      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.


                                                                  SUMMARY
                                                               June 25, 2020

                                2020COA99

No. 16CA2136, People v. Tran — Crimes — Second Degree
Burglary; Constitutional Law — Eighth Amendment —
Proportionality Review

     A division of the court of appeals affirms Daniel Roy Tran’s

convictions for second degree burglary and possession of burglary

tools.

     But the division remands for the trial court to conduct a new

abbreviated proportionality review of Tran’s sentence considering

the supreme court’s recent decision in Wells-Yates v. People, 2019

CO 90M. In so doing, the court of appeals addresses an issue of

first impression: whether second degree burglary is still a per se

grave and serious offense after Wells-Yates.

     Applying the framework set out in Wells-Yates, the division

concludes that, in its second abbreviated proportionality review, the
trial court should not treat Tran’s convictions for second degree

burglary as per se grave and serious offenses, but should analyze

the facts and circumstances of each offense to determine whether it

is grave and serious.
COLORADO COURT OF APPEALS                                          2020COA99


Court of Appeals No. 16CA2136
El Paso County District Court No. 15CR986
Honorable Larry E. Schwartz, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Daniel Roy Tran,

Defendant-Appellant.


                  JUDGMENT AFFIRMED, ORDER REVERSED,
                   AND CASE REMANDED WITH DIRECTIONS

                                  Division IV
                         Opinion by JUDGE FURMAN
                        Welling and Pawar, JJ., concur

                          Announced June 25, 2020


Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Stephen Arvin, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    A jury found defendant, Daniel Roy Tran, guilty of second

 degree burglary and possession of burglary tools. The trial court

 sentenced Tran to twenty-four years in the custody of the

 Department of Corrections (DOC).

¶2    On appeal, Tran mounts two challenges to his convictions and

 one challenge to his sentence.

¶3    Regarding his convictions, Tran contends that (1) the trial

 court abused its discretion and violated his constitutional right to

 confront the witnesses against him by admitting into evidence a

 document that contained inadmissible testimonial hearsay and (2)

 the prosecutor committed reversible misconduct during rebuttal

 closing argument.

¶4    Tran also contends that the trial court erred by denying his

 request for an extended proportionality review of his sentence.

¶5    Because we conclude that (1) the trial court did not abuse its

 discretion or violate Tran’s Confrontation Clause rights by admitting

 the document and (2) the prosecutor did not commit reversible

 misconduct, we affirm Tran’s convictions.

¶6    But we remand for the trial court to conduct a new

 abbreviated proportionality review of Tran’s sentence considering


                                   1
 the supreme court’s recent decision in Wells-Yates v. People, 2019

 CO 90M.

                           I.   The Burglary

¶7    Employees at a Colorado Springs Walmart caught Tran

 shoplifting from the store. He tried to take eleven Blu-ray discs and

 one digital camera. Together, these items were worth $300.

¶8    When the employees apprehended Tran, they looked him up in

 a database where Walmart records the names of shoplifters. They

 discovered that Tran had been caught shoplifting from Walmart

 three times before. They also discovered that, after the most recent

 shoplifting incident, on June 28, 2014, Walmart had issued Tran

 the following “trespass notice.”




                                    2
¶9    The trespass notice informed Tran that he was no longer

 “allowed on property owned by [Walmart] . . . or in any area subject



                                  3
  to [Walmart’s] . . . control.” And it warned him that if he tried to

  enter Walmart property, Walmart “may contact law enforcement

  and request [he] be charged with criminal trespass.”

¶ 10   Tran printed and signed his name under language in the

  trespass notice that said, in relevant part, “I have read and

  understand this Notice or, in the alternative, have had it read to me

  and understand and acknowledge that as of 28 day of June, 2014, I

  am prohibited from entering [Walmart] property.”

¶ 11   The Walmart employees contacted the police, and Tran was

  arrested.

¶ 12   The trespass notice created a big problem for Tran because it

  showed that he “knowingly . . . enter[ed] unlawfully in” Walmart’s

  property. § 18-4-203(1), C.R.S. 2019. This meant that the

  prosecution could charge him with second degree burglary, a class

  4 felony, instead of just misdemeanor theft. See id.; § 18-4-

  401(2)(d), C.R.S. 2019.

¶ 13   The prosecution introduced the trespass notice, among other

  evidence, at trial.

¶ 14   After trial, the jury found Tran guilty of second degree burglary

  and possession of burglary tools.


                                      4
¶ 15     Later, the trial court found that Tran had six previous felony

  convictions and adjudicated him a habitual criminal. The habitual

  criminal statute required the trial court to sentence Tran to an

  aggregate of twenty-four years in the custody of the DOC. See § 18-

  1.3-401(1)(a)(V)(A), C.R.S. 2019; § 18-1.3-801(2)(a), C.R.S. 2019.

