Mini-Summaries
In re. People v. Dilka, 2026CO12 (March 2, 2026) C. J. Márquez affirming lower court with Justice Gabriel dissenting
Issue: The majority decides that a violation of a protection order under section 18-6-803.5, C.R.S. (2025), always constitutes, as a matter of law, a predicate crime for purposes of second degree burglary under section 18-4-203. Justice Gabriel dissented because he recognized that the majority’s per se rule of law lowers the prosecution’s burden of proof by relieving it of establishing beyond a reasonable doubt that the particular violation is a crime against a person or property
The facts are irrelevant, but I will go through them just to show why Justice Gabriel's dissent is the better reasoned approach.
Dilka’s ex-wife got a protection order preventing Dilka from going to her residence. One day, Dilka hopped the fence and tried to enter her residence through the back door to get his backpack. His ex-wife told him to leave. Dilka entered the home while his ex-wife locked herself in the bathroom. Dilka got his backpack and was arrested while hopping back over the fence. For this, the government charged him with second degree burglary.
At the PH, Dilka argued that his conduct did not amount to a “crime against another person or property” for purposes of second degree burglary. Relying on People v. Rhorer, 967 P.2d 147 (Colo. 1998), the judge disagreed, finding that a defendant’s “intent to violate the no-contact order by breaking into [the victim’s] home constituted an ‘intent to commit therein a crime against [a] person or property’ and fulfilled that element of the crime of second degree burglary.”
Dilka filed a Rule 21 petition. The Court granted review. The majority confirms that Rhorer established “a bright-line rule that a criminal violation of a protection order under section 18-6-803.5 serves as a predicate crime for second degree burglary because such a violation constitutes a crime against another person or property.”
In support, the majority points out that its holding in Rhorer is “consistent with” the burglary statute and the purpose of a protection order. This they needed to do because the statute does not define what is a “crime against a person or property. Why do I care? Because the majority skips the first question the Court is always supposed to engage in when deciding the scope of the statute – what does the “plain language” of the statute mean. (Following the law is not a judicial requirement when it stands in the way of the result you want to reach.)
Notably, in People v. Poindexter, 2013 COA 93, 338 P.3d 352, the division turned to the plain language definition for what constitutes a crime against “another person” or a “crime against property,” using something crazy like Black’s Law Dictionary to support its conclusion. And under that definition, the division soundly concluded that the fact that an offense presents a risk of physical harm to a person does not necessarily establish that the offense is a crime against a person.
The majority dispensed with this most basic and important rule for reading a statute in a footnote claiming that they are not bound by the division’s analysis. And, “[i]n any event, the statutory history of the second degree burglary statute supports a broad reading of the phrase.” Again, since when does a court turn to legislative history before assessing the plain language of the legislature. Sigh.
Anyway, the majority’s dogged persistence in obtaining this result does present a silver lining for an otherwise dark cloud. After quoting the definition of a protection order contained in § 18-6-803.5(1.5)(a.5)(I), the majority broadly pronounces that
¶24 Every aspect of this definition shows that protection orders exist to shield protected persons and their property from harm or the threat of harm by the restrained party. Notably, this definition applies to protection orders throughout the Colorado statutes, including both civil protection orders issued pursuant to article 14 of title 13, and mandatory criminal protection orders issued pursuant to section 18-1-1001.
They then go on to expound for two pages on how the very purpose of a protection order is to protect a victim from harm.
Why, pray tell, do I find this to be a silver lining?
Because consent is a defense when
I have always believed that consent can not be a defense because the essence of the violation is the breaking of the judge’s order – not a “crime against another person or property.” Turns out I’m wrong. Yes, I know, judge’s frequently tell people that the protected person cannot consent to a violation. But since when can a judge take away an affirmative defense granted by the legislature. Such an ability would jeopardize the separation of powers and violate the substantive rule of lenity! Yes, I’m reminding you of Justice Gorsuch’s description of the Rule of Lenity!
Justice Gabriel dissented because he believes that the prosecution should be put to task to establish that the facts underlying the defendant’s act of violating a protection order constitutes a “crime against another person or property.” Echoing Poindexter, and applying the plain meaning of the statutory text, he believes that a violation of a protection order can constitute a crime against another person or property. But not necessarily under every factual scenario as a matter of law.
For example, a person subject to a protection order might enter a protected space simply by walking into it without using or threatening to use any force and without encountering another person. Likewise, a person subject to a protection order might enter a protected space without force or threat of force and at a time when the protected person is not expected to be there simply to retrieve the perpetrator’s own property.
…
Nor is every protection order violation by its very nature a crime against another person, as the People suggest. For example, as Dilka observes, section 18-1-1001(1)(a), C.R.S. (2025), imposes a mandatory protection order against all persons charged with violating any provision of title 18, which would include persons charged with drug distribution, possession of a weapon by a previous offender, or other crimes unrelated to domestic violence, many of which might be deemed victimless crimes (i.e., as crimes against society, rather than crimes against individual victims).
As such, he believes that “the law requires a case-by-case assessment to determine whether the protection order violation at issue was, in fact, a crime against another person or property.” The majority’s decision “unnecessarily lowers the prosecution’s burden of proof in burglary cases in which the defendant violated a protection order,” and leads to “absurd and unjust results.”
People v. Valdez, 2026COA9 (March 5, 2026) Judge Tow affirming judgment from Weld County Judge Kopcow
the evidence at trial was sufficient to demonstrate that Valdez caused submission of the victim by the application of physical force.
Forty-one year old Valdez admitted to having sex with the drunk fifteen year old daughter of his roommate. He did argue that he should not be subjected to enhanced sentencing because he did not cause her submission through the actual application of physical force and that he was not in a position of trust. The jury disagreed, and here, the division affirms.
In affirming, the division had to grapple with the statutory language of causing submission through the actual application of physical force. Whatever the definition may be, here the evidence was sufficient to establish Valdez applied physical force that caused her submission.
Application of physical force- Before sexually penetrating the victim on his bed, he told her to “scoot down” away from the headboard. When she did not, he “scooted her down the bed.” This was an application of force.
Caused her submission – I’ll just cut and paste their analysis for you.
The prosecution presented evidence that K.E. clearly expressed to Valdez that she did not want to have sex with him. She then placed herself at the top of the bed near the headboard. And she did not move away from the headboard and down the bed when Valdez told her to do so. Notwithstanding K.E.’s expressed wishes and her evident lack of cooperation, Valdez moved her down the bed so that he could accomplish the assault.
And that was that.