22CA1509 Peo v Villegas-Ortega 06-05-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1509 City and County of Denver District Court No. 20CR3893 Honorable Brian R. Whitney, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Oscar D. Villegas-Ortega,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division V Opinion by JUDGE GROVE Fox and Johnson, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 5, 2025
Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Law Office of Mark Burton, P.C., K. Mark Burton, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Oscar D. Villegas-Ortega, appeals his judgment of
conviction upon a jury verdict finding him guilty of murder in the
first degree (extreme indifference), first degree assault (deadly
weapon), and reckless manslaughter. We reverse and remand the
case for a new trial.
I. Background
¶2 Based on the evidence presented at trial, a jury could find the
following facts.
¶3 Villegas-Ortega attended a birthday party for the one-year-old
daughter of his cousin, Karina Lujan, at a restaurant near
downtown Denver. The party was also attended by Edward
Armenta, Lujan’s ex-boyfriend and the one-year-old’s father.
¶4 Around fifty friends and family attended the party, which had
a band, a DJ, and an open bar, and lasted from three p.m. until
midnight.
¶5 At one point, Villegas-Ortega danced with Lujan, his cousin,
and Armenta noticed. After the dance, Armenta and his friends
confronted Villegas-Ortega and told him he should not be dancing
with Lujan. After a few additional interactions, Villegas-Ortega’s
father signaled to his son that they should leave the party because
1 Armenta and his friends were “trying to start stuff.” (For his part,
Armenta denied the dance upset him or his friends or caused any
confrontation. He claimed that it was instead Villegas-Ortega who
“wasn’t happy.”)
¶6 A number of men — Villegas-Ortega, his father, Armenta,
Armenta’s brother, his friend Fausto Martinez, and others — ended
up outside the front of the restaurant, where a melee broke out.
Villegas-Ortega, who testified at trial, said he and his father were
surrounded when he saw someone “about to pull out a gun, so I
pulled my gun out.” More fighting ensued, shots were fired, and
someone brandished a knife. Martinez was fatally shot and
Armenta and his brother suffered knife wounds.
¶7 As relevant to this appeal, the prosecution charged Villegas-
Ortega with the first degree murder of Martinez under two
theories — (1) after deliberation and (2) extreme indifference. Later,
it amended the complaint to add counts of second degree assault,
naming Armenta as the victim, and first degree assault, naming
Armenta’s brother as the victim. After a trial, at which Villegas-
Ortega maintained that he acted in self-defense, the jury found
Villegas-Ortega guilty of extreme indifference murder, reckless
2 manslaughter (which was submitted to the jury as a lesser included
offense to the charge of first degree murder after deliberation), and
first degree assault. The jury acquitted Villegas-Ortega of first
degree murder after deliberation, the lesser included offense of
second degree murder, and second degree assault. The trial court
sentenced Villegas-Ortega to a controlling sentence of life in prison
without parole. This appeal followed.
II. Jury Instructions
¶8 Because numerous people were involved in the fight, Villegas-
Ortega contends that the court reversibly erred when it rejected a
defense-tendered jury instruction that would have explicitly
directed the jury to consider the totality of the circumstances when
evaluating his claim of self-defense. He also argues that the trial
court plainly erred when, part way through deliberations, it
instructed the jury that it should consider the totality of the
circumstances with respect to first degree murder after deliberation
and the lesser included second degree murder charge while failing
to apply that supplemental instruction to the charges of extreme
3 indifference murder, reckless manslaughter, and first degree
assault. We agree that reversal is required.1
A. Standard of Review and Applicable Law
¶9 We review jury instructions de novo to determine whether the
instructions accurately informed the jury of the governing law.
Riley v. People, 266 P.3d 1089, 1092 (Colo. 2011). When defense
counsel fails to object, we review the issue for plain error. Hagos v.
People, 2012 CO 63, ¶ 14. We reverse if the error “so undermined
the fundamental fairness of the trial itself so as to cast serious
doubt on the reliability of the judgment of conviction.” People v.
Miller, 113 P.3d 743, 750 (Colo. 2005) (quoting People v. Sepulveda,
65 P.3d 1002, 1006 (Colo. 2003)). As applied to jury instructions,
the defendant must 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.
Id.
