COLORADO COURT OF APPEALS 2017COA40 

Court of Appeals No. 14CA0842 

Mesa County District Court No. 13CR443 

Honorable Valerie J. Robison, Judge 

The People of the State of Colorado, 

Plaintiff-Appellee, 

v. 

Kelly Gene Davis, 

Defendant-Appellant. 

JUDGMENT AFFIRMED 

Division II 

Opinion by JUDGE J. JONES 

Dailey and Berger, JJ., concur 

Announced April 6, 2017 

Cynthia H. Coffman, Attorney General, Brock J. Swanson, Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee 

Douglas K. Wilson, Colorado State Public Defender, Anne Stockham, Deputy 

State Public Defender, Denver, Colorado, for Defendant-Appellant
1 

¶ 1 Defendant, Kelly Gene Davis, appeals the judgment of 

conviction entered on a jury verdict finding him guilty of conspiracy 

to distribute a schedule II controlled substance and court verdicts 

finding him guilty on several habitual criminal charges. His 

primary contention on appeal is that the People were required to 

prove, and the jury was required to find, that he committed a 

particular overt act in furtherance of the alleged conspiracy. We 

hold, however, that where the People properly charge a single 

conspiracy, they are required to prove only that the defendant 

committed an overt act in furtherance of the conspiracy; that is, the 

jury must agree unanimously that the defendant committed such 

an overt act, but it need not agree unanimously that the defendant 

committed a particular overt act. It follows that the district court 

did not err in failing to require the prosecution to elect a particular 

overt act on which it was relying to prove the charge or in failing to 

give the jury a special unanimity instruction. Because we also 

reject defendant’s other contentions of error, we affirm the 

judgment of conviction. 
2 

I. Background 

¶ 2 In January 2013, the Grand Junction Police Department and 

a Drug Enforcement Agency Taskforce began investigating the 

activities of Leonel Gonzalez-Gonzalez. The investigation entailed 

wiretapping several of Mr. Gonzalez-Gonzalez’s telephones from 

February 2013 through April 2013. Police recorded several 

telephone calls between him and defendant during that time. 

¶ 3 As a result of the investigation, the People charged defendant 

with one count of conspiracy to distribute a schedule II controlled 

substance (methamphetamine) and several habitual criminal 

counts. 

¶ 4 At trial, Deziree Fisher, a named co-conspirator, testified to 

participating in and witnessing drug transactions involving 

defendant. She said that she provided defendant with drugs, which 

he would then sell, using the money he made to pay her back. Ms. 

Fisher also said that she had been convicted of intent to distribute 

a controlled substance for her role in drug sales involving defendant 

and other co-conspirators, and that she was testifying in the hope 

of receiving a sentence reduction. 
3 

¶ 5 Terry Lawrence testified that he was present in January or 

February 2013 when Mr. Gonzalez-Gonzalez and his associate 

delivered an ounce or more of methamphetamine to defendant and 

collected money from him. At the time of the trial, Mr. Lawrence 

had been charged with racketeering and conspiracy to distribute 

drugs. He testified that he had not yet been convicted or entered 

into a plea agreement, and that he was testifying in the hope of 

receiving a favorable plea offer. 

¶ 6 Detective Jason Sawyer testified that in phone calls recorded 

in February through April 2013, Mr. Gonzalez-Gonzalez agreed to 

supply defendant with methamphetamine to sell. He also testified 

that a series of recorded calls from April 1, 2013, showed Mr. 

Gonzalez-Gonzalez and defendant planning to rent a car to use to 

pick up drugs. Police officers watched the car rental franchise 

where the two had arranged to meet and identified one of the people 

who arrived at the meeting as defendant. 

¶ 7 A jury convicted defendant of the conspiracy charge, and the 

district court, after finding that defendant was a habitual criminal, 

sentenced him to forty-eight years in the custody of the Department 

of Corrections. 
4 

II. Discussion 

¶ 8 Defendant contends that the district court erred in (1) not (a) 

requiring the prosecution to elect the overt act on which it was 

relying to prove the conspiracy charge or (b) giving the jury a 

special, modified unanimity instruction regarding the particular 

overt act; (2) not providing a limiting instruction to preclude the 

jury from considering witnesses’ guilty pleas or desires to plead 

guilty as evidence of his guilt; and (3) imposing an aggravated 

sentence based on its own findings of prior criminality. We address 

and reject each contention in turn. 

