County District Court Nos. 13CR875, 13CR890, 13CR1222 &
13CR1681. Honorable Timothy G. Kerns, Judge.
J. Weiser, Attorney General, Majid Yazdi, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee.
A. Ring, Colorado State Public Defender, Dayna Vise, Deputy
State Public Defender, Denver, Colorado, for
J., concurs. Webb, J., dissents.
This case has been remanded from the supreme court.
Ramirez v. People, (Colo. No. 18SC281, Dec. 3, 2018)
(unpublished order). That court has instructed us to
reconsider the prior division's opinion in this case,
People v. Ramirez (Colo.App. No. 14CA1958, Mar. 8,
2018) (not published pursuant to C.A.R. 35(e) )
(Ramirez I ), in light of the decision in People
v. Rediger, 416 P.3d 893, 2018 CO 32.
[¶2] Defendant, Joe Anthony Ramirez, was
convicted in one trial of charges stemming from four
consolidated criminal cases. He was found guilty of attempted
first degree murder, attempted reckless manslaughter, first
degree assault with a deadly weapon, engaging in a riot,
illegal discharge of a firearm, theft by receiving, vehicular
eluding, and possession with intent to distribute a schedule
II controlled substance. The court imposed a combination of
consecutive and concurrent sentences totaling eighty-eight
[¶3] In Ramirez I, the division
affirmed his conviction of all charges. After receiving the
supreme court's order of remand, we requested
supplemental briefing from the parties as to the application
of Rediger . That supreme court decision has
potential effect only on our disposition of the conviction
for first degree assault. Thus, none of the other convictions
entered against Ramirez are affected by the supreme
[¶4] With respect to the first degree
assault conviction, we now conclude that defense
counsel's error in declining to object to an inapplicable
jury instruction amounted to a forfeiture, as described in
Rediger, ¶¶ 39-47, and not a waiver, as described in
the prior division's opinion. Because we conclude that
the error amounted to prejudicial plain error, we reverse the
conviction of first degree assault and remand for a new trial
solely as to that charge.
[¶5] Ramirez argues that the trial court
improperly instructed the jury as to " deadly physical
force" in Instruction Number 29, which related to the
charges of first degree assault, second degree assault, and
third degree assault. (The jury found him guilty only of
first degree assault.)
[¶6] The prior division concluded that
Ramirez had waived his contention of instructional error and
therefore declined to consider it. In accordance with the
supreme court's remand, we now re-examine that ruling.
[¶7] During the jury instruction conference,
defense counsel said that a scintilla of evidence was
presented at trial that would support the defense of
self-defense. The following colloquy then occurred:
[Prosecutor]: I know that the standard [of proof] is
incredibly low of it being a scintilla of evidence, and so I
don't think the People can in good faith dispute that
there's contradictory testimony including the
defendant's statements. . . .
[COURT]: Counsel, any objection to the self-defense
instruction [that was tendered by the prosecution] and its
applicability to . . . first, second and third degree
[PROSECUTOR]: No, Your Honor.
[COURT]: [Defense counsel?]
[DEFENSE COUNSEL]: Your Honor, I believe this to be a correct
statement of the law, so I don't have any objection.
[COURT]: Thank you.
[¶8] The court instructed the jury:
It is an affirmative defense to the crime of Assault in the
First Degree . . . that the defendant used deadly
physical force upon [the victim]:
1. 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 by the other person,
2. He used a degree of force which he reasonably believed to
be necessary for that purpose, and
3. He reasonably believed a lesser degree of force was
4. Had reasonable grounds to believe, and did believe that he
or another person was in imminent danger of being killed or
of receiving great bodily injury.
[¶9] Further, the elemental instruction for
first degree assault referenced the " deadly physical
force" instruction by saying, " without the
affirmative defense [specified] in instruction number
29." The jury was not instructed on ...