Peo v. Savala

• Court: Colorado Court of Appeals
• Decided: April 17, 2025
• Docket: 22CA1437
• Status: Unpublished

Opinion

22CA1437 Peo v Savala 04-17-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1437 City and County of Denver District Court No. 20CR1312 Honorable Kandace C. Gerdes, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Albert A. Savala,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division III Opinion by JUDGE TOW Dunn and Meirink, JJ., concur

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

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

Megan A. Ring, Colorado State Public Defender, Andrew C. Heher, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Albert A. Savala, appeals the judgment of

conviction entered on a jury verdict finding him guilty of second

degree assault - reckless. We affirm.

I. Background

¶2 At trial, the jury heard evidence that would support the

following findings.

¶3 Savala and Angela Marquez were involved in an intimate

relationship. Toward the end of their relationship, Savala went to

Marquez’s house to retrieve tools he had loaned to her. While there,

Marquez asked Savala to put together a shoe rack, but Savala

refused. Savala began to leave the house, but before he reached the

front door, Marquez struck him in the head with a plank of wood.

Savala then swung at Marquez while holding a nail gun and struck

her multiple times in the face and torso.

¶4 Savala left the house in his truck and returned a few minutes

later. He parked his car across the street from Marquez’s home,

exited his vehicle, and was promptly arrested by police on the

scene. Before being handcuffed, Savala told the officers that

“[Marquez] hit [him] first.” Marquez was taken to the hospital,

where she was treated for severe facial trauma, a rib fracture, a

1 hand fracture, bruising of her abdomen and chest, and internal

damage to her liver. Marquez was released from the hospital

approximately two months after the incident.

¶5 The prosecution charged Savala with first degree assault and

later added a charge of attempted first degree murder as a crime of

violence. A jury acquitted Savala of attempted first degree murder

and first degree assault but found him guilty of the lesser included

offense of second degree assault - reckless. The jury further found

that Savala acted upon a provoked and sudden heat of passion.

II. Jury Instruction

¶6 Savala argues that the trial court incorrectly instructed the

jury regarding self-defense as a traverse to the crime of reckless

second degree assault by including language applicable to the use

of deadly force rather than non-deadly force. We discern no

reversible error.

A. Additional Background

¶7 During the jury instruction conference, the trial court read the

opening line of each instruction and gave the prosecution and

defense counsel an opportunity to object to the instruction.

2 ¶8 The trial court included two self-defense instructions. Jury

Instruction No. 15 (Instruction 15) addressed the affirmative

defense of defense of person as it related to the charges for

attempted first degree murder and assault in the first degree. Jury

Instruction No. 16 (Instruction 16) addressed self-defense as a

traverse to negate the reckless mens rea required for second degree

assault. When it reached Instruction 16, the court described it as

“the instruction as to self-defense for assault in the second degree.”

The court explained that, while it did not know if the defense

wanted that instruction, the court had added it to the proposed

packet because it was “different [from Instruction 15] because it [is]

not the affirmative defense based upon the mental state of

recklessly.” Defense counsel requested the instruction be included.

B. Waiver or Forfeiture

¶9 We first address the People’s contention that Savala waived his

right to challenge Instruction 16.

1. Standard of Review and Applicable Law

¶ 10 We will not review a trial court’s jury instruction where a

defendant waived any challenge to it. People v. Rediger, 2018 CO

32, ¶ 40. “Waiver . . . is ‘the intentional relinquishment of a known

3 right or privilege,’” id. at ¶ 39 (quoting Dep’t of Health v. Donahue,

690 P.2d 243, 247 (Colo. 1984)), whereas forfeiture is “the failure to

make the timely assertion of a right,” id. at ¶ 40 (quoting United

States v. Olano, 507 U.S. 725, 733 (1993)). The former is

accomplished by an intentional act, while the latter is the product

of neglect. Id. “This distinction is important because a waiver

extinguishes error, and therefore appellate review, but a forfeiture

does not.” Id. A forfeiture is reviewed for plain error. People v.

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

2. Analysis

¶ 11 The People contend that because “the court addressed each

instruction individually, and defense counsel unequivocally

expressed his approval of Instruction 16,” defense counsel

intentionally waived Savala’s right to have the jury instructed on

non-deadly physical force self-defense. But a waiver requires a

clear manifestation of intent to waive a known right. Rediger,

¶¶ 39, 42. In Rediger, the supreme court acknowledged that a

waiver, whether express or implied, could exist where the record

contains evidence that the defendant “considered objecting to the

erroneous instruction but then, ‘for some tactical or other reason,

4 rejected the idea.’” Id. at ¶ 42 (quoting United States v. Perez, 116

F.3d 840, 845 (9th Cir. 1997)). Alternatively, evidence that defense

counsel knew of the discrepancy in the jury instructions and

acquiesced nonetheless also suggests a waiver. Id. at ¶ 43.

¶ 12 Here, the record reveals no evidence that Savala’s counsel

intentionally accepted Instruction 16 knowing that it conflated the

standards for deadly and non-deadly physical force self-defense.