                         II.   The Trespass Notice

¶ 16     Tran contends the trial court erred, for two reasons, by

  admitting the trespass notice. First, he contends that it contained

  inadmissible hearsay. Second, he contends that it was testimonial

  evidence and that admitting it violated his constitutional right to

  confront the witnesses against him. See U.S. Const. amends. VI,

  XIV.

¶ 17     We perceive no reversible error.

                               A.    Hearsay

¶ 18     Hearsay is a statement other than one made by the declarant

  while at the trial or hearing, offered in evidence to prove the truth of

  the matter asserted. CRE 801(c). A statement “is (1) an oral or

  written assertion or (2) nonverbal conduct of a person, if it is

  intended by him to be communicative.” CRE 801(a).




                                      5
¶ 19     Generally, hearsay statements are inadmissible. CRE 802.

  But some statements are excluded from the rule against hearsay,

  and are admissible, regardless of whether they are introduced for

  the truth of the matter asserted. See generally CRE 801(d). And a

  hearsay statement is admissible if it falls under one of the

  enumerated exceptions to the hearsay rule. See generally CRE 803,

  804.

¶ 20     We review a trial court’s evidentiary rulings for an abuse of

  discretion. People v. Phillips, 2012 COA 176, ¶ 63.

¶ 21     Tran construes the entire trespass notice as one statement.

  The People counter that the trespass notice contains two distinct

  statements.

¶ 22     We agree with the People that the trespass notice contains two

  statements: (1) Walmart’s statement that Tran is no longer allowed

  on Walmart property and (2) Tran’s statement that he read and

  understood the notification. See CRE 801(a).

¶ 23     We will analyze the admissibility of each statement in turn.

                         1.   Walmart’s Statement

¶ 24     This statement read, in relevant part,




                                      6
            This document constitutes formal notice and
            warning that you are no longer allowed on
            property owned by [Walmart] . . . or in any
            area subject to [Walmart’s] . . . control. . . .
            Should you elect to ignore this Notice and
            enter [Walmart’s] . . . property, [Walmart] . . .
            may contact law enforcement and request you
            be charged with criminal trespass.

¶ 25   We first conclude that Walmart’s statement was hearsay. The

  statement asserted that Tran was “no longer allowed on” Walmart

  property. And, to prove that Tran committed second degree

  burglary, the prosecution had to prove that Tran “unlawfully”

  entered Walmart. § 18-4-203(1). Thus, the prosecution introduced

  Walmart’s statement to prove the truth of the matter it asserted.

  See CRE 801(c).

¶ 26   The trial court admitted Walmart’s statement under the

  business records exception, CRE 803(6). That exception allows a

  court to admit into evidence a “record” of

            acts, events, conditions, opinions, or
            diagnosis, made at or near the time by, or from
            information transmitted by, a person with
            knowledge, if kept in the course of a regularly
            conducted business activity, and if it was the
            regular practice of that business activity to
            make the . . . record . . . unless the source of
            information or the method or circumstances of
            preparation indicate lack of trustworthiness.



                                    7
  CRE 803(6).

¶ 27   Tran contends that Walmart’s statement does not fall under

  the business records exception because it was created in

  anticipation of criminal litigation. In support of this contention,

  Tran points us to

           a police officer’s trial testimony suggesting that Walmart

            issues trespass notices so police can “potentially file

            burglary charges” against shoplifters;

           language from the trespass notice warning that Walmart

            “may contact law enforcement and request you be

            charged with criminal trespass”; and

           the prosecutor’s comment during rebuttal closing

            argument that Walmart issues trespass notices because

            “you, ladies and gentlemen, get to see it. Because this is

            them giving proof.”

¶ 28   To address Tran’s contention, we first need to step back and

  examine the rationale behind the business records exception and

  why documents prepared in anticipation of litigation do not fall

  within this exception.




                                     8
¶ 29   The rationale behind the business records exception is that

  businesses have a strong incentive to keep accurate and reliable

  records of their regular affairs. See Schmutz v. Bolles, 800 P.2d

  1307, 1312 (Colo. 1990); see also Jordan v. Binns, 712 F.3d 1123,

  1135 (7th Cir. 2013) (explaining the rationale behind the similar

  federal rule). And, “the regularity of creating such records leads to

  habits of accuracy.” Jordan, 712 F.3d at 1135. Thus, business

  records are presumptively reliable. Id.; see also People v. Flores-

  Lozano, 2016 COA 149, ¶ 20.

