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 13, 2021
2021COA65
No. 17CA1911, People v. Garcia — Constitutional Law — Fifth
Amendment — Double Jeopardy; Criminal Law — Second Trial
Barred by Prosecution in Another Jurisdiction
This case is the first to conclude that section 18-1-303, C.R.S.
2020 does not apply to prior prosecutions by foreign countries,
distinguishing People v. Morgan, 785 P.2d 1294 (Colo. 1990).
COLORADO COURT OF APPEALS
2021COA65
Court of Appeals No. 17CA1911
Mesa County District Court No. 89CR901
Honorable Lance P. Timbreza, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Rafael Aguilar Garcia,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division I
Opinion by JUDGE GRAHAM*
Dailey and Tow, JJ., concur
Announced May 13, 2021
Philip J. Weiser, Attorney General, Brian M. Lanni, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Joseph Paul Hough, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
¶1 Defendant, Rafael Aguilar Garcia, appeals his conviction for
first degree murder. He contends that double jeopardy barred his
retrial and that the trial court erred by instructing the jury that it
could not consider self-defense. We reject these contentions and
affirm his conviction. We also conclude, for the first time, that
section 18-1-303, C.R.S. 2020, does not apply to prior prosecutions
by foreign countries, distinguishing People v. Morgan, 785 P.2d
1294 (Colo. 1990).
Background
¶2 Evidence adduced at trial demonstrated the following. In 1989
Garcia and his wife, J.G., separated. Garcia told J.G. that if he saw
any men at the house, they would be dead. Thereafter, J.G. began
a relationship with C.P., and Garcia said he would kill C.P. if he
went near J.G. Garcia also struck C.P.’s car from behind at a gas
station and wrote several journal entries about his hatred for C.P.
and his intent to kill him.
¶3 One night, a little after midnight, J.G. and C.P. were watching
a movie together in J.G.’s living room when Garcia came to the door
with a pump-action shotgun. Garcia struck J.G. in the head with
it, and C.P. began fighting with Garcia. Garcia stabbed C.P. in the
1
back with a knife. C.P. ran into a bedroom and locked the door.
Garcia fired the shotgun through the door, fatally hitting C.P. in the
chest and head.
¶4 Garcia fled to Mexico. The Mesa County District Attorney’s
Office attempted to extradite Garcia; however, its efforts were
unsuccessful. As an alternative to extradition, the District
Attorney’s Office, along with the Foreign Prosecutions Unit at the
Colorado Attorney General’s Office, compiled a casebook and sent it
to Mexico so Garcia could be prosecuted under Article IV of
Mexico’s Federal Penal Code. The Mexican tribunal considered the
case on submitted documents. Garcia was acquitted of C.P.’s
murder in Mexico.
¶5 In 2016, Garcia was arrested on an outstanding Colorado
warrant upon arriving at Denver International Airport.
¶6 At the trial here, Garcia testified in his own defense.
According to Garcia, J.G. had answered the door that night while
C.P. snuck out another door and attacked him from behind. A
struggle ensued, J.G. attempted to call the police, and Garcia cut
the phone cord with a knife. C.P. retreated into a bedroom and
locked the door. Garcia pursued C.P., broke a hole in the door with
2
the barrel of the gun, and blindly fired the shotgun twice through
the hole. Both shots incidentally struck C.P. in the chest and head.
¶7 Garcia testified that he did not mean the threats he wrote in
his journal but conceded that he knowingly killed C.P. and that he
did not act in self-defense. Garcia argued that the killing was
committed under a sudden heat of passion, which, in 1989,
constituted manslaughter. The jury convicted him of first degree
murder, and Garcia now appeals.
Double Jeopardy
¶8 Garcia first argues that because he was acquitted of C.P.’s
murder in Mexico, his retrial in Colorado violated his right to be free
from double jeopardy under the federal and state constitutions. He
further argues that his conviction violated his right to be free from
double jeopardy as extended and codified in section 18-1-303. He
also argues that the common law doctrines of jurisdictional waiver
and laches prevented his retrial and conviction. We disagree with
all these arguments.
3
A. Neither the Federal Constitution Nor the Colorado
Constitution Barred Garcia’s Prosecution in Colorado
1. Standard of Review and Preservation
¶9 We review double jeopardy claims de novo. People v. Frye,
2014 COA 141, ¶ 30. Garcia preserved his double jeopardy claim
by filing a motion to dismiss on double jeopardy grounds in the trial
court.
2. Law
¶ 10 Both the federal and state constitutions contain provisions
protecting individuals from being “twice put in jeopardy” for “the
same offense.” U.S. Const. amends. V, XIV; Colo. Const. art. II,
§ 18. As pertinent here, these provisions generally protect an
individual against a second prosecution after an acquittal for the
same offense. See People v. Leske, 957 P.2d 1030, 1035 n.5 (Colo.
1998).
¶ 11 Under the dual-sovereignty doctrine, separate sovereigns like
“the state and federal governments may prosecute a person for the
same offense without violating the double jeopardy prohibition of
the federal constitution.” Chatfield v. Colo. Ct. of Appeals,
775 P.2d
1168, 1174 n.7 (Colo. 1989). “The dual sovereignty doctrine is
4
founded on the common-law conception of crime as an offense
against the sovereignty of the government. When a defendant in a
single act violates the ‘peace and dignity’ of two sovereigns by
breaking the laws of each, he has committed two distinct ‘offences.’”
Heath v. Alabama, 474 U.S. 82, 88 (1985) (citation omitted).
¶ 12 In Bartkus v. Illinois, the Supreme Court suggested an
exception to the dual-sovereignty doctrine for sham prosecutions.
359 U.S. 121, 123-24 (1959). A prosecution by one sovereign is a
sham, precluding the application of the dual-sovereignty doctrine,
where one sovereign dominates, controls, and manipulates the
other sovereign into prosecuting the defendant. Id.; see United
States v. Moore,
370 F. App’x 559, 561 (5th Cir. 2010) (per curiam);
United States v. Dowdell,
595 F.3d 50, 63 (1st Cir. 2010). The
Bartkus exception is narrow and hard to prove. United States v.
Rashed,
234 F.3d 1280, 1282 (D.C. Cir. 2000). “[R]outine
intergovernmental assistance” and “[c]ooperative law enforcement
efforts” between independent sovereigns, without more, do not
satisfy the Bartkus test. Dowdell,
595 F.3d at 63 (quoting United
States v. Guzman,
85 F.3d 823, 828 (1st Cir. 1996)); Moore,
370 F.
App’x at 561.
5
3. Application
¶ 13 Garcia was tried for and convicted of C.P.’s murder in
Colorado after his acquittal for the same crime in Mexico. There is
no dispute that Mexico qualifies as a sovereign nation for purposes
of the dual-sovereignty doctrine. United States v. Hughes, 211 F.3d
676, 688 (1st Cir. 2000); see Moore,
370 F. App’x at 560.
Nonetheless, Garcia urges us to hold that double jeopardy barred
his retrial in Colorado because Mexico’s legal authority to prosecute
Garcia depended entirely upon the explicit consent and aid of
Colorado authorities who compiled a casebook and presented it to
Mexican prosecutors.
¶ 14 True, the Mesa County District Attorney’s Office decided to
participate in a foreign prosecution in Mexico under Article IV after
multiple unsuccessful attempts to extradite Garcia. However, after
presentation of the casebook, no Colorado officials were actively
involved in the case in Mexico.
¶ 15 Preparing a casebook and presenting it to the Mexican
tribunal falls far short of domination, control, or manipulation of
the Mexican government. Rather, as in Moore, Garcia has failed to
show or even allege that Colorado “so thoroughly dominated or
6
manipulated” the Mexican prosecutorial machinery that the
Mexican authorities “retain[ed] little or no volition” in their own
proceedings such that they were a “mere tool” of their counterparts
in Colorado. See Moore, 370 F. App’x at 560-61. Instead, his
argument that Mexico’s legal authority to prosecute Garcia
depended entirely upon the explicit consent and aid of Colorado
authorities is barely sufficient to show routine intergovernmental
assistance and cooperation.
¶ 16 Accordingly, Garcia’s argument that his prosecution was
barred by the Double Jeopardy Clauses of the United States and
Colorado Constitutions fails.
B. Section 18-1-303 Does Not Apply to Foreign Prosecutions
¶ 17 We now address, as a matter of first impression, whether
section 18-1-303 applies to prosecutions in foreign countries.
Based on the plain language of the statute, we conclude that it does
not.
