22CA0760 Peo v Zuniga 04-09-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA0760 Jefferson County District Court No. 20CR3724 Honorable Randall C. Arp, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Sonny Ray Zuniga,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division I Opinion by JUDGE J. JONES Lum and Meirink, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 9, 2026
Philip J. Weiser, Attorney General, Grant R. Fevurly, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Sonny Ray Zuniga, appeals the district court’s
judgment of conviction entered on a jury verdict finding him guilty
of sexual assault of a child by one in a position of trust (pattern of
abuse) and aggravated incest. He also appeals the court’s sexually
violent predator (SVP) designation. We conclude that the court
incorrectly designated Zuniga an SVP. We therefore vacate that
portion of the sentence and remand for correction of the mittimus.
In all other respects, we affirm.
I. Background
¶2 A.Z., the victim in this case, is Zuniga’s daughter. A.Z. didn’t
have much contact with Zuniga during the first few years of her life
because he was either incarcerated or living in a halfway house.
But after his release, Zuniga fought for — and won — custody of
A.Z. and her brother. A.Z., her brother, and her stepsister lived
with Zuniga and A.Z.’s stepmother in a house in Lakewood,
Colorado.
¶3 A.Z. later testified that, before Zuniga had full custody of her,
he began sexually abusing her when she was five or six years old.
Zuniga would call A.Z. into his bedroom in the Lakewood house and
lock the door. Zuniga and A.Z. would then lie on the bed, and
1 Zuniga would pull down A.Z.’s pants and underwear. He would
then wet his fingers and touch A.Z.’s “private parts.” A few times,
Zuniga made A.Z. touch his “private parts.” Zuniga told A.Z. not to
tell anyone about the interactions. These incidents stopped once
A.Z. told Zuniga that she didn’t want to go into the room with him.
¶4 A few years after the abuse ended, Zuniga left the Lakewood
house.1 A.Z. and her siblings remained at the Lakewood house and
were cared for by her stepmother. But after her stepmother died in
2019, A.Z. went to live with her aunt — C.M. — and C.M.’s children,
including C.M.’s stepdaughter, R.S. Soon after moving in, A.Z. told
R.S. that Zuniga had sexually assaulted her. A.Z. told R.S. not to
tell anybody.2
1 Zuniga left because he was convicted in 2017 of sexual assault on
a child by a person in a position of trust and subsequently incarcerated; A.Z.’s stepsister was the victim. The jurors in this case didn’t learn about this previous conviction, but they did learn that A.Z. participated in a 2017 forensic interview. The interview related to the 2017 conviction. During that interview, A.Z. said that Zuniga never touched her inappropriately. However, A.Z. testified in this case that she lied during that interview because Zuniga had told her to. We refer to this forensic interview as the “2017 forensic interview.” 2 It wasn’t until 2021 that R.S. told the social services investigator
that she knew about the assaults.
2 ¶5 In 2020, A.Z. told C.M. at a backyard gathering that Zuniga
had sexually assaulted her. C.M. notified social services. A.Z. then
participated in a forensic interview in which she described Zuniga’s
sexual assaults in detail.3
¶6 Zuniga was charged with sexual assault on a child by one in a
position of trust (pattern of abuse) and aggravated incest of A.Z. A
jury found Zuniga guilty as charged. The district court sentenced
Zuniga to eighteen years to life in the custody of the Department of
Corrections. The court also designated Zuniga an SVP.
II. Discussion
¶7 Zuniga contends that (1) the district court erred by admitting
unreliable child hearsay; (2) the prosecutor committed misconduct
by stating her personal opinion and denigrating the defense; (3) the
district court erred by admitting irrelevant and prejudicial evidence
of A.Z.’s behavioral disposition; and (4) the district court erred by
3 We refer to this forensic interview as the “2020 forensic interview.”
3 designating him an SVP. We reject Zuniga’s first three contentions
but agree with his fourth.4
A. Child Hearsay
¶8 Zuniga first contends that the district court abused its
discretion by admitting C.M.’s testimony about statements A.Z. had
made to C.M. about the assaults because those statements were
unreliable. We disagree.
