v. Leyba

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
September 12, 2019

2019COA144

No. 16CA1724, People v. Leyba — Criminal Law — Custodial
Interrogation — Miranda

A division of the court of appeals holds that a defendant who

is being interrogated by a law enforcement officer may revoke his

request for an attorney by reinitiating discussion about the

investigation immediately after having made the request, and that

the defendant in this case did so.
COLORADO COURT OF APPEALS 2019COA144

Court of Appeals No. 16CA1724
Adams County District Court No. 14CR3612
Honorable Thomas R. Ensor, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Furmen Lee Leyba,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE J. JONES
Román and Lipinsky, JJ., concur

Announced September 12, 2019

Philip J. Weiser, Attorney General, Melissa D. Allen, Senior Assistant Attorney
General, Colleen Wort, Special Assistant Attorney General, Denver, Colorado,
for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Alan Kratz, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Furmen Lee Leyba, appeals the district court’s

judgment of conviction entered on jury verdicts finding him guilty of

aggravated robbery and three counts of accessory to first degree

murder. Among other things, he argues that the district court erred

by declining to suppress statements he made to police detectives

during a two-hour interrogation after he invoked his right to

counsel. Because we conclude that the detectives stopped

interrogating Leyba after he invoked his right to counsel and Leyba

reinitiated the conversation about the investigation with the

detectives, we affirm the district court’s decision declining to

suppress the statements. Leyba’s remaining contentions fail as

well. Accordingly, we affirm.

I. Background

¶2 Leyba and his fellow gang member Gabriel Flores went to a

house where Jason Quijada, a known drug dealer, was staying.

There were six people in the house — Quijada; two juveniles who

worked for Quijada; Quijada’s girlfriend, Cherene Rivera; Joshua

Williamson; and Pastor Estapa. Flores spoke to Quijada and

Quijada gave him a hypodermic needle. A little while later, for

reasons that are unclear, Flores shouted at Quijada and then shot

1
 and killed Quijada and the two juveniles. He and Leyba then took

from the house guns, a toolbox, and a curling iron box thought to

contain money. Leyba drove away from the house with Flores. But

when Flores realized the box didn’t have any money in it, they

returned to the house. Flores threatened the occupants with a gun

and demanded that they give him drugs and money. When Estapa

told Flores the police were on their way to the house, Flores left and

he and Leyba again drove away.

¶3 Two days later, police officers tried to arrest Leyba. While

Leyba unsuccessfully tried to flee, a gun fell out of his pants. That

gun proved to be the one which had been used to kill the three

victims. Detectives James Morgen and Casey Overton questioned

Leyba for two hours. The interview was video-recorded.

¶4 The People charged Leyba with three counts of felony murder,

three counts of aggravated robbery, three counts of accessory to

first degree murder, and one count of accessory to commit

aggravated robbery. Leyba’s theory of defense was that he didn’t

know Flores was going to shoot anyone, and that after Flores did so,

he only took things from the house and drove with Flores from,

2
 back to, and again from the house because he was afraid Flores

would harm him too.

¶5 The jury acquitted Leyba of felony murder, but found him

guilty of one count of aggravated robbery of Quijada and three

counts of accessory to first degree murder.

II. Discussion

¶6 Leyba raises four issues on appeal: (1) whether the district

court erred by failing to suppress the video of his interview; (2)

whether the district court erred by denying his request for an

instruction on theft as a lesser nonincluded offense of aggravated

robbery; (3) whether the district court erred by refusing to instruct

the jury on the affirmative defense of duress for the aggravated

robbery charge; and (4) whether the prosecutor engaged in

misconduct requiring reversal. We discuss these issues in turn.

A. Suppression

¶7 Leyba contends that the district court erred by denying his

motion to suppress the video-recorded statements he made after he

invoked his right to counsel because the detectives didn’t honor his

request for counsel. We conclude that the court properly denied the

motion, albeit for somewhat different reasons than those on which

3
 the district court relied. See People v. Aarness, 150 P.3d 1271,

1277 (Colo. 2006) (an appellate court can affirm a district court’s

ruling on different grounds).

1. Additional Background

¶8 Detectives Morgen and Overton interviewed Leyba at a police

station house. The video shows Detective Morgen asking Leyba his

name, date of birth, and other background information before

saying the detectives wanted to question him. The following

exchange ensued:

Morgen: Furmen, uh, we want to go through
your advisement of rights. I would like you to
come over here and look at this if you’re
willing?

