provocation instruction in Colorado

2026Here, viewing the evidence in the light most favorable to giving the provocation instruction, see Silva, 987 P.2d at 914 , we conclude some evidence supported the provocation exception.

2026Here, viewing the evidence in the light most favorable to giving the provocation instruction, see Silva, 987 P.2d at 914 , we conclude some evidence supported the provocation exception.

2026See Galvan, ¶ 25; see also People v. Roberts-Bicking, 2021 COA 12, ¶¶ 38-40 (evidence that the defendant pulled out a gun, pointed it at the victim, and said, “If you want to fuck with me, try it” justified a provocation instruction). 13 VI.

2024Provocation is one such exception. ¶ 28 A provocation instruction is authorized when (1) the other person uses unlawful physical force against [the defendant]; (2) the defendant provoked the use of such physical force by the other person; and (3) the defendant intended his provocation to goad the other person into attacking him [or her] in order to provide a pretext to injure or kill that person. 15 People v. Roberts-Bicking , 2021 COA 12, ¶ 37 (quoting Ga lvan v. People , 2020 CO 82 , ¶ 19 ). ¶ 29 Instructing the jury on a principle of law is appropriate when there is “some evidence” to suppo

2026On remand, 2 The People also argue that the error was harmless because the jurors did not “grapple with” the provocation instruction like the jury did in Castillo v. People, 2018 CO 62, ¶ 65 .

2024An initial aggressor is someone who “initiated the physical conflict by using or threatening the imminent use of unlawful physical force.” Castillo , ¶ 41 (citation omitted) . ¶ 11 Under the provocation exception, a person is not justif ied in using physical force if, “[w]ith intent to cause bodily injury or death to another person, he provokes the use of unlawful p hysical force by that other person.” § 18 -1-704(3)(a).

2026A court may give an initial aggressor instruction “if the evidence will support a reasonable inference that the defendant initiated the physical conflict by using or threatening the imminent use of unlawful physical force.” People v. Griffin, 224 P.3d 292, 300 (Colo. App. 2009). ¶ 69 Under the provocation exception to self-defense, a defendant is “not justified in using physical force” against another person if the defendant, “[w]ith intent to cause bodily injury or death to another person, . . . provokes the use of unlawful physical force by that other person.” § 18-1-704(3)(a). ¶ 70 When a c

2024See Griffin, 224 P.3d at 300 (“[The defendant]’s initial verbal confrontation was insufficient to make her the initial aggressor[,] [b]ut evidence of her other actions — such as leaving the argument and returning with a gun — was sufficient to warrant the instruction.”) (citation omitted). ¶ 38 We also conclude that the provocation instruction was proper.

2024People v. Zukowski , 260 P.3d 339, 347 (Colo. App. 2010). “ [S] ome evidence” is equivalent to “any credible [even if highly improbable] eviden ce,” “a scintilla of evidence,” “a small quantum of evidence,” and “any evidence.” Galvan , ¶ 24. 2.

2019See Zukowski, 260 P.3d at 347 .

2026CHIEF JUSTICE MÁRQUEZ would grant as to the following issue: Whether the provocation exception to self-defense can apply absent evidence that the defendant acted with the conscious intent to provoke an attack, where such intent, as clarified in Galvan v. People, 2020 CO 82 , 476 P.3d 746 , is the essential element distinguishing the provocation exception from the initial-aggressor exception.

2026A court may give an initial aggressor instruction “if the evidence will support a reasonable inference that the defendant initiated the physical conflict by using or threatening the imminent use of unlawful physical force.” People v. Griffin, 224 P.3d 292, 300 (Colo. App. 2009). ¶ 69 Under the provocation exception to self-defense, a defendant is “not justified in using physical force” against another person if the defendant, “[w]ith intent to cause bodily injury or death to another person, . . . provokes the use of unlawful physical force by that other person.” § 18-1-704(3)(a). ¶ 70 When a c

2026But while we review for an abuse of discretion whether a court erred by refusing to give a particular instruction, a court may abuse its discretion in this context if it misapplies the law, People v. Maloy, 2020 COA 71, ¶ 54 , and when, as in this case, the defendant asserts a misapplication of the law, we review that embedded question of law de novo, see People v. Dominguez, 2019 COA 78, ¶ 13 . 13 ¶ 29 But the test for determining whether a defendant is entitled to a provocation instruction is the same as it is for instructing the jury on an affirmative defense: “A provocation instruction is

2017"A provocation instruction is warranted whenever a defendant shows some supporting evidence-regardless of how incredible, unreasonable, improbable, or slight it may be-to establish each factor [of heat of passion provocation]." Id. at 956 .

2026See People v. Rios, 2014 COA 90, ¶ 47 .

2020Id. at ¶¶ 52-53; People v. Rios, 2014 COA 90, ¶ 42 . ¶ 22 The right to self-defense isn’t limitless.

