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Castillo v. People

Supreme Court of Colorado, En Banc

June 25, 2018

Andres Castillo, Petitioner
v.
The People of the State of Colorado. Respondent

          Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 10CA1477

          Attorneys for Petitioner: Douglas K. Wilson, Public Defender Ned R. Jaeckle, Deputy Public Defender Denver, Colorado

          Attorneys for Respondent: Cynthia H. Coffman, Attorney General Brock J. Swanson, Assistant Attorney General Denver, Colorado

          OPINION

          HOOD, JUSTICE.

         ¶1 Petitioner Andres Castillo admits that he fired a shotgun at several people, including two police officers, in a crowded parking lot after a night out celebrating his wife's birthday in downtown Denver. But he claims he acted in self-defense. Driving a car occupied by his wife and several friends, Castillo tried to exit a parking lot, when an unknown assailant opened fire on his car. At some point during this episode, Castillo got out of the car, retrieved a shotgun from his trunk, and returned fire. Nearby police officers then rushed to the scene and began firing at Castillo from a different direction. He turned and shot back. Castillo testified that he didn't realize his targets were police officers; he claimed that he thought they were associated with the initial shooter.

         ¶2 Charged with multiple counts of attempted first degree murder and first and second degree assault, Castillo asserted self-defense at trial. The trial court instructed the jury on self-defense but, over Castillo's objection, also instructed the jury on two exceptions to self-defense: initial aggressor and provocation. The jury found Castillo guilty of several offenses.

         ¶3 As relevant here, a division of the court of appeals found that (1) the trial court did not err in giving the initial aggressor jury instruction, and (2) while the trial court did err in giving the provocation jury instruction, the error was harmless. We granted certiorari to address whether the division erred in reaching these conclusions.

         ¶4 We conclude that the trial court erred in giving the initial aggressor jury instruction because there was no evidence to support the instruction. We further conclude that the error was not harmless. We do not reach the issue of whether giving the provocation jury instruction was harmless error because Castillo is entitled to a new trial regardless, and the trial court can avoid the error on retrial.

         ¶5 Therefore, we reverse the judgment of the court of appeals and remand for further proceedings consistent with this opinion.

         I. Facts and Procedural History

         ¶6 One Saturday night, Castillo visited a nightclub in downtown Denver with his wife, his cousin, and two friends to celebrate his wife's birthday. They stayed until the club closed.

         ¶7 Closing time in downtown Denver often unleashes a flood of people into the streets. The Denver Police Department calls the resulting sea of humanity "outcrowds." Because fights and other disturbances are common, police are typically present and vigilant.

         ¶8 This night proved to be no exception. As Castillo and his group left the club, they walked through an alley lining the parking lot where Castillo's car was parked. In the alley, they passed a group of men who appeared to be fighting or about to fight. Castillo's group did not get involved. Instead, they kept walking to Castillo's car.

         ¶9 Denver Police Sergeant Lombardi monitored the outcrowds that night. He saw a group of twenty to thirty people either fighting or about to fight. When he called for backup, several officers joined him. Among them was Officer Simmons, who trained his spotlight on the skirmish, causing the would-be combatants to disperse.

         ¶10 Meanwhile, Castillo's group reached Castillo's car. Castillo hopped into the driver's seat, rolled down his window, and started backing out of his parking spot. A man-who was never identified-said something to Castillo through the open driver's door window. Castillo said something in return. Castillo testified that he couldn't remember what he said. When asked if he threatened the man, Castillo responded that he did not.

         ¶11 What happened next is less clear. Partially conflicting testimony at trial described two possible sequences.

         ¶12 According to most witnesses, including Castillo, Castillo backed his car out of the parking spot and started moving the car toward 18th Street to leave the parking lot. There were cars in front of him, so he drove slowly. Someone then started firing at Castillo's car from the direction of 19th Street, hitting Castillo's car. Castillo popped the trunk, got out of his car, walked to the rear of his car, removed a shotgun from the trunk, and fired several rounds toward the area where the shots originated.

         ¶13 On the other hand, Jennifer Strong (who was in the back seat of the car at the time) testified on direct examination by the People that Castillo cursed at the man who said something to Castillo as the man walked by. According to Strong's testimony on direct, after the verbal exchange with the man, Castillo stopped the car, popped open his trunk, and got out of the car.[1] Only then did someone start firing at Castillo's car. Castillo walked to the rear of his car, removed a shotgun from the trunk, and then fired several rounds in the apparent direction of the initial shooter.

         ¶14 Under either version, however, Castillo opened the trunk before getting out of his car, and the gunshots started before Castillo got to his trunk. The initial shooter was never identified, and it is unknown if the initial shooter was the man who said something to Castillo through the car window.

