People v. Ramirez, 99CA0455.

• Decision Date: 17 August 2000
• Docket Number: No. 99CA0455.,99CA0455.
• Citation: 18 P.3d 822
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee and Cross-Appellant, v. Julio A. RAMIREZ, Defendant-Appellant and Cross-Appellee.
• Court: Colorado Court of Appeals

18 P.3d 822

The PEOPLE of the State of Colorado, Plaintiff-Appellee and Cross-Appellant, v. Julio A. RAMIREZ, Defendant-Appellant and Cross-Appellee.

No. 99CA0455.

Colorado Court of Appeals, Div. V.

August 17, 2000.

Rehearing Denied October 12, 2000.

Certiorari Granted March 12, 2001.

Ken Salazar, Attorney General, Lauren A. Edelstein, Assistant Attorney General, Denver, Colorado; David J. Thomas, District Attorney, Donna Skinner Reed, Chief Appellate Deputy District Attorney, Golden, Colorado, for Plaintiff-Appellee and Cross-Appellant.

Linda Perkins Cooke, L.L.C., Linda Perkins Cooke, Boulder, Colorado, for Defendant-Appellant and Cross-Appellee.

Opinion by Judge CASEBOLT.

Defendant, Julio A. Ramirez, appeals the judgment of conviction entered upon jury verdicts finding him guilty of second degree assault after provocation and felony menacing. The People cross-appeal the trial court's order granting defendant a new trial on the burglary charge and its related crime of violence count. We affirm the conviction for second degree assault, vacate the conviction for felony menacing, reverse the order granting a new trial, reinstate the judgment of conviction for first degree burglary and the associated crime of violence, and remand for correction of the mittimus.

The prosecution's evidence established the following. Defendant and the victim were married but separated. The wife obtained a restraining order against the defendant following their separation.

Defendant encountered his wife at a local bar five months after the separation. When their mutual friends decided to go out for a meal, the wife agreed to drive defendant to the restaurant. During the drive, defendant broached reconciliation; the wife demurred. She then dropped defendant off at the restaurant and drove to her boyfriend's house. An hour later, she went home. Defendant then made a threatening telephone call to the boyfriend.

When the wife arrived home, she called her boyfriend. While she was on the telephone, both she and her boyfriend received threatening telephone calls from defendant on their other telephone lines.

Shortly thereafter, defendant entered the wife's house uninvited. He punched her in the face five or six times, then held a knife against her throat. She attempted to pull the knife away and cut her finger doing so.

Defendant then gave her the telephone and instructed her to call her boyfriend. Instead, she dialed 911. After a minute, during which the 911 operator tape-recorded defendant making death threats, defendant grabbed the telephone and hung it up.

The wife then ran and attempted to lock herself in the bathroom. Defendant pulled the door open and entered the bathroom, swinging and poking the knife at her. The assault terminated when the police arrived.

Before trial, defendant pleaded guilty to two counts of violating a restraining order. Those convictions are not at issue here.

At trial, defendant contended that he had been invited to the residence to discuss reconciliation, and had entered with his wife's permission. He claimed that he assaulted his wife only after she rejected his attempts at reconciliation and provoked the assault. Accordingly, he asserted that he was not guilty of first degree burglary because he did not have the intent to assault or menace his wife at the time he entered the residence.

The trial court instructed the jury on first degree burglary using the pattern jury instruction, COLJI-Crim. No. 14:01 (1993 Supp.), which required the jury to find that defendant "entered or remained unlawfully in a building or occupied structure ... with intent to commit ... assault and menacing, and ... while inside ... the defendant assaulted or menaced any person."

Following his burglary conviction, defendant filed a motion for new trial, contending that Cooper v. People, 973 P.2d 1234 (Colo. 1999), which was announced after the verdicts in this case had been rendered, required a new trial. The trial court granted the motion because it concluded that the pattern instruction it had given was insufficient to advise the jury that, as the supreme court held in Cooper, the intent to commit a crime must coexist with the moment of trespass. This appeal and cross-appeal followed.

I.

The People contend on cross-appeal that the trial court erred in granting the motion for new trial. We agree.

Crim. P. 33(c) vests the trial court with discretion to grant a new trial if required in the interest of justice. We will disturb such a determination only if the trial court abused its discretion. People v. Jones, 942 P.2d 1258 (Colo.App.1996). However, an abuse of discretion can occur when, inter alia, a court incorrectly analyzes the law and prejudice thereby inures to a party. See Kuhn v. State, 817 P.2d 101 (Colo.1991)

.

