County District Court No. 15CR554 Honorable Marcelo A.
J. Weiser, Attorney General, Melissa D. Allen, Senior
Assistant Attorney General, Colleen Wort, Assistant Attorney
General Fellow, Denver, Colorado, for Plaintiff-Appellee
A. Ring, Colorado State Public Defender, Meredith E. Osborne,
Deputy State Public Defender, Denver, Colorado, for
1 A jury convicted Jose Luis Galvan, Sr., of second degree
assault. Galvan appeals, contending that the trial court
erred in (1) instructing the jury on the provocation
exception to self-defense; (2) not giving a self-defense
instruction for each alleged victim; (3) failing to give a
separate no duty to retreat instruction; and (4) permitting
the prosecutor to suggest to the jury during voir dire that
the alleged victims had rights to a fair trial that were
equal to that of Galvan's. Because no reversible error
infected the judgment, we affirm.
Relevant Facts and Procedural History
2 One night, Galvan and his sister took a "party
bus" from Greeley to Denver. There were numerous other
people on the bus, including S.M. and her sister, C.M. (the
alleged victims). Everyone in the group was drinking heavily,
with the exception of Galvan's sister.
3 While in Denver, the group visited three or four bars and
continued to drink heavily. By the time the group returned to
the bus to head back to Greeley, everyone was highly
intoxicated (except Galvan's sister). On the way back to
Greeley, Galvan and S.M. began to argue - though the reason
the argument began was disputed.
4 S.M. testified that she saw Galvan throwing pieces of food
at another partygoer who was asleep on the bus. S.M. told
Galvan to stop, but he persisted. S.M. then told Galvan to
"knock the fuck off," to which he responded,
"What are you going to do about it bitch?" The two
continued shouting at each other, and Galvan stood up and
again said, "What the fuck are you going to do about it
bitch?" He then took a step toward S.M., and both she
and C.M. stood up in response. At that point, the bus driver
intervened and told the group that if they did not stop
arguing, they would be walking home to Greeley. They
5 Galvan's sister's testimony painted a very
different version of these initial events. Galvan's
sister testified that throughout the evening, C.M. had been
making sexual comments to her, making her uncomfortable. At
one of the bars in Denver, C.M. asked the sister to dance.
When the sister said no, C.M. told her she needed a
"shot" to loosen up and relax a little bit. The
sister declined the drink. When C.M. asked the sister to
dance again sometime later, the sister agreed. But, while on
the dance floor, C.M. touched the sister and made her
uncomfortable. The sister told Galvan that she wanted to
leave. She and Galvan called some friends to see if anyone
was in Denver who could give them a ride back to Greeley. No
one answered. So, when the group boarded the bus to head back
to Greeley, Galvan and his sister were on the bus.
6 Again, according to the sister, C.M. sat next to her and
continued to make sexual comments to her. At one point, C.M.
touched the sister's breast. Galvan slapped C.M.'s
hand away and pushed her to the side. According to the
sister, that is when the situation escalated. C.M. and S.M.
started yelling at Galvan and telling him that his sister
could make her own decisions. At that point, Galvan stood up
and began yelling at S.M. and C.M. S.M. and C.M. responded in
7 Sometime later, Galvan's sister noticed a different
partygoer throwing pieces of food at the sleeping partygoer.
When one piece of food landed on Galvan, he flicked it off
himself, and it landed on the sleeping woman. S.M. and C.M.
saw the food hit the sleeping woman and reinitiated the
argument. C.M. then grabbed Galvan by the shirt and said,
"Listen, I'm not scared of you. We can fight if you
want. You know, I'll fight with you. I don't
care." At that point, the bus driver intervened, and the
fighting again stopped temporarily.
