v. Valera-Castillo

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
July 8, 2021

2021COA91

No. 16CA0049, People v. Valera-Castillo — Constitutional Law
— Fourteenth Amendment — Equal Protection; Juries —
Batson Challenges

A division of the court of appeals concludes that an objection

to a peremptory challenge that allegedly violates Batson v.

Kentucky, 476 U.S. 79 (1986) — which prohibits discrimination in

the jury selection process — must be made before the peremptorily

struck jurors are released from jury service because this allows the

court to provide a meaningful remedy if a Batson violation is

sustained. In People v. Mendoza, 876 P.2d 98, 102 (Colo. App.

1994), a defendant was precluded from making a Batson objection

“after the venire was dismissed, the jury panel had been sworn, and

the trial had begun.” The division agrees with Mendoza’s

framework, but now clarifies that a Batson challenge is too late if
the peremptorily struck jurors, including the juror who is the

subject of the Batson challenge, have been released, thus leaving

the trial court unable to afford a meaningful remedy that protects

the defendant’s and the struck juror’s equal protection rights.

Batson’s multiple objectives, coupled with the realities of the trial

process, justify this clarification. Because Valera-Castillo’s Batson

challenge was not timely, the division declines to review it on the

merits.

The division also concludes that any misconduct by the

prosecutor in eliciting inadmissible CRE 404(b) evidence does not

warrant reversal and that the prosecutor did not fail to correct

allegedly false testimony. Lastly, it rejects Valera-Castillo’s claim

that his third degree assault conviction should merge with one of

his second degree assault convictions. Having rejected Valera-

Castillo’s claims, the division affirms.
COLORADO COURT OF APPEALS 2021COA91

Court of Appeals No. 16CA0049
Jefferson County District Court No. 15CR590
Honorable Margie L. Enquist, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Crisoforo Valera-Castillo,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE FOX
Harris and Grove, JJ., concur

Announced July 8, 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
¶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 (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

1 The parties seem to agree that Juror M was not white, but the
record does not reveal Juror M’s race, ethnicity, or nationality.

1
 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

2
 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

3
¶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 (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 (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, aff’d, 2020 CO 46.

2In the context of for-cause challenges, if a party fails to raise a matter
pertaining to the qualifications and competency of a prospective juror
before the jury is sworn in, the matter “shall be deemed waived.” Crim.
P. 24(b)(2).

4
¶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

5
 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. 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.

6
 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, 701 N.W.2d 715, 729

(Mich. 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

7
 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; (2) the constitutional right of venirepersons to serve

without suffering racial discrimination, Powers v. Ohio, 499 U.S.

400, 406 (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 (2005); and (4) the potential to waste the time of

3 A few courts allow later Batson challenges — even after a jury has
been empaneled and sworn — reasoning that a mistrial is an
available remedy. See, e.g., City of Seattle v. Erickson, 398 P.3d
1124, 1128-29 (Wash. 2017); United States v. Thompson, 827 F.2d
1254, 1257 (9th Cir. 1987) (allowing a Batson challenge “just after”
the jury was sworn in). That may be true, but the mistrial remedy
is not ideal and certainly does not protect the excluded juror’s right
to serve. See, e.g., United States v. Walker, 490 F.3d 1282, 1294-95
(11th Cir. 2007) (“[C]ourts have refused to grant new peremptory
strikes or to dismiss the venire following a Batson error, finding that
doing so would reward offending conduct by the striking party.”).

8
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

requiring a Batson challenge to be made while the trial court has

the ability to correct the error by disallowing the offending strike,

the juror’s and the defendant’s equal protection rights are both

preserved. That remedy is not available (1) when the judge has

released the prospective juror who was the subject of the Batson

challenge before the issue is brought to the judge’s attention; or (2)

when the Batson challenge is made after the judge has seated a

jury. In our view, Batson’s objective, coupled with the realities of

the trial process, justify this clarification. While peremptorily

struck jurors may be excused from the jury box, it is critical that

they not be released from jury service or allowed to leave the

courtroom until all the peremptory strikes are exercised because

reseating is the only effective way to protect the equal protection

rights of all parties involved. See Batson, 476 U.S. at 99 n.24

(noting that one remedy for a sustained Batson challenge is to

“resume selection with the improperly challenged jurors reinstated

9
 on the venire”).4 At the same time, ensuring that an improperly

removed juror may be reseated buttresses public confidence “in the

fairness of our system of justice.” Id. at 87.

