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Feb. 26, 2026 Get Citation Alerts Download PDF Add Note

Peo v. Baca

Colorado Court of Appeals

• Citations: None known
• Docket Number: 23CA1463

• Precedential Status: Non-Precedential

• Opinion

• Authorities (29)

• Cited By (0)

• Summaries (0)

• Similar Cases (17.3K)

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Combined Opinion

23CA1463 Peo v Baca 02-26-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1463
Jefferson County District Court No. 15CR915
Honorable Jeffrey R. Pilkinton, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Pedro Baca,

Defendant-Appellant.

ORDER AFFIRMED

Division II
Opinion by JUDGE FOX
Kuhn and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 26, 2026

Philip J. Weiser, Attorney General, Cata A. Cuneo, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Rachel C. Funez, Alternate Defense Counsel, Glenwood Springs, Colorado, for
Defendant-Appellant
¶1 Defendant, Pedro Baca, appeals the district court’s order

summarily denying his petition for postconviction relief. We affirm.

I. Background

¶2 In September 2014, Baca (then fifty-four years old) was selling

vacuums outside his apartment and asked J.M., an eleven-year-old

girl, to help him move them to a storage closet in the building.

People v. Baca, slip op. at ¶ 2 (Colo. App. No. 16CA1625, Dec. 12,

2019) (not published pursuant to C.A.R. 35(e)). Evidence at trial

established that Baca touched J.M.’s breasts, shoulders, and chest,

grabbed her neck, and pressed or rubbed his groin against her

backside. There was also evidence that Baca later pushed J.M.

onto a curb outside and put his hand between her legs. J.M.

testified that Baca left when J.M.’s friend, V.B., approached.

¶3 J.M.’s mother, R.M., testified that after the incident J.M. was

crying and extremely upset. Eventually, J.M. was calm enough to

relay the incident to R.M., who called the police. When police spoke

to Baca, he admitted he tickled J.M., hugged her from behind, and

touched her neck. At trial, Baca similarly testified that he touched

J.M.’s shoulder, hugged her, and tickled her waist.

1
¶4 In 2016, Baca was convicted of one count of sexual assault on

a child by application of force, § 18-3-405(1), (2)(a), C.R.S. 2025.

He received an indeterminate sentence of eleven years to life. He

appealed, and a division of this court affirmed his conviction.

People v. Baca, No. 16CA1625, slip op. at ¶ 16. Baca then

unsuccessfully moved for reconsideration of his sentence.

¶5 Baca then filed a pro se petition for postconviction relief under

Crim. P. 35(c), which counsel later supplemented. The

postconviction court denied the petition, as supplemented, without

a hearing. Baca now appeals, arguing that he was entitled to a

hearing on his postconviction claims.

II. Standard of Review

¶6 We review the summary denial of postconviction relief de novo.

People v. Medina, 2019 COA 103M, ¶ 4. We presume the legality of

the judgment and the regularity of the postconviction proceeding.

Id. A defendant seeking postconviction relief under Crim. P. 35(c) is

entitled to a hearing “if he asserts specific facts that, if true, would

provide a basis for relief.” People v. Luong, 2016 COA 13M, ¶ 8. He

is not entitled to a hearing “if the claim raises only an issue of law

or if the allegations, even if true, do not provide a basis for relief.”

2
Id. And a court may summarily deny postconviction relief when the

allegations are “merely conclusory, vague, or lacking in detail.” Id.

(citation omitted).

III. Ineffective Assistance of Counsel

¶7 In his petition for postconviction relief, Baca alleged ineffective

assistance of counsel on several grounds. On appeal, he argues

that the postconviction court erred by denying his claims without a

hearing. We address and reject each argument in turn.

A. Applicable Law

¶8 Criminal defendants have a constitutional right to effective

assistance of counsel. People v. Houser, 2020 COA 128, ¶ 27. To

establish ineffective assistance, a defendant must show that

“(1) counsel’s performance was outside the wide range of

professionally competent assistance and (2) the defendant was

prejudiced by counsel’s substandard legal work.” Id. at ¶ 28 (citing

Strickland v. Washington, 466 U.S. 668, 687 (1984)). We apply the

same test to claims of ineffective appellate counsel. Silva v. People,

156 P.3d 1164, 1169 (Colo. 2007).

¶9 The first prong requires a showing “that counsel’s

representation fell below an objective standard of reasonableness.”

