People v. Toler
In People v. Toler, 9 P.3d 341, 29 Colo. Law. No. 11 261 (Colo. 2000), the defendant was charged with murder when he shot the victim, allegedly in self-defense, while the defendant was trespassing on a third person's property.
The trial court's jury instruction on self-defense included the phrase, "if the Defendant was where he had a right to be, he was not required to retreat to a position of no escape in order to claim the right to employ force in his own defense." Id. at 346.
The Colorado Supreme Court determined that this instruction was improper because it might have led the jury to believe that, because the defendant was a trespasser, he could only resort to physical force in self-defense if he demonstrated that he first retreated to a position of no escape. Id. at 346-347.
Instead, the court held, trespassers have the right to self-defense "without having to 'retreat to the wall'" if an owner or occupant of property confronts the trespasser with unlawful force. Id. at 352 .
However, the court also noted that an owner or occupant can lawfully use "reasonable force," including deadly force, in some instances against trespassers and any "trespasser who is subjected to lawful physical force by the owner or occupant" has no privilege to use physical force in self-defense because the privilege of self-defense only applies "when the defendant faces unlawful force." Id. at 353.