No-Admission Rule for the Felony Murder Affirmative Defense in Colorado: Commentary on People v. Gallegos, 2025 CO 41

No-Admission Rule for the Felony Murder Affirmative Defense in Colorado
Commentary on People v. Gallegos, 2025 CO 41, 572 P.3d 136 (Colo. 2025)

I. Introduction

In People v. Gallegos, 2025 CO 41, 572 P.3d 136 (Colo. 2025), the Colorado Supreme Court resolved an important question at the intersection of felony murder and affirmative defenses: whether a defendant must admit the predicate felony in order to invoke Colorado’s statutory affirmative defense to felony murder, § 18-3-102(2), C.R.S.

The Court held that a defendant need not admit the predicate felony to raise the felony murder affirmative defense. This decision rejects a rigid “admission requirement” that some lower courts and prosecutors had inferred from general language about affirmative defenses and clarifies that, at least for felony murder, the statutory defense may be asserted even while the defendant simultaneously denies participation in (or commission of) the underlying felony.

The case has significant ramifications for:

  • Trial practice: jury-instruction decisions in felony murder cases;
  • Doctrinal clarity: the relationship between “traverses” and affirmative defenses, and when—if ever—admissions are required;
  • Felony murder policy: the continued effect of legislative efforts to temper the doctrine’s harshness for non-killer participants.

II. Factual and Procedural Background

A. The Events Leading to the Charges

Kenneth Alfonso Gallegos and three others—Dominic Stager, Demarea Mitchell, and Juliana Serrano—drove to meet a high-school acquaintance, L.C., ostensibly to purchase vaping products. According to the prosecution’s theory, at least some members of the group had decided in advance that they would take the products without paying, i.e., commit a robbery or attempted robbery.

When they arrived:

  • L.C. approached the car but refused to hand over vaping materials without prior payment.
  • Gallegos, Stager, and Mitchell began “searching” for a supposedly lost wallet.
  • Mitchell obtained a gun that Stager had brought, exited the vehicle, and confronted L.C.
  • Mitchell and L.C. struggled over the gun; during the struggle, Mitchell shot L.C.
  • L.C. ran into the house screaming and later died from the gunshot wound.
  • The group quickly left, with Gallegos driving them away.

The central dispute at trial concerned Gallegos’s role: Was he a knowing participant in a planned robbery, or merely present, unaware of any robbery plan or weapon until events spiraled out of control?

B. Conflicting Testimony About Gallegos’s Role

Key witnesses offered sharply conflicting accounts:

  • Stager testified that:
    • The robbery was Gallegos’s idea.
    • Gallegos said they “just needed a gun.”
    • Other people, not Gallegos, actually possessed the gun that day.
    • When Gallegos saw the fight over the gun, he tried to intervene and urged others to help stop the altercation.
  • Serrano mostly contradicted Stager:
    • “There wasn’t really a plan.”
    • She did not remember whether Gallegos had been involved in any robbery talk en route.
    • She did not remember whether Gallegos was aware of or had seen the gun before the struggle.
    • She did not remember whether he moved to stop the fight.

C. The Charges and Gallegos’s Theory of Defense

The People charged Gallegos with felony murder under § 18-3-102(1)(b) with a predicate felony of robbery or attempted robbery, as well as:

  • Attempted aggravated robbery,
  • Conspiracy to commit aggravated robbery, and
  • Attempted theft.

Gallegos’s theory of defense was that he should be acquitted of all counts because:

  • He did not shoot L.C.;
  • He did not plan the robbery; and
  • He did not know a gun was present until it was too late to prevent the shooting.

In addition to this general denial, Gallegos requested a jury instruction on the statutory affirmative defense to felony murder under § 18-3-102(2) (2018 version).

D. The Trial Court’s Refusal to Instruct on the Affirmative Defense

The trial court refused to give the felony murder affirmative defense instruction. It reasoned that:

  • Gallegos’s theory was an “outright denial of everything.”
  • The felony murder affirmative defense was “diametrically opposed” to that theory.
  • The court further concluded it could not find “even a scintilla of evidence” to support the condition that Gallegos “had no reasonable ground to believe that any other participant was armed with a gun,” § 18-3-102(2)(d).

The jury convicted Gallegos of felony murder (based on robbery/attempted robbery) and the lesser, non-homicide counts.

E. Court of Appeals: Reversal of the Felony Murder Conviction

On appeal, a division of the Colorado Court of Appeals reversed the felony murder conviction but affirmed the other convictions. In People v. Gallegos, 2023 COA 47, 535 P.3d 108, the division held:

  • A defendant may deny the predicate felony and still raise the affirmative defense to felony murder.
  • Neither Colorado case law nor the legislature imposes a “categorical requirement that the defendant admit to the underlying charged offense” as a condition for asserting an affirmative defense.
  • The felony murder affirmative defense is not “inextricably intertwined” with the elements of the predicate felony in the way some other affirmative defenses (like entrapment) are with the underlying offense.
  • The trial court erred by refusing the defense instruction and a new felony murder trial was required.

The People sought certiorari, contending that the division had misapplied principles governing affirmative defenses.

III. Summary of the Supreme Court’s Decision

The Colorado Supreme Court granted review and framed the issue as whether a defendant must admit the predicate felony to raise the statutory affirmative defense to felony murder under § 18-3-102(2).

The Court held:

  • No admission of the predicate felony is required to assert the felony murder affirmative defense.
  • The plain language of § 18-3-102(2) does not demand such an admission.
  • A defendant may present the affirmative defense even if he simultaneously denies committing the predicate felony.
  • Because Gallegos presented at least a “scintilla of evidence” supporting each statutory condition, he was entitled to the instruction.
  • The Court therefore affirmed the judgment of the Court of Appeals, leaving in place the reversal of the felony murder conviction and remand for a new felony murder trial.

In doing so, the Court clarified that general statements about affirmative defenses “admitting the act” cannot override the specific statutory text and structure of the felony murder affirmative defense.

IV. Legal Framework and Key Concepts

A. Standard of Review and Statutory Interpretation

Interpreting a statute that defines an affirmative defense is a question of law reviewed de novo. The Court reiterated standard interpretive principles:

  • The goal is to ascertain and give effect to the General Assembly’s intent (People v. Speer, 255 P.3d 1115, 1119 (Colo. 2011); People v. Garcia, 113 P.3d 775 (Colo. 2005); People v. Laeke, 2012 CO 13M).
  • The starting point is the plain language of the statute.
  • If the language is unambiguous and legislative intent is reasonably clear, the interpretive inquiry ends (Jefferson Cnty. Bd. of Equalization v. Gerganoff, 241 P.3d 932 (Colo. 2010)).

B. Traverses vs. Affirmative Defenses

Colorado recognizes two main categories of criminal defenses (Roberts v. People, 2017 CO 76):

  1. Traverses
    • A “traverse” disputes that the defendant committed the offense by negating one or more elements of the prosecution’s case (e.g., “I wasn’t there,” “I did not form the required intent”).
  2. Affirmative defenses
    • These typically assume the underlying conduct occurred but claim it was justified, excused, or mitigated.
    • Classic formulation: An affirmative defense “basically admits the doing of the act charged but seeks to justify, excuse, or mitigate it” (People v. Huckleberry, 768 P.2d 1235, 1238 (Colo. 1989)).
    • Examples: self-defense, duress, entrapment (although their statutory structures differ).

The Court emphasized that these are conceptual descriptions, and that the specific statutory text governing a given affirmative defense remains controlling.

C. Evidentiary Threshold for Raising an Affirmative Defense

Under § 18-1-407(1), a defendant may raise an affirmative defense by producing “some credible evidence” as to each of its “conditions” (the functional analogs of elements).

Key points from prior cases and the statute:

  • “Some credible evidence” is a low bar:
    • It includes “any credible evidence … even ‘highly improbable’ evidence,” equated with “a scintilla of evidence” (Galvan v. People, 2020 CO 82, ¶ 24, 476 P.3d 746, 754, citing Speer and People v. Saavedra-Rodriguez, 971 P.2d 223 (Colo. 1998)).
  • The evidence:
    • Need not be introduced by the defendant; it can come from prosecution witnesses or other sources, § 18-1-407(1).
    • May conflict with the defendant’s other arguments or theories (Mathews v. United States, 485 U.S. 58, 66 (1988)).

Once the defense is properly raised, § 18-1-407(2) shifts the burden:

  • The prosecution must still prove the elements of the charged offense beyond a reasonable doubt, and
  • Also must disprove at least one condition of the affirmative defense beyond a reasonable doubt (Martinez v. People, 2024 CO 48; People v. Pickering, 276 P.3d 553 (Colo. 2011); Huckleberry).