3
Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003). However, given the

breadth of reasonable strategic choices, our scrutiny is highly

deferential, and we “indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional

assistance.” Id. Under the second prong, the defendant must

establish “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.” Houser, ¶ 30 (quoting Strickland, 466 U.S. at 694). A

court may summarily deny a postconviction petition alleging

ineffective assistance when “the defendant’s allegations, even if

proven true, would fail to establish either constitutionally deficient

performance or prejudice.” Id. at ¶ 42 (citation omitted).

B. Failure to Present and Investigate DNA Evidence

¶ 10 Baca first contends that the court erred by summarily denying

the claim that his counsel provided ineffective assistance by failing

to pursue possibly exculpatory DNA evidence from the sweatshirt

J.M. wore during the incident. Baca contends that DNA testing

would have shown he touched J.M. only on her shoulders and

waist, not her breasts. He argues that counsel failed to (1) request

4
DNA testing; (2) investigate the case; (3) consult with a DNA expert;

and (4) present expert DNA testimony.

¶ 11 The postconviction court held that counsel’s decision not to

pursue DNA testing was reasonable because (1) the prosecution did

not present DNA evidence, so there was no evidence to rebut; (2)

Baca admitted he touched J.M., so his DNA would likely be on her

clothing; and (3) DNA evidence would not explain the red marks

that J.M.’s mother observed on J.M.’s chest.

¶ 12 We conclude that, even if true, Baca’s allegations do not

provide a basis for relief. Luong, ¶ 8. Even if testing would not

have revealed DNA on the breast area of J.M.’s sweatshirt, defense

counsel could have reasonably concluded that DNA evidence would

not have been exculpatory. First, a lack of DNA would not have

conclusively proved that Baca did not touch J.M.’s breasts. See

Skinner v. Switzer, 562 U.S. 521, 534 (2011) (explaining that DNA

testing would not necessarily be exculpatory where the results

could be inconclusive or incriminating). For example, a detective

involved in the case testified that her understanding was that DNA

evidence from someone touching a surface “would not likely be

definitive or effective on fabrics that are similar to the hoodie.” See

5
People v. Hood, 2024 COA 27, ¶ 27 (discussing expert testimony

that “‘touch DNA’ is left behind when a person touches a surface,

and whether and how much DNA is detected depends on the

texture of the surface, how long the contact was, and whether the

person sheds more DNA than others”).

¶ 13 Baca’s argument that testing would not reveal his DNA on the

breast area of J.M.’s sweatshirt is also speculative. See People v.

Aguilar, 2012 COA 181, ¶ 12 (concluding that a defendant was not

entitled to a hearing on a speculative claim that a DNA expert could

have contradicted certain evidence). For one, Baca admitted to

hugging J.M., so his DNA could have transferred to the breast area

of the sweatshirt even if he did not touch her breasts. See Hood,

¶ 27; People v. Ortega, 2016 COA 148, ¶¶ 32-33 (describing expert

testimony that touch DNA can be transferred from one surface to

another, and “DNA analysis could not conclusively establish how

DNA arrived on a piece of clothing”).

¶ 14 And if testing showed DNA on the breast area of J.M.’s

sweatshirt, such evidence would likely be incriminating. Counsel

could have chosen not to pursue testing for this reason. See

Cummings v. Sirmons, 506 F.3d 1211, 1222 n.2 (10th Cir. 2007)

6
(concluding that counsel performed adequately by not requesting

DNA testing because “[h]ad the DNA testing indicated a link to

Cummings, such evidence would clearly have been damaging”).

Indeed, the record suggests that counsel chose this strategy by

emphasizing the lack of DNA evidence and the fact that police did

not request DNA testing: “So no request was ever done to determine

if there was DNA across this area that [J.M.] described extensive

touching of?” See People v. Wardell, 2020 COA 47, ¶ 29 (ineffective

assistance involves errors “so flagrant that they more likely resulted

from neglect or ignorance rather than from informed professional

deliberation”).

