COLORADO COURT OF APPEALS                                          2016COA101


Court of Appeals No. 15CA0159
Logan County District Court No. 13CR284
Honorable Charles M. Hobbs, Judge


The People of the State of Colorado,

Plaintiff-Appellant,

v.

Antero Alaniz,

Defendant-Appellee.


                               ORDER AFFIRMED

                                  Division III
                         Opinion by JUDGE RICHMAN
                        Graham and Booras, JJ., concur

                           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
¶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


 1 The statute’s nickname comes from the film Sudden Impact,
 starring Clint Eastwood in the role of Dirty Harry, in which he uses
 the catch phrase “go ahead, make my day” before dispatching
 various bad guys. Dirk Johnson, Colorado Journal; ‘Make My Day’:
 More Than a Threat, N.Y. Times, June 1, 1990,
 https://perma.cc/HAQ9-S76F.

                                   1
 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.


                                  2
 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


                                   3
  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.



                                    4
¶ 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:


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            (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




                                    6
             (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.




  2 The ethical origin of this legal concept, also known as the “castle
  doctrine,” may be traced to a verse in the Book of Exodus, chapter
  22, verse 1, which provides: “If a thief be found tunneling in, and be
  smitten so that he dies, there shall be no bloodguiltiness for him.”
  The Babylonian Talmud in Tractate Sanhedrin, chapter 8,
  expounds upon this situation, known as “Ba BaMachteret,”
  explaining that the verse holds the occupant of the dwelling not
  liable for murder because it presumes a person will not stand idly
  by while someone takes his property. If the occupant does try to
  defend his property, knowing the thief had expended the effort to
  break in to the dwelling, the occupant may presume the thief
  intends to use deadly force to take the property, and thus the
  occupant may use deadly force to defend himself. Sanhedrin 72a.

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             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



  3 Alaniz also requests that we strike the People’s opening brief
  because it does not address preservation of the issues or include “a
  citation to the precise location in the record where the issue was
  raised and ruled on,” as required under the appellate rules in effect
  at the time the brief was filed. See C.A.R. 28(k) (2015). Although
  the brief does not comply with the appellate rules, we exercise our
  discretion to consider it. See People v. Perry, 252 P.3d 45, 46 (Colo.
  App. 2010) (accepting briefs as filed despite noncompliance with
  appellate rules).

                                     8
  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 fairly settled these are considered
            dwellings and that’s going to be a finding made
            by the. [sic]

  The parties did not address the issue again during the remainder of

  the hearing.

¶ 20   As the court noted in its order, the prosecutor did not

  challenge the interpretation of “dwelling” set forth in the burglary

  cases, nor did he argue that that term should be interpreted

  differently in the context of “make-my-day” immunity.

  Nevertheless, the People argue that the prosecutor preserved the


                                     9
  issue by stating that there was no case law directly on point and

  requesting that the court make a “further finding.”

¶ 21   Assuming that the prosecutor’s statement adequately

  preserved the issue for appeal, we conclude that the People’s

  argument fails on the merits.

                        B.    Standard of Review

¶ 22   Statutory interpretation is a question of law that we review de

  novo. People v. Turecek, 2012 COA 59, ¶ 9. Our primary purpose

  is to ascertain and give effect to the intent of the General Assembly.

  Id. We first look to the language of the statute, giving words and

  phrases their plain and ordinary meaning. Id. The General

  Assembly may furnish its own definitions of words and phrases in

  order to guide and direct judicial determination of the intent of the

  legislation although such definitions may differ from ordinary

  usage. People v. Swain, 959 P.2d 426, 429 (Colo. 1998). If the

  General Assembly has defined a statutory term, we must apply that

  definition. Id.

¶ 23   If the statute is unambiguous, we apply it as written. Turecek,

  ¶ 11. If the statute is ambiguous, however, “then we may consider

  prior law, legislative history, the consequences of a given


                                    10
  construction, and the underlying purpose or policy of the statute.”

