self-defense instruction in Colorado

2025Pearson, ¶ 16; Castillo v. People, 2018 CO 62, ¶ 32 . ¶ 19 As relevant here, a person’s use of self-defense is justified only if he “reasonably believes” another person is using or about to use “unlawful physical force” against him. § 18-1-704(1), C.R.S. 2025 6 (emphasis added).

2024Castillo , ¶ 32; People v. Cline , 2022 COA 135 , ¶ 31.

2026In Beckett, our supreme court held that a self-defense instruction tracking the text of the statute and informing the jury “to consider the defendant’s ‘reasonable belie[f]’ of use or imminent use of force” encompassed the apparent necessity principle and “adequately apprised the jury that it was required to consider ‘the totality of the circumstances.’” 800 P.2d at 78 .

2025Further, “it is unnecessary to give an instruction that is encompassed in other instructions given by the court.” People v. Garcia, 1 P.3d 214, 222 (Colo. App. 1999), aff’d, 28 P.3d 340 (Colo. 2001); see Beckett v. People, 800 P.2d 74 -75, 78 (Colo. 1990) (concluding that the defendant was not entitled to an “apparent necessity” jury instruction because the trial court’s self- defense instruction tracked the statute and adequately apprised the jury that it must consider “the totality of circumstances . . . in evaluating the reasonableness of the accused’s belief in the necessity of defensive a

2025See Cassels v. People, 92 P.3d 951, 958 (Colo. 2004) (explaining that a trial court must tailor the self-defense instruction in light of the particular facts of the case).

2025To determine whether this threshold was satisfied, “we consider the evidence in the light most favorable to the defendant.” Cassels v. People, 92 P.3d 951, 955 (Colo. 2004); see also Galvan v. People, 2020 CO 82, ¶ 33 (viewing the evidence “in the light most favorable to giving” the instruction). ¶ 18 We review de novo whether there was sufficient evidence to support a self-defense instruction.

2025Analysis A. The Court’s Self-Defense Jury Instruction ¶ 14 Madison asserts that the court’s self-defense instruction was contrary to People v. Jones, 675 P.2d 9 (Colo. 1984), and Riley v. People, 266 P.3d 1089 (Colo. 2011), for two reasons: First, it did not expressly tell the jury to consider the totality of the circumstances and, second, did not instruct the jury to consider the number of persons who reasonably appeared to present a threat to Madison when determining the reasonableness of Madison’s fear of imminent bodily harm or death and his use of the gun.

2025Further, “it is unnecessary to give an instruction that is encompassed in other instructions given by the court.” People v. Garcia, 1 P.3d 214, 222 (Colo. App. 1999), aff’d, 28 P.3d 340 (Colo. 2001); see Beckett v. People, 800 P.2d 74 -75, 78 (Colo. 1990) (concluding that the defendant was not entitled to an “apparent necessity” jury instruction because the trial court’s self- defense instruction tracked the statute and adequately apprised the jury that it must consider “the totality of circumstances . . . in evaluating the reasonableness of the accused’s belief in the necessity of defensive a

2025Al-Jihad’s statement again shows, at most, that he subjectively believed the officer might tase him. ¶ 21 Even so, Al-Jihad insists that the self-defense instruction was warranted because the court was required to “apprise the jury of the law of self-defense from the standpoint of the defendant.” Idrogo v. People, 818 P.2d 752, 754 (Colo. 1991) (emphasis added).

2018See Idrogo, 818 P.2d at 756 (“A trial court’s failure to properly instruct a jury on the applicable law of self-defense deprives the defendant of the right to an acquittal on the ground of self-defense if the jury could have had a reasonable doubt as to whether the defendant acted in necessary self-defense.”); Newell, ¶ 20 (if there is any evidence in the record to support a self-defense instruction, a court’s refusal to give one deprives the accused of the constitutional right to trial by jury).

2019For example, in People v. Taylor, 230 P.3d 1227, 1229 (Colo. App. 2009), overruled on other grounds by Pickering, 276 P.3d 553 , the defendant was charged with illegal discharge of a firearm, but the trial court disallowed a self-defense instruction.

