kentucky, 476 U.S. 79 (1986);
and (3) we must reverse his conviction for attempt to influence a
public servant due to a legislative amendment enacted after the
charged crime.
II. Substitution of Counsel
¶9 Poloa contends that the district court erred by denying his
request for substitute counsel. We disagree.
2 A. Additional Background
¶ 10 The district court appointed counsel to represent Poloa. At
Poloa’s request, defense counsel set a conflict hearing.
¶ 11 At the hearing, Poloa asked the court to appoint a new
attorney. He raised concerns that defense counsel (1) did not
communicate with his family; (2) had not met with him in person to
review discovery; and (3) was “not comfortable” taking the case to
trial. Poloa added that he was “always bumping heads” with
counsel because he had to “either see it [counsel’s] way or no way.”
¶ 12 Defense counsel addressed these points. He explained that
(1) his communication with Poloa’s family was limited to preserve
attorney-client privilege; (2) the pandemic affected in-person jail
visits, but he had reviewed all the discovery with Poloa via Webex;1
and (3) he didn’t remember saying he was “uncomfortable” taking
the case to trial, but he did speak with Poloa about what defense
they would run because, given the evidence against Poloa, “it’s not
1 Defense counsel added that if the pandemic restrictions eased and
the case were set for trial, he could arrange an in-person discovery review.
3 prudent to set a case” like this one for trial “without having that
conversation.”
¶ 13 The district court found neither a “well founded reason for
believing [defense counsel] cannot or will not represent [Poloa]” nor
“a complete breakdown in communication” between defense counsel
and Poloa that prevented counsel “from putting on an adequate
defense.” The court therefore concluded that substitute counsel
wasn’t warranted under People v. Bergerud, 223 P.3d 686 (Colo.
2010), and denied Poloa’s request.2
B. Applicable Law and Standard of Review
¶ 14 When a defendant objects to court-appointed counsel, the
district court must inquire into the reasons for the dissatisfaction.
People v. Arguello, 772 P.2d 87, 94 (Colo. 1989). A defendant,
however, is not entitled to substitute court-appointed counsel
except on a showing of “good cause, such as a conflict of interest, a
complete breakdown of communication or an irreconcilable
conflict.” Ronquillo v. People, 2017 CO 99, ¶ 19 (citation omitted).
2 Defense counsel later requested a second conflict hearing.
Because Poloa doesn’t raise any argument about this hearing, we don’t address it.
4 And the court may refuse to substitute counsel if it concludes that
the attorney-client relationship has not deteriorated to the point
where counsel cannot effectively present an adequate defense.
People v. Schultheis, 638 P.2d 8, 15 (Colo. 1981).
¶ 15 We review a district court’s refusal to appoint substitute
counsel for an abuse of discretion. People v. Ramcharan, 2024 COA
110, ¶ 85; see also Bergerud, 223 P.3d at 696 n.4.
C. The Court Did Not Abuse Its Discretion by Refusing to Substitute Counsel
¶ 16 The district court did not abuse its discretion by declining
Poloa’s request to appoint substitute counsel.
¶ 17 As to communications with Poloa’s family and the discovery
review, Poloa doesn’t appear to now argue that either concern
established good cause to substitute counsel. Indeed, the record
shows that defense counsel’s reasons for limiting communication
with Poloa’s family and for reviewing discovery via Webex were
legitimate and reasonable.
¶ 18 That leaves Poloa’s claim that a complete breakdown in
communication occurred because he and his counsel were
“bumping heads” and he had to “see it [counsel’s] way or no way.”
5 This at most describes communication difficulties and
disagreements about trial strategy or preparation. That’s not
enough to demonstrate a complete breakdown in communication.
See People v. Johnson, 2016 COA 15, ¶ 32 (noting that “[m]ere
communication difficulties” do not show a complete breakdown in
communication); People v. Kelling, 151 P.3d 650, 653 (Colo. App.
2006) (“Disagreements pertaining to matters of trial preparation,
strategy, and tactics do not establish good cause for substitution of
counsel.”).
¶ 19 And given the seriousness of the charges and the potential
evidence against Poloa, counsel’s earnest question about possible
defenses doesn’t indicate that counsel was unwilling or unable to
defend Poloa. See McKee v. Harris, 649 F.2d 927, 932 (2d Cir.
1981) (“The starting point for effective representation is a realistic
assessment of the prospects of success in light of the risks of
failure.”). While the pointed question may have reduced Poloa’s
confidence and trust in counsel, that alone doesn’t require the
appointment of substitute counsel. See People v. Tresco, 2019 COA
61, ¶ 17 (observing that counsel’s “lack of confidence in a
defendant’s ability to prevail at trial does not automatically create a
6 conflict”; collecting cases); McKee, 649 F.2d at 932 (concluding that
the defendant’s “loss of trust” in counsel did not amount to good
cause for substituting counsel).
