Peo v. Chavez

22CA1963 Peo v Chavez 04-10-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1963
City and County of Denver District Court No. 21CR2064
Honorable Edward D. Bronfin, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Tlaloc R. Chavez,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE PAWAR
Grove and Bernard*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 10, 2025

Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Phoebe W. Dee, Alternate Defense Counsel, Basalt, Colorado, for Defendant-
Appellant
¶1 Defendant, Tlaloc R. Chavez, appeals the judgment of

conviction entered on a jury verdict finding him guilty of two counts

of first degree murder (extreme indifference), two counts of second

degree murder, attempted first degree murder (extreme

indifference), and attempted second degree murder. We affirm.

I. Background

¶2 Chavez was riding in a car with his friend, Elias Chavez (no

relation), when De’Angelo Tafoya and Miguel Nunez-Figueroa

(Nunez) approached the car on foot. Elias1 was the driver and was

waiting to exit a parking lot and drive onto the main road. Chavez

was sitting in the back seat on the passenger side. Tafoya and

Nunez were standing at a nearby bus stop, wearing red clothing.

When Tafoya and Nunez began to approach the car, Elias and

Chavez opened fire in their direction, striking and killing Tafoya and

David Lara, a bystander who was sitting nearby. Nunez escaped

unharmed.

1 To avoid confusion because he shares a last name with Chavez,

we refer to Elias Chavez by his first name in this opinion. We mean
no disrespect by this designation.

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¶3 The prosecution charged Chavez with two counts of first

degree murder (extreme indifference), two counts of first degree

murder (after deliberation), attempted first degree murder (extreme

indifference), attempted first degree murder (after deliberation), and

two crime of violence counts. It charged Elias with the same, and

their cases were consolidated.

¶4 At trial, both Chavez and Elias claimed self-defense. Chavez

testified that before he and Elias opened fire, Tafoya and Nunez

were making hand gestures in their direction, they looked at each

other as if to say, “let’s go get these guys,” and Tafoya reached

behind his back as they were approaching the car.

¶5 The jury found Chavez guilty of both counts of first degree

murder (extreme indifference), two counts of the lesser included

offense of second degree murder (deadly physical force), attempted

first degree murder (extreme indifference), and the lesser included

offense of attempted second degree murder (deadly physical force).

It found him not guilty of attempted or completed first degree

murder (after deliberation). The trial court merged the murder

convictions and sentenced Chavez to two consecutive life sentences,

2
plus forty-eight years in prison for attempted first degree extreme

indifference murder.

¶6 Chavez appeals, arguing the self-defense jury instructions

were fatally flawed in multiple respects and the trial court

improperly admitted evidence of his and Elias’s gang affiliation. He

also asserts cumulative error. We disagree with these arguments

and affirm.

II. Gang Affiliation Evidence

¶7 Because it informs our analysis of subsequent issues, we

address the admission of gang affiliation evidence first. Chavez

argues the trial court erred by admitting evidence suggesting that

he and Elias were affiliated with a gang — an error he asserts

followed from prosecutorial misconduct during opening statements.

We conclude no prosecutorial misconduct occurred, and the gang-

related evidence was otherwise admissible.

A. Prosecutorial Misconduct

¶8 The prosecutor began opening statements by repeatedly telling

the jury that the shooting in this case occurred “because there were

two guys at a bus stop with red clothes on.” Although Chavez did

not object, he argues these comments were obviously improper

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because the prosecutor (1) ignored the trial court’s order precluding

such statements and (2) had no evidence that Chavez or Elias were

gang-affiliated or were otherwise rivals with the Bloods (Tafoya and

Nunez’s gang).

¶9 To be sure, prosecutors may not violate court orders or expose

the jury to inadmissible, prejudicial evidence. People v. Adams, 708

P.2d 813, 814 (Colo. App. 1985). But the record does not support

Chavez’s assertion that the trial court “ruled neither party could

raise the issue of gangs or associated colors in opening statements.”

