Peo v. Muniz

22CA1893 Peo v Muniz 10-22-2026 COLORADO COURT OF APPEALS Court of Appeals No. 22CA1893 Mesa County District Court No. 15CR770 Honorable Valerie J. Robison, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Gabriel Muniz, Defendant-Appellant. JUDGMENT AFFIRMED, ORDER REVERSED, AND CASE REMANDED WITH DIRECTIONS Division VII Opinion by JUDGE PAWAR Brown and Moultrie, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 22, 2026 Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Robert P. Borquez, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Gabriel Muniz, appeals his convictions and sentence for numerous sexual assault on a child (SAOC) convictions, as well as several habitual criminal counts. We affirm his SAOC convictions but reverse the trial court’s proportionality review order and remand the case with directions to conduct a new extended proportionality review. I. Background ¶2 Muniz repeatedly sexually assaulted the twelve-year-old victim, with whom he lived, over a period of months. The assaults came to light when the victim’s aunt walked in on Muniz and the victim during one of the assaults. ¶3 Shortly thereafter, Muniz was interviewed by police for approximately two hours at the police station. During the second half of the interview, Muniz confessed that he had been having sex with the victim for several months. ¶4 The prosecution charged Muniz with four counts of SAOC — pattern of abuse and sought habitual sentences for each of the four counts. At trial, the prosecution’s evidence included Muniz’s confession during the interview. The jury found Muniz guilty of the 1  SAOC counts, and the trial court found him guilty of being a habitual criminal and imposed four habitual sentences. ¶5 Muniz directly appealed. A division of this court reversed, holding that his confession was involuntary and therefore inadmissible. People v. Muniz, slip op. at 1 (Colo. App. No. 17CA2031, Mar. 25, 2021) (not published pursuant to C.A.R. 35(e)) (Muniz I). The division held that although the two-hour interview was initially voluntary, halfway through the interview the questioning became coercive, and Muniz’s confession was the product of this coercion. Id. at 6-7. Muniz’s convictions were reversed and the case was remanded for retrial. ¶6 At retrial on the same charges, the trial court admitted parts of the interview that occurred before the coerced confession. The jury again found Muniz guilty of the SAOC counts. And the court again found him guilty of being a habitual criminal, imposing four consecutive sentences of forty-eight years to life for each of the SAOC counts, resulting in an aggregate sentence of 192 years to life. ¶7 At Muniz’s request, the court reviewed his sentence for proportionality. In the abbreviated review, the court determined 2  that there was an inference of gross disproportionality. But in the extended review, the court determined that Muniz’s sentence was constitutional. ¶8 Muniz appeals. He argues that the court erred at retrial by (1) admitting pre-confession parts of the interview; (2) allowing the prosecutor to engage in misconduct during voir dire; and (3) determining that Muniz’s sentence was constitutionally proportional. ¶9 We disagree with Muniz’s first two arguments. But we are unable to resolve Muniz’s challenge to the proportionality determination on the record before us. We therefore remand the case to the trial court with directions to conduct a new extended proportionality review. II. Admission of Parts of Muniz’s Interview ¶ 10 Muniz argues that admitting pre-confession parts of his interview violated the holding in Muniz I. We review de novo whether the trial court admitted evidence in violation of the law of the case. Hardesty v. Pino, 222 P.3d 336, 339 (Colo. App. 2009). ¶ 11 Trial courts must follow appellate rulings in subsequent proceedings. Id. at 340. Although Muniz argues that the trial court 3  admitted portions of the interview in violation of that rule here, he does not identify which parts of the redacted interview violated Muniz I, let alone explain why. As far as we can tell, Muniz seems to argue that admitting any part of the interview violated Muniz I. But Muniz I did not go so far. ¶ 12 The Muniz I division held that Muniz’s confession was involuntary and erroneously admitted at the first trial. Muniz I, No. 17CA2031, slip op. at 6-7. The confession came during the latter half of the interview. And the division noted that earlier in the interview, detectives repeatedly told Muniz he was free to leave and not under arrest, and Muniz acknowledged that he knew he was there voluntarily. Id. at 2, 4. Put simply, the division did not hold that the entirety of the interview was inadmissible. We therefore reject Muniz’s argument that admitting any part of the interview violated the law of the case. ¶ 13 To the extent that Muniz attempts to advance a narrower argument that Muniz I deemed some, but not all, of the pre- confession parts of the interview inadmissible, he does not identify in his opening brief which parts were inadmissible. We therefore 4  reject this argument as undeveloped and do not address it. See People v. Stone, 2021 COA 104, ¶ 52. III. Alleged Prosecutorial Misconduct During Voir Dire ¶ 14 Muniz argues that the trial court erred by allowing the prosecutor to use an improper analogy to illustrate the concept of proof beyond a reasonable doubt during voir dire. We conclude the prosecutor’s comments were not improper. See Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010) (explaining