People v. Lara, 05CA2281.

• Citation: 224 P.3d 388
• Decision Date: 06 August 2009
• Docket Number: No. 05CA2281.,05CA2281.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Raymond LARA, Defendant-Appellant.
• Court: Court of Appeals of Colorado

224 P.3d 388

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Raymond LARA, Defendant-Appellant.

No. 05CA2281.

Colorado Court of Appeals, Div. III.

August 6, 2009.

Rehearing Denied September 24, 2009.

John W. Suthers, Attorney General, Majid Yazdi, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge RUSSEL.

Appellate courts often say that jury instructions should "track the language" of the governing statute. See, e.g., People v. Weinreich, 119 P.3d 1073, 1076 (Colo.2005). But this statement, like many legal maxims, is true only up to a point. Sometimes, it is wrong to use statutory language in jury instructions. See, e.g., Leonard v. People, 149 Colo. 360, 374, 369 P.2d 54, 62 (1962).

Here, the court gave a jury instruction that tracked the language of section 18-1-704(4), C.R.S.2008. Because this language violated the defendant's right to due process, we reverse his murder conviction and remand for a new trial.

I. Background

Raymond Lara was convicted of first degree murder for killing a rival gang member in a drive-by shooting.

The shooting was the result of an ongoing conflict between Lara's gang, the Norteños, and their rivals, the Sureños. On the day of the shooting, the two gangs met each other and exchanged insults. Later, the Norteños got into two cars and drove by the home of a Sureño. The victim and two others were standing outside. According to some witnesses, the victim pointed a shotgun at the first car of Norteños. Lara, in the second car, then shot the victim.

At trial, Lara defended against charges of first and second degree murder on the theory that he had acted to protect those in the first car. At the close of evidence, he tendered jury instructions on self-defense and defense of others. The trial court rejected Lara's instructions and instead gave an instruction that tracked the language of section 18-1-704(4). After receiving the court's instructions, the jury convicted Lara of first degree "extreme indifference" murder under section 18-3-102(1)(d), C.R.S.2008.

II. Discussion

Lara contends that his conviction must be reversed for many reasons. We conclude that a new trial is required.

We begin by examining defenses generally and then focus on defense of a person under section 18-1-704. We examine the way that this defense relates to a charge of extreme indifference murder and discuss the prosecution's burden of proof in that context. We then identify the court's error and conclude that the error requires reversal. Finally, we offer a model instruction and address other issues to assist the court and the parties on retrial.

A. Defenses Generally

There are two basic types of defenses: those that negate an element of the offense, and those in the nature of confession and avoidance. See People v. Mullins, 209 P.3d 1147, 1148 (Colo.App.2008) (distinguishing between defenses that "negate an element of the crime charged" and defenses that "seek to justify, excuse, or mitigate the commission of the offense").

Courts sometimes call the first type of defense a "denial" or "traverse," and they generally call the second type an "affirmative defense." See People v. Huckleberry, 768 P.2d 1235, 1238 (Colo.1989) (noting the long-held distinction between affirmative defenses and defenses in the nature of a traverse). The labels are not particularly helpful, in part because the legislature does not use them as the courts do.¹ But it is helpful to note the difference between the types of defenses and to see how this difference is reflected in jury instructions:

1. If the defense is a denial or traverse, the jury need only decide whether the prosecution has proved the elements of the charged offense beyond a reasonable doubt. To make this decision, the jury must understand the relationship between the defense and the substantive element that the defense would negate. If this relationship is apparent, the court need not give a separate instruction defining the defense. See People v. Bush, 948 P.2d 16, 18 (Colo. App.1997) (court was not required to give an instruction defining the defense of consent). Instead, the court may give a theory-of-the-case instruction that embodies the defense. See People v. Nunez, 841 P.2d 261, 266 (Colo.1992) (trial court committed reversible error by refusing to give a theory-of-the-case instruction embodying the defense of alibi).

2. If the defense is in the nature of confession and avoidance, the court must give both an instruction defining the elements of the charged offense and a separate instruction setting forth the additional issues raised by the defense.

See Huckleberry, 768 P.2d at 1238.

