Peo v. Baez-Diaz

23CA1744 Peo v Baez-Diaz 11-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1744
El Paso County District Court No. 22CR3815
Honorable Chad Miller, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Yashira Baez-Diaz,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE HARRIS
Johnson and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 20, 2025

Philip J. Weiser, Attorney General, Joshua J. Luna, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Dilyn K. Myers, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Yashira Baez-Diaz, appeals the judgment of

conviction entered on a jury verdict finding her guilty of second

degree assault. She contends that the trial court reversibly erred by

instructing the jury on the initial aggressor exception to self-defense

and by admitting evidence that implied she was unhoused and

complicit in uncharged criminal misconduct. We affirm.

I. Background

¶2 On the night in question, Ashley Barreras returned to the

apartment she shared with her grandmother and found a stranger

— later identified as Baez-Diaz — in the kitchen. Barreras noticed

that Baez-Diaz had brought some of her belongings into the

apartment. When Barreras told her to leave, Baez-Diaz refused,

claiming that she lived in the apartment and was on the lease.

¶3 Barreras called her brother and his girlfriend for help.

Because Baez-Diaz ignored the brother’s repeated orders to leave,

the brother “pushed [Baez-Diaz] towards the door” and managed to

force her outside. But she would not leave the area until she

collected her belongings, so Barreras went outside and threw the

items toward Baez-Diaz. While they were outside, the women

engaged in a physical fight, during which Baez-Diaz stabbed

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Barreras in the arm. The brother pulled Barreras away from Baez-

Diaz, but, as the siblings retreated toward the residence, Baez-Diaz

charged at the brother. The brother hit Baez-Diaz in the face,

knocking her down. A passing tow truck driver broke up the

altercation, and Baez-Diaz ran away. Once Barreras and her

brother were back inside the apartment, the brother realized he had

been stabbed in the chest.

¶4 The State charged Baez-Diaz with second degree assault

against Barreras, first and second degree assault against the

brother, and burglary. At trial, Baez-Diaz claimed that she had

acted in self-defense. A jury found her guilty of second degree

assault against the brother but acquitted her of the remaining

charges. The district court sentenced Baez-Diaz to probation.

II. Initial Aggressor Jury Instruction

¶5 Baez-Diaz asserts that the trial court erred by instructing the

jury on the initial aggressor exception to self-defense because the

evidence was insufficient to support it. We disagree.

A. Legal Authority and Standard of Review

¶6 Under Colorado law, a person has the right to use physical

force against another person to defend herself from what she

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reasonably believes to be the use of unlawful physical force by that

other person. § 18-1-704(1), C.R.S. 2025.

¶7 But there are exceptions to this general rule. As relevant here,

a person may not use force to defend herself if she was the “initial

aggressor.” § 18-1-704(3)(b). Thus, one way the prosecution can

disprove the affirmative defense of self-defense is to prove beyond a

reasonable doubt that the defendant was the initial aggressor.

People v. Mosley, 2021 CO 41, ¶ 18. An initial aggressor is “the

person who initiated the physical conflict by using or threatening

the imminent use of unlawful physical force,” which includes acting

in a “physically threatening” manner. Castillo v. People, 2018 CO

62, ¶¶ 43-44.

¶8 A court has a duty to correctly instruct the jury on all matters

of law for which there is sufficient evidence to support the giving of

an instruction. Id. at ¶ 34. Therefore, when a trial court instructs

the jury on self-defense, it should also instruct on the initial

aggressor exception to that defense if there is “some evidence” to

support the exception. Galvan v. People, 2020 CO 82, ¶ 25.

“[S]ome evidence” means evidence sufficient to support a reasonable

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inference that the defendant was the initial aggressor. People v.

Roberts-Bicking, 2021 COA 12, ¶ 31.

¶9 We review de novo whether sufficient evidence exists to

support an initial aggressor instruction. Id. at ¶ 32. In doing so,

we view the evidence in the light most favorable to giving the

instruction. Galvan, ¶ 33.

B. Analysis

¶ 10 Baez-Diaz contends that the court erred by instructing the

jury on the initial aggressor exception to self-defense because the

evidence showed that it was Barreras and the brother, not her, who

initiated the physical conflict — by physically forcing her out of the

apartment. The People counter that regardless of what occurred

inside the apartment, the evidence supported a finding that Baez-

Diaz was the initial aggressor outside the apartment, at the time

she allegedly stabbed the brother in self-defense, and therefore the

instruction was proper.

