Riley v. People , 266 P.3d 1089 ( 2011 )

Justice RICE

delivered the Opinion of the Court.

We review the court of appeals' decision in People v. Riley, 240 P.3d 334 (Colo.App. 2009), affirming petitioner Anthony Douglas Riley's convictions for attempted reckless manslaughter, reckless second degree assault, and a crime of violence sentence enhancer. The court of appeals, relying on its interpretation of this Court's opinion in People v. Jones, 675 P.2d 9 (Colo.1984), conelud-ed that the trial court erred when it declined to submit Riley's suggested multiple assailants instruction to the jury. The court of appeals determined, however, that the error was harmless. It thus affirmed Riley's convictions.

We conclude that the trial court did not err when it rejected Riley's multiple assailants instruction because Jones does not require the instruction in this instance. We thus affirm the court of appeals' judgment upholding Riley's convictions, but reject the court of appeals' holding that the trial court erred in refusing to submit Riley's multiple assailants instruction to the jury.

I. Facts and Procedural History

Riley testified that he was shopping at an EZ Market in Aurora in January 2006. He became involved in a verbal confrontation with a female shopper, Nisa Peelman, after Peelman allegedly touched Riley in an inappropriate way. Riley then left the store. Shortly thereafter, Peelman and her brother, Gabriel Velasquez, walked out of the store. Velasquez and Riley exchanged words and a verbal altercation resulted. The two men began physically wrestling when the argument became more hostile. During the tussle, Velasquez told Peelman to "grab the heat from the truck." Riley believed that the term "heat" meant a gun. Riley then pulled out a small knife from his pocket and "swung it" at Velasquez, hitting Velasquez in the neck, but failing to damage any vital strue-tures.

Velasquez told Peelman to "[rlun for [her] life," but she instead walked toward Riley, yelling at him to leave Velasquez alone and come get her instead. Riley tried to stab Peelman with the knife, but only grazed her neck. Peelman testified that Riley also punched her several times in the head and face until she ran away. Riley testified that he fled the seene when he heard Velasquez again tell Peelman "to grab the heat from the truck."

The prosecution charged Riley with attempted second degree murder as to Velasquez, first degree assault as to Velasquez, menacing as to Peelman, attempted second degree assault as to Peelman, and a crime of violence. Riley argued at trial that his actions were justified because he acted in self-defense to fend off both Velasquez and Peel-man. He also tendered a jury instruction to the trial court describing self-defense in the context of a multiple assailants situation. The instruction read:

The totality of the cirenmstances, including the number of person[(s] reasonably appearing to be threatening the defendant, must be considered by the jury in evaluating the reasonableness of the defendant's belief in the necessity of defensive action, and the reasonableness of the force used by him to defend against the apparent danger.

The trial court rejected the instruction. It found that the multiple assailants instruction was unnecessary because the trial court already "told the jury that the defendant has the right to act on appearances" when it gave an instruction regarding apparent necessity. The apparent necessity instruction, Instruction 21, stated:

When a person has reasonable grounds for believing, and does in fact actually believe, that danger of his being killed or receiving great bodily injury is imminent, he may act on such appearances and defend himself. A person may act on such appearances, even to the extent of taking a human life when necessary, although it may turn out that the appearances were false, or although he may have been mistaken as to the extent of the actual danger.

Apparent necessity, if well-grounded and of such character as to appeal to a reasonable person under similar conditions and cireumstances, as being sufficient to require action, justifies the application of self-defense to the same extent as actual or real danger.

The trial court also instructed the jury on the law of self-defense. The first self-defense instruction related to self-defense as an affirmative defense and is not relevant to our analysis. The second, Instruction 20, provided the pattern law of self-defense in Colorado. It read:

It is an affirmative defense to the crimes of Attempted Second Degree Murder, First Degree Assault, Second Degree Assault Causing Bodily Injury, Menacing, Attempted Second Degree Assault and Attempted Third Degree Assault that the defendant used physical foree upon another person

1. In order to defend himself or a third person from what he reasonably believed to be the imminent use of unlawful physical force by the victim, and

2. the defendant used the degree of foree which he reasonably believed to be necessary for that purpose.

