People v. Alaniz

409 P.3d 508

The PEOPLE of the State of Colorado, Plaintiff–Appellant,

v.Antero ALANIZ, Defendant–Appellee.

Court of Appeals No. 15CA0159

Colorado Court of Appeals, Div. III.

Announced June 30, 2016

Brittny B. Lewton, District Attorney, Sterling, Colorado, for Plaintiff–Appellant

Douglas K. Wilson, Colorado State Public Defender, Jud Lohnes, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellee

Opinion by JUDGE RICHMAN

¶ 1 The People appeal the district court's order dismissing charges of second degree murder and first degree assault against defendant, Antero Alaniz, an inmate at Sterling Correctional Facility. The court dismissed the charges pursuant to section 18–1–704.5, C.R.S. 2015, known as Colorado's "make-my-day" statute¹ , which provides that under certain circumstances an occupant of a dwelling who uses any degree of physical force, including deadly physical force, against an intruder shall be immune from prosecution.

¶ 2 We conclude that Alaniz's prison cell constituted a dwelling for purposes of section 18–1–704.5 and the district court did not err in finding that Alaniz established the requirements for immunity. Therefore, we affirm the order of dismissal.

I. Background

¶ 3 Alaniz is an inmate in the Colorado Department of Corrections (CDOC) serving a sentence of life imprisonment without the possibility of parole imposed in a separate case. The People filed the charges in this case after another inmate, Cleveland Flood, was found dead in a cell shared by Alaniz and Aaron Bernal at Sterling Correctional Facility in 2011.

¶ 4 Alaniz moved to dismiss the charges pursuant to section 18–1–704.5, and the People filed a written response opposing the motion. The court held an evidentiary hearing and heard testimony from Alaniz, several other inmates, and a CDOC investigator. The court also admitted surveillance video from outside the cell and photographs taken during the investigation.

¶ 5 According to the testimony at the hearing, and as the trial court found in its lengthy written order, Alaniz and Bernal shared a cell in a housing unit where inmates could control the locks on their own cell doors unless the unit was on lockdown. Alaniz and Bernal were described as close friends who generally kept to themselves and did not cause trouble for prison staff or other inmates.

¶ 6 Flood lived in a different cell in the same housing unit. Both the CDOC investigator and the other inmates described Flood as a bully who had a reputation for extorting other inmates, particularly those who were either mentally or physically weaker than he was. He was larger than Alaniz and Bernal, and he was not a friend of either of them.

¶ 7 Alaniz testified that on the evening of February 12, 2011, he and Bernal were in their cell watching a movie while the unit was on lockdown for the nightly count. When the lockdown ended, Bernal unlocked the cell door from the inside, and it popped open a few inches. According to Alaniz's testimony, a short time later, Flood entered the cell uninvited, closed the door behind him, brandished a shank, and demanded commissary items. Alaniz did not testify about what followed. A surveillance video from outside the cell, admitted into evidence, showed Flood entering the cell, but it did not show what happened inside.

¶ 8 Alaniz and Bernal emerged from the cell a few minutes later and contacted prison authorities. Flood was found dead inside the cell with approximately ninety puncture wounds and ligature marks around his neck. Investigators also found two shanks in the cell. Bernal had abrasions and puncture wounds, and Alaniz had marks on his body consistent with a struggle.

¶ 9 In their written response to Alaniz's motion to dismiss and at the hearing, the People argued that Alaniz failed to prove two requirements for immunity under section 18–1–704.5. First, they argued that Flood did not make an unlawful entry into the cell. Second, they argued that Alaniz did not have a reasonable belief that Flood intended to commit a crime in the cell and might use force against an occupant.

¶ 10 The court issued a written order dismissing the charges. The court stated that the People had conceded that a prison cell was a dwelling for purposes of "make-my-day" immunity under section 18–1–704.5 :

[T]he prosecution does not challenge perhaps the most novel theory of this motion: that an inmate in the Department of Corrections is even entitled to invoke this legal protection. The defense argues that a jail cell qualifies as a dwelling pursuant to People v. Nichols , 920 P.2d 901 (Colo.1996). In that case the Court found that for purposes of the burglary statute an inmate's cell constituted a dwelling. Here the prosecution does not challenge that analysis. In this case the testimony is that the inmates had keys to their cells that they could control whether or not other inmates were allowed to enter into their cell, and that they kept their personal and confidential items in their cell. Because the prosecution concedes that a prison cell is a dwelling for purposes of this statute, they are essentially conceding that an inmate is entitled to invoke the protections of the castle doctrine.

