People v. Suazo

• Decision Date: 18 November 1993
• Docket Number: No. 92CA0183,92CA0183
• Citation: 867 P.2d 161
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ernest P. SUAZO, Defendant-Appellant. . V
• Court: Colorado Court of Appeals

Page 161

867 P.2d 161

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ernest P. SUAZO, Defendant-Appellant.

No. 92CA0183.

Colorado Court of Appeals Div. V.

Nov. 18, 1993.

Rehearing Denied Dec. 16, 1993.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Greg P. Beacom, Sp. Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender, Kathleen A. Lord, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge DAVIDSON.

Defendant, Ernest P. Suazo, appeals from a judgment of conviction entered upon a jury verdict finding him guilty of third degree assault on the elderly. We vacate the conviction and remand with instructions.

Early one morning, the victim was involved in an altercation at his place of employment. The incident began after a verbal confrontation between the victim and a woman employee escalated into physical violence. According to witnesses, the victim hit the woman, knocked her down, and pulled her hair. When a second employee, defendant's mother, attempted to pull the victim away, she was struck several times.

As a result of the ruckus raised by the incident, other employees came to investigate. Several employees attempted to subdue the victim, who at that point began running around the plant in a frantic manner.

Defendant, who was also employed at the plant, arrived on the scene and saw that his mother was in a highly distressed state. She then told him that the victim had hit her twice across the back of the neck.

Defendant testified that he was very upset by this but that he attempted to disguise his agitation while in the presence of his mother. He confronted the victim immediately after the incident, but other co-workers told him to "leave it be" and that "everything was taken care of."

The victim, who claimed to have been injured during the fracas, was directed by plant management to go to a nearby clinic for treatment and examination. A co-worker was asked to drive the victim to the clinic. After arriving at the clinic, but before the victim was able to exit the car completely, defendant approached the victim and struck him. The victim sustained facial cuts and bruises.

Because the victim was sixty years old at the time of the incident, defendant was charged with third degree assault on the elderly pursuant to § 18-3-209(3), C.R.S. (1986 Repl. Vol. 8B).

At trial, defendant requested a jury instruction on provocation. The trial court found that the evidence as presented would support a jury finding of provocation. However, it refused to instruct the jury on the issue because, although applicable by statute to a charge of second degree assault on the elderly, provocation has not been made applicable to third degree assault on the elderly. The jury returned a verdict of guilty.

Under the versions of the statutes applicable here, second degree assault on the elderly with provocation is a class 1 misdemeanor while third degree assault on the elderly is a class 5 felony. Expressing concern that provocation is inapplicable to third degree assault on the elderly and yet the penalty for that offense is greater than that for second degree assault on the elderly with provocation, the trial court entered a judgment of conviction for a class 5 felony but only sentenced defendant to a term of probation within the misdemeanor range.

I.

Defendant first argues that, as applied here, the assault on the elderly statute violates his right to equal protection. We agree.

A.

Our supreme court has recognized that the General Assembly is entitled to provide for different and more severe penalties for different crimes, so long as the classification of crimes reflects substantial differences in the conduct proscribed which have a reasonable relationship to the public purposes sought to be achieved. If, however, as a result of a particular statutory scheme, an offender who acts with less culpable intent and causes a less grievous result is afforded a greater penalty, then the statute involved may violate constitutional principles of equal treatment under the law. People v. Montoya, 196 Colo. 111, 582 P.2d 673 (1978).

Because the offenses implicated here are different and therefore persons charged under them are not "similarly situated," the issue presented does not fall under traditional concepts of equal protection. See People v. Marcy, 628 P.2d 69 (Colo.1981). However, irrational classifications may be nonetheless violative of fundamental constitutional principles if the penalty prescribed is not rationally related to the recognized legislative objective of establishing "more severe penalties for acts which it believes have greater social impact and more grave consequences." People v. Montoya, supra, 196 Colo. at 113, 582 P.2d at 675; see also Smith v. People, 852 P.2d 420 (Colo.1993) (even though the two different acts result in the same magnitude of harm, because the actor who behaves with less culpability receives greater punishment, the statutory scheme creates an irrational classification and is therefore constitutionally infirm).

