State of Minnesota v. Julian Daniel Valdez

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-1424

State of Minnesota,
Respondent,

vs.

Julian Daniel Valdez,
Appellant.

Filed October 16, 2023
Reversed and remanded
Johnson, Judge
Concurring specially, Kirk, Judge ∗

Renville County District Court
File No. 65-CR-21-248

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Kelsie Kingstrom, Renville County Attorney, Olivia, Minnesota; and

Scott A. Hersey, Special Assistant County Attorney, St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Cochran, Judge; and Kirk,

Judge.

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant
∗

to Minn. Const. art. VI, § 10.

SYLLABUS

In giving a jury instruction concerning the defense-of-others defense, the district

court erred by instructing the jury that the defendant had a duty to retreat or avoid the

danger if reasonably possible.

OPINION

JOHNSON, Judge

Julian Daniel Valdez shot and killed a man who had threatened to kill Valdez’s

stepbrother, had tackled the stepbrother, and was assaulting the stepbrother as he lay on the

ground. At trial, the district court instructed the jury on Valdez’s defense-of-others defense

by stating that Valdez had “a duty to retreat or avoid the danger if reasonably possible.” A

Renville County jury found Valdez guilty of second-degree unintentional murder. We

conclude that the district court erred by instructing the jury that Valdez’s defense-of-others

defense is subject to a duty to retreat, which effectively would negate his right to use

reasonable force to defend his stepbrother. We also conclude that the error is not harmless.

Therefore, we reverse the conviction and remand for a new trial.

FACTS

On August 5, 2021, Valdez spent the day with his stepbrother, Chris Munguia, in

Valdez’s detached garage, which faces an alley near a side street in the city of Renville.

The garage was furnished with a couch, a flat-top grill, a pool table, a television, and several

tables and chairs. Valdez and Munguia grilled food, drank beer, and played pool. At one

point during the day, Pablo Gutierrez was a passenger in his sister’s vehicle as she drove

2

past Valdez’s home and garage. Munguia made some type of gesture to Gutierrez as

Gutierrez passed by Valdez’s garage.

That evening, Gutierrez walked from his sister’s house to Valdez’s garage and

entered the garage through an open garage door. Valdez recognized Gutierrez because he

had seen Gutierrez fight with another person in the nearby alley three years earlier. Valdez

noticed that Gutierrez was sweaty and breathing heavily and appeared to be angry.

Gutierrez asked Valdez if Munguia was there; Valdez told him that Munguia was inside

the house. Valdez went inside the house to get Munguia and also retrieved his .45-caliber

pistol from a safe. When Munguia came to the garage, he observed that Gutierrez was

agitated. Munguia offered Gutierrez a drink and asked him to play pool with them, which

calmed him down.

As the three men were preparing to play pool, Valdez stood across the pool table

from Gutierrez, who stood next to Munguia. Valdez testified at trial as follows. He and

Munguia were talking and laughing when Gutierrez developed a “mean face,” apparently

because Gutierrez believed that they were talking about him. Gutierrez threatened to kill

them. Valdez showed Gutierrez his pistol and told him to get out. Gutierrez threatened to

“jump the table,” slap Valdez, take the gun, and shoot him with it. Munguia told Gutierrez

to calm down. Gutierrez “came at” Munguia, threatening to kill him too. Munguia swung

a pool cue, which hit Gutierrez in his left ear, but it did not stop Gutierrez from coming

after Munguia and choking him. Gutierrez tackled Munguia outside the garage door,

causing Munguia to trip over trash bags and fall backwards into the alley with Gutierrez

on top of him. Gutierrez was much larger than Munguia. Munguia was “pleading for his

3

life” and told Valdez to shoot Gutierrez. Valdez stepped out of the garage and fired his

pistol at Gutierrez once from six or seven feet away. Gutierrez stood up, said that he had

been shot, and fell down.

