People v. Garcia, No. 99SC772.

• Decision Date: 25 June 2001
• Docket Number: No. 99SC772.
• Citation: 28 P.3d 340
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Manuela S. GARCIA, Respondent.
• Court: Colorado Supreme Court

28 P.3d 340

The PEOPLE of the State of Colorado, Petitioner, v. Manuela S. GARCIA, Respondent.

No. 99SC772.

Supreme Court of Colorado, En Banc.

June 25, 2001.

Rehearing Denied August 6, 2001.

Ken Salazar, Attorney General, Matthew S. Holman, Assistant Attorney General, Appellate Division Criminal, Justice Section, Denver, CO, Attorneys for Petitioner.

Ann M. Roan, Denver, CO, Attorney for Respondent.

Nancy S. Ehrenreich, University of Denver, College of Law, Denver, CO, Attorney for Amicus Curiae The Colorado Women's Bar Association and Project Safeguard.

Justice RICE delivered the Opinion of the Court.

We issued a writ of certiorari to review the court of appeals' judgment in People v. Garcia, 1 P.3d 214 (Colo.App.1999) reversing Defendant's conviction. Defendant was convicted by a jury of second-degree murder and a crime of violence after killing her husband with an ax. The court of appeals held that reversal was required because the trial court's instructions improperly characterized second-degree murder-provocation under section 18-3-103, 6 C.R.S. (2000), as a lesser included offense of first and second-degree murder. Id. at 219. The court also held that the trial court erred in refusing to instruct the jury that Defendant had no duty to retreat before exercising her right to self-defense. Id. at 220. Finally, the court held that the trial court erred in failing to instruct the jury that one may justifiably use deadly force to prevent a sexual assault. Id. at 222.

We granted certiorari to review the court of appeals' determinations that the trial court erred in its jury instructions and, whether such error would require reversal. We now hold that the trial court erred by: (1) instructing the jury that second-degree murder-provocation is a lesser included offense of first-degree murder and second-degree murder; (2) refusing to instruct the jury on the issue of retreat; and (3) refusing to instruct the jury that one may justifiably use deadly force to prevent a sexual assault. We also hold that these errors constituted reversible error and thus affirm the court of appeals' judgment reversing Defendant's conviction.

FACTS AND PROCEDURAL HISTORY

On July 25, 1996, Defendant killed her husband with a long handled ax. At trial, Defendant presented evidence that her husband had repeatedly verbally, physically and sexually assaulted her during their marriage. Defendant also presented expert testimony suggesting that Defendant had suffered from Battered Woman Syndrome as a result these assaults. Defendant testified that almost every day during the week preceding the murder, the victim had sexually assaulted her and that she had feared more of these attacks. Defendant further testified that on the night of the murder, she and the victim had argued, he had pushed her, and she had gone to bed that night feeling afraid of her husband. Defendant testified that immediately prior to the murder, her husband had violently awakened her, attempted to sexually assault her, and then threatened to kill her. Finally, Defendant testified that she "snapped" and hit her husband with an ax after he gave her a look that meant that she was "going to get hurt pretty bad."

Defendant was charged with first-degree murder and the prosecution sought sentencing under section 16-3-309, 6 C.R.S. (2000) for violent crimes. At the conclusion of the evidence, the trial court instructed the jury as to the elements of first-degree murder and violent crime. The jury was also instructed that second-degree murder and the crime of second-degree murder-provoked passion were lesser included offenses of first-degree murder and that the prosecution bears the burden of proving beyond a reasonable doubt every element of such offenses. Finally, the trial court instructed the jury as to a defendant's right to use deadly, physical force when the defendant reasonably believes that a lesser degree of force would be inadequate and where the defendant reasonably believes that she or another person is in imminent danger of being killed or receiving great bodily injury. The trial court refused, however, to tender an instruction stating that a defendant may use deadly force to prevent a sexual assault. Similarly, the trial court rejected Defendant's proposed "no-duty to retreat" instruction because it found that the evidence did not raise the issue of retreat. The jury convicted Defendant of second-degree murder.

The court of appeals reversed the conviction, holding that the trial court's instructions mischaracterized second-degree murder-provocation as a lesser-included offense of first and second-degree murder and improperly imposed a reduced burden on the prosecution to prove the elements of provocation beyond a reasonable doubt, rather than to prove the lack of provocation. Garcia, 1 P.3d at 218. The court determined that the instruction constituted plain error thus necessitating reversal of the conviction and a new trial. Id. at 219.

