Peo v. Vialpando

23CA0163 Peo v Vialpando 07-17-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0163
Boulder County District Court No. 21CR956
Honorable Patrick Butler, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

James Delon Vialpando,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE YUN
Sullivan, J., concurs
Tow, J., specially concurs

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 17, 2025

Philip J. Weiser, Attorney General, Grant R. Fevurly, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, John P. Finnegan, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 James Delon Vialpando appeals the judgment of conviction

entered on a jury verdict finding him guilty of first degree assault.

He contends that the district court reversibly erred by (1) denying

his motion to suppress statements he made to an arresting police

officer; (2) allowing questions he asked about the victim’s race after

the assault to be admitted at trial; and (3) failing to sua sponte

instruct the jury on the heat of passion mitigator to first degree

assault. We affirm the conviction.

I. Background

¶2 In 2021, Michael Gustafson, the victim, was living in a camper

parked in a parking lot outside of the building where he worked.

One night, Gustafson was awakened by Vialpando, who was

drunkenly yelling as he walked through the parking lot. After

hearing Vialpando kick over a cigarette butt receptacle, Gustafson

grabbed a metal bar and went to confront him.

¶3 A motion-activated security camera captured Gustafson

approaching Vialpando with the bar raised while Vialpando backed

away. Gustafson attacked Vialpando, but Vialpando managed to

grab the bar and wrest it away from Gustafson before using it to

strike Gustafson’s head several times. The two men continued to

1
struggle over the bar on the ground, after which Vialpando stood up

and picked up the weapon. The last thing the camera captured was

Vialpando winding up to strike Gustafson, who was still on his

knees.

¶4 According to Gustafson’s friend, the only witness to the

encounter, Vialpando struck Gustafson with the bar “at least 10 or

15” times after Gustafson had stopped moving. Vialpando later told

the police, after being Mirandized, that he continued attacking

Gustafson even after he was unconscious to “tell him that I’m the

winner” and because he “just wanted to stomp on him.”

¶5 The People charged Vialpando with attempted second degree

murder and first degree assault. At trial, the prosecution conceded

Vialpando acted in self-defense during the initial fight with

Gustafson but argued that Vialpando’s actions went beyond

self-defense and became criminal when “[h]e kept beating

[Gustafson] 10 to 15 times after he was down for the count.”

Vialpando’s primary defense was that he did not strike Gustafson

after he stopped moving and that Gustafson’s friend was a biased

witness whose testimony was not credible. He also presented a

voluntary intoxication defense to the assault charge.

2
¶6 The jury acquitted Vialpando of attempted second degree

murder but found him guilty of first degree assault.

II. Miranda Waiver

¶7 Vialpando first contends that the district court erred when it

denied his motion to suppress statements made to an arresting

officer because “he did not knowingly and intelligently waive his

Miranda rights due to his intoxication.” We disagree.

A. Additional Background

¶8 Police located and detained Vialpando a short time after his

altercation with Gustafson. An officer read his Miranda rights and

asked if he understood them, after which the following colloquy

occurred1:

The officer: Do you understand each of these
rights that I’ve read you? Do you understand?
Yes?

Vialpando: I think so.

The officer: Do you have a question, or?

Vialpando: I just don’t understand.

The officer: What don’t you understand?

1 Their conversation was not transcribed; this is our understanding

of what was said from viewing the body camera footage.

3
Vialpando: Information, man. Man, that
motherfucker — alright, yeah.

The officer: Do you understand the rights that
I read to you?

Vialpando: Man, I understand that
(unintelligible) — alright, I understand.

The officer: Do you understand the rights —

Vialpando: No.

The officer: — that I just read? Your rights
that I just read, do you understand those? I
can’t ask you anything unless you say you
understand.

Vialpando: Is it good to say yes?

The officer: No, I’m only asking you if you
understand them. You don’t have to talk, I’m
just asking if you understand your rights. Do
you understand what I just read to you?

Vialpando: I do.

The officer: Any questions about that?

Vialpando: No. There’s my glasses.

The officer: Okay, so, with these rights in
mind, do you wish to talk to us now?

Vialpando: Yes.

Vialpando then spoke with the officer for about eight minutes before

stating, “I need a fucking lawyer.” The officer stopped his

questioning.