A. Unanimity 

1. Preservation and Standard of Review 

¶ 9 The parties agree that this issue was not preserved: defense 

counsel never requested that the prosecution elect a particular 

overt act, nor did counsel request a special unanimity instruction. 

Because of this, the People argue that defendant waived his 

contention. That is so, they say, because defendant didn’t make a 

multiplicity challenge under Crim. P. 12(b).1 But the supreme court 

 

1 The Double Jeopardy Clauses of the United States and Colorado 

Constitutions protect “against multiple punishments for the same 
5 

recently rejected this argument in People v. Zadra, 2017 CO 18, 

¶ 17, and Reyna-Abarca v. People, 2017 CO 15, ¶¶ 38-45. 

¶ 10 Reviewing defendant’s contention requires us to determine 

whether the court erred and, if so, whether the error requires 

reversal. 

¶ 11 Determining whether to require the prosecution to elect a 

particular act on which it is relying to prove a charge involves an 

exercise of the district court’s discretion, see Thomas v. People, 803 

P.2d 144, 154 (Colo. 1990), as does determining whether to give a 

particular jury instruction, People v. Marks, 2015 COA 173, ¶ 53. 

 

offense.” Woellhaf v. People, 105 P.3d 209, 214 (Colo. 2005) 

(quoting Whalen v. United States, 445 U.S. 684, 688 (1980)). 

“Multiplicity” — the charging of multiple counts and the imposition 

of multiple punishments for the same offense — is a way of running 

afoul of this prohibition. See Quintano v. People, 105 P.3d 585, 589 

(Colo. 2005); Woellhaf, 105 P.3d at 214. Crim. P. 12(b)(2) provides, 

in relevant part, as follows: 

Defenses and objections based on defects in 

the institution of the prosecution or in the 

indictment or information or complaint, or 

summons and complaint, other than that it 

fails to show jurisdiction in the court or to 

charge an offense, may be raised only by 

motion. . . . Failure to present any such 

defense or objection constitutes a waiver of it, 

but the court for cause shown may grant relief 

from the waiver. 
6 

So in reviewing both decisions for error, we must decide whether 

the district court abused its discretion. 

¶ 12 But where the court did not have the opportunity to exercise 

discretion because the defendant did not move for an election or 

request the instruction now claimed to have been required, how can 

we even determine whether the court abused its discretion? We can 

do so by framing the inquiry in a slightly different way: had the 

defendant timely moved for an election or asked for the instruction, 

would the court have abused its discretion in refusing either of 

those requests? 

¶ 13 If, in this case, we answer that question “yes” with respect to 

either requiring an election or instruction, because defendant did 

not timely move for an election or ask for an instruction, we must 

then determine whether the error was plain. Under that standard, 

we will reverse only if the error is obvious and so undermined the 

fundamental fairness of the trial as to cast serious doubt on the 

reliability of the judgment of conviction. People v. Miller, 113 P.3d 

743, 750 (Colo. 2005). 
7 

2. Analysis 

¶ 14 In Colorado, jury verdicts in criminal cases must be 

unanimous. § 16-10-108, C.R.S. 2016; Crim. P. 23(a)(8), 31(a)(3); 

People v. Durre, 690 P.2d 165, 173 (Colo. 1984). To ensure jury 

unanimity, when the prosecution offers “evidence of multiple acts, 

any one of which would constitute the offense charged, the People 

may be compelled to elect the acts or series of acts on which they 

rely for a conviction.” Melina v. People, 161 P.3d 635, 639 (Colo. 

2007) (citing Laycock v. People, 66 Colo. 441, 182 P. 880 (1919)). 

But when the People charge a defendant with crimes occurring in a 

single transaction, they do not have to elect among the acts that 

constitute the crime, and a special unanimity instruction — that is, 

one telling the jury that it must agree unanimously as to the act 

proving each element — need not be given. Id. at 639-42. The first 

issue before us, then, is what constitutes a single transaction in the 

context of a conspiracy charge. 

¶ 15 The General Assembly’s enactments necessarily inform our 

inquiry. Section 18-2-204(1), C.R.S. 2016, provides that 

“[c]onspiracy is a continuing course of conduct which terminates 

when the crime or crimes which are its object are committed.” 
8 

(Emphasis added.) Another statute also specifies that “[i]f a person 

conspires to commit a number of crimes, he is guilty of only one 

conspiracy so long as such multiple crimes are part of a single 

criminal episode.” § 18-2-201(4), C.R.S. 2016. Read together, the 

applicable statutes make clear that a defendant can participate in a 

number of crimes or events to accomplish a single conspiracy. Put 

another way, committing a number of crimes, or engaging in a 

number of noncriminal overt acts, does not necessarily mean there 

is more than one conspiracy. 

