Peo v. Villegas-Ortega

22CA1509 Peo v Villegas-Ortega 06-05-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1509
City and County of Denver District Court No. 20CR3893
Honorable Brian R. Whitney, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Oscar D. Villegas-Ortega,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE GROVE
Fox and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced June 5, 2025

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

Law Office of Mark Burton, P.C., K. Mark Burton, Denver, Colorado, for
Defendant-Appellant
¶1 Defendant, Oscar D. Villegas-Ortega, appeals his judgment of

conviction upon a jury verdict finding him guilty of murder in the

first degree (extreme indifference), first degree assault (deadly

weapon), and reckless manslaughter. We reverse and remand the

case for a new trial.

I. Background

¶2 Based on the evidence presented at trial, a jury could find the

following facts.

¶3 Villegas-Ortega attended a birthday party for the one-year-old

daughter of his cousin, Karina Lujan, at a restaurant near

downtown Denver. The party was also attended by Edward

Armenta, Lujan’s ex-boyfriend and the one-year-old’s father.

¶4 Around fifty friends and family attended the party, which had

a band, a DJ, and an open bar, and lasted from three p.m. until

midnight.

¶5 At one point, Villegas-Ortega danced with Lujan, his cousin,

and Armenta noticed. After the dance, Armenta and his friends

confronted Villegas-Ortega and told him he should not be dancing

with Lujan. After a few additional interactions, Villegas-Ortega’s

father signaled to his son that they should leave the party because

1
Armenta and his friends were “trying to start stuff.” (For his part,

Armenta denied the dance upset him or his friends or caused any

confrontation. He claimed that it was instead Villegas-Ortega who

“wasn’t happy.”)

¶6 A number of men — Villegas-Ortega, his father, Armenta,

Armenta’s brother, his friend Fausto Martinez, and others — ended

up outside the front of the restaurant, where a melee broke out.

Villegas-Ortega, who testified at trial, said he and his father were

surrounded when he saw someone “about to pull out a gun, so I

pulled my gun out.” More fighting ensued, shots were fired, and

someone brandished a knife. Martinez was fatally shot and

Armenta and his brother suffered knife wounds.

¶7 As relevant to this appeal, the prosecution charged Villegas-

Ortega with the first degree murder of Martinez under two

theories — (1) after deliberation and (2) extreme indifference. Later,

it amended the complaint to add counts of second degree assault,

naming Armenta as the victim, and first degree assault, naming

Armenta’s brother as the victim. After a trial, at which Villegas-

Ortega maintained that he acted in self-defense, the jury found

Villegas-Ortega guilty of extreme indifference murder, reckless

2
manslaughter (which was submitted to the jury as a lesser included

offense to the charge of first degree murder after deliberation), and

first degree assault. The jury acquitted Villegas-Ortega of first

degree murder after deliberation, the lesser included offense of

second degree murder, and second degree assault. The trial court

sentenced Villegas-Ortega to a controlling sentence of life in prison

without parole. This appeal followed.

II. Jury Instructions

¶8 Because numerous people were involved in the fight, Villegas-

Ortega contends that the court reversibly erred when it rejected a

defense-tendered jury instruction that would have explicitly

directed the jury to consider the totality of the circumstances when

evaluating his claim of self-defense. He also argues that the trial

court plainly erred when, part way through deliberations, it

instructed the jury that it should consider the totality of the

circumstances with respect to first degree murder after deliberation

and the lesser included second degree murder charge while failing

to apply that supplemental instruction to the charges of extreme

3
indifference murder, reckless manslaughter, and first degree

assault. We agree that reversal is required.1

A. Standard of Review and Applicable Law

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

instructions accurately informed the jury of the governing law.

Riley v. People, 266 P.3d 1089, 1092 (Colo. 2011). When defense

counsel fails to object, we review the issue for plain error. Hagos v.

People, 2012 CO 63, ¶ 14. We reverse if the error “so undermined

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

doubt on the reliability of the judgment of conviction.” People v.

Miller, 113 P.3d 743, 750 (Colo. 2005) (quoting People v. Sepulveda,

65 P.3d 1002, 1006 (Colo. 2003)). As applied to jury instructions,

the defendant must demonstrate not only that the instruction

affected a substantial right, but also that the record reveals a

reasonable possibility that the error contributed to his conviction.

Id.

