v. Galvan

         The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                  May 9, 2019

                                

No. 16CA1988, People v. Galvan — Constitutional Law — First
Amendment — Freedom of Speech — Fighting Words; Criminal
Law — Jury Instructions — Defenses — Use of Non-Deadly
Physical Force (Defense of Person) — Provocation Exception

     The division holds that a defendant’s taunts at the alleged

victims were fighting words and, thus, were not protected by the

First Amendment. Those words, therefore, could be considered in

determining whether there was some evidence that the defendant

provoked the victims, thereby authorizing the giving of a

provocation instruction.

     The division also concludes that a prosecutor may not imply to

a jury venire that the alleged victims have rights that are equal to,

or in conflict with, the rights of the criminal defendant.
COLORADO COURT OF APPEALS                                      

Court of Appeals No. 16CA1988
Weld County District Court No. 15CR554
Honorable Marcelo A. Kopcow, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jose Luis Galvan, Sr.,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                   Division I
                          Opinion by JUDGE BERGER
                         Taubman and Tow, JJ., concur

                            Announced May 9, 2019


Philip J. Weiser, Attorney General, Melissa D. Allen, Senior Assistant Attorney
General, Colleen Wort, Assistant Attorney General Fellow, Denver, Colorado, for
Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Meredith E. Osborne, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    A jury convicted Jose Luis Galvan, Sr., of second degree

 assault. Galvan appeals, contending that the trial court erred in (1)

 instructing the jury on the provocation exception to self-defense; (2)

 not giving a self-defense instruction for each alleged victim; (3)

 failing to give a separate no duty to retreat instruction; and (4)

 permitting the prosecutor to suggest to the jury during voir dire

 that the alleged victims had rights to a fair trial that were equal to

 that of Galvan’s. Because no reversible error infected the judgment,

 we affirm.

              I.   Relevant Facts and Procedural History

¶2    One night, Galvan and his sister took a “party bus” from

 Greeley to Denver. There were numerous other people on the bus,

 including S.M. and her sister, C.M. (the alleged victims). Everyone

 in the group was drinking heavily, with the exception of Galvan’s

 sister.

¶3    While in Denver, the group visited three or four bars and

 continued to drink heavily. By the time the group returned to the

 bus to head back to Greeley, everyone was highly intoxicated

 (except Galvan’s sister). On the way back to Greeley, Galvan and


                                    1
 S.M. began to argue — though the reason the argument began was

 disputed.

¶4    S.M. testified that she saw Galvan throwing pieces of food at

 another partygoer who was asleep on the bus. S.M. told Galvan to

 stop, but he persisted. S.M. then told Galvan to “knock the fuck

 off,” to which he responded, “What are you going to do about it

 bitch?” The two continued shouting at each other, and Galvan

 stood up and again said, “What the fuck are you going to do about

 it bitch?” He then took a step toward S.M., and both she and C.M.

 stood up in response. At that point, the bus driver intervened and

 told the group that if they did not stop arguing, they would be

 walking home to Greeley. They temporarily stopped.

¶5    Galvan’s sister’s testimony painted a very different version of

 these initial events. Galvan’s sister testified that throughout the

 evening, C.M. had been making sexual comments to her, making

 her uncomfortable. At one of the bars in Denver, C.M. asked the

 sister to dance. When the sister said no, C.M. told her she needed

 a “shot” to loosen up and relax a little bit. The sister declined the

 drink. When C.M. asked the sister to dance again sometime later,


                                    2
 the sister agreed. But, while on the dance floor, C.M. touched the

 sister and made her uncomfortable. The sister told Galvan that she

 wanted to leave. She and Galvan called some friends to see if

 anyone was in Denver who could give them a ride back to Greeley.

 No one answered. So, when the group boarded the bus to head

 back to Greeley, Galvan and his sister were on the bus.

¶6    Again, according to the sister, C.M. sat next to her and

 continued to make sexual comments to her. At one point, C.M.

 touched the sister’s breast. Galvan slapped C.M.’s hand away and

 pushed her to the side. According to the sister, that is when the

 situation escalated. C.M. and S.M. started yelling at Galvan and

 telling him that his sister could make her own decisions. At that

 point, Galvan stood up and began yelling at S.M. and C.M. S.M.

 and C.M. responded in kind.

