ANTONITO—12th Judicial District Attorney Crista Newmyer-Olsen released her office’s decision on Wednesday not to file charges against Antonito business owner Felix Gallegos for the fatal shooting of Byron Duran, 26, of Antonito at Gallegos’ business on the early morning of September 1.
Newmyer-Olsen stated, “No charges will be filed against Felix Gallegos related to the shooting death of Byron Duran. This decision was made following analysis of the case by my office and an independent review.”
The DA’s office notified Duran’s family and Gallegos’ attorney of the decision.
The Colorado Bureau of Investigation (CBI) at the request of the Antonito Police Department investigated the Sept. 1st incident in Antonito. During the course of their investigation they reviewed reports, video and surveillance recordings, photographs, interviews and September 3 autopsy reports.
About 5 a.m. on the morning of Saturday, September 1, Gallegos, the owner of the G6 Hamburger Stand at 210 Main Street in Antonito, went to the restaurant in response to a security alert. His wife called 9-1-1, and he also later called 9-1-1 after shooting Duran.
Gallegos told authorities that when he arrived he saw someone running around inside the hamburger stand. He told the intruder to stay inside the building and that police were on their way. Meanwhile, Gallegos remained outside the building about 15 feet from the door. Gallegos was armed.
At some point, according to Gallegos’ report to authorities, the intruder ran out of the door and towards Gallegos. Not knowing if the intruder was armed, perhaps with one of the kitchen knives from the restaurant, Gallegos fired at him, striking him twice and ultimately killing him.
At the time Gallegos did not know the intruder’s identity. When he learned later who it was, he told authorities he was acquainted with Duran and his family.
In the letter supporting her decision not to charge Gallegos, Newmyer-Olsen stated that the CBI investigation revealed that the damage from the bullets, the positions of casings and the autopsy performed on Duran were consistent with Gallegos’ account of the shooting.
CBI also analyzed surveillance video footage from the hamburger stand on the morning of the incident. It showed Duran entering the building through the order window, crawling around under the window height and going through the cash register, shelves and other items. The footage showed him moving to the back of the restaurant, where there were no windows, and standing up and walking around. At some point Duran disconnected the surveillance recording device.
The autopsy revealed that Duran had been shot twice, once to the chest and secondly to the lower right thoracic back. Toxicology analysis at the time of the autopsy indicated Duran had amphetamines and opiates in his system at the time of his death, Newmyer-Olsen stated.
The DA cited Colorado law, court cases and Colorado Supreme Court rulings that “affirmed that an innocent victim of an assault is not bound to retreat before using deadly force when the use of such force is reasonable under the circumstances.”
She added, “It is our conclusion based upon the applicable law and the facts and circumstances of this case, that a jury is likely to conclude that Felix Gallegos’ actions meet the legal requirement of the affirmative defense contained … It is equally clear the People would be unable to disprove the affirmative defense beyond a reasonable doubt … and the People are not filing criminal charges against Felix Gallegos.”