People v. Garcia, 97CA1772.

• Citation: 1 P.3d 214
• Decision Date: 08 July 1999
• Docket Number: No. 97CA1772.,97CA1772.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Manuela S. GARCIA, Defendant-Appellant.
• Court: Colorado Court of Appeals

1 P.3d 214

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Manuela S. GARCIA, Defendant-Appellant.

No. 97CA1772.

Colorado Court of Appeals, Div. III.

July 8, 1999.

As Modified on Denial of Rehearing September 2, 1999.

Certiorari Granted May 22, 2000.

Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McLachlan, Solicitor General, Matthew S. Holman, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Ann M. Roan, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge CASEBOLT.

Defendant, Manuela S. Garcia, appeals the judgment of conviction entered on jury verdicts finding her guilty of second degree murder and crime of violence. We reverse and remand for a new trial.

On July 25, 1996, defendant killed her husband with an axe. Defendant testified that this occurred after he attempted to sexually assault her. She also testified that he had verbally, physically, and sexually assaulted her frequently during their marriage.

I.

Defendant contends the trial court's instructions to the jury incorrectly characterized second degree murder in response to provocation as a lesser-included offense of first and second degree murder. She contends the court incorrectly instructed the jury that it was the prosecution's burden to prove each element of heat of passion beyond a reasonable doubt. That erroneous instruction, she contends, especially when considered in conjunction with misleading comments made by the prosecutor during closing arguments, impermissibly lessened the prosecution's burden of proof because its wording did not require the prosecution to prove a lack of provocation beyond a reasonable doubt. We agree.

Defendant did not object at trial to the jury instructions concerning which she now complains. Hence, our task is to ascertain whether such error amounted to plain error; that is, whether it substantially affected a fundamental right of the defendant and casts serious doubt upon the fairness of the trial proceedings and the validity of the conviction. Thomas v. People, 820 P.2d 656 (Colo.1991).

To prevail on a claim of instructional plain error, the defendant must demonstrate not only that the instruction affected a substantial right, but also that the record reveals a reasonable possibility that the error contributed to the conviction. See Bogdanov v. People, 941 P.2d 247 (Colo.1997)

.

A.

Defendant's contention requires analysis of § 18-3-103, C.R.S.1998. In pursuing that analysis, we must identify and give effect to the intent of the General Assembly, and to determine such intent, we look first to the statutory language. People v. Terry, 791 P.2d 374 (Colo.1990).

Section § 18-3-103, C.R.S.1998, defining second degree murder, was amended effective July 1, 1996, to include § 18-3-103(3)(b), C.R.S.1998. That subsection provides that second degree murder, ordinarily a class two felony, is reduced to a class three felony if the act causing the death was performed upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the defendant sufficiently to excite an irresistible passion in a reasonable person.

The statute was amended in response to concerns about confusing jury instructions dealing with second degree murder and heat of passion manslaughter that had left jurors uncertain as to whether they must first decide that a defendant was not guilty of second degree murder before determining whether heat of passion manslaughter had been proven. See generally People v. Wadley, 890 P.2d 151 (Colo.App.1994)

; People v. Seigler, 832 P.2d 980 (Colo.App.1991). Basically, the amendment was intended to parallel the treatment of heat of passion in the first degree assault statute. See Hearings on H.B. 1087 before the House Judiciary Committee, 60th General Assembly, Second Regular Session (February 16, 1996).

Before the amendment, heat of passion manslaughter was a separate crime under § 18-3-104, C.R.S.1998, and was classified as a class three felony. See Colo. Sess. Laws 1993, ch. 322 at 1896. The change in the statutory scheme creates one single crime of second degree murder with two different felony levels, depending upon whether the facts in a particular case demonstrate the existence of heat of passion. Essentially, the General Assembly eliminated the offense of heat of passion manslaughter and amended § 18-3-103 to make provocation a factor in mitigation of second degree murder. See § 18-3-103(3)(b), C.R.S.1998; Walker v. People, 932 P.2d 303 (Colo.1997) (in dictum in fn. 5, provocation identified as factor in mitigation of second degree murder under amended statute).

