Peo v. Pride

Opinion

21CA1822 Peo v Pride 07-03-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA1822

Jefferson County District Court No. 19CR2677

Honorable Jason Carrithers, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Christopher Michael Pride,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART AND VACATED IN PART,

AND CASE REMANDED WITH DIRECTIONS

Division VII

Opinion by JUDGE TAUBMAN*

Tow and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 3, 2024

Philip J. Weiser, Attorney General, Jessica E. Ross, Assistant Attorney General,

Denver, Colorado, for Plaintiff-Appellee

Eric A. Samler, Alternate Defense Counsel, Hollis A. Whitson, Alternate

Defense Counsel, Denver, 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. 2023.

1

¶ 1 Defendant, Christopher Michael Pride, appeals the judgment

of conviction entered after a jury found him guilty of first degree

murder (felony murder), aggravated robbery, and conspiracy to

commit aggravated robbery. We vacate certain convictions based

on merger and double jeopardy, as discussed below, and we remand

the case to the trial court to correct the mittimus and conduct a

new abbreviated proportionality review. In all other respects, we

affirm.

I. Background

¶ 2 In June 2019, R.V. was shot and killed during a robbery at his

father’s trailer park. A.S. was also robbed and shot. However, A.S.

survived and suffered brain damage.

¶ 3 A police investigation determined that multiple people were

involved in the robbery and shooting, including Pride. The

prosecution charged Pride with (1) first degree murder (after

deliberation); (2) first degree murder (felony murder); (3) attempted

first degree murder; (4) attempted first degree assault; (5) multiple

counts of aggravated robbery; (6) multiple counts of conspiracy to

commit aggravated robbery; (7) multiple crime of violence counts;

and (8) habitual criminal charges.

2

¶ 4 Pride told investigators, and maintained throughout the trial,

that he was not involved in the robbery or shooting, and that he

was on his way to Colorado Springs at the time of the incident.

¶ 5 At trial, the prosecution relied on cell phone location data to

disprove Pride’s theory of defense. The prosecution’s witness,

Detective Daniel Simpson, who was accepted as an expert in

historical cellular analysis, testified that based on the data he

received from Pride’s and other suspects’ cell phone carriers, Pride’s

phone was in the area at the time of the burglary and murder. The

trial court also admitted Detective Simpson’s expert report, which

contained maps showing which cell phone towers Pride’s and other

suspects’ phones pinged when the incident occurred.

¶ 6 The trial court sentenced Pride to life in the custody of the

Department of Corrections without the possibility of parole for his

felony murder conviction, to sixty-four years in prison for each of

his aggravated robbery convictions, and twenty-four years in prison

for each of his conspiracy convictions. All of the sentences run

concurrently with the life sentence, except for one of the sixty-four-

year sentences, which runs consecutively.

3

¶ 7 On appeal, Pride asserts that (1) the multiple convictions

entered against him violate his right to be free from double

jeopardy; (2) the trial court abused its discretion by admitting the

expert’s report on historical cellular analysis; (3) the trial court’s

complicity liability instruction did not reflect the applicable law; (4)

the trial court did not conduct a proper abbreviated proportionality

review of his sentences; and (5) the statute requiring a life sentence

as the penalty for felony murder is unconstitutional. We address

each contention in turn.

II. Multiplicity and Double Jeopardy

¶ 8 Pride contends, the People concede,

1

and we agree that the

multiple convictions entered against him for aggravated robbery

and conspiracy to commit aggravated robbery violate his right to be

free from double jeopardy.

A. Standard of Review and Applicable Law

¶ 9 We review de novo whether “multiplicitous convictions violate

a defendant’s right to be free from double jeopardy.” People v. Meils,

2019 COA 180, ¶ 39, 471 P.3d 1130, 1137; see Thomas v. People,

1

We are not bound by the People’s concessions on legal issues,

People v. Sabell, 2018 COA 85, ¶ 48 n.5, 452 P.3d 91, 100 n.5.

4

2021 CO 84, ¶ 19, 500 P.3d 1095, 1101. “Double jeopardy

sentencing errors require automatic reversal even when the error [is

not] obvious to the district court.” Whiteaker v. People, 2024 CO

25, ¶ 2, 547 P.3d 1122, 1124.