Munguia testified at trial to a similar version of the incident, as follows. Gutierrez

became aggressive toward him and Valdez, and they repeatedly asked Gutierrez to leave.

Gutierrez threatened to jump over the table, take the gun, shoot Valdez in the head, and kill

Munguia. Gutierrez lunged at and hit Munguia. Munguia was able to push Gutierrez away

and to hit him with the heavy end of a pool cue, but Gutierrez was not dazed. Gutierrez

tackled Munguia to the ground at the garage entrance and smothered Munguia’s face.

Munguia begged Valdez to shoot Gutierrez. Valdez fired his pistol. Gutierrez stood up

and then stumbled and fell to the ground. Munguia removed his own shirt and attempted

to render aid to Gutierrez by applying pressure to his wounds. Munguia called 911.

When deputies arrived, they found Gutierrez lying in the alley, without a pulse.

Munguia was kneeling near Gutierrez, and Valdez was standing near the garage.

The state charged Valdez with second-degree intentional murder, in violation of

Minn. Stat. § 609.19, subd. 1(1) (2020), and second-degree unintentional murder, in

violation of Minn. Stat. § 609.19, subd. 2(1) (2020).

In April 2022, approximately one month before trial, Valdez filed a motion in limine

in which he requested jury instructions on defense of property, defense of dwelling, and

defense of self or others. With respect to the defense-of-others defense, Valdez specifically

requested that the district court omit any mention of a duty to retreat on the ground that

Munguia was unable to retreat. In response, the state argued, among other things, that

4

Valdez was not entitled to the instructions he sought because he made no effort to retreat.

After a hearing on the motion, the district court reserved ruling on whether the requested

instruction was warranted but ruled that any such instruction would state that Valdez had

a duty to retreat.

The case was tried to a jury on four days in May 2022. The state called 17 witnesses.

Valdez called four witnesses, including himself and Munguia. On both direct and cross-

examination, Valdez was asked why he did not take defensive actions other than shooting

Gutierrez. He responded that he had tendonitis in his wrist, which caused pain in his

forearm and required him to wear a brace. He also testified that Munguia’s attempt to stop

Gutierrez with a pool cue was ineffective. He testified further that he was capable of

running away but did not want to leave Munguia behind while he was being attacked by

Gutierrez. Valdez acknowledged that he could have kicked Gutierrez and that his garage

contained various other items that could have been used as weapons, such as golf clubs.

After both parties had rested on the third day of trial, Valdez’s attorney renewed his

request for an instruction concerning his self-defense and defense-of-others defenses. The

district court ruled that Valdez had satisfied his burden of production and was entitled to

the instructions he sought. The following morning, Valdez’s attorney asked the district

court to reconsider its earlier ruling that the instruction on self-defense and defense-of-

others would state that he had a duty to retreat. The district court reiterated its prior ruling.

In closing arguments, the prosecutor argued, among other things, that Valdez used

unreasonable force when he shot Gutierrez and that he failed to retreat. Valdez’s attorney

argued, among other things, that Valdez’s use of force was reasonable when he acted in

5

defense of Munguia. The district court instructed the jury that Valdez had “a duty to retreat

or avoid the danger if reasonably possible.”

The jury found Valdez not guilty of second-degree intentional murder but guilty of

second-degree unintentional murder. The district court sentenced Valdez to 150 months

of imprisonment. Valdez appeals.

ISSUE

Did the district court err in its jury instruction on Valdez’s defense-of-others defense

by instructing the jury that Valdez had a duty to retreat or avoid the danger if reasonably

possible?

ANALYSIS

Valdez argues that the district court erred by instructing the jury that, with respect

to his defense-of-others defense, he had a duty to retreat or avoid the danger if reasonably

possible.

A district court must instruct a jury in a manner that “fairly and adequately

explain[s] the law of the case.” State v. Peltier, 874 N.W.2d 792, 797 (Minn. 2016). A

district court errs if its jury instructions “confuse, mislead, or materially misstate the law.”

