23CA1250 Peo v Ladeira 03-06-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1250 El Paso County District Court No. 22CR3110 Honorable William Moller, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Daniel Ladeira Jr.,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, ORDER AFFIRMED, AND CASE REMANDED WITH DIRECTIONS
Division III Opinion by JUDGE TOW Dunn and Meirink, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 6, 2025
Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
The Noble Law Firm, LLC, Antony Noble, Bryan Collins, Lakewood, Colorado, for Defendant-Appellant ¶1 Defendant, Daniel Ladeira Jr., appeals his conviction entered
after a jury verdict, his sentence, and the trial court’s order
granting restitution. We reverse the judgment insofar as it imposed
consecutive sentences and remand the case to the trial court to
amend the mittimus. We otherwise affirm the judgment and the
restitution order.
I. Background
¶2 At trial, the jury heard evidence that would support the
following findings.
¶3 Ladeira engaged in a verbal altercation with his neighbor
Brittany Milner, after she yelled at him to slow down while driving
down the street. Milner called her husband, James Villegas, who
was inside their home, and asked him to come outside. By the time
Villegas made it to the street, Ladeira had gone inside his home
with his girlfriend.
¶4 Villegas and Milner briefly spoke to a neighbor before
returning to their home. After a few minutes, Ladeira emerged from
his home and stood on his porch, which Villegas witnessed through
their front window. Villegas approached Ladeira’s property and,
from the street, demanded he apologize to Milner. Ladeira then
1 went back inside, emerged shortly thereafter with a gun at his side,
and told Villegas, “[s]tep on my property so you can make my day.”1
Villegas responded that he was not on Ladeira’s property and,
realizing that Ladeira had a gun in his hand, he turned back toward
his home to call the police. Ladeira then shot multiple rounds in
immediate succession, one of which hit Villegas. After police
arrived on the scene, Villegas was taken to the hospital, where he
was treated for injuries to his right hip and lower extremities, and
was released after ten days.
¶5 At the conclusion of both parties’ cases-in-chief, the trial court
granted Ladeira’s request to instruct the jury on self-defense. In
response, the prosecution asked to include an initial aggressor
instruction, arguing that “[by] bringing out the gun on his
own . . . the jury could conclude [Ladeira] is the original aggressor.”
The trial court agreed, and over defense counsel’s objection, it
included language about the initial aggressor exception in the jury
instruction for the affirmative defense of self-defense.
1 The neighbor also testified that Ladeira made this statement.
2 ¶6 A jury found Ladeira guilty of three felonies (attempted first
degree murder, first degree assault, and illegal discharge of a
firearm) and three misdemeanors (telephone obstruction, false
imprisonment, and driving under the influence).
¶7 Ladeira’s sentencing hearing took place on June 8, 2023. In
preparation for the hearing, the trial court reviewed Villegas’s victim
impact statement, in which he requested restitution but indicated
that he did not know the specific amount because he was “still
receiving [medical] bills.”
¶8 During the sentencing hearing, the prosecution noted that the
sentencing for attempted first degree murder and first degree
assault should “be run concurrent” because “they arise out of the
same conduct.” The court inquired as to whether the prosecution
believed the attempted murder and assault charges were “separate
crimes of violence,” thereby dictating that the court order
consecutive sentencing. See § 18-1.3-406(1)(a), C.R.S. 2022.2 The
prosecution explained that the felonies were not separate crimes of
2 In 2023, the General Assembly amended the relevant statutory
language. See § 18-1.3-406(1)(b), C.R.S. 2024. We refer to the language in effect at the time of sentencing.
3 violence and the sentences for these counts should run
concurrently because “they come from the same shooting,” and that
“both the charges found by the jury went to the exact same actions
by the defendant with the same victim.”
¶9 However, later in the hearing, the prosecution backtracked on
this position and instead asserted that “if different evidence is
required to establish guilt of each of the multiple offenses, they are
separate crimes for the purpose of [section 18-1.3-406].” The trial
court concluded that the “jury relied upon different evidence based
upon different factors that were required to be proven by the
People,” and it sentenced Ladeira on each count to twenty-four
years in the custody of the Department of Corrections for the
attempted first degree murder and first degree assault convictions,
to be served consecutively.
