SUMMARY

May 2, 2019

2019COA61

No. 16CA0400, People v. Tresco — Criminal Law — Sentencing; 

Constitutional Law — First Amendment — Freedom of 

Association

In the third issue of this opinion, the majority considers 

whether a sentencing court erred in considering evidence of the 

defendant’s previous gang affiliation in a case that was not gang 

related and where the defendant had left gang life. Applying 

Dawson v. Delaware, 503 U.S. 159 (1992), the majority concludes 

that evidence of gang affiliations is not per se inadmissible during 

sentencing if it relates to the nature of the offense and the 

defendant’s character, not merely the defendant’s abstract beliefs. 

The majority perceives no error here. The majority affirms the 

judgment of conviction. 

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.
The dissent concludes, as to the first issue, that a remand is 

required to determine whether Tresco would have waived his right 

to counsel and chosen to represent himself. For that reason, the 

dissent would not reach the other issues at this time. 
COLORADO COURT OF APPEALS

 2019COA61

Court of Appeals No. 16CA0400

City and County of Denver District Court No. 14CR6552

Honorable Morris B. Hoffman, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Gabriel A. Tresco,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division A

Opinion by JUDGE FOX

Furman, J., concurs

Ashby, J., dissents

Announced May 2, 2019

Philip J. Weiser, Attorney General, John T. Lee, Senior Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee

Katayoun A. Donnelly, Alternate Defense Counsel, Denver, Colorado, for 

Defendant-Appellant
1

¶ 1 Defendant, Gabriel A. Tresco, appeals the judgment of 

conviction entered on a jury verdict finding him guilty of second 

degree assault. Tresco argues that the trial court erred by (1) 

denying his request that his counsel be removed;

1 (2) admitting 

expert testimony that was not properly disclosed to defense counsel;

and (3) considering, at sentencing, a video recording from five years 

before the events of this case in which Tresco discussed his gang 

affiliation. We reject Tresco’s contentions and affirm. The last 

argument raises a novel question in Colorado. 

I. Background

¶ 2 The prosecution charged Tresco with second degree assault for 

punching a man in the face — ultimately causing nerve damage —

in in the parking lot of a bar, allegedly because the man groped 

Tresco’s fiancée. On the first day of trial, Tresco notified the trial 

court that he had filed a grievance against his defense counsel, a 

public defender. The trial court asked Tresco if he was requesting 

that the public defender be removed, and Tresco said that he was. 

 

1 Tresco also requested, but was denied, a continuance of the trial. 

He did not appeal that denial.
2

The trial court declined to address Tresco’s request at that time, 

stating that it would do so after jury selection. However, the trial 

court never addressed Tresco’s request, and the public defender 

represented Tresco at trial.

¶ 3 The jury found Tresco guilty of second degree assault, and the 

trial court sentenced him to eight years in the custody of the 

Department of Corrections (DOC) and three years of mandatory 

parole.

¶ 4 Because we were unable to determine on the record before us 

whether the trial court erred by denying Tresco’s request that his 

counsel be removed, we remanded the case to the trial court with 

directions to address whether Tresco was entitled to different

appointed counsel on the first morning of trial.2 With the benefit of 

the remand findings and record, we can now address Tresco’s 

contentions. 

 

2 The remand order states: “The case is remanded to the trial court 

for the limited purpose of investigating the grounds for Tresco’s 

request and ruling on whether he was entitled to withdrawal of his 

appointed counsel. The trial court may hold hearings and shall 

make new factual inquiries in conducting this inquiry.” 
3

II. Right to Counsel

¶ 5 Tresco’s appellate counsel argues that the trial court violated 

Tresco’s Sixth Amendment rights by denying him counsel of choice. 

We disagree.

A. Applicable Law

¶ 6 The Sixth Amendment provides that a criminal defendant has 

the right to the assistance of counsel. U.S. Const. amend. VI. 

Although this right applies equally to indigent and non-indigent 

defendants, it manifests itself in different ways.

¶ 7 Under the Sixth Amendment, non-indigent defendants have 

the right to counsel of their choice. See People v. Ronquillo, 2017 

CO 99, ¶ 16. In contrast, an indigent defendant who requests 

court-appointed counsel does not get to choose which courtappointed lawyer will represent him. Id. at ¶ 18. The Sixth 

Amendment instead guarantees that indigent defendants receive 

constitutionally effective representation from conflict-free counsel. 

Id. at ¶ 19; see also People v. Shreck, 107 P.3d 1048, 1055 (Colo. 

App. 2004). 

¶ 8 “When an indigent defendant objects to his court-appointed 

counsel, the trial court must investigate the reasons for the 
4

dissatisfaction.” People v. Johnson, 2016 COA 15, ¶ 30. This is a 

fact-intensive investigation into the details of the disagreement or 

conflict between the defendant and appointed counsel. See People 

v. Bergerud, 223 P.3d 686, 694 (Colo. 2010). “Unless the complaint 

underlying a request for substitution of counsel is sufficiently 

detailed, the court may not rule on the motion without conducting a 

proper hearing at which both attorney and client testify as to the 

nature of their conflict.” Id. (citation omitted). The decision on 

whether to grant a defendant’s request for substitute appointed 

counsel is within the trial court’s discretion, and we will not disturb 

such a ruling absent an abuse of that discretion. See Johnson, 

¶ 29.