State v. Vang, 774 N.W.2d 566, 581 (Minn. 2009). An appellate court reviews jury

instructions as a whole and seeks to determine whether they “accurately state the law in a

manner that can be understood by the jury.” State v. Kelley, 855 N.W.2d 269, 274 (Minn.

2014). A district court is given “considerable latitude in selecting language for jury

instructions.” State v. Gatson, 801 N.W.2d 134, 147 (Minn. 2011) (quotation omitted).

6

Accordingly, appellate courts apply an abuse-of-discretion standard of review to a district

court’s jury instructions. State v. Stay, 935 N.W.2d 428, 430 (Minn. 2019).

A.

The defense-of-others defense is codified in a statute that authorizes the use of

reasonable force in certain circumstances. See Minn. Stat. § 609.06 (2020). Specifically,

the statute provides that “reasonable force may be used upon or toward the person of

another without the other’s consent when the following circumstances exist or the actor

reasonably believes them to exist.” Minn. Stat. § 609.06, subd. 1. One of the

circumstances that follows is the circumstance in which reasonable force may be “used by

any person in resisting or aiding another to resist an offense against the person.” Id.,

subd. 1(3). 1 The supreme court recently clarified that, consistent with the common law

concerning self-defense, the term “offense against the person” is limited to “offenses

carrying the threat of bodily harm.” State v. Lampkin, 994 N.W.2d 280, 289 (Minn. 2023).

The supreme court has described the statutory authorization to use reasonable force to resist

such an offense as a “right.” State v. Devens, 852 N.W.2d 255, 258 (Minn. 2014); State v.

Graham, 195 N.W.2d 442, 444 (Minn. 1972).

1
Another statute limits a person’s right to use deadly force in self-defense or in
defense of others: “The intentional taking of the life of another is not authorized by section
609.06, except when necessary in resisting or preventing an offense which the actor
reasonably believes exposes the actor or another to great bodily harm or death, or
preventing the commission of a felony in the actor’s place of abode.” Minn. Stat. § 609.065
(2020). The district court incorporated section 609.065 into its instructions on the charge
of intentional second-degree murder. Because Valdez was acquitted of intentional second-
degree murder, section 609.065 is not relevant on appeal.
7

Section 609.06, subdivision 1(3), does not expressly qualify the right to use

reasonable force in self-defense or defense-of-others situations by imposing a duty to

retreat instead of or before using reasonable force. Nonetheless, the caselaw is clear that a

person has a duty to retreat before using reasonable force in self-defense. See Devens, 852

N.W.2d at 258. This is so because the supreme court has held that a criminal defendant is

entitled to a jury instruction on a self-defense defense if the evidence is capable of proving

each of four requirements:

(1) the absence of aggression or provocation on the part of the
defendant; (2) the defendant’s actual and honest belief that he
or she was in imminent danger of . . . bodily harm; (3) the
existence of reasonable grounds for that belief; (4) the absence
of a reasonable possibility of retreat to avoid the danger.

Id. (quotation omitted). If a defendant asserts a self-defense defense, the defendant has the

initial burden of “going forward with evidence to support a claim of self-defense.” State

v. Basting, 572 N.W.2d 281, 286 (Minn. 1997). If the defendant satisfies that burden, the

state bears the burden of disproving one or more of the requirements of the defense beyond

a reasonable doubt. Id.

The same statute that authorizes the use of reasonable force in self-defense and

defense-of-others situations also authorizes the use of reasonable force to resist a trespass

or interference with real property. Minn. Stat. § 609.06, subd. 1(4) (2020). Consistent

with the statute, the supreme court has recognized a common-law right to use reasonable

force to protect one’s dwelling. State v. Carothers, 594 N.W.2d 897, 899-900 (Minn.

