People v. Garcia

Citation940 P.2d 357
Decision Date23 June 1997
Docket NumberNo. 96SC206,96SC206
Parties21 Colorado Journal 860 The PEOPLE of the State of Colorado, Petitioner, v. Mark Anthony GARCIA, Respondent.
CourtSupreme Court of Colorado

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert Mark Russel, First Assistant Attorney General, M. Catherine Duba, Assistant Attorney General, Criminal Enforcement Section Denver, for Petitioner.

Newell and Martens, Steven P. Martens, Kevin C. Massaro, Denver, for Respondent.

Justice MULLARKEY delivered the Opinion of the Court.

We granted certiorari to consider whether the court of appeals erred in People v. Garcia, 920 P.2d 878 (Colo.App.1996), in reversing the first degree criminal trespass conviction of Mark Anthony Garcia (Garcia). Because Garcia was not charged with first degree criminal trespass and because the jury was instructed on that crime at the prosecution's request and over the defendant's objection, the court of appeals reasoned that first degree criminal trespass could be submitted to the jury only if it were a lesser included offense of the charged crime, second degree burglary. After finding that first degree criminal trespass is not such a lesser included offense, the court of appeals held that first degree criminal trespass could not be submitted to the jury over the defendant's objection and reversed Garcia's conviction. We reverse the court of appeals.

For the purpose of due process notice, the distinction between a sentence enhancement factor and a statutory element of an offense is irrelevant when the factor is specifically alleged in the charging document. Under such circumstances, an uncharged offense may be submitted to the jury over the defendant's objection if either (1) the uncharged offense is a lesser included offense of the charged offense, or (2) the offense as charged gives fair notice to the defendant that he may be required to defend against the uncharged offense. Thus, we hold that, because Garcia was charged with second degree burglary of a dwelling in the complaint and information, he had proper notice of the lesser charge of first degree criminal trespass. We therefore reverse the court of appeals' decision and remand the case to that court.

I.

Garcia was charged with class three felony second degree burglary, 1 arising from an alleged burglary of Maria Casillas's (Casillas) apartment, which was located across the hall from his apartment. Casillas alleged that on April 3, 1994, she returned to her apartment in the afternoon and was unable to turn her key in her deadbolt lock to unlock it. However, she was able to unlock the lock on her doorknob. She testified that she felt that someone was holding the deadbolt lock from the inside and that she heard someone in her apartment. She further alleged that she then walked away from the doorway to her apartment and down the hallway, from where she kept an eye on her apartment vestibule. Because her apartment door was recessed from the hallway, she was unable to see her apartment door from her vantage point. She testified that she saw Garcia peek his head out from the recess in the hallway which enclosed her apartment door. She also testified that Garcia then saw her, shrugged his shoulders, and walked across the hall into his apartment.

Garcia was initially charged with class three felony second degree burglary. At trial, the People requested and received, over Garcia's objection, an instruction on first degree criminal trespass as a lesser included offense, and Garcia was convicted of the lesser offense. He appealed his conviction to the court of appeals, arguing that the trial court's submission of first degree criminal trespass over his objection violated his due process right to notice of the charges against him because first degree criminal trespass contained an element not shared by second degree burglary. The defendant contended that the lack of notice denied him the opportunity to prepare a defense to the charge submitted to the jury.

The court reversed Garcia's conviction on the grounds that first degree criminal trespass is not a lesser included offense of second degree burglary. See Garcia, 920 P.2d at 879. The court of appeals arrived at its decision by applying the test for determining lesser included offenses as laid out in Armintrout v. People, 864 P.2d 576 (Colo.1993). See Garcia, 920 P.2d at 879. This test requires a comparison of the elements of the statutes involved, rather than the evidence produced at trial, and omits sentence enhancement factors from consideration. See Armintrout, 864 P.2d at 579.

Section 18-4-203, 8B C.R.S. (1986), provides in relevant part:

Second degree burglary. (1) A person commits second degree burglary, if he knowingly breaks an entrance into, or enters, or remains unlawfully in a building or occupied structure with intent to commit therein a crime against a person or property.

