     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
                                                             August 20, 2020

                               2020COA123

No. 16CA1993, People v. Luna — Children’s Code — Direct
Filing; Criminal Law — Jury Instructions — Self-Defense

     In this appeal of a juvenile’s conviction under the direct-file

statute, § 19-2-517, C.R.S. 2019, a division of the court of appeals

concludes that the district court improperly instructed the jury

regarding the applicability of self-defense to alleged reckless

conduct. The division also concludes that, as a juvenile, the

defendant was not entitled to have the jury instructed with a

“reasonable child” instruction for his claim of self-defense.
COLORADO COURT OF APPEALS                                         2020COA123


Court of Appeals No. 16CA1993
Adams County District Court No. 15CR2757
Honorable Thomas R. Ensor, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jorge Alejandro Luna,

Defendant-Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                  Division IV
                           Opinion by JUDGE TERRY
                        Freyre and Lipinsky, JJ., concur

                          Announced August 20, 2020


Philip J. Weiser, Attorney General, Gabriel P. Olivares, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Casey M. Klekas, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1        In this appeal of a juvenile’s conviction under the direct-file

 statute, § 19-2-517, C.R.S. 2019, we address a problem originally

 discussed in People v. McClelland, 2015 COA 1. As in that case, we

 conclude that the district court’s instruction to the jury improperly

 described self-defense in the context of alleged reckless conduct.

 We also consider and reject the argument that, as a juvenile,

 defendant, Jorge Alejandro Luna, was entitled to have the jury

 instructed with a “reasonable child” instruction.

¶2        Luna appeals the judgment of conviction entered on jury

 verdicts finding him guilty of attempted reckless manslaughter and

 second degree assault (heat of passion), and also appeals the

 restitution order. We reverse the conviction and remand for a new

 trial.

                               I.   Background

¶3        Luna, a juvenile at the time, was living with T.M. Luna was at

 home when T.M. and her boyfriend, J.P. (the victim), arrived

 intoxicated. After T.M. went upstairs, J.P. approached Luna to

 speak to him about picking up after himself.

¶4        J.P. testified that he had no memory of the events that took

 place after he spoke with Luna, and that he woke up with nine stab


                                        1
 wounds. Luna fled the scene but turned himself in to authorities

 weeks later.

¶5    The prosecution charged Luna with one count of attempted

 first degree murder, one count of first degree assault, and two crime

 of violence counts. Luna was just under age eighteen at the time of

 the charged incident, and the prosecution successfully moved to

 have the case direct-filed against him in district court under section

 19-2-517, allowing him to be tried as an adult.

¶6    Luna testified at trial that he stabbed J.P. in self-defense after

 J.P. physically assaulted him multiple times. The jury acquitted

 him of attempted first degree murder and first degree assault but

 found him guilty of the lesser charges of attempted reckless

 manslaughter and second degree assault (heat of passion).

                II.   The Court’s Self-Defense Instruction

¶7    The trial court crafted its own self-defense instruction, which

 it gave at trial. Luna argues that the court’s self-defense

 instruction was contradictory and misstated the law of self-defense

 as it applies to crimes requiring recklessness, extreme indifference,

 or criminal negligence. We agree.




                                    2
              A.   Standard of Review and Applicable Law

¶8     We review jury instructions de novo to determine whether the

  instructions as a whole accurately informed the jury of the

  governing law. People v. Sandoval, 2018 COA 156, ¶ 11.

¶9     Because Luna did not object to the court’s self-defense

  instruction, we will reverse only if any error was plain. Hoggard v.

  People, 2020 CO 54, ¶ 13. For an error to be deemed plain, it must

  be both obvious and substantial. To be substantial, the error must

  so undermine the fundamental fairness of the trial itself as to cast

  serious doubt on the reliability of the judgment of conviction. Id.

¶ 10   Generally speaking, there are two types of defenses to a

  criminal charge: (1) affirmative defenses, which seek to justify,

  excuse, or mitigate the commission of the act; and (2) traverses,

  which effectively refute the possibility that the defendant committed

  the charged act by negating an element of the offense. People v.

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

¶ 11   Self-defense is an affirmative defense to crimes requiring proof

  of intent, knowledge, or willfulness. If a defendant charged with

  such a crime raises credible evidence that he acted in self-defense,

  the trial court must instruct the jury that the prosecution has the


                                     3
  burden of proving beyond a reasonable doubt that the defendant

  did not act in self-defense. Id. at 556. However, “[w]ith respect to

  crimes requiring recklessness, criminal negligence, or extreme

  indifference, . . . self-defense is not an affirmative defense, but

  rather an element-negating traverse.” Id. In such cases, the

  defendant is not entitled to a jury instruction on self-defense as an

  affirmative defense. Id. at 555-56. This is because it is impossible

  for a person to act both recklessly and in self-defense. Id. at 556.