¶ 16 Accordingly, we must determine how broadly the prosecution 

may define a conspiracy without the charge encompassing multiple 

criminal episodes, consequently requiring either an election or a 

special unanimity instruction. 

¶ 17 We begin with the principle that a single conspiratorial 

agreement may not be divided into multiple charges. E.g., United 

States v. Papa, 533 F.2d 815, 820 (2d Cir. 1976); United States v. 

Young, 503 F.2d 1072, 1075 (3d Cir. 1974); United States v. 

Palermo, 410 F.2d 468, 470 (7th Cir. 1969). The Supreme Court 

explained this principle in Braverman v. United States, 317 U.S. 49, 

53-54 (1942): 
9 

Whether the object of a single agreement is to 

commit one or many crimes, it is in either case 

that agreement which constitutes the 

conspiracy which the statute punishes. The 

one agreement cannot be taken to be several 

agreements and hence several conspiracies 

because it envisages the violation of several 

statutes rather than one. 

. . . Since the single continuing agreement, 

which is the conspiracy here, thus embraces 

its criminal objects, it differs from successive 

acts which violate a single penal statute and 

from a single act which violates two statutes. 

See also Model Penal Code § 5.03(3) (Am. Law Inst. 1985) (“If a 

person conspires to commit a number of crimes, he is guilty of only 

one conspiracy so long as such multiple crimes are the object of the 

same agreement or continuous conspiratorial relationship.”). As 

the above-quoted statutes indicate, Colorado has adopted this 

approach as it pertains to conspiracy charges. See also People v. 

Brown, 185 Colo. 272, 277, 523 P.2d 986, 989 (1974) (noting that 

Colorado has adopted the above-quoted language from Braverman),

overruled on other grounds by Villafranca v. People, 194 Colo. 472, 

573 P.2d 540 (1978); People v. Bradley, 169 Colo. 262, 265-66, 455 

P.2d 199, 200 (1969) (adopting the above-quoted language from 

Braverman). 
10 

¶ 18 The supreme court has indicated that the following factors 

tend to show a single criminal episode: the acts alleged occurred 

during the same period, the type of overt act alleged is the same, 

the unlawful objective of the conspiracy is the same, the modus 

operandi is the same, and the same evidence would be relevant to 

the charges. Pinelli v. Dist. Court, 197 Colo. 555, 558, 595 P.2d 

225, 227 (1979). Conversely, factors that may suggest that the 

People have charged multiple criminal episodes are that the 

defendant is “charged with conspiring (1) with different parties; (2) 

in different counties; (3) in different agreements; and [4] with 

allegations of different overt acts.” Id. 

¶ 19 Federal courts employ a similar multi-factor test to determine 

whether there was only one agreement, and thus only one 

conspiracy. See, e.g., United States v. Rigas, 605 F.3d 194, 213 (3d 

Cir. 2010) (en banc) (considering whether the locations of the 

alleged conspiracies were the same; whether there was a significant 

degree of temporal overlap between the conspiracies charged; 

whether there was an overlap of personnel between the conspiracies 

(including unindicted as well as indicted co-conspirators); the 
11 

nature of the overt acts charged; and whether the role played by the 

defendant was similar). 

¶ 20 Applying the relevant factors, we conclude that the evidence 

presented in this case shows one criminal episode, and hence one 

conspiracy. First, the actions occurred in a relatively short time 

frame — from February 21, 2013, to April 8, 2013 — and in one 

county. Cf. People v. Rivera, 56 P.3d 1155, 1160 (Colo. App. 2002) 

(noting the two-year period over which the alleged crimes occurred 

as one factor showing multiple conspiracies). Second, evidence of 

defendant’s phone conversations with one person (Mr. GonzalezGonzalez) primarily established the conspiracy.2 Third, all the overt 

acts on which the jury could have relied — defendant ordering 

drugs from Mr. Gonzalez-Gonzalez, accepting drugs from Ms. Fisher 

and Mr. Gonzalez-Gonzalez, and showing up to the car rental 

franchise at Mr. Gonzalez-Gonzalez’s request — were done in 

furtherance of the same unlawful objective — to distribute one type 

 

2 Ms. Fisher testified that in January or February 2013, Mr. 

Gonzalez-Gonzalez supplied drugs to someone who then sold them 

to her. She sold those drugs to defendant, who then sold them to 

others. She stopped selling drugs to defendant after about a month 

and a half, after which Mr. Gonzalez-Gonzalez supplied defendant 

directly. 
12 

of drug supplied by one co-conspirator. Though some of these acts 

were not crimes,3 they were all a part of a single course of conduct 

in which Mr. Gonzalez-Gonzalez would regularly supply 

methamphetamine to defendant to sell. A single crime of 

conspiracy can be defined this broadly. See Commonwealth v. 

