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People v. Ramirez

Court of Appeals of Colorado, Third Division

February 7, 2019

The People of the State of Colorado, Plaintiff-Appellee,
v.
Joe Anthony Ramirez, Defendant-Appellant.

          Weld County District Court Nos. 13CR875, 13CR890, 13CR1222, 13CR1681 Honorable Timothy G. Kerns, Judge

          Philip J. Weiser, Attorney General, Majid Yazdi, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Megan A. Ring, Colorado State Public Defender, Dayna Vise, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          TERRY JUDGE

          ¶ 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 No. 18SC281, Dec. 3, 2018) (unpublished order).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.

         I. The Erroneous Instruction

         ¶ 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 assault?
[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 inadequate, and
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.

(Emphasis added.)

         ¶ 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 ...


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