¶ 10 At the conclusion of the sentencing hearing, the court also
granted the prosecution forty-two days in which to request
restitution and Ladeira twenty-one days in which to object. On July
19, 2023, the prosecution requested $14,301.23 in restitution.
Ladeira timely filed an objection to the restitution amount and
requested a hearing on the matter. The court scheduled the
4 hearing for August 31, 2023, which was seven days before the
statutory deadline expired on September 7, 2023. See § 18-1.3-
603(1)(b), C.R.S. 2024 (when determination of the amount of
restitution has been deferred at sentencing, that amount must
generally be determined within ninety-one days).
¶ 11 The court ordered the prosecution to issue a writ for Ladeira’s
attendance at the hearing, but the prosecution failed to do so, and
Ladeira was not present. Because of a previously scheduled
division closure and lack of available coverage, the court was
unable to reschedule the hearing for the following week. Over
defense counsel’s objection, the court found that, based on its lack
of availability, “there [was good] cause to continue [the order of
restitution] one week to the 14th [of September].”
¶ 12 During the rescheduled hearing, defense counsel renewed its
objection to the court’s extension of the restitution deadline, which
the court overruled. The court imposed $12,739.35 in restitution.
¶ 13 This appeal followed.
II. Initial Aggressor
¶ 14 Ladeira argues that the trial court erred by instructing the
jury on the initial aggressor exception to self-defense. We disagree.
5 A. Standard of Review and Applicable Law
¶ 15 “The trial court has a duty to correctly instruct the jury on all
matters of law for which there is sufficient evidence to support
giving instructions.” Castillo v. People, 2018 CO 62, ¶ 34. This
includes deciding “whether there is sufficient evidence to warrant a
jury instruction related to an affirmative defense and any
exceptions to such affirmative defense.” Id. “Whether sufficient
evidence exists to support the requested instruction is a question of
law that we review de novo.” Id. at ¶ 32. We view the evidence in
the light most favorable to giving the challenged instruction.
Galvan v. People, 2020 CO 82, ¶ 33.
¶ 16 “For certain crimes that require intent, knowledge, or
willfulness, self-defense may be raised as an affirmative defense.”
Castillo, ¶ 38; see also § 18-1-704(1), C.R.S. 2024 (defining the
affirmative defense of self-defense). The prosecution can defeat a
claim of self-defense by “prov[ing] beyond a reasonable doubt that
an exception to self-defense applies.” Castillo, ¶ 40. The initial
aggressor exception states that “a person is not justified in using
physical force if . . . [they are] the initial aggressor.”
§ 18-1-704(3)(b). “An initial aggressor instruction is warranted
6 when the evidence suggests the defendant initiated the physical
conflict by using or threatening imminent use of unlawful physical
force.” People v. Roberts-Bicking, 2021 COA 12, ¶ 33.
¶ 17 “[W]hen the trial court instructs the jury on the affirmative
defense of self-defense, it should instruct the jury on . . . any . . .
exception to that defense if the exception is supported by some
evidence.” Galvan, ¶ 25 (emphasis added). However, in the
absence of some evidence in support of a self-defense exception,
“trial courts must guard against giving superfluous instructions
that limit the affirmative defense of self-defense, as such
instructions may be prejudicial.” Id. at ¶ 32.
B. Analysis
¶ 18 As part of its instruction on the affirmative defense of self-
defense, the trial court instructed the jury, over Ladeira’s objection,
that
[t]he defendant was legally authorized to use physical force upon another person without first retreating if . . . he was not the initial aggressor, or, if he was the initial aggressor, he had withdrawn from the encounter and effectively communicated to the other person his intent to do so, and the other person nevertheless continued or threatened the use of unlawful physical force.
