People v. Esquibel, 87CA1685
| Decision Date | 25 January 1990 |
| Docket Number | No. 87CA1685,87CA1685 |
| Citation | 794 P.2d 1065 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Donaciano ESQUIBEL, Defendant-Appellant. . III |
| Court | Colorado Court of Appeals |
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Clement P. Engle, Asst. Atty. Gen., Denver, for plaintiff-appellee.
David F. Vela, State Public Defender, Andrew C. Heher, Deputy State Public Defender, Denver, for defendant-appellant.
Opinion by Judge STERNBERG.
The defendant, Donaciano Esquibel, appeals a judgment of conviction for one count of second degree burglary. He contends that his right to a jury trial under both the United States and Colorado Constitutions, as well as his due process rights, were violated by virtue of the improper jury instructions. We disagree and therefore affirm.
The defendant was charged by information with one count of second degree burglary and one count of theft. He was convicted on both counts at a jury trial, but appeals only the burglary conviction.
In accordance with COLJI-Crim. No. 14:03 (1983), the jury was instructed that the elements of second degree burglary are:
The jury was also told in a separate instruction:
"Concerning the charges of Second Degree Burglary and Theft certain words and phrases have a particular meaning:
....
" 'UNLAWFULLY ENTERS' means a person who enters in or upon premises when he is not licensed, invited, or otherwise privileged to do so."
See COLJI-Crim. No. 14(2) (1983).
While no objection was made to these instructions, in this appeal it is defendant's contention that, because the instruction on second degree burglary did not specify that the jury must find entry into the dwelling was "unlawful," an essential element of the offense was removed from the jury's province, thus violating his right to a trial by jury.
The second degree burglary statute, § 18-4-203(1), C.R.S. (1986 Repl.Vol. 8B), from which this instruction was taken, provides:
"A person commits second degree burglary, if he knowingly breaks an entrance into, or enters, or remains unlawfully in a building or occupied structure with intent to commit therein a crime against a person or property."
We agree with the defendant that case law in this jurisdiction makes "unlawful entry" an element of the crime of second degree burglary. See Waits v. People, 724 P.2d 1329 (Colo.1986) (); People v. Tenorio, 197 Colo. 137, 590 P.2d 952 (1979) . See also People v. Bozeman, 624 P.2d 916 (Colo.App.1980); People v. Germany, 41 Colo.App. 304, 586 P.2d 1006 (1978), rev'd on other grounds, 198...
To continue reading
Request your trial
-
People v. Auman
...that "case law in this jurisdiction makes `unlawful entry' an element of the crime of second degree burglary." People v. Esquibel, 794 P.2d 1065, 1066 (Colo.App.1990). If the jury should have been instructed on unlawful entry, then no other instruction cured this However, here, as in Esquib......
-
People v. Dunlap
...plain error as to asportation element in kidnapping when defendant relied solely on the defense of misidentification); People v. Esquibel, 794 P.2d 1065 (Colo.App.1990)(no plain error where unlawful entry element of burglary was omitted, but defendant's defense went to We also agree with th......
-
State v. Orosco
...on a necessary element of an offense is not fundamental error where there is no issue as to that element"); People v. Esquibel, 794 P.2d 1065, 1066 (Colo.Ct.App.1990) (omission not plain error where element not at issue); State v. Correa, 5 Haw.App. 644, 650, 706 P.2d 1321, 1325 (1985) (omi......
-
People v. Morales
...degree burglary requires an “entry” into a “building” or “occupied structure.” § 18–4–203(1), C.R.S.2011; see also People v. Esquibel, 794 P.2d 1065, 1066 (Colo.App.1990) (an “unlawful entry” is an element of the crime of second degree burglary). The second degree burglary statute provides,......