4
¶9 Vialpando moved to suppress his statements, contending that

the Miranda waiver was invalid due to his intoxication. The district

court denied the motion after a hearing, finding that, under the

totality of the circumstances, “there was a valid, knowing,

voluntary, and intelligent waiver of [Vialpando’s] Miranda rights and

[Vialpando’s] intoxication did not prevent him from doing so.”

B. Standard of Review and Applicable Law

¶ 10 In reviewing a ruling on a motion to suppress, we ordinarily

defer to the district court’s factual findings if they are supported by

the record and review the court’s application of law de novo.

People v. Vaughn, 2014 CO 71, ¶ 9. But where, as here, the

challenged interrogation is video-recorded and there are no relevant

disputed facts outside of the recording, we are in a position similar

to the district court to resolve the issues. See People v. Taylor, 2018

CO 35, ¶ 7. Therefore, we may conduct an independent review of

the interrogation video to determine whether Vialpando’s

statements should have been suppressed under controlling law.

See id.

¶ 11 Before a custodial interrogation, officers must give a defendant

a Miranda advisement to inform him of his constitutional rights to

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remain silent and request an attorney. Miranda v. Arizona,

384 U.S. 436, 444 (1966). Whether a waiver is valid involves two

distinct inquiries — namely, “(1) whether the waiver was voluntary,

that is, whether it was the product of a free and deliberate choice

rather than intimidation, coercion, or deception; and (2) whether

the waiver was made knowingly and intelligently.” People v.

Gonzalez-Zamora, 251 P.3d 1070, 1074 (Colo. 2011).

¶ 12 It is the second inquiry that is pertinent in this case. This

“inquiry does not concern the wisdom of a defendant’s decision to

waive their Miranda rights, rather it concerns whether the

defendant sufficiently comprehended the waiver itself.” People v.

Humphrey, 132 P.3d 352, 356 (Colo. 2006); see People v. Kaiser,

32 P.3d 480, 484 (Colo. 2001) (“[S]imply because the defendant’s

decision to talk to the police might be ill-advised does not mean

that the defendant’s decision was not knowing and intelligent.”).

¶ 13 In determining whether a Miranda waiver is knowing and

intelligent, courts consider the following factors:

(1) the length of time between the initial
Miranda advisement and the interrogation;
(2) whether the defendant or the interrogating
officer initiated the interview; (3) whether and
to what extent the interrogating officer

6
reminded the defendant of his or her rights
before the interrogation; (4) the clarity and
form of the defendant’s acknowledgment and
waiver; (5) the defendant’s background and
experience with the criminal justice system;
and (6) any language barriers and the
defendant’s age, experience, education,
background, and intelligence.

People v. Knedler, 2014 CO 28, ¶ 13.

¶ 14 Self-induced intoxication is an additional factor that may (but

does not necessarily) result in an unknowing and unintelligent

waiver. To evaluate whether self-intoxication results in an

unknowing and unintelligent waiver, courts consider the following

additional factors:

(1) whether the defendant was oriented to his
or her surroundings and situation; (2) whether
the defendant’s answers were the responsive
product of a rational thought process;
(3) whether the defendant was able to
appreciate the seriousness of his or her
situation and the possibility of incarceration;
(4) whether the defendant had the foresight to
attempt to deceive the police to avoid
prosecution; (5) whether the defendant
expressed remorse for his or her actions; and
(6) whether the defendant expressly stated that
he or she understood his or her rights.

Id. at ¶¶ 14-15.

7
C. Discussion

¶ 15 We acknowledge that the body camera footage demonstrates

that Vialpando was intoxicated during the interrogation and that

some of the factors relevant to whether the waiver was knowing and

intelligent favor Vialpando: (1) the officer initiated the interview with

Vialpando; (2) when first asked if he understood his Miranda rights,

Vialpando indicated that he did not; (3) the officer did not remind

Vialpando of his rights during the brief interrogation; and (4) the

prosecution did not present evidence of Vialpando’s prior experience

with the criminal justice system. See id. at ¶ 13.

¶ 16 But other facts cut in favor of finding that the waiver was

knowing and intelligent: (1) Vialpando made the waiver at the

beginning of the interview; (2) when the officer clarified that he was

asking if Vialpando understood his Miranda rights and not about

something else, Vialpando said that he did; and (3) there were no

signs of a language barrier, and his age, experience, education,

background, and intelligence2 did not suggest any barrier to

2 Vialpando argues that “his nonresponsive statements suggested a

possibly reduced level of intelligence.” However, there is nothing in
the suppression hearing record to suggest that any incoherence was
the result of something other than Vialpando’s intoxication.

