SUMMARY

June 10, 2021

2021COA80

No. 17CA1910, People v. Garcia — Criminal Law — Jury 

Instructions — Universal Malice; Crimes — Murder in the First 

Degree — Extreme Indifference 

Addressing a novel issue, a division of the court of appeals 

concludes that a trial court is not required to give a jury instruction 

defining “universal malice” in a trial dealing with extreme indifference 

murder. Because the division also rejects the defendant’s other 

challenges to his convictions, the division affirms the judgment.

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
COLORADO COURT OF APPEALS 2021COA80

Court of Appeals No. 17CA1910

Adams County District Court No. 16CR2539

Honorable Donald S. Quick, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Cristobal Fernando Garcia,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV

Opinion by JUDGE NAVARRO

Hawthorne*, J., concurs

Terry, J., specially concurs

Announced June 10, 2021

Philip J. Weiser, Attorney General, Erin K. Grundy, Senior Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Britta Kruse, Deputy State 

Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. 

VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
1

¶ 1 Defendant, Cristobal Fernando Garcia, appeals the judgment 

of conviction entered on jury verdicts finding him guilty of

attempted extreme indifference murder and reckless endangerment. 

Addressing a novel issue, we conclude that a trial court is not 

required to give a jury instruction defining “universal malice” in a 

trial dealing with extreme indifference murder. We also conclude 

that (1) the trial court’s descriptions of reasonable doubt, 

considered as a whole, did not lower the prosecution’s burden of 

proof; and (2) the prosecutor did not commit reversible misconduct. 

Therefore, we affirm. 

I. Factual and Procedural History

¶ 2 One night, Natalie Duran asked her sister for help searching

for Garcia, Duran’s live-in boyfriend with whom she has children. 

The sisters searched bars and clubs before spotting Garcia driving a 

car that Duran owned. Duran followed him until he stopped. 

¶ 3 Duran got out of the car she was driving, walked up to Garcia, 

and argued with him. As Duran started walking back toward her 

sister, she told Garcia that she had reported her car stolen. Garcia 

yelled back, “what”; aimed a handgun either at or above Duran and 
2

her sister; and fired three times before running away. None of the 

bullets hit the women. 

¶ 4 The prosecution charged Garcia with three counts of 

attempted first degree murder — one count on a theory of intent 

after deliberation (regarding Duran) and two counts on a theory of 

extreme indifference (regarding Duran and her sister). Each act 

was charged as a crime of violence, and the complaint and 

information was captioned “domestic violence.” 

¶ 5 The case was tried to a jury. As to each count, the jury was 

instructed on the lesser included offense of reckless endangerment. 

The jury convicted Garcia of one count of attempted extreme 

indifference murder (regarding Duran) and found that he had used, 

possessed, or threatened to use a deadly weapon when committing

that offense. For the other two counts, the jury acquitted Garcia of 

attempted murder but convicted him of reckless endangerment. 

(His conviction for reckless endangerment as to Duran was later 

merged into his conviction for attempted extreme indifference 

murder.)
3

II. “Universal Malice” Instruction

¶ 6 We first reject Garcia’s contention that the trial court erred by 

declining to give a jury instruction defining “universal malice.”

A. Additional Facts

¶ 7 In addition to giving an instruction on criminal attempt, the 

court instructed the jury on the elements of extreme indifference 

murder as follows: 

1. That Cristobal Garcia

2. in the State of Colorado, at or about the 

date and place charged,

3. under circumstances evidencing an attitude 

of universal malice manifesting extreme 

indifference to the value of human life 

generally,

4. knowingly,

5. engaged in conduct which created a grave 

risk of death to, [sic] persons other than 

himself and thereby,

6. knowingly caused the death of Natalie 

Duran. 

This instruction tracked the applicable statute. See 

§ 18-3-102(1)(d), C.R.S. 2020.
4

¶ 8 Defense counsel tendered an additional instruction, which

read, “‘Universal Malice’ is that depravity of the human heart which 

determines to take life upon slight or insufficient provocation, 

without knowing or caring who may be the victim.” The court 

decided against giving this proposed instruction, ruling that the 

elemental instruction “is a sufficient explanation as to what extreme 

indifference means.” 