7 ¶ 19 Ladeira contends that this instruction was improper “because
there was no evidence admitted at trial to support a finding that
Ladeira was the initial aggressor.” The People point out that, upon
being confronted by Villegas, Ladeira went inside his home, came
back out with a handgun, urged Villegas to “step on [his] property”
so that Villegas could “make [Ladeira’s] day,” and then shot Villegas
as he turned around to walk back to his home.
¶ 20 While verbal confrontation alone is insufficient to make a party
the initial aggressor, evidence of a defendant’s other actions may be
sufficient to warrant the instruction. People v. Griffin, 224 P.3d
292, 300 (Colo. App. 2009). In Griffin, a division of this court held
that when the defendant left an argument and returned with a gun,
the initial aggressor instruction was appropriate. Id. The evidence
introduced in Griffin is comparable to what the prosecution
presented in this case: after Villegas told Ladeira “they needed to
have a conversation,” Ladeira went inside and returned displaying a
handgun. That action alone was sufficient to warrant the initial
aggressor instruction. See id.
¶ 21 Ladeira contends instead that this case is more similar to
Castillo. There, the defendant, over the course of “a matter of
8 seconds, with no break in the action,” racked his gun and fired.
Castillo, ¶¶ 47-48. The supreme court rejected the district court’s
view that racking the gun and firing were separable incidents and
that the former could be considered an act of initial aggression. Id.
at ¶¶ 46-47. Ladeira argues that, like the actions of the defendant
in Castillo, his actions were one continuous episode; thus, he could
not be considered the initial aggressor.
¶ 22 Further, relying on People v. Manzanares, 942 P.2d 1235,
1241 (Colo. App. 1996), Ladeira argues that because his actions
were one continuous episode, “the only issue was ‘whether [Ladeira]
committed any of the crimes charged and, if so, whether the
conduct was justified because he had acted in self-defense.’”
¶ 23 Ladeira’s reliance on Castillo and Manzanares is unavailing.
Unlike in Castillo, there was evidence here that the act of displaying
the gun and the threatening language Ladeira used while doing so
were not one continuous episode. There was evidence from which
the jury could have inferred that these actions did not take place
over a matter of seconds but, rather, over several minutes. For
example, Ladeira’s girlfriend testified he was outside for “maybe five
to ten minutes.” And Milner described a protracted phone call with
9 Villegas while he was engaged with Ladeira outside, including
hearing Villegas, in apparent response to Ladeira’s threat, tell
Ladeira that “[he was] not on [his] property.” At that point, Milner
discontinued their call so she could call the police and then heard
the gunshots.
¶ 24 Moreover, in Castillo, the evidence showed that the defendant
cursed at someone, popped the trunk on the defendant’s car, and
then got out of the car. The supreme court concluded that this
evidence did not demonstrate a threat to use unlawful physical
force. In contrast, Ladeira directly threatened unlawful force when
he told Villegas to step on his property so he could “make [Ladeira’s]
day.” To the extent Ladeira was referencing the so-called “make my
day” law, § 18-1-704.5, C.R.S. 2024, that statute permits the use of
deadly force when someone has unlawfully entered a dwelling with
the intent to commit a crime therein; it does not apply to merely
walking onto someone’s property. Thus, Ladeira’s comments,
viewed in the light most favorable to the People, were a threat to use
unlawful force.
¶ 25 Ladeira’s reliance on Manzanares is also misplaced because
there, the evidence was undisputed that the defendant himself had
10 not engaged in the initial altercation, and as a result “nothing that
occurred in that fight [upon defendant’s return] provided a basis for
giving the instruction.” Manzanares, 942 P.3d at 1241. Here, the
record clearly indicates that Ladeira was part of the initial
altercation with Villegas when he exited his home.
¶ 26 In sum, the evidence that Ladeira entered his home, returned
with a gun, and threatened unlawful force against Villegas, and
then opened fire after Villegas responded to the threat, warranted
the initial aggressor instruction. See Griffin, 224 P.3d at 300.
¶ 27 Because the initial aggressor exception was supported by
some evidence, the court did not err by giving the instruction to the
jury.