¶7    Sometime later, Galvan’s sister noticed a different partygoer

 throwing pieces of food at the sleeping partygoer. When one piece

 of food landed on Galvan, he flicked it off himself, and it landed on

 the sleeping woman. S.M. and C.M. saw the food hit the sleeping

 woman and reinitiated the argument. C.M. then grabbed Galvan by


                                   3
  the shirt and said, “Listen, I’m not scared of you. We can fight if

  you want. You know, I’ll fight with you. I don’t care.” At that

  point, the bus driver intervened, and the fighting again stopped

  temporarily.

¶8     After returning to Greeley, the group exited the bus, but the

  altercation among Galvan, S.M., and C.M. continued. S.M. testified

  that they continued shouting at each other, and Galvan shouted at

  S.M. and C.M. that they “were going to get it” and should “watch

  [their] backs.” S.M. and C.M. started walking down the street to

  their aunt’s house.

¶9     According to S.M., as they walked, Galvan drove slowly by

  them shouting “[i]f any of you want this, well, come and get it.”

  Then, Galvan stopped his truck, got out, and started running

  toward C.M. with his fist cocked, as if ready to punch. Galvan then

  punched C.M. in her face, breaking her nose and causing her to

  fall. During her fall, C.M. broke her ankle. S.M. then went after

  Galvan and the two physically fought.

¶ 10   Galvan’s sister testified differently. As she and Galvan drove

  away from the bus, she heard something hit the truck. She


                                    4
  believed that C.M. had hit the truck with a bottle, so Galvan

  stopped the truck, and the sister got out to see if there was any

  damage. While she was checking the truck, S.M. and C.M. came up

  behind her and S.M. shoved her. The sister saw C.M. over her

  shoulder and then saw a fist. The next thing she knew, C.M. was

  on the ground, bleeding from her face. Then S.M. and Galvan

  fought. Finally, Galvan and his sister left the scene.

¶ 11     After a police investigation, Galvan was charged with second

  degree assault against C.M.; and menacing, criminal attempt to

  commit assault in the second degree, and assault in the third

  degree against S.M. The jury acquitted Galvan of all charges

  against S.M., but convicted him of second degree assault against

  C.M.

  II.    The Court Did Not Err in Instructing the Jury on Self-Defense
                            or the Duty to Retreat

¶ 12     At Galvan’s request, the trial court instructed the jury on the

  affirmative defense of self-defense using the Colorado Model

  Criminal Jury Instructions. COLJI-Crim. H:11 (2018). But the

  court, over Galvan’s objection, also instructed the jury on the

  provocation exception to self-defense. Galvan claims this was error

                                      5
  because there was no evidence that supported the provocation

  exception.

¶ 13   Galvan also raises two additional contentions of error

  regarding the self-defense instruction and the related concept of

  retreat. First, he argues that the self-defense instruction was

  defective because it did not distinguish between the two alleged

  victims. Second, he contends that the court improperly rejected his

  tendered “no retreat” instruction. We address each of these

  contentions in turn.

                       A.   Additional Relevant Facts

¶ 14   As to self-defense, the trial court instructed the jury as follows:

               The evidence presented in this case has raised
               the affirmative defense of “defense of person,”
               as a defense to Assault In The Second Degree,
               Criminal Attempt to Commit Assault In The
               Second Degree, Menacing, and Assault In The
               Third Degree.

               The defendant was legally authorized to use
               physical force upon another person without
               first retreating if:

                    1. he used that physical force 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 that other person, and

                                      6
                   2. he used a degree of force which he
                   reasonably believed to be necessary for
                   that purpose, and

                   3. he did not, with intent to cause bodily
                   injury or death to another person,
                   provoke the use of unlawful physical
                   force by that other person.

            The prosecution has the burden to prove,
            beyond a reasonable doubt, that the
            defendant’s conduct was not legally authorized
            by this defense. In order to meet this burden
            of proof, the prosecution must disprove,
            beyond a reasonable doubt, at least one of the
            above numbered conditions.

            ....

¶ 15   At the jury instruction conference, Galvan objected to giving

  the instruction as written, arguing that there was no evidence of

  provocation by him. As to C.M., the prosecutor agreed that there

  was no evidence of provocation. The trial court disagreed, stating

  that it believed there was some evidence of provocation as to both

  alleged victims. Thus, the trial court instructed the jury on

  provocation.

