People v. Valera-Castillo

• Decision Date: 08 July 2021
• Docket Number: Court of Appeals No. 16CA0049
• Citation: 2021 COA 91,497 P.3d 24
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Crisoforo VALERA-CASTILLO, Defendant-Appellant.
• Court: Colorado Court of Appeals

497 P.3d 24

2021 COA 91

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Crisoforo VALERA-CASTILLO, Defendant-Appellant.

Court of Appeals No. 16CA0049

Colorado Court of Appeals, Division VII.

Announced July 8, 2021

Rehearing Denied July 22, 2021

Philip J. Weiser, Attorney General, Rebecca A. Adams, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Taylor J. Hoy, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE FOX

¶ 1 Defendant, Crisoforo Valera-Castillo, appeals the judgment of conviction entered on jury verdicts finding him guilty of two counts of second degree assault causing injury with a deadly weapon, three counts of felony menacing with a real or simulated weapon, and one count of third degree assault. Valera-Castillo argues that (1) the trial court failed to conduct a proper three-step inquiry under Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), in response to his timely objection to the prosecution's removal of Juror M, who apparently was not white;¹ (2) the prosecutor committed misconduct by eliciting inadmissible CRE 404(b) evidence and failing to correct false testimony; and (3) his third degree assault conviction should merge with one of his second degree assault convictions. We reject his claims and affirm.

I. Background

¶ 2 According to J.G., she and her friend met Valera-Castillo, her ex-boyfriend, at a restaurant. J.G. and her friend later left the restaurant in her friend's car for about ten minutes to get away from Valera-Castillo. When they returned, J.G. got into her truck to leave, but Valera-Castillo soon appeared in the parking lot. Valera-Castillo insisted that J.G. leave the restaurant with him and pulled her out of the truck. He then forced her into his car and drove her to his apartment.

¶ 3 On arrival, Valera-Castillo forced J.G. into his apartment, where they argued about their relationship status. J.G. tried to leave, but Valera-Castillo pulled her by the hair into the bedroom. When J.G. tried to leave again, he threatened her with a knife and cut her hand. Later, Valera-Castillo repeatedly hit her in the face. J.G. told him to stop and tried to scream for help, but after continuing to strike her, he strangled her with his hands.

¶ 4 Valera-Castillo eventually relented and drove J.G. to her house. J.G. told her roommate, and then her sister, what had happened. After picking her up, J.G.’s sister called the police. A police officer arrived, took a statement from J.G., and called an ambulance to take her to the hospital. Police searched Valera-Castillo's apartment that day and later arrested him.

¶ 5 The People charged Valera-Castillo with second degree kidnapping, two counts of second degree assault, three counts of menacing with a deadly weapon, and third degree assault. A jury convicted him of all the charges except second degree kidnapping, and the court sentenced him to five years in the Department of Corrections’ custody.

II. Batson Challenge

¶ 6 Valera-Castillo first argues that the trial court failed to conduct a proper three-step Batson inquiry following his counsel's objection to the prosecutor's use of a peremptory challenge to remove a prospective juror who did not appear to be white. The People argue that defense counsel's Batson objection was untimely because he did not raise it until after the trial court had dismissed all non-selected prospective jurors. Because the trial had not started, Valera-Castillo posits that his counsel's challenge was timely. A Batson challenge is too late once the peremptorily struck jurors are released because, if the Batson challenge is sustained, the court is unable to provide a remedy that preserves the equal protection rights of the defendant and the improperly dismissed juror. Because here the jurors had been released, the challenge was untimely and we decline to review the adequacy of the trial court's Batson inquiry.

A. Timing of a Batson Challenge

¶ 7 The United States Supreme Court has held that states are free to adopt rules governing Batson challenges, including the timeliness of a challenge. Batson , 476 U.S. at 99 & n.24, 106 S.Ct. 1712 (declining to "formulate particular procedures to be followed," but contemplating that the objection be timely made); see also Ford v. Georgia , 498 U.S. 411, 423, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991) ("Undoubtedly, then, a state court may adopt a general rule that a Batson claim is untimely if it is raised for the first time on appeal, or after the jury is sworn, or before its members are selected."). Divisions of this court have held that a Batson challenge must "be made before the venire is dismissed and the trial begins."² People v. Mendoza , 876 P.2d 98, 102 (Colo. App. 1994) ("[D]efendant was precluded from making a Batson objection after the venire was dismissed, the jury panel had been sworn in, and the trial had begun."); see also People v. Richardson , 2018 COA 120, ¶ 52, 486 P.3d 282, aff'd , 2020 CO 46, 481 P.3d 1.

