Is a Backyard Considered A Part Of The Dwelling Under make my day law?
Full Question:
Is a backyard considered a part of the dwelling or property? The question is in reference to the " make my day" law.
11/04/2016 |
Category: Criminal ยป Make my Day ... |
State: Colorado |
#26197
Answer:
In annotations of the law below you will find this statement:
Fact that a homicide victim was on the defendant's porch does not permit the defendant to claim immunity from prosecution for unlawful entry to defendant's dwelling unless the court finds that defendant believed that the victim intended to commit a crime or use physical force against the defendant. People v. Young, 825 P.2d 1004 (Colo. App. 1991).
This was a porch and the owner was not immune. Case law intepretation of the laws will depend on the outcome in all cases. Surfice it to say based on the Statutury and case law below that the facts will determine guilt or immunity.
TITLE 18. CRIMINAL CODE
ARTICLE 1.PROVISIONS APPLICABLE TO OFFENSES GENERALLY
PART 7. JUSTIFICATION AND EXEMPTIONS FROM CRIMINAL RESPONSIBILITY
C.R.S. 18-1-704.5 (2016)
18-1-704.5. Use of deadly physical force against an intruder
(1) The general assembly hereby recognizes that the citizens of Colorado have a right to expect absolute safety within their own homes.
(2) Notwithstanding the provisions of section 18-1-704, any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into the dwelling, and when the occupant has a reasonable belief that such other person has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant.
(3) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from criminal prosecution for the use of such force.
(4) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from any civil liability for injuries or death resulting from the use of such force.
(5) As used in this section, unless the context otherwise requires, "dwelling" does not include any place of habitation in a detention facility, as defined in section 18-8-211 (4).
HISTORY: Source: L. 85: Entire section added, p. 662, § 1, effective June 6.L. 2016: (5) added, (HB 16-1190), ch. 87, p. 245, § 1, effective August 10.
Cross references: For limitations on civil suits against persons using physical force in defense of a person or to prevent the commission of a felony, see § 13-80-119.
ANNOTATION
Law reviews. For article, "Self-Defense in Colorado", see 24 Colo. Law. 2717 (1995). For article, "POWPO and Gun Rights After Carbajal", see 44 Colo. Law. 31 (Sept. 2015).
Prerequisite for immunity under this section is an unlawful entry into the dwelling, meaning a knowing, criminal entry. People v. McNeese, 892 P.2d 304 (Colo. 1995).
To be immune from prosecution under this section a defendant must establish by a preponderance of the evidence that he or she had a reasonable belief that the intruder was committing or intended to commit a crime against a person or property in addition to the uninvited entry. This inquiry focuses on the reasonable belief of the occupant, not on the actual conduct of the intruder. People v. McNeese, 892 P.2d 304 (Colo. 1995).
Sufficient evidence existed to support trial court's denial of defendant's pre-trial motion to dismiss on the basis defendant had not met his burden as established by the supreme court. People v. Janes, 962 P.2d 315 (Colo. App. 1998).
Trial court is authorized to dismiss criminal prosecution at pretrial stage when conditions of statute are satisfied, and this does not infringe upon prosecution's discretion to file charges. People v. Guenther, 740 P.2d 971 (Colo. 1987); Young v. District Court, 740 P.2d 982 (Colo. 1987).
Defendant bears burden of establishing right to immunity by preponderance of evidence when issue of immunity is raised at pre-trial stage. People v. Guenther, 740 P.2d 971 (Colo. 1987); People v. Eckert, 919 P.2d 962 (Colo. App. 1996).
Fact that a homicide victim was on the defendant's porch does not permit the defendant to claim immunity from prosecution for unlawful entry to defendant's dwelling unless the court finds that defendant believed that the victim intended to commit a crime or use physical force against the defendant. People v. Young, 825 P.2d 1004 (Colo. App. 1991).
Defendant may still raise immunity as defense at trial when pretrial motion to dismiss is denied. People v. Guenther, 740 P.2d 971 (Colo. 1987).
For purposes of this section, the common areas of an apartment building do not constitute a dwelling. People v. Cushinberry, 855 P.2d 18 (Colo. App. 1993).
Where pretrial motion to dismiss on grounds of statutory immunity provided in this section is denied, defendant may raise it as an affirmative defense at trial. In such case, the burden of proof which is generally applicable to affirmative defenses would apply. People v. Malczewski, 744 P.2d 62 (Colo. 1987).
Section does not authorize an appeal from a pretrial order denying immunity. An order denying defendant's pretrial motion to dismiss under the "make-my-day" statute is not a final judgment and therefore not subject to appeal. In general, the jury's verdict subsumes the trial court's pretrial ruling. A defendant may, however, seek review prior to trial under C.A.R. 21. Wood v. People, 255 P.3d 1136 (Colo. 2011).
Because this section creates an immunity defense as well as an affirmative defense, and because the burden of proof for each defense is different, when raised at trial, this section poses special problems when instructing a jury. In such a case, instruction based on language from People v. McNeese, which dealt with pretrial immunity, must be put into context so as not to confuse or mislead the jury about the burden of proof with respect to an affirmative defense raised at trial. People v. Janes, 982 P.2d 300 (Colo. 1999).