¶ 16   Galvan also tendered a separate “no duty to retreat”

  instruction and argued that it was necessary because otherwise the

  jury might conclude, contrary to established Colorado law, that

                                     7
  Galvan had a duty to retreat. The prosecution objected to a

  separate no duty to retreat instruction, arguing, successfully, that

  the substance of the no duty to retreat instruction was already

  encompassed in the model self-defense instruction.

       B.   The Trial Court Did Not Err in Instructing the Jury on
                                 Provocation

                         1.   Judicial Estoppel

¶ 17   Initially, Galvan argues that the Attorney General cannot

  argue on appeal that there was any evidence to support the

  provocation instruction because, at trial, the prosecutor agreed with

  Galvan that there was no evidence of provocation as to C.M.

¶ 18   We take this to be an argument that the Attorney General is

  judicially estopped from arguing on appeal that there was sufficient

  evidence to support the provocation instruction. Applying the

  established law of judicial estoppel, we reject that argument.

¶ 19   Judicial estoppel is a doctrine that “prevents a party from

  taking inconsistent positions in related court proceedings with

  intent to mislead the court.” Janicek v. Obsideo, LLC, 

 (Colo. App. 2011). The elements of judicial estoppel are



                                    8
       1. The two positions must be taken by the same party (or

          parties in privity with each other);

       2. the positions must be taken in the same or related

          proceedings involving the same parties;

       3. the party taking the positions must have been successful in

          maintaining the first position and must have received some

          benefit in the first proceeding;

       4. the inconsistency must be part of an intentional effort to

          mislead the court; and

       5. the two positions must be totally inconsistent — that is,

          the truth of one position must necessarily preclude the

          truth of the other.

  Arko v. People, 

 (Colo. 2008) (citing Estate of

  Burford v. Burford, 

 (Colo. 1997)).

¶ 20   For two reasons, the Attorney General is not judicially

  estopped from defending the trial court’s decision to instruct the

  jury on provocation. First, there is no evidence of an intent to

  mislead the court (and Galvan does not argue that there was).

  Second, the prosecution did not receive a benefit in the first


                                     9
  proceeding based on its position. See Arko, 

. 1

  Because the judicial estoppel argument fails on two elements, we

  need not address the remaining elements.

        2.    The Standard for Giving a Provocation Instruction

¶ 21   The first question is what quantum of proof is necessary to

  authorize an instruction on one of the statutory exceptions to self-

  defense. The supreme court has not spoken authoritatively on this

  question, although in a recent case it assumed, without deciding,

  that the quantum of proof was “some evidence.” Castillo v. People,

  

. At least two divisions of this court have applied

  the same quantum of proof standard. People v. Castillo, 

 Nor was the prosecutor’s statement a judicial admission. “A
  judicial admission is a formal, deliberate declaration that a party or
  his attorney makes in a judicial proceeding for the purpose of
  dispensing with proof of formal matters . . . .” People v. Curren, 

 (Colo. App. 2009). Here, the prosecutor was not
  “dispensing with proof of [a] formal matter[],” 

 but instead was
  commenting on the evidence presented at trial for the purposes of
  crafting a jury instruction. Such a comment does not meet the
  requirements of a judicial admission.

  Evaluating the prosecutor’s statement to the trial court as a
  concession on the question of whether there was some evidence of
  provocation, we are not bound by that concession. People v.
  Backus, 

 (Colo. App. 1998).
                                    10
  140M, ¶¶ 20-21, rev’d on other grounds, 

; People v.

  Zukowski, 

 (Colo. App. 2010). Because we agree

  with those divisions, we apply that standard here.

¶ 22    “Whether sufficient evidence exists to support the requested

  instruction is a question of law that we review de novo.” Castillo,

  ¶ 32. We view the evidence in the light most favorable to the giving

  of the challenged instruction. People v. Silva, 

  (Colo. App. 1999).

¶ 23    An instruction on provocation is authorized when “1) self-

  defense is an issue in the case; 2) the victim makes an initial attack

  on the defendant; and 3) the defendant’s conduct or words were

  intended to cause the victim to make such attack and provide a

  pretext for injuring the victim.” 

 Thus, for a defendant to forfeit

  self-defense under the provocation exception, the defendant must

  act with the intent to provoke the victim into attacking first. Id.