2018Application ¶ 23 Here, on the unique facts presented, we conclude that DeGreat has presented some credible evidence to support his request for an instruction on the affirmative defense of self-defense in relation to the aggravated robbery count. ¶ 24 As an initial matter, we note that in concluding that DeGreat was entitled to a self-defense instruction as to the aggravated robbery charge, the division relied on our statement in Pickering , 276 P.3d at 555 , that "[w]ith respect to crimes requiring intent, knowledge, or willfulness, such as second-degree murder, self-defense is an affirmative

2025See Riley, 266 P.3d at 1093 n.2 (observing that the jurors evaluating a claim of self-defense must consider the 14 totality of the circumstances regardless of whether the self-defense claim is an affirmative defense or an element-negating traverse). ¶ 25 Thus, by cabining its response only to the question asked — i.e., by failing to remedy the omission of any requirement that the jury consider the totality of the circumstances with respect to self- defense generally — the court’s answer could have only added to the jury’s confusion.

2025Analysis A. The Court’s Self-Defense Jury Instruction ¶ 14 Madison asserts that the court’s self-defense instruction was contrary to People v. Jones, 675 P.2d 9 (Colo. 1984), and Riley v. People, 266 P.3d 1089 (Colo. 2011), for two reasons: First, it did not expressly tell the jury to consider the totality of the circumstances and, second, did not instruct the jury to consider the number of persons who reasonably appeared to present a threat to Madison when determining the reasonableness of Madison’s fear of imminent bodily harm or death and his use of the gun.

2025See § 18-1-704(1), C.R.S. 2024 (“[A] person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person . . . .”); People v. Coahran, 2019 COA 6, ¶ 16 (a defendant must present “some credible evidence” to support a self-defense instruction) (citation omitted).

2024Cf. People v. Coahran, 2019 COA 6, ¶ 38 (failing to give a self-defense instruction eliminated the burden of disproving self-defense).

2025See People v. Garcia, 28 P.3d 340, 347 (Colo. 2001).

2025Further, “it is unnecessary to give an instruction that is encompassed in other instructions given by the court.” People v. Garcia, 1 P.3d 214, 222 (Colo. App. 1999), aff’d, 28 P.3d 340 (Colo. 2001); see Beckett v. People, 800 P.2d 74 -75, 78 (Colo. 1990) (concluding that the defendant was not entitled to an “apparent necessity” jury instruction because the trial court’s self- defense instruction tracked the statute and adequately apprised the jury that it must consider “the totality of circumstances . . . in evaluating the reasonableness of the accused’s belief in the necessity of defensive a

2017People v. Dillon, 655 P.2d 841, 845 (Colo. 1982) (“The general rule in Colorado is that an instruction embodying the defendant’s theory of the case must be given if there is any evidence in the record to support it ... no matter how improbable or unreasonable defendant’s theory is.”).

1998People v. Dillon, 631 P.2d 1153 (Colo.App.1981), rev’d on other grounds, 655 P.2d 841 (Colo.1982). *319 To refuse an instruction where it is required deprives the accused of his or her constitutional right to a trial by a jury.

2026People v. Garcia, 113 P.3d 775, 784 (Colo. 2005).

2015See People v. Garcia , 113 P.3d 775, 784 (Colo. 2005); see also Lybarger v. People , 807 P.2d 570, 582-83 (Colo. 1991) (an improper affirmative defense jury instruction that effectively removed the defense from the jury’s consideration and thereby lowered the prosecution’s burden of proof cannot be deemed harmless); accord Taylor , 230 P.3d at 1230 . ¶19       DeGreat’s aggravated robbery conviction is accordingly reversed and remanded for a new trial.

2025See § 18-1-704(3)(b); see People v. Zukowski, 260 P.3d 339, 247 (Colo. App. 2010) (a person’s right to self-defense is abridged when he is the initial aggressor). ¶ 45 Accordingly, because no credible evidence supported a self-defense instruction, the court did not err by refusing to give one.

2024See Beckett, 800 P.2d at 78 (a separate apparent necessity instruction is not necessary where 16 jury instructions adequately informed the jury that it was required to consider the defendant’s reasonable belief in the “necessity of defensive action” (quoting People v. Jones, 675 P.2d 9, 14 (Colo. 1984))); see also People v. Zukowski, 260 P.3d 339, 348-49 (Colo. App. 2010). ¶ 41 The self-defense instruction told the jury that Corey was justified in using self-defense “without first retreating” if the remaining elements were met, and it repeatedly referred to Corey’s “reasonable beliefs.” The se

2024Cf. People v. DeGreat, 2018 CO 83, ¶¶ 33-34 (refusing a self-defense instruction on one count that resulted in a conviction was not harmless when the defendant was acquitted of other counts for which the instruction was given). 24 ¶ 47 The evidence negating duress was significant.