1. Additional Background
¶9 At a pretrial hearing, C.M. testified about statements A.Z.
made to her regarding Zuniga’s sexual assaults. C.M. said that
after A.Z.’s stepmother died, A.Z. lived with C.M. That’s when C.M.
noticed that A.Z. was displaying worrisome behavior, such as not
leaving her room and always wearing baggy clothes. C.M. initially
thought this behavior was a result of A.Z. losing both her mother
and stepmother. But, because of Zuniga’s previous sexual assault
4 Zuniga’s summary of the argument consists of nothing more than
conclusory assertions of error: It doesn’t contain clear statements of the arguments that articulate the major points of reasoning as to each issue, as required by C.A.R. 28(a)(6). The People’s summary is only marginally better. We admonish the parties to comply with all provisions of C.A.R. 28 when filing briefs with this court.
4 conviction, she became concerned that Zuniga might have sexually
assaulted A.Z.
¶ 10 C.M. and her sister decided to speak with A.Z. about her
behavior and voice their concerns. C.M. told A.Z. they were going to
C.M.’s sister’s house to visit. A.Z. was unaware of the purpose of
the visit.
¶ 11 When C.M. and A.Z. arrived at the house, A.Z. sat in the
backyard with C.M., C.M.’s sister, and R.S. C.M.’s sister told A.Z.
that she had been sexually assaulted as a child and had shown the
same behavior that A.Z. was exhibiting. She asked A.Z. to tell them
if anything had happened to her. A.Z. then said, “Yes,” and began
to cry. C.M.’s sister asked, “Who?” and A.Z. responded, “My uncle
from my mom’s side and my dad.” The sisters asked A.Z. more
questions about the assaults, including how often they had
occurred and where they had occurred. C.M. also asked A.Z. if
Zuniga had forced her to “put her mouth near [Zuniga’s] privates?”
and A.Z. nodded her head. C.M. testified that she asked this
question because that was how Zuniga had assaulted A.Z.’s
stepsister.
5 ¶ 12 The prosecution sought to admit A.Z.’s statements to C.M. at
trial under the child hearsay statute, section 13-25-129, C.R.S.
2025. Following the hearing on the motion, at which C.M. gave the
foregoing testimony, the court found that A.Z.’s general outcry to
her aunts was admissible under the statute. But the court also
found that some of C.M.’s specific questions about the assaults
were leading, and therefore those questions and A.Z.’s answers to
them weren’t admissible.
¶ 13 At trial, C.M. testified that A.Z. told her, her sister, and R.S.
that her father had “touched” her “private parts” (or “down there”)
and had done so “often.” During the conversation, A.Z. was crying
and had trouble getting the words out.
2. Standard of Review and Applicable Law
¶ 14 We review a trial court’s evidentiary decisions for an abuse of
discretion. People v. Phillips, 2012 COA 176, ¶ 63. A court abuses
its discretion when its decision “is manifestly arbitrary,
unreasonable, unfair, or is based on a misunderstanding or
misapplication of the law.” People v. Thompson, 2017 COA 56, ¶ 91.
¶ 15 “‘Hearsay’ is a statement other than one made by the
declarant while testifying at the trial or hearing, offered in evidence
6 to prove the truth of the matter asserted.” CRE 801(c). Hearsay is
generally inadmissible at trial “except[, as relevant in this case,] as
provided . . . by any statutes of the State of Colorado.” CRE 802.
One such statute is the child hearsay statute, under which “[a]n
out-of-court statement made by a child . . . that [is] the subject of
the action, describing all or part of an offense of unlawful sexual
behavior” is admissible even if it would otherwise be considered
hearsay. § 13-25-129(2).