B. Multiplicity

¶ 10 “Multiplicity is the charging of the same offense in several

counts, culminating in multiple punishments.” Meils, ¶ 40, 471

P.3d at 1138 (quoting People v. McMinn, 2013 COA 94, ¶ 19, 412

P.3d 551, 557). Multiplicitous “convictions are prohibited because

they violate the constitutional prohibition against double jeopardy.”

Id. (quoting McMinn, ¶ 19, 412 P.3d at 557); see U.S. Const.

amends. V, XIV; Colo. Const. art. II, § 18. Accordingly, a defendant

may not be convicted of more than one crime for the same actions

unless the defendant’s “conduct constitutes factually distinct

offenses.” People v. Barry, 2015 COA 4, ¶ 97, 349 P.3d 1139, 1157;

see People v. Gillis, 2020 COA 68, ¶ 29, 471 P.3d 1197, 1203.

1. Conspiracy Convictions

¶ 11 “[A] single conspiratorial agreement may not be divided into

multiple charges,” even if the objective of the single agreement is to

5

commit multiple crimes. People v. Davis, 2017 COA 40M, ¶ 17, 488

P.3d 186, 191; § 18-2-201(4), C.R.S. 2023.

¶ 12 Pride was convicted on four separate charges for conspiracy to

commit aggravated robbery, two for each victim. The charges were

predicated on different subsections of the aggravated robbery

statute; however, the charges were based on one criminal episode.

Accordingly, only one conviction for conspiracy to commit

aggravated robbery can be entered against Pride. Therefore, counts

15, 16, and 17 must merge into count 14.

2. Aggravated Robbery Convictions

¶ 13 The jury also convicted Pride on four counts of aggravated

robbery, two for each victim. Like the conspiracy counts, the

aggravated robbery counts were predicated on different subsections

of the aggravated robbery statute. § 18-4-302, C.R.S. 2023.

¶ 14 In People v. Serna-Lopez, a division of this court determined

that “the General Assembly has not defined separate offenses under

section 18-4-302 but, rather, alternative means of committing the

same offense.” 2023 COA 21, ¶ 19, 531 P.3d 410, 415.

Accordingly, only two convictions for aggravated robbery, one for

each victim, can be entered against Pride. See Barry, ¶ 96, 349

6

P.3d at 1157 (where a single statute defines alternative ways of

committing the same offense, only a single conviction for that

offense can enter).

¶ 15 Multiplicitous convictions must merge, and in so doing, we

must maximize the effect of the jury verdicts. Meils, ¶ 45, 471 P.3d

at 1139. Therefore, count 8 must merge into count 7 for the

aggravated robbery of R.V. Because the sentence of sixty-four years

for Pride’s conviction on count 10 runs consecutively to his life

sentence while the sentence for his conviction on count 11 runs

concurrently with his life sentence, count 11 must merge into count

10 for the aggravated robbery of A.S.

C. Merger

¶ 16 “Merger gives effect to double jeopardy and seeks to protect a

defendant from being punished twice for a single criminal act.”

People v. Kirby, 2024 COA 20, ¶ 29, ___ P.3d ___, ___. The doctrine

of merger precludes a conviction for a crime that is the lesser

included offense of another crime for which the defendant has been

convicted in the same prosecution. People v. Wood, 2019 CO 7,

¶ 30, 433 P.3d 585, 593; see § 18-1-408(1)(a), C.R.S. 2023.

7

¶ 17 Accordingly, if a defendant is found guilty of both a greater

offense and its lesser included offense, the conviction for the lesser

included offense must merge into the conviction for the greater

offense. Page v. People, 2017 CO 88, ¶ 9, 402 P.3d 468, 470.

¶ 18 Because Pride’s charge for felony murder “required proof of the

very same elements essential to the charge of [aggravated] robbery,”

the aggravated robbery was a lesser included offense of felony

murder. People v. Raymer, 662 P.2d 1066, 1069 (Colo. 1983); see

Wood, ¶ 30, 433 P.3d at 593. Accordingly, the remaining conviction

for the aggravated robbery of R.V., count 7, must merge into the

conviction for felony murder, count 2.