1999). Minnesota caselaw is clear that, in a defense-of-dwelling situation, there is no duty

to retreat. Id. at 900-03. The supreme court has reasoned that imposing a duty to retreat

8

in a defense-of-dwelling situation “would effectively preclude a person from preventing a

felony in the home” and would “force people to leave their homes by the back door while

their family members are exposed to danger and their houses are burgled.” Id. at 901. The

supreme court added, “A duty to retreat is incompatible with the right to prevent the

commission of a felony within one’s home.” Id. Accordingly, the supreme court in

Carothers reversed and remanded a felony-murder conviction on the ground that the

district court erred by instructing the jury that the defendant had a duty to retreat from his

own home when an intruder, who “had a reputation . . . as a violent and ruthless person,”

entered the defendant’s home without permission and approached him in an aggressive

manner. Id. at 898-99, 903-04.

The supreme court has not considered whether the right to use reasonable force to

defend another person is subject to a duty to retreat. The supreme court has stated

generally, in a footnote, that the defense-of-others defense “parallels” the self-defense

defense. State v. Granroth, 200 N.W.2d 397, 399 n.2 (Minn. 1972). But there is no further

guidance in precedential appellate opinions in Minnesota as to whether the right to use

reasonable force to defend another person is subject to a duty to retreat. 2

2
This court has considered and rejected arguments that are similar to Valdez’s
argument. See State v. Willis, No. A11-1973, 2012 WL 5896752, at *3-4 (Minn. App.
Nov. 26, 2012), rev. denied. (Minn. Feb. 19, 2013); State v. Bishop, No. A07-1435 & A08-
1339, 2009 WL 1750631, at *4 (Minn. App. June 23, 2009), rev. denied. (Minn. Sept. 16,
2009). But this court’s nonprecedential opinions are “not binding authority except as law
of the case, res judicata or collateral estoppel.” See Minn. R. Civ. App. P. 136.01,
subd. 1(c).
9

B.

In this case, the district court instructed the jury that Valdez is not guilty of the

charge of unintentional second-degree murder if he “acted in defense of self or others as

authorized by law.” The district court further instructed the jury by summarizing each of

the four requirements identified by the caselaw concerning self-defense. See Devens, 852

N.W.2d at 258. With respect to the fourth requirement, the instruction stated, “The

Defendant has a duty to retreat or avoid the danger if reasonably possible.” 3

Valdez contends that the district court erred by including a duty to retreat in this

instruction on the ground that, as a general matter, it would require a person to “leave the

other person to fend for themselves” and, for that reason, would “effectively negate the

right to defend another.” He contends further that, in this specific case, Munguia “was

unable to flee because he was being attacked by Gutierrez, who was on top of him.” Valdez

asserts that he should not have been required to retreat unless both he and Munguia “could

have safely extricated themselves from Gutierrez’s attack.” In support of that assertion, he

cites a well-known treatise, which states that the duty to retreat “must be assessed

somewhat differently” in defense-of-others cases as compared to self-defense cases.

2 Wayne R. LaFave, Substantive Criminal Law § 10.5(c), at 227 (3d ed. 2018).

Specifically, the treatise states that “the ability of the defendant to retreat without risk to

3
The district court’s instruction is similar to a model jury instruction that is intended
to apply to both self-defense and defense-of-others. See 10 Minn. Dist. Judges Ass’n,
Minnesota Practice: Jury Instruction Guides—Criminal § 7.13, at 56-57 (Supp. 2022). We
reiterate that model jury instructions “are not the law” and are merely an “attempt to
summarize the law for the convenience of the parties and the [district] court.” State v.
Pierce, 792 N.W.2d 83, 86 (Minn. App. 2010).
10

himself should not control when the force is being used to protect another party who cannot

retreat.” Id. In response, the state contends merely that, because a duty to retreat applies

to the defense of self-defense, and because the caselaw states that the law of defense-of-

others “parallels” the law of self-defense, see Granroth, 200 N.W.2d at 399 n.2, a duty to

retreat also applies to the defense-of-others defense.

