SUMMARY May 9 , 2019
2019COA6 8 No. 16CA1988, People v. Galvan
— Constitutional Law
— First Amendment
— Freedom of Speech
— Fighting Words; Criminal Law
— Jury Instructions
— Defenses
— Use of Non
- Deadly Physical Force (Defense of Person)
— Provocation Exception The division holds that a defendant’s taunts at the alleged victims were fighting words and, thus, were not protected by the First Amendment. Those words, therefore, could be considered in determining whether there was some evidence that the defendant provoked the victims, thereby authorizing the giving of a provocation instruction. The division also concludes that a prosecutor may not imply to a jury venire that the alleged victims have rights that are equal to, or in conflict with, the rights of the criminal defendant. 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 2019COA6 8

Court of Appeals No. 16CA1988 Weld County District Court No. 15CR554 Honorable Marcelo A. Kopcow , Judge
The People of the State of Colorado, Plaintiff

- Appell ee ,

v. Jose Luis Galvan, Sr. , Defendant

- Appell ant

.

JUDGMENT AFFIRMED
Division I Opinion by JUDGE BERGER Taubman and Tow , J J., concur Announced May 9 , 2019
Philip J. Weiser , Attorney General, Melissa D. Allen, Senior Assistant Attorney General, Colleen Wort , Assistant Attorney General Fellow , Denver, Colorado, for Plaintiff

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

- Appell ant1 ¶ 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 t o the jury during voir dire that the alleged victims had right s to a fair trial that were equal to that of Galvan ’ s. Because no reversible error infected the judgment,

we affirm.
I. Relevant Fact s 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 and2 S.M. began to argue
— though th e 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 w hich he responded, “ W hat are you going to do about it bitch?” The two continued shout ing at each other , and Galvan
stoo d up and again said , “ W hat 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 res ponse. At that point, the bus driver intervened and told the group that if they did not stop arguing , they w ould 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. W hen the sister said no, C.M. told her she needed a “shot” to lo osen up and relax a little bit. The sister declined the drink. When C.M. asked the sister to dance again sometime later,3 the sister agreed. But, while on the dance floor, C.M. touched the
sister and made her uncomfortable . The sister told Galvan that s he 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 sist er noticed a different partygoer throwing pieces of food at the sleeping partygoer

. W hen one piece of food landed on Galvan, he flicked it off him self , 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 by4 the shirt and said , “ L isten, 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 t hey continued shout ing 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., a s they walked, Galvan drove slowly by them shouting “[i] f any of you wan t 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

. D uring her fall, C.M. b roke her ankle. S.M. then went after Galvan and the two physically fought. ¶ 10 Galvan ’ s sister testified differently. A s she and Galvan drove away from the bus , she heard something hit the truck. She5 believed that C.M. had hit the truck with a bottle , so Ga lvan 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. T he next thing she knew, C.M. was on the ground, bleeding from her face. Then S.M. and Galvan fought. F inally, 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 M odel
C riminal J ury I nstructions. COLJI

- Crim. H:11 (2018). But the court, over Galvan ’ s ob jection, also instructed the jury on the provocation exception to self

- defense. Galvan claims this was error6 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

. S econd, 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 f

orce by that other person, and7 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 instruc tion 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 disagree d, 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 , that8 Galvan had a duty to retreat. The prosecution objected to a separate no duty to retreat instruction , arguing , su c cessfully , that the substance of the no duty to retreat instruction was already encompassed in the model self

- defense instruction

. B. Th e Trial Court Did Not Err in Instruct ing the Jury on Provocation 1. Judicial Estoppe l ¶ 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 prosecuto r 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. App lying 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 are9 1. T he 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 the same parties;
3. t he party taking the positions must have been successful in maintaining the first position and must have received some benefit in the first proceeding;
4. the inconsistency must be part of an intentional effort to mislead the court; and
5. the tw o positions must be totally inconsistent

