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Reyna-Abarca v. People

Supreme Court of Colorado

February 27, 2017

Mario Reyna-Abarca, Petitioner
v.
The People of the State of Colorado. Respondent Dallas Cameron Hill, Petitioner/Cross-Respondent
v.
The People of the State of Colorado. Respondent/Cross-Petitioner Jorge Arturo Medrano-Bustamante, Petitioner
v.
The People of the State of Colorado. Respondent The People of the State of Colorado, Petitioner
v.
Ruben Charles Smoots. Respondent

         Certiorari to the Colorado Court of Appeals 7 Court of Appeals Case Nos. 10CA637, 12CA168

          Attorneys for Petitioner Mario Reyna-Abarca: 24 Douglas K. Wilson, Public Defender 25 Anne T. Amicarella, Deputy Public Defender 26 Denver, Colorado

          Attorneys for Petitioner Dallas Cameron Hill: 29 Douglas K. Wilson, Public Defender 30 Rachel K. Mercer, Deputy Public Defender 31 Britta Kruse, Senior Deputy Public Defender 32 Denver, Colorado

          Attorneys for Petitioner Jorge Arturo Medrano-Bustamante: 2 Douglas K. Wilson, Public Defender 3 Alan Kratz, Deputy Public Defender 4 Denver, Colorado

          Attorneys for Petitioner/Respondent The People of the State of Colorado: 7 Cynthia H. Coffman, Attorney General 8 John T. Lee, Assistant Attorney General 9 Denver, Colorado

          Attorneys for Respondent Ruben Charles Smoots: 12 Douglas K. Wilson, Public Defender 13 Inga K. Nelson, Deputy Public Defender 14 Britta Kruse, Senior Deputy Public Defender 15 Denver, Colorado

          Attorneys for Amicus Curiae Colorado Criminal Defense Bar: 18 Tiftickjian Law Firm, P.C. 19 Jay M. Tiftickjian 20 Denver, Colorado

          OPINION

          GABRIEL JUSTICE

          ¶1 These four cases, which raise the ultimate question of whether driving under the influence ("DUI") is a lesser included offense of either vehicular assault-DUI or vehicular homicide-DUI, present us with an opportunity to address (1) whether a double jeopardy claim can be raised for the first time on direct appeal and (2) what test courts should apply in evaluating whether one offense is a lesser included offense of another.[1]

         ¶2 We now conclude that unpreserved double jeopardy claims can be raised for the first time on appeal, and appellate courts should ordinarily review such claims for plain error. In so holding, we reject the People's contention that defendants waive their double jeopardy claims unless they raise them at trial through a Crim. P. 12(b)(2) challenge to defective charging documents. Contrary to the People's assertion, a defendant's claim that his or her conviction violates double jeopardy principles does not amount to an objection regarding defects in the charging document. Accordingly, Crim. P. 12(b)(2) is inapplicable here.

         ¶3 With respect to the applicable test for determining whether one offense is a lesser included offense of another, we reiterate that the strict elements test is the proper test, but we acknowledge that our prior iterations of that test have arguably been inconsistent. Accordingly, we now clarify that the proper test for making such a determination is that articulated in Schmuck v. United States, 489 U.S. 705, 716 (1989), which we have cited previously with approval. We thus hold that an offense is a lesser included offense of another offense if the elements of the lesser offense are a subset of the elements of the greater offense, such that the lesser offense contains only elements that are also included in the elements of the greater offense. In our view, this articulation of the test is consistent with applicable statutory law and the plain meaning of "lesser included, " it harmonizes our previous iterations of the "statutory elements" or "strict elements" test, and it can be applied readily and uniformly.

         ¶4 Applying this test to the cases now before us, we conclude that DUI is a lesser included offense of both vehicular assault-DUI and vehicular homicide-DUI, and thus, defendants' DUI convictions must merge into the greater offenses. We further conclude that in not merging such offenses, the trial courts here plainly erred and that reversal of the multiplicitous convictions is therefore required.

         ¶5 Accordingly, we affirm the divisions' rulings in People v. Reyna-Abarca, No. 10CA637 (Colo.App. Aug. 1, 2013), and People v. Hill, No. 12CA168 (Colo.App. Aug. 8, 2013), that appellate courts review unpreserved double jeopardy claims for plain error, but we reverse the portions of the judgments in those cases concluding that DUI is not a lesser included offense of vehicular assault-DUI, and we remand for further proceedings consistent with this opinion. Similarly, we reverse the portion of the judgment in People v. Medrano-Bustamante, 2013 COA 139, ___ P.3d___, concluding that DUI is not a lesser included offense of vehicular assault-DUI and vehicular homicide-DUI, and we remand for further proceedings. We affirm the judgments in those cases in all other respects, and we affirm in full the judgment in People v. Smoots, 2013 COA 152, ___ P.3d ___.

