concurring in the judgment.
$23 In his concurring opinion in PDK Laboratories Inc. v. United States Drug Enforcement Administration, 362 F.3d 786, 799 (D.C.Cir.2004) (Roberts, J., concurring. in part and concurring in the judgment), then-Judge and now-Chief Justice John Roberts noted the "cardinal principle of judicial restraint-if it is not necessary. to decide more, it is necessary not to decide more." In this case, the majority concludes that an individual who contracts with a private agency to provide services at a publicly-operated county jail and who is paid by the private agency is not a compensated employee of a public law enforcement agency for purposes of section 16-10-108(1)(k), C.R.S. (2015). Maj. op. 122. The majority thus affirms the court of appeals division's decigion.
124 Although I agree that the. division's ultimate determination should be affirmed, in my view, our decision in People v. Novotny, 2014 CO 18, 320 P.3d 1194, is dispositive, and we therefore need not-and should not-reach the merits of the statutory interpretation question presented. See PDK Labs., 362 F.3d at 799 (Roberts, J., concurring in part and concurring in the judgment), Accordingly, I respectfully concur in the judgment only, > .
I. Novotny
1 25 In Novotny, ¶ 27, 320 P.3d at 1203, we overruled our decision in People v. Macrander, 828 P.2d 234, 244 (Colo.1992), in which we had held that a trial court's erroneous denial of a challenge for cause required reversal if the defendant then exercised a peremptory challenge to remove the challenged juror and exhausted all of his or her remaining peremptory. challenges. We thus concluded that (1) allowing a defendant fewer peremptory challenges than authorized, or than available to and exercised by the prosecution, is not, in and of itself, structural error; and (2) reversal for other than strue-tural error is appropriate only when dictated by a case-specific, outcome-determinative evaluation of the likelihood that the error affected the verdict. Novotny, ¶ 27, 320 P.3d at 1203.
€ 26 The outcome-determinative evaluation to which we referred requires an assessment of harmlessness, under which a defendant must show prejudice to obtain reversal. Id. at 11 2, 18-28, 27, 820 P.8d at 1196, 1200-03; accord id. at "I 80, 820 P.3d at 1203 (Hood, J., concurring in part and dissenting in part). Most courts that have addressed the question, including divisions of our court of appeals, have concluded that to make such a showing of prejudice, a defendant ordinarily must show that a biased or incompetent juror participated in deciding the defendant's guilt, See, e.g., People v. Wise, 2014 COA 83, ¶ 28, 348 P.3d 482, 489 (collecting cases), cert denied, No. 14SC678, 2015 WL 1610548 (Colo. Apr. 6, 2015).
(27 Here, Mulberger has not asserted that a biased or incompetent juror participated in deciding his guilt,. Accordingly, even if he were correct that the trial court and the division of the court of appeals erred in denying his challenge for cause, any error *150would have been harmless. See id. at ¶ 29, 348 P.3d at 489. Accordingly, I would affirm without reaching the merits of the statutory interpretation question that Mulberger presents.
{28 I am not persuaded otherwise by Mul-berger's contentions that (1) Novotny did not address the question of retroactivity and did not indicate the proper remedy if Novotny applies; (2) the application of Novotmy to this case would violate Mulberger's due process rights because Novotny announced 'a new rule without fair warning; and (8) even if Novotny could apply, Mulberger is entitled to a remand to allow him to try to show that an "undesirable" or "objectionable" juror whom he would have removed with an additional peremptory challenge sat on his jury. For several reasons, I cannot agree.
29 First, we applied the Novotny rule in Novotny itself, remanding the cases there before us to consider whether the errors in those cases were harmless under the proper outcome-determinative test. See Novotny, ¶27, 320 P.3d at 1203. Accordingly, we at least implicitly indicated that Novotzry should be applied to pending cases, and notwith standing Mulberger's assertion to the contrary, we expressly suggested the proper remedy for when Novotny applies, namely, a remand for a harmless error analysis.
130 Second, for the reasons set forth by the division in Wise, ¶¶ 10-11, 348 P.3d at 486, it is not at all' clear to me that applying Novotny would constitute a retroactive application of a change in the law. Specifically, as the division in Wise observed, the holding in Novotny does not affect the process for challenging prospective jurors for cause, the standards applicable to the determination of any such challenge, or any matter pertinent to the use of peremptory challenges. Id. at ¶ 11, 348 P.3d at 486, Nor does it make criminal that which was not, alter any burden of proof, affect the admissibility or weight of evidence, or enhance a defendant's punishment. Id. Accordingly, the holding in Novot-ny had no legal effect on the proceedings in the district court. Id. Rather, it changed only the framework for determining whether the appellate court must reverse a conviction because a defendant used a peremptory challenge to excuse a juror whom the defendant had unsuccessfully challenged for cause. Id. And applying Novoiny here would not be applying it to a prior appeal but rather to a pending appeal as to which the appellate remedy is not yet final. Id.
T31 Third, even if the application of No-votny here could be said to be retroactive, I could not say that Novotny resulted in a new rule of law that was wholly unforeseeable to Mulberger. The automatic reversal rule was not definitively. adopted in Colorado until our 1992 decision in Macrander, 828 P.2d at 244. Thereafter, a series of United States and Colorado Supreme Court cases cast doubt on the validity of the automatic reversal rule, at least as, a matter of federal constitutional law, and by the time of Mulberger's trial, only a minority of states adhered to the automatic reversal rule, and the federal courts had rejected it. See Wise ¶ 14, 348 P.3d at 486-87 (collecting cases).
182 Finally, with respect to Mulberger's contention that if Novotmy applies, then he is entitled to a remand, he asserts that Novot-ny should be interpreted to find prejudice when a defendant exhausts his peremptory challenges and a juror who was "undesirable" or "objectionable" to the defendant (e., one against whom the defendant would have exercised a peremptory strike if one were available) remains on the jury. In support of this argument, Mulberger cites a number of out-of-state cases that have adopted such a standard. See, e.g., State v. Ross, 269 Conn. 213, 849 A.2d 648, 670 (2004); Busby v. State, 894 So.2d 88, 96-97 (Fla.2004); Hanson v. State, 72 P.3d 40, 48-49 (Okla.Crim.App.2003); Johnson v. State, 43 S.W.3d 1, 5-6 (Tex.Crim.App.2001).
138 "Were I writing on a blank slate, I might be persuaded to adopt such a standard, which seeks to give effect to the distinction between challenges for cause and peremptory challenges. I, however, am not writing on a blank slate. Rather, in Novotny, ¶ 27, 320 P.3d at 1203, we concluded that reversal based on an erroneous denial of a challenge for cause is appropriate only when dictated by an outcome-determinative evaluation of the likelihood that the error affected the verdict. I believe that such an evaluation *151can be made under existing law, and I perceive no need to adopt a new test for prejudice here. See People v. Hankins, 2014 COA 71, ¶¶ 31-32, 361 P.3d 1033, 1039 (noting that whether jurors can give a defendant a fair trial can be determined by existing law and thus perceiving no need to develop a new test that would turn on the defendant's subjective determination that a prospective juror is objectionable or undesirable), cert denied, No. 14SC552, 2015 WL 7176488 (Colo. Nov. 16, 2015).
II. Conclusion
11 34 For these reasons, I would affirm the division's decision by relying on Novotny and would not reach the merits of the statutory interpretation question that Mulberger presents, Accordingly, I respectfully concur in the judgment only.
I am authorized to state that JUSTICE HOOD joing in this. concurrence in the judgment.