Peo v. Hernandez

23CA0639 Peo v Hernandez 07-31-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0639
Weld County District Court No. 21CR466
Honorable Vincente G. Vigil, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Michael Laurence Hernandez,

Defendant-Appellant.

JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE DUNN
Brown and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 31, 2025

Philip J. Weiser, Attorney General, Jessica E. Ross, Senior Assistant Attorney
General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Andrea R. Gammell, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 A jury convicted defendant, Michael Laurence Hernandez, of

second degree murder and engaging in a riot. The district court

sentenced him to sixty years in prison. Hernandez appeals the

convictions and the sentence. We affirm and remand with

directions to correct the mittimus.

I. Background

¶2 After sparring on social media, Andre Amack and Justus

Strand arranged to meet in an alley to fight. Both men brought

backup; Amack arrived with Hernandez and three other men, and

Strand arrived with the victim and one other man. Once there,

Amack and Strand started fighting.

¶3 Tensions quickly escalated, resulting in Hernandez shooting

and killing the victim. During a later police interview, Hernandez

claimed he first shot the victim in the stomach because he thought

the victim was reaching for a gun. And Hernandez admitted that,

as the victim was running away, he reloaded the gun and fired two

more shots at the victim — one of which pierced the victim’s brain

and killed him.

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¶4 The prosecution charged Hernandez with second degree

murder and engaging in a riot (deadly weapon).1

¶5 Hernandez did not testify at trial, but his counsel defended on

the theory that Hernandez acted in self-defense. The jury disagreed

and convicted him as charged.

¶6 The district court sentenced Hernandez to a cumulative sixty-

year prison sentence — forty-eight years for second degree murder

consecutive to twelve years for engaging in a riot. The court also

accepted Hernandez’s admission that he violated the terms of his

deferred judgment in an unrelated case and imposed a twelve-year

prison sentence to run concurrently with the sentence in this case.

II. Self-Defense Jury Instruction

¶7 The district court instructed the jury on Hernandez’s right to

use deadly physical force in self-defense. The instruction —

tendered by the prosecution — tracked the Colorado model jury

instructions on deadly physical force self-defense and incorporated

the provocation and initial aggressor exceptions to self-defense.

1 The prosecution also charged Hernandez with two counts of

possession of a weapon by a previous offender. It later dismissed
these counts.

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¶8 Hernandez did not object to the self-defense instruction or

tender an alternative instruction.

¶9 Hernandez now contends that the district court plainly erred

by (1) failing to instruct the jury on nondeadly physical force self-

defense; (2) instructing the jury on the initial aggressor exception;

and (3) instructing the jury on provocation.

A. Standard of Review

¶ 10 A district court must correctly instruct the jury on all

applicable matters of law. Pearson v. People, 2022 CO 4, ¶ 15. We

review jury instructions de novo to determine whether the

instructions accurately informed the jury of the governing law. Id.

¶ 11 Because Hernandez didn’t object to the self-defense

instruction, we may reverse only for plain error. People v. Perez,

2024 COA 94, ¶ 26. Plain error is obvious and substantial error

that “so undermines the fundamental fairness of the trial itself as to

cast serious doubt on the reliability of the judgment of conviction.”

Id. (citation omitted).

B. Nondeadly Physical Force Self-Defense

¶ 12 Hernandez contends that the district court plainly erred by not

instructing the jury on nondeadly physical force self-defense.

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¶ 13 A person is justified in using nondeadly physical force against

another person to defend himself from what he reasonably believes

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

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

believes is necessary for that purpose. § 18-1-704(1), C.R.S. 2024.

But a person may use deadly physical force in self-defense only

when (1) he has reasonable grounds to believe, and does believe,

that he is in imminent danger of being killed or of receiving great

bodily injury; and (2) he reasonably believes that a lesser degree of

force is inadequate. § 18-1-704(2).

¶ 14 “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. 2024.

Whether physical force is considered “deadly” turns not on the

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

objective nature of the force used. People v. Opana, 2017 CO 56,

¶¶ 14-16. More specifically, the question is whether the force used

“would normally be expected to, and in fact did, produce death.” Id.

at ¶ 16.

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¶ 15 Opana is instructive. There, a jury convicted the defendant of

second degree murder after he shot his housemate in the chest at

close range, killing him. Id. at ¶¶ 3-4. The district court instructed

the jury only on deadly physical force self-defense. Id. at ¶ 6. On

appeal, the defendant argued that the district court should have

also instructed the jury on nondeadly physical force self-defense.

