Peo v. Hasadinratana

P
     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                 May 13, 2021

                                2021COA66

No. 19CA1114, Peo v Hasadinratana — Crimes — Possession of
Weapons by Previous Offenders; Criminal Law — Affirmative
Defenses — Choice of Evils

     A division of the court of appeals holds that, in People v.

Carbajal, 

2014 CO 60

, 

328 P.3d 104

, our supreme court implicitly

overruled the holding in People v. DeWitt, 

275 P.3d 728

 (Colo. App.

2011). In this case, the division specifically holds that a defendant

charged with possession of a weapon by a previous offender cannot

assert the affirmative defense of choice of evils based solely on a

showing that he or she possessed a firearm while walking in what is

generally known as a high crime neighborhood. Because such a

showing, without more, does not establish the threat of imminent

harm, which Carbajal held is required to assert a choice of evils

defense, the division affirms the defendant’s judgment of conviction.
COLORADO COURT OF APPEALS                                          2021COA66


Court of Appeals No. 19CA1114
El Paso County District Court No. 18CR2188
Honorable Jann P. DuBois, Judge
Honorable Scott B. Epstein, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Payut Cody Hasadinratana,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                 Division VI
                         Opinion by JUDGE LIPINSKY
                       Pawar and Taubman*, JJ., concur

                           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


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
¶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


                                    1
 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.


                                    2
¶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.


                                    3
¶ 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.



                                      4
              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.




                                    5
¶ 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


                                      6
  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


                                    7
  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, person or property from what he [she]

  reasonably believed to be a threat of imminent harm which was

  about to occur because of a situation occasioned or developed


                                    8
  through no conduct of the defendant.” COLJI-Crim. H:64 (2014)

  (emphasis added). (The language, “which was about to occur

  because of a situation occasioned or developed through no conduct

  of the defendant,” mirrors language in the choice of evils statute,

  section 18-1-702(1). See 

id.

 at cmt. 2 (citing Carbajal, ¶ 21 n.5, 

328

P.3d at 109 n.5

).)

¶ 23   Hasadinratana repeatedly argued in the district court that the

  affirmative defense to POWPO has no imminence requirement

  (although his tendered instruction included the imminence

  requirement and tracked COLJI-Crim. H:64 (2014)).

¶ 24   In his opening brief on appeal, Hasadinratana describes

  Carbajal in a single paragraph, and neither applies it nor discusses

  how the imminence requirement applies to the facts in his case.

  Instead, he primarily relies on DeWitt, in which a division of this

  court held that the trial court erred by rejecting the defendant’s

  tendered affirmative defense instruction to POWPO because “[the]

  defendant not only testified to a general fear for his personal safety,

  but also tied his fear 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

.


                                     9
¶ 25   In DeWitt, the defendant’s tendered affirmative defense

  instruction said, “[i]t is an affirmative defense to the crime of

  [POWPO] that the defendant’s purpose in possessing weapons was

  the defense of his home, person, and property.” 

Id. at 733

.

  Notably, that language reflected the pre-Carbajal model instruction.

  That instruction made no reference to a reasonableness or

  imminence requirement. See COLJI-Crim. H:51 (2008); CJI-Crim.

  7:63 (1983). Also, DeWitt does not mention the concept of

  imminence or the affirmative defense of choice of evils. (The same

  is true of the supreme court’s 1977 Ford opinion.)

¶ 26   Although Carbajal did not explicitly overrule DeWitt, as noted

  above, we hold that Carbajal implicitly overruled DeWitt. In light of

  Carbajal, we cannot follow the suggestion in DeWitt that a

  defendant charged with POWPO is entitled to assert the affirmative

  defense of choice of evils where the defendant showed only that he

  possessed a firearm while walking in what is generally known as a

  high-crime neighborhood. That scenario, without more, does not

  show a threat of imminent harm. “‘Imminent’ means ‘likely to

  happen without delay; impending; threatening.’” Moczygemba v.

  Colorado Dep’t of Health Care Pol’y & Fin., 

51 P.3d 1083

, 1087


                                     10
  (Colo. App. 2002) (quoting Webster’s New World Dictionary 702

  (1972)); see People v. Brandyberry, 

812 P.2d 674

, 678 (“‘Imminent’

  means ‘near at hand, impending or on the point of happening.’”

  (quoting Black’s Law Dictionary 676 (rev. 5th ed. 1979)).

¶ 27   Similarly, Hasadinratana showed only that he was walking in

  what is generally known as a high-crime neighborhood at

  12:45 a.m. It does not matter that police were dispatched to the

  inn based on a report of a physical disturbance involving two men

  with guns and masks because Hasadinratana concedes that he was

  not aware of that disturbance when the officer stopped him. These

  facts fall short, as a matter of law, to show that Hasadinratana

  possessed the firearm to protect himself “from what he reasonably

  believed to be a threat of imminent harm.” Carbajal, ¶ 21, 

328 P.3d

at 109

 (emphasis added); see O’Shaughnessy, ¶ 13, 

269 P.3d at

1236

.

                            IV.    Conclusion

¶ 28   The judgment is affirmed.

       JUDGE PAWAR and JUDGE TAUBMAN concur.




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