¶ 11 We agree with the People. In fact, at trial, everyone

acknowledged that the initial aggressor issue related solely to the

physical altercations that occurred outside the apartment.

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¶ 12 The theory of defense, as set forth in an instruction, was that

“[a]fter Ms. Baez Diaz [wa]s forcefully removed from the apartment,

she was attacked by Ashley Barreras and [the brother] outside the

apartment, where Ms. Baez Diaz lawfully defended herself.” In

closing argument, defense counsel asserted that the Barreras

siblings were the initial aggressors based on their conduct outside

the apartment: “the physical fighting, the attacking [Baez-Diaz], the

punching [Baez-Diaz], spitting in her face happen[ed] outside,”

which was why, according to defense counsel, “[Baez-Diaz]

defend[ed] herself outside.”

¶ 13 The prosecution took the same tack. It told the jury during

closing argument that the assault counts were based on conduct

that occurred outside, after the brother pushed Baez-Diaz out of the

apartment. He argued that Baez-Diaz stabbed Barreras during

their fight outside and that she stabbed the brother when she

charged at him. The prosecutor’s theory was that Baez-Diaz’s self-

defense claim failed because “[w]hen you’re thrown outside and you

run at somebody, stab them in the chest, you’re the initial

aggressor.”

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¶ 14 The problem with Baez-Diaz now arguing that the Barreras

siblings were initial aggressors based on their conduct inside the

apartment is that no evidence or legal authority was presented to

support that position at trial. An initial aggressor is not simply the

person who initiates a physical conflict, as Baez-Diaz argues on

appeal. A person is an initial aggressor only if he initiates the

physical conflict by using or threatening to use unlawful force.

Castillo, ¶ 43. So Barreras and the brother could only be initial

aggressors from the outset of the incident if they had no right to use

any degree of force to remove Baez-Diaz from the apartment.

¶ 15 But the law says otherwise. Under section 18-1-705, C.R.S.

2025, a person in possession of or privileged to be on the premises

is justified in using “reasonable and appropriate physical force”

against another person if such force is reasonably necessary to

“terminate what he reasonably believes to be the commission . . . of

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an unlawful trespass by the other person.”1 Nor did defense

counsel dispute that the siblings could use physical force to remove

Baez-Diaz from the apartment. To the contrary, in closing

argument, counsel told the jury that it “[m]a[de] sense” that

Barreras and the brother “physically push[ed] [Baez-Diaz] outside”

to “get [her] the heck out of [their] apartment.”

¶ 16 In changing course on appeal, Baez-Diaz does not explain why

the Barreras siblings’ use of force to remove her from the apartment

was unlawful such that they could qualify as initial aggressors with

respect to the events that occurred inside. But even assuming they

could, we conclude that a reasonable jury could have found that

Baez-Diaz became the initial aggressor once the action moved

outside.

1 The prosecution initially requested an instruction under section

18-1-704.5, C.R.S. 2025, known colloquially as the “make-my-day”
statute. The statute allows the occupant of a dwelling to use any
degree of physical force, including deadly force, against an intruder
if certain conditions are met. See § 18-1-704.5(2). When the make-
my-day statute applies, the dwelling occupant’s use of force is
lawful, meaning that the statute operates as a bar to an intruder’s
claim of self-defense. People v. Jones, 2018 COA 112, ¶ 30. The
prosecution later withdrew its request for the instruction,
presumably because Baez-Diaz’s self-defense claim related solely to
the altercations outside the apartment, rendering the make-my-day
statute inapplicable.

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¶ 17 Relying on Castillo, Baez-Diaz contends that the incident

constituted one continuous episode, so if the siblings were the

initial aggressors at the outset, they necessarily remained the initial

aggressors throughout the entire episode. But Castillo is

distinguishable.

¶ 18 In that case, the defendant was in a parking lot when an

unknown assailant opened fire. Id. at ¶ 12. The defendant

retrieved a shotgun from the trunk of his car, racked it, and

returned fire. Id. at ¶¶ 12, 15. Nearby police officers rushed to the

scene and fired at the defendant, who then responded by shooting

at the officers. Id. at ¶ 16. At trial, the defendant claimed he shot

at the officers in self-defense, believing they were associated with

the initial assailant. Id. at ¶ 17. The trial court instructed on the

initial aggressor exception to self-defense, reasoning that the

defendant’s act of racking the gun could have made him the initial

aggressor with respect to the part of the incident involving the

police officers. Id. at ¶ 26.