Self-defense is not an affirmative defense to the crimes of Attempted Manslaughter, Reckless, Attempted Second Degree Assault-Reckless or Third Degree Assault done negligently. However, you may consider the evidence presented on this issue as it relates to the question of whether the defendant acted "recklessly" or with "criminal negligence," as required for the commission of those crimes.

The jury convicted Riley of the lesser included charges of attempted reckless manslaughter against Velasquez, of reckless see-ond degree assault against Velasquez, and of the crime of violence sentence enhancer. It acquitted Riley of all other charges. Riley appealed the convictions to the court of appeals. He argued that the trial court failed to accurately instruct the jury on the law of self-defense in a multiple assailant situation when it rejected Riley's tendered multiple assailants instruction.¹

The court of appeals held that the trial court erred when it rejected the multiple assailants instruction. Riley, 240 P.3d at 339-40. It determined that the pattern jury instruction on self-defense, standing alone, did not accurately state the law of self-defense against multiple assailants because the instruction's phrase "by the victim" limits the jury's self-defense analysis to a single assailant. Id. at 839.

The court of appeals went on to conclude, however, that the trial court's perceived error was harmless. Id. at 341. It reasoned that the instructions taken as a whole directed the jury to consider the totality of the cireumstances, including the multiple assailants. Id. at 340. It also held that the apparent necessity instruction appropriately directed the jurors to focus not solely on the actions of a single alleged victim, but rather on whether Riley had reasonable grounds for believing that he was facing imminent danger of death or injury. Id. That instruction, the court of appeals found, did not specifically limit the jury to considering only the danger posed by Velasquez. Id.

The court of appeals also distinguished this case from Jones during its harmless error analysis. Id. at 341. It reasoned that "[uln-like in Jones, neither the prosecutor nor the court suggested to the jury that it could not properly take into account defendant's evidence that he had to defend himself against multiple assailants and was entitled to use a degree of force he reasonably believed necessary for that purpose." Id.

We granted certiorari to decide whether the court of appeals correctly determined that the trial court did not commit reversible error by rejecting the defendant's tendered instruction concerning multiple assailants.

II. Standard of Review

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 Form Mut. Auto. Ins. Co., 957 P.2d 1380, 1384 (Colo.1998)). An appellate court will review jury instructions de novo to determine whether the instructions accurately informed the jury of the governing law. People v. Oram, 217 P.3d 883, 893 (Colo.App.2009), aff'd, 255 P.3d 1032 (Colo.2011);, People v. Lucas, 232 P.3d 155, 162 (Colo.App.2009). 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 of the instructions given by the trial court together to determine whether they properly informed the jury. People v. Trujillo, 83 P.3d 642, 645 (Col0,.2004); Tippett, 733 P.2d at 1195.

III. Analysis

We hold that the court of appeals properly affirmed Riley's convictions. We also hold that the court of appeals was incorrect when it found that the trial court erred by rejecting Riley's tendered multiple assailants instruction because the instructions given by the trial court accurately instructed the jury on the law of self-defense in this multiple assailants situation. We first briefly de-seribe the law of self-defense in the multiple assailants context, and then discuss why the jury instructions here were sufficient.

A. Self-Defense Against Multiple Assailants

In general, a person is justified in using physical force to defend himself or a third person from what he "reasonably believes to be the use or imminent use of unlawful physical force" against him by another person. § 18-1-704(1), C.R.S. (2011). The person exercising the right to self-defense "may use a degree of force which he reasonably believes to be necessary for that purpose." Id. A defendant may assert self-defense as an affirmative defense to crimes requiring intent, knowledge, or willfulness. People v. Pickering, - P.3d -, -, 2011 WL 4014400 (Colo.2011). He may also present evidence of self-defense as an element-negating traverse to cast doubt on charges that he acted recklessly, with extreme indifference, or in a criminally negligent manner. § 18-1-704(4); Pickering, - P.3d at -.

This Court stated the specific rule governing self-defense against multiple assailants in People v. Jones.² 675 P.2d at 14. In that case, we found reversible error when the trial court rejected the defendant's tendered self-defense jury instruction. Id. The tendered instruction read:

It is an affirmative defense to the crime of Second Degree Assault that the defendant used the [sic] physical force upon another person:

(1) In order to defend himself or a third person from what he reasonably believed to be the use or imminent use of unlawful physical force by [the principle assailant] or his associates, and

(2) He used a degree of force which he reasonably believed to be necessary for that purpose.

Id. at 18 (emphasis added).

In rejecting the instruction, the trial court specifically found that the "or his associates" language of Jones's tendered instruction misstated the law of self-defense because Jones's right to self-defense was restricted to a single principle assailant and did not extend to that assailant's associates. Id. The trial court then gave a self-defense instruction to the jury that omitted any reference to Jones's right to use force to defend against the actions of the associates. Id.

This Court reversed because the trial court's self-defense instruction deprived Jones of the "right to use physical force against [the principle assailant] as a means of repelling the assaultive actions of those who were assisting [the assailant] in attacking [Jones]." Id. at 14. Thus, we reasoned, under the given instruction, Jones's fear of physical violence "from others acting in concert with his principle assailant became an irrelevant consideration and thereby vitiated [Jones's] right to act upon reasonable appearances in a multiple assailant attack." Id.

We then articulated the general rule, applicable here, that the trier of fact in a self-defense case involving multiple assailants must consider the "totality of the cireum-stances, including the number of persons reasonably appearing to be threatening the accused, ... in evaluating the reasonableness of the accused's belief in the necessity of defensive action and the reasonableness of force used by him to repel the apparent danger." Id.

B. The Jones Rule

We begin by emphasizing that Jones does not require a trial court to give a specific multiple assailants instruction in every case involving both multiple assailants and self-defense. The Jones opinion does not delineate such a rule, and interpreting the case in that fashion would inappropriately infringe on the discretion trial courts have to tailor jury instructions to fit each unique case. See People v. Garcia, 28 P.3d 340, 347 (Colo.2001) (citing Idrogo v. People, 818 P.2d 752, 754 (Colo.1991)) (trial court must tailor instructions to the particular cireumstances of a given case); see also, e.g., People v. Pahl, 169 P.3d 169, 183 (Colo.App.2006) ("[The trial court has substantial discretion in formulating the jury instructions so long as they are correct statements of the law and fairly and adequately cover the issues presented.").

Instead, Jones stands for the principle that a jury must consider the totality of the circumstances, including the number of persons reasonably appearing to be threatening the defendant, (1) when evaluating the reasonableness of the defendant's belief that he needed to use self-defense in the given situation, and (2) when evaluating the reasonableness of the actual foree used by the defendant to repel the apparent danger. See Jones, 675 P.2d at 14. The purpose of this rule is to ensure that the jury understands that it may consider all relevant evidence when assessing the reasonableness of the defendant's actions. Thus, so long as the given instructions properly direct the jury to consider the totality of the cireumstances during its deliberations on reasonableness, those instructions will satisfy Jones We now describe why the instructions given in this case accurately apprised the jury of the law of self-defense in this multiple assailants situation, even without Riley's specific multiple assailants instruction.

C. The Instructions Satisfy Jones

Instructions 20 and 21, read together, accurately stated the law of self-defense in this particular multiple assailants situation because they described the law of self-defense in relation to crimes requiring recklessness, and broadly provided that the jury should consider the totality of the cireum-stances when evaluating the reasonableness of the defendant's actions. The court of appeals erred by reading Instruction 20 in isolation, rather than with Instruction 21, during its initial analysis. See Trujillo, 83 P.3d at 645; Tippett, 733 P.2d at 1195 (appellate court must consider all of the instructions given by the trial court together to determine whether they properly informed the Jury).

To start, Instruction 20 properly provided the law of self-defense for crimes requiring recklessness because it tracked the language of the self-defense statutes.³ See §§ 18-1-704(1), (4); see also Idrogo, 818 P.2d at 754 (citing Vigil v. People, 148 Colo. 328, 353 P.2d 82 (1960)) (an instruction couched in terms of the language of the statute is proper). Instruction 20 also accurately defined self-defense in terms of the reasonableness of Riley's belief that he faced the imminent use of physical force against him, and the reasonableness of his belief that he used the degree of foree which was necessary for protection. It thus appropriately reflected the principle, stated by this Court in Jones, that "reasonable belief" is the "touchstone of self-defense." Jones, 675 P.2d at 13; see also Beckett v. People, 800 P.2d 74, 78 (Colo.1990) (emphasizing that reasonable belief is the touchstone of self-defense to analyze single-assailant self-defense instruction where the defense's theory did not clearly encompass multiple assailants).⁴

