2021 COA 66
Colo. Ct. App.2021Background
- Defendant Payut Cody Hasadinratana was stopped after police responded to a report of two masked men with guns; officer found a firearm in his waistband. He had a prior felony conviction and was charged with possession of a weapon by a previous offender (POWPO).
- At a pretrial hearing, Hasadinratana testified he lived in a high-crime neighborhood, had been victimized over the years, and generally feared for his safety, but he did not testify to any specific or imminent threat at the time he was stopped.
- He sought to assert the choice-of-evils affirmative defense (claiming he possessed the gun to defend person/property); the prosecution argued he offered no evidence of imminent harm.
- The district court denied an instruction on the choice-of-evils defense for POWPO, explaining the record lacked evidence of a specific, definite, and imminent threat, but allowed a limited defense-theory instruction.
- A jury convicted Hasadinratana of POWPO; he appealed the denial of the affirmative-defense instruction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a defendant charged with POWPO may assert choice of evils based solely on walking in a high-crime neighborhood / general fear for safety | Carbajal requires a reasonable belief of imminent harm; mere presence in a high-crime area does not satisfy that | DeWitt permits a broader showing (general fear plus local incidents) to warrant the defense; imminence not required | Court held Carbajal implicitly overruled DeWitt to the extent it allowed assertion based only on high-crime-area/general fear: imminence is required |
| Whether Hasadinratana presented sufficient evidence to obtain a choice-of-evils instruction | No — record lacks evidence he reasonably believed he faced imminent harm when stopped | Yes — his testimony about neighborhood, past victimization, and general fear was sufficient to present the defense to a jury | Court held his evidence was legally insufficient to show imminent threat; denying the instruction was correct and conviction affirmed |
Key Cases Cited
- People v. Carbajal, 328 P.3d 104 (Colo. 2014) (holds POWPO affirmative defense is the statutory choice-of-evils defense and requires a reasonable belief of imminent harm)
- People v. DeWitt, 275 P.3d 728 (Colo. App. 2011) (applied a broader standard allowing general fear tied to local violence as basis for POWPO defense)
- People v. Blue, 544 P.2d 385 (Colo. 1975) (recognized POWPO statute and that a choice-of-evils defense may justify possession to avoid imminent injury)
- People v. Ford, 568 P.2d 26 (Colo. 1977) (held competent evidence of defensive purpose for home/person/property raises an affirmative defense to POWPO)
- People v. DeGreat, 428 P.3d 541 (Colo. 2018) (describes the relatively lenient "some credible evidence" standard for asserting an affirmative defense)
- O'Shaughnessy v. People, 269 P.3d 1233 (Colo. 2012) (trial court need not give an affirmative-defense instruction when no supporting evidence exists)