Colorado’s second-highest court reversed a defendant’s murder conviction last week because a Denver judge gave an incomplete instruction to the jury about the man’s right to self-defense.

Donald R. Gonzales and Gary McLaughlin met up in a Capitol Hill parking lot one night in May 2021 for a sexual encounter in Gonzales’ car. According to Gonzales’ testimony at trial, he noticed his phone and money from the center console were missing after McLaughlin departed. Gonzales exited to find McLaughlin, and McLaughlin allegedly lunged at Gonzales and began hitting him with a cell phone.

Gonzales pulled his gun and fatally shot McLaughlin. He then grabbed his money and phone from the ground and fled the scene.

Prosecutors charged Gonzales with first-degree murder. Gonzales asserted that he acted in self-defense and his lawyer proposed a self-defense jury instruction that mirrored Colorado law. Specifically, Gonzales would have been authorized to use deadly force if he believed McLaughlin was about to use unlawful force against him and he believed he would be seriously injured or killed.

The proposed instruction also noted that Gonzales was justified in using deadly force if McLaughlin committed, or was about to commit, robbery or assault.

District Court Judge Ericka F.H. Englert declined to include the last portion in the jury instructions, calling it “redundant” and a source of “potential confusion for the jurors.”

She added that there was insufficient evidence that McLaughlin committed or was about to commit robbery or assault. Even though Gonzales testified that McLaughlin stole his possessions, “the time between that theft and the incident when Mr. Gonzales shot the gun after confronting (McLaughlin) behind the car … does not amount to robbery.”

Jurors convicted Gonzales of second-degree murder and he received a 38-year prison sentence.

On appeal, Gonzales argued that he was entitled to the complete self-defense instruction if “some credible evidence” supported the theory that McLaughlin did, or was about to, assault or rob him. He noted that, contrary to Englert’s description, a person can commit robbery by using force to retain property already taken.

The evidence at trial could establish that McLaughlin “knowingly took Gonzales’ money and phone from his presence. After McLaughlin left Gonzales’ car, Gonzales pursued McLaughlin within twenty seconds and found him nearby. McLaughlin then hit Gonzales with a deadly weapon — a phone — to retain control over the money and phone,” wrote public defender Julia Chamberlain.

A three-judge Court of Appeals panel agreed that the jury should have been allowed to evaluate whether Gonzales legitimately used force in response to an assault or robbery.

“The linchpin of Gonzales’s defense was that McLaughlin took his phone and money and then, when confronted, attacked Gonzales with a ‘solid object’ in an effort to retain it,” wrote Judge Matthew D. Grove in the Aug. 20 opinion. “Depending on the jury’s assessment of Gonzales’s credibility, there is a real possibility that it would have applied the (omitted) instruction had the court included it.”

The panel ordered a new trial.

The case is People v. Gonzales.