People v. Gallegos

• Court: Colorado Supreme Court
• Writing for the Court: JUSTICE BOATRIGHT
• Citation: People v. Gallegos, 2025 CO 41, 572 P.3d 36 (Colo. 2025)
• Docket Number: Supreme Court Case No. 23SC605
• Decision Date: 04 August 2025
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Kenneth Alfonso GALLEGOS, Respondent.
• topic: Criminal Law,Civil Procedure

572 P.3d 136

2025 CO 41M

The PEOPLE of the State of Colorado, Petitioner,

v.Kenneth Alfonso GALLEGOS, Respondent.

Supreme Court Case No. 23SC605

Supreme Court of Colorado.

June 23, 2025

As Modified on Denial of Rehearing

August 4, 2025

Certiorari to the Colorado Court of Appeals, Court of Appeals Case No. 21CA976

Attorneys for Petitioner: Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado

Attorneys for Respondent: Springer and Steinberg, P.C., Michael P. Zwiebel, Harvey A. Steinberg, Denver, Colorado

En Banc

JUSTICE BOATRIGHT delivered the Opinion of the Court, in which CHIEF JUSTICE MARQUEZ, JUSTICE HOOD, JUSTICE GABRIEL, JUSTICE HART, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER joined.

JUSTICE BOATRIGHT delivered the Opinion of the Court.

¶1 Kenneth Alfonso Gallegos and three friends set out to obtain vaping products from a high school classmate, L.C. During the encounter, a struggle ensued, and one of Gallegos’s friends fatally shot L.C. The People charged Gallegos with felony murder with a predicate felony of robbery or attempted robbery, along with other offenses. At trial, Gallegos denied the charges; his theory of defense was that he had not planned to rob L.C. and was unaware a gun was present until it was too late to prevent the shooting. Gallegos also requested a jury instruction on the affirmative defense to felony murder, section 18-3-102(2), C.R.S. (2018). The trial court denied the proposed instruction, deeming the affirmative defense incompatible with Gallegos’s theory of defense, which the court characterized as an “outright denial” of any involvement in the underlying crime.

¶2 After a jury found Gallegos guilty, he appealed, and a division of the court of appeals reversed his felony murder conviction. People v. Gallegos, 2023 COA 47, ¶ 6, 535 P.3d 108, 113. The division held that defendants may both deny the predicate felony and raise the affirmative defense to felony murder, and that therefore the trial court erred by failing to give Gallegos’s requested instruction. Id. at ¶¶ 41-46, 57, 535 P.3d at 118-19, 121.

¶3 We granted the People’s petition for certiorari review and now hold that a defendant need not admit the predicate felony to raise the affirmative defense to felony murder.¹ Accordingly, we affirm the judgment of the court of appeals.

I. Facts and Procedural History

¶4 Gallegos, along with Dominic Stager and Demarea Mitchell, picked up Juliana Serrano from work. Gallegos drove the group to meet with an acquaintance, L.C., purportedly to purchase vaping products. At least some members of the group, however, had decided that they would take the products without paying. When the group arrived, L.C. approached the vehicle but refused to produce the vaping materials before he was paid. Gallegos, Stager, and Mitchell began searching the car, supposedly for a lost wallet. During this search, Mitchell took a gun Stager had brought, exited the vehicle, and confronted L.C. The two began grappling over the weapon and both fell to the ground. During the scuffle, Mitchell shot L.C., who ran into the house screaming. The group quickly returned to the vehicle, and Gallegos drove them away. L.C. later died from the gunshot wound.

¶5 At trial, there was conflicting testimony regarding Gallegos’s role in these events. Stager testified that the robbery was Gallegos’s idea and that Gallegos had told him they “just needed a gun.” Yet Stager also testified that others possessed the gun on the day of the attempted robbery, not Gallegos, and that when Gallegos saw the fight over it, he immediately moved to intervene, encouraging Serrano and Stager to help him stop the altercation. Mostly contradicting Stager, Serrano testified that “[t]here wasn’t really a plan,” and she didn’t remember if Gallegos was involved in any discussion of the robbery on the way to L.C.’s home. She also could not remember whether Gallegos had discussed or had seen the gun before the scuffle, or whether he had moved to stop the fight.

