v. Tresco

2019 COA 61

• Court: Colorado Court of Appeals
• Decided: May 2, 2019
• Docket: 16CA0400, People
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY May 2, 2019

2019COA61

No. 16CA0400, People v. Tresco — Criminal Law — Sentencing; Constitutional Law — First Amendment — Freedom of Association

In the third issue of this opinion, the majority considers

whether a sentencing court erred in considering evidence of the

defendant’s previous gang affiliation in a case that was not gang

related and where the defendant had left gang life. Applying

Dawson v. Delaware, 503 U.S. 159 (1992), the majority concludes

that evidence of gang affiliations is not per se inadmissible during

sentencing if it relates to the nature of the offense and the

defendant’s character, not merely the defendant’s abstract beliefs.

The majority perceives no error here. The majority affirms the

judgment of conviction. The dissent concludes, as to the first issue, that a remand is

required to determine whether Tresco would have waived his right

to counsel and chosen to represent himself. For that reason, the

dissent would not reach the other issues at this time. COLORADO COURT OF APPEALS 2019COA61

Court of Appeals No. 16CA0400 City and County of Denver District Court No. 14CR6552 Honorable Morris B. Hoffman, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Gabriel A. Tresco,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division A Opinion by JUDGE FOX Furman, J., concurs Ashby, J., dissents

Announced May 2, 2019

Philip J. Weiser, Attorney General, John T. Lee, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Katayoun A. Donnelly, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Gabriel A. Tresco, appeals the judgment of

conviction entered on a jury verdict finding him guilty of second

degree assault. Tresco argues that the trial court erred by (1)

denying his request that his counsel be removed; 1 (2) admitting

expert testimony that was not properly disclosed to defense counsel;

and (3) considering, at sentencing, a video recording from five years

before the events of this case in which Tresco discussed his gang

affiliation. We reject Tresco’s contentions and affirm. The last

argument raises a novel question in Colorado.

I. Background

¶2 The prosecution charged Tresco with second degree assault for

punching a man in the face — ultimately causing nerve damage —

in in the parking lot of a bar, allegedly because the man groped

Tresco’s fiancée. On the first day of trial, Tresco notified the trial

court that he had filed a grievance against his defense counsel, a

public defender. The trial court asked Tresco if he was requesting

that the public defender be removed, and Tresco said that he was.

1Tresco also requested, but was denied, a continuance of the trial. He did not appeal that denial.

1 The trial court declined to address Tresco’s request at that time,

stating that it would do so after jury selection. However, the trial

court never addressed Tresco’s request, and the public defender

represented Tresco at trial.

¶3 The jury found Tresco guilty of second degree assault, and the

trial court sentenced him to eight years in the custody of the

Department of Corrections (DOC) and three years of mandatory

parole.

¶4 Because we were unable to determine on the record before us

whether the trial court erred by denying Tresco’s request that his

counsel be removed, we remanded the case to the trial court with

directions to address whether Tresco was entitled to different

appointed counsel on the first morning of trial.2 With the benefit of

the remand findings and record, we can now address Tresco’s

contentions.

2 The remand order states: “The case is remanded to the trial court for the limited purpose of investigating the grounds for Tresco’s request and ruling on whether he was entitled to withdrawal of his appointed counsel. The trial court may hold hearings and shall make new factual inquiries in conducting this inquiry.”

2 II. Right to Counsel

¶5 Tresco’s appellate counsel argues that the trial court violated

Tresco’s Sixth Amendment rights by denying him counsel of choice.

We disagree.

A. Applicable Law

¶6 The Sixth Amendment provides that a criminal defendant has

the right to the assistance of counsel. U.S. Const. amend. VI.

Although this right applies equally to indigent and non-indigent

defendants, it manifests itself in different ways.

¶7 Under the Sixth Amendment, non-indigent defendants have

the right to counsel of their choice. See People v. Ronquillo, 2017

CO 99, ¶ 16. In contrast, an indigent defendant who requests

court-appointed counsel does not get to choose which court-

appointed lawyer will represent him. Id. at ¶ 18. The Sixth

Amendment instead guarantees that indigent defendants receive

constitutionally effective representation from conflict-free counsel.

Id. at ¶ 19; see also People v. Shreck, 107 P.3d 1048, 1055 (Colo.

App. 2004).

¶8 “When an indigent defendant objects to his court-appointed

counsel, the trial court must investigate the reasons for the

3 dissatisfaction.” People v. Johnson, 2016 COA 15, ¶ 30. This is a

fact-intensive investigation into the details of the disagreement or

conflict between the defendant and appointed counsel. See People

v. Bergerud, 223 P.3d 686, 694 (Colo. 2010). “Unless the complaint

underlying a request for substitution of counsel is sufficiently

detailed, the court may not rule on the motion without conducting a

proper hearing at which both attorney and client testify as to the

nature of their conflict.” Id. (citation omitted). The decision on

whether to grant a defendant’s request for substitute appointed

counsel is within the trial court’s discretion, and we will not disturb

such a ruling absent an abuse of that discretion. See Johnson,

¶ 29.

