     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.


                                                                  SUMMARY
                                                            February 7, 2019

                                2019COA16

No. 14CA1958, People v. Ramirez — Criminal Law — Jury
Instructions — Instructional Errors; Criminal Procedure —
Plain Error

     On remand from the supreme court, a division of the court of

appeals reconsiders a prior division’s opinion in this case in light of

the decision in People v. Rediger, 2018 CO 32. The division

concludes that defense counsel’s error in declining to object to an

inapplicable jury instruction amounted to a forfeiture, and not a

waiver, as described in the prior division’s opinion. Forfeiture is the

failure to make the timely assertion of a right, whereas waiver is the

intentional relinquishment of a known right or privilege. When, as

in this case, there is no indication that defense counsel recognized

the instructional error, and there is no rational, strategic reason for

the defense to want such an erroneous instruction to be given,
counsel’s failure to perceive and address the error is attributable to

neglect. In that instance, the instructional error has not been

waived, but merely forfeited.

     Because the trial court’s failure to properly instruct the jury

on “deadly physical force” amounted to prejudicial plain error, the

division reverses the conviction of first degree assault and remands

for a new trial solely as to that charge. In all other respects, the

judgment is affirmed.

     The dissent would affirm the judgment in its entirety because

the lawyer made a knowing and intentional waiver of any error in

the court’s self-defense instruction.
COLORADO COURT OF APPEALS                                        2019COA16


Court of Appeals No. 14CA1958
Weld County District Court Nos. 13CR875, 13CR890, 13CR1222 & 13CR1681
Honorable Timothy G. Kerns, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Joe Anthony Ramirez,

Defendant-Appellant.


             JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
                 AND CASE REMANDED WITH DIRECTIONS

                                 Division III
                          Opinion by JUDGE TERRY
                            Martinez*, J., concurs
                              Webb, J., dissents

                         Announced February 7, 2019


Philip J. Weiser, Attorney General, Majid Yazdi, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Dayna Vise, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1    This case has been remanded from the supreme court. People

 v. Ramirez, (Colo. No. 18SC281, Dec. 3, 2018) (unpublished order).

 That court has instructed us to reconsider the prior division’s

 opinion in this case, People v. Ramirez (Colo. App. No. 14CA1958,

 Mar. 8, 2018) (not published pursuant to C.A.R. 35(e)) (Ramirez I),

 in light of the decision in People v. Rediger, 2018 CO 32.

¶2    Defendant, Joe Anthony Ramirez, was convicted in one trial of

 charges stemming from four consolidated criminal cases. He was

 found guilty of attempted first degree murder, attempted reckless

 manslaughter, first degree assault with a deadly weapon, engaging

 in a riot, illegal discharge of a firearm, theft by receiving, vehicular

 eluding, and possession with intent to distribute a schedule II

 controlled substance. The court imposed a combination of

 consecutive and concurrent sentences totaling eighty-eight years.

¶3    In Ramirez I, the division affirmed his conviction of all charges.

 After receiving the supreme court’s order of remand, we requested

 supplemental briefing from the parties as to the application of

 Rediger. That supreme court decision has potential effect only on

 our disposition of the conviction for first degree assault. Thus,




                                     1
 none of the other convictions entered against Ramirez are affected

 by the supreme court’s remand.

¶4    With respect to the first degree assault conviction, we now

 conclude that defense counsel’s error in declining to object to an

 inapplicable jury instruction amounted to a forfeiture, as described

 in Rediger, ¶¶ 39-47, and not a waiver, as described in the prior

 division’s opinion. Because we conclude that the error amounted to

 prejudicial plain error, we reverse the conviction of first degree

 assault and remand for a new trial solely as to that charge.

                        I. The Erroneous Instruction

¶5    Ramirez argues that the trial court improperly instructed the

 jury as to “deadly physical force” in Instruction Number 29, which

 related to the charges of first degree assault, second degree assault,

 and third degree assault. (The jury found him guilty only of first

 degree assault.)

¶6    The prior division concluded that Ramirez had waived his

 contention of instructional error and therefore declined to consider

 it. In accordance with the supreme court’s remand, we now

 re-examine that ruling.