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comprehension. Most importantly, Vialpando eventually did

exercise one of his Miranda rights by requesting a lawyer.

¶ 17 While the six factors discussed above present a mixed picture,

all but one of the self-induced intoxication factors support the

conclusion that Vialpando’s waiver was knowing and intelligent.

See id. at ¶ 14.

¶ 18 First, the recording of the interrogation demonstrates that

Vialpando was oriented to his surroundings and situation. When

he was first stopped by the police, Vialpando asked the officer —

unprompted — if Gustafson was dead, suggesting that he

understood the reason for his detention. Vialpando complied with

the officers’ commands, including rolling onto his stomach when

asked and assisting an officer in spelling his last name. Moreover,

shortly before the Miranda waiver, Vialpando had the wherewithal

to effectively defend himself from Gustafson’s armed attack. See

People v. Clayton, 207 P.3d 831, 836 (Colo. 2009) (waiver was valid

even though the defendant was intoxicated at the time, where he

appeared to be aware of his surroundings and answered questions

appropriately).

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¶ 19 Second, Vialpando’s answers to the officer’s questions were, by

and large, rationally related to the questions posed. While

Vialpando occasionally meandered or lost focus, he ultimately

responded to the officer’s interrogation by expressing that he had

defended himself from Gustafson’s attack. See id.; Kaiser, 32 P.3d

at 486 (waiver was knowing and intelligent where the defendant’s

answers were cogent and responsive).

¶ 20 Third, Vialpando demonstrated an understanding of the

gravity of his situation and the potential for incarceration when he

informed the officer that he needed a lawyer.

¶ 21 Fourth, Vialpando attempted to deceive the police by telling

the officer that he did not strike Gustafson with a weapon and only

kicked him once in the chest.

¶ 22 Finally, Vialpando expressly stated — eventually — that he

understood his rights. See People v. Al-Yousif, 49 P.3d 1165, 1172

(Colo. 2002) (the court may rely, at least in part, on a defendant’s

own statements expressing understanding). And as previously

mentioned, he ultimately exercised one of those rights by requesting

a lawyer.

10
¶ 23 Only one of the voluntary intoxication factors does not favor

finding a knowing and intelligent waiver — Vialpando never

expressed any remorse for his actions. But this factor does not

outweigh the other five, particularly given that Gustafson started

the fight by attacking Vialpando.

¶ 24 In sum, we agree with the district court that the totality of the

facts and circumstances demonstrates that Vialpando “was drunk,

but he was not so drunk that he could not make reasoned,

intelligent, and knowing decisions about his right to remain silent.”

Accordingly, we conclude that Vialpando’s Miranda waiver was

knowing and intelligent, and the district court did not err by

denying the motion to suppress.

III. Admission of Questions About Gustafson’s Race

¶ 25 Vialpando next contends that the district court reversibly

erred by admitting questions Vialpando asked a police officer about

Gustafson’s race. We are not persuaded.

A. Additional Background

¶ 26 After the altercation with Gustafson, Vialpando was taken to

the hospital. While there, he discussed the charges against him

with a police officer; during this discussion, he asked the officer if

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Gustafson — who is white — is a “black person,” a “motherfucker,”

or a “chomo.” Later, the officer mentioned Gustafson again and

Vialpando asked him, “What color?” and “What is his race? What is

he?”

¶ 27 Vialpando unsuccessfully moved to exclude the portion of

body-worn camera footage containing these questions before trial,

arguing that “[t]he involvement of race is not probative and the

danger of unfair prejudice to Mr. Vialpando would substantially

outweigh any possible probative value.” When he renewed his

objection at trial, the district court found that “[t]he interactions . . .

indicate the state of mind of [Vialpando] at various points after the

incident” and allowed the prosecution to play the body-worn camera

footage, including the portion containing the questions, for the jury.

Vialpando did not request a limiting instruction.

B. Standard of Review and Applicable Law

¶ 28 The district court has broad discretion in determining the

admissibility of evidence based on its relevance, probative value,

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

review evidentiary rulings for an abuse of discretion. People v.

Quillen, 2023 COA 22M, ¶ 14. The court abuses its discretion if its

12
decision is manifestly arbitrary, unreasonable, or unfair, or if it

misapplies the law. Id.

¶ 29 We review nonconstitutional trial errors that were preserved by

objection for harmless error. Hagos v. People, 2012 CO 63, ¶ 12.

Under this standard, we reverse only if the error affects the

substantial rights of the parties — that is, if the error “substantially

influenced the verdict or affected the fairness of the trial

proceedings.” Id. (quoting Tevlin v. People, 715 P.2d 338, 342 (Colo.

1986)).

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

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

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

the evidence.” CRE 401. But relevant evidence may be excluded if

its probative value is substantially outweighed by the danger of

unfair prejudice. CRE 403.

¶ 31 The balancing test under Rule 403 favors the admission of

evidence. People v. Cousins, 181 P.3d 365, 370 (Colo. App. 2007).

Thus, when reviewing a district court’s exercise of discretion under

Rule 403, an appellate court must afford the evidence the

13
maximum probative value attributable by a reasonable fact finder

and the minimum unfair prejudice to be reasonably expected. Id.

¶ 32 “Unfair prejudice occurs under CRE 403 if otherwise

admissible evidence has ‘an undue tendency to suggest a decision

[made] on an improper basis,’ which is ‘commonly but not

necessarily an emotional one, such as sympathy, hatred, contempt,

retribution, or horror.’” Id. (alteration in original) (quoting People v.

Dist. Ct., 785 P.2d 141, 147 (Colo. 1990)).

C. Discussion

¶ 33 Vialpando argues that his questions about Gustafson’s race

were inadmissible because they were irrelevant and risked unfair

prejudice against him by implying bad character. We disagree.

¶ 34 First, the footage including the questions was relevant. At

trial, Vialpando presented a voluntary intoxication defense

alongside his claim of self-defense. See People v. Snelling, 2022

COA 116M, ¶ 14 (“Voluntary intoxication may negate specific

intent . . . .”); § 18-3-202(1)(a), C.R.S. 2024 (first degree assault

requires an offender to act “[w]ith intent”); Palmer v. People,

964 P.2d 524, 526 (Colo. 1998) (“[A]ll offenses in the criminal code

in which the mental culpability requirement is expressed as

14
‘intentionally’ or ‘with intent’ are specific intent offenses.”). The

video-recorded questions showed Vialpando’s demeanor and

recollection (or lack of recollection) of Gustafson’s characteristics

roughly an hour after their altercation and were therefore probative

of his level of intoxication and ability to form the requisite intent to

commit first degree assault during the fight. Cf. Kaufman v. People,

202 P.3d 542, 559 (Colo. 2009) (drawings made by the defendant

approximately four days after a stabbing did not show his state of

mind during the stabbing).

¶ 35 Second, while there was a risk of some prejudice from

Vialpando’s fixation on Gustafson’s race, we cannot conclude that

the probative value of the footage showing the questions was

substantially outweighed by the danger of unfair prejudice.

Vialpando asks us to assume that hearing the questions

“encouraged the jury to act out of a desire to punish Vialpando for

his presumed racial attitudes.” But making such an inference

would, under these circumstances, contravene our mandate to

afford the questions “the minimum prejudicial impact a reasonable

juror would give [them].” Cousins, 181 P.3d at 370. Although

Vialpando’s questions to the officer had racial undertones, they also

15
reflected his confusion about the identity of the person he

assaulted.

¶ 36 In light of the body-worn camera footage’s probative value

toward Vialpando’s state of mind and voluntary intoxication defense

and the minimal prejudicial impact we must ascribe to the

questions, we conclude that the district court did not abuse its

discretion by admitting the footage.

¶ 37 But even if we were to assume that the district court erred by

admitting the questions, the error was harmless. The footage

containing the questions was brief — under a minute and thirty

seconds long — and the prosecution did not elicit any testimony

about the questions and did not mention them during closing

arguments. See People in Interest of D.F.A.E., 2020 COA 89M,

¶¶ 43-46; see also People v. Jimenez, 217 P.3d 841, 865 (Colo. App.

2008) (“Under the circumstances, these brief, isolated statements,

even if erroneously admitted, did not affect defendant’s substantial

rights.”). And the evidence against Vialpando was strong: both

eyewitness testimony and Vialpando’s own statements to the police

established that Vialpando continued to strike Gustafson after he

was no longer a threat. See Pernell v. People, 2018 CO 13, ¶ 25

16
(“[T]he strength of the properly admitted evidence supporting the

guilty verdict is clearly an ‘important consideration’ in the harmless

error analysis.” (quoting Crider v. People, 186 P.3d 39, 43 (Colo.