¶ 9 Tresco was represented by appointed counsel at trial. On the 

first morning of trial, he did not ask to replace his appointed 

counsel with nonappointed counsel of his choice. Nor did he ask to 

represent himself. Tresco’s appellate counsel’s argument that his 

Sixth Amendment right to counsel of choice was violated is 

therefore inapposite to Tresco; because Tresco had appointed 

counsel, not private counsel, he did not have the right to counsel of

his choice under the Sixth Amendment.
5

¶ 10 However, the Sixth Amendment did guarantee Tresco conflictfree appointed counsel who would represent him effectively. Tresco 

asked for replacement of his public defender due to an asserted 

conflict.

B. Trial Record

¶ 11 On the first morning of trial, Tresco informed the trial court 

that he had filed a grievance against his attorney and the following 

exchange occurred:

THE COURT: [I]s he intending to now file a 

motion on the morning of trial to require 

disqualification of counsel? Is that the 

intention here?

[TRESCO]: I would like for you to review that 

first to see which way I should go, because I 

don’t really know —

THE COURT: Well, I’m not here to give you 

legal advice, sir. I’m sorry. That’s not 

appropriate for me to do. And this document 

is essentially completely irrelevant to me and 

these proceedings.

[TRESCO]: Actually, there’s some relevance 

because, Your Honor, these are the things that 

led me to believe —

THE COURT: It would only be relevant if you’re 

filing or requesting that your counsel be 

withdrawn on the morning of trial.
6

[TRESCO]: Then, yes. Let’s proceed with that, 

Your Honor.

¶ 12 The trial court then explicitly recognized that it was required 

to evaluate Tresco’s request and stated that it would do so after jury 

selection. But, the trial court never addressed Tresco’s request.

¶ 13 By not ruling on the request, the trial court implicitly denied 

Tresco’s request for replacement of his public defender. But, 

because the court did not investigate the factual basis for the 

request, we had no record from which to determine whether the 

court’s implicit denial was an abuse of discretion. Having 

remanded with directions to investigate the basis for Tresco’s 

request and to determine whether he was entitled to replacement of 

his public defender, we now examine the findings and the 

supplemented record.

C. Remand Record

¶ 14 After two half-day hearings where the remand court heard 

testimony from Tresco and his trial counsel, Elizabeth Atkinson,

and entertained extensive argument from appellate counsel, the 

court found as follows:
7

• Tresco “likely asked for withdrawal of the public 

defender on the morning of trial because he lacked 

confidence in her representation, and not because 

he wanted to testify inconsistently with a defense 

theory she insisted on presenting — as he now 

claims — and not because of a conflict of interest, a 

complete breakdown in communication, or some 

other irreconcilable conflict.”

• Tresco “was not entitled to withdrawal of his public 

defender.” 

¶ 15 The grievance Tresco offered to the trial court was not part of 

our record before the remand. But, the remand court has now 

appropriately supplemented our record with the contents of that

grievance, which reads as follows:

I’m having a break down in communications 

with Atkinson. Since May 2015 we have had 

minimal contact in regard to putting together a 

defense strategy(s) for my case. In fact I 

believe that she does not have my best interest 

in mind in preparing my case for trial. On the 

few occasions that she did interact with me, 

she never seemed confident in defending me in 

this case, suggesting that I take the plea 

bargain that was offered to me by the 

prosecutor. I [gave] her a list of witnesses that 
8

are [beneficial] to my defense but she shunned 

all the witnesses that I presented to her, 

saying that she didn’t believe they were 

credible. Furthermore[,] she contradicted 

herself by saying she tried contacting a certain 

witness several times . . . . The witness stated 

that the only person to contact her regarding 

my case was the District Attorney[’]s office. I 

believe this to be a violation of my civil rights 

and also my due process. 

¶ 16 Based on our independent review of the record, as 

supplemented by the remand proceedings, we conclude that the 

remand court’s findings enjoy record support and reveal no abuse 

of discretion. Johnson, ¶ 29. Accordingly, we defer to those 

findings, including the remand court’s explicit and implicit 

credibility determinations. See People v. Travis, 2019 CO 15, ¶ 12 

(a reviewing court should examine the “‘total circumstances 

manifested by the record in [the] case’ and ‘particularly . . . the 

reasons presented to the trial judge at the time’” the right to 

counsel was allegedly denied) (citations omitted); see also People v. 

Harlan, 109 P.3d 616, 627-28 (Colo. 2005) (“[W]e cannot secondguess determinations of the trial court regarding witness 

credibility.”).
9

¶ 17 As the remand court aptly recognized, the grievance says 

nothing about Atkinson preventing Tresco from testifying about his 

claimed “heat of passion” defense. Instead, the grievance indicates 

dissatisfaction with Atkinson’s level of confidence. But a lack of 

confidence in a defendant’s ability to prevail at trial does not 

automatically create a conflict, nor does it indicate that the lawyer 

is not competent to defend a client. See People in Interest of C.Z., 

262 P.3d 895, 902 (Colo. App. 2010) (“An attorney’s disagreement 

with the client regarding the strength of the case does not 

constitute an actual conflict of interest requiring the appointment of 

substitute counsel.”); People v. Hodges, 134 P.3d 419, 425 (Colo. 