¶ 30   But documents prepared in anticipation of litigation do not

  have the same guarantees of reliability. Flores-Lozano, ¶ 20; see

  also Melendez-Diaz v. Massachusetts, 557 U.S. 305, 321 (2009);

  Palmer v. Hoffman, 318 U.S. 109, 113-14 (1943); People v. Stribel,

  199 Colo. 377, 380, 609 P.2d 113, 115 (1980). Unlike a business

  keeping records of its normal activities, a business preparing

  records for litigation has a strong incentive to portray the facts in a

  way that will help it avoid liability. Jordan, 712 F.3d at 1135. And

  businesses do not routinely prepare these documents. See Palmer,

  318 U.S. at 113-14; Timberlake Constr. Co. v. U.S. Fid. & Guar. Co.,

  71 F.3d 335, 342 (10th Cir. 1995) (“[O]ne who prepares a document


                                     9
  in anticipation of litigation is not acting in the regular course of

  business.”). Thus, documents prepared in anticipation of litigation

  are presumptively unreliable and are not admissible under CRE

  803(6). Flores-Lozano, ¶ 20.

¶ 31   With these principles in mind, we conclude that Walmart’s

  statement in the trespass notice was not prepared in anticipation of

  litigation. We reach this conclusion for a few reasons.

¶ 32   First, Walmart’s statement warned Tran that he was not

  allowed on Walmart property and that if he entered Walmart

  property again, he could face criminal prosecution. This language

  suggests that the statement’s purpose was to deter criminal

  litigation, not to prepare for it.

¶ 33   Second, at the time Walmart issued the trespass notice to

  Tran, there was nothing to litigate. If Tran had complied with the

  notice, there would have been no criminal litigation. See Flores-

  Lozano, ¶ 19.

¶ 34   Third, the reliability concerns associated with documents

  prepared in anticipation of litigation — an incentive to deceive and a

  lack of routine practice in making the document — are not present

  here. Walmart was simply informing Tran that he could no longer


                                       10
  enter its property. Walmart had no incentive to misrepresent this

  fact to avoid liability. And the undisputed record shows that

  Walmart routinely issued trespass notices to shoplifters across the

  country.

¶ 35    Accordingly, we conclude that the trial court did not abuse its

  discretion in admitting this statement under CRE 803(6).

                           2.   Tran’s Statement

¶ 36    The second “statement” in the trespass notice was Tran’s

  signature.

¶ 37    Tran printed and signed his name under a block of text that

  read, “I have read and understand this Notice or, in the alternative,

  have had it read to me and understand and acknowledge that as of

  28 day of June, 2014, I am prohibited from entering Walmart Stores

  Inc., property. . . .”

¶ 38    We acknowledge that a signature, by itself, may not always be

  a “statement” within the meaning of CRE 801(a). But, any “written

  assertion” is a statement under the Rules of Evidence. See id. And

  by printing and signing his name under a block of text that said, “I

  have read and understand this Notice,” Tran was asserting that he

  had read and understood the trespass notice.


                                    11
¶ 39   We conclude that this statement was not hearsay because it

  was the statement of a party opponent. We reach this conclusion

  for the following reasons.

¶ 40   First, under CRE 801(d)(2)(A), a statement is not hearsay if

  “[t]he statement is offered against a party” and is “the party’s own

  statement in either an individual or a representative capacity.”

  Tran’s statement falls under this rule. He made the statement.

  And the prosecution offered the statement against him to prove that

  he knowingly and unlawfully entered Walmart. See § 18-4-203(1).

¶ 41   Second, we disagree with Tran’s contention that there is no

  evidence that he was the person who signed the document. At trial,

  a Walmart employee testified that he issued a new trespass notice

  to Tran on the date of the charged offenses. The employee testified

  that Tran’s signature on the trespass notice from the date of the

  charged offenses “appeared to be similar” to Tran’s signature on the

  June 28, 2014, trespass notice.

¶ 42   This employee also testified that he used Tran’s date of birth

  and photograph from Walmart’s records to confirm that Tran was

  the same person to whom Walmart had issued the June 28, 2014,

  trespass notice.


                                    12
¶ 43   Finally, we are not persuaded by Tran’s contention that we

  should not affirm his convictions on a ground that the prosecution

  did not rely on at trial. We may affirm the trial court’s evidentiary

  ruling on any ground supported by the record. Phillips, ¶ 63.

                       B.    Confrontation Clause

¶ 44   Tran next contends that the trial court violated his federal

  constitutional right to confront the witnesses against him by

  admitting the trespass notice. We conclude that (1) Tran’s own

  statement did not implicate the Confrontation Clause and (2) the

  trial court did not commit plain error by admitting Walmart’s

  statement.

¶ 45   The Sixth Amendment of the United States Constitution

  guarantees that, “[i]n all criminal prosecutions, the accused shall

  enjoy the right . . . to be confronted with the witnesses against

  him.”

¶ 46   The Supreme Court has construed the Sixth Amendment’s

  Confrontation Clause to bar the admission of testimonial hearsay

  against a criminal defendant unless the declarant is unavailable to

  testify at trial and the defendant has had a prior opportunity to




                                    13
  cross-examine the declarant. Crawford v. Washington, 541 U.S. 36,

  68 (2004).

