People v. Ramirez

• Decision Date: 07 February 2019
• Docket Number: Court of Appeals No. 14CA1958
• Citation: 459 P.3d 670
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joe Anthony RAMIREZ, Defendant-Appellant.
• Court: Colorado Court of Appeals

459 P.3d 670

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Joe Anthony RAMIREZ, Defendant-Appellant.

Court of Appeals No. 14CA1958

Colorado Court of Appeals, Division III.

Announced February 7, 2019

Rehearing Denied March 7, 2019

Philip J. Weiser, Attorney General, Majid Yazdi, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Dayna Vise, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE TERRY

¶1 This case has been remanded from the supreme court. People v. Ramirez , 2018 WL 6303935 (Colo. No. 18SC281, Dec. 3, 2018) (unpublished order). That court has instructed us to reconsider the prior division’s opinion in this case, People v. Ramirez, 2018 WL 1193614(Colo. App. No. 14CA1958, Mar. 8, 2018) (not published pursuant to C.A.R. 35(e) ) ( Ramirez I ), in light of the decision in People v. Rediger , 2018 CO 32, 416 P.3d 893.

¶2 Defendant, Joe Anthony Ramirez, was convicted in one trial of charges stemming from four consolidated criminal cases. He was found guilty of attempted first degree murder, attempted reckless manslaughter, first degree assault with a deadly weapon, engaging in a riot, illegal discharge of a firearm, theft by receiving, vehicular eluding, and possession with intent to distribute a schedule II controlled substance. The court imposed a combination of consecutive and concurrent sentences totaling eighty-eight years.

¶3 In Ramirez I , the division affirmed his conviction of all charges. After receiving the supreme court’s order of remand, we requested supplemental briefing from the parties as to the application of Rediger . That supreme court decision has potential effect only on our disposition of the conviction for first degree assault. Thus, none of the other convictions entered against Ramirez are affected by the supreme court’s remand.

¶4 With respect to the first degree assault conviction, we now conclude that defense counsel’s error in declining to object to an inapplicable jury instruction amounted to a forfeiture, as described in Rediger , ¶¶ 39-47, and not a waiver, as described in the prior division’s opinion. Because we conclude that the error amounted to prejudicial plain error, we reverse the conviction of first degree assault and remand for a new trial solely as to that charge.

I. The Erroneous Instruction

¶5 Ramirez argues that the trial court improperly instructed the jury as to "deadly physical force" in Instruction Number 29, which related to the charges of first degree assault, second degree assault, and third degree assault. (The jury found him guilty only of first degree assault.)

¶6 The prior division concluded that Ramirez had waived his contention of instructional error and therefore declined to consider it. In accordance with the supreme court’s remand, we now re-examine that ruling.

¶7 During the jury instruction conference, defense counsel said that a scintilla of evidence was presented at trial that would support the defense of self-defense. The following colloquy then occurred:

[Prosecutor]: I know that the standard [of proof] is incredibly low of it being a scintilla of evidence, and so I don’t think the People can in good faith dispute that there’s contradictory testimony including the defendant’s statements....

[COURT]: Counsel, any objection to the self-defense instruction [that was tendered by the prosecution] and its applicability to ... first, second and third degree assault?

[PROSECUTOR]: No, Your Honor.

[COURT]: [Defense counsel?]

[DEFENSE COUNSEL]: Your Honor, I believe this to be a correct statement of the law, so I don’t have any objection.

[COURT]: Thank you.

¶8 The court instructed the jury:

It is an affirmative defense to the crime of Assault in the First Degree ... that the defendant used deadly physical force upon [the victim]:

l. In order to defend himself or a third person from what he reasonably believed to be the use or imminent use of unlawful physical force by the other person,

2. He used a degree of force which he reasonably believed to be necessary for that purpose, and

3. He reasonably believed a lesser degree of force was inadequate, and

4. Had reasonable grounds to believe, and did believe that he or another person was in imminent danger of being killed or of receiving great bodily injury.

(Emphasis added.)

¶9 Further, the elemental instruction for first degree assault referenced the "deadly physical force" instruction by saying, "without the affirmative defense [specified] in instruction number 29." The jury was not instructed on the definition of "deadly physical force."

¶10 " ‘Deadly physical force’ means force, the intended, natural, and probable consequence of which is to produce death, and which does, in fact, produce death ." § 18-1-901(3)(d), C.R.S. 2018 (emphasis added); see also People v. Ferguson , 43 P.3d 705, 708 (Colo. App. 2001) ("If the force used by the defendant does not cause death, by definition it cannot be deadly physical force."); CJI-Crim. 5:01, 5(9) (1983) (incorporating statutory definition of "deadly physical force"); CJI-Crim. 7:17 (1983) (self-defense instruction concerning deadly physical force "should only be used if the victim dies").

