December 09, 2009 – State of New Mexico v. Timothy Sandoval, No. 28,437

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ________________
Filing Date: December 9, 2009
NO. 28,437
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
TIMOTHY SANDOVAL,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
John W. Pope, District Judge
Gary K. King, Attorney General
Andrew S. Montgomery, Assistant Attorney General
Santa Fe, NM
for Appellee
David Henderson
Santa Fe, NM
for Appellant

OPINION
GARCIA, Judge.
{1} 	Timothy “T J” Sandoval (Defendant) appeals his conviction for second-degree
murder. Defendant argues several issues on appeal, including fundamental error in
the jury instructions. 	We agree that an error in the jury instructions prevented
Defendant from presenting his theory of self-defense and defense-of-another based
upon a confrontation involving multiple assailants. We therefore reverse on this issue
and remand for a new trial.
BACKGROUND
{2} 	Sometime around 4:30 p.m. on February 11, 2006, a Ford Explorer chased an
Acura sedan down a rural road in Los Lunas, New Mexico, and forced it off the road.
The Explorer screeched to a halt on the pavement in front of the Acura, in which
Defendant was the passenger. The passenger and driver from the Explorer jumped out
and got into an angry altercation with Defendant, which included pulling out firearms.
A rapid series of shots rang out from Defendant’s gun. Afterward, Defendant jumped
back into the Acura that backed up and drove away. The first law enforcement officer
to arrive at the scene found the body of Ross Ramos lying on the ground near the
Explorer and the body of Jeff McCormick in the backseat of the Explorer. The third
occupant from the Explorer, James Arbizu, was on his hands and knees in front of the

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Explorer covered in blood. Ramos and Arbizu were brothers, and McCormick was
the father of Ramos’ and Arbizu’s little brother. When the officer asked Arbizu who
did this to him, he responded, “TJ did it.” Defendant, who was nineteen years old at
the time, turned himself in the next day. The State charged him with two open counts
of murder for the killing of Ramos and McCormick.
{3} 	During opening statements, defense counsel told the jury that Defendant
admitted to shooting all three men in self-defense and in defense of his girlfriend,
Vanessa Crouch, who was driving the Acura. 	The prosecutor told the jury that
Defendant was not being prosecuted for shooting Arbizu because Arbizu had a gun
when Defendant shot him. The State conceded that Defendant acted in self-defense
against Arbizu but argued that he did not need to shoot Ramos and McCormick in
self-defense because they were unarmed.
{4} 	Defendant did not testify, but Crouch told the jury that on the day of the
shooting she and Defendant had spent the day working at McDonald’s, where
Defendant was an assistant manager. 	After work they delivered birthday gifts to
Crouch’s mother and were returning home in her Acura when they stopped for
gasoline at J & J Country Mart. Defendant went inside to pay while Crouch pumped
the gas. Meanwhile, Ramos drove up in the Ford Explorer. Arbizu was in the front
passenger seat and McCormick was in the back seat.
{5} 	Crouch testified that when Defendant walked out of the store, he was called

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over to the Explorer. She heard the occupants of the Explorer shout “East Side,” the
name of a local gang. A passenger got out of the Explorer and confronted Defendant,
yelling, shouting profanities, and threatening Defendant with what Crouch thought
was a knife. Defendant walked away with his hands up, saying he did not want any
problems and that he did not know them. 	He got into the passenger’s seat of the
Acura, and Crouch drove off, headed for home.
{6} 	According to Arbizu’s testimony at trial, he spent most of the day with Ramos
working on a car. He said that they had been drinking but that Ramos only drank one
or two beers. Later in the day, McCormick called to ask for a ride home from work.
After they picked him up, they stopped at the J & J Country Mart for some cigarettes
and ran into Defendant.
{7} 	According to Crouch, as she tried to speed away from the store, the Explorer
chased them through the rural residential area. The Explorer pulled up next to her and
forced her off the road. 	Crouch had to slam on the brakes to pull over and the
Explorer screeched to a stop in front of her car. 	The passenger jumped out of the
Explorer before it came to a complete stop. He had a gun in his hand, and she saw
him cock his weapon. As soon as the Explorer came to a complete stop, the driver
also jumped out and ran to the front of the Acura while grabbing at his side. Defendant
got out of the car at some point with a gun. 	The driver and passenger yelled and
cursed at Defendant and shouted “East Side.” 	Arbizu was pointing his gun at