  Self-defense requires one to act justifiably, see § 18-1-704(1), C.R.S.

  2019, while recklessness requires one to act with conscious

  disregard of an unjustifiable risk, see § 18-1-501(8), C.R.S. 2019.

¶ 12   Section 18-1-704(4) applies when a defendant who is charged

  with a crime involving recklessness, criminal negligence, or extreme

  indifference presents evidence of self-defense. It provides:

             In a case in which the defendant is not entitled
             to a jury instruction regarding self-defense as
             an affirmative defense, the court shall allow
             the defendant to present evidence, when
             relevant, that he or she was acting in
             self-defense. If the defendant presents
             evidence of self-defense, the court shall
             instruct the jury with a self-defense law
             instruction. The court shall instruct the jury
             that it may consider the evidence of
             self-defense in determining whether the


                                      4
               defendant acted recklessly, with extreme
               indifference, or in a criminally negligent
               manner. However, the self-defense law
               instruction shall not be an affirmative defense
               instruction and the prosecuting attorney shall
               not have the burden of disproving self-defense.

  § 18-1-704(4).

¶ 13   Our supreme court has concluded that an instruction

  informing the jury that the prosecution bears no burden of

  disproving self-defense with respect to crimes involving

  recklessness, extreme indifference, or criminal negligence is an

  accurate statement of the law and does not improperly shift the

  burden to a criminal defendant to prove one of those mental states.

  Pickering, 276 P.3d at 557.

                                B.   Analysis

¶ 14   The court’s self-defense instruction was almost two pages

  long. It informed the jury that the evidence in the case had raised

  the affirmative defense of self-defense and it outlined the elements

  of self-defense. As pertinent here, the instruction also said the

  following:

               These affirmative defenses do not apply to the
               crimes of Attempted reckless Manslaughter,
               Second Degree Assault done Recklessly or
               Third Degree Assault done with Criminal


                                      5
Negligence. You may, however, consider the
evidence presented in determining whether the
prosecution has proven, beyond a reasonable
doubt, the culpable mental states of
“Recklessly” or “Criminally Negligen[t]” which
are required for the commission of those
offenses. If the defendant acted in self-defense,
then he cannot be found guilty of “Reckless”
conduct or “Criminally Negligent” conduct.
      The prosecution has the burden to prove,
beyond a reasonable doubt, that the
Defendant’s conduct was not legally authorized
by these defenses. In order to meet this
burden of proof, the prosecution must
disprove, beyond a reasonable doubt, at least
one of the above numbered conditions.
      After considering all the evidence, if you
decide the prosecution has failed to meet this
burden of proof, then the prosecution has
failed to prove the Defendant’s conduct was
not legally authorized by these defenses, which
is an essential element of Attempted First
Degree Murder, Attempted Second Degree
Murder, and First Degree Assault. In that
event, you must find that the defendant did
not commit the crimes of Attempted First
Degree Murder, Attempted Second Degree
Murder, and First Degree Assault.
      After considering all the evidence, if you
decide the prosecution has met this burden of
proof, then the prosecution has proved that
the Defendant’s conduct was not legally
authorized by this defense. In that event, your
verdicts concerning the charges of Attempted
First Degree Murder, Attempted Second Degree
Murder, Attempted Manslaughter, First Degree
Assault, Second Degree Assault done
Recklessly and Third Degree Assault done with
Criminal Negligence, must depend on your


                       6
             determination whether the prosecution has
             met its burden of proof with respect to the
             remaining elements of those offenses.

  (Emphasis added.) Neither Luna’s counsel nor the prosecutor

  objected to the court’s instruction.

¶ 15   We conclude that the court’s self-defense instruction

  constituted plain error in light of McClelland, ¶ 24 (because the

  reckless manslaughter instruction directed the jury not to apply the

  instruction that explained the legal meaning of self-defense, the jury

  received no guidance as to the meaning of self-defense with respect

  to the offense of reckless manslaughter).