¶9 Tresco was represented by appointed counsel at trial. On the

first morning of trial, he did not ask to replace his appointed

counsel with nonappointed counsel of his choice. Nor did he ask to

represent himself. Tresco’s appellate counsel’s argument that his

Sixth Amendment right to counsel of choice was violated is

therefore inapposite to Tresco; because Tresco had appointed

counsel, not private counsel, he did not have the right to counsel of

his choice under the Sixth Amendment.

4 ¶ 10 However, the Sixth Amendment did guarantee Tresco conflict-

free appointed counsel who would represent him effectively. Tresco

asked for replacement of his public defender due to an asserted

conflict.

B. Trial Record

¶ 11 On the first morning of trial, Tresco informed the trial court

that he had filed a grievance against his attorney and the following

exchange occurred:

THE COURT: [I]s he intending to now file a motion on the morning of trial to require disqualification of counsel? Is that the intention here?

[TRESCO]: I would like for you to review that first to see which way I should go, because I don’t really know —

THE COURT: Well, I’m not here to give you legal advice, sir. I’m sorry. That’s not appropriate for me to do. And this document is essentially completely irrelevant to me and these proceedings.

[TRESCO]: Actually, there’s some relevance because, Your Honor, these are the things that led me to believe —

THE COURT: It would only be relevant if you’re filing or requesting that your counsel be withdrawn on the morning of trial.

5 [TRESCO]: Then, yes. Let’s proceed with that, Your Honor.

¶ 12 The trial court then explicitly recognized that it was required

to evaluate Tresco’s request and stated that it would do so after jury

selection. But, the trial court never addressed Tresco’s request.

¶ 13 By not ruling on the request, the trial court implicitly denied

Tresco’s request for replacement of his public defender. But,

because the court did not investigate the factual basis for the

request, we had no record from which to determine whether the

court’s implicit denial was an abuse of discretion. Having

remanded with directions to investigate the basis for Tresco’s

request and to determine whether he was entitled to replacement of

his public defender, we now examine the findings and the

supplemented record.

C. Remand Record

¶ 14 After two half-day hearings where the remand court heard

testimony from Tresco and his trial counsel, Elizabeth Atkinson,

and entertained extensive argument from appellate counsel, the

court found as follows:

6 • Tresco “likely asked for withdrawal of the public

defender on the morning of trial because he lacked

confidence in her representation, and not because

he wanted to testify inconsistently with a defense

theory she insisted on presenting — as he now

claims — and not because of a conflict of interest, a

complete breakdown in communication, or some

other irreconcilable conflict.”

• Tresco “was not entitled to withdrawal of his public

defender.”

¶ 15 The grievance Tresco offered to the trial court was not part of

our record before the remand. But, the remand court has now

appropriately supplemented our record with the contents of that

grievance, which reads as follows:

I’m having a break down in communications with Atkinson. Since May 2015 we have had minimal contact in regard to putting together a defense strategy(s) for my case. In fact I believe that she does not have my best interest in mind in preparing my case for trial. On the few occasions that she did interact with me, she never seemed confident in defending me in this case, suggesting that I take the plea bargain that was offered to me by the prosecutor. I [gave] her a list of witnesses that

7 are [beneficial] to my defense but she shunned all the witnesses that I presented to her, saying that she didn’t believe they were credible. Furthermore[,] she contradicted herself by saying she tried contacting a certain witness several times . . . . The witness stated that the only person to contact her regarding my case was the District Attorney[’]s office. I believe this to be a violation of my civil rights and also my due process.

¶ 16 Based on our independent review of the record, as

supplemented by the remand proceedings, we conclude that the

remand court’s findings enjoy record support and reveal no abuse

of discretion. Johnson, ¶ 29. Accordingly, we defer to those

findings, including the remand court’s explicit and implicit

credibility determinations. See People v. Travis, 2019 CO 15, ¶ 12

(a reviewing court should examine the “‘total circumstances

manifested by the record in [the] case’ and ‘particularly . . . the

reasons presented to the trial judge at the time’” the right to

counsel was allegedly denied) (citations omitted); see also People v.

Harlan, 109 P.3d 616, 627-28 (Colo. 2005) (“[W]e cannot second-

guess determinations of the trial court regarding witness

credibility.”).

8 ¶ 17 As the remand court aptly recognized, the grievance says

nothing about Atkinson preventing Tresco from testifying about his

claimed “heat of passion” defense. Instead, the grievance indicates

dissatisfaction with Atkinson’s level of confidence. But a lack of

confidence in a defendant’s ability to prevail at trial does not

automatically create a conflict, nor does it indicate that the lawyer

is not competent to defend a client. See People in Interest of C.Z.,

262 P.3d 895, 902 (Colo. App. 2010) (“An attorney’s disagreement

with the client regarding the strength of the case does not

constitute an actual conflict of interest requiring the appointment of

substitute counsel.”); People v. Hodges, 134 P.3d 419, 425 (Colo.

App. 2005) (“Neither the existence of animosity between defendant

and [counsel] nor [counsel’s] asserted disagreement with defendant

regarding the strength of defendant’s case constitutes an actual

conflict of interest requiring the appointment of substitute

counsel.”), aff’d, 158 P.3d 922 (Colo. 2007); People v. Garcia, 64

P.3d 857, 863 (Colo. App. 2002) (the trial court did not abuse its

discretion in denying defendant’s motion to appoint private counsel

where the defendant alleged that his counsel, among other things,

repeatedly told defendant “there is nothing you can do”); People v.