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Defendant. Defendant put his hands down and said again that he did not know them
and did not want any problems. 	“I was scared for my life,” Crouch said. 	“I was
thinking about my family. I didn’t think I was going to be able to go home. I was just
thinking I was going to have to sit there and watch them shoot my boyfriend, because
there was nothing that I could do.”
{8} 	Crouch said that the men from the Explorer told Defendant to put his gun down,
but as soon as he lowered it, she saw the driver reach to his side and she thought he
was going to shoot Defendant. That was when the shooting started. It was over in a
few seconds. Defendant ran back to the car, she backed away from the Explorer, and
they drove home. Crouch believes that Defendant saved both their lives.
{9} 	Arbizu testified that his memory of the day was not that clear because of his
injuries. He admitted that he had a gun. Arbizu was shot four times, and said that he
passed out and woke back up. After Arbizu heard the Acura drive off, he got his cell
phone and tried to call his mother and then his father before he successfully contacted
his girlfriend. Arbizu’s girlfriend testified that while talking to Arbizu she heard a
man in the background say “[l]et’s bail” and a car peel out.
{10} 	Perry Sanchez testified that he was in his barn saddling some horses when the
Acura came to a screeching halt in his driveway and the Explorer pulled in front of it
on the pavement. Sanchez saw the driver from the Explorer get out at about the same
time as the passenger from the Acura. The driver came around the Explorer and stood

5
in front of the Acura. He heard arguing and looked away. His daughter said, “Dad,
he’s got a gun.” When he turned back, he saw the passenger from the Acura had a gun
and was pointing it at a man from the Explorer. The man from the Explorer had his
hands up and said, “Put your gun down, homes, put your gun down, homes.” The
passenger from the Acura “started to drop his gun. And I seen the other guys; they
were taking their hands down.” The driver started reaching, but “I didn’t see him pull
anything.” 	Sanchez then turned around. 	“[T]hat’s when all the shooting started.”
Sanchez grabbed his daughter and threw her into the horse trailer. When he looked
up again, he saw the passenger shoot inside the back window of the Explorer and then
run back and jump in the Acura. The Acura backed up and took off. Sanchez testified
that the shots occurred in rapid succession lasting fifteen to twenty seconds. When
he approached the Explorer after the Acura left, Arbizu was holding his bleeding chin
and walking around confused.
{11} 	Another witness, Richard Bear, testified that he heard a rapid series of shots one
right after another, looked up, and saw the dust come up when one shot hit the dirt.
Bear saw the silhouette of an individual pointing a gun and shooting. Then he heard
a car door close and saw the car take off.
{12} 	A clinical psychologist testified for the defense that Defendant suffered from
post-traumatic stress disorder based on the shooting and that in her opinion Defendant
had been in great fear during the incident that he or Crouch were going to be killed

6
immediately. 	The State’s rebuttal witness, a forensic psychologist, testified that
Defendant’s conduct was consistent with overwhelming fear and that based on the
police reports he had to defend himself but that there may have been an opportunity
for flight before shooting McCormick.
{13} 	Defendant fired at least eight shots. One of his shots hit Arbizu’s gun, disabling
it. The State could tell from the way Arbizu’s gun was hit that it was cocked, loaded,
and pointed at Defendant. Ramos was shot twice and died from a gunshot wound to
the head. McCormick was found lying in the back seat with his feet hanging out the
open door and a pack of cigarettes in his hand. 	He died of a close-range gunshot
wound to the head. Another bullet passed through the back window of the Explorer.
{14} 	The State relied on extensive police reconstruction in an attempt to establish
that Arbizu was shot first, then Ramos, and finally McCormick. Other than Arbizu’s
disabled gun, no other firearms were found at the scene. Beer cans and an empty beer
case were found in the Explorer. Ramos had a blood alcohol content of .12 at the time
of the incident.
{15} 	In closing, the State conceded that Defendant acted in self-defense but argued
that he went too far. Defense counsel argued that the three occupants of the Explorer
were aggressors acting in concert and were shot in self-defense and in defense of
Defenant’s girlfriend. The jury acquitted Defendant of the charge for shooting Ramos
and convicted him of second-degree murder for shooting McCormick.

