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April 9, 2026 Get Citation Alerts Download PDF Add Note

Peo v. Zuniga

Colorado Court of Appeals

• Citations: None known
• Docket Number: 22CA0760

• Precedential Status: Non-Precedential

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Combined Opinion

22CA0760 Peo v Zuniga 04-09-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0760
Jefferson County District Court No. 20CR3724
Honorable Randall C. Arp, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Sonny Ray Zuniga,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE J. JONES
Lum and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 9, 2026

Philip J. Weiser, Attorney General, Grant R. Fevurly, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Sonny Ray Zuniga, appeals the district court’s

judgment of conviction entered on a jury verdict finding him guilty

of sexual assault of a child by one in a position of trust (pattern of

abuse) and aggravated incest. He also appeals the court’s sexually

violent predator (SVP) designation. We conclude that the court

incorrectly designated Zuniga an SVP. We therefore vacate that

portion of the sentence and remand for correction of the mittimus.

In all other respects, we affirm.

I. Background

¶2 A.Z., the victim in this case, is Zuniga’s daughter. A.Z. didn’t

have much contact with Zuniga during the first few years of her life

because he was either incarcerated or living in a halfway house.

But after his release, Zuniga fought for — and won — custody of

A.Z. and her brother. A.Z., her brother, and her stepsister lived

with Zuniga and A.Z.’s stepmother in a house in Lakewood,

Colorado.

¶3 A.Z. later testified that, before Zuniga had full custody of her,

he began sexually abusing her when she was five or six years old.

Zuniga would call A.Z. into his bedroom in the Lakewood house and

lock the door. Zuniga and A.Z. would then lie on the bed, and

1
Zuniga would pull down A.Z.’s pants and underwear. He would

then wet his fingers and touch A.Z.’s “private parts.” A few times,

Zuniga made A.Z. touch his “private parts.” Zuniga told A.Z. not to

tell anyone about the interactions. These incidents stopped once

A.Z. told Zuniga that she didn’t want to go into the room with him.

¶4 A few years after the abuse ended, Zuniga left the Lakewood

house.1 A.Z. and her siblings remained at the Lakewood house and

were cared for by her stepmother. But after her stepmother died in

2019, A.Z. went to live with her aunt — C.M. — and C.M.’s children,

including C.M.’s stepdaughter, R.S. Soon after moving in, A.Z. told

R.S. that Zuniga had sexually assaulted her. A.Z. told R.S. not to

tell anybody.2

1 Zuniga left because he was convicted in 2017 of sexual assault on

a child by a person in a position of trust and subsequently
incarcerated; A.Z.’s stepsister was the victim. The jurors in this
case didn’t learn about this previous conviction, but they did learn
that A.Z. participated in a 2017 forensic interview. The interview
related to the 2017 conviction. During that interview, A.Z. said that
Zuniga never touched her inappropriately. However, A.Z. testified
in this case that she lied during that interview because Zuniga had
told her to. We refer to this forensic interview as the “2017 forensic
interview.”
2 It wasn’t until 2021 that R.S. told the social services investigator

that she knew about the assaults.

2
¶5 In 2020, A.Z. told C.M. at a backyard gathering that Zuniga

had sexually assaulted her. C.M. notified social services. A.Z. then

participated in a forensic interview in which she described Zuniga’s

sexual assaults in detail.3

¶6 Zuniga was charged with sexual assault on a child by one in a

position of trust (pattern of abuse) and aggravated incest of A.Z. A

jury found Zuniga guilty as charged. The district court sentenced

Zuniga to eighteen years to life in the custody of the Department of

Corrections. The court also designated Zuniga an SVP.