¶ 13 Significantly, Batson challenges seek to remedy the “harm to

the litigants, the community, and the individual jurors who are

wrongfully excluded” that occurs when discriminatory jury selection

criteria are tolerated.5 J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127,

4 To be sure, the Batson Court did not suggest that either common
remedy for a successful challenge — re-empanelment of the
improperly struck juror or restarting the process — is more
appropriate than the other. Nor did the Court suggest that these
are the only two remedies that the trial court should or may impose.
But starting the process over again is not only inefficient, it does
nothing for the improperly struck juror and gives the party who
improperly exercised the strike the outcome that it sought — a jury
without that particular juror on it. Whenever possible, then, re-
empanelment should be the goal. This timing also protects the
state’s interest in prosecuting the case because, in a jury trial,
jeopardy attaches when the jury is sworn. People v. Berreth, 13
P.3d 1214, 1216 (Colo. 2000).
5 While individual jurors who are wrongfully excluded may bring

suit to vindicate their right to serve, “[a]s a practical matter . . .
these challenges are rare.” Powers v. Ohio, 499 U.S. 400, 414
(1991). This is because “[p]otential jurors are not parties . . . and
have no opportunity to be heard at the time of their exclusion.” Id.
And a wrongfully struck juror cannot “easily obtain declaratory or
injunctive relief when discrimination occurs.” Id. Thus, in most
cases where an individual juror is wrongfully excluded, the
discrimination against the juror goes unredressed if he remains
excluded from jury service.

10
 140 (1994). Batson accomplishes its goals by prohibiting, as

relevant here, race-based strikes of prospective jurors.6 It requires

the objecting party to raise a Batson challenge before the challenged

jurors are released, and while the trial court is able to protect the

defendant’s equal protection rights, the juror’s right to serve, and

the community’s interests.

¶ 14 Given that peremptory challenges are the last step in the jury

selection process, it is not too onerous to require trial courts to

refrain from releasing from jury service persons who have been

peremptorily struck until the jury has been selected. Often the

peremptory process will take a matter of minutes, not hours, and

briefly retaining the peremptorily challenged jurors gives the court

an important tool if a Batson challenge is raised. This process fully

comports with Rule 24(d)(4). That a peremptorily challenged juror

6 This case involves alleged racial discrimination by the prosecution
in a criminal case, but Batson’s equal protection analysis reaches
more broadly, see People v. Rodriguez, 2015 CO 55, ¶ 2 n.1,
including gender discrimination, J.E.B. v. Alabama ex rel. T.B., 511
U.S. 127, 129 (1994); accord Craig v. Carlson, 161 P.3d 648, 653
(Colo. 2007). It applies to civil litigants, Edmonson v. Leesville
Concrete Co., 500 U.S. 614, 631 (1991), and criminal defendants,
Georgia v. McCollum, 505 U.S. 42, 59 (1992), alike. And, it does not
require racial identity between the defendant and the subject of the
peremptory strike. Powers, 499 U.S. at 406.

11
 is excused from the box of presumptive jurors does not mean that

the juror must be immediately released from jury service or from

the courtroom. See Crim. P. 24(d)(4).

¶ 15 This process also comports with the general principle that an

objection must be raised before it is too late to take corrective

action. Martinez v. People, 2015 CO 16, ¶ 14 (“An adequate

objection allows the trial court a meaningful chance to prevent or

correct the error and creates a record for appellate review.”).

¶ 16 Requiring a prompt objection protects the defendant’s equal

protection rights by allowing counsel for both parties to argue the

issue while it is fresh in their minds. See, e.g., McCrory, 82 F.3d at

1248 (“Because challenges are often based on . . . subtle, intangible

impressions, the reasons for exercising the challenges may be quite

difficult to remember if an objection is not raised promptly.”).