                                    2
¶7    During the jury instruction conference, defense counsel said

 that a scintilla of evidence was presented at trial that would support

 the defense of self-defense. The following colloquy then occurred:

           [Prosecutor]: I know that the standard [of
           proof] is incredibly low of it being a scintilla of
           evidence, and so I don’t think the People can in
           good faith dispute that there’s contradictory
           testimony including the defendant’s
           statements. . . .

           [COURT]: Counsel, any objection to the
           self-defense instruction [that was tendered by
           the prosecution] and its applicability to . . .
           first, second and third degree assault?

           [PROSECUTOR]: No, Your Honor.

           [COURT]: [Defense counsel?]

           [DEFENSE COUNSEL]: Your Honor, I believe
           this to be a correct statement of the law, so I
           don’t have any objection.

           [COURT]: Thank you.

¶8    The court instructed the jury:

           It is an affirmative defense to the crime of
           Assault in the First Degree . . . that the
           defendant used deadly physical force upon [the
           victim]:

           l. 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
           the other person,



                                   3
             2. He used a degree of force which he
             reasonably believed to be necessary for that
             purpose, and

             3. He reasonably believed a lesser degree of
             force was inadequate, and

             4. Had reasonable grounds to believe, and did
             believe that he or another person was in
             imminent danger of being killed or of receiving
             great bodily injury.

  (Emphasis added.)

¶9     Further, the elemental instruction for first degree assault

  referenced the “deadly physical force” instruction by saying,

  “without the affirmative defense [specified] in instruction number

  29.” The jury was not instructed on the definition of “deadly

  physical force.”

¶ 10   “‘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. 2018

  (emphasis added); see also People v. Ferguson, 43 P.3d 705, 708

  (Colo. App. 2001) (“If the force used by the defendant does not

  cause death, by definition it cannot be deadly physical force.”); CJI-

  Crim. 5:01, 5(9) (1983) (incorporating statutory definition of “deadly

  physical force”); CJI-Crim. 7:17 (1983) (self-defense instruction


                                    4
  concerning deadly physical force “should only be used if the victim

  dies”).

¶ 11    Without question, it was error for the court to instruct the jury

  on deadly physical force because defendant was not accused of

  causing death. By giving an inapplicable instruction, and

  incorporating it into the elemental instruction for first, second, and

  third degree assault, the court would have caused the jury to have

  an incorrect understanding of the elements of those charges.

                          II. Waiver or Forfeiture

¶ 12    In Ramirez I, the division concluded that Ramirez, through his

  counsel, had waived this instructional error. That conclusion

  focused on defense counsel’s statement, “I believe this to be a

  correct statement of the law, so I don’t have any objection.”

  Applying Rediger and the supreme court’s recent decision in People

  v. Smith, 2018 CO 33, we now conclude that this statement did not

  amount to waiver and was, instead, a forfeiture.

¶ 13    According to Rediger, “[w]aiver, in contrast to invited error, is

  “the intentional relinquishment of a known right or privilege.”

  Rediger, ¶ 39 (quoting Dep’t of Health v. Donahue, 690 P.2d 243,

  247 (Colo. 1984)). Courts are not to “presume acquiescence in the


                                      5
  loss of fundamental constitutional rights, and therefore [must]

  indulge every reasonable presumption against waiver.” Id. (quoting

  People v. Curtis, 681 P.2d 504, 514 (Colo. 1984)).

¶ 14   We see no indication in the record that defense counsel

  recognized the error in application of the deadly force jury

  instruction. There would be no rational, strategic reason for the

  defense to want such an erroneous instruction to be given. Indeed,

  counsel’s expression that he believed the instruction to be “a correct

  statement of the law” shows that he failed to notice that it was an

  incorrect statement of the law as applied to the first, second, and

  third degree assault charges in this case. Cf. People v. Stewart, 55

  P.3d 107, 119 (Colo. 2002) (stating that a nontactical instructional

  omission is reviewable for plain error).

¶ 15   And as we have discussed, the error would have caused the

  jury to misunderstand the elemental jury instruction for first degree

  assault, which referenced the “affirmative defense [specified in

  erroneously phrased] instruction number 29.”

