Peo v. Ladeira

23CA1250 Peo v Ladeira 03-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1250
El Paso County District Court No. 22CR3110
Honorable William Moller, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Daniel Ladeira Jr.,

Defendant-Appellant.

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

Division III
Opinion by JUDGE TOW
Dunn and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 6, 2025

Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

The Noble Law Firm, LLC, Antony Noble, Bryan Collins, Lakewood, Colorado,
for Defendant-Appellant
¶1 Defendant, Daniel Ladeira Jr., appeals his conviction entered

after a jury verdict, his sentence, and the trial court’s order

granting restitution. We reverse the judgment insofar as it imposed

consecutive sentences and remand the case to the trial court to

amend the mittimus. We otherwise affirm the judgment and the

restitution order.

I. Background

¶2 At trial, the jury heard evidence that would support the

following findings.

¶3 Ladeira engaged in a verbal altercation with his neighbor

Brittany Milner, after she yelled at him to slow down while driving

down the street. Milner called her husband, James Villegas, who

was inside their home, and asked him to come outside. By the time

Villegas made it to the street, Ladeira had gone inside his home

with his girlfriend.

¶4 Villegas and Milner briefly spoke to a neighbor before

returning to their home. After a few minutes, Ladeira emerged from

his home and stood on his porch, which Villegas witnessed through

their front window. Villegas approached Ladeira’s property and,

from the street, demanded he apologize to Milner. Ladeira then

1
went back inside, emerged shortly thereafter with a gun at his side,

and told Villegas, “[s]tep on my property so you can make my day.”1

Villegas responded that he was not on Ladeira’s property and,

realizing that Ladeira had a gun in his hand, he turned back toward

his home to call the police. Ladeira then shot multiple rounds in

immediate succession, one of which hit Villegas. After police

arrived on the scene, Villegas was taken to the hospital, where he

was treated for injuries to his right hip and lower extremities, and

was released after ten days.

¶5 At the conclusion of both parties’ cases-in-chief, the trial court

granted Ladeira’s request to instruct the jury on self-defense. In

response, the prosecution asked to include an initial aggressor

instruction, arguing that “[by] bringing out the gun on his

own . . . the jury could conclude [Ladeira] is the original aggressor.”

The trial court agreed, and over defense counsel’s objection, it

included language about the initial aggressor exception in the jury

instruction for the affirmative defense of self-defense.

1 The neighbor also testified that Ladeira made this statement.

2
¶6 A jury found Ladeira guilty of three felonies (attempted first

degree murder, first degree assault, and illegal discharge of a

firearm) and three misdemeanors (telephone obstruction, false

imprisonment, and driving under the influence).

¶7 Ladeira’s sentencing hearing took place on June 8, 2023. In

preparation for the hearing, the trial court reviewed Villegas’s victim

impact statement, in which he requested restitution but indicated

that he did not know the specific amount because he was “still

receiving [medical] bills.”

¶8 During the sentencing hearing, the prosecution noted that the

sentencing for attempted first degree murder and first degree

assault should “be run concurrent” because “they arise out of the

same conduct.” The court inquired as to whether the prosecution

believed the attempted murder and assault charges were “separate

crimes of violence,” thereby dictating that the court order

consecutive sentencing. See § 18-1.3-406(1)(a), C.R.S. 2022.2 The

prosecution explained that the felonies were not separate crimes of

2 In 2023, the General Assembly amended the relevant statutory

language. See § 18-1.3-406(1)(b), C.R.S. 2024. We refer to the
language in effect at the time of sentencing.

3
violence and the sentences for these counts should run

concurrently because “they come from the same shooting,” and that

“both the charges found by the jury went to the exact same actions

by the defendant with the same victim.”

¶9 However, later in the hearing, the prosecution backtracked on

this position and instead asserted that “if different evidence is

required to establish guilt of each of the multiple offenses, they are

separate crimes for the purpose of [section 18-1.3-406].” The trial

court concluded that the “jury relied upon different evidence based

upon different factors that were required to be proven by the

People,” and it sentenced Ladeira on each count to twenty-four

years in the custody of the Department of Corrections for the

attempted first degree murder and first degree assault convictions,

to be served consecutively.