2008))).

¶ 38 Moreover, the jury returned a split verdict, acquitting

Vialpando of attempted murder while convicting him of first degree

assault. “While a split verdict does not conclusively decide the

harmlessness question, it is ‘an indication that the jurors exercised

some discretion in their deliberations’ and that the error did not

cause them to ‘blindly convict the defendant.’” Washington v.

People, 2024 CO 26, ¶ 35 (quoting Martin v. People, 738 P.2d 789,

795–96 (Colo. 1987)).

¶ 39 Taking into account the brief, isolated nature of the challenged

questions, the strength of the evidence against Vialpando, and the

jury’s split verdict, we cannot reasonably conclude that the

admission of the body-worn camera footage containing the

questions could have “substantially influenced the verdict or

affected the fairness of the trial proceedings.” Hagos, ¶ 12 (quoting

Tevlin, 715 P.2d at 342).

17
IV. Heat of Passion Mitigator

¶ 40 Vialpando contends that the district court plainly erred by not

instructing the jury, sua sponte, on the heat of passion mitigator to

first degree assault. We again disagree.

A. Standard of Review and Applicable Law

¶ 41 Because Vialpando did not request a heat of passion

instruction, we review this contention for plain error. See Hagos,

¶ 14. Plain error “occurs when there is (1) an error, (2) that is

obvious, and (3) that so undermines the fundamental fairness of the

trial itself as to cast serious doubt on the reliability of the judgment

of conviction.” Cardman v. People, 2019 CO 73, ¶ 19. To be plain,

“an error must ‘be so obvious’ at the time it is made ‘that a trial

judge should be able to avoid it without the benefit of an objection.’”

Id. at ¶ 34 (citation omitted). Thus, to be obvious, an error

generally “must contravene (1) a clear statutory command; (2) a

well-settled legal principle; or (3) Colorado case law.” Id. (citation

omitted).

¶ 42 First degree assault is generally a class 3 felony but is a class

5 felony if committed in a sudden heat of passion due to

provocation. § 18-3-202(2). Thus, the existence of such a heat of

18
passion does not represent a separate substantive offense; rather, it

acts as a mitigating factor lessening a person’s culpability and

sentence for first degree assault. Rowe v. People, 856 P.2d 486,

490-91 (Colo. 1993).

¶ 43 A defendant who requests a heat of passion instruction is

entitled to one if “some evidence (regardless of how incredible,

unreasonable, improbable, or slight it may be) tend[s] to establish”

the factors described in subsection (2)(a) of the first degree assault

statute. People v. Villarreal, 131 P.3d 1119, 1128 (Colo. App. 2005).

Some evidence must show that

(1) the assault was performed upon a sudden
heat of passion (2) caused by a serious and
highly provoking act of the intended victim,
(3) which was sufficient to excite an irresistible
passion in a reasonable person, and
(4) between the provocation and the assault,
an insufficient interval of time passed for the
voice of reason and humanity to be heard.

Id.; see § 18-3-202(2)(a).

B. Discussion

¶ 44 Vialpando argues that the district court should have

instructed the jury on the heat of passion mitigator even though he

did not request the court to do so. But a division of this court

19
concluded over two decades ago that “no error, and thus, no plain

error[,] occur[s] when the trial court d[oes] not sua sponte instruct

the jury” on the heat of passion mitigator because “[t]he jury need

be instructed as to an affirmative defense or a sentence-mitigating

factor only if some evidence presented at trial supports it and the

defendant requests it.”3 People v. Lee, 30 P.3d 686, 689 (Colo. App.

2000) (second emphasis added).

¶ 45 Recognizing this roadblock, Vialpando asserts that People v.