¶ 15 Although Baca suggests that a hearing is necessary to

determine whether his counsel’s choice was reasonable, the record

shows that counsel did not simply forget about DNA evidence but

made a tactical decision not to present it. See People v. Phipps,

2016 COA 190M, ¶ 19 (summary denial of a postconviction motion

is appropriate “if the record directly refutes the defendant’s claims”);

Ardolino, 69 P.3d at 76 (“Strategic choices made after thorough

investigation of the law and facts relevant to plausible options are

virtually unchallengeable . . . .”).

7
¶ 16 Therefore, we agree with the postconviction court that Baca

failed to allege facts that, if true, would establish that his counsel

performed deficiently by failing to request DNA testing. See Houser,

¶ 42. Moreover, even assuming counsel performed deficiently and

that DNA testing would have yielded the results Baca claims, he

still cannot show a reasonable probability that the result of his trial

would have been different but for counsel’s errors. See id. at ¶ 30.

For example, the absence (or inconclusive nature) of DNA evidence

could have been explained by nonexculpatory causes such as the

fabric’s material or the presence of other DNA on the sweatshirt.

And even without DNA evidence that Baca touched J.M.’s breasts,

the jury heard testimony that he touched her breasts and rubbed

his groin against her backside.

¶ 17 Baca next contends that the postconviction court erred by

overlooking his argument that counsel performed deficiently by

“fail[ing] to sufficiently investigate or even consult with a DNA

expert to find out if the DNA evidence would have been helpful.” As

for the failure to investigate argument, Baca does not articulate

what counsel should have investigated beyond consulting with a

DNA expert, which he frames as a separate argument. His

8
postconviction petition similarly lacked detail on this point. Thus,

this argument was “conclusory, vague, or lacking in detail” and did

not warrant relief. Luong, ¶ 8 (citation omitted); see also People v.

Washington, 2014 COA 41, ¶ 46 (a court’s “failure to make findings

of fact and to state conclusions of law is harmless” if it properly

denies a Crim. P. 35(c) motion).

¶ 18 We also reject Baca’s argument that the postconviction court

erred by not considering his claim that counsel was ineffective for

not consulting with a DNA expert. See Aguilar, ¶ 12 (“[The]

defendant failed to alleged facts establishing that counsel’s choice

[to not call a rebuttal DNA expert] was outside the wide range of

professionally competent assistance.”). We see little difference

between this argument and the argument that counsel should have

requested DNA testing. Consulting with an expert could have

potentially revealed, for example, that the sweatshirt’s material

would make DNA testing difficult or that testing could suggest

where Baca touched J.M. But the consultation could not have

conclusively established that Baca did not touch J.M.’s breasts.

The postconviction court could have reasonably concluded that it

implicitly addressed the expert consultation argument when it

9
determined that counsel’s failure to request DNA testing did not

warrant a hearing. In any case, we may affirm on any basis

supported by the record. People v. Taylor, 2018 COA 175, ¶ 8.

¶ 19 Finally, Baca contends that the court failed to address his

argument about counsel’s failure to present expert testimony that

DNA evidence could have established where J.M. was touched. But

Baca’s petition did not develop this argument; he merely asserted

that “[e]xpert testimony to say the prosecution could have found

physical evidence, if it was there, if they had looked, would have

been very helpful to the defense.” Therefore, had the court

addressed this argument, it would not have warranted a hearing

because it was conclusory and lacked detail. Luong, ¶ 8; see

Washington, ¶ 46.

¶ 20 In sum, we conclude that Baca’s claims regarding the DNA

evidence in his petition for postconviction relief did not raise “facts

that, if true, would provide a basis for relief” such that he was

entitled to a hearing on these claims. Luong, ¶ 8.

