People v. Rock

• Decision Date: 11 September 2017
• Docket Number: Supreme Court Case No. 14SC699.
• Citation: 402 P.3d 472
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Priscilla Ann ROCK, Respondent.
• Court: Colorado Supreme Court

402 P.3d 472

The PEOPLE of the State of Colorado, Petitioner,

v.Priscilla Ann ROCK, Respondent.

Supreme Court Case No. 14SC699.

Supreme Court of Colorado.

September 11, 2017

Rehearing Denied October 2, 2017

Attorneys for Petitioner: Cynthia H. Coffman, Attorney General, Brock J. Swanson, Assistant Attorney General, Denver, Colorado

Attorneys for Respondent: Douglas K. Wilson, Public Defender, Cory D. Riddle, Deputy Public Defender, Denver, Colorado

En Banc

JUSTICE COATS delivered the Opinion of the Court

¶1 The People sought review of the court of appeals' judgment reversing Rock's convictions for second degree burglary and theft. See People v. Rock, No. 11CA1936, 2014 WL 2986664 (Colo. App. July 3, 2014). The trial court denied Rock's request for an additional, lesser-included-offense instruction on second degree criminal trespass, on the ground that second degree criminal trespass is not an included offense of second degree burglary. The court of appeals reversed, concluding both that the trial court erred in denying Rock's requested instruction and that the error was not harmless with regard to either of Rock's convictions.

¶2 Because the district court erred in denying the defendant her requested instruction on second degree criminal trespass on the ground that it was not a lesser included offense of the charged offense of second degree burglary, and because erroneously denying Rock's requested instruction was not harmless with regard to either of her convictions, the judgment of the court of appeals is affirmed.

I.

¶3 Priscilla Rock was charged with one count of second degree burglary, as proscribed at section 18-4-203(1), C.R.S. (2017), and one count of theft, as proscribed at section 18-4-401(1)(a), C.R.S. (2017), both arising from the same incident.¹ She was convicted on both counts and sentenced to concurrent two-year terms of probation.

¶4 The evidence at trial indicated that at some point between May 29 and May 31, 2010, the defendant entered her ex-boyfriend's parents' house through a bedroom window and left the home with multiple DVDs, two jackets, a baseball hat, and a laptop computer. The defendant conceded that she entered the house without authorization, but testified that she did so for the purpose of locating a memory card containing digital pictures of her son, whose father is the ex-boyfriend. She further testified that after she failed to locate the memory card in the house, she took the items from the home to hold them as "collateral," without ever intending to permanently keep these items from their owners, in hopes of compelling her ex-boyfriend to deliver the memory card to her later. The prosecution, however, presented evidence that the defendant sold and gave away some of the items.

¶5 The trial court instructed the jury on the elements of second degree burglary and theft, but denied the defendant's request for a lesser-included-offense instruction on second degree criminal trespass. The trial court declined to give the requested instruction both on the grounds that the elements of second degree criminal trespass are not included within the elements of second degree burglary and that the record lacked any rational basis to conclude that the defendant entered any building or structure other than a dwelling. The jury returned guilty verdicts on second degree burglary and theft, and the defendant appealed her convictions.

¶6 The court of appeals reversed both of the defendant's convictions, finding that the trial court erred in denying the defendant's requested instruction and that the error was not harmless with regard to either conviction. Rock, slip op. at 3–7. With regard to the denial of the requested instruction in particular, the intermediate appellate court relied on prior holdings of its own and suggestions by this court to the effect that the elements of second degree criminal trespass are included within second degree burglary, and therefore that the defendant was entitled to an instruction permitting the jury to convict of the former offense in lieu of the latter. Id.

¶7 We granted the People's petition for a writ of certiorari² and issued an opinion on June 5, 2017, reversing the judgment of the court of appeals. We subsequently granted the defendant's petition for rehearing and withdrew that opinion. We now affirm the judgment of the court of appeals.

II.

A.