Promptness also aids the trial judge, whose recall of the prospective

jurors’ statements and non-verbal cues during voir dire will often be

critical to assessing the reasons offered for exercising the

challenged peremptory strike. See, e.g., Weeks v. N.Y. State (Div. of

Parole), 273 F.3d 76, 89 (2d Cir. 2001) (“In ruling that the Batson

motion was untimely, [the judge] explained that he could no longer

12
 remember who had been struck from the venire that

morning . . . .”), abrogated on other grounds by Nat’l R.R. Passenger

Corp. v. Morgan, 536 U.S. 101 (2002). In all, a timely challenge will

make it more likely that following the “Batson framework [will]

produce actual answers to suspicions and inferences that

discrimination may have infected the jury selection process.”

Johnson, 545 U.S. at 172.

¶ 17 The approach we now adopt may slightly inconvenience some

prospective jurors who are peremptorily struck but are not released

from jury service until jury selection is complete. This allows them

to be reseated if a Batson objection is sustained. See Knight, 701

N.W.2d at 729 (“Requiring courts to retain stricken jurors until the

end of jury selection . . . could potentially burden trial courts and

citizens called in for jury service if the selection process lasts

several days.”). Convenience, however, must give way to

constitutional guarantees and the overriding interest in upholding

the integrity of our justice system. In any event, efficient voir dire

procedures can minimize the waiting time for such jurors — who,

assuming they are not reseated, will serve the same amount of time

as those venirepersons who are never called to the jury box.

13
¶ 18 Accordingly, we conclude that a Batson challenge must be

raised while the peremptorily challenged prospective jurors remain

available to be reseated, thus allowing the court to afford a

meaningful remedy for a Batson violation. We turn next to the

timing of Valera-Castillo’s objection.

B. Application

¶ 19 During voir dire, the prosecutor used a peremptory challenge

to dismiss Juror M, the only apparent person of color on the venire.

After the parties exhausted their peremptory challenges, the trial

court read aloud the names of those selected to serve on the jury

and released the rest of the venire. A dismissed juror asked if those

who had been dismissed were free to go home or if they were

expected to return to the jury room, and the trial court responded

that the dismissed jurors could go home.

¶ 20 After the court dismissed the non-selected jurors, Valera-

Castillo’s counsel approached the bench and the following colloquy

took place:

COUNSEL: Your Honor, may I approach? You
didn’t ask me if we had any challenges. We
did have one.

COURT: Well --

14
 COUNSEL: No, that’s fine. Go ahead.

COURT: I think you have already waived it.
You should have approached if you had
anything you wanted to talk to me about.

The court then swore in the remaining jurors and released them for

lunch.

¶ 21 During the lunch break, defense counsel detailed his

objection, saying that “we were requesting a Batson challenge to

[Juror M]. He was the only minority that was on this panel. Every

single other person did appear to be of a nonminority race.”

Defense counsel pointed out that, while Juror M had said he was

concerned about minority representation in courtrooms and jails

across America, he could nonetheless be fair and impartial, and

thus the prosecutor’s strike of Juror M ran afoul of Batson.

¶ 22 The trial court responded that defense counsel should have

“raised [the Baston issue] as soon as [the prosecutor] challenged

[Juror M] because that would have been the appropriate time to

make inquiry of the People once all of the challenges were

completed.” The trial court then allowed the prosecutor to make a

record regarding why she struck Juror M, and the prosecutor said

that she had done so because he “appeared disinterested

15
 throughout the jury selection process.” Specifically, she said Juror

M looked tired and, because he was an intensive care unit nurse

and may work late hours, she was concerned about his ability to

complete the trial. The trial court concluded the discussion by

stating “the record is what it is” and dismissed the parties for

lunch.

¶ 23 Consistent with our clarification to Mendoza, we conclude that

Valera-Castillo’s Batson claim was untimely because his counsel

raised it after the trial court dismissed the venire, including the

challenged juror, and was unable to provide a meaningful remedy if

it had sustained the objection. See Mendoza, 876 P.2d at 102.

