Peo v. Naranjo

23CA1209 Peo v Naranjo 07-31-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1209
El Paso County District Court No. 21CR3610
Honorable Chad Miller, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kenneth William Naranjo,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE WELLING
Taubman* and Berger*, JJ., concur

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

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Keyonyu X O’Connell, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Defendant, Kenneth William Naranjo, appeals his convictions

for first degree murder (extreme indifference) and attempted first

degree murder (extreme indifference). He argues that the trial court

didn’t properly instruct the jury about which charge applied to

which victim or the law of self-defense. We affirm.

I. Background

¶2 The following facts are supported by testimony elicited at trial.

Early in the morning on June 26, 2021, D.M. and J.V. pulled into a

hotel in Colorado Springs. In the parking lot, both D.M. and J.V.

recognized a woman in a car — Selena Ramirez. They asked her if

she was okay. Ramirez replied that she was fine. She exited her

vehicle to talk with D.M. and J.V. D.M. asked Ramirez if she was

“working,” and she said no. Suddenly, another man — Ramirez’s

boyfriend, Naranjo — approached the vehicle, put a gun to D.M.’s

head, and confronted him about why he had been talking to

Ramirez. D.M. pleaded with Naranjo to lower the gun, which he

eventually did. Ramirez pushed Naranjo and asked him to stop his

threatening of D.M. As Naranjo walked away, J.V. began yelling at

Naranjo for pointing the gun at D.M.’s head. Naranjo turned

around, pulled his gun, and fired all the bullets in the gun at the

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vehicle, where D.M. and J.V. were still sitting. J.V. was struck in

the shoulder. D.M. sped away and drove to the front of the hotel,

where he called the police. Police rendered CPR to J.V., but she

died.

¶3 Four days later, on June 30, Naranjo was arrested. The

People charged Naranjo with first degree murder (extreme

indifference) and second degree murder, as to J.V., and attempted

first degree murder (extreme indifference) and attempted second

degree murder, as to D.M.1

¶4 The case proceeded to trial, and at trial Naranjo argued that

he had acted in self-defense. At the close of trial, the jury was

instructed regarding the four charged offenses, as well as two lesser

included offenses — manslaughter and criminally negligent

homicide. None of the elemental jury instructions or verdict forms

1 Naranjo was also charged with two counts of distribution of a

controlled substance, five counts of possession of a weapon by a
previous offender (POWPO), five habitual criminal sentence
enhancers, and one special offender count. Before trial, the
prosecution dismissed the controlled substance counts, and the
court bifurcated the POWPO, habitual criminal, and special
offender counts. After the jury returned its guilty verdict on the
homicide and attempted homicide charges, the prosecution
dismissed the remaining charges.

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specified the victims of each charge. Naranjo, however, didn’t object

to any of the jury instructions or verdict forms. The jury convicted

Naranjo of first degree murder, manslaughter, and first and second

degree attempted murder. The court merged the manslaughter

conviction into the first degree murder conviction and the second

degree attempted murder conviction into the attempted first degree

murder conviction. The court sentenced Naranjo to life without the

possibility of parole for the murder conviction and forty-eight years

for the attempted murder conviction and ordered the sentences to

run consecutively.

II. Issues on Appeal

¶5 Naranjo argues on appeal that the trial court plainly erred by

not identifying in the jury instructions the victim for each charge.

He also argues that the trial court erred by not properly instructing

the jury that self-defense negated the mens rea for the lesser

included offenses of manslaughter and criminally negligent

homicide and that the court included language in the jury

instructions that invited the jury to question whether Naranjo

needed to retreat before using deadly force. We consider and reject

each contention in turn.

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A. Preservation and Standard of Review

¶6 “We review jury instructions de novo to determine whether

they accurately inform the jury of the governing law.” McDonald v.

People, 2021 CO 64, ¶ 54 (quoting Hoggard v. People, 2020 CO 54,

¶ 12).

