People v. Hasadinratana

493 P.3d 925

2021 COA 66

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Payut Cody HASADINRATANA, Defendant-Appellant.

Court of Appeals No. 19CA1114

Colorado Court of Appeals, Division VI.

Announced May 13, 2021

Philip J. Weiser, Attorney General, Daniel E. Rheiner, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Sarah R. Rowlands, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE LIPINSKY

¶ 1 In People v. Carbajal , 2014 CO 60, 328 P.3d 104, our supreme court held that defendants charged with possession of a weapon by a previous offender (POWPO) pursuant to section 18-12-108, C.R.S. 2020, are entitled to the affirmative defense of choice of evils only if they possessed the weapon to defend themselves, their homes, or their property from what they reasonably believed to be a threat of imminent harm.

¶ 2 The Carbajal court did not address the effect of its decision on People v. DeWitt , 275 P.3d 728 (Colo. App. 2011), which read the choice of evils affirmative defense more expansively than did the majority in Carbajal . Specifically, in DeWitt , a division of this court held that a defendant was entitled to an affirmative defense instruction to POWPO based on a "general fear for his personal safety," coupled with fear related to "specific trends of violence and incidents in the areas where he regularly walked and in the stores that he regularly visited." 275 P.3d at 734.

¶ 3 We hold that the reasoning of DeWitt cannot be squared with Carbajal . For that reason, we decide that Carbajal implicitly overruled DeWitt to the extent DeWitt stands for the proposition that defendants charged with POWPO are entitled to assert the affirmative defense of choice of evils based solely on a showing that they possessed a firearm while walking in what is generally known as a high-crime neighborhood.

¶ 4 Defendant, Payut Cody Hasadinratana, directly appeals his conviction for POWPO. He contends that the district court erred by declining to instruct the jury on the affirmative defense of choice of evils. In light of our reading of Carbajal , we disagree and affirm his judgment of conviction.

I. Background

¶ 5 According to the affidavit of probable cause in support of Hasadinratana's arrest, police were dispatched to an inn based on a report of a physical disturbance involving two men with guns and masks. The reporting party said the suspects could be found by a nearby gas station. A police officer arrived and saw Hasadinratana, who matched the description of one of the suspects, walking away from the inn toward the gas station. When the officer stopped him, Hasadinratana told the officer he had a gun in his possession. The officer found the gun in the waistband of Hasadinratana's pants.

¶ 6 Because Hasadinratana had a prior felony conviction, the prosecution charged him with POWPO.

¶ 7 Hasadinratana endorsed the affirmative defense of choice of evils under section 18-1-702, C.R.S. 2020.

¶ 8 At a pretrial hearing, Hasadinratana testified that he lived in a high-crime neighborhood plagued by gang and drug activity and violent incidents. He said the police had an active presence in the neighborhood. He also testified that, during the thirty years he lived in the neighborhood, he witnessed incidents of violence and had been a crime victim. He reported that property had been stolen from his car and his yard, and that people had tried to break into his home while he was away. However, Hasadinratana did not testify to any facts showing that he had a reasonable belief that he faced a threat of imminent harm at the time of his arrest.

¶ 9 Following that testimony and the parties’ arguments, the district court denied Hasadinratana's request to assert the affirmative defense of choice of evils, explaining,

[To be able to assert that affirmative defense to POWPO, there has to be a] specific, definite, and imminent threat, and while I would acknowledge that this defendant, because of where he lived, may have had a generalized perception that he was potentially in danger, there was nothing on this occasion that required him to arm himself since there was nothing imminent that I've heard.

¶ 10 Hasadinratana filed a motion to reconsider, arguing, among other things, that "[t]he accused need not present evidence of imminent threat, just that the weapon was possessed for a constitutionally protected purpose, i.e. defense of person or property." He repeated that argument on the morning of the first day of trial.

¶ 11 The district court denied the motion to reconsider and reaffirmed its ruling that, because Hasadinratana had not presented evidence of a threat of imminent harm, he would not be allowed to assert the affirmative defense of choice of evils at trial. However, over the prosecutor's objection, the court granted Hasadinratana's request for the following theory of defense instruction:

It is the defense theory of the case that Mr. Hasadinratana carried a weapon for what he believed was a constitutionally protected purpose, namely, to protect person and property. Notwithstanding a prior felony conviction, Mr. Hasadinratana believed he was justified in carrying a weapon under a belief of threat of harm to person or property.