That trial had not yet started does not convince us otherwise. The

trial court could not meaningfully give effect to Batson because the

challenged juror had already been dismissed and the trial court was

consequently unable to cure a Batson violation by disallowing the

prosecutor’s peremptory challenge, Richardson, ¶¶ 48-52, and

reseating the juror who was struck.7

7 We do not hold that defense counsel is always required to raise
the Batson issue as soon as a juror is challenged. When a trial
court waits to dismiss the jurors subject to peremptory strikes

16
¶ 24 Valera-Castillo claims his counsel’s objection was

contemporaneous with the court’s dismissal of the non-selected

jurors and before the trial court swore in the jury. But Valera-

Castillo admits that “the read-out of the record demonstrates that

defense counsel’s objection immediately followed the dismissal

instruction.” (Emphasis added.) Further, his assertion that the

non-selected jurors were still present in the courtroom when his

counsel first raised the general objection cannot be confirmed by

the record. It is also troubling that Valera-Castillo did not

articulate the precise nature of his challenge (that he was invoking

Batson) until after the trial court had dismissed the non-selected

jurors and sworn the jury. See Valdez, ¶ 44, 140 P.3d at 1233-34

(“[T]o allow a Batson challenge to proceed after the venire has been

dismissed is only to sanction abuse. If such a result were allowed,

a party would be able to delay raising a Batson challenge until it

together at the close of voir dire, and defense counsel objects to a
strike before their dismissal, then an improper strike can still be
remedied by reseating the juror in question. This process also
protects a defendant where a pattern of strikes allegedly in violation
of Batson emerges. As the untimely objection precludes review, we
need not address waiver or forfeiture. See e.g., People v. Rediger,
2018 CO 32, ¶¶ 39-47 (discussing the difference between waiver
and forfeiture).

17
 determined whether it approved of the selected jury. Such

sandbagging is antithetical to notions of judicial economy and

procedural fairness.”). Although jury selection may vary in different

courtrooms, trial courts should inquire whether any objections

remain before dismissing the jurors subject to peremptory strikes,

thereby protecting the defendant’s rights and the challenged juror’s

right to serve.

¶ 25 Because Valera-Castillo’s Batson objection was untimely, we

do not reach the merits of that contention. See Richardson, ¶ 52

(concluding the trial court properly declined to reach the merits of

an untimely Batson objection).

III. Prosecutorial Misconduct

¶ 26 Valera-Castillo next argues that the prosecutor committed

misconduct by eliciting inadmissible CRE 404(b) evidence and by

failing to correct J.G.’s false testimony regarding information she

shared with a police investigator. We disagree.

A. Additional Background

¶ 27 Before trial, Valera-Castillo filed a motion in limine to exclude

evidence that he called J.G. on February 23, 2015, and asked her to

drop the charges, warning that “she would have a huge problem if

18
 she didn’t.” Valera-Castillo argued that the evidence was “a form of

res gestae and 404(b) [evidence] that the prosecution has not

requested be introduced as required by statute.” During a hearing

on the motion, the prosecutor argued that the statements were

relevant and close in time to the alleged assault and that J.G.

disclosed the statements to the police and an investigator. Valera-

Castillo’s counsel responded that the prosecution had not

corroborated J.G.’s claim with phone records and that, while he was

willing to subpoena the records, he would need a continuance to do

so.

¶ 28 The trial court agreed that a subpoena was likely necessary to

obtain the phone records and also agreed that the evidence fell

under CRE 404(b). To avoid a continuance, the prosecutor agreed

not to offer the statements unless Valera-Castillo “opened the door

to that.” The prosecution later affirmed this position in a notice of

recently discovered evidence, which disclosed a police report stating

that J.G. said Valera-Castillo had sent her a text offering her

“money and a clear car title in exchange for dropping the charges

against him.”

19
¶ 29 On the morning of trial, Valera-Castillo sought admission of

his phone records, arguing that they contradicted J.G.’s claim that

he called her after the incident. The trial court indicated that

Valera-Castillo’s counsel could cross-examine J.G. about her

contacts with him, showing her (and other witnesses) the phone

records. The prosecutor challenged the accuracy of the records,

and the court declined to admit them but allowed Valera-Castillo’s

counsel to serve the custodian of the records and instructed the

attorneys to approach the bench before inquiring about the records.