III. Consecutive Sentencing
¶ 28 Ladeira next asserts that the trial court erred by imposing
consecutive sentences for attempted first degree murder and first
degree assault. We agree.
A. Standard of Review and Applicable Law
¶ 29 “We review the trial court’s statutory interpretation and its
application of mandatory sentencing statutes de novo.” People v.
Reed, 2013 COA 113, ¶ 69. But “[w]e review a trial court’s
11 sentencing decision for an abuse of discretion.” People v. Herrera,
2014 COA 20, ¶ 16. “A trial court abuses its discretion only when
its ruling is manifestly arbitrary, unreasonable, or unfair.” Reed,
¶ 42 (quoting People v. Pearman, 209 P.3d 1144, 1145 (Colo. App.
2008)). “A trial court also abuses its discretion when it misapplies
the law.” Chirinos-Raudales v. People, 2023 CO 33, ¶ 23.
¶ 30 Under section 18-1.3-406(1)(a), C.R.S. 2022, “a court shall
sentence a person convicted of two or more separate crimes of
violence arising out of the same incident so that [their] sentences
are served consecutively rather than concurrently.” Where two or
more offenses are brought in a single prosecution, a trial court
must impose concurrent sentences when those charges are
supported by identical evidence, and do not involve multiple
victims. § 18-1-408(3), C.R.S. 2024.
¶ 31 Determining if identical evidence supports two or more crimes
is an evidentiary test not an elemental test. Juhl v. People, 172 P.3d
897, 902 (Colo. 2007). “[W]hether two charges are supported by
identical evidence is not a strict analysis to determine if one
particular fact is necessary to one conviction, but not the
other . . . .” Id. Rather, identical evidence “turns on whether the
12 charges result from the same act, so that the evidence of the act is
identical, or from two or more acts fairly considered to be separate
acts, so that the evidence is different.” Id.
¶ 32 Ladeira argues that the trial court was required to impose
concurrent sentences for attempted first degree murder and first
degree assault because both convictions were supported by
identical evidence. The People contend that the trial court was
correct in imposing consecutive sentences because “differing
elements between the two charges required different — and
therefore not identical — evidence.” Specifically, the People assert
that the convictions were not based on identical evidence because
(1) attempted first degree murder does not require proof of bodily
injury, whereas first degree assault does; and (2) attempted murder
requires proof of deliberation, whereas first degree assault does not.
¶ 33 As noted, however, whether a conviction is supported by
identical evidence is an evidentiary, not elemental, test. Id. In Juhl,
the supreme court held that the defendant’s convictions for first
degree assault and vehicular assault, both of which arose out of
defendant’s head-on collision with the victim while engaged in a
13 high-speed chase to evade police, “were supported by identical
evidence because both convictions were based on one distinct act
rather than multiple acts separated by time or place.” Id. at 898.
Here, therefore, when applying section 18-1-408(3), the trial court
should have considered whether “proof of the elements of both
offenses . . . was necessarily inferred from the same fund of
evidence.” People v. Espinoza, 2020 CO 43, ¶ 13.
¶ 34 At trial, the prosecution presented evidence that Ladeira went
inside his home, came back outside with a gun, threatened Villegas,
and fired multiple shots in succession, one of which struck Villegas
and caused serious bodily injury. During its closing argument, the
prosecution addressed this evidence and referred to it as proof of
the necessary elements for attempted first degree murder and first
degree assault. Finally, the prosecution presented testimony that
this series of events was a single, criminal episode, rather than
distinct acts. See § 18-1-408(3). Thus, because Ladeira’s
convictions for attempted first degree murder and first degree
assault were supported by the “same fund of evidence,” see
Espinoza, ¶ 13, the trial court abused its discretion when it
“incorrectly interpreted ‘identical evidence’ to entail an analysis of
14 the evidence necessary to prove the elements of the offenses
charged.” Juhl, 172 P.3d at 902.
IV. Restitution
¶ 35 Finally, Ladeira asserts that the court erred when it extended
its own deadline to order the amount of restitution owed.3 We
disagree.