In addition to Instruction 20's appropriate description of self-defense in the reckless crime context, Instruction 21 broadly directed the jury to consider the totality of the cireumstances, including the number of persons reasonably appearing to be threatening the accused, when assessing the reasonableness of Riley's defensive actions. See Jones, 675 P.2d at 14. Instruction 21 stated in the relevant part that "[alpparent necessity, if well-grounded and of such character as to appeal to a reasonable person under similar conditions and cireumstances, as being sufficient to require action, justifies the application of self-defense to the same extent as actual or real danger." (Emphasis added).

This broad language-"reasonable person under similar conditions and cireum-stances"-aceurately informed the jury that it should consider the "totality of the circumstances, including the number of persons reasonably appearing to be threatening the accused" and thus satisfied the Jones requirement. Instruction 21 additionally instructed the jury to consider the reasonableness of Riley's actions in light of the surrounding cireumstances because it refers to self-defense-a concept which Instruction 20 properly described as a reasonableness inquiry. Furthermore, unlike the trial court in Jones, the trial court in this case appropriately recognized that Instruction 21 informed the jury that the "defendant has the right to act on appearances," without limiting the scope of those "appearances" to a single assailant.⁵ See Jones, 675 P.2d at 13.

Instructions 20 and 21 are therefore sufficient under the Jones rule because, read together, they properly define self-defense in the recklessness context and are broad enough to encompass Riley's multiple assailants theory of defense. The trial court was therefore correct when it refused to submit Riley's multiple assailants instruction to the jury because Instructions 20 and 21 already embodied that theory.⁶

IV. Conclusion

For the foregoing reasons, we hold that the jury instructions as a whole accurately stated the law of Riley's theory that he acted in self-defense against Peelman and Velasquez. We therefore reverse the court of appeals' holding that the trial court erred when it rejected Riley's tendered multiple assailants instruction because the given instructions embodied Riley's theory. We affirm the court of appeals' decision to the extent that it upholds Riley's convictions for attempted reckless manslaughter against Velasquez, for reckless second degree assault against Velasquez, and for the crime of violence sentence enhancer.

Justice COATS concurs in the judgment only. Chief Justice BENDER dissents, and Justice MARQUEZ joins in the dissent.

1 . Riley also advanced several other arguments on appeal. The multiple assailants instruction argument, however, is the only theory relevant to our grant of certiorari.

2 . Jones involved second degree assault, a charge to which self-defense is an affirmative defense. 675 P.2d at 13. Although self-defense is not an affirmative defense to the reckless charges relevant to this opinion, we perceive no reason why the reasoning in Jones regarding self-defense in a multiple assailants situation should not apply when self-defense is an element-negating traverse.

3 . We need not determine whether the jury instructions accurately stated the law of self-defense as an affirmative defense because Riley was acquitted of all charges to which such a determination would apply.

4 . The self-defense jury instruction in Beckett stated:

It is an affirmative defense to the crime of felony menacing that the defendant threatened force upon another person: 1. in order to defend himself from what he reasonably believed to be the use or imminent use of unlawful physical force by Mr. Cirillo; and

2. he threatened to use a degree of force which he reasonably believed to be necessary for that purpose.

800 P.2d at 78 (emphasis in original).

5 . We additionally note that the use of the word "victim" in Instruction 20's description of the person against whom a defendant employs self-defense did not, as the court of appeals found, limit the jury's consideration of the defensive action to a single alleged assailant because "the singular includes the plural" when interpreting statutory language. § 2-4-102, CRS. (2011); Jones, 675 P.2d at 14 n. 10.

6 . Because we find that the self-defense and apparent necessity instructions given in this case adequately apprised the jury of Riley's claim of self-defense against multiple assailants, we need not address the court of appeals' rejection of the argument that Beckett altered the holding of Jones such that a self-defense instruction, standing alone, would be sufficient. Riley, 240 P.3d at 339.