  Id.

                           C.   Applicable Law

¶ 24    Section 18-1-704.5(2)-(3) grants immunity to “[a]ny occupant

  of a dwelling” for using force under the circumstances set forth in

  the statute. “Dwelling” is not defined in the current version of

  section 18-1-704.5, which was in effect at the time of the charged

  offenses.4 However, the criminal code’s definitional section states

  that a dwelling is “a building which is used, intended to be used, or

  usually used by a person for habitation.” § 18-1-901(3)(g), C.R.S.

  2015.

¶ 25    Colorado courts have broadly interpreted the term “dwelling”

  as defined in section 18-1-901(3)(g). See People v. Jiminez, 651

  P.2d 395, 396 (Colo. 1982) (burglary case holding that an attached

  garage was a dwelling); People v. Germany, 41 Colo. App. 304, 308,

  586 P.2d 1006, 1009 (1978) (burglary case holding that a hospital


  4 The General Assembly recently enacted an amendment to the
  statute, which has not yet taken effect, that provides, “[a]s used in
  this section, unless the context otherwise requires, ‘dwelling’ does
  not include any place of habitation in a detention facility, as defined
  in section 18-8-211(4).” Ch. 87, sec. 1, § 18-1-704.5, 2016 Colo.
  Sess. Laws 245 (effective Aug. 10, 2016).

                                    11
  room was a dwelling), rev’d on other grounds, 198 Colo. 337, 599

  P.2d 904 (1979). Germany reasoned that the term “dwelling”

  encompassed hotel rooms and hospital rooms, although they are

  subunits of a larger building, because “those rooms are habitually

  used as a place where persons sleep.” 41 Colo. App. at 308, 586

  P.2d at 1009.

¶ 26   Citing Germany, the division in Nichols concluded that a jail

  cell qualified as a dwelling for purposes of second degree burglary

  because it was “used by persons for habitation.” 920 P.2d at 902.

  The defendant in Nichols entered another inmate’s cell and stole his

  personal commissary items. Id. The division stated:

             Merely because the victim could not refuse
             guards entry to his cell does not mean he had
             no right or reasonable expectation that he
             could exclude other inmates. Such right to
             exclude other inmates is indicated by the fact
             that the cells had doors that could be locked
             from the inside.

  Id. The division also cited two out-of-state cases applying the term

  “dwelling” to detention facilities. See Sioux Falls Cable Television v.

  South Dakota, 838 F.2d 249, 255 (8th Cir. 1988) (prison cell was a

  dwelling for purposes of a cable television statute); Bousman v.




                                    12
  State, 338 N.E.2d 723, 726 (Ind. Ct. App. 1975) (county jail was a

  dwelling for purposes of burglary statute).

¶ 27   In People v. Cushinberry, a division of this court applied the

  definition of dwelling from section 18-1-901(3)(g) to the “make-my-

  day” statute. 855 P.2d 18, 19 (Colo. App. 1992). The division

  concluded that the common areas of an apartment building were

  not a dwelling for purposes of “make-my-day” immunity because

  those areas were not part of the defendant’s apartment and were

  used by other tenants and their guests. Id.

                              D.    Analysis

¶ 28   For the same reasons set forth in Nichols, we conclude that

  Alaniz’s prison cell meets the definition of dwelling in section

  18-1-901(3)(g) because it was used by persons for habitation. See

  Nichols, 920 P.2d at 901. Alaniz presented evidence at the hearing

  that prisoners in his unit slept in their cells, stored personal

  belongings there, and could lock or unlock their own cell doors.

  See id. On this record, Alaniz’s prison cell constituted a dwelling as

  that term is defined in section 18-1-901(3)(g).