D. Felony Murder and Its Affirmative Defense

1. Felony Murder as a Strict Liability Homicide

At the time of Gallegos’s offense (pre-2021 amendments), felony murder was codified in § 18-3-102(1)(b) as a form of first degree murder. A defendant committed felony murder if:

  1. He committed or attempted to commit an enumerated predicate felony (e.g., robbery), and
  2. “In the course of or in furtherance of” that felony, a nonparticipant’s death was caused by “any-one.”

Colorado treats felony murder as a strict liability homicide: the prosecution does not need to prove that the defendant intended the death or even foresaw it (People v. Fisher, 9 P.3d 1189 (Colo. App. 2000)).

2. Legislative Concern About Harshness and the 1971 Commentary

When the legislature first enacted felony murder in 1971, official comments recognized that automatic imposition of murder liability on all participants could be “unduly harsh,” particularly for non-killer participants of relatively minor culpability. As the commentary to former § 40-3-102 explained:

[T]he felony murder doctrine, in its rigid automatic envelopment of all participants in the underlying felony, may be unduly harsh in particular instances; … cases do arise, rare as they may be, where it would be just and desirable to allow a nonkiller defendant of relatively minor culpability a chance of extricating himself from liability for murder—though not, of course, from liability for the underlying felony.

To address this concern, the General Assembly created a specific affirmative defense to felony murder, now codified at § 18-3-102(2).

3. The Six Conditions of the 2018 Felony Murder Affirmative Defense

At the time of Gallegos’s offense and trial, § 18-3-102(2) set out six conditions that a defendant had to satisfy (by “some credible evidence”) to invoke the defense:

  1. Not the only participant:
    “Was not the only participant in the underlying crime”;
  2. Not the killer or aider:
    “Did not commit the homicidal act or in any way solicit, request, command, importune, cause, or aid the commission thereof”;
  3. Unarmed:
    “Was not armed with a deadly weapon”;
  4. No reasonable grounds to believe others were armed:
    “Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article, or substance”;
  5. No engagement in or expectation of dangerous conduct:
    “Did not engage himself in or intend to engage in and had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious bodily injury”; and
  6. Disengagement upon learning of danger:
    “Endeavored to disengage himself from the commission of the underlying crime or flight therefrom immediately upon having reasonable grounds to believe that another participant is armed … or intended to engage in conduct likely to result in death or serious bodily injury.”

The question in Gallegos is whether a defendant must admit the predicate felony (here, robbery/attempted robbery) in order to present this defense to the jury.

Note on 2021 Amendments: In 2021, the legislature reclassified felony murder as second degree murder and made substantive changes:

  • Felony murder moved from § 18-3-102 to § 18-3-103(1)(b).
  • Liability for death was narrowed to deaths “caused by any participant.”
  • Conditions (d) and (f) of the affirmative defense were removed.

However, because Gallegos’s offense predated these amendments, the 2018 version of the statute governed his case.

V. Detailed Analysis of the Court’s Reasoning

A. The People’s Argument: An Admission Requirement Implied by Text and Theory

The prosecution advanced two interconnected arguments:

  1. Textual argument:
    • The affirmative defense’s language “presupposes a defendant committed a qualifying felony” and is incompatible with denying participation.
    • They focused on:
      • References to “participant” and “participants” in § 18-3-102(2)(a), (d), (e), (f); and
      • The sixth condition’s requirement that the defendant “endeavored to disengage himself from the commission of the underlying crime,” § 18-3-102(2)(f), arguing one cannot “disengage” without having “engaged” in the commission of the crime.
  2. Theoretical argument based on affirmative defense doctrine:
    • They invoked cases like Huckleberry and Pearson v. People, 2022 CO 4, 502 P.3d 1003, which describe affirmative defenses as essentially admitting the act but justifying or excusing it.
    • They cited People v. Hendrickson, 45 P.3d 786 (Colo. App. 2001), which held that entrapment requires admitting the underlying offense, to suggest that affirmative defenses “presuppose” the commission of the crime.

In short, the People argued that a defendant must concede involvement in the underlying felony to be eligible for the felony murder affirmative defense.

B. The Court’s Textual Analysis: Participation vs. Commission

1. Condition (a): “Participant” Does Not Equal “Commission”

Condition (a) requires that the defendant “[w]as not the only participant in the underlying crime.” The Court accepted that this requires some credible evidence of participation but stressed a critical distinction:

  • “Participation” in criminal conduct is not identical to “commission” of a criminal offense.
  • Commission of an offense denotes a completed crime, requiring both:
    • a prohibited act (actus reus), and
    • a culpable mental state (mens rea) (Morissette v. United States, 342 U.S. 246 (1952)).
  • Participation can be broader and does not, by itself, establish either completion or the requisite mens rea.