App. 2005) (“Neither the existence of animosity between defendant 

and [counsel] nor [counsel’s] asserted disagreement with defendant 

regarding the strength of defendant’s case constitutes an actual 

conflict of interest requiring the appointment of substitute 

counsel.”), aff’d, 158 P.3d 922 (Colo. 2007); People v. Garcia, 64 

P.3d 857, 863 (Colo. App. 2002) (the trial court did not abuse its 

discretion in denying defendant’s motion to appoint private counsel 

where the defendant alleged that his counsel, among other things, 

repeatedly told defendant “there is nothing you can do”); People v. 
10

Apodaca, 998 P.2d 25, 28 (Colo. App. 1999) (the trial court did not 

abuse its discretion in declining to appoint substitute counsel 

where the defendant objected to “defense counsel’s ‘personal 

disbelief’ of defendant’s version of the events” based on defense 

counsel’s statements during the sentencing hearing); see also

McKee v. Harris, 649 F.2d 927, 932 (2d Cir. 1981) (the defendant’s 

“loss of trust” in counsel did not give rise to good cause for 

substitution of counsel). It is a lawyer’s job to assess the best 

witnesses to present at trial, and there is nothing inherently 

improper about a lawyer opting not to present a witness she 

concludes is not credible. See Dunlap v. People, 173 P.3d 1054, 

1075 (Colo. 2007) (recognizing that if trial counsel had a reasonable 

basis for a strategic decision, then the decision enjoys a strong 

presumption of correctness and the inquiry generally ends). 

¶ 18 While the remand court accepted that Tresco was not entirely 

satisfied with his attorney, it found that Tresco and his counsel had 

not experienced a “true breakdown in communications” requiring 

counsel’s removal. See Bergerud, 223 P.3d at 694. The remand 

court also found no indication that counsel was prevented from 

effectively representing her client. The mere filing of a grievance 
11

because of disagreement as to trial tactics does not, without more, 

demonstrate that the relationship has deteriorated to a point at 

which counsel is unable to give effective aid to the client. People v. 

Martinez, 722 P.2d 445, 446 (Colo. App. 1986); see also United 

States v. Holman, 314 F.3d 837, 845-46 (7th Cir. 2002) (fact that 

defendant filed disciplinary inquiry against his attorney is “not 

enough to establish an actual conflict of interest”); United States v. 

Burns, 990 F.2d 1426, 1437-38 (4th Cir. 1993) (grievance filed 

against defendant’s attorney three days before trial did not create a 

conflict of interest); Mathis v. Hood, 937 F.2d 790, 796 (2d Cir. 

1991) (frivolous complaint against attorney does not create conflict 

of interest); cf. United States v. Patterson, 576 F.3d 431, 436-37 (7th 

Cir. 2009) (district court properly exercised discretion to reject 

defendant’s pro se motion to withdraw guilty plea without a hearing 

because he was represented by counsel); Perry v. State, 464 S.W.2d 

660, 664 (Tex. Crim. App. 1971) (filing of civil case against counsel 

did not create a conflict of interest). Rather, the court concluded 

that there was some disagreement concerning trial strategy and 

that counsel properly exercised her strategic decision-making

authority. The remand court could not fault Atkinson’s strategic 
12

choice not to proceed on a “heat of passion” theory where the 

evidence revealed that Tresco’s then fiancée was allegedly groped 

inside the bar they were patronizing, but the assault occurred 

outside, in the parking lot and not contemporaneously with the 

groping. 

¶ 19 In addition to claiming he wanted to proceed on a heat of 

passion defense — admitting that he injured the victim, but 

claiming it was for a legitimate reason — Tresco now suggests that, 

if deprived of the opportunity to secure alternate counsel, he would 

have opted to represent himself. Although the remand court’s order 

does not explicitly address this issue, the court implicitly rejected 

any claim that was not presented to the trial court, including any 

later claims purporting to supplement the grievance letter that 

formed the basis at trial for Tresco’s request to remove Atkinson. 

Cf. Garcia, 64 P.3d at 863 (if substitution of counsel is not 

warranted, a defendant continues with retained counsel or may ask 

to represent himself). Indeed, during the remand proceedings the 

court noted that Tresco’s story regarding his reasons for

dissatisfaction with Atkinson had changed over time, which 

necessarily factored into the court’s credibility calculus:
13

Mr. Tresco has had three opportunities to 

state: Atkinson misrepresented me; she was 

not effective, she was not doing what I wanted, 

I want a different attorney. And the first time 

we’re hearing the reasons for that and the 

things that he would have argued on that day 

was because she had a different theory

[ — ]that he demanded to testify and she 

wouldn’t allow that, she put him in a position 

he couldn’t, and that she [insisted against] 

pursuing heat of passion despite all of the 

other information that he had given . . . . 

That’s inconsistent with him saying “I want a 

different attorney” for entirely different reasons 

. . . there is no mention of the theory that 

today, now, in hindsight, which, in candor, 

there’s credibility issues just to begin with 

when someone comes in and says, “I know, If I 

can find a basis to say my attorney should 

have been allowed to withdraw, I get a new 

trial; and, if I don’t, I’m stuck with this 

conviction. It automatically raises a credibility 

issue. And to say this is not an argument you 

had made when you were raising it in the past, 

it’s not decisive, but it is something I’m 

considering . . . . I’m not aware of anything in 

the past where he has said, “I wanted to get rid

of Atkinson because it was critical to me to 

pursue one theory, and she wanted to pursue 

the other.” 

¶ 20 The remand court’s order clearly articulates why Tresco was 

not entitled to have Atkinson replaced as his counsel:

[T]o be entitled to a different attorney, [a 

defendant] must have a well-founded reason 

for believing that the appointed attorney 

cannot or will not completely represent him. 
14

People v. Arguello, 772 P.2d 87, 94 (Colo. 