Quite the opposite, the trial court denied Chavez’s pretrial motion to

exclude evidence that he or Elias were gang-affiliated based on

defense counsel’s express intent to admit evidence of Tafoya’s and

Nunez’s gang affiliation. The court ruled that if the defense

intended to “attribute significance” to the color of Tafoya’s and

Nunez’s clothing, the prosecution could introduce similar evidence

of Chavez’s and Elias’s gang affiliation. In response, defense

counsel said that “it’s no secret, we do intend to elicit that

information” and that he intended to do so in opening statement.

Defense counsel further told the court and prosecutor that “there is

evidence that will come out in this case that indicates that [Tafoya

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and Nunez] were participating in gang activity just prior to the

shooting.”

¶ 10 We recognize that the prosecutor’s opening statement came

first, so the jury heard that Tafoya and Nunez were wearing red

before the defense had an opportunity to make good on its promise

to present this evidence. But considering the trial court’s ruling

and the discussion that immediately preceded opening statements,

the prosecutor’s statements were not improper. They were certainly

not so “flagrant or glaringly or tremendously improper” as to

constitute plain error. People v. Strock, 252 P.3d 1148, 1152 (Colo.

App. 2010).

B. Admission of Gang Evidence

¶ 11 Chavez next argues the court erred by admitting evidence of

his and Elias’s gang affiliation. Reviewing the court’s evidentiary

rulings for an abuse of discretion, see People v. Glover, 2015 COA

16, ¶ 10, we disagree.

1. “Offer of Proof” Arguments

¶ 12 Chavez frames several of his challenges to the gang-related

evidence as pertaining to the prosecutor’s failure to make an

adequate “offer of proof.” “An offer of proof apprises the court of the

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nature and substance of proposed evidence.” People in Interest of

A.R., 2018 COA 177, ¶ 90, aff’d, 2020 CO 10. Here, there was no

question that the prosecution sought to admit evidence that Chavez

was a member of the Gallant Knights Insane (GKI) gang, whose

color is purple. Because the parties knew what evidence the

prosecution sought to admit, no further offer of proof was made or

required. While we conclude Chavez’s framing of his arguments is

misguided, we address the substance of his claims, which more

accurately relate to authentication; CRE 401, 403, and 404(b); and

notice.

2. Authentication

¶ 13 Chavez first argues the court erred by allowing the prosecution

to ask him about his gang affiliation because its questions were

based on unauthenticated Facebook photographs. He argues there

was no testimony authenticating where the photographs came from,

who posted them, whether they were real, or who provided them to

the prosecution.

¶ 14 Authentication is a condition precedent to the admission of

evidence. CRE 901(a). The condition is satisfied by “evidence

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sufficient to support a finding that the matter in question is what

its proponent claims.” Id.

¶ 15 Before the court permitted the prosecution to ask Chavez

about his gang affiliation, it presented Chavez with photographs

showing him making hand gestures and wearing purple. Chavez

affirmed that the photographs depicted him. Although the

prosecution did not present additional evidence to authenticate the

source of the photographs (i.e., Facebook), Chavez’s testimony was

sufficient to meet the “minimal” standard required to authenticate

the photographs generally. See Gonzales v. People, 2020 CO 71,

¶ 42. Therefore, there was no authentication error.

3. CRE 401, 403, and 404(b)

¶ 16 Chavez also argues that the photographs presented by the

prosecution were irrelevant because there was no testimony

indicating the significance of GKI’s color or hand gestures or

establishing animosity between GKI and the Bloods. He argues that

without this evidence, the jury could only speculate as to the

significance of the photographs, violating CRE 401 and CRE 404(b).

Likewise, he argues the trial court’s evidentiary rulings violated

CRE 401, 403, and 404(b) because they assumed that just because

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he was in a gang, and Tafoya and Nunez were in a different gang, he

was “out for blood.”