9 Apodaca, 998 P.2d 25, 28 (Colo. App. 1999) (the trial court did not

abuse its discretion in declining to appoint substitute counsel

where the defendant objected to “defense counsel’s ‘personal

disbelief’ of defendant’s version of the events” based on defense

counsel’s statements during the sentencing hearing); see also

McKee v. Harris, 649 F.2d 927, 932 (2d Cir. 1981) (the defendant’s

“loss of trust” in counsel did not give rise to good cause for

substitution of counsel). It is a lawyer’s job to assess the best

witnesses to present at trial, and there is nothing inherently

improper about a lawyer opting not to present a witness she

concludes is not credible. See Dunlap v. People, 173 P.3d 1054,

1075 (Colo. 2007) (recognizing that if trial counsel had a reasonable

basis for a strategic decision, then the decision enjoys a strong

presumption of correctness and the inquiry generally ends).

¶ 18 While the remand court accepted that Tresco was not entirely

satisfied with his attorney, it found that Tresco and his counsel had

not experienced a “true breakdown in communications” requiring

counsel’s removal. See Bergerud, 223 P.3d at 694. The remand

court also found no indication that counsel was prevented from

effectively representing her client. The mere filing of a grievance

10 because of disagreement as to trial tactics does not, without more,

demonstrate that the relationship has deteriorated to a point at

which counsel is unable to give effective aid to the client. People v.

Martinez, 722 P.2d 445, 446 (Colo. App. 1986); see also United

States v. Holman, 314 F.3d 837, 845-46 (7th Cir. 2002) (fact that

defendant filed disciplinary inquiry against his attorney is “not

enough to establish an actual conflict of interest”); United States v.

Burns, 990 F.2d 1426, 1437-38 (4th Cir. 1993) (grievance filed

against defendant’s attorney three days before trial did not create a

conflict of interest); Mathis v. Hood, 937 F.2d 790, 796 (2d Cir.

1991) (frivolous complaint against attorney does not create conflict

of interest); cf. United States v. Patterson, 576 F.3d 431, 436-37 (7th

Cir. 2009) (district court properly exercised discretion to reject

defendant’s pro se motion to withdraw guilty plea without a hearing

because he was represented by counsel); Perry v. State, 464 S.W.2d

660, 664 (Tex. Crim. App. 1971) (filing of civil case against counsel

did not create a conflict of interest). Rather, the court concluded

that there was some disagreement concerning trial strategy and

that counsel properly exercised her strategic decision-making

authority. The remand court could not fault Atkinson’s strategic

11 choice not to proceed on a “heat of passion” theory where the

evidence revealed that Tresco’s then fiancée was allegedly groped

inside the bar they were patronizing, but the assault occurred

outside, in the parking lot and not contemporaneously with the

groping.

¶ 19 In addition to claiming he wanted to proceed on a heat of

passion defense — admitting that he injured the victim, but

claiming it was for a legitimate reason — Tresco now suggests that,

if deprived of the opportunity to secure alternate counsel, he would

have opted to represent himself. Although the remand court’s order

does not explicitly address this issue, the court implicitly rejected

any claim that was not presented to the trial court, including any

later claims purporting to supplement the grievance letter that

formed the basis at trial for Tresco’s request to remove Atkinson.

Cf. Garcia, 64 P.3d at 863 (if substitution of counsel is not

warranted, a defendant continues with retained counsel or may ask

to represent himself). Indeed, during the remand proceedings the

court noted that Tresco’s story regarding his reasons for

dissatisfaction with Atkinson had changed over time, which

necessarily factored into the court’s credibility calculus:

12 Mr. Tresco has had three opportunities to state: Atkinson misrepresented me; she was not effective, she was not doing what I wanted, I want a different attorney. And the first time we’re hearing the reasons for that and the things that he would have argued on that day was because she had a different theory [ — ]that he demanded to testify and she wouldn’t allow that, she put him in a position he couldn’t, and that she [insisted against] pursuing heat of passion despite all of the other information that he had given . . . . That’s inconsistent with him saying “I want a different attorney” for entirely different reasons . . . there is no mention of the theory that today, now, in hindsight, which, in candor, there’s credibility issues just to begin with when someone comes in and says, “I know, If I can find a basis to say my attorney should have been allowed to withdraw, I get a new trial; and, if I don’t, I’m stuck with this conviction. It automatically raises a credibility issue. And to say this is not an argument you had made when you were raising it in the past, it’s not decisive, but it is something I’m considering . . . . I’m not aware of anything in the past where he has said, “I wanted to get rid of Atkinson because it was critical to me to pursue one theory, and she wanted to pursue the other.”

¶ 20 The remand court’s order clearly articulates why Tresco was

not entitled to have Atkinson replaced as his counsel:

[T]o be entitled to a different attorney, [a defendant] must have a well-founded reason for believing that the appointed attorney cannot or will not completely represent him.

