People v. Rivera, 25620

Citation525 P.2d 431,186 Colo. 24
Decision Date06 August 1974
Docket NumberNo. 25620,25620
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Peter RIVERA, Defendant-Appellant.
CourtSupreme Court of Colorado

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 On rehearing the former opinion of this court is withdrawn and this one substituted therefor.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 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 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 (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 these cases, the defendant's argument on appeal is that where the evidence established all the elements of assault with a deadly weapon and placed the defendant's intent at issue, assault with a deadly weapon is a lesser included offense within the charge of assault with the intent to commit murder; hence the defendant is entitled to so instruct the jury. The People argue that the statutory test precludes such instruction.

In essence, the arguments present two issues: First, what test should be announced to clarify the divergent views found in the Colorado Cases? Second, does the adoption of the statutory test preclude the court from instructing the jury on the lesser offense?

II.

As to the first issue, we believe that the better view is that the statutes, and not the evidence, must establish the essential elements of the lesser included offense. In other words, any conflict in the prior cases is resolved now by our holding that, in determining whether an offense is lesser included, the statutory test--which mandates that the greater offense must establish every essential element of the lesser included offense--will be applied. Daniels v. People, Supra.

The basis for so holding is that the statutory test is easily and more uniformly applied and a defendant is entitled to fair notice of the charges against him. The only reasonable method of insuring such notice is the statutes which set forth the constituent elements. It would be haphazard and unfair to say to a defendant that he must defend on the principal charge and any other charge which the evidence established. Guided by these interests, we follow the authority holding the statutory test shall be applied in determining what is a lesser included offense.

Applying that test to the statutes which set forth the elements of the crimes of assault with the intent to commit murder, C.R.S.1963, 40--2--34, and assault with a deadly weapon, Id., we are compelled to hold that the second offense is not lesser-included. Simply put, assault with the intent to commit murder does not have a deadly weapon as an essential element and therefore it does not establish all the essential elements of the lesser crime to commit the greater crime. Consequently, the dicta contained in People v. Nace, Colo., 511 P.2d 501 (1973), was erroneous in this respect.

III.

The conclusion that the statutory test shall be applied to find if an offense is lesser included places the second aspect of the problem at issue in this case: Does the statutory...

To continue reading

Request your trial
114 cases
  • People v. Harlan, No. 95SA298.
    • United States
    • Supreme Court of Colorado
    • March 27, 2000
    ...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 involved in the case, see Armintrout, 8......
  • People v. Geiger, Cr. 23105
    • United States
    • United States State Supreme Court (California)
    • February 2, 1984
    ...included within the statutory definition of the charged offense, but also those shown by the evidence at trial. In People v. Rivera (1974) 186 Colo. 24, 525 P.2d 431, the defendant had been charged with assault with intent to commit murder, and assigned as error the failure to give a reques......
  • State v. West
    • United States
    • Supreme Court of Arizona
    • September 30, 1993
    ...not included in the charging 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 the te......
  • People v. Nunez, 91SC576
    • United States
    • Supreme Court of Colorado
    • November 9, 1992
    ...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, 516 P.2d......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT