People v. Opana, 395 P.3d 757

Defendant Kalani Opana shot and killed a housemate; acquitted of first-degree murder but convicted of second-degree murder and sentenced to 24 years.
Opana testified he drew a .40 semiautomatic handgun as a show of force after being assaulted and subjected to racial epithets; he claimed the gun slipped and accidentally discharged and that he did not intend to pull the trigger.
Trial court gave a self-defense instruction limited to justification for using "deadly physical force" under Colorado law, not an instruction for ordinary (non-deadly) physical force; defendant did not object at trial.
On direct appeal, the court of appeals reversed for plain error, holding the statutory definition of "deadly physical force" contains an intent element and evidence supported an ordinary-force self-defense instruction.
Colorado Supreme Court granted certiorari to resolve the proper construction of the statutory term "deadly physical force" and whether the evidence warranted an instruction on ordinary physical force self-defense.

Issue	Plaintiff's Argument (People)	Defendant's Argument (Opana)	Held
Whether "intended" in the statutory definition of "deadly physical force" refers to the actor's subjective intent or an objective/ordinary-person standard	The court of appeals misread the statute; "intended" should be construed objectively as referring to force that would normally be intended to cause death, not a subjective mens rea	"Intended" should be read as the actor's subjective intent; if Opana lacked intent to kill, force could be ordinary, entitling him to an ordinary-force instruction	Majority: "intended" is an objective modifier (consequence a normal person would intend); it does not add a subjective mens rea. The term is construed objectively.
Whether the failure to sua sponte instruct on non-deadly (ordinary) force self-defense was plain error given the evidence	No plain error because, properly construed, the statutory definition of "deadly physical force" covers Opana's conduct (close-range chest shot); evidence supported only deadly-force instruction	Trial evidence (testimony, expert evidence) supported a theory that the shooting was accidental and lacked intent to kill, so an ordinary-force instruction was required; omission was plain error	Held: No plain error. Given the objective construction and the facts (shot in chest at close range with a large-caliber handgun and death resulted), the evidence did not support an ordinary-force instruction. Court of appeals reversed.

People v. Vasquez, 148 P.3d 326 (Colo. App. 2006) (intermediate appellate precedent construing "deadly physical force" to include an intent element)
Montez v. People, 269 P.3d 1228 (Colo. 2012) (interpreting scope of modifiers tied to a user’s conduct and construing statute syntax)
People v. Speer, 255 P.3d 1115 (Colo. 2011) (threshold for entitlement to an affirmative-defense instruction)
People v. Ferguson, 43 P.3d 705 (Colo. App. 2001) (error in giving deadly-force instruction when victim did not die can improperly raise the standard for self-defense)
People v. Wheeler, 772 P.2d 101 (Colo. 1989) (statutory mens rea definitions apply to elements of offenses but do not automatically apply where the statute uses terms outside of culpable-mental-state context)