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DISCUSSION
{16} 	The district court gave self-defense and defense-of-another instructions on each
of the two counts of homicide. The self-defense instructions for both homicides were
the same, except for the name of the person shot. Thus, the self-defense instructions
stated the following:
Evidence has been presented that the defendant killed Ross Ramos [or
Jeff McCormick] in self-defense.
1. 	The killing is in self defense if:
2. 	There was an appearance of immediate danger of death or great
bodily harm to the defendant as a result of his confrontation with
Ross Ramos and James Arbizu; and
3. 	The defendant was in fact put in fear by the apparent danger of
immediate death or great bodily harm and killed Ross Ramos [or
Jeff McCormick] because of that fear; and
4. 	A reasonable person in the same circumstances as the defendant
would have acted as the defendant did.
The burden is on the state to prove beyond a reasonable doubt that the
defendant did not act in self defense. If you have a reasonable doubt as
to whether the defendant acted in self defense you must find the
defendant not guilty.
(Emphasis added.) See UJI 14-5171 NMRA. Similarly, both instructions on defense-
of-another told the jury to consider the appearance of immediate danger of death or
great bodily harm to Crouch “as a result of the confrontation between [Defendant] and
Ross Ramos and James Arbizu.” See UJI 14-5172 NMRA.

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{17} 	Defendant argues that the jury instructions were erroneous because they
directed the jury to only consider the threat stemming from Ramos and Arbizu.
Defendant contends that the jury was not adequately instructed on his theory that he
had a right to defend himself and Crouch against multiple assailants, including
McCormick, because the jury instructions did not tell the jury to deliberate on whether
McCormick appeared to be part of the threat.
{18} 	“The standard of review we apply to jury instructions depends on whether the
issue has been preserved.” State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258,
34 P.3d 1134. Defendant concedes that we should review this issue for fundamental
error because there is no record of a jury instruction conference or an indication that
Defendant objected to the instructions that were given. See Rule 12-216(B)(2) NMRA
(stating that issues not preserved below may be reviewed for fundamental error); State
v. Allen, 2000-NMSC-002, ¶ 95, 128 N.M. 482, 994 P.2d 728 (“When the trial court
had no opportunity to rule on a [claimed error] because the defendant did not object
in a timely manner, we review the claim on appeal for fundamental error.”). In order
for this Court to reverse pursuant to a fundamental error review, the error “must be
such error as goes to the foundation or basis of a defendant’s rights or must go to the
foundation of the case or take from the defendant a right which was essential to his
defense and which no court could or ought to permit him to waive.” State v. Garcia,
46 N.M. 302, 309, 128 P.2d 459, 462 (1942). Based on an examination of the whole

9
record, we must determine whether the jury instructions were erroneous and, if so,
whether the error rose to the level of fundamental error.
The Propriety of Self-Defense and Defense-of-Another Instructions Against
Multiple Assailants
{19} 	“For a defendant to be entitled to a self-defense instruction, . . . there need be
only enough evidence to raise a reasonable doubt in the mind of a juror about whether
the defendant lawfully acted in self-defense.” 	State v. Rudolfo, 2008-NMSC-036,
¶ 27, 144 N.M. 305, 187 P.3d 170. “[A] self-defense instruction is required whenever
[or if] a defendant presents evidence sufficient to allow reasonable minds to differ as
to all elements of the defense.” State v. Ellis, 2008-NMSC-032, ¶ 15, 144 N.M. 253,
186 P.3d 245 (second alteration in original) (internal quotation marks and citation
omitted). Those elements require that:
(1) the defendant was put in fear by an apparent danger of immediate
death or great bodily harm, (2) the killing resulted from that fear, and (3)
the defendant acted reasonably when he or she killed. 	The first two
requirements, the appearance of immediate danger and actual fear, are
subjective in that they focus on the perception of the defendant at the
time of the incident. By contrast, the third requirement is objective in
that it focuses on the hypothetical behavior of a reasonable person acting
under the same circumstances as the defendant.
Rudolfo, 2008-NMSC-036, ¶ 17 (internal quotation marks and citations omitted). In
other words, “[t]o justify the use of deadly force in self-defense, there must be some
evidence that ‘an objectively reasonable person, put into Defendant’s subjective
situation, would have thought that [he or she] was threatened with death or great

