*1 enacting the 1990 contrary intent with a language of the Neither the
amendment. testimony before the nor the
amendment amendment support of the
legislature in ap- it should be
manifests an intent rights previously
plied all water to revive file within
extinguished for failure period.
effective time Beque, that, De as in
We hold retroactively to apply
amendment does not aban- right considered
resurrect a water order for by judicial
doned and canceled for find- timely application
failure to file an Because of diligence.
ing of reasonable initially that the court was
our conclusion 22,1990 cancel- January order
correct its right, and incorrect
ing Purgatoire’s water subsequent reinstatement
right, separately address we need not by Purgatoire in its cross- raised
issues
appeal.
Accordingly, the trial court’s order of
July 1990 is vacated. IDROGO, Petitioner,
Anthony M. of the State of PEOPLE
Colorado, Respondent.
No. 90SC332. Defender, Vela, Public David F. State Gerra, III, Deputy State Public Martin J. Colorado, Supreme Court of Defender, Denver, petitioner. En Banc. Gen., Norton, Atty. Raymond T. Gale A. Oct. Gen., Slaughter, Deputy Atty. Timo- Chief Gen., Daniel thy Sol. John Tymkovich, M. Gen., Atty. Mark Dailey, Deputy Robert Gen., Russel, Atty. John J. Asst. First Gen., Denver, Krause, Atty. Asst. spondent. delivered the
Justice KIRSHBAUM Opinion of the Court. Idrogo was con-
Appellant Anthony M. by jury the offenses of reckless victed manslaughter, in of section 18-3- violation *2 104(l)(a), (1986),1 go, you 8B C.R.S. and crime of and asked “Are messing my violence, Idrogo violation of section bro?” and Babb continued to slow- jury The found 8A C.R.S. also Idro- ly away, Idrogo displayed back and criminal, go to be habitual violation of Raymond, knife to stating “Leave us alone. 8A At C.R.S. getting We’re out of here. We don’t want trial, Idrogo tendered a instruction Raymond trouble.” nevertheless continued describing person’s duty the limits of a to walk rapidly couple, toward the raised by person. retreat when attacked another fists, ultimately and caught up with give the instruc- trial court refused to ensued, fight them. A during jury, Appeals tion to the and the Court Idrogo mond struck Idrogo and stabbed affirmed the trial court’s decision the Raymond once. Raymond died a short unpublished opinion Idrogo, time later. A deputy coroner testified that 22, 1990) (Colo.App. No. March 87CA1250 Raymond’s death single resulted from the (not publication). selected for official Hav- wound. ing granted Idrogo’s petition for certiorari Idrogo At trial following tendered the propriety to consider the of the trial court’s trial court at the conclu- ruling, we and reverse remand with di- sion of the evidence: rections. Defendant, if he did not assault, obliged to retreat or I life, flee to save his but stand his 6, 1985, evening September On the ground, circumstances, and even some Idrogo companion, Babb, while and a Carol pursue his assailant until the latter has walking were toward their Colorado carrying been disarmed or disabled from home, Springs Idrogo liquor entered purpose, into effect his unlawful and this purchase cigarette rolling store to papers.2 right goes of the Defendant even to the Raymond brother, Archuleta and his Wil- extent, necessary, if taking human liam, William, were inside the store. who life. intoxicated, extremely Idrogo followed rejecting instruction, this tendered repeatedly requested out of the store and trial court stated as follows: Idrogo him marijuana cigarette. sell Idrogo refused and told William to “leave wall, retreating far as to the et [A]s alone,” us repeated but William his re- cetera, goes the Court finds that this too quest. Idrogo began When and Babb taking far. And into consideration the away William, back requesting that model instructions on the law of alone, pursued he leave them William them self-defense, instruction, even Idrogo and insisted sell him some mar- going say so far as to that one is entitled ijuana. Idrogo then removed a knife from pursue his assailant until the latter Babb, purse carried showed it to Wil- has been disarmed or disabled from liam, get and stated “You don’t want to carrying pur- into effect his unlawful cut. Just leave us alone.” William pose, and this of the Defendant stopped, Idrogo and and Babb continued to extent, goes necessary, of even away move backwards from him. life, taking I human don’t think is an Archuleta, Raymond
At about that time ideal statement of the law of self-defense intoxicated, appeared also who was on the as it stands the State of Colorado at scene, began rapidly toward walk Idro- this time. 6, 1986, opinion erroneously occurring presented Appeals September 1. The Court of in Idrogo guilty dicates that was found of several witnesses who witnessed various fense of second murder. v. Idro portions of such events. The material facts as 87CA1250, go, slip op. (Colo.App. No. at 1 Mar. here, conflicting outlined while based on often 22, 1990) (not publication). selected for official evidence, appear undisputed purposes appeal.
2. The evidence at trial with
to the con-
principal participants
duct of the
in the events
(2)(a),
18-1-704(1)
guilty of
8B
ultimately
found
C.R.S.
consistently held
We have
that where
man-
reckless
offense of
the lesser included
any
tending to
record contains
evidence
guilty
returned
verdicts
slaughter
also
establish the defense
alleging crime of violence
to the counts
*3
prop-
to have the
defendant
entitled
criminal.
habitual
that de-
erly
to
instructed
affirmed
appeal,
Appeals
the Court
On
See,
Dillon,
v.
655 P.2d
e.g., People
fense.
court, stating that:
the trial
(Colo.1982); Young
People,
v.
47 Colo.
841
instruction,
language
the
Under
(1910).
held
107 P.
We have also
the “no
would have
take
defendant
us
in
although an instruction couched
that
step further
duty to retreat” doctrine a
language
of the statute is
terms
the
right exists
by instructing
a
that a
Vigil People, 143
proper,
v.
Colo.
theory does not
take a life. That
to
(1960), a trial
must tailor
P.2d 82
court
to
and failure
reflect the state of
law
particular
circumstances
instructions to
error.
not constitute
so instruct does
instructions,
given
tak-
case when
whole,
apprise
adequately
a
do not
en as
jury of
from the
II
the law of self-defense
standpoint
of the defendant.
that the trial
Idrogo asserts
Jones,
(Colo.1984); Young
v.
Appeals
erred because
Court of
People, 47
also
Colo.
274. See
accurately reflected
tendered
instruction he
146, 401
Bustamonte v.
jurisdiction
the law of self-defense
this
(1965).
generally,
P.2d 597
Leonard
case. While
in relation to the facts
this
(1962).
People, 149
3. In
arrest,
expressly
tempting
authorized
to effect an
we noted
Assembly has
General
by a non-
deadly physical force
therein
in some circumstances a non-
the use of
non-aggressor be-
aggressor
police
when the
not a
officer need not
he,
lieves,
grounds, that
she
on reasonable
aggressor prior
using
from an
retreat
danger of
another
is in imminent
deadly physical force in self-defense. See
The statute
receiving great bodily harm.
Boykin,
Colo. at
757 (Miss.1984); away. refused and walked When William State, 451 So.2d Haynes v. State, persisted, the defendant took out a knife 53 Tex.Crim. S.W. Voight Johnson, and, Babb, William, Mich. (1908); according said to People v. gen away. get N.W.2d 667 You don’t App. “Get want to cut. Scott, Law LaFave & Criminal us alone.” erally, leave William Archuleta Just Torcia, 5.7(f) (2d 1986); ed. C.E. Whar off. The defendant and con- backed Babb § 1979). 126, (14th ed. Law ton’s Criminal away by walking tinued to walk back- Penal Code and Commen wards, But see Model facing the direction liquor circum- Under the taries 3.04 then, Babb, It according store. was case, question of where stances Raymond rapidly approached Archuleta vig- retreat was Idrogo did fact whether Babb, making angry defendant and entitled orously disputed, threatening comments. The defendant still on the properly instructed have the had the knife his hand and continued .to To the ex- applicable of non-retreat. law away Raymond walk backwards into portions Idro- court found tent the trial a cul-de-sac. objectionable, it instruction go’s tendered According testimony of a second ensuring that the received in not erred (Daniels), a key eyewitness, Alan Daniels setting proper alternative liquor customer at the store who saw the upon by Idrogo. Peo the rule relied forth leading up immediately to and after events ple Moya, street, stabbing from across Bookman, 646 P.2d mond Archuleta followed Weiss, (Colo.1982); People v. 717 P.2d bobbing weaving began like he (Colo.App.1985). going go somebody after and hit Raymond lunged then them. toward
