Pueblo County District Court No. 09CR1433 Honorable David W. Crockenberg, Judge
The opinion of the court was delivered by: Judge Miller
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Román, J., concurs Richman, J., specially concurs
¶1 In 1876, the new State of Colorado adopted a constitution that included a provision in its bill of rights establishing a right to keep and bear arms in defense of one's home, person, and property:
The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called into question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.
Colo. Const. art. II, § 13 (section 13) (emphasis added). This provision has never been amended.
¶2 During the twentieth century, the Colorado General Assembly enacted a statute making possession of a weapon by a previous offender (POWPO) unlawful. § 18-12-108(1), (2)(a), C.R.S. 2011. Although the POWPO statute does not refer to section 13, in People v. Ford, 193 Colo. 459, 462, 568 P.2d 26, 28 (1977), the supreme court held that a defendant may raise an affirmative defense to a POWPO charge under section 13 by presenting competent evidence that his or her purpose in possessing weapons was defense of home, person, and property.
¶3 Beginning in 1983, the stock jury instructions utilized by trial courts in Colorado have included an instruction following Ford:
It is an affirmative defense to the crime of [POWPO] that the defendant possessed the weapon for the purpose of defending his [home] [property] [person].
See COLJI-Crim. H:51 (2008). In recent years, however, some prosecutors have asked trial courts to alter the stock instruction by adding a requirement that the defendant's purpose in possessing the weapons arises from a reasonable belief in a threat of imminent harm. Other divisions of this court have rejected such efforts in unpublished decisions based on the supreme court's holding in Ford. See People v. Silveira, (Colo. App. No. 10CA0017, June 2, 2011) (not published pursuant to C.A.R. 35(f)); People v. Smith, (Colo. App. No. 09CA1694, Dec. 9, 2010) (not published pursuant to C.A.R. 35(f)). While these unpublished opinions do not establish binding precedent, we agree with their reasoning. We publish this opinion because, as demonstrated by the fact that the same issue has arisen in at least three different judicial districts, the issue is one of continuing public interest. C.A.R. 35(f)(2).
¶4 In this case, defendant, Joddy Leon Carbajal, appeals the judgment of conviction entered on jury verdicts finding him guilty of two POWPO counts. He argues that the trial court committed reversible error when it rejected his tender of the stock jury instruction regarding his affirmative defense to the POWPO charges and instead utilized a version provided by the prosecution, which added language concerning a reasonable belief of a threat of imminent harm. We agree, reverse the judgment of conviction, and remand for a new trial.
¶5 Police officers obtained a search warrant for defendant's residence based on a tip in an unrelated case. During their search, the officers discovered three handguns in the main bedroom and bathroom area of the house.
¶6 Defendant was charged with three POWPO counts. At trial, defendant presented evidence that he possessed the weapons in order to defend his home, person, and property. He asked the trial court to provide the jury with the stock POWPO affirmative defense instruction. The trial court, however, determined that it would give the affirmative defense instruction proposed by the prosecution, which altered the stock instruction by adding the emphasized language, as follows:
It is an affirmative defense to the charge of [POWPO] that the defendant possessed a firearm for the purpose of defending himself, home, or property from what he reasonably believed to be a threat of imminent harm.
¶7 Defendant objected. The court, relying on language in People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975), analogized this case involving the section 13 affirmative defense to cases involving the affirmative defense of choice of evils under section 18-1-702, C.R.S. 2011. See id. at 103, 544 P.2d at 391 (noting that the then current version of the POWPO statute should be read in pari materia with the choice of evils affirmative defense); see also COLJI-Crim. H:09 (2008) ("choice of evils" stock instruction; affirmative defense available where conduct is "necessary as an emergency measure to avoid an imminent public or private ...