¶ 20 Finally, to the extent Poloa now challenges his counsel’s
performance, those issues weren’t raised at the conflict hearing
and, in any event, are more appropriately addressed in a
postconviction claim for ineffective assistance of counsel. See
People v. Thomas, 867 P.2d 880, 886 (Colo. 1994) (“[T]his court has
expressed a preference for having ineffective assistance of counsel
claims brought in Crim. P. 35(c) proceedings.”).3
¶ 21 All this said, we conclude that the district court didn’t abuse
its discretion by denying Poloa’s request for substitute counsel.
III. Batson Challenge
¶ 22 We turn next to Poloa’s contention that the district court erred
by rejecting his Batson challenge to the exclusion of prospective
Juror 29. We are not persuaded.
3 We express no opinion on the merits of any ineffective assistance
claims Poloa may later bring under Crim. P. 35(c).
7 A. Additional Background
¶ 23 During voir dire, defense counsel asked prospective Juror 29,
“What have you heard so far today that you want to talk about?”
Juror 29 responded:
Feelings aren’t facts. . . .
The bottom line, beyond a reasonable doubt. I’m not worried about how I feel. I want to know the facts. And the facts can look different all across the board. So — I mean, that’s just how I look at it. So how somebody might look or sound, that’s all feelings. That’s a feeling. It’s not facts.
¶ 24 Defense counsel followed up by asking, “And one of the
instructions that the [court] is going to give ties to that in a way. It
says that sympathy or prejudice can’t be part of the decision. I’m
not quoting exactly. You have to look at the evidence? Does that
make sense to you?” Juror 29 answered, “Yeah . . . . I mean, we
want to be gentle, not judgmental, right? So feelings aren’t facts.”
¶ 25 At the end of voir dire, the prosecutor used a peremptory
strike on Juror 29. Defense counsel raised a Batson challenge,
stating only that Juror 29 is “African-American, and [Poloa] is a
person of color.”
¶ 26 In response, the prosecutor explained:
8 [Juror 29] indicated [that she] wanted to be “gentle, not judgmental.” The People kind of perceive that to be more sympathetic towards [Poloa]. She stated repeatedly that feelings aren’t facts, which kind of gave rise to the People’s apprehension that she wouldn’t be able to read the body language of somebody who’s testifying, and there would be no other testifying — she is too fact oriented, and not allowed to follow her feelings toward what a person’s credibility is. I’m trying to best articulate what that concern is.
¶ 27 The court then asked, “Do you think that’s sufficient to rise to
for cause?” Defense counsel immediately answered that the
prosecutor “[didn’t] want someone to consider the facts in the case.”
¶ 28 The court responded, “I didn’t interpret it that way. I
interpreted it as — that the [p]rosecution wanted someone who
would judge credibility not from just a fact-based analysis.”
Though the court didn’t explicitly rule, it implicitly denied the
Batson challenge.
¶ 29 The Equal Protection Clause of the Fourteenth Amendment
forbids a challenge to a potential juror based solely on race.
Batson, 476 U.S. at 89; see also People v. Owens, 2024 CO 10,
¶ 75.
9 ¶ 30 When a party raises a Batson challenge, the district court
must apply the three-step analysis first outlined in Batson to
determine whether a peremptory strike is discriminatory. Batson,
476 U.S. at 96; Owens, ¶ 75. First, the objecting party must make
a prima facie showing that the strike was based on the prospective
juror’s race. Owens, ¶ 76. Second, if this showing is made, the
burden shifts to the striking party to provide a race-neutral
explanation for the strike. Id. at ¶ 77. Third, after the objecting
party has had a chance to rebut the striking party’s explanation,
the court must decide whether the objecting party has established
purposeful discrimination. Id. at ¶ 78. The court should sustain a
Batson challenge only if the objecting party proves that the
peremptory strike was substantially motivated by discriminatory
intent. See id.
¶ 31 We review Batson’s first and second steps de novo but the
third step for clear error. Id. at ¶ 79. To survive clear error review,
a step-three finding need only have some support in the record and
show that the district court considered all the relevant
circumstances. People v. Romero, 2024 CO 62, ¶ 66.
10 C. The Court Properly Denied the Batson Challenge
¶ 32 As best we can tell, Poloa challenges the prosecutor’s step-two
explanation for striking prospective Juror 29 and the court’s
implicit finding that Poloa did not establish purposeful
discrimination at step three. We perceive no error under either
step.