B. Standard of Review and General Principles

¶ 9 We review de novo whether the jury instructions adequately 

informed the jury of the governing law, Riley v. People, 266 P.3d 

1089, 1092 (Colo. 2011), but a trial court has substantial discretion 

to formulate instructions if they are correct statements of the law 

and adequately cover the issues presented, People v. Payne, 2019 

COA 167, ¶ 16. Therefore, we review for an abuse of discretion a 

trial court’s decision to give, or not to give, a particular jury 

instruction. Id. A trial court does not abuse its discretion unless 

its decision was manifestly arbitrary, unreasonable, or unfair, or

was based on an erroneous understanding of the law. People v. 

Esparza-Treto, 282 P.3d 471, 480 (Colo. App. 2011). 
5

¶ 10 Instructions that accurately track the language of the

applicable statute are generally sufficient. People v. Gallegos, 260 

P.3d 15, 26 (Colo. App. 2010). Ordinarily, words and phrases in a 

statute should be “read in context and construed according to the 

rules of grammar and common usage.” § 2-4-101, C.R.S. 2020. 

Words and phrases “that have acquired a technical or particular 

meaning, whether by legislative definition or otherwise,” must be 

defined for the jury accordingly. Id.; Griego v. People, 19 P.3d 1, 7 

(Colo. 2001). Conversely, a definitional instruction is not required 

for a term or phrase familiar to a reasonable person of common 

intelligence, especially when the term’s meaning is not so technical 

or mysterious as to create confusion in jurors’ minds. Payne, ¶ 18. 

“When a jury indicates no confusion about the meaning of a 

statutory term, the trial court’s failure to issue such a definition 

does not require a new trial.” Id.
6

C. The Meaning of “Universal Malice”

¶ 11 Colorado statutes do not define “universal malice.” Nor is the 

phrase defined in the Model Jury Instructions.1 So we consult case 

law to discover its meaning.

¶ 12 Long ago, our supreme court addressed the concept of 

universal malice in Longinotti v. People, 46 Colo. 173, 102 P. 165 

(1909). At the time, a Colorado statute described one form of first 

degree murder as murder “perpetrated by any act greatly dangerous 

to the lives of others, and indicating a depraved mind regardless of 

human life.” Id. at 176, 102 P. at 166 (quoting R.S. 1908, § 1624). 

The court reasoned that, although every fatal act is greatly 

dangerous to the life of the person killed, the legislature classified a 

killing act “indicating a depraved mind regardless of human life” as 

first degree murder “not because [the killer] has atrociously 

murdered a particular individual, but because his act has evinced 

universal malice, a malice against mankind in general.” Id. The 

 

1 The Model Jury Instructions were amended in 2014 to remove any 

definition of “universal malice.” Compare COLJI-Crim. F(265)

(2008) (defining universal malice), with COLJI-Crim. F (2014)

(containing no such definition), and COLJI-Crim. F (2020)

(containing no such definition). 
7

court approved the following explanation: “By ‘universal malice,’ we 

do not mean a malicious purpose to take the life of all persons. It is 

that depravity of the human heart, which determines to take life 

upon slight or insufficient provocation, without knowing or caring 

who may be the victim.” Id. at 181, 102 P. at 168 (citation omitted). 

We call this “the Longinotti definition.”

¶ 13 Decades later, in People v. Jefferson, 748 P.2d 1223 (Colo. 

1988), the supreme court first considered a first degree murder 

statute that explicitly mentioned “universal malice.” The statute 

read then as it does now: extreme indifference murder occurred 

“[u]nder circumstances evidencing an attitude of universal malice 

manifesting extreme indifference to the value of human life 

generally.” Id. at 1230 (citing § 18-3-102(1)(d), C.R.S. 1982). When 

discussing “universal malice,” the court used the Longinotti

definition but also substituted other descriptions. For instance, the 

court referred to “those acts greatly dangerous to the lives of 

persons other than the one killed, revealing a depraved mind,” a 

“notion of cold-bloodedness,” and a case where “the circumstances 

of [the killer’s] actions evidence that aggravated recklessness or 

cold-bloodedness which has come to be known as ‘universal 
8

malice.’” Id. at 1228, 1231, 1232. Indeed, the court explained that 

“[f]rom the earliest statutory formulation which proscribed 

‘depraved heart murder’ through the narrowing construction of 

Longinotti, and ultimately to the most recent formulation codified in 

the statute under review, the defining characteristic of the 

continuum has remained the same: ‘aggravated recklessness.’” Id.

at 1231.