¶ 19 Accordingly, we determine that the trial court erred by

entering multiple convictions for aggravated robbery and conspiracy

to commit aggravated robbery against Pride. Therefore, we remand

the case for the trial court to merge counts 7 and 8 into count 2;

merge count 11 into count 10; and merge counts 15, 16, and 17

into count 14.

III. Expert’s Report

¶ 20 Pride contends that the trial court abused its discretion by

admitting Detective Simpson’s expert report on historical cellular

8

analysis because it constituted inadmissible hearsay. We disagree

and also conclude that any error was harmless.

A. Standard of Review and Applicable Law

¶ 21 We review a trial court’s rulings on the admissibility of

evidence for an abuse of discretion. People v. Brown, 2022 COA 19,

¶ 57, 510 P.3d 579, 590. A court abuses its discretion when its

ruling is “manifestly arbitrary, unreasonable, or unfair.” Id.

(quoting People v. Clark, 2015 COA 44, ¶ 14, 370 P.3d 197, 204). If

we determine that the trial court abused its discretion, we only

reverse if we find that the error was not harmless — meaning it

substantially influenced the verdict or affected the fairness of the

trial. People v. Thames, 2019 COA 124, ¶ 59, 467 P.3d 1181, 1193.

¶ 22 Hearsay is “a statement other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.” CRE 801(c). Hearsay statements

are generally inadmissible unless an exception applies. CRE 802.

B. Additional Facts

¶ 23 At trial, the prosecution sought to introduce Detective

Simpson’s expert report on historical cell phone analysis.

9

¶ 24 The first portion of the report explained the technology and

methodology behind historical cellular analysis and the cell phone

information for various suspects that Detective Simpson received

from their respective cell phone carriers. The second portion of the

report contained maps plotting the historical cellular data from

those suspects.

¶ 25 During a bench conference concerning the admissibility of the

report, the trial court permitted the prosecution to divide the report

into two exhibits. The first portion of the report was to be used as a

demonstrative aid, and only the second portion would be admitted

into evidence and allowed to go to the jury.

C. Analysis

¶ 26 We conclude that the trial court did not abuse its discretion by

admitting the second portion of the report containing only the cell

phone tower maps because they were not inadmissible hearsay.

The maps were automatically generated based on the information

Detective Simpson provided to the software. Accordingly, the data

and maps are not statements within the meaning of CRE 801. See

People v. Woodyard, 2023 COA 78, ¶ 82, 540 P.3d 278, 296.

10

¶ 27 Pride also relies on CRE 703 — which provides that “[f]acts or

data that are otherwise inadmissible shall not be disclosed to the

jury by the proponent of the opinion or inference unless the court

determines that their probative value in assisting the jury to

evaluate the expert’s opinion substantially outweighs their

prejudicial effect” — to assert that the information should not have

been disclosed to the jury. However, Pride’s argument only focuses

on the first half of this rule and does not acknowledge that the trial

court determined that the second portion of the report was

admissible because “it will assist [the jury].”

¶ 28 Pride further asserts that the record indicates that the entirety

of Detective Simpson’s report was submitted to the jury rather than

only the portion containing the cellular tower maps. However, we

need not determine whether only a portion or the entirety of the

report was submitted to the jury because any error was harmless.

¶ 29 The information on the methodology and technology of

historical cellular analysis contained in the first portion of Detective

Simpson’s report was already properly admitted through the

detective’s testimony and was therefore cumulative. See People v.

Stone, 2021 COA 104, ¶ 32, 498 P.3d 666, 673 (“Because the

11

photographs were cumulative of Westbrook’s testimony, the trial

court’s error in admitting them could not have contributed to the

jury’s verdict and was therefore . . . harmless error.”) (cert. granted

Oct. 17, 2022); People v. Mapps, 231 P.3d 5, 11 (Colo. App. 2009);

see also Golob v. People, 180 P.3d 1006, 1010 (Colo. 2008) (CRE

703 permits “an expert to testify to facts and data that are

otherwise inadmissible in evidence so long as they formed the basis

of the expert’s opinion and are of the type reasonably relied upon by

experts in the field”).