¶ 19 The supreme court disagreed. It concluded that because the

entire episode lasted a matter of seconds, the episode could not be

separated into segments; therefore, the defendant, who was not the

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initial aggressor for the first segment, could not be the initial

aggressor for the second segment. Id. at ¶¶ 47-53.

¶ 20 But unlike in Castillo, the events in this case occurred over

several minutes with “multiple breaks in the action.” People v.

Cline, 2022 COA 135, ¶ 52. First came the events inside the

apartment, when the siblings ordered Baez-Diaz to leave and

pushed her outside. Then came the fight outside the apartment

between Barreras and Baez-Diaz. Then, finally, after that fight

ended and the siblings were retreating inside, came the altercation

between the brother and Baez-Diaz, which began with Baez-Diaz

charging at the brother. See id. at ¶ 54 (where the defendant was

charged with engaging in “sequential assaultive acts” over several

minutes, he could become the initial aggressor even if he did not

initiate the first physical conflict). Because the events did not

constitute “one unit of experience,” the jury did not have to find

that there was only one initial aggressor “as to the entire episode.”

Castillo, ¶¶ 48-49.

¶ 21 Thus, even setting aside the issue of whether Barreras and the

brother could be initial aggressors with respect to the events inside

the apartment, we conclude that the evidence was sufficient to

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support a finding that Baez-Diaz became the initial aggressor as to

the events outside and, in particular, the altercation with the

brother. The trial court therefore properly instructed on the initial

aggressor exception to self-defense. See Galvan, ¶ 32 (“If the ‘some

evidence’ standard is met, . . . the court should instruct the jury on

the exception in question.”); People v. Newell, 2017 COA 27, ¶ 28

(“It is for the jury, not the judge, to decide which witnesses and

even which version of the witnesses’ testimony is to be believed”;

thus, “[o]nce . . . the prosecution has offered evidence that the

defendant was the initial aggressor, the jury should be provided

with . . . the initial aggressor exception, and be permitted to weigh

the evidence to decide whether self-defense has been disproved.”).

III. Evidentiary Ruling

¶ 22 Baez-Diaz next asserts that the trial court reversibly erred by

permitting the jury to hear evidence that suggested she was

unhoused or complicit in uncharged misconduct. We are not

persuaded.

A. Legal Authority and Standard of Review

¶ 23 Evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of

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the action more probable or less probable than it would be without

the evidence.” CRE 401. All relevant evidence is admissible, except

as otherwise provided by constitution, statute, or rule. CRE 402;

Yusem v. People, 210 P.3d 458, 463 (Colo. 2009).

¶ 24 Relevant evidence “may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury.” CRE 403.

¶ 25 Additionally, “[e]vidence of any other crime, wrong, or act is

not admissible to prove a person’s character in order to show that

on a particular occasion the person acted in conformity with the

character,” but the evidence may be admissible for other purposes.

CRE 404(b)(1). When CRE 404(b) is triggered, a court must

determine admissibility by applying the four-part test set forth in

People v. Spoto, 795 P.2d 1314 (Colo. 1990). See People v. Owens,

2024 CO 10, ¶ 110; see also Rojas v. People, 2022 CO 8, ¶ 52 (the

applicability of CRE 404(b) depends on whether the evidence is

intrinsic or extrinsic to the charged offense).

¶ 26 “Trial courts have broad discretion in determining the

admissibility of evidence based on its relevance, its probative value,

and its prejudicial impact.” People v. Elmarr, 2015 CO 53, ¶ 20.

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Thus, we review a court’s evidentiary rulings for an abuse of

discretion. Campbell v. People, 2019 CO 66, ¶ 21. A trial court

abuses its discretion when its ruling is manifestly arbitrary,

unreasonable, or unfair, or where it is based on an erroneous view

of the law. Elmarr, ¶ 20.

¶ 27 Where, as here, a defendant objects to the admission of

evidence, we review any error in the admission of such evidence for

nonconstitutional harmless error. Pernell v. People, 2018 CO 13,

¶ 22. “Under [this] standard, an erroneous evidentiary ruling does

not require reversal unless the ruling affects the accused’s

substantial rights,” Nicholls v. People, 2017 CO 71, ¶ 17, or there is

“a reasonable probability that the court’s error contributed to [the

defendant’s] conviction.” People v. Short, 2018 COA 47, ¶ 54.

