Colorado Supreme Court Clarifies: No Admission of Predicate Felony Is Required to Assert the Felony‑Murder Affirmative Defense (People v. Gallegos, 2025 CO 41M)

Colorado Supreme Court Clarifies: No Admission of Predicate Felony Is Required to Assert the Felony‑Murder Affirmative Defense

Case: The People of the State of Colorado v. Kenneth Alfonso Gallegos, 2025 CO 41M, 572 P.3d 136 (Colo. 2025), on certiorari to People v. Gallegos, 2023 COA 47, 535 P.3d 108

Introduction

In People v. Gallegos, the Colorado Supreme Court resolved a recurring trial‑practice and doctrinal dispute at the intersection of felony murder and affirmative defenses: whether a defendant must admit participation in the predicate felony to receive a jury instruction on the statutory affirmative defense to felony murder under section 18-3-102(2), C.R.S. (2018). The Court held that no such admission is required. This precedential ruling clarifies that a defendant may deny the predicate felony and still present the felony‑murder affirmative defense if the record contains “some credible evidence” supporting each statutory condition.

The case arose from a fatal shooting during a planned acquisition of vaping products from a high school acquaintance, L.C. The State charged Kenneth Gallegos with felony murder (predicate: robbery or attempted robbery) and related offenses. Gallegos’s defense was that he neither planned a robbery nor knew of a gun until too late to prevent the shooting. He nevertheless requested an instruction on the affirmative defense specific to felony murder. The trial court refused, calling the defense “diametrically opposed” to his “outright denial.”

The court of appeals reversed the felony‑murder conviction, concluding that Colorado law does not require admission of the predicate felony to invoke the felony‑murder affirmative defense. On certiorari, the Supreme Court affirmed, adopting a textual analysis of section 18-3-102(2) and reinforcing the low evidentiary threshold governing affirmative defenses.

Summary of the Opinion

Writing for a unanimous Court, Justice Boatright held:

  • A defendant need not admit the predicate felony to raise the statutory affirmative defense to felony murder. Section 18-3-102(2) contains no admission prerequisite.
  • The statutory conditions (a) through (f) speak in terms of participation and disengagement and contain denials of acts or knowledge; they do not require concession of “commission” of the underlying felony.
  • Affirmative defenses may be presented in the alternative even if inconsistent with other theories. It is the jury’s role to weigh conflicting evidence and resolve both elements of felony murder and the additional factual questions introduced by the affirmative defense.
  • The trial court erred by refusing the defense instruction on incompatibility grounds; sufficient “scintilla” evidence supported each condition to put the defense to the jury.
  • The Court affirmed the court of appeals’ judgment ordering a new trial on felony murder; lesser convictions were not disturbed.

Detailed Analysis

1) Precedents and Authorities Cited and Their Influence

  • Roberts v. People, 2017 CO 76, 399 P.3d 702; Pearson v. People, 2022 CO 4, 502 P.3d 1003; People v. Huckleberry, 768 P.2d 1235 (Colo. 1989): The Court revisited the framework distinguishing traverses (negating elements) from affirmative defenses (admitting the act but seeking justification, excuse, or mitigation). While these cases contain broad descriptions of affirmative defenses as generally entailing an “admission,” the Court explained those generalities do not control the specific text of the felony‑murder defense.
  • People v. Speer, 255 P.3d 1115 (Colo. 2011); People v. Garcia, 113 P.3d 775 (Colo. 2005); People v. Laeke, 2012 CO 13M, 271 P.3d 1111; Jefferson County Bd. of Equalization v. Gerganoff, 241 P.3d 932 (Colo. 2010): These authorities supplied the interpretive methodology—statutory interpretation is reviewed de novo, and when the language is unambiguous, courts implement the legislature’s intent as expressed in the text.
  • Galvan v. People, 2020 CO 82, 476 P.3d 746; People v. Saavedra‑Rodriguez, 971 P.2d 223 (Colo. 1998): The Court reiterated that a defendant need only present “some credible evidence”—a “scintilla,” even if “highly improbable”—to raise an affirmative defense. This low bar is central to the instruction entitlement question.
  • Martinez v. People, 2024 CO 48, 550 P.3d 713; People v. Pickering, 276 P.3d 553 (Colo. 2011): Once properly raised, an affirmative defense adds to the prosecution’s burden: the State must disprove at least one condition beyond a reasonable doubt, in addition to proving the offense’s elements beyond a reasonable doubt.
  • Mathews v. United States, 485 U.S. 58 (1988); Stevenson v. United States, 162 U.S. 313 (1896): Cited for the proposition that a defendant may seek jury instructions on defenses that are theoretically inconsistent with denial of guilt so long as there is evidence to support them. This supports allowing the felony‑murder affirmative defense alongside denial of the predicate felony.
  • Morissette v. United States, 342 U.S. 246 (1952): Used to clarify that “commission” of an offense requires concurrence of actus reus and mens rea; “participation” falls short of “commission,” a textual distinction that carried the Court’s analysis.
  • People v. Hendrickson, 45 P.3d 786 (Colo. App. 2001): Entrapment requires admission because its statute expressly contemplates “commission of acts which would otherwise constitute an offense.” The Court distinguished entrapment from felony‑murder’s defense because the latter’s text lacks an admission prerequisite.
  • People v. Fisher, 9 P.3d 1189 (Colo. App. 2000): Cited to describe felony murder as strict liability with respect to death (under the pre‑2021 statute), underscoring why the legislature included a dedicated affirmative defense to mitigate harsh outcomes for non‑killers.
  • Davis v. Pursel, 134 P. 107 (Colo. 1913): The Court declined to entertain the State’s new harmless‑error argument raised for the first time in reply, a procedural point reinforcing briefing rules on appeal.