¶ 16   Given that we are to indulge every reasonable presumption

  against waiver, we conclude that counsel did not waive the

  instructional error. See id.; see also Smith, ¶ 18 (finding no waiver


                                     6
  of instructional error where “the record before us reveals no

  evidence that [the defendant], by stating that the instructions

  generally were ‘acceptable’ to him, intended to relinquish a known

  variance claim”).

¶ 17   “Forfeiture” is “the failure to make the timely assertion of a

  right.” Rediger, ¶ 40. Rediger cited United States v. Carrasco-

  Salazar, 494 F.3d 1270, 1272 (10th Cir. 2007), for the proposition

  that “waiver is accomplished by intent, [but] forfeiture comes about

  through neglect.”

¶ 18   Defense counsel’s failure to perceive and address the error in

  the instruction was patently attributable to neglect, and we

  therefore conclude that the instructional error was not waived, but

  merely forfeited. See Rediger, ¶ 44 (“In these circumstances, we

  conclude that neglect, not intent, explains Rediger’s lack of an

  objection . . . . Accordingly, in our view, Rediger’s acquiescence

  amounts to a forfeiture, not a waiver.”).

¶ 19   In contrast with the dissent, we are not convinced that Rediger

  is distinguishable on the basis that defense counsel there stated

  that the instructions as a group were acceptable, whereas defense

  counsel here accepted a specific instruction. By accepting all the


                                     7
  instructions, defense counsel in Rediger had accepted the included

  elemental instruction. Nevertheless, our supreme court said, “[t]he

  record before us reveals no evidence, either express or implied, that

  Rediger intended to relinquish his right to be tried in conformity

  with the charges . . . .” Id. at ¶ 42.

¶ 20   People v. Kessler, 2018 COA 60, does not change our view.

  There, the division acknowledged Rediger, but distinguished it

  because, in Kessler, “defense counsel did more than generally

  acquiesce or fail to object. Defense counsel explicitly agreed that

  the specific evidence at issue was admissible.” Id. at ¶ 37. The

  circumstances of Kessler are unlike those here, where Ramirez’s

  counsel showed no understanding that the jury instruction was

  inapplicable. And as the division acknowledged in Kessler, that

  case did not involve an elemental jury instruction. Id. But this

  case does.

¶ 21   The division in People v. Tee, 2018 COA 84, ¶ 23, also

  distinguished Rediger, explaining that “the record before us shows

  that the trial court and defense counsel were involved in an

  ongoing, interactive exchange.” See also People v. Murray, 2018




                                      8
  COA 102, ¶ 44 (“Defense counsel therefore clearly affirmatively

  acquiesced in the admissibility of the Montana judgment.”).

¶ 22   There is no such indication in the record here. Instead, the

  entire jury instruction conference — which dealt with thirty-seven

  jury instructions for charges that were originally brought in four

  separate cases — takes up only five pages of the trial transcript.

  Defense counsel’s statement that he thought the instruction

  correctly stated the law was made in one brief sentence.

¶ 23   The record shows defense counsel’s apparent lack of

  awareness of the error that was baked into the instruction. Cf.

  People v. Allgier, 2018 COA 122, ¶¶ 4-28 (holding that defense

  counsel did not waive for appellate review a CRE 403 argument

  regarding the admission of certain exhibits even though defense

  counsel said “no objection” when the prosecution moved to

  introduce them because the “record [did] not foreclose the

  possibility that defense counsel overlooked the possible

  prejudice . . . .”). Under these circumstances, we cannot conclude

  that counsel intentionally relinquished a known right on

  defendant’s behalf.




                                    9
¶ 24   Instead, counsel’s conduct amounted to a forfeiture, and, as a

  result, we must proceed to review the error for plain error. Rediger,

  ¶ 44; Smith, ¶¶ 18, 22.

                            III. Plain Error Review

¶ 25   We conclude that the court committed plain error, and that we

  must reverse his first degree assault conviction as a result.

¶ 26   Plain error is obvious and substantial error that so

  undermined the fundamental fairness of the trial itself as to cast

  serious doubt on the reliability of the judgment of conviction.

  Hagos v. People, 2012 CO 63, ¶ 14.