¶ 47   A hearsay statement is testimonial if it was made “under

  circumstances which would lead an objective witness reasonably to

  believe that the statement would be available for use at a later

  trial.” Melendez-Diaz, 557 U.S. at 310 (quoting Crawford, 541 U.S.

  at 51-52); Phillips, ¶ 78.

¶ 48   Whether a hearsay statement falls under an exception to the

  rule against hearsay is immaterial to whether that statement

  violates the Confrontation Clause. See People v. Fry, 92 P.3d 970,

  978-79 (Colo. 2004) (“Although admissibility under a hearsay

  exception may have lent support to a finding of reliability under the

  Roberts test, in light of Crawford, such a determination is no longer

  relevant.”); Stevens v. People, 29 P.3d 305, 311 (Colo. 2001),

  overruled on other grounds by Fry, 92 P.3d 970 (“Although an out-

  of-court statement may be admissible because it falls within an

  exception to the hearsay rule, the statement must nevertheless be

  excluded at a criminal trial if admitting it into evidence would

  deprive the defendant of his constitutional right to be confronted

  with the witnesses against him.”).


                                    14
¶ 49   We review de novo whether the trial court violated Tran’s

  confrontation rights by admitting the trespass notice into evidence.

  Phillips, ¶ 85. Because Tran did not raise a Confrontation Clause

  objection at trial, we apply the plain error standard of reversal.

  Hagos v. People, 2012 CO 63, ¶ 14. Under this standard, we will

  reverse only if the trial court committed an “obvious and

  substantial” error that “so undermined the fundamental fairness of

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

  judgment of conviction.” Id. (quoting People v. Miller, 113 P.3d 743,

  750 (Colo. 2005)).

                           1.   Tran’s Statement

¶ 50   We first conclude that the Confrontation Clause did not apply

  to Tran’s statement in the trespass notice.

¶ 51   As noted, the Confrontation Clause guarantees that a

  defendant shall have the right to confront the “witnesses against

  him,” but it does not guarantee him the right to confront himself.

  U.S. Const. amend. VI; see also United States v. Orm Hieng, 679

  F.3d 1131, 1140 (9th Cir. 2012) (“[A] defendant cannot complain

  that he was denied the opportunity to confront himself.”); United

  States v. Brown, 441 F.3d 1330, 1358-59 (11th Cir. 2006) (same).


                                      15
¶ 52   Thus, the admission of Tran’s own statement did not violate,

  or even implicate, his rights under the Federal Confrontation

  Clause.

                       2.   Walmart’s Statement

¶ 53   We next conclude that the trial court did not commit plain

  error in admitting Walmart’s statement in the trespass notice. We

  reach this conclusion, without deciding whether Walmart’s

  statement was testimonial, because the evidence was cumulative.

¶ 54   Tran points out that the crucial issue at trial was whether he

  knew that he could not lawfully enter Walmart property. See § 18-

  4-203(1). But Tran’s statement in the trespass notice

  independently established that he knew he was not allowed to enter

  Walmart property. Thus, because Walmart’s statement was

  cumulative of Tran’s statement on this point, the court did not

  plainly err by admitting Walmart’s statement. See People v. Joyce,

  68 P.3d 521, 524 (Colo. App. 2002) (concluding that admitting

  hearsay statements was not plain error because the statements

  were cumulative of other evidence); see also People v. Douglas, 2015

  COA 155, ¶ 41 (concluding that the trial court did not commit plain




                                   16
  error in admitting lay testimony that was cumulative of properly

  admitted expert testimony).

¶ 55   Accordingly, we cannot say that any error in admitting

  Walmart’s statement was “obvious and substantial,” or so

  “undermined the fundamental fairness of the trial itself so as to

  cast serious doubt on the reliability of the judgment of conviction.”

  Hagos, ¶ 14 (quoting Miller, 113 P.3d at 750).

             III.   Prosecutor’s Rebuttal Closing Argument

¶ 56   Tran next contends that the prosecutor committed reversible

  misconduct at three points during his rebuttal closing argument.

  We disagree.

                     A.   Prosecutorial Misconduct

¶ 57   Prosecutors may not offer rebuttal closing arguments that

  “inflame the passions and prejudices of the jury, denigrate defense

  counsel, misstate the evidence, or assert a personal opinion as to

  the credibility of witnesses.” People v. Nardine, 2016 COA 85, ¶ 35.

  Instead, a prosecutor’s argument must focus on the “evidence and

  reasonable inferences to be drawn” from the evidence. Id. (citing

  People v. Ferrell, 200 Colo. 128, 131, 613 P.2d 324, 326 (1980)).




                                    17
¶ 58   Still, prosecutors have “wide latitude in the language and

  presentation style used” during closing argument. Domingo-Gomez

  v. People, 125 P.3d 1043, 1048 (Colo. 2005). This is especially true

  when a prosecutor is responding to defense counsel’s closing

  argument. People v. Lovato, 2014 COA 113, ¶ 64.