Defendant did not establish by a preponderance of the evidence that he was entitled to immunity under this section where he could not show the struggle and wounding of the victim took place in defendant's bedroom of the house he shared with the victim. People v. Eckert, 919 P.2d 962 (Colo. App. 1996).
Trial court did not commit reversible error by refusing to instruct the jury that it need only determine whether the victim made an unlawful entry into a part of a dwelling that was occupied by defendant, as defendant failed to show that the bedroom was exclusively his province and that the victim's entry into the bedroom was unlawful. People v. Eckert, 919 P.2d 962 (Colo. App. 1996).
Instruction requiring jury to find that defendant had a reasonable belief that victim "had committed" a crime and omitting "was committing or intended to commit" a crime was erroneous but did not constitute plain error. There was no evidence that the victim's entry into defendant's house was unlawful and, therefore, no basis on which a reasonable jury could have otherwise acquitted defendant under this section. People v. Phillips, 91 P.3d 476 (Colo. App. 2004).
Jury instructions in error. Jury instruction that states that entry into a dwelling "must have been made in knowing violation of the law" could mislead the jury and thus is in error. Language is misleading in that it could be taken to mean that an intruder must know his or her conduct violates a criminal statute rather than that the intruder must not have a reasonable belief that his or her entry is licensed, invited, or otherwise privileged. People v. Zukowski, 260 P.3d 339 (Colo. App. 2010).
Jury instruction that states "[a]n entry made in the good faith belief that it is lawful, is not an entry made in knowing violation of the criminal law" allows an interpretation that the entry would not be unlawful under the make-my-day statute, and, thus, the instruction is also in error. An intruder may act under a mistaken belief of fact that he or she was lawfully on the premises and that this type of entry would not be unlawful under the make-my-day statute. A mistaken belief that an entry, although uninvited, is lawful does not make it lawful. People v. Zukowski, 260 P.3d 339 (Colo. App. 2010).
Trial court erred in interpreting subsection (2) as including the concept of "remain lawfully" within the statutory phrase "unlawful entry". Defendant failed to establish the legal elements of this section to bar prosecution where the victim was initially invited into defendant's residence and, after arguing, was later asked to leave. People v. Drennon, 860 P.2d 589 (Colo. App. 1993).
The reference to "uninvited entry" in subsection (2) refers back to the term "unlawful entry" used in the same subsection. People v. McNeese, 892 P.2d 304 (Colo. 1995).
Victim's entry was unlawful and uninvited for the purposes of statute providing immunity for use of force where wife of murder victim did not have authority to invite the decedent into defendant's apartment and was staying with the defendant on the condition that she not invite the victim into defendant's apartment. People v. McNeese, 865 P.2d 881 (Colo. App. 1993).
When this section is being used as an affirmative defense, it is error for a jury instruction to place the burden on the defendant to prove the affirmative defense. People v. Janes, 962 P.2d 315 (Colo. App. 1998).
Applied in People v. Arellano, 743 P.2d 431 (Colo. 1987).
TITLE 18. CRIMINAL CODE
ARTICLE 1.PROVISIONS APPLICABLE TO OFFENSES GENERALLY
PART 7. JUSTIFICATION AND EXEMPTIONS FROM CRIMINAL RESPONSIBILITY
C.R.S. 18-1-705 (2016)
18-1-705. Use of physical force in defense of premises
A person in possession or control of any building, realty, or other premises, or a person who is licensed or privileged to be thereon, is justified in using reasonable and appropriate physical force upon another person when and to the extent that it is reasonably necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission of an unlawful trespass by the other person in or upon the building, realty, or premises. However, he may use deadly force only in defense of himself or another as described in section 18-1-704, or when he reasonably believes it necessary to prevent what he reasonably believes to be an attempt by the trespasser to commit first degree arson.
HISTORY: Source: L. 71: R&RE, p. 409, § 1. C.R.S. 1963: § 40-1-805.
Cross references: For first degree arson, see § 18-4-102.
ANNOTATION
Law reviews. For article, "Self-Defense in Colorado", see 24 Colo. Law. 2717 (1995). For article, "POWPO and Gun Rights After Carbajal", see 44 Colo. Law. 31 (Sept. 2015).
Common-law doctrine of retreat not applicable. Where the jury was told that though the defendant was in his place of business, and was in no way the aggressor, a deadly and unprovoked assault was made upon him by one armed with a loaded pistol, he was under duty to flee unless it was more dangerous to retreat than to fight, it was held a pernicious application of the common-law doctrine of retreat to the wall long since abrogated in this jurisdiction. Enyart v. People, 67 Colo. 434, 180 P. 722 (1919) (decided under R.S. 08, § 1634).
One cannot instantly kill in defense of property. While a man may use all reasonable and necessary force to defend his real and personal estate, of which he is in the actual possession, against another who comes to dispossess him without right, he cannot instantly carry his defense to the extent of killing the aggressor. If no other way is open, he must yield and get himself righted by resort to the law. Bush v. People, 10 Colo. 566, 16 P. 290 (1887) (decided under G. S. § 721).
This section is not, by its terms, inapplicable to unlawful entries where the trespassers happen to be police officers. People v. Lutz, 762 P.2d 715 (Colo. App. 1988).
