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People v. Toler9/11/2000
Certiorari to the Colorado Court of Appeals
EN BANC JUDGMENT AFFIRMED
JUSTICE RICE and JUSTICE COATS do not participate.
I. INTRODUCTION
In this case, we address the use of deadly physical force in self-defense, which is established by statute under section 18—1—704, 6 C.R.S. (1999). The defendant, Tristan Toler, shot and killed Christy Martinez, claiming self-defense. Toler objected to the jury instruction defining self-defense, claiming that the instruction could have improperly misled the jury to believe that a trespasser must "retreat to the wall" before using physical force to defend himself. Despite Toler's objection, the trial court gave the jury instruction, and the jury convicted Toler of second degree murder. The court of appeals concluded that the jury instruction erroneously imposed a limitation on Toler's right to claim self-defense and reversed. See People v. Toler, 981 P.2d 1096, 1098 (Colo. App. 1998).
We hold that under section 18—1—704 a person does not have to "retreat to the wall" before using deadly force to defend himself, unless the person was the "initial aggressor" in the encounter, even if he was in a place he had no right to be. Although a trespasser's right to use force in self-defense may be limited by other considerations not present in this case, a trespasser who is entitled to use physical force in self-defense must "retreat to the wall" before using physical force to defend himself only when the trespasser is also the "initial aggressor." Under the facts of this case, the jury instruction on self-defense could have misled the jury to believe erroneously that Toler, since he was where he had no right to be (i.e., a trespasser), had a duty to "retreat to the wall" before using deadly force in self-defense. Because under Colorado law only an initial aggressor has a duty to retreat, the jury instruction in this case was erroneous. Thus, we affirm the court of appeals decision, and we remand this case to that court with instructions to return it to the trial court for a new trial.
II. FACTS AND PROCEDURAL HISTORY
Toler and two of his companions——fellow gang members Dominic Baca and Eugene Sanchez——consumed alcohol and LSD, and were walking through the neighborhood in which some of their companions lived. Toler carried a 7.65mm semi-automatic pistol, but neither Baca nor Sanchez had a gun. On the way to the house of a fellow gang member, Baca and Sanchez decided to steal the car stereo from a Geo Tracker they saw parked on the street. While Baca and Sanchez broke into the car and removed the stereo, Toler acted as a lookout.
As Toler, Baca, and Sanchez walked away from the Tracker with the stereo, Christy Martinez, the owner of the vehicle, approached the car with his cousin, Frank Galvan, and his uncle, Phillip Quintana. Martinez, Galvan, and Quintana noticed Toler and his friends and saw that Martinez's car stereo had been stolen. Martinez and Galvan briefly chased Toler and his companions on foot, returning to the Tracker after losing sight of Toler and the others. Martinez, Galvan, and Quintana——all of whom had been drinking during the day——got into Martinez's Tracker and drove through the neighborhood in search of the people who stole Martinez's stereo.
Quintana and Galvan testified that Martinez drove very fast through several streets and alleys in the area trying to find the thieves and recover his stereo. Quintana and Galvan stated that Martinez was very angry that his stereo had been stolen. At no time during this pursuit did Martinez, Galvan, or Quintana possess a gun or other weapon.
Quintana and Galvan testified that as Martinez drove down a
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