II. Discussion

¶7 Zuniga contends that (1) the district court erred by admitting

unreliable child hearsay; (2) the prosecutor committed misconduct

by stating her personal opinion and denigrating the defense; (3) the

district court erred by admitting irrelevant and prejudicial evidence

of A.Z.’s behavioral disposition; and (4) the district court erred by

3 We refer to this forensic interview as the “2020 forensic interview.”

3
designating him an SVP. We reject Zuniga’s first three contentions

but agree with his fourth.4

A. Child Hearsay

¶8 Zuniga first contends that the district court abused its

discretion by admitting C.M.’s testimony about statements A.Z. had

made to C.M. about the assaults because those statements were

unreliable. We disagree.

1. Additional Background

¶9 At a pretrial hearing, C.M. testified about statements A.Z.

made to her regarding Zuniga’s sexual assaults. C.M. said that

after A.Z.’s stepmother died, A.Z. lived with C.M. That’s when C.M.

noticed that A.Z. was displaying worrisome behavior, such as not

leaving her room and always wearing baggy clothes. C.M. initially

thought this behavior was a result of A.Z. losing both her mother

and stepmother. But, because of Zuniga’s previous sexual assault

4 Zuniga’s summary of the argument consists of nothing more than

conclusory assertions of error: It doesn’t contain clear statements of
the arguments that articulate the major points of reasoning as to
each issue, as required by C.A.R. 28(a)(6). The People’s summary is
only marginally better. We admonish the parties to comply with all
provisions of C.A.R. 28 when filing briefs with this court.

4
conviction, she became concerned that Zuniga might have sexually

assaulted A.Z.

¶ 10 C.M. and her sister decided to speak with A.Z. about her

behavior and voice their concerns. C.M. told A.Z. they were going to

C.M.’s sister’s house to visit. A.Z. was unaware of the purpose of

the visit.

¶ 11 When C.M. and A.Z. arrived at the house, A.Z. sat in the

backyard with C.M., C.M.’s sister, and R.S. C.M.’s sister told A.Z.

that she had been sexually assaulted as a child and had shown the

same behavior that A.Z. was exhibiting. She asked A.Z. to tell them

if anything had happened to her. A.Z. then said, “Yes,” and began

to cry. C.M.’s sister asked, “Who?” and A.Z. responded, “My uncle

from my mom’s side and my dad.” The sisters asked A.Z. more

questions about the assaults, including how often they had

occurred and where they had occurred. C.M. also asked A.Z. if

Zuniga had forced her to “put her mouth near [Zuniga’s] privates?”

and A.Z. nodded her head. C.M. testified that she asked this

question because that was how Zuniga had assaulted A.Z.’s

stepsister.

5
¶ 12 The prosecution sought to admit A.Z.’s statements to C.M. at

trial under the child hearsay statute, section 13-25-129, C.R.S.

1. Following the hearing on the motion, at which C.M. gave the

foregoing testimony, the court found that A.Z.’s general outcry to

her aunts was admissible under the statute. But the court also

found that some of C.M.’s specific questions about the assaults

were leading, and therefore those questions and A.Z.’s answers to

them weren’t admissible.

¶ 13 At trial, C.M. testified that A.Z. told her, her sister, and R.S.

that her father had “touched” her “private parts” (or “down there”)

and had done so “often.” During the conversation, A.Z. was crying

and had trouble getting the words out.

1. Standard of Review and Applicable Law

¶ 14 We review a trial court’s evidentiary decisions for an abuse of

discretion. People v. Phillips, 2012 COA 176, ¶ 63. A court abuses

its discretion when its decision “is manifestly arbitrary,

unreasonable, unfair, or is based on a misunderstanding or

misapplication of the law.” People v. Thompson, 2017 COA 56, ¶ 91.

¶ 15 “‘Hearsay’ is a statement other than one made by the

declarant while testifying at the trial or hearing, offered in evidence

6
to prove the truth of the matter asserted.” CRE 801(c). Hearsay is

generally inadmissible at trial “except[, as relevant in this case,] as

provided . . . by any statutes of the State of Colorado.” CRE 802.

One such statute is the child hearsay statute, under which “[a]n

out-of-court statement made by a child . . . that [is] the subject of

the action, describing all or part of an offense of unlawful sexual

behavior” is admissible even if it would otherwise be considered

hearsay. § 13-25-129(2).