1 Because it is unlikely to arise in the same manner on retrial, we
do not reach Villegas-Ortega’s unrelated contention that the court allowed the prosecution to improperly impeach him as to whether he was allowed to possess a firearm. If it does arise, the trial court retains discretion to rule under those circumstances. See People v. Davis, 312 P.3d 193, 196-97 (Colo. App. 2010), aff’d, 2013 CO 57.
4 ¶ 10 The trial court has a duty to instruct the jury on all matters of
law applicable to the case. People v. Garcia, 28 P.3d 340, 343 (Colo.
2001) (citing Hansen v. State Farm Mut. Auto. Ins. Co., 957 P.2d
1380, 1384 (Colo. 1998)). A defendant is entitled to an instruction
on his theory of defense. People v. Tippett, 733 P.2d 1183, 1195
(Colo. 1987). It is not error, however, for a trial court to refuse to
give a defense theory instruction when the contents of that
instruction are embodied in other instructions given by the trial
court. Id. We consider all the instructions given by the trial court
together to determine whether they properly informed the jury.
People v. Trujillo, 83 P.3d 642, 645 (Colo. 2004); Tippett, 733 P.2d at
1195.
B. Additional Facts
¶ 11 The defense’s theory of the case was that Villegas-Ortega acted
in self-defense. Before trial, counsel tendered two jury instructions
regarding self-defense in a multiple assailants situation.
¶ 12 The first proposed instruction (the apparent necessity
instruction) stated:
It is fundamental that the law of self-defense, which is emphatically a law of necessity, involves the question of one’s right to act upon
5 appearances, even though such appearances may prove to have been deceptive. Apparent necessity, if well grounded and of such a character as to appeal to a reasonable person, under like conditions and circumstances, as being sufficient to require action, justifies the application of the doctrine of self-defense to the same extent as actual or real necessity.
The prosecutor objected to the instruction, arguing that the
instructions “as a whole will cover this apparent necessity issue and
defense can argue it in closing.” The court agreed and rejected the
instruction, explaining that
I’ll be honest with you. I — I find that instruction confusing. It is the law, I will give it that, and I will allow you to argue that to the point where you can say that apparent necessity is — I don’t know, I — Basically what you’re saying is don’t look at this in retrospect; look at it as if you were — It’s so close to the Golden Rule, but that’s why I’m worried about it, so I — I think I can allow it to be argued but I’m not going to put it in as an instruction of the Court.
¶ 13 The second proposed instruction (the totality of circumstances
instruction) read as follows:
The totality of circumstances, including the number of persons reasonably appearing to be threatening the accused, must be considered by the trier of fact in evaluating the reasonableness of the accused’s belief in the necessity of defensive action and the
6 reasonableness of force used by him to repel the apparent danger.
The court rejected this instruction as well, ruling that “pointing [the
jury] directly at only one thing” would be confusing in light of the
fact that the jury would necessarily have to consider the totality of
the circumstances when it decided whether to apply the provocation
exception to the affirmative defense of self-defense and when it
determined the “reasonableness” of Villegas-Ortega’s actions.
¶ 14 At the close of trial, the court instructed the jury on the
affirmative defense of self-defense with respect to the offenses
requiring a mental state of “intentional” or “knowing,” and it
provided similar instructions on “the question of self-defense” for
the offenses requiring a mental state of “extreme indifference” or
“recklessness.” See People v. Pickering, 276 P.3d 553, 555-57 (Colo.
2011). The language differed slightly between these categories of
offenses because some of the instructions identified an affirmative
defense and others described an element-negating traverse.
Nonetheless, each of the self-defense instructions provided that
under certain circumstances a person may use deadly physical
force against another person without first retreating if he does so in
7 order to defend himself from what he reasonably believes to be the
use or imminent use of unlawful physical force “by that other
person.”
¶ 15 The instructional reference to “that other person” — in the
singular — prompted a question from the jury during deliberations:
“Does the use of the phrase ‘that other person’ (per [Instruction
No. ]6, line 1) necessitate that the other person was the deceased
(Fausto Martinez) to justify or warrant self-defense?” (Instruction
No. 6 set forth the affirmative defense of self-defense specific to the
charges of first degree murder after deliberation and second degree
murder.)