that the first step in reviewing a claim of prosecutorial misconduct is determining whether the conduct was improper under the totality of the circumstances). ¶ 15 Muniz argues that the prosecutor’s comments were improper because they were very similar to the improper reasonable doubt instruction in Tibbels v. People, 2022 CO 1. But the comments here were a far cry from the Tibbels instruction. ¶ 16 In Tibbels, the trial court attempted to ground the abstract concept of reasonable doubt in a real-world scenario. The court likened reasonable doubt to the hesitation a prospective home buyer would have upon discovering a structurally significant floor- to-ceiling crack in the foundation of a home they were interested in 5  buying. Id. at ¶ 12. Our supreme court held that this analogy articulated too high a threshold for what constitutes reasonable doubt, thereby lowering the prosecution’s burden of proof. Id. at ¶ 51. In other words, the instruction was improper because it incorrectly defined reasonable doubt. ¶ 17 In contrast, the prosecutor’s comments here did not attempt to define reasonable doubt or precisely identify when a doubt is reasonable. Instead, the prosecutor merely pointed out that “beyond a reasonable doubt” meant something different than “beyond all doubt.” ¶ 18 The prosecutor had an initial conversation with a juror, Ms. R, about that juror’s decision to buy or sell several homes. The prosecutor then referred back to that conversation in discussing the difference between “beyond a reasonable doubt” and “beyond all doubt” with other jurors: Prosecutor: Mr. [B], what does proof beyond a reasonable doubt mean? Mr. B: That there is without a doubt in the jurors’ mind that the client is guilty of the crime that he’s accused of. Prosecutor: Okay. Without a doubt, is that correct, Mr. [B]? 6 Mr. B: Beyond a reasonable doubt. Prosecutor: Beyond a reasonable doubt. Who sees those two as being the same thing? That without a doubt and beyond a reasonable doubt mean the same thing . . . . Mr. [B] . . . [d]o those two things still mean the same thing to you, beyond all doubt and beyond a reasonable doubt, or do you see a distinction? Mr. [B]: I didn’t say they meant the same thing. Prosecutor: Okay. What do you think? Mr. [B]: To me, a reasonable doubt — beyond a reasonable doubt means that you guys have gone above and beyond to prove that he’s guilty of the crime, by the judge’s definition of that crime. Prosecutor: Ms. [T], were you able to hear me [and Ms. R] as she was chatting about the major life decision I asked her about, the home sale when she said as they reflect back, maybe we should have gone to an HOA meeting? Ms. [T]: Yeah. Prosecutor: Would you say Ms. [R] made her decision beyond all doubt? [Defense counsel objects, objection is overruled] Prosecutor: So Ms. [T], my question to you is, as you hear Ms. [R] answering that question, would you say that she had decided that beyond all doubt, or beyond a reasonable doubt? 7  Ms. [T]: Beyond a reasonable doubt. Prosecutor: Okay. I think that distinction can sometimes become important. ¶ 19 As this record shows, the prosecutor used the example of Ms. R’s experience buying a home to distinguish between the absence of reasonable doubt and the absence of all doubt, not to precisely define reasonable doubt, as in the Tibbels instruction. To the extent that the prosecutor’s comments might have come close to defining reasonable doubt, they did not do so clearly. See People v. Samson, 2012 COA 167, ¶ 30 (“[B]ecause arguments delivered in the heat of trial are not always perfectly scripted, reviewing courts accord prosecutors the benefit of the doubt when their remarks are ambiguous or simply inartful.”). We therefore disagree with Muniz’s argument that the prosecutor’s comments were improper under Tibbels. IV. Proportionality Review ¶ 20 Finally, Muniz challenges the trial court’s extended proportionality review on two separate grounds. First, he argues that the court used an incorrect legal standard in conducting the review. Second, he argues that regardless of whether the court 8  applied the correct legal standard, it erred by ultimately concluding that his sentence was constitutional. ¶ 21 We conclude that invited error precludes our review of the first alleged error and that deficiencies in the record prevent us from reviewing the second. A. Legal Framework ¶ 22 We review a trial court’s ruling on the proportionality of a sentence de novo. Wells-Yates v. People, 2019 CO 90M, ¶ 35. ¶ 23 Proportionality reviews begin with an abbreviated review in which the court considers the gravity or seriousness of the offense and the harshness of the penalty to determine whether there is an inference of gross disproportionality between crime and punishment. Id. at ¶¶ 11, 15. For a habitual criminal sentence, courts consider the gravity and seriousness of a triggering and predicate offenses together in the abbreviated review. Id. at ¶ 23. And when there are multiple habitual sentences that combine to produce a larger aggregate sentence, courts consider the individual habitual sentences (single triggering offense plus the supporting predicate offenses) in isolation. Id. at ¶ 24. 