¶ 17 Evidence is relevant if it tends to make the existence of any

consequential fact more or less probable than it would be without

the evidence. CRE 401. Unless otherwise prohibited, all relevant

evidence is admissible. CRE 402. Relevant evidence can be

excluded if its probative value is substantially outweighed by the

danger of unfair prejudice or if it is used to prove a person’s

character to show that he acted in conformity with that character

on a particular occasion. CRE 403; CRE 404(b).

¶ 18 We note that while the prosecution showed Chavez several

photographs before asking him about his gang affiliation, only one

photograph — showing Chavez wearing purple and using hand

gestures with another individual — was admitted into evidence. We

conclude this photograph (and Chavez’s subsequent testimony) was

relevant because it made it more probable that Chavez was a

member of GKI. That Chavez was a member of a different gang

from Tafoya and Nunez was relevant to prove his motive to shoot

them because it made it more probable that Chavez acted out of

animosity toward the Bloods, not in self-defense.

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¶ 19 Despite Chavez’s arguments to the contrary, we conclude the

gang evidence was relevant to prove motive, even without direct

evidence of a rivalry between GKI and the Bloods. Although Chavez

testified that he was familiar with the Bloods because he went to

school with members of that gang, there was no evidence that the

gangs were affiliated or allied with each other. To the contrary, a

critical part of Chavez’s theory was that he was afraid of Tafoya and

Nunez because he recognized them as Bloods. Combined with

evidence that he was in a different gang, the jury could reasonably

infer that Chavez was afraid of Tafoya and Nunez because of rivalry

between their respective gangs and therefore Chavez shot at them

out of gang-related animosity.

¶ 20 We further conclude the probative value of the gang-related

evidence was not substantially outweighed by the danger of unfair

prejudice. To be sure, all gang evidence carries a risk of prejudice.

See People v. Trujillo, 2014 COA 72, ¶ 72. But the trial court limited

the evidence of Chavez’s gang affiliation to “gang membership, what

gang it was, and the color, if any, that was associated with that

gang.” The court specifically excluded any evidence of GKI’s gang

activities, criminal activities, or drug involvement, or other evidence

9
that could be suggestive of bad character. It also properly

instructed the jury that it could not consider this evidence for any

purpose beyond proving Chavez’s motive and whether he acted in

self-defense. Therefore, the court properly exercised its discretion

to admit this evidence under CRE 403.

¶ 21 Chavez also argues the gang-related evidence was

inadmissible under CRE 404(b). To be admissible under CRE

404(b), evidence must comply with the four-prong test articulated in

People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990). It must (1)

relate to a material fact, (2) be logically relevant, (3) with relevance

independent of the prohibited inference that the defendant

committed the charged offense in conformity with his bad

character, and (4) the probative value of the evidence must not be

substantially outweighed by the danger of unfair prejudice. Id.

¶ 22 The gang-related evidence in this case meets Spoto’s

requirements. As described above, it was used to prove a material

fact — Chavez’s motive and state of mind — which is logically

relevant, independent of an inference regarding his bad character or

propensity to act in conformity with it. See Trujillo, ¶¶ 72, 76 (while

gang-related evidence must be admitted with care, it can be

10
relevant for non-propensity purposes, such as to show motive). As

discussed, the probative value of such evidence was not outweighed

by the danger of unfair prejudice. Accordingly, we discern no error.

4. Notice

¶ 23 We reject Chavez’s argument that the prosecution failed to

provide adequate notice of the gang evidence. While he argues, on

the one hand, that the prosecution “had always intended to make

the case about gangs,” he also asserts that the prosecution “was

adamant it did not want evidence of gang affiliation” admitted at

trial in the first instance. As discussed, it was defense counsel who

raised the issue of the parties’ gang affiliation on the morning of

trial. The trial court recognized as much when it admonished the

defense for failing to mention “the first thing about gangs until 10

minutes before the jury came down.” And in response, defense

counsel apologized for his own “11th-hour motion.”