1 Because it is unlikely to arise in the same manner on retrial, we

do not reach Villegas-Ortega’s unrelated contention that the court
allowed the prosecution to improperly impeach him as to whether
he was allowed to possess a firearm. If it does arise, the trial court
retains discretion to rule under those circumstances. See People v.
Davis, 312 P.3d 193, 196-97 (Colo. App. 2010), aff’d, 2013 CO 57.

4
¶ 10 The trial court has a duty to instruct the jury on all matters of

law applicable to the case. People v. Garcia, 28 P.3d 340, 343 (Colo.

2001) (citing Hansen v. State Farm Mut. Auto. Ins. Co., 957 P.2d

1380, 1384 (Colo. 1998)). A defendant is entitled to an instruction

on his theory of defense. People v. Tippett, 733 P.2d 1183, 1195

(Colo. 1987). It is not error, however, for a trial court to refuse to

give a defense theory instruction when the contents of that

instruction are embodied in other instructions given by the trial

court. Id. We consider all the instructions given by the trial court

together to determine whether they properly informed the jury.

People v. Trujillo, 83 P.3d 642, 645 (Colo. 2004); Tippett, 733 P.2d at

1195.

B. Additional Facts

¶ 11 The defense’s theory of the case was that Villegas-Ortega acted

in self-defense. Before trial, counsel tendered two jury instructions

regarding self-defense in a multiple assailants situation.

¶ 12 The first proposed instruction (the apparent necessity

instruction) stated:

It is fundamental that the law of self-defense,
which is emphatically a law of necessity,
involves the question of one’s right to act upon

5
appearances, even though such appearances
may prove to have been deceptive. Apparent
necessity, if well grounded and of such a
character as to appeal to a reasonable person,
under like conditions and circumstances, as
being sufficient to require action, justifies the
application of the doctrine of self-defense to
the same extent as actual or real necessity.

The prosecutor objected to the instruction, arguing that the

instructions “as a whole will cover this apparent necessity issue and

defense can argue it in closing.” The court agreed and rejected the

instruction, explaining that

I’ll be honest with you. I — I find that
instruction confusing. It is the law, I will give
it that, and I will allow you to argue that to the
point where you can say that apparent
necessity is — I don’t know, I — Basically what
you’re saying is don’t look at this in retrospect;
look at it as if you were — It’s so close to the
Golden Rule, but that’s why I’m worried about
it, so I — I think I can allow it to be argued but
I’m not going to put it in as an instruction of
the Court.

¶ 13 The second proposed instruction (the totality of circumstances

instruction) read as follows:

The totality of circumstances, including the
number of persons reasonably appearing to be
threatening the accused, must be considered
by the trier of fact in evaluating the
reasonableness of the accused’s belief in the
necessity of defensive action and the

6
reasonableness of force used by him to repel
the apparent danger.

The court rejected this instruction as well, ruling that “pointing [the

jury] directly at only one thing” would be confusing in light of the

fact that the jury would necessarily have to consider the totality of

the circumstances when it decided whether to apply the provocation

exception to the affirmative defense of self-defense and when it

determined the “reasonableness” of Villegas-Ortega’s actions.

¶ 14 At the close of trial, the court instructed the jury on the

affirmative defense of self-defense with respect to the offenses

requiring a mental state of “intentional” or “knowing,” and it

provided similar instructions on “the question of self-defense” for

the offenses requiring a mental state of “extreme indifference” or

“recklessness.” See People v. Pickering, 276 P.3d 553, 555-57 (Colo.

2011). The language differed slightly between these categories of

offenses because some of the instructions identified an affirmative

defense and others described an element-negating traverse.

Nonetheless, each of the self-defense instructions provided that

under certain circumstances a person may use deadly physical

force against another person without first retreating if he does so in

7
order to defend himself from what he reasonably believes to be the

use or imminent use of unlawful physical force “by that other

person.”

¶ 15 The instructional reference to “that other person” — in the

singular — prompted a question from the jury during deliberations:

“Does the use of the phrase ‘that other person’ (per [Instruction

No. ]6, line 1) necessitate that the other person was the deceased

(Fausto Martinez) to justify or warrant self-defense?” (Instruction

No. 6 set forth the affirmative defense of self-defense specific to the

charges of first degree murder after deliberation and second degree

murder.)

