Galvan v. People, 112320 COSC, 19SC460
| Opinion Judge | SAMOUR, JUSTICE |
| Party Name | Jose Luis Galvan, Sr., Petitioner v. The People of the State of Colorado, Respondent |
| Attorney | Attorneys for Petitioner: Megan A. Ring, Public Defender Meredith E. O'Harris, Deputy Public Defender Denver, Colorado Attorneys for Respondent: Philip J. Weiser, Attorney General Brian M. Lanni, Assistant Attorney General Denver, Colorado |
| Judge Panel | JUSTICE MÁRQUEZ dissents, and JUSTICE GABRIEL and JUSTICE HART join in the dissent. JUSTICE MÁRQUEZ, dissenting. |
| Case Date | November 23, 2020 |
| Court | Colorado Supreme Court |
Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 16CA1988
Attorneys for Petitioner: Megan A. Ring, Public Defender Meredith E. O'Harris, Deputy Public Defender Denver, Colorado
Attorneys for Respondent: Philip J. Weiser, Attorney General Brian M. Lanni, Assistant Attorney General Denver, Colorado
OPINION
SAMOUR, JUSTICE
¶1 Though our court doesn't have a time machine built out of a DeLorean, 1 today we circle back to 2018 to answer a question we left open in Castillo v. People, 2018 CO 62, ¶¶ 35-37, 421 P.3d 1141, 1147: When a trial court instructs the jury on the affirmative defense of self-defense, what quantum of proof is required to instruct the jury about an exception to that defense? The People urge us to adopt "some evidence" as the controlling standard. The defendant, Jose L. Galvan, Sr., advocates for a heightened standard-substantial and sufficient evidence for a reasonable juror to conclude that there are facts establishing the exception beyond a reasonable doubt. We hold that when a trial court instructs the jury on the affirmative defense of self-defense, it should instruct the jury on an exception to that defense if there is some evidence to support the exception. In determining whether the trial court properly instructed the jury on the provocation exception here, a division of the court of appeals correctly found that there was some evidence to support the exception.
¶2 The division also ruled, again correctly, that the trial court did not plainly err in failing to specify that all the references in the provocation instruction to "another person" meant the same person. Like the division, we hold that the trial court's provocation instruction, in addition to prudently tracking the governing statute and the Colorado Model Criminal Jury Instructions, made clear to the jury that for Galvan to forfeit the affirmative defense of self-defense, he had to have provoked the same person as to whom he was asserting self-defense.
¶3 Finally, the division determined that it didn't need to decide whether the provocation exception may be triggered by mere words because in this case both words and conduct supported the exception. Though the division was spot-on here too, it then decided, sua sponte and without briefing, whether the First Amendment prohibited Galvan's words from being considered, in conjunction with his physical acts, as evidence in support of the provocation exception. The division reasoned that the State regulated Galvan's speech when the trial court instructed the jury on the provocation exception, and that, therefore, his First Amendment rights were implicated. Reviewing the issue through a constitutional prism, the division opined that most of Galvan's speech was properly submitted as evidence in support of the provocation exception because such speech constituted fighting words that were not shielded by the bulwark of the First Amendment.
¶4 In this court, Galvan maintains again that his words alone could not justify giving the provocation instruction. According to Galvan, the exception requires a physical act-at minimum "a hostile act or gesture." Additionally, Galvan contends for the first time that allowing "mere words" to vitiate the right to the affirmative defense of self-defense would render the provocation exception unconstitutionally vague and overbroad and expose a defendant to criminal liability for speech that is afforded sanctuary in the First Amendment. The People counter that, since the exception requires a course of calculated criminal conduct, Galvan cannot scurry behind the First Amendment for refuge. Because the evidence in support of the provocation exception in this case was not limited to mere words, we conclude that Galvan advances hypothetical arguments that call for advisory opinions. Therefore, we decline to consider them.
¶5 We affirm the division's judgment. But because the division erred in raising and resolving the First Amendment issue, and because it would be improper for us to address the merits of the similar First Amendment claim brought by Galvan now, we are compelled to vacate the division's opinion.
I. Facts and Procedural History
¶6 A confluence of circumstances-a birthday celebration, a party bus, nightclubs, and alcohol-culminated in the charges filed against Galvan. It all happened on a weekend night in March 2015. A woman invited some of her friends to join her on a party bus from Greeley to downtown Denver to celebrate her birthday at various nightclubs. Among those on the bus were two pairs of siblings who had never met before: sisters C.M. and S.M. (the named victims); and Galvan and his sister, E.C. With the exception of E.C., all the guests overindulged and became highly intoxicated by the end of the evening. When Denver nightclubs closed around 2:00 a.m., the group boarded the party bus and headed back to Greeley. Shortly after exiting the bus in Greeley, Galvan punched and seriously injured C.M. But what led to the assault remains hotly disputed, and the witnesses painted two very different pictures at trial.