¶ 30 Accordingly, the trial court did not abuse its discretion by

admitting the second portion of the report containing the cellular

tower maps, and any error in submitting the first portion of the

report to the jury was harmless.

IV. Complicity Jury Instruction

¶ 31 Pride also contends that the trial court failed to properly

instruct the jury on the applicable law. Specifically, he asserts that

the trial court plainly erred by using a jury instruction on

complicity liability that did not mirror the model jury instruction or

incorporate the changes to complicity liability outlined in People v.

Childress, 2015 CO 65M, ¶ 34, 363 P.3d 155, 165. We disagree.

12

A. Standard of Review and Applicable Law

¶ 32 The trial court has a duty to instruct the jury correctly on all

matters of law. People v. Knapp, 2020 COA 107, ¶ 20, 487 P.3d

1243, 1250.

¶ 33 We agree with the parties that this issue is not preserved for

our review because while defense counsel objected to the trial

court’s complicity jury instruction, she did not object on the ground

that the instruction did not reflect the current governing law.

Accordingly, we review for plain error. Garcia v. People, 2019 CO

64, ¶ 20, 445 P.3d 1065, 1068. An error is plain if it is both

obvious and substantial — meaning it “so undermine[d] the

fundamental fairness of the trial as to cast serious doubt on the

reliability of the judgment of conviction.” Gillis, ¶ 26, 471 P.3d at

1203 (citation omitted).

B. Analysis

¶ 34 The trial court gave the following jury instruction on

complicity liability:

Complicity is not a separate crime. Rather, it

is a legal theory by which one person may be

found guilty of a criminal offense that was

committed [in whole or in part] by another

person. To be guilty as a complicitor, the

13

prosecution must prove each of the following

circumstances beyond a reasonable doubt:

1. A crime must have been committed.

2. Another person must have committed all or

part of the crime.

3. The defendant must have had knowledge

that the other person intended to commit all or

part of the crime.

4. The defendant must have had the intent to

promote or facilitate the commission of the

crime.

5. The defendant must have aided, abetted,

advised, or encouraged the other person in

planning or committing the crime.

¶ 35 Under the complicity statute, “[a] person is legally accountable

as [the] principal for the behavior of another constituting a criminal

offense if, with the intent to promote or facilitate the commission of

the offense, he or she aids, abets, advises, or encourages the other

person in planning or committing the offense.” § 18-1-603, C.R.S.

2023. In Childress, the supreme court clarified that complicity

liability has a “dual mental state requirement,” meaning that the

complicitor must have

(1) the intent, in the commonly understood

sense of desiring or having a purpose or

design, to aid, abet, advise, or encourage the

principal in his criminal act or conduct, and

14

(2) an awareness of those circumstances

attending the act or conduct he seeks to

further that are necessary for commission of

the offense in question.

Childress, ¶ 29, 363 P.3d at 164.

¶ 36 While the trial court’s complicity instruction did not mirror the

updated pattern jury instruction on complicity liability or explicitly

mention the dual mental state requirement reflected in Childress,

we perceive no error.

¶ 37 First, a trial court is not required to use pattern jury

instructions. People v. Flockhart, 2013 CO 42, ¶ 12, 304 P.3d 227,

231; see also Garcia, ¶ 22, 445 P.3d at 1069. Second, a division of

this court has held that a jury instruction nearly identical to the

one in this case sufficiently reflected the state of complicitor liability

after Childress, though it did not consider the new pattern jury

instruction. People v. Jackson, 2018 COA 79, ¶ 66, 474 P.3d 60,

74, aff’d on other grounds, 2020 CO 75, 472 P.3d 553.

¶ 38 Accordingly, we conclude that the trial court did not err by

using a complicity jury instruction that pre-dated Childress.

Regardless, even if the instruction was erroneous, any error was not

obvious in light of Jackson. See Scott v. People, 2017 CO 16, ¶ 17,

15

390 P.3d 832, 835 (“[A]n error will not ordinarily be deemed

‘obvious’ when either this court or a division of the court of appeals

has previously rejected an argument being advanced by a

subsequent party who is asserting plain error.”).

¶ 39 We also reject Pride’s contention that the trial court should

have provided a separate complicity instruction for each offense.