III. Self-Defense Jury Instructions

A. Initial Aggressor Instruction

¶ 24 Chavez also argues that the trial court erred by instructing the

jury on the initial aggressor exception to the affirmative defense of

self-defense. Reviewing this issue de novo, People v. Roberts-

11
Bicking, 2021 COA 12, ¶ 32, we conclude the instruction was

warranted.

¶ 25 Self-defense is an affirmative defense that allows a defendant

to use a reasonable degree of physical force to defend against what

he reasonably believes to be the imminent use of unlawful physical

force by another. § 18-1-704(1), C.R.S. 2024. But this defense is

unavailable under certain circumstances, including when the

defendant was the initial aggressor — i.e., the person who “initiated

the physical conflict by using or threatening the imminent use of

unlawful physical force.” Castillo v. People, 2018 CO 62, ¶¶ 40, 41

(citation omitted).

¶ 26 A trial court may instruct the jury on an exception to an

affirmative defense if “some evidence” supports the exception.

Roberts-Bicking, ¶ 31. Any credible evidence — even a mere

scintilla — is sufficient to meet this requirement. See Galvan v.

People, 2020 CO 82, ¶ 24. In determining whether this low

threshold was met, we view the evidence in the light most favorable

to giving the instruction. Roberts-Bicking, ¶ 32; see also Galvan,

¶¶ 24, 25 (any credible evidence, even if highly improbable,

supports instructing on exception to self-defense).

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¶ 27 We conclude there was at least some evidence to support

giving the initial aggressor instruction here. Critically, there was

relevant evidence that Chavez recognized Tafoya and Nunez as gang

members, that he was a member of a different gang, and that he

was afraid of Tafoya and Nunez. As discussed, the jury could

reasonably infer from this evidence that the two gangs were rivals.

We conclude this evidence provided necessary context for other

facts that, when viewed together, amounted to some evidence of a

threat of unlawful imminent force.

¶ 28 Nunez testified that Elias drove slowly to the parking lot exit

nearest to where he and Tafoya were standing and stopped the car,

despite the fact that “[t]hey had time to go.” Video evidence taken

from nearby showed that the car lingered in the parking lot exit

though there was ample time for the car to safely turn onto the

street. During that time, both passenger side windows were down,

and Chavez and Elias were looking in the victims’ direction and

making some movements inside the car before Tafoya and Nunez

began walking toward them. After the shooting, Nunez told police

that someone in the car was “talking shit.” And both Chavez and

Elias testified that in response to seeing them, Tafoya and Nunez

13
started “throwing up signs” and doing “hand gestures.” They also

testified that Tafoya reached behind his back while walking toward

the car.

¶ 29 Chavez argues there was no evidence that either he or Elias

initiated a physical conflict with Tafoya and Nunez. He also argues

that there was evidence that would tend to disprove the facts

described above.2 Though the jury can accept or reject this

evidence, we conclude it is sufficient to support giving the

instruction. See People v. Kessler, 2018 COA 60, ¶ 12 (“[I]t is for

the fact finder to determine the difficult questions of witness

credibility and the weight to be given to conflicting items of

evidence . . . .”). And even though insults alone are not enough to

justify an initial aggressor instruction, threats are enough. Castillo,

¶ 52. Viewing the evidence in the light most favorable to giving the

instruction, and in the context of potential gang-related animosity,

we reach the same conclusion as the trial court. That is, the

2 For example, Chavez argues that there was no evidence that he or

Elias knew the victims were at the bus stop when they chose to exit
the parking lot in that direction, and he points to Nunez’s testimony
that no threats were exchanged and that Chavez and Elias did not
direct any words toward him or Tafoya.

14
totality of the evidence permitted the jury to reasonably infer that

Chavez and Elias made some sort of gang-related threat — whether

verbal or gestural — of imminent physical violence from the car,

causing the victims to react, make hand gestures, and walk

threateningly in their direction. Cf. People v. Tardif, 2017 COA 136,

¶¶ 24-25 (testimony that the victim “was standing with his hands in

his pockets, shirtless, and wearing a bandana the color of a rival

gang over his face” and that defendant was intimidated supported

heat of passion provocation instruction). Because some evidence

supports the initial aggressor instruction, the court did not err by

giving it.