¶7 Because Naranjo didn’t object at trial to any of the issues he

raises on appeal, they aren’t preserved, and we review his

contentions for plain error. See Hagos v. People, 2012 CO 63, ¶ 14.

Plain error is error that is obvious and substantial. People v. Torrez,

2024 COA 11, ¶ 41. An error is obvious if the trial judge should

have been able to avoid the error without the benefit of an objection.

Id. To be obvious, the alleged error “must contravene (1) a clear

statutory command; (2) a well-settled legal principle; or (3) Colorado

case law.” Id. (quoting Cardman v. People, 2019 CO 73, ¶ 34). An

error is substantial if it “so undermine[s] the fundamental fairness

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

judgment of conviction.” Id. (quoting Hagos, ¶ 14).

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B. Specificity as to the Victims

1. Additional Facts

¶8 From the opening statement through the close of evidence, the

trial focused on the alleged homicide of J.V. and the attempted

homicide of D.M. The alleged criminal act that was the focus of the

trial was Naranjo shooting into the Jeep on June 26, 2021. Naranjo

didn’t testify at trial, but all three eyewitnesses testified that D.M.

and J.V. were the only people in the Jeep when Naranjo shot at

them. Ramirez testified that Naranjo was only four feet from the

vehicle when he shot at D.M. and J.V.

¶9 During closing arguments, the prosecution made clear which

charges related to which victim.

Members of the jury, we’re going to ask you
when you go back in to deliberate that you find
Kenneth Naranjo guilty of murder in the first
degree and of murder in the second degree,
with the victim being [J.V.]

We’re also going to ask that you find Kenneth
Naranjo guilty of attempted murder in the first
degree and attempted murder in the second
degree with the victim [D.M.]

¶ 10 Jury Instruction Nos. 16 through 19 and 22 set forth the

elements of each of the charged offenses and lesser included

offenses. None of those instructions, however, included the names

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of the victims. Naranjo didn’t object to any of the jury instructions

at trial.

2. Analysis

¶ 11 Naranjo argues that the omission of a specific victim from the

elemental jury instructions and verdict forms constitutes reversible

error, since it meant the jury’s verdict might not have been

unanimous as to the identity of the victim for each count. We

aren’t persuaded that the court plainly erred.

¶ 12 Even if we assume that it was error for the court to omit the

identity of the victim corresponding to each charge, that omission in

this case — when there was no ambiguity as to which charge

related to which victim — doesn’t undermine our confidence in the

verdict. First, all the eyewitnesses testified that Naranjo fired at the

Jeep and that the only people in the Jeep at the time of the shooting

were D.M. and J.V. So the evidence unambiguously established

that they were the only two victims.

¶ 13 Second, based on the nature of the charges it was clear which

victim was associated with which crime, as one victim was

deceased, and the other wasn’t. Indeed, from the beginning of the

trial, both the prosecution and the defense made it clear that only

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one victim — J.V. — died, and that the only other victim — D.M. —

survived. Because there were two corresponding categories of

murder charges against Naranjo — homicide and attempted

homicide — there’s no chance that the jury was confused regarding

which victim was associated with which charges.

¶ 14 Third, the parties’ closing arguments unambiguously related

each charge to its associated victim. Given all of this, we can’t say

that the court’s failure to include the names of the victims on Jury

Instruction Nos. 16 through 19 and 22 causes us to doubt, much

less seriously doubt, the fairness of the trial or the reliability of the

jury’s verdict.

¶ 15 Naranjo’s reliance on People v. Simmons, 973 P.2d 627 (Colo.

App. 1998), and People v. Foster, 971 P.2d 1082 (Colo. App. 1998),

overruled on other grounds by Bock v. People, 2024 CO 61, doesn’t

persuade us otherwise, as the facts in Simmons are readily

distinguishable and the division’s analysis in Foster supports our

conclusion.