Thus, a defendant can acknowledge (or the evidence can show) that he participated in events surrounding a crime (e.g., drove others to the scene) without admitting that he committed the predicate felony as charged.

The Court thus rejected the prosecution’s attempt to equate “participant” with “committed the predicate felony” as unsupported by the statutory language.

2. Conditions (b)–(e): They Are Primarily Negatives or Denials

The Court next examined conditions (b) through (e) and emphasized that these provisions affirmatively negate various forms of culpability or risk creation:

  • (b): The defendant “did not commit the homicidal act or in any way solicit, request, command, importune, cause, or aid the commission thereof.”
  • (c): The defendant “was not armed with a deadly weapon.”
  • (d): The defendant “had no reasonable ground to believe that any other participant was armed with such a weapon….”
  • (e): The defendant did not “engage himself in or intend to engage in” dangerous conduct and had “no reasonable ground to believe that any other participant intended to engage in” such conduct.

As the Court put it, these provisions are “essentially denials of the defendant’s acts or knowledge.” Nothing in these conditions requires the defendant to admit that he completed the predicate felony. They are fully consistent with a theory that:

  • The defendant was present and had some involvement in the underlying events;
  • But did not intend or expect a death or serious injury;
  • And lacked knowledge of a weapon or dangerous plan.

3. Condition (f): “Disengage” Does Not Imply Admission of Commission

Condition (f) requires that the defendant “endeavored to disengage himself from the commission of the underlying crime or flight therefrom” upon learning of a weapon or dangerous intent.

The Court agreed that “disengage” implies some prior engagement in the criminal episode, but again distinguished:

  • Being “engaged” in criminal conduct (e.g., driving, being present, or initially agreeing to a plan) does not equal legal “commission” of every charged element of the felony.
  • The statute does not say “having committed the underlying crime,” nor does it otherwise require an explicit admission of guilt.

Thus, evidence of disengagement—such as attempting to stop the altercation—does not logically require a confession to the predicate felony.

4. Conclusion: The Text Contains No Admission Requirement

After parsing each condition, the Court concluded:

We therefore perceive nothing in the plain language of the affirmative defense to felony murder that requires the defendant to admit the commission of the underlying felony. § 18-3-102(2).

C. Inconsistent Defenses and the Role of the Jury

The Court then situated its holding within the broader doctrine that allows alternative or even inconsistent defenses.

  • Mathews v. United States, 485 U.S. 58 (1988):
    • The U.S. Supreme Court held that a defendant can receive an entrapment instruction even while denying committing the offense, as long as the evidence permits the jury to find entrapment.
    • The Court rejected any special “consistency requirement” for affirmative defenses.
  • Stevenson v. United States, 162 U.S. 313 (1896):
    • Recognized that a defendant can be entitled to both a self-defense instruction and a manslaughter (heat-of-passion) instruction, although the mental states are arguably inconsistent.
    • The key is whether “any evidence fairly tending to bear upon the issue” exists; then the jury must resolve which theory it finds credible.

Applying these principles, the Court stressed:

  • Once there is “some credible evidence” supporting each condition of the affirmative defense, it must go to the jury, even if inconsistent with the defendant’s principal theory.
  • It is the jury’s role to:
    • Determine whether the defendant committed the predicate felony; and
    • If so, decide whether the prosecution has disproved the affirmative defense beyond a reasonable doubt.
  • Whether to pursue inconsistent theories—such as “I wasn’t involved in a robbery, but if you find I was, I met all the conditions of the felony murder defense”—is a matter of trial strategy for defense counsel.

D. Application to the Evidence in Gallegos’s Case

To illustrate how the defense could apply even without an admission, the Court walked through the six conditions in light of the trial record:

  1. Not the only participant (a):
    • Undisputed evidence showed multiple people were involved in the incident.
    • Gallegos drove the group to and from the scene; he did not deny that much participation. This satisfied (a) and the “participation” components of (d)–(f).
  2. Not the killer or aider (b):
    • It was undisputed that Mitchell fired the fatal shot; Gallegos did not commit the homicidal act.
  3. Unarmed (c):
    • Stager and Serrano indicated that the gun was never in Gallegos’s possession.
    • This supported content (c).
  4. No reasonable grounds to believe others were armed (d):
    • Serrano testified there “wasn’t really a plan” and could not remember whether Gallegos was involved in any robbery discussion or whether he knew about the gun.
    • Although this conflicted with Stager’s testimony (that Gallegos said they “just needed a gun”), the Court held that even “highly improbable” evidence can satisfy the “scintilla” standard.
    • Thus, Serrano’s testimony was sufficient to raise condition (d).
  5. No dangerous conduct or expectation of such conduct (e):
    • The same testimony from Serrano—uncertainty about Gallegos’s knowledge of any plan or weapon—supported an inference that he did not expect or plan dangerous conduct.
  6. Disengagement upon learning of danger (f):
    • Stager testified that Gallegos tried to intervene to stop the fight over the gun and encouraged others to help.
    • The Court viewed this as “immediate attempt to disengage,” satisfying (f).

Because each condition was supported by at least a sliver of evidence, the defense was properly raised and should have been submitted to the jury, regardless of Gallegos’s overarching denial of the predicate felony.

E. Relationship to Prior Affirmative Defense Cases

The Court then explained why earlier Colorado cases describing affirmative defenses as requiring an “admission” did not control the felony murder context.

1. Huckleberry and Pearson: General Descriptions, Not Statutory Commands

  • People v. Huckleberry, 768 P.2d 1235 (Colo. 1989):
    • Described affirmative defenses as “basically admitt[ing] the doing of the act charged.”
    • Used that description to distinguish an alibi defense (which is a traverse) from affirmative defenses.
  • Pearson v. People, 2022 CO 4:
    • Discussed the difference between traverse defenses and affirmative defenses in the context of self-defense to harassment charges.
    • Quoted Huckleberry’s “admission” language.

The Court in Gallegos emphasized that these discussions addressed theoretical distinctions and different statutes, and were not holdings that every affirmative defense—regardless of its statutory wording—demands a formal admission of guilt.

2. Hendrickson and Entrapment: An Example Where Admission Is Required by Statute

In People v. Hendrickson, 45 P.3d 786 (Colo. App. 2001), the Court of Appeals held that a defendant must admit to the underlying offense to assert the affirmative defense of entrapment. That conclusion flows directly from the language of § 18-1-709:

The commission of acts which would otherwise constitute an offense is not criminal if the defendant engaged in the proscribed conduct because he was induced to do so by a law enforcement official….

Thus:

  • The entrapment statute explicitly references the “commission of acts which would otherwise constitute an offense”.
  • This makes an admission—or at least acknowledgment of the conduct—integral to entrapment’s logic.

By contrast, the felony murder affirmative defense lacks comparable language. It speaks of “participants” and “disengaging” from the “underlying crime,” but does not speak in terms of “commission of acts which would otherwise constitute an offense.”

For that reason, the Court agreed with the Court of Appeals that the felony murder affirmative defense is not “inextricably intertwined” with the elements of the predicate offense in the way entrapment is.

3. Limiting the Holding to Felony Murder

Importantly, the Court explicitly limited its holding to the felony murder affirmative defense:

Because this case is specific to the felony murder defense, we decline to address whether a defendant may raise other affirmative defenses while also denying committing the underlying crime.

This leaves open future litigation over whether other affirmative defenses whose statutes are less clear than entrapment’s, but less special than felony murder’s, allow denial plus assertion of the defense.

VI. Simplifying the Core Legal Concepts

A. What Is Felony Murder?

Felony murder is a homicide rule that:

  • Makes certain deaths murder if they occur during the commission or attempted commission of specific felonies (e.g., robbery),
  • Even if the defendant did not intend to kill or seriously injure anyone (strict liability as to the death).

In Colorado, the legislature recognized this can be especially harsh for non-killer accomplices and therefore created a narrow affirmative defense to mitigate that harshness in limited circumstances.

B. What Is an Affirmative Defense?

An affirmative defense does not necessarily say, “nothing happened” or “I played no role”; instead, it often says:

  • “Yes, I did something that would normally be a crime, but under these special circumstances (self-defense, duress, entrapment, the felony murder defense) the law does not treat me as criminally responsible for that result.”

Crucially, once the defendant introduces some credible evidence for each condition, the prosecution must disprove the defense beyond a reasonable doubt.

C. Why Does It Matter Whether the Defendant Has to “Admit” the Crime?

If invoking an affirmative defense always required a formal admission to every element of the predicate offense:

  • Defendants would face a stark and risky choice:
    • Either fully deny the crime (hoping for acquittal on all charges) and lose the protection of the affirmative defense, or
    • Admit the crime (guaranteeing conviction if the defense fails), in order to get the instruction.
  • That would, in practice, often nullify the legislature’s intent in creating affirmative defenses meant to soften harsh doctrines like felony murder.