Leyba: Do I need my lawyer for this?

Morgen: Are you asking for one or not?

Leyba: Yeah.

Morgen: Okay.

Leyba: I don’t know what you [inaudible] are
doing, like you’re just asking me a bunch of
questions about my name and stuff; I haven’t
been told shit besides what I been seeing on
the news and I don’t know what the fuck
you’re talking about.

Morgen: K, we’re investigating a homicide that
took place two days ago.

4
 Leyba: I know all that I mean, I mean,
obviously I was around the same crowd of
people and all that so, I mean, but the person
you guys already caught hasn’t told you what
you guys needed to know? Why does
everybody else keep putting people involved
that didn’t do shit. There was more than just
me there. [Inaudible] been the only one that’s
sitting on me like a suspect or something, I
didn’t do shit wrong.

Morgen: So, I’ll make this clear, are you willing
to talk to me or go through this form and talk
to me about this case or no?

Leyba: And I can ask for a lawyer anytime I
start to feel uncomfortable?

Morgen: Yes, sir.

Leyba: All right.

¶9 Detective Morgen then asked Leyba to read through a form

advising him of his Miranda rights and to sign in various places to

waive those rights:

Morgen: Okay. I need you to be able to fill this
out though. Okay? So the first question is do
you read, write, and understand English? You
answer “yes” or “no,” please. And just follow
along. If you have any questions, I’ll be happy
to answer ‘em for you.

Leyba: I’m fucking stressed out, man.

Morgen: Okay. So starting with number one,
read this. Okay? Then read two, three, and
four. And after you get done with that, read

5
 this. You agree to it, yes or no. Okay? Go
ahead and sign, please. Okay. And then I
need you to read this little paragraph here and
if you agree to it, sign, date, and time, please.
Okay.

Leyba then spoke with the detectives for about two hours.

¶ 10 Leyba moved to suppress his statements from the interview.

At the hearing on the motion, Detective Morgen testified that he had

intended to stop the interview when Leyba answered “Yeah” to his

question “Are you asking for [a lawyer] or not?” but Leyba “kind of

rambled on.”

¶ 11 The district court denied the motion, finding that Detective

Morgen adequately advised Leyba of his rights, Leyba didn’t

unequivocally invoke his right to counsel, and Leyba continued the

conversation with the detectives (not the other way around).

2. Standard of Review

¶ 12 Whether a district court erred by refusing to suppress

evidence presents a mixed question of fact and law. See People v.

Bradshaw, 156 P.3d 452, 455 (Colo. 2007). We defer to the court’s

factual findings if they are supported by the record but review the

court’s legal conclusions de novo. Id. at 455-56. Where the

statements in question are recorded, and there aren’t any disputed,

6
 relevant facts, we are in as good a position as the district court to

decide the issue. People v. Kutlak, 2016 CO 1, ¶ 13; People v.

Madrid, 179 P.3d 1010, 1014 (Colo. 2008).

3. Applicable Law

¶ 13 To be sure, a suspect has a right to have counsel present

during a custodial interrogation. See Miranda v. Arizona, 384 U.S.

436, 444 (1966). When a suspect unambiguously and

unequivocally invokes his right to counsel during an interrogation,

the police must scrupulously honor that request. Edwards v.

Arizona, 451 U.S. 477, 484-85 (1981). Simply put, after invocation,

police must stop interrogating the defendant until counsel has been

made available to him or until the defendant voluntarily reinitiates

communication with the police. Id. The purpose of this bright-line

rule is to protect a defendant from being badgered or coerced into

waiving his rights. Davis v. United States, 512 U.S. 452, 458

(1994); see also Smith v. Illinois, 469 U.S. 91, 98 (1984) (per curiam)

(“In the absence of such a bright-line prohibition, the authorities

through ‘badger[ing]’ or ‘overreaching’ — explicit or subtle,

deliberate or unintentional — might otherwise wear down the

7
 accused and persuade him to incriminate himself notwithstanding

his earlier request for counsel’s assistance.”) (citations omitted).