¶ 16 Simmons is distinguishable because the evidence there was

ambiguous regarding the identity of the victim. In Simmons, the

defendant drove to his sister’s home while intoxicated. 973 P.2d at

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628. He was armed with a knife and was brandishing it. Id. So his

mother — fearful that he would attack his sister’s boyfriend —

grabbed Simmons, and the boyfriend disarmed him. Id. Simmons

was charged with felony menacing, and the charging document

listed the boyfriend as the victim. Id. But at trial, the boyfriend

testified that he believed Simmons intended to harm his mother

with the knife, and Simmon’s mother testified she believed he was

going to harm the boyfriend with the knife. Id. Simmons testified

that he was only going to harm himself. Id. The jury was

instructed that, if it found Simmons had knowingly placed another

person in fear of serious bodily injury, it could find him guilty of

felony menacing. Id. Additionally, during their closing argument,

the prosecutor argued that it didn’t matter whether the “[]other

person” was the boyfriend, Simmons’ mother, or even Simmons

himself. Id. at 629. On appeal, Simmons argued that the

discrepancy between the charging document and the jury

instruction, in tandem with the comments the prosecutor made

during their closing argument, required reversal. Id.

¶ 17 The Simmons division agreed and reasoned that it was

impossible to determine whether the jury convicted Simmons for

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menacing his mother or his sister’s boyfriend. Id. at 630. The

division also found that the prosecutor’s comments during closing

argument invited the jury to convict Simmons “without regard to

the identity of the victim” and that “[t]he prosecutor’s additional

improper suggestion that the jury could even premise a guilt finding

on [Simmons’] possible injury to himself compounded the potential

jury confusion.” Id.

¶ 18 And Foster doesn’t support Naranjo’s argument for reversal.

In Foster, the defendant robbed a bedding store, and, as he fled the

store, a security guard pursued him. 971 P.2d at 1084. The

security guard briefly caught Foster as he entered a van waiting for

him in the parking lot. Id. Foster smashed the security guard’s

hand with the van door at least three times, forcing the security

guard to release him. Id. At trial, Foster was charged with robbery,

which requires that a person knowingly take anything of value

“from the person or presence of another by the use of force, threats,

or intimidation.” Id.

¶ 19 On appeal, Foster argued that because the elemental

instruction for robbery tracked the language quoted above,

including “of another” — and not the security guard’s name — that

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members of the jury might have concluded that Foster stole

merchandise from the person or presence of a second, different

person other than the security officer. Id. The Foster division

concluded that, since no evidence was provided about another

victim and no other evidence could have confused the jury as to the

identity of the victim, the lack of a named victim on the elemental

jury instruction wasn’t error. Id. at 1087-88.

¶ 20 This case is like Foster. True, the elemental instructions for

the charges didn’t include the victims’ names. But there was no

reasonable possibility that the jury was confused. Certainly, none

of the circumstances that troubled the division in Simmons are

present here. The prosecutor didn’t make any statements that

could have confused the jury. Indeed, the prosecutor correctly

explained to the jury which charges corresponded to which victim.

And unlike in Simmons, when the mother and boyfriend both could

have been victims of the charge of menacing — here, there was only

one possible victim for each charge because there was only one

victim who survived the shooting, D.M., and only one victim who

died during the shooting, J.V. And both the prosecution and the

defense made that clear from the outset of the trial. Accordingly,

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any error in omitting the victims’ names from the jury instructions

wasn’t plain.

C. Self-Defense

¶ 21 Naranjo next argues that the court erred in two ways

regarding its instructions on self-defense. First, he contends that

the court included language in the jury instruction on self-defense

that caused the jury to question whether Naranjo should have

retreated before using deadly force to defend himself. He argues

that this unnecessary language — together with comments defense

counsel made during closing argument — may have confused the

jury. Second, he argues that reversal is required because the

instructions didn’t inform the jury that self-defense negated the

mens rea for the lesser included offenses of manslaughter and

criminally negligent homicide. We aren’t persuaded by either

contention.