Id. at ¶ 7. The supreme court rejected this argument, holding that

the defendant “was clearly not entitled to” a nondeadly physical

force self-defense instruction because the “physical force actually

inflicted by the defendant upon the victim could not reasonably be

characterized as anything other than force, the intended, natural,

and probable consequence of which was to produce death.” Id. at

¶ 17 (emphasis added).

¶ 16 Despite Hernandez’s insistence that “there was certainly some

evidence” that he used nondeadly force to defend himself, there

wasn’t. Instead, as in Opana, there was no evidence from which the

jury could’ve found that the nature and degree of physical force

Hernandez used against the victim was anything other than deadly

physical force. During his police interview, Hernandez admitted

that he shot the victim in the stomach because he thought the

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victim was reaching for a gun. Then, as the victim was running

away, the magazine fell out of Herandez’s gun. So Hernandez

picked it up, reloaded the gun, and fired two more shots at the

victim, one of which struck the victim’s head and killed him. No

evidence or testimony at trial told a different story. And shooting at

the victim multiple times — the force that Hernandez used —

“would normally be expected to, and in fact did, produce death.” Id.

at ¶ 16.

¶ 17 Thus, Hernandez was not entitled to a nondeadly physical

force self-defense instruction.2

C. The Initial Aggressor Exception

¶ 18 Hernandez next argues that there was insufficient evidence to

support instructing the jury on the initial aggressor exception to

self-defense.

¶ 19 When a district court instructs the jury on self-defense, it

should also instruct on the initial aggressor exception to self-

defense if there’s “some evidence” to support the exception. Galvan

2 Having so concluded, we needn’t address the People’s argument

that nondeadly physical force self-defense can never be asserted as
an affirmative defense to second degree murder.

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v. People, 2020 CO 82, ¶ 25. “[S]ome evidence” means evidence

sufficient to support a reasonable inference that the defendant was

the initial aggressor; that is, the person who “initiated the physical

conflict by using or threatening imminent use of unlawful physical

force.” People v. Roberts-Bicking, 2021 COA 12, ¶¶ 31, 33.

¶ 20 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.

¶ 21 We disagree with Hernandez that “there was no evidence” that

he was the initial aggressor. Strand testified that as he and Amack

were fighting, and before anyone had displayed a gun, a car

“pull[ed] up” and “some guys got out with masks” and “pull[ed] out

guns.” While another witness claimed the victim lifted his shirt and

flashed a gun, Strand testified that he didn’t see the victim “pull,”

“show,” or “point a gun at anybody.” Thus, conflicting evidence was

presented as to whether Hernandez — who was with the masked

group arriving in the car — initiated the physical conflict by

brandishing his gun before the victim allegedly threatened the use

of unlawful physical force. Cf. Roberts-Bicking, ¶¶ 33-36 (noting

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that the defendant was the initial aggressor when, after being

confronted by the victims, he “brandished a pistol” and cursed

because “merely producing the pistol during an argument was

sufficient to warrant instructing the jury on initial aggressor

principles”).

¶ 22 Because the accounts were conflicting as to whether the victim

or Hernandez was the initial aggressor, some evidence supported

the initial aggressor exception.

D. The Provocation Exception

¶ 23 Hernandez similarly contends that the district court plainly

erred by instructing the jury on provocation because no evidence

supported it.

¶ 24 A person may not use physical force in self-defense if, “[w]ith

intent to cause bodily injury or death to another person, he

provokes the use of unlawful physical force by that other person.”

§ 18-1-704(3)(a). This exception applies when (1) the other person

uses unlawful physical force against the defendant; (2) the

defendant provoked the use of such force; and (3) the defendant

intended the provocation to goad the other person into attacking

him to provide a pretext to injure or kill that person. Galvan, ¶ 19.

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¶ 25 As before, the district court should instruct the jury on the

provocation exception if there’s “some evidence” to support it, id. at

¶ 25, and we view the evidence in the light most favorable to giving

the instruction, id. at ¶ 33.

¶ 26 Viewing the evidence in that light, while perhaps a closer call,

we conclude that some evidence supported the provocation

instruction. The evidence showed that Hernandez went to the fight

armed and ready to act as backup for Amack. Though conflicting,

evidence was presented that the victim didn’t step in and reach for

the gun in his waistband until after members of Hernandez’s group

encroached on the fight. A video taken of the fight similarly shows

one of the men in Hernandez’s group yelling at and walking toward

the men on the ground. After the encroachment, the victim

reportedly reached for the gun in his waistband, prompting

Hernandez to shoot the victim in the stomach.