¶ 14 In practice, we most often answer two questions when

assessing whether the “‘rigid’ prophylactic rule” of Edwards applies:

First, did the suspect unambiguously invoke his right to counsel;

and second, did the suspect initiate the succeeding conversation

and then knowingly and intelligently waive the right he previously

invoked? Smith, 469 U.S. at 94-95 (quoting Fare v. Michael C., 442

U.S. 707, 719 (1979)).1 This case, however, raises the additional,

subsidiary question implicit in the second: Did the law enforcement

officer ever stop interrogating the suspect? The framework for

addressing these three questions is relatively clear.

¶ 15 A suspect unambiguously requests counsel if he “articulate[s]

his desire to have counsel present sufficiently clearly that a

reasonable police officer in the circumstances would understand

the statement to be a request for an attorney.” Davis, 512 U.S. at

459; see also Kutlak, ¶ 23 (clarifying that an unambiguous

invocation is one that a reasonable police officer would understand

1 Leyba doesn’t dispute on appeal that he knowingly and
intelligently waived his rights.

8
 to be a request for counsel, not one that could be understood as a

request for counsel). When determining whether a defendant

unambiguously invoked his right to counsel, a court must consider

“the totality of the circumstances,” examining factors such as what

was said, the questioner’s and the suspect’s demeanor and tone,

the suspect’s behavior, and the suspect’s personal characteristics

(such as age) and background. Kutlak, ¶ 24.

¶ 16 When a suspect unambiguously invokes his right to counsel,

interrogation must cease. And “an accused’s postrequest responses

to further interrogation may not be used to cast doubt on the clarity

of his initial request for counsel.” Smith, 469 U.S. at 92. Nor can

“a valid waiver of that right . . . be established by showing only that

he responded to further police-initiated custodial interrogation even

if he has been advised of his rights.” Edwards, 451 U.S. at 484.

Even so, a defendant may waive his previously invoked rights by

reinitiating the conversation with police. People v. Martinez, 789

P.2d 420, 422 (Colo. 1990) (a request for counsel isn’t “irrevocable”).

¶ 17 In considering whether police stopped interrogating the

suspect, we must keep in mind what, exactly, interrogation means

in this context. It means express questioning and “any words or

9
 actions on the part of the police (other than those normally

attendant to arrest and custody) that the police should know are

reasonably likely to elicit an incriminating response from the

suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (footnote

omitted); accord Madrid, 179 P.3d at 1014. It therefore reflects “a

measure of compulsion above and beyond that inherent in custody

itself.” People v. Rivas, 13 P.3d 315, 319 (Colo. 2000).

¶ 18 But an “officer’s direct response to a question initiated by a

suspect” generally doesn’t constitute interrogation, “even though

the suspect is in custody and has already invoked his right to

counsel.” Id.

¶ 19 To determine whether an officer’s words or conduct amounted

to interrogation, we again consider the totality of the circumstances,

People v. Bonilla-Barraza, 209 P.3d 1090, 1094 (Colo. 2009),

remembering that Miranda was concerned with the “interrogation

environment” and the techniques police use to encourage a

defendant to speak — whether or not those techniques involve

actual questioning. 384 U.S. at 457.

¶ 20 If interrogation stopped, a defendant may “initiate[] further

communication, exchanges, or conversations with the police,” and

10
 waive his rights under Miranda, subjecting himself to further

interrogation. Edwards, 451 U.S. at 485; see also People v.

Cardman, 2016 COA 135, ¶ 15, cert. granted, judgment vacated,

and case remanded on other grounds, No. 16SC789, 2017 WL

1369883 (Colo. Apr. 10, 2017) (unpublished order). A defendant

initiates further questioning when he “evince[s] a willingness and a

desire for a generalized discussion about the investigation.” Oregon

v. Bradshaw, 462 U.S. 1039, 1045-46 (1983). More specifically,

while “merely a necessary inquiry arising out of the incidents of the

custodial relationship” doesn’t qualify as a reinitiation of the

conversation, asking something like “[w]ell, what is going to happen

to me now?” might. Id. In determining whether a defendant

reinitiated communication, we consider the totality of the

circumstances, including the suspect’s background, experience,

and conduct. Martinez, 789 P.2d at 422.

4. Analysis

a. Invocation

¶ 21 To start, contrary to the People’s assertion and the district

court’s finding, we conclude that Leyba unambiguously invoked his

11
 right to counsel by answering “Yeah” to the detective’s question “Are

you asking for [a lawyer] or not?”

