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Third District, Salt Lake Department
The Honorable Joseph Fratto

Attorneys:
Richard G. Uday, Salt Lake City, for Appellant
Don M. Wrye, Salt Lake City, for Appellee

Before Judges Greenwood, Davis, and Jackson.

PER CURIAM:

We reject Beltran's argument that the defenses of habitation and self-defense were available to him. According to Utah Code Ann. § 76-2-405(1) (1995), entitled "Force in defense of habitation":

A person is justified in using force against another when and to the extent that he reasonably believes that the force is necessary to prevent or terminate the other's unlawful entry into or attack upon his habitation.

The evidence does not support a conclusion that Beltran was defending his habitation. Rather, it shows that Beltran and his son, Heratio, were engaged in a fight on the back porch of the duplex where Beltran lived. When Beltran's friend intervened in the fight, Heratio's wife became concerned for Heratio's safety and called to her brother, Luis Cardenas (Cardenas), who was waiting in a truck in front of Beltran's house. Cardenas entered the back patio area to assist his friend, Heratio. There is nothing to suggest that Cardenas was unlawfully entering or attacking Beltran's habitation or that Beltran was attempting to prevent Cardenas from doing so. Thus, we agree with the trial court that the defense of habitation is not applicable to this case. Since the defense is not applicable, Beltran is not entitled to the presumption found in Utah Code Ann. § 76-2-405(2). 1

Similarly, the defense of self-defense was not available to Beltran because he was the aggressor. See Utah Code Ann. §76-2- 402(2)(c)(i) (1995) (stating that "[a] person is not justified in using force . . . if he or she . . . was the aggressor or was engaged in a combat by agreement"). The evidence supports the conclusion that Beltran was the aggressor as does Utah case law. In State v. Starks, 627 P.2d 88 (Utah 1981), the supreme court stated that "one who willingly and knowingly provokes a combat may be an aggressor, and if one who initially was a nonaggressor escalates a fight beyond a level which would be justified in view of the nature of the original provocation, then he loses the right to claim the defense of self-defense." Id. at 90 (citations omitted). In Starks, the defendant claimed self- defense in defense of the manslaughter charge against him. The supreme court rejected the claim concluding that the defendant was the aggressor:

Even if defendant were initially justified in drawing the gun, the fact that [the victim] did not produce a gun, but rather "jumped around" and told defendant, to put his gun away during the time defendant was trying to figure out how to operate his gun, could have been viewed by the jury as making the defendant the aggressor at that point in the encounter. The ensuing "chase" during which defendant fired additional shots also supports the conclusion that defendant was the aggressor.

Since there is no evidence to suggest that Beltran was defending his habitation from entry by Cardenas and the evidence supports the trial court's conclusion that Beltran was the aggressor as against Cardenas, his claims of defense of habitation and self-defense fail. Accordingly, Beltran's conviction is affirmed.
______________________________
Pamela T. Greenwood,
Associate Presiding Judge

______________________________
James Z. Davis, Judge

______________________________
Norman H. Jackson, Judge

1. Even if we conclude that the defense of habitation applied, Beltran could not prove the factors required in subsection (2), namely, that Cardenas's entry was "unlawful and [was] made or attempted by use of force, or in a violent and tumultuous manner, or surreptitiously or by stealth, or for the purpose of committing a felony." Utah Code Ann. § 76-2-405; see also, State v. Moritzsky, 771 P.2d 688, 691 (Utah Ct. App. 1989) (discussing what a defendant must show under subsection (2) to shift the burden to the State).