1. Standard of Review and Preservation
¶ 18 Statutory interpretation is a question of law that we review de
novo. Smith v. Exec. Custom Homes, Inc., 230 P.3d 1186, 1189
7
(Colo. 2010). Garcia preserved this claim by filing a motion to
dismiss under section 18-1-303 in the trial court.
2. Law
¶ 19 When interpreting a statute, we look first to its plain language.
Smith, 230 P.3d at 1189. When the plain language is clear, our job
ends, and we must apply the statute as written. Id.
¶ 20 We may not add words to or subtract words from the statute.
See People v. Diaz, 2015 CO 28, ¶ 12; People v. Benavidez,
222 P.3d
391, 393-94 (Colo. App. 2009) (“[I]n interpreting a statute, we must
accept the General Assembly’s choice of language and not add or
imply words that simply are not there.”). Additionally, “when the
legislature speaks with exactitude, we must construe the statute to
mean that the inclusion or specification of a particular set of
conditions necessarily excludes others.” Lunsford v. W. States Life
Ins.,
908 P.2d 79, 84 (Colo. 1995).
¶ 21 Despite the ability of separate sovereigns to prosecute an
individual for the same offense, many states, including Colorado,
have partially rejected or limited this doctrine by statute. See § 18-
1-303. Section 18-1-303 provides, in pertinent part, as follows:
8
(1) If conduct constitutes an offense within the
concurrent jurisdiction of this state and of the
United States, or another state, or of a
municipality, a prosecution in any other of
these jurisdictions is a bar to a subsequent
prosecution in this state under either of the
following circumstances:
(a) The first prosecution resulted in a
conviction or an acquittal as defined in section
18-1-301(1)(a) and (1)(c), and the subsequent
prosecution is based on the same conduct,
unless:
(I) The offense for which the defendant was
formerly convicted or acquitted requires proof
of a fact not required by the offense for which
he is subsequently prosecuted and the law
defining each of the offenses is intended to
prevent a substantially different harm or
evil . . . .
3. Application
¶ 22 Section 18-1-303 bars prosecutions in Colorado when there
has been a prosecution (that resulted in a conviction or acquittal)
for the same conduct in “the United States, . . . another state,
or . . . a municipality.” Foreign countries are not among the
enumerated jurisdictions within the scope of the statute, and we
may not add this term to the statute.
¶ 23 Nonetheless, Garcia relies on People v. Morgan, 785 P.2d at
1298, and its statement that “[t]he better reading of section
9
18-1-303 uniformly abolishes the dual sovereignty doctrine,
prohibiting prosecution under Colorado law when the defendant
has been subjected to a prior prosecution by any separate
sovereign — federal, state or tribal.”
¶ 24 We are, of course, bound by the supreme court’s holding in
Morgan. See In re Estate of Ramstetter, 2016 COA 81, ¶ 40. But
this case is distinguishable from Morgan and involves facts and
circumstances not present in that decision.
¶ 25 First, despite the court’s statement in Morgan that section
18-1-303 “uniformly abolishes the dual sovereignty doctrine” and
that it prohibits a Colorado prosecution when there has been a
“prior prosecution by any separate sovereign,” the court itself
limited its holding to “federal, state or tribal” sovereigns.
785 P.2d
at 1298. A foreign nation is not a federal, state, or tribal sovereign.
¶ 26 Second, Morgan’s holding was premised on the fact that
section 18-1-303 was enacted before the Supreme Court’s decision
in United States v. Wheeler,
435 U.S. 313 (1978), superseded by
statute,
25 U.S.C. § 1301. Morgan,
785 P.2d at 1297-98. Wheeler
held that Native American tribes are separate sovereigns from the
United States for double jeopardy purposes.
435 U.S. at 322;
10
Morgan, 785 P.2d at 1297-98. “Thus, when section 18-1-303 was
first adopted, the legislature justifiably could have believed that
tribal prosecutions were comprehended within prosecutions by the
United States” and therefore were within the statute’s scope as
written. Morgan,
785 P.2d at 1297-98.
¶ 27 Like tribal nations, foreign nations are not expressly included
in section 18-1-303. However, unlike the tribal nations whose
separate sovereignty from the United States for double jeopardy
purposes was confirmed after the enactment of section 18-1-303,
the same cannot be said of foreign nations. As pertinent here,
Mexico became a sovereign nation long before the Colorado General
Assembly enacted section 18-1-303.1
¶ 28 Third, while the General Assembly may have understood the
term “United States” to encompass prosecutions by tribal courts at
the time of enactment, there is no reason to believe the General
Assembly understood the terms “United States,” “another state,” or
“municipality” to encompass foreign countries like Mexico.