¶ 16 But a child’s hearsay statement can be admitted under the
statute only if the district court finds after “a pretrial hearing
conducted outside the presence of the jury that the time, content,
and circumstances of the statement provide sufficient safeguards of
reliability.” § 13-25-129(5)(a).
¶ 17 In People v. District Court, 776 P.2d 1083 (Colo. 1989), the
Colorado Supreme Court set forth eight factors that a court should
consider when determining the reliability of a child’s hearsay
statement under the statute:
(1) Whether the statement was made spontaneously;
7 (2) whether the statement was made while the child was still upset or in pain from the alleged abuse;
(3) whether the language of the statement was likely to have been used by a child the age of the declarant;
(4) whether the allegation was made in response to a leading question;
(5) whether either the child or the hearsay witness had any bias against the defendant or any motive for lying;
(6) whether any other event occurred between the time of the abuse and the time of the statement which could account for the contents of the statement;
(7) whether more than one person heard the statement; and
(8) the general character of the child.
Id. at 1089-90. The district court “should make specific findings on
which factors establish reliability.” People v. Stackhouse, 2012 COA
202, ¶ 22, aff’d, 2015 CO 48. However, “[w]hile these factors
provide guidance and direction, the absence of one or more factor[s]
does not bar a court from admitting a statement.” Thompson, ¶ 145
(citing Dist. Ct., 776 P.2d at 1090); see also People v. Trujillo, 923
P.2d 277, 282 (Colo. App. 1996) (The factors “should not be used to
foreclose admissibility on the basis that a factor has not been
8 satisfied.”). Thus, we will affirm a district court’s decision to admit
a child’s hearsay statement “if the record shows an adequate factual
basis to support the court’s determination.” Stackhouse, ¶ 22.
3. Analysis
¶ 18 At the pretrial hearing, the district court applied the factors
set forth in People v. District Court, 776 P.2d at 1089-90. In
considering those factors, the court found that A.Z.’s statements
weren’t spontaneous; she wasn’t still in pain from the abuse that
occurred years before; and C.M. and C.M.’s sister asked some
leading questions regarding sexual assault, all of which weighed
against the statements’ admissibility. But the court also found that
A.Z. didn’t have any motive to lie about the assaults; many people
heard the statements; the events in A.Z.’s life that occurred in
between the assaults and the outcry didn’t suggest that A.Z. would
lie; and A.Z. was generally of good character, all of which favored
the statements’ admissibility. The court also didn’t think that the
child-appropriate-language factor was applicable, as there aren’t
“distinct difference[s] in language used by a 14 or 15-year-old
versus that of an 18 or 19-year-old adult.”
9 ¶ 19 Zuniga argues that A.Z.’s statements to her aunts failed to
satisfy the factors set forth in People v. District Court. He recites
several of the factors and argues why, he believes, A.Z.’s statements
didn’t meet them. But, as previously mentioned, a statement
doesn’t need to satisfy each factor to be admissible. Trujillo, 923
P.2d at 282. So long as there is record support for the statement’s
reliability, we won’t overturn the district court’s ruling.
¶ 20 And in this case, there is record support for the district court’s
finding that A.Z.’s statements were reliable. Though, as Zuniga
argues, the backyard encounter was preplanned by A.Z.’s aunts,
A.Z. didn’t know about the plan. And though her aunts asked A.Z.
if she had been sexually assaulted, A.Z. identified her father and
uncle as the perpetrators without prompting.
¶ 21 Zuniga also points to conflicts between statements from A.Z.’s
2017 and 2020 forensic interviews and suggests that these conflicts
made her statements at the backyard gathering unreliable. True, in
her 2017 forensic interview, A.Z. told the interviewer that Zuniga
had never touched her sexually. But A.Z. later said that she had
lied about Zuniga sexually assaulting her in her 2017 forensic
interview because Zuniga had told her to lie and that she was
10 worried about getting in trouble at home if she told the truth. And
her statements during the backyard gathering match those in her
2020 forensic interview, before which no one told her to lie.