   3.   Whether Colorado Law Requires More Than Words to Justify
        Giving a Provocation Instruction Need Not Be Decided in This
                                    Case

¶ 24    Galvan argues that “mere words are not such provocation as

  would eliminate one’s right of self-defense.” People v. Winn, 540


                                    

 (Colo. App. 1975) (not published pursuant to

  C.A.R. 35(f)); see also Silva, 

 (noting that “insulting

  language is not a provoking incident” (citing Bush v. People, 

, 

 (1888))).

¶ 25   No published Colorado case has expressly determined

  whether, under Colorado law, words alone are sufficient to support

  the giving of a provocation instruction.2 Although Silva stated that

  “the defendant’s conduct or words” could justify the giving of a

  provocation instruction, 

 (emphasis added), Silva

  did not analyze whether words alone are sufficient to sustain a

  provocation instruction. At least one state’s highest court has

  determined that under its law, words alone are not enough. State v.

  Riley, 

 (Wash. 1999). We need not decide this

  question because, as discussed below, here both words and

  conduct supported the provocation instruction.




  2 Whether provocation can be proved by words alone or whether
  there must always be some conduct by the defendant is a matter of
  Colorado law. Federal constitutional law, however, determines
  whether particular words may be used to establish provocation
  consistent with the First Amendment.
                                    12
       4.     The First Amendment Does Not Prohibit Some of Galvan’s
              Words From Being Considered as Evidence of Provocation

¶ 26        Galvan next contends that consideration of his words to

  support the provocation instruction violates the First Amendment.

¶ 27        The First Amendment of the United States Constitution

  provides that “Congress shall make no law . . . abridging the

  freedom of speech.” Colorado’s counterpart to the First Amendment

  provides that “[n]o law shall be passed impairing the freedom of

  speech.” Colo. Const. art. 2, § 10.

¶ 28        We first address whether the First Amendment has any

  application in this context. The State did not criminally punish

  Galvan because of the words he uttered. But the State has,

  nevertheless, regulated his speech through the giving of the

  provocation instruction. By using his words (at least in part) to

  justify giving an instruction that limits his right to self-defense, the

  First Amendment was implicated.

¶ 29        While the First Amendment protects the right to free speech,

  its protection is not absolute. Virginia v. Black, 

  (2003). Some categories of speech, such as “fighting words” and

  “true threats” are unprotected by the First Amendment, and the

                                       13
  government may permissibly regulate that speech. 

;

  see also People v. Chase, 

, ¶ 68.3

¶ 30   The Supreme Court has defined fighting words as “those

  personally abusive epithets which, when addressed to the ordinary

  citizen, are, as a matter of common knowledge, inherently likely to

  provoke violent reaction.” Black, 

 (emphasis added)

  (quoting Cohen v. California, 

 (1971)). That is,

  fighting words are those “which by their very utterance tend to

  incite others to unlawful conduct or provoke retaliatory actions

  amounting to a breach of the peace.” People In Interest of R.C.,

  

 (quoting Hansen v. People, 

,

  

 (1976)).

¶ 31   The First Amendment permits regulation of such words

  because “[i]t has been well observed that such utterances are no

  essential part of any exposition of ideas, and are of such slight

  social value as a step to truth that any benefit that may be derived



  3The Attorney General does not argue that Galvan’s statements
  constitute true threats, and because we determine that some of his
  words were fighting words and therefore not protected by the First
  Amendment, we do not address whether his statements also
  constituted true threats.
                                    14
  from them is clearly outweighed by the social interest in order and

  morality.” Chaplinsky v. New Hampshire, 

 (1942).

  However, “[t]he Supreme Court has ‘never held that the government

  may, consistent with the First Amendment, regulate or punish

  speech that causes emotional injury but does not have a tendency

  to provoke an immediate breach of the peace.’” R.C., ¶ 12 (quoting

  Purtell v. Mason, 

 (7th Cir. 2008)).

¶ 32   “[A] defendant’s words are considered as a ‘package’ in

  combination with conduct and physical movements, viewed in light

  of the surrounding circumstances.” 

 at ¶ 22 (quoting In re

  Welfare of M.A.H., 

 (Minn. Ct. App. 1997)).

  Thus, whether speech constitutes fighting words must be

  determined on a case-by-case basis, considering all the particular

  facts and circumstances. 

