Burglary, Assault and Double Jeopardy Law


Colorado statute 18-4-202, C.R.S., defines first degree burglary as:

(1) A person commits first degree burglary if the person knowingly enters unlawfully, or remains unlawfully after a lawful or unlawful entry, in a building or occupied structure with intent to commit therein a crime, other than trespass as defined in this article, against another person or property, and if in effecting entry or while in the building or occupied structure or in immediate flight therefrom, the person or another participant in the crime assaults or menaces any person, or the person or another participant is armed with explosives or a deadly weapon.

(2) First degree burglary is a class 3 felony.

Double Jeopardy Clause of the Colorado and U.S. Constitutions

forbids the government to prosecute individuals more than one time for a single offense and to impose more than one punishment for a single offense.

Double Jeopardy in a Recent Colorado Case

In People v. Fuentes  258 P. 3d 320 (Colo. 2011) the Colorado Supreme Court reversed one of two convictions for first degree burglary after Mr. Fuentes entered a home and assaulted two people inside. His “extra” conviction for first degree burglary was overturned by the Colorado Supreme Court because it found that one entry into a home justified only one conviction for burglary. Any extra burglary conviction violated the double jeopardy clause of the Colorado and United States Constitutions. This ruling saved Fuentes many unnecessary, extra years in prison. Had the Colorado Supreme Court ruled against Fuentes, then many people convicted of burglaries and related crimes would be spending significantly more time in prison.

Here’s the story leading up to Fuentes double jeopardy ruling…

Andrew Fuentes had entered a home with the intent to assault someone and ended up assaulting two people. At trial, the prosecutor convinced the judge and the jury that entering a home with the intent to commit the crime of assault against two people (burglary is breaking into a home with the intent to commit a crime) was actually two different burglaries. Therefore, Fuentes was convicted of two counts of first degree burglary in Pueblo County District Court.  However, the Colorado Supreme Court disagreed, finding that burglary is a crime involving an illegal, unwanted entry into a home. The court reasoned that if a home is entered and multiple people are robbed or assaulted by the burglar, then the correct conviction is for one burglary, and for as many robberies or assaults as can be proven by the prosecution. The Colorado Supreme Court noted that other states, Massachusetts and Montana, also rejected the idea that multiple assaults or robberies justified multiple burglary convictions.  All of these courts figured that multiple burglary convictions for one entry violated double jeopardy rights under state and federal constitutions. Both of these documents protect against multiple criminal convictions for the same act. It is easy to see that what happened to Fuentes was a double jeopardy violation.


If you or someone you know is charged with burglary, assaults or any felony crime, seek legal advice from a lawyer who is experienced in advancing the rights of people accused of crimes. Shaun Kaufman understands when to object to violations of the rights of the criminally accused, including double jeopardy protections.

Tagged with: assault defense • burglary defense • • double jeopardy law •

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