Colorado’s second-highest court ordered a new trial last week for an El Paso County defendant convicted of felony menacing, concluding an erroneous self-defense instruction may have influenced the verdict.

Under Colorado law, self-defense is an affirmative defense, meaning the prosecution must disprove at least one component in addition to proving the underlying offense. Judges are required to correctly instruct the jury on self-defense as supported by the evidence.

Jonathan Ramirez-Pantoja was walking through a culvert in a nearby apartment complex early one morning in June 2022. The alleged victim, who lived in the complex, watched Ramirez-Pantoja from surveillance cameras he set up. The victim went outside with his German Shepherd to confront Ramirez-Pantoja.

The victim told Ramirez-Pantoja he needed to leave and the dog began barking. Ramirez-Pantoja backed away with his hands up. But once he reached the street, he pulled out a gun and shot multiple times in the air. He also shot toward the dog, who continued to follow him. Ramirez-Pantoja did not injure the victim or the dog.

Prosecutors charged Ramirez-Pantoja with felony menacing and the prohibited use of a weapon. He invoked self-defense, arguing he had a reasonable belief the victim was about to use unlawful force against him.

District Court Judge William Bain provided jurors with an instruction that Ramirez-Pantoja was entitled to self-defense if he believed he was facing an imminent threat, he used a reasonable degree of force, and he did not “provoke the use of unlawful physical force” from the victim.

As for the provocation component, the prosecution argued that Ramirez-Pantoja’s alleged trespassing “did provoke (the victim) to come down and ask him to leave.”

After the jury convicted Ramirez-Pantoja on both counts, he appealed. Ramirez-Pantoja contended jurors could have rejected his self-defense claim solely because they believed his trespassing provoked the encounter, but the act of trespassing could not legally amount to provocation.

The victim was “a vigilante who decided to install security cameras, monitor who was going in and out of this area and decided to, in his own words, confront people who trespass,” public defender Daniel J. Sequeira argued to a three-judge appellate panel earlier this month.

In an unusual move, the government conceded that there was insufficient evidence to support the claim that Ramirez-Pantoja provoked the encounter and that it was a mistake to issue the instruction. However, the Colorado Attorney General’s Office maintained the flawed instruction could not have affected the conviction.

“Why isn’t this a classic example of the jury attempting to conform the evidence to the instruction, given that it did hear — it was not in passing — the trespass evidence coming in, and it heard that throughout trial?” asked Judge Craig R. Welling.

Sequeira agreed that jurors could have believed Ramirez-Pantoja intended to provoke a physical encounter after they heard about issues with “drug addicts” and homeless people in the area where he was walking.

“It’s not that much of a stretch for a jury to infer that perhaps he was going back there to do something nefarious, to provoke (the victim) into a confrontation, to eventually use his gun that night,” said Sequeira.

In a Dec. 24 opinion, the appellate panel agreed the jury could have determined Ramirez-Pantoja was justified in the other aspects of self-defense, but convicted him because it believed his alleged trespassing amounted to provocation.

Because “we don’t know which basis the jury used to reject Ramirez-Pantoja’s assertion of self-defense,” wrote Judge Christina F. Gomez, “we cannot conclude that the error was harmless.”

The panel ordered a new trial.

The case is People v. Ramirez-Pantoja.