¶ 10 At the conclusion of the sentencing hearing, the court also

granted the prosecution forty-two days in which to request

restitution and Ladeira twenty-one days in which to object. On July

19, 2023, the prosecution requested $14,301.23 in restitution.

Ladeira timely filed an objection to the restitution amount and

requested a hearing on the matter. The court scheduled the

4
hearing for August 31, 2023, which was seven days before the

statutory deadline expired on September 7, 2023. See § 18-1.3-

603(1)(b), C.R.S. 2024 (when determination of the amount of

restitution has been deferred at sentencing, that amount must

generally be determined within ninety-one days).

¶ 11 The court ordered the prosecution to issue a writ for Ladeira’s

attendance at the hearing, but the prosecution failed to do so, and

Ladeira was not present. Because of a previously scheduled

division closure and lack of available coverage, the court was

unable to reschedule the hearing for the following week. Over

defense counsel’s objection, the court found that, based on its lack

of availability, “there [was good] cause to continue [the order of

restitution] one week to the 14th [of September].”

¶ 12 During the rescheduled hearing, defense counsel renewed its

objection to the court’s extension of the restitution deadline, which

the court overruled. The court imposed $12,739.35 in restitution.

¶ 13 This appeal followed.

II. Initial Aggressor

¶ 14 Ladeira argues that the trial court erred by instructing the

jury on the initial aggressor exception to self-defense. We disagree.

5
A. Standard of Review and Applicable Law

¶ 15 “The trial court has a duty to correctly instruct the jury on all

matters of law for which there is sufficient evidence to support

giving instructions.” Castillo v. People, 2018 CO 62, ¶ 34. This

includes deciding “whether there is sufficient evidence to warrant a

jury instruction related to an affirmative defense and any

exceptions to such affirmative defense.” Id. “Whether sufficient

evidence exists to support the requested instruction is a question of

law that we review de novo.” Id. at ¶ 32. We view the evidence in

the light most favorable to giving the challenged instruction.

Galvan v. People, 2020 CO 82, ¶ 33.

¶ 16 “For certain crimes that require intent, knowledge, or

willfulness, self-defense may be raised as an affirmative defense.”

Castillo, ¶ 38; see also § 18-1-704(1), C.R.S. 2024 (defining the

affirmative defense of self-defense). The prosecution can defeat a

claim of self-defense by “prov[ing] beyond a reasonable doubt that

an exception to self-defense applies.” Castillo, ¶ 40. The initial

aggressor exception states that “a person is not justified in using

physical force if . . . [they are] the initial aggressor.”

§ 18-1-704(3)(b). “An initial aggressor instruction is warranted

6
when the evidence suggests the defendant initiated the physical

conflict by using or threatening imminent use of unlawful physical

force.” People v. Roberts-Bicking, 2021 COA 12, ¶ 33.

¶ 17 “[W]hen the trial court instructs the jury on the affirmative

defense of self-defense, it should instruct the jury on . . . any . . .

exception to that defense if the exception is supported by some

evidence.” Galvan, ¶ 25 (emphasis added). However, in the

absence of some evidence in support of a self-defense exception,

“trial courts must guard against giving superfluous instructions

that limit the affirmative defense of self-defense, as such

instructions may be prejudicial.” Id. at ¶ 32.

B. Analysis

¶ 18 As part of its instruction on the affirmative defense of self-

defense, the trial court instructed the jury, over Ladeira’s objection,

that

[t]he defendant was legally authorized to use
physical force upon another person without
first retreating if . . . he was not the initial
aggressor, or, if he was the initial aggressor, he
had withdrawn from the encounter and
effectively communicated to the other person
his intent to do so, and the other person
nevertheless continued or threatened the use
of unlawful physical force.