1. Duty to Retreat

¶ 22 Jury Instruction No. 20 provided, in relevant part, that “the

defendant was legally authorized to use deadly physical force upon

another person without first retreating if” five conditions were

satisfied. (Emphasis added.) Jury Instruction No. 20, which the

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court gave without objection, tracked the model instruction for use

of deadly physical force in defense of a person. See COLJI-Crim.

H:12 (2024).

¶ 23 Without explicitly contending that the instruction the court

gave was improper or misstated the law, Naranjo argues that the

inclusion of the language “without first retreating” in Jury

Instruction No. 20 may have caused the jury to question whether

Naranjo had a duty to retreat before using deadly physical force. As

evidence of this, he points to an argument that defense counsel

made during closing. Specifically, defense counsel argued that

D.M. was the initial aggressor because he verbally threatened

Naranjo before saying that Naranjo had a choice to make:

So the words that [D.M.] used gave [Naranjo]
two options: Option Number [one] was to walk
away, and Option Number [two] was to defend
himself and [Ramirez].

¶ 24 Naranjo argues that the language of the instruction might

have caused the jury to question whether Naranjo was legally

required to choose option one. We conclude, however, that the

court didn’t err, much less plainly err.

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¶ 25 The court’s instruction properly stated the law regarding duty

to retreat, see, e.g., People v. Martinez, 224 P.3d 1026, 1032-33

(Colo. App. 2009), aff’d on other grounds, 244 P.3d 135 (Colo. 2010),

and Naranjo doesn’t contend otherwise. To the extent that defense

counsel’s argument may have improperly implied that there was a

duty to retreat, the court’s instruction remedied any confusion. See

Cassels v. People, 92 P.3d 951, 956 (Colo. 2004) (“A trial court’s

failure to instruct the jury on the doctrine of no-retreat in cases where

the defendant was not the initial aggressor creates a risk that the

jury will not acquit the defendant because it will consider the

defendant’s use of force unreasonable in light of the possibility of

retreat.” (citing People v. Toler, 9 P.3d 341, 352 (Colo. 2000)))

(emphasis added). In any event, defense counsel’s possible

injection of confusion surrounding the duty to retreat can’t be a

basis for reversal. See People v. Rediger, 2018 CO 32, ¶ 34

(discussing invited error). Simply put, we discern no error — plain

or otherwise — in the court’s decision to instruct the jury on the

duty to retreat.

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2. Self-Defense and the Lesser Included Offenses

¶ 26 Second, Naranjo argues that the court erred by not instructing

the jury that self-defense negated the mens rea for the lesser

included offenses of manslaughter and criminally negligent

homicide. He argues that the jury instructions only informed the

jury that self-defense negated extreme indifference but not

recklessness or criminal negligence — the mens rea for

manslaughter and criminally negligent homicide. But because the

alleged error only relates to offenses that either Naranjo wasn’t

convicted of or that merged at sentencing, any error was harmless

beyond a reasonable doubt.

¶ 27 The only offense on which the jury returned a guilty verdict

that was implicated by this purported error is manslaughter. This

is so because the jury didn’t convict Naranjo of criminally negligent

homicide, and Naranjo doesn’t contend that this alleged error

implicated the jury’s consideration of self-defense as it related to

any of the murder or attempted murder charges.

¶ 28 But the manslaughter conviction merged into the first degree

murder conviction, so there’s no possibility that Naranjo was

prejudiced by this alleged error. See Thomas v. People, 2021 CO 84,

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¶ 3 (when convictions merge, there is only one conviction); cf. People

v. Rhea, 2014 COA 60, ¶ 30 (double jeopardy concerns cured by

merger of charges at sentencing). Accordingly, we discern no basis

for reversal. See Crim. P. 52(a) (“Any error, defect, irregularity, or

variance which does not affect substantial rights shall be

disregarded.”).

III. Disposition

¶ 29 Accordingly, we affirm Naranjo’s judgment of conviction.

JUDGE TAUBMAN and JUDGE BERGER concur.

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