9 ¶ 24 If the abbreviated review reveals no inference of gross disproportionality, the proportionality challenge fails and the sentence is upheld. Id. at ¶ 15. But if there is such an inference, courts proceed to an extended review, in which a court compares the sentence at issue to “(1) sentences for other crimes in the same jurisdiction and (2) sentences for the same crime in other jurisdictions.” Id. at ¶ 17. “Other jurisdictions” means other states, not other judicial districts or counties in the same state. See Solem v. Helm, 463 U.S. 277, 299 (1983). B. The Trial Court’s Ruling and Muniz’s Challenges ¶ 25 The trial court conducted an abbreviated review of each of Muniz’s forty-eight-years-to-life sentences and determined that each gave rise to an inference of gross disproportionality.1 It explained 1 The Attorney General contends that the trial court found no inference of gross disproportionality in its abbreviated review even though it went on to conduct an extended review. We recognize that in the abbreviated review the court found that the punishment was not “excessive.” But by concluding that an extended proportionality review was necessary “based on the instructions in Wells-Yates,” the court necessarily found an inference of gross disproportionality between Muniz’s offenses and punishment. Ultimately, this discrepancy in interpreting the trial court’s ruling does not matter because our review is de novo. Wells-Yates v. People, 2019 CO 90M, ¶ 35. 10  that although the triggering offenses were grave and serious, two of the three predicate offenses for each habitual sentence were not (the prosecution used the same three predicate offenses to support each triggering offense). ¶ 26 The court therefore conducted an extended review. But the court never made the comparisons required by Wells-Yates — the court never compared Muniz’s sentences to those imposed for the same offense outside Colorado. This is because Muniz argued that “other jurisdictions” meant other jurisdictions in Colorado. And Muniz and the prosecution provided the court with comparative sentences only from within Colorado. Based on these comparisons, the court determined that each of the habitual sentences was proportional and therefore constitutional. ¶ 27 Muniz first argues that the court erred by failing to compare his sentence to those for the same offense in non-Colorado jurisdictions. But he concedes that he invited this error. We agree and therefore do not address this issue. See People v. Rediger, 2018 CO 32, ¶ 34 (“The doctrine of invited error prevents a party from complaining on appeal of an error that he or she has invited or 11  injected into the case; the party must abide the consequences of his or her acts.”). ¶ 28 Muniz next challenges the court’s ultimate proportionality ruling. Although the doctrine of invited error does not preclude our review of this issue, the particular error that Muniz invited means that the record does not contain the interstate comparison data we need to review the extended proportionality determination. We therefore must remand the case to the trial court with directions to conduct an extended proportionality review in accordance with Wells-Yates, which requires comparing Muniz’s sentence to those for (1) the same offense in other states and (2) different offenses in Colorado. ¶ 29 The Attorney General urges us to affirm without a remand by holding that the abbreviated review revealed no inference of gross disproportionality, thereby obviating the need for any extended review. We are not persuaded. ¶ 30 There is no question that each of Muniz’s triggering offenses was grave and serious. Muniz’s three predicate offenses were criminal impersonation based on giving an officer false identifying information, first degree criminal trespass based on taking a stereo 12  system from a vehicle, and contributing to the delinquency of a minor based on inducing a child to consume alcohol by dropping it off for them at a park and allowing them to consume it. The Attorney General does not dispute that the legislature has amended the statutes proscribing all three offenses such that if Muniz had committed them today, they would all be misdemeanors, not felonies. See § 18-4-502(1)(b), (2)(b), C.R.S. 2026 (first degree criminal trespass for entering a motor vehicle with intent to commit a crime therein is a class 1 misdemeanor); § 18-5-113(1)(b)(III), (2)(c), C.R.S. 2026 (criminal impersonation for assuming a false or fictitious identity is a class 2 misdemeanor); § 18-6-701(1)(b), (2)(b), C.R.S. 2026 (inducing a child to violate any non-felony law is a class 1 misdemeanor); Ch. 462, secs. 211, 233, 261, §§ 18-4-502, 18-5-113, 18-6-701, 2021 Colo. Sess. Laws 3178, 3182-83, 3192. ¶ 31 This means that had Muniz committed his predicate and triggering offenses under the current statutory scheme, he would not even be eligible for habitual criminal sentencing and could have received a maximum sentence of only sixteen years to life for each of the SAOC counts. That he received forty-eight years to life for each SAOC count raises at least an inference of gross 13  disproportionality. See Wells-Yates, ¶ 45 (when assessing the gravity and seriousness of offenses, courts should consider relevant legislative amendments enacted after the date of the offense even if the amendments are not retroactive). We therefore decline the Attorney General’s invitation to short-circuit the remand by resolving proportionality at the abbreviated review stage. V. Disposition ¶ 32 Muniz’s convictions are affirmed. The order rejecting his proportionality challenge to his sentence is reversed, and the case is remanded to the trial court with directions to conduct a new extended proportionality review in accordance with Wells-Yates. JUDGE BROWN and JUDGE MOULTRIE concur. 14