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Zubiate v. People

Supreme Court of Colorado, En Banc

February 27, 2017

Vanessa Ann Zubiate, Petitioner
v.
The People of the State of Colorado, Respondent

         Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 11CA1939

          Attorneys for Petitioner: Douglas K. Wilson, Public Defender Andrea Ruth Gammell, Senior Deputy Public Defender Denver, Colorado.

          Attorneys for Respondent: Cynthia H. Coffman, Attorney General Joseph G. Michaels, Assistant Attorney General Denver, Colorado.

          OPINION

          GABRIEL JUSTICE.

         ¶1 In this case, we address (1) whether a defendant may raise his or her unpreserved double jeopardy claim for the first time on appeal and, if so, what standard of review applies and (2) whether driving under revocation ("DUR") is a lesser included offense of aggravated driving after revocation prohibited ("aggravated DARP").[1]

         ¶2 In Reyna-Abarca v. People, 2017 CO 15, ¶¶ 2-3, ___P.3d___, also decided today, we (1) concluded that unpreserved double jeopardy claims can be raised for the first time on appeal and that appellate courts should ordinarily review such claims for plain error and (2) clarified the applicable test to be employed in determining whether one offense is a lesser included offense of another. Applying those rulings here, we conclude that the division in Zubiate v. People, 2013 COA 69, ___P.3d___, correctly (1) conducted plain error review of Vanessa Ann Zubiate's unpreserved double jeopardy claim and (2) determined that DUR is not a lesser included offense of aggravated DARP, although our analysis differs somewhat from that of the division. Accordingly, we affirm.

         I. Facts and Procedural History

         ¶3 The People charged Zubiate with, among other things, aggravated DARP and DUR after a police officer pulled her over for making a turn without signaling. Zubiate did not object to these charges pursuant to Crim. P. 12(b)(2), which provides, as pertinent here, that objections based on defects in the charging document may be raised only by motion and that the failure to present such an objection constitutes a waiver thereof.

         ¶4 Zubiate pleaded guilty to the DUR offense, and the case proceeded to trial on the remaining charges. The jury deadlocked on two counts, including the aggravated DARP charge, and the court declared a mistrial on those counts. The People re-tried Zubiate on those charges, and a jury ultimately found her guilty of both. At no point prior to or during the subsequent sentencing proceedings did Zubiate contend that her multiplicitous convictions for aggravated DARP and DUR violated her double jeopardy rights under the United States and Colorado Constitutions.

         ¶5 Zubiate appealed her convictions and argued for the first time that because DUR is a lesser included offense of aggravated DARP, double jeopardy principles required that the DUR conviction merge into the aggravated DARP conviction. The People responded that because Zubiate had not preserved this claim at trial, she could not raise it on appeal. Alternatively, the People contended that because DUR requires proof of an additional element that aggravated DARP does not (namely, a previous alcohol-related offense that triggered the revocation), DUR is not a lesser included offense of aggravated DARP.

         ¶6 In a unanimous, published decision, the court of appeals division rejected the People's contention that Zubiate's failure to raise her double jeopardy claim at trial precluded appellate review. Zubiate, ¶ 38. Instead, the division reviewed for plain error. Id. In evaluating whether DUR is a lesser included offense of aggravated DARP, the division then applied the version of the strict elements test that provided that an offense is included in another offense if establishing the greater offense's statutory elements necessarily establishes all of the lesser offense's elements. Id. at ¶¶ 37, 49-52. In doing so, the division concluded that DUR is not a lesser included offense of aggravated DARP, albeit on grounds different from those advanced by the People. Id. at ¶¶ 46-50. Specifically, the division rejected the People's argument that because DUR required proof that the existing revocation be for a previous alcohol-related offense, while aggravated DARP did not require such proof, Zubiate's convictions did not merge. Id. at ¶¶ 46-47. The division opined that this distinction was inapposite because the provision enhancing Zubiate's DUR sentence for having had her license revoked for an alcohol-related offense was a sentence enhancer and thus was not a substantive element of DUR for purposes of the lesser included offense determination. Id. The division nonetheless concluded that DUR is not a lesser included offense of aggravated DARP because, among other things, "DUR requires proof of an additional fact that DARP does not-namely that a motor vehicle was driven on a highway." Id. at ¶ 50. Accordingly, the division concluded that the two convictions do not merge and affirmed the judgment. Id. at ¶¶ 52-53.

         ¶7 Zubiate petitioned this court for a writ of certiorari on the issue of whether DUR is a lesser included offense of aggravated DARP. We granted that petition and added as an additional issue the question of whether appellate courts can review unpreserved double jeopardy claims raised for the first time on appeal.

         II. Analysis

         ¶8 We first discuss whether defendants may raise unpreserved double jeopardy claims for the first time on appeal. After concluding that they can, we proceed to discuss the merits of Zubiate's ...


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