¶ 14 Since Jefferson, the supreme court has continued to use 

various descriptions of universal malice in the context of extreme 

indifference murder. See, e.g., Montoya v. People, 2017 CO 40, ¶ 15 

(“[E]xtreme indifference murder had become distinguishable from 

second degree murder only in the sense that the actual killing act 

had to be one objectively demonstrating a willingness to take life 

indiscriminately.”); Candelaria v. People, 148 P.3d 178, 181 (Colo. 

2006) (recognizing that extreme indifference murder includes 

“conduct that, by its very nature and the circumstances of its 

commission, evidences a willingness to take human life 

indiscriminately, without knowing or caring who the victim may be 

or without having an understandable motive or provocation”). The 

court has also clarified that, when in Jefferson it had “distinguished 
9

the killing conduct necessary for extreme indifference murder as a 

type not directed against a particular person,” the court “did not 

mean to suggest that one could not intentionally kill a particular 

individual in a manner demonstrating a willingness to take human 

life indiscriminately, or that doing so would not fall within” section 

18-3-102(1)(d). Candelaria, 148 P.3d at 182.

¶ 15 Synthesizing this history, our supreme court has recently 

explained again that “the requirement that the killing conduct be 

engaged in under circumstances evidencing an attitude of universal 

malice manifesting extreme indifference to the value of human life 

generally” “describe[s] a killing act objectively demonstrating a 

willingness to take life indiscriminately.” People v. Anderson, 2019 

CO 34, ¶ 15 (emphasis added).2

 

2 In fact, the phrase “a willingness to take life indiscriminately” 

effectively captures the Longinotti definition, being “that depravity of 

the human heart, which determines to take life upon slight or 

insufficient provocation, without knowing or caring who may be the 

victim.” Longinotti v. People, 46 Colo. 173, 181, 102 P. 165, 168

(1909). Killing “indiscriminately” is the functional equivalent of 

killing “without knowing or caring who may be the victim.” And 

because there is no degree of provocation that justifies the 

indiscriminate taking of human life, indiscriminate killing is by 

definition without sufficient provocation. Cf. People v. Lara, 224 

P.3d 388, 395 (Colo. App. 2009) (“A person does not act ‘under 

circumstances evidencing an attitude of universal malice 
10

D. The Trial Court’s Instructions Were Adequate

¶ 16 Garcia’s tendered definition of “universal malice” mostly 

conformed to the Longinotti definition. As illustrated, however, the 

Longinotti definition is neither the exclusive nor the most recent 

formulation of universal malice. Rather, our supreme court has 

refined the concept to mean a willingness to take life 

indiscriminately. See id. In other words, circumstances 

“evidencing universal malice manifesting extreme indifference to the 

value of human life generally” are those “evidencing a willingness to 

take life indiscriminately.” Montoya, ¶ 21. The question, therefore, 

is whether the trial court’s instructions adequately conveyed that 

concept. If so, no additional definition was necessary. See Payne, 

¶ 18; see also People v. Phillips, 91 P.3d 476, 484 (Colo. App. 2004) 

(“[N]o additional instruction is required when the original 

instructions adequately inform the jury.”). We conclude that the 

court’s instructions, which followed the statutory language, were 

adequate.

 

manifesting extreme indifference to the value of human life 

generally’ if he or she acts in reasonable defense of others.”), 

overruled in part by People v. Pickering, 276 P.3d 553 (Colo. 2011).
11

¶ 17 We presume that the jury applies the common meaning or 

meanings of terms. People v. Sims, 2020 COA 78, ¶ 19. And we 

may consult a recognized dictionary to determine how a reasonable 

juror would construe a term’s meaning. Id.; see Cowen v. People, 

2018 CO 96, ¶ 14.

¶ 18 In the ordinary sense, “universal malice” connotes an 

unrestricted willingness to do harm without sufficient justification. 