¶ 27   The error in the instruction was indeed obvious. Giving the

  deadly force instruction where the alleged victim did not die

  contravened the applicable statute, § 18-1-901(3)(d); case law,

  Ferguson, 43 P.3d at 708; and pattern jury instruction, CJI-Crim.

  5:01, 5(9) (1983); CJI-Crim. 7:17 (1983).

¶ 28   The error was also unfairly prejudicial. As in Ferguson, the

  failure to instruct on the non-deadly, ordinary use of force

  “permitted [the jury] to hold [the] defendant to a higher standard in

  establishing self-defense than is required by law.” 43 P.3d at 708;

  see also People v. Vasquez, 148 P.3d 326, 330 (Colo. App. 2006) (“In


                                    10
  restricting the jury’s consideration to only the most stringent

  conditions under which a claim of self-defense could be established,

  the trial court committed prejudicial error.”).

¶ 29   As a result, we must reverse defendant’s conviction of first

  degree assault.

               IV. Incorporation of Ramirez I as to Other Issues

¶ 30   The resolution of this appeal on all other issues discussed in

  Ramirez I is unaffected by the supreme court’s remand order. As a

  result, that opinion stands as to those other issues, and we

  incorporate herein those parts of Ramirez I addressing the other

  issues.

                              V. Conclusion

¶ 31   The judgment of conviction of first degree assault is reversed,

  and the case is remanded for a new trial as to that charge. In all

  other respects, the judgment is affirmed.

       JUSTICE MARTINEZ concurs.

       JUDGE WEBB dissents.




                                    11
       JUDGE WEBB, dissenting.

¶ 32   In law, as in life, “[o]n the question you ask depends the

  answer you get.” Bay Ridge Operating Co. v. Aaron, 334 U.S. 446,

  484 (1948) (Frankfurter, J., dissenting).

¶ 33   Following the mandate to consider People v. Rediger, 2018 CO

  32, the majority asks whether defense counsel thought about the

  deadly physical force language in the self-defense instruction before

  endorsing that instruction. The majority then sees “no indication in

  the record that defense counsel recognized the error in application

  of the deadly force jury instruction,” supra ¶ 14, and on that basis

  “cannot conclude that counsel intentionally relinquished a known

  right on defendant’s behalf,” supra ¶ 23. But Rediger does not, in

  my view, mandate a subjective inquiry into whether counsel

  thought about the reason why an instruction might be flawed, so

  long as the record shows that counsel specifically agreed that the

  particular instruction challenged on appeal should have been given.

¶ 34   So, I ask whether defense counsel knowingly and intentionally

  assented to the self-defense instruction being given. After the trial

  court asked the lawyers if they wanted to make a “record regarding

  the self-defense instructions or self-defense issues,” defense counsel


                                    12
  said of the self-defense instruction, “Your Honor, I believe this to be

  a correct statement of the law, so I don’t have any objection.”

  (Emphasis added.) Because this statement — far from a mere rote

  response — constitutes a knowing and intentional waiver of any

  error in giving the self-defense instruction, I would affirm.

¶ 35   Therefore, and with respect, I dissent.

                          I. Instructional Error

¶ 36   According to the majority, under cases such as People v.

  Ferguson, 43 P.3d 705, 708 (Colo. App. 2001), reversal is required

  because the trial court incorrectly instructed the jury on the use of

  deadly force — which requires that the force produce death — and

  in doing so held the prosecution to a lower standard for disproving

  self-defense than if the jury had been instructed on ordinary force.

  Because of defense counsel’s waiver, I do not address error, plain or

  otherwise, in the instruction. See People v. Bryant, 2013 COA 28,

  ¶ 13 n.2 (“[A] ‘waived’ claim of error presents nothing for an

  appellate court to review.” (quoting People v. Rodriguez, 209 P.3d

  1151, 1160 (Colo. App. 2008))).




