Peo v. Gallegos

── Peo v. Gallegos ── Court: Colorado Court of Appeals Date: May 28, 2026 Category: General 23CA1309 & 23CA1317 Peo v Gallegos 05-28-2026 COLORADO COURT OF APPEALS Court of Appeals Nos. 23CA1309 & 23CA1317 Jefferson County District Court No. 14CR2322 Honorable Tamara S. Russell, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Scott Alan Gallegos, Defendant-Appellant. JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS Division IV Opinion by JUDGE WELLING Schock and Lum, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 28, 2026 Philip J. Weiser, Attorney General, Frank R. Lawson, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Megan A. Ring, Colorado State Public Defender, Jeffrey A. Wermer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Scott Alan Gallegos, appeals the judgment of conviction for one count of first degree assault, one count of second degree assault, and two counts of reckless endangerment. Because we conclude that the trial court’s refusal to instruct the jury on Gallegos’ defense of a third person affirmative defense impermissibly lowered the prosecution’s burden of proof for the first degree assault charge, and likely substantially influenced the remaining verdicts, we reverse the judgment of conviction and remand to the trial court for a new trial. I. Background ¶2 In 2014, Gallegos and his girlfriend, J.W., took their motorcycles for a test drive after working on them for most of the day. Gallegos brought some of his tools with him, including a crescent wrench. They ended their test drive at a local karaoke bar to meet up with some friends. ¶3 They both sat facing away from the bar, with J.W. sitting to Gallegos’ right. Another patron, Dennis Shing, approached J.W., introduced himself, and also sat facing away from the bar to her right. J.W. and Shing engaged in small talk while Gallegos watched karaoke performances. 1 ¶4 J.W. testified that at some point during their conversation, Shing “poked” J.W.’s breast. J.W. then stood up and told her friend that she wanted to leave the bar. J.W. testified that before she walked away, she told Gallegos that Shing had just touched her and that she was leaving the bar. ¶5 Upon hearing that Shing had touched J.W., Gallegos pulled his crescent wrench out of his pocket and hit Shing in the eye and jaw with it. As Shing moved away, Gallegos kicked him from behind. Gallegos struck Shing with the wrench at least one more time from behind before Shing exited the bar and called 911. ¶6 As Shing exited the bar, Matt McDermott, Shing’s friend, grabbed Gallegos from behind. Gallegos’ friend pulled McDermott off Gallegos and onto the ground, such that McDermott was lying face up on the ground. According to Gallegos, McDermott kicked at him from the ground, so Gallegos hit McDermott with the wrench to keep him down. After the altercation, Gallegos exited the bar and drove his motorcycle home. ¶7 Gallegos was charged with one count of assault in the first degree, pursuant to section 18-3-202(1)(a), C.R.S. 2025, for his conduct toward Shing, and one count of assault in the second 2  degree, pursuant to section 18-3-203(1)(b), C.R.S. 2025, for his conduct toward McDermott. ¶8 At trial, the prosecution admitted video footage of the attack. The video shows the entire incident, without audio, from two different, slightly obscured, angles. The video shows Shing approaching J.W. and chatting with her, then J.W. standing up from her barstool and speaking to Gallegos. In the video, J.W. is still in between Gallegos and Shing when Gallegos begins to pull the wrench out of his pock