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
1 This case has been remanded from the supreme court.
People v. Ramirez, (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3, 2018) (unpublished order).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, 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 years.
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 court's remand.
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
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]:
l. 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