— that is, the truth of one position must necessarily preclude the truth of the other. Arko v. People , 183 P.3d 555, 560 (Colo. 2008) ( ci ting Estate of Burford v. Burford , 935 P.2d 943, 948 (Colo. 1997)). ¶ 20 For two re asons , the Attorney General is not judicially estopped from defending the trial court’s decision to instruct the jury on provocation. First, there is no evidence of an intent to mislead the court (and Galvan does not argue that there was). Second, the pr osecution did not receive a benefit in the first10 proceeding based on its position

. See Arko , 183 P.3d at 560. 1 Because the judicial estoppel argument fails on two elements, we need not address the remaining elements.
2. The Standard for Giving a Provocati on Instruction ¶ 21 The first question is what quantum of proof is necessary to authorize an instruction on one of the statutory exceptions to self

defense. The supreme court has not spoken authoritatively on this question, although in a recent case it assumed , without deciding, that the quantum of proof was “some evidence.” Castillo v. People , 2018 CO 62, ¶ 37

. At least two divisions of this court have applied the same quantum of proof standard. People v. Castillo , 2014 COA

1 Nor was the prosecutor ’ s statement a judicial admission. “A judicial admission is a formal, deliberate declaration that a party or his attorney makes in a judicial proceeding for the purpose of dispensing with proof of formal matters

. . . .” People v. Curren , 228 P.3d 253, 257 (Colo. App. 2009). Here, the prosecutor was not “dispensing with proof of [a] formal matter[] , ” id. , but instead was commenting on the evidence presented at trial for the purposes of c rafting a jury instruction. Such a comment does not meet the requirements of a judicial admission. Evaluating the prosecutor ’ s statement to the trial court as a concession on the question of whether there was some evidence of provocation , we are not bou nd by th at concession

. People v. Backus , 952 P.2d 846 , 850 (Colo. App. 1998).11 140M, ¶¶ 20

- 21, rev ’ d on other grounds , 2018 CO 62; People v. Zukowski , 260 P.3d 339, 347 (Colo. App. 2010) . Because we agree with those divisions, we apply that standard here. ¶ 22 “Whether sufficient evidence exists to support the requested instruction is a question of law that we review de novo

. ” Castillo , ¶ 32. W e view the evidence in the light most favorable to the giving of the challenged instruction. People v. Silva , 987 P.2d 909, 914 (Colo. App. 1999). ¶ 23 An instruct ion on provocation is authorized when “ 1) self

defense is an issue in the case; 2) the victim makes an initial attack on the defendant; and 3) the defendant ’ s conduct or words were intended to cause the victim to make such attack and provide a pretext for injuring the victim.” Id. Thus, for a defendant to forfeit self

- defense under the provocation exception, the defendant must act with the intent to provoke the victim into attacking first. I d.
3. Whether Colorado Law Requires More T han Words to Justify Giving a Provocation Instruction Need Not Be Decided in This Case ¶ 24 Galvan argues that “mere words are not such provocation as would eliminate one ’ s right of self

- defense.” People v. Winn , 54012 P.2d 1114, 1117 (Colo. App. 1975) (not published pursuant to C.A.R. 35(f)); see also Silva , 987 P.2d at 914 (noting that “insulti ng language is not a provoking incident” (citing Bush v. People , 10 Colo. 566, 16 P. 290 (1888))). ¶ 25 No published Colorado case has expressly determined whether, under Colorado law, words alone are sufficient to support the giving of a provocation instruct ion. 2 Although Silva stated that

“ the defendant ’ s conduct or words ” could justify the giving of a provocation instruction, 987 P.2d at 914 (emphasis added) , Silva did not analyze whether words alone are sufficient to sustain a provocation instruction. A t least one state ’s highest court has determined that under its law, words alone are not enough. State v. Riley , 976 P.2d 624, 628 (Wash. 1999). We need not decide this question because , as discussed below, here both words and conduct support ed the provocation instruction.