¶ 16 But a child’s hearsay statement can be admitted under the

statute only if the district court finds after “a pretrial hearing

conducted outside the presence of the jury that the time, content,

and circumstances of the statement provide sufficient safeguards of

reliability.” § 13-25-129(5)(a).

¶ 17 In People v. District Court, 776 P.2d 1083 (Colo. 1989), the

Colorado Supreme Court set forth eight factors that a court should

consider when determining the reliability of a child’s hearsay

statement under the statute:

(1) Whether the statement was made
spontaneously;

7
(2) whether the statement was made while the
child was still upset or in pain from the alleged
abuse;

(3) whether the language of the statement was
likely to have been used by a child the age of
the declarant;

(4) whether the allegation was made in
response to a leading question;

(5) whether either the child or the hearsay
witness had any bias against the defendant or
any motive for lying;

(6) whether any other event occurred between
the time of the abuse and the time of the
statement which could account for the
contents of the statement;

(7) whether more than one person heard the
statement; and

(8) the general character of the child.

Id. at 1089-90. The district court “should make specific findings on

which factors establish reliability.” People v. Stackhouse, 2012 COA

202, ¶ 22, aff’d, 2015 CO 48. However, “[w]hile these factors

provide guidance and direction, the absence of one or more factor[s]

does not bar a court from admitting a statement.” Thompson, ¶ 145

(citing Dist. Ct., 776 P.2d at 1090); see also People v. Trujillo, 923

P.2d 277, 282 (Colo. App. 1996) (The factors “should not be used to

foreclose admissibility on the basis that a factor has not been

8
satisfied.”). Thus, we will affirm a district court’s decision to admit

a child’s hearsay statement “if the record shows an adequate factual

basis to support the court’s determination.” Stackhouse, ¶ 22.

1. Analysis

¶ 18 At the pretrial hearing, the district court applied the factors

set forth in People v. District Court, 776 P.2d at 1089-90. In

considering those factors, the court found that A.Z.’s statements

weren’t spontaneous; she wasn’t still in pain from the abuse that

occurred years before; and C.M. and C.M.’s sister asked some

leading questions regarding sexual assault, all of which weighed

against the statements’ admissibility. But the court also found that

A.Z. didn’t have any motive to lie about the assaults; many people

heard the statements; the events in A.Z.’s life that occurred in

between the assaults and the outcry didn’t suggest that A.Z. would

lie; and A.Z. was generally of good character, all of which favored

the statements’ admissibility. The court also didn’t think that the

child-appropriate-language factor was applicable, as there aren’t

“distinct difference[s] in language used by a 14 or 15-year-old

versus that of an 18 or 19-year-old adult.”

9
¶ 19 Zuniga argues that A.Z.’s statements to her aunts failed to

satisfy the factors set forth in People v. District Court. He recites

several of the factors and argues why, he believes, A.Z.’s statements

didn’t meet them. But, as previously mentioned, a statement

doesn’t need to satisfy each factor to be admissible. Trujillo, 923

P.2d at 282. So long as there is record support for the statement’s

reliability, we won’t overturn the district court’s ruling.

¶ 20 And in this case, there is record support for the district court’s

finding that A.Z.’s statements were reliable. Though, as Zuniga

argues, the backyard encounter was preplanned by A.Z.’s aunts,

A.Z. didn’t know about the plan. And though her aunts asked A.Z.

if she had been sexually assaulted, A.Z. identified her father and

uncle as the perpetrators without prompting.

¶ 21 Zuniga also points to conflicts between statements from A.Z.’s

2017 and 2020 forensic interviews and suggests that these conflicts

made her statements at the backyard gathering unreliable. True, in

her 2017 forensic interview, A.Z. told the interviewer that Zuniga

had never touched her sexually. But A.Z. later said that she had

lied about Zuniga sexually assaulting her in her 2017 forensic

interview because Zuniga had told her to lie and that she was

10
worried about getting in trouble at home if she told the truth. And

her statements during the backyard gathering match those in her

2020 forensic interview, before which no one told her to lie.