Albert, 745 N.E.2d 990, 997 (Mass. App. Ct. 2001) (“No unanimity 

instruction was required because a conspiracy refers to a 

continuing course of conduct, rather than a succession of clearly 

detached incidents.”). And given the nature and limited scope of 

defendant’s arrangement with Mr. Gonzalez-Gonzalez, it is clear 

that “[n]o danger exists that some jurors would think [defendant] 

was guilty of one conspiracy and others would think []he was guilty 

of a different one.” People v. Russo, 25 P.3d 641, 647-48 (Cal. 

2001). 

¶ 21 Though the prosecution alleged numerous overt acts in 

furtherance of the single conspiracy, that did not require 

unanimous agreement by the jurors as to the precise overt act 

defendant committed. This is so because the Colorado Supreme 

 

3 See Braverman v. United States, 317 U.S. 49, 53 (1942) (“The overt 

act . . . need not be itself a crime.”). 
13 

Court has held that “unanimity is required only with respect to the 

ultimate issue of the defendant’s guilt or innocence of the crime 

charged and not with respect to alternative means by which the 

crime was committed.” People v. Taggart, 621 P.2d 1375, 1387 n.5 

(Colo. 1981). Indeed, it has long been established that a jury need 

not unanimously decide “which of several possible sets of 

underlying brute facts make up a particular element,” or “which of 

several possible means the defendant used to commit an element of 

the crime.” Richardson v. United States, 526 U.S. 813, 817 (1999); 

see also Schad v. Arizona, 501 U.S. 624, 631 (1991) (plurality 

opinion) (“[A]n indictment need not specify which overt act, among 

several named, was the means by which a crime was committed.”); 

United States v. Griggs, 569 F.3d 341, 343 (7th Cir. 2009) (“The law 

distinguishes between the elements of a crime, as to which the jury 

must be unanimous, and the means by which the crime is 

committed.”) (jury not required to agree unanimously on particular 

overt act taken in support of conspiracy). 

¶ 22 In United States v. Gonzalez, 786 F.3d 714, 718 (9th Cir. 

2015), the Ninth Circuit, addressing the overt act element of 

conspiracy specifically, reasoned as follows: 
14 

To be sure, because the instruction for the 

overt-act element requires the jury to find 

merely “[a]n overt act” committed by a person 

who has agreed and intended to commit a 

particular murder, it is possible that, although 

the jury unanimously agreed that an overt act 

was taken with respect to the unanimously 

agreed-upon murder conspiracy, different 

jurors may have concluded that different 

particular overt acts satisfied this element. 

Even if this occurred, however, [the 

defendant’s] right to a unanimous jury verdict 

was not violated because, so long as the jurors 

unanimously agreed that the overt-act element 

was satisfied, it was not necessary for them to 

agree on which overt act satisfied this element. 

¶ 23 Courts in other jurisdictions have also applied this principle to 

the overt act requirement of conspiracy charges. The California 

Supreme Court, for example, has explained that the element of an 

overt act “consists of an overt act, not a specific overt act.” Russo, 

25 P.3d at 647; see also United States v. Kozeny, 667 F.3d 122, 132 

(2d Cir. 2011) (“[W]hich overt act among multiple such acts 

supports a proof of a conspiracy conviction is a brute fact and not 

itself an element of the crime.”); Griggs, 569 F.3d at 343; State v. 

Ayala-Leyva, 848 N.W.2d 546, 553-54 (Minn. Ct. App. 2014) (the 

jury was not required to unanimously agree on which of twenty 

overt acts had been committed in furtherance of drug conspiracy; 
15 

distinguishing between unanimity on the elements of a crime and 

unanimity as to the facts establishing each element of a crime). 

Colorado’s statute criminalizing conspiracy reflects this approach. 

§ 18-2-201(2) (“No person may be convicted of conspiracy to commit 

a crime, unless an overt act in pursuance of that conspiracy is 

proved . . . .”) (emphasis added). 