We agree with Valdez that the district court’s jury instruction is inconsistent with

the statutory right to use reasonable force to aid another person in resisting an offense

against that person that threatens bodily harm. The district court’s instruction that Valdez

had “a duty to retreat or avoid the danger if reasonably possible” informed jurors that

Valdez was required to retreat if it was reasonably possible for him to do so, without regard

for whether Munguia could have retreated and without regard for Munguia’s well-being in

the face of Gutierrez’s ongoing attack. Valdez testified that he himself was able to run

away from the confrontation but that Munguia was pinned underneath Gutierrez and, thus,

unable to retreat. The practical effect of the district court’s instruction would be to

retroactively impose on Valdez a requirement that, to avoid criminal liability, he had to

abandon Munguia and leave him in danger of bodily harm or death. The district court’s

instruction is inconsistent with Valdez’s statutory right to defend Munguia against

Gutierrez’s attack. Our reasoning is consistent with Carothers, in which the supreme court

held that there is no duty to retreat before using reasonable force to defend a dwelling. See

594 N.W.2d at 900-03.

Our reasoning also is consistent with the caselaw of other states in which this

specific issue has arisen. In Cleveland v. State, 700 S.W.2d 761 (Tex. Ct. App. 1985), the

11

appellate court concluded that the trial court erred by instructing the jury that a defendant

asserting a defense-of-others defense had a duty to retreat, reasoning that “if the actor is

acting in defense of third persons, it is the position of the third person that is relevant.” Id.

at 762. The Cleveland court relied on Crawford v. State, 629 S.W.2d 165 (Tex. Ct. App.

1982), in which the appellate court concluded that the trial court erred by instructing the

jury that the defendant asserting a defense-of-others defense had a duty to retreat, reasoning

that such a duty “would require one who perceives another under attack by unlawful force,

and believes that his intervention is immediately necessary to prevent the attack, to simply

walk away if he can reasonably do so without injury to himself and leave the victim to the

whims of the assailant.” Id. at 167. 4 We are unaware of any foreign caselaw that imposes

a duty to retreat on a person’s right to defend another person from unlawful force without

considering the other person’s ability to retreat. 5

4
The Crawford and Cleveland opinions were issued when a Texas statute provided
that, to establish the defense-of-others defense, a defendant must prove that “a reasonable
person in the actor’s situation would not have retreated.” Crawford, 629 S.W.2d at 167
(quoting Tex. Penal Code § 9.32(2) (1974)); see also Cleveland, 700 S.W.2d at 762 n.1
(quoting Tex. Penal Code § 9.32(2) (1974)). That statute was amended in 2007 to
expressly provide that, so long as certain conditions are satisfied, there is no duty to retreat
from a threat of unlawful force. Tex. Penal Code Ann. § 9.32(c) (West 2022); Acts 2007,
80th Leg., ch. 1, § 3 (eff. Sept. 1, 2007).
5
It appears that the relevant caselaw is limited because states vary widely with
respect to whether and when a duty to retreat exists. In a majority of states, a person does
not have a duty to retreat before defending either oneself or another person from a threat
of unlawful force. See Paul H. Robinson et al., The American Criminal Code: General
Defenses, 7 J. Legal Analysis 37, 56 & n.59 (2015). A few of the remaining states follow
the Model Penal Code by requiring a person to retreat before using force to protect another
person “unless he knows that he can thereby secure the complete safety of such other
person.” Model Penal Code § 3.05(2)(a) (Am. L.w Inst. 1985); see also Robinson et al.,
supra, at 56. In Massachusetts, a person has a duty to retreat before defending oneself but
12