¶ 22 Zuniga’s argument that A.Z. was biased against him is merely

speculative. There is no record support for the notion that A.Z. had

a motive to lie in her statements to her aunts. In fact, A.Z. testified

at trial that she still had good memories from when she lived with

her father. And the court saw nothing suggesting that lying about

the assaults would have benefited A.Z. in any way.5

¶ 23 Because there is record support for the district court’s finding

that A.Z.’s statements to C.M. were sufficiently reliable, the court

didn’t abuse its discretion by admitting them.

B. Prosecutorial Misconduct

¶ 24 Zuniga contends that the prosecutor committed misconduct

during rebuttal closing argument by expressing her personal belief

that A.Z. and R.S. were truthful and by “mischaracterizing the

5 It is also important to note that while the district court admitted

some of A.Z.’s statements from the backyard gathering, it didn’t
admit all of them. The court didn’t allow A.Z.’s answers to C.M.’s
questions about Zuniga’s specific sexual acts because it had
determined they were made in response to leading questions.

11
defense theory as a groundless conspiracy theory.” We disagree

with both contentions.

1. Additional Background

¶ 25 During closing argument, Zuniga’s attorney theorized that A.Z.

had lied about the assaults in her 2020 forensic interview so that

Zuniga wouldn’t gain custody of A.Z.’s younger sister. Referencing

the two forensic interviews, he asked the jury, “Do we believe the

[A.Z.] of 2017? [Or] [d]o we believe the [A.Z.] of 2020 and here?

They can’t both be right.”

¶ 26 In rebuttal closing, the prosecutor responded to defense

counsel’s question. She asked the jury,

What set of events and what set of
circumstances has to be true in order for the
defendant to be not guilty? If it didn’t actually
happen, if this is all an extraordinarily
elaborate, coordinated attempt to make this
man guilty of something he actually didn’t do,
consider this, what does [A.Z.] have to do?

The prosecutor then argued that A.Z. would’ve had to “make up a

very specific story.” She also said that if A.Z. wanted to lie to

prevent Zuniga from obtaining custody of A.Z.’s sister, she “could

have told something way more aggravated than she actually did.”

12
¶ 27 Defense counsel also theorized that R.S. also lied about

Zuniga’s sexual assaults. The prosecutor responded in her rebuttal

closing that “if [R.S.] [wa]s actually in on this, like, let’s hose Sonny

Zuniga conspiracy theory, why [don’t] [R.S.’s] imaginary details have

more heft to them than they actually do.”

¶ 28 Lastly, the prosecutor argued that if the assaults didn’t

happen, then A.Z. somehow knew exactly how to play the victim.

She asked the jury to use common sense when deciding whether

A.Z. created “quite literally the world’s most malicious lie.”

¶ 29 Zuniga’s counsel didn’t object to any of the prosecutor’s

statements.

1. Applicable Law and Standard of Review

¶ 30 A prosecutor has wide latitude when making arguments based

on facts supported by evidence and reasonable inferences that may

be drawn from those facts. People v. Ray, 2025 CO 42M, ¶ 129;

People v. Strock, 252 P.3d 1148, 1153 (Colo. App. 2010), overruled

on other grounds by, People v. Kennedy, 2025 CO 63. But “a

prosecutor, while free to strike hard blows, is not at liberty to strike

foul ones.” Domingo-Gomez v. People, 125 P.3d 1043, 1048 (Colo.

2005) (quoting Wilson v. People, 743 P.2d 415, 418 (Colo. 1987)).

13
¶ 31 We use a two-step analysis to review claims of prosecutorial

misconduct. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010).