1989). This requires that he establish good 

cause, such as a conflict of interest, a 

complete breakdown of communication or an 

irreconcilable conflict that would lead to an 

unjust verdict. Id. There is no evidence of any 

conflict of interest[] between Defendant and 

Atkinson at the time of trial. Although the 

grievance begins with a reference to a 

breakdown of communication, the evidence 

indicates that [there] was not actually such a 

breakdown, let alone a total breakdown that 

would lead to an unjust verdict. Finally, 

although there were disagreements between 

the Defendant and Atkinson on issues such as 

what witnesses to call, and the Defendant did 

not have faith in Atkinson’s representation, 

there were no conflicts . . . that would have 

prevented her from effectively representing 

him. As such, the Defendant was not entitled 

to withdrawal of Atkinson as his courtappointed counsel.

Once the remand court concluded that Tresco was not entitled to 

have Atkinson removed as his counsel, the remand court had no 

duty to further inquire about Tresco’s preferences. Appellate 

counsel suggests that the remand court should also have asked 

whether Tresco would have chosen to represent himself instead of 

proceeding with Atkinson. But, at trial, Tresco never asked to 

proceed pro se, and the remand court found no “good cause” to 

remove Atkinson. The inquiry therefore ends there. We disagree 
15

with the dissent’s conclusion that yet another remand is needed 

where the remand court did just what this court asked of it. That 

those findings are not what Tresco desired does not entitle him to a 

further remand. 

III. Right to Confrontation

¶ 21 Tresco next argues that the trial court violated his 

confrontation rights by erroneously admitting an expert’s testimony 

on nerve damage to the victim’s face. We disagree.

A. Preservation and Standard of Review

¶ 22 The parties agree that Tresco preserved this issue for appeal. 

¶ 23 We review confrontation claims de novo. People v. Merritt, 

2014 COA 124, ¶ 25. Because Tresco preserved this issue for 

appeal, we also review for constitutional harmless error. Id.; see 

also Hagos v. People, 2012 CO 63, ¶ 11 (“These errors require 

reversal unless the reviewing court is ‘able to declare a belief that 

[the error] was harmless beyond a reasonable doubt.’” (citation 

omitted)). Under this standard, the People must show that the 

error was harmless beyond a reasonable doubt — meaning that 

there is no reasonable possibility that it contributed to the 

conviction. Hagos, ¶ 11.
16

B. Law and Analysis

¶ 24 A defendant has the right to confront and effectively crossexamine witnesses. See U.S. Const. amend. VI; Colo. Const. art. II, 

§ 16; see also People v. Herrera, 87 P.3d 240, 253 (Colo. App. 2003) 

(“The right of a defendant to confront adverse witnesses is 

guaranteed by the Sixth and Fourteenth Amendments and includes 

an opportunity for effective cross-examination.”). However, a 

defendant’s confrontation right is a trial right; “it is not ‘a 

constitutionally compelled rule of pretrial discovery.’” People v. 

Spykstra, 234 P.3d 662, 670 (Colo. 2010) (citation omitted). 

Accordingly, effective cross-examination, under the Confrontation 

Clause, does not require “access to every possible source of 

information relevant to cross-examination.” Id. (citation omitted).

¶ 25 Tresco argues that the trial court violated his confrontation 

rights by erroneously admitting an expert’s testimony on the 

victim’s nerve damage. Because the prosecution’s discovery 

disclosure of the expert’s notes and medical reports did not mention 

nerve damage, Tresco reasons that his counsel had no opportunity 

to review this opinion and therefore could not effectively crossexamine the expert. 
17

¶ 26 But it is undisputed that the prosecution gave Tresco’s 

counsel a copy of the expert’s notes and reports. See Crim. P. 

16(I)(a)(1)(III) (the prosecuting attorney must make available to the 

defendant “[a]ny reports or statements of experts made in 

connection with the particular case, including results of physical or 

mental examinations and of scientific tests, experiments, or 

comparisons”). And while Tresco initially filed a discovery motion

six months before trial — requesting that the prosecution provide 

him with a written summary of the expert’s testimony — he never 

raised the issue again to alert the court that it had not yet ruled on 

his motion. 

¶ 27 Given that Tresco had the opportunity to cross-examine the 

expert witness, see, e.g., People v. Pineda, 40 P.3d 60, 67 (Colo. 

App. 2001) (“[B]ecause the hearsay declarant testified at trial and 

was subject to cross-examination, we reject defendant’s argument 

that her right to confrontation was violated.”), and he failed to follow

up on his discovery motion, we cannot conclude that the court 

violated his confrontation rights by admitting the expert’s testimony 

on nerve damage. See People v. Rodriguez, 209 P.3d 1151, 1160 

(Colo. App. 2008) (“[I]t was incumbent upon defendant to press for a 
18

definitive ruling before being able to claim on appeal that the court 

somehow erred [in admitting testimony].”), aff’d, 238 P.3d 1283 

(Colo. 2010); People v. Anderson, 837 P.2d 293, 299 (Colo. App. 

1992) (“[Any] claim by the defendant at the appellate level that he 

was unfairly surprised and unable to prepare adequately for crossexamination is thoroughly discredited by his failure to move for a 

continuance at the trial level.”) (citation omitted). 

IV. Sentencing

¶ 28 Tresco’s final argument is that the trial court erred in 

considering evidence of his previous gang affiliation — video clips of 

Tresco from the television show Gangland3 — in sentencing. 