¶ 33   Recently, another division of this court addressed whether a

  photograph, which had been altered to add a drawing of male

  genitalia close to a juvenile’s face, constituted fighting words. Id. at

  ¶¶ 3, 7. The division’s majority observed that “speech that

  embarrasses or disgraces another is insufficient to qualify as


                                     15
  fighting words. Even vulgar and insulting speech that is likely to

  arouse animosity or inflame anger, or even to provoke a forceful

  response from the other person, is not prohibited.” Id. at ¶ 18.

¶ 34   That R.C.’s conduct “was not accompanied by any hostile,

  aggressive, or threatening language or conduct” was also important

  to the majority’s analysis. Id. at ¶ 24. The majority held that the

  image did not constitute fighting words because “the average person

  — even an average fourteen-year-old — would not be expected to fly

  into a violent rage upon being shown [such] a photo of himself . . . .

  ” Id. at ¶ 32.

¶ 35   While we agree with the exposition of law in the majority

  opinion in R.C., the circumstances here are factually

  distinguishable from those in R.C. Unlike in R.C., Galvan’s words

  reasonably could be understood as inviting S.M. and C.M. to “make

  such attack and provide a pretext for injuring” C.M. Silva, 

. This invitation is encapsulated in the following words and

  actions, at least according to some of the testimony:

       •     During the argument on the bus, in response to S.M.

             telling him to stop throwing pieces of food at the sleeping


                                    16
             partygoer, Galvan stood up and said, “What the fuck are

             you going to do about it bitch?” then “stepped forward”

             toward S.M. and C.M., who stood up in response.

       •     Galvan and his sister got in his truck, but he continued

             yelling at S.M. and C.M. that they were “nothing but a

             bunch of fat, fucking bitches,” “were going to get it,” and

             should “watch [their] backs.”

       •     As Galvan drove slowly down the street, he yelled: “If any

             of you want this, well, come and get it.”

       •     And then he “all of a sudden stop[ped] his truck,” got out,

             and started running toward C.M. with his fist cocked, as

             if ready to punch.4

¶ 36   Not all of Galvan’s statements constitute fighting words.5 His

  repeated statements that S.M. and C.M. were “big, fat bitches,”



  4 Galvan also yelled insults at the sisters, calling them “big, fat
  bitches” as everyone exited the bus. However, for the reasons
  explained in the text, those insults do not rise to the level of fighting
  words.
  5 We note that there is no contention that any of Galvan’s

  statements constitute political speech. Cf. Village of Skokie v. Nat’l
  Socialist Party of Am., 

 (Ill. 1978) (holding that
  the display of swastikas during a march through a community

                                     17
  though offensive, were not of such character as to incite the sisters

  to react violently. However, his invitation for S.M. and C.M. to

  “come and get it” was a direct invitation to violence and stands on a

  different footing. State v. Bougneit, 

 (Wis. Ct.

  App. 1980), supports our analysis. As in Bougneit, Galvan “invited

  [C.M. and S.M.] to fight and, in fact, taunted [them] with fighting

  words.” 

¶ 37   Unlike R.C., and the cases relied on by the majority there,

  Galvan did not merely call S.M. and C.M. names or make offensive

  comments. See R.C., ¶¶ 23, 28. He also threatened S.M. and C.M.

  by telling them that they should “watch [their] backs,” and then he

  invited them to respond with violence by yelling: “If any of you want

  this, well, come and get it.” (Emphasis added.)

¶ 38   Also, in contrast to R.C.’s speech, Galvan’s words were uttered

  face-to-face with the alleged victims, and were relatively close in

  time to the physical altercation between him and C.M. See People

  in Interest of R.D., 

, ¶ 19 (holding that because




  inhabited by Holocaust survivors did not to amount to “fighting
  words” but instead was political speech).
                                    18
  statements made over the internet were not made face-to-face or in

  close physical proximity to the alleged victim, the statements did

  not constitute fighting words) (cert. granted Sept. 5, 2017).

¶ 39   The timing of Galvan’s statements is important because one

  factor in determining if words are fighting words is whether they

  “tend[] to provoke an immediate breach of the peace.” 6 R.C., ¶ 12

  (emphasis added). The evidence presented at trial showed that, at

  least, Galvan’s statements made after the group exited the party

  bus — that C.M. and S.M. should “watch [their] backs,” “were going

  to get it,” and should “come and get it” — were in close temporal

  proximity to the physical altercation between C.M. and Galvan.