C. Failure to Call V.B. as a Witness

¶ 21 Baca next asserts that he was entitled to a hearing on his

claim that his counsel performed deficiently by failing to call V.B. —

10
J.M.’s friend — as a witness. According to Baca, V.B. would have

testified that J.M. never mentioned any sexual touching and that

V.B. did not see J.M. and Baca sitting on the curb. V.B. was

originally subpoenaed to testify, but she was not subpoenaed again

after the trial was continued. Baca argued that, although a

detective testified about V.B.’s statements to police — including that

J.M. did not report sexual touching to V.B. — this was less effective

than V.B.’s direct testimony. The postconviction court disagreed,

concluding that there was no dispute about who witnessed the

crime and that further testimony would have been cumulative and

“could have opened the door to” potentially harmful inconsistencies.

¶ 22 First, as to Baca’s argument that J.M. did not report any

sexual touching to V.B., we agree with the postconviction court that

this testimony would have been cumulative. Detective Faith

Stevens testified that V.B. said J.M. did not mention Baca

“push[ing] his front part into the back of her” and that J.M. “never

told [V.B.] that [Baca] touched [J.M.] on her hips, chest, or bottom

area.” This contradicted J.M.’s testimony that she told V.B. that

Baca touched her chest.

11
¶ 23 Stevens’ testimony revealed other inconsistencies between

J.M.’s testimony and V.B.’s statements to police. For example,

Stevens testified to V.B.’s statement that J.M. said Baca pushed her

against a wall, grabbed her, and would not let go. But J.M. testified

that she did not remember telling V.B. this. V.B.’s testimony would

have been cumulative of Stevens’ and potentially less persuasive.

See Washington, ¶ 35 (counsel’s failure to present cumulative

evidence was not constitutionally ineffective). Stevens’ testimony

was based on interview notes made days after the incident; V.B.

would have testified from memory about an incident that occurred

two years prior.

¶ 24 Finally, Baca argues that V.B. would have testified that she

saw J.M. running out of the building after the incident, while J.M.

testified that V.B. walked up to her and Baca sitting on the curb.

Baca asserts that V.B.’s testimony that she did not see Baca sitting

on the curb or touching J.M.’s leg would have undermined J.M.’s

credibility. But it was undisputed that V.B. encountered J.M.

shortly after the assault, and we disagree that the different

recollections would have cast so much doubt on J.M.’s credibility as

12
to undermine her testimony about Baca’s sexual touching in the

storage closet.

¶ 25 Additionally, V.B. disclosed other potentially incriminating

information to Stevens. For example, V.B. told Stevens that J.M.

said “she ‘could have been raped’” and generally described J.M.’s

fear and emotion after the incident. V.B. also told Stevens that

Baca once “‘grabbed [V.B.] by the waist’ in an attempt to joke and

scare her.” Stevens did not testify to these statements, and Baca’s

counsel could have reasonably concluded that calling V.B. as a

witness risked revealing potentially harmful evidence. See People v.

Bergerud, 223 P.3d 686, 704 (Colo. 2010) (“The decision not to call

a particular witness is typically a question of trial strategy that

reviewing courts are ill-suited to second-guess.” (quoting Greiner v.

Wells, 417 F. 3d 305, 323 (2d Cir. 2005))).

¶ 26 Because Baca failed to allege facts establishing that counsel’s

failure to call V.B. was deficient performance, he was not entitled to

a hearing on this claim. See Houser, ¶¶ 28, 42.

D. Failure to Call Baca’s Family Members as Witnesses

¶ 27 Baca next contends that the postconviction court erred by

summarily denying his claim that defense counsel acted

13
unreasonably by failing to call certain members of his family as

witnesses. He argues that they could have testified that he had a

reputation for helpfulness and had shown nonsexual affection

toward other children. The court held that this evidence would

have been cumulative of R.M.’s testimony that Baca had been

helpful and that she “considered him to be a nice guy.” We agree,

and we also agree with the court’s reasoning that Baca’s “reputation

for helpfulness does not render him incapable of sexual assault.”

¶ 28 Baca also argues that counsel should have called his sister,

M.B., as a witness. On the day of the incident, M.B. apparently

called her mother to say she was picking Baca up and arrived at

Baca’s apartment approximately ten minutes later but saw no one

outside. Baca contends that this testimony would have established

a timeline, “leaving very little time for Baca to assault J.M.” But his

petition did not indicate when the phone call occurred, when M.B.

arrived, or how that timeline related to the assault. So this

argument was conclusory and lacked supporting detail. Luong, ¶ 8.

