SUMMARY

September 29, 2022

2022COA111

No. 19CA1481, Peo v Martinez — Crimes — Reckless 

Manslaughter; Criminal Law — Jury Instructions — Affirmative 

Defenses — Traverse — Self-Defense — Use of Physical Force in 

Defense of a Person — Use of Deadly Physical Force Against an 

Intruder

After the defendant in this criminal case was found guilty of 

reckless manslaughter, he appealed, arguing, among other issues, 

that the trial court erred by declining to instruct the jury that the 

force-against-intruders defense (known as the “make-my-day” 

defense) is an affirmative defense to reckless manslaughter.

A division of the court of appeals holds that, like ordinary selfdefense, the force-against-intruders defense is an affirmative 

defense only with respect to offenses requiring a mental state of 

knowingly or intentionally. Applying the reasoning of People v. 

Pickering, 276 P.3d 553 (Colo. 2011), the division concludes that 

the affirmative defense of force-against-intruders is inconsistent 

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.
with conduct involving a reckless mental state, and, therefore, the 

trial court properly declined to give an affirmative defense 

instruction with respect to the reckless manslaughter charge. 
COLORADO COURT OF APPEALS 2022COA111

Court of Appeals No. 19CA1481

Adams County District Court No. 18CR1636

Honorable Mark D. Warner, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Justin Brendan Martinez,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI

Opinion by JUDGE HARRIS

Dunn and Johnson, JJ., concur

Announced September 29, 2022

Philip J. Weiser, Attorney General, Paul E. Koehler, First Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Karen Mahlman Gerash, 

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

¶ 1 A jury found defendant, Justin Brendan Martinez, guilty of 

reckless manslaughter. On appeal, Martinez contends that the trial 

court erred in instructing the jury on various aspects of his selfdefense claims. 

¶ 2 In rejecting his contentions, we conclude that, like ordinary 

self-defense, the “force-against-intruders” defense (colloquially 

known as the “make-my-day” defense) is not an affirmative defense 

to a crime involving reckless conduct. We therefore affirm the 

judgment of conviction.

I. Background

¶ 3 On April 28, 2018, at about two a.m., Martinez shot and killed 

his best friend. The People charged him with second degree 

murder.

¶ 4 Martinez claimed to have acted in self-defense. Before trial, he 

moved to dismiss the charge, arguing that he was immune from 

prosecution under the force-against-intruders statute, see § 18-1-

704.5, C.R.S. 2021. The trial court disagreed, and the case 

proceeded to trial.

¶ 5 The prosecution presented eyewitness accounts from two 

people: Armando Acosta, a mutual friend of Martinez and the 
2

victim; and Martinez, who did not testify but whose police 

interviews were shown to the jury. 

¶ 6 According to Acosta, after a night of drinking, Martinez, the 

victim, and Acosta arrived back at Martinez’s house. Martinez 

wanted to drive to another bar, but the victim thought Martinez was

too drunk to drive. When Martinez got behind the wheel, the victim 

reached through the window, punched him in the face, and 

wrestled him out of the car.

¶ 7 Martinez stumbled into the house, followed first by the victim, 

and then, a minute later, by Acosta. When Acosta walked in, he 

saw Martinez lying on the bedroom floor and the victim kicking him. 

Acosta told them to “cool their shit,” and the victim started to walk 

out of the room. Martinez grabbed a gun from the corner, turned, 

and fired a shot that hit the back of the victim’s knee. Acosta 

testified that at the time Martinez grabbed the gun, the assault was 

over and, when he fired the shot, the victim was “already out the 

door” of the bedroom.

¶ 8 Acosta recalled that Martinez fired the gun toward the floor, 

and Acosta was surprised that the shot hit the victim — he 
3

characterized the incident as a “freak accident.” But he was also 

surprised that Martinez “even went to get a gun” in the first place.

¶ 9 Martinez’s account was somewhat different. Initially, he told 

police that, as the victim pursued him into the house, he grabbed a 

gun from behind the front door and the gun accidentally fired by 

itself. Later, though, he said that after the victim assaulted him 

outside, he ran straight into his bedroom, grabbed his gun, and, as 

he turned around, he “gave a warning shot” toward the ground, 

accidentally hitting the victim in the leg. Throughout his interviews 

with police, Martinez emphasized that his memory of the incident 

was poor and encouraged officers to speak to Acosta, who “was 

there for everything.” 

¶ 10 It was undisputed that when police arrived, they found the 

victim lying in the hallway outside the bedroom. Within half an 

hour, the victim had bled to death from the gunshot wound. 