A. Version of Events Provided by C.M. and S.M. at Trial
¶7 On the way back to Greeley, S.M. and Galvan began arguing because he was throwing chips at a passenger who was passed out. S.M. told him to "knock [it] the fuck off," and he responded, "What are you going to do about it, bitch?" As the two went "back and forth," C.M. joined in the altercation. Galvan stood up and again asked, "What the fuck are you going to do about it, bitch?" He then took a step toward the sisters, at which point they, too, stood up. When the bus driver saw the confrontation, he intervened and warned the group that if they didn't stop arguing, they would have to walk home. Things calmed down, and the rest of the bus ride was uneventful.
¶8 The bus arrived back in Greeley around 3:00 a.m. As everyone disembarked, Galvan yelled at the sisters, telling them that they were "going to get it" and that they should "watch [their] back[s]." He also said that they were "nothing but a bunch of fat, fucking bitches." This insult drew an angry rebuke from C.M.: "Really? . . . Talk that shit to a bunch of females?" After exiting the bus, C.M. and her sister started walking to their aunt's house. They opted not to wait for their ride because they didn't think Galvan was going to leave.
¶9 Shortly thereafter, as Galvan and his sister drove slowly next to them in his truck, he yelled out the window: "If any of you want this, well, come and get it." He then pulled up in front of them, got out of his truck, and started running toward them with his fist cocked, as if ready to punch someone. C.M. walked toward him, with S.M. following closely behind her. Galvan and C.M. met in the street, where he punched her in the face, breaking her nose and causing her to fall and break her ankle. S.M. became enraged and began swinging at Galvan. The two physically fought until E.C. intervened. Galvan and E.C. fled the scene before the police responded.
B. Version of Events Provided by E.C. at Trial
¶10 Throughout the evening, C.M. made sexual advances toward E.C., causing E.C. to feel harassed and uncomfortable. On the way to Denver, C.M. "rubbed on [E.C.'s] boob," but claimed it was an accident. While at one of the nightclubs in Denver, C.M. asked E.C. to dance. When she declined the invitation, C.M. told her she needed a drink to loosen up and relax. But E.C. turned down the offer. Later, though, when C.M. asked her to dance again, she agreed. While they were dancing, E.C. became uncomfortable because C.M. touched her. E.C. and Galvan attempted to get a ride back to Greeley from friends, but none of the people they contacted by phone answered. As a result, they took the bus back to Greeley.
¶11 C.M. sat next to E.C. on the way back and made additional sexual advances. At one point, C.M. actually touched E.C.'s breast, and Galvan slapped C.M.'s hand away. When Galvan pushed C.M. to the side, the situation escalated. C.M. and S.M. started scolding Galvan because they felt that E.C. should make her own decisions. Galvan, in turn, stood up and yelled something offensive to them, and they responded in kind. Some pushing and shoving followed between Galvan and the sisters, though the scuffle quickly dissipated.
¶12 Sometime later, E.C. saw someone throwing pieces of food at a sleeping passenger, but E.C. denied that her brother was the culprit. She admitted, however, that when a piece of food landed on Galvan, he flicked it off and it inadvertently ended up on the sleeping passenger. This reignited the ruckus. S.M. grabbed Galvan by the shirt and told him she was not scared of him and that they could fight if he wanted to fight. Likewise, C.M. told Galvan they could fight. Because the bus driver intervened, the fracas stopped.
¶13 Upon arriving in Greeley, Galvan and E.C. went straight to his truck to leave. After driving about a block down the street, E.C. heard a loud bang from the rear of the truck and assumed that C.M. or S.M. had thrown a liquor bottle at them. Galvan pulled over so E.C. could check the truck for damage. While outside the truck, the sisters came up behind her. S.M. shoved her and, as C.M. swung to punch her, Galvan defended her by hitting C.M. After C.M. was knocked to the ground, S.M. attacked Galvan. E.C. and her brother then left the scene.
C. The Charges, Verdicts, Sentence, and Appeals
¶14 Galvan was charged with four counts, the first of which named C.M. as the victim and the last three of which named S.M. as the victim: (1) second degree...
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