¶ 29 Overall, Baca failed to allege facts that, if true, would establish

that counsel was ineffective for failing to call his family members as

14
witnesses. See Houser, ¶¶ 28, 42. Having so concluded, we need

not address the claimed prejudice. Id. at ¶¶ 28, 30.

E. Failure to Object to Violations of a Sequestration Order

¶ 30 Baca next argues that he was entitled to a hearing on his

claim that counsel failed to object to violations of a witness

sequestration order. He submitted several statements from people

who alleged that witnesses were sitting together and speaking in the

courtroom. The postconviction court explained that “[n]either the

parties, counsel, nor the court saw a violation of the sequestration

order.”

¶ 31 Although Baca contends that the court improperly relied on its

own recollection, his petition admitted that “[d]efense counsel . . .

state[d] that if she would have known of any violation of the

sequestration order, she would have brought it to the court’s

attention.” Baca has not alleged any facts to suggest that counsel

knew of any such violation. See Dever v. Kan. State Penitentiary, 36

F.3d 1531, 1538 (10th Cir. 1994) (counsel is not ineffective for not

objecting to something which she had no knowledge of). Further,

none of the statements alleging a violation of the sequestration

order described the contents of the conversations between the

15
sequestered witnesses. So Baca has not alleged any facts

suggesting he was prejudiced. See Houser, ¶¶ 28, 30. And his

allegation that R.M. was “coaching” J.M. is speculative and

conclusory. See Luong, ¶ 8.

F. Failure to Challenge Sufficiency

¶ 32 Baca argues that his trial and appellate counsel were

ineffective for failing to challenge the sufficiency of the evidence

presented. At trial, defense counsel moved for a judgment of

acquittal based on a lack of corroborating evidence and

inconsistencies in the testimony. Baca’s direct appeal did not raise

a sufficiency argument and instead argued that the district court

erred by failing to give a special unanimity jury instruction. Baca,

No. 16CA1625, slip op. at ¶¶ 6-12. He also argued that a clerical

mistake in the mittimus warranted correction. Id. at ¶ 13.

¶ 33 In his Crim. P. 35(c) petition, Baca contended that his trial

and appellate counsel performed deficiently by failing to argue that

the prosecution did not prove all the elements of the charged crime

beyond a reasonable doubt. At trial, the prosecution had to prove

that Baca “applie[d] force against the victim in order to accomplish

or facilitate sexual contact.” § 18-3-405(2)(a). Sexual contact is

16
“[t]he knowing touching of the victim’s intimate parts . . . or the

knowing touching of the clothing covering the immediate area of the

victim’s or actor’s intimate parts if that sexual contact is for the

purposes of sexual arousal, gratification, or abuse.” § 18-3-401(4)(a),

C.R.S. 2025 (emphasis added). Baca contends that the prosecution

did not prove the sexual purpose element of sexual contact. He

argues that trial and appellate counsel were ineffective for not

raising this argument and that the postconviction court erred by

summarily denying this contention.

¶ 34 Baca’s petition argued that there was insufficient evidence of

sexual purpose because there was no evidence that he made sexual

statements or sounds, nor did he tell J.M. not to discuss what

happened or try to prevent her from speaking to friends or family.

He relied on People in Interest of J.O., 2022 COA 65M, ¶¶ 1-2, which

considered whether evidence was sufficient to conclude that a

juvenile acted with a sexual purpose. The division held that

juveniles (there, an eleven-year-old) can act with a sexual purpose,

but evidence beyond the sexual contact itself is required. Id. at

¶ 29. Such evidence could include “removing clothing, heavy

breathing, placing the victim’s hand on the accused’s genitals, an

17
erection, other observable signs of arousal, the relationship of the

parties, sexually explicit comments, coercing or deceiving the victim

to obtain cooperation, attempting to avoid detection, or instructing

the victim not to disclose the occurrence.” Id.

