Jefferson County District Court No. 13CR2662 Honorable
Christopher J. Munch, Judge.
Cynthia H. Coffman, Attorney General, Carmen Moraleda,
Assistant Attorney General, Denver, Colorado, for
A. Ring, Colorado State Public Defender, Rachel K. Mercer,
Deputy State Public Defender, Denver, Colorado, for
1 Defendant, Victor Leobardo Trejo Lopez, appeals the trial
court's judgment entered on a jury verdict finding him
guilty of theft from an at-risk adult. We affirm.
2 Defendant and the victim had been neighbors in a mobile
home park. In August 2013, defendant visited the victim in
his small fifth wheel travel trailer. It was estimated to be
eight feet wide and thirty feet long. He asked the victim if
he could borrow some money; the victim said no. Defendant
asked if he could use the bathroom, which was adjacent to the
living room where the victim was sitting and watching
television. The victim's gun was hanging on the wall in
the bathroom. Defendant put the gun in his backpack and came
out to the living room. He told the victim he needed to go,
and he left the trailer. At the time of the visit, the victim
was seventy years old.
3 The victim later learned the gun was missing and reported
it to the police. The victim said defendant was the only
other person who had been inside his house recently. The day
after the victim made the police report, he asked defendant
where his gun was. Defendant apologized and said he did not
mean to steal the gun, but that he did not know where the gun
was. Defendant later admitted to the police that he had
stolen the gun from the victim.
4 Defendant was charged with theft and a statutory enhancer
for either committing the theft with knowledge the victim was
over seventy years old and therefore an at-risk elder, under
section 18-6.5-103(5.5), C.R.S. 2015, or committing the theft
within the victim's presence, under section
18-6.5-103(5), C.R.S. 2017. At trial, defendant admitted he
took the victim's gun and committed theft, but he argued
that neither statutory enhancer should apply. The jury
convicted defendant of theft from an at-risk adult under
section 18-6.5-103(5), finding that he committed an element
or portion of the offense in the presence of the victim. The
trial court sentenced him to one year of probation.
5 Defendant contends the trial court erred when it denied his
challenge for cause to prospective juror H.S. Because H.S.
ultimately sat on the jury, defendant argues that reversal is
required. We disagree.
Standard of Review
6 We review the trial court's denial of a juror challenge
for cause for an abuse of discretion. See, e.g.,
People v. Bondsteel, 2015 COA 165, ¶ 77
(cert. granted Oct. 31, 2016). We review the entire
voir dire of the prospective juror to determine whether the
trial court abused its discretion. People v. Friend,
2014 COA 123M, ¶ 21 (citing Carrillo v. People,
974 P.2d 478, 486 (Colo. 1999)) (cert. granted
on other grounds Feb. 8, 2016). We defer to the trial
court's credibility assessments, "recognizing that
court's unique perspective in evaluating the demeanor and
body language of live witnesses." People v.
Conyac, 2014 COA 8M, ¶ 13. If the trial court
permitted a biased or incompetent juror to sit on the jury
and participate in determining the defendant's guilt, the
defendant's right to an impartial jury has been violated
and reversal is required. People v.
Maestas, 2014 COA 139M, ¶ 20; People v.
Marciano, 2014 COA 92M-2, ¶ 10.
7 The United States and Colorado Constitutions guarantee
criminal defendants the right to a trial by an impartial
jury. U.S. Const. amends. VI, XIV; Colo. Const. art. II,
§ 16. Thus, the trial court must sustain a challenge for
cause if, as relevant here, there exists
a state of mind in the juror evincing enmity or bias toward
the defendant or the state; however, no person summoned as a
juror shall be disqualified by reason of a previously formed
or expressed opinion with reference to the guilt or innocence
of the accused, if the court is satisfied, from the
examination of the juror or from other evidence, that he will
render an impartial verdict according to the law and the
evidence submitted to the jury at the trial.
§ 16-10-103(1)(j), C.R.S. 2017.
8 It is normal for a prospective juror to arrive for jury
duty without knowing the relevant law and with some
preconceived expectations. People v. Clemens, 2017
CO 89, ¶ 17. If, after the trial judge explains the
correct legal principles during voir dire, and the
prospective juror is willing to apply the law as instructed
by the court, the prospective juror is rehabilitated and may
serve. Id. A court may consider the prospective
juror's assurances that he or she can fairly and
impartially serve on the case. People v. Gilbert, 12
P.3d 331, 334 (Colo.App. 2000). Even a prospective
juror's silence in response to questions posed to the
venire can be sufficient evidence of rehabilitation after the
prospective juror has indicated a preconceived notion.
Clemens, ¶ 12.
9 Before voir dire, the trial court informed the jury that
the parties had stipulated that defendant committed the basic
elements of theft, but that defendant disputed the enhancers.
The court instructed the jury about general principles of
applicable law, including the presumption of innocence and
the burden of proof. The court asked the jury, "Does
anybody disagree with the basic concept that in a criminal
case there has to be proof beyond a reasonable doubt?"
No juror expressed any disagreement.
10 The trial court next addressed each individual juror and
asked, "Do you think you can give us the assurance that
you will be fair to both sides?" H.S. replied, "I
will be fair to both sides."
11 During defense counsel's questioning of H.S., she
expressed confusion about the presumption of innocence since
defendant had admitted the theft. The following exchange took
[H.S.]: I'm confused because he isn't innocent
because he did steal the gun. I know that he's guilty of
a crime, and that is dealing with guns, which I don't
agree with. And then stealing, which is a bad crime as well.
So that is a little contradictory.
[Defense Counsel]: I think you're totally right. It's
a hard distinction to sort of admit to one piece because he
said, Yeah, I'm guilty of this one issue, this theft
issue. But, no, I'm not guilty of these other - the Judge
calls them aggravators or enhancers.
I think that's a difficult thing to separate out. Do you
think that's something you're going to be able to do
that you can presume him innocent of sentence enhancers,
knowing that he is guilty of something?
[H.S.]: Um, well, I don't know because I didn't know
that ever happened. Like, I wouldn't see someone who did
a crime as an innocent person because I didn't know that
you can separate out enhancers before.
12 The juror's answers to additional questions from
defense counsel continued to show confusion. When defense
counsel asked directly if she could afford defendant the
presumption of innocence, H.S. did not say that she could not
or would not do so, but said, "It's hard." Her
difficulty appears to have arisen from defendant's