The court also concluded that the issue of retreat had been raised by the evidence, placed in issue, and argued. Thus, the court held that Defendant was entitled to an instruction on the doctrine of no-retreat and that the failure to give such an instruction would also have constituted reversible error. Finally, the court held that the trial court erred in declining to instruct the jury that one may justifiably use deadly force to prevent a sexual assault and that its refusal would also have constituted reversible error. Accordingly, the court of appeals reversed the conviction and remanded the case for a new trial.

We granted certiorari to determine whether the court of appeals properly concluded that the trial court's instructions concerning second-degree murder-provocation constituted reversible error. We also granted certiorari to determine whether the trial court erred in refusing to give a no-duty to retreat instruction and an instruction concerning a defendant's right to use deadly force to prevent a sexual assault.¹

ANALYSIS

This case concerns the appropriate treatment of the issue of provocation following the legislature's 1996 amendment of the second-degree murder statute under section 18-3-103. Because we have not previously interpreted the amended statute, our analysis includes a review of the amendment's legislative history, analogous statutes and cases interpreting those statutes. This case also presents the opportunity for us to address issues concerning the doctrine of no-retreat and of a defendant's right to use deadly force to prevent a sexual assault.

A. Standard of Review

Defendant argues that the trial court failed to correctly instruct the jury in this case. In addressing Defendant's arguments, we must first determine the proper standard under which to evaluate the trial court's jury instructions.

It is the duty of the trial court to instruct the jury on all matters of law. Hansen v. State Farm Mut. Auto. Ins. Co., 957 P.2d 1380, 1384 (Colo.1998); Mattas v. People, 645 P.2d 254, 257 (Colo.1982); People v. Woods, 179 Colo. 441, 441, 501 P.2d 117, 117 (1972). However, a trial court need not act as an advocate for either party by crafting instructions embodying a party's theory of the case. Hansen, 957 P.2d at 1384.

If a defendant lodges no objection to a trial court's jury instruction, a plain error standard should be applied in reviewing the instruction. People v. Dunlap, 975 P.2d 723, 737 (Colo.1999); Bogdanov v. People, 941 P.2d 247, 255 (Colo.1997); Walker v. People, 932 P.2d 303, 311 (Colo.1997); People v. Davis, 794 P.2d 159, 189 (Colo.1990); People v. Romero, 694 P.2d 1256, 1268 (Colo. 1985); see Crim. P. 52(b). "Plain error occurs when the error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction." Walker, 932 P.2d at 311; People v. Kruse, 839 P.2d 1, 3 (Colo. 1992); Wilson v. People, 743 P.2d 415, 420 (Colo.1987). Plain error also requires a reasonable possibility that the alleged error contributed to the defendant's conviction. Ramirez v. People, 682 P.2d 1181, 1183 (Colo. 1984). Thus, with respect to jury instructions, reversal under a plain error standard requires a defendant to "demonstrate not only that the instruction affected a substantial right, but also that the record reveals a reasonable possibility that the error contributed to his conviction." Bogdanov, 941 P.2d at 255-56; People v. Rubanowitz, 688 P.2d 231, 239 (Colo.1984).

On the other hand, when a defendant does object to an instruction, a harmless error standard applies on review to the preserved issue. Dunlap, 975 P.2d at 737. Under a harmless error standard, reversal is required unless the error does not affect substantial rights of the defendant. Crim. P. 52(a); Salcedo v. People, 999 P.2d 833, 841 (Colo.2000). We have previously held that "[w]here the error is not of constitutional dimension, the error will be disregarded if there is not a reasonable probability that the error contributed to the defendant's conviction." Salcedo, 999 P.2d at 841.

With these principles in mind, we now turn to Defendant's arguments that the trial court erred in its jury instructions in this case.

B. Provocation

Defendant argues that the trial court's jury instructions on second-degree murder-provocation were erroneous in two respects: (1) they prevented the jury from considering the issue of provocation if it found the elements of second-degree murder had been proven, and (2) they misinformed the jury that the state had the burden of proving the existence of provocation beyond a reasonable doubt. We agree.

Second-degree murder is defined in section 18-3-103 in the following manner:

(1) A person commits the crime of murder in the second-degree if the person knowingly causes the death of a person. . . .

(3)(a) Except as otherwise provided in paragraph (b) of this subsection (3), murder in the second-degree is a class 2 felony.

(b) Notwithstanding

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