2 W hether provocation can be prove d by words alone or whether there must always be some conduct by the defendant is a matter of Colorado law

. Federal constitutional law, however, determines whether particular words may be used to establish provocation consistent with the First Amendment.13 4. The First Amendment Does Not Prohibit Some of Galvan’s Words From Being Considered as Evidence of Provocation ¶ 26 Galvan next contends that consideration of his words to support the provocation instruction violates the First Amendment. ¶ 27 The First Amendment of the United States Constitution provides that “Congress shall make no law

. . . abridging the freedom of speech.” Colorado ’ s cou nterpart to the First Amendment provides that “[n]o law shall be passed impairing the freedo m of speech.” Colo. Const. art. 2, § 10. ¶ 28 We first address whether the First Amendment has any application in this context. The State did not criminally punish Galvan because of the words he uttered . But the State has, nevertheless, regulated his speech through the giving of the provocation instruction. By using his words (at least in part) to justify giving an instruction that limits his right to self

- defense, the First Amendment was implicated. ¶ 29 While the First Amendment protects the right to free spe ech, its protection is not absolute. Virginia v. Black , 538 U.S. 343, 358 (2003). Some categories of speech, such as “fighting words” and “true threats” are unprotected by the First Amendment, and the14 government may permissibly regulate that speech. Id. at 358

- 59; see also People v. Chase , 2013 COA 27, ¶ 68. 3 ¶ 30 The Supreme Court has defined fighting words as “those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction .” Black , 538 U.S. at 359 (emphasis added) (quoting Cohen v. California , 403 U.S. 15, 20 (1971) ). That is,
f

ighting words are those “which by their very utterance tend to incite others to unlawful conduct or provoke retaliatory actions amounting to a breach of the peace.” People In Interest of R.C. , 2016 COA 166, ¶ 10 (quoting Hansen v. People , 190 Colo. 457, 4 61, 548 P.2d 1278, 1281 (1976) ). ¶ 31 The First Amendment permits regulation of such words because “[i]t has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that an y benefit that may be derived

3 The Attorney General does not argue that Galvan’s statements constitute true threats, and because we deter mine that some of his words were fighting words and therefore not protected by the First Amendment, we do not address whether his statements also constituted true threats.15 from them is clearly outweighed by the social interest in order and morality.” Chaplinsky v. New Hampshire , 315 U.S. 568, 572 (1942). However, “[t]he Supreme Court has ‘ never held that the government may, consistent with the First Amendment, regulate or punish speech that causes emotional injury but does not have a tendency to provoke an immediate breach of the peace. ’ ” R.C. , ¶ 12 (quoting Purtell v. Mason , 527 F.3d 615, 62 4 (7th Cir. 2008) )

. ¶ 32 “[A] defendant ’ s words are consi dered as a ‘ package ’ in combination with conduct and physical movements, viewed in light of the surrounding circumstances.” Id. at ¶ 22 (quoting In re Welfare of M.A.H. , 572 N.W.2d 752, 757 (Minn. Ct. App. 1997)). Thus, whether speech constitutes fightin g words must be determined on a case

- by

- case basis, considering all the particular facts and circumstances. Id. ¶ 33 Recently, another division of this court addressed whether a photograph, which had been altered to add a drawing of male genital ia close to a juvenile’s face, constituted fighting words

. Id. at ¶¶ 3, 7

. The division’s majority observed that “ speech that embarrasses or disgraces another is insufficient to qualify as16 fighting words. Even vulgar and insulting speech that is likely to
arouse anim osity or inflame anger, or even to provoke a forceful response from the other person, is not prohibited. ” Id. at ¶ 18. ¶ 34 That R.C. ’ s conduct “ was not accompanied by any hostile, aggressive, or threatening language or conduct” was also important to the maj ority’s analysis. Id. at ¶ 24. T he majority held that the image did not constitute fighting words because “ the average person

— even an average fourteen

- year
- old

— would not be expected to fly into a violent rage upon being shown [such] a photo of himsel f

. . . . ” Id. at ¶ 32. ¶ 35 While we agree with the exposition of law in the majority opinion in R.C. , the circumstances here are factually distinguishable from those in R.C. U nlike in R.C. , Galvan’ s words reasonably could be understood as inviting S.M. and C.M. to “make such attack and provide a pretext for injuring” C.M. Silva , 987 P.2d at 914. This invitation is encapsulated in the following words and
actions , at least according to some of the testimony :

• During the argument on the bus, in response to S.M. telling him to stop throwing pieces of food at the sleeping17 partygoer, Galvan stood up and said, “What the fuck are you going to do about it bitch?” then “ stepped forward” toward S.M. and C.M. , who stood up in r esponse.

