County District Court No. 13CR284 Honorable Charles M. Hobbs,
Brittny B. Lewton, District Attorney, Sterling, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Jud
Lohnes, Deputy State Public Defender, Denver, Colorado, for
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" statute, 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
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
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
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
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
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.
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 ...