¶ 11 Based on the evidence presented at the hearing, the court concluded that the other requirements of "make-my-day" immunity were met. It found that the victim made an uninvited, unlawful, and "highly provocative" entry into the cell while brandishing a weapon. It also found that Alaniz reasonably believed that the victim intended to commit a crime in the cell and might use physical force against an occupant. The court concluded that Alaniz met his burden in showing by a preponderance of the evidence that he was entitled to immunity under section 18–1–704.5, and it dismissed the charges against him.

¶ 12 On appeal, the People contend that the district court erred in dismissing the charges pursuant to section 18–1–704.5 because a prison cell is not a dwelling for purposes of that statute, and because permitting "make-my-day" immunity in a prison setting would be contrary to public policy. They also contend that Alaniz was not entitled to dismissal because he failed to prove that he used any force against the victim. We reject these contentions and therefore affirm the order of dismissal.

II. Section 18–1–704.5 Immunity

¶ 13 Section 18–1–704.5 provides:

(1) The general assembly hereby recognizes that the citizens of Colorado have a right to expect absolute safety within their own homes.

(2) ... [A]ny occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into the dwelling, and when the occupant has a reasonable belief that such other person has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant.

(3) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from criminal prosecution for the use of such force.

§ 18–1–704.5(1) - (3) (emphasis added).

¶ 14 When a defendant moves to dismiss the charges pursuant to section 18–1–704.5 before trial, the defendant bears the burden of proving by a preponderance of the evidence that the elements of statutory immunity are met. People v. Guenther , 740 P.2d 971, 980–81 (Colo.1987). The defendant must prove that

(1) another person made an unlawful entry into the defendant's dwelling; (2) the defendant had a reasonable belief that such other person had committed a crime in the dwelling in addition to the uninvited entry, or was committing or intended to commit a crime against a person or property in addition to the uninvited entry; (3) the defendant reasonably believed that such other person might use physical force, no matter how slight, against any occupant of the dwelling; and (4) the defendant used force against the person who actually made the unlawful entry into the dwelling.

Id. at 981.²

¶ 15 If the pretrial motion to dismiss is denied, the defendant may raise the statutory conditions set forth in section 18–1–704.5 as an affirmative defense at trial. Id.

III. Whether a Prison Cell Is a Dwelling Under Section 18–1–704.5

¶ 16 The People first contend that Alaniz was not entitled to immunity under section 18–1–704.5 because a prison cell is not a dwelling for purposes of that statute. We disagree.

A. Preservation

¶ 17 As an initial matter, the parties dispute whether this issue was preserved for appeal. Alaniz asserts that this issue is unpreserved and unreviewable because, as the district court stated in its order, the People conceded that a prison cell is a dwelling under section 18–1–704.5.³ The People contend that the issue was preserved.

¶ 18 In their written response to Alaniz's motion to dismiss, the People stated that "[a] prison cell can be considered a dwelling as it is used for habitation. The normal sense in which this is seen is in burglary prosecutions." The People cited People v. Nichols , 920 P.2d 901, 902 (Colo.App.1996), which held that a jail cell was a dwelling for purposes of second degree burglary. The meaning of the term "dwelling" was not addressed anywhere else in the motion.

¶ 19 At the hearing, the defense argued that Alaniz's cell was a dwelling for purposes of "make-my-day" immunity and stated that the prosecution had conceded the issue. Later, during the prosecutor's arguments, the court stated, "[T]he way I understand your motion[,] you have conceded it's a dwelling." The prosecutor responded:

I think the Court needs to make a further finding because all the case law does go to burglaries[.] I was unable to find any case law that comes to "Make My Day" defense[.] I think it's

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