¶ 16 The trial court agreed that Instruction No. 6 contained an

“incorrect statement of law,” and that it should have stated that

someone other than the person who was shot could be the one

using or imminently using unlawful physical force. After reviewing

the model jury instructions, the prosecutor suggested that the court

could “cure” the instruction’s failure to reference the totality of the

circumstances by adding “or by persons acting in concert with that

other person” to the instruction. Defense counsel pointed out that

she had “originally tendered a totality of the circumstances

8
instruction” to the court and “maintained that that’s an appropriate

instruction.” But she agreed with the answer that the court

proposed, which read as follows:

In addition to Instruction 6, Paragraph 1, you
are to consider the totality of circumstances,
including the number of persons reasonably
appearing to be threatening the defendant.

“You should also insert the following after
person in Paragraph 1

“or by persons acting in concert with that
other person[.]”

¶ 17 Thus, as edited by the court’s response to the jury’s question,

Instruction No. 6 would have read in pertinent part:

The defendant was legally authorized to use
deadly physical force upon another without
first retreating if:

1. he used that deadly physical force in order
to defend himself from what he reasonably
believed to be the use or imminent use of
unlawful physical force by that other person,
or by persons acting in concert with that other
person.

(Emphasis added.)

¶ 18 However, while the court corrected Instruction No. 6, no one

recognized that the “other person” language was also missing from

9
the other instructions addressing self-defense — whether as an

affirmative defense or a traverse. As a result, not only did the

instructions as a whole lack a general “totality of the

circumstances” or “apparent necessity” instruction (or any other

language to that effect), but the instructions addressing Villegas-

Ortega’s claim of self-defense with respect to extreme indifference

murder, reckless manslaughter, and first degree assault failed to

direct the jurors that they could consider “persons acting in

concert” with the victim. The jury acquitted Villegas-Ortega of first

degree murder after deliberation and second degree murder, and it

found him guilty of extreme indifference murder, first degree

assault, and reckless manslaughter. (The jury also acquitted

Villegas-Ortega of the second degree assault charge.)

C. Analysis

¶ 19 Riley indicated that a jury must consider the totality of the

circumstances when evaluating a defendant’s claim of self-defense

in a case involving multiple assailants. 266 P.3d at 1094 (holding

that People v. Jones, 675 P.2d 9, 14 (Colo. 1984), “stands for the

principle that a jury must consider the totality of the

circumstances, including the number of persons reasonably

10
appearing to be threatening the defendant,” when evaluating a

claim of self-defense). But the supreme court in Riley said that trial

courts have discretion in how they convey that concept to the jury.

Id. Thus, the Riley court declined to mandate specific language for

courts to use when instructing a jury that it must take the totality

of the circumstances into account in a multiple assailants case. Id.

at 1094-95.

¶ 20 Harking back to Jones, Villegas-Ortega argues that “[f]or

decades, Colorado law has required a totality of the circumstances

instruction in a multiple assailant self-defense case.” Riley holds

otherwise, stating that, irrespective of which specific instructions

are provided, “so long as the given instructions properly direct the

jury to consider the totality of the circumstances during its

deliberations on reasonableness, those instructions will satisfy

Jones.” 266 P.3d at 1094. But satisfying the Jones rule in a

multiple assailants case requires more than generic instructions to

the jury directing it to consider all of the evidence presented at trial.

See id. at 1095 (holding that an “apparent necessity” instruction

satisfied the Jones rule because it “accurately informed the jury

that it should consider the ‘totality of the circumstances, including

11
the number of persons reasonably appearing to be threatening the

accused’”) (citation omitted).

¶ 21 We are thus not convinced by the People’s argument that the

jury was adequately instructed simply because it was told to assess

the “reasonableness” of Villegas-Ortega’s self-defense claim and

directed generally to consider “all of the testimony given,” “all facts

and circumstances shown by the evidence” and “all of the evidence.”

While Beckett v. People, 800 P.2d 74, 77-78 (Colo. 1990), cited in

the People’s answer brief, could be read to suggest such a result,

“Jones — as explicitly modified by Riley — remains good law” and

requires the court to instruct the jury that it must consider the

totality of the circumstances. People v. Roberts-Bicking, 2021

COA 12, ¶ 25.