¶ 59   Because Tran did not object to the prosecutor’s rebuttal

  closing argument, we review for plain error and will reverse only if

  the prosecutor committed misconduct that was “flagrantly,

  glaringly, or tremendously improper.” Wend v. People, 235 P.3d

  1089, 1097 (quoting Domingo-Gomez, 125 P.3d at 1053).

                              B.   Analysis

¶ 60   We first place the prosecutor’s challenged remarks in their

  context. We will highlight the specific comments with which Tran

  takes issue.

¶ 61   Defense counsel’s closing argument challenged the evidence

  supporting the “knowing” element of second degree burglary. See

  § 18-4-203(1). She pointed out that Tran had received the trespass

  notice eight months before the date of the charged offenses. She

  also pointed out that Tran received the trespass notice at a different

  Walmart store.


                                    18
¶ 62   The prosecutor’s challenged comments during rebuttal closing

  argument responded to these points.

¶ 63   First, the prosecutor reminded the jury that the prosecution

  had the burden to prove Tran’s guilt beyond a reasonable doubt.

  He explained that “[t]he defense does not have to do a single thing

  in this case. They could sit over there, and if I haven’t proven this

  case beyond a reasonable doubt, you have to find [Tran] not guilty.”

¶ 64   Then, he began to challenge the defense theory of the case:

            But, when they do have some sort of a theory,
            you get to ask yourself, [“]What supports that
            theory[?] What evidence do you have that
            really supports it? What are the things that
            you can use?[”] You can use testimony. You
            can use photos, physical or tangible evidence.
            If we brought some of those items in, you can’t
            use vague or speculative hunches or guesses.
            That whole notion of there could be an
            identical twin out there, that’s a speculation.
            That’s a guess.

            Think about how bad our legal system would be
            when people were using those kind of things.
            You can’t use mere possibilities. They are
            unsupported by the actual evidence that you
            have, if they don’t rise to the level of
            reasonable doubt. There is all possibilities out
            there [sic]. But it has to rise to the level of
            reasonable doubt.

  (Emphasis added.)



                                    19
¶ 65   Later, he challenged the defense theory on different grounds:

            Their theory is that he had no idea what was
            really going on. He realized he wasn’t allowed
            to be coming back to Walmart. By the way,
            who would ever make that confusion of, oh,
            yeah, you guys are fine if I go shoplift at the
            other store, right? That’s no big deal. I can go
            do that. You don’t want me to shop at this one
            store over here.

            That doesn’t make any sense. Why is [it] that
            they are arguing all of this if their theory
            doesn’t fit with the evidence. There is a simple
            saying, [“]You admit what you can’t deny, and
            you deny what you can’t admit.[”] What it
            basically means, it’s the notion of, look, we
            have to — we can’t deny all of this stuff. So,
            we will go ahead and admit some of it. It’s
            kind of like minimization, damage control . . . .

            That’s exactly what the defense strategy is in
            this case. Folks, don’t let them get away with
            this. This seriously undermines the criminal
            justice system. This seriously minimized what
            happened in this case. Walmart deserves
            protections of law. Just because they come in
            with the theory of, [“]Admit what you can’t
            deny, and deny what you can’t admit,[”]
            doesn’t mean they should get away with it . . . .

            The law is very clear on this. You commit the
            crime, you have to be convicted of it . . . .
            Every bit of evidence points to the fact that the
            defendant is guilty of the second degree
            burglary and possession of burglary tools.
            Folks, you need to find him guilty. You need to
            hold him accountable for this.

  (Emphasis added.)

                                   20
¶ 66   Tran contends that the prosecutor committed reversible

  misconduct by telling the jurors that Tran should be held

  “accountable” because his defense “seriously undermines the

  criminal justice system” and by warning the jurors “how bad our

  legal system would be” were Tran’s defense to prevail. He also

  asserts that the prosecutor improperly denigrated defense counsel

  and Tran by using the terms “they” and “them.”

¶ 67   We conclude that the prosecutor’s remarks, taken in context,

  were not so improper as to constitute plain error. We reach this

  conclusion for the following reasons.

¶ 68   First, the prosecutor’s argument that the jury “need[ed] to hold

  [Tran] accountable” was not improper because the prosecutor made

  this comment immediately after arguing that the evidence

  established Tran’s guilt and that if “[y]ou commit the crime, you

  have to be convicted of it.”

¶ 69   Second, the prosecutor argued that Tran’s theory of defense

  relied on “mere possibilities” and “speculation.” But the prosecutor

  emphasized that the prosecution had the burden to prove Tran’s

  guilt beyond a reasonable doubt. Then, he encouraged the jury to

  focus on the evidence, not on “mere possibilities” or “speculation.”


                                    21
  This statement was proper because it tracks how the Colorado

  model jury instructions define “reasonable doubt.” See COLJI-

  Crim. E:03 (2019) (“[Reasonable doubt] is not a vague, speculative,

  or imaginary doubt . . . .”).