Defense counsel asked the trial court if he could cross-examine J.G.

about the records, and the court responded, “Maybe, maybe

not . . . . If you cannot establish the time that these calls and text

messages were made, [then] no. But you can certainly ask her

without the phone records whether she called him, whether she

communicated with him.”

¶ 30 Later that day, the following exchange occurred between the

prosecutor and J.G.:

[Prosecutor]: And after you received
[information that Valera-Castillo was looking
for you], did you call the Defendant?

[J.G.]: Yes . . . .

20
 [Prosecutor]: How many times did you call
him?

[J.G.]: I don’t remember, but after I saw the
message I responded with a phone call.

[Prosecutor]: Did you talk to the Defendant?

[J.G.]: Yes, I was afraid of what he could do. I
wanted to tell him that I didn’t want to call the
police, he practically forced me to call the
police. . . . [H]e wanted to reach an agreement
where we would exchange money. But I didn’t
accept.

Valera-Castillo’s attorney objected on hearsay grounds, but the trial

court allowed the testimony. The exchange continued:

[Prosecutor]: I’m sorry, can you restate that?

[J.G.]: Yes. He asked me if I could withdraw
the accusation and reach an agreement; that if
I did, he could give me . . . money, a car, an
. . . apartment so I could bring my children.
But I told him that I didn’t want any of that. I
was sorry, but I couldn’t do that.

[Prosecutor]: [J.G.], have you shared that
information with me . . . or the investigator
before today?

[J.G.]: No. I hadn’t shared the information. I
had only shared information . . . about the
constant messages that he sent telling me that
he had sent money to my mother and the code
to get that money. That was the information I
had shared.

21
 Defense counsel later cross-examined J.G. about her statements to

police suggesting that Valera-Castillo had initiated a post-incident

call.

¶ 31 Valera-Castillo’s counsel later moved for a mistrial,

challenging the trial court’s admission of J.G.’s testimony about

Valera-Castillo’s efforts to persuade J.G. to drop the charges. The

prosecutor responded that the trial court’s previous ruling on this

issue was based on “a lack of foundation as to whether the phone

call actually took place” — which was no longer at issue — and that

Valera-Castillo’s counsel had opened the door to the testimony.

Valera-Castillo’s attorney asserted that he could not have opened

the door to the testimony because he had not yet questioned J.G.

¶ 32 The trial court denied the motion, ruling that, while the

prosecutor should not have elicited the testimony on direct

examination when she had previously agreed not to, the People

would have been able to ask about the content of the phone call on

redirect examination because of “the way this case has been

defended . . . the door would have been opened.”

B. Preservation and Standard of Review

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¶ 33 We conduct a two-step analysis when reviewing a claim of

prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096

(Colo. 2010). First, we determine whether the prosecutor’s conduct

was improper based on the totality of the circumstances. Id.

Second, we determine whether the conduct warrants reversal under

the appropriate standard of review. Id.

¶ 34 Whether a prosecutor committed misconduct is an issue

within the trial court’s discretion. People v. Strock, 252 P.3d 1148,

1152 (Colo. App. 2010). We will not disturb the court’s ruling

absent an abuse of discretion “resulting in prejudice and a denial of

justice.” Id. Under this standard, we ask not “whether we would

have reached a different result but, rather, whether the trial court’s

decision fell within a range of reasonable options.” People v. Rhea,

2014 COA 60, ¶ 58 (citation omitted). We also review evidentiary

rulings for an abuse of discretion. Davis v. People, 2013 CO 57, ¶

13. A court abuses its discretion when its decision is manifestly

unreasonable, arbitrary, or unfair. Id.

¶ 35 The parties agree that Valera-Castillo did not preserve his

argument that the prosecutor failed to correct J.G.’s allegedly false

testimony. However, the parties dispute whether Valera-Castillo

23
 preserved his argument that the prosecutor committed misconduct

by improperly eliciting evidence barred by CRE 404(b). Specifically,

the People assert that Valera-Castillo’s counsel initially objected to

J.G.’s testimony on hearsay grounds and, in supplementing the

record later that day, did not sufficiently alert the trial court to the

issues now raised on appeal.

