Peo v. Gallarzo

23CA1159 Peo v Gallarzo 10-29-2026 COLORADO COURT OF APPEALS Court of Appeals No. 23CA1159 Otero County District Court No. 22CR120 Honorable Samuel S. Vigil, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Manuel Gallarzo, Defendant-Appellant. JUDGMENT AFFIRMED IN PART AND VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS Division IV Opinion by JUDGE LIPINSKY Harris and Gomez, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 29, 2026 Philip J. Weiser, Attorney General, Erin K. Grundy, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Megan A. Ring, Colorado State Public Defender, Kevin M. Whitfield, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Manuel Gallarzo appeals the judgment of conviction entered on a jury verdict finding him guilty of one count of first degree burglary, two counts of third degree assault, and three counts of violating a protection order. We vacate in part and remand with instructions to merge one of the third degree assault convictions into the first degree burglary conviction. We otherwise affirm the judgment. I. Background ¶2 A jury could have reasonably found the following facts from the evidence introduced at trial. ¶3 Gallarzo was subject to two protection orders. One of them barred him, among other restrictions, from contacting his wife or entering her residence. Wife’s two children were the subject of a second protection order. ¶4 On July 16, 2022, during an altercation in wife’s living room (the July 16 assault), Gallarzo grabbed wife by the neck and struck her “a few times on her face,” causing a “black eye” on her right eye. ¶5 On July 18, 2022, wife was in the bedroom with her children while “Gallarzo was packing his things, preparing to leave [wife’s home].” He entered the bedroom, grabbed wife “by the back of the 1  hair[,] and started moving her head around in a very rough and rapid manner” (the July 18 assault). During the July 18 assault, wife struck her face on an object, causing redness and swelling around her left eye. ¶6 Later on July 18, wife contacted the Otero County Sheriff’s Office to report “a violation of [a] protection order at her residence.” She informed the sheriff’s office of the injury to her right eye sustained during the July 16 assault and the injury to her left eye resulting from the July 18 assault. The deputy who interviewed wife documented the injuries to her eyes. ¶7 Gallarzo was arrested and charged with one count of first degree burglary (a class four felony), two counts of third degree assault (class one misdemeanors), and three counts of violating the protection orders — one count each for wife and the two children (class one misdemeanors). ¶8 At trial, Gallarzo, through counsel, admitted to the two assaults but disputed that he acted with the knowing mental state required to sustain convictions for violating the protection orders. ¶9 The jury found Gallarzo guilty on all counts. It also determined that the burglary conviction, the assault convictions, 2  and the conviction for violating the protection order as to wife all “include[d] an act of domestic violence.” The court sentenced Gallarzo to six years in custody of the Department of Corrections for the first degree burglary conviction, with concurrent one-year sentences for the five misdemeanor convictions. ¶ 10 On appeal, Gallarzo primarily argues that the trial court violated his due process rights by giving the jury the 2022 Colorado model criminal jury instruction on reasonable doubt (the 2022 instruction). He contends that the 2022 instruction lowered the prosecution’s burden of proof and shifted the burden to the defense by (1) omitting language from the prior version of the model instruction (the prior instruction) that expressly allowed the jury to consider the lack of evidence; (2) removing the “hesitate to act” language from the prior instruction; (3) using a “firmly convinced” formulation to explain reasonable doubt; (4) stating that a finding of reasonable doubt requires a “real possibility” of innocence; and (5) providing conflicting standards that risked jury confusion. ¶ 11 Alternatively, he argues that, even if we affirm the judgment, double jeopardy requires merging the two assault convictions and the three convictions for violating a protection order (collectively, 3  the underlying convictions) into the first degree burglary conviction. He reasons that merger is required because the underlying convictions constitute predicate offenses of burglary and arose from the same conduct. II. Analysis A. The Trial Court Correctly Instructed the Jury on the Definition of “Proof Beyond a Reasonable Doubt” 1. Standard of Review ¶ 12 “We review de novo the question of whether a trial court accurately instructed the jury on the law.” Tibbels v. People, 2022 CO 1, ¶ 22, 501 P.3d 792, 797. 