The state asserts additional reasons why the challenged jury instruction is not

erroneous. The state contends that Gutierrez likely would not have inflicted great bodily

harm or death on Munguia, that Valdez could have tried to restrain Gutierrez by

approaching him from behind while he was on top of Munguia, that Valdez could have

used other implements that were available to him in the garage (such as a golf club, a pool

stick, or tools) as makeshift weapons instead of using a firearm, and that Valdez used more

force than was reasonable when he fired his pistol at Gutierrez. These arguments are not

responsive to Valdez’s argument. We are not asked to review the sufficiency of the

evidence supporting the jury’s verdict. Also, we are not asked to consider whether Valdez

was entitled to a jury instruction on his defense-of-others defense. The district court ruled

that he was entitled to such an instruction, and we take that ruling as given. We seek to

determine only whether the district court erred in its selection of language for the

instruction. Whether Valdez ultimately prevails on his defense-of-others defense is a

matter for the jury to decide in a new trial on remand.

In sum, the district court’s jury instruction concerning Valdez’s defense-of-others

defense is inconsistent with his statutory right to use reasonable force to defend Munguia

from Gutierrez’s attack. Consequently, the district court’s jury instruction was a material

misstatement of the applicable law. See Peltier, 874 N.W.2d at 797; Vang, 774 N.W.2d at

581. Thus, the district court erred by instructing the jury that, for purposes of Valdez’s

not before defending another person. Commonwealth v. Allen, 48 N.E.3d 427, 435 & n.9
(Mass. 2016).
13

defense-of-others defense, he had a duty to retreat or avoid the danger if reasonably

possible.

C.

The state argues in the alternative that, if the district court erred in instructing the

jury, the error is a harmless error. See Minn. R. Crim. P. 31.01. A defendant is entitled to

a new trial due to an erroneous jury instruction “if it cannot be said beyond a reasonable

doubt that the error had no significant impact on the verdict.” State v. Glowacki, 630

N.W.2d 392, 402 (Minn. 2001) (quotation omitted).

The state contends that the jury instruction did not have a significant impact on the

verdict because Valdez’s killing of Gutierrez was not justified. Specifically, the state

contends that Valdez provoked Gutierrez by brandishing his firearm and that Valdez used

unreasonable force by shooting Gutierrez in the back and killing him. Valdez anticipated

the state’s harmlessness argument in his principal brief, in which he argues that the district

court’s erroneous instruction is not a harmless error. Valdez notes that the prosecutor

argued to the jury that Valdez did not retreat and that the state needed to disprove only one

element of his defense. Valdez asserts that it is impossible to know whether the jury found

him guilty because it rejected his version of the facts or because it accepted his version but

felt obligated to find him guilty because he did not retreat.

In Glowacki, the district court erroneously instructed the jury that the defendant had

a duty to “avoid the danger if reasonably possible” when acting in self-defense in his own

home. 630 N.W.2d at 402. The supreme court reasoned that, “even if the jury accepted

Glowacki’s version of events, no reasonable juror could conclude that his use of force to

14

defend himself was reasonable.” Id. at 403. Consequently, the supreme court concluded

that “the erroneous instruction did not have a significant impact on the jury’s verdict

because Glowacki’s use of force did not meet the reasonableness requirement of self-

defense.” Id. For that reason, the supreme court upheld the jury’s guilty verdict. Id.

In State v. Baird, 654 N.W.2d 105 (Minn. 2002), the district court erroneously

instructed the jury that the defendant had a duty to “retreat or avoid the danger if reasonably

possible” when acting in self-defense in his own home. Id. at 114. The state argued that

the error was not prejudicial because the defendant used excessive force such that “even a

properly instructed jury could not have found” that the defendant’s actions were justified.

Id. But the supreme court, applying the plain-error test, rejected the state’s argument. Id.

The supreme court noted that the person whom Baird assaulted was holding a screwdriver

in his hand such that “the jury could have concluded” that Baird’s assault was justified. Id.

The supreme court further reasoned:

Under the circumstances, we conclude that it is simply
impossible to determine whether the jury rejected Baird’s
version of the facts or whether it accepted his version but
concluded that he was guilty nevertheless because he failed to
retreat. If the jury had known that Baird did not have a duty to
retreat, it is possible that it would have decided that Baird’s
actions were reasonable and taken in self-defense.