¶ 22 Zuniga’s argument that A.Z. was biased against him is merely
speculative. There is no record support for the notion that A.Z. had
a motive to lie in her statements to her aunts. In fact, A.Z. testified
at trial that she still had good memories from when she lived with
her father. And the court saw nothing suggesting that lying about
the assaults would have benefited A.Z. in any way.5
¶ 23 Because there is record support for the district court’s finding
that A.Z.’s statements to C.M. were sufficiently reliable, the court
didn’t abuse its discretion by admitting them.
B. Prosecutorial Misconduct
¶ 24 Zuniga contends that the prosecutor committed misconduct
during rebuttal closing argument by expressing her personal belief
that A.Z. and R.S. were truthful and by “mischaracterizing the
5 It is also important to note that while the district court admitted
some of A.Z.’s statements from the backyard gathering, it didn’t admit all of them. The court didn’t allow A.Z.’s answers to C.M.’s questions about Zuniga’s specific sexual acts because it had determined they were made in response to leading questions.
11 defense theory as a groundless conspiracy theory.” We disagree
with both contentions.
¶ 25 During closing argument, Zuniga’s attorney theorized that A.Z.
had lied about the assaults in her 2020 forensic interview so that
Zuniga wouldn’t gain custody of A.Z.’s younger sister. Referencing
the two forensic interviews, he asked the jury, “Do we believe the
[A.Z.] of 2017? [Or] [d]o we believe the [A.Z.] of 2020 and here?
They can’t both be right.”
¶ 26 In rebuttal closing, the prosecutor responded to defense
counsel’s question. She asked the jury,
What set of events and what set of circumstances has to be true in order for the defendant to be not guilty? If it didn’t actually happen, if this is all an extraordinarily elaborate, coordinated attempt to make this man guilty of something he actually didn’t do, consider this, what does [A.Z.] have to do?
The prosecutor then argued that A.Z. would’ve had to “make up a
very specific story.” She also said that if A.Z. wanted to lie to
prevent Zuniga from obtaining custody of A.Z.’s sister, she “could
have told something way more aggravated than she actually did.”
12 ¶ 27 Defense counsel also theorized that R.S. also lied about
Zuniga’s sexual assaults. The prosecutor responded in her rebuttal
closing that “if [R.S.] [wa]s actually in on this, like, let’s hose Sonny
Zuniga conspiracy theory, why [don’t] [R.S.’s] imaginary details have
more heft to them than they actually do.”
¶ 28 Lastly, the prosecutor argued that if the assaults didn’t
happen, then A.Z. somehow knew exactly how to play the victim.
She asked the jury to use common sense when deciding whether
A.Z. created “quite literally the world’s most malicious lie.”
¶ 29 Zuniga’s counsel didn’t object to any of the prosecutor’s
statements.
2. Applicable Law and Standard of Review
¶ 30 A prosecutor has wide latitude when making arguments based
on facts supported by evidence and reasonable inferences that may
be drawn from those facts. People v. Ray, 2025 CO 42M, ¶ 129;
People v. Strock, 252 P.3d 1148, 1153 (Colo. App. 2010), overruled
on other grounds by, People v. Kennedy, 2025 CO 63. But “a
prosecutor, while free to strike hard blows, is not at liberty to strike
foul ones.” Domingo-Gomez v. People, 125 P.3d 1043, 1048 (Colo.
2005) (quoting Wilson v. People, 743 P.2d 415, 418 (Colo. 1987)).
13 ¶ 31 We use a two-step analysis to review claims of prosecutorial
misconduct. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010).
