People v. Lee, Court of Appeals No. 19CA0482

Decision Date22 August 2019
Docket NumberCourt of Appeals No. 19CA0482
Citation477 P.3d 732
Parties The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Dearies Deshonne Austin LEE, Defendant-Appellee.
CourtColorado Court of Appeals

George H. Brauchler, District Attorney, Jacob Edson, Chief District Deputy Attorney, Centennial, Colorado, for Plaintiff-Appellant

Megan A. Ring, Colorado State Public Defender, Alison E. Blackwell, Deputy State Public Defender, Centennial, Colorado, for Defendant-Appellee

Opinion by JUDGE FREYRE

¶ 1 In this People's appeal, brought under section 16-12-102(1), C.R.S. 2018, and C.A.R. 4(b)(3), we are asked to decide an issue left unresolved by another division in People v. Slaughter , 2019 COA 27, 439 P.3d 80. The Slaughter division held that charging a defendant with second degree assault by strangulation under section 18-3-203(1)(i), C.R.S. 2018, (strangulation subsection), and a crime of violence count under section 18-1.3-406(2)(a)(I)(A), C.R.S. 2018, violated his right to equal protection because the penalty was substantially more severe than if the defendant were charged with second degree assault under section 18-3-203(1)(b) (deadly weapon subsection), a per se crime of violence, for the same conduct. Consequently, the division affirmed the district court's order dismissing the crime of violence counts attached to the strangulation charges.

¶ 2 Here, we must decide whether a defendant may be charged with strangulation under both the deadly weapon and strangulation subsections of the second degree assault statute.1 We hold that a defendant may not be charged under both subsections for two reasons. First, we conclude that charging the same conduct under both subsections would violate a defendant's right to equal protection because the subsections carry different maximum penalties. Second, we conclude, from the legislative history, that when the General Assembly amended the second degree assault statute to add the strangulation subsection, it intended all strangulation conduct to be charged under this specific subsection, rather than under the more general deadly weapon subsection. Accordingly, we affirm the district court's order dismissing the second degree assault deadly weapon and crime of violence counts filed against the defendant, Dearies Deshonne Austin Lee.

I. Procedural Background

¶ 3 The prosecution originally charged Mr. Lee with two counts of second degree assault under section 18-3-203(1)(i) (strangulation subsection), one count of child abuse under section 18-6-401(1), (7)(b)(I), C.R.S. 2018, and a crime of violence sentence enhancer under section 18-1.3-406(2)(a)(I)(A). The prosecution later added a habitual child abuser sentence enhancer, under section 18-6-401.2, C.R.S. 2018, and two second degree assault charges under section 18-3-203(1)(b) (deadly weapon subsection). It also amended the crime of violence count to attach to all four second degree assault counts.

¶ 4 Shortly after Slaughter was announced, Mr. Lee moved to dismiss the second degree assault deadly weapon counts and the crime of violence sentence enhancer. After a hearing, the court granted Mr. Lee's motion. It concluded that a conviction under the deadly weapon subsection could produce a more severe penalty than a conviction under the strangulation subsection for the same conduct and thus, that a potential equal protection violation existed. It dismissed the crime of violence counts based on Slaughter .

¶ 5 On appeal, the People contend that the district court erroneously interpreted Slaughter . They rely on dicta in the case stating, "the prosecution, at least in theory, could have charged [the defendant] with second degree assault (not specifying acts amounting to strangulation) under section 18-3-203(1)(b) [the deadly weapon subsection]." Id . at ¶ 20. We agree with Slaughter's holding. But, to the extent the Slaughter division intended to suggest that a defendant can be charged with strangulation under both the deadly weapon and strangulation subsections, we disagree with it, because the legislative history, extensively discussed in Slaughter , reveals a contrary intent. Moreover, charging a defendant with the same strangulation conduct under both subsections would violate a defendant's right to equal protection, an issue the Slaughter division did not consider.

II. Second Degree Assault Strangulation Conduct May Be Charged Only Under Section 18-3-203(1)(i)
A. Standard of Review and Law

¶ 6 We review a court's legal conclusions and its dismissal of charges de novo. People v. Porter , 2015 CO 34, ¶ 8, 348 P.3d 922. We also interpret statutes de novo. In re Estate of King , 2019 COA 82, ¶ 11, 444 P.3d 863. When interpreting a statute, our primary goal is to ascertain and give effect to the General Assembly's intent. Cowen v. People , 2018 CO 96, ¶ 11, 431 P.3d 215. To do so, we examine the plain meaning of the statutory language. Id . We give consistent effect to all its parts and construe each provision in harmony with the overall statutory design. Id .

¶ 7 Before 2016, the People could charge manual strangulation resulting in bodily injury as a felony only under section 18-3-203(1)(b), which provides:

(1) A person commits the crime of assault in the second degree if:
...
(b) With intent to cause bodily injury to another person, he or she causes such injury to any person by means of a deadly weapon[.]

