Background
Manuel Gallarzo was subject to protection orders barring contact with his wife and her children and barring him from entering his wife’s residence. A jury found that he assaulted his wife on July 16, 2022, by grabbing her neck and striking her face, and again on July 18 by grabbing her hair and moving her head roughly. The incidents caused injuries around each of her eyes.
The jury convicted Gallarzo of first degree burglary, two counts of third degree assault, and three counts of violating protection orders. The burglary count was based on unlawful entry or remaining in the home with intent to violate a protection order, coupled with an assault. The trial court imposed six years’ imprisonment for burglary and concurrent one-year misdemeanor sentences.
The Court’s Holding
The Colorado Court of Appeals rejected Gallarzo’s due-process challenge to the 2022 model reasonable-doubt instruction. The instruction properly retained the prosecution’s burden, and its “firmly convinced” and “real possibility” language did not lower that burden, shift it to the defense, or create an impermissibly conflicting standard. The instruction’s failure to expressly mention a lack of evidence likewise was not reversible error.
The court held that one, but only one, assault conviction had to merge into the first degree burglary conviction under double-jeopardy principles. The July 16 assault could serve as the burglary’s assault predicate and therefore merged. The July 18 assault remained a separate conviction because it was not necessary to support the burglary conviction. The protection-order violations also remained separate because burglary required intent to violate an order, not proof that Gallarzo actually violated one.
Key Takeaways
- The 2022 Colorado reasonable-doubt instruction survives challenges based on its “firmly convinced” and “real possibility” wording.
- Where multiple assaults could support first degree burglary, only one predicate assault must merge into the burglary conviction.
- An actual protection-order violation does not merge into burglary merely because intent to commit that offense supplied burglary’s intent element.
Why It Matters
The decision applies the Colorado Supreme Court’s recent approval of the current reasonable-doubt instruction and clarifies the distinct roles of burglary’s intended-crime element and its aggravating assault predicate. It also confirms that merger remedies should preserve all legally permissible convictions while eliminating only the duplicative predicate offense.