deadly force instruction in Colorado

2024See People v. Ferguson , 43 P.3d 705 , 707- 08 (Colo. App. 2001) (holding that the trial court’s instructional error wasn’t harmless because the erroneous instruction permitted the ju ry “to hold [t he] defendant to a higher standard in establishing self-defense than is required by law”) ; People v. Ramirez , 2019 COA 16 , ¶ 27 (holding that giving the deadly force instruction where the victim survived was obvious error ). ¶ 29 Because both Instruction 23 and Instruction 24 instructe d the jury on the use of deadly physical force in defense of person rather than non-deadly physical force, the

2019Giving the deadly force instruction where the alleged victim did not die contravened the applicable statute, § 18-1-901(3)(d); case law, Ferguson, 43 P.3d at 708 ; and pattern jury instruction, CJI-Crim. 5:01, 5(9) (1983); CJI-Crim. 7:17 (1983). ¶ 28 The error was also unfairly prejudicial.

2024See Silva, 987 P.2d at 914 ; see also § 18-4-203(1), C.R.S. 2024 (A person commits second degree burglary “if the person knowingly breaks an entrance into, enters unlawfully in, or remains unlawfully after a lawful or unlawful entry in” a building.). ¶ 56 As for assault under subsection (2)(c), we conclude that any error in omitting the instructional language wasn’t obvious and substantial, for two reasons.

2019As in Ferguson, the failure to instruct on the non-deadly, ordinary use of force “permitted [the jury] to hold [the] defendant to a higher standard in establishing self-defense than is required by law.” 43 P.3d at 708 ; see also People v. Vasquez, 148 P.3d 326, 330 (Colo. App. 2006) (“In 10 restricting the jury’s consideration to only the most stringent conditions under which a claim of self-defense could be established, the trial court committed prejudicial error.”). ¶ 29 As a result, we must reverse defendant’s conviction of first degree assault.