¶ 11 Martinez’s specific theory of defense was that he had grabbed 

the gun in self-defense and then, with no intent to hit the victim, 

accidentally shot him in the leg. The jury rejected the charge of 

second degree murder and convicted Martinez of reckless 

manslaughter. 
4

II. Self-Defense Jury Instructions 

¶ 12 The trial court agreed to instruct the jury on self-defense. 

Accordingly, it gave a series of instructions concerning Martinez’s 

right to use deadly force to defend himself. 

¶ 13 On appeal, Martinez contends that the court erred by (1) 

declining to instruct the jury that the force-against-intruders 

defense is an affirmative defense with respect to reckless 

manslaughter; (2) failing to sua sponte include an instruction on a

defendant’s right to use non-deadly physical force; and (3) 

instructing the jury that Martinez’s intoxication was irrelevant to 

his self-defense claim.

¶ 14 “Trial courts have a duty to instruct the jury on all matters of 

law applicable to the case.” Roberts v. People, 2017 CO 76, ¶ 18. 

We review jury instructions de novo to determine whether, as a 

whole, they accurately informed the jury of the governing law. See 

People v. Neckel, 2019 COA 69, ¶ 26. And we review the court’s 

decision to give or not to give a particular instruction for an abuse 

of discretion. See People v. Maloy, 2020 COA 71, ¶ 54. 
5

A. Force-Against-Intruders Instruction

¶ 15 In Colorado, a person has a right to use deadly force to defend 

himself when he reasonably believes that he is in imminent danger 

of being killed or sustaining serious bodily injury and reasonably 

believes that a lesser degree of force is inadequate. See § 18-1-

704(1)-(2), C.R.S. 2021. 

¶ 16 The force-against-intruders statute expands the right to selfdefense in cases involving an intruder’s knowing unlawful entry into 

a home. Under that statute, as long as the occupant of the home 

has a reasonable belief that the intruder has committed or intends 

to commit a crime in addition to the unlawful entry and also 

reasonably believes that the intruder might use any physical force, 

no matter how slight, against any person, the occupant “is justified 

in using any degree of physical force, including deadly physical 

force,” against the intruder. § 18-1-704.5(2). 

¶ 17 Self-defense can be either an affirmative defense or a traverse. 

An affirmative defense admits the defendant’s commission of the 

charged offense but seeks to justify or excuse the conduct. Pearson 

v. People, 2022 CO 4, ¶ 18. A traverse, on the other hand, refutes 
6

the possibility that the defendant committed the charged offense by 

negating one or more elements of the offense. Roberts, ¶ 21. 

¶ 18 Whether self-defense is an affirmative defense or a traverse 

determines the prosecution’s burden of proof. See People v. 

Pickering, 276 P.3d 553, 555 (Colo. 2011). When the evidence 

raises the issue of an affirmative defense, the affirmative defense 

becomes an additional element, and the trial court must instruct 

the jury that the prosecution bears the burden to prove beyond a 

reasonable doubt that the defense does not apply. Id.; see also 

People v. Huckleberry, 768 P.2d 1235, 1239 (Colo. 1989) (explaining 

why the prosecution bears the burden to disprove an affirmative 

defense). In contrast, when the evidence raises the issue of an 

elemental traverse, the jury may consider evidence that the 

defendant acted in self-defense in determining whether the 

prosecution proved each element of the offense beyond a reasonable 

doubt, “but the defendant is not entitled to an affirmative defense 

instruction.” Pickering, 276 P.3d at 555. 

¶ 19 In Pickering, the supreme court concluded that self-defense is 

an affirmative defense with respect to crimes requiring intent or 

knowledge, such as second degree murder, but it is a traverse with 
7

respect to crimes involving recklessness, including reckless 

manslaughter. Id. at 555-56. While a person can act knowingly 

and in self-defense, the court reasoned, “it is impossible for a 

person to act both recklessly and in self-defense, because selfdefense requires one to act justifiably . . . while recklessness 

requires one to act with conscious disregard of an unjustifiable 

risk.” Id. at 556. 

¶ 20 Consistent with these principles, the trial court instructed the 

jury that self-defense and the force-against-intruders defense 

operated as affirmative defenses with respect to the second degree 

murder charge, and therefore the prosecution had the burden to 

disprove those defenses beyond a reasonable doubt. With respect 

to the reckless manslaughter charge, however, the court instructed 

that the prosecution had to prove all elements of the offense beyond 

a reasonable doubt, but it did not have an additional burden to 

disprove the defenses.1 Still, the instruction explained that “a 

1 To the extent Martinez argues that this instruction was improper, 

the argument is foreclosed by People v. Pickering, 276 P.3d 553, 557 

(Colo. 2011), which, as Martinez acknowledges, affirmed the use of 

a substantially identical jury instruction.
8

person does not act recklessly . . . if his conduct is legally justified 

as set forth” in the self-defense and force-against-intruder 

instructions.