Ill *6 like he was defendant with his fists raised reasons, judgment foregoing For Raymond hit went out going to someone. Appeals is reversed and of the Court of lunged sight when he at the of Daniels’ court with di- is remanded to that case by and was next seen Daniels defendant court for to the trial rections to remand thereafter, shortly walking backwards with new trial. chest, fatally his wounded. his hands on VOLLACK, J., dissents. Raymond Archuleta testified that Babb intercepted her and the defendant. had dissenting: Justice VOLLACK with his fist Raymond struck the defendant in- holds that a trial court majority The head times in the shoulder and two or three structing physical on use of force a knife raised The defendant had the area. 18-1-704, 8B C.R.S. person, of a defense telling Raymond get the air (1986), amplifying tender an self- also must get cut. away if he did not want to concerning “no retreat” defense again, the defendant mond hit I aggressor. not the if the defendant is him in the once time the defendant stabbed disagree. The chest. doctrine and encompasses the “no retreat” any amplifying abrogates the need charged murder with The defendant was People, 800 P.2d Beckett v. struction. See violence, and degree, crime of in the second (Colo.1990). The defendant as an habitual criminal. of use of defense (defendant), asserted the affirmative defendant, Idrogo (“self- person in defense of a (Babb), physical force encoun- girlfriend, Carol Babb defense”). The defendant 18-1-704. Raymond Archuleta on tered William manslaughter, of reckless liquor store in was convicted at a September violence, habitual crimi- and as an Archule- crime of Springs, Both Colorado. Colorado affirmed, and we appeals nal. The court of intoxicated. William appeared tas to be question accepted certiorari on Archuleta tried to convince includ- erred in not the trial court defendant whether marijuana. him to sell some (3)Notwithstanding provisions clarifying whether jury instruction a section, person subsection of this is had justified using physical use force force if: order to claim in self-defense. (a) bodily injury With intent to cause person, provokes
or death to another physical use by of unlawful force I. person; or that other (b) aggressor, except He is the initial (1986), 8B is a C.R.S. physical upon that his force anoth- codification of the common-law defense person the circumstances jus- er under provides: This section self-defense. tifiable if he withdraws from encoun- (1) Except provided as subsections effectively ter and communicates to the section, (2)and (3) person so, person other his intent to do but the using physical justified force an- latter or nevertheless continues threat- order to defend himself other force; physical ens the use of unlawful reason- a third what he imminent ably to be use or believes (c) involved is the unlawful use of product by agreement combat may and he person, other use a specifically authorized law. force which he believes purpose. A. (3), 18-1-704(2) and C.R.S. Sections 8B agree majority I section 18- (1986), the general limits on establish legislative represents 1-704 also cod 18-1-704(1). set forth in section These sec- ification of our decisions with tions provide as follows: Maj. op. majori at 755. The non-retreat. (2) Deadly physical be used however, ty, provi then holds under the person reasonably only if a 18-1-704(2) that an ampli sions inadequate of force is and: lesser fying instruction on “no retreat” re (a) has ground The actor quired, holding in contrary to our believe, believe, and does he or an- (Colo.1990). P.2d 74 other imminent of Beckett, *7 language the we stated that of the receiving bodily killed or of great 18-1-704, section self-defense ab injury; or rogated specific the need for necessity.
(b)
apparent
Maj.
using
The other
or rea-
doctrine of
op.
756.
sonably appears
about to use
at
The law of self-defense is em
dwelling
necessity.
against
occupant
phatically
the law of
Jones,
(Colo.1984)
or
(quoting
establishment while commit-
business
352, 355,
attempting
burglary
Young
to commit
as
ting or
18-4-204; 274,
(1910)).
in sections 18-4-202 to
275-76
Under section 18—1—
defined
phrase,
or
“a
of force which
necessary
reasonably believes
for
(c)
committing
or
other
purpose,”
reflects the common-law
reasonably appears about
commit kid-
“necessity”
in
requirement
the context of
in
napping as defined
section 18-3-301 or
18-1-704(1).
self-defense. §
18-3-302, robbery as
in
defined
section
18-4-302,
Beckett,
In
or
sexual assault as
we concluded
“reason-
18-4-301
encompassed
principle
set
18-3-402
belief”
of
forth
section
or
able
apparent necessity.