¶ 12 The jury found Hasadinratana guilty of POWPO and the court sentenced him to three years of probation.

II. Applicable Law and Standard of Review

¶ 13 To be entitled to assert an affirmative defense, a defendant must present "some credible evidence" supporting the defense. § 18-1-407(1), C.R.S. 2020; People v. DeGreat , 2018 CO 83, ¶ 16, 428 P.3d 541, 544. This burden is "relatively lenient." DeGreat , ¶ 22, 428 P.3d at 545. In determining whether a defendant met the burden, we view the proffered evidence in the light most favorable to him. Cassels v. People , 92 P.3d 951, 955 (Colo. 2004) (citing Mata-Medina v. People , 71 P.3d 973, 979 (Colo. 2003) ). Also, because the jury decides the credibility of evidence, the burden can be met even if the only supporting evidence is "highly improbable" testimony from the defendant. DeGreat , ¶ 22, 428 P.3d at 545 (quoting Lybarger v. People , 807 P.2d 570, 579 (Colo. 1991) ).

¶ 14 However, as a matter of law, a trial court need not give an affirmative defense instruction if the record contains no evidence to support it because, in the absence of supporting evidence, there is no issue of fact for the jury to resolve. O'Shaughnessy v. People , 2012 CO 9, ¶ 13, 269 P.3d 1233, 1236.

¶ 15 Whether a defendant has met his burden of showing entitlement to an affirmative defense presents a question of law that we review de novo. DeGreat , ¶ 16, 428 P.3d at 544.

III. Analysis

¶ 16 Hasadinratana relies primarily on DeWitt to support his argument that he presented sufficient evidence to entitle him to assert a choice of evils affirmative defense. Before we address DeWitt , we discuss the relevant supreme court precedent and model jury instructions.

¶ 17 In 1975, in People v. Blue , the supreme court held that the POWPO statute was a legitimate exercise of the state's police power and did not facially violate article II, section 13, of the Colorado Constitution, which protects a person's right to bear arms. 190 Colo. 95, 102-04, 544 P.2d 385, 390-91 (1975). The court explained that a defendant charged with POWPO can assert the affirmative defense of choice of evils, which allows the possession of a weapon "to avoid an imminent public or private injury." Id. at 103, 544 P.2d at 391 (quoting § 18-1-702).

¶ 18 Two years later, the supreme court noted that Blue left open the question of whether the POWPO statute could be unconstitutional as applied in a particular case. See People v. Ford , 193 Colo. 459, 461, 568 P.2d 26, 28 (1977). To reconcile the POWPO statute with the constitutional right to bear arms, the supreme court held in Ford that a defendant charged with POWPO "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." Id. at 462, 568 P.2d at 28.

¶ 19 Based on Ford , a model criminal jury instruction for an affirmative defense to POWPO was subsequently adopted that read, "[i]t is an affirmative defense to the crime of [POWPO] that the defendant possessed the weapon for the purpose of defending his [home] [person] [property]." CJI-Crim. 7:63 (1983). The same model instruction appeared in the 2008 update to the model instructions. See COLJI-Crim. H:51 (2008).

¶ 20 In Carbajal , the supreme court considered whether a trial court erred by adding the following italicized clause to the model instruction: "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 ." Carbajal , ¶ 7, 328 P.3d at 106 (emphasis added).

¶ 21 The supreme court held that the trial court did not err by adding the requirements of reasonableness and imminence to the model instruction. See id. at ¶¶ 10-21, 328 P.3d at 106-09. After analyzing Blue and Ford , the supreme court concluded that "the POWPO affirmative defense is the statutory defense of choice of evils." Id. at ¶ 21, 328 P.3d at 109. The court reasoned that "the choice of evils defense was the legislature's way of preserving [the constitutional right to bear arms] in connection with POWPO." Id. at ¶ 17, 328 P.3d at 108. Notably, in approving the trial court's modified instruction, id. at ¶ 21, 328 P.3d at 109, the court disapproved of the then-existing model instruction for the affirmative defense to POWPO, see id. at ¶ 20, 328 P.3d at 108-09.

¶ 22 Consistent with Carbajal , the model jury instruction was amended again to state that the affirmative defense to POWPO applies only if the defendant "possessed the weapon for the purpose of defending his [her] home,...