Nor do we perceive any tactical advantage in doing so.

¶ 13 We also acknowledge that, unlike the defense attorney in

Rediger, Savala’s attorney was not asked to approve the jury

instructions as a package but, instead, was presented each

instruction one by one. See id. at ¶ 42 (finding a defendant forfeits,

rather than waives, his right to proper jury instruction where

defense counsel “generally acquiesced to the jury instructions”).

But the record reflects that the court added Instruction 16 to the

instruction packet, the court only briefly and generally described

the instruction but did not read it aloud, and counsel asked to have

the instruction included. There is no indication in the record that

counsel had the opportunity to review the court-drafted instruction

closely enough to identify the problematic language.

5 ¶ 14 Finally, the People argue that “defense counsel’s active

participation in the crafting of the instructions” suggests a waiver.

Here, the trial court drafted all the jury instructions before the

conference and acknowledged that it included Instruction 16 of its

own volition before asking if defense counsel wanted to keep it in

the packet. Although the parties modified the language of some

instructions, there is no record evidence that Savala “drafted,

tendered, or requested” Instruction 16 to include the deadly force

self-defense standard. See People v. Smith, 2018 CO 33, ¶ 16.

¶ 15 We thus conclude that Savala did not waive his appellate

claim that the trial court erroneously instructed the jury.

C. Instruction 16 was not Plainly Erroneous

¶ 16 “Trial courts have a duty to instruct the jury on all matters of

law applicable to the case.” Roberts v. People, 2017 CO 76, ¶ 18.

“We review jury instructions de novo to determine whether the

instructions accurately informed the jury of the governing law.” Id.

“We consider all of the instructions given by the trial court together

to determine whether they properly advised the jury.” People v.

DeGreat, 2018 CO 83, ¶ 15.

6 ¶ 17 “If a defendant lodges no objection to a trial court’s jury

instruction, a plain error standard should be applied in reviewing

the instruction.” Garcia, 28 P.3d at 344. Plain error exists where

an error is (1) obvious and (2) substantial. Hagos v. People, 2012

CO 63, ¶ 14. An error is obvious when it “contravene[s] a clear

statutory command, a well-settled legal principle, or established

Colorado case law.” People v. Crabtree, 2024 CO 40M, ¶ 42. An

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

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

of the judgment of conviction.” Hoggard v. People, 2020 CO 54,

¶ 13 (quoting People v. Weinreich, 119 P.3d 1073, 1078 (Colo.

2005)). “[W]ith respect to jury instructions, reversal under a plain

error standard requires a defendant to ‘demonstrate not only that

the instruction affected a substantial right, but also that the record

reveals a reasonable possibility that the error contributed to his

conviction.’” Garcia, 28 P.3d at 344 (citation omitted).

¶ 18 The Colorado criminal code differentiates between deadly and

non-deadly physical force in defense of person.

See § 18-1-704(1), (2)(a)-(c), C.R.S. 2024 (distinguishing the

application of “physical force” from “deadly physical force” for

7 self-defense purposes). “‘Deadly physical force’ means force, the

intended, natural, and probable consequence of which is to produce

death, and which does, in fact, produce death.” § 18-1-901(3)(d),

C.R.S. 2024.

¶ 19 The model jury instructions address each type of force

separately: one instruction is entitled “Use of Deadly Physical Force

(Defense of Person),” COLJI-Crim. H:12 (2024), while the other is

entitled “Use of Non-Deadly Physical Force (Defense of Person –

Offense with a Mens Rea of Recklessness, Extreme Indifference, or

Criminal Negligence),” COLJI-Crim. H:13 (2024). (We will call the

former the pattern deadly force instruction and the latter the

pattern non-deadly force instruction.)

¶ 20 A side-by-side comparison demonstrates that these pattern

instructions are similar but not identical.

Pattern Deadly Force Pattern Non-Deadly Force Instruction Instruction “The defendant was” “A person is” “legally authorized” “justified” “to use deadly physical force “in using physical force upon upon another person” another person” “without first retreating” “without first retreating” “if [they] use that deadly “in order to defend [themself or physical force in order to defend a third person] from what [they] [themself or a third person] from reasonably believe[] to be the what [they] reasonably believed use or imminent use of unlawful

8 Pattern Deadly Force Pattern Non-Deadly Force Instruction Instruction to be the use or imminent use of physical force by that other unlawful physical force by that person, and” other person, and” “[they] reasonably believed a “[they] may use a degree of force lesser degree of force was which [they] reasonably believe[] inadequate, and” to be necessary for that purpose.” “[they] had a reasonable ground to believe, and did believe, that [they] or another person was in imminent danger of being killed or of receiving great bodily injury.”

2. The Erroneous Instruction

¶ 21 As submitted to the jury, Instruction 16 read as follows:

A person is justified in using physical force upon another person without first retreating in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person and he reasonably believes a lesser degree of force was inadequate, and he had a reasonable ground to believe, and did believe, that he or another person was in imminent danger of being killed or receiving great bodily injury.