¶ 16 The trial court agreed that Instruction No. 6 contained an
“incorrect statement of law,” and that it should have stated that
someone other than the person who was shot could be the one
using or imminently using unlawful physical force. After reviewing
the model jury instructions, the prosecutor suggested that the court
could “cure” the instruction’s failure to reference the totality of the
circumstances by adding “or by persons acting in concert with that
other person” to the instruction. Defense counsel pointed out that
she had “originally tendered a totality of the circumstances
8 instruction” to the court and “maintained that that’s an appropriate
instruction.” But she agreed with the answer that the court
proposed, which read as follows:
In addition to Instruction 6, Paragraph 1, you are to consider the totality of circumstances, including the number of persons reasonably appearing to be threatening the defendant.
“You should also insert the following after person in Paragraph 1
“or by persons acting in concert with that other person[.]”
¶ 17 Thus, as edited by the court’s response to the jury’s question,
Instruction No. 6 would have read in pertinent part:
The defendant was legally authorized to use deadly physical force upon another without first retreating if:
1. he used that deadly physical force in order to defend himself from what he reasonably believed to be the use or imminent use of unlawful physical force by that other person, or by persons acting in concert with that other person.
(Emphasis added.)
¶ 18 However, while the court corrected Instruction No. 6, no one
recognized that the “other person” language was also missing from
9 the other instructions addressing self-defense — whether as an
affirmative defense or a traverse. As a result, not only did the
instructions as a whole lack a general “totality of the
circumstances” or “apparent necessity” instruction (or any other
language to that effect), but the instructions addressing Villegas-
Ortega’s claim of self-defense with respect to extreme indifference
murder, reckless manslaughter, and first degree assault failed to
direct the jurors that they could consider “persons acting in
concert” with the victim. The jury acquitted Villegas-Ortega of first
degree murder after deliberation and second degree murder, and it
found him guilty of extreme indifference murder, first degree
assault, and reckless manslaughter. (The jury also acquitted
Villegas-Ortega of the second degree assault charge.)
C. Analysis
¶ 19 Riley indicated that a jury must consider the totality of the
circumstances when evaluating a defendant’s claim of self-defense
in a case involving multiple assailants. 266 P.3d at 1094 (holding
that People v. Jones, 675 P.2d 9, 14 (Colo. 1984), “stands for the
principle that a jury must consider the totality of the
circumstances, including the number of persons reasonably
10 appearing to be threatening the defendant,” when evaluating a
claim of self-defense). But the supreme court in Riley said that trial
courts have discretion in how they convey that concept to the jury.
Id. Thus, the Riley court declined to mandate specific language for
courts to use when instructing a jury that it must take the totality
of the circumstances into account in a multiple assailants case. Id.
at 1094-95.
¶ 20 Harking back to Jones, Villegas-Ortega argues that “[f]or
decades, Colorado law has required a totality of the circumstances
instruction in a multiple assailant self-defense case.” Riley holds
otherwise, stating that, irrespective of which specific instructions
are provided, “so long as the given instructions properly direct the
jury to consider the totality of the circumstances during its
deliberations on reasonableness, those instructions will satisfy
Jones.” 266 P.3d at 1094. But satisfying the Jones rule in a
multiple assailants case requires more than generic instructions to
the jury directing it to consider all of the evidence presented at trial.
See id. at 1095 (holding that an “apparent necessity” instruction
satisfied the Jones rule because it “accurately informed the jury
that it should consider the ‘totality of the circumstances, including
11 the number of persons reasonably appearing to be threatening the
accused’”) (citation omitted).
¶ 21 We are thus not convinced by the People’s argument that the
jury was adequately instructed simply because it was told to assess
the “reasonableness” of Villegas-Ortega’s self-defense claim and
directed generally to consider “all of the testimony given,” “all facts
and circumstances shown by the evidence” and “all of the evidence.”
While Beckett v. People, 800 P.2d 74, 77-78 (Colo. 1990), cited in
the People’s answer brief, could be read to suggest such a result,
“Jones — as explicitly modified by Riley — remains good law” and
requires the court to instruct the jury that it must consider the
totality of the circumstances. People v. Roberts-Bicking, 2021
COA 12, ¶ 25.
¶ 22 The circumstances in this case are strikingly similar to
Roberts-Bicking, although the trial court’s response to the jury’s
question here requires us to reach a different result. In Roberts-
Bicking, the district court rejected defense-tendered “apparent
necessity” and “totality of the circumstances” instructions, ruling
instead that the stock self-defense instruction — which included
the same reference to “that other person” that triggered the jury’s
12 question in this case — was adequate. Id. at ¶ 15. In response to a
jury question about the meaning of “reasonable,” the court told the
jurors to “apply an objective standard” and emphasized that, “[i]n
making this determination, you are to consider the totality of the
circumstances shown by the evidence.” Id. at ¶ 16. The court’s
response to the jury question resolved any inadequacies with the
initial instructions, the division held, because it directed the jury to
“consider the reasonableness of the defendant’s beliefs and actions
under the totality of the circumstances.” Id. at ¶ 28.