1In 1821, Mexico won its independence from Spain. See, e.g., Ely’s
Adm’r v. United States,
171 U.S. 220, 228 (1898). The present form
of section 18-1-303 was enacted in 1971. Ch. 121, sec. 1, § 40-1-
403,
1971 Colo. Sess. Laws 388, 397.
11
¶ 29 Nevertheless, Garcia argues that the term “another state” in
the statute includes not only the states within the United States,
but also the states of Mexico. This interpretation would mean that
a previous prosecution in Mexico, where there are states, would
prohibit subsequent prosecution in Colorado, but a previous
prosecution in Canada, where there are provinces, would not
prohibit subsequent prosecution in Colorado.
¶ 30 A statutory interpretation that leads to an illogical or absurd
result will not be followed. See Frazier v. People, 90 P.3d 807, 811
(Colo. 2004). An interpretation that hinges on the term a foreign
nation has assigned to its political subdivisions is illogical and
absurd. Therefore, we do not adopt this interpretation.
¶ 31 To the extent Garcia argues that the phrase “another state”
encompasses any foreign country, that argument also fails.
¶ 32 Many Colorado statutes demonstrate that where the General
Assembly intends to refer to foreign countries in a statute, it does
so explicitly. See, e.g., § 16-19-117(1), C.R.S. 2020 (“[T]he judge of
any district court within the state of Colorado may admit any
person arrested, held, or detained for extradition or interstate
rendition to another state or territory of the United States or to any
12
foreign country . . . .”) (emphasis added); § 33-1-102(38)(e), C.R.S.
2020 (a person terminates his Colorado residence by registering to
vote in “another state or foreign country”); § 38-13-1203(1), C.R.S.
2020 (“The administrator may join another state or foreign country
to examine and seek enforcement of this article 13 against a
putative holder.”) (emphasis added).
¶ 33 The General Assembly’s use of both “another state” and
“foreign country” in these statutes demonstrates that it does not
intend one phrase to encompass the other. If the legislature
intended the phrase “another state” to include foreign countries, the
language in these statutes, and others, would be redundant. See
People v. Trupp, 51 P.3d 985, 988 (Colo. 2002) (courts avoid
statutory interpretations that render language redundant or
superfluous).
¶ 34 Accordingly, section 18-1-303 did not bar Garcia’s subsequent
prosecution in Colorado.2
2 Even if section 18-1-303, C.R.S. 2020, did bar prosecutions in
Colorado after a foreign prosecution, it would not apply here
because C.P.’s murder was not an offense within the “concurrent
jurisdiction” of Mexico and Colorado. Garcia killed C.P. in
Colorado. Mexico does not ordinarily have jurisdiction to prosecute
13
C. The Doctrines of Jurisdictional Waiver and Laches Do Not
Apply
¶ 35 Garcia next argues, for the first time on appeal, that the State
of Colorado voluntarily relinquished jurisdiction over the entire case
to Mexico when it pursued an Article IV prosecution, and that
laches barred his retrial.
¶ 36 True, the government may waive its jurisdiction over a
criminal defendant. See Brown v. Brittain, 773 P.2d 570, 572 (Colo.
1989). However, the cases Garcia cites for that proposition are
readily distinguishable.
¶ 37 In Brittain, for example, our supreme court acknowledged that
a prisoner who was mistakenly released through no fault of his own
may receive credit against his sentence for the time he was at
liberty, in part because the “failure to attempt to regain custody of
the prisoner within a reasonable time constitutes a waiver of
jurisdiction over the prisoner.”
Id. The situation here is not
remotely similar. The State of Colorado did not somehow neglect to
crimes committed in Colorado. Rather, Mexico acquired jurisdiction
to prosecute Garcia under Article IV only after he fled to Mexico and
only while he remained there. Therefore, Mexico’s jurisdiction was
not concurrent with Colorado’s, and section 18-1-303 did not bar
his subsequent prosecution here.
14
prosecute Garcia or ignore the fact that he fled the jurisdiction to
escape a murder charge. Because Mesa County officials were
unsuccessful in their repeated attempts to extradite Garcia, they
decided to pursue an Article IV prosecution in Mexico. Sending a
casebook to Mexico to allow Mexico to pursue an Article IV
prosecution, unlike the mistaken decision to release a prisoner
early, does not amount to a jurisdictional waiver.