                                    13
                   II. Waiver After Rediger and Smith

¶ 37   In Rediger, ¶¶ 3, 10, our supreme court held that a

  defendant’s attorney had not waived a challenge to an elemental

  instruction by responding, “Yes. Defense is satisfied,” when the

  trial court asked whether counsel was “satisfied with the

  instructions,” all of which the prosecutor had prepared. The court

  reasoned that such “mere acquiescence” to the instructions as a

  group was not enough to show “an intentional relinquishment of a

  known right.” Id. at ¶¶ 3, 39-44. Similarly, in People v. Smith,

  2018 CO 33, ¶¶ 17-21, announced concurrently with Rediger, the

  supreme court concluded that waiver did not apply when defense

  counsel said of the proposed jury instructions, “[t]hey are

  acceptable, Judge.” Id. at ¶ 6.

¶ 38   Thus, Rediger and Smith differ from this case in two important

  ways.

¶ 39   First, in both cases, the trial court did not solicit defense

  counsel’s position on the specific instruction belatedly challenged

  on appeal. See United States v. Hamilton, 499 F.3d 734, 736 (7th

  Cir. 2007) (The court declined to find a waiver because “while the

  judge invited objections he didn’t ask the defendant’s lawyer


                                    14
  whether the lawyer agreed to the instructions to which he did not

  object, or ask the lawyer specifically about the intent instruction.”).

  In contrast, here the court specifically asked, “Counsel, any

  objection to the self-defense instruction and its applicability to both

  first, second and third degree assault?” See People v.

  Perez-Rodriguez, 2017 COA 77, ¶ 28 (“Assuming that the statement

  ‘no objection’ was the response to an inquiry about specific

  language or a specific instruction, the circumstances might support

  deliberate conduct.”).

¶ 40   Second, in both cases, defense counsel gave a generic —

  “satisfied” and “acceptable” — response, equally applicable to all of

  the tendered instructions. This response could well have been

  merely a “rote statement that [counsel] is not objecting . . . .”

  United States v. Zubia-Torres, 550 F.3d 1202, 1207 (10th Cir. 2008)

  (cited with approval in Rediger, ¶ 45). Yet here, defense counsel

  gave an instruction-specific response: “I believe this [instruction] to

  be a correct statement of the law.” See United States v. Soto, 799

  F.3d 68, 96 (1st Cir. 2015) (The court found the instructional

  contention was waived where “the district court informed the Sotos

  exactly how it was planning to instruct the jury on good faith and


                                     15
  condonation — instructions Carmen and Steven had explicitly

  requested — and sought their feedback, twice asking if they were

  okay with those specific instructions.”).

¶ 41   By any reckoning, the records in both cases created reasoned

  doubt whether defense counsel had specifically assented to the

  particular instructions challenged on appeal. Not so here.

                             III. Application

¶ 42   Because questions of waiver “are necessarily fact-specific,”

  People v. Harlan, 54 P.3d 871, 879 (Colo. 2002), some variability

  exists among different divisions’ treatment of Rediger, see People in

  Interest of A.V., 2018 COA 138M, ¶ 13 (collecting cases).

¶ 43   In People v. Kessler, 2018 COA 60, ¶ 37, the division

  distinguished Rediger because “defense counsel did more than

  generally acquiesce or fail to object. Defense counsel explicitly

  agreed that the specific evidence at issue was admissible.” The

  division in People v. Tee, 2018 COA 84, ¶ 23, also distinguished

  Rediger because “the record before us shows that the trial court and

  defense counsel were involved in an ongoing, interactive exchange.”

  See also People v. Murray, 2018 COA 102, ¶ 44 (While citing

  Rediger, the division held that “[d]efense counsel therefore clearly


                                    16
  affirmatively acquiesced in the admissibility of the Montana

  judgment.”).

¶ 44   Because Tee differs from Kessler and Murray, these cases

  warrant a closer look. In Tee, the trial court, the prosecutor, and

  defense counsel had specifically discussed the predeliberation issue

  raised on appeal. But here, whether anyone said anything about

  the deadly physical force language before defense counsel endorsed

  the self-defense instruction is unknown.

¶ 45   Neither Kessler nor Murray describes any similar colloquy.

  Instead, when presented with the evidence, defense counsel

  responded that it was admissible. The divisions did not shy away

  from finding waivers by pondering whether counsel had considered

  the reasons raised on appeal as to why the evidence should not

  have been admitted. Rather, as here, defense counsel faced a

  binary choice: either object or acquiesce. And as here, because

  counsel chose the latter, giving the instruction cannot be

  challenged on appeal.

