People v.  Rau.

2022 CO 3. No.  20SC583. “Force Against Intruders” Statute—“Make My Day” Statute—CRS § 18-1-704.5—Immunity from Criminal Prosecution for Use of Deadly Physical Force—Justification and Exemptions from Criminal Responsibility—Affirmative Defenses—Dwelling—CRS § 18-1-901(3)(g).

January 10, 2022

In this case, the Supreme Court was asked to decide whether defendant was in a “dwelling,” and thus entitled to immunity from criminal prosecution under CRS § 18-1-704.5, when he shot and killed an intruder in the basement of the house where he and his girlfriend rented an apartment. Relying on the definition of “dwelling” in CRS § 18-1-901(3)(g), the Court held that the basement was part of defendant’s dwelling because it was part of the building that he used for habitation.

The Court viewed the basement in this case in much the same way it viewed the attached garage in People v. Jiminez, 651 P.2d 395, 396 (Colo. 1982). Just as the garage in Jiminez was part of the building that was used for habitation, the basement here was part of the building that defendant used for habitation. And just as some of the usual uses of the garage in Jiminez (including for the storage of household items) were incidental to and part of the use of the residence itself, some of the usual uses of the basement in this case (including the control of the water and heat supply and the storage of household items) were likewise incidental to and part of the use of defendant’s residence.

Accordingly, the Court affirmed the division’s judgment upholding the trial court’s dismissal of the charge of second degree murder (heat of passion).