This follows because “universal” means “including or covering all or 

a whole collectively or distributively without limit or notable 

exception or variation” or “relatively unrestricted in application,”

while “malice” means an “intention or desire to harm another 

[usually] seriously through doing something unlawful or otherwise 

unjustified.” Webster’s Third New International Dictionary 1367, 

2501 (2002). In addition, the statute modifies “universal malice” 

with the phrase “manifesting extreme indifference to the value of 

human life generally.” § 18-3-102(1)(d). That phrase connotes a 

heightened awareness and disregard of a fatal risk as well as a total 

lack of concern or caring about human life. See People v. Marcy, 

628 P.2d 69, 79 (Colo. 1981), superseded by statute as recognized 

in Jefferson, 748 P.2d at 1230; Esparza-Treto, 282 P.3d at 480. 
12

And the phrase conveys this meaning in ordinary terms that do not 

require a definitional instruction. See Esparza-Treto, 282 P.3d at 

480. Hence, the statutory language makes clear that the actor’s 

unrestricted and unjustified willingness to harm others includes the 

potential to cause death. See also § 18-3-102(1)(d) (extreme 

indifference murder occurs when the defendant knowingly causes 

death under the circumstances described in the statute); Montoya, 

¶ 16. This common understanding of the statutory language —

reflected in the instructions here — conveys the concept of “a

willingness to take life indiscriminately.” Anderson, ¶ 15. 

¶ 19 Because the instructions were accurate and adequate, and 

because the jury expressed no confusion about their meaning, we 

conclude that the trial court did not abuse its discretion by

declining to further instruct the jury on universal malice. See

Esparza-Treto, 282 P.3d at 480.3 

 

3 In so concluding, we necessarily disagree with Garcia’s suggestion 

that an additional instruction on universal malice was necessary 

given the particular fact pattern here. Finally, to the extent Garcia 

argues that his tendered instruction encompassed his theory of the 

defense and thus the trial court was obligated to give it, we do not 

consider this argument because he raised it for the first time in his 

reply brief. See People v. Dubois, 216 P.3d 27, 28 (Colo. App. 

2007), aff’d, 211 P.3d 41 (Colo. 2009). 
13

III. The Trial Court’s Reasonable Doubt Explanations

¶ 20 Next, we conclude that the trial court’s explanations of 

reasonable doubt do not require a new trial. 

A. Additional Facts

¶ 21 During voir dire of prospective jurors, the trial court gave a

definition of reasonable doubt that tracked the model instruction. 

See COLJI-Crim. E:03 (2020). The court then had the following 

exchange with a prospective juror: 

THE COURT: Did you drive to the courthouse 

today? 

PROSPECTIVE JUROR: I did.

THE COURT: Did you come to a red light?

PROSPECTIVE JUROR: Probably, yes.

THE COURT: Okay. And when the light 

turned green, did you proceed through the 

intersection?

PROSPECTIVE JUROR: Yes.

THE COURT: Did you get in the middle and 

hesitate?

PROSPECTIVE JUROR: No.

THE COURT: So you had enough information 

that you wouldn’t hesitate in the intersection, 

you would proceed?
14

PROSPECTIVE JUROR: Right.

THE COURT: So does that make sense, folks? 

That would be an example of proof beyond a 

reasonable doubt; you don’t hesitate. 

¶ 22 During the court’s ensuing questioning of a different

prospective juror, the juror confirmed that he had driven on a 

highway to the courthouse and the highway had not been crowded. 

The court asked, “But usually when you get on a highway, do you 

have to hesitate because you don’t know where the gap is for you to 

get on and you have to figure that out?” The prospective juror said, 

“That’s what the sign is for.” The court responded:

Some situations, you hesitate when it’s a 

matter of importance; and some situations, 

you have enough information and you make a 

call; and that’s totally up to each of you. But 

you have the obligation, when you go back into 

the jury room, to talk about the case. My 

guess is, all 12 would not agree on every case 

to begin with. 

So it’s your obligation to apply your view of the 

evidence; but also, it’s your obligation to work 

with the other jurors to determine what they 

observed of the evidence. Is that something 

you think you could do, sir?

The prospective juror answered, “Yes.” 

¶ 23 Neither party objected to any of the above.
15

¶ 24 At the close of evidence, the court again gave oral and written 

instructions consistent with the model jury instruction. See COLJICrim. E:03. The instructions explained, in part, that reasonable 

doubt “is a doubt which is not a vague, speculative or imaginary 

doubt, but such a doubt as would cause reasonable people to

hesitate to act in matters of importance to themselves.” 

B. Analysis

¶ 25 As noted, we review de novo whether jury instructions 

accurately informed the jury of the law. Johnson v. People, 2019 

CO 17, ¶ 8. “An instruction that lowers the prosecution’s burden of 

proof below reasonable doubt constitutes structural error and 

requires automatic reversal.” Id. 