¶ 38 Laches, the “equitable doctrine that may be asserted to deny
relief to a party whose unconscionable delay in enforcing his rights
has prejudiced the party against whom relief is sought,” is likewise
inapplicable. Robbins v. People, 107 P.3d 384, 388 (Colo. 2005).
¶ 39 Laches does not bar the prosecution of a defendant who
returns to the state jurisdiction after having absconded for many
years. See Warren v. Warren,
112 A. 729, 730 (N.J. Ch. 1921).
¶ 40 Furthermore, there was no unconscionable delay on the part
of the Mesa County District Attorney’s Office. Instead, the record
reveals that Mesa County filed a complaint in 1989 (one day after
Garcia killed C.P.), made multiple unsuccessful attempts to
extradite Garcia, compiled a casebook and sent it to Mexico for an
Article IV prosecution, and brought Garcia to trial within one year
15
of his arrival in the United States in 2016. The fact that Garcia fled
the country does not amount to a lack of diligence on the part of the
Mesa County District Attorney’s Office. Nor has Garcia presented
any evidence that he was somehow prejudiced by the delay in
prosecution. Therefore, these claims fail.
Jury Instructions
¶ 41 Garcia argues that the trial court reversibly erred by
instructing the jury that the defense had not asserted self-defense
and that the jury could not consider self-defense in its
deliberations. He further argues that the instruction undermined
his heat of passion defense. He posits that he “claimed a lesser or
imperfect form of self-defense, namely, heat of passion
manslaughter” and that the instruction improperly advocated for
the prosecution’s theory of the case, in effect negating the heat of
passion manslaughter argument.
¶ 42 The parties disagree as to whether this latter contention was
preserved, but because we conclude that the trial court’s decision to
give this instruction was not an abuse of discretion, we need not
resolve this disagreement. Consequently, it did not undermine any
hybrid heat of passion defense that Garcia now advances.
16
A. Additional Facts
¶ 43 At the jury instruction conference, the district attorney
submitted an additional instruction clarifying that the defense was
not claiming self-defense:
[Prosecutor]: I’m actually submitting another
instruction. And this I’m submitting based on
the flavor and the actual spoken words of the
Defendant during his testimony yesterday.
There was a clear self-defense spin on what
happened. And I think it’s important to know
that the Defense has not asserted the defense
of self defense and they should not be
considering self defense in their deliberations.
I think it was so apparent, not that this is
tangible evidence of this, but I think it’s
something the court can consider for the
record the headline in today’s paper said
something to the effect of: The Defendant
claims or Mr. Garcia claims self defense. Self
defense was in the caption of [a] newspaper
article.
Now why is that relevant? I think it’s relevant
because it goes to show that someone sitting in
the courtroom, hearing testimony from the
Defendant, then proceeded to characterize it as
him claiming self defense. He was asked
questions along those lines and certainly he
put a self-defense spin on what he did. That
he was attacked and he was reacting to the
attack more than being the instigator of the
violence himself.
17
And certainly, when we get into initial
aggressor/self defense issues, it becomes very
complicated. I think it’s important to allay any
thoughts the jury might have that this is in
any way a self-defense claim.
And it’s entirely consistent with what has
transpired in this case. They have not
asserted a defense of self defense and they
may not consider self defense.
....
[Defense Counsel]: And I object to this
instruction, Your Honor. It wasn’t brought up
by the Defense that this was a self-defense
case. If the Court remembers, the testimony
from Mr. Garcia yesterday toward the end of
the day, it was actually Mr. Tuttle [the
prosecutor] who brought up the word “self
defense.” I objected to my client being
questioned about the legal terminology of self
defense. That was overruled. He was able to
speak about that. So for the DA to be able to
question him on self defense even though I
myself had not questioned him on self defense,
I think that they have introduced that
information to the jury and I don’t believe that
this instruction is necessary.
There’s a blanket instruction in the [model
criminal jury instructions] and I don’t have it
in front of me but it’s something along the
lines of you have all of the evidence that you
have to consider. At least I think that’s
usually an instruction that’s given. I’m going
to have to look that one up.
18
But I just think that this goes above and
beyond when it was actually the prosecution
who brought up the self defense information
during Mr. Garcia’s cross examination.
....