Pride asserts that not doing so was obvious error because a

comment to the COLJI states, “If the court decides to instruct the

jury on the theory of complicity liability with respect to multiple

crimes, it should provide a separate complicity liability instruction

for each crime.” COLJI-Crim. J:03 cmt. 9 (2023). However, while a

pattern jury instruction and its accompanying comments are

guidelines that carry weight, they are not controlling. People v.

Rester, 36 P.3d 98, 102 (Colo. App. 2001).

¶ 40 Moreover, we decline to address Pride’s contention that he was

entitled to his proffered “mere presence” instruction. Because we

conclude that the complicity instruction properly instructed the

jury on the applicable law, a “mere presence” instruction was not

required because it was encompassed by the instructions as a

whole. See People v. Simien, 671 P.2d 1021, 1024 (Colo. App. 1983)

16

(“[W]here proper instructions are given concerning the presumption

of innocence, the prosecution’s burden of proof, reasonable doubt,

the essential elements of the offenses, and the definition of the

requisite mens rea, the so called ‘mere presence’ instruction is

necessarily encompassed by the instructions as a whole, and need

not be given.”).

V. Abbreviated Proportionality Review

¶ 41 Pride contends that the trial court did not conduct a proper

abbreviated proportionality review to determine whether his

habitual offender sentences are disproportionate to the nature and

severity of his offenses in violation of article II, section 20 of the

Colorado Constitution

2

and the Eighth Amendment. We agree and

remand for the trial court to conduct an abbreviated proportionality

review in accordance with the principles set forth in Wells-Yates v.

People, 2019 CO 90M, 454 P.3d 191.

2

We do not separately address Pride’s challenge under the Colorado

Constitution because he does not make a distinct argument from

his federal constitutional challenge. See People v. Lewis, 2017 COA

147, ¶ 12 n.2, 433 P.3d 70, 74 n.2.

17

A. Additional Facts

¶ 42 The trial court determined that Pride was a habitual offender

based on (1) a conviction for aggravated motor vehicle theft; (2) a

conviction for criminal attempt to commit illegal discharge of a

firearm; (3) a federal conviction for being a felon in possession of a

firearm and aiding and abetting; and (4) a federal conviction for

being a felon in possession of a firearm.

¶ 43 Pursuant to the habitual offender statute, section 18-1.3-801,

C.R.S. 2023, the trial court sentenced Pride to life without the

possibility of parole for the felony murder conviction, sixty-four

years running consecutively to the life sentence for the aggravated

robbery conviction, and twenty-four years running concurrently to

the life sentence for the conspiracy conviction.

3

Pride’s defense

counsel then requested that the trial court conduct an abbreviated

proportionality review. In its review, which did not mirror the two-

step analysis set forth in Wells-Yates, the trial court concluded,

[C]onsidering what the Court knows about the

allegations in other cases, the use of weapons

in other cases, or the aggravated nature of

3

This statement reflects what Pride’s sentences will be after the

mittimus is corrected to merge and vacate certain convictions in

accordance with this opinion.

18

some of the other cases, the Court at this point

is comfortable with the sentence. I find the

sentence to be appropriate, supported by

statute, and supported by the facts of the case,

and I’m not going to conduct any additional

abbreviated review.

B. Standard of Review and Applicable Law

¶ 44 We review de novo whether a sentence is constitutionally

proportionate. See Wells-Yates, ¶ 35, 454 P.3d at 204.

¶ 45 The United States and Colorado Constitutions prohibit

“extreme sentences that are ‘grossly disproportionate’ to the crime.”

Id. at ¶¶ 5, 10, 454 P.3d at 196-97 (quoting Harmelin v. Michigan,

501 U.S. 957, 1001 (1991) (Kennedy, J., concurring in part and

concurring in the judgment)); see also U.S. Const. amend. VIII;

Colo. Const. art. II, § 20. In conducting an abbreviated

proportionality review, a trial court must engage in a two-step

analysis.

¶ 46 First, the court must consider the “triggering offense and the

predicate offenses together and determine whether, in combination,

they are so lacking in gravity or seriousness as to raise an inference

that the sentence imposed on that triggering offense is grossly

disproportionate.” Wells-Yates, ¶ 2, 454 P.3d at 195. “If there are

19

multiple triggering offenses, the reviewing court must look at the

sentence imposed for each such offense and engage in a

proportionality review of that sentence because each sentence

represents a separate punishment for a distinct and separate

crime.” Id. at ¶ 24, 454 P.3d at 201.