¶ 33 Though Poloa says the prosecutor’s step-two explanation
“boiled down to the suggestion that [Juror 29] would sympathize
with Poloa because of their shared race,” he didn’t argue that before
the district court. Regardless, that’s not an accurate summary of
the prosecutor’s explanation. The prosecutor explained that Juror
29’s comment that “feelings aren’t facts” and her desire to be
“gentle, not judgmental” might lead her to sympathize with Poloa
and affect her ability to assess credibility. The explanation was
tethered to Juror 29’s responses, not to any alleged “shared race.”
Because the explanation for the strike was based on something
other than race, the prosecutor satisfied his burden at step-two.
See Hernandez v. New York, 500 U.S. 352, 360 (1991) (plurality
opinion) (noting that a race-neutral explanation means “an
explanation based on something other than the race of the juror”).
11 ¶ 34 Turning to step three, Poloa first argues that the district court
did not make any findings under step three and that we should
remand for a step-three analysis. Alternatively, he says that any
findings the court made are clearly erroneous.
¶ 35 The record, however, shows that the district court correctly
applied Batson’s third step and made supported findings. The
prosecution explained that it struck Juror 29 because — based on
her comments — she appeared to be sympathetic to Poloa and
unable to judge witness credibility. In response, defense counsel
didn’t argue that the proffered reason was racially motivated or a
pretext for discrimination. Instead, defense counsel simply asserted
that the prosecution “[didn’t] want someone to consider the facts in
the case.” The court disagreed with counsel’s rebuttal and credited
the prosecution’s explanation for the strike by ruling, “I interpreted
it as — that the [p]rosecution wanted someone who would judge
credibility not from just a fact-based analysis.” We therefore
disagree with Poloa that the record is “silent about” and “completely
devoid of” any step-three findings.
¶ 36 To be sure, the court’s ruling was brief, but so too was defense
counsel’s rebuttal. Because defense counsel never argued that the
12 prosecution’s step-two explanation was pretextual or racially
motivated, we don’t see what other facts or circumstances the court
should’ve considered in rejecting his Batson challenge.4 See People
v. Wilson, 2015 CO 54M, ¶ 14 (“Though the [district] court must
evaluate all relevant facts, ‘the ultimate burden of persuasion
regarding racial motivation rests with, and never shifts from, the
opponent of the strike.’” (quoting Purkett v. Elem, 514 U.S. 765, 768
(1995))); cf. People v. O’Shaughnessy, 275 P.3d 687, 695 (Colo. App.
2010) (explaining that the district court “properly could have
considered [the] defendant’s failure to rebut as acquiescence in the
prosecution’s explanation” at step three), aff’d, 2012 CO 9; State v.
King, 735 A.2d 267, 281 (Conn. 1999) (noting that the defendant’s
failure to argue that the prosecutor’s race-neutral explanation was
“insufficient or pretextual” at step three “may be treated as
acquiescence in the validity of” the explanation) (citation omitted).
And insofar as Poloa faults the court for not expressly evaluating
4 In fact, we question whether Poloa preserved any step-three
arguments for our review. See People v. Francis, 731 N.Y.S.2d 706, 707 (App. Div. 2001) (“Since [the] defendant did not contest the race-neutral explanation offered by the prosecutor for the peremptory challenge at issue, [the] defendant’s [Batson claim] is unpreserved, and we decline to review it . . . .”) (citation omitted).
13 the prosecutor’s credibility, demeanor, and intent, the court
implicitly considered as much by crediting the prosecution’s race-
neutral explanation for the strike. See Romero, ¶ 43 (“[W]hile not
ideal, implicit demeanor and credibility findings may suffice.”); see
also People v. Beauvais, 2017 CO 34, ¶ 30 n.5 (collecting cases from
this court holding that “step-three rulings based on implicit
credibility determinations can survive clear error review”). Thus,
“we conclude that the [district] court’s step-three analysis here was
adequate because the court properly conducted a Batson analysis
and issued a Batson ruling that could be reviewed on the record.”
Beauvais, ¶ 33.
