People v. Nguyen, 94SA317

Decision Date26 June 1995
Docket NumberNo. 94SA317,94SA317
Citation900 P.2d 37
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Duc NGUYEN, Defendant-Appellee.
CourtColorado Supreme Court

David J. Thomas, Dist. Atty., Donna Skinner Reed, Chief Appellate Deputy Dist. Atty., Golden, for plaintiff-appellant.

David F. Vela, State Public Defender, Karen M. Gerash, Deputy State Public Defender, Denver, for defendant-appellee.

Justice MULLARKEY delivered the Opinion of the Court.

The People appeal an order of the district court vacating two of defendant Duc Nguyen's convictions of second degree assault on grounds that the section of the second degree assault statute under which he was convicted, section 18-3-203(1)(b), 8A C.R.S. (1986), violates constitutional equal protection guarantees. 1 U.S. Const. Amend. XIV; Colo. Const. art. II, § 25. The People and Duc Nguyen agree that the district court erred in striking the substantive portion of the statute and vacating the convictions. They also agree that the case must be remanded for resentencing. However, they disagree on the portion of the statute that should be severed to cure the constitutional defect. We hold that the appropriate remedy is to strike the mandatory crime of violence sentencing provision under section 18-3-203(2)(c) as it applies to attempted second degree assault under subsection (1)(b) and remand the case for resentencing as a class 4 felony.

I.

On July 7, 1992, Duc Nguyen participated in a "drive by" shooting in Jefferson County during which he fired a semi-automatic firearm in the general direction of three teenaged boys, Binny Quintana, Michael Peterson, and Jason Smith. One bullet struck Michael Peterson in the ankle. The other two boys were not injured.

A jury found Duc Nguyen guilty of attempted manslaughter 2 and three counts of second degree assault. 3 The court sentenced Duc Nguyen to four years in the Department of Corrections for attempted manslaughter; fourteen years for second degree assault on Michael Peterson; ten years for second degree assault on Binny Quintana; and ten years for second degree assault on Jason Smith. The three sentences for second degree assault were to run consecutively to each other and concurrently with the four-year sentence for attempted manslaughter.

Duc Nguyen appealed his convictions to the court of appeals and then filed a motion with the court of appeals for limited remand to the district court for consideration of a Crim.P. 35(c) motion. The Crim.P. 35(c) motion requested that the district court vacate his convictions for second degree assault on Quintana and Smith or resentence him for the two convictions in the presumptive range for class 5 felonies on grounds that the statute under which he was convicted violated equal protection. The court of appeals granted the motion for limited remand.

On limited remand, the trial court found section 18-3-203(1)(b), under which Duc Nguyen was convicted, to be a violation of equal protection guarantees under the United States and Colorado Constitutions because the statute imposed more severe penalties for attempted second degree assault 4 than for the more severe crime of attempted first degree assault. On a second limited remand from the court of appeals to grant "relief as the trial court deems appropriate," the trial court vacated Duc Nguyen's two convictions for attempted second degree assault.

On appeal to this court, the People concede that the second degree assault statute violates equal protection guarantees. Likewise, Duc Nguyen concedes that the district court improperly vacated his convictions. The parties disagree on what portion of the statute must be severed to cure the constitutional defect.

II.

We agree with the parties that the second degree assault statute violates constitutional equal protection guarantees. While we have held that it is the prerogative of the legislature "to establish the penalties which are to apply to particular criminal offenses," People v. Bramlett, 194 Colo. 205, 210, 573 P.2d 94, 97 (1977), "[e]qual protection requires that statutory classifications of crimes be based on differences that are real in fact and are reasonably related to the purposes of the legislation." People v. Weller, 679 P.2d 1077, 1082 (Colo.1984). A legislative scheme that causes an offender who acts with less culpable intent and who causes the less grievous result to receive the greater penalty is "constitutionally infirm." Smith v. People, 852 P.2d 420, 422 (Colo.1993).

The statute under which Duc Nguyen was convicted and sentenced creates such an unconstitutional result. Section 18-3-203 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 causes or attempts to cause such injury to any person by means of a deadly weapon;

....

(2)(b) If assault in the second degree is committed without [heat of passion], it is a class 4 felony.

(c) If a defendant is convicted of assault in the second degree pursuant to paragraph (a), (b), (c), (d), or (g) of subsection (1) of this section, the court shall sentence the defendant in accordance with the provisions of section 16-11-309, C.R.S.

