People v. Rivera, No. 25620

Docket NºNo. 25620
Citation525 P.2d 431, 186 Colo. 24
Case DateAugust 06, 1974
CourtSupreme Court of Colorado

Page 431

525 P.2d 431
186 Colo. 24
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Peter RIVERA, Defendant-Appellant.
No. 25620.
Supreme Court of Colorado, En Banc.
Aug. 6, 1974.

[186 Colo. 25]

Page 432

John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., David A. Sorenson, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colo. State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Kenneth J. Russell, Don L. Nelson, Edwin L. Felter, Jr., Deputy State Public Defenders, Denver, for defendant-appellant.

DAY, Justice.

This is an appeal from a conviction of assault with the intent to commit murder. On rehearing the former opinion of this court is withdrawn and this one substituted therefor.

The facts as shown at trial were that the defendant and [186 Colo. 26] some friends were drinking at a tavern when the victim was shot. Some of the People's witnesses testified that the defendant fired the gun. There was

Page 433

considerable doubt generated during the questioning as to whether these witnesses actually saw the gun in the defendant's possession when the shot was fired. Additionally, cross-examination of the witnesses who testified that the defendant fired the gun showed they were uncertain whether he was actually aiming at the victim. The defendant denied having a gun and none was found at the scene. But based on the testimony that the gun was not aimed at the victim, the defendant tendered an instruction which set forth as a theory of the case that he did not intend to murder and that his acts at worst amounted to assault with a deadly weapon. It was argued in the trial and here that such an offense is a lesser included one encompassed in the charge of assault with the intent to commit murder. The refusal by the trial court to give the instruction is the basis of this appeal.

I.

Initially, we note that the briefs filed by both the defendant and the People point up that the problem of determining what is a lesser included offense under Colorado law has received varied treatment from this court. This variation is largely attributable to the different tests which have been employed.

First, there is the 'statutory test.' By the weight of authority, this court has held that in determining whether an offense is lesser included, the statutes which set forth the constituent elements of each crime must be compared. As we said in Daniels v. People, 159 Colo. 190, 411 P.2d 316 (1966):

'* * * the greater offense includes a lesser offense when the establishment of the essential elements of the greater necessarily establishes All of the elements required to prove the lesser. * * *' (Emphasis added.)

Accord, People v. Cardwell, Colo., 510 P.2d 317 (1973); People v. Velasquez, 178 Colo. 264, 497 P.2d 12 (1972); Sandoval v. People, 176 Colo. 414, 490 P.2d 1298 [186 Colo. 27] (1971); Schott v. People, 174 Colo. 15, 482 P.2d 101 (1971).

In contrast, there is the so-called 'evidentiary test.' Application of this view has resulted in holding that an offense is lesser included when the evidence of the two crimes, as shown at trial, establishes the elements of the lesser offense. Van Pelt v. People, 173 Colo. 201, 476 P.2d 999 (1970); Miera v. People, 164 Colo. 254, 434 P.2d 122 (1967); Cf. Howard v. People, 173 Colo. 209, 477 P.2d 378 (1970). From...

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114 practice notes
  • People v. Nunez, No. 91SC576
    • United States
    • Colorado Supreme Court of Colorado
    • November 9, 1992
    ...prove the defense will be taken by the jury as a sign of the defendant's guilt. Burse, 531 F.2d at 1153. 12 See, e.g., People v. Rivera, 186 Colo. 24, 28, 525 P.2d 431, 434-35 (1974) (reversing trial court because theory of case instruction not given); People v. Travis, 183 Colo. 255, 257, ......
  • People v. Harlan, No. 95SA298.
    • United States
    • Colorado Supreme Court of Colorado
    • March 27, 2000
    ...18-1-408(5)(a)." Id.; see also Garcia, 940 P.2d at 360; Armintrout, 864 P.2d at 579; Bartowsheski, 661 P.2d at 245; People v. Rivera, 186 Colo. 24, 27, 525 P.2d 431, 433 (1974). While application of the "strict elements" test begins with an examination of the statutes involve......
  • People v. Taggart, No. 80SA32
    • United States
    • Colorado Supreme Court of Colorado
    • January 5, 1981
    ...homicide. That offense was submitted to the jury, with the defendant's consent, as a lesser non-included offense. See People v. Rivera, 186 Colo. 24, 525 P.2d 431 (1974). The questions raised on this appeal center on the defendant's conviction for child abuse resulting in serious bodily 3 T......
  • State v. West, No. CR-88-0286-AP
    • United States
    • Supreme Court of Arizona
    • September 30, 1993
    ...charging Page 204 [176 Ariz. 444] document. Some states recognize the doctrine of lesser related offenses. See, e.g., People v. Rivera, 186 Colo. 24, 525 P.2d 431 (1974). However, Arizona does not. The application of Arizona's doctrine of lesser included offenses depends on an analysis of t......
  • Request a trial to view additional results
114 cases
  • People v. Nunez, No. 91SC576
    • United States
    • Colorado Supreme Court of Colorado
    • November 9, 1992
    ...prove the defense will be taken by the jury as a sign of the defendant's guilt. Burse, 531 F.2d at 1153. 12 See, e.g., People v. Rivera, 186 Colo. 24, 28, 525 P.2d 431, 434-35 (1974) (reversing trial court because theory of case instruction not given); People v. Travis, 183 Colo. 255, 257, ......
  • People v. Harlan, No. 95SA298.
    • United States
    • Colorado Supreme Court of Colorado
    • March 27, 2000
    ...18-1-408(5)(a)." Id.; see also Garcia, 940 P.2d at 360; Armintrout, 864 P.2d at 579; Bartowsheski, 661 P.2d at 245; People v. Rivera, 186 Colo. 24, 27, 525 P.2d 431, 433 (1974). While application of the "strict elements" test begins with an examination of the statutes involve......
  • People v. Taggart, No. 80SA32
    • United States
    • Colorado Supreme Court of Colorado
    • January 5, 1981
    ...homicide. That offense was submitted to the jury, with the defendant's consent, as a lesser non-included offense. See People v. Rivera, 186 Colo. 24, 525 P.2d 431 (1974). The questions raised on this appeal center on the defendant's conviction for child abuse resulting in serious bodily 3 T......
  • State v. West, No. CR-88-0286-AP
    • United States
    • Supreme Court of Arizona
    • September 30, 1993
    ...charging Page 204 [176 Ariz. 444] document. Some states recognize the doctrine of lesser related offenses. See, e.g., People v. Rivera, 186 Colo. 24, 525 P.2d 431 (1974). However, Arizona does not. The application of Arizona's doctrine of lesser included offenses depends on an analysis of t......
  • Request a trial to view additional results

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