• Galvan and his sister got in his truck, but he continued yelling at S.M. and C.M. that they were “nothing but a bunch of fat, fucking bitches,” “were going to get it,” and should “watch [their] backs.”

• As Galvan drove slowly down the street, he ye lled : “If any of you want this, well, come and get it.”

• A nd then he “all of a sudden stop[ped] his truck,” got out, and started running toward C.M. with his fist cocked, as if ready to punch. 4 ¶ 36 N ot all of Galvan ’ s statements constitute fighting words. 5 His repeated statements that S.M. and C.M. were “big, fat bitches,”

4 Galvan also yelled insults at the sisters, calling them “big, fat bitche s ” as eve ryone exited the bus. However, for the reasons explained in the text, those insults do not rise to the level of fighting words. 5 We note that there is no contention that any of Galvan ’ s statements constitute political speech

. Cf. Village of Skokie v. Na t ’ l Socialist Party of Am. , 373 N.E.2d 21, 25

- 26 ( Ill. 1978) (holding that the display of swastikas during a march through a community18 though offensive , were not of such character as to incite the sisters to react violently. However, his invitation for S.M. and C.M. to “come and get it” was a direct invitation to violen ce and stands on a different footing

. State v. Bougneit , 294 N.W.2d 675, 680 (Wis. Ct. App. 1980) , supports our analysis. As in Bougneit , Galvan “ invited [C.M. and S.M.] to fight and, in fact, taunted [them] with fighting words. ” Id. ¶ 37 Unlike R.C. , and the cases relied on by the majority there, Galvan did not merely call S.M. and C.M. names or make offensive
comments. See R.C. , ¶ ¶ 23 , 28

. He also threatened S.M. and C.M. by telling them that they should “watch [their] backs,” and then he invited t hem to respond with violence by yelling: “If any of you want this, well, come and get it .” (Emphasis added.) ¶ 38 Also, in contrast to R.C.’s speech, Galvan’s words were uttered face

- to

- face with the alleged victims, and were relatively close in
time to the physical altercation between him and C.M

. See People
i n Interest of R.D. , 2016 COA 186, ¶ 19 (holding that because

inhabited by Holocaust survivors did n ot to amount to “fighting words ” but instead was political speech )

.19 statements made over the internet were not made face

- to

- face or in close physical proximity to the alleged victim, the statements did
not constitute fighting words) ( cert. granted Sept. 5, 2017). ¶ 39 The timing of Galvan’s statements is important because one factor in determining if words are fighting words is whether they “tend[] to provoke an immediate breach of the peace

. ” 6 R.C. , ¶ 12 (emp hasis added)

. T he evidence presented at trial show ed that, at least, Galvan’s statements made after the group exited the party bus

— that C.M. and S.M. should “watch [their] backs , ” “were going to get it , ” and should “come and get it”

— were in close temp oral proximity to the physical altercation between C.M. and Galvan. ¶ 40 These specific words , taken in context and “ in combination with [ Galvan’s ] conduct and physical movements ,” id. at ¶ 22 (quoting M.A.H. , 572 N.W.2d at 757) , were “ inherently likely to provoke a violent reaction.” R.D. , ¶ 17 (quoting People in Interest of
K.W. , 2012 COA 151 , ¶ 30). We conclude that t hese w o r ds were fighting words and thus are not protected by the First Amendment

.

6 The record is unclear regarding precisely how much time passed between when the group exited the party bus and when the physical alterc ation between Galvan and C.M. occurred.20 T herefore, these words could prope rly be considered in determining whether some evidence support ed the provocation instruction.
5. At Least Some Evidence Support ed Giving the Provocation Instruction ¶ 41 Viewing the evidence in a light most favorable to giving the provocation instruction, Silva , 987 P.2d at 914 , we conclude that there was at least some evidence that Galvan provoked C.M. See Zukowski , 260 P.3d at 3 47

. B ased on the evidence presented, a reasonable juror could have found that Galvan ’ s actions and
statements , discussed above, were intended to give him an excuse to physically harm C.M

. 7 Therefore, the trial court did not err in instructing the jury on the provocation exception.
C. The Trial Court Did Not Abuse Its Discretion by Declining to Give A More Specific Provocation Instr uction ¶ 42 Galvan also contends that the provocation instruction was defective because it did not specify to which victim it applied. We disagree.

