v. Ramirez, 2019 COA 16

Background

Joe Anthony Ramirez was convicted after a consolidated trial of multiple offenses, including first degree assault (with a deadly weapon) and other crimes; aggregate sentence totaled 88 years.
The trial court instructed the jury on an affirmative self-defense theory that referenced "deadly physical force," but did not define that term; the alleged victim did not die.
Statute and precedent treat "deadly physical force" as force that produces death; pattern instructions limit deadly-force instructions to cases involving death.
At the instruction conference the trial court asked counsel if they objected; defense counsel said, “I believe this to be a correct statement of the law, so I don’t have any objection.”
On remand from the Colorado Supreme Court (to reconsider in light of People v. Rediger), the court of appeals re-evaluated whether defense counsel’s acceptance was a waiver or a forfeiture and whether the erroneous instruction warranted reversal for plain error.
The division reversed the first degree assault conviction and remanded for retrial on that charge only; all other convictions were affirmed. One judge dissented, arguing the record shows a knowing, intentional waiver.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether giving a "deadly physical force" self-defense instruction was legally proper	Court erred by instructing on deadly force where victim did not die, producing an incorrect elemental instruction	Instruction was inappropriate because deadly force requires death; omission of non-deadly-force definition prejudiced defense	Instruction was erroneous — deadly-force instruction should not have been given absent death, and it misstated elements for assault charges
Whether defense counsel waived the objection or merely forfeited it	People implicitly argued defense counsel affirmatively accepted instruction, constituting waiver	Ramirez argued, per Rediger, that counsel’s brief acceptance showed neglect (forfeiture), not intentional relinquishment	Court held counsel’s acceptance amounted to forfeiture (neglect), not waiver, because record shows no indication counsel recognized the error
Standard of appellate review and application (plain error)	If forfeited, review for plain error; People contended no prejudice or not plain error	Ramirez argued the error was obvious and prejudicial because it raised the standard for disproving self-defense	Court applied plain-error review, found the error obvious and prejudicial, reversed first degree assault conviction and remanded for retrial on that count
Effect of remand on remaining convictions	People argued remand affects only the assault conviction tied to the instruction	Ramirez sought relief limited to the instruction-related conviction	Court affirmed all other convictions, incorporating prior opinion as to other issues; only first degree assault reversed and remanded

Key Cases Cited

People v. Ferguson, 43 P.3d 705 (Colo. App. 2001) (deadly-physical-force instruction inappropriate where force did not cause death)
People v. Vasquez, 148 P.3d 326 (Colo. App. 2006) (restricting jury to deadly-force conditions can unfairly raise the prosecution’s burden to disprove self-defense)
People v. Stewart, 55 P.3d 107 (Colo. 2002) (nontactical instructional omissions are reviewable for plain error)
United States v. Carrasco-Salazar, 494 F.3d 1270 (10th Cir. 2007) (distinguishing waiver—intentional relinquishment—from forfeiture by neglect)
United States v. Zubia-Torres, 550 F.3d 1202 (10th Cir. 2008) (context for when silence or generic acquiescence does not establish waiver)
United States v. Mechanik, 475 U.S. 66 (U.S. 1986) (recognizing social costs of reversing convictions and the interest in finality)