7
¶ 19 Ladeira contends that this instruction was improper “because

there was no evidence admitted at trial to support a finding that

Ladeira was the initial aggressor.” The People point out that, upon

being confronted by Villegas, Ladeira went inside his home, came

back out with a handgun, urged Villegas to “step on [his] property”

so that Villegas could “make [Ladeira’s] day,” and then shot Villegas

as he turned around to walk back to his home.

¶ 20 While verbal confrontation alone is insufficient to make a party

the initial aggressor, evidence of a defendant’s other actions may be

sufficient to warrant the instruction. People v. Griffin, 224 P.3d

292, 300 (Colo. App. 2009). In Griffin, a division of this court held

that when the defendant left an argument and returned with a gun,

the initial aggressor instruction was appropriate. Id. The evidence

introduced in Griffin is comparable to what the prosecution

presented in this case: after Villegas told Ladeira “they needed to

have a conversation,” Ladeira went inside and returned displaying a

handgun. That action alone was sufficient to warrant the initial

aggressor instruction. See id.

¶ 21 Ladeira contends instead that this case is more similar to

Castillo. There, the defendant, over the course of “a matter of

8
seconds, with no break in the action,” racked his gun and fired.

Castillo, ¶¶ 47-48. The supreme court rejected the district court’s

view that racking the gun and firing were separable incidents and

that the former could be considered an act of initial aggression. Id.

at ¶¶ 46-47. Ladeira argues that, like the actions of the defendant

in Castillo, his actions were one continuous episode; thus, he could

not be considered the initial aggressor.

¶ 22 Further, relying on People v. Manzanares, 942 P.2d 1235,

1241 (Colo. App. 1996), Ladeira argues that because his actions

were one continuous episode, “the only issue was ‘whether [Ladeira]

committed any of the crimes charged and, if so, whether the

conduct was justified because he had acted in self-defense.’”

¶ 23 Ladeira’s reliance on Castillo and Manzanares is unavailing.

Unlike in Castillo, there was evidence here that the act of displaying

the gun and the threatening language Ladeira used while doing so

were not one continuous episode. There was evidence from which

the jury could have inferred that these actions did not take place

over a matter of seconds but, rather, over several minutes. For

example, Ladeira’s girlfriend testified he was outside for “maybe five

to ten minutes.” And Milner described a protracted phone call with

9
Villegas while he was engaged with Ladeira outside, including

hearing Villegas, in apparent response to Ladeira’s threat, tell

Ladeira that “[he was] not on [his] property.” At that point, Milner

discontinued their call so she could call the police and then heard

the gunshots.

¶ 24 Moreover, in Castillo, the evidence showed that the defendant

cursed at someone, popped the trunk on the defendant’s car, and

then got out of the car. The supreme court concluded that this

evidence did not demonstrate a threat to use unlawful physical

force. In contrast, Ladeira directly threatened unlawful force when

he told Villegas to step on his property so he could “make [Ladeira’s]

day.” To the extent Ladeira was referencing the so-called “make my

day” law, § 18-1-704.5, C.R.S. 2024, that statute permits the use of

deadly force when someone has unlawfully entered a dwelling with

the intent to commit a crime therein; it does not apply to merely

walking onto someone’s property. Thus, Ladeira’s comments,

viewed in the light most favorable to the People, were a threat to use

unlawful force.

¶ 25 Ladeira’s reliance on Manzanares is also misplaced because

there, the evidence was undisputed that the defendant himself had

10
not engaged in the initial altercation, and as a result “nothing that

occurred in that fight [upon defendant’s return] provided a basis for

giving the instruction.” Manzanares, 942 P.3d at 1241. Here, the

record clearly indicates that Ladeira was part of the initial

altercation with Villegas when he exited his home.

¶ 26 In sum, the evidence that Ladeira entered his home, returned

with a gun, and threatened unlawful force against Villegas, and

then opened fire after Villegas responded to the threat, warranted

the initial aggressor instruction. See Griffin, 224 P.3d at 300.

¶ 27 Because the initial aggressor exception was supported by

some evidence, the court did not err by giving the instruction to the

jury.

III. Consecutive Sentencing

¶ 28 Ladeira next asserts that the trial court erred by imposing

consecutive sentences for attempted first degree murder and first

degree assault. We agree.