¶ 36 “Parties must make objections that are specific enough to

draw the trial court’s attention to the asserted error,” but we do not

require talismanic language for preservation. Martinez, ¶ 14. While

defense counsel’s initial objection asserted hearsay, his later

argument referencing the pretrial hearing on his motion in limine

was sufficient to preserve the claim that the prosecutor committed

misconduct by eliciting J.G.’s testimony about the substance of the

February 23 phone call. Accordingly, we will review that claim

under the nonconstitutional harmless error standard: an error is

harmless when it did not substantially influence the verdict or

impair the fairness of the trial. Fletcher v. People, 179 P.3d 969,

976 (Colo. 2007). We will review the unpreserved claim of

prosecutorial misconduct for plain error and will reverse only if the

error was obvious, substantial and so undermines the fundamental

24
 fairness of the trial itself as to cast serious doubt on the reliability

of the judgment of conviction. People v. Rediger, 2018 CO 32, ¶48.

Only prosecutorial misconduct that is flagrantly, glaringly, or

tremendously improper warrants reversal. Wend, 235 P.3d at 1097.

C. J.G.’s Testimony About the February 23 Phone Call

¶ 37 Evidence of a defendant’s prior crimes or bad acts is generally

inadmissible to prove the defendant’s character to show that he

acted in conformity therewith on a particular occasion. CRE 404(b).

However, the evidence may be admissible for other purposes, such

as proof of motive, intent, plan, identity, or absence of mistake. Id.;

see also People v. Compos, 2019 COA 177, ¶ 29, aff’d in part and

vacated in part, 2021 CO 19.

¶ 38 Valera-Castillo asserts that the prosecutor knowingly elicited

testimony that he contacted J.G. and offered her money and other

assets to persuade her to drop the charges. He argues that this

was misconduct because the trial court ruled that any evidence that

he contacted her about dropping the charges was inadmissible

under CRE 404(b) and the prosecutor agreed not to present any

such evidence.

25
¶ 39 The trial court’s ruling on Valera-Castillo’s motion in limine is

not entirely clear. Nonetheless, even assuming — without deciding

— the trial court erred8 by not holding the prosecution to its

promise to avoid asking J.G. about the February 23 call and

whether Valera-Castillo asked her to drop the charges in exchange

for money and other assets, we conclude that any error was

harmless.

¶ 40 On the record before us, it is highly unlikely that J.G.’s

testimony about the February 23 phone call substantially

influenced the verdict or impaired the fairness of the trial. J.G.

testified at length about the assault, the prosecutor presented

photographs of her injuries, and the text messages Valera-Castillo

sent J.G. after the assault covered the same subject matter. The

8 Even if the prosecution broke its own promise by asking J.G.
about the substance of February 23 call, attempts to intimidate a
witness or convince a witness to drop charges are evidence of
consciousness of guilt not subject to CRE 404(b). See, e.g., People
v. Gee, 2015 COA 151, ¶ 26 (evidence of flight shows consciousness
of guilt from which guilt itself may be inferred); People v. Kyle, 111
P.3d 491, 499 (Colo. App. 2004) (“Evidence of a defendant’s
behavior, including threats against witnesses or nonwitnesses, may
be admissible to show that the defendant was conscious of guilt
and, by further inference, committed the crime charged.”), overruled
on other grounds by Zoll v. People, 2018 CO 70.

26
 prosecutor presented a text message Valera-Castillo sent on

February 23, 2015, that said, “[J.G.], I hope you’re okay. I don’t

know what to say. Hopefully we can talk. I’m sorry about what

happened,” and another on March 3 offering over $3,000 to J.G.’s

mother. That the jury acquitted Valera-Castillo of second degree

kidnapping indicates that the jury carefully weighed the evidence

presented at trial in reaching its verdict. See People v. Larsen, 2017

CO 29, ¶ 16 (reiterating that a split verdict is an indication that

prejudice did not affect the jury’s verdict); People v. Manyik, 2016

COA 42, ¶ 40 (“[T]he fact that the jury acquitted [the defendant] of

the most serious charge . . . indicates that the jurors based their

verdict on the evidence presented and were not swayed by the

prosecutor’s [misconduct].”).