10
bodily harm, and that the use of deadly force was necessary to prevent the threatened
injury.’” 	State v. Cooper, 1999-NMCA-159, ¶ 8, 128 N.M. 428, 993 P.2d 745
(citation omitted).
{20} 	“In the usual case, self-defense is justified when force is directed toward a
person posing a threat of imminent bodily harm.” 	Id. 	However, significant to the
present case, we recognized in Cooper that defendants are entitled to self-defense
instructions when there is evidence that they were threatened by multiple assailants
acting together. Id. ¶ 11. Thus, we adopted the following rule:
When two or more persons undertake overt action to harm another, the
victim may use an appropriate amount of force to defend himself against
either aggressor, or both of them. 	If supported by the evidence, the
defendant is entitled to a self-defense instruction in which the jury
considers threatened harm from all assailants, not just the one against
whom the defendant may have retaliated.
Id.
{21} 	We concluded in Cooper that a self-defense instruction against multiple
aggressors is warranted even when the person the defendant assaulted never posed a
direct threat, as long as there is evidence that the person defendant assaulted was
acting in complicity with the other assailants. Id. ¶¶ 13-14. For example, in Cooper,
the threat of imminent bodily harm did not come from the individual upon which the
defendant claimed he was using force in self-defense. Id. ¶ 8. Rather, the direct threat
came from another person who had a gun. 	Id. 	We nonetheless held that when a

11
defendant claims that he or she reasonably believed that multiple individuals were
acting together and threatening the defendant with serious harm, the defendant is
entitled to a self-defense instruction against any or all assailants. Id. ¶ 14. The jury
instruction must be broad enough to allow the jury to consider the threat posed by all
assailants acting together or in complicity with one another. 	Id. ¶¶ 11-12. 	We
emphasized, however, that a defendant is not entitled to a self-defense instruction
against multiple assailants when the defendant’s actions are taken against an innocent
third party or bystander. Id. ¶ 9.
{22} 	In the present case, Defendant applied deadly force not only to the person who
had a gun and posed the most direct threat of harm, Arbizu, but also to Arbizu’s
companions, Ramos and McCormick. 	The district court gave self-defense and
defense-of-another instructions on both homicides. 	However, the self-defense
instructions described the first element, the threat perceived by Defendant, solely in
terms of Defendant’s “confrontation with Ross Ramos and James Arbizu.” The issue
before us is whether the instructions on McCormick’s homicide were erroneous
because they did not include the participation and complicity of McCormick as part
of the confrontation and immediate threat to Defendant and Crouch. By excluding
any mention of McCormick’s actions and his complicity in the confrontation and
threat to Defendant, Defendant claims that the instructions were erroneous. As such,
the jury was not instructed to consider whether Defendant reasonably believed that

12
Ramos, Arbizu, and McCormick were acting together during the confrontation and
in complicity when threatening Defendant and Crouch. The jury, therefore, would not
have understood that it had to consider whether McCormick’s actions were part of the
threat perceived by Defendant.
{23} 	In measuring a defendant’s entitlement to a self-defense instruction, we
examine the evidence from the standpoint of the defendant. 	Id. ¶ 2. 	Under the
circumstances of this case and viewing the evidence from Defendant’s point-of-view,
we agree that Defendant was entitled to self-defense instructions that were broad
enough to allow the jury to consider whether self-defense was justified against
McCormick under a multiple-assailant theory. See id. ¶¶ 11-12; see also UJI 14-5171
Use Note 3 (providing that the act resulting in the appearance of immediate danger of
death or great bodily harm be described in “enough detail to put the act in the context
of the evidence”); UJI 14-5172 Use Note 3 (same). 	Although Defendant did not
testify, Crouch provided ample testimony regarding the series of confrontations and
the complicity of all three assailants during the threats against Defendant and Crouch.
Based on Crouch’s testimony, the jury could reasonably infer that Defendant, who
was in front of the Acura and even closer to the action, saw at least what Crouch did
and, like Crouch, was afraid for his life and Crouch’s life based on an apparent threat
from all three occupants of the Explorer. See State v. Duarte, 1996-NMCA-038, ¶ 7,
121 N.M. 553, 915 P.2d 309 (recognizing that while it is more difficult to show actual