2. Additional Facts ¶ 13 Before trial, Gallarzo objected to the use of the 2022 instruction, asserting that it was “highly confusing”; “misleading”; and “when considered as a whole,” it “reduce[d] and shift[ed] the burden of proof from the prosecution to [Gallarzo] in violation of [his] right to due process and right to an impartial jury.” Gallarzo reiterated his objections to the 2022 instruction at the pretrial status conference and at trial. ¶ 14 The trial court gave the jury the 2022 instruction. It said, in relevant part, that 4  [t]he burden of proof in this case is upon the prosecution. The prosecution must prove to the satisfaction of the jury beyond a reasonable doubt the existence of each and every element necessary to constitute the crime charged. This burden requires more than proof that something is highly probable, but it does not require proof with absolute certainty. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. If you are firmly convinced of the defendant’s guilt, then the prosecution has proven the crime charged beyond a reasonable doubt. But if you think there is a real possibility that the defendant is not guilty, then the prosecution has failed to prove the crime charged beyond a reasonable doubt. After considering all the evidence, if you decide the prosecution has proven each of the elements of a crime charged beyond a reasonable doubt, you should find the defendant guilty of that crime. After considering all the evidence, if you decide the prosecution has failed to prove any one or more of the elements of a crime charged beyond a reasonable doubt, you should find the defendant not guilty of that crime. See COLJI-Crim. E:03 (2022). ¶ 15 In addition, each of the elemental jury instructions advised the jury that “if [it] decide[d] the prosecution ha[d] failed to prove any 5  one or more of the elements [of the offense] beyond a reasonable doubt, [it] should find [Gallarzo] not guilty” of that offense. 3. Gallarzo’s Challenge to the Reasonable Doubt Instruction ¶ 16 As noted above, Gallarzo presents five arguments for reversing his convictions based on alleged flaws in the 2022 instruction. Less than two months ago, in Teran Sanchez v. People, 2026 CO 60, ¶¶ 3, 20, 28, 596 P.3d 326, 328, 332-34, the Colorado Supreme Court considered and rejected four of those arguments. (The court referred to the “2023 instruction” because the 2022 instruction was published in March 2023.) ¶ 17 First, Gallarzo argues that the 2022 instruction lowered the prosecution’s burden of proof because it did not tell the jury that it could consider the absence of evidence supporting the prosecution’s case. Because Teran Sanchez did not take issue with the absence of this language, the supreme court did not consider this argument in Teran Sanchez. Id. at ¶ 25 n.4, 596 P.3d at 333 n.4. But divisions of this court have concluded that the lack of a reference to “absence of evidence” in the 2022 instruction did not lower the prosecution’s burden of proof. E.g., People v. Melara, 2025 COA 48, 6  ¶ 32, 572 P.3d 619, 628; People v. Schlehuber, 2025 COA 50, ¶¶ 20-21, 572 P.3d 641, 649-50. ¶ 18 As the Melara division explained, although the 2022 instruction did not say that the jury could consider a “lack of evidence,” it nonetheless directed the jury to evaluate all the evidence. See Melara, ¶¶ 31-32, 572 P.3d at 628. Therefore, the 2022 instruction effectively told the jury that it could consider any gaps in the prosecution’s evidence. See id. at ¶¶ 30-32, 572 P.3d at 628 (noting that “the [2022] instruction did not forbid or even dissuade the jurors from applying their common sense when considering the evidence in th[e] case, including issues or requirements that the evidence failed to address”). ¶ 19 We agree with Melara’s reasoning that, because “the absence of an express instruction to consider the lack of evidence is not tantamount to a prohibition on doing so,” a trial court does not deny the defendant’s “due process rights or otherwise reversibly err[]” by giving the jury the 2022 instruction without adding the “lack of evidence” language that appeared in earlier formulations of the reasonable doubt instruction. Id. at ¶ 32, 572 P.3d at 628. 