¶ 35 In rejecting Baca’s argument, the postconviction court

distinguished the eleven-year-old defendant in J.O. from the adult

Baca and cited the division’s conclusion that “[i]t may not — and

often will not — be appropriate for a fact finder to ascribe the same

intent to a juvenile’s act that one could reasonably ascribe to the

same act if performed by an adult.” Id. at ¶ 28. We agree. Not only

is J.O. distinguishable on this basis, but it was also decided after

Baca’s trial and direct appeal. See Houser, ¶ 33 (“[A] lawyer does

not perform deficiently by ‘failing to raise novel arguments that are

unsupported by then-existing precedent.’” (citation omitted)).

¶ 36 Moreover, while J.O. was decided after Baca’s trial and direct

appeal, we do not see why he could not have argued in his direct

appeal that his trial counsel was ineffective for failing to argue

insufficient evidence of a sexual purpose. See Crim. P. 35(c)(3)(VII)

(prohibiting most arguments that could have been brought on direct

appeal). J.O. was not the first case to consider a sufficiency

18
challenge to the sexual purpose element of sexual contact. E.g.,

People v. West, 724 P.2d 623, 627-28, 630 (Colo. 1986).

¶ 37 But even assuming Baca properly presented the argument

that his trial counsel performed deficiently, there was

circumstantial evidence of a sexual purpose. See J.O., ¶ 20 (Intent

is often “inferred from the nature of and the circumstances

surrounding the sexual touching.”). For example, there was

evidence that most of the sexual touching (including Baca rubbing

his groin against J.M.) occurred in private. See id. at ¶ 29 (attempt

to avoid detection may be evidence of a sexual purpose). Baca also

told police he believed they were contacting him “in reference to

touching or harassing somebody” named J.M.

¶ 38 And, as discussed, evidence of sexual intent is not the same

for adults and juveniles. Id. at ¶¶ 25, 28. For example, in West,

witnesses testified that an adult defendant put his hands over the

part of a child victim’s clothing that covered “his intimate parts,”

and the touching “appeared to be deliberate and not accidental.”

724 P.2d at 631. The supreme court rejected an argument that this

was insufficient “to establish that the touching was for the purpose

of sexual arousal, gratification, or abuse.” Id. at 630. Here, there

19
was evidence from which the jury could have inferred that Baca

touched J.M.’s breasts and rubbed his groin against her for a

sexual purpose.

¶ 39 Therefore, Baca failed to establish that his intent argument

was “clearly stronger than those presented” at trial and on appeal

such that “the presumption of effective assistance of counsel [may]

be overcome.” People v. Huggins, 2019 COA 116, ¶ 48 (citation

omitted). Accordingly, the postconviction court properly denied this

portion of Baca’s petition without a hearing. See Luong, ¶ 8.

IV. The Postconviction Court’s Failure to Address Arguments

¶ 40 Baca next asserts that the postconviction court erred by not

addressing several of his arguments, including that trial counsel

failed to (1) properly investigate; (2) consult a DNA expert and

present expert testimony; (3) present a recorded 911 call that did

not disclose sexual touching; and (4) present a hospital examination

report from the night of the incident, which did not mention marks

on J.M.’s neck or sexual touching.

¶ 41 Although a court must enter findings of fact and conclusions

of law when denying a Crim. P. 35(c) motion, failure to do so is

harmless if the court properly denies relief. Washington, ¶ 46.

20
Because the postconviction court properly denied Baca’s motion, its

failure to address some of his arguments was harmless.

¶ 42 We addressed Baca’s arguments about the DNA evidence

supra Part III.B. Regarding Baca’s argument about counsel’s failure

to investigate the case, he cited a portion of his pro se petition that

described certain evidence presented at trial, but he did not discuss

counsel’s failure to investigate with any particular detail beyond

stating that counsel failed to “call critical witnesses, present

exculpatory evidence, and otherwise challenge the prosecution’s

case-in-chief.” This argument is vague and unsupported, and it

overlaps with several of Baca’s other arguments. So even if the

court should have addressed this argument, Baca was not entitled

to a hearing. See id.; Taylor, ¶ 8.