First, we look at whether the statement “was improper based on the

totality of the circumstances.” Id. Second, if a statement was

improper, we determine whether it warrants reversal under the

proper standard of review. Id. In this case, because defense

counsel didn’t object to any of the statements, that standard is

plain error. Id. at 1097. We reverse under plain error review only if

the error was obvious and so undermined the fundamental fairness

of the trial as to cast serious doubt on the reliability of the

judgment of conviction. Hagos v. People, 2012 CO 63, ¶ 14.

¶ 32 When determining whether a statement was improper, we

must evaluate the statement “in the context of the argument as a

whole and in light of the evidence before the jury.” Ray, ¶ 128

(quoting Strock, 252 P.3d at 1153).

¶ 33 A prosecutor can’t “communicate her opinion on the truth or

falsity of witness testimony during final argument.” Domingo-

Gomez, 125 P.3d at 1049. But a prosecutor “can argue to the jury

that they should not believe a witness.” Id. at 1050 (quoting State

v. Locklear, 241 S.E.2d 65, 70 (N.C. 1978)); see also People v.

14
Herold, 2024 COA 53, ¶¶ 86-89 (the prosecutor didn’t give a

personal opinion when commenting on evidence that cast doubt on

a witness’s version of events).

¶ 34 “A prosecutor may not state or imply that defense counsel has

presented the defendant’s case in bad faith or otherwise make

remarks for the purpose of denigrating defense counsel.” People v.

Iversen, 2013 COA 40, ¶ 37. But “a prosecutor has considerable

latitude in replying to opposing counsel’s argument.” Id. This

includes “comment[ing] on the lack of evidence confirming [a]

defendant’s theory of the case.” People v. Duncan, 2023 COA 122,

¶ 32 (quoting People v. Medina, 545 P.2d 702, 703 (Colo. 1976)).

1. Analysis

¶ 35 First, Zuniga argues that the prosecutor expressed her

personal opinion that A.Z. and R.S. were telling the truth. Not so.

Considering the statements in context, the prosecutor was

responding to defense counsel’s closing argument. Defense counsel

had emphasized that there were differences between A.Z.’s

statements during the 2017 and 2020 forensic interviews and

suggested (at least) that A.Z. lied in her 2020 interview. The

prosecutor then used her rebuttal closing to respond to that

15
argument and point out the weaknesses of Zuniga’s theory of

defense. See People v. Conyac, 2014 COA 8M, ¶¶ 137-139 (the

prosecutor’s comment that the victim must be “a fantastic liar”

wasn’t misconduct because the comment was a response to the

defense’s closing argument). And these comments were expressly

based on evidence that had been presented to the jury.

¶ 36 Second, Zuniga argues that the prosecutor denigrated the

defense when she said, “[T]his, like, let’s hose Sonny Zuniga

conspiracy theory.” While the propriety of this comment is a closer

call, we conclude that it doesn’t constitute misconduct. In the

context of the rebuttal closing, the comment referred to the

defense’s speculation that A.Z. fabricated the assault allegations so

that Zuniga couldn’t obtain custody of A.Z.’s younger sister. The

prosecutor was simply poking holes in the defense’s theory of the

case, using a colorful phrase to point out the lack of evidence

supporting it. See People v. Rodriguez, 2021 COA 38M, ¶ 31 (“[A]

prosecutor ‘may employ rhetorical devices and engage in oratorical

embellishment and metaphorical nuance.’” (quoting People v. Allee,

77 P.3d 831, 837 (Colo. App. 2003))).

16
C. Victim Impact Statement

¶ 37 Zuniga contends that the district court incorrectly admitted

irrelevant and prejudicial victim impact evidence of A.Z.’s changed

behavior after disclosing Zuniga’s sexual abuse to family members.

We disagree.

1. Additional Background

¶ 38 At trial, C.M. testified that she had seen positive changes in

A.Z.’s demeanor after A.Z. told her about the assaults. The

following exchange occurred between the prosecutor and C.M.:

[Prosecutor:] Since you and your family have
started to find out what transpired between
[A.Z.] and her father, has she changed at all?

[C.M.:] Yes.