13 People v. Arguello, 772 P.2d 87, 94 (Colo. 1989). This requires that he establish good cause, such as a conflict of interest, a complete breakdown of communication or an irreconcilable conflict that would lead to an unjust verdict. Id. There is no evidence of any conflict of interest[] between Defendant and Atkinson at the time of trial. Although the grievance begins with a reference to a breakdown of communication, the evidence indicates that [there] was not actually such a breakdown, let alone a total breakdown that would lead to an unjust verdict. Finally, although there were disagreements between the Defendant and Atkinson on issues such as what witnesses to call, and the Defendant did not have faith in Atkinson’s representation, there were no conflicts . . . that would have prevented her from effectively representing him. As such, the Defendant was not entitled to withdrawal of Atkinson as his court- appointed counsel.

Once the remand court concluded that Tresco was not entitled to

have Atkinson removed as his counsel, the remand court had no

duty to further inquire about Tresco’s preferences. Appellate

counsel suggests that the remand court should also have asked

whether Tresco would have chosen to represent himself instead of

proceeding with Atkinson. But, at trial, Tresco never asked to

proceed pro se, and the remand court found no “good cause” to

remove Atkinson. The inquiry therefore ends there. We disagree

14 with the dissent’s conclusion that yet another remand is needed

where the remand court did just what this court asked of it. That

those findings are not what Tresco desired does not entitle him to a

further remand.

III. Right to Confrontation

¶ 21 Tresco next argues that the trial court violated his

confrontation rights by erroneously admitting an expert’s testimony

on nerve damage to the victim’s face. We disagree.

A. Preservation and Standard of Review

¶ 22 The parties agree that Tresco preserved this issue for appeal.

¶ 23 We review confrontation claims de novo. People v. Merritt,

2014 COA 124, ¶ 25. Because Tresco preserved this issue for

appeal, we also review for constitutional harmless error. Id.; see

also Hagos v. People, 2012 CO 63, ¶ 11 (“These errors require

reversal unless the reviewing court is ‘able to declare a belief that

[the error] was harmless beyond a reasonable doubt.’” (citation

omitted)). Under this standard, the People must show that the

error was harmless beyond a reasonable doubt — meaning that

there is no reasonable possibility that it contributed to the

conviction. Hagos, ¶ 11.

15 B. Law and Analysis

¶ 24 A defendant has the right to confront and effectively cross-

examine witnesses. See U.S. Const. amend. VI; Colo. Const. art. II,

§ 16; see also People v. Herrera, 87 P.3d 240, 253 (Colo. App. 2003)

(“The right of a defendant to confront adverse witnesses is

guaranteed by the Sixth and Fourteenth Amendments and includes

an opportunity for effective cross-examination.”). However, a

defendant’s confrontation right is a trial right; “it is not ‘a

constitutionally compelled rule of pretrial discovery.’” People v.

Spykstra, 234 P.3d 662, 670 (Colo. 2010) (citation omitted).

Accordingly, effective cross-examination, under the Confrontation

Clause, does not require “access to every possible source of

information relevant to cross-examination.” Id. (citation omitted).

¶ 25 Tresco argues that the trial court violated his confrontation

rights by erroneously admitting an expert’s testimony on the

victim’s nerve damage. Because the prosecution’s discovery

disclosure of the expert’s notes and medical reports did not mention

nerve damage, Tresco reasons that his counsel had no opportunity

to review this opinion and therefore could not effectively cross-

examine the expert.

16 ¶ 26 But it is undisputed that the prosecution gave Tresco’s

counsel a copy of the expert’s notes and reports. See Crim. P.

16(I)(a)(1)(III) (the prosecuting attorney must make available to the

defendant “[a]ny reports or statements of experts made in

connection with the particular case, including results of physical or

mental examinations and of scientific tests, experiments, or

comparisons”). And while Tresco initially filed a discovery motion

six months before trial — requesting that the prosecution provide

him with a written summary of the expert’s testimony — he never

raised the issue again to alert the court that it had not yet ruled on

his motion.

¶ 27 Given that Tresco had the opportunity to cross-examine the

expert witness, see, e.g., People v. Pineda, 40 P.3d 60, 67 (Colo.

App. 2001) (“[B]ecause the hearsay declarant testified at trial and

was subject to cross-examination, we reject defendant’s argument

that her right to confrontation was violated.”), and he failed to follow

up on his discovery motion, we cannot conclude that the court

violated his confrontation rights by admitting the expert’s testimony

on nerve damage. See People v. Rodriguez, 209 P.3d 1151, 1160

(Colo. App. 2008) (“[I]t was incumbent upon defendant to press for a

17 definitive ruling before being able to claim on appeal that the court

somehow erred [in admitting testimony].”), aff’d, 238 P.3d 1283

(Colo. 2010); People v. Anderson, 837 P.2d 293, 299 (Colo. App.

1992) (“[Any] claim by the defendant at the appellate level that he

was unfairly surprised and unable to prepare adequately for cross-

examination is thoroughly discredited by his failure to move for a

continuance at the trial level.”) (citation omitted).

IV. Sentencing

¶ 28 Tresco’s final argument is that the trial court erred in

considering evidence of his previous gang affiliation — video clips of

Tresco from the television show Gangland3 — in sentencing.

Following Dawson v. Delaware, 503 U.S. 159 (1992), we conclude

that evidence of gang affiliation is not per se inadmissible during

sentencing if it is related to the nature of the offense and the

defendant’s character, not merely his abstract beliefs. Thus, we

perceive no error.