Stewart, 55 P.3d 107 (Colo. 2002), “implicitly abrogated Lee’s

holding.” In Stewart, the supreme court recognized that where “it

3 The special concurrence says that a sentence mitigator is more

like a lesser included offense than an affirmative defense. But a
heat of passion mitigator — while not an affirmative defense,
Rowe v. People, 856 P.2d 486, 491-92 (Colo. 1993) — does share
similarities with affirmative defenses. For example, “[a] heat of
passion defense basically admits the doing of the act charged but
seeks to mitigate it,” People v. Harris, 797 P.2d 816, 818 (Colo. App.
1990); cf. Roberts v. People, 2017 CO 76, ¶ 20 (“An affirmative
defense essentially admits the defendant’s commission of the
elements of the charged act but seeks to justify, excuse, or mitigate
the commission of the act.”), and “once the issue of heat of passion
provocation is injected into a case, the prosecution must prove the
absence of heat of passion provocation beyond a reasonable doubt,”
People v. Villarreal, 131 P.3d 1119, 1127 (Colo. App. 2005); cf.
Roberts, ¶ 22 (“[W]hen the evidence presented properly raises the
issue of an affirmative defense, . . . the trial court must instruct the
jury that the prosecution bears the burden of proving beyond a
reasonable doubt that the affirmative defense is inapplicable.”).

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appears that an error or omission in jury instructions is due to

inadvertence or attorney incompetence,” a court’s failure to give an

unrequested affirmative defense instruction could constitute plain

error. Id. at 119. Vialpando contends that “Lee’s analysis renders

Stewart’s command to review inadvertent omissions by counsel for

plain error a nullity because, under Lee, any omission in jury

instructions by defense counsel would not be error.”

¶ 46 We acknowledge that, read broadly, the holding in Lee could

conflict with Stewart. But a decision after Lee has applied the

holding more narrowly.

¶ 47 In People v. Wade, 2024 COA 13, ¶ 11, a division of this court

cited Lee for the principle that the jury needs to be instructed on

self-defense only when the defendant requests it. But rather than

resolving the issue solely on the defendant’s failure to tender a

self-defense instruction, the division concluded that the failure

appeared to be a strategic choice and held that “[w]hen the defense

makes a tactical decision not to submit an alternative defense

instruction, a trial court’s failure to sua sponte offer the instruction

does not constitute error, much less plain error.” Id. at ¶ 16.

21
¶ 48 The Wade division’s application of the holding in Lee is

consistent with Stewart because the supreme court there cabined

its ruling to nontactical instructional omissions, holding that where

“the omission is strategic, the invited error doctrine should be

invoked.” Stewart, 55 P.3d at 119. Thus, viewing Lee, Wade, and

Stewart together, we conclude that it is not error, plain or

otherwise, for a court not to instruct the jury on the heat of passion

mitigator when it appears that the defendant’s failure to submit the

instruction was a strategic choice. See Wade, ¶ 16; cf. People v.

Close, 867 P.2d 82, 91 (Colo. App. 1993) (The district court did not

err by failing to sua sponte instruct the jury on voluntary

intoxication where the failure to tender the instruction could be

characterized “as a tactical decision, with the defendant choosing to

persuade the jury that he did not commit robbery or attempted

murder at all, rather than that he committed the crimes but was

too intoxicated to know what he was doing.”), disapproved of on

other grounds by Bogdanov v. People, 941 P.2d 247 (Colo. 1997).

¶ 49 In this case, Vialpando’s decision not to tender a heat of

passion mitigator instruction appears to have been a tactical choice.

Instructing the jury on the mitigator would have given the jury the

22
option to convict Vialpando of a mitigated crime rather than

acquitting him altogether. But the prosecution repeatedly conceded

at trial that Vialpando acted in self-defense until he hit Gustafson

while Gustafson was no longer moving, and Vialpando sought an

outright acquittal by arguing that these extra strikes never

happened. For example, defense counsel told the jury during

closing argument that Vialpando “did not hit [Gustafson] ever, when

he did not think [Gustafson] was still a threat,” and that “what we

know is absolutely not true is that Mr. Gustafson was passed out

on the ground when [the strikes] happened.”

¶ 50 Providing the jury with the option of convicting Vialpando of a

mitigated offense based on striking Gustafson when he was no

longer moving4 would have contradicted Vialpando’s position that

those strikes never happened. See Villarreal, 131 P.3d at 1128

(concluding that “the submission of the [heat of passion] issue to

the jury would have been inconsistent with defendant’s position at

trial, namely, that she was not the attacker and would have had no

4 The jury did not need to be instructed on heat of passion for the

portion of the fight before these blows because, as we have
mentioned, the prosecution conceded that Vialpando acted in self-
defense until then.

23
motive to attack the victim” and, therefore, the absence of the

instruction was not plain error). The district court was certainly

not required to impose its view of a defense theory over the one

chosen by Vialpando. See id. Thus, the district court did not err by

declining to give the heat of passion instruction sua sponte.