[Prosecutor:] What do you mean by that?

[C.M.:] She’s a completely different little girl.
She’s outspoken. She talks. She dresses like
a normal teenager. She does normal teenage
things. She does really well in school. She
has more friends now.

[Prosecutor:] Okay.

[C.M.:] She’s happy.

Zuniga’s counsel didn’t object.

17
2. Standard of Review and Applicable Law

¶ 39 “Trial courts have broad discretion in determining the

admissibility of evidence based on its relevance, its probative value,

and its prejudicial impact.” People v. Elmarr, 2015 CO 53, ¶ 20. A

court abuses that discretion when “its ruling is ‘manifestly

arbitrary, unreasonable, or unfair,’” or when “it is based on an

erroneous view of the law.” Id. (quoting People v. Stewart, 55 P.3d

107, 122 (Colo. 2002)). We review unpreserved claims of

evidentiary error for plain error, People v. Snelling, 2022 COA 116M,

¶ 33, and we will reverse only if the error was obvious and so

undermined the fundamental fairness of the trial as to cast serious

doubt on the reliability of the judgment of conviction, Hagos, ¶ 14.

¶ 40 All relevant evidence is presumptively admissible, except as

otherwise provided by constitution, rule, or statute. CRE 402.

Evidence is relevant when it makes a fact of consequence more or

less likely than it would be without it. CRE 401. “In criminal

cases, evidence is relevant if the evidence makes it more or less

probable that a criminal act occurred, the defendant was the

perpetrator, or the defendant acted with the necessary criminal

18
intent.” People v. Mena, 2025 COA 14, ¶ 15 (quoting People v.

Clark, 2015 COA 44, ¶ 17).

¶ 41 Nonetheless, even relevant evidence must be excluded if its

probative value is substantially outweighed by the danger of unfair

prejudice. CRE 403. Evidence is considered unfairly prejudicial if

it suggests a decision based on an improper basis, such as

“sympathy, hatred, contempt, retribution, or horror.” People v.

Valdez, 2017 COA 41, ¶ 37 (quoting People v. Dist. Ct., 785 P.2d

141, 147 (Colo. 1990)).

¶ 42 “Victim impact evidence is evidence that relates to ‘the victim’s

personal characteristics and to the physical, emotional, or social

impact of a crime on its victim and the victim’s family.’” People v.

Martinez, 2020 COA 141, ¶ 29 (quoting Schreibvogel v. State, 2010

WY 45, ¶ 22). Whether victim impact evidence is admissible at trial

depends on “whether the evidence is relevant to determining

whether the defendant committed the crime for which he or she was

charged.” Id. at ¶ 33; accord Mena, ¶ 15. Victim impact evidence is

admissible during the guilt/innocence phase of a trial if it “tends to

show the context or circumstances of the crime itself.” Martinez,

19
¶ 34 (quoting State v. Graham, 650 S.E.2d 639, 646 (N.C. Ct. App.

2007)).

1. Analysis

¶ 43 Zuniga argues that evidence regarding A.Z.’s demeanor after

she disclosed the assaults was irrelevant to whether he committed

the offense. This testimony, he says, was effectively a victim impact

statement, and nothing in the testimony described the context or

circumstances of the alleged crime.

¶ 44 It is doubtful that C.M.’s testimony about A.Z.’s change in

demeanor constituted victim impact evidence. Victim impact

evidence is evidence of “the effect of a crime on a [victim or the]

victim’s family.” Id. at ¶ 33 (emphasis added) (quoting Graham, 650

S.E.2d at 645). But C.M. was testifying to the impact that telling

others about the abuse had on A.Z., not the impact of the abuse

itself. The People also correctly point out that the testimony was

relevant to A.Z.’s credibility, a central issue in this case. The

statement was therefore relevant. And the statement’s probative

value wasn’t substantially outweighed by the danger of unfair

prejudice. See Mena, ¶ 27 (“Any unfair prejudice from the jury

20
sympathizing with [the victim] was not likely to substantially

outweigh this relevance.”).