First, we look at whether the statement “was improper based on the
totality of the circumstances.” Id. Second, if a statement was
improper, we determine whether it warrants reversal under the
proper standard of review. Id. In this case, because defense
counsel didn’t object to any of the statements, that standard is
plain error. Id. at 1097. We reverse under plain error review only if
the error was obvious and so undermined the fundamental fairness
of the trial as to cast serious doubt on the reliability of the
judgment of conviction. Hagos v. People, 2012 CO 63, ¶ 14.
¶ 32 When determining whether a statement was improper, we
must evaluate the statement “in the context of the argument as a
whole and in light of the evidence before the jury.” Ray, ¶ 128
(quoting Strock, 252 P.3d at 1153).
¶ 33 A prosecutor can’t “communicate her opinion on the truth or
falsity of witness testimony during final argument.” Domingo-
Gomez, 125 P.3d at 1049. But a prosecutor “can argue to the jury
that they should not believe a witness.” Id. at 1050 (quoting State
v. Locklear, 241 S.E.2d 65, 70 (N.C. 1978)); see also People v.
14 Herold, 2024 COA 53, ¶¶ 86-89 (the prosecutor didn’t give a
personal opinion when commenting on evidence that cast doubt on
a witness’s version of events).
¶ 34 “A prosecutor may not state or imply that defense counsel has
presented the defendant’s case in bad faith or otherwise make
remarks for the purpose of denigrating defense counsel.” People v.
Iversen, 2013 COA 40, ¶ 37. But “a prosecutor has considerable
latitude in replying to opposing counsel’s argument.” Id. This
includes “comment[ing] on the lack of evidence confirming [a]
defendant’s theory of the case.” People v. Duncan, 2023 COA 122,
¶ 32 (quoting People v. Medina, 545 P.2d 702, 703 (Colo. 1976)).
¶ 35 First, Zuniga argues that the prosecutor expressed her
personal opinion that A.Z. and R.S. were telling the truth. Not so.
Considering the statements in context, the prosecutor was
responding to defense counsel’s closing argument. Defense counsel
had emphasized that there were differences between A.Z.’s
statements during the 2017 and 2020 forensic interviews and
suggested (at least) that A.Z. lied in her 2020 interview. The
prosecutor then used her rebuttal closing to respond to that
15 argument and point out the weaknesses of Zuniga’s theory of
defense. See People v. Conyac, 2014 COA 8M, ¶¶ 137-139 (the
prosecutor’s comment that the victim must be “a fantastic liar”
wasn’t misconduct because the comment was a response to the
defense’s closing argument). And these comments were expressly
based on evidence that had been presented to the jury.
¶ 36 Second, Zuniga argues that the prosecutor denigrated the
defense when she said, “[T]his, like, let’s hose Sonny Zuniga
conspiracy theory.” While the propriety of this comment is a closer
call, we conclude that it doesn’t constitute misconduct. In the
context of the rebuttal closing, the comment referred to the
defense’s speculation that A.Z. fabricated the assault allegations so
that Zuniga couldn’t obtain custody of A.Z.’s younger sister. The
prosecutor was simply poking holes in the defense’s theory of the
case, using a colorful phrase to point out the lack of evidence
supporting it. See People v. Rodriguez, 2021 COA 38M, ¶ 31 (“[A]
prosecutor ‘may employ rhetorical devices and engage in oratorical
embellishment and metaphorical nuance.’” (quoting People v. Allee,
77 P.3d 831, 837 (Colo. App. 2003))).
16 C. Victim Impact Statement
¶ 37 Zuniga contends that the district court incorrectly admitted
irrelevant and prejudicial victim impact evidence of A.Z.’s changed
behavior after disclosing Zuniga’s sexual abuse to family members.
We disagree.
¶ 38 At trial, C.M. testified that she had seen positive changes in
A.Z.’s demeanor after A.Z. told her about the assaults. The
following exchange occurred between the prosecutor and C.M.:
[Prosecutor:] Since you and your family have started to find out what transpired between [A.Z.] and her father, has she changed at all?
[C.M.:] Yes.