¶ 22 The circumstances in this case are strikingly similar to

Roberts-Bicking, although the trial court’s response to the jury’s

question here requires us to reach a different result. In Roberts-

Bicking, the district court rejected defense-tendered “apparent

necessity” and “totality of the circumstances” instructions, ruling

instead that the stock self-defense instruction — which included

the same reference to “that other person” that triggered the jury’s

12
question in this case — was adequate. Id. at ¶ 15. In response to a

jury question about the meaning of “reasonable,” the court told the

jurors to “apply an objective standard” and emphasized that, “[i]n

making this determination, you are to consider the totality of the

circumstances shown by the evidence.” Id. at ¶ 16. The court’s

response to the jury question resolved any inadequacies with the

initial instructions, the division held, because it directed the jury to

“consider the reasonableness of the defendant’s beliefs and actions

under the totality of the circumstances.” Id. at ¶ 28.

¶ 23 The trial court here rejected the same defense-tendered

instructions as in Roberts-Bicking, and the jury likewise asked a

question that led the court and counsel to realize that the

instructions were not broad enough to encompass Villegas-Ortega’s

multiple assailants theory of defense. See Riley, 266 P.3d at 1095.

So far, so good, and consistent with Roberts-Bicking, the trial court

could have resolved this issue by instructing the jurors generally

that they had to consider the totality of the circumstances when

assessing self-defense. But the court did not provide a general

instruction; instead, it limited the scope of its response to

Instruction No. 6, which outlined the affirmative defense of self-

13
defense only for the charges of first degree murder after deliberation

and second degree murder. While it is true that the court’s

response addressed the question that the jury asked, the response

failed to address the broader issue that the question implicated

and, therefore, leaves us with serious doubts about the soundness

of the jury’s verdict on the other charges that involved a claim of

self-defense.

¶ 24 When we look to the instructions as a whole, as modified by

the court’s response to the jury’s question, it quickly becomes plain

why reversal is required. By submitting its mid-deliberation

question, the jury sought clarification on the scope of its

“reasonableness” inquiry. In other words, the question showed

that, when determining if Villegas-Ortega reasonably acted in self-

defense, the jurors were unsure as to whether they should consider

the threat or potential threat posed by all the assailants or only the

shooting victim, Martinez. And even though the question

referenced only one particular instruction, the uncertainty that

underpinned it applied equally to every charge that potentially

involved self-defense. See Riley, 266 P.3d at 1093 n.2 (observing

that the jurors evaluating a claim of self-defense must consider the

14
totality of the circumstances regardless of whether the self-defense

claim is an affirmative defense or an element-negating traverse).

¶ 25 Thus, by cabining its response only to the question asked —

i.e., by failing to remedy the omission of any requirement that the

jury consider the totality of the circumstances with respect to self-

defense generally — the court’s answer could have only added to

the jury’s confusion. See Cassels v. People, 92 P.3d 951, 958 (Colo.

2004) (explaining that a trial court must tailor the self-defense

instruction in light of the particular facts of the case). Following the

court’s instructions to the letter, as we must presume the jurors

did, see Johnson v. People, 2019 CO 17, ¶ 16, would have led the

jurors to two disparate approaches depending on the charge under

consideration. For the charges of first degree murder after

deliberation and second degree murder, the jurors would have

considered the totality of the circumstances, including the threat

posed by multiple assailants, when evaluating the affirmative

defense of self-defense. But for extreme indifference murder,

reckless manslaughter, and first degree assault, the jury would not

have considered the totality of the circumstances, but instead only

15
the threat posed by “that other person” as provided in the self-

defense instructions associated with those charges.

¶ 26 The error that led to this inconsistency was obvious because

the jury’s question implicated language that was shared by every

one of the self-defense instructions, and the fact that the jury asked

the question should have highlighted this fact for the court. Cf.

People v. Bachofer, 192 P.3d 454, 463 (Colo. App. 2008) (holding

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

Moreover, the error involves a substantial right — the right of a

defendant to assert self-defense — and it seriously undermines our

confidence in the guilty verdict. Indeed, the jury acquitted Villegas-

Ortega of the two offenses for which the court correctly instructed

the jury to consider the totality of the circumstances when

considering self-defense, and it found him guilty of three of the four

offenses that lacked this clarification. While we are unable to

reconstruct the jury’s precise reasoning, the fact that the jury

reached these verdicts while applying inconsistent self-defense

instructions casts serious doubt on Villegas-Ortega’s convictions.

Under these circumstances, we conclude that reversal is required.

16
III. Disposition

¶ 27 We reverse Villegas-Ortega’s convictions for extreme

indifference murder, first degree assault, and reckless

manslaughter, and remand the case for a new trial.

JUDGE FOX and JUDGE JOHNSON concur.

17