People v. Carbajal Possession
of a Weapon by a Previous Offender – Constitutional Defense
Facts: The police searched Mr. Carbajal’s home, and claim
they found three handguns. Mr. Carbajal previously suffered a felony
conviction, and thus, the prosecution charged him with three counts of
possession of a weapon by a previous offender (POWPO). The prosecution hung its
whole case on a modification of the stock affirmative defense instruction. The
stock instruction comes from the Right to Bear Arms in the Colorado
Constitution. Colo. Const. Art. II, §
13. Section 13 of Article II reads, “The right of no person to keep and bear
arms in defense of his home, person and property, or in aid of the civil power
when thereto legally summoned, shall be called in question….” The stock instruction
reads, “It is an affirmative defense to the charge of [POWPO] that the defendant
possessed a firearm for the purpose of defending himself, home, or property.” However, the prosecution asked and
the trial court gladly added, “…from what he reasonably believed to be a
threat of imminent harm,” to the
stock instruction.
Issue: Whether the modification to the stock affirmative
defense instruction which was based upon a substantive constitutional right
violated Mr. Carbajal’s right to due process and fair trial?
Held: Yes.
Reasoning: The Court of Appeals highlighted the prosecutor’s
cross-examination and closing argument - both of which the prosecutor wove
around the faulty modification of the stock affirmative defense instruction.
Further, the Court held despite the sky-will-be-falling and felons-everywhere-will-soon-possess-firearms
hysterics by the State, that the prosecutor could make all the same arguments
under the stock instruction. Moreover, the stock instruction does not impair
the prosecutor’s cross-examination or limit the questions. Lastly, the Court
held that the “modification to the instruction impacted (Mr. Carbajal’s)
substantive rights, and therefore, was not harmless error.”
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