¶ 70   Third, on one reading, the prosecutor’s statement that the

  defense theory of the case “seriously undermines the criminal

  justice system” could sound like an attempt to inflame the jury.

  But these comments could also mean that a jury’s reliance on

  speculation, instead of the evidence presented at trial, would

  undermine the criminal justice system. We thus conclude that this

  comment was not so improper as to constitute plain error. Wend,

  235 P.3d at 1097.

¶ 71   Fourth, we disagree with Tran’s contention that the prosecutor

  denigrated defense counsel by referring to Tran and defense counsel

  as “they” and “them.” “They,” in and of itself, is not a denigrating

  term.

¶ 72   Accordingly, we perceive no reversible misconduct. Domingo-

  Gomez, 125 P.3d at 1048; Lovato, ¶ 64.




                                    22
                        IV.   Proportionality Review

¶ 73   Next, Tran contends that the trial court erred by denying his

  request for an extended proportionality review of his twenty-four-

  year sentence.

¶ 74   We remand for the trial court to conduct a new abbreviated

  proportionality review considering the supreme court’s recent

  decision in Wells-Yates.

               A.    The Law On Sentence Proportionality

¶ 75   The Eighth Amendment guarantees that “no cruel and

  unusual punishments” shall be “inflicted.” U.S. Const. amend. VIII;

  see also Colo. Const. art. II, § 20.

¶ 76   The Supreme Court has concluded that the Eighth

  Amendment’s Cruel and Unusual Punishments Clause prohibits

  “extreme sentences that are ‘grossly disproportionate’ to the crime.”

  Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J.,

  concurring in part and concurring in the judgment) (quoting Solem

  v. Helm, 463 U.S. 277, 288 (1983)); see also Ewing v. California, 538

  U.S. 11 (2003).

¶ 77   To determine whether a sentence is so grossly

  disproportionate that it violates the Eighth Amendment, the


                                     23
  Colorado supreme court’s Wells-Yates opinion recently articulated

  the following analysis.

¶ 78   First, the court conducts an “abbreviated proportionality

  review.” Wells-Yates, ¶¶ 10-11. This review has two steps. Id.

¶ 79   In step one, the court must assess the gravity or seriousness

  of each offense for which the defendant was convicted. Id. at ¶ 12.

  Colorado has recognized certain offenses as “per se” grave and

  serious — that is, offenses that are always grave and serious

  regardless of the underlying facts of the conviction. See id. at ¶ 13;

  People v. Deroulet, 48 P.3d 520, 524 (Colo. 2002), abrogated on

  other grounds by Wells-Yates, 2019 CO 90M.

¶ 80   In step two, the court must compare the gravity of the

  defendant’s offenses with the harshness of the sentence imposed for

  those offenses. Wells-Yates, ¶ 14. When weighing the harshness of

  the defendant’s sentence, the court must factor in the defendant’s

  parole eligibility. Id.

¶ 81   An abbreviated proportionality review of a sentence imposed

  under the habitual criminal statute has slightly different contours

  because the sentence is based on a triggering offense — the offense

  for which the defendant was convicted in the current case — and


                                    24
  multiple predicate offenses — the defendant’s previous felony

  convictions. See id. at ¶¶ 20-28. The supreme court has explained

  that, in this scenario,

             [i]f there are multiple triggering offenses, the
             reviewing court must look at the sentence
             imposed for each such offense and engage in a
             proportionality review of that sentence because
             each sentence represents a separate
             punishment for a distinct and separate crime.
             As to each sentence, the inquiry is whether the
             corresponding triggering offense and the
             predicate offenses, considered together, are so
             lacking in gravity or seriousness as to suggest
             that the sentence is grossly disproportionate.

  Id. at ¶ 24 (citation omitted).

¶ 82   A court only reaches the second part of a proportionality

  review — known as an “extended proportionality review” — if the

  abbreviated proportionality review raises an inference that the

  defendant’s sentence was “grossly disproportionate” to the gravity of

  his offense. Id. In this phase of the analysis, the court must

  compare the sentence at issue with “(1) sentences for other crimes

  in the same jurisdiction and (2) sentences for the same crime in

  other jurisdictions.” Id. at ¶ 17.




                                       25
                     B.   Tran’s Proportionality Review

¶ 83    After the trial court entered Tran’s convictions for second

  degree burglary and possession of burglary tools, it held a habitual

  criminal hearing.

¶ 84    The trial court found that the prosecution proved, beyond a

  reasonable doubt, that Tran had convictions for the following

  offenses:

            two convictions for possession of a controlled substance,

              a class 4 felony;

            forgery, a class 5 felony;

            two convictions for attempt to obtain a controlled

              substance by fraud or deceit, a class 6 felony; and

            second degree burglary, a class 4 felony.

