2025 CO 41
Colo.2025Background
- Gallegos and three others went to purchase vaping products; at the scene a struggle occurred and a co-defendant (Mitchell) fatally shot the seller, L.C.
- Gallegos admitted driving the group but denied planning a robbery, knowing about a gun, or committing the killing.
- Prosecutors charged Gallegos with felony murder (predicated on aggravated robbery, attempted robbery, and conspiracy) and related offenses; he was convicted at trial.
- Gallegos requested a jury instruction for the statutory affirmative defense to felony murder (§ 18-3-102(2) (2018)); the trial court denied it as inconsistent with his total denial defense.
- A division of the Colorado Court of Appeals reversed the felony-murder conviction, holding a defendant may both deny the predicate felony and assert the felony-murder affirmative defense; the People sought certiorari.
- The Colorado Supreme Court granted review and affirmed the court of appeals: a defendant need not admit the predicate felony to raise the statutory affirmative defense to felony murder.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a defendant must admit the predicate felony to invoke the statutory affirmative defense to felony murder | The statute presupposes commission of a qualifying felony; permitting denial plus the defense is incompatible with the language and with the general nature of affirmative defenses | The statutory conditions (participation, denials, disengagement) do not require admission of commission; a defendant may present inconsistent or alternative theories and needs only "some credible evidence" for the defense | The court held defendants need not admit the predicate felony to raise the felony-murder affirmative defense; affirming the court of appeals |
| Whether the trial-court instruction error (if any) was harmless (argument raised in reply brief) | People argued any error was harmless | Gallegos contended the instruction should have been given | The Court declined to consider the harmless-error argument raised for the first time in the reply brief |
Key Cases Cited
- People v. Gallegos, 535 P.3d 108 (Colo. App. 2023) (COA held a defendant may deny predicate felony and still request the felony-murder affirmative-defense instruction)
- Galvan v. People, 476 P.3d 746 (Colo. 2020) (affirmative defense requires only "some credible evidence"; i.e., a scintilla)
- People v. Huckleberry, 768 P.2d 1235 (Colo. 1989) (describes difference between traverses and affirmative defenses and the admission concept applicable to some defenses)
- Pearson v. People, 502 P.3d 1003 (Colo. 2022) (discusses affirmative defenses generally and their distinction from traverses)
- People v. Speer, 255 P.3d 1115 (Colo. 2011) (statutory interpretation of affirmative defenses reviewed de novo)
- People v. Hendrickson, 45 P.3d 786 (Colo. App. 2001) (entrapment defense analysis requiring commission language in the statute)
- Mathews v. United States, 485 U.S. 58 (U.S. 1988) (courts should not impose a consistency requirement that bars inconsistent affirmative defenses)
- Stevenson v. United States, 162 U.S. 313 (U.S. 1896) (longstanding practice permitting alternative or inconsistent defenses presented to the jury)