(2) Second degree burglary is a class 4 felony, but it is a class 3 felony if:

(a) It is a burglary of a dwelling; ....

§ 18-4-203, 8B C.R.S. (1986) (emphasis added).

Section 18-4-502, 8B C.R.S. (1994 Supp.), provides in relevant part:

First degree criminal trespass. A person commits the crime of first degree criminal trespass if such person knowingly and unlawfully enters or remains in a dwelling of another ...

§ 18-4-502, 8B C.R.S. (1994 Supp.) (emphasis added).

Comparing the statutory definitions of second degree burglary and first degree criminal trespass, the court of appeals found that first degree criminal trespass requires that a person break, enter, or remain unlawfully in a "dwelling of another," while second degree burglary only requires that the unlawful entry be of a "building or occupied structure." See Garcia, 920 P.2d at 879. The court of appeals observed that in our decision in Armintrout, we stated that, although second degree burglary becomes a class three felony where the "building or occupied structure" which is entered is a "dwelling," the element of "dwelling" functions as a sentence enhancer for second degree burglary rather than an essential element. See id. Further relying on Armintrout for the proposition that sentence enhancers are not to be considered in determining lesser included offenses, the court concluded that first degree criminal trespass was not a lesser included offense of second degree burglary because it contained the additional element of entry of a "dwelling." See id. Relying on dicta of another panel of the court of appeals in People v. Skinner, 825 P.2d 1045 (Colo.App.1991), 2 the court of appeals in this case concluded that the trial court erred in submitting an instruction on first degree criminal trespass over Garcia's objection, because "[i]t is solely the prerogative of the defendant to request that a lesser non-included offense be submitted to the jury." Garcia, 920 P.2d at 880.

II.

We begin our analysis by reviewing the law on lesser included offenses and the situations in which this court has addressed the issue. There are several generally recognized approaches for determining lesser included offenses. See State v. Meadors, 121 N.M. 38, 908 P.2d 731, 735 (1995); Edward G. Mascolo, Procedural Due Process and the Lesser-Included Offense Doctrine, 50 Alb. L.Rev. 263, 273 (1985). The most common approaches for determining lesser included offenses include the following: (1) the statutory or strict elements test; (2) the indictment or pleading theory; (3) the inherent relationship test; and (4) the cognate-evidence test. See Meadors, 908 P.2d at 735. The most restrictive approach is the statutory or strict elements test, which involves solely a comparison of the statutory elements of the two offenses. Under this test, 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. See Schmuck v. United States, 489 U.S. 705, 716, 109 S.Ct. 1443, 1450-51, 103 L.Ed.2d 734 (1989); United States v. Browner, 937 F.2d 165, 167-68 (5th Cir.1991); People v. Rivera, 186 Colo. 24, 26, 525 P.2d 431, 433 (1974).

Under the indictment or pleading theory, one offense is the lesser included of another when the allegations of the greater offense as charged, if taken as true, would prove all of the essential elements of the lesser offense. See Browner, 937 F.2d at 168; Meadors, 908 P.2d at 735. The inherent relationship test provides that one offense is included in another when "the facts as alleged in the indictment and proved at trial support the inference that the defendant committed the less serious offense, and an 'inherent relationship' exists between the two offenses." Schmuck v. United States, 489 U.S. at 708-09, 109 S.Ct. at 1447. An inherent relationship is found when the two offenses "relate to the protection of the same interests and the proof of the greater offense can generally be expected to require proof of the lesser offense." Id. at 709, 109 S.Ct. at 1447.

The cognate-evidence approach involves a consideration of both the statutory elements and the evidence adduced at trial. This test provides that one offense is the lesser included of another when, under the facts of the specific case, "the lesser offense is sufficiently related to the charged offense to warrant a jury instruction on the former." Meadors, 908 P.2d at 735.

The determination of lesser included offenses has arisen in three different contexts in Colorado: (1) double jeopardy/statutory merger claims; (2) a defendant's request for an instruction on a lesser offense; and (3) the prosecution's request for an instruction on a lesser offense. This case involves the last issue: the prosecution's...

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