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.
1 ¶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
3 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
4 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
5 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
6 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
7 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.
8 ¶ 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).
12 ¶ 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
15 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.