7 ¶ 20 Second, Gallarzo argues that the trial court was required to provide a reasonable doubt instruction containing the “hesitate to act” language that appeared in the prior version of the instruction. We disagree. In Teran Sanchez, the supreme court held that “‘firmly convinced’ and ‘hesitate to act’ are essentially two ways of conveying the same definition of reasonable doubt.” Teran Sanchez, ¶ 20, 596 P.3d at 332 (quoting United States v. Velasquez, 980 F.2d 1275, 1278 (9th Cir. 1992)). Accordingly, we conclude that, contrary to Gallarzo’s argument, the lack of a reference to “hesitate to act” in the 2022 instruction neither lowered nor shifted the prosecution’s burden of proof. ¶ 21 Third, Gallarzo contends that the “firmly convinced” language in the 2022 instruction “allowed the jury to overcome the presumption of innocence based on a general sense of [his] guilt as opposed to individualized findings of sufficient evidence that each element of each offense had been prove[d] beyond a reasonable doubt.” This argument, too, fails under Teran Sanchez. See id. at ¶ 28, 596 P.3d at 334 (holding that “‘firmly convinced’ and ‘real possibility’ combine to direct the jury to (1) demand significant evidence on the part of the prosecution before finding the defendant 8  guilty, and (2) not seek some ‘fanciful,’ ‘imaginary,’ or ‘mere[ly] possible’ doubt in order to return a not-guilty verdict” (quoting Schlehuber, ¶ 31, 572 P.3d at 650)). ¶ 22 Fourth, Gallarzo asserts that the “real possibility” language in the 2022 instruction lowered the prosecution’s burden of proof and shifted the burden to the defense. We are not convinced. This language did not address whether the jury should convict or acquit but rather clarified the prosecution’s burden of proof: “But if you think there is a real possibility that the defendant is not guilty, then the prosecution has failed to prove the crime charged beyond a reasonable doubt.” COLJI-Crim. E:03 (2022) (emphasis added). ¶ 23 The supreme court held in Teran Sanchez that the “real possibility” language “sufficiently describe[d] the standard the prosecution must meet . . . while also recognizing that the prosecution has failed to meet this burden if the jury thinks that there is a ‘real possibility’ that the defendant is not guilty.” Teran Sanchez, ¶ 28, 596 P.3d at 334. Because the 2022 instruction made clear to the jurors that the burden of proof remained with the prosecution, it did not shift the burden to Gallarzo. 9 ¶ 24 Gallarzo reinforces his challenge to the 2022 instruction by pointing to the prosecutor’s references to the defense’s theory of the case during closing argument. Gallarzo argues that, by telling the jury to “watch out for things that [were] not really related to th[e] case,” the prosecutor implied that the lack of evidentiary support for the defense’s theory of the case was insufficient to prove Gallarzo’s innocence. But Gallarzo fails to note that, immediately following the “watch out” admonition, the prosecutor said that the jury should consider the evidence “[b]ased on reason and common sense. Based on the fact that we have prove[d] it beyond a reasonable doubt.” (Emphasis added.) ¶ 25 Thus, contrary to Gallarzo’s argument, the prosecutor did not “frame[] the jury’s consideration of guilt in terms of whether [Gallarzo] had sufficiently prove[d] a ‘real possibility’ of his innocence.” Rather, the prosecutor reminded the jury that “we” — the prosecution — bore the burden of proving Gallarzo’s guilt beyond a reasonable doubt. And it was proper for the prosecutor to appeal to the jury’s common sense. See Clark v. People, 232 P.3d 1287, 1293 (Colo. 2010) (“Jurors must rely on the evidence presented at trial and their own common sense to determine the 10  question of guilt.”). When the prosecutor’s closing argument is viewed in its entirety, it is apparent that the prosecutor did not tell the jury that the defense bore any burden of proof. ¶ 26 Fifth, Gallarzo asserts that the 2022 instruction confused and misinstructed the jury. Gallarzo contends that the “firmly convinced” and “real possibility” language in the 2022 instruction imposed contradictory burdens of proof. The supreme court laid this argument to rest in Teran Sanchez. Echoing the division’s reasoning in Schlehuber, the supreme court held that “‘firmly convinced’ and ‘real possibility’ combine to direct the jury to (1) demand significant evidence on the part of the prosecution before finding the defendant guilty, and (2) not seek some ‘fanciful,’ ‘imaginary,’ or ‘mere[ly] possible’ doubt in order to return a not-guilty verdict.” Teran Sanchez, ¶ 28, 596 P.3d at 334 (citation omitted). The court noted that “[b]oth phrases work in tandem to describe proof beyond a reasonable doubt; they are neither redundant nor tautological.” Id.; see Schlehuber, ¶ 33, 572 P.3d at 651. As the Schlehuber division noted, “[T]he jury could either be ‘firmly convinced’ of [Gallarzo]’s guilt (and find him guilty) or ‘think there [was] a real possibility’ that [Gallarzo] was not guilty (and find 11  him not guilty). Both things could not be true.” Schlehuber, ¶ 33, 572 P.3d at 651. ¶ 27 For these reasons, the trial court did not err by giving the 2022 instruction. B. The Conviction for the July 16 Assault Must Merge into the First Degree Burglary Conviction 1. Standard of Review ¶ 28 We “review de novo whether a defendant’s conviction violates the constitutional protection against double jeopardy.” Magana v. People, 2022 CO 25, ¶ 18, 511 P.3d 585, 589. ¶ 29 Regardless of preservation, “when a defendant establishes that a trial court entered multiplicitous punishments in violation of double jeopardy principles, merger is the remedy.” Whiteaker v. People, 2024 CO 25, ¶ 24, 547 P.3d 1122, 1127. 