¶ 21 Martinez acknowledges that self-defense is not an affirmative 

defense to reckless manslaughter. But he says that the forceagainst-intruders defense, unlike ordinary self-defense, is not 

inconsistent with reckless conduct and therefore is an affirmative 

defense to the charge.

¶ 22 As Martinez observes, the self-defense statute authorizes only 

proportionate force against an assailant. In other words, a person’s 

use of force is justified only if the person uses no more force than is 

reasonably necessary to repel the assailant. See § 18-1-704(1)-(2). 

The proportionate force requirement makes self-defense 

inconsistent with reckless conduct, Martinez argues, because it 

prohibits a person from creating or disregarding an unreasonable 

and unjustifiable risk of harm to others, while recklessness 

specifically requires that a person consciously disregard a 

“substantial and unjustifiable risk” of harm. § 18-1-501(8), C.R.S.

2021. 
9

¶ 23 The force-against-intruders statute, however, does not include 

a proportionate force requirement: once the statutory criteria are 

satisfied, the occupant of a home can use any amount of force 

against the intruder. See § 18-1-704.5(2). According to Martinez, 

this statutory difference means that an occupant could “choose to 

employ an unnecessary and grossly disproportionate degree of 

force, thereby consciously disregarding a substantial and 

unjustifiable risk of harm to the intruder.” It follows, he says, that 

the force-against-intruders defense is not inconsistent with reckless 

conduct.

¶ 24 That argument does not hold up. Under the force-againstintruders statute, any risk of harm to the intruder is, by definition, 

“justified.” See id. 

¶ 25 The General Assembly has authority to delineate statutory 

defenses. See People v. Guenther, 740 P.2d 971, 977 (Colo. 1987). 

In enacting the force-against-intruders statute, the General 

Assembly determined that one way to protect citizens’ “right to 

expect absolute safety within their own homes” was to expand an 

occupant’s right to use deadly force against a person who 

unlawfully enters a home. See § 18-1-704.5; see also People v. Rau, 
10

2022 CO 3, ¶ 3. Accordingly, once the specified statutory 

conditions are met, the occupant of a home is justified in using 

deadly force against the intruder, even if that amount of force is 

disproportionate to any force used by the intruder and therefore 

objectively unnecessary to repel any imminent threat.

¶ 26 True, the use of disproportionate force creates a substantial 

risk of harm to the intruder. But the risk of harm is unjustifiable

only if the occupant’s use of deadly force “constitutes a gross 

deviation from the reasonable standard of care,” see People v. Hall, 

999 P.2d 207, 216 (Colo. 2000), and it cannot be a gross deviation 

because the statute specifically authorizes the occupant’s conduct. 

Put another way, the legislature has determined that the risk of 

harm (including death) to certain intruders (those who have 

committed or intend to commit a crime in the home and who might 

use physical force against any person) from the occupant’s use of 

deadly force is justified. See Mata-Medina v. People, 71 P.3d 973, 

978 (Colo. 2003) (Whether a risk is unjustifiable depends on the 

nature of the risk “in relation to the nature and purpose of the 

actor’s conduct.”).
11

¶ 27 Therefore, contrary to Martinez’s argument, the force-againstintruders statute does not allow an occupant to consciously 

disregard a substantial and unjustifiable risk of harm to the 

intruder. Instead, like ordinary self-defense, the force-againstintruders statute requires that the occupant act reasonably and 

justifiably. What constitutes reasonable and justifiable conduct, 

though, is statutorily expanded when an intruder, bent on 

committing a crime and using physical force against an occupant, 

unlawfully enters a person’s home. And because a person cannot 

act both justifiably under the force-against-intruders statute and 

recklessly, the force-against-intruders defense does not operate as 

an affirmative defense to reckless manslaughter. See Pickering, 276 

P.3d at 556. 

B. Non-Deadly Force Instruction

¶ 28 A person has a right to use non-deadly physical force against 

another person to defend himself from what he reasonably believes 

to be the use or imminent use of unlawful physical force by the 

other person, and he can use a degree of force that he reasonably 

believes is necessary for that purpose. § 18-1-704(1). But, as we 

have noted, to be justified in using deadly physical force, a person 
12

must reasonably (and actually) believe that he is in imminent 

danger of being killed or sustaining serious bodily injury and must 

reasonably believe that a lesser degree of force is inadequate. § 18-

1-704(2). 