13
fear without a defendant’s testimony, a jury can infer intent from the circumstantial
evidence). McCormick’s complicity in the events at the convenience store and at the
site of the shooting could be viewed by the jury as sufficient to establish that he was
not an innocent bystander to the assaults. The jury could determine that he was part
of the confrontation and acting in complicity with Ramos and Arbizu when he opened
the passenger side door and partially exited the Explorer while apparently reaching for
something inside the vehicle. 	A reasonable jury could interpret such evidence as
though McCormick was looking for a weapon and participating in the fray. Thus, the
evidence was sufficient to create a jury question about whether McCormick was one
of the assailants under a multiple-assailant theory of self-defense and defense-of-
another. See Cooper, 1999-NMCA-159, ¶¶ 16-17.
{24} 	Furthermore, the witnesses all described the shots happening very quickly. A
clinical psychologist testified that in her opinion Defendant had been in great fear
during the incident and believed that he and Crouch were going to be killed
immediately. The State’s rebuttal witness, a forensic psychologist, also testified that
Defendant’s conduct was consistent with overwhelming fear. There was sufficient
evidence to support Defendant’s theory that everything happened very quickly and
that he was in the middle of a chaotic, life-threatening situation in which he and
Crouch were in imminent danger from all three assailants. A reasonable jury might
find that a person in Defendant’s position would believe that McCormick acted

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together and in complicity with Ramos and Arbizu to assault and threaten to harm
Defendant and Crouch.
{25} 	We recognize that the State presented evidence that attempted to establish that
McCormick was an innocent bystander who was just getting a ride home, was holding
a pack of cigarettes in his hand, and was trapped in the Explorer due to a child safety
lock on the rear passenger door. The State also attempted to establish that Defendant
first shot Arbizu, the only one who was armed, then shot Ramos and, when both of
these individuals were lying on the ground, walked up to the Explorer and shot
McCormick, even though all actual threats had been eliminated. However, viewing
the evidence in the light most favorable to the State is not the standard to be applied
when determining whether defense instructions should have been given. We remind
the State that it must present the evidence and its arguments according to the
appropriate standard of review.
{26} 	We conclude as a matter of law that Defendant has presented sufficient
evidence to argue that he reasonably feared all three assailants, and Defendant thought
he was in a fight for his life and the life of Crouch. The ultimate question of whether
Defendant was justified in his fear of all three assailants, including McCormick,
whether he killed McCormick because of that fear, and whether the force he used was
reasonably necessary to abate the imminent threat of immediate death or great bodily
harm were classic issues for the jury to decide. 	See id. ¶ 16. In this case, the jury

15
instructions were not broad enough to properly instruct the jury to consider the threat
from McCormick acting together and in complicity with Ramos and Arbizu. See id.
¶¶ 11-12. 	By directing the jury to not consider McCormick in any way, the jury
instructions, in effect, resolved a material issue of fact that was for the jury to decide,
which was whether McCormick acted together and in complicity with Ramos and
Arbizu. Such an instruction prevented Defendant from properly asserting his defenses
in the context of the evidence. We therefore conclude that the district court erred in
instructing the jury too narrowly on Defendant’s theories of self-defense and defense-
of-another. 	If Defendant had objected at trial, we would have concluded that
reversible error occurred.
Fundamental Error
{27} 	We now address whether the erroneous jury instructions rose to the level of
fundamental error. Under a fundamental error analysis, we “‘review the entire record,
placing the jury instructions in the context of the individual facts and circumstances
of the case, to determine whether the [d]efendant’s conviction was the result of a plain
miscarriage of justice.’” State v. Barber, 2004-NMSC-019, ¶ 19, 135 N.M. 621, 92
P.3d 633 (quoting Benally, 2001-NMSC-033, ¶ 24 (Baca, J., dissenting)); see State
v. Orosco, 113 N.M. 780, 783, 833 P.2d 1146, 1149 (1992) (stating that our task under
a fundamental error review is “to determine whether the error so undermined the
reliability of the conviction or prejudiced the defendant’s rights as to require