¶ 51 We are not persuaded otherwise by Vialpando’s argument that

the first degree assault statute does not require a defendant to

request a heat of passion instruction. The statute, like other

affirmative defense and sentence mitigation provisions, simply does

not address when a jury instruction should be given. See

§ 18-3-202(2)(a)-(b); see, e.g., § 18-1-704, C.R.S. 2024 (self-defense

affirmative defense); § 18-3-103(3)(a)-(b), C.R.S. 2024 (heat of

passion mitigator for second degree murder). Instead, Crim. P. 30

provides that “[a] party who desires instructions shall tender his

proposed instructions to the court,” and case law establishes the

circumstances under which the district court reversibly errs by

failing to give an instruction sua sponte, see Wade, ¶¶ 7-18; Lee,

30 P.3d at 689; Villarreal, 131 P.3d at 1125-28; Close, 867 P.2d at

90-91.

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¶ 52 Finally, even if we assume that it was an error to not give the

instruction, the error could not have been obvious — and therefore

could not have been plain error. Two divisions of this court have

held that a district court (1) did not err by failing to give a heat of

passion instruction when the defendant did not request it, Lee,

30 P.3d at 689; and (2) did not plainly err by failing to give a heat of

passion instruction when the defendant did not request it and the

instruction would have been inconsistent with the defendant’s

position at trial, Villarreal, 131 P.3d at 1128. Given these cases

and despite Vialpando’s reliance on Stewart, the district court did

not commit obvious error by not giving the heat of passion

instruction sua sponte. See People v. Stroud, 2014 COA 58, ¶ 33

(“[W]here an alleged error is unclear under present law, the [district]

court does not commit plain error.”).

V. Disposition

¶ 53 The judgment is affirmed.

JUDGE SULLIVAN concurs.

JUDGE TOW specially concurs.

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JUDGE TOW, specially concurring.

¶ 54 I agree with the majority that James Delon Vialpando’s

judgment of conviction should be affirmed. Indeed, I fully concur

with the majority’s opinion in Parts II and III, supra. I write

separately, however, because I believe we should not even reach his

contention regarding the heat of passion mitigator instruction in

Part IV.

¶ 55 As Vialpando recognizes, a division of this court held a quarter

century ago that “[t]he jury need be instructed as to an affirmative

defense or a sentence-mitigating factor only if some evidence

presented at trial supports it and the defendant requests it.”

People v. Lee, 30 P.3d 686, 689 (Colo. App. 2000) (emphasis added).

¶ 56 Vialpando argues that Lee is no longer good law because our

supreme court later held that “[w]here it appears that an error or

omission in jury instructions is due to inadvertence or attorney

incompetence, the reviewing court should apply the doctrine of

plain error. Where, however, the omission is strategic, the invited

error doctrine should be invoked.” People v. Stewart, 55 P.3d 107,

119 (Colo. 2002).

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¶ 57 While my colleagues and I are, of course, bound to follow the

supreme court’s pronouncements, I do not consider Stewart to be

dispositive of this issue. The omitted instruction in Stewart was an

affirmative defense. The instruction Vialpando believes should have

been given is a sentencing mitigator. I believe the distinction

between these two legal concepts is substantial in this context.

¶ 58 Unlike an affirmative defense, which, if found to be applicable,

results in an acquittal, a sentence mitigator like heat of passion

does not entirely absolve the defendant of criminal culpability. In

this way, it is more like a lesser included offense. And the decision

to not request a lesser included offense instruction is a strategic call

that rests with defense counsel. Arko v. People, 183 P.3d 555, 556

(Colo. 2008). As a division of this court has recognized, “A lesser

included offense instruction risk[s] a compromise verdict.” People v.

Newmiller, 2014 COA 84, ¶ 26. The same can be said of an

instruction on heat of passion — particularly in a case such as this,

where the primary defense was self-defense. Indeed, as the


I do not intend to suggest that heat of passion is a lesser included
offense; it is indisputably not one. Rowe v. People, 856 P.2d 486,
490-91 (Colo. 1993).

27
majority acknowledges, the concept of heat of passion directly

contradicted the defense’s characterization of the facts in this case.

See supra ¶ 50.