3 Gangland was a History Channel show airing from 2007-2010 that “[f]ollow[ed] the evolution and power of gangs across the United States.” IMDb, Gangland, https://perma.cc/7AAG-GAKM.

18 A. Preservation, Standard of Review, and Applicable Law

¶ 29 Tresco objected to the admission of the video clips on

relevancy but not on the constitutional grounds — freedom of

association — he now asserts. We review unpreserved

constitutional claims for plain error. Hagos, ¶ 14 (“We reverse

under plain error review only if the error ‘so undermined the

fundamental fairness of the trial itself so as to cast serious doubt

on the reliability of the judgment of conviction.’”) (citation omitted).

To the extent Tresco challenges this admission as evidentiary error,

our review is for an abuse of discretion. People v. Beatty, 80 P.3d

847, 855 (Colo. App. 2003).

¶ 30 Because sentencing is by its nature a discretionary function

and the sentencing court is more familiar with the defendant and

the case than the appellate court, the sentencing court “is accorded

wide latitude in its sentencing decisions.” Id. When exercising its

discretion, the sentencing court must “consider the nature of the

offense, the character and rehabilitative potential of the offender,

the development of respect for the law, the deterrence of crime, and

the protection of the public.” People v. Maestas, 224 P.3d 405, 409

(Colo. App. 2009).

19 ¶ 31 “Only in truly exceptional situations” will we substitute our

judgment for that of the sentencing court and overturn a sentence.

Beatty, 80 P.3d at 855. If the sentence falls within the statutory

range and the record reflects that the sentence is based on

appropriate considerations and is factually supported by the

circumstances of the case, we must uphold the sentence. Maestas,

224 P.3d at 409-10.

¶ 32 In sentencing, “the court shall afford the defendant an

opportunity to make a statement . . . and to present any

information in mitigation of punishment. The state also shall be

given an opportunity to be heard on any matter material to the

imposition of sentence.” Crim. P. 32(b)(1). The sentencing court

should consider the nature of the offense and the offender’s

conduct. People v. Tallwhiteman, 124 P.3d 827, 837 (Colo. App.

2005). While the court may not base its determination on

materially untrue evidence, it may “consider conduct for which the

offender was never charged, conduct for which charges were filed

but later dismissed as part of a plea agreement, or [in some

circumstances] even conduct for which the offender was charged

and subsequently acquitted.” Id. (citing People v. Neman, 91 P.3d

20 369, 372 (Colo. 2004)); see, e.g., Beatty, 80 P.3d at 856 (the trial

court correctly considered evidence that the defendant was involved

in a separate incident with the victims the week before the

shooting); cf. People v. Young, 987 P.2d 889, 894 (Colo. App. 1999)

(while a sentencing court may consider a defendant’s lack of

remorse, it may not consider his refusal to admit guilt).

¶ 33 Tresco’s reliance on Dawson, 503 U.S. at 166, for the

proposition that the sentencing court violated his right to freedom

of association by considering evidence of his unrelated gang

membership at sentencing is misplaced.

¶ 34 Dawson held that evidence of a defendant’s membership in the

Aryan Brotherhood was improperly introduced at sentencing. Id. at

165. There, during sentencing the prosecution read a brief

stipulation that the Aryan Brotherhood was a prison gang

originating in California in the 1960s that entertained white

supremacist beliefs, and that there was a separate gang in the

Delaware prison system (where the defendant was previously

incarcerated) that called itself the Aryan Brotherhood. Id. The

prosecutor also introduced evidence that Dawson had the words

“Aryan Brotherhood” tattooed on his hand and a tattoo referencing

21 being a disciple of Satan on his stomach. Id. at 162. The Court

concluded that the narrowness of the stipulation “left the Aryan

Brotherhood evidence totally without relevance to Dawson’s

sentencing proceeding.” Id. at 165. As the evidence did not show

that the Aryan Brotherhood had committed or endorsed any

unlawful or violent acts or was tied to the murder at issue in the

case, admitting the evidence violated Dawson’s First Amendment

rights because it proved nothing more than his “abstract beliefs.”

Id. at 166-67. But, the Court did not erect a per se barrier against

the admission of gang-affiliation evidence, or other beliefs protected

by the First Amendment, acknowledging that “[i]n many cases, for

example, associational evidence might serve a legitimate purpose in

showing that a defendant represents a future danger to society.” Id.

at 166.

¶ 35 Cases after Dawson have reaffirmed that a sentencing court

may consider evidence of a defendant’s gang membership if the

evidence goes beyond the abstract beliefs of the gang. See, e.g.,

State v. Cooks, 720 So. 2d 637, 650 (La. 1998) (the case was the

“much different case” hypothesized in Dawson where the evidence

established a relevant link between the defendant’s character,

22 sentencing, and gang membership); Cruz-Quintanilla v. State, 137

A.3d 274, 277-78 (Md. Ct. Spec. App. 2016) (evidence of gang

membership showed the defendant endorsed not just the gang’s

beliefs but also its criminal activities), aff’d, 165 A.3d 517 (Md.

2017).