Consequently, to obtain a felony conviction in the case of a manual strangulation, the prosecution was required to prove that the defendant's hands were a deadly weapon.

¶ 8 Second degree assault with a deadly weapon is a class four felony and constitutes a per se crime of violence. See § 18-3-203(2)(b) ; see also § 18-1.3-406(2)(a)(I)(A), (II)(C). A crime of violence conviction requires a court to sentence a defendant to prison for a term of at least the midpoint of the presumptive range but no more than twice the maximum of the presumptive range. § 18-1.3-401(8)(a)(I), C.R.S. 2018. However, in 2016 the General Assembly created an exception to this requirement for some second degree assault convictions, including under the deadly weapon subsection. Ch. 181, sec. 1, § 18-3-203, 2016 Colo Sess. Laws 620. This exception at section 18-3-203(2)(c)(II) provides:

If a defendant is convicted of assault in the second degree pursuant to paragraph (b), (c), (d), or (g) of subsection (1) of this section, the court shall sentence the offender in accordance with section 18-1.3-406 ; except that, notwithstanding the provisions of section 18-1.3-406, the court is not required to sentence the defendant to the department of corrections for a mandatory term of incarceration.

Consequently, a defendant convicted of second degree assault with a deadly weapon may be sentenced to probation or community corrections, but the length of any sentence, including one to prison, must be in the range of five to sixteen years. See § 18-1.3-401(8)(a)(I).

¶ 9 In the same 2016 legislative session, the General Assembly added the strangulation subsection to the second degree assault statute. Ch. 327, sec. 2, § 18-3-203, 2016 Colo. Sess. Laws 1328. This subsection provides that a person commits second degree assault when,

[w]ith the intent to cause bodily injury, he or she applies sufficient pressure to impede or restrict the breathing or circulation of the blood of another person by applying such pressure to the neck or by blocking the nose or mouth of the other person and thereby causes bodily injury.

§ 18-3-203(1)(i). This subsection allowed the prosecution, for the first time, to obtain a felony conviction for strangulation without the burden of proving that hands were a deadly weapon. And because this subsection does not include a deadly weapon element, it is not a per se crime of violence and thus is not listed in section 18-3-203(2)(c)(II) ’s crime of violence exception. Rather, it is an extraordinary risk crime under section 18-1.3-401(10)(b)(XVIII). Therefore, a defendant convicted of strangulation can be sentenced to probation, community corrections, or prison for a period of two to eight years, see id .; § 18-1.3-401(1)(a)(V)(A), and cannot be charged with the crime of violence sentence enhancer, Slaughter , ¶ 52.

¶ 10 As noted in Slaughter and as the statutory language reveals, the potential for disparate charges and sentencing arising from the same strangulation conduct "renders ambiguous the statutory scheme for the charging and sentence of second degree assault by strangulation." Id . at ¶ 23. Therefore, as the Slaughter division did, we delve into the legislative history of the 2016 amendments to determine the General Assembly's intent in adding the strangulation provision to the second degree assault statute and whether it contemplated strangulation charges arising under multiple provisions of the statute. See § 2-4-203(1)(c), C.R.S. 2018 (courts may consider legislative history as an aid in construing ambiguous statutes); see also Frazier v. People , 90 P.3d 807, 811 (Colo. 2004) (when a statute conflicts with other provisions, an appellate court may look to legislative history).

B. Legislative History

¶ 11 The strangulation subsection originated as House Bill 16-1080. Slaughter , ¶ 25. Before its introduction, prosecutors routinely charged manual strangulation resulting in bodily injury under the deadly weapon subsection, § 18-3-203(1)(b), which required them to prove that hands were a deadly weapon. See Slaughter , ¶ 26. Such proof often required expert testimony. In rural jurisdictions, prosecutors found it difficult to retain such experts and, consequently, frequently obtained verdicts for the lesser offense of misdemeanor third degree assault (requiring proof of bodily injury without a deadly weapon). See id. ; Assault by Strangulation: Hearing on H.B. 16-1080 before H. Judiciary Comm. , 70th Gen. Assemb., 2d Reg. Sess. (Feb. 9, 2016) (statements of Rep. Mike Foote, Member, H. Judiciary Comm., sponsor of H.B. 16-1080, and Mark Hurlbert, ...

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  • People v. Lee
    • United States
    • Colorado Supreme Court
    • November 23, 2020
    ...a unanimous, published opinion, a division of the court of appeals affirmed this dismissal order. People v. Lee , 2019 COA 130, ¶¶ 20, 28, 477 P.3d 732. We granted certiorari to consider the equal protection question.1 ¶3 We now conclude that under prevailing Colorado equal protection princ......

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