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People v. Galvan

Court of Appeals of Colorado, First Division

May 9, 2019

The People of the State of Colorado, Plaintiff-Appellee,
v.
Jose Luis Galvan, Sr., Defendant-Appellant.

          Weld County District Court No. 15CR554 Honorable Marcelo A. Kopcow, Judge.

          Philip J. Weiser, Attorney General, Melissa D. Allen, Senior Assistant Attorney General, Colleen Wort, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff-Appellee

          Megan A. Ring, Colorado State Public Defender, Meredith E. Osborne, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          BERGER JUDGE.

         ¶ 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.

         I. 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 temporarily stopped.

         ¶ 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 kind.

         ¶ 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 house.

         ¶ 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 fought.

         ¶ 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.

         II. The 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.

         A. Additional Relevant Facts

         ¶ 14 As to self-defense, the trial court instructed the jury as follows:

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 person, and
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.

         B. The Trial Court Did Not Err in Instructing the Jury on Provocation

         1. Judicial Estoppel

         ¶ 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 that argument.

         ¶ 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 ...

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