People v. Martinez, No. 80CA0303

Docket NºNo. 80CA0303
Citation640 P.2d 255
Case DateOctober 22, 1981
CourtCourt of Appeals of Colorado

Page 255

640 P.2d 255
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Peter MARTINEZ, Defendant-Appellant.
No. 80CA0303.
Colorado Court of Appeals, Div. I.
Oct. 22, 1981.
Rehearing Denied Nov. 19, 1981.
Certiorari Denied Jan. 25, 1982.

Page 256

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Gerard C. Boyle, Asst. Atty. Gen., Denver, for plaintiff-appellee.

J. Gregory Walta, Colorado State Public Defender, Linda J. Hotes, Deputy State Public Defender, Denver, for defendant-appellant.

ENOCH, Chief Judge.

Defendant, Peter Martinez, appeals the denial of his Crim.P. 35(b) (now 35(c)) motion to vacate judgment of guilty of misdemeanor theft and criminal trespass. We affirm.

According to the record, defendant entered the rear of a semi-trailer without permission and removed a carton of silk flowers. Defendant was found guilty by a jury of both first degree criminal trespass and misdemeanor theft. These convictions were appealed and affirmed in People v. Martinez, (Colo.App. No. 78-851, Sept. 20, 1979) (not selected for official publication).

Defendant now contends that the elements of first degree criminal trespass are included in the elements of misdemeanor theft, and that conviction of both offenses violated the double jeopardy provisions of the Colorado and United States Constitutions, and the express language of § 18-1-408(1)(a), C.R.S.1973 (1978 Repl.Vol. 8). We disagree.

Conviction of two crimes is prohibited where one offense is included in the other. See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); People v. Rivera, 186 Colo. 24, 525 P.2d 431 (1974); People v. Griffie, Colo.App., 610 P.2d 1079 (1980). An offense is included within another if it is impossible to commit one offense without also committing the other, or if the only difference between the charges is in the degree of mens rea required or in the severity of the injury inflicted by the criminal conduct. Section 18-1-408(5)(a), C.R.S.1973 (1978 Repl.Vol. 8), People v. Hancock, 186 Colo. 30, 525 P.2d 435 (1974); People v. Grant, 40 Colo.App. 46, 571 P.2d 1111 (1977). A determination of whether one offense is included in another must be based on a comparison of the statutes. Rivera, supra; People v. Sisneros, Colo.App., 606 P.2d 1317 (1980). Applying this test, we hold that first degree criminal trespass is distinct from misdemeanor theft.

The illegal act in first degree...

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6 practice notes
  • People v. Wentling, Court of Appeals No. 12CA1423
    • United States
    • Colorado Court of Appeals of Colorado
    • 3 Diciembre 2015
    ...into the vehicle. And this is so regardless of the crime the offender intends to commit within the vehicle.¶ 62 In People v. Martinez, 640 P.2d 255 (Colo.App.1981), a division of this court, in addressing a double jeopardy challenge to prosecution for both theft of a motor vehicle and first......
  • Armintrout v. People, No. 92SC697
    • United States
    • Colorado Supreme Court of Colorado
    • 13 Diciembre 1993
    ...more than one statute. § 18-1-408(7), 8B C.R.S. (1986); People v. Salas, 189 Colo. 111, 116, 538 P.2d 437, 441 (1975); People v. Martinez, 640 P.2d 255, 256 (Colo.App.1981). In this situation, the sentences imposed must run concurrently. § 18-1-408(3), 8B C.R.S. (1986). However, in the abse......
  • People v. Ball, No. 87CA0640
    • United States
    • Colorado Court of Appeals of Colorado
    • 11 Octubre 1990
    ...of multiple offenses arising out of a single transaction if the defendant has violated more than one statute. People v. Martinez, 640 P.2d 255 (Colo.App.1981); § 18-1-408(7), C.R.S. (1986 Repl.Vol. However, a defendant may not be convicted of more than one offense if one offense is included......
  • People v. Hood, No. 92CA0540
    • United States
    • Colorado Court of Appeals of Colorado
    • 10 Marzo 1994
    ...single transaction if the defendant has violated more than one statute. See § 18-1-408(7), C.R.S. (1986 Repl.Vol. 8B); People v. Martinez, 640 P.2d 255 (Colo.App.1981). However, a defendant may not be convicted of two crimes when one offense is included in the other. People v. Bartowsheski,......
  • Request a trial to view additional results
6 cases
  • People v. Wentling, Court of Appeals No. 12CA1423
    • United States
    • Colorado Court of Appeals of Colorado
    • 3 Diciembre 2015
    ...into the vehicle. And this is so regardless of the crime the offender intends to commit within the vehicle.¶ 62 In People v. Martinez, 640 P.2d 255 (Colo.App.1981), a division of this court, in addressing a double jeopardy challenge to prosecution for both theft of a motor vehicle and first......
  • Armintrout v. People, No. 92SC697
    • United States
    • Colorado Supreme Court of Colorado
    • 13 Diciembre 1993
    ...more than one statute. § 18-1-408(7), 8B C.R.S. (1986); People v. Salas, 189 Colo. 111, 116, 538 P.2d 437, 441 (1975); People v. Martinez, 640 P.2d 255, 256 (Colo.App.1981). In this situation, the sentences imposed must run concurrently. § 18-1-408(3), 8B C.R.S. (1986). However, in the abse......
  • People v. Ball, No. 87CA0640
    • United States
    • Colorado Court of Appeals of Colorado
    • 11 Octubre 1990
    ...of multiple offenses arising out of a single transaction if the defendant has violated more than one statute. People v. Martinez, 640 P.2d 255 (Colo.App.1981); § 18-1-408(7), C.R.S. (1986 Repl.Vol. However, a defendant may not be convicted of more than one offense if one offense is included......
  • People v. Hood, No. 92CA0540
    • United States
    • Colorado Court of Appeals of Colorado
    • 10 Marzo 1994
    ...single transaction if the defendant has violated more than one statute. See § 18-1-408(7), C.R.S. (1986 Repl.Vol. 8B); People v. Martinez, 640 P.2d 255 (Colo.App.1981). However, a defendant may not be convicted of two crimes when one offense is included in the other. People v. Bartowsheski,......
  • Request a trial to view additional results

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