In some jurisdictions, the accused bears the burden of proving defenses that are in the nature of confession and avoidance. See, e.g., Dixon v. United States, 548 U.S. 1, 8, 16, 126 S.Ct. 2437, 165 L.Ed.2d 299 (2006) (in a prosecution for federal firearms offenses, the defendant bears the burden of proving duress by a preponderance of the evidence; this burden comports with due process and a "long-established common-law rule"). But in Colorado, the prosecution always bears the burden of proof, regardless of the type of defense. See § 18-1-402, C.R.S. 2008 ("No person shall be convicted of any offense unless his guilt thereof is proved beyond a reasonable doubt."); § 18-1-407(2), C.R.S.2008 ("If the issue involved in an affirmative defense is raised, then the guilt of the defendant must be established beyond a reasonable doubt as to that issue as well as all other elements of the offense."); People ex rel. Juhan v. Dist. Court, 165 Colo. 253, 260, 439 P.2d 741, 745 (1968) (under the state constitution, "the accused cannot be required by legislative enactment to prove insanity or any other defense by a preponderance of the evidence").

B. Defense of a Person

Section 18-1-704 sets forth the law governing the "[u]se of physical force in defense of a person." The statute comprises both self-defense and defense of others. § 18-1-704(1), C.R.S.2008.²

Although the legislature has characterized defense of a person as an "affirmative defense," see § 18-1-710, the nature of the defense depends on the charge against which it is raised. When asserted against charges that require proof of intent, the defense is generally in the nature of confession and avoidance. See, e.g., People v. Gholston, 164 Colo. 58, 60, 432 P.2d 636, 637 (1967). But when asserted against charges that require proof of recklessness or criminal negligence, the defense is an element-negating denial or traverse. See Mullins, 209 P.3d at 1149 (citing People v. Fink, 194 Colo. 516, 518, 574 P.2d 81, 83 (1978)).

How should the jury be instructed when defense of a person is raised as an element-negating defense? The answer to this question has changed over time.

Years ago, our courts thought it unnecessary to define defense of a person or explain its relationship to the charged offense. See Case v. People, 774 P.2d 866, 869-70 (Colo. 1989) (in a prosecution for reckless manslaughter and criminally negligent homicide, the trial court properly refused to instruct the jury on the law of self-defense); Fink, 194 Colo. at 518, 574 P.2d at 83 (same); People v. Fernandez, 883 P.2d 491, 493 (Colo. App.1994) (in a prosecution for extreme indifference murder, the trial court properly declined to instruct on the law of self-defense).

But in 2003, the legislature changed the governing statute. Now, when defense of a person is raised as an element-negating defense, the trial court must define the defense and explain how it relates to the pertinent elements of the charged offense:

In a case in which the defendant is not entitled to a jury instruction regarding self-defense as an affirmative defense, the court shall allow the defendant to present evidence, when relevant, that he or she was acting in self-defense. If the defendant presents evidence of self-defense, the court shall instruct the jury with a self-defense law instruction. The court shall instruct the jury that it may consider the evidence of self-defense in determining whether the defendant acted recklessly, with extreme indifference, or in a criminally negligent manner. However, the self-defense law instruction shall not be an affirmative defense instruction and the prosecuting attorney shall not have the burden of disproving self-defense. This section shall not apply to strict liability crimes.

§ 18-1-704(4); see People v. Bachofer, 192 P.3d 454, 463 (Colo.App.2008) ("The trial court should instruct the jury that, in determining whether the defendant acted recklessly, it must consider whether the defendant reasonably believed it necessary for him to defend himself or another person from the victim's use or imminent use of unlawful physical force." (citing People v. Roberts, 983 P.2d 11, 14 (Colo.App.1998))).

C. Prosecution's Burden

Lara's argument centers on a clause that appears in the second-to-last sentence of section 18-1-704(4): "the prosecuting attorney shall not have the burden of disproving self-defense." Lara contends that this clause is unconstitutional because it places the burden of proof on criminal defendants. And he contends that, by including this language in the jury instructions, the trial court committed constitutional error.

We decline to address the first part of Lara's argument because he did not challenge the constitutionality of the statute during trial. See People v. Mershon, 874 P.2d 1025, 1035 n. 13 (Colo.1994) (declining to address unpreserved challenges to the constitutionality of a statute); People v. Felgar, 58 P.3d 1122, 1126 (Colo.App.2002) (same). We therefore do not consider whether the statutory language can be interpreted to comply with the requirements of the federal and state constitutions.

But we will address the second part of Lara's...