¶ 27 From this evidence, a jury could reasonably infer that

Hernandez and his group came armed to the fight and either

inserted themselves into or feigned involvement in the fight to goad

the victim to intervene as a pretext to shoot him. See Perez, ¶ 31

(concluding that a provocation instruction was warranted because,

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although “the provocation evidence was weak,” the “some evidence”

standard includes “any credible, even if improbable” evidence).

¶ 28 At the very least, given the conflicting accounts presented, the

provocation exception was not so clearly inapplicable that the

district court should’ve struck the exception from the self-defense

instruction without the benefit of an objection. See id. at ¶ 26. And

because the provocation exception was neither argued nor

mentioned during the trial, it hardly impacted the reliability of the

conviction or the fairness of the trial. See id. at ¶¶ 26, 32.

¶ 29 We therefore conclude that the district court didn’t plainly err

by instructing the jury on the provocation exception to self-defense.

III. Consecutive Sentences

¶ 30 Hernandez says that his convictions for second degree murder

and engaging in a riot were based on identical evidence and,

therefore, the district court erred by imposing consecutive

sentences.

¶ 31 We review the district court’s decision to impose consecutive

sentences for an abuse of discretion. Chirinos-Raudales v. People,

2023 CO 33, ¶ 23.

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¶ 32 Though a district court ordinarily retains discretion to impose

either concurrent or consecutive sentences when a defendant is

convicted of multiple counts, section 18-1-408(3), C.R.S. 2024,

requires concurrent sentences when two or more convictions are

based on identical evidence and involve a single victim. Juhl v.

People, 172 P.3d 896, 899 (Colo. 2007).

¶ 33 But the statute requires a district court to impose concurrent

sentences only when the evidence supports “no other reasonable

inference than that the convictions were based on identical

evidence.” Id. at 900. And convictions are not based on identical

evidence when the charges result “from two or more acts fairly

considered to be separate acts.” Id. at 902.

¶ 34 Here, the second degree murder count required the

prosecution to prove that Hernandez knowingly caused the death of

the victim. § 18-3-103(1)(a), C.R.S. 2024. By contrast, the

engaging in a riot count had no specific victim and required the

prosecution to prove, in relevant part, that Hernandez engaged in “a

public disturbance involving an assemblage of three or more

persons which by tumultuous and violent conduct create[d] grave

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danger of damage or injury to property or persons.”3 §§ 18-9-

101(2), 18-9-104(1), C.R.S. 2024.

¶ 35 The evidence supporting each conviction is not identical and

was based on different acts. To illustrate, the evidence that

Hernandez shot the victim and did not act in self-defense supported

the second degree murder charge. Separate from that, the evidence

that Hernandez arrived armed at a fight where several people were

assembled, and that he drew his gun and fired multiple shots —

independent of the shot that killed the victim — supported the

conviction for engaging in a riot. See Juhl, 172 P.3d at 902; see

also Chirinos-Raudales, ¶ 25.

¶ 36 Because Hernandez’s convictions were not based on identical

evidence or the same acts, the district court retained discretion to

impose consecutive sentences.

IV. Mittimus Correction

¶ 37 At the sentencing hearing, the district court imposed a twelve-

year prison sentence in an unrelated case to run concurrently with

3 Engaging in a riot is a class 4 felony “if in the course of rioting the

actor employs a deadly weapon.” § 18-9-104(1), C.R.S. 2024. But
Hernandez doesn’t draw a distinction between the crime itself and
the sentence enhancer. Accordingly, neither do we.

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Hernandez’s sentence in this case. The mittimus, however, states

that the twelve-year sentence runs consecutively.

¶ 38 The parties agree — as do we — that when “the language of

the mittimus is inconsistent with the sentencing court’s oral ruling,

it is proper to remand the case to correct the mittimus to reflect the

court’s ruling.” People v. Mendenhall, 2015 COA 107M, ¶ 84. We

therefore remand with directions to correct the mittimus to show

that Hernandez’s twelve-year sentence in the unrelated case runs

concurrently with the sentence in this case. See Crim. P. 36.

V. Disposition

¶ 39 We affirm the judgment and remand with directions to correct

the mittimus.

JUDGE BROWN and JUDGE SCHOCK concur.

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