Following Dawson v. Delaware, 503 U.S. 159 (1992), we conclude 

that evidence of gang affiliation is not per se inadmissible during 

sentencing if it is related to the nature of the offense and the 

defendant’s character, not merely his abstract beliefs. Thus, we

perceive no error. 

 

3 Gangland was a History Channel show airing from 2007-2010 that 

“[f]ollow[ed] the evolution and power of gangs across the United 

States.” IMDb, Gangland, https://perma.cc/7AAG-GAKM. 
19

A. Preservation, Standard of Review, and Applicable Law 

¶ 29 Tresco objected to the admission of the video clips on 

relevancy but not on the constitutional grounds — freedom of 

association — he now asserts. We review unpreserved 

constitutional claims for plain error. Hagos, ¶ 14 (“We reverse 

under plain error review only if the error ‘so undermined the 

fundamental fairness of the trial itself so as to cast serious doubt 

on the reliability of the judgment of conviction.’”) (citation omitted). 

To the extent Tresco challenges this admission as evidentiary error, 

our review is for an abuse of discretion. People v. Beatty, 80 P.3d 

847, 855 (Colo. App. 2003). 

¶ 30 Because sentencing is by its nature a discretionary function 

and the sentencing court is more familiar with the defendant and 

the case than the appellate court, the sentencing court “is accorded 

wide latitude in its sentencing decisions.” Id. When exercising its 

discretion, the sentencing court must “consider the nature of the 

offense, the character and rehabilitative potential of the offender, 

the development of respect for the law, the deterrence of crime, and 

the protection of the public.” People v. Maestas, 224 P.3d 405, 409 

(Colo. App. 2009). 
20

¶ 31 “Only in truly exceptional situations” will we substitute our 

judgment for that of the sentencing court and overturn a sentence. 

Beatty, 80 P.3d at 855. If the sentence falls within the statutory 

range and the record reflects that the sentence is based on 

appropriate considerations and is factually supported by the 

circumstances of the case, we must uphold the sentence. Maestas, 

224 P.3d at 409-10.

¶ 32 In sentencing, “the court shall afford the defendant an 

opportunity to make a statement . . . and to present any 

information in mitigation of punishment. The state also shall be 

given an opportunity to be heard on any matter material to the 

imposition of sentence.” Crim. P. 32(b)(1). The sentencing court 

should consider the nature of the offense and the offender’s 

conduct. People v. Tallwhiteman, 124 P.3d 827, 837 (Colo. App. 

2005). While the court may not base its determination on 

materially untrue evidence, it may “consider conduct for which the 

offender was never charged, conduct for which charges were filed 

but later dismissed as part of a plea agreement, or [in some 

circumstances] even conduct for which the offender was charged 

and subsequently acquitted.” Id. (citing People v. Neman, 91 P.3d 
21

369, 372 (Colo. 2004)); see, e.g., Beatty, 80 P.3d at 856 (the trial 

court correctly considered evidence that the defendant was involved 

in a separate incident with the victims the week before the 

shooting); cf. People v. Young, 987 P.2d 889, 894 (Colo. App. 1999) 

(while a sentencing court may consider a defendant’s lack of 

remorse, it may not consider his refusal to admit guilt).

¶ 33 Tresco’s reliance on Dawson, 503 U.S. at 166, for the 

proposition that the sentencing court violated his right to freedom 

of association by considering evidence of his unrelated gang

membership at sentencing is misplaced. 

¶ 34 Dawson held that evidence of a defendant’s membership in the 

Aryan Brotherhood was improperly introduced at sentencing. Id. at 

165. There, during sentencing the prosecution read a brief 

stipulation that the Aryan Brotherhood was a prison gang

originating in California in the 1960s that entertained white 

supremacist beliefs, and that there was a separate gang in the 

Delaware prison system (where the defendant was previously 

incarcerated) that called itself the Aryan Brotherhood. Id. The 

prosecutor also introduced evidence that Dawson had the words 

“Aryan Brotherhood” tattooed on his hand and a tattoo referencing 
22

being a disciple of Satan on his stomach. Id. at 162. The Court 

concluded that the narrowness of the stipulation “left the Aryan 

Brotherhood evidence totally without relevance to Dawson’s 

sentencing proceeding.” Id. at 165. As the evidence did not show 

that the Aryan Brotherhood had committed or endorsed any 

unlawful or violent acts or was tied to the murder at issue in the 

case, admitting the evidence violated Dawson’s First Amendment 

rights because it proved nothing more than his “abstract beliefs.” 

Id. at 166-67. But, the Court did not erect a per se barrier against 

the admission of gang-affiliation evidence, or other beliefs protected 

by the First Amendment, acknowledging that “[i]n many cases, for 

example, associational evidence might serve a legitimate purpose in 

showing that a defendant represents a future danger to society.” Id.

at 166. 

¶ 35 Cases after Dawson have reaffirmed that a sentencing court 

may consider evidence of a defendant’s gang membership if the 

evidence goes beyond the abstract beliefs of the gang. See, e.g., 

State v. Cooks, 720 So. 2d 637, 650 (La. 1998) (the case was the 

“much different case” hypothesized in Dawson where the evidence 

established a relevant link between the defendant’s character, 
23

sentencing, and gang membership); Cruz-Quintanilla v. State, 137 

A.3d 274, 277-78 (Md. Ct. Spec. App. 2016) (evidence of gang 

membership showed the defendant endorsed not just the gang’s 

beliefs but also its criminal activities), aff’d, 165 A.3d 517 (Md. 

