Garcia v. People
| Decision Date | 26 April 1971 |
| Docket Number | No. 23893,23893 |
| Citation | 174 Colo. 372,483 P.2d 1347 |
| Parties | Fred GARCIA, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Edward H. Sherman, Truman E. Coles, Public Defenders, Robert T. Burns, Deputy Public Defender, David G. Manter, Asst Public Defender, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., James F. Pamp, Aurel M. Kelly, Asst. Attys. Gen., Denver, for defendant in error.
The defendant was charged with the burglary of a drug store. Trial by jury resulted in a verdict of guilty. The defendant seeks reversal, alleging that: (1) the trial court erred in refusing to instruct the jury on criminal trespass as a lesser included offense; (2) the court erred in denying defendant's motion for judgment of acquittal; and (3) the court erred in admitting into evidence, over defendant's objection, a 1956 robbery conviction for impeachment purposes.
The case was set for oral argument in this court on March 10, 1971. On March 3, 1971, counsel for the parties filed with the court, a statement requesting a decision upon the briefs of the respective parties without oral argument pursuant to C.A.R. 34(f). The statement was in accord with the Standards of Criminal Justice, as they relate to the obligations of counsel for the defendant on appeal, set forth in McClendon v. People, Colo., 481 P.2d 715.
In the statement, the parties also agreed that as to two of the assignments of error, opinions announced by this court subsequent to the time that this case became at issue 'disposed' of defendant's contentions. We do not rely solely upon the parties' agreement in making our decision. It is our responsibility to consider each issue raised by the defendant in his motion for new trial and preserved in his briefs on appeal and make our own determination as to whether subsequent decisions (or any decisions) have, in fact, disposed of the issues raised under the circumstances of this case.
Defendant's assignment of error (1) is based upon the refusal of the trial court to instruct the jury that criminal trespass, a misdemeanor, is a lesser included offense of the crime of burglary. Counsel for the parties, in reference to this assignment of error stated:
'That the first assignment of error of the defendant has been disposed of by decision of the Supreme Court since the filing of the briefs herein in Howard v. People, Colo., 477 P.2d 378.'
In Howard v. People, Supra, the case which is the basis of their statement, this court announced a rule of law which is the antithesis of the defendant's contention.
A view of the salient facts in the instant case shows the similarity between this case and the Howard case, Supra.
The Rocky Mountain Pharmacy had a glass panel broken in one of its front doors as the result of a windstorm. An alarm company placed a board over the opening and then installed wires around the board so that if the board were broken, a silent alarm would sound at police headquarters.
On December 22, 1967, at approximately 2:35 a.m., two police officers responded to a silent alarm at the pharmacy. Upon their arrival, they discovered the board which was used to cover the broken door panel lying inside the pharmacy. The officers entered the pharmacy and upon hearing voices, proceeded to the rear of the store. One of the officers turned his flashlight into a small aisle and discovered the defendant in a crouching position. The defendant had a white handkerchief covering his face, stockings covering his hands and a knife in his pocket. One of the officers testified that upon his arrest, the defendant asked how the officers knew he was in the store. The officers informed him of the silent alarm.
The defendant's testimony in defense of the charge was in substance that he had been drinking, observed the board off the window, blacked out, and the next thing he remembers he was being arrested. One of the officers testified that he observed nothing abnormal in the defendant's behavior with respect to drinking.
In Howard, under strikingly similar circumstances, we held that the crime of criminal trespass contains essential elements which are not elements of the offense of burglary and consequently, criminal trespass is not a lesser included offense of that crime. C.R.S. 1963, 40--3--8.
We agree with the defendant's premise, in assignment of error (2), that specific intent to commit a specific felony is an essential element of the offense of burglary. Gomez v....
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People v. Williams, 98SC109.
...for the proposition that a burglary count is fatally defective where it fails to specify the underlying crime); Garcia v. People, 174 Colo. 372, 374, 483 P.2d 1347, 1348 (1971) (stating that "specific intent to commit a specific felony is an essential element of the offense of burglary"); S......
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Jimenez v. Sessions
...held that "specific intent to commit a specific felony is an essential element of the offense of burglary." Garcia v. People, 174 Colo. 372, 483 P.2d 1347, 1349 (1971). But those cases interpreted a prior version of the burglary statute that listed a number of particular ulterior crimes. Wi......
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People v. Yeager, 25607
...500 P.2d 125 (1972); Mays v. People, Colo., 493 P.2d 4 (1972); Taylor v. People, 176 Colo. 316, 490 P.2d 292 (1971); Garcia v. People, 174 Colo. 372, 483 P.2d 1347 (1971); Nunez v. People, 173 Colo. 236, 477 P.2d 366 (1970). The defendant, however, contends that the Lee test is no longer va......
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Marn v. People, 23879
...that the case be submitted on briefs without oral argument as was done here. McClendon v. People, Colo., 481 P.2d 715, and Garcia v. People, Colo., 483 P.2d 1347. Briefly stated the evidence presented by the People at the trial came from six witnesses and was to the effect that the victim h......