¶ 59 And therein lies the rub. To apply a plain error review to a

trial court’s decision to refrain from sua sponte instructing on a

sentence mitigator puts the trial court in a wholly untenable

position. When presiding over a criminal trial, the court has limited

information. Often, this information consists of nothing more than

the affidavit supporting the arrest. At most, the court obtained a

bit more information by presiding over the preliminary hearing and,

possibly, hearings on pretrial motions. But the court is not privy to

all the discovery in the case. As a result, it cannot possibly know

the case well enough to discern whether certain decisions, including

28
not requesting instructions on lesser included offenses or sentence

mitigators, are reasonable strategy or not.

¶ 60 It is axiomatic that “the trial court ‘is not an advocate’” and

does not serve as counsel for either party. People v. Wade, 2024

COA 13, ¶ 11 (quoting Hansen v. State Farm Mut. Auto. Ins. Co.,

957 P.2d 1380, 1384 (Colo. 1998)). Requiring the trial court to

consider giving such instructions sua sponte necessarily puts the

court in the position of overstepping that line by injecting itself into

the strategic decision-making process. This is inconsistent with the

court’s duty to remain impartial.

¶ 61 In my view, it is inappropriate — and frankly unfair to our trial

judges — to require them to navigate the ethical equivalent of the

path between Scylla and Charybdis in Homer’s Odyssey: inject

such an issue and risk being labelled an advocate — whether “pro-


To be blunt, for similar reasons, requiring a trial court to consider
a sua sponte instruction on a true affirmative defense (as opposed
to an element-negating traverse) is equally untenable. Defense
counsel’s decision to forgo an instruction on an affirmative defense
may well be a strategic decision to avoid presenting the jury with
two patently inconsistent theories: “My client didn’t do it, and if he
did he was justified!” But unless and until the supreme court opts
to reconsider this aspect of its decision in People v. Stewart, 55 P.3d
107 (Colo. 2002), trial courts will have to continue to grapple with
that scenario.

29
prosecution” for trying to save the People’s case or “pro-defendant”

for acting as defendant’s co-counsel — or decline to inject the issue

and risk reversal and being told they obviously should have

intervened without the need for an objection (or, here, a request).

¶ 62 The rule should simply be what has previously been stated:

Unless requested, no instruction need be given regarding a sentence

mitigator or lesser offense. See Lee, 30 P.3d at 689. And if such an

instruction is not requested, the defendant cannot complain on

appeal. Under such a rule, Vialpando’s jury instruction challenge

would not be reviewed for plain error; it would simply not be before

us.

¶ 63 That being said, even if Stewart is read broadly, as Vialpando

urges, to apply to sentence mitigators, I believe the outcome should

be the same: We should decline to review the claim as not being

properly before us. The majority observes that “Vialpando’s

decision not to tender a heat of passion mitigator instruction


In those circumstances, which the supreme court apparently felt
were before it in Stewart, where the strategy was obviously flawed,
the defendant would have the remedy of a postconviction challenge
at which, after both sides were given a chance to develop a factual
record, the defendant could seek to establish that counsel’s strategy
amounted to ineffective assistance.

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appears to have been a tactical choice.” Supra ¶ 49. If that is true,

and I agree that it is, then because “the omission is strategic, the

invited error doctrine should be invoked.” Stewart, 55 P.3d at 119.

¶ 64 But invited error is not reviewed for plain error. Rather, “[t]he

doctrine of invited error prevents a party from complaining on

appeal of an error that [they have] invited or injected into the case.”

People v. Rediger, 2018 CO 32, ¶ 34. In other words, “the invited

error doctrine precludes appellate review of errors created by a

party.” People v. Gross, 2012 CO 60M, ¶ 8 (emphasis added).

¶ 65 I recognize that, in reviewing for plain error, the majority

merely follows the lead of several prior divisions of this court. See

People v. Close, 867 P.2d 82, 90 (Colo. App. 1993); Lee, 30 P.3d at

689; People v. Villarreal, 131 P.3d 1119, 1124 (Colo. App. 2005);

Wade, ¶ 12. But reviewing for plain error — even where no error is

found — is nevertheless providing appellate review, which is

inconsistent with the invited error doctrine.

¶ 66 Thus, I depart from the majority’s exploration of whether the

decision not to give the instruction was error in the first place.

Because the issue is not properly before us, I would not review it at

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all. Nevertheless, because the majority affirms the judgment of

conviction, I concur in the majority’s judgment.

32