¶ 85    Because Tran had six prior felony convictions, the trial court

  sentenced him under the habitual criminal statute. See § 18-1.3-

  801(2)(a)(I)(A).

¶ 86    The habitual criminal statute required the court to sentence

  Tran to twenty-four years in the custody of DOC for his second

  degree burglary conviction and twelve years for his possession of




                                     26
  burglary tools conviction. See id.; see also § 18-1.3-401(1)(a)(V)(A).

  The trial court imposed these sentences concurrently.

¶ 87   Tran requested a proportionality review of his sentence.

¶ 88   During its abbreviated proportionality review, the trial court

  found that the fact of Tran’s “six prior felony offenses, even ignoring

  the issue of grave and serious, tends to lend itself to somebody [for

  whom] any habitual offender sentence would be considered

  constitutionally proportionate.”

¶ 89   Then, relying on Deroulet, 48 P.3d at 524, the trial court found

  that Tran’s two second degree burglary convictions were per se

  grave and serious.

¶ 90   Relying again on Deroulet, the trial court found that Tran’s two

  convictions for possession of a controlled substance were per se

  grave and serious.

¶ 91   Because the trial court found that four of Tran’s convictions

  were “grave and serious,” it denied Tran’s request for an extended

  proportionality review.

                             C.   Wells-Yates

¶ 92   In late 2019, three years after Tran was sentenced, our

  supreme court decided Wells-Yates, which made significant changes


                                     27
  to the law on sentence proportionality in Colorado. See Wells-Yates,

  ¶¶ 1-5.

¶ 93      The supreme court held that

               (1) during an abbreviated proportionality
               review of a habitual criminal sentence, the
               court must consider each triggering offense
               and the predicate offenses together and
               determine whether, in combination, they are
               so lacking in gravity or seriousness as to raise
               an inference that the sentence imposed on that
               triggering offense is grossly disproportionate;
               (2) in determining the gravity or seriousness of
               the triggering offense and the predicate
               offenses, the court should consider any
               relevant legislative amendments enacted after
               the dates of those offenses, even if the
               amendments do not apply retroactively; (3) not
               all narcotic offenses are per se grave or
               serious; and (4) the narcotic offenses of
               possession and possession with intent are not
               per se grave or serious.

  Id. at ¶ 2 (footnote omitted).

¶ 94      Wells-Yates left a few questions unanswered. As relevant here,

  the supreme court declined to decide whether second degree

  burglary is still a per se grave and serious offense. See id. at ¶ 65

  n.17.

                                D.   Analysis




                                     28
¶ 95   The trial court conducted its abbreviated proportionality

  review of Tran’s sentence long before the supreme court decided

  Wells-Yates. So, the trial court relied on several points of law that

  are no longer valid.

¶ 96   First, the trial court concluded that Tran’s two felony

  convictions for possession of a controlled substance were per se

  grave and serious. This was true at the time of Tran’s abbreviated

  proportionality review. See, e.g., Deroulet, 48 P.3d at 524. But after

  Wells-Yates, convictions for possession of a controlled substance

  are no longer per se grave and serious. Wells-Yates, ¶ 2.

¶ 97   Second, it is not clear from the record whether the trial court

  considered subsequent legislative amendments as evidence of

  whether the offenses were per se grave and serious. Wells-Yates

  clarified that “in determining the gravity or seriousness of the

  triggering offense and the predicate offenses, the court should

  consider any relevant legislative amendments enacted after the

  dates of those offenses, even if the amendments do not apply

  retroactively.” Id.

¶ 98   Third, the record suggests that the trial court found Tran’s two

  convictions for second degree burglary were per se grave and


                                    29
  serious. The supreme court, in earlier cases, held that burglary is a

  per se grave and serious offense. See Deroulet, 48 P.3d at 524;

  Gaskins, 825 P.2d at 37, abrogated by Wells-Yates, 2019 CO 90M,

  (“The crimes of aggravated robbery, robbery, burglary, and

  accessory to first-degree murder involve violence or potential for

  violence by their very nature.”) But in Wells-Yates, the supreme

  court signaled that it was retreating from this, in part:

             Because the question is not before us, we do
             not address whether the designation of
             burglary as a per se grave or serious crime
             extends to third degree burglary, which
             includes breaking into a coin vending
             machine, see [section 18-4-204(1), C.R.S.
             2019], or even second degree burglary, which
             includes unlawfully remaining in a building or
             occupied structure after a lawful entry with the
             intent to commit therein a crime against
             property, see [section 18-4-203(1), C.R.S.
             2019].

  Wells-Yates, ¶ 65 n.17.

