SUMMARY

May 9, 2019

2019COA68

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 2019COA68

Court of Appeals No. 16CA1988

Weld County District Court No. 15CR554

Honorable Marcelo A. Kopcow, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jose Luis Galvan, Sr.,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I

Opinion by JUDGE BERGER

Taubman and Tow, JJ., 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-Appellee

Megan A. Ring, Colorado State Public Defender, Meredith E. Osborne, Deputy 

State Public Defender, Denver, Colorado, for Defendant-Appellant
1

¶ 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 
2

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, 
3

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 
4

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 
5

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 
6

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 
7

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 
8

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 
9

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 the same parties; 

3. the 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 two 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) (citing Estate of 

Burford v. Burford, 935 P.2d 943, 948 (Colo. 1997)).

¶ 20 For two reasons, 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 prosecution did not receive a benefit in the first 
10

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 Provocation Instruction

¶ 21 The first question is what quantum of proof is necessary to 

authorize an instruction on one of the statutory exceptions to selfdefense. 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 

crafting 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 bound by that 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. We 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 instruction on provocation is authorized when “1) selfdefense 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. Id.

3. Whether Colorado Law Requires More Than 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, 540 
12

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 “insulting 

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 instruction.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. At 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 supported the provocation instruction. 

 2 Whether provocation can be proved 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 counterpart to the First Amendment

provides that “[n]o law shall be passed impairing the freedom 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 speech, 

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 the 
14

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, 

fighting 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, 461, 

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 any benefit that may be derived 

 3 The Attorney General does not argue that Galvan’s statements

constitute true threats, and because we determine 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, 624 (7th Cir. 2008)).

¶ 32 “[A] defendant’s words are considered 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 fighting 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 

genitalia 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 as 
16

fighting words. Even vulgar and insulting speech that is likely to 

arouse animosity 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 majority’s analysis. Id. at ¶ 24. The 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 himself . . . .

” 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. Unlike 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 sleeping 
17

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 response.

• 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 yelled: “If any 

of you want this, well, come and get it.” 

• And 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 Not 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 

bitches” as everyone 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. Nat’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 community 
18

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 violence 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 them 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 

in Interest of R.D., 2016 COA 186, ¶ 19 (holding that because 

 

inhabited by Holocaust survivors did not 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

(emphasis added). The evidence presented at trial showed 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 temporal 

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 these words 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 altercation between Galvan and C.M. occurred.
20

Therefore, these words could properly be considered in determining 

whether some evidence supported the provocation instruction. 

5. At Least Some Evidence Supported 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 347. Based 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 Instruction

¶ 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 provoked 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 Model Criminal Jury 

Instructions. 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.” (Emphasis 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 no 
22

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 affirmative defense of self-defense 

based on the 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. Moreover, the jury was instructed to 

consider each charge separately and not let its decision on one 

charge influence its decision on the others. We presume the jury 

followed that instruction. See People v. Phillips, 91 P.3d 476, 484 

(Colo. App. 2004) (“It is presumed the jury understood 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 refusing 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 particular 
23

jury instruction for an abuse of discretion.” 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 

address the issue of retreat.” Id. Still, a court may refuse an 

instruction that states principles already encompassed elsewhere in 

the court’s instructions. People v. Tweedy, 126 P.3d 303, 307 

(Colo. App. 2005). 

¶ 50 The jury was instructed that Galvan “was legally authorized to 

use physical force upon another person without first retreating . . . .” 

(Emphasis added.) The instruction containing the “no retreat” 

language tracked the language of the model jury instruction. 

COLJI-Crim. H:11 (2018); see also People v. Grenier, 200 P.3d 1062, 
24

1080 (Colo. App. 2008) (finding no error where the jury instruction 

tracked the language of the model jury instruction). 

¶ 51 Cassels, 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 duty 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 selfdefense,” 92 P.3d at 956, the court was assessing instructions that 

did not address the duty to retreat. The model jury instruction 

given in this case addresses that principle of law and, consequently,

the jury was correctly instructed. 

¶ 52 For 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’ Rights to 

a Fair Trial Were Harmless

¶ 53 Finally, Galvan argues that the trial court erred by allowing 

the prosecutor to suggest to potential jurors that the alleged victims 

had rights 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 Jurors 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 right 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 counsel 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 prosecutor 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 even 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 thoughts 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 NUMBER 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 has 

occurred, “[t]he context in which [the] challenged prosecutorial 

remarks 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 trial 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 the Rights of the Criminal Defendant

¶ 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 Constitution, Colo. Const. art. 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 

claims of prosecutorial misconduct, that “[p]rosecutors should not 

suggest that a victim’s rights . . . can outweigh a defendant’s 
29

constitutional rights.” State v. Dombos, 180 P.3d 675, 686 (N.M. Ct. 

App. 2008).8

¶ 61 We agree with these courts. Although the alleged victims in 

this case have certain constitutional and statutory rights, Colo. 

Const. art. 2, § 16a; §§ 24-4.1-301 to -303, those rights do not rise 

to the same level and cannot conflict with Galvan’s constitutional 

rights to due process and a fair trial under the United States

Constitution. U.S. Const. amends. V, VI. 

 8 Still other courts have addressed (in a more cursory manner) 

circumstances where the prosecutor made a comparison between 

the rights of the victim and the rights of the criminal defendant. All 

of these courts found the comments 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, to the extent the 

prosecutor’s statements implied such an equivalence, the

prosecutor should not have made, and the trial court should not 

have permitted, 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. The 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’ rights to a fair trial. Nor did the prosecutor mention 

the alleged victims’ rights again during trial. So, the prosecutor’s 

statements, if improper, did not “substantially influence[] the 

verdict or affect[] the fairness of the trial proceedings.” Hagos v. 

People, 2012 CO 63, ¶ 12 (quoting Tevlin v. People, 715 P.2d 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 Moreover, 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.