¶ 36 Thus, the relevant inquiry is whether the defendant’s gang

affiliation, even a past affiliation, sheds light on the defendant’s

character or other factors related to sentencing. Segovia v. State,

467 S.W.3d 545, 554 (Tex. App. 2015) (“[C]ourts have long held that

testimony regarding a defendant’s affiliation with a gang may be

relevant and admissible at the punishment phase to show the

defendant’s character.”); Ho v. State, 171 S.W.3d 295, 305 (Tex.

App. 2005) (“Even if appellant was no longer affiliated with the gang

at the time of the shooting, evidence that he was a gang member is

relevant — and thus admissible at punishment — because it relates

to his character.”); see also People v. Banks, 632 N.E.2d 257, 265

(Ill. App. Ct. 1994) (the sentencing court did not improperly

consider the defendant’s gang membership and reaffirming that a

sentencing court may consider “the general moral character of the

offender, his mentality, his habits, his social environments, his

23 abnormal tendencies, his age, his natural inclination or aversion to

commit crime and the stimuli which motivated his conduct”); Lay v.

State, 886 P.2d 448, 453 (Nev. 1994) (evidence of the defendant’s

gang membership was admissible to show his “future

dangerousness to society”).

¶ 37 Courts also consider whether evidence of the defendant’s gang

affiliation was a central or driving factor in the sentencing decision.

See People v. Sims, 931 N.E.2d 1220, 1233-34 (Ill. App. Ct. 2010)

(the sentencing court’s possibly inappropriate comment about

“gang-related activity” was not error where the gang reference was

not the dominant factor in sentencing the defendant); Cruz-

Quintanilla, 137 A.3d at 278 (“Even assuming arguendo, that the

testimony regarding MS–13 and appellant’s membership in MS–13

was improper, the sentencing court gave no indication that it was

giving appellant an increased sentence due to his gang

membership[.]”). And courts consider whether the defendant was

clearly prejudiced by the admission of evidence regarding his gang

affiliation. See People v. Zapata, 808 N.E.2d 1064, 1071 (Ill. App.

Ct. 2004) (vacating the sentence where “the trial judge improperly

relied on her own personal disdain for gang violence, where there

24 was no evidence that the murder was related to gang activity”); see

also Ochoa v. Workman, 451 F. App’x 718, 725-27 (10th Cir. 2011)

(even though evidence of the defendant’s gang membership was “at

best, of marginal value,” the record made clear he suffered no

prejudice from its admission).

B. Analysis

¶ 38 Considering this legal landscape, we turn to the specifics of

Tresco’s sentencing. At the sentencing hearing, the prosecutor

played six clips from a 2010 episode of Gangland in which Tresco

discussed his membership in the North Side Mafia. The prosecutor

introduced the video because Tresco used language in it she

thought “the [c]ourt would find interesting in determining” an

appropriate sentence.

¶ 39 In one clip, Tresco bragged about punching a taxi driver and

said he served three years in prison for the incident. In response,

Tresco called two witnesses who worked at Life Line, an

organization that helps individuals exit gang life. They both stated

that Tresco was no longer a member of the North Side Mafia, a

decision he made voluntarily because he wanted to turn his life

around. In their opinion, Tresco would not benefit from

25 incarceration because it would exacerbate the rage and mental

health issues he faced.

¶ 40 The court also heard testimony from Tresco’s brother and

Tresco himself, and it considered Tresco’s presentencing

investigation report (PSIR) detailing Tresco’s criminal history,

including four prior felony convictions and misdemeanor assaults.

¶ 41 Because a second degree assault conviction carries a

mandatory sentence to DOC custody, the prosecution asked for

twelve to sixteen years and Tresco asked for the five year minimum.

In reaching its decision, the court stated that Tresco continued to

blame others; that he was manipulative; and that while it believed

Tresco “sincerely and genuinely did renounce gang life,” he had a

history of committing assaults and was a “very angry, violent,

assaultive person” who “committed a very violent act.” Thus,

opined the court, “for the safety of the community” and considering

his “background and facts of the case,” sentencing Tresco to eight

years in DOC custody with three years of mandatory parole was

appropriate.

¶ 42 In light of this record, we conclude the court properly

considered the nature of the offense, Tresco’s character and

26 rehabilitative potential, his disrespect for the law, and the interests

of deterring crime and protecting the public. Maestas, 224 P.3d at

409. Tresco’s sentence falls within the statutory range of five to

sixteen years and is, in fact, on the lower end of the range and less

than the sentence the prosecution requested. See id. at 409-10.

Although there was no argument at trial that the crime at issue was

gang-related, Tresco was convicted of second degree assault and the

evidence of his prior gang affiliation properly related to his

character — as relevant to sentencing — because it shed light on

his tendency toward aggression, rage, and assaultive behavior. See,

e.g., Cooks, 720 So. 2d at 650. The video clips and witnesses from

Life Line — coupled with Tresco’s act of violently punching someone

outside a bar — supported an inference that Tresco has a

disposition toward assaultive behavior and remains a future danger

to society, proper considerations for the court in crafting a

sentence. See Tallwhiteman, 124 P.3d at 837 (court may consider

uncharged conduct); Lay, 886 P.2d at 453.