¶ 37 To the extent Poloa now raises different step-three arguments
never presented to the district court — for example, that the
prosecution’s race-neutral explanation was pretextual, or that the
prosecution made a “similar objectionable peremptory strike”
against a different juror in a separate case — such arguments
aren’t properly before us. That’s because Batson’s three-step
framework is limited “to events that occurred on the record and in
front of the court.” People v. Madrid, 2023 CO 12, ¶ 43. Madrid
held that the prosecution is prohibited from introducing new race-
14 neutral justifications to support a peremptory strike on remand for
additional findings, id. at ¶¶ 1-2, 38-57, and we see no reason —
and Poloa offers none — why Madrid’s holding and rationale apply
just to the prosecution or remand proceedings. Because our only
job at step three is to determine whether the record supports the
district court’s ruling, Romero, ¶ 66, and because Poloa didn’t
present the arguments he now makes with respect to step three, we
decline to consider them, see Madrid, ¶ 43; see also Wright v. State,
708 S.W.3d 888, 897 (Mo. Ct. App. 2025) (refusing to review
“grounds for Batson challenges that were not raised in the [district]
court,” including “arguments of pretext raised for the first time on
appeal”) (citation omitted); People v. Torres, 737 N.Y.S.2d 282, 282
(App. Div. 2002) (declining to review unpreserved claim that “the
race-neutral explanations offered by the prosecutor . . . were
pretextual”).
15 ¶ 38 For these reasons, we conclude that the district court did not
err by rejecting Poloa’s Batson challenge.5
IV. Amendatory Legislation
¶ 39 Poloa asks us to reverse his conviction for attempt to influence
a public servant because in his view, he’s entitled to the benefit of a
legislative amendment that “decriminalize[d] the act of giving false
identifying information to an officer.” Again, we disagree.
¶ 40 For giving a false name to police, Poloa was charged with and
convicted of attempt to influence a public servant under section 18-
8-306, C.R.S. 2020, a class 4 felony.
¶ 41 In 2021, the legislature amended section 18-8-306 to state
that it is not a violation of that section to provide false identifying
information to law enforcement; instead, that conduct is now
criminalized as a misdemeanor under a different statute. Ch. 462,
5 Because defense counsel never argued that the prosecutor’s race-
neutral explanation was pretextual or racially motivated, the brevity of the district court’s Batson ruling wasn’t fatal here. But in future rulings, the district court should undertake a complete Batson analysis and make express demeanor and credibility findings at step three. See People v. Romero, 2024 CO 62, ¶¶ 36-44, 72-74 (repeatedly emphasizing the importance of express step-three findings for appellate review).
16 secs. 278, 295, §§ 18-8-111.5, 18-8-306, 2021 Colo. Sess. Laws
3196, 3200.
¶ 42 A defendant may be entitled to the benefit of ameliorative
legislation if he requests such relief before the conviction becomes
final. People v. Stellabotte, 2018 CO 66, ¶¶ 3, 29; see also People v.
Thomas, 525 P.2d 1136, 1137-38 (Colo. 1974). But regardless of
the ameliorative nature of a legislative amendment, “we apply
expressly prospective statutes only prospectively.” Stellabotte, ¶ 29.
¶ 43 We review de novo whether an amended statute applies
prospectively or retroactively. See id. at ¶¶ 3, 10.
¶ 44 Doing that here, we conclude that the statute isn’t retroactive.
The legislature made clear that the amendment “takes effect March
1, 2022,” and “applies to offenses committed on or after” that date.
Sec. 803, 2021 Colo. Sess. Laws at 3331-32. Because Poloa
committed the charged offense in July 2021, he isn’t entitled to the
benefit of the legislative amendment. See Stellabotte, ¶ 29; see also
People v. Hamm, 2019 COA 90, ¶ 27 (“Statutes that, by their terms,
are effective ‘on or after’ a specified date do not apply
retroactively.”).
17 ¶ 45 Still, Poloa maintains that he should benefit from the
amendment because section 18-8-306 does not itself include
language that it is effective only prospectively. However, Poloa
directs us to no authority — nor could we find any — that supports
this argument. To the contrary, the session laws are “the official
publication of the enactments” of the legislature. People v.
Washington, 969 P.2d 788, 789 (Colo. App. 1998); see also § 24-70-
223(1), C.R.S. 2024. And here, the session law plainly provides
that the amendment to section 18-8-306 applies prospectively. See
People v. Schnorenberg, 2023 COA 82, ¶ 44 (relying on language in
session laws to conclude that statutory amendment applied
prospectively), aff’d, 2025 CO 43.
¶ 46 We therefore conclude that Poloa is not entitled to the benefit
of the amendment to section 18-8-306.6
V. Disposition
¶ 47 We affirm the judgment.
6 Because they were raised for the first time in his reply brief, we do
not consider Poloa’s arguments that the prosecution “overreach[ed]” by charging him under section 18-8-306, C.R.S. 2020, or that section 18-8-306 violates his right to equal protection. See People v. Owens, 2024 CO 10, ¶ 90.
18 JUDGE SCHOCK and JUDGE TAUBMAN concur.