B. Unpreserved Instructional Errors

¶ 30 Chavez asserts multiple instructional errors for the first time

on appeal. The Attorney General argues these arguments are

barred by the doctrines of waiver and invited error. We conclude

Chavez’s arguments are properly before us but find no error.

1. Waiver, Invited Error, and Standard of Reversal

¶ 31 Waiver is the intentional relinquishment of a known right or

privilege. People v. Rediger, 2018 CO 32, ¶ 39. Invited error, by

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contrast, occurs when a party complains on appeal of an error that

he invited or injected into the case. Id. at ¶ 34.

¶ 32 The Attorney General argues Chavez waived or invited the

unpreserved instructional errors he asserts on appeal because the

defense submitted its own proposed instructions and participated

extensively in the formulation of the final instructions. We are not

persuaded.

¶ 33 Although defense counsel participated in jury instruction

conferences with the court and prosecutor, we see no indication in

the record that he intentionally chose not to object to the

instructions. Id. at ¶ 3 (mere acquiescence is not waiver). The

parties did not discuss the specific language Chavez challenges on

appeal. Id. at ¶ 43 (no waiver absent such discussion). And Chavez

did not propose any of the instructions he challenges here. Id. at

¶ 34 (describing invited error). We therefore conclude Chavez’s

arguments were not waived or invited.

¶ 34 Instead, we conclude Chavez forfeited his unpreserved jury

instruction arguments, and we review these issues for plain error.

Id. at ¶ 40. An error is plain if it is obvious and substantial. Id. at

¶ 48. To qualify as obvious, it must be so clear cut that a trial

16
judge should be able to avoid it without benefit of objection. People

v. Crabtree, 2024 CO 40M, ¶ 42. An error is substantial if it

affected the accused’s substantial rights — that is, it so

undermined the fundamental fairness of the trial itself as to cast

serious doubt on the reliability of the judgment of conviction. Id. at

¶ 43.

2. Totality of the Circumstances (Multiple Assailants) Instruction

¶ 35 Chavez argues the trial court erred by failing to direct the jury

to consider the totality of the circumstances regarding self-defense,

specifically that there were multiple people appearing to pose a

threat to him. We disagree.

¶ 36 We review jury instructions de novo to determine if they

correctly informed the jury of the applicable law. Roberts-Bicking,

¶ 17. In a self-defense case involving multiple assailants, the trial

court must instruct the jury to consider the totality of the

circumstances impacting an accused’s belief in the necessity of

defensive action, including the number of persons reasonably

appearing to be a threat. Id. at ¶¶ 19, 20 (discussing People v.

Jones, 675 P.2d 9, 14 (Colo. 1984)).

17
¶ 37 Chavez argues that the jury should have been instructed on

multiple assailants because there was evidence that he feared use

of force from both Tafoya and Nunez. Because he did not request

this instruction, however, the inquiry before us is not whether there

was sufficient evidence to support giving it. Rather, because we are

reviewing for plain error, we must consider whether the evidence

and arguments before the trial court created such an obvious need

for a multiple-assailants instruction that the trial court should have

intervened sua sponte to give one. On this record, we cannot reach

that conclusion.

¶ 38 Contrary to his argument on appeal, at trial, Chavez testified

that he was not concerned about Nunez as an assailant, did not fire

at him, and would not have fired at all if Tafoya had not reached

behind his back. Defense counsel emphasized this testimony

during closing argument, arguing that Chavez’s “five shots were

directed at the real and actual threat” (Tafoya) and none were

directed at Nunez.