¶ 47 Second, the court must consider “the harshness of the

sentence imposed.” Id. at ¶ 23, 454 P.3d at 201. If the abbreviated

proportionality review does not give rise to an inference of gross

disproportionality, the court need not conduct an extended

proportionality review. See id. at ¶ 15, 454 P.3d at 198-99.

¶ 48 When multiple triggering offenses are involved, the court must

examine each sentence separately to determine “whether the

corresponding triggering offense and the predicate offenses,

considered together, are so lacking in gravity or seriousness as to

suggest that the sentence is grossly disproportionate.” Id. at ¶ 24,

454 P.3d at 202. A court will only conduct an extended

proportionality review of a habitual offender sentence “if the

abbreviated proportionality review raises an inference that the

defendant’s sentence was ‘grossly disproportionate’ to the gravity of

his offense.” People v. Tran, 2020 COA 99, ¶ 82, 469 P.3d 568, 579.

20

C. Analysis

¶ 49 Certain crimes are considered “inherently (or per se) grave or

serious for proportionality purposes.” Wells-Yates, ¶ 13, 454 P.3d

at 198. “[O]thers may be grave or serious depending on their

particular facts and circumstances.” People v. Loris, 2018 COA

101, ¶ 12, 434 P.3d 754, 757. If an offense is per se grave or

serious, the court need not further consider the facts and

circumstances surrounding the offense but may proceed directly to

the question of whether the sentence imposed was grossly

disproportionate to the crimes of conviction. Wells-Yates, ¶¶ 13,

75, 454 P.3d at 198, 211.

¶ 50 However, if a crime is not per se grave or serious, the court

“should consider ‘the harm caused or threatened to the victim or

society,’ as well as ‘the culpability of the offender.’” Id. at ¶ 12, 454

P.3d at 198 (quoting Solem v. Helm, 463 U.S. 277, 292 (1983)).

Relevant factors include the magnitude of the offense; “whether the

crime is a lesser-included offense or the greater-inclusive offense;

whether the crime involves a completed act or an attempt to commit

an act; and whether the defendant was a principal or an accessory

after the fact in the criminal episode.” Id. In considering the

21

defendant’s culpability, the court should also consider the

defendant’s motive and mental state. Id.

¶ 51 Pride concedes that his conviction for the triggering offense of

aggravated robbery is per se grave or serious. See id. at ¶ 65, 454

P.3d at 209. Felony murder is also a per se grave or serious crime.

People v. Sellers, 2022 COA 102, ¶ 65, 521 P.3d 1066, 1079 (cert.

granted May 15, 2023). As Pride asserts, none of his predicate

offenses — aggravated motor vehicle theft, attempted illegal

discharge of a weapon, being a felon in possession of a firearm, and

aiding and abetting — is per se grave or serious. Accordingly, the

trial court should have considered the factual basis for these

convictions to determine their magnitude. See People v. Wright,

2021 COA 106, ¶ 72, 498 P.3d 1147, 1162. Because the People did

not present any evidence pertaining to the factual circumstances

underlying the predicate offenses, the trial court could not have

meaningfully considered their gravity or seriousness.

¶ 52 Pride seems to overlook that even if the trial court had found

that his predicate offenses were not grave or serious, it would not

end the trial court’s inquiry into the proportionality of the sentence.

Id. at ¶ 65, 498 P.3d at 1161. Rather,

22

“even when the triggering offenses and/or the

predicate offenses supporting a habitual

criminal sentence include grave or serious

crimes” — either per se grave or serious crimes

or those crimes where the underlying conduct

is found to have been grave or serious — “it

would be improper for a court to skip the

second subpart of an abbreviated

proportionality review and neglect to consider

the harshness of the penalty or to conclude

that when the circumstances described are

present there can be no inference of gross

disproportionality.”

Id. at ¶ 86, 498 P.3d at 1164 (quoting Wells-Yates, ¶ 27, 454 P.3d at

202).