¶ 43 Further, the gang-affiliation evidence did not seem to be the

dispositive factor in the court’s sentencing decision; indeed, the

court affirmed that it believed Tresco had left gang life behind him

27 and made no further comments on his past affiliation. See Cruz-

Quintanilla, 137 A.3d at 278; cf. Zapata, 808 N.E.2d at 1073 (“[T]he

transcript shows that the trial judge’s distaste for gang violence was

the dominant factor in the determination of defendant’s sentence.”).

¶ 44 Finally, we cannot conclude that Tresco was prejudiced by the

video clips. Because the PSIR noted Tresco’s previous affiliation

and included his criminal history of previous assaults, like the one

he bragged about in the video clips, see Ochoa, 451 F. App’x at 726-

27, even without the disputed video clips, the court would likely

have learned this information about Tresco.

¶ 45 In sum, because the evidence of Tresco’s previous gang

affiliation related to the nature of the offense and Tresco’s

character, not merely his abstract beliefs, we perceive no error in its

admission.

V. Conclusion

¶ 46 Having concluded the trial court did not err, we affirm the

judgment and sentence.

JUDGE FURMAN concurs.

JUDGE ASHBY dissents.

28 JUDGE ASHBY, dissenting.

¶ 47 On the morning of trial, Tresco asked to fire his appointed

counsel. But before any discussion occurred as to why Tresco

wanted his attorney to be removed, and what he would choose to do

if she was, the trial court cut off the discussion and stated that it

would deal with his request later. It never did. The trial court was

required to address whether Tresco was entitled to have his counsel

removed. That was the basis for the first remand order. But we

then made our own mistake when we so narrowly framed the issue

that the remand court was to address. I believe that the majority’s

refusal now to address the issue of Tresco’s right to represent

himself unfairly requires Tresco to pay the price for both mistakes.

¶ 48 The majority holds that Tresco was not entitled to fire his

attorney and be appointed substitute counsel. I agree. Despite

Tresco raising the issue on remand, however, no court has yet

addressed whether Tresco was entitled to fire his appointed counsel

 To avoid confusion, I use the term “remand court” to refer to the judge who presided over the hearings on remand. I use “trial court” to refer to the judge who presided over the trial.

29 and represent himself. According to the majority, we need not

address this issue. It is from this conclusion that I respectfully

dissent.

¶ 49 A defendant’s Sixth Amendment right to counsel also includes

the right to self-representation. See People v. Davis, 2015 CO 36M,

¶ 15. If the defendant wants to remove appointed counsel and

represent himself, a showing of good cause is unnecessary. See

People v. Campbell, 58 P.3d 1148, 1156 (Colo. App. 2002). Instead,

a defendant is entitled to fire counsel and represent himself if his

decision to do so is knowing, intelligent, and voluntary. Id. The

court may not deny a defendant’s request to represent himself just

because the defendant seeks to pursue an ill-advised legal strategy

or because self-representation is contrary to the defendant’s best

 It is unclear from the current record whether Tresco would have asked to retain counsel if his request to have his attorney removed had been denied at trial. There was argument made on the need to make findings whether Tresco would have retained counsel, but the testimony as to whether he would have made that request is unclear and the remand court declined to expand the scope of the hearing or its findings because it believed to do so was outside the scope of the remand order. Because it would be an issue that could arise on remand, if I were writing for the majority, I would give the remand court authority to address this issue as the need arises.

30 interests. See Faretta v. California, 422 U.S. 806, 834 (1975).

Because the constitutional issues related to a defendant’s right to

counsel are so significant, the supreme court has provided guidance

as to the process trial courts should use in resolving these issues.

¶ 50 In Ronquillo v. People, 2017 CO 99, our supreme explained the

process a trial court must follow when a defendant asks to fire

retained counsel and receive substitute appointed counsel. The

court first recognized that a defendant may fire retained counsel for

any reason. Id. at ¶ 29. But because circumstances may prevent

the defendant from being represented in the way he desires going

forward, the supreme court made clear that the trial court has a

duty to ensure that the defendant understands the consequences of

firing retained counsel before doing so. Id. “Of course, a trial court

can’t explain the consequences of firing counsel until it has

determined what those consequences will be. So, when considering

a motion to fire counsel (however framed), a court should first

ascertain how the defendant wishes to be represented going

forward.” Id. at ¶ 30.

¶ 51 The supreme court then more fully described how the court

should structure its discussion with the defendant. If the

31 defendant wants to represent himself, he may do so, provided that

he knowingly, intelligently, and voluntarily waives his right to

counsel. Id. at ¶ 32. If the defendant seeks substitute appointed

counsel, the court must determine whether the defendant qualifies

for appointed counsel and whether it is appropriate to allow the

defendant to receive substitute appointed counsel under the

circumstances. Id. at ¶¶ 33-35. If the defendant is not entitled to

substitute appointed counsel, the court should explain to the

defendant that he must choose between keeping current counsel

and representing himself. Id. at ¶ 40.

¶ 52 I recognize that Ronquillo addressed a situation in which the

defendant sought to fire retained counsel and receive appointed

counsel. But Ronquillo does not start from scratch to build the

described procedural framework. The origins of this framework are

rooted in prior cases, such as People v. Arguello, 772 P.2d 87 (Colo.