§ 18-3-203, 8B C.R.S. (1986 & 1994 Supp.) (emphasis added). 5 Section 16-11-309 requires that:

Any person convicted of a crime of violence shall be sentenced pursuant to section 18-1-105(9), C.R.S. to a term of incarceration of at least the midpoint of the presumptive range, but not more than twice the maximum term, provided for such offense in section 18-1-105(1)(a), C.R.S.

§ 16-11-309(1), 8A C.R.S. (1994 Supp.) (emphasis added). Pursuant to section 18-1-105(1)(a)(IV), a class 4 felony is subject to a presumptive penalty range from two to eight years. Thus, the presumptive sentencing range for attempted second degree assault with a deadly weapon is five to sixteen years.

In contrast, attempted first degree assault is subject to a presumptive sentencing range of two to eight years. The first degree assault statute provides:

A person commits the crime of assault in the first degree if:

(a) With intent to cause serious bodily injury to another person, he causes serious bodily injury to any person by means of a deadly weapon;

. . . . .

(2)(b) If assault in the first degree is committed without [heat of passion], it is a class 3 felony.

(c) If a defendant is convicted of assault in the first degree pursuant to paragraph (a), (c), (e), (e.5) or (f) of subsection (1) of this section, the court shall sentence the defendant in accordance with the provisions of section 16-11-309, C.R.S.

§ 18-3-202, 8B C.R.S. (1986 & 1994 Supp.) (emphasis added).

Since this statute does not include attempt within the definition of the crime of first degree assault, attempted first degree assault falls under the general criminal attempt statute, section 18-2-101. Section 18-2-101 provides:

(1) A person commits criminal attempt if, acting with the kind of culpability otherwise required for commission of an offense, he engages in conduct constituting a substantial step toward the commission of the offense.

. . . . .

(4) Criminal attempt to commit a class 1 felony is a class 2 felony; criminal attempt to commit a class 2 felony is a class 3 felony; criminal attempt to commit a class 3 felony is a class 4 felony; criminal attempt to commit a class 4 felony is a class 5 felony; criminal attempt to commit a class 5 or 6 felony is a class 6 felony.

§ 18-2-101, 8B C.R.S. (1986 & 1994 Supp.) (emphasis added). A person convicted of attempted first degree assault thus would be subject to sentencing within the presumptive range of two to eight years for a class 4 felony pursuant to section 18-1-105(1)(a)(IV).

Under this statutory scheme, the sentencing range for attempt to commit serious bodily injury with a deadly weapon (two to eight years) is less than the range for attempt to commit bodily injury with a deadly weapon (five to sixteen years). Accordingly, the second degree assault statute, section 18-3-203, violates equal protection guarantees because it imposes a harsher penalty for less serious criminal conduct than does the first degree assault statute, section 18-3-202.

When a statutory provision is found to be unconstitutional,

the remaining provisions of the statute are valid, unless it appears to the court that the valid provisions of the statute are so essentially and inseparably connected with, and so dependent upon, the void provision that it cannot be presumed the legislature would have enacted the valid provisions without the void one; or unless the court determines that the valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.

§ 2-4-204, 1B C.R.S. (1980). 6 Furthermore, "[i]n determining the severability of the sections of a statute, the court must look to legislative intent." Colorado Project-Common Cause v. Anderson, 177 Colo. 402, 404, 495 P.2d 218, 219 (1972). The disputed issue in this case is which provision of the statute must be severed to remedy the constitutional defect.

The People argue that the appropriate treatment of the second degree assault statute is to strike the crime of violence sentencing provision as it applies to attempted second degree assault under section 18-3-203(1)(b). This solution would make attempted second degree assault under section 18-3-203(1)(b) a class 4 felony subject to the same presumptive range of penalty as attempted first degree assault. Duc Nguyen disagrees and argues that the equal protection violation remains if both offenses are subject to the same punishment because attempted second degree assault is a less serious offense. He contends that the "only constitutional construction of subsection (1)(b) is to strike the attempt language from the substantive provision, and to sentence Duc Nguyen in accordance with the general attempt statute...

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2 books & journal articles
  • ARTICLE 3
    • United States
    • Colorado Bar Association C.R.S. on Family and Juvenile Law (2022 ed.) (CBA) Title 18 Criminal Code
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    • Colorado Bar Association C.R.S. on Family and Juvenile Law (CBA) Title 18 Criminal Code
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