[Prosecutor:] What do you mean by that?
[C.M.:] She’s a completely different little girl. She’s outspoken. She talks. She dresses like a normal teenager. She does normal teenage things. She does really well in school. She has more friends now.
[Prosecutor:] Okay.
[C.M.:] She’s happy.
Zuniga’s counsel didn’t object.
17 2. Standard of Review and Applicable Law
¶ 39 “Trial courts have broad discretion in determining the
admissibility of evidence based on its relevance, its probative value,
and its prejudicial impact.” People v. Elmarr, 2015 CO 53, ¶ 20. A
court abuses that discretion when “its ruling is ‘manifestly
arbitrary, unreasonable, or unfair,’” or when “it is based on an
erroneous view of the law.” Id. (quoting People v. Stewart, 55 P.3d
107, 122 (Colo. 2002)). We review unpreserved claims of
evidentiary error for plain error, People v. Snelling, 2022 COA 116M,
¶ 33, and we will reverse only if the error was obvious and so
undermined the fundamental fairness of the trial as to cast serious
doubt on the reliability of the judgment of conviction, Hagos, ¶ 14.
¶ 40 All relevant evidence is presumptively admissible, except as
otherwise provided by constitution, rule, or statute. CRE 402.
Evidence is relevant when it makes a fact of consequence more or
less likely than it would be without it. CRE 401. “In criminal
cases, evidence is relevant if the evidence makes it more or less
probable that a criminal act occurred, the defendant was the
perpetrator, or the defendant acted with the necessary criminal
18 intent.” People v. Mena, 2025 COA 14, ¶ 15 (quoting People v.
Clark, 2015 COA 44, ¶ 17).
¶ 41 Nonetheless, even relevant evidence must be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice. CRE 403. Evidence is considered unfairly prejudicial if
it suggests a decision based on an improper basis, such as
“sympathy, hatred, contempt, retribution, or horror.” People v.
Valdez, 2017 COA 41, ¶ 37 (quoting People v. Dist. Ct., 785 P.2d
141, 147 (Colo. 1990)).
¶ 42 “Victim impact evidence is evidence that relates to ‘the victim’s
personal characteristics and to the physical, emotional, or social
impact of a crime on its victim and the victim’s family.’” People v.
Martinez, 2020 COA 141, ¶ 29 (quoting Schreibvogel v. State, 2010
WY 45, ¶ 22). Whether victim impact evidence is admissible at trial
depends on “whether the evidence is relevant to determining
whether the defendant committed the crime for which he or she was
charged.” Id. at ¶ 33; accord Mena, ¶ 15. Victim impact evidence is
admissible during the guilt/innocence phase of a trial if it “tends to
show the context or circumstances of the crime itself.” Martinez,
19 ¶ 34 (quoting State v. Graham, 650 S.E.2d 639, 646 (N.C. Ct. App.
2007)).
¶ 43 Zuniga argues that evidence regarding A.Z.’s demeanor after
she disclosed the assaults was irrelevant to whether he committed
the offense. This testimony, he says, was effectively a victim impact
statement, and nothing in the testimony described the context or
circumstances of the alleged crime.
¶ 44 It is doubtful that C.M.’s testimony about A.Z.’s change in
demeanor constituted victim impact evidence. Victim impact
evidence is evidence of “the effect of a crime on a [victim or the]
victim’s family.” Id. at ¶ 33 (emphasis added) (quoting Graham, 650
S.E.2d at 645). But C.M. was testifying to the impact that telling
others about the abuse had on A.Z., not the impact of the abuse
itself. The People also correctly point out that the testimony was
relevant to A.Z.’s credibility, a central issue in this case. The
statement was therefore relevant. And the statement’s probative
value wasn’t substantially outweighed by the danger of unfair
prejudice. See Mena, ¶ 27 (“Any unfair prejudice from the jury
20 sympathizing with [the victim] was not likely to substantially
outweigh this relevance.”).