16
reversal”); State v. Gee, 2004-NMCA-042, ¶ 8, 135 N.M. 408, 89 P.3d 80 (“We will
reverse for fundamental error when the foundation or basis of a defendant’s case or
an essential right in a defense is affected.”). 	We previously have held that
fundamental error results “from instructions which, through omission or misstatement,
fail[ed] to provide the juror[s] with an accurate rendition of the relevant law.”
Benally, 2001-NMSC-033, ¶ 12, see, e.g., State v. Foxen, 2001-NMCA-061, ¶¶ 10,
15, 130 N.M. 670, 29 P.3d 1071.
{28} 	Defendant had the fundamental right to present his theory of defense to the jury.
See State v. Lucero, 1998-NMSC-044, ¶ 5, 126 N.M. 552, 972 P.2d 1143 (“It is basic
that a defendant is entitled to have his [or her] theory of the case submitted to the jury
under proper instructions where the evidence supports it.” (alteration in original)
(internal quotation marks and citation omitted)). An accurate rendition of Defendant’s
theory of defense would have included McCormick as an aggressor in the self-defense
and defense-of-another instructions. 	See Cooper, 1999-NMCA-159, ¶¶ 12-14.
Having found enough evidence to provide a self-defense instruction against all three
assailants, the district court was obligated to properly instruct the jury on all elements
of self-defense. See Rule 5-608(A) NMRA (requiring that the “court must instruct the
jury upon all questions of law essential for a conviction”); Foxen, 2001-NMCA-061,
¶ 12 (discussing the “well-established principle that adequate instruction on self-
defense is the duty of the courts where it finds support in the evidence”). 	The

17
deficiency in the given instructions did not comport with the district court’s position
that Defendant be able to present his theory that he was defending himself and Crouch
against all three assailants. The court’s failure to adequately and accurately describe
Defendant’s theory of defense violated Defendant’s fundamental rights. Cf. State v.
Coffin, 1999-NMSC-038, ¶ 13, 128 N.M. 192, 991 P.2d 477 (holding that jury
instructions that included both victims and their alleged threatening actions adequately
and accurately reflected the defendant’s self-defense theory and were not in error).
{29} 	In addition to failing to present Defendant’s defense theory, the instructions
impermissibly eased the State’s burden of disproving all elements of self-defense and
defense-of-another. By not including McCormick’s name in the instructions, the State
was relieved of proving beyond a reasonable doubt that Defendant did not act to
defend himself and Crouch against McCormick. This elimination of a portion of the
State’s burden of proof is contrary to law as set forth in numerous cases. 	See, e.g.,
Foxen, 2001-NMCA-061, ¶ 9 (“[T]he authorities agree upon a basic premise . . . that
jury instructions must inform, ‘in no uncertain terms,’ that the [s]tate bears the burden
of disproving self-defense.” (citation omitted)).
{30} 	The State argues that any error in the instructions did not prejudice Defendant
because the jury was allowed to find an appearance of immediate danger of death or
great bodily harm based entirely on the fact that there was a life-threatening
confrontation between Defendant and Ramos and Arbizu. We are not persuaded by

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the State’s argument. 	The law required the jury to evaluate whether McCormick
appeared to be part of the threat. See Cooper, 1999-NMCA-159, ¶¶ 12-14. Having
reviewed the jury instructions as a whole and in context with the other instructions
given, see State v. Cunningham, 2000-NMSC-009, ¶¶ 15-19, 128 N.M. 711, 998 P.2d
176 (affirming the defendant’s conviction when a second instruction correctly stated
the missing element and cured any possible confusion), we determine that the jury
would have been confused by the instructions and could not correctly evaluate
Defendant’s case. See Benally, 2001-NMSC-033, ¶¶ 12, 22 (reversing the defendant’s
convictions because the jury was confused by the jury instructions regarding self-
defense).
{31} 	There was an issue at trial as to whether McCormick was an aggressor. The
State attempted to characterize him as an innocent bystander. 	See Coffin, 1999-
NMSC-038, ¶ 12 (“While it is true that a person may act in self-defense against
multiple attackers acting in concert, this principle applies only to the extent that each
accomplice poses an immediate danger of death or great bodily harm, thereby
necessitating an act of self-defense.”). During closing statements, the State argued the
notion that “whoever showed up with James Arbizu was fair game,” or that Defendant
“[could] take out whoever happens to be with or near [Arbizu], the aggressor.” By not
including 	McCormick 	as 	an 	aggressor, 	the 	instruction 	effectively 	identified
McCormick as an innocent bystander. See Cooper, 1999-NMCA-159, ¶ 9 (stating that