¶ 40   These specific words, taken in context and “in combination

  with [Galvan’s] conduct and physical movements,” 

 at ¶ 22

  (quoting M.A.H., 

), were “inherently likely to

  provoke a violent reaction.” R.D., ¶ 17 (quoting People in Interest of

  K.W., 

). We conclude that these words were

  fighting words and thus are not protected by the First Amendment.



  6The record is unclear regarding precisely how much time passed
  between when the group exited the party bus and when the
  physical altercation between Galvan and C.M. occurred.
                                    19
  Therefore, these words could properly be considered in determining

  whether some evidence supported the provocation instruction.

       5.     At Least Some Evidence Supported Giving the Provocation
                                   Instruction

¶ 41        Viewing the evidence in a light most favorable to giving the

  provocation instruction, Silva, 

, we conclude that

  there was at least some evidence that Galvan provoked C.M. See

  Zukowski, 

. Based on the evidence presented, a

  reasonable juror could have found that Galvan’s actions and

  statements, discussed above, were intended to give him an excuse

  to physically harm C.M. 7 Therefore, the trial court did not err in

  instructing the jury on the provocation exception.

      C.     The Trial Court Did Not Abuse Its Discretion by Declining to
                     Give A More Specific Provocation Instruction

¶ 42        Galvan also contends that the provocation instruction was

  defective because it did not specify to which victim it applied. We

  disagree.




  7 We emphasize that it is for the jury to determine whether Galvan
  in fact provoked C.M., not the trial court or this court. The trial
  court’s role is that of gatekeeper, which is why the quantum of proof
  to authorize the provocation instruction is low.
                                        20
¶ 43   To begin, the instruction tracked the language of the statute.

  “An instruction that tracks the language of the statute, as this one

  did, is generally sufficient.” People v. Archuleta, 

, ¶ 52.

  It also tracked the language of the Colorado Model Criminal Jury

  Instructions. See COLJI-Crim. H:11 (2018).

¶ 44   Galvan argues that “if the jury concluded that Mr. Galvan did

  not act in self-defense with respect to S.M. because he allegedly

  provoked her, it could have applied that finding to the second

  degree assault offense against C.M.” To the extent we understand

  his argument, we reject it.

¶ 45   The provocation instruction stated that Galvan did not act in

  self-defense if “with intent to cause bodily injury or death to another

  person, [he] provoke[d] the use of unlawful physical force by that

  other person.” (Emphasis added.) The plain language of the

  instruction itself made clear that for Galvan to forfeit the affirmative

  defense of self-defense, he had to have provoked the person as to

  whom he was asserting self-defense.

¶ 46   “Jury instructions must be read as a whole, and if, when so

  read, they adequately inform the jury of the law, there is no


                                     21
  reversible error.” People v. Vanrees, 

 (Colo.

  2005). Coupled with the other instructions that correctly informed

  the jury that it had to decide the affirmative defense of self-defense

  based on the totality of the circumstances, and that each crime

  charged was subject to the defense of self-defense, the self-defense

  instruction adequately and correctly instructed the jury on the

  applicable law. See 

 Moreover, the jury was instructed to

  consider each charge separately and not let its decision on one

  charge influence its decision on the others. We presume the jury

  followed that instruction. See People v. Phillips, 

  (Colo. App. 2004) (“It is presumed the jury understood and heeded

  the trial court’s instructions.”).

   D.    The Trial Court Did Not Abuse Its Discretion by Declining to
               Give a Separate No Duty to Retreat Instruction

¶ 47    Galvan next contends that the trial court abused its discretion

  in refusing to give his tendered instruction on “no duty to retreat.”

  We disagree.

¶ 48    “We review de novo whether a jury instruction states the law

  correctly, and we review the trial court’s decision to give a particular



                                       22
  jury instruction for an abuse of discretion.” Walker v. Ford Motor

  Co., 

.

¶ 49   “The trial court must tailor the self-defense instructions to the

  particular circumstances of the case in order to adequately apprise

  the jury of the law of self-defense from the standpoint of the

  defendant.” Cassels v. People, 

 (Colo. 2004). “In

  cases where the jury could reasonably conclude that the defendant

  had a duty to retreat before using force in self-defense, the

  defendant may be entitled to a self-defense instruction tailored to

  address the issue of retreat.” 

 Still, a court may refuse an

  instruction that states principles already encompassed elsewhere in

  the court’s instructions. People v. Tweedy, 

  (Colo. App. 2005).