¶ 45 But even if the court erred by admitting this testimony, the

error wasn’t plain. Given that the testimony didn’t describe A.Z.’s

change in behavior caused by the crime, the possible error wasn’t

obvious.

¶ 46 Nor does any error cast serious doubt on the reliability of the

jury’s verdict. The testimony was brief and the admissible evidence

of Zuniga’s guilt was, while not overwhelming, relatively strong. See

People v. McMinn, 2013 COA 94, ¶ 70 (the prosecutor’s improper

comments didn’t constitute plain error because “the evidence

supporting [the defendant’s] conviction was strong”).

D. Cumulative Error

¶ 47 We reject Zuniga’s cumulative error argument. Because there

was, at most, one error, the cumulative error doctrine doesn’t apply.

See Howard-Walker v. People, 2019 CO 69, ¶ 24; People v. Jones,

2025 COA 43, ¶ 56 (cert. granted on other grounds Jan. 20, 2026);

People v. Thames, 2019 COA 124, ¶ 69.

21
E. SVP Designation

¶ 48 Zuniga contends that the district court incorrectly designated

him an SVP because there was no evidence that he promoted a

relationship with A.Z. for the purpose of sexually victimizing her.

We agree and vacate the designation.

1. Additional Background

¶ 49 At Zuniga’s sentencing hearing, the district court determined

whether to designate Zuniga an SVP. The prosecutor argued that

Zuniga promoted a relationship with A.Z. for the purpose of

sexually assaulting her because the two had no relationship before

the assaults. She also asserted that the abuse started as soon as

Zuniga completed his sentence for a previous conviction. Zuniga’s

counsel objected to the designation. The court agreed with the

prosecutor and found that Zuniga met the criteria for an SVP

designation.

1. Standard of Review and Applicable Law

¶ 50 A district court’s SVP designation presents a mixed question of

fact and law. Allen v. People, 2013 CO 44, ¶ 4. We defer to the

court’s factual findings if they have record support, and we review

the court’s legal conclusions de novo. Id. Where “the statutory

22
language is clear, we apply the plain and ordinary meaning of the

provision.” People v. Gallegos, 2013 CO 45, ¶ 7 (quoting Lobato v.

Indus. Claim Appeals Off., 105 P.3d 220, 223 (Colo. 2005)).6

¶ 51 Under section 18-3-414.5, C.R.S. 2025, the court may

designate a defendant an SVP if (1) the defendant was tried as an

adult; (2) the defendant was convicted of certain sex assault crimes,

including sexual assault on a child by one in a position of trust;

(3) the victim was “a person with whom the offender established or

promoted a relationship primarily for the purpose of sexual

victimization”; and (4) the defendant is found, based on the result of

a screening test, to be likely to commit a subsequent sexual offense.

§ 18-3-414.5(1)(a)(I)-(IV). “[A]n SVP designation [must] be based on

‘reliable evidence, not speculation or unfounded allegations.’”

6 The People argue that Zuniga didn’t preserve this issue for appeal

because, while his attorney made a general objection to the
designation, “he did not make any further argument and did not
challenge or specifically object to the promoting a relationship
finding.” However, an issue is preserved for appeal if the trial court
was presented with an opportunity to make findings of fact and
conclusions of law on the issue. People v. Springsted, 2016 COA
188, ¶ 10 (citing People v. Melendez, 102 P.3d 315, 322 (Colo.
2004)). Zuniga’s counsel objected to the designation at the
sentencing hearing, and the court made findings of fact and
conclusions of law. Thus, the issue is preserved.

23
People v. Lopez, 2020 COA 41, ¶ 8 (quoting People v. Tuffo, 209 P.3d

1226, 1231 (Colo. App. 2009)).