A. Standard of Review and Applicable Law

¶ 29 “We review the trial court’s statutory interpretation and its

application of mandatory sentencing statutes de novo.” People v.

Reed, 2013 COA 113, ¶ 69. But “[w]e review a trial court’s

11
sentencing decision for an abuse of discretion.” People v. Herrera,

2014 COA 20, ¶ 16. “A trial court abuses its discretion only when

its ruling is manifestly arbitrary, unreasonable, or unfair.” Reed,

¶ 42 (quoting People v. Pearman, 209 P.3d 1144, 1145 (Colo. App.

2008)). “A trial court also abuses its discretion when it misapplies

the law.” Chirinos-Raudales v. People, 2023 CO 33, ¶ 23.

¶ 30 Under section 18-1.3-406(1)(a), C.R.S. 2022, “a court shall

sentence a person convicted of two or more separate crimes of

violence arising out of the same incident so that [their] sentences

are served consecutively rather than concurrently.” Where two or

more offenses are brought in a single prosecution, a trial court

must impose concurrent sentences when those charges are

supported by identical evidence, and do not involve multiple

victims. § 18-1-408(3), C.R.S. 2024.

¶ 31 Determining if identical evidence supports two or more crimes

is an evidentiary test not an elemental test. Juhl v. People, 172 P.3d

897, 902 (Colo. 2007). “[W]hether two charges are supported by

identical evidence is not a strict analysis to determine if one

particular fact is necessary to one conviction, but not the

other . . . .” Id. Rather, identical evidence “turns on whether the

12
charges result from the same act, so that the evidence of the act is

identical, or from two or more acts fairly considered to be separate

acts, so that the evidence is different.” Id.

B. Analysis

¶ 32 Ladeira argues that the trial court was required to impose

concurrent sentences for attempted first degree murder and first

degree assault because both convictions were supported by

identical evidence. The People contend that the trial court was

correct in imposing consecutive sentences because “differing

elements between the two charges required different — and

therefore not identical — evidence.” Specifically, the People assert

that the convictions were not based on identical evidence because

(1) attempted first degree murder does not require proof of bodily

injury, whereas first degree assault does; and (2) attempted murder

requires proof of deliberation, whereas first degree assault does not.

¶ 33 As noted, however, whether a conviction is supported by

identical evidence is an evidentiary, not elemental, test. Id. In Juhl,

the supreme court held that the defendant’s convictions for first

degree assault and vehicular assault, both of which arose out of

defendant’s head-on collision with the victim while engaged in a

13
high-speed chase to evade police, “were supported by identical

evidence because both convictions were based on one distinct act

rather than multiple acts separated by time or place.” Id. at 898.

Here, therefore, when applying section 18-1-408(3), the trial court

should have considered whether “proof of the elements of both

offenses . . . was necessarily inferred from the same fund of

evidence.” People v. Espinoza, 2020 CO 43, ¶ 13.

¶ 34 At trial, the prosecution presented evidence that Ladeira went

inside his home, came back outside with a gun, threatened Villegas,

and fired multiple shots in succession, one of which struck Villegas

and caused serious bodily injury. During its closing argument, the

prosecution addressed this evidence and referred to it as proof of

the necessary elements for attempted first degree murder and first

degree assault. Finally, the prosecution presented testimony that

this series of events was a single, criminal episode, rather than

distinct acts. See § 18-1-408(3). Thus, because Ladeira’s

convictions for attempted first degree murder and first degree

assault were supported by the “same fund of evidence,” see

Espinoza, ¶ 13, the trial court abused its discretion when it

“incorrectly interpreted ‘identical evidence’ to entail an analysis of

14
the evidence necessary to prove the elements of the offenses

charged.” Juhl, 172 P.3d at 902.

IV. Restitution

¶ 35 Finally, Ladeira asserts that the court erred when it extended

its own deadline to order the amount of restitution owed.3 We

disagree.