¶ 45 But even if the court erred by admitting this testimony, the
error wasn’t plain. Given that the testimony didn’t describe A.Z.’s
change in behavior caused by the crime, the possible error wasn’t
obvious.
¶ 46 Nor does any error cast serious doubt on the reliability of the
jury’s verdict. The testimony was brief and the admissible evidence
of Zuniga’s guilt was, while not overwhelming, relatively strong. See
People v. McMinn, 2013 COA 94, ¶ 70 (the prosecutor’s improper
comments didn’t constitute plain error because “the evidence
supporting [the defendant’s] conviction was strong”).
D. Cumulative Error
¶ 47 We reject Zuniga’s cumulative error argument. Because there
was, at most, one error, the cumulative error doctrine doesn’t apply.
See Howard-Walker v. People, 2019 CO 69, ¶ 24; People v. Jones,
2025 COA 43, ¶ 56 (cert. granted on other grounds Jan. 20, 2026);
People v. Thames, 2019 COA 124, ¶ 69.
21 E. SVP Designation
¶ 48 Zuniga contends that the district court incorrectly designated
him an SVP because there was no evidence that he promoted a
relationship with A.Z. for the purpose of sexually victimizing her.
We agree and vacate the designation.
¶ 49 At Zuniga’s sentencing hearing, the district court determined
whether to designate Zuniga an SVP. The prosecutor argued that
Zuniga promoted a relationship with A.Z. for the purpose of
sexually assaulting her because the two had no relationship before
the assaults. She also asserted that the abuse started as soon as
Zuniga completed his sentence for a previous conviction. Zuniga’s
counsel objected to the designation. The court agreed with the
prosecutor and found that Zuniga met the criteria for an SVP
designation.
¶ 50 A district court’s SVP designation presents a mixed question of
fact and law. Allen v. People, 2013 CO 44, ¶ 4. We defer to the
court’s factual findings if they have record support, and we review
the court’s legal conclusions de novo. Id. Where “the statutory
22 language is clear, we apply the plain and ordinary meaning of the
provision.” People v. Gallegos, 2013 CO 45, ¶ 7 (quoting Lobato v.
Indus. Claim Appeals Off., 105 P.3d 220, 223 (Colo. 2005)).6
¶ 51 Under section 18-3-414.5, C.R.S. 2025, the court may
designate a defendant an SVP if (1) the defendant was tried as an
adult; (2) the defendant was convicted of certain sex assault crimes,
including sexual assault on a child by one in a position of trust;
(3) the victim was “a person with whom the offender established or
promoted a relationship primarily for the purpose of sexual
victimization”; and (4) the defendant is found, based on the result of
a screening test, to be likely to commit a subsequent sexual offense.
§ 18-3-414.5(1)(a)(I)-(IV). “[A]n SVP designation [must] be based on
‘reliable evidence, not speculation or unfounded allegations.’”
6 The People argue that Zuniga didn’t preserve this issue for appeal
because, while his attorney made a general objection to the designation, “he did not make any further argument and did not challenge or specifically object to the promoting a relationship finding.” However, an issue is preserved for appeal if the trial court was presented with an opportunity to make findings of fact and conclusions of law on the issue. People v. Springsted, 2016 COA 188, ¶ 10 (citing People v. Melendez, 102 P.3d 315, 322 (Colo. 2004)). Zuniga’s counsel objected to the designation at the sentencing hearing, and the court made findings of fact and conclusions of law. Thus, the issue is preserved.
23 People v. Lopez, 2020 COA 41, ¶ 8 (quoting People v. Tuffo, 209 P.3d
1226, 1231 (Colo. App. 2009)).