19
a defendant cannot claim self-defense against an innocent third party). The wording
of the jury instructions could have been interpreted to conclude that Defendant’s
actions were not justified. See State v. Reneau, 111 N.M. 217, 219, 804 P.2d 408, 410
(Ct. App. 1990) (“The inquiry in a self-defense claim focuses on the reasonableness
of [the] defendant’s belief as to the apparent necessity for the force used to repel an
attack.”). The omission of any reference to McCormick in the defense instructions
reinforced the State’s arguments to the jury that it was unreasonable for Defendant to
react in self-defense against someone who was not an aggressor and was merely
present 	during 	the 	attack. 	The 	instruction 	ultimately 	eliminated 	a 	critical
determination from the jury’s consideration. See Cooper, 1999-NMCA-159, ¶ 16.
{32} 	The verdicts in the case increase our concern regarding the inaccurate jury
instructions. After receiving instructions including Ramos as an aggressor, the jury
found Defendant not guilty of Ramos’ murder. 	However, after receiving the
instructions that did not include McCormick as an aggressor, the jury found Defendant
guilty of McCormick’s murder. 	It is not possible to determine whether the jury
rendered a proper verdict when the defense instructions were inadequate regarding the
shooting of McCormick. Accordingly, we have grave concerns about whether the jury
understood Defendant’s theory of defense and considered the facts in light of his
theory. See State v. Mascareñas, 2000-NMSC-017, ¶ 21, 129 N.M. 230, 4 P.3d 1221
(reversing the defendant’s conviction under the fundamental error rule because there

20
was “simply no way to determine that the jury delivered its verdict on a legally
adequate basis”); cf. Cunningham, 2000-NMSC-009, ¶¶ 15-19 (declining to invoke
the fundamental error rule because the Court was confident that the instructions as a
whole adequately addressed the elements of unlawfulness).
{33} 	We hold that fundamental error occurred when the district court submitted jury
instructions that did not direct the jury to consider Defendant’s theory of defense
regarding McCormick, relieved the State’s burden of disproving self-defense beyond
a reasonable doubt, and misstated the law regarding an attack by multiple assailants.
After reviewing the entire record and placing the jury instructions in the context of the
facts and circumstances of this case, this Court would fail to do substantial justice if
it allowed Defendant’s conviction to stand on jury instructions that did not inform the
jury of his theory of self-defense. 	See Orosco, 113 N.M. at 784, 833 P.2d at 1150
(recognizing that the rule of fundamental error applies when substantial justice has not
been done); State v. Mantelli, 2002-NMCA-033, ¶ 46, 131 N.M. 692, 42 P.3d 272
(recognizing that “[i]n such close circumstances, where the error involves the central
issue in the case, it is the better policy to require a new trial under the correct
instruction”). Because the error went to the heart of Defendant’s case and improperly
limited his right to self-defense and defense-of-another instructions, we hold that the
deficiencies in the jury instructions constituted fundamental error. 	See Garcia, 46
N.M. at 309, 128 P.2d at 462. 	Since we reverse on this issue, we do not need to

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address Defendant’s remaining assertions of error.
CONCLUSION
{34} 	We hold that the district court committed fundamental error by giving deficient
jury instructions on Defendant’s theory of self-defense and defense-of-another
involving multiple assailants. Therefore, we reverse and remand for a new trial on the
homicide charge involving McCormick.
{35} 	IT IS SO ORDERED.
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TIMOTHY L. GARCIA, Judge
WE CONCUR:
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CELIA FOY CASTILLO, Judge
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ROBERT E. ROBLES, Judge