¶ 23 The trial court here rejected the same defense-tendered
instructions as in Roberts-Bicking, and the jury likewise asked a
question that led the court and counsel to realize that the
instructions were not broad enough to encompass Villegas-Ortega’s
multiple assailants theory of defense. See Riley, 266 P.3d at 1095.
So far, so good, and consistent with Roberts-Bicking, the trial court
could have resolved this issue by instructing the jurors generally
that they had to consider the totality of the circumstances when
assessing self-defense. But the court did not provide a general
instruction; instead, it limited the scope of its response to
Instruction No. 6, which outlined the affirmative defense of self-
13 defense only for the charges of first degree murder after deliberation
and second degree murder. While it is true that the court’s
response addressed the question that the jury asked, the response
failed to address the broader issue that the question implicated
and, therefore, leaves us with serious doubts about the soundness
of the jury’s verdict on the other charges that involved a claim of
self-defense.
¶ 24 When we look to the instructions as a whole, as modified by
the court’s response to the jury’s question, it quickly becomes plain
why reversal is required. By submitting its mid-deliberation
question, the jury sought clarification on the scope of its
“reasonableness” inquiry. In other words, the question showed
that, when determining if Villegas-Ortega reasonably acted in self-
defense, the jurors were unsure as to whether they should consider
the threat or potential threat posed by all the assailants or only the
shooting victim, Martinez. And even though the question
referenced only one particular instruction, the uncertainty that
underpinned it applied equally to every charge that potentially
involved self-defense. See Riley, 266 P.3d at 1093 n.2 (observing
that the jurors evaluating a claim of self-defense must consider the
14 totality of the circumstances regardless of whether the self-defense
claim is an affirmative defense or an element-negating traverse).
¶ 25 Thus, by cabining its response only to the question asked —
i.e., by failing to remedy the omission of any requirement that the
jury consider the totality of the circumstances with respect to self-
defense generally — the court’s answer could have only added to
the jury’s confusion. See Cassels v. People, 92 P.3d 951, 958 (Colo.
2004) (explaining that a trial court must tailor the self-defense
instruction in light of the particular facts of the case). Following the
court’s instructions to the letter, as we must presume the jurors
did, see Johnson v. People, 2019 CO 17, ¶ 16, would have led the
jurors to two disparate approaches depending on the charge under
consideration. For the charges of first degree murder after
deliberation and second degree murder, the jurors would have
considered the totality of the circumstances, including the threat
posed by multiple assailants, when evaluating the affirmative
defense of self-defense. But for extreme indifference murder,
reckless manslaughter, and first degree assault, the jury would not
have considered the totality of the circumstances, but instead only
15 the threat posed by “that other person” as provided in the self-
defense instructions associated with those charges.
¶ 26 The error that led to this inconsistency was obvious because
the jury’s question implicated language that was shared by every
one of the self-defense instructions, and the fact that the jury asked
the question should have highlighted this fact for the court. Cf.
People v. Bachofer, 192 P.3d 454, 463 (Colo. App. 2008) (holding
that contradictory self-defense instructions are “plainly wrong”).
Moreover, the error involves a substantial right — the right of a
defendant to assert self-defense — and it seriously undermines our
confidence in the guilty verdict. Indeed, the jury acquitted Villegas-
Ortega of the two offenses for which the court correctly instructed
the jury to consider the totality of the circumstances when
considering self-defense, and it found him guilty of three of the four
offenses that lacked this clarification. While we are unable to
reconstruct the jury’s precise reasoning, the fact that the jury
reached these verdicts while applying inconsistent self-defense
instructions casts serious doubt on Villegas-Ortega’s convictions.
Under these circumstances, we conclude that reversal is required.
16 III. Disposition
¶ 27 We reverse Villegas-Ortega’s convictions for extreme
indifference murder, first degree assault, and reckless
manslaughter, and remand the case for a new trial.
JUDGE FOX and JUDGE JOHNSON concur.