¶ 26 When assessing whether a trial court improperly instructed on 

reasonable doubt, we ask whether there is a reasonable likelihood 

the jury applied the instructions in an unconstitutional manner. 

Id. at ¶ 14. To answer that question, we do not consider an

instruction in isolation; rather, we view it in the context of the 

record as a whole and consider the illustration’s nature, scope, and 

timing. Id. at ¶¶ 14, 18; People v. Tibbels, 2019 COA 175, ¶ 32 

(cert. granted June 29, 2020). If, given the context of the entire 
16

record, “the trial court properly instructed the jury on the law —

even with ‘objectionable language . . . [in] the trial court’s 

elaboration of the reasonable doubt instruction’ — then there is no 

violation of due process.” Johnson, ¶ 14 (quoting People v. 

Sherman, 45 P.3d 774, 779 (Colo. App. 2001)); People v. Avila, 2019 

COA 145, ¶ 45. With these principles in mind, we conclude that 

the trial court’s elaboration of reasonable doubt in voir dire here —

while ill-advised — did not lower the prosecution’s burden of proof 

when viewed in light of the entire record. 

¶ 27 The United States Supreme Court, the Colorado Supreme 

Court, and many divisions of this court have cautioned that 

“further attempts by courts or parties to define ‘reasonable doubt’” 

beyond the standard instruction “do not provide clarity.” Johnson, 

¶ 13 (citing Holland v. United States, 348 U.S. 121, 140 (1954)); 

Tibbels, app. (collecting cases). Even so, appellate courts have

concluded that the extraneous reasonable doubt analogies given in 

various cases did not lower the prosecution’s burden of proof. See 

Johnson, ¶ 18; Tibbels, ¶¶ 35-40; Avila, ¶¶ 46-48; People v. Flynn, 

2019 COA 105, ¶ 49. But see People v. Knobee, 2020 COA 7, ¶ 49 

(cert. granted June 29, 2020). 
17

¶ 28 Assuming without deciding that the trial court’s comments in 

voir dire here amounted to a jury instruction, we reach the same 

conclusion. As in those cases where appellate courts have affirmed

a conviction despite a problematic reasonable doubt analogy, “the 

trial court provided the instruction to the jury verbally and only 

once.” Johnson, ¶ 18; see Tibbels, ¶ 37; Avila, ¶ 47; Flynn, ¶ 49. “It 

was not mentioned or referenced again throughout the entirety of 

the proceedings, including closing arguments.” Johnson, ¶ 18. 

“The court read the correct definitions of reasonable doubt and the 

burden of proof immediately preceding the improper verbal 

instruction.” Id.; see Avila, ¶ 47; Flynn, ¶ 49. “Additionally, the 

court correctly instructed the jury numerous times regarding the 

presumption of innocence, reasonable doubt, and the burden of 

proof.” Johnson, ¶ 18; see Tibbels, ¶ 39; Avila, ¶ 47.

¶ 29 Also, this case is distinguishable from Knobee, where the 

division reversed on this issue. The trial court in that case said 

during a colloquy with a prospective juror, “I don’t know how best 

to explain [reasonable doubt]. It is a standard that we use a lot of 

times, beyond a reasonable doubt, when we do important things in 

our lives, like buying a home, or choosing doctors, or whatever.” 
18

Knobee, ¶ 31. The court then asked the juror, “Can you hold the 

People to that burden and not let them by on anything less, and not 

require them to prove anything more?” Id. The juror answered in 

the affirmative. Id.

¶ 30 The division concluded that the trial court’s statements

trivialized reasonable doubt and required reversal due to a 

combination of four reasons — at least two of which are absent 

here. See id. at ¶ 34. First, the judge’s commentary in Knobee was 

“part of a lengthy, highly emphasized, Socratic colloquy with 

individual prospective jurors,” different from the isolated comment 

in Johnson. Id. at ¶ 41. Here, however, the trial court’s traffic-light 

comment was fleeting and not highly emphasized. Second, the trial 

court in Knobee extracted a commitment from a prospective juror to 

apply the notion of reasonable doubt as the court had described, 

and that juror was ultimately empaneled. See id. at ¶¶ 45-46. The

trial court here extracted no commitment from a juror to apply the 

reasonable doubt standard as described in the court’s traffic-light 
19

analogy, and the prospective juror who took part in that analogy 

was not empaneled.4 

¶ 31 Considering all this, we do not discern a reasonable likelihood 

that the jurors applied the trial court’s isolated analogy in a manner 

that reduced the prosecution’s burden of proof.