P.2d at
or
as defined
sections 18-3-202
78. Re-
assault
necessity-based
treat
is also a
doctrine.1
and 18-3-203.
131(c),
necessity
1.
of
can be
77-81
retreat rule
In the context
fenses
Jones,
actual, real,
apparent,
necessity
P.2d at 13-
of the
was a "common modification
law,
subject
the common
was
and under
force.”
element in the use of defensive
Id.
Robinson,
P.H.
Law De-
modification.
Criminal
Law
Robinson,
The record further
reflects the
Criminal
P.H.
Defenses
defendant,
18—1—
the issue that
131(c),
section
raised
77-81
Under
including waving
holding
knife and
necessity,
plain
it in
the issue
view, provoked Raymond
necessary for a defendant
Archuleta to at-
whether it is
witnesses,
apparent,
According
him.
de-
whether the
tack
retreat or
“totality
plain
in the
fendant had the knife
view from
adequately
considered
pulled
of fact must
it
that the trier
the time he
out to ward off Wil-
circumstances”
evaluating
stabbing
the reasonableness
liam Archuleta until the
consider
necessity
provisions
in the
of mond Archuleta. Under the
of the accused’s belief
Beckett,
18-l-704(3)(a),
facts,
true,
800 P.2d at
if
action.
these
defensive
Jones,
14).
P.2d at
the defendant’s claim of
(quoting
would defeat
self-
included,
The trial court
at the
defense.
case,
of the de-
present
In the
evidence
request
prosecution,
instruction No.
inability to retreat was
ability
fendant’s
7:68,
special
which reflects CJI-Crim.
the trier of
adequately considered when
7(13):
“totality of circum-
fact considered the
justified
using physi-
A
evaluating
stances
reasonableness
bodily
intent
cal force
to cause
necessity
in the
of de-
the accused’s belief
injury
person, he
or death to another
Jones,
action.”
675 P.2d at
fensive
use of unlawful
provoked the
adequately apprised
of its
person.
necessity-based doc-
duty to consider the
trines,
necessity and the
apparent
such as
response
People’s provocation
retreat, by
language
in the
duty to
18-l-704(3)(a),
theory under section
the de-
pattern jury instructions
statute and the
requested
fense
the instruction based on
person may
use “a
that stated
language
which he
496,
guage in section of with-
drawal or retreat.3 plain reading of section 18—1—
Under a
704(3)(a), provoked if the the at- defendant Thus, op. (stating recognized maj. at a distinction be- instruction. See 18-l-704(3)(b) expressly requires retreat application § tween of the doctrine of retreat justifiable before force is where claiming "justifiable” when aggressor). defendant is the initial Under 18- versus an excusable self-defense. self-defense l-704(3)(b), aggres- if a defendant is the initial Tortia, II Criminal at Wharton's Law sor, justifiable use of unless he 1979). (14th acting ed. the defendant was If legis- express This first withdraws. lature, intent of the self-defense, i.e., justifiable the defendant was applicable retreat doctrine of attack, bringing at on the the defen- fault issue, aggressor when initial status is countering dant not need retreat before did pattern jury flected in the Pattern instruction. force. See id. If the defendant was 7:68, 7(15), special rule states: self-defense, i.e., acting defen- excusable 7(15) Retreat to the Wall blameworthy bringing the at- on dant was Where the defendant is the initial tack, needed to retreat be- then must, rely have in order to claiming fore self-defense. id. affray commu- withdrawn have oppo- nicated the desire to his to withdraw *9 language reflect- 18-1-704 contains no 3. Section However, nent. not the defendant was Assembly any by the General intention aggressor, where he had initial and was 18-l-704(3)(a) special requires application be, right required to a he was not maj. op. at 754 doctrine retreat. position escape in order to claim of no (Section 18-1-704(2) “contains no right employ defense. own Assembly flecting any by the General 7:68, 7(15). intention Special Rule Unlike CJI-Crim. retreat.”). 18- 18-l-704(3)(a) the doctrine of 18-l-704(3)(b), revive contains § language reflecting l-704(3)(b) only self-de- is the section in the rule that if the expressly incorporates fight, subsequent provoked fense statute and, consequent- give retreat doctrine would the defendant the common-law withdrawal ly, requires to claim self-defense. section that an alternate