¶ 22 The People argue that the district court correctly concluded,

based on the totality of the circumstances, that Leyba’s request was

ambiguous. But Leyba’s statements after he clearly invoked his

right to counsel, on which the People rely, can’t be used to

transform his unequivocal request into an equivocal one. Smith,

469 U.S. at 100 (suspect’s statements after an unequivocal

invocation can’t “be used to cast retrospective doubt on the clarity

of the initial request itself”); People v. Kleber, 859 P.2d 1361, 1363-

64 (Colo. 1993).

¶ 23 The People misread Kutlak in arguing otherwise. In Kutlak,

the Colorado Supreme Court held that the defendant’s question

asking if the police could get his attorney “down here now, or . . . ?,”

considered in light of the uncertainty reflected in his demeanor and

his experience with the criminal justice system, wasn’t an

unambiguous request for counsel. Kutlak, ¶¶ 27, 30. The

defendant’s subsequent statements didn’t render that invocation

ambiguous; rather, the alleged invocation itself wouldn’t have put a

12
 reasonable officer on notice that the defendant was exercising his

right to have counsel present. Id. at ¶ 23.

¶ 24 In this case, in contrast, Leyba answered “Yeah” when asked if

he wanted a lawyer. That was a clear invocation of his right to

counsel. See People v. Redgebol, 184 P.3d 86, 99 (Colo. 2008)

(“There is no question that Redgebol’s answer of ‘Yes, he would like

a lawyer’ to the question of ‘Would you like a lawyer with you, while

we talk today, or no?’ is an unambiguous and unequivocal request

for counsel.”); see also Smith, 469 U.S. at 100 (the defendant

unequivocally invoked his right when, upon being advised of his

right to counsel and asked if he understood, he replied, “Uh, yeah.

I’d like to do that”); Garcia v. Long, 808 F.3d 771, 778 (9th Cir.

2015) (the defendant unequivocally invoked his right to silence by

saying “No,” to the question “do you wish to talk to me?”); United

States v. Silknitter, No. 1:05-CR-0423, 2006 WL 860064, at *4 (M.D.

Pa. Apr. 3, 2006) (unpublished order) (“[The] Defendant’s response,

13
 ‘Yeah,’ when [the detective] asked if he wanted an attorney was

sufficient to unambiguously invoke his request for counsel.”). 2

¶ 25 So we must now determine whether the detectives stopped

interrogating Leyba.

b. Interrogation

¶ 26 We conclude that the detectives did stop interrogating Leyba

after he invoked his right to counsel.

¶ 27 Once Leyba invoked his right, Detective Morgen stopped

questioning him. He didn’t volunteer information about the charges

or next steps; he simply answered Leyba’s inquiry about why the

detectives wanted to talk with him, and did so directly, succinctly,

and accurately. See Rivas, 13 P.3d at 319 (an officer’s responses to

questions from a suspect aren’t usually regarded as interrogation);

cf. Bradshaw, 156 P.3d at 454 (officer failed to end the interrogation

where, after the defendant invoked his right to counsel, he asked,

“So, are you, are you telling me that this was consensual?”). Only

after Leyba continued to discuss the incident — saying “[t]here was

more than just [him] there,” and asking why the person the police

2 Detective Morgen testified that he understood Leyba wanted a
lawyer by answering “Yeah.”

14
 already had in custody hadn’t told the police everything they needed

to know — did Detective Morgen ask Leyba if he was actually willing

to speak. In the interim, all Detective Morgen said — in responding

to Leyba — was “Okay” and “K, we’re investigating a homicide that

took place two days ago.”

¶ 28 To the extent Leyba argues that a law enforcement officer

must remain completely silent after a suspect invokes his right to

counsel, no matter what the suspect says subsequently, he cites no

authority for that proposition, we have found none, and this

argument appears to be contrary to settled law. See Rivas, 13 P.3d

at 320 (the detective’s truthful responses to the defendant’s inquiry

after invocation didn’t constitute interrogation). And we simply

don’t see any compulsion from Leyba’s perspective in Detective

Morgen’s answers, demeanor, or actions. Nor do we see any

“badgering” or attempts to convince Leyba to rescind his invocation

that this “prophylactic” rule seeks to deter. See Smith, 469 U.S. at

94-95.

¶ 29 Thus, we conclude that Detective Morgen stopped

interrogating Leyba. We must turn, then, to reinitiation.

15
 c. Reinitiation

¶ 30 The remaining question is whether Leyba reinitiated the

conversation by “evinc[ing] a willingness and a desire for a

generalized discussion about the investigation[.]” Bradshaw, 462

U.S. at 1045-46. We conclude that he did.