2026We don’t need to resolve that dispute. 16 defendant and threatened to “beat him severely enough to require hospitalization”); Edwards v. People, 215 P. 855, 856-57, 862 (Colo. 1923) (the defendant saw the victim, who had previously threatened his family, repeatedly strike his mother with a club); Henwood v. People, 129 P. 1010 , 1011-13 (Colo. 1913) (the victim punched the defendant, knocking him to the ground, and drew a gun); Crawford v. People, 20 P. 769 , 771 (Colo. 1889) (lengthy physical fight between the defendant and the victim); People v. Suazo, 867 P.2d 161, 167 (Colo. App. 1993) (th

2026But while we review for an abuse of discretion whether a court erred by refusing to give a particular instruction, a court may abuse its discretion in this context if it misapplies the law, People v. Maloy, 2020 COA 71, ¶ 54 , and when, as in this case, the defendant asserts a misapplication of the law, we review that embedded question of law de novo, see People v. Dominguez, 2019 COA 78, ¶ 13 . 13 ¶ 29 But the test for determining whether a defendant is entitled to a provocation instruction is the same as it is for instructing the jury on an affirmative defense: “A provocation instruction is

2026We don’t need to resolve that dispute. 16 defendant and threatened to “beat him severely enough to require hospitalization”); Edwards v. People, 215 P. 855, 856-57, 862 (Colo. 1923) (the defendant saw the victim, who had previously threatened his family, repeatedly strike his mother with a club); Henwood v. People, 129 P. 1010 , 1011-13 (Colo. 1913) (the victim punched the defendant, knocking him to the ground, and drew a gun); Crawford v. People, 20 P. 769 , 771 (Colo. 1889) (lengthy physical fight between the defendant and the victim); People v. Suazo, 867 P.2d 161, 167 (Colo. App. 1993) (th

2026Ct. App. 2025) (fear for one’s life doesn’t qualify), and State v. Estelle, 2021-Ohio-2636, ¶ 29 (Ct. App.) (shooting someone out of fear “rather than rage or passion” doesn’t justify a provocation instruction).

2026We don’t need to resolve that dispute. 16 defendant and threatened to “beat him severely enough to require hospitalization”); Edwards v. People, 215 P. 855, 856-57, 862 (Colo. 1923) (the defendant saw the victim, who had previously threatened his family, repeatedly strike his mother with a club); Henwood v. People, 129 P. 1010 , 1011-13 (Colo. 1913) (the victim punched the defendant, knocking him to the ground, and drew a gun); Crawford v. People, 20 P. 769 , 771 (Colo. 1889) (lengthy physical fight between the defendant and the victim); People v. Suazo, 867 P.2d 161, 167 (Colo. App. 1993) (th

2026We don’t need to resolve that dispute. 16 defendant and threatened to “beat him severely enough to require hospitalization”); Edwards v. People, 215 P. 855, 856-57, 862 (Colo. 1923) (the defendant saw the victim, who had previously threatened his family, repeatedly strike his mother with a club); Henwood v. People, 129 P. 1010 , 1011-13 (Colo. 1913) (the victim punched the defendant, knocking him to the ground, and drew a gun); Crawford v. People, 20 P. 769 , 771 (Colo. 1889) (lengthy physical fight between the defendant and the victim); People v. Suazo, 867 P.2d 161, 167 (Colo. App. 1993) (th

2026We don’t need to resolve that dispute. 16 defendant and threatened to “beat him severely enough to require hospitalization”); Edwards v. People, 215 P. 855, 856-57, 862 (Colo. 1923) (the defendant saw the victim, who had previously threatened his family, repeatedly strike his mother with a club); Henwood v. People, 129 P. 1010 , 1011-13 (Colo. 1913) (the victim punched the defendant, knocking him to the ground, and drew a gun); Crawford v. People, 20 P. 769 , 771 (Colo. 1889) (lengthy physical fight between the defendant and the victim); People v. Suazo, 867 P.2d 161, 167 (Colo. App. 1993) (th

2026See Howard-Walker v. People, 2019 CO 69, ¶ 25 (explaining that cumulative error may require reversal when no single error prejudices the defendant’s substantial rights, but the combination of multiple errors does). 14

2025The court rejected this instruction as well, ruling that “pointing [the jury] directly at only one thing” would be confusing in light of the fact that the jury would necessarily have to consider the totality of the circumstances when it decided whether to apply the provocation exception to the affirmative defense of self-defense and when it determined the “reasonableness” of Villegas-Ortega’s actions. ¶ 14 At the close of trial, the court instructed the jury on the affirmative defense of self-defense with respect to the offenses requiring a mental state of “intentional” or “knowing,” and it pr

2025And “[t]his [argument] may have had the effect of focusing the jury on the erroneous portion of the self-defense instruction.” People v. Toler, 9 P.3d 341, 354 (Colo. 2000). 13 ¶ 30 Both self-defense instructions required the jury to reject Ramirez-Pantoja’s claim of self-defense if the provocation exception applied.

