Colorado Supreme Court 2-13-12 criminal law decision - Montez v. People

Montez v. People       1˚ Burglary / Deadly Weapon – ‘used or intended to be used’

Facts:   Phelicia Kossie and I tried Mr. Montez's case together – escape, burglary, and habitual offender counts (4 x the maximum presumptive range). The jury walked Mr. Montez on the escape (ISP Parole case - he cut off his bracelet; cops arrested him in Lakewood; and the jury found that Mr. Montez never left the area of his extended confinement - the Denver Metro Area). However, the jury convicted Mr. Montez of 1˚ degree burglary and the habitual counts. Mr. Montez, according to the evidence, broke into a home and stole a gun case with two guns in the case. Quickly after the break-in, police arrested the hapless Mr. Montez as he walked down the street with the gun case in tow. Mr. Montez never used or threatened to use the guns, and the prosecution never alleged such.

Issue:   Whether simply stealing guns amounts to using a deadly weapon during burglary?

Held:   No.

Reasoning:   Prior to 1981, Colorado Supreme Court precedent held that a firearm qualifies as a ‘per se deadly weapon’. Thus, under this prior precedent, simply stealing guns in a burglary would bump the burglary up from a 2˚ burglary, a class 4 felony, to 1˚ burglary, a class 3 felony. However, in 1981 the legislature changed the statute. The legislature wrote the statute to remove any possible reading of ‘per se deadly weapon’. The statutory change essentially overruled the Colorado Supreme Court’s prior precedent. Under the current statute to qualify as using a deadly weapon during the commission of the burglary, the accused must use or intended to use the firearm – not simply possess or steal.  Thus, here in Mr. Montez’s case, the Colorado Supreme Court held the statutory change back in 1981 specifically excluded scenarios where someone simply stole guns during a burglary. Elizabeth Griffin in the Appellate Division of the Colorado Public Defender’s Office did a helluva job, both in the Court of Appeals and the Colorado Supreme Court. Instead of dying in prison, Ms. Griffin gave Mr. Montez a chance of seeing daylight.

>Link to Montez v. People<