¶8 For various policy reasons related to fairness and compromise verdicts, a criminal defendant in this jurisdiction has long been entitled to have the jury instructed on a lesser offense, whether included in the charged offense or not, as long as there is a rational basis in the evidence to acquit of the charged offense and yet convict of the lesser requested offense. See People v. Aragon, 653 P.2d 715, 720 n.5 (Colo. 1982) ; People v. Rivera, 186 Colo. 24, 525 P.2d 431, 434 (1974). Whether the lesser offense is "included" in the charged offense, as that term is defined at section 18-1-408, C.R.S. (2017), for purposes of limiting multiple convictions, however, remains a matter of some consequence. While the statute bars, for the same conduct of the defendant, conviction of two separate offenses one of which is included in the other, the same cannot necessarily be said of separate offenses neither of which is included in the other. See § 18-1-408(1), (5) (permitting prosecution for each offense established by any conduct of the defendant, but also specifying particular circumstances in which the defendant may not be convicted of more than one such offense). As a consequence, we have in the past characterized a defendant's request to have the jury instructed on a lesser non-included offense as amounting to his consent for an added count. See Rivera, 525 P.2d at 434.

¶9 Because a defendant is considered to have been put on notice that he must defend against any offense included in the charges filed against him, whether the factors required for proof of those charges are more appropriately characterized as elements or as sentencing factors, the prosecution can also be entitled to have the jury instructed that it may convict of certain lesser offenses not separately designated in the charging document. See People v. Garcia, 940 P.2d 357, 361–64 (Colo. 1997) (characterizing our approach to the prosecution's entitlement to present the jury with lesser offenses as closely resembling the "indictment/pleading theory" for determining whether offenses are included).³ If the prosecution has not requested a lesser offense instruction to which it is entitled, however, it is for the defendant to elect—and in the absence of a request by the defendant, it may reasonably be assumed that he has elected—to take his chance on an outright acquittal or conviction of the principal charge rather than to provide the jury with an opportunity to convict of a lesser offense. People v. Romero, 694 P.2d 1256, 1269 (Colo. 1985).

¶10 Unless either the prosecution or the defense requests a lesser-included-offense instruction, the court is therefore not obligated to give one. Id. Because requesting an instruction on a lesser offense that would not merge with the charged offense would be tantamount to consenting to a new and additional charge, it clearly involves a tactical or strategic choice of a different order even from requesting a lesser-included-offense instruction. See Arko v. People, 183 P.3d 555, 558 (Colo. 2008). Therefore, in the absence of a defense request specifically for a non-included, non-merging offense instruction to which only the defendant would be entitled, giving one would be improper. See Moore v. People, 925 P.2d 264, 268–69 (Colo. 1996).

¶11 Under the rubric of either judicial merger or double jeopardy, as the latter doctrine was understood before Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), we had made clear that for crimes pre-dating the Colorado Criminal Code, a defendant could not be made to suffer simultaneous convictions for greater and lesser included offenses, see, e.g., People v. Hancock, 186 Colo. 30, 525 P.2d 435, 438 (1974) ; People v. Bugarin, 181 Colo. 62, 507 P.2d 875, 877 (1973), and that the question whether one offense was included in another was to be decided according to the "statutory test," as distinguished from the so-called "evidentiary test," Rivera, 525 P.2d at 433–34. According to the "statutory test," as we adopted it at that time, " ‘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.’ " Rivera, 525 P.2d at 433 (emphases omitted) (quoting Daniels v. People, 159 Colo. 190, 411 P.2d 316, 317 (1966) ). Subsequent clarifications of the federal and state double jeopardy clauses, effectively leaving the treatment of simultaneous convictions in the hands of the pertinent legislative body, see Missouri v. Hunter, 459 U.S. 359, 368–69, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983) ; People v. Haymaker, 716 P.2d 110, 116–17 (Colo. 1986), and the subsequent enactment of the Colorado Criminal Code, made effective July 1, 1972, caused us to begin addressing the viability of multiple simultaneous convictions in terms of "statutory merger" and the corresponding aspect of double jeopardy dependent upon legislative authorization, but not to abandon our reliance on the "statutory test" altogether.

¶12 While section 18-1-408 now clearly bars conviction of multiple offenses for the same conduct for some reasons other than merely the inclusion of one offense within another, see § 18-1-408(1)(b)–(e), and also clearly defines included offenses in terms "substantially broader than the test for a lesser included offense developed in our cases decided prior to the adoption of the Colorado Criminal Code," People v. Raymer, 662 P.2d 1066, 1069 (Colo. 1983) (finding aggravated robbery to be a lesser included offense of felony murder, according to section 18-1-408(5)(c), on the ground that the...