Garibay reported to police that while he was driving, his car approached a Cadillac, and the Cadillac driver stepped on his brakes, switched lanes, yelled profanities at Garibay, and pointed a gun at him. A police officer gave chase, but the Cadillac driver eluded the officer. During its investigation, police determined that the Cadillac’s temporary tag was not associated with the Cadillac, but with a Buick registered to defendant’s father. Garibay then identified defendant in a photographic array as the Cadillac driver. The police never located the Cadillac or the gun. A jury found defendant guilty of menacing, vehicular eluding, reckless endangerment, failure to stop at a red light, and speeding.

On appeal, defendant contended that a new trial was required because the trial court erred by denying his motion to continue his trial to obtain substitute defense counsel. Here, although defendant expressed a general interest in retaining a specific lawyer, he had not taken any steps to retain the lawyer. Therefore, the trial court did not abuse its discretion in denying defendant’s request for a continuance.

Defendant next argued that the trial court erred in determining that no due process violation occurred when the prosecution suppressed exculpatory, material evidence. At trial, a detective testified about his efforts to locate the Cadillac or connect it to defendant. He testified that for a couple weeks he drove by defendant’s house, but never saw the Cadillac in front of the house. He also testified that he checked Division of Motor Vehicles (DMV) records and failed to find a Cadillac registered to defendant’s address. The detective admitted that he failed to report these efforts in any police report, and as a result, neither was disclosed to the defense during discovery. Therefore, the prosecution suppressed this evidence. However, the detective’s observations of defendant’s house were not exculpatory, favorable to the defense, or material. But evidence of the DMV search was unable to connect the Cadillac to defendant or his residence; thus, this evidence was exculpatory because it mitigated, albeit only slightly, the likelihood that defendant was the driver of the Cadillac. Nevertheless, the DMV search evidence was disclosed to the jury at trial and the jury still returned a guilty verdict, so it was not material. Therefore, the trial court did not err in finding no violation of due process.

Lastly, defendant contended that the trial court erred by giving instructions to the jury that lowered the prosecution’s burden of proof. Here, the trial court read the correct definitions of beyond a reasonable doubt and presumption of innocence contemporaneously with using hypotheticals and examples to explain several legal concepts to the jury. The comments did not lower the burden of proof in this case.

The judgment was affirmed.

Defendant was charged with first degree criminal trespass, aggravated sexual assault on a child, and sexual assault on a child. His trial on the latter two charges ended with a hung jury. In a separate proceeding, defendant pleaded guilty to second degree criminal trespass, and the prosecution dismissed the first-degree trespass charge. Defendant was retried on the sexual assault charges. Six days before his retrial, and again on the first day of trial, defendant requested a continuance to retain private counsel. The trial court denied the request.

On appeal, defendant contended that the district court abused its discretion when it denied his motion to continue. Here, defendant suggested that his representation was substantially definite; he stated he selected a particular attorney and his family had saved nearly all the funds required for a retainer. However, the trial court failed to inquire further, so the record is insufficient to determine whether defendant invoked the right to hire private counsel or whether, if invoked, his right to counsel of choice outweighed the public’s interest in the efficiency and integrity of the judicial system.

The case was remanded for further findings regarding the definiteness of defendant’s retention of chosen counsel.

Franklin Credit Management Corp. (Franklin Credit) obtained a default judgment against Galvan in 2007 and recorded a transcript of the default judgment with the Adams County Clerk and Recorder (the Clerk), creating a judgment lien on Galvan’s nonexempt real property in Adams County. However, Franklin Credit didn’t execute on the judgment, and the judgment lien expired in 2013. In 2016, Franklin Credit re-recorded the transcript of judgment with the Clerk but did not revive its judgment. Two years later, Franklin Credit obtained a writ of execution and delivered it to the Adams County Sheriff. The Sheriff recorded a certificate of levy with the Clerk and personally served Galvan with the notice of levy and writ of execution. Galvan moved to set aside the writ of execution. The district court granted the motion, set aside the writ of execution, and awarded Galvan attorney fees and costs.

On appeal, Franklin Credit contended that the district court erred in setting the writ aside based on the expired judgment lien. A valid judgment lien is not a necessary prerequisite to obtain a writ of execution. Further, the writ of execution issued here makes no reference to a judgment lien; it refers only to Franklin Credit’s judgment. The district court thus erred in setting aside the writ of execution because Franklin Credit’s judgment lien had expired.

Franklin Credit also contended that the district court erred in setting aside the writ of execution because Colorado recognizes an execution lien independent of a judgment lien and it had a valid execution lien. Though a judgment creditor may obtain a judgment lien and an execution lien, they are independent statutory liens. And although Franklin Credit’s judgment lien expired, its judgment has not. But the district court has not yet addressed the validity of the execution lien, nor has it addressed Galvan’s claim for homestead exemption.

The order setting aside the writ of execution and awarding Galvan attorney fees and costs was reversed and the case was remanded.