¶ 31 Relying on People v. Bradshaw, 156 P.3d 452 (Colo. 2007),

and Redgebol, 184 P.3d 86, Leyba argues that he couldn’t have

reinitiated because his questions and statements occurred so soon

after he invoked his right to counsel. Both cases are

distinguishable.

¶ 32 In Bradshaw, the officer never ended the interrogation. 156

P.3d at 459. Rather, he asked a substantive question about the

incident immediately after the defendant invoked his right to

counsel. Indeed, the supreme court also said, albeit in dictum, that

“[h]ad [the officer] scrupulously honored Bradshaw’s first request

for an attorney and ended the interrogation, Bradshaw’s question,

‘What am I facing here?’ may have qualified as a reinitiation.” Id.

¶ 33 In Redgebol, the court concluded that the district court

properly suppressed the defendant’s statements because the

defendant didn’t knowingly and intelligently waive his rights due to

16
 substantial misconceptions, errors in translation, and the

defendant’s cultural background and limited intelligence. 184 P.3d

at 98-99. The court went on to address the People’s argument that

the defendant had reinitiated the discussion, pointing out that the

“alleged reinitiation occurred within thirty seconds” of his

invocation, and saying that “[t]he People cite no case law from this

jurisdiction or any other where a court has held that a defendant

invoked his right to an attorney, thus ending the questioning, and

then reinitiated questioning in less than a minute.” Id. at 99-100;

see also Kutlak, ¶ 52 (Gabriel, J., dissenting). But we don’t read

Redgebol as creating a bright-line durational minimum before

which a defendant cannot reinitiate the conversation. And it would

be a mistake, we think, to do so.

¶ 34 The majority in Redgebol analogized the facts before it to those

in Bradshaw, where the interrogation never ended. 184 P.3d at

100. The decision rested, then, on the detective’s failure to stop

interrogating the defendant. Id. Moreover, the United States

Supreme Court’s test for reinitiation doesn’t include a time

component. Rather, it is couched in terms of what the suspect

said: Did the suspect “evince[] a willingness and a desire for a

17
 generalized discussion about the investigation?” Bradshaw, 462

U.S. at 1045-46; see also Michigan v. Mosley, 423 U.S. 96, 102-04

(1975) (There is no “per se proscription of indefinite duration upon

any further questioning by any police officer on any subject, once

the person in custody has indicated a desire to remain silent. . . .

Through the exercise of his option to terminate questioning [a

defendant] can control the time at which questioning occurs . . . .”);

Bonilla-Barraza, 209 P.3d at 1095. While we don’t discount the

possibility that timing may be relevant, see Bonilla-Barraza, 209

P.3d at 1095 (timing is a factor), it shouldn’t be dispositive, id. (no

factor is conclusive), as reinitiation has much less to do with what

the suspect intends than what the suspect says.

¶ 35 Consider the following hypothetical. During interrogation, a

suspect says, “I want to talk to a lawyer.” The officer says, “Okay,”

and starts to get up to leave. The suspect immediately says, “Wait.

I’ve changed my mind. I want to talk to you about this thing before

I talk to a lawyer.” Can there be any doubt that under Oregon v.

Bradshaw that would constitute reinitiation by the suspect? We

think not, despite the lapse of so little time.

18
¶ 36 This hypothetical is not purely hypothetical. For although the

Redgebol court hadn’t been cited any case law finding reinitiation

“in less than a minute,” such case law exists.

¶ 37 For example, in United States v. Gonzalez, 764 F.3d 159, 167

(2d Cir. 2014), the court found that the defendant reinitiated the

conversation after he invoked his right to remain silent where an

agent told him what would happen next (which wasn’t

interrogation), the defendant immediately told the agents not to

leave and that he wanted to speak with them; the agents then went

over his rights extensively before interrogating him. Similarly, in

State v. Palacio, 442 P.3d 466, 470, 473 (Kan. 2019), the court held

that the suspect reinitiated the conversation and waived his

previously invoked right to counsel where, immediately after the

suspect invoked his right, the officers told him what he was being

charged with and then got up to leave, and the suspect immediately

said, “I’d like to say something else.” See also Shelly v. State, 262

So. 3d 1, 15 (Fla. 2018) (immediately after invoking his right to

counsel, the defendant continued and reinitiated the conversation

by asking the detective to call his mom, whom the defendant

asserted was an alibi witness); State v. Perez, 731 N.W.3d 384,

19
 2007 WL 822862, at *4-5 (Wis. Ct. App. Mar. 20, 2007)

(unpublished table decision) (the defendant immediately withdrew

his request for an attorney).