2) The Court’s Legal Reasoning

The Court proceeded from first principles of statutory interpretation. It reviewed the felony‑murder statute and the affirmative defense codified in section 18-3-102(2) (2018), which, at the time of the offense, required the defendant to show “some credible evidence” of six conditions:

  • (a) Not the only participant in the underlying crime;
  • (b) Did not commit or aid the homicide;
  • (c) Was unarmed;
  • (d) Had no reasonable ground to believe another participant was armed;
  • (e) Did not engage in, intend, or reasonably expect conduct likely to cause death or serious bodily injury;
  • (f) Endeavored to disengage upon learning another participant was armed or intended dangerous conduct.

The State argued the defense “presupposes” commission of a qualifying felony because several conditions reference “participants,” and condition (f) speaks of “disengagement.” The Court rejected this position through a careful textual analysis:

  • Participation vs. Commission: “Participation” does not equal “commission.” Commission requires actus reus and mens rea; evidence of participation, without more, does not concede those elements. The text furthers no admission requirement.
  • Denial‑Framed Conditions: Conditions (b)–(e) are framed as denials (not the killer; unarmed; no reasonable grounds to believe others were armed; no engagement in conduct likely to cause death). These denials are logically compatible with disputing the predicate felony.
  • Disengagement: The requirement to “endeavor to disengage” (f) assumes some engagement but stops short of admission of criminal “commission.” Evidence of disengagement can coexist with denial of the offense, especially under the low “some credible evidence” threshold.
  • Inconsistent Theories Permitted: Relying on Mathews and Stevenson, the Court stressed that defendants may advance alternative and even inconsistent defenses so long as each is supported by evidence. Juries, not judges, reconcile conflicts and resolve the defense beyond a reasonable doubt.

Applying this framework to the record, the Court found a sufficient evidentiary basis—at least a scintilla—for each condition:

  • (a) Participation: Gallegos drove the group to and from the scene; that was some evidence he was “a participant” and not the only one.
  • (b) Not the killer/aid: It was undisputed that Mitchell shot L.C.
  • (c) Unarmed: Witnesses testified the gun was never in Gallegos’s possession.
  • (d) No reasonable grounds to believe others were armed: Serrano’s testimony—no clear plan, no recollection of gun discussion—provided at least a scintilla, despite conflicting testimony.
  • (e) No engagement in conduct likely to cause death/serious injury and no reasonable expectation others would do so: Again supported by Serrano’s equivocal testimony.
  • (f) Disengagement: Evidence that Gallegos tried to intervene to stop the struggle went to an immediate “endeavor to disengage.”

Because an affirmative defense, once properly raised, becomes an additional element the State must disprove beyond a reasonable doubt, the trial court’s refusal to instruct the jury improperly removed that issue from the case. The Supreme Court affirmed the court of appeals’ decision ordering a new felony‑murder trial.

3) Doctrinal Clarifications and Limits

  • Scope of Holding: The Court’s holding is specific to the felony‑murder affirmative defense. It expressly declined to decide whether other affirmative defenses (e.g., entrapment) require admission; those questions remain governed by their own statutory text. Entrapment is different because its statute explicitly contemplates commission of the offense.
  • Standard for Instruction: The “some credible evidence” standard is intentionally low. Evidence can be “highly improbable,” can come from any source (including the prosecution’s case‑in‑chief), and may conflict with other defense arguments.
  • Jury’s Role: Judges should not screen out a statutorily supported affirmative defense based on perceived inconsistency; the jury decides credibility and whether the State disproved any condition beyond a reasonable doubt.
  • Appellate Procedure: New arguments raised for the first time in a reply brief (here, harmless error) are generally not considered.