¶ 50   The jury was instructed that Galvan “was legally authorized to

  use physical force upon another person without first retreating . . . .”

  (Emphasis added.) The instruction containing the “no retreat”

  language tracked the language of the model jury instruction.

  COLJI-Crim. H:11 (2018); see also People v. Grenier, 

,




                                    23
  1080 (Colo. App. 2008) (finding no error where the jury instruction

  tracked the language of the model jury instruction).

¶ 51   Cassels, 

, and Idrogo v. People, 

  (Colo. 1991), are distinguishable because in those cases, none of the

  jury instructions told the jury that the defendant did not have a

  duty to retreat. Both of those cases were decided before the model

  jury instructions specifically addressed the “no duty to retreat”

  principle embedded in Colorado law. Thus, when the court stated

  in Cassels that “a standard self-defense instruction does not

  adequately apprise the jury that a defendant who is not the initial

  aggressor does not need to retreat before using force in self-

  defense,” 

, the court was assessing instructions that

  did not address the duty to retreat. The model jury instruction

  given in this case addresses that principle of law and, consequently,

  the jury was correctly instructed.

¶ 52   For these reasons, the trial court did not abuse its discretion

  by failing to give Galvan’s tendered no duty to retreat instruction.




                                    24
   III.   The Prosecutor’s Statements Regarding the Victims’ Rights to
                           a Fair Trial Were Harmless

¶ 53      Finally, Galvan argues that the trial court erred by allowing

  the prosecutor to suggest to potential jurors that the alleged victims

  had rights to a fair trial that were equal to Galvan’s constitutional

  rights to due process and a fair trial.

                            A.   Additional Facts

¶ 54      During voir dire, the prosecutor had the following colloquy

  with Jurors 2, 4, and 12:

               [PROSECUTOR]: Juror Number 2. I’m going to
               switch gears again. So the judge talked about
               the right to a fair trial. And, of course, we
               know that the defendant has a right to a fair
               trial. Part of that is the presumption of
               innocence. My question, though, is what about
               the victim’s right to a fair trial? What do you
               think about that?

               JUROR NUMBER 2: I think it’s important that
               they --

  (Emphasis added.) Galvan’s counsel objected, and the court

  overruled the objection. The potential juror continued:

               JUROR NUMBER 2: I think the victim has a
               right to have the -- all the facts put out and
               the correct conclusions found by the jury.



                                      25
¶ 55      Later, the prosecutor again asked about the victims’ rights to a

  fair trial.

                [PROSECUTOR]: Juror Number 4. I want to
                come back to this right of a fair trial. And, you
                know, the defendant is going to sit before you
                for the next few days, there’s not going to be a
                victim sitting at my table or even in the
                courtroom. What [are] your thoughts of the
                victim’s right to a fair trial?

  (Emphasis added.) Galvan’s counsel again objected, and the court

  again overruled the objection. The potential juror then answered:

                JUROR NUMBER 4: They deserve a fair trial,
                as well, and have their side heard.

¶ 56      Sometime later, in speaking with Juror 12, the prosecutor

  said:

                [PROSECUTOR]: I realize this has now kind of
                drug [sic] on for a while, so I don’t want to
                repeat myself. I just want to know if you have
                any thoughts on — we’ve talked about several
                issues; alcohol consumption, the victim’s right
                to a fair trial, the issue of man versus woman
                in self-defense, any of those issues. Do you
                have any specific thoughts that you think we
                should all be aware of?

                JUROR NUMBER 12: No, I don’t.

  (Emphasis added.) Jurors 4 and 12 served on Galvan’s jury.



                                       26
              B.    Standard of Review and Applicable Law

¶ 57   Our review of a claim of prosecutorial misconduct involves a

  two-step analysis. Wend v. People, 

 (Colo.

  2010). First, we determine whether the conduct at issue was

  improper based on the totality of the circumstances. 

 If we

  determine there was misconduct, we next determine whether the

  misconduct warrants reversal under the applicable standard of

  reversal. 

¶ 58   In determining whether prosecutorial misconduct has

  occurred, “[t]he context in which [the] challenged prosecutorial

  remarks are made is significant.” People v. Krueger, 

 (quoting People v. Santana, 

, 1133 n.5 (Colo.

  2011)). A prosecutor engages in prosecutorial misconduct during

  voir dire when she misstates the law or “intentionally use[s] the voir

  dire to present factual matter which the prosecutor knows will not

  be admissible at trial or to argue the prosecution’s case to the jury.”