¶ 8 As relevant here, Rule of Criminal Procedure 24(d) addresses how peremptory challenges are exercised but is silent on the timing of a challenge:

(2) ... In ... cases where there is one defendant and the punishment may be by imprisonment in a correctional facility, the state and the defendant shall each be entitled to five peremptory challenges ....

....

(4) Peremptory challenges shall be exercised by counsel, alternately, the first challenge to be exercised by the prosecution. A prospective juror so challenged shall be excused and another juror from the panel shall replace the juror excused....

Crim. P. 24(d). Relatedly, section 16-10-104, C.R.S. 2020, identifies the number of peremptory challenges — generally five per side — in a criminal case, but similarly does not speak to when they must be exercised. Before explaining why trial courts must refrain from releasing the peremptorily struck jurors until the peremptory challenge process concludes and a jury is selected and sworn, it is helpful to explain the criminal jury selection process in Colorado.

¶ 9 A venire — meaning the pool of potential jurors — is the starting point in the jury selection process. After preliminarily questioning the venire to identify any statutory disqualifications, most Colorado trial judges presiding over a criminal case will move twenty-five (or twenty-six, if there are two alternate jurors) members of the venire into the jury box. See, e.g. , People v. Beauvais , 2017 CO 34, ¶ 4, 393 P.3d 509. This allows the lawyers to question this smaller group, exercising for-cause challenges as they arise. A new venire member replaces any prospective juror in the box who is removed for cause. See id. Typically, jurors who are successfully challenged for cause are immediately released from jury service and allowed to leave the courtroom. See id. at ¶ 5 ("[T]he court released the excused potential jurors from jury duty and allowed them to leave the courtroom."). When the parties pass the remaining jurors for cause, each side begins exercising peremptory challenges; the prosecution goes first and then each side alternates in exercising the challenges. See id.

¶ 10 Virtually every jurisdiction in the country follows some version of this process. See 6 Wayne R. LaFave, Jerold H. Israel, Nancy J. King & Orin S. Kerr, Criminal Procedure § 22.3(d), Westlaw (4th ed. database updated Dec. 2020) (collecting cases); see also 2 Peter J. Henning & Sarah N. Welling, Federal Practice & Procedure § 384, Westlaw (4th ed. database updated Apr. 2021) (collecting cases).

¶ 11 Mendoza held that a Batson challenge must "be made before the venire is dismissed and the trial begins." 876 P.2d at 102. But Mendoza does not elaborate further. Courts considering when a Batson challenge is too late have diverged into two main camps. Some hold that a Batson challenge is timely if it is made before the jury is sworn. See, e.g. , People v. Knight , 473 Mich. 324, 701 N.W.2d 715, 729 (2005) (recognizing that "[t]here are several reasons why courts require a party to raise a Batson challenge before the venire is dismissed," but holding that, in Michigan, "a Batson challenge is timely if it is made before the jury is sworn"); State v. Parker , 836 S.W.2d 930, 935 (Mo. 1992) (stating that a Batson challenge raised before "the jury [is] sworn is timely"). Others have concluded that "a Batson challenge must be raised not only before the jury is sworn, but also before the remainder of the venire is dismissed in order to be deemed timely." State v. Valdez , 2006 UT 39, ¶ 38, 140 P.3d 1219, 1231 ; see also McCrory v. Henderson , 82 F.3d 1243, 1249 (2d Cir. 1996) ("In view of the problems of responding to, ruling on, and remedying belated Batson challenges, we hold that the failure to object to the discriminatory use of peremptory challenges prior to the conclusion of jury selection waives the objection.").³

¶ 12 These views have merit, but adopting any rule in this area requires us to take four interests into account: (1) the constitutional right of the defendant to a fair and impartial jury, see Batson , 476 U.S. at 87, 106 S.Ct. 1712 ; (2) the constitutional right of venirepersons to serve without suffering racial discrimination, Powers v. Ohio , 499 U.S. 400, 406, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) ; (3) "the overriding interest in eradicating discrimination from our civic institutions," which "suffers whenever an individual is excluded from making a significant contribution to governance on account of his race," Johnson v. California , 545 U.S. 162, 172, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005) ; and (4) the potential to waste the time of prospective jurors who are peremptorily challenged but not immediately released from jury service. Weighing those interests, we now clarify that a Batson challenge is too late if it leaves the trial court unable to protect the first three of these interests. By...