¶x6 Gallegos’s theory of defense was that he should be acquitted of all counts because he did not shoot L.C., plan the robbery, or even know that the gun was present. Gallegos also sought to assert the affirmative defense to felony murder. In doing so, Gallegos requested a jury instruction tracking the language of section 18-3-102(2), which provides defendants with an affirmative defense to felony murder if they meet certain conditions.²

¶7 The trial court declined to issue the instruction, concluding that the affirmative defense to felony murder was “diametrically opposed” to Gallegos’s theory of defense, which the court described as an “outright denial of everything.” Moreover, the court stated that it could not “find even a scintilla of evidence” supporting one of the affirmative defense’s conditions—that Gallegos “had no reasonable ground to believe that no other participant was armed with a gun.” See § 18-3-102(2)(d). The jury found Gallegos guilty of felony murder (predicated on robbery or attempted robbery) and other charges.³

¶8 On appeal, a division of the court of appeals held that Gallegos’s theory of defense did not preclude him from raising the affirmative defense to felony murder. Gallegos, ¶¶ 41-46, 535 P.3d at 118-19. The division noted that neither this court nor the legislature has imposed a “categorical requirement that the defendant admit to the underlying charged offense” to raise an affirmative defense. Id. at ¶ 35, 535 P.3d at 117. The division distinguished this case from other court of appeals cases holding that defendants who denied committing the charged offense could not raise an affirmative defense, reasoning that, unlike the defenses in those cases, the felony murder defense was not “inextricably intertwined with the elements of the [predicate] offense.” Id. at ¶¶ 28-38, 535 P.3d at 116-18. Consequently, the division overturned Gallegos’s felony murder conviction, affirmed his lesser convictions, and ordered a new felony murder trial. Id. at ¶ 57, 535 P.3d at 121.

¶9 We granted the People’s petition for certiorari.

¶ Analysis

¶10 We begin by introducing the relevant legal framework, which includes the applicable standard of review and principles of statutory interpretation, the differences between traverses and affirmative defenses, and the felony murder statute. We then evaluate whether defendants must admit to the predicate felony to raise the affirmative defense to felony murder and conclude that no such admission is required. Hence, we affirm the court of appeals.

A. Legal Framework

1. Standard of Review and Principles of Statutory Interpretation

[1-4] ¶11 Interpretation of a statute defining an affirmative defense, including evaluation of the defense’s elements or conditions, is a question of law that we review de novo. People v Speer, 255 P.3d 1115, 1119 (Colo. 2011); see also People v. Garcia, 113 P.3d 775, 780 (Colo. 2005). Our objective is to ascertain and give effect to the legislative intent underlying the statute. People v. Laeke, 2012 CO 13M, ¶ 11, 271 P.3d 1111, 1114. “To ascertain legislative intent, we first look to the statutory language.” Id. When the plain language is unambiguous and the legislature’s intent is reasonably certain, our inquiry ends. Jefferson Cnty. Bd. of Equalization v. Gerganojf, 241 P.3d 932, 935 (Colo. 2010).

2. Traverses and Affirmative Defenses

[5, 6] ¶12 There are two primary defenses to criminal charges: traverses and affirmative defenses. Roberts v. People, 2017 CO 76, ¶ 19, 399 P.3d 702, 705. A traverse defense seeks to “refute[ ] the possibility that the defendant committed the charged offense by negating one or more elements of that offense.” Id. at ¶ 21, 399 P.3d at 705.

[7, 8] ¶13 In contrast, “[a]n affirmative defense essentially admits the defendant’s commission of the elements of the charged act but seeks to justify, excuse, or mitigate the commission of the act.” Id. at ¶ 20, 399 P.3d at 705. In other words, by asserting an affirmative defense, the defendant attempts to “justif[y] the conduct on grounds deemed by law to be sufficient to render the participant exempt from criminal responsibility for the consequences of the conduct.” People v Huckleberry, 768 P.2d 1235, 1239 (Colo. 1989).

[9, 10] ¶14 Affirmative defenses are premised on “conditions” analogous to a crime’s elements. To raise such a defense, defendants must point to “some credible evidence” to support each of its conditions. § 18-1-407(1), C.R.S. (2024); see also Speer, 255 P.3d at 1119. This is a low bar: We have previously explained that “some credible evidence” includes “ ‘any credible evidence … even highly improbable’ evidence,” and is synonymous with “a scintilla of evidence.” Galvan v. People, 2020 CO 82, ¶ 24, 476 P.3d 746, 754 (first quoting § 18-1-407(1); then quoting Speer, 255 P.3d at 1119; and then quoting People v. Saavedra-Rodriguez, 971 P.2d 223, 228 (Colo. 1998)). Moreover, such evidence need not have been initially presented by the defendant. See § 18-1-407(1). It may also conflict with other evidence relied on, or arguments made, by the defendant. See Mathews v. United States, 485 U.S. 58, 66, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988) (declining to “make the availability of an [affirmative defense] instruction … subject to a requirement of consistency to which no other such defense is subject”).

[11, 12] ¶15 Once properly raised, an affirmative defense effectively adds a new element to the prosecution’s burden regarding the charged offense. Martinez v. People, 2024 CO 48, ¶ 12, 550 P.3d 713, 716. In that instance, the prosecution must then both prove the original elements of the charged offense and disprove the validity of the affirmative defense beyond a reasonable doubt. People v. Pickering, 276 P.3d 553, 555 (Colo. 2011); see also § 18-1-407(2). Prosecutors can overcome an affirmative defense by disproving at least one of its conditions beyond a reasonable doubt. See Huckleberry, 768 P.2d at...