¶11 Without question, it was error for the court to instruct the jury on deadly physical force because defendant was not accused of causing death. By giving an inapplicable instruction, and incorporating it into the elemental instruction for first, second, and third degree assault, the court would have caused the jury to have an incorrect understanding of the elements of those charges.

II. Waiver or Forfeiture

¶12 In Ramirez I , the division concluded that Ramirez, through his counsel, had waived this instructional error. That conclusion focused on defense counsel’s statement, "I believe this to be a correct statement of the law, so I don’t have any objection." Applying Rediger and the supreme court’s recent decision in People v. Smith , 2018 CO 33, 416 P.3d 886, we now conclude that this statement did not amount to waiver and was, instead, a forfeiture.

¶13 According to Rediger , "[w]aiver, in contrast to invited error, is "the intentional relinquishment of a known right or privilege." Rediger , ¶ 39 (quoting Dep’t of Health v. Donahue , 690 P.2d 243, 247 (Colo. 1984) ). Courts are not to "presume acquiescence in the loss of fundamental constitutional rights, and therefore [must] indulge every reasonable presumption against waiver." Id. (quoting People v. Curtis , 681 P.2d 504, 514 (Colo. 1984) ).

¶14 We see no indication in the record that defense counsel recognized the error in application of the deadly force jury instruction. There would be no rational, strategic reason for the defense to want such an erroneous instruction to be given. Indeed, counsel’s expression that he believed the instruction to be "a correct statement of the law" shows that he failed to notice that it was an incorrect statement of the law as applied to the first, second, and third degree assault charges in this case. Cf. People v. Stewart , 55 P.3d 107, 119 (Colo. 2002) (stating that a nontactical instructional omission is reviewable for plain error).

¶15 And as we have discussed, the error would have caused the jury to misunderstand the elemental jury instruction for first degree assault, which referenced the "affirmative defense [specified in erroneously phrased] instruction number 29."

¶16 Given that we are to indulge every reasonable presumption against waiver, we conclude that counsel did not waive the instructional error. See id. ; see also Smith , ¶ 18 (finding no waiver of instructional error where "the record before us reveals no evidence that [the defendant], by stating that the instructions generally were ‘acceptable’ to him, intended to relinquish a known variance claim").

¶17 "Forfeiture" is "the failure to make the timely assertion of a right."

Rediger , ¶ 40. Rediger cited United States v. Carrasco-Salazar , 494 F.3d 1270, 1272 (10th Cir. 2007), for the proposition that "waiver is accomplished by intent, [but] forfeiture comes about through neglect."

¶18 Defense counsel’s failure to perceive and address the error in the instruction was patently attributable to neglect, and we therefore conclude that the instructional error was not waived, but merely forfeited. See Rediger , ¶ 44 ("In these circumstances, we conclude that neglect, not intent, explains Rediger’s lack of an objection.... Accordingly, in our view, Rediger’s acquiescence amounts to a forfeiture, not a waiver.").

¶19 In contrast with the dissent, we are not convinced that Rediger is distinguishable on the basis that defense counsel there stated that the instructions as a group were acceptable, whereas defense counsel here accepted a specific instruction. By accepting all the instructions, defense counsel in Rediger had accepted the included elemental instruction. Nevertheless, our supreme court said, "[t]he record before us reveals no evidence, either express or implied, that Rediger intended to relinquish his right to be tried in conformity with the charges...." Id. at ¶ 42.

¶20 People v. Kessler , 2018 COA 60, 436 P.3d 550, does not change our view. There, the division acknowledged Rediger , but distinguished it because, in Kessler , "defense counsel did more than generally acquiesce or fail to object. Defense counsel explicitly agreed that the specific evidence at issue was admissible." Id. at ¶ 37. The circumstances of Kessler are unlike those here, where Ramirez’s counsel showed no understanding that the jury instruction was inapplicable. And as the division acknowledged in Kessler , that case did not involve an elemental jury instruction. Id. But this case does.

¶21 The division in People v. Tee , 2018 COA 84, ¶ 23, 446 P.3d 875, also distinguished Rediger , explaining that "the record before us shows that the trial court and defense counsel were involved in an ongoing, interactive exchange." See also People v. Murray , 2018...