CO F:114 DWELLING
Colorado Jury Instructions-Criminal (COLJI-Crim) (2016)
“Dwelling” means a building which is used, intended to be used, or usually used by a person for habitation.
+ [“Dwelling” does not include any place of habitation in a detention facility.]
1. See § 18-1-901(3)(g), C.R.S. 2016; + § 18-1-704.5(5), C.R.S. 2016 (use of deadly physical force against an intruder).
2. See People v. Jiminez, 651 P.2d 395 (Colo. 1982) (the definition of dwelling encompasses the entire residential structure including an attached garage); People v. Morales, 2012 COA 2, ¶¶ 58-76, 298 P.3d 1000, 1011-14 (“the phrase ‘intended to be used’ includes future use in addition to present use, and, therefore, existing homes undergoing renovation are ‘dwellings,’ provided they are intended to be used for habitation”); People v. Cushinberry, 855 P.2d 18, 19 (Colo. App. 1992) (the common areas of an apartment building, such as a stairwell, do not constitute a dwelling); People v. Germany, 586 P.2d 1006, 1009 (Colo. App. 1978) (a hospital room falls within the definition of a dwelling), rev’d on other grounds, 599 P.2d 904 (Colo. 1979).
3. + The court should only include the bracketed paragraph where the defendant has raised the affirmative defense of use of physical force, including deadly physical force (intruder into a dwelling), and only then if the context does not require otherwise. See Instruction H:15; see also Instruction F:97 (defining “detention facility” (second degree assault involving a bodily fluid or a hazardous material; riots in detention facilities; use of marijuana in detention facilities)).
4. + The bracketed paragraph derives from a 2016 legislative amendment. See Ch. 87, sec. 1, § 18-1-704.5, 2016 Colo. Sess. Laws 245, 245. In People v. Alaniz, 2016 COA 101, ¶ 36, __ P.3d __, the court of appeals analyzed the statute as it existed prior to the amendment, but it also suggested that the General Assembly intended the amendment to prevent prisoners from claiming immunity when using force against someone within their cell. See id. (“The People argue that public policy reasons should prevent incarcerated felons from claiming ‘make-my-day’ immunity. . . . The General Assembly is free to amend the statute . . . and indeed has already done so, but we must apply the statute in effect at the time of the charged offense.” (emphasis added)).
5. + In 2016, pursuant to new legislation, the Committee added the bracketed paragraph to the instruction, modified the citation in Comment 1, and added Comments 3 and 4. See Ch. 87, sec. 1, § 18-1-704.5, 2016 Colo. Sess. Laws 245, 245.