“Thus, we will reverse only if the error substantially influenced the

verdict or impaired the fairness of the trial.” Campbell, ¶ 22.

B. Analysis

¶ 28 The prosecution sought to admit recordings of Baez-Diaz’s jail

calls, which included her admission that she stabbed the siblings.

One of the recorded calls also contained her statement that, after

the incident, “the dude that I was with, that I was sleeping behind

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his truck, he popped their tires and . . . took the girl’s purse”

(challenged statement).

¶ 29 Defense counsel objected to the admission of the challenged

statement, arguing that it (1) impermissibly suggested that Baez-

Diaz was, or looked like she was, “homeless”; and (2) impermissibly

discussed uncharged misconduct of another person in violation

CRE 403 and CRE 404(b). The trial court made admissibility

findings on each statement in the recordings and found that the

challenged statement was admissible.

¶ 30 The prosecutor played the recordings for the jury and

mentioned the challenged statement during his closing argument.

¶ 31 Assuming without deciding that the admission of the

challenged statement was error, we conclude that the error was

harmless.

¶ 32 First, the challenged statement constituted a brief portion of

the four-day jury trial and was the subject of a single reference in

closing arguments. See People v. Martinez, 2020 COA 141, ¶ 43

(The erroneous admission of evidence was harmless because it

“constituted a minor portion of [the defendant’s] trial.”); People v.

Mendenhall, 2015 COA 107M, ¶ 69 (same); People v. Casias, 2012

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COA 117, ¶ 81 (Error in the admission of evidence was harmless

where the trial contained only a “few (including, sometimes only

generic) references to the inadmissible evidence.”). And the

reference itself was more of an aside; the prosecutor’s point was

focused on the preceding portion of the recording, where, according

to the prosecutor, Baez-Diaz was attempting to “justify what

happened” by falsely claiming that the siblings entered the

apartment together and immediately accosted her.

¶ 33 Second, the jury’s verdict, consisting of its conviction on one

lesser-included offense and its acquittal on the other, more serious

charges, demonstrates that, notwithstanding the admission of the

purportedly improper evidence, the jury was able to properly weigh

and evaluate the admissible evidence and the charges. See Martin

v. People, 738 P.2d 789, 795-96 (Colo. 1987) (A split verdict “is an

indication that the jurors exercised some discretion in their

deliberations and did not blindly convict the defendant based upon

inferences drawn from” improper evidence.); People v. Vanderpauye,

2021 COA 121, ¶ 39 (whether an error is harmless depends, in

part, on the impact of the improperly admitted evidence on the trier

of fact), aff’d, 2023 CO 42; People v. Delgado-Elizarras, 131 P.3d

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1110, 1112-13 (Colo. App. 2005) (Any error in the admission of

other act evidence was harmless where the defendant’s acquittal on

a greater charge and conviction on only the lesser offenses

“demonstrate that the jury based its verdicts on evidence of [the]

defendant’s conduct at the scene, and not on any conclusions

regarding [the] defendant’s propensity to engage in criminal

conduct.”); People v. Braley, 879 P.2d 410, 414-15 (Colo. App. 1993)

(There was no “suggestion in the record that the jury’s decision was

made on an improper basis,” and “[t]he fact that [the] defendant

was acquitted of the charges concerning one of the three victims

indicates that, to the contrary, the jury could fairly and properly

weigh and evaluate this evidence.”).

¶ 34 Third, we note that the jury was properly instructed that it

“must not be influenced by sympathy, bias or prejudice in reaching

[its] decision.” See People v. Carter, 2015 COA 24M-2, ¶ 59 (absent

evidence to the contrary, we presume the jury followed the court’s

instructions).

¶ 35 For these reasons, we are not convinced that any error in the

admission of the challenged statement substantially influenced the

verdict or impaired the fairness of the trial. See People v. Gaffney,

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769 P.2d 1081, 1088 (Colo. 1989) (“If a reviewing court can say with

fair assurance that, in light of the entire record of the trial, the error

did not substantially influence the verdict or impair the fairness of

the trial, the error may properly be deemed harmless.”).

IV. Disposition

¶ 36 The judgment of conviction is affirmed.

JUDGE JOHNSON and JUDGE SCHOCK concur.

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