7 We emphasize that it is for the jury to determine whether Galvan in fact provo ked C.M. , not the trial court or this court. The trial court ’ s role is that of gatekeeper , which is why the quantum of proof to authorize the provocation instruction is low.21 ¶ 43 To begin, the instruction tracked the language of the statute. “An instruction that tracks the language of the statute, as this one did, is generally sufficient.” People v. Archuleta , 2017 COA 9, ¶ 52.
It also tracked the language of the Colorado M odel C riminal J ury I nstructions. See COLJI

- Crim. H:11 (2018 )

. ¶ 44 Galvan argues that “if the jury concluded that Mr. Galvan did not act in self

- defense with respect to S.M. because he allegedly provoked her, it could have applied that finding to the second degree assault offense against C.M.” To the extent we understand his argument, we reject it. ¶ 45 The provocation instruction stated that Galvan did not act in self

- defense if “with intent to cause bodily injury or death to another
person , [he] provoke [d] the use of unlawful physical force by that other person .” (Emphasi s added.) The plain language of the instruction itself made clear that for Galvan to forfeit the affirmative defense of self

- defense, he had to have provoked the person as to whom he was asserting self

- defense. ¶ 46 “ Jury instructions must be read as a whole, and if, when so read, they adequately inform the jury of the law, there is no22 reversible error. ” People v. Vanrees , 125 P.3d 403, 410 (Colo. 2005). Coupled with the other instructions that correctly informed the jury that it had to decide the affirmativ e defense of self

- defense based on th e totality of the circumstances , and that each crime charged was subject to the defense of self

- defense, the self

- defense
instruction adequately and correctly instructed the jury on the applicable law. See id. M oreover, the jury was instructed to consider each charge separately and not let its decision on one charge influence its decision on the other s . We presume the jury followed that instruction. See People v. Phillips , 91 P.3d 476, 484 (Colo. App. 2004) (“ I t is presumed the jury unders tood and heeded the trial court ’ s instructions .”).
D. The Trial Court Did Not Abuse Its Discretion by Declining to Give a Separate No Duty to Retreat Instruction ¶ 47 Galvan next contends that the trial court abused its discretion
in r efusing to give his tendered instruction on “no duty to retreat.”
We disagree

. ¶ 48 “We review de novo whether a jury instruction states the law correctly, and we review the trial court ’ s decision to give a particular23 jury instruction for an abuse of discreti on.” Walker v. Ford Motor
Co. , 2017 CO 102, ¶ 9. ¶ 49 “ The trial court must tailor the self

- defense instructions to the particular circumstances of the case in order to adequately apprise the jury of the law of self

- defense from the standpoint of the defendant

. ” Cassels v. People , 92 P.3d 951, 956 (Colo. 2004)

. “ In cases where the jury could reasonably conclude that the defendant had a duty to retreat before using force in self

- defense, the defendant may be entitled to a self

- defense instruction tailored to

a ddress the issue of retreat. ” Id

. Still , a court may refus e an instruction that states principles already encompassed elsewh ere in the court ’ s instructions. People v. Tweedy , 126 P.3d 303, 307 (Colo. App. 2005)

. ¶ 50 T he jury was instructed that Galvan “was legally authorized to use physical force upon another person without first retreating

. . . . ” (Emphasis added

. ) T he instruction containing the “no retreat” language tracked the language of the model jury instructi o n . COLJI

- Crim. H:11 (2018) ; see also People v. Grenier , 200 P.3d 1062,24 1080 (Colo. App. 2008) (finding no error w h ere the jury instruction tracked the language of the model jury instruction)

. ¶ 51 Casse l s , 92 P.3d at 956, and Idrogo v. People , 818 P.2d 752 (Colo. 1991), are distinguishable because in those cases, none of the jury instructions told the jury that the defendant did not have a duty to retreat. Both of those cases were decided before the model jury instructions specifically addressed the “no dut y to retreat” principle embedded in Colorado law. Thus, when the court stated
in Cassels that “a standard self