¶ 46   I discern no principled difference between admitting evidence

  and giving an instruction. In both circumstances, multiple reasons

  may be worth considering before counsel acts. Still, regardless of


                                   17
  what counsel subjectively contemplates, if counsel objectively

  acquiesces, the evidence comes in or the instruction is given. And

  asking whether counsel subjectively considered all such reasons

  disregards the principle that “[s]ociety has an interest in the finality

  of court determinations that should not be lightly put aside.”

  Stroup v. People, 656 P.2d 680, 684 (Colo. 1982).

¶ 47   Fine-tuning waiver remains problematic because neither

  Rediger nor Smith cited, much less distinguished, Stackhouse v.

  People, 2015 CO 48, ¶¶ 16-17 (“Defendants in Colorado

  affirmatively waive their right to public trial by not objecting to

  known closures,” although what counsel knew was not based on

  anything that the court and counsel had discussed, but on a

  “presum[ption] that attorneys know the applicable rules of

  procedure.”) (citation omitted). Even without regard to Stackhouse,

  however, the case before us is more like Kessler and Murray than it

  is like Rediger and Smith. While I am not bound by the decisions of

  other divisions, “we give such decisions considerable deference.”

  People v. Smoots, 2013 COA 152, ¶ 20, aff’d sub nom. Reyna-Abarca

  v. People, 2017 CO 15.




                                     18
¶ 48   After all, the trial court specifically asked defense counsel for

  his position on the self-defense instruction as well as on

  “self-defense issues.” In response, counsel did not just renounce

  “any objection,” as in Kessler and Murray. Counsel went further

  and explained his rationale — that the instruction was a “correct

  statement of the law.” Whether counsel was wrong is the province

  of an ineffective assistance claim under Crim. P. 35(c).

¶ 49   Despite all of this, is waiver precluded because what was on

  defense counsel’s mind when he unambiguously acquiesced is

  unknown? The majority says “yes” because waiver must be “the

  intentional relinquishment of a known right or privilege.” Rediger,

  ¶ 39 (quoting Dep’t of Health v. Donahue, 690 P.2d 243, 247 (Colo.

  1984)). For three reasons, I say “no.”

¶ 50   First, the knowing and intentional standard for a waiver by

  defense counsel differs from the “voluntary, knowing, and

  intelligent” test for waiver by a defendant. See, e.g., Sanchez v.

  People, 2014 CO 56, ¶ 11. Such a waiver “is intelligent if the

  defendant is ‘fully aware of what he is doing and . . . make[s] a

  conscious, informed choice to relinquish the known right.’” People

  v. Walker, 2014 CO 6, ¶ 16 (alteration in original) (citation omitted).


                                    19
  Had the Rediger court intended to condition waiver on plumbing the

  depths of defense counsel’s awareness, the court would have

  included “intelligent” in the formulation. Unsurprisingly, it did not.

  See Hinojos-Mendoza v. People, 169 P.3d 662, 670 (Colo. 2007)

  (“[W]e presume that attorneys know the applicable rules of

  procedure,” and we thus “can infer from the failure to comply with

  the procedural requirements that the attorney made a decision not

  to exercise the right at issue.”); see also Cropper v. People, 251 P.3d

  434, 436-37 (Colo. 2011) (In Hinojos-Mendoza “we held that defense

  counsel’s failure to request live testimony from the technician was a

  valid waiver of the defendant’s confrontation right even though the

  attorney did not have actual knowledge of section 16-3-309(5)’s

  requirements.”) (emphasis added)).

¶ 51   Second, I look at knowledge. Because defense counsel argued

  to the trial court that the evidence met the low standard for giving a

  self-defense instruction, he knew that he was entitled to such an

  instruction. And because, after having successfully argued for a

  self-defense instruction, he acknowledged that the particular

  instruction proposed was a correct statement of the law, he also

  knew that he was entitled to a self-defense instruction that was


                                    20
  appropriate for the case being tried. See Black’s Law Dictionary

  1737 (9th ed. 2009) (defining “knowing” as “showing awareness or

  understanding”).