Section 18-3-209, C.R.S. (1986 Repl. Vol. 8B), as applicable here, provides that:

(1) A person who commits second or third degree assault and the victim is a person who is sixty years of age or older ... commits assault on the elderly....

(2) If the assault on the elderly ... is second degree assault and is committed without the circumstances provided in section 18-3-203(2)(a) being present, it is a class 3 felony....

(3) If the assault on the elderly ... is third degree assault, it is a class 5 felony.

According to the second degree assault statute, as then in effect, § 18-3-203(2)(a), C.R.S. (1986 Repl. Vol. 8B):

If assault in the second degree is committed under circumstances where the act causing the injury is performed, not after deliberation, upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the person causing the injury sufficiently to excite an irresistible passion in a reasonable person, it is a class 1 misdemeanor.

The presence of provocation is a mitigating factor which reduces the penalty for first or second degree assault. See Rowe v. People, 856 P.2d 486 (Colo.1993); People v. Pennese, 830 P.2d 1085 (Colo.App.1991). A defendant is entitled to have the jury determine the presence of provocation by special interrogatory if evidence has been presented which would support such a finding. People v. Brighi, 755 P.2d 1218 (Colo.1988); People v. Reedy, 705 P.2d 1032 (Colo.App.1985).

Under the Colorado assault statutes, as they pertain to the facts of this case, a person is guilty of third degree assault if he or she "knowingly or recklessly causes bodily injury to another person." Section 18-3-204, C.R.S. (1986 Repl. Vol. 8B). As pertinent here, a person is guilty of second degree assault if he or she "with intent to cause serious bodily injury to another person," does cause such injury, § 18-3-203(1)(a), C.R.S. (1986 Repl. Vol. 8B) or "with intent to cause bodily injury to another person, he causes serious bodily injury to that person or another." Section 18-3-203(1)(g), C.R.S. (1986 Repl. Vol. 8B).

"Knowingly or recklessly" is a lesser degree of mental culpability than "with intent." People v. Bramlett, 194 Colo. 205, 573 P.2d 94 (1977); see also People v. Derrera, 667 P.2d 1363, 1367 (Colo.1983) ("Under the Colorado Criminal Code, 'knowingly' is the second highest level of criminal culpability."); People v. Wheatley, 805 P.2d 1148 (Colo.App.1990) (intent to cause bodily injury represents a higher mens rea than recklessness); People v. Lucero, 714 P.2d 498 (Colo.App.1985) (The culpable mental state required for first degree assault (intent to cause serious bodily injury) is sufficiently distinguishable from that required for criminally negligent homicide (knowingly) so as to justify a harsher penalty for the former).

"Bodily injury" is a less serious degree of injury than "serious bodily injury." People v. Brown, 677 P.2d 406 (Colo.App.1983); see also People v. Thompson, 187 Colo. 252, 529 P.2d 1314 (1975). And, the gravity of injury sustained, or even intended, can be a sufficient distinction to justify differing penalties. People v. Lucero, supra; see also People v. Montoya, supra (intent to cause death is a more culpable mental state than intent to cause serious bodily injury); Smith v. People, supra (intent to cause serious bodily injury is a more culpable mental state than intent to cause bodily injury).

As a result of the operation of § 18-3-209, however, a person who commits second degree assault on the elderly with provocation would be convicted of a class one misdemeanor, while a person who, also with provocation, commits third degree assault on the elderly--and thus who has acted less culpably and has caused less harm--would be convicted of a class 5 felony. This legislative scheme allows an irrational classification to occur. See People v. Montoya, supra, and Smith v. People, supra.

Furthermore, we note that, under the versions relevant here, as the assault statutes are applied when the victim is not 60 years of age or older, provocation serves to reduce the penalty for second degree assault to the same level as that prescribed for third degree assault. See §§ 18-3-203(2)(a) and 18-3-204, C.R.S. (1986 Repl. Vol. 8B). This may represent a legislative judgment that these two offenses are deserving of comparable punishment. See People v. Aragon, 653 P.2d 715 (Colo.1982). When the victim is 60 years of age or older, however, the statute functions, with no discernable rational basis, to increase the penalty only for less culpable conduct resulting in less harm even though both are committed under provocation. See Smith v. People, supra.

In defense of this statutory scheme as applied here, the People do not dispute that the harm caused by second degree assault ...