2. Double Jeopardy Principles and the Merger of Lesser Included Offenses ¶ 30 The Double Jeopardy Clauses of the United States and Colorado Constitutions bar placing a person in jeopardy twice for the same offense. U.S. Const. amend. V; Colo. Const. art. II, § 18. Because “multiplicitous convictions run afoul of double jeopardy principles,” Whiteaker, ¶ 10, 547 P.3d at 1125, defendants “may not 12  be convicted of more than one offense” if one of the offenses is “included in the other,” § 18-1-408(1)(a), C.R.S. 2026. ¶ 31 Under the merger doctrine, courts determine whether different offenses constitute the same offense. See Reyna-Abarca v. People, 2017 CO 15, ¶ 48, 390 P.3d 816, 823. If so, they merge the lesser offense into the greater to ensure that the resulting convictions do not violate double jeopardy. See id. at ¶¶ 47-68, 390 P.3d at 823-27. ¶ 32 To determine whether offenses must merge to avoid a double jeopardy violation, courts apply a “subset” test, under which “an offense is a lesser included offense of another offense if the elements of the lesser offense are a subset of the elements of the greater offense, such that the lesser offense contains only elements that are also included in the elements of the greater offense.” Id. at ¶ 64, 390 P.3d at 826. When a defendant’s convictions must merge . . . , “the trial court should be directed to enter as many convictions and impose as many sentences as are legally possible to fully effectuate the jury’s verdict.” The goal is to permit “the most convictions and the longest sentences in order to maximize the effect of the . . . verdicts.” 13  Thomas v. People, 2021 CO 84, ¶ 54, 500 P.3d 1095, 1108 (quoting People v. Glover, 893 P.2d 1311, 1315 (Colo. 1995)). ¶ 33 To resolve Gallarzo’s double jeopardy argument, we must examine the elements of each offense of which he was convicted. ¶ 34 The elements of first degree burglary are as follows: A person commits first degree burglary if the person knowingly enters unlawfully, or remains unlawfully after a lawful or unlawful entry, in a building or occupied structure with intent to commit therein a crime, . . . against another person or property, and if in effecting entry or while in the building or occupied structure or in immediate flight therefrom, the person . . . assaults or menaces any person . . . . § 18-4-202(1), C.R.S. 2026. First degree burglary is a class 3 felony. § 18-4-202(2). ¶ 35 A person commits third degree assault by “knowingly or recklessly caus[ing] bodily injury to another person.” § 18-3-204(1)(a), C.R.S. 2026. Third degree assault “is a class 1 misdemeanor.” § 18-3-204(3). ¶ 36 A person commits the offense of violating a protection order if, after the person has been personally served with a protection order that identifies the person as a restrained person or otherwise has acquired from the court or law enforcement 14  personnel actual knowledge of the contents of a protection order that identifies the person as a restrained person, the person: (a)(I) Contacts, harasses, injures, intimidates, molests, threatens, or touches the protected person or protected property, including an animal, identified in the protection order; (II) Enters or remains on premises or comes within a specified distance of the protected person, protected property, including an animal, or premises; .... . . . and the conduct is prohibited by the protection order. § 18-6-803.5(1)(a)(I)-(II), (IV), C.R.S. 2026. Although violating a protection order is ordinarily a class 2 misdemeanor, it “is a class 1 misdemeanor” if “the basis for issuing the protection order included an allegation [that] . . . the parties were in an intimate relationship.” § 18-6-803.5(2)(a). Therefore, Gallarzo’s conviction for violating the protection order as to wife was a class 1 misdemeanor. ¶ 37 “[D]omestic violence is not its own separate crime. . . . A finding of domestic violence leads to a sentence enhancer requiring the defendant to complete a treatment evaluation and a treatment program in addition to serving whatever sentence the defendant 15  receive[d] for the underlying crime.” People v. Disher, 224 P.3d 254, 256 (Colo. 2010); see § 18-6-801, C.R.S. 2026. ¶ 38 We agree with the parties that, under