¶ 16   The court’s instruction was self-contradictory. On the one

  hand, it correctly instructed that, if Luna acted in self-defense, then

  he could not be found guilty of “reckless” or “criminally negligent”

  conduct. But on the other hand, it told jurors that the affirmative

  defense of self-defense does not apply to attempted reckless

  manslaughter or to second degree assault “done recklessly.” And

  while it is technically correct that the affirmative defense of

  self-defense does not apply to those charges, no attempt was made

  to explain the fine, but significant, distinction between an

  “affirmative defense” and a traverse.


                                     7
¶ 17   This is similar to the error that resulted in reversal in

  McClelland. See id. (reversal was required where instruction

  “informed the jury that, when considering the charge of reckless

  manslaughter, it could consider ‘evidence of self-defense,’ while

  simultaneously advising it that . . . the only jury instruction

  describing the law of self-defense in Colorado . . . did not apply”).

  McClelland held that by instructing the jury that the affirmative

  defense of self-defense “did not apply” to crimes of recklessness, the

  instruction conflicted with section 18-1-704(4)’s requirement that

  the trial court give the jury a self-defense instruction that outlines

  the elements of self-defense law. Id. It held this way because such

  an instruction could have deterred the jury from considering the

  elements of self-defense when deciding whether the defendant acted

  recklessly. See id. at ¶ 32 (instructing the jury that the self-defense

  instruction did not apply could have led the jurors to erroneously

  conclude that the defendant had a duty to retreat).

¶ 18   The same problem is presented by the court’s instructions

  here. Logically, jurors would have been unable to reconcile the

  conflicting instructions they were given. It is quite possible that

  jurors simply concluded they did not need to consider all the


                                     8
  elements of self-defense when determining whether Luna committed

  the charged crimes recklessly or criminally negligently.

¶ 19   Because the instructional error contravened Colorado case

  law, we conclude that it was obvious. See Scott v. People, 2017 CO

  16, ¶ 16; see also People v. Bachofer, 192 P.3d 454, 463 (Colo. App.

  2008) (contradictory self-defense instructions are “plainly wrong”).

¶ 20   We also conclude that the instructional error contributed to

  Luna’s convictions. Luna admitted to stabbing J.P. but claimed

  that he did so in self-defense because he was being assaulted by

  J.P., who was a larger, very intoxicated adult. The issue of self-

  defense was therefore central to the case and a thorough

  understanding of self-defense law was required.

¶ 21   Moreover, the jury acquitted Luna of the knowing and

  intentional crimes of attempted first degree murder, attempted

  second degree murder, and first degree assault — all the counts for

  which the jury was properly instructed on the law of self-defense.

  In contrast, the jury convicted Luna of attempted reckless

  manslaughter and second degree assault (heat of passion) — counts

  for which the jury was not properly instructed on the law of

  self-defense.


                                    9
¶ 22   This disparity replicates the circumstances in McClelland, ¶ 28

  (instruction contributed to the defendant’s conviction where the

  jury acquitted him of first and second degree murder — counts on

  which the trial court properly instructed the jury on self-defense —

  but found him guilty of reckless manslaughter, as to which the

  court failed to properly instruct on self-defense).

¶ 23   Because the instructional error seriously prejudiced Luna and

  was therefore substantial, we conclude that the error requires

  reversal.

                III.   The “Reasonable Child” Instruction

¶ 24   Luna next argues that the trial court erred by denying his

  tendered “reasonable child” instruction. Because this issue is likely

  to arise on remand, we consider and reject his assertion.

                           A.   Applicable Law

¶ 25   In evaluating the reasonableness of a defendant’s belief in the

  need to take defensive action, a jury must consider the totality of

  the circumstances, including the perceptions of the defendant.

  Kaufman v. People, 202 P.3d 542, 551 (Colo. 2009).

¶ 26   Self-defense under section 18-1-704 takes into account both

  the reasonable belief and the actual belief of the defendant. People


                                    10
  v. Willner, 879 P.2d 19, 22 (Colo. 1994). Although the affirmative

  defense of self-defense takes into account the actual belief or state

  of mind of a defendant, it ultimately requires that a reasonable

  person would have believed and acted as the defendant did. People

  v. Vasquez, 148 P.3d 326, 330 (Colo. App. 2006). In this context, a

  “reasonable person” means an objectively reasonable individual.

  Id.; see also People v. Toler, 981 P.2d 1096, 1099 (Colo. App. 1998)

  (court may properly refuse to give an instruction that calls only for

  a subjective test), aff’d, 9 P.3d 341 (Colo. 2000).