Cooper v. People, supra,

involved a prosecution for second degree burglary. There, the evidence was unclear whether the defendant had formed the intent to commit the ulterior offense of assault against the victim at the time he entered the home. The trial court instructed the jury that it could find the defendant guilty of burglary if it found that he knowingly and unlawfully entered the home with the intent to commit the crime of assault. Over defense objection, the court, in a supplemental instruction, further instructed the jury that the intent to commit a crime could be formed either before or after entry into the dwelling.

The supreme court reversed and remanded for a new trial on the burglary conviction, stating in part:

[B]urglary punishes the defendant who trespasses with the intent to do more harm once on the premises. Thus, to convict a defendant of burglary, a jury must conclude that the defendant had made up his mind to commit some other offense at the point at which he or she becomes a trespasser. If the defendant forms the intent to commit the crime after the trespass is under way, he or she may be guilty of that underlying crime (or attempt) and of trespass —but is not guilty of burglary.

Cooper v. People, supra, 973 P.2d at 1236. In other words, the trespass must be accompanied by the contemporaneous intent to commit a crime.

A.

The People assert that the Cooper court reversed the conviction there only because the trial court gave the supplemental instruction that the intent to commit a crime could be formed either before or after the trespass. Accordingly, because no such instruction was given here, the People assert there was no error. We agree.

The Cooper court noted that its grant of certiorari was to "consider whether the trial court erred in instructing the jury that it could convict Cooper if it found that he had formed the intent to commit the underlying offense after his unlawful entry into the premises." Cooper v. People, supra, 973 P.2d at 1236. It resolved that question in its specific holding that: "[W]e now hold that the trial court improperly instructed the jury that Cooper's intent to commit a crime could `be formed either before entry into the dwelling or after entry into the dwelling.'" Cooper v. People, supra, 973 P.2d at 1242.

Accordingly, Cooper dealt specifically with the supplemental jury instruction that allowed the jury to convict the defendant regardless of the time he formed the intent to commit a crime. Cooper did not expressly hold that giving the pattern burglary instruction alone, without the erroneous additional instruction, would have amounted to error.

Indeed, when the supreme court has intended to invalidate or correct pattern jury instructions, it has generally done so in explicit language. See Bogdanov v. People, 941 P.2d 247 (Colo.1997)

; People v. Shields, 822 P.2d 15 (Colo.1991). We find insufficient indication in Cooper that such was the court's intent there.

It is true that some of the language in Cooper in which the court discusses structural error can be read to support the trial court's determination to grant a new trial to defendant here. However, when the structural error discussion is reviewed in the context of the specific basis upon which certiorari was granted, it is clear that the propriety of the pattern jury instruction on burglary was not at issue.

Accordingly, we do not interpret Cooper v. People, supra,

as necessarily requiring modification of the pattern elemental jury instruction concerning first degree burglary given here.

B.

Defendant nevertheless argues that the burglary instruction as given did not inform the jury that the intent to commit a crime must exist contemporaneously with the moment of trespass. We reject this contention.

Here, the jury was instructed that, to find defendant guilty of burglary, it must find that all of the elements of the offense had been proven beyond a reasonable doubt, including that defendant:

4. entered or remained unlawfully in a building or occupied structure,

5. with intent to commit therein the crimes of ... assault and menacing, and

6. while in effecting entry into, while inside, or in immediate flight from the building or occupied structure,

7. the defendant assaulted or menaced any person.

This instruction tracked the language of the first degree burglary statute, § 18-4-202, C.R.S.1999, and the pattern jury instruction, COLJI-Crim. No. 14:01 (1993 Supp.). Elemental instructions framed in the language of the statute are generally sufficient. People v. Gallegos, 950 P.2d 629 (Colo.App. 1997).

In addition, the term "with" in the instruction told the jury that the intent to commit a crime had to accompany, or be contemporaneous with, the moment of unlawful entering or remaining. See Random House Webster's College Dictionary 1530 (1991) (giving, as first definition of "with," "accompanied by, accompanying"); Webster's Third New International Dictionary 2626 (1986) ("with" is, among other things, a function word to indicate a "mental state accompanying ... a specified action"). These definitions support the conclusion that "entering with intent" necessarily conveys the...