## Facts

- Julio A. Ramirez was separated from his wife, who had a restraining order against him.
- Ramirez and his wife encountered each other at a bar; she agreed to drive him to a restaurant.
- During the ride, Ramirez attempted to reconcile; his wife refused and dropped him off.
- Later that evening, Ramirez made several threatening calls to his wife and to her new boyfriend.
- Ramirez went to his wife’s home and entered without invitation.
- Inside the home, Ramirez punched his wife in the face multiple times and held a knife to her throat; she cut her finger while trying to pull away.
- Ramirez directed his wife to call her boyfriend; instead, she called 911, and the recording captured Ramirez making death threats.
- The wife fled into a bathroom; Ramirez forced the door open and continued threatening her with the knife until police arrived and arrested him.
- A jury convicted Ramirez of second-degree assault (after provocation) and felony menacing; it also convicted him of first-degree burglary and found a related crime-of-violence count.
- After trial, relying on Cooper v. People (decided after the verdict), Ramirez sought a new trial on the burglary and crime-of-violence counts, arguing the burglary instruction did not tell the jury that the intent to commit a crime must exist at the moment of unlawful entry (or unlawful remaining). The trial court granted a new trial on those counts.
- Ramirez appealed his assault and menacing convictions; the People cross-appealed the order granting a new trial on burglary and the crime-of-violence finding.

## Issues

1. Whether the first-degree burglary instruction was deficient under Cooper v. People because it did not expressly state that the intent to commit a crime must coexist with the unlawful entry (or the point at which remaining became unlawful), and whether the trial court properly granted a new trial on that basis.
2. Whether Ramirez’s felony menacing conviction could stand when the prosecution relied on the same conduct to prove first-degree burglary (through assault/menacing inside the dwelling) and to support the associated crime-of-violence finding.
3. Whether asserted instructional and evidentiary errors required reversal of the second-degree assault (after provocation) conviction.

## Decision

- Affirmed Ramirez’s conviction for second-degree assault (after provocation).
- Vacated Ramirez’s conviction for felony menacing.
- Reversed the trial court’s order granting a new trial on first-degree burglary and the related crime-of-violence count.
- Reinstated the first-degree burglary conviction and associated crime-of-violence finding and remanded for correction of the mittimus.

## Legal Principles

- Jury instructions are evaluated as a whole; an instruction is not reversible error if, taken together with the remaining instructions, it correctly states the law and fairly informs the jury of what it must find.
- Under Colorado burglary law, the intent to commit a crime must coincide with the unlawful entry or unlawful remaining; Cooper v. People clarified the timing requirement, but it does not require reversal if the instructions, read together, already required contemporaneous intent.
- A first-degree burglary instruction that tracks the statutory language (“knowingly enters or remains unlawfully … with intent to commit therein a crime”) may be sufficient to convey the required timing relationship when the case is tried on an unlawful-entry theory.
- Double jeopardy principles prohibit multiple convictions based on the same act when one conviction, as charged and proved, does not rest on conduct distinct from the other; when the same act of menacing is used to satisfy the burglary component and is also charged as felony menacing, the menacing conviction must be vacated.

## Conclusion

The Colorado Court of Appeals upheld Ramirez’s second-degree assault conviction, ruled that the burglary instruction—read with the other instructions—adequately required intent to commit a crime at the time of the unlawful entry consistent with Cooper, reversed the trial court’s grant of a new trial on burglary and the related crime-of-violence finding, reinstated those counts, and vacated the separate felony menacing conviction because it rested on the same conduct used to prove the burglary-based wrongdoing.


People v. Ramirez, 18 P.3d 822 (2000)