The Court: All right. And then as to the self
defense instruction, it is true that there has
not been an instruction as to self defense being
an affirmative defense in this case. The Court
finds based upon the testimony it’s at least
confusing to the jury as to whether or not that
is what was being — that was part of the
theory of defense. And so the instruction
simply indicating that the defense is not
asserting the defense of self defense and you
may not consider self defense in your
deliberations is consistent with both the case
and the law. And so the Court will give that
one-sentence instruction.
¶ 44 The trial court instructed the jury as follows: “The Defense has
not asserted the defense of self defense and you may not consider
self defense in your deliberations.”
B. Law
¶ 45 A trial court has a duty to correctly instruct the jury on all
matters of law. People v. Espinosa, 2020 COA 63, ¶ 8. “We review
de novo whether a particular jury instruction correctly state[d] the
law. However, we review for an abuse of discretion a trial court’s
decision to give a particular jury instruction.” People v. McClelland,
19
2015 COA 1, ¶ 14 (citation omitted). The trial court has wide
discretion to determine the form and style in which the instructions
will be given to the jury. Williams v. Chrysler Ins. Co.,
928 P.2d
1375, 1377 (Colo. App. 1996). A court abuses its discretion when
its ruling is manifestly arbitrary, unreasonable, or unfair, or when it
misapplies the law. Nibert v. Geico Cas. Co.,
2017 COA 23, ¶ 8.
¶ 46 Despite a trial court’s broad discretion to determine form and
style, instructions that emphasize specific evidence are generally
disfavored. Krueger v. Ary,
205 P.3d 1150, 1157 (Colo. 2009);
People v. Nerud,
2015 COA 27, ¶ 43. Instructions that emphasize
specific evidence potentially confuse and misdirect the jury.
Krueger,
205 P.3d at 1157; People v. Mandez,
997 P.2d 1254, 1270-
71 (Colo. App. 1999).
C. Application
¶ 47 In closing argument defense counsel argued, “We haven’t said
this was self defense. We didn’t endorse self defense.” Therefore,
20
the trial court’s instruction that the defense had not asserted self-
defense was accurate.3
¶ 48 Moreover, absent any showing of arbitrariness,
unreasonableness, unfairness, or misapplication of the law, we
cannot conclude that the trial court’s decision to instruct the jury
that self-defense was not an asserted defense and should not be
considered in its deliberations amounted to an abuse of discretion.
The instruction did not comment on evidence adduced at trial and
dealt only with a theory of the case — a theory that the defense
openly rejected in argument to the jury. The instruction simply
reinforced Garcia’s position and said nothing about the defense of
heat of passion.
¶ 49 The self-defense instruction was given after the trial court
found that Garcia’s testimony had made the issue of whether
Garcia was claiming self-defense confusing. It did not invite
3 To the extent Garcia claims that he was entitled to a self-defense
instruction, the record reveals not only did Garcia never request a
self-defense instruction but also he expressly disclaimed self-defense as a defense. Therefore, any argument that Garcia was
entitled to a self-defense instruction was waived, and we do not
address that argument any further. People v. Rediger, 2018 CO 32,
¶ 40 (“[A] waiver extinguishes error, and therefore appellate
review . . . .”).
21
confusion or encourage the jury to focus on particular evidence.
Rather, the self-defense instruction clarified that self-defense was
not a defense that had been offered by Garcia.
¶ 50 Garcia claimed that he killed C.P. not after deliberation, but in
a sudden heat of passion. The trial court gave Garcia’s requested
theory of defense instruction, an instruction for the lesser included
offense of second degree murder, and a heat of passion
manslaughter instruction.
¶ 51 We note the evidence that Garcia murdered C.P. after
deliberation (and was therefore guilty of first degree murder) was
overwhelming. In the weeks leading up to the crime, Garcia struck
C.P.’s car from behind at a gas station. Garcia wrote several
journal entries about his hatred for C.P. and his intent to kill him.
Garcia even told J.G. that he would kill C.P. if he went near J.G.
On the night of the shooting, Garcia bashed a hole in the door that
C.P. was hiding behind, stuck the muzzle of a shotgun through the
hole, and fired. Based upon this evidence, the trial court’s
allowance of the heat of passion defense and clarification that self-
defense had not been pleaded were not an abuse of discretion.
22
Conclusion
¶ 52 The judgment of conviction is affirmed.
JUDGE DAILEY and JUDGE TOW concur.
23