         I. Facts and Procedural History

         ¶6 We begin by discussing the pertinent facts and procedural histories of each of the cases now before us.

         A. Reyna-Abarca

         ¶7 The People charged Mario Reyna-Abarca by complaint and information with six counts arising from a motor vehicle accident. Among those counts were DUI and vehicular assault-DUI. Reyna-Abarca did not object to these counts 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.

         ¶8 A jury ultimately found Reyna-Abarca guilty of, among other things, both DUI and vehicular assault-DUI. At no time prior to or during the sentencing proceedings did Reyna-Abarca contend that his convictions for both DUI and vehicular assault-DUI violated his double jeopardy rights under either the United States or Colorado Constitutions.

         ¶9 Reyna-Abarca appealed and argued for the first time that DUI is a lesser included offense of vehicular assault-DUI, thereby requiring that his DUI conviction merge into his vehicular assault-DUI conviction. The People disagreed, arguing that DUI is not a lesser included offense of vehicular assault-DUI because DUI is not established by proof of the same or less than all of the facts required to prove vehicular assault-DUI.

         ¶10 In a unanimous, unpublished decision, the court of appeals division reviewed Reyna-Abarca's claim for plain error. Reyna-Abarca, slip op. at 15. In considering whether Reyna-Abarca's DUI conviction was a lesser included offense of vehicular assault-DUI, the division began by applying the version of the strict elements test providing that "one offense is a lesser included of another offense when all of the essential elements of the lesser offense comprise a subset of the essential elements of the greater offense, such that it is impossible to commit the greater offense without also committing the lesser." Id. at 21.

         ¶11 Applying that test to Reyna-Abarca's convictions, the division observed that the definition of "motor vehicle" for purposes of vehicular assault-DUI is "materially different" from the definition of "motor vehicle" that applies to DUI. Id. at 23. Specifically, the division noted that vehicular assault-DUI can be committed with a boat or a plane, whereas DUI, which can be committed only in a self-propelled vehicle that is designed primarily for travel on the public highways, cannot. Id. As a result, the division concluded that it is possible to commit vehicular assault-DUI without also committing DUI, and thus, the latter is not a lesser included offense of the former. Id. at 23-24. ¶12 We subsequently granted Reyna-Abarca's petition for certiorari review.

          B. Hill

         ¶13 The People charged Dallas Cameron Hill with a number of counts arising from a motor vehicle accident including, as pertinent here, vehicular assault-DUI and DUI. As in Reyna-Abarca, Hill did not file any objections to these charges under Crim. P. 12(b)(2).

         ¶14 A jury ultimately found Hill guilty of, among other things, both the vehicular assault-DUI and DUI charges. At no point during or prior to sentencing did Hill specifically assert that his convictions for both vehicular assault-DUI and DUI violated double jeopardy principles.

         ¶15 Hill appealed, arguing that his DUI conviction should merge into his vehicular assault-DUI conviction because DUI is a lesser included offense of vehicular assault-DUI. The People contended that Hill had waived this claim by not objecting at trial to defects in the information under Crim. P. 12(b)(2). Alternatively, they argued that DUI is not a lesser included offense of vehicular assault-DUI because (1) vehicular assault-DUI can be committed by driving or operating a motor vehicle, whereas DUI requires proof that the defendant was driving a motor vehicle, and (2) "motor vehicle" is defined more narrowly in the traffic code than in the criminal code, such that DUI requires that the defendant drive a self-propelled device designed primarily for travel on the public highways, whereas vehicular assault-DUI can be committed by driving or operating any self-propelled device by which persons or property may be transported by land, water, or air. The People thus argued that merger was inappropriate.

         ¶16 In a unanimous, unpublished decision, the division rejected the People's contention that Hill had waived his merger claim by not filing an objection at trial under Crim. P. 12(b)(2). Hill, slip op. at 2. The division instead determined that errors resulting in double jeopardy violations implicate fundamental rights, are obvious, and affect the fairness and integrity of the proceedings, thus warranting plain error review. Id. at 15-16.

