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People v. Gallegos.

2023 COA 47. No. 21CA0976. Affirmative Defenses—Admission Rule—Felony Murder—Credible Evidence —Complicity Instruction—Prosecutorial Misconduct—Cumulative Error.

June 1, 2023

Gallegos and Serrano, Stager, and Mitchell (the group) drove to the home of L.C., from whom Serrano had arranged to buy vape supplies. L.C. had agreed to sell Serrano the supplies, but the group planned to take them without paying. 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 handed a gun 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 later died from the gunshot wound. Gallegos was convicted of felony murder, attempted aggravated robbery, conspiracy to commit aggravated robbery, and attempted theft of less than $50.

On appeal, Gallegos contended that the trial court committed reversible error by refusing to instruct the jury on the affirmative defense to felony murder. A defendant has the right to interpose an affirmative defense if some credible evidence supports it, and some court of appeals divisions have stated that a defendant’s admission to the conduct underlying the charged offense is a prerequisite for an affirmative defense instruction (admission rule) for some affirmative defenses. To determine whether Gallegos was entitled to raise the felony murder affirmative defense, the division considered whether (1) the admission rule precluded Gallegos’s assertion of the affirmative defense and (2) Gallegos presented some credible evidence to support the affirmative defense. First, the division declined to extend the admission rule to felony murder, because a defendant can be convicted of murder for a death he did not cause if the prosecution proves all elements of the predicate offense beyond a reasonable doubt. 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 a 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. Accordingly, a defendant need not be compelled to admit felony murder, and thus admit the predicate felony, to assert the felony murder affirmative defense. Second, Gallegos pointed to some credible evidence to support giving the felony murder affirmative defense instruction. Therefore, the trial court erred by rejecting Gallegos’s tendered instruction on the felony murder affirmative defense.

Gallegos also argued that the trial court erred by not giving his proposed instruction on the lesser nonincluded offense of accessory. Before a court may submit a lesser nonincluded offense instruction to the jury, there must be record evidence to rationally support a conviction on the lesser offense. Here, Gallegos’s act of driving the group away from L.C.’s house, where the attempted robbery occurred, was part of the same overall course of events as the attempted aggravated robbery. Therefore, the trial court erred by not giving the jury Gallegos’s tendered accessory instruction because a jury could have simultaneously acquitted him of attempted aggravated robbery and convicted him of being an accessory. But this error was harmless because there was no reasonable probability that the jury would have acquitted Gallegos of attempted aggravated robbery.

Gallegos further challenged the trial court’s complicity instruction. However, the court’s instruction was an accurate statement of the law, and it properly characterized the facts the jury would have had to find to convict Gallegos as a complicitor. Therefore, the trial court did not err.

Gallegos also asserted that the prosecutor committed misconduct during her opening statement by improperly commenting on Gallegos’s constitutional right to silence. However, when read in context, the challenged statements did not impermissibly refer to Gallegos’s invocation of his Fifth Amendment right against self-incrimination; the prosecutor did not describe any custodial interrogation of Gallegos nor say that Gallegos invoked his right to remain silent following his arrest, and she did not refer to Gallegos’s decision not to testify. Accordingly, the prosecutor did not commit misconduct.

Lastly, the court of appeals rejected Gallegos’s argument that all of his convictions should be reversed for cumulative error, because the trial court committed only one reversible error that impacted only his felony murder conviction.

The judgment of conviction for felony murder was reversed and the case was remanded for a new trial on that charge. The judgment of conviction on the charges of attempted aggravated robbery, conspiracy to commit aggravated robbery, and attempted theft of less than $50 was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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