People v. Zapata, 85CA1034

Citation759 P.2d 754
Case DateFebruary 11, 1988
CourtCourt of Appeals of Colorado

Page 754

759 P.2d 754
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
Toby E. ZAPATA, Defendant-Appellant.
No. 85CA1034.
Colorado Court of Appeals,
Div. I.
Feb. 11, 1988.
Rehearing Denied March 24, 1988.
Certiorari Granted (People) Aug. 8, 1988.

Page 755

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Curt P. Kriksciun, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, Rachel A. Bellis, Deputy State Public Defender, Denver, for defendant-appellant.

HUME, Judge.

Defendant, Toby Zapata, was convicted of two counts of first degree sexual assault, two counts of second degree burglary, and two counts of violent crime. He was sentenced to two consecutive 24-year terms of imprisonment for the aggravated assault convictions, and two consecutive 16-year terms for the burglary convictions. He asserts the court erred: 1) in refusing his tendered instructions on misidentification and in giving his erroneous theory of the case instruction on that issue; and 2) in imposing sentence in the aggravated range upon ambiguous violent crime findings made by the jury. We affirm the judgment of conviction in all respects, but vacate the sentences imposed for burglary.


At trial, the defendant tendered, and the court refused to give, a series of instructions concerning his theory that he had been misidentified as the perpetrator of the charged offenses of sexual assault with a deadly weapon and burglary. The court's refusal was based upon its conclusion that the tendered instructions were repetitive; were substantially included in stock instructions concerning witness credibility, burden of proof, and the elemental instructions for the charged offenses; and that they placed undue emphasis on a single issue presented by the evidence. These factors are appropriate for the trial court's consideration in the exercise of its sound discretion. People v. McKenna, 196 Colo. 367, 585 P.2d 275 (1978); People v. Rivera, 710 P.2d 1127 (Colo.App.1985). We perceive no abuse of discretion in the court's refusal to give the defendant's proposed misidentification instructions.

The court did give a theory of the case instruction proposed and prepared by defendant, as follows:

"It is the accused's theory of the case that he has not been correctly identified as the perpetrator of the offense(s) charged.

"If you find from all the evidence that the accused has been incorrectly identified, then you should find the accused not guilty.

"If, however, you find that from all the evidence the accused was correctly identified and the prosecution has proven beyond a reasonable doubt all other elements of the offense(s) charged, you should find the accused guilty."

Defendant now contends that his theory of the case instruction misstated the law, and in giving it the court committed reversible error. We disagree.

The trial court has a duty to instruct the jury on the law, properly, plainly and accurately, on every issue presented. See People v. Alvarez, 187 Colo. 290, 530 P.2d 506 (1975); People v. Mackey, 185 Colo. 24, 521 P.2d 910 (1974). Counsel have a correlative duty to assist the court by tendering correct instructions and by objecting to erroneous instructions. See Fresquez v. People, 178 Colo. 220, 497 P.2d 1246 (1972); Crim.P. 30.

If an instruction is challenged for the first time on appeal, review is confined to a

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consideration of whether the error falls within the definition of plain error. People v. Barker, 180 Colo. 28, 501 P.2d 1041 (1972). Furthermore, under the invited error doctrine when a party injects or invites error in trial proceedings, he cannot later seek reversal on appeal because of that error. People v. Collins, 730 P.2d 293 (Colo.1986); People v. Valdez, 725 P.2d 29 (Colo.App.1986).

The invited error...

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6 cases
  • People v. Zapata, 88SC153
    • United States
    • Colorado Supreme Court of Colorado
    • September 18, 1989
    ...ERICKSON delivered the Opinion of the Court. We granted certiorari to review the decision of the court of appeals in People v. Zapata, 759 P.2d 754 (Colo.App.1988), which affirmed the conviction of Toby E. Zapata (defendant) on two counts of first-degree sexual assault, two counts of second......
  • People v. Marks, Court of Appeals No. 14CA0030
    • United States
    • Colorado Court of Appeals of Colorado
    • December 3, 2015
    ...may appropriately refuse to give an instruction which places undue emphasis on a single issue presented by the evidence. People v. Zapata, 759 P.2d 754, 755 (Colo.App.1988), aff'd, 779 P.2d 1307 (Colo.1989). Mr. Marks's proffered instruction only served to emphasize his evidence of an alter......
  • People v. McKibben, 91CA1787
    • United States
    • Colorado Court of Appeals of Colorado
    • April 22, 1993
    ...within the scope of defense counsel's question. Hence, defendant cannot now seek reversal because of that response. See People v. Zapata, 759 P.2d 754 (Colo.App.1988), aff'd, 779 P.2d 1307 Accordingly, the judgment is affirmed. RULAND, J., concurs. BRIGGS, J., dissents. Judge BRIGGS, dissen......
  • People v. Coughlin, 09CA0947.
    • United States
    • Colorado Court of Appeals of Colorado
    • April 28, 2011
    ...and instructions that have been overlooked by the court. People v. Sharpe, 183 Colo. 64, 69, 514 P.2d 1138, 1140 (1973); People v. Zapata, 759 P.2d 754, 755 (Colo.App.1988), aff'd,779 P.2d 1307 (Colo.1989).A. Stock Jury Instruction Defendant contends his convictions must be reversed because......
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