- defense instruction does not adequately apprise the jury that a defendant who is not the initial aggressor does not need to retreat before using force in self

defense , ” 92 P.3d at 956, the court was assessing instruction s that did not address the duty to retreat. The model jury instruction given in this case address es that principle of law and , consequently, the jury was correctly instructed. ¶ 52 F or these reasons, the trial court did not abuse its discretion by failing to give Galvan ’ s tendered no duty to retreat instruction.25 III. The Prosecutor ’ s Statements Regarding the Victims ’ Right s to a Fair Trial Were Harmless ¶ 53 Finally, Galvan argues that the tri al court erred by allowing the prosecutor to suggest to potential jurors that the alleged victims had right s to a fair trial that were equal to Galvan ’ s constitutional rights to due process and a fair trial

. A. Additional Facts ¶ 54 During voir dire, the prosecutor had the following colloquy with J urors 2, 4, and 12 : [PROSECUTOR]: Juror Number 2. I ’ m going to switch gears again. So the judge talked about the right to a fair trial. And, of course, we know that the defendant has a ri ght to a fair trial. Part of that is the presumption of innocence. My question, though, is what about the victim ’ s right to a fair trial? What do you think about that? JUROR NUMBER 2: I think it ’ s important that they

-- (Emphasis added.) Galvan ’ s couns el objected, and the court overruled the objection. The potential juror continued: JUROR NUMBER 2: I think the victim has a right to have the

-- all the facts put out and the correct conclusions found by the jury.26 ¶ 55 Later, the prosecut or again asked about the victims ’ rights to a fair trial. [PROSECUTOR ] : Juror Number 4. I want to come back to this right of a fair trial. And, you know, the defendant is going to sit before you for the next few days, there ’ s not going to be a victim sitting at my table or e ven in the courtroom. What [are] your thoughts of the victim ’ s right to a fair trial? (Emphasis added

. ) Galvan ’ s counsel again objected, and the court again overruled the objection. The potential juror then answered: JUROR NUMBER 4: They deserve a fair trial, as well, and have their side heard. ¶ 56 Sometime later, in speaking with Juror 12, the prosecutor said : [PROSECUTOR] : I realize this has now kind of drug [sic] on for a while, so I don ’ t want to repeat myself. I just want to know if you have any though ts on

— we ’ ve talked about several issues; alcohol consumption, the victim ’ s right to a fair trial , the issue of man versus woman in self

- defense, any of those issues. Do you have any specific thoughts that you think we should all be aware of? JUROR NUMBE R 12: No, I don ’ t. (Emphasis added.) Jurors 4 and 12 served on Galvan ’ s jury.27 B. Standard of Review and Applicable Law ¶ 57 Our review of a claim of prosecutorial misconduct involves a
two

- step analysis. Wend v. People , 235 P.3d 1089, 1096 (Colo. 2010). First, we determine whether the conduct at issue was improper based on the totality of the circumstances. Id. If we determine there was misconduct , we next determine whether the misconduct warrants reversal under the applicable standard of reversal. Id. ¶ 58 In determining whether prosecutorial misconduct h as occurred, “ [t]he context in which [the] challenged prosecutorial

re marks are made is significant. ” People v. Krueger , 2012 COA 80, ¶ 50 (quoting People v. Santana , 255 P.3d 1126, 1133 n. 5 (Colo.
2011 ) ). A prosecutor engages in prosecutorial misconduct during voir dire when she misstates the law or “ intentionally use[s] the voir dire to present factual matter which the prosecutor knows will not be admissible at tr ial or to argue the prosecution ’ s case to the jury. ” People v. Adams , 708 P.2d 813, 815 (Colo. App. 1985) (emphasis omitted ) (quoting I ABA Standards for Criminal Justice § 3

- 5.3(c) (2d ed. 1980)).28 C. A Prosecutor May Not State or Imply that a Victim ’ s Rights are Equal to t he Rights of the Criminal De fendant ¶ 59 Although no Colorado court has addressed whether a prosecutor may properly suggest to a jury venire that a victim ’ s rights under the Colorado C onstitution, Colo. Const. a rt. 2, § 16a, and sections 24

