Summary
The Colorado Supreme Court held that the phrase “intended to be used” in Colorado’s deadly-weapon definition refers to the defendant’s intent, not the firearm manufacturer’s intent. Accordingly, a firearm is not a deadly weapon per se under the applicable first-degree burglary statute. The court vacated Montez’s first-degree burglary conviction and remanded for entry of judgment and sentencing on the lesser-included offense of second-degree burglary.
Topics
Practice areas
Questions Presented
- Whether the phrase "intended to be used" in Colorado's statutory definition of deadly weapon refers to the defendant's intent or the manufacturer's intent.
- Whether an unloaded firearm is a deadly weapon per se for purposes of the first-degree burglary statute.
- Whether the proper appellate relief is to vacate the first-degree burglary conviction and enter judgment for the lesser included offense of second-degree burglary.
Holdings
- The phrase "intended to be used" in section 18-1-901(8)(e) refers to the defendant's intent, not the manufacturer's intent.
- The current statute does not classify a firearm as a deadly weapon per se; whether a firearm is a deadly weapon depends on the manner in which it was used or intended to be used by the defendant.
- Because the first-degree burglary conviction could not stand, the court vacated it and remanded for entry of judgment and sentencing on the lesser included offense of second-degree burglary.
Key quotations
“We hold that the term "intended to be used" in the deadly weapon definition of section 18-1-901(8)(e) refers to the defendant's, not the manufacturer's intent.” (269 P.3d at 1229)
“The statute does not classify a firearm as a deadly weapon per se.” (269 P.3d at 1229)
“To the contrary, the logical and common sense deduction from the plain language of the statute is that the legislature decided not to classify a firearm as a deadly weapon per se.” (269 P.3d at 1231)
Factual background
Montez broke through a window of a Lakewood home, entered and ransacked it, and took approximately $150 and a gun case containing two unloaded shotguns. Police later apprehended him with property traceable to the home, including the gun case and shotguns. The prosecution conceded that the first-degree burglary conviction could not stand if Colorado law did not classify a firearm as a deadly weapon per se.
Procedural history
A jury convicted Montez of two counts of first-degree burglary, among other offenses. The court of appeals affirmed the convictions but merged the two first-degree burglary convictions into one. The Colorado Supreme Court reversed the court of appeals, vacated the first-degree burglary conviction, and remanded for entry of a second-degree burglary judgment and resentencing.
Remand instructions
Reverse the judgment of the court of appeals, vacate the first-degree burglary conviction, remand to the trial court for entry of judgment and sentencing on the second-degree burglary charge, and resentence consistently with the opinion.