By holding that no admission is required, Gallegos preserves a defendant’s ability to argue in the alternative:

  • “I was not involved in this robbery at all. But if you find that I was, the law gives me a specific defense that should prevent you from convicting me of felony murder.”

It is then up to the jury to decide which account it believes.

VII. Implications and Future Impact

A. Impact on Felony Murder Prosecutions in Colorado

The decision substantially affects how felony murder cases will be tried:

  • More frequent use of the felony murder affirmative defense:
    • Defendants can now raise the defense without sacrificing their ability to deny the predicate felony.
    • This should lead to more requests for the instruction where there is any evidence they were: unarmed, unaware of weapons or dangerous plans, not the killer, and attempted to disengage.
  • Trial judges’ obligations:
    • Judges must focus on the evidentiary threshold (“a scintilla of evidence”), not on perceived consistency with a “primary” theory of defense.
    • If there is any credible evidence supporting each condition, the instruction must be given, even if the defendant’s closing argument emphasizes denial of the felony.
  • Increased prosecutorial burden:
    • In cases where the defense is raised, the prosecution must:
      • Prove the predicate felony, and
      • Disprove at least one condition of the affirmative defense beyond a reasonable doubt.

B. Alignment with Legislative Purpose

The decision tightly aligns with the 1971 commentary’s recognition that felony murder can be “unduly harsh” for non-killer participants.

  • By making the affirmative defense more realistically accessible—even when defendants maintain their innocence—the Court ensures that the legislative check on felony murder’s breadth remains meaningful.
  • The defense remains narrow in scope (the six demanding conditions), but it is no longer artificially limited by a judicially-imposed admission requirement not found in the statute.

C. Interaction with the 2021 Amendments

Although Gallegos addressed the pre-2021 version of the felony murder statute, its reasoning likely extends to post-2021 cases, because:

  • The statute still identifies a distinct felony murder offense and retains a tailored affirmative defense (albeit in a modified form);
  • The Court’s core holding rests on a textual comparison:
    • Unless the affirmative defense statute expressly ties itself to the “commission” of an offense (as entrapment does), the Court will not infer an admission requirement.

Future felony murder cases under the amended statute will likely cite Gallegos for the principle that no extra-textual admission requirement exists for the felony murder affirmative defense.

D. Broader Doctrinal Signals Beyond Felony Murder

Although the Court limited its holding to felony murder, Gallegos sends broader signals about affirmative defense doctrine:

  • Text reigns over general theory:
    • General statements like “an affirmative defense admits the act” are interpretive guides, not rigid rules.
    • Courts must always return to the language of the particular defense statute.
  • Inconsistent defenses remain permissible:
    • The opinion reaffirms that defendants may raise inconsistent theories when supported by evidence, without forfeiting instructions on affirmative defenses.
  • Potential influence on other defenses:
    • Litigants may cite Gallegos to argue that other affirmative defenses—whose statutes lack entrapment-style “commission” language—should not be conditioned on a formal admission.
    • Courts evaluating those arguments will have to perform the same text-specific analysis endorsed here.

VIII. Conclusion

People v. Gallegos establishes a clear and consequential rule in Colorado criminal law: a defendant need not admit the predicate felony to assert the statutory affirmative defense to felony murder under § 18-3-102(2).

By closely reading the statute’s text, distinguishing “participation” and “disengagement” from “commission,” and reaffirming the permissibility of alternative and inconsistent defenses, the Colorado Supreme Court:

  • Corrected a misapplication of general affirmative defense theory that would have undermined the legislature’s effort to moderate the severity of felony murder;
  • Clarified the interplay between § 18-1-407’s low evidentiary threshold and the jury’s role in resolving factual disputes; and
  • Ensured that the felony murder affirmative defense can function as the legislature intended—for non-killer defendants of comparatively minor culpability—without forcing them to concede guilt to the underlying felony.

In the broader landscape of Colorado criminal law, Gallegos stands as a significant precedent on how courts should interpret affirmative defense statutes: by honoring the specific statutory language and legislative purpose, rather than importing rigid “admission” requirements from abstract doctrinal formulations or from structurally different defenses such as entrapment.

Case Details

Year: 2025
Court: Colorado Supreme Court

Comments