¶ 38 Thus, we conclude that the passage of a short period is not an

insurmountable obstacle to a finding of reinitiation. Rather,

immediate reinitiation is possible if the totality of the circumstances

supports the conclusion that the defendant showed “a willingness

and a desire for a generalized discussion about the investigation[.]”

Bradshaw, 462 U.S. at 1045-46; see Martinez, 789 P.2d at 422.

¶ 39 In this case, Leyba invoked his right to counsel but then

immediately continued the conversation. The video shows that

Detective Morgen began to turn to the side as soon as Leyba

invoked his right by saying “Yeah.” But Leyba continued talking:

I don’t know what you [inaudible] are doing,
like you’re just asking me a bunch of questions
about my name and stuff; I haven’t been told
shit besides what I been seeing on the news
and I don’t know what the fuck you’re talking
about.

These statements weren’t “merely a necessary inquiry arising out of

the incidents of the custodial relationship.” Bradshaw, 462 U.S. at

1045-46. Instead, they indicated a desire to know about the

20
 purpose of the questioning, to which the detective reasonably

responded by telling him what he was investigating. And then

Leyba said,

I know all that I mean, I mean, obviously I was
around the same crowd of people and all that
so, I mean, but the person you guys already
caught hasn’t told you what you guys needed
to know? Why does everybody else keep
putting people involved that didn’t do shit.
There was more than just me there.
[Inaudible] been the only one that’s sitting on
me like a suspect or something, I didn’t do shit
wrong.

He thereby volunteered general information about the incident and

again indicated a willingness to talk about it. The detective had

Leyba read through his rights. The video shows Leyba apparently

reading the form and signing that he understood and waived his

rights. Leyba also clarified that he would ask for a lawyer whenever

he became uncomfortable.

¶ 40 We therefore conclude, considering the totality of the

circumstances, that although Leyba invoked his right to counsel

and interrogation then ceased, Leyba reinitiated the conversation

and knowingly and intelligently waived his previously invoked right

to counsel.

21
¶ 41 Accordingly, we conclude that the district court didn’t err in

denying Leyba’s motion to suppress.

B. Theft Instruction

¶ 42 Leyba next contends that the district court erred by failing to

instruct the jury on theft as a lesser nonincluded offense of

aggravated robbery. We aren’t persuaded.

¶ 43 Leyba’s counsel requested a jury instruction on theft. The

district court rejected it, concluding that, in light of the undisputed

evidence showing the use of deadly force, there was no rational

basis for the instruction. Instead, the court instructed the jury on

the lesser included offense of robbery.

¶ 44 We review whether the record contains sufficient evidence for a

lesser nonincluded offense instruction for an abuse of discretion.

People v. Jimenez, 217 P.3d 841, 870 (Colo. App. 2008). If statutory

interpretation is required, we review that de novo. People v.

Wartena, 2012 COA 12, ¶ 30.

¶ 45 A defendant is entitled to an instruction on a lesser

nonincluded offense — “a lesser offense that requires proof of at

least one element not contained in the charged offense” — “so long

as a rational evidentiary basis exists to simultaneously acquit him

22
 of the charged offense and convict him of the lesser offense.” People

v. Naranjo, 2017 CO 87, ¶¶ 15, 17.

¶ 46 We begin by contrasting aggravated robbery with theft. A

person commits robbery if he “knowingly takes anything of value

from the person or presence of another by the use of force, threats,

or intimidation.” § 18-4-301(1), C.R.S. 2018. “The gravamen of

robbery is the application of physical force or intimidation against

the victim at any time during the course of a transaction culminating

in the taking of property from the victim’s person or presence.”

People v. Bartowsheski, 661 P.2d 235, 244 (Colo. 1983) (emphasis

added). “A person who commits robbery is guilty of aggravated

robbery if during the act of robbery or immediate flight therefrom

. . . [h]e is armed with a deadly weapon with intent, if resisted, to

kill, maim, or wound the person robbed or any other person . . . .”