the facts of this case, assault is a lesser included offense of first degree burglary. But we disagree that violating a protection order is also a lesser included offense of first degree burglary. ¶ 39 Assault qualifies as a lesser included offense of first degree burglary because assault can be an element of first degree burglary. See § 18-4-202(1) (“A person commits first degree burglary if,” among other things, “the person or another participant in the crime assaults . . . any person . . . .”); People v. Torrez, 2024 COA 11, ¶ 51, 548 P.3d 685, 697. ¶ 40 However, violating a protection order is not a lesser included offense of first degree burglary. Gallarzo’s merger argument conflates two discrete elements of the burglary statute: the intent element — the requirement that the defendant enter a building or occupied structure with the intent to commit a crime — and the aggravating predicate offense element — the requirement that the defendant or another participant assault, menace, or use explosives or a deadly weapon — the latter of which elevates the offense to first 16  degree burglary. Compare § 18-4-202(1) (first degree burglary), with § 18-4-203(1), C.R.S. 2026 (second degree burglary). The intended crime need not be the same as the predicate offense, and courts have consistently treated these elements as structurally distinct. See People v. Fuentes, 258 P.3d 320, 324 (Colo. App. 2011). ¶ 41 Under these circumstances, only the aggravating predicate offense merges into first degree burglary. See People v. Ramirez, 18 P.3d 822, 831 (Colo. App. 2000). In contrast, the intended crime that merely satisfied the intent element of first degree burglary is not a predicate offense and therefore does not merge. See id. ¶ 42 The trial court correctly instructed the jury that intent to violate a protection order is an element of first degree burglary. See People v. Miller, 2024 COA 66, ¶ 59, 556 P.3d 1262, 1272 (“To convict [the defendant] of first degree burglary, the prosecution needed to prove that he . . . [acted] with [the] intent to commit the crime of violation of a protection order therein . . . .” (emphasis added)). ¶ 43 Because Gallarzo’s conviction for first degree burglary required proof that he intended to violate a protection order, but not that he actually violated it, his conviction for violating a protection order is 17  not a lesser included offense of first degree burglary under the “subset” test. See Reyna-Abarca, ¶ 64, 390 P.3d at 826; see also Lucas v. State, 397 So. 3d 543, 546-48 (Miss. Ct. App. 2024) (explaining that, under a burglary statute identical to Colorado’s, the crime the defendant intended to commit when he unlawfully entered the building is not a “subcrime” or lesser included offense of burglary and does not merge with the burglary conviction). ¶ 44 Further, either of Gallarzo’s assault convictions could separately constitute the predicate offense supporting the first degree burglary conviction. Therefore, we must determine which of Gallarzo’s assault convictions must merge into his burglary conviction. ¶ 45 We agree with the parties that Gallarzo’s conviction for the July 16 assault must merge into his first degree burglary conviction. See Thomas, ¶ 54, 500 P.3d at 1108; People v. Dutton, 2014 COA 51, ¶ 33, 356 P.3d 871, 876 (“[W]here a conviction is predicated on more than one offense, only one of those offenses need be merged, as only one predicate offense is essential to support the greater offense.”). 18 ¶ 46 This is because that conviction alone was sufficient to support the burglary conviction. See Reyna-Abarca, ¶ 64, 390 P.3d at 826. Even if Gallarzo had not assaulted wife a second time on July 18, he could still have been convicted of first degree burglary based on the earlier assault. Under this logic, the conviction for the July 18 assault must stand as an independent conviction because it was not necessary to establish the first degree burglary conviction. Thus, the conviction for the July 16 assault — but not the conviction for the July 18 assault — must merge into the first degree burglary conviction. III. Disposition ¶ 47 The judgment is affirmed in part and vacated in part. We affirm the judgment as to the first degree burglary conviction, the July 18 assault conviction, and the convictions on the three protection order counts. However, because the conviction for the July 16 assault merges into the conviction for first degree burglary, we vacate the judgment insofar as it reflects a separate sentence for the July 16 assault conviction. We therefore remand the case to the trial court to merge the July 16 assault conviction into the first degree burglary conviction and amend the mittimus accordingly. 19 JUDGE HARRIS and JUDGE GOMEZ concur. 20