1989), which recognized that the trial court has an active, not

passive, role in ensuring that a defendant understands the

consequences of firing his retained or court-appointed counsel. It is

the court’s affirmative duty to explain, not the defendant’s

responsibility to research, the consequences of his request. And the

32 trial court cannot explain those consequences without first

determining how the defendant wants to proceed after firing his

attorney.

¶ 53 The supreme court in Arguello addressed a request identical to

Tresco’s: a defendant’s request to fire appointed counsel. The court

held that when an indigent defendant asks to fire appointed

counsel, “the trial court has the obligation to inquire into the

reasons for the dissatisfaction.” Id. at 94. If there is no good cause

for granting the defendant substitute appointed counsel, “a

defendant must be given ‘a clear choice’ between present counsel

and waiver of counsel.” Id. (quoting United States v. Padilla, 819

F.2d 952, 955 (10th Cir. 1987)).

¶ 54 Here, Tresco unequivocally asked to fire his appointed trial

counsel on the first day of trial. As soon as he made this request,

the trial court stated that it would deal with it later, and never did.

Because of this error, Tresco was never given the choice of

continuing with his appointed counsel or representing himself.

¶ 55 The majority concludes that this was not a problem. First,

without explicitly saying so, it appears that the majority stacks

assumption upon assumption to conclude that Tresco was only

33 asking to fire his appointed counsel and have other counsel

appointed. I agree that the record at trial shows that Tresco asked

only to fire his appointed counsel and did not indicate whether he

sought substitute appointed counsel or to represent himself. Based

on the fact that Tresco had filed a grievance against his appointed

counsel, the majority assumes that he only sought to fire his

appointed counsel “due to an asserted conflict.” Supra ¶ [II.A].

Based on this assumption, the majority seems to further assume

that Tresco only wanted new appointed counsel and did not want to

represent himself. These assumptions are not supported by the

record. In fact, the only evidence in the record (Tresco’s testimony

on remand) contradicts these assumptions.

¶ 56 Second, the majority concludes that because Tresco was not

entitled to substitute counsel, and he never asked to represent

himself at trial, no further inquiry is necessary. But as explained

above, if a court determines that a defendant who has asked to fire

his appointed counsel is not entitled to substitute counsel, “a

defendant must be given ‘a clear choice’ between present counsel

and waiver of counsel.” Arguello, 772 P.2d at 94 (quoting Padilla,

819 F.2d at 955). Tresco told the trial court he needed help in

34 understanding what his options were when he showed his grievance

to the trial court and asked to have his counsel removed. He was

relying on the trial court to revisit the issue. It was the trial court’s

duty to determine how Tresco wanted to proceed. The trial court

inarguably failed to discharge this duty. By stating that no further

inquiry is required because “Tresco never asked to proceed pro se

[at trial],” supra ¶ [II.C], the majority holds Tresco responsible for

the trial court’s error.

¶ 57 Third, the majority concludes that the remand court did

exactly what we asked it to do and therefore another remand is

inappropriate. It is true that our remand order was framed

narrowly and unfortunately did not anticipate the additional issues

that arose on remand. And based on that lack of clarity, the

remand court understandably believed that it could address only

whether Tresco was entitled to fire his appointed counsel and

 The majority states that “Tresco never asked to proceed pro se [at trial],” supra ¶ [II.C], without explaining the legal significance of that fact. I suppose it is possible that the majority is suggesting, without analysis or explanation, that Tresco waived, forfeited, or abandoned his right to represent himself. I would disagree with each of these suggestions.

35 receive substitute appointed counsel. Despite Tresco’s repeated

objections, the remand court explicitly declined to address whether,

if Tresco was not entitled to fire his appointed counsel, he would

have made the choice to represent himself. But it recognized

further findings might be necessary: “[I]f the court of appeals needs

factual findings on [what Tresco would have done if the trial court

had addressed and denied his request to fire his counsel],

unfortunately they’ll have to remand the case for factual findings on

that issue.”

¶ 58 And while the majority suggests otherwise, the remand court’s

finding that there was no good cause to remove Tresco’s appointed

counsel has nothing to do with whether Tresco could choose to

represent himself. Though some would consider such a choice ill-

advised, it was Tresco’s choice to make. As the remand court

anticipated, further findings are required.

¶ 59 Moreover, Tresco testified on remand that, had he been given

the choice between keeping his appointed counsel or representing

himself on the morning of trial, he would have chosen to represent

himself. I understand how Tresco’s statement that he would have

chosen to represent himself at trial, made after a trial at which he

36 was convicted, might appear to be self-serving. But it was the trial

court’s failure to properly address Tresco’s request to fire his

appointed counsel that prevented Tresco from knowing and stating

his choice at the appropriate time.

¶ 60 By concluding that another remand is required, I recognize the

challenges inherent in constructing a record that should have been

made years ago. But those challenges are of the trial court’s

making — not Tresco’s. I would therefore remand the case to the

trial court with directions to make the necessary findings and

determine whether Tresco would have effected a knowing,

voluntary, and intelligent waiver of his right to counsel and

represented himself if he was not entitled to substitute appointed

counsel. I would further give the remand court authority to resolve

any related right to counsel issues that may arise. Accordingly, I

would not reach the other issues at this time.