This analysis is confirmed by a review of Rowe v. People, 856 P.2d 486 (Colo.1993), in which the first degree assault statute, containing provocation language virtually identical to the statute involved here, was at issue.

In Rowe, the supreme court concluded that provocation constituted a statutory mitigating factor that would reduce a defendant's sentence for first degree assault, and that provocation did not constitute a separate offense. The court noted that the elements of provocation were contained in the subsection that dealt exclusively with sentencing, rather than in the subsection describing the elements of the offense. See § 18-3-202, C.R.S.1998.

Based on that interpretation, the Rowe court determined the trial court had erred by instructing the jury that first degree assault committed under provocation was a lesser-included offense of first degree assault. The court found that the jury, in effect, was instructed on, and convicted the defendant of, an offense that did not exist.

Similarly, here, § 18-3-103 sets forth the elements of provocation in the subsection that deals exclusively with sentencing, rather than in the subsection describing the elements of the offense. Consequently, we conclude that, as in the statute at issue in Rowe, provocation is a statutory mitigating factor that will, if proven, reduce a defendant's sentence for second degree murder, but it is not an element of a separate offense. See Rowe v. People, supra.

Here, after instructing the jury on the charged offenses of first degree murder and violent crime, the trial court gave a collective instruction on the elements of the "lesser offenses" of second degree murder and "second degree murder-provocation."

The instruction listed the elements of each of those two "lesser offenses" as separate offenses and stated that the two lesser offenses were "necessarily included" in the offense of first degree murder. The instruction also stated that the burden of proof was upon the prosecution to prove beyond a reasonable doubt the facts necessary to establish heat of passion. Finally, the instruction stated that the jury could not find defendant guilty of more than one of the offenses, first degree murder, second degree murder, or second degree murder-provocation. The verdict form paralleled these instructions.

We agree with defendant that the instructions inaccurately characterized second degree murder-provocation as a lesser-included offense of first degree murder under this new statutory scheme. Thus, the jury was incorrectly instructed that, before it could return a verdict of second degree murder-provocation, the prosecution was required to prove the elements of provocation beyond a reasonable doubt. Instead, the jury should have been instructed that the prosecution had to prove a lack of provocation beyond a reasonable doubt.

Hence, the jury was not required to make a finding with regard to heat of passion and was affirmatively told it could not convict defendant of second degree murder-provocation unless the prosecution had proved beyond a reasonable doubt the facts necessary to establish heat of passion. Moreover, as instructed, the jury was not required to make any finding on the issue of provocation before returning a guilty verdict of second degree murder.

In Rowe v. People, supra,

the court ruled the jury should have been instructed in accord with COLJI-Crim. No. 10:20 (1983) which provides:

If you find the defendant not guilty of [Count No. ___], [First] [Second] Degree Assault, you need not consider this instruction. If, however, you find the defendant guilty of [Count No. ___] [First] [Second] Degree Assault, you must then consider the issue of provocation.

The evidence in this case has raised the issue of provocation. Provocation means that the defendant's acts were performed, not after deliberation, but upon a sudden heat of passion caused by a serious and highly provoking act of the intended victim which affected the defendant sufficiently to excite such an irresistible passion in a reasonable person.

It is the burden of the prosecution to prove beyond a reasonable doubt a lack of provocation for the defendant's acts. You should indicate on the provided verdict form whether or not you find that the prosecution has proven a lack of provocation beyond a reasonable doubt.

An analogous instruction pertaining to murder should have been given here.

B.

The People concede that the second degree murder statute is structured like the statute at issue in Rowe. However, they argue that here, unlike in Rowe, the jury was instructed that second degree murder and second degree murder-provocation were each lesser-included offenses of first degree murder. The People assert that, because the instruction did not treat second degree murder-provocation as a lesser-included offense of second degree murder, it was not erroneous. We disagree.

Given our determination that second degree murder-provocation is not a separate offense, it is not a lesser offense of either first or second degree murder. See Rowe v. People, supra.

Relying upon Walker v. People, supra,

the People further assert that Rowe did not address the issue of how the burden to prove...