Id. For that reason, the supreme court concluded that Baird was entitled to a new trial. Id.

This case is more like Baird than Glowacki. Whether Valdez used reasonable force

was a contested issue at trial. The prosecutor argued, among other things, that Valdez used

unreasonable force when he shot Gutierrez and that he failed to retreat. Valdez’s trial

attorney argued, among other things, that Valdez’s use of force was reasonable because

15

Gutierrez refused to leave when asked, was unfazed after being hit by a pool cue, and was

attacking Munguia. Valdez’s trial attorney did not respond to the prosecutor’s argument

concerning the absence of retreat, perhaps because the erroneous instruction did not allow

an effective counter-argument on that issue. As in Baird, “it is simply impossible to

determine” whether the jury’s guilty verdict was based on Valdez’s non-retreat or on other

requirements of proof. See 654 N.W.2d at 114. Given the evidence and the arguments of

counsel, we cannot determine beyond a reasonable doubt that the error did not have a

significant impact on the jury’s verdict.

Thus, the district court’s erroneous jury instruction is not a harmless error.

DECISION

The district court erred by instructing the jury, with respect to Valdez’s defense-of-

others defense to the charge of unintentional second-degree murder, that Valdez had a duty

to retreat or avoid the danger if reasonably possible. The erroneous instruction is not a

harmless error. Therefore, Valdez is entitled to a new trial.

Reversed and remanded.

16

KIRK, Judge (concurring specially)

While I agree with the majority decision to reverse Valdez’s conviction and remand

for a new trial, I write separately to highlight concerns about the state’s argument that it

had disproved other elements of Valdez’s defense-of-others claim by demonstrating

(1) that Valdez became the aggressor or provoked Gutierrez by displaying his pistol while

telling Gutierrez to leave the garage, and (2) that the force used by Valdez against Gutierrez

was unreasonable.

On the evening of the shooting, Valdez and his brother Munguia were spending time

in their garage drinking, playing pool, and grilling. At about 8:30 p.m., while Munguia

was in the house, a man who Valdez recognized from the community, but did not know,

showed up at the garage uninvited. He was sweaty, breathing heavily, and seemed “mad.”

He seemed to be looking for Munguia, and so Valdez went to the house to get him.

Gutierrez apparently believed that Munguia—who he had initially believed was someone

else—had made a “gesture” towards him when he and his sister drove by the garage earlier

that night. Despite a period of calm after Valdez and Munguia were able to deescalate his

agitation, Gutierrez again became angry because he believed that they were laughing at

him. Valdez testified that Gutierrez then threatened to kill them both. At this point, Valdez

displayed his pistol—which he had retrieved from the home earlier when he went to find

Munguia for Gutierrez—and ordered Gutierrez to leave. In response, Gutierrez threatened

to “jump the table,” slap Valdez, take the gun, and shoot him with it. Gutierrez was not

deterred by Valdez and Munguia repeatedly ordering him to leave or by Valdez displaying

CS-1

his pistol. Instead, Gutierrez attacked Munguia, pinned him to the ground and began either

smothering or choking him. 1

At trial, and again on appeal, the state argued that Valdez became the aggressor in

the confrontation and used unreasonable force when he “provoked [Gutierrez] by purposely

brandishing a deadly weapon” and thus “escalated the situation” from a verbal

confrontation to a physical one. As stated by the majority, to be entitled to assert a self-

defense or defense-of-others defense, there must be, in relevant part: “(1) the absence of

aggression or provocation on the part of the defendant; (2) the defendant’s actual and

honest belief that he or she was in imminent danger of . . . bodily harm; [and] (3) the

existence of reasonable grounds for that belief.” State v. Devens, 852 N.W.2d 255, 258

(Minn. 2014); see also Minn. Stat. § 609.06, subd. 1(3) (2020).