2025And “[t]his [argument] may have had the effect of focusing the jury on the erroneous portion of the self-defense instruction.” People v. Toler, 9 P.3d 341, 354 (Colo. 2000). 13 ¶ 30 Both self-defense instructions required the jury to reject Ramirez-Pantoja’s claim of self-defense if the provocation exception applied.

2020See People v. Bennett, 515 P.2d 466, 469 (Colo. 1973) (whether the evidence, viewed as a whole and in the light most favorable to the prosecution, “is substantial and sufficient to support a conclusion by a reasonable mind that the defendant is guilty of the charge beyond a reasonable doubt”). 16 on the provocation exception for fear that they will disregard that law and prejudice the defendant may well end up prejudicing the defendant.

2020And “jurors should be trusted to follow the court’s instructions to find the defendant guilty only if the prosecution has proved each of the elements of the charged crime beyond a reasonable doubt.” People v. Dunaway, 88 P.3d 619, 629 (Colo. 2004). ¶30 In our view, Galvan’s proposed approach—requiring substantial and sufficient evidence to permit a reasonable juror to conclude beyond a reasonable doubt that the exception applies—gives rise to more serious and realistic 15 concerns.8 In a case in which there is some evidence to support the provocation exception, but not substantial and sufficie

2020And “jurors should be trusted to follow the court’s instructions to find the defendant guilty only if the prosecution has proved each of the elements of the charged crime beyond a reasonable doubt.” People v. Dunaway, 88 P.3d 619, 629 (Colo. 2004). ¶30 In our view, Galvan’s proposed approach—requiring substantial and sufficient evidence to permit a reasonable juror to conclude beyond a reasonable doubt that the exception applies—gives rise to more serious and realistic 15 concerns.8 In a case in which there is some evidence to support the provocation exception, but not substantial and sufficie

2020Galvan and C.M. then met in the street. ¶49 Given Galvan’s physical acts, the “mere words” constitutional argument he raises now is a hypothetical one that calls for an advisory opinion.13 Our court “is 12 The division, by contrast, explored whether relying on Galvan’s words, in conjunction with his physical acts, as evidence in support of the provocation exception violated the First Amendment. 13The division, too, found that this case involved both words and physical acts, and neither party expressly disagrees with that finding in front of us. 24 not empowered to give advisory opinions based

2020See Townsend v. People, 252 P.3d 1108, 1111 (Colo. 2011) (“A trial court must correctly instruct the jury on applicable law . . . .”); People v. Weinreich, 119 P.3d 1073, 1076 (Colo. 2005) (“A trial court has a duty to instruct the jury correctly on the law applicable to the case.”). ¶33 Here, viewing the evidence in the light most favorable to giving the provocation instruction, Silva, 987 P.2d at 914 , we agree with the division that the trial court correctly provided the instruction because there was some evidence in 17 support of the provocation exception.9 There was evidence that C.M. use

2020See Townsend v. People, 252 P.3d 1108, 1111 (Colo. 2011) (“A trial court must correctly instruct the jury on applicable law . . . .”); People v. Weinreich, 119 P.3d 1073, 1076 (Colo. 2005) (“A trial court has a duty to instruct the jury correctly on the law applicable to the case.”). ¶33 Here, viewing the evidence in the light most favorable to giving the provocation instruction, Silva, 987 P.2d at 914 , we agree with the division that the trial court correctly provided the instruction because there was some evidence in 17 support of the provocation exception.9 There was evidence that C.M. use

2020“A court has no jurisdiction . . . to decide a case on a speculative, hypothetical, or contingent set of facts.” Robertson v. Westminster Mall Co., 43 P.3d 622, 628 (Colo. App. 2001).

2020See Townsend v. People, 252 P.3d 1108, 1111 (Colo. 2011) (“A trial court must correctly instruct the jury on applicable law . . . .”); People v. Weinreich, 119 P.3d 1073, 1076 (Colo. 2005) (“A trial court has a duty to instruct the jury correctly on the law applicable to the case.”). ¶33 Here, viewing the evidence in the light most favorable to giving the provocation instruction, Silva, 987 P.2d at 914 , we agree with the division that the trial court correctly provided the instruction because there was some evidence in 17 support of the provocation exception.9 There was evidence that C.M. use

2020See Townsend v. People, 252 P.3d 1108, 1111 (Colo. 2011) (“A trial court must correctly instruct the jury on applicable law . . . .”); People v. Weinreich, 119 P.3d 1073, 1076 (Colo. 2005) (“A trial court has a duty to instruct the jury correctly on the law applicable to the case.”). ¶33 Here, viewing the evidence in the light most favorable to giving the provocation instruction, Silva, 987 P.2d at 914 , we agree with the division that the trial court correctly provided the instruction because there was some evidence in 17 support of the provocation exception.9 There was evidence that C.M. use