8 After returning to Greeley, the group exited the bus, but
the altercation among Galvan, S.M., and C.M. continued. S.M.
testified that they continued shouting at each other, and
Galvan shouted at S.M. and C.M. that they "were going to
get it" and should "watch [their] backs." S.M.
and C.M. started walking down the street to their aunt's
9 According to S.M., as they walked, Galvan drove slowly by
them shouting "[i]f any of you want this, well, come and
get it." Then, Galvan stopped his truck, got out, and
started running toward C.M. with his fist cocked, as if ready
to punch. Galvan then punched C.M. in her face, breaking her
nose and causing her to fall. During her fall, C.M. broke her
ankle. S.M. then went after Galvan and the two physically
10 Galvan's sister testified differently. As she and
Galvan drove away from the bus, she heard something hit the
truck. She believed that C.M. had hit the truck with a
bottle, so Galvan stopped the truck, and the sister got out
to see if there was any damage. While she was checking the
truck, S.M. and C.M. came up behind her and S.M. shoved her.
The sister saw C.M. over her shoulder and then saw a fist.
The next thing she knew, C.M. was on the ground, bleeding
from her face. Then S.M. and Galvan fought. Finally, Galvan
and his sister left the scene.
11 After a police investigation, Galvan was charged with
second degree assault against C.M.; and menacing, criminal
attempt to commit assault in the second degree, and assault
in the third degree against S.M. The jury acquitted Galvan of
all charges against S.M., but convicted him of second degree
assault against C.M.
Court Did Not Err in Instructing the Jury on Self-Defense or
the Duty to Retreat
12 At Galvan's request, the trial court instructed the
jury on the affirmative defense of self-defense using the
Colorado Model Criminal Jury Instructions. COLJI-Crim. H:11
(2018). But the court, over Galvan's objection, also
instructed the jury on the provocation exception to
self-defense. Galvan claims this was error because there was
no evidence that supported the provocation exception.
13 Galvan also raises two additional contentions of error
regarding the self-defense instruction and the related
concept of retreat. First, he argues that the self-defense
instruction was defective because it did not distinguish
between the two alleged victims. Second, he contends that the
court improperly rejected his tendered "no retreat"
instruction. We address each of these contentions in turn.
Additional Relevant Facts
14 As to self-defense, the trial court instructed the jury as
The evidence presented in this case has raised the
affirmative defense of "defense of person," as a
defense to Assault In The Second Degree, Criminal Attempt to
Commit Assault In The Second Degree, Menacing, and Assault In
The Third Degree.
The defendant was legally authorized to use physical force
upon another person without first retreating if:
1. he used that physical force 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 that other
2. he used a degree of force which he reasonably believed to
be necessary for that purpose, and
3. he did not, with intent to cause bodily injury or death to
another person, provoke the use of unlawful physical force by
that other person.
The prosecution has the burden to prove, beyond a reasonable
doubt, that the defendant's conduct was not legally
authorized by this defense. In order to meet this burden of
proof, the prosecution must disprove, beyond a reasonable
doubt, at least one of the above numbered conditions.
. . . .
15 At the jury instruction conference, Galvan objected to
giving the instruction as written, arguing that there was no
evidence of provocation by him. As to C.M., the prosecutor
agreed that there was no evidence of provocation. The trial
court disagreed, stating that it believed there was some
evidence of provocation as to both alleged victims. Thus, the
trial court instructed the jury on provocation.
16 Galvan also tendered a separate "no duty to
retreat" instruction and argued that it was necessary
because otherwise the jury might conclude, contrary to
established Colorado law, that Galvan had a duty to retreat.
The prosecution objected to a separate no duty to retreat
instruction, arguing, successfully, that the substance of the
no duty to retreat instruction was already encompassed in the
model self-defense instruction.
Trial Court Did Not Err in Instructing the Jury on
17 Initially, Galvan argues that the Attorney General cannot
argue on appeal that there was any evidence to support the
provocation instruction because, at trial, the prosecutor
agreed with Galvan that there was no evidence of provocation
as to C.M.
18 We take this to be an argument that the Attorney General
is judicially estopped from arguing on appeal that there was
sufficient evidence to support the provocation instruction.
Applying the established law of judicial estoppel, we reject
19 Judicial estoppel is a doctrine that "prevents a
party from taking inconsistent positions in related court
proceedings with intent to mislead the court."
Janicek v. Obsideo, LLC, 271 P.3d 1133, 1140
(Colo.App. 2011). The elements of judicial estoppel are
1. The two positions must be taken by the same party (or
parties in privity with each other);
2. the positions must be taken in the same or related
proceedings involving ...