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People v. Valera-Castillo.

2021 COA 91. No. 16CA0049.  Fourteenth Amendment—Equal Protection—Juries—Batson Challenge.

July 8, 2021

Defendant was charged with several crimes stemming from his physical altercation with his ex-girlfriend J.G. After the parties exhausted their peremptory challenges, the trial court released the dismissed jurors. Defendant’s counsel objected to the prosecutor’s challenge to Juror M, and the trial court responded that the objection was too late. A jury convicted defendant of two counts of second degree assault, three counts of menacing with a deadly weapon, and third degree assault.

On appeal, defendant argued that he timely objected to the prosecutor’s removal of Juror M and the trial court failed to conduct a proper three-step inquiry under Batson v. Kentucky, 476 U.S. 79 (1986). However, a Batson challenge must be raised while the peremptorily challenged prospective jurors remain available to be reseated to allow the court to afford a meaningful remedy for a Batson violation. Because defendant’s challenge was untimely, the Court of Appeals did not reach the merits of his argument.

Defendant next argued 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. Here, the prosecution elicited evidence about a phone call between J.G. and defendant in which defendant offered to pay J.G. if she dropped the charges against him. Assuming the prosecution erred by eliciting this evidence in violation of the court’s order precluding it, any error was harmless based on the overwhelming evidence against defendant. Further, defendant failed to show that testimony J.G. presented about what she had told the prosecution and the investigator was false or that the prosecutor knew it was false, so the prosecutor did not commit misconduct by allowing J.G. to present this testimony. Accordingly, the prosecution did not commit misconduct.

Lastly, defendant argued that one of his convictions for second degree assault and his third degree assault conviction must merge because they were based on the same act of strangulation. However, the evidence shows that defendant committed two separate acts of assault, so these convictions do not merge.

The judgment was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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