¶ 36 “The proper interpretation of the restitution statute is a
question of law that we review de novo.” People v. Weeks, 2020
COA 44, ¶ 11 (Weeks I), aff’d, 2021 CO 75 (Weeks II). “However,
the issue of whether good cause exists to extend the ninety-one-day
deadline to determine restitution . . . is reviewed for an abuse of
discretion.” Id.
¶ 37 Every order of conviction must include one of four types of
restitution orders. § 18-1.3-603(1). Where the information to
3 Ladeira also argues that the trial court erred in multiple ways at
the sentencing hearing when it gave the prosecution forty-two days to request restitution. However, Ladeira’s claims in his opening brief are single-sentence, conclusory assertions, and he does not flesh out these arguments until his reply brief. Because Ladeira waited until his reply brief to develop these arguments, we decline to consider them. See People v. Salinas, 55 P.3d 268, 270 (Colo. App. 2002).
15 determine the amount of restitution is not available at sentencing,
the court shall issue “[a]n order that the defendant is obligated to
pay restitution, but that the specific amount of restitution shall be
determined within the ninety-one days immediately following the
order of conviction, unless good cause is shown for extending the
time period by which the restitution amount shall be determined.”
§ 18-1.3-603(1)(b) (emphasis added). “[A]ny finding of good cause
must be made expressly and before the court’s deadline expires.”
Weeks II, ¶ 40.
¶ 38 Ladeira argues the trial court erred by extending the
restitution deadline beyond the statutorily allowed ninety-one days
“because the prosecution’s failure to issue a writ for Ladeira’s
attendance at the scheduled restitution hearing was not good cause
for an extension of the deadline.” See § 18-1.3-603(1)(b). The
People counter that the court granted the extension because of the
court’s closure, which is a sufficient basis for a finding of good
cause. We agree with the People.
¶ 39 “[A] district court’s finding of good cause must rest on the
specific facts of the case.” Weeks I, ¶ 21. Generally, a mistake on
16 the part of the prosecutor, without more, is insufficient to issue a
good cause extension. See People v. Turecek, 2012 COA 59, ¶ 14
(finding the prosecutor’s failure to adhere to the court’s instructions
and timely file an amended notice was not good cause for issuing an
extension to determine the amount of restitution owed), overruled
on other grounds by Weeks II, ¶ 47 n.16 (overruling several Colorado
court of appeals cases to the extent that they are inconsistent with
the holding in Weeks II). But certain circumstances outside the
control of the parties or court, such as “the court’s docket,
counsel’s schedules, or the complexity of the dispute [may] warrant
a finding of good cause for extending the court’s deadline.”
Weeks II, ¶ 44.
¶ 40 The court’s statutory deadline to order restitution expired on
September 7, 2023. On August 31, 2023, the parties attended a
hearing to discuss the restitution requested but were unable to
proceed because the prosecution failed to issue a writ for Ladeira’s
attendance. Based on a pre-scheduled court closure and lack of
available coverage, the hearing could not be rescheduled for the
following week, and the court found there was good cause to extend
the restitution deadline to September 14, 2023.
17 ¶ 41 We recognize that it was the prosecution’s initial misstep in
failing to issue the writ that prompted the subsequent extension of
the restitution deadline. However, the court’s closure and lack of
coverage was the ultimate hurdle that required the extension to go
beyond the statutory deadline, which the court explicitly recognized
on the record as good cause for extending the deadline. Cf. Weeks
I, ¶ 27 (“The trial court’s ruling did not explain, and the record does
not show, what good cause, if any, existed for that inordinate
delay.”). Thus, we cannot find that the trial court abused its
discretion by finding good cause to extend the hearing date beyond
the ninety-first day.
V. Disposition
¶ 42 We reverse the judgment insofar as it imposed consecutive
sentences. The case is remanded to the trial court for amendment
of the mittimus to reflect concurrent sentences for attempted first
degree murder and first degree assault. We affirm the judgment
and restitution order in all other respects.
JUDGE DUNN and JUDGE MEIRINK concur.