- 4.1

- 301 to

- 303, C.R.S. 2018, are equal to those of a criminal defendant, courts in other states have addressed this question under those states ’ laws

. ¶ 60 For example, the Arizona Supreme Court concluded that “[i]t cannot be doubted that victims of crime, and their families, have certain rights. It is equally clear, however, that these rights do not, and cannot, conflict with a defendant ’ s right to a fair trial.” State v. Bible , 858 P.2d 1152, 1205

- 06 (Ariz. 1993) (citations omitted). Similarly, the New Mexico Court of Appeals held , in addressing

c laims of prosecutorial misconduct, that “ [p] rosecutors should not suggest that a victim ’ s rights

. . . can outweigh a defendant ’ s29 constitutional rights.” State v. Dombos , 180 P.3d 675, 686 ( N.M. Ct. App. 2008)

. 8 ¶ 61 We agree with these courts

. A lthough the alleged victims in this case have certain constitutional and statutory rights , Colo.
Const. a rt. 2, § 16a ; §§ 24

- 4.1

- 301 to

- 303, those rights do not rise to the same level and cannot conflict with Galvan ’ s constitutional right s to due process and a fair trial under the United States
C onstitution. U.S. Const. amend s . V , V I.

8 Still other courts have addressed (in a more cursory manner) circumstances wh ere the prosecut or made a comparison between the rights of the victim and the rights of the criminal defendant. All of these courts found the comment s improper, yet concluded reversal was not required. See McNair v. State , 653 So. 2d 320, 337 (Ala. Crim. App. 1992) (holding that despite the fact that “ [ t ] he prosecutor made numerous references to the victim ’ s rights and several times implied that her rights were to be weighed against the [defendant ’ s] , ” the error was not reversible); Jennings v. State , 453 So. 2d 1109, 1113

- 14 (Fla. 1984) (concluding that it was improper for the prosecutor to “compare [ the defendant ’ s] right to use the telephone to call an attorney during his interrogation and the victim ’ s right to live”), vacated on other grounds , 470 U.S. 1002 (1985); State v. Marshall , 586 A.2d 85, 171 (N.J. 1991) (holding that the prosecutor ’ s comment that the victim “had a right to live her life in full” was harmless beyond a reasonable doubt) ; Bell v. State , 724 S.W.2d 780, 802

- 03 (Tex. Crim. App. 1986) (concluding that the error in allowing the prosecutor ’ s comment on the victims ’ constitutional rights was not reversible)

.30 ¶ 62 The prosecutor never explicitly stated that the alleged victims ’ rights were equal to or greater than Galvan ’ s. But, t o the extent the prosecutor ’ s statem ents implied such an equivalence , the prosecutor should not have made , and the trial court should not have permit ted , such statements

. D. Any Error Was Harmless ¶ 63 Even if a fair inference of the prosecutor ’ s remarks was that the victims ’ rights were equal to, or in conflict with , Galvan ’ s rights , any error was harmless. T he jury was properly instructed regarding Galvan ’ s constitutional right to a fair trial, and on the presumption of innocence. The trial court gave no instruction regarding the alleged victims ’ right s to a fair trial. Nor did the prosecutor mention the alleged victims ’ rights again during trial. So, t he prosecut or ’ s statements, if improper , did not “substantially influence[] the verdict or affect[] the fairness of the trial proceedings.” Hag os v. People , 2012 CO 63, ¶ 12 (quoting Tevlin v. People , 715 P. 2 d 338, 342 (Colo. 1986)); see also Bible , 858 P.2d at 1206 (determining that the prosecutor ’ s statements equating the victim ’ s rights with the defendant ’ s were not “fundamental error”).31 ¶ 64 Mor eover, the split verdicts in this case demonstrate that the jury followed the court ’ s instructions , which, as noted, correctly instructed the jury regarding Galvan ’ s constitutional rights.
IV. Conclusion ¶ 65 The judgment is affirmed.
JUDGE TAUBMAN and JUDGE TOW concur.