People v. Carbajal, Supreme Court Case No. 12SC235

• Citation: 328 P.3d 104
• Decision Date: 30 June 2014
• Docket Number: Supreme Court Case No. 12SC235
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Joddy CARBAJAL, Respondent.
• Court: Supreme Court of Colorado

328 P.3d 104

The PEOPLE of the State of Colorado, Petitioner,

v.Joddy CARBAJAL, Respondent.

Supreme Court Case No. 12SC235

Supreme Court of Colorado.

June 30, 2014

Certiorari to the Colorado Court of Appeals, Court of Appeals Case No. 10CA2252

Attorney for Petitioner: John W. Suthers, Attorney General, John D. Seidel, Senior Assistant Attorney General, Denver, Colorado.

Attorneys for Respondent: Gradisar Trechter Rippe, David A. Roth, Pueblo, Colorado.

En Banc

JUSTICE EID delivered the Opinion of the Court.

¶ 1 A search of the respondent Joddy Carbajal's residence led to the discovery of three firearms. Carbajal had previously been convicted of a felony, and was charged with three counts of Possession of a Weapon by a Previous Offender (“POWPO”). At trial, Carbajal raised as an affirmative defense that he possessed the weapons for the purpose of defending his home, person, and property. Over Carbajal's objection, the trial court modified the stock jury instruction regarding this affirmative defense and instructed the jury that Carbajal must have possessed the weapons to defend against what he “reasonably believed to be a threat of imminent harm.” After deliberation, the jury convicted Carbajal of two of the three counts.

¶ 2 On appeal, Carbajal argued that the trial court incorrectly advised the jury of the law governing his affirmative defense. The court of appeals agreed, finding that the affirmative defense did not require a reasonable belief of a threat of imminent harm. The court further held that the inclusion of such a requirement in the jury instruction adversely affected Carbajal's substantial rights, and therefore reversed Carbajal's conviction. People v. Carbajal, 2012 COA 34, ––– P.3d ––––.

¶ 3 We now reverse. In People v. Blue, 190 Colo. 95, 104, 544 P.2d 385, 391 (1975), we held that the POWPO statute did not violate Article II, Section 13 of the Colorado Constitution, which protects a person's right to “keep and bear arms in defense of his home, person and property.” As part of our reasoning, we observed that the legislature provided defendants an affirmative defense to a POWPO charge in the choice of evils statute, which would deem an offense not criminal “when it is necessary as an emergency measure to avoid an imminent public or private injury.” 190 Colo. at 103, 544 P.2d at 391 (emphasis added) (citing § 18–1–702, C.R.S. (1973)). We find nothing in People v. Ford, 193 Colo. 459, 568 P.2d 26 (1977), from which the stock instruction is drawn, that altered Blue's position that the affirmative defense to POWPO was grounded in the choice of evils statute. Accordingly, we conclude that the trial court did not err in instructing the jury 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.”

I.

¶ 4 In September 2009, the Pueblo Police Department executed a valid search warrant at Carbajal's residence while investigating an unrelated case. During the search, detectives discovered three handguns. Because Carbajal had previously been convicted of vehicular assault, a felony in Colorado, he was charged with three counts of POWPO pursuant to section 18–12–108(1), (2)(a), C.R.S. (2013).

¶ 5 At trial, Carbajal claimed that he possessed the weapons in order to defend his home, person, and property. He presented evidence that he purchased the first firearm in May 2003 after an altercation at a bar led to a group of people driving by his home in a threatening manner, throwing a rock at his home's window, and breaking his truck window twice. Carbajal purchased the second firearm in June 2003 after he and his nephew were attacked and burglarized at gunpoint by two men who broke into his home. He purchased a smaller third firearm in 2006 after moving into a new home so that his girlfriend would also have protection.

¶ 6 After presenting that evidence, Carbajal asked the trial court to instruct the jury on the affirmative defense to POWPO using the stock jury instruction. This instruction is based on the language in Ford, in which we determined that a POWPO defendant “who presents competent evidence showing that his purpose in possessing weapons was the defense of his home, person, and property thereby raises an affirmative defense.” 193 Colo. at 462, 568 P.2d at 28. Mirroring this language, the stock instruction which Carbajal proposed reads as follows:

It is an affirmative defense to the crime of possession of weapons by a previous offender that the defendant possessed the weapon for the purpose of defending his home, person, or property.