¶ 52 For the purpose of the statute, an offender promotes a
relationship if, “excluding the offender’s behavior during the
commission of the sexual assault that led to his conviction, he
otherwise encouraged a person with whom he had a limited
relationship to enter into a broader relationship primarily for the
purpose of sexual victimization.” Gallegos, ¶ 14. Behavior in
preparation of the assault isn’t considered when making this
designation, as it doesn’t “encourage the victim ‘to enter into a
broader relationship primarily for the purpose of sexual
victimization.’” People v. Tunis, 2013 COA 161, ¶¶ 39-40 (quoting
Gallegos, ¶ 14).
¶ 53 Zuniga only challenges the district court’s finding that he
promoted a relationship with A.Z. for the purpose of sexual
victimization, so we limit our analysis to that requirement. See
People v. Ehlebracht, 2020 COA 132, ¶ 28. The People make three
arguments that Zuniga promoted a relationship with A.Z. We reject
each in turn.
24 ¶ 54 First, the People argue that Zuniga promoted his relationship
with A.Z. because the frequency of sexual assaults increased with
the amount of time Zuniga spent with A.Z. They argue that this
shows that Zuniga’s main purpose in fostering the relationship was
for sexual victimization. But before Zuniga began sexually
assaulting A.Z., he was incarcerated or in a halfway house, and he
immediately began assaulting A.Z. when he was released and
sought custody. As the prosecutor said at sentencing, Zuniga
“essentially went zero to sixty as far as subjecting [A.Z. and her
stepsister] to sexual abuse.” This evidence doesn’t show that
Zuniga encouraged or enlarged the scope of his relationship with
A.Z. for the primary purpose of sexual victimization: There was
virtually no relationship before the assaults, and, as noted above,
the assaults themselves can’t constitute promotion. See People v.
Tixier, 207 P.3d 844, 847 (Colo. App. 2008) (defining the word
“promote” as “‘to encourage’ and ‘to enlarge’” (quoting Webster’s
Third New International Dictionary 1815 (1986))).
¶ 55 Second, the People argue that Zuniga promoted a relationship
with A.Z. by creating situations where he would assault her, such
as “calling her into his room under various pretenses and locking
25 the door to ensure privacy from others.” But Zuniga took these
actions to prepare to sexually assault A.Z. Because these actions
occurred during the commission of the sexual assaults that led to
Zuniga’s conviction, they can’t be considered. See Gallegos, ¶ 14;
see also People v. Valencia, 257 P.3d 1203, 1205, 1207-08 (Colo.
App. 2011) (the defendant’s actions of hiding in victim’s closet and
attacking her before sexually assaulting her didn’t promote a
relationship for the purpose of sexual victimization); cf. People v.
Brosh, 251 P.3d 456, 461 (Colo. App. 2010) (the defendant
promoted a relationship with victim by “inviting the victim over to
his house . . . on several occasions . . . [and] request[ing] that the
victim have [a] sleep over at his residence”).7
¶ 56 Third, the People argue that Zuniga engaged in other behavior
that fostered his relationship with A.Z., such as “sharing his hobby
[of removing pieces of gold from computer memory boards] with
7 The People argue that “behavior during the commission of the
offense” only relates to the actual touching of the victim. However, Colorado case law holds that actions taken by the defendant in preparation of the assault don’t promote a relationship. See Uribe- Sanchez v. People, 2013 CO 46, ¶ 10; People v. Valencia, 257 P.3d 1203, 1205, 1207-08 (Colo. App. 2011); People v. Tunis, 2013 COA 161, ¶ 40.
26 her.” But A.Z. said in her 2020 forensic interview that Zuniga
began sexually assaulting her before he started sharing his hobby
with her.
¶ 57 In sum, under the controlling test, which we must, of course,
apply, there was no evidence that Zuniga promoted a relationship
with A.Z. for the primary purpose of sexual victimization. It follows
that the SVP designation must be vacated.
III. Disposition
¶ 58 We affirm the judgment. We vacate the SVP designation and
remand for correction of the mittimus.
JUDGE LUM and JUDGE MEIRINK concur.