¶ 29   We further conclude, as did the division in Cushinberry, that

  the definition of dwelling in section 18-1-901(3)(g) applies to the


                                     13
  immunity provisions of section 18-1-704.5. See Cushinberry, 855

  P.2d at 19. Definitions set forth in the criminal code apply

  “wherever the same term is used in the same sense in another

  section of this title unless the definition is specifically limited or the

  context indicates that it is inapplicable.” § 18-1-901(1). Section

  18-1-704.5 does not specifically limit the term “dwelling” for

  purposes of “make-my-day” immunity, and nothing in the language

  of that statute suggests that that the definition set forth in section

  18-1-901(3)(g) is inapplicable.

¶ 30   The People rely on subsection (1) of the immunity statute,

  which states: “The general assembly hereby recognizes that the

  citizens of Colorado have a right to expect absolute safety within

  their own homes.” § 18-1-704.5(1). Based on this provision, the

  People argue that section 18-1-704.5 immunity is not available in

  the prison context because incarcerated felons lose many of the

  rights and privileges available to other Colorado citizens. We are

  not persuaded.

¶ 31   Subsections (2) and (3), which set forth the scope and

  requirements of “make-my-day” immunity, do not limit the

  immunity to “citizens of Colorado . . . within their own homes.”


                                      14
  § 18-1-704.5(1). Instead, those subsections extend immunity to

  “[a]ny occupant of a dwelling” who uses force under the

  circumstances described. § 18-1-704.5(2)-(3). We presume that the

  legislature knows the legal import of the words it uses. Guenther,

  740 P.2d at 976. At the time this statute was enacted, the term

  “dwelling” was defined in the criminal code and had been broadly

  interpreted by Colorado courts, including in nonresidential settings

  such as hospital rooms. See Jiminez, 651 P.2d at 396; Germany,

  41 Colo. App. at 308, 586 P.2d at 1009. The language of section

  18-1-704.5 gives no indication that the legislature intended a

  different definition of “dwelling” to apply to “make-my-day”

  immunity.

¶ 32   Accordingly, we conclude that the definition set forth in

  section 18-1-901(3)(g) applies, and Alaniz’s cell was a dwelling for

  purposes of “make-my-day” immunity under the plain language of

  the statute.

¶ 33   We also reject the People’s assertion that, because burglary is

  a property crime, the broad interpretation of “dwelling” developed in

  the burglary cases should not apply in the context of “make-my-

  day” immunity. Both statutory provisions offer protections against


                                    15
  intruders who intend to commit a crime against either persons or

  property. See §§ 18-1-704.5(2); 18-4-203, C.R.S. 2015 (second

  degree burglary). And as noted, nothing in the text of section

  18-1-704.5 suggests that the legislature intended the term

  “dwelling” to apply more narrowly in the “make-my-day” context

  than in other provisions of the criminal code.

¶ 34   The People rely on United States v. Slocum, a federal case

  which held that an entire prison was not a dwelling for purposes of

  determining whether a defendant asserting self-defense had a duty

  to retreat. 486 F. Supp. 2d 1104, 1112 (C.D. Cal. 2007). In that

  case, however, the defendant left his own cell and attacked the

  victim in another part of the prison. Id. at 1107. Thus, Slocum did

  not involve a claim of “make-my-day” immunity by an inmate in his

  own cell, and it did not address whether an individual prison cell

  like the one occupied by Alaniz could constitute a dwelling.

¶ 35   The People also rely on out-of-state cases holding that

  affirmative defenses such as self-defense and duress are not

  available to prisoners charged with possession of deadly weapons.

  See, e.g., State v. Perkins, 149 So. 3d 206, 209 (La. 2014); People v.

  Rau, 436 N.W.2d 409, 411 (Mich. Ct. App. 1989). But those cases


                                    16
  did not involve statutory immunity provisions similar to section

  18-1-704.5. And here, Alaniz claimed immunity for charges of

  murder and assault, not possession of a weapon. Accordingly,

  those cases are also inapposite for that reason.

¶ 36   The People argue that public policy reasons should prevent

  incarcerated felons from claiming “make-my-day” immunity.