¶ 41 Accordingly, we conclude that any misconduct by the

prosecutor in eliciting J.G.’s testimony about the February 23

phone call does not require reversal. See Fletcher, 179 P.3d at 976.

D. Failure to Correct Allegedly False Testimony

¶ 42 “It is fundamental that prosecutors may not present or allow

perjured testimony.” People v. Medina, 260 P.3d 42, 48 (Colo. App.

2010). To establish a prosecutor’s subornation of perjury, the

27
 defendant must show that (1) the prosecutor’s case included

perjured testimony; (2) the prosecutor knew or should have known

of the perjury; and (3) the perjury was material. Id. Perjury is

material if there is any reasonable likelihood that the false

statements could have affected the jury’s judgment. Id.

¶ 43 Valera-Castillo argues that, after testifying about the February

23 phone call, J.G. falsely testified that she had not shared some of

that information with investigators. Valera-Castillo bases this claim

on the fact that, in the report of her previous statements to police,

J.G. claimed he initiated the call asking her to drop the charges in

exchange for money and a car title. He also relies on the

prosecutor’s pretrial statements indicating that J.G. informed the

People about the phone call and his threatening statements.

¶ 44 However, a mere inconsistency in a witness’s story is

insufficient to support the conclusion that the testimony was

perjured or that the prosecutor knowingly offered false testimony,

see People v. Schultheis, 638 P.2d 8, 11 (Colo. 1981); Gallegos v.

People, 116 Colo. 129, 132, 179 P.2d 272, 273 (1947) (holding that

an assistant district attorney did not commit misconduct by

eliciting testimony at trial that was contrary to a written statement

28
 the witness provided to police because “[t]he mere fact that sworn

testimony may differ from extrajudicial statements does not

constitute perjury”), and Valera-Castillo has not conclusively

demonstrated that J.G.’s trial testimony was false or that the

prosecutor knew it to be false.

¶ 45 Before trial, J.G. told Investigator Brian Makloski of the First

Judicial District Attorney’s Office that “[Valera-Castillo] then called

her and asked her to drop the charges saying she would have a

huge problem if she didn’t.” Separately, J.G. told Agent Louis

Tomasetti of the Lakewood Police Department that Valera-Castillo

had “twice called her and once texted . . . on February 23, 2015

[and] . . . said the text offered her money and a clear car title in

exchange for dropping the charges against him.” At trial, J.G.

testified that Valera-Castillo wanted to reach an agreement and

offered her money, a car, and an apartment to drop the charges, not

that he threatened her. The prosecutor asked if she had “shared

that information with me . . . or the investigator before today?”

(emphasis added), and J.G. responded that she had not.

29
¶ 46 While the exchange between J.G. and the prosecutor may have

been imprecise,9 the record supports the assertion that, before trial,

she had only directly informed the Lakewood police — not the

People or their investigator — about Valera-Castillo’s offers. But to

the extent her trial testimony was inconsistent with her prior

statements, this fact alone is not enough to demonstrate that her

trial testimony was false or that the prosecutor knew it was false

and did not require the court to act sua sponte. See Wend, 235

P.3d at 1097.

¶ 47 Accordingly, we conclude that the prosecutor did not commit

misconduct by allowing J.G. to testify regarding what she had told

the prosecution and investigator about the February 23, 2015,

phone call with Valera-Castillo. See Schultheis, 638 P.2d at 11;

Gallegos, 116 Colo. at 132, 179 P.2d at 273.

IV. Merger

¶ 48 Lastly, Valera-Castillo argues that one of his convictions for

second degree assault (Count 4) and his third degree assault

conviction must merge. We disagree.

9 J.G. gave her pretrial statements and trial testimony through an
interpreter.

30
 A. Preservation, Standard of Review, and Applicable Law

¶ 49 We review de novo whether convictions merge. People v.

Denhartog, 2019 COA 23, ¶ 73. We also review de novo a claim that

a conviction violates a defendant’s constitutional protection against

double jeopardy. People v. Arzabala, 2012 COA 99, ¶ 19.