§ 18-4-302(1)(a), C.R.S. 2018. Theft differs from robbery (and

therefore aggravated robbery) in that it is a taking “without

authorization or by threat or deception”; the use of force is excluded

from the definition. § 18-4-401(1), (5), C.R.S. 2018.

¶ 47 Leyba doesn’t dispute that Flores shot and killed Quijada and

the two juveniles during the incident, which culminated in the

23
 taking of property from others. He argues, rather, that there was

evidence that he didn’t intend any violence and didn’t know that

Flores did. Thus, he says, there was ample evidence from which the

jury could rationally have concluded that he only committed theft,

not aggravated robbery. He is incorrect.

¶ 48 The undisputed evidence showed the use of force during the

incident — Flores shot and killed three people. So if the jury was

persuaded that Leyba (as a complicitor or directly) took property

from persons at the house, there was no rational basis for

acquitting him of robbery. 3 It follows that instructing the jury on

the lesser nonincluded offense of theft would have been improper.

See People v. Villalobos, 159 P.3d 624, 628 (Colo. App. 2006)

(“Because robbery can be established over the ‘course of a

transaction,’ and there was no evidence disputing the use of force in

the last phase of the transaction to retain control of the victim’s

property, there was no evidentiary basis for instructing the jury on

theft.”); see also People v. Buell, 2017 COA 148, ¶¶ 23, 27 (evidence

was sufficient to support aggravated robbery conviction where the

3As the People point out, Leyba either committed aggravated
robbery or no charged crime at all.

24
 defendant conceded that he committed theft and used a knife after

taking the property), aff’d, 2019 CO 27; People v. Delgado, 2016

COA 174, ¶ 17 (force elements — or in the case of theft,

nonelements — of robbery and theft negate each other) (cert.

granted Dec. 11, 2017); People v. Ramirez, 18 P.3d 822, 827 (Colo.

App. 2000) (“[T]he mere chance that a jury may reject

uncontroverted testimony and convict on the lesser charge does not

require the trial court to instruct the jury on the lesser charge.”).

C. Duress Instruction

¶ 49 Leyba also contends that he was entitled to an instruction on

the affirmative defense of duress for the aggravated robbery

counts. 4 The district court disagreed, and so do we.

¶ 50 “[T]o present an affirmative defense for jury consideration, the

defendant must present ‘some credible evidence’ on the issue

involving the claimed defense.” People v. Garcia, 113 P.3d 775,

783-84 (Colo. 2005) (quoting § 18-1-407(1), C.R.S. 2018); see People

v. Newell, 2017 COA 27, ¶ 21. Whether a defendant met this

burden is a question of law that we review de novo. Garcia, 113

4Leyba asked for and received a duress instruction on the
accessory to first degree murder counts.

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 P.3d at 784. When deciding whether a defendant was entitled to a

requested instruction, we view the evidence in the light most

favorable to the defendant. Cassels v. People, 92 P.3d 951, 955

(Colo. 2004). A defendant is entitled to an instruction if the record

contains any evidence that could support a jury finding in his favor

on the affirmative defense.

¶ 51 The defense of duress bars conviction of a person “based upon

conduct in which he engaged at the direction of another person

because of the use or threatened use of unlawful force upon him or

upon another person, which force or threatened use thereof a

reasonable person in his situation would have been unable to

resist.” § 18-1-708, C.R.S. 2018. Thus, for a defendant to be

entitled to an instruction on duress, the record must contain some

evidence that the defendant (1) faced an immediate threat of death

or bodily injury; (2) had a well-grounded fear that the threat would

be carried out; and (3) had no reasonable opportunity to escape the

threatened harm. People v. Preciado-Flores, 66 P.3d 155, 163 (Colo.

App. 2002). The defense doesn’t “include every threat causing

subjective fear or exculpate every defendant too weak to resist

26
 threats against himself or another.” People v. Speer, 255 P.3d 1115,

1119 (Colo. 2011).

¶ 52 Leyba argues that there was credible evidence showing that

there was a specific and imminent threat that Flores would harm

him. He points to his interview with the detectives, in which he

repeatedly said that he didn’t know if Flores was going to shoot him,

and also to testimony from Flores’s cellmate that Flores said he

made Leyba drive the vehicle. But even viewing this evidence in the

light most favorable to Leyba, we conclude that the record remains

devoid of any evidence to support a finding that Flores, Leyba’s

fellow gang member, threatened him in the house or elsewhere. See

id. (affirmative defense of duress requires a specific and imminent

threat of injury). 5

¶ 53 We therefore conclude that the district court didn’t err in

refusing to instruct the jury on the affirmative defense of duress for

the aggravated robbery charges.