4) Anticipated Impact

The decision will materially affect felony‑murder litigation in Colorado:

  • Defense Strategy: Defendants can maintain a traverse (denying the predicate felony) while simultaneously requesting the felony‑murder affirmative defense instruction if there is a scintilla of evidence supporting each condition. Defense counsel should preserve both theories where the record allows.
  • Prosecution Burdens: When the affirmative defense is properly raised, prosecutors must be prepared to disprove at least one condition beyond a reasonable doubt in addition to proving the elements of felony murder. Trial strategies will likely evolve to address conditions (e.g., proof of knowledge of weapons, evidence of engagement in dangerous conduct, or negating disengagement).
  • Jury Instructions and Error Preservation: Trial courts should avoid deeming the defense “incompatible” with a denial of the predicate felony. The correct inquiry is whether “some credible evidence” supports each condition. Erroneous refusal will often require a new trial.
  • Harmonizing with 2021 Amendments: Although this case applies the 2018 statute, the principle announced—no admission prerequisite—rests on the defense’s text. The 2021 amendments reclassified felony murder to second‑degree murder, limited causation to deaths “caused by any participant,” and removed two conditions (the former (d) and (f)). The holding should carry forward, because the reasoning turns on the absence of any textual admission requirement, not on now‑deleted conditions.
  • Doctrinal Coherence: The ruling aligns Colorado practice with the broader principle permitting alternative defenses and frees trial courts from imposing extra‑textual hurdles. It also demarcates entrapment and potentially other admission‑based defenses as exceptions driven by their statutory language, not by an overarching rule about affirmative defenses.

Complex Concepts Simplified

  • Traverse vs. Affirmative Defense:
    • Traverse: “I didn’t do it” or “the State can’t prove an element.” Example: An alibi refutes presence (negates actus reus).
    • Affirmative Defense: “Even if I did the acts, the law excuses, justifies, or mitigates them.” Example: Self‑defense justifies otherwise unlawful force.
  • “Some Credible Evidence”:
    • A very low threshold to get an instruction to the jury—any credible sliver of evidence will do, even if it conflicts with other evidence or seems unlikely.
  • Participation vs. Commission:
    • Participation means involvement in conduct surrounding the event; commission means completing the offense with the necessary act and mental state.
  • Felony Murder (pre‑2021):
    • A death caused in the course of an enumerated felony leads to murder liability without proof of intent to kill. The legislature created a special affirmative defense to temper harsh results for non‑killers with lesser culpability.
  • Effect of Raising an Affirmative Defense:
    • It adds a new factual issue the State must negate beyond a reasonable doubt. The jury must find both the offense’s elements and the failure of the defense.
  • Inconsistent Defenses:
    • It’s permissible to argue, for example, “I didn’t commit the predicate felony,” and “even if you find I did, the felony‑murder defense applies.” The jury sorts it out.

Practical Guidance for Litigants

  • For Defense Counsel:
    • Always evaluate whether the record contains a scintilla for each condition of the felony‑murder affirmative defense; request the instruction even if you simultaneously deny the predicate felony.
    • Use all sources of evidence (including the State’s witnesses) to satisfy the low threshold.
    • Frame disengagement evidence proactively—intervention to stop violence can be powerful on condition (f) (for pre‑2021 cases).
  • For Prosecutors:
    • Anticipate alternative defense strategies and be ready to negate at least one condition beyond a reasonable doubt.
    • Develop evidence on knowledge of weapons, foreseeability of dangerous conduct, and lack of disengagement.
    • Preserve any harmless‑error arguments in opening briefs; do not wait until reply.
  • For Trial Courts:
    • Do not condition the felony‑murder affirmative defense instruction on admission of the predicate felony.
    • Apply the “some credible evidence” standard; do not weigh credibility in deciding whether to instruct.
    • Charge the jury that the State must disprove at least one statutory condition beyond a reasonable doubt.

Conclusion

People v. Gallegos establishes a clear, text‑based rule: a defendant need not admit the predicate felony to raise the statutory affirmative defense to felony murder. By distinguishing “participation” from “commission,” emphasizing the permissibility of alternative defenses, and reaffirming the low “some credible evidence” threshold for jury instructions, the Court ensures juries—not judges—resolve the added factual questions affirmative defenses present. The decision will shape felony‑murder trials statewide by broadening access to the defense instruction, reinforcing prosecutorial burdens when the defense is raised, and aligning Colorado practice with legislative intent to mitigate unduly harsh outcomes for non‑killer participants. While limited to the felony‑murder context, the opinion provides a careful blueprint for analyzing other affirmative defenses through the text of their respective statutes, rather than through overbroad generalizations about “admissions.”

Case Details

Year: 2025
Court: Colorado Supreme Court

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