¶ 39 In light of this evidence and Chavez’s theory of defense, we

conclude the trial court did not plainly err when it didn’t sua sponte

instruct the jury to consider the totality of the circumstances,

18
specifically whether there were multiple assailants. Even though

two individuals were walking toward Chavez when he decided to

shoot, Chavez’s testimony suggested he only perceived one assailant

— Tafoya. And recall that Chavez did not request a multiple-

assailants instruction. Moreover, he specifically argued that Nunez

was not a threat. Had the trial court sua sponte given an

instruction that suggested there were multiple assailants, the

instruction may have undermined his theory of defense. For these

reasons, we cannot conclude there was an obvious need to instruct

the jury on multiple assailants.

3. Bystander and Lesser Included Offense Instructions

¶ 40 Chavez next asserts that the self-defense instructions were

internally inconsistent, inaccurate, and incomplete because they

did not uniformly apply self-defense to (1) innocent bystanders or

(2) lesser included offenses.3 We are not persuaded.

¶ 41 First, Chavez takes issue with the fact that one self-defense

instruction explained that self-defense applies to innocent

3 While Chavez’s opening brief also includes a passing reference to a

conflict between the complicity and self-defense instructions, he
does not develop that argument, so we do not consider it. See
People v. Wallin, 167 P.3d 183, 187 (Colo. App. 2007).

19
bystanders, while two others did not.4 He argues this inconsistency

was obvious error under People v. Koper, 2018 COA 137, because —

he asserts — the “bystander exception” applies in all cases involving

self-defense.

¶ 42 As we read Chavez’s argument, he claims the self-defense

instructions were inconsistent because they suggested that self-

defense applies to innocent bystanders with respect to murder after

deliberation but not attempted murder after deliberation or extreme

indifference murder. But Chavez tendered the self-defense

instructions for the latter two offenses, and these instructions did

not reference innocent bystanders. Under the doctrine of invited

error, he cannot challenge the lack of an innocent bystander

reference in those two instructions. Instead, his only viable

argument is that the instruction that references innocent

bystanders — self-defense for murder after deliberation — should

have been consistent with the two that did not. Because Chavez

4 The instruction on deadly physical force as an affirmative defense

to murder after deliberation referenced innocent bystanders, but
the instructions on nondeadly physical force as an affirmative
defense to attempted murder after deliberation and self-defense as a
traverse to extreme indifference murder did not.

20
was acquitted of murder after deliberation, any error in that

instruction inured to his benefit and cannot have been substantial

error. Therefore, there was no plain error.

¶ 43 Second, Chavez asserts plain error based on a conflict between

a lesser included offense instruction and one of the self-defense

instructions. Instruction No. 19 set forth the elements of attempted

second degree murder and attempted manslaughter as lesser

included offenses of attempted extreme indifference murder. One of

the required elements for these lesser included offenses was that

Chavez’s “conduct was not legally authorized by the affirmative

defense in Instruction 38.” Instruction No. 38, in turn, defined self-

defense as an affirmative defense to attempted murder after

deliberation. It did not reference any lesser included offenses.

¶ 44 We conclude that, read as a whole, the instructions were not

plainly erroneous. Chavez argues that based on the above

instructions, the jury was never told that self-defense could apply to

lesser included offenses. But the instruction on lesser included

offenses specifically instructed the jury that if Chavez’s actions were

legally authorized by self-defense, it should find him not guilty for

those offenses. While we recognize the instructions related to

21
different forms of attempted murder and did not expressly cross-

reference each other, we conclude the overall instructions were not

so confusing as to cast serious doubt on the verdict. Because the

instructions correctly informed the jury that it could apply self-

defense to the lesser included offenses, we discern no plain error.

People v. Garcia, 28 P.3d 340, 344 (Colo. 2001).

IV. Cumulative Error

¶ 45 Finally, because we have rejected all of Chavez’s individual

claims of error, his cumulative error argument is without merit.

V. Disposition

¶ 46 The judgment is affirmed.

JUDGE GROVE and JUDGE BERNARD concur.

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