¶ 50 The parties agree that Valera-Castillo did not preserve his

merger claim. We review unpreserved double jeopardy claims for

plain error. Reyna-Abarca v. People, 2017 CO 15, ¶ 47.

¶ 51 The Double Jeopardy Clause protects an accused from being

twice placed in jeopardy for the same crime. Double jeopardy rights

are violated when, as relevant here, a defendant is convicted of a

greater offense and a lesser included offense. See id. at ¶¶ 42, 81.

One “offense is a lesser included offense of another offense if the

elements of the lesser offense are a subset of the elements of the

greater offense, such that the lesser offense contains only elements

that are also included in the elements of the greater offense.” Id. at

¶ 3; see also § 18-1-408(5)(a), C.R.S. 2020.

¶ 52 Third degree assault merges with second degree assault where

only a single act constituting one crime occurred. See People v.

Howard, 89 P.3d 441, 447 (Colo. App. 2003) (vacating conviction

31
 and sentence for third degree assault where defendant bit victim

because it merged into second degree assault conviction for the

same action). However, separate convictions do not violate double

jeopardy if the evidence shows distinct and separate offenses.

Quintano v. People, 105 P.3d 585, 591 (Colo. 2005); see also Patton

v. People, 35 P.3d 124, 131 (Colo. 2001) (double jeopardy is not

implicated when two offenses are based on separate conduct).

¶ 53 We look “to all the evidence introduced at trial to determine

whether the evidence on which the jury relied for conviction was

sufficient to support distinct and separate offenses.” People v.

Mintz, 165 P.3d 829, 834 (Colo. App. 2007) (quoting Quintano, 105

P.3d at 592). Factors relevant to whether the conduct constituted

factually distinct offenses include “the time and location of the

events, the defendant’s intent, and whether the People presented

the acts as legally separable,” People v. Wagner, 2018 COA 68, ¶ 13,

as well as whether the acts “were the product of new volitional

departures, or were separated by intervening events,” Woellhaf v.

People, 105 P.3d 209, 219 (Colo. 2005).

B. Analysis

32
¶ 54 Valera-Castillo argues that his third degree assault conviction

should merge with one of his second degree assault convictions

(Count 4) because they were based on the same act of

strangulation. However, at trial, the People presented evidence that

Valera-Castillo committed two separate assaults when he repeatedly

struck J.G.’s face (supporting the third degree assault), and later

choked her (supporting the Count 4 second degree assault

conviction). J.G. testified that Valera-Castillo dragged her into his

bedroom and struck her repeatedly. She begged him to stop, but he

then threw her onto the bed and threatened her with a belt. Later,

Valera-Castillo jumped on her, appeared to “realize[] what he had

done,” but continued attacking her. This pattern repeated for some

time before he strangled her.

¶ 55 Although these acts occurred in the same location and

somewhat close in time,10 they constituted separate acts based on a

new volitional departure by Valera-Castillo. J.G. told him to stop

attacking her, and according to her testimony, he appeared as if he

10J.G. testified that the incident went on for a very long period of
time, but it is unclear from her testimony how much time elapsed
between his first strike to her face and the strangling.

33
 might stop before he decided to strangle her. See Quintano, 105

P.3d at 591-92 (holding that separate offenses occurred where the

defendant “persisted after the victim admonished him to stop

several times”).

¶ 56 Accordingly, because the evidence supports two separate

crimes, we conclude that Valera-Castillo’s second and third degree

assault convictions do not merge. See People v. Muckle, 107 P.3d

380, 382-83 (Colo. 2005) (upholding the defendant’s first degree

assault and attempted first degree murder convictions where first

bullet hit victim in the abdomen and second bullet hit victim in the

back of his arm while he was moving away from the defendant); see

also Qureshi v. Dist. Ct., 727 P.2d 45, 47 (Colo. 1986) (upholding

imposition of consecutive sentences for first degree assault and

manslaughter convictions where defendant first stabbed victim in

abdomen and, after victim had fled, subsequently pursued her and

raised the knife against her throat or heart).

V. Conclusion

¶ 57 The judgment is affirmed.

JUDGE HARRIS and JUDGE GROVE concur.

34