¶ 53 Therefore, because we are not in a position to analyze the facts

and circumstances surrounding each of Pride’s convictions for the

predicate offenses, we remand the case for the trial court to conduct

an abbreviated proportionality review of all Pride’s sentences,

including the life sentence, in accordance with the precepts of

23

Wells-Yates.

4

See id. at ¶¶ 86-87, 498 P.3d at 1164. Specifically,

the court should consider the per se grave or serious nature of

Pride’s triggering offenses together with the predicate offenses to

determine whether the sentences imposed are grossly

disproportionate. Wells-Yates, ¶¶ 13, 75, 454 P.3d at 198, 211.

VI. Constitutionality of the Felony Murder Statute

¶ 54 Last, Pride challenges the statute requiring a life sentence

without the possibility of parole for a felony murder conviction on

various constitutional grounds: (1) article II, section 20 and the

Eighth Amendment categorically bar a mandatory life sentence for

felony murder as cruel and unusual punishment; (2) a mandatory

life sentence for felony murder is a constitutionally disproportionate

penalty; and (3) the prospective language of the General Assembly’s

4

We also remand for the trial court to amend the mittimus to add

Pride’s convictions on habitual counts 27, 28, 29, and 30, which

were inadvertently not included. See Crim. P. 52(b) (we may notice

errors that are plain, even when the parties did not bring them to

our attention); Crim. P. 36 (“Clerical mistakes in judgments, orders,

or other parts of the record and errors in the record arising from

oversight or omission may be corrected by the court at any time and

after such notice, if any, as the court orders.”); People v. Wood,

2019 CO 7, ¶ 40, 433 P.3d 585, 595.

24

recently amended statute is unconstitutional.

5

For the reasons

explained below, we exercise our discretion and decline to address

these contentions.

¶ 55 We review de novo the constitutionality of a sentence. People

v. Hines, 2021 COA 45, ¶ 59, 491 P.3d 578, 589. To the extent that

our review requires consideration of constitutionality of a statute,

our review is also de novo. People v. Stone, 2020 COA 23, ¶ 23, 471

P.3d 1148, 1153.

¶ 56 However, we may exercise our discretion in addressing an

unpreserved challenge to the constitutionality of a statute, “but only

where doing so would clearly further judicial economy.” People v.

Houser, 2013 COA 11, ¶¶ 31, 35, 337 P.3d 1238, 1247-48.

Judicial economy can be examined from two

perspectives. The narrower view looks only

forward, from the case pending before the

appellate court, in deciding whether efficiency

can be achieved by that court deciding an

issue because it is likely to arise in a later

proceeding below. The broader view looks

systemically, from the start of the case, in also

5

We decline to address Pride’s contention that a mandatory life

sentence for felony murder violates his right to due process because

it is not developed. See People v. West, 2019 COA 131, ¶ 23, 461

P.3d 591, 598. To the extent that Pride’s due process argument is

couched as a proportionality claim, we decline to address it for the

reasons stated above.

25

considering the efficiency that could have been

achieved by raising the issue earlier.

Id. at ¶ 36, 337 P.3d at 1248.

¶ 57 Pride did not raise his constitutional arguments until this

direct appeal of his conviction. Accordingly, we decline to address

Pride’s constitutional challenges of two reasons: (1) the issues Pride

raises were largely addressed by a division of this court in Sellers,

which the Colorado Supreme Court is already reviewing; and

(2) Pride does not explain, nor do we discern, how addressing his

challenge would promote judicial economy. See People v. Duncan,

2023 COA 122, ¶ 25, 545 P.3d 963, 971; People v. Butler, 2017 COA

117, ¶ 36, 431 P.3d 643, 650.

VII. Disposition

¶ 58 Accordingly, we vacate the convictions that violate Pride’s right

to be free from double jeopardy and remand the case for the

correction of the mittimus to reflect the merger of counts 7 and 8

into count 2, merger of count 11 into count 10, and merger of

counts 15, 16, and 17 into count 14. On remand, the trial court

must also conduct a new abbreviated proportionality review of

Pride’s sentences. In all other respects, the judgment is affirmed.

26

JUDGE TOW and JUDGE KUHN concur.