IV. Prosecutorial Misconduct

¶ 32 Garcia argues that the prosecutor committed misconduct by 

(1) referencing domestic violence during voir dire and opening 

statement “without any basis for believing such evidence would be 

admitted”; and (2) improperly evoking sympathy for the victims. We 

discern no reversible error. 

A. Statements Regarding Domestic Violence

¶ 33 During voir dire and opening statement, the prosecutor 

mentioned that one victim, Duran, would not be testifying at trial, 

noted that she had avoided the attempts to serve her a subpoena, 

asked prospective jurors whether they understood that “there are 

 

4 The trial court’s question about entering a highway did not truly 

go anywhere. The prospective juror did not respond directly, and 

the court then made the innocuous remark that in “[s]ome 

situations, you hesitate when it’s a matter of importance; and some 

situations, you have enough information and you make a call.”
20

reasons why domestic violence victims may not want to prosecute a 

case,” and referred to her nonappearance as related to the 

“domestic violence component to this case.” Defense counsel did 

not object.

¶ 34 On appeal, Garcia says the prosecutor lacked a good faith 

basis “to inject the ‘domestic violence component’” into the trial. 

See People v. Adams, 708 P.2d 813, 815 (Colo. App. 1985) (“A 

prosecutor should not intentionally use the voir dire to present 

factual matter which the prosecutor knows will not be admissible at 

trial or to argue the prosecution’s case to the jury.”) (citation 

omitted). But considering “the context of the argument as a whole 

and in light of the evidence before the jury,” we conclude that the 

prosecutor did not commit misconduct. People v. Samson, 2012 

COA 167, ¶ 30. 

¶ 35 Given that the charges were captioned as crimes of domestic 

violence in the complaint, the trial court in its introductory remarks 

informed prospective jurors — before the prosecutor’s remarks 

challenged on appeal — that the charges were “alleged to be an act 

of domestic violence.” Both parties referenced domestic violence 

during voir dire — for example, defense counsel referred to the 
21

charges as “an attempted murder alleged to be domestic violence 

and a [sic] handgun related.” So we disagree that, at the time of the 

challenged statements, the prosecutor had no indication that 

evidence of domestic violence would be admitted at trial. 

¶ 36 In any event, evidence of domestic violence was admitted. “An 

act of ‘domestic violence’ is ‘an act or threatened act of violence’ 

against a person with whom the perpetrator has had an ‘intimate 

relationship,’ such as current married persons, persons who had a 

past marriage, persons who currently or once lived together, and 

parents of the same child.” People v. Jaso, 2014 COA 131, ¶ 12 

(quoting § 18-6-800.3, C.R.S. 2020). The evidence presented at trial 

showed that Garcia was the father of two of Duran’s children, 

Garcia and Duran lived together at the time of the charged incident, 

and he fired a gun three times in her direction during an argument 

after she said she had reported the car stolen. Together, the 

evidence permitted the inference that Garcia used or threatened 

violence against a person with whom he had an intimate 

relationship and that he did so “as a method of coercion, control, 

punishment, intimidation, or revenge.” § 18-6-800.3(1). Thus, the 

prosecutor’s reference to domestic violence was permissible and, 
22

regardless, did not constitute plain error even to the extent it 

suggested that Duran did not appear at trial due to domestic 

violence. See People v. Dominguez-Castor, 2020 COA 1, ¶¶ 85-86

(“Prosecutorial misconduct is plain error only if it is ‘flagrantly, 

glaringly, or tremendously improper.’”) (citation omitted).

B. Victim Sympathy

¶ 37 In opening statement, the prosecutor said,

At the end of the trial, you will have heard 

from [Duran’s sister]; you will have heard from 

[another eyewitness]; you will have heard from 

Detective Peterson and other law enforcement 

professionals. You will have some 

photographs for exhibits. You will see the 

shell casings from the bullets, and you will 

know that the defendant is guilty. At that 

point, [we] will ask you to hold this defendant 

accountable for what he did to see that justice 

is done in this case and to find him guilty. 

Thank you. 

Defense counsel did not object. 

¶ 38 In the prosecutor’s rebuttal closing argument, the following 

exchange occurred:

PROSECUTOR: We’ve already talked about the 

evidence that shows intent to kill and extreme 

indifference. I’m going to ask you again like I 

did in opening, now is the time to do the right 

thing in this case. 
23

DEFENSE COUNSEL: Objection, Your Honor. 

