## Facts

- David Alan Guenther was charged with second degree murder, two counts of first degree assault, and a crime-of-violence count arising from a shooting on April 20, 1986, at or near his Northglenn, Colorado home.
- Earlier that evening, a group had been drinking and playing pool at a nearby residence.
- Josslyn Volosin was killed; Michael Volosin and Robbie Alan Wardwell were wounded.
- Guenther asserted that the victims attempted an unlawful entry into his dwelling and that he used force after an unlawful entry and perceived harm to his wife.
- Relying on Colorado’s dwelling-defense immunity statute, § 18-1-704.5(3), Guenther moved pretrial to dismiss and to enjoin further prosecution on the ground that an occupant using force against an intruder “shall be immune from criminal prosecution.”
- The district court found probable cause at a preliminary hearing, then held a separate immunity hearing using the preliminary-hearing record plus limited additional testimony.
- The district court dismissed all charges, placing on the prosecution the burden to disprove immunity beyond a reasonable doubt.
- The People appealed, challenging the availability of pretrial dismissal, the burden and standard of proof, and the statute’s reach as to persons who did not unlawfully enter.

## Issues

1. Whether § 18-1-704.5(3) authorizes a pretrial hearing and dismissal of charges when statutory immunity is established, or instead creates only an affirmative defense for trial.
2. In a pretrial immunity proceeding under § 18-1-704.5(3), which party bears the burden of proof and what standard applies.
3. Whether statutory immunity extends to persons who did not make an unlawful entry into the dwelling.

## Decision

- The Colorado Supreme Court reversed the dismissal and remanded for further proceedings.
- The court held that § 18-1-704.5(3) authorizes a district court to dismiss charges before trial if the defendant establishes the statutory conditions for immunity.
- The court held that, at a pretrial immunity hearing, the defendant bears the burden to prove entitlement to immunity by a preponderance of the evidence.
- The court held that the district court erred by requiring the prosecution to disprove immunity beyond a reasonable doubt.
- The court held that the immunity applies only to force used against an “intruder” who unlawfully entered the dwelling and does not extend to persons who did not unlawfully enter.
- The court rejected the argument that pretrial adjudication of statutory immunity violates separation of powers by intruding on prosecutorial charging authority.

## Legal Principles

- Statutory language granting that an occupant “shall be immune from criminal prosecution” can create an immunity from being subjected to prosecution, not merely a trial defense.
- A defendant may seek a pretrial judicial determination of immunity under § 18-1-704.5(3), and a court may dismiss charges if the defendant satisfies the statute’s factual predicates.
- In a pretrial immunity proceeding, the defendant must prove entitlement to immunity by a preponderance of the evidence; the prosecution is not required to disprove immunity beyond a reasonable doubt.
- The statute’s protection is limited to force used against an unlawful “intruder” into the dwelling; the immunity does not cover individuals who did not make an unlawful entry.
- Pretrial resolution of statutory immunity is a judicial function that does not usurp the prosecutor’s authority to file charges.

## Conclusion

The court recognized § 18-1-704.5(3) as a pretrial immunity that can bar prosecution, but required the defendant to prove eligibility by a preponderance of the evidence and limited the immunity to force used against unlawful intruders, leading to reversal of the dismissal and remand.


People v. Guenther, 740 P.2d 971 (Colo. 1987)