2024Cf. People v. DeGreat, 2018 CO 83, ¶¶ 33-34 (refusing a self-defense instruction on one count that resulted in a conviction was not harmless when the defendant was acquitted of other counts for which the instruction was given). 24 ¶ 47 The evidence negating duress was significant.

2021He relies on Brown v. People, 239 P.3d 764, 770 (Colo. 2010), for the proposition that “a criminal defendant who maintains his innocence may receive an inconsistent jury instruction . . . provided there is a rational basis for the instruction in the evidentiary record.” Id.

2018In this case, defendant testified that the shooting was an accident, but he wanted a self-defense instruction. ¶ 102 Brown v. People, 239 P.3d 764, 768 (Colo. 2010), does not compel a different conclusion.

2020Beyond those general statements of law, Riley and Kaufman are largely inapposite: Riley involved multiple assailants, 266 P.3d at 1091 , while Kaufman involved the effect that an erroneous jury instruction on second degree assault had on the defendant’s self-defense claim, 202 P.3d at 550–51.

2019People v. Palmer, 87 P.3d 137, 140 (Colo. App. 2003); see also People v. Davis, 2017 COA 40M, ¶ 21 , ___ P.3d ___, ___ (“Though the prosecution alleged numerous overt acts in furtherance of the single conspiracy, that did not require unanimous agreement by the jurors as to the precise overt act defendant committed.”). ¶ 16 Though no Colorado court has addressed the specific issue before us, our jurisprudence reveals that, to establish a self-defense exception — such as mutual combat or provocation — the prosecution must prove the elements of the exception beyond a 8 reasonable doubt. 2 See Kau

2019See Fuller, 781 P.2d at 648, 651 (the defendant wasn’t entitled to a self-defense instruction on a criminal mischief charge for kicking out a police car window because at that point the defendant was “arrested, handcuffed and placed in the back seat of the car”); Smith, 754 P.2d at 1170 (the defendant wasn’t entitled to a self-defense instruction when he shot at the victim’s car after a fistfight with the victim because “the jury could not reasonably have inferred from the evidence presented either that [the defendant] fired his rifle at [the victim’s] car with the intent of defending himself

2019See Fuller, 781 P.2d at 648, 651 (the defendant wasn’t entitled to a self-defense instruction on a criminal mischief charge for kicking out a police car window because at that point the defendant was “arrested, handcuffed and placed in the back seat of the car”); Smith, 754 P.2d at 1170 (the defendant wasn’t entitled to a self-defense instruction when he shot at the victim’s car after a fistfight with the victim because “the jury could not reasonably have inferred from the evidence presented either that [the defendant] fired his rifle at [the victim’s] car with the intent of defending himself

2019For example, in People v. Taylor, 230 P.3d 1227, 1229 (Colo. App. 2009), overruled on other grounds by Pickering, 276 P.3d 553 , the defendant was charged with illegal discharge of a firearm, but the trial court disallowed a self-defense instruction.

2015Thus, from the testimony presented, the jury could have concluded that DeGreat had the right to defend himself against what he “reasonably believe[d] to be the use or imminent use of unlawful physical force.” § 18-1-704; see Taylor , 230 P.3d at 1230 ; cf. Commonwealth v. Rogers , 945 N.E.2d 295, 306-07 (Mass. 2011) (based on the facts presented it was not error to give a self-defense instruction for a robbery charge).

2019See, e.g., DeGreat, ¶ 17 (permitting self-defense instruction for aggravated robbery 19 charge); People v. Mullins, 209 P.3d 1147, 1151 (Colo. App. 2008) (permitting self-defense instruction for inciting or engaging in a riot).

2015Id. at 1231 ; see also People v. Mullins , 209 P.3d 1147, 1151 (Colo. App. 2008) (jury should have been allowed to consider self-defense as an affirmative defense to the crime of inciting or engaging in a riot); cf. People v. Fuller , 781 P.2d 647, 650-51 (Colo. 1989) (self-defense may be an affirmative defense to resisting arrest). ¶15       The circumstances here are similar to Taylor .