2017). 

¶ 36 Thus, the relevant inquiry is whether the defendant’s gang 

affiliation, even a past affiliation, sheds light on the defendant’s 

character or other factors related to sentencing. Segovia v. State, 

467 S.W.3d 545, 554 (Tex. App. 2015) (“[C]ourts have long held that 

testimony regarding a defendant’s affiliation with a gang may be 

relevant and admissible at the punishment phase to show the 

defendant’s character.”); Ho v. State, 171 S.W.3d 295, 305 (Tex. 

App. 2005) (“Even if appellant was no longer affiliated with the gang 

at the time of the shooting, evidence that he was a gang member is 

relevant — and thus admissible at punishment — because it relates 

to his character.”); see also People v. Banks, 632 N.E.2d 257, 265 

(Ill. App. Ct. 1994) (the sentencing court did not improperly 

consider the defendant’s gang membership and reaffirming that a 

sentencing court may consider “the general moral character of the 

offender, his mentality, his habits, his social environments, his 
24

abnormal tendencies, his age, his natural inclination or aversion to 

commit crime and the stimuli which motivated his conduct”); Lay v. 

State, 886 P.2d 448, 453 (Nev. 1994) (evidence of the defendant’s 

gang membership was admissible to show his “future 

dangerousness to society”).

¶ 37 Courts also consider whether evidence of the defendant’s gang 

affiliation was a central or driving factor in the sentencing decision. 

See People v. Sims, 931 N.E.2d 1220, 1233-34 (Ill. App. Ct. 2010) 

(the sentencing court’s possibly inappropriate comment about 

“gang-related activity” was not error where the gang reference was 

not the dominant factor in sentencing the defendant); CruzQuintanilla, 137 A.3d at 278 (“Even assuming arguendo, that the 

testimony regarding MS–13 and appellant’s membership in MS–13 

was improper, the sentencing court gave no indication that it was 

giving appellant an increased sentence due to his gang 

membership[.]”). And courts consider whether the defendant was 

clearly prejudiced by the admission of evidence regarding his gang 

affiliation. See People v. Zapata, 808 N.E.2d 1064, 1071 (Ill. App. 

Ct. 2004) (vacating the sentence where “the trial judge improperly 

relied on her own personal disdain for gang violence, where there 
25

was no evidence that the murder was related to gang activity”); see 

also Ochoa v. Workman, 451 F. App’x 718, 725-27 (10th Cir. 2011) 

(even though evidence of the defendant’s gang membership was “at 

best, of marginal value,” the record made clear he suffered no 

prejudice from its admission). 

B. Analysis

¶ 38 Considering this legal landscape, we turn to the specifics of 

Tresco’s sentencing. At the sentencing hearing, the prosecutor 

played six clips from a 2010 episode of Gangland in which Tresco 

discussed his membership in the North Side Mafia. The prosecutor 

introduced the video because Tresco used language in it she 

thought “the [c]ourt would find interesting in determining” an 

appropriate sentence. 

¶ 39 In one clip, Tresco bragged about punching a taxi driver and 

said he served three years in prison for the incident. In response, 

Tresco called two witnesses who worked at Life Line, an 

organization that helps individuals exit gang life. They both stated 

that Tresco was no longer a member of the North Side Mafia, a 

decision he made voluntarily because he wanted to turn his life 

around. In their opinion, Tresco would not benefit from 
26

incarceration because it would exacerbate the rage and mental 

health issues he faced. 

¶ 40 The court also heard testimony from Tresco’s brother and 

Tresco himself, and it considered Tresco’s presentencing 

investigation report (PSIR) detailing Tresco’s criminal history, 

including four prior felony convictions and misdemeanor assaults. 

¶ 41 Because a second degree assault conviction carries a 

mandatory sentence to DOC custody, the prosecution asked for 

twelve to sixteen years and Tresco asked for the five year minimum. 

In reaching its decision, the court stated that Tresco continued to 

blame others; that he was manipulative; and that while it believed 

Tresco “sincerely and genuinely did renounce gang life,” he had a 

history of committing assaults and was a “very angry, violent, 

assaultive person” who “committed a very violent act.” Thus, 

opined the court, “for the safety of the community” and considering 

his “background and facts of the case,” sentencing Tresco to eight 

years in DOC custody with three years of mandatory parole was 

appropriate. 

¶ 42 In light of this record, we conclude the court properly 

considered the nature of the offense, Tresco’s character and 
27

rehabilitative potential, his disrespect for the law, and the interests 

of deterring crime and protecting the public. Maestas, 224 P.3d at 

409. Tresco’s sentence falls within the statutory range of five to 

sixteen years and is, in fact, on the lower end of the range and less 

than the sentence the prosecution requested. See id. at 409-10. 

Although there was no argument at trial that the crime at issue was 

gang-related, Tresco was convicted of second degree assault and the 

evidence of his prior gang affiliation properly related to his 

character — as relevant to sentencing — because it shed light on 

his tendency toward aggression, rage, and assaultive behavior. See, 

e.g., Cooks, 720 So. 2d at 650. The video clips and witnesses from 

Life Line — coupled with Tresco’s act of violently punching someone 

outside a bar — supported an inference that Tresco has a 

disposition toward assaultive behavior and remains a future danger 

to society, proper considerations for the court in crafting a 

sentence. See Tallwhiteman, 124 P.3d at 837 (court may consider 

uncharged conduct); Lay, 886 P.2d at 453. 