                               B.   Analysis

¶ 27   Luna’s attorney tendered the following “reasonable child”

  instruction:

             In determining whether Jorge Luna acted
             reasonably, you are instructed that a
             reasonable child is defined as a reasonable
             child in Mr. Luna’s situation and
             circumstances.
                   Furthermore, in determining whether Mr.
             Luna reasonably believed that [the victim’s]
             use of unlawful force was imminent, you must
             consider the circumstances surrounding Mr.
             Luna’s actions as they appeared to him at the
             time and not with the benefit of hindsight.
                   When assessing the reasonableness of
             Mr. Luna’s beliefs, you should consider that
             children are generally less mature and
             responsible than adults, and often lack the


                                     11
            experience, intelligence, perspective, and
            judgment necessary to evaluate consequences
            and risks. These attributes/qualities of youth
            often result in impetuous and ill-considered
            actions and decisions.

¶ 28   Luna’s attorney argued that the instruction was proper under

  J.D.B. v. North Carolina, 564 U.S. 261 (2011), which held that the

  lower court erred by applying the same standard of reasonableness

  to juveniles as for an adult in the context of the advisement

  required by Miranda v. Arizona, 384 U.S. 436 (1966). The court

  denied Luna’s attorney’s tendered instruction, concluding, without

  explanation, that J.D.B. was “not binding on this court” and that it

  did not deal specifically with this issue. The court noted that

  Luna’s counsel could still argue the differences between adult and

  child culpability, but that the court would not give an instruction

  about those differences.

¶ 29   Luna contends that Supreme Court precedents that have

  distinguished the culpability of a juvenile from that of an adult

  require a jury to apply a reasonable child standard in evaluating a

  juvenile’s actions when claiming self-defense. Luna, however, does

  not cite any authority to support his assertion that the reasonable

  child standard applies to self-defense claims asserted by juveniles.


                                    12
¶ 30   J.D.B. does not discuss, let alone mandate, a reasonable child

  instruction — or any jury instruction, for that matter. The case

  merely holds that, so long as a child’s age is known or objectively

  apparent to a reasonable interrogating officer, the child’s age should

  be considered as part of the analysis of whether the child was in

  custody for purposes of Miranda. J.D.B., 564 U.S. at 277.

¶ 31   Colorado’s self-defense statute allows for consideration of the

  defendant’s age and circumstances. The statute requires the jury

  to consider whether the defendant reasonably believed and did in

  fact believe that he was in imminent danger. § 18-1-704(2)(a). It

  therefore allows a juvenile defendant to argue his subjective belief

  and the circumstances that formed that belief, including his age.

       Because there is no basis under J.D.B. to create a “reasonable

  child” jury instruction, and because “it is the constitutional

  prerogative of the legislature to define crimes and to establish

  affirmative defenses for acts that might otherwise be criminal,”

  People v. Gilliland, 769 P.2d 477, 480 (Colo. 1989), we decline to

  create such a standard out of whole cloth.

¶ 32   But we are not adopting any sort of rule that would prohibit a

  juvenile defendant from arguing that his age was a factor in


                                    13
  determining whether he reasonably believed he was entitled to act

  in self-defense. In our view, such a rule would be inconsistent with

  J.D.B. See J.D.B., 564 U.S. at 277 (a child’s age is a factor that

  courts cannot simply ignore).

¶ 33   We conclude that the trial court did not err by denying Luna’s

  “reasonable child” instruction.

¶ 34   The self-defense instruction that was given properly instructed

  the jury to consider Luna’s subjective state of mind and the totality

  of the circumstances. The instruction informed the jury that

  self-defense is proper when a person “has reasonable grounds for

  believing, and does in fact actually believe that there is imminent

  danger of injury,” and that the jury was to “consider all of the

  circumstances surrounding the defendant’s conduct which existed

  at the time of the act.” This instruction sufficiently apprised the

  jury of the law of self-defense as it applied to Luna. Cf. Beckett v.

  People, 800 P.2d 74, 78-79 (Colo. 1990) (separate instruction on

  “apparent necessity” was not necessary, and court’s instruction was

  sufficient where it allowed for use of self-defense based on what the

  defendant “reasonably believed”).




                                    14
                            IV.    Other Issues

¶ 35   Luna also argues that the prosecutor committed misconduct

  and that the trial court erred by ordering restitution. Because we

  do not anticipate these issues to arise again on retrial, we decline to

  address them.

                              V.   Conclusion

¶ 36   The judgment of conviction is reversed, and the case is

  remanded for a new trial.

       JUDGE FREYRE and JUDGE LIPINSKY concur.




                                     15