         ¶15 Sergeant Lombardi-working as a supervisor for the lower downtown area that evening-heard shots and moved toward the action. Sergeant Lombardi testified he came around a parked car to the right of Castillo, when he saw Castillo, then on foot, backing up, racking a shotgun (inserting a round into the chamber of the gun by pulling the pump handle back and pushing it forward), and aiming toward 19th Street. Sergeant Lombardi described seeing Castillo with another male, Castillo's cousin: "They both have their focus attention in [sic] where the shotgun's pointing, and they're both looking to where that fight and that altercation was, northbound towards 19th Street." Sergeant Lombardi stated, "I was fearing that he was trying to kill somebody, and out of defense of those people I fired one to two rounds at the suspect."

         ¶16 The defense called Sergeant Lombardi as a witness and discussed the order of events in this hectic scene. Sergeant Lombardi testified that he was the first officer to reach the spot from which he and Officer Simmons would eventually shoot. Defense counsel asked Sergeant Lombardi, "[Y]ou fired two rapid shots at Mr. Castillo before he fired at you?" Sergeant Lombardi responded, "Yes." Sergeant Lombardi said he was the first officer to shoot at Castillo and that after he shot at Castillo, Castillo turned, racked his gun, and shot back.

         ¶17 Castillo testified at trial that while he was firing toward 19th Street, he heard a bang and saw a muzzle flash to his right that looked similar to the other muzzle blasts he had seen coming from the initial shooter. Castillo testified he didn't see anyone, didn't hear anyone say anything, and thought the blast must have come from other people associated with the initial shooter.

         ¶18 Sergeant Lombardi testified that Officer Simmons arrived at the scene at some point after him. Officer Simmons testified he had been following Sergeant Lombardi, ten to twelve feet behind him. He arrived at Sergeant Lombardi's location and he stepped even with Sergeant Lombardi and saw Castillo holding the shotgun. Then, in Officer Simmons's words, "As he turned and faced us, that's when the first round was fired in our direction." After Officer Simmons felt something near his head and "felt something across [his] stomach like something had grazed [him]," he fired at Castillo. Officer Simmons testified that he believed that he fired around the same time as Sergeant Lombardi, but could not tell how many times Sergeant Lombardi shot.

         ¶19 Castillo was hit by police fire. Castillo then handed his gun to his cousin. Police shot and killed the cousin.

         ¶20 The officers were dressed in uniform, which consisted of a dark blue shirt with a badge, dark blue pants, and no reflective vest. Officer Simmons and Sergeant Lombardi testified that they did not give any commands or identify themselves as police. However, several witnesses testified they could tell the two were police officers. The parking lot was lighted, but how visible the police should have been to Castillo under the circumstances was disputed at trial.

         ¶21 By all accounts, the foregoing events occurred in a matter of seconds. Sergeant Lombardi testified it was approximately eleven seconds from the time he heard the first shots until he began shooting. Officer Simmons estimated the total event, from the sound of the first shots until the cousin fell to the ground, lasted ten to twenty seconds.

         ¶22 The prosecution charged Castillo with two counts of attempted first degree murder (as to Officer Simmons and Sergeant Lombardi), two counts of first degree assault on a peace officer (also as to Officer Simmons and Sergeant Lombardi), and five counts of second degree assault (as to bystanders present in the parking lot).

         ¶23 At trial, Castillo admitted that he shot at the police officers, but testified that he did not know they were police officers; he believed the people who turned out to be police were with the unidentified initial shooter.

         ¶24 Castillo's sole defense at trial was self-defense.

         ¶25 The trial court instructed the jury on self-defense; over defense counsel's objection, the court also instructed the jury regarding the provocation and initial aggressor exceptions to self-defense. The instructions read as follows:

(1) It is an affirmative defense to the crimes of Criminal Attempt to Commit Murder in the First Degree, Criminal Attempt to Commit Murder in the Second Degree, Assault in the First Degree, and Assault in the Second Degree that the defendant used physical force upon another person:
(A) in order to defend himself or a third person from what he reasonably believed to be the use or imminent use of unlawful physical force, and
(B) he used a degree of force which he reasonably believed to be necessary for that purpose.
Defendant was not required to retreat in order to claim the right to employ force in his own defense.
(2) It is not an affirmative defense that the defendant used physical force upon another person as set out in paragraph (1) of this Instruction if the defendant was the initial aggressor unless:
(A) the defendant withdrew from the encounter, and
(B) effectively communicated to the other person his intent to do so, and
(c) the other person nevertheless continued or threatened the use of unlawful physical force.
(3) It is not an affirmative defense that the defendant used physical force upon another person as set out in paragraph (1) of this instruction if the defendant, with intent to cause bodily injury or death to another person, ...

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