¶ 52 For the purpose of the statute, an offender promotes a

relationship if, “excluding the offender’s behavior during the

commission of the sexual assault that led to his conviction, he

otherwise encouraged a person with whom he had a limited

relationship to enter into a broader relationship primarily for the

purpose of sexual victimization.” Gallegos, ¶ 14. Behavior in

preparation of the assault isn’t considered when making this

designation, as it doesn’t “encourage the victim ‘to enter into a

broader relationship primarily for the purpose of sexual

victimization.’” People v. Tunis, 2013 COA 161, ¶¶ 39-40 (quoting

Gallegos, ¶ 14).

1. Analysis

¶ 53 Zuniga only challenges the district court’s finding that he

promoted a relationship with A.Z. for the purpose of sexual

victimization, so we limit our analysis to that requirement. See

People v. Ehlebracht, 2020 COA 132, ¶ 28. The People make three

arguments that Zuniga promoted a relationship with A.Z. We reject

each in turn.

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¶ 54 First, the People argue that Zuniga promoted his relationship

with A.Z. because the frequency of sexual assaults increased with

the amount of time Zuniga spent with A.Z. They argue that this

shows that Zuniga’s main purpose in fostering the relationship was

for sexual victimization. But before Zuniga began sexually

assaulting A.Z., he was incarcerated or in a halfway house, and he

immediately began assaulting A.Z. when he was released and

sought custody. As the prosecutor said at sentencing, Zuniga

“essentially went zero to sixty as far as subjecting [A.Z. and her

stepsister] to sexual abuse.” This evidence doesn’t show that

Zuniga encouraged or enlarged the scope of his relationship with

A.Z. for the primary purpose of sexual victimization: There was

virtually no relationship before the assaults, and, as noted above,

the assaults themselves can’t constitute promotion. See People v.

Tixier, 207 P.3d 844, 847 (Colo. App. 2008) (defining the word

“promote” as “‘to encourage’ and ‘to enlarge’” (quoting Webster’s

Third New International Dictionary 1815 (1986))).

¶ 55 Second, the People argue that Zuniga promoted a relationship

with A.Z. by creating situations where he would assault her, such

as “calling her into his room under various pretenses and locking

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the door to ensure privacy from others.” But Zuniga took these

actions to prepare to sexually assault A.Z. Because these actions

occurred during the commission of the sexual assaults that led to

Zuniga’s conviction, they can’t be considered. See Gallegos, ¶ 14;

see also People v. Valencia, 257 P.3d 1203, 1205, 1207-08 (Colo.

App. 2011) (the defendant’s actions of hiding in victim’s closet and

attacking her before sexually assaulting her didn’t promote a

relationship for the purpose of sexual victimization); cf. People v.

Brosh, 251 P.3d 456, 461 (Colo. App. 2010) (the defendant

promoted a relationship with victim by “inviting the victim over to

his house . . . on several occasions . . . [and] request[ing] that the

victim have [a] sleep over at his residence”).7

¶ 56 Third, the People argue that Zuniga engaged in other behavior

that fostered his relationship with A.Z., such as “sharing his hobby

[of removing pieces of gold from computer memory boards] with

7 The People argue that “behavior during the commission of the

offense” only relates to the actual touching of the victim. However,
Colorado case law holds that actions taken by the defendant in
preparation of the assault don’t promote a relationship. See Uribe-
Sanchez v. People, 2013 CO 46, ¶ 10; People v. Valencia, 257 P.3d
1203, 1205, 1207-08 (Colo. App. 2011); People v. Tunis, 2013 COA
161, ¶ 40.

26
her.” But A.Z. said in her 2020 forensic interview that Zuniga

began sexually assaulting her before he started sharing his hobby

with her.

¶ 57 In sum, under the controlling test, which we must, of course,

apply, there was no evidence that Zuniga promoted a relationship

with A.Z. for the primary purpose of sexual victimization. It follows

that the SVP designation must be vacated.

III. Disposition

¶ 58 We affirm the judgment. We vacate the SVP designation and

remand for correction of the mittimus.

JUDGE LUM and JUDGE MEIRINK concur.

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