2026People v. Dyer, 2019 COA 161, ¶ 39 (citing People v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006)). ¶ 70 In recent years, the Colorado supreme court has applied and explained the party presentation principle: “Under our adversarial system of justice, we adhere to the party presentation principle, which relies on the parties to frame the issues to be decided and assigns to courts the role of neutral arbiters of the matters raised.” Galvan v. People, 2020 CO 82, ¶ 45 . ¶ 71 There may be some tension between the appellate doctrine that a court may affirm (but not reverse) on any ground supported 1 I

2025To determine whether this threshold was satisfied, “we consider the evidence in the light most favorable to the defendant.” Cassels v. People, 92 P.3d 951, 955 (Colo. 2004); see also Galvan v. People, 2020 CO 82, ¶ 33 (viewing the evidence “in the light most favorable to giving” the instruction). ¶ 18 We review de novo whether there was sufficient evidence to support a self-defense instruction.

2025Cf. People v. Jones, 2023 COA 104, ¶¶ 31-34 (upholding the district court’s refusal to instruct on self-defense because “there was no evidence 8 that the victim took any actions that would make it appear that he was about to use physical force against [the defendant]”). ¶ 23 That said, because — as the People argue, and we agree — no evidence warranted the self-defense instruction, it would presumably be an easy task to debunk the defense at trial.

2023SUMMARY November 9, 2023 2023COA104 No. 20CA1568, People v. Jones — No. 20CA1568, People v. Jones — Criminal Law — Affirmative Defenses — Mistake of Fact — Self-Defense — Use of Physical Force in Defense of a Person — Use of Deadly Physical Force Against an Intruder Applying the division’s analysis in People v. Toler, 981 P.2d 1096, 1099 (Colo. App. 1998), aff’d, 9 P.3d 341 (Colo. 2000), a division of the court of appeals holds that the trial court here properly refused to give a self-defense instruction under subsections (2)(b) and (2)(c) of the self-defense statute. § 18-1-704, C.R.S. 2023.

2025Id. ¶ 11 Because Hernandez didn’t object to the self-defense instruction, we may reverse only for plain error.

2025See Pearson v. People, 2022 CO 4, ¶ 16 (whether a defendant has met their burden to present an affirmative defense “is a question of law”).1 1 Al-Jihad characterizes the People’s appeal as challenging the district court’s “weighing of the evidence.” But it was the jury who weighed the evidence.

2025Initial Aggressor Instruction ¶ 40 I would also approve the district court’s decision not to instruct the jury on the initial aggressor exception to self-defense because there was no evidence that Al-Jihad used or threatened physical force before the perceived threat to which he responded. 17 ¶ 41 When a self-defense instruction is given, an initial aggressor instruction is warranted if there is “some evidence” that the defendant “initiated the physical conflict by using or threatening imminent use of unlawful physical force.” People v. Roberts-Bicking, 2021 COA 12, ¶¶ 31, 33 .

2022Contrary to Whiteaker’s assertion, neither People v. Manzanares, 942 P.2d 1235 (Colo. App. 1996), nor any other Colorado case of which we are aware holds that a court may provide an initial aggressor instruction only if “there is 19 evidence the defendant initiated the physical conflict prior to the conduct giving rise to the self-defense claim.” See People v. Roberts-Bicking, 2021 COA 12, ¶ 36 , 490 P.3d 1128 , 1136 (rejecting the defendant’s argument that the initial aggressor instruction was inappropriate because “the act giving rise to the charged offense cannot serve as evidence that the

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.

2023SUMMARY November 9, 2023 2023COA104 No. 20CA1568, People v. Jones — No. 20CA1568, People v. Jones — Criminal Law — Affirmative Defenses — Mistake of Fact — Self-Defense — Use of Physical Force in Defense of a Person — Use of Deadly Physical Force Against an Intruder Applying the division’s analysis in People v. Toler, 981 P.2d 1096, 1099 (Colo. App. 1998), aff’d, 9 P.3d 341 (Colo. 2000), a division of the court of appeals holds that the trial court here properly refused to give a self-defense instruction under subsections (2)(b) and (2)(c) of the self-defense statute. § 18-1-704, C.R.S. 2023.