  However, “the wisdom of such legislation is not for us to decide.”

  Guenther, 740 P.2d at 980. The General Assembly is free to amend

  the statute based on such concerns, and indeed has already done

  so, but we must apply the statute in effect at the time of the

  charged offense.5 We have concluded that Alaniz’s cell is a dwelling

  under the plain language of section 18-1-704.5, and we may not

  deny him the protections of the statute on public policy grounds.

¶ 37   Finally, we reject the People’s argument that permitting

  inmates to claim “make-my-day” immunity leads to an absurd

  result because it sanctions possession of deadly weapons by

  incarcerated felons. Section 18-1-704.5 grants immunity from


  5 Although the parties do not address the recent amendment in
  their briefs, we note that courts presume that the General Assembly
  intends to change the law, not clarify it, when it amends a statute.
  People v. Randell, 2012 COA 108, ¶ 18.

                                    17
  prosecution only for an occupant’s use of force against an intruder.

  It does not permit incarcerated felons to possess deadly weapons,

  nor does it prevent them from being prosecuted for that offense.

¶ 38   For the reasons set forth above, we conclude that Alaniz’s cell

  was a dwelling for purposes of section 18-1-704.5 and, therefore, he

  was entitled to claim immunity under that statute.

               IV.     Use of Force Against the Victim

¶ 39   The People next contend that the court erred in dismissing the

  charges because Alaniz failed to prove that he used physical force

  against the victim. We disagree.

¶ 40   We defer to the court’s factual findings unless they are so

  clearly erroneous as to find no support in the record.

  Sanchez-Martinez v. People, 250 P.3d 1248, 1254 (Colo. 2011). We

  review de novo whether the court applied the correct legal standard.

  See People v. Hughes, 252 P.3d 1118, 1121 (Colo. 2011).

¶ 41   We are not persuaded that Alaniz was required to present

  evidence proving his own use of force at the pretrial hearing in

  order to receive immunity under section 18-1-704.5. The People

  charged Alaniz with murdering and assaulting the victim, and they

  never argued that he was barred from immunity because he did not


                                     18
  use any physical force against the victim. Under these

  circumstances, we conclude that Alaniz was merely required to

  establish that circumstances justifying the charged use of force

  were present, as set forth in section 18-1-704.5(2)-(3). Nothing in

  the language of that statute supports the People’s assertion that he

  was required to “explain[] the entirety of [his] actions” at the hearing

  in order to obtain immunity.

¶ 42   The People rely on Guenther, which states that a defendant

  claiming immunity under section 18-1-704.5 must prove that he

  “used force against the person who actually made the unlawful

  entry into the dwelling.” 740 P.2d at 981. In that case, however,

  the defendant claimed immunity for shooting both an intruder in

  his home and other people who remained outside. Id. at 973-74.

  The supreme court held that section 18-1-704.5 provides immunity

  “only for force used against one who has made an unlawful entry

  into the dwelling, and . . . does not extend to force used against

  non-entrants.” Id. at 979. Thus, the language relied on by the

  People merely requires proof that the force for which the defendant

  claims immunity was directed against the intruder and not

  someone else. That issue did not arise in Alaniz’s case.


                                    19
¶ 43   The People do not challenge the court’s findings with respect

  to the other requirements for immunity under section 18-1-704.5,

  namely, that the victim’s entry was unlawful and that Alaniz had a

  reasonable belief that the victim intended to commit a crime and

  might use force against an occupant. See id.; Guenther, 740 P.2d at

  981. We conclude that those findings were sufficient to support the

  court’s ruling that Alaniz was entitled to immunity under section

  18-1-704.5. Accordingly, the court did not err in granting Alaniz’s

  motion to dismiss the charges.

                          V.       Conclusion

¶ 44   The order is affirmed.

       JUDGE GRAHAM and JUDGE BOORAS concur.




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