¶ 24 In sum, courts agree that “a special unanimity instruction is 

not necessary where an indictment charges a single conspiracy 

because ‘the crux of a conspiracy charge . . . [is] [t]he defendant’s 

voluntary agreement with another or others to commit an offense.’” 

United States v. Dvorin, 817 F.3d 438, 447 (5th Cir. 2016) 

(alterations in original) (quoting United States v. Dillman, 15 F.3d 

384, 391 (5th Cir. 1994)); see also United States v. Cromer, 436 F. 

App’x 490, 493 (6th Cir. 2011) (“[T]he jury need only unanimously 

decide that there was an agreement to violate drug laws . . . .”). 

¶ 25 People v. Rivera, on which defendant relies, is distinguishable. 

In that case, the prosecution presented evidence of securities 

transactions “involving at least twenty-five investors, concerning 

two proposed daycare facilities in different cities, and spanning a 

two-year period.” 56 P.3d at 1160. Further, there was substantial 
16 

variety in the defendant’s involvement in the various acts: 

“Defendant took part in soliciting some investors, but not others, 

and as to at least one transaction there was no evidence that she 

had any direct contact with the investor.” Id. The division therefore 

concluded that “[u]nder these circumstances, there is a reasonable 

likelihood that the jury could have disagreed concerning the act or 

acts defendant committed.” Id. In essence, there were multiple 

conspiracies. 

¶ 26 As discussed above, the conspiracy in this case occurred over 

only a few months in one county. There is also a uniformity of 

defendant’s involvement in the acts that was lacking in Rivera — 

defendant was convicted based on ongoing phone calls and 

transactions with one person ordering methamphetamine in similar 

quantities. See United States v. Sutherland, 656 F.2d 1181, 1202 

(5th Cir. 1981) (“[T]he evidence as to each [of the overt acts] is 

remarkably similar. Therefore this series of alleged acts comprises 

one ‘conceptual group’ and the jury need not have unanimously 

agreed as to which was proven.”). 

¶ 27 We therefore conclude that the People charged only one 

criminal episode. It follows that the district court did not err, much 
17 

less plainly err, in failing to require an election or to give the jury a 

special unanimity instruction.4

B. Limiting Instruction 

¶ 28 We also reject defendant’s contention that the district court 

erred by failing to provide a limiting instruction telling the jurors 

they could not consider Ms. Fisher’s guilty plea and Mr. Lawrence’s 

desire to receive a favorable plea offer as evidence of defendant’s 

guilt. 

¶ 29 Because defendant did not request a limiting instruction, we 

review for plain error. People v. Griffin, 224 P.3d 292, 298 (Colo. 

App. 2009). 

 

4 Given the abundance of authority holding that no special 

instruction is required in comparable circumstances, any error was 

certainly not “so clear cut and so obvious that a trial judge should 

have been able to avoid it without benefit of the objection.” People 

v. Conyac, 2014 COA 8M, ¶ 54. “Generally, an error is obvious 

when the action challenged on appeal contravenes (1) a clear 

statutory command; (2) a well-settled legal principle; or (3) Colorado 

case law.” People v. Dinapoli, 2015 COA 9, ¶ 30; accord People v. 

Pollard, 2013 COA 31M, ¶ 40; see also People v. Valdez, 2014 COA 

125, ¶ 27 (where case law on an issue is unsettled, an error is not 

obvious); Dougherty v. State, 21 A.3d 1, 6-7 (Del. 2011) (“Several 

state and federal courts have concluded that a trial judge does not 

commit plain error where defense counsel fails to request, and the 

trial judge does not give sua sponte, a specific unanimity 

instruction on the overt act requirement of a conspiracy count.”). 
18 

¶ 30 Pursuant to CRE 105, where there is evidence that is 

admissible for one purpose but not for another, “the court, upon 

request, shall restrict the evidence to its proper scope and instruct 

the jury accordingly.” And, “[a]s a general rule, defense counsel is 

charged with the task of deciding whether a limiting instruction is 

desirable,” Griffin, 224 P.3d at 298, because “for strategic or tactical 

reasons, [defense counsel] may consider that such an instruction 

would be more harmful than beneficial.” People v. Gladney, 194 

Colo. 68, 72, 570 P.2d 231, 234 (1977) (A limiting instruction 

“might tend to draw special attention to the evidence, thus giving it 

greater emphasis and jury impact than it would have had if left 

alone.”). 

¶ 31 Thus, absent a special statutory duty, a trial court has no 

duty to give a limiting instruction sua sponte. See, e.g., Davis v. 