¶ 43 Similarly, because Baca’s arguments about the 911 call and

the hospital report would not have entitled him to a hearing, we

conclude that any error in the postconviction court’s failure to

address them was harmless. See Washington, ¶ 46. First, we agree

with the State that the 911 call would have been cumulative of

evidence from R.M. and the 911 operator, who both testified that

R.M. did not report sexual touching in the 911 call. See id. at ¶ 35

21
(counsel is not constitutionally ineffective for failing to obtain and

present cumulative evidence). Similarly, the hospital report would

have been cumulative of evidence that J.M. did not initially report

sexual touching and of an officer’s testimony that he did not

observe any injuries or visible marks on J.M. after the assault.

¶ 44 Moreover, defense counsel moved to suppress evidence of

J.M.’s hospital visit, arguing that it was cumulative and prejudicial.

The district court agreed, explaining that it could create unfair

sympathy and confuse the issues. It seems that counsel

strategically chose not to introduce evidence of the hospital visit,

including the examination report, to avoid potential prejudice. See

Ardolino, 69 P.3d at 76 (Counsel’s informed strategic choices “are

virtually unchallengeable.”). Thus, any error in failing to address

Baca’s argument regarding the hospital report was harmless.

Washington, ¶ 46.

V. Proportionality

¶ 45 Lastly, we consider and reject Baca’s argument that his

sentence was unconstitutionally disproportionate.

22
A. Standard of Review and Applicable Law

¶ 46 Whether a sentence is unconstitutionally disproportionate is a

question of law that we review de novo. Wells-Yates v. People, 2019

CO 90M, ¶ 35. The Eighth Amendment prohibits sentences that

are grossly disproportionate to the severity of the crime committed.

People v. Duran, 2025 COA 34, ¶ 27. But strict proportionality is

not required; the Constitution prohibits “only extreme sentences

that are grossly disproportionate to the crime.” Id. Our supreme

court has explained that sentences in noncapital cases are rarely

grossly disproportionate. Rutter v. People, 2015 CO 71, ¶ 16.

¶ 47 Under Colorado’s “abbreviated proportionality review,” we first

“compare[] the gravity and seriousness of the offense with the

harshness of the penalty.” Duran, ¶ 28. However, if a crime is per

se gave and serious for proportionality purposes, we do not address

gravity or seriousness and begin with the penalty’s harshness. Id.

at ¶ 30. If the abbreviated review “gives rise to an inference of gross

disproportionality,” we conduct an extended review. Id. at ¶ 28.

¶ 48 When considering a penalty’s harshness, we give considerable

deference to the legislature’s sentencing scheme. Id. at ¶ 31; People

v. Oglethorpe, 87 P.3d 129, 135 (Colo. App. 2003). To assess

23
harshness, we consider “the sentence’s length and the defendant’s

parole eligibility.” Duran, ¶ 31.

B. Application

¶ 49 Because sexual assault on a child is a per se grave and

serious offense,1 People v. Strean, 74 P.3d 387, 396 (Colo. App.

2002), we begin by considering the harshness of Baca’s sentence.

Duran, ¶ 30. Our analysis continues only if there is an inference of

gross disproportionality. Duran, ¶ 28.

¶ 50 Sexual assault on a child by application of force is a class 3

felony. § 18-3-405(1), (2)(a). As mentioned, Baca received an

indeterminate sentence of eleven years to life. See Chavez v. People,

2015 CO 62, ¶ 11 (explaining the indeterminate sentencing scheme

for sex offenders); § 18-1.3-1004(1), C.R.S. 2025. The presumptive

sentencing range for class 3 felonies is a minimum of four years

and a maximum of twelve years. § 18-1.3-401(1)(a)(V)(A), C.R.S.

1. However, the “force” component of Baca’s conviction elevated

it to a crime of violence. See § 18-3-405(3); § 18-1.3-406, C.R.S.

1. Sex offenses that constitute crimes of violence are subject to

1 Baca does not appear to dispute that sexual assault on a child is a

per se grave and serious offense.

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an indeterminate sentencing range of “at least the midpoint in the

presumptive range . . . and a maximum of the sex offender’s natural

life.” § 18-1.3-1004(1)(b).

