Colorado Court of Appeals decision 10-28-10

People v Zukowski            Make My Day / Jury Instructions           

Synopsis:  After some bitching back and forth between neighbors across the hall, the complaining witness goes to Mr. Zukowski apartment uninvited and enters. Mr. Zukowski comes a-swingin’ a machete at the complaining witness, and struck him in the head and torso. A jury convicted Mr. Zukowski of first degree assault after the trial court denied Mr. Zukowski’s motion to dismiss under Make My Day. The prosecution sought and the trial court granted their request to instruct the jury that Make My Day did not apply if the intruded had a “good faith” belief he could enter. Unsurprisingly, that became the issue on appeal.

Issue: Whether the trial court erred in instructing the jury by informing them that Make My Day did not apply if the complaining witness had a “good faith” belief that he was not breaking a criminal law?

Held: Yes. Case reversed and remanded for new trial.

Reasoning: This language from the Make My Day instruction caused the reversal:

“In order for this affirmative defense to apply, the other person’s unlawful entry into the dwelling must have been made in knowing violation of the criminal law. An entry made in the good faith belief that it is lawful, is not an entry made in knowing violation of the criminal law.” (emphasis in the original opinion)

No where in the make my day statute does that language exist, as the Court of Appeals noted. The CoA simply reasoned that putting the onus on someone faced with an unlawful entry to decide whether the intruder had a “good faith” belief when making the unlawful entry is too great, and not required by policy or the statute.  

Colorado Supreme Court decision 10-25-10

People v. Montes-Rodriguez             Criminal Impersonation – Sufficiency of the Evidence

Synopsis: Mr. Montes-Rodriguez applied for a car loan using his real name, birth date, address, and employment information. However, he used a fictitious social security number. A jury convicted him of criminal impersonation, and the Court of Appeals affirmed. The Colorado Supreme Court reversed his conviction.

Issue: Is merely using a fictitious social security number enough to convict someone of criminal impersonation when that person uses his real name, date of birth, address, employment, etc.?

Held: No.

            The Supreme Court held:

“[Mr.]Montes- Rodriguez’s false social security number was one of many pieces of identifying information submitted on his loan application. On the whole, by providing his proper name, birth date, address, and employment information, the evidence establishes that Montes-Rodriguez applied for the loan as himself, not as another person.

Accordingly, we reverse the court of appeals’ opinion upholding Montes-Rodriguez’s conviction. We remand this case to that court so that it may be returned to the trial court for entry of a judgment of acquittal.”

The Court divided the criminal impersonation statute into two portions:

1)    False Identity

2)    False Capacity

False Capacity: The Court went through the statute and determined that in each instance - marriage, bail, judgments in criminal law and civil court - carries a “distinct legal significance.” Further, the Court limited People v. Bauer 80 P.3d 896 (Colo.App. 2003) to its factual circumstances. In Bauer, Mr. Bauer held himself out to be a lawyer under his real name, address, social security number etc. However, the Colorado Supreme Court previously suspended Mr. Bauer’s license to practice law. Thus, when he held himself out as a lawyer and continued to practice law, he assumed a false legal capacity.

            Unlike Bauer, the Court found that the loan Mr. Montes-Rodriguez applied for did not legally require him to provide a social security number. The Court specifically stated, “Although Montes-Rodriguez may have lacked the practical capacity to obtain a loan through Hajek Chevrolet because they could not check his credit without a social security number, he did not lack the legal capacity to obtain a loan.”

False Identity:  The Court then went on to determine whether Mr. Montes-Rodriguez asserted a false identity when he applied for a car loan. The Court wrote, “He gave his correct address, birth date, and place of employment. Most importantly, he gave his correct name. In the face of so much accurate identifying information, we cannot conclude that Montes-Rodriguez pretended to be another person in his loan application simply because he supplied a false social security number. Hence, we conclude that Montes-Rodriguez did not assume a false identity.”

            Incidentally, the Court followed both People v. Jones, 841 P.2d 372, (Colo.App. 1992), and the dissent of Montes-Rodriguez in the Court of Appeals. I attached Jones, Bauer, and the Court of Appeals decision in Montes-Rodriguez, which contains the dissent the Supreme Court followed.