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People v. Naranjo

Supreme Court of Colorado, En Banc

September 11, 2017

The People of the State of Colorado, Petitioner
v.
Gilbert Arturo Naranjo. Respondent

         Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 13CA1063

          Attorneys for Petitioner: Cynthia H. Coffman, Attorney General John T. Lee, Assistant Attorney General Denver, Colorado

          Attorneys for Respondent: Douglas K. Wilson, Public Defender Joseph P. Hough, Deputy Public Defender Denver, Colorado

          OPINION

          MÁRQUEZ JUSTICE

         ¶1 The People charged Gilbert Naranjo with two counts of felony menacing for pointing a handgun from his vehicle toward the two occupants of another vehicle during a road-rage incident. Naranjo admitted at trial that he handled the gun during the incident but testified that he merely moved the weapon from the front passenger seat to the glove compartment to prevent it from sliding onto the floor and accidentally discharging. At the close of evidence, Naranjo tendered a jury instruction for the lesser non-included offense of disorderly conduct, which, in relevant part, prohibits the intentional, knowing, or reckless display of a deadly weapon in a public place "in a manner calculated to alarm." The trial court refused this instruction, and the jury convicted Naranjo of both counts of felony menacing. On appeal, the court of appeals concluded that Naranjo was entitled to the instruction, and it therefore reversed the judgment of conviction and remanded the case for a new trial.

         ¶2 We granted the People's petition for a writ of certiorari to review the court of appeals' conclusion that Naranjo was entitled to an instruction on the lesser non-included offense of disorderly conduct.[1] Under this court's case law, a defendant is entitled to a jury instruction on a lesser non-included offense where there exists a rational basis in the evidence to simultaneously acquit the defendant of the greater charged offense and convict the defendant of the lesser offense. Montoya v. People, 2017 CO 40, ¶ 32, 394 P.3d 676, 688. Considering the evidence presented at trial in this case-namely, the testimony of Naranjo and the two victims-we conclude that there was no rational basis for the jury to simultaneously acquit Naranjo of felony menacing and convict him of disorderly conduct. Accordingly, we reverse the judgment of the court of appeals.

         I. Facts and Procedural History

         ¶3 The People charged Gilbert Naranjo with two counts of felony menacing in violation of section 18-3-206, C.R.S. (2017). These charges stemmed from a road-rage incident in 2011 near Pueblo, Colorado, during which Naranjo and another driver, Jose Herrera, got into an altercation while merging onto a highway. Herrera was driving with his sixteen-year-old daughter in a pickup truck, and Naranjo was driving a smaller car. The prosecution alleged that as the two vehicles were traveling down the highway, Naranjo pointed a handgun from his open window up at Herrera and his daughter and told the two, "You don't want to fuck with me."

         ¶4 At trial, Herrera, his daughter, and Naranjo testified about the incident. All three acknowledged that there had been an altercation on the highway, but the victims' account differed from Naranjo's.

         ¶5 Herrera testified that he was accelerating through a green light onto a highway on-ramp when Naranjo passed him and cut him off. Herrera braked to slow down and threw his hands in the air. As the two vehicles entered the highway and continued down the highway, Herrera tried to pass Naranjo, but Naranjo repeatedly sped up, cut in front of Herrera, and slowed down to force Herrera to brake. After continuing down the highway some distance, the two vehicles eventually slowed to below highway speed and Herrera pulled even with Naranjo's car, with the passenger side of Herrera's truck next to the driver side of Naranjo's car. Herrera rolled down the passenger-side window of his truck, Naranjo rolled down his driver-side window, and Herrera heard Naranjo say, "You don't want to fuck with me." At the same time, Naranjo raised a black handgun with his right hand to about chest-height and pointed it at Herrera's daughter in the passenger seat.

         ¶6 When Naranjo exited the highway, Herrera followed him and called 911 to report the incident and Naranjo's location. Herrera continued to follow Naranjo until police arrived and stopped Naranjo.

         ¶7 Herrera's daughter similarly testified that Naranjo cut in front of the truck as they were entering the highway on-ramp, and that Herrera threw his hands into the air. On the highway, Naranjo cut in front of the truck and slowed down to prevent Herrera from passing in either the left or right lane. Herrera's truck ultimately pulled into the left lane, alongside Naranjo's car. Herrera rolled down the truck's window, and the daughter observed Naranjo raise a handgun to his open driver-side window, look up at their truck, and say, "You don't want to fuck with me." Herrera then braked hard, called 911, and continued to follow Naranjo until police arrived.

         ¶8 In contrast, Naranjo testified that shortly before he encountered Herrera's truck, he heard a clanking sound coming from under the passenger seat of his car. He realized that the clanking sound was his handgun sliding on the floorboard as he made a turn. He had mistakenly left the gun in his car after going shooting at a reservoir with his wife and a friend the day before. Naranjo had not unloaded the gun and was worried about it accidentally discharging, so he picked it up and put it on the passenger seat.

         ¶9 Naranjo testified that he passed Herrera while accelerating onto the highway on- ramp, but he did not think that he had cut Herrera off. According to Naranjo, Herrera then began to tailgate him as he accelerated to the highway speed limit and continued down the highway. Naranjo testified that he pressed the brakes to slow down, hoping that Herrera would pass him. However, as he did so, the gun slid forward on the passenger seat. To keep the gun from falling onto the floor and accidentally discharging, Naranjo reached over, picked up the gun, and put it in the glove compartment. Naranjo expressly denied brandishing the gun, pointing it at anyone, or making any threats; he instead testified that the gun was pointed away from him on the seat and that he moved it to the glove compartment in that same position.

         ¶10 Naranjo further testified that as he put the gun in the glove box, Herrera pulled alongside him and appeared to be trying to tell him something. Naranjo rolled down his window and heard Herrera telling him to pull over. Naranjo did not want to pull over on the highway, so he rolled his window up and exited the highway. Naranjo testified he was shaken by the incident and felt threatened, so he decided to drive to his brother-in-law's tattoo shop to relax and "kind of vent" about what had happened. While he was driving to the shop, Naranjo noticed that Herrera was following him, and two police cars stopped Naranjo shortly thereafter.

          ¶11 At trial, the jury was instructed on the charged offense of felony menacing under section 18-3-206(1)(a). The menacing instruction provided that the jury should convict Naranjo of felony menacing if it concluded:

1. That [Naranjo, ]
2. in the State of Colorado, at or about the date and place ...

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