People v. Cuevas

• Decision Date: 28 May 1987
• Citation: People v. Cuevas, 740 P.2d 25 (Colo. App. 1987)
• Docket Number: 85CA0959
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Sergio CUEVAS, Defendant-Appellant. . IV
• Court: Colorado Court of Appeals

Page 25

740 P.2d 25

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Sergio CUEVAS, Defendant-Appellant.

No. 85CA0959.

Colorado Court of Appeals Div. IV.

May 28, 1987.

Rehearing Denied June 25, 1987.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Maureen Phelan, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, Claire Levy, Deputy State Public Defender, Jonathan Willett, Deputy State Public Defender, Denver, for defendant-appellant.

VAN CISE, Judge.

Defendant, Sergio Cuevas, appeals a judgment of conviction entered upon a jury verdict of guilty of three counts of attempted second degree murder, three counts of crime of violence, and engaging in a riot. We reverse.

The evidence at trial established that defendant was associated with a group that called themselves "the Califas." The victims belonged to a group called "Los Meadows." There was a history of antagonism between the two groups which had resulted in repeated violent altercations in the nine months prior to the subject incident.

One of the victims testified that on the night of the offenses, several members of Los Meadows were driving around looking for members of the Califas, with the intent of engaging in a fight with them. They discovered a number of Califas standing in a cul-de-sac, drinking. The Los Meadows jumped out of their cars, and the Califas hid behind their cars. The Los Meadows armed themselves with rocks, a pool cue, and a tire iron, and began to advance toward the Califas. Defendant then opened fire with a handgun, wounding three of the Los Meadows. One of the Los Meadows fired six shots back, and, when he paused to reload, the Califas left in their cars.

At trial, the court instructed the jury on the affirmative defense of self-defense contained in the pattern jury instruction, COLJI-Crim. No. 7:16 (1983). The court also instructed the jury:

"A person is not justified in using physical force upon a person if:

"The physical force involved is the product of a combat by agreement not specifically authorized by law."

On appeal, arguing that there was no evidence concerning combat by agreement, defendant asserts that it was error to instruct the jury on that concept. We conclude that, although the evidence was sufficient to create a factual issue for the jury to determine, thus justifying giving the instruction, that instruction standing alone did not adequately instruct the jury on the issue.

A jury instruction is erroneous if it is misleading. People v. Alexander, 663 P.2d 1024 (Colo.1983).

The combat by agreement instruction which the trial court gave is based on § 18-1-704(3)(c), C.R.S. (1986 Repl.Vol. 8B), which provides:

"Notwithstanding the provisions of subsection (1) of this section [concerning use of physical force in defense of a person], a person is not justified in using physical force if:

....

"The physical force involved is the product of a combat by agreement not specifically authorized by law."

"Combat by agreement" is not further defined by the statute.

In the only Colorado case dealing with combat by agreement, Eckhardt v. People, 126 Colo. 18, 247 P.2d 673 (1952), the court stated:

"Ordinarily the defense of self-defense in strictly mutual combat is not allowable, but a limitation on the right of self-defense does not arise alone from the fact that the two parties here were mutually engaged in a ... fight. An agreement to combat and finish their troubles must exist and must be in the nature of an antecedent agreement to so fight."

Here, the jury should have been instructed as to the elements which must be proved by the prosecution in order...