The instruction began with the language of the pattern non-deadly

force instruction but ended with the language from the pattern

deadly force instruction. Specifically, it incorporated the

inapplicable requirement that Savala believed that he or another

9 person was in imminent danger of being killed or receiving great

bodily injury.1

¶ 22 Including this requirement misstated the law. In order for the

use of non-deadly force to be justified, Savala need not fear death or

great bodily injury; rather, he merely must reasonably believe that

unlawful force is being used or about to be used against him.

COLJI-Crim. H:13.

¶ 23 Because the instruction incorrectly stated the law, it was

error.

3. The Trial Court’s Error Did Not Prejudice Savala

¶ 24 Nevertheless, we conclude that reversal is not required

because the error was not plain. In particular, in light of the weight

of the evidence, we cannot say that the error was substantial.

¶ 25 Initially, we note that there is at least some evidence from

which the jury could have inferred Savala did, in fact, fear great

bodily injury. Savala testified that Marquez was holding a wood

1 Savala does not argue that there is any substantive difference

between the phrase “reasonably believed a lesser degree of force was inadequate,” COLJI-Crim. H:12 (2024), and “use[d] a degree of force which [they] reasonably believe[d] to be necessary,” COLJI-Crim. H:13 (2024).

10 two-by-four like a bat and struck him in the temple with the butt of

the board, causing him to bleed profusely. Thus, even though

inapplicable, the evidence could have supported a finding in

Savala’s favor.

¶ 26 More importantly, however, under any definition of self-

defense, Savala was required to act with a reasonable amount of

force. Instead, the evidence presented at trial established that

Savala responded to Marquez’s physical attack by beating her

repeatedly with a nail gun. His barrage split open Marquez’s head,

exposing her scalp; broke her nose, tearing part of it off her face;

broke her clavicle, her rib, and her hand; and lacerated her liver,

causing her to be hospitalized for two months. The evidence

overwhelmingly demonstrates that Savala attacked Marquez with

such an unreasonable degree of force that his actions went well

beyond self-defense.

¶ 27 Moreover, the prosecutor did not focus on the erroneous

language in the instruction and did not argue that Savala needed to

fear great bodily injury or death. Instead, the prosecutor argued

that “whatever threat he thought he was facing . . . his response

11 was not appropriate because he used way more force that what was

necessary. . . . It wasn’t reasonable.”

¶ 28 In light of the focus of the prosecution’s argument and the

overwhelming nature of the evidence, we conclude that the error

does not call into doubt the reliability of the judgment of conviction.

Hoggard, ¶ 13; see also People v. Miller, 113 P.3d 743, 750 (Colo.

2005) (“[A]n erroneous jury instruction does not normally constitute

plain error . . . where the record contains overwhelming evidence of

the defendant’s guilt.”).

¶ 29 Because the error was not substantial, and therefore not plain,

there is no basis for reversal.

III. Sufficiency of the Evidence

¶ 30 Savala next argues that the evidence was insufficient to

sustain the jury’s verdict that he did not act reasonably in

self-defense. We disagree.

A. Standard of Review and Applicable Law

¶ 31 When considering a challenge to the sufficiency of the evidence

underlying the conviction, “[w]e review the record de novo to

determine whether the evidence presented was sufficient in both

quantity and quality to sustain a defendant’s conviction.” McCoy v.

12 People, 2019 CO 44, ¶ 63. We view the evidence in the light most

favorable to the prosecution to determine whether the evidence was

“sufficient to support the conclusion by a reasonable mind that the

defendant was guilty beyond a reasonable doubt.” People v. Griego,

2018 CO 5, ¶ 24. “If there is evidence upon which the jury may

reasonably infer an element of the crime, the evidence is sufficient

to sustain that element.” People v. Phillips, 219 P.3d 798, 800

(Colo. App. 2009).

B. Analysis

¶ 32 Relying on Sanchez v. People, Savala argues that his actions

were those of “a reasonable person suddenly and unexpectedly

confronted with potentially deadly and gravely injurious conduct.”

820 P.2d 1103, 1110 (Colo. 1991). Savala contends that this, in

combination with the jury’s heat of passion finding, “underscore[s]

that the prosecution failed to disprove self-defense beyond a

reasonable doubt.”2

2 Savala acknowledges, and we agree, that “the heat of passion

finding does not touch on the reckless mens rea,” which is a necessary element in proving second degree assault.

13 ¶ 33 We reject this argument because, as we noted in the context of

whether the instructional error was prejudicial, the jury heard

ample evidence from which it could conclude the prosecution

proved beyond a reasonable doubt that Savala’s response went well

beyond the confines of “reasonable.” The jury heard the accounts of

what happened, heard the medical testimony, and saw photographs

of Marquez’s extensive injuries. Notably, even defense counsel’s

closing argument focused heavily on whether “Savala took it too far,

and . . . [whether] the injuries he caused to . . . Marquez were too

serious.” The evidence that Savala did, indeed, take it too far is not

only sufficient, it is overwhelming.

IV. Disposition

¶ 34 The judgment is affirmed.

JUDGE DUNN and JUDGE MEIRINK concur.