¶ 43 Further, the gang-affiliation evidence did not seem to be the 

dispositive factor in the court’s sentencing decision; indeed, the 

court affirmed that it believed Tresco had left gang life behind him 
28

and made no further comments on his past affiliation. See CruzQuintanilla, 137 A.3d at 278; cf. Zapata, 808 N.E.2d at 1073 (“[T]he 

transcript shows that the trial judge’s distaste for gang violence was 

the dominant factor in the determination of defendant’s sentence.”). 

¶ 44 Finally, we cannot conclude that Tresco was prejudiced by the 

video clips. Because the PSIR noted Tresco’s previous affiliation 

and included his criminal history of previous assaults, like the one 

he bragged about in the video clips, see Ochoa, 451 F. App’x at 726-

27, even without the disputed video clips, the court would likely 

have learned this information about Tresco.

¶ 45 In sum, because the evidence of Tresco’s previous gang 

affiliation related to the nature of the offense and Tresco’s 

character, not merely his abstract beliefs, we perceive no error in its 

admission. 

V. Conclusion

¶ 46 Having concluded the trial court did not err, we affirm the 

judgment and sentence.

JUDGE FURMAN concurs.

JUDGE ASHBY dissents.
29

JUDGE ASHBY, dissenting.

¶ 47 On the morning of trial, Tresco asked to fire his appointed 

counsel. But before any discussion occurred as to why Tresco 

wanted his attorney to be removed, and what he would choose to do 

if she was, the trial court cut off the discussion and stated that it 

would deal with his request later. It never did. The trial court was 

required to address whether Tresco was entitled to have his counsel 

removed. That was the basis for the first remand order. But we 

then made our own mistake when we so narrowly framed the issue 

that the remand court was to address. I believe that the majority’s 

refusal now to address the issue of Tresco’s right to represent 

himself unfairly requires Tresco to pay the price for both mistakes.

¶ 48 The majority holds that Tresco was not entitled to fire his 

attorney and be appointed substitute counsel. I agree. Despite 

Tresco raising the issue on remand, however, no court has yet 

addressed whether Tresco was entitled to fire his appointed counsel 

 

 To avoid confusion, I use the term “remand court” to refer to the 

judge who presided over the hearings on remand. I use “trial court” 

to refer to the judge who presided over the trial.
30

and represent himself. According to the majority, we need not 

address this issue. It is from this conclusion that I respectfully 

dissent. 

¶ 49 A defendant’s Sixth Amendment right to counsel also includes 

the right to self-representation. See People v. Davis, 2015 CO 36M, 

¶ 15. If the defendant wants to remove appointed counsel and 

represent himself, a showing of good cause is unnecessary. See 

People v. Campbell, 58 P.3d 1148, 1156 (Colo. App. 2002). Instead, 

a defendant is entitled to fire counsel and represent himself if his

decision to do so is knowing, intelligent, and voluntary. Id. The 

court may not deny a defendant’s request to represent himself just 

because the defendant seeks to pursue an ill-advised legal strategy 

or because self-representation is contrary to the defendant’s best 

 



It is unclear from the current record whether Tresco would have 

asked to retain counsel if his request to have his attorney removed

had been denied at trial. There was argument made on the need to 

make findings whether Tresco would have retained counsel, but the 

testimony as to whether he would have made that request is 

unclear and the remand court declined to expand the scope of the 

hearing or its findings because it believed to do so was outside the 

scope of the remand order. Because it would be an issue that could 

arise on remand, if I were writing for the majority, I would give the 

remand court authority to address this issue as the need arises. 
31

interests. See Faretta v. California, 422 U.S. 806, 834 (1975). 

Because the constitutional issues related to a defendant’s right to 

counsel are so significant, the supreme court has provided guidance 

as to the process trial courts should use in resolving these issues.

¶ 50 In Ronquillo v. People, 2017 CO 99, our supreme explained the 

process a trial court must follow when a defendant asks to fire 

retained counsel and receive substitute appointed counsel. The 

court first recognized that a defendant may fire retained counsel for 

any reason. Id. at ¶ 29. But because circumstances may prevent 

the defendant from being represented in the way he desires going 

forward, the supreme court made clear that the trial court has a 

duty to ensure that the defendant understands the consequences of 

firing retained counsel before doing so. Id. “Of course, a trial court 

can’t explain the consequences of firing counsel until it has 

determined what those consequences will be. So, when considering 

a motion to fire counsel (however framed), a court should first 

ascertain how the defendant wishes to be represented going 

forward.” Id. at ¶ 30.

¶ 51 The supreme court then more fully described how the court 

should structure its discussion with the defendant. If the 
32

defendant wants to represent himself, he may do so, provided that 

he knowingly, intelligently, and voluntarily waives his right to 

counsel. Id. at ¶ 32. If the defendant seeks substitute appointed 

counsel, the court must determine whether the defendant qualifies 

for appointed counsel and whether it is appropriate to allow the 

defendant to receive substitute appointed counsel under the 

circumstances. Id. at ¶¶ 33-35. If the defendant is not entitled to 

substitute appointed counsel, the court should explain to the 

defendant that he must choose between keeping current counsel 

and representing himself. Id. at ¶ 40.

¶ 52 I recognize that Ronquillo addressed a situation in which the 

defendant sought to fire retained counsel and receive appointed 

counsel. But Ronquillo does not start from scratch to build the 

described procedural framework. The origins of this framework are

rooted in prior cases, such as People v. Arguello, 772 P.2d 87 (Colo. 