CJI–Crim. 7:63.

¶ 7 The People argued that the instruction should require that the defendant have a reasonable belief of a threat of imminent harm to his home, person, or property. They based their argument on Blue, in which we determined that the “choice of evils” affirmative defense, which justifies otherwise criminal conduct if it is “necessary as an emergency measure to avoid an imminent public or private injury,” was the appropriate vehicle for guarding an unreasonable application of the POWPO statute. 190 Colo. at 103, 544 P.2d at 391. The trial court, while determining that the evidence was sufficient to raise the affirmative defense, nevertheless agreed with the People. Thus, over Carbajal's objection, it altered the stock instruction by adding the emphasized language, as follows:

It is an affirmative defense to the charge of possession of a weapon by a previous offender 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.

(Emphasis added.) Carbajal was subsequently convicted on two of the three POWPO counts.

¶ 8 On appeal, Carbajal argued that the trial court erred by not tendering the unmodified stock jury instruction. The court of appeals agreed, concluding that it was bound by Ford, from which the stock instruction was taken. Carbajal, ¶ 18. The court further determined that Ford, which “has been on the books for thirty-four years,” preserves a POWPO defendant's right to possess a weapon in defense of his home, person, and property. Id. The court of appeals therefore held that the trial court erred by modifying the stock jury instruction to include language concerning a reasonable belief of a threat of imminent harm. Id. at ¶ 4. This modification, the court further held, impacted Carbajal's substantial rights and impermissibly lowered the prosecution's burden of proof, requiring that Carbajal's conviction be reversed. Id. at ¶ 22. Judge Richman specially concurred, concluding that the stock instruction for the affirmative defense to POWPO should include a requirement of a “reasonable belief of a threat of harm,” id. at ¶ 32, but not of a threat of “imminent harm,” id. at ¶ 29.

¶ 9 The People then petitioned this court for certiorari review of the court of appeals' decision.¹ We now reverse.

II.

¶ 10 It is the duty of the trial court to “correctly instruct the jury on all matters of law for which there is sufficient evidence to support giving instructions.” Cassels v. People, 92 P.3d 951, 955 (Colo.2004). We review de novo the question of whether a jury instruction accurately informed the jury of the governing law. Day v. Johnson, 255 P.3d 1064, 1067 (Colo.2011).

¶ 11 In order to determine whether the trial court properly instructed the jury regarding Carbajal's affirmative defense to POWPO, we begin by examining our cases that bear on the subject, Blue and Ford.

¶ 12 In Blue, the defendants argued that Colorado's POWPO statute ² violated Article II, Section 13 of the Colorado Constitution, which instructs that:

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 in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.³

We rejected the defendants' constitutional challenge, and instead held that the POWPO statute was a valid exercise of the state's police power to “limit [ ] the possession of guns and other weapons by persons who are likely to abuse such possession.” 190 Colo. at 103, 544 P.2d at 391. Especially relevant to this case, we observed that “our view does not abrogate [a previous offender's] right to legitimately use self-defense.” Id. We then stated that the POWPO statute “must be read in [p]ari materia with” the statute permitting a choice of evils defense, which provides that “conduct which would otherwise constitute an offense is justifiable and not criminal when it is necessary as an emergency measure to avoid an imminent public or private injury.” Id. (citing § 18–1–702, C.R.S. (1973)).⁴ We concluded that the defendants failed to raise such an affirmative defense, as they “have not contended that they were armed because of any threat to their lives or in order to defend their homes or property.” Id. Thus, in Blue, we determined that POWPO, when read in conjunction with the choice of evils statutory defense, survived constitutional scrutiny.

¶ 13 Two years later, this Court decided Ford. There, the trial court granted the defendant's motion to dismiss the POWPO charge because it determined, based on testimony presented at a hearing, that the defendant had shown that he had kept the firearm to protect his home, person and property. 193 Colo. at 461, 568 P.2d at 28. On appeal to this court, the People argued that the affirmative defense should be decided by a jury, rather than by the judge. We agreed. After referencing Blue, we observed that “[a] defendant charged under [the POWPO statute] who presents competent evidence showing that his purpose in possessing weapons was the defense of his home, person, and property thereby raises an affirmative defense.” 193 Colo. at 462, 568 P.2d at 28. Because “the ultimate issue [of] whether an affirmative defense...