¶ 52   Third, I look at intent. Counsel could have objected to giving

  the instruction, asked for different language, or acquiesced in giving

  it. He unambiguously acquiesced. How much or how little thought

  counsel gave to possible flaws in the instruction does not defeat

  intentionality. See Black’s Law Dictionary 883 (defining

  “intentional” as “[d]one with the aim of carrying out the act”).

¶ 53   Despite defense counsel’s clear choice, the majority parses his

  acquiescence in giving the instruction as opposed to his

  acquiescence in the deadly force language. But appellate courts “do

  not require the defendant to expressly state on the record his intent

  to waive a challenge before we will consider it waived . . . and such

  an express statement is rare.” United States v. Garcia, 580 F.3d

  528, 542 (7th Cir. 2009). I have not found any authority

  conditioning waiver on the outcome of an inquiry into whether

  defense counsel recognized every reason why an instruction might

  be inappropriate, at least where, as here, counsel affirmatively




                                    21
  endorses a particular instruction in response to a trial court’s

  specific question about counsel’s position on that instruction.

¶ 54   Closest to such an inquiry is a line of First Circuit cases

  summarized in United States v. Corbett, 870 F.3d 21, 30-31 (1st Cir.

  2017). The court explained that “when the ‘subject matter [is]

  unmistakably on the table, and the defense’s silence is reasonably

  understood only as signifying agreement that there was nothing

  objectionable,’ the issue is waived on appeal.” Id. (citations

  omitted).

¶ 55   Applying this test here, defendant’s right to a self-defense

  instruction and the wording of that instruction were “on the table.”

  See id. (citations omitted). Defense counsel persuaded the trial

  court to give such an instruction and then acquiesced in the

  language to be used. In my view, the inquiry should end there.

¶ 56   Going further to ponder whether defense counsel considered

  potential reasons why the instruction might be flawed demands too

  much. Suppose an instruction was flawed for two independent

  reasons, one of which was discussed among counsel and the trial

  court before defense counsel agreed that the instruction be given.

  Could appellate counsel avoid waiver by arguing that the other


                                    22
  reason warrants reversal and the record did not show that trial

  counsel had considered it?

¶ 57   Still, the majority points out that “[t]here would be no rational,

  strategic reason for the defense to want such an erroneous

  instruction to be given.” Supra ¶ 14. But this observation conflates

  waiver with invited error by assuming that inquiry into counsel’s

  strategic purpose plays the same role in ignoring an affirmative

  waiver that it does in declining to apply invited error. See Rediger,

  ¶ 34 (“Invited error is a narrow doctrine and applies to errors in

  trial strategy but not to errors that result from oversight.”). I am

  unaware of any Colorado authority tempering the effect of an

  affirmative waiver based on possible or even apparent lack of a

  strategic purpose.

¶ 58   Finally, everyone would agree that reversing a conviction and

  retrying the case carry “substantial social costs.” United States v.

  Mechanik, 475 U.S. 66, 72 (1986); see People v. Sepulveda, 65 P.3d

  1002, 1008 (Colo. 2003). So, who better than the trial court to

  protect the verdict against the risk of reversal by affording defense

  counsel a fair opportunity to object? See Martinez v. People, 2015

  CO 16, ¶ 14 (“An adequate objection allows the trial court a


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  meaningful chance to prevent or correct the error and creates a

  record for appellate review.”). But to do so, must the court ask

  defense counsel what he or she is thinking? Worse, must the court

  prime the pump by suggesting to counsel gray areas about which

  counsel should be thinking?

¶ 59   Here, the trial court sought to avoid those costs by broadly

  inviting defense counsel to address the instruction and related

  issues. With equal breadth, counsel replied, “I don’t have any

  objection.” Neither due process nor common sense could require

  greater effort by the trial court. Yet, if the integrity of a verdict

  depends not on what defense counsel says but on what counsel is

  thinking at the time, such efforts can always be thwarted by

  imaginative appellate counsel with the luxury of time to develop

  arguments that trial counsel may not have considered. If so, then

  in the end reversal leaves the trial court wondering, “what more

  could I have done?”

                                  IV. Conclusion

¶ 60   I would affirm the judgment.




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