5We also observe that Flores wasn’t always with Leyba when they
were in the house.

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 D. Prosecutorial Misconduct

¶ 54 Lastly, Leyba contends that prosecutorial misconduct during

closing argument requires reversal. We don’t see any misconduct.

¶ 55 In reviewing a claim of prosecutorial misconduct, we first

determine whether the prosecutor’s conduct was improper based on

the totality of the circumstances, and, if so, we then determine

whether reversal is warranted under the appropriate standard of

review. Wend v. People, 235 P.3d 1089, 1096-97 (Colo. 2010). For

issues preserved by timely, specific objection, we review for

harmless error. Hagos v. People, 2012 CO 63, ¶ 12. For

unpreserved issues, we review for plain error. Id. at ¶ 14.

Prosecutorial misconduct in closing argument rarely constitutes

plain error. People v. Strock, 252 P.3d 1148, 1153 (Colo. App.

2010).

¶ 56 Leyba argues that in closing argument the prosecutor

improperly (1) appealed to the sympathy of the jury and (2)

misstated the law of complicity. And, even if neither of these

individual errors requires reversal, he argues that their cumulative

effect does.

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¶ 57 The prosecutor began his rebuttal closing argument by

showing pictures of the victims, saying their ages and naming their

family members. Defense counsel objected that the prosecutor was

pandering to the jurors’ sympathies, and the court agreed.

¶ 58 Initially, we note that the court essentially sustained the

objection.6 In any event, although a prosecutor may not

“encourag[e] the jury to depart from its duty to decide the case on

the evidence” by appealing to sympathy for the victim, People v.

Dunlap, 975 P.2d 723, 759 (Colo. 1999), a prosecutor isn’t barred

from discussing the victims at all. Nothing indicates that the

prosecutor’s statements were calculated to inflame the passions or

prejudice of the jurors or ask them to determine guilt based on

emotion rather than evidence. Cf. id. (remarks encouraging the jury

to “memorialize or pay tribute to the victims by its verdict” were

improper).

¶ 59 Leyba also contends that the prosecutor misstated the law of

complicity as to aggravated robbery:

6 Defense counsel didn’t ask the court either to strike the
statements or to tell the jurors to disregard them.

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 Complicity says “aided, abetted, or otherwise
encouraged.” What is not aiding, when you go
back to the back room when someone’s
robbing somebody, running out of the house,
driving the getaway car, finding out it’s empty,
waiting for him to come back and take off,
grabbing things on the way out according to
two people? What is not complicit about that?

We don’t have to prove that Mr. Leyba ever
shot anybody. We don’t have to prove that he
struck anybody. We don’t have to prove that
he robbed anybody. That is not our burden of
proof.

This is a felony murder. This means if there
was a Robbery or Aggravated Robbery and he
was aware and complicit in it, people died.

If there was Aggravated Robbery, he’s
complicit, he’s guilty of Aggravated Robbery,
even if he’s not the one that pulled the trigger.

We talked about this. You’ve got a bank
robbery; you’ve got a guy sitting in the getaway
car. You can’t prove that guy was in the bank.
You can’t prove that that guy shot the bank
teller.

You can prove he had a getaway car. He goes
to trial for felony murder in that case. He
aided, abetted, or otherwise encouraged with
the same mental state as his co-conspirator,
complicitor; and that’s exactly what happened
in this case.

¶ 60 Leyba argues that, by excluding the required mental state for

commission of the underlying offense and telling the jury that the

30
 People didn’t have to prove that he robbed anybody, the prosecutor

effectively told the jury that the People didn’t have the burden to

prove every element of the crime. But Leyba ignores the context of

these statements. Domingo-Gomez v. People, 125 P.3d 1043, 1051

(Colo. 2005) (in determining whether a prosecutor’s statement was

improper, we consider the context). The prosecutor explicitly

mentioned mental state. And he also largely tracked the elements

of complicity, arguing that they had been met in this case.

¶ 61 Because we don’t find any prosecutorial misconduct, there is

no cumulative effect requiring reversal.

III. Conclusion

¶ 62 We affirm the judgment.

JUDGE ROMÁN and JUDGE LIPINSKY concur.

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