         ¶17 The division then proceeded to apply the version of the strict elements test providing that "an offense is included in another offense if establishing the statutory elements of the greater offense necessarily establishes all the elements of the lesser offense." Id. at 17. Applying this test to Hill's convictions, the division agreed with the People that because the criminal code's definition of "motor vehicle" is broader than the traffic code's definition of "motor vehicle, " vehicular assault-DUI can be committed in ways that DUI cannot, and thus, a defendant can commit vehicular assault-DUI without necessarily committing DUI. Id. at 19-22. Accordingly, the division concluded that DUI is not a lesser included offense of vehicular assault-DUI. Id. at 22.

         ¶18 Hill petitioned this court for a writ of certiorari on the issue of whether DUI is a lesser included offense of vehicular assault-DUI. The People cross-petitioned on the issue of whether a double jeopardy claim can be raised for the first time on appeal. We granted both petitions.

         C. Smoots

         ¶19 The People charged Ruben Charles Smoots with a number of counts arising from a motor vehicle accident, including, as pertinent here, vehicular assault-DUI and DUI. As in both Reyna-Abarca and Hill, Smoots did not challenge the charges under Crim. P. 12(b)(2).

         ¶20 A jury ultimately found Smoots guilty of both DUI and vehicular assault-DUI. Smoots did not contend during or prior to sentencing that his convictions for both DUI and vehicular assault-DUI violated his double jeopardy rights.

         ¶21 Smoots appealed and argued for the first time that DUI is a lesser included offense of vehicular assault-DUI and, thus, his convictions for both violated double jeopardy principles. As in Hill, the People contended that (1) Smoots had waived his double jeopardy claim by not filing an objection at trial pursuant to Crim. P. 12(b)(2) and (2) alternatively, DUI is not a lesser included offense of vehicular assault-DUI because vehicular assault-DUI can be committed by operating a car, truck, boat, or plane, whereas DUI can be committed only by driving a vehicle intended for use on public highways.

         ¶22 In a published decision, the division unanimously rejected the People's contention that Smoots had waived his double jeopardy claim by not raising it under Crim. P. 12(b)(2). Smoots, ¶ 15. The division instead reviewed the unpreserved double jeopardy challenge for plain error. Id. at ¶ 14. The division split, however, on the merits of Smoots's double jeopardy claim. As pertinent here, the majority applied the version of the strict elements test providing that a party establishes that one crime is a lesser included offense of another "by showing that proof of the same or less than all of the facts required to establish commission of the greater offense will also establish commission of the lesser offense." Id. at ¶¶ 16, 23. The majority ultimately determined that although the definition of "motor vehicle" that applies to vehicular assault-DUI is broader than the definition that applies to DUI, and although vehicular assault-DUI can be committed by either operating or driving a motor vehicle whereas DUI can be committed only by driving, Smoots's act of driving a car under the influence of alcohol satisfied elements common to both statutes. Id. at ¶¶ 21-23. Accordingly, the majority concluded that Smoots's conviction for vehicular assault-DUI necessarily included his conviction for DUI, and therefore, the division vacated Smoots's DUI conviction. Id. at ¶¶ 24-25.

         ¶23 Judge Furman specially concurred, expressing his view that the version of the strict elements test set forth in Boulies v. People, 770 P.2d 1274, 1278-81 (Colo. 1989), was more appropriate for cases like the present one, which involve a greater offense statute that provides alternative bases for prosecution. Id. at ¶ 26 (Furman, J., specially concurring). Accordingly, Judge Furman would have analyzed the charges actually brought in this case before comparing the statutory elements of the offenses. Id. at ¶¶ 27-28. Applying that analysis led him to conclude that DUI is a lesser included offense of vehicular assault-DUI. Id. at ¶ 29.

         ¶24 Judge Miller dissented. As pertinent here, he agreed with the analyses adopted by the divisions in Reyna-Abarca, Hill, and Medrano-Bustamante and thus concluded that DUI is not a lesser included offense of vehicular assault-DUI Id. at ¶¶ 33-39 (Miller, J, concur ring in part and dissenting in part).

         ¶25 The People petitioned this court for certiorari review, and we granted that petition.

         D. Medrano-Bustamante

         ¶26 The People charged Jorge Arturo Medrano-Bustamante with, among other things, vehicular assault-DUI, vehicular homicide-DUI, and DUI. As in the above-described cases, Medrano-Bustamante ...


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