1989), which recognized that the trial court has an active, not 

passive, role in ensuring that a defendant understands the 

consequences of firing his retained or court-appointed counsel. It is 

the court’s affirmative duty to explain, not the defendant’s 

responsibility to research, the consequences of his request. And the 
33

trial court cannot explain those consequences without first 

determining how the defendant wants to proceed after firing his 

attorney.

¶ 53 The supreme court in Arguello addressed a request identical to 

Tresco’s: a defendant’s request to fire appointed counsel. The court 

held that when an indigent defendant asks to fire appointed 

counsel, “the trial court has the obligation to inquire into the 

reasons for the dissatisfaction.” Id. at 94. If there is no good cause 

for granting the defendant substitute appointed counsel, “a 

defendant must be given ‘a clear choice’ between present counsel 

and waiver of counsel.” Id. (quoting United States v. Padilla, 819 

F.2d 952, 955 (10th Cir. 1987)).

¶ 54 Here, Tresco unequivocally asked to fire his appointed trial 

counsel on the first day of trial. As soon as he made this request, 

the trial court stated that it would deal with it later, and never did. 

Because of this error, Tresco was never given the choice of 

continuing with his appointed counsel or representing himself. 

¶ 55 The majority concludes that this was not a problem. First, 

without explicitly saying so, it appears that the majority stacks 

assumption upon assumption to conclude that Tresco was only 
34

asking to fire his appointed counsel and have other counsel 

appointed. I agree that the record at trial shows that Tresco asked 

only to fire his appointed counsel and did not indicate whether he 

sought substitute appointed counsel or to represent himself. Based 

on the fact that Tresco had filed a grievance against his appointed 

counsel, the majority assumes that he only sought to fire his 

appointed counsel “due to an asserted conflict.” Supra ¶ [II.A]. 

Based on this assumption, the majority seems to further assume 

that Tresco only wanted new appointed counsel and did not want to 

represent himself. These assumptions are not supported by the 

record. In fact, the only evidence in the record (Tresco’s testimony 

on remand) contradicts these assumptions.

¶ 56 Second, the majority concludes that because Tresco was not 

entitled to substitute counsel, and he never asked to represent 

himself at trial, no further inquiry is necessary. But as explained 

above, if a court determines that a defendant who has asked to fire 

his appointed counsel is not entitled to substitute counsel, “a 

defendant must be given ‘a clear choice’ between present counsel 

and waiver of counsel.” Arguello, 772 P.2d at 94 (quoting Padilla, 

819 F.2d at 955). Tresco told the trial court he needed help in 
35

understanding what his options were when he showed his grievance 

to the trial court and asked to have his counsel removed. He was 

relying on the trial court to revisit the issue. It was the trial court’s 

duty to determine how Tresco wanted to proceed. The trial court 

inarguably failed to discharge this duty. By stating that no further 

inquiry is required because “Tresco never asked to proceed pro se 

[at trial],” supra ¶ [II.C], the majority holds Tresco responsible for 

the trial court’s error.

¶ 57 Third, the majority concludes that the remand court did 

exactly what we asked it to do and therefore another remand is 

inappropriate. It is true that our remand order was framed 

narrowly and unfortunately did not anticipate the additional issues 

that arose on remand. And based on that lack of clarity, the 

remand court understandably believed that it could address only 

whether Tresco was entitled to fire his appointed counsel and 

 

 The majority states that “Tresco never asked to proceed pro se [at 

trial],” supra ¶ [II.C], without explaining the legal significance of 

that fact. I suppose it is possible that the majority is suggesting, 

without analysis or explanation, that Tresco waived, forfeited, or 

abandoned his right to represent himself. I would disagree with 

each of these suggestions.
36

receive substitute appointed counsel. Despite Tresco’s repeated 

objections, the remand court explicitly declined to address whether, 

if Tresco was not entitled to fire his appointed counsel, he would 

have made the choice to represent himself. But it recognized 

further findings might be necessary: “[I]f the court of appeals needs 

factual findings on [what Tresco would have done if the trial court 

had addressed and denied his request to fire his counsel], 

unfortunately they’ll have to remand the case for factual findings on 

that issue.”

¶ 58 And while the majority suggests otherwise, the remand court’s 

finding that there was no good cause to remove Tresco’s appointed 

counsel has nothing to do with whether Tresco could choose to 

represent himself. Though some would consider such a choice illadvised, it was Tresco’s choice to make. As the remand court 

anticipated, further findings are required.

¶ 59 Moreover, Tresco testified on remand that, had he been given 

the choice between keeping his appointed counsel or representing 

himself on the morning of trial, he would have chosen to represent 

himself. I understand how Tresco’s statement that he would have 

chosen to represent himself at trial, made after a trial at which he 
37

was convicted, might appear to be self-serving. But it was the trial 

court’s failure to properly address Tresco’s request to fire his 

appointed counsel that prevented Tresco from knowing and stating 

his choice at the appropriate time. 

¶ 60 By concluding that another remand is required, I recognize the 

challenges inherent in constructing a record that should have been 

made years ago. But those challenges are of the trial court’s 

making — not Tresco’s. I would therefore remand the case to the 

trial court with directions to make the necessary findings and 

determine whether Tresco would have effected a knowing, 

voluntary, and intelligent waiver of his right to counsel and 

represented himself if he was not entitled to substitute appointed 

counsel. I would further give the remand court authority to resolve 

any related right to counsel issues that may arise. Accordingly, I 

would not reach the other issues at this time.