People v. Gallegos
| Docket Number | Court of Appeals No. 21CA0976 |
| Decision Date | 01 June 2023 |
| Citation | 535 P.3d 108,2023 COA 47 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kenneth Alfonso GALLEGOS, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Springer and Steinberg, P.C., Harvey A. Steinberg, Michael P. Zwiebel, Craig L. Pankratz, Denver, Colorado, for Defendant-Appellant
Opinion by JUDGE LIPINSKY
¶ 1 This case presents an unresolved issue in Colorado: whether a defendant can assert the felony murder affirmative defense despite denying he committed the predicate felony and, thus, denying he committed felony murder.
¶ 2 Colorado law allows criminal defendants to assert a variety of affirmative defenses. The general affirmative defense statute provides that, "unless the state's evidence raises the issue involving the alleged defense, the defendant, to raise the issue, shall present some credible evidence on that issue." § 18-1-407(1), C.R.S. 2022. The General Assembly has also adopted a specific affirmative defense to the crime of felony murder. At the time of the charged crime in this case, the felony murder affirmative defense consisted of six elements, as we explain below. § 18-3-102(2), C.R.S. 2018.
¶ 3 Among other arguments, the People contend that "a defendant is not entitled to an affirmative defense instruction if he denies committing the charged crime." The People thus argue that a defendant charged with felony murder must acknowledge the conduct giving rise to that crime, including the conduct giving rise to the predicate felony, before he can assert the felony murder affirmative defense.
¶ 4 As we explain below, the few Colorado cases addressing a defendant's ability to assert an affirmative defense while denying having committed the charged offense analyzed two affirmative defenses—entrapment and self-defense—that are materially different from the felony murder affirmative defense. Because a defendant can be convicted of felony murder even if another person caused the victim's death, the felony murder affirmative defense focuses on elements that allow the jury to weigh the defendant's responsibility and whether the defendant should be convicted of murder for a death he did not directly cause. Thus, unlike other affirmative defenses, the elements of the felony murder affirmative defense are distinct from the elements of felony murder.
¶ 5 We conclude that a defendant need not be compelled to admit felony murder, and thus admit the predicate felony, to assert the felony murder affirmative defense.
¶ 6 Kenneth Alfonso Gallegos appeals the judgment of conviction entered on a jury verdict finding him guilty of felony murder, attempted aggravated robbery, conspiracy to commit aggravated robbery, and attempted theft of less than fifty dollars. Because Gallegos did not have to admit to the predicate felony of robbery before having the right to assert the felony murder affirmative defense, and because some credible evidence supported the affirmative defense, we hold that the trial court erred by rejecting Gallegos's tendered instruction on the felony murder affirmative defense. We reverse Gallegos's felony murder conviction, affirm his remaining convictions, and remand for a new trial on the felony murder charge.
¶ 7 The jury could reasonably have found the following facts.
¶ 8 Gallegos and three other individuals—his then girlfriend, Julianna Serrano; Dominic Stager; and Demarea Mitchell (the group)—drove to the home of L.C., from whom Serrano had arranged to buy vape supplies. Although L.C. had agreed to sell the supplies to Serrano, the group planned to take them without paying. The prosecutor and the defense disputed Gallegos's role in developing, and his advance knowledge of, the plan.
¶ 9 L.C. approached the car in which the group was sitting and asked for payment. Gallegos, Stager, and Mitchell got out of the car. Stager slid a gun that he had brought to Mitchell, who grabbed it and approached L.C. Mitchell and L.C. began fighting. L.C. wrestled Mitchell to the ground and kneeled on top of him. Mitchell shot L.C., who ran into his house screaming as the group reentered the car and, with Gallegos behind the wheel, drove off. L.C. died from the gunshot wound.
¶ 10 Each member of the group was charged with various offenses. In exchange for plea deals, Serrano and Stager agreed to testify for the prosecution at Gallegos's trial.