Here, Gutierrez verbally threatened to use deadly force against Valdez and

Munguia. Such a threat of imminent danger entitled Valdez to respond by displaying his

pistol, a weapon capable of the same deadly force threatened by Gutierrez, to deter

Gutierrez from acting and to encourage him to leave the property. On these facts, I would

conclude that Valdez did not become the aggressor by simply brandishing his pistol in

response to Gutierrez’s death threats and aggravated demeanor. Cf. State v. Columbus, 258

N.W.2d 122, 125 (Minn. 1977) (“The defendant became the aggressor by drawing, loading,

and aiming the rifle . . . [because] he did so while in no imminent danger of any kind . . .

1
At trial, a medical examiner testified that methamphetamine was discovered in
Gutierrez’s body. An investigator testified that methamphetamine is a stimulant that
elevates blood pressure and pulse, often resulting in rapid speech, aggression, and
sweatiness.
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[and] had no reasonable grounds to believe either he or his sister was in imminent

danger.”); State v. Radke, 821 N.W.2d 316 (Minn. 2012).

The state also asserts that Valdez could have adequately defended Munguia using

less-than-lethal force by (1) joining the fray and pushing or pulling Gutierrez off Munguia;

or (2) using a “golf club, a pool stick, or one of the tools in the garage” to strike Gutierrez.

“[A]n individual may only use reasonable force based on the circumstances of the

situation.” State v. Glowacki, 630 N.W.2d 392, 402-03 (Minn. 2001). “The degree of force

used in self-defense must not exceed that which appears to be necessary to a reasonable

person under similar circumstances.” State v. Basting, 572 N.W.2d 281, 286 (Minn. 1997).

Whether force was reasonable is a factual determination for the jury. Glowacki, 630

N.W.2d. at 403.

Here, the state argues that it was “highly unlikely” that Gutierrez was about to inflict

serious bodily harm or death on Munguia during the confrontation such that Valdez was

entitled to use deadly force. But that is ultimately a decision for the jury, which might

reasonably conclude that being attacked and pinned to the floor placed Munguia in a

vulnerable position where a single blow could have caused serious bodily harm or death.

And the state’s argument that Valdez had purportedly non-lethal alternatives available to

him is similarly unpersuasive because, in determining whether Valdez acted reasonably,

the focus of the inquiry is not upon what a defendant might have done, but rather upon the

reasonableness of what the defendant actually did. See State v. Housley, 322 N.W.2d 746,

751 (Minn. 1982); State v. Fidel, 451 N.W.2d 350, 355 (Minn. App. 1990). Thus, the fact

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that Valdez may have had other reasonable options at his disposal does not thereby render

unreasonable the option that he did choose.

When Gutierrez attacked Munguia, Munguia attempted to stop Gutierrez by striking

him in the head with the heavy, weighted end of a pool cue, and Valdez saw that it had no

deterrent effect. Valdez observed that Gutierrez was much larger than Munguia, and

Munguia was ultimately pinned underneath Gutierrez after the initial assault. Valdez also

had a wrist injury at the time, which caused him pain, required a wrist brace, and made it

less likely that he could physically protect his brother. And Munguia pleaded with Valdez

to shoot Gutierrez, indicating his own perception of the peril that Gutierrez had placed him

in. In the stress and immediacy created by Gutierrez’s assault, it is unlikely that Valdez or

any other similarly situated person would have the capacity to calmly consider what other

options might be available to stop it. Indeed, Valdez had only seconds to determine what

to do to save his brother from potentially serious bodily harm or death.

Under these circumstances, Valdez did not suddenly become the aggressor and he

did not provoke Gutierrez by brandishing his pistol after Gutierrez threatened to kill them.

And given Valdez’s injury and what he had witnessed when Munguia tried to repel

Gutierrez’s attack with a pool cue, the trial record could support a jury’s determination that

Valdez acted reasonably under these circumstances. Valdez is therefore entitled to a new

trial with a jury properly instructed on the defense of others.

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