¶ 99   Thus, after Wells-Yates, it is unclear whether and to what

  extent second degree burglary remains a per se grave and serious

  offense. The facts of Wells-Yates do not help us answer this

  question. One of the defendant’s triggering convictions in Wells-

  Yates was for second degree burglary of a dwelling. See id. at ¶¶



                                    30
  29-31. The supreme court remanded for a “factual analysis” of the

  sentence imposed on this triggering offense — along with the

  defendant’s six other triggering offenses — but declined to say

  whether the second degree burglary conviction was per se grave and

  serious. Id. at ¶ 75 n.19.

¶ 100   Still, Wells-Yates gave a few guideposts for courts considering

  whether to designate an offense as per se grave and serious. First,

  the supreme court warned that “designating a crime per se grave or

  serious has significant consequences and courts should therefore

  do so cautiously.” Id. at ¶ 62. Second, it suggested that “[t]his

  concern is magnified in the habitual criminal context, where every

  sentence under review has been imposed without the trial court’s

  exercise of discretion.” Id. Third, the court cautioned that “a crime

  should not be designated per se grave or serious unless the court

  concludes that the crime would be grave or serious in every

  potential factual scenario. Using the designation otherwise is

  fraught with peril.” Id. at ¶ 63.

¶ 101   Following these guideposts, we conclude that on remand, the

  trial court should not treat Tran’s second degree burglary

  convictions as per se grave and serious. Instead, the trial court


                                      31
  should analyze the facts of each offense to determine whether it is

  grave and serious. See id. We do not hold that second degree

  burglary is never a per se grave or serious offense — Well-Yates

  does not go so far. See id. at ¶ 65 n.17. We hold only that the trial

  court, in this case, should not treat Tran’s second degree burglary

  convictions as per se grave and serious. See id. at ¶ 63.

¶ 102   Fourth, after concluding that Tran had four per se grave and

  serious offenses, it appears that the trial court did not analyze the

  harshness of Tran’s sentence. Wells-Yates clarified that a court

  must analyze the harshness of the defendant’s sentence, including

  parole eligibility, “even when the triggering offenses and/or the

  predicate offenses supporting a habitual criminal sentence include

  grave or serious crimes . . . .” Id. at ¶ 27.

¶ 103   Thus, we remand for the trial court to conduct a new

  abbreviated proportionality review under Wells-Yates. When

  conducting this review, the trial court should keep the following

  principles from Wells-Yates in mind:

           The court must consider each triggering offense together

             with Tran’s six predicate offenses “to determine whether,

             in combination, they are so lacking in gravity or


                                     32
  seriousness as to raise an inference that the sentence”

  for each triggering offense is grossly disproportionate, id.

  at ¶ 2.

 Tran’s two convictions for possession of a controlled

  substance are not per se grave and serious, id.

 The court should consider any relevant legislative

  amendments, even if they do not apply retroactively, as

  “the best evidence” of the gravity and seriousness of each

  of Tran’s convictions, id. at ¶¶ 49, 58.

 Whether and to what extent second degree burglary is

  per se grave and serious is now an open question, see id.

  at ¶ 65 n.17.

 The supreme court has cautioned that courts should use

  the per se grave and serious designation sparingly, see

  id. at ¶¶ 54-67.

 In assessing the harshness of Tran’s sentence, the trial

  court must consider Tran’s parole eligibility, id. at ¶ 14.

 Even if the trial court concludes that some, or all, of

  Tran’s convictions are grave and serious, it still must




                          33
             weigh the seriousness of those convictions against the

             harshness of Tran’s sentence, id. at ¶ 27.

¶ 104   Should the trial court find that either of Tran’s sentences

  raises an inference of gross disproportionality, we point out that

  Wells-Yates also clarified the procedure for conducting an extended

  proportionality review. Wells-Yates explained that “courts

  conducting an extended proportionality review should compare the

  sentence at issue to (1) sentences for other crimes in the same

  jurisdiction and (2) sentences for the same crime in other

  jurisdictions.” Id. at ¶ 17.

¶ 105   But wait, says Tran. Why don’t we just cut out the middleman

  and conduct an abbreviated proportionality review on appeal?

¶ 106   In Wells-Yates and its two companion cases, the supreme

  court concluded that trial courts are “uniquely suited” to conduct

  the kind of factual analysis required under Wells-Yates. See id. at

  ¶ 75 (quoting People v. Gaskins, 825 P.2d 30, 35 (Colo. 1992)).

  Thus, in all three cases, the supreme court remanded for the trial

  court to conduct a new abbreviated proportionality review following

  the principles it set out in Wells-Yates. Id.; see also People v.




                                     34
  McRae, 2019 CO 91, ¶ 19 (same); Melton v. People, 2019 CO 89,

  ¶ 28 (same). We do the same.

                             V.   Conclusion

¶ 107   The judgment of conviction is affirmed, the trial court’s order

  denying Tran’s request for an extended proportionality review is

  reversed, and the case is remanded for the trial court to conduct a

  new abbreviated proportionality review in accordance with Wells-

  Yates.

        JUDGE WELLING and JUDGE PAWAR concur.




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