That’s burden shifting – “Doing the right 

thing,” “Now is the time to look at the evidence 

and determine that they proved it beyond a 

reasonable doubt.”

THE COURT: It’s closing argument. So the 

jury knows that the burden of proof is on the 

prosecution. Go ahead.

PROSECUTOR: See that justice is done in this 

case and find this defendant guilty. Thank 

you. 

¶ 39 On appeal, Garcia argues that the prosecutor improperly 

indicated that a guilty verdict was necessary to do justice for the 

victims. We conclude that this claim was not preserved. Defense 

counsel at trial framed the objection as “burden shifting,” not as an 

improper call for the jury to return a guilty verdict to do justice for 

the victims. Thus, we review for plain error. See Martinez v. People, 

2015 CO 16, ¶ 14 (claim is unpreserved when the defendant on 

appeal alters the grounds for objection). “An error is plain if it is 

obvious, substantial, and so undermined the fundamental fairness 

of a trial as to cast serious doubt on the reliability of the 

conviction.” Dominguez-Castor, ¶ 85. 

¶ 40 The prosecutor’s appeal to justice was so minimally prejudicial 

that reversal is not required under any standard. The prosecutor’s 
24

argument was brief and a small part of summation. See People v. 

Carter, 2015 COA 24M-2, ¶ 73 (concluding that these factors 

mitigated the prejudicial effect of improper argument). In opening

statement and in closing argument, the prosecutor asked the jury 

to “do the right thing” only after discussing the evidence. In 

context, the prosecutor asked the jury to “hold [Garcia] 

accountable” because the evidence tended to show Garcia was 

guilty, and the jury likely would have understood his statements 

accordingly. 

¶ 41 In sum, we are not persuaded that the prosecutor’s comments 

“so inflamed and impassioned” the jury “that it could not render a 

fair and impartial verdict” based on the evidence. See People v. 

Mason, 643 P.2d 745, 753 (Colo. 1982) (quoting People v. Elliston, 

181 Colo. 118, 126, 508 P.2d 379, 383 (1973)). Thus, any error 

was harmless and surely did not constitute plain error. See 

Dominguez-Castor, ¶ 86.

¶ 42 Finally, because we have assumed only one harmless instance 

of prosecutorial misconduct, there is no cumulative error upon 

which to reverse. See Townsend v. People, 252 P.3d 1108, 1112 

(Colo. 2011).
25

V. Conclusion

¶ 43 The judgment is affirmed. 

JUDGE HAWTHORNE concurs.

JUDGE TERRY specially concurs.
26

JUDGE TERRY, specially concurring.

¶ 44 I concur in the majority’s reasoning and the result reached. I 

write separately to emphasize that trial courts should not attempt 

to explain or simplify application of the reasonable doubt standard. 

¶ 45 I agree with the majority that the reasonable doubt analogies

in this case did not improperly lower the prosecution’s burden of 

proof. This is so because the situations that the trial court 

described when explaining reasonable doubt were clear to the jury

and were not a matter of uncertainty. The court emphasized 

situations where the juror had enough information to make a 

decision and did not hesitate in doing so. Thus, because there was 

no uncertainty in these analogies, the burden of proof was 

unaffected. 

¶ 46 However, although I conclude that reversal is not required, I 

emphasize that trial courts should not impart reasonable doubt 

analogies to juries. Comparing reasonable doubt to the decisions 

one makes in everyday situations, such as while driving, tends to 

make jurors think that deciding whether a defendant is guilty is a 

decision that can be made as quickly and casually as the decision 

whether to enter an intersection or merge onto a highway. Such 
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decisions are far simpler than deciding whether a defendant 

accused of a crime is guilty or not. See People v. Knobee, 2020 COA 

7, ¶ 39 (cert. granted June 29, 2020) (“Few decisions that people 

make have the gravity of deciding whether to convict an accused 

person of a crime.”). Because analogies that compare reasonable 

doubt to everyday decisions tend to oversimply the concept of 

reasonable doubt, such analogies should not be imparted to jurors 

or potential jurors. Cf. Johnson v. People, 2019 CO 17, ¶ 13

(“[A]ttempts by courts or parties to define ‘reasonable doubt’ do not 

provide clarity.”).