People, 2013 CO 57, ¶ 21 (“Unless a limiting instruction is either 

required by statute or requested by a party, a trial court has no 

duty to provide one sua sponte.”). Defendant does not point to any 

such statutory duty applicable in this case. 

¶ 32 Defendant’s reliance on People v. Brunner, 797 P.2d 788, 789 

(Colo. App. 1990), is misplaced. In that case, the division held that 
19 

a trial court “should normally instruct the jury that [an 

accomplice’s guilty plea] may be used only for limited purposes and 

may not be used as substantive evidence of another’s guilt.” Id. 

But in this case, because defense counsel failed to request such an 

instruction, “appellate review is limited to determining whether 

plain error occurred.” People v. Shepherd, 43 P.3d 693, 696 (Colo. 

App. 2001). And numerous cases hold that a trial court’s failure to 

give a limiting instruction sua sponte does not constitute plain 

error. See, e.g., People v. Montalvo-Lopez, 215 P.3d 1139, 1145 

(Colo. App. 2008) (failure to request a limiting instruction on how 

the jury should consider an accomplice’s guilty plea did not place a 

duty on the trial court to give one sua sponte). None of the cases 

defendant cites says otherwise. 

¶ 33 Further, there was no obvious error. The testimony was 

relevant for two reasons. First, it allowed the People to “blunt an 

expected attack on the credibility of the accomplice as a witness.” 

Brunner, 797 P.2d at 789. Second, it “show[ed] acknowledgement 

by the accomplice of participation in the offense,” id., which is 

particularly relevant in establishing a conspiracy. And defendant 
20 

took strategic advantage of the witnesses’ plea and potential plea, 

using the testimony to undermine their credibility. 

¶ 34 Given all this, the district court “did not commit the kind of 

obvious error that may lead to reversal under the plain error 

doctrine.” Griffin, 224 P.3d at 299; see also People v. Pollard, 2013 

COA 31M, ¶ 40 (for an error to be obvious, it must contravene a 

clear statutory command, a well-settled legal principle, or Colorado 

case law). 

C. Judicial Determination of Habitual Criminality 

¶ 35 Lastly, defendant contends that his rights to a trial by a jury 

and to due process of law were violated when the judge, instead of a 

jury, found that he had been convicted of three prior felonies. 

¶ 36 As the law stands today, “[o]ther than the fact of a prior 

conviction, any fact that increases the penalty for a crime beyond 

the prescribed statutory maximum must be submitted to a jury, 

and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 

530 U.S. 466, 490 (2000) (emphasis added); see also Blakely v. 

Washington, 542 U.S. 296, 301 (2004) (applying this rule). The 

Colorado Supreme Court, in applying this rule, has held that the 

fact of a prior conviction, called a “Blakely-exempt” fact, “is 
21 

expressly excepted from the jury trial requirement” for aggravated 

sentencing. Lopez v. People, 113 P.3d 713, 723 (Colo. 2005); see 

also People v. Huber, 139 P.3d 628, 630 (Colo. 2006). The court has 

said that, “[a]lthough there is some doubt about the continued 

vitality of the prior conviction exception, we conclude that it 

remains valid after Blakely.” Lopez, 113 P.3d at 723 (footnote 

omitted); see also Huber, 139 P.3d at 631. 

¶ 37 Defendant argues that Lopez was wrongly decided or that 

developments after Lopez indicate that the “prior conviction 

exception” is no longer valid. Specifically, he asserts that, “[w]hile it 

has not been expressly overruled,” the case from which the prior 

conviction exception arose — Almendarez-Torres v. United States, 

523 U.S. 224 (1998) — has been called into question and will be 

overturned by the United States Supreme Court when the 

opportunity arises. See Apprendi, 530 U.S. at 488-90; Misenhelter 

v. People, 234 P.3d 657, 660 (Colo. 2010). 

¶ 38 But because the Supreme Court has not overruled the prior 

conviction exception recognized in Apprendi and Blakely, those 

authorities continue to control our resolution of defendant’s 

argument. See People v. Hopkins, 2013 COA 74, ¶ 25; see also 
22 

People v. Gladney, 250 P.3d 762, 768 n.3 (Colo. App. 2010) (“[W]e 

are bound to follow supreme court precedent.”). “We do not have 

the power to ignore those precedents based on speculation of how 

the Court might rule in a future case.” Hopkins, ¶ 25. Therefore, 

defendant’s argument fails. 

III. Conclusion 

¶ 39 The judgment is affirmed. 

JUDGE DAILEY and JUDGE BERGER concur.