¶ 11 After the jury handed down its guilty verdict, the trial court sentenced Gallegos to life in the custody of the Department of Corrections.
¶ 12 On appeal, Gallegos contends that the trial court committed reversible error by refusing to instruct the jury on (1) the affirmative defense to felony murder; (2) the lesser nonincluded offense of accessory to a crime; and (3) the correct elements of complicity. Gallegos argues that his conviction should also be reversed (4) because, during opening statement, the prosecutor improperly commented on Gallegos's silence; and (5) due to cumulative error. We agree with Gallegos's first argument and reject his remaining arguments.
¶ 13 The offense of felony murder rests on the policy that, if a defendant " ‘commit[s] or attempt[s] to commit’ one of the enumerated predicate offenses and in the course of or in furtherance of that ‘crime’ " a person other than a participant dies, the defendant is guilty of murder. Doubleday v. People , 2016 CO 3, ¶ 22, 364 P.3d 193, 197 (quoting § 18-3-102(1)(b), C.R.S. 2015 ). At the time Mitchell fatally shot L.C., felony murder was classified as first degree murder. See § 18-3-102(1)(b), C.R.S. 2018. Conversely, "if the defendant did not commit the [charged] predicate offense ..., then he cannot be convicted of felony murder because the commission or attempt to commit the predicate offense is an essential element of felony murder." Doubleday , ¶ 22, 364 P.3d at 197.
¶ 14 Felony murder is a two-tier crime: the jury must first decide whether the defendant committed the predicate felony; if so, it must then determine whether the defendant is also guilty of felony murder as a result of a death caused by "anyone" in "the course of or in furtherance of the crime." § 18-3-102(1)(b), C.R.S. 2018; see also Auman v. People , 109 P.3d 647, 657 (Colo. 2005) ().
¶ 15 "We review a court's decision whether to give a particular jury instruction for an abuse of discretion." People v. Coahran , 2019 COA 6, ¶ 14, 436 P.3d 617, 621. "A court abuses its discretion if it bases its ruling on an erroneous understanding or application of the law." Id. We "review jury instructions de novo to determine whether the instructions accurately informed the jury of the governing law." Riley v. People , 266 P.3d 1089, 1092 (Colo. 2011).
¶ 16 "As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." Mathews v. United States , 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988). "In order to present an affirmative defense for the jury to consider, a defendant must offer ‘some credible evidence’ to support the claimed defense." Pearson v. People , 2022 CO 4, ¶ 16, 502 P.3d 1003, 1007 (quoting § 18-1-407(1), C.R.S. 2022 ).
¶ 17 Whether sufficient evidence supports an affirmative defense instruction is a question of law we review de novo. People v. Wakefield , 2018 COA 37, ¶ 8, 428 P.3d 639, 643. "If a defendant meets this standard, and a trial court refuses to give an affirmative defense instruction, then the prosecution's burden of proof has been impermissibly lowered, implicating a defendant's constitutional rights." Pearson , ¶ 16, 502 P.3d at 1007. "Such an error, if preserved, is subject to constitutional harmless error review." Id.
¶ 18 The court gave the jury Gallegos's tendered theory of defense instruction:
Kenneth Gallegos submits the following theory of defense: He contends that he did not plan to rob [L.C.]; that he did not shoot and kill [L.C.]; that he did not bring a gun, ask anyone to bring a gun, or make a plan to use a gun to rob [L.C.]; that he did not know ... Stager had brought a gun nor did he ask him to bring a gun; that there is no evidence that ... Gallegos ever had a gun; and, that there is also insufficient evidence that the persons involved in the robbery took a thing of value.
This instruction was consistent with defense counsel's argument at trial that the jury should acquit Gallegos on all counts.
¶ 19 The court's instruction on felony murder followed the model instruction:
See COLJI-Crim. 3-1:02 (2018). ...
To continue reading
Request your trial