¶ 51 “[A] court imposing an indeterminate sentence will arrive at a

sentence of some minimum number of years to life.” Chavez, ¶ 11.

For a sex offense that is also a crime of violence, a court must

“impose[] an indeterminate sentence with a maximum term of the

offender’s natural life, but the crime-of-violence enhancement

boosts the minimum term.” Id. at ¶ 15. Considering a sex offense

that was a class 3 felony and a crime of violence, the Chavez court

concluded that the indeterminate sentence’s minimum range was

between eight and twenty-four years. Id. at ¶ 23; see People v.

Hunsaker, 2013 COA 5, ¶ 39 (“[T]he bottom end of an indeterminate

sentence for a sex offense that is also a crime of violence is . . .

between the midpoint in, and twice the maximum of, the

presumptive range for the applicable felony class.”), aff’d, 2015 CO

46.

¶ 52 The same ranges apply here, so the court “was required to

sentence [Baca] to a minimum term of between eight and twenty-

four years and a maximum term of his life.” Chavez, ¶¶ 2, 23.

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Baca primarily argues that his sentence was disproportionate

because his maximum possible sentence is the remainder of his life.

But because his sentence is indeterminate, he is eligible for parole

(subject to the parole board’s discretion) after serving the minimum

range (eleven years) less credit for time served (144 days). See

Godinez v. Williams, 2024 CO 14, ¶ 24 (citing § 18-1.3-1006(1)(a),

C.R.S. 2025). This undermines Baca’s argument that he received a

life sentence. See Wells-Yates, ¶ 14 (Parole eligibility can “render

the penalty less harsh.”).

¶ 53 Our supreme court has also repeatedly explained that the

statutory scheme mandates a maximum indeterminate sentence of

“the sex offender’s natural life.” E.g., Godinez, ¶ 24; Chavez, ¶ 11.

And Colorado courts have repeatedly rejected constitutional

challenges to this indeterminate sentencing scheme. E.g., People v.

White, 656 P.2d 690, 695 (Colo. 1983) (holding that indeterminate

sentencing for sex offenders is not unconstitutional); Oglethorpe, 87

P.3d at 135 (rejecting a proportionality challenge to a potential life

sentence imposed via indeterminate sentencing); People v. Dash,

104 P.3d 286, 288, 293 (Colo. App. 2004) (rejecting an Eighth

Amendment challenge to an indeterminate sentence of five years to

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life). We therefore conclude that the postconviction court did not

err by rejecting Baca’s argument that the maximum range of his

indeterminate sentence was grossly disproportionate.

¶ 54 To the extent that Baca challenges the eleven-year minimum

range of his indeterminate sentence, we similarly reject his

arguments. It is extremely rare “for a sentence to be deemed so

extreme that it is grossly disproportionate.” Wells-Yates, ¶ 5. The

postconviction court explained that Baca’s sentence was on the

lower end of the presumptive minimum range and was “a significant

sentence reflective of a significant crime.” “[I]f a crime is grave or

serious, and so long as the penalty is within the statutory range,

the sentence is nearly impervious to attack.” People v. Kennedy,

2023 COA 83M, ¶ 15, aff’d, 2025 CO 63. Because Baca’s sentence

“fell within the presumptive range[,] . . . the sentence is not grossly

disproportionate.” People v. Thomeczek, 284 P.3d 110, 117-18

(Colo. App. 2011) (affirming a twelve-year sentence with a

presumptive range of four to twelve years); see also People v. Hall,

87 P.3d 210, 212 (Colo. App. 2003) (affirming an eight-year

sentence with a presumptive range of two to eight years).

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¶ 55 In sum, the harshness of Baca’s sentence did not give rise to

an inference of gross proportionality, and the postconviction court

properly denied Baca’s request for a hearing on his proportionality

claim. See Duran, ¶¶ 28, 30; see also Luong, ¶ 8 (summary denial

is appropriate for issues of law).

VI. Disposition

¶ 56 The postconviction court’s order is affirmed.

JUDGE KUHN and JUDGE SULLIVAN concur.

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