A. Standard of Review and Applicable Law

¶ 36 “The proper interpretation of the restitution statute is a

question of law that we review de novo.” People v. Weeks, 2020

COA 44, ¶ 11 (Weeks I), aff’d, 2021 CO 75 (Weeks II). “However,

the issue of whether good cause exists to extend the ninety-one-day

deadline to determine restitution . . . is reviewed for an abuse of

discretion.” Id.

¶ 37 Every order of conviction must include one of four types of

restitution orders. § 18-1.3-603(1). Where the information to

3 Ladeira also argues that the trial court erred in multiple ways at

the sentencing hearing when it gave the prosecution forty-two days
to request restitution. However, Ladeira’s claims in his opening
brief are single-sentence, conclusory assertions, and he does not
flesh out these arguments until his reply brief. Because Ladeira
waited until his reply brief to develop these arguments, we decline
to consider them. See People v. Salinas, 55 P.3d 268, 270 (Colo.
App. 2002).

15
determine the amount of restitution is not available at sentencing,

the court shall issue “[a]n order that the defendant is obligated to

pay restitution, but that the specific amount of restitution shall be

determined within the ninety-one days immediately following the

order of conviction, unless good cause is shown for extending the

time period by which the restitution amount shall be determined.”

§ 18-1.3-603(1)(b) (emphasis added). “[A]ny finding of good cause

must be made expressly and before the court’s deadline expires.”

Weeks II, ¶ 40.

B. Analysis

¶ 38 Ladeira argues the trial court erred by extending the

restitution deadline beyond the statutorily allowed ninety-one days

“because the prosecution’s failure to issue a writ for Ladeira’s

attendance at the scheduled restitution hearing was not good cause

for an extension of the deadline.” See § 18-1.3-603(1)(b). The

People counter that the court granted the extension because of the

court’s closure, which is a sufficient basis for a finding of good

cause. We agree with the People.

¶ 39 “[A] district court’s finding of good cause must rest on the

specific facts of the case.” Weeks I, ¶ 21. Generally, a mistake on

16
the part of the prosecutor, without more, is insufficient to issue a

good cause extension. See People v. Turecek, 2012 COA 59, ¶ 14

(finding the prosecutor’s failure to adhere to the court’s instructions

and timely file an amended notice was not good cause for issuing an

extension to determine the amount of restitution owed), overruled

on other grounds by Weeks II, ¶ 47 n.16 (overruling several Colorado

court of appeals cases to the extent that they are inconsistent with

the holding in Weeks II). But certain circumstances outside the

control of the parties or court, such as “the court’s docket,

counsel’s schedules, or the complexity of the dispute [may] warrant

a finding of good cause for extending the court’s deadline.”

Weeks II, ¶ 44.

¶ 40 The court’s statutory deadline to order restitution expired on

September 7, 2023. On August 31, 2023, the parties attended a

hearing to discuss the restitution requested but were unable to

proceed because the prosecution failed to issue a writ for Ladeira’s

attendance. Based on a pre-scheduled court closure and lack of

available coverage, the hearing could not be rescheduled for the

following week, and the court found there was good cause to extend

the restitution deadline to September 14, 2023.

17
¶ 41 We recognize that it was the prosecution’s initial misstep in

failing to issue the writ that prompted the subsequent extension of

the restitution deadline. However, the court’s closure and lack of

coverage was the ultimate hurdle that required the extension to go

beyond the statutory deadline, which the court explicitly recognized

on the record as good cause for extending the deadline. Cf. Weeks

I, ¶ 27 (“The trial court’s ruling did not explain, and the record does

not show, what good cause, if any, existed for that inordinate

delay.”). Thus, we cannot find that the trial court abused its

discretion by finding good cause to extend the hearing date beyond

the ninety-first day.

V. Disposition

¶ 42 We reverse the judgment insofar as it imposed consecutive

sentences. The case is remanded to the trial court for amendment

of the mittimus to reflect concurrent sentences for attempted first

degree murder and first degree assault. We affirm the judgment

and restitution order in all other respects.

JUDGE DUNN and JUDGE MEIRINK concur.

18