  People v. Adams, 

 (Colo. App. 1985) (emphasis

  omitted) (quoting I ABA Standards for Criminal Justice § 3-5.3(c)

  (2d ed. 1980)).


                                    27
  C.   A Prosecutor May Not State or Imply that a Victim’s Rights are
               Equal to the Rights of the Criminal Defendant

¶ 59   Although no Colorado court has addressed whether a

  prosecutor may properly suggest to a jury venire that a victim’s

  rights under the Colorado Constitution, Colo. Const. art. 2, § 16a,

  and sections 24-4.1-301 to -303, C.R.S. 2018, are equal to those of

  a criminal defendant, courts in other states have addressed this

  question under those states’ laws.

¶ 60   For example, the Arizona Supreme Court concluded that “[i]t

  cannot be doubted that victims of crime, and their families, have

  certain rights. It is equally clear, however, that these rights do not,

  and cannot, conflict with a defendant’s right to a fair trial.” State v.

  Bible, 

 (Ariz. 1993) (citations omitted).

  Similarly, the New Mexico Court of Appeals held, in addressing

  claims of prosecutorial misconduct, that “[p]rosecutors should not

  suggest that a victim’s rights . . . can outweigh a defendant’s




                                     28
  constitutional rights.” State v. Dombos, 

 (N.M. Ct.

  App. 2008). 8

¶ 61   We agree with these courts. Although the alleged victims in

  this case have certain constitutional and statutory rights, Colo.

  Const. art. 2, § 16a; §§ 24-4.1-301 to -303, those rights do not rise

  to the same level and cannot conflict with Galvan’s constitutional

  rights to due process and a fair trial under the United States

  Constitution. U.S. Const. amends. V, VI.




  8 Still other courts have addressed (in a more cursory manner)
  circumstances where the prosecutor made a comparison between
  the rights of the victim and the rights of the criminal defendant. All
  of these courts found the comments improper, yet concluded
  reversal was not required. See McNair v. State, 

  (Ala. Crim. App. 1992) (holding that despite the fact that “[t]he
  prosecutor made numerous references to the victim’s rights and
  several times implied that her rights were to be weighed against the
  [defendant’s],” the error was not reversible); Jennings v. State, 

 (Fla. 1984) (concluding that it was improper
  for the prosecutor to “compare[ the defendant’s] right to use the
  telephone to call an attorney during his interrogation and the
  victim’s right to live”), vacated on other grounds, 

  (1985); State v. Marshall, 

 (N.J. 1991) (holding that
  the prosecutor’s comment that the victim “had a right to live her life
  in full” was harmless beyond a reasonable doubt); Bell v. State, 

 (Tex. Crim. App. 1986) (concluding that the
  error in allowing the prosecutor’s comment on the victims’
  constitutional rights was not reversible).
                                    29
¶ 62   The prosecutor never explicitly stated that the alleged victims’

  rights were equal to or greater than Galvan’s. But, to the extent the

  prosecutor’s statements implied such an equivalence, the

  prosecutor should not have made, and the trial court should not

  have permitted, such statements.

                      D.   Any Error Was Harmless

¶ 63   Even if a fair inference of the prosecutor’s remarks was that

  the victims’ rights were equal to, or in conflict with, Galvan’s rights,

  any error was harmless. The jury was properly instructed regarding

  Galvan’s constitutional right to a fair trial, and on the presumption

  of innocence. The trial court gave no instruction regarding the

  alleged victims’ rights to a fair trial. Nor did the prosecutor mention

  the alleged victims’ rights again during trial. So, the prosecutor’s

  statements, if improper, did not “substantially influence[] the

  verdict or affect[] the fairness of the trial proceedings.” Hagos v.

  People, 

, ¶ 12 (quoting Tevlin v. People, 

 (Colo. 1986)); see also Bible, 

 (determining

  that the prosecutor’s statements equating the victim’s rights with

  the defendant’s were not “fundamental error”).


                                     30
¶ 64   Moreover, the split verdicts in this case demonstrate that the

  jury followed the court’s instructions, which, as noted, correctly

  instructed the jury regarding Galvan’s constitutional rights.

                            IV.    Conclusion

¶ 65   The judgment is affirmed.

       JUDGE TAUBMAN and JUDGE TOW concur.




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