2025Further, “it is unnecessary to give an instruction that is encompassed in other instructions given by the court.” People v. Garcia, 1 P.3d 214, 222 (Colo. App. 1999), aff’d, 28 P.3d 340 (Colo. 2001); see Beckett v. People, 800 P.2d 74 -75, 78 (Colo. 1990) (concluding that the defendant was not entitled to an “apparent necessity” jury instruction because the trial court’s self- defense instruction tracked the statute and adequately apprised the jury that it must consider “the totality of circumstances . . . in evaluating the reasonableness of the accused’s belief in the necessity of defensive a

2002Likewise, in Hare v. People, 800 P.2d 1317 (Colo.1990), the supreme court held that the instruction, which was very much like the self-defense instruction given here, permits the jury to consider, from the defendant’s viewpoint, whether the defendant was justified in using physical force in self-defense.

2025See Sepeda, 581 P.2d at 731 (concluding that a self-defense instruction was “totally irrelevant” when it was undisputed that a “fight ended no later than when [the] defendant fired into the crowd,” yet the defendant “continued to fire at his unarmed and apparently helpless foe”); State v. Knotts, 421 S.E.2d 917, 924 (W.

2025See Sepeda, 581 P.2d at 731 (concluding that a self-defense instruction was “totally irrelevant” when it was undisputed that a “fight ended no later than when [the] defendant fired into the crowd,” yet the defendant “continued to fire at his unarmed and apparently helpless foe”); State v. Knotts, 421 S.E.2d 917, 924 (W.

2021People v. Rediger, 2018 CO 32, ¶ 40 (“[A] waiver extinguishes error, and therefore appellate review . . . .”). 21 confusion or encourage the jury to focus on particular evidence.

2019JUDGE WEBB dissents. 11 JUDGE WEBB, dissenting. ¶ 32 In law, as in life, “[o]n the question you ask depends the answer you get.” Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 484 (1948) (Frankfurter, J., dissenting). ¶ 33 Following the mandate to consider People v. Rediger, 2018 CO 32 , the majority asks whether defense counsel thought about the deadly physical force language in the self-defense instruction before endorsing that instruction.

2026People v. Dyer, 2019 COA 161, ¶ 39 (citing People v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006)). ¶ 70 In recent years, the Colorado supreme court has applied and explained the party presentation principle: “Under our adversarial system of justice, we adhere to the party presentation principle, which relies on the parties to frame the issues to be decided and assigns to courts the role of neutral arbiters of the matters raised.” Galvan v. People, 2020 CO 82, ¶ 45 . ¶ 71 There may be some tension between the appellate doctrine that a court may affirm (but not reverse) on any ground supported 1 I

2026People v. Dyer, 2019 COA 161, ¶ 39 (citing People v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006)). ¶ 70 In recent years, the Colorado supreme court has applied and explained the party presentation principle: “Under our adversarial system of justice, we adhere to the party presentation principle, which relies on the parties to frame the issues to be decided and assigns to courts the role of neutral arbiters of the matters raised.” Galvan v. People, 2020 CO 82, ¶ 45 . ¶ 71 There may be some tension between the appellate doctrine that a court may affirm (but not reverse) on any ground supported 1 I

2026See People v. Ferguson, 43 P.3d 705, 707 (Colo. App. 2001); § 18-1-901(3)(d), C.R.S. 2025 (defining deadly force as force “which does, in fact, produce death”).

2026People v. Dyer, 2019 COA 161, ¶ 39 (citing People v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006)). ¶ 70 In recent years, the Colorado supreme court has applied and explained the party presentation principle: “Under our adversarial system of justice, we adhere to the party presentation principle, which relies on the parties to frame the issues to be decided and assigns to courts the role of neutral arbiters of the matters raised.” Galvan v. People, 2020 CO 82, ¶ 45 . ¶ 71 There may be some tension between the appellate doctrine that a court may affirm (but not reverse) on any ground supported 1 I

2026People v. Dyer, 2019 COA 161, ¶ 39 (citing People v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006)). ¶ 70 In recent years, the Colorado supreme court has applied and explained the party presentation principle: “Under our adversarial system of justice, we adhere to the party presentation principle, which relies on the parties to frame the issues to be decided and assigns to courts the role of neutral arbiters of the matters raised.” Galvan v. People, 2020 CO 82, ¶ 45 . ¶ 71 There may be some tension between the appellate doctrine that a court may affirm (but not reverse) on any ground supported 1 I