¶ 29 The trial court instructed the jury regarding Martinez’s right to 

use deadly physical force in self-defense. Martinez contends that 

the trial court erred by failing to also instruct the jury regarding his 

broader right to use non-deadly physical force. 

¶ 30 “Deadly physical force” means “force, the intended, natural, 

and probable consequence of which is to produce death, and which 

does, in fact, produce death.” § 18-1-901(3)(d), C.R.S. 2021. 

Whether physical force is properly considered “deadly” does not 

turn on the subjective intent of the person using the force but 

rather on the “objective likelihood that, in the absence of some 

intervening circumstance, a result will occur.” People v. Opana, 

2017 CO 56, ¶ 14. The question is whether the physical force used 

by the defendant “would normally be expected to, and in fact did, 

produce death.” Id. at ¶ 16.

¶ 31 The evidence at trial established that Martinez shot the victim 

with a 12-gauge shotgun from a distance of about three feet. The 
13

shotgun was loaded with birdshot, so instead of discharging a 

single projectile, the gun fired a shell loaded with tiny pellets. The 

pellets penetrated as one big mass, creating a two-and-a-half-inch 

hole in the back of the victim’s knee. Then the pellets lacerated the 

femoral artery, causing the victim to quickly bleed to death. An 

expert testified that “this type of wound” was “potentially 

survivable,” but only if the victim received “very prompt” medical 

attention. 

¶ 32 Martinez did not request an instruction on the use of nondeadly physical force. Thus, reversal is not warranted in the 

absence of plain error. Hagos v. People, 2012 CO 63, ¶ 14. “Plain 

error is error that is ‘obvious,’ ‘substantial,’ and ‘grave.’” People v. 

Malloy, 178 P.3d 1283, 1288 (Colo. App. 2008) (citation omitted). 

To qualify as obvious, the error must be one that is so “clear-cut,” a 

trial judge “should be able to avoid it without benefit of objection.” 

People v. Ujaama, 2012 COA 36, ¶ 42 (citation omitted).

¶ 33 Even assuming the court erred by not giving an instruction 

concerning the right to use non-deadly force, we cannot say, in light 

of the evidence, that the error was obvious. Martinez fired a 

shotgun at close range into a part of the victim’s body that, 
14

according to the expert, “has large caliber arteries and veins,” 

causing rapid and profuse bleeding. In the absence of any objection 

or a tendered alternative instruction, the court could reasonably 

have concluded that there was no serious dispute that Martinez’s 

conduct was objectively likely to produce death. 

C. Totality of the Circumstances Instruction

¶ 34 The court instructed the jury that intoxication was irrelevant 

to Martinez’s use-of-force defenses. As the court explained in the 

instruction, the defenses require that the “actor using force in 

defense acted as an objectively reasonable person,” and the 

“reasonable person standard requires the actor using physical force 

against another in defense to appraise the situation as would a 

reasonable sober person.” 

¶ 35 Martinez argues that the instruction misstated the law 

because, in evaluating the reasonableness of his decision to use 

force, the jury had to consider the totality of the circumstances, 

including the fact that he was drunk. 

¶ 36 While self-defense takes into account the defendant’s actual 

belief or state of mind, the defense ultimately requires that a 

reasonable person would have believed and acted as the defendant 
15

did. People v. Vasquez, 148 P.3d 326, 330 (Colo. App. 2006). A 

“reasonable person” means “an objectively reasonable individual 

and not a subjectively reasonable one possessing the individual 

defendant’s personality traits or defects.” People v. Darbe, 62 P.3d 

1006, 1011 (Colo. App. 2002). Therefore, the reasonable person 

standard requires a defendant to appraise the situation as would a 

reasonable sober person. Vasquez, 148 P.3d at 330. The 

instruction was thus an accurate statement of the law.

III. Cumulative Error

¶ 37 Martinez is not entitled to reversal based on cumulative error. 

“For reversal to occur based on cumulative error, a reviewing court 

must identify multiple errors that collectively prejudice[d]” the 

defendant’s substantial rights. Howard-Walker v. People, 2019 CO 

69, ¶ 25. Here, we have assumed a single error that did not 

amount to plain error. Therefore, reversal is not warranted. See 

People v. Thames, 2019 COA 124, ¶ 69 (“[A] single error is 

insufficient to reverse under the cumulative error standard.”).

IV. Conclusion

¶ 38 The judgment is affirmed.

JUDGE DUNN and JUDGE JOHNSON concur.