Whiteaker v. People

• Docket Number: Supreme Court Case No. 22SC673
• Decision Date: 06 May 2024
• Citation: Whiteaker v. People, 2024 CO 25, 547 P.3d 1122 (Colo. 2024)
• Parties: Taunia Marie WHITEAKER, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

547 P.3d 1122

2024 CO 25

Taunia Marie WHITEAKER, Petitioner,

v.The PEOPLE of the State of Colorado, Respondent.

Supreme Court Case No. 22SC673

Supreme Court of Colorado.

May 6, 2024

Certiorari to the Colorado Court of Appeals, Court of AppealsCase No. 20CA1339

Attorneys for Petitioner: Megan A. Ring, Public Defender, Leah Scaduto, Deputy Public Defender, Denver, Colorado

Attorneys for Respondent: Philip J. Weiser, Attorney General, Grant R. Fevurly, Senior Assistant Attorney General, Denver, Colorado

En Banc

JUSTICE HOODdelivered the Opinion of the Court, in which CHIEF JUSTICE BOATRIGHT, JUSTICE MÁRQUEZ, JUSTICE GABRIEL, JUSTICE HART, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER joined.

JUSTICE HOODdelivered the Opinion of the Court.

¶1This case is a bit of an outlier.Unlike most caseswe see, the parties here agree on the answer to the question presented—whether first degree criminal trespass of a dwelling is a lesser-included offense of second degree burglary.¹Both parties say it is, and we so hold.PetitionerTaunia Marie Whiteaker’s overlapping convictions therefore violate the double jeopardy clauses of the federal and state constitutions.End of story?

[1]¶2 Not quite.While the parties agree about the error, they dispute the remedy.The prosecution urges traditional plain error review: leave Whiteaker’s convictions intact, the state says, because the district court’s error wasn’t obvious.Whiteaker counters that double jeopardy sentencing errors always require reversal and merger of the greater offense with the lesser-included offense, even if the error wasn’t obvious to the district court.We agree with Whiteaker.Double jeopardy sentencing errors require automatic reversal even when the error isn’t obvious to the district court.Therefore, Whiteaker’s convictions for trespass and burglary merge.

I.Facts and Procedural History

¶3 One winter night in 2019, Whiteaker and her stepdaughter, A.W., got into a heated argument.A.W. left and went to her grandmother’s house.(A.W.’s grandmother is Whiteaker’s mother-in-law.)Whiteaker responded by sending a barrage of fiery text messages to her husband and mother-in-law, apparently in search of A.W.Once Whiteaker confirmed that A.W. was at her grandmother’s house, Whiteaker drove there and stormed in through the unlocked front door.The ensuing physical altercation between Whiteaker, her husband, and her mother-in-law led to this case.

¶4 Whiteaker was convicted of second degree burglary, first degree criminal trespass, third degree assault, and harassment.The trial judge entered each conviction on the mittimus and sentenced Whiteaker to three years of probation for each count, to run concurrently.

¶5 Whiteaker appealed and argued, among other things, that the district court reversibly erred by failing to merge her conviction for first degree criminal trespass into her comiction for second degree burglary.

¶6 A division of the court of appeals rejected this argument.People v. Whiteaker,2022 COA 84, ¶ 19, 519 P.3d 1127, 1132.The division relied on our statement in People v. Garcia, 940 P.2d 357, 362(Colo.1997), that "first degree criminal trespass is not a lesser included offense of second degree burglary" to conclude that the district court was not required to merge the two offenses.Whiteaker, ¶¶ 15–18, 519 P.3d at 1131–32.The division reasoned that even though our subsequent opinions have cast doubt on Garcia,"it is the prerogative of the supreme court alone to overrule its cases," and in the division’s view, we have not explicitly overruled Garcia.Id. at ¶ 17, 519 P.3d at 1132(quotingDIA Brewing Co. v. MCE-DIA, LLC,2020 COA 21, ¶ 63, 480 P.3d 703, 714(Fox, J., dissenting), aff’d on other grounds sub nom.Schaden v. DIA Brewing Co.,2021 CO 4M, 478 P.3d 1264).

¶7Judge Kuhn disagreed.He specially concurred because he believed our opinion in Reyna-Abarca v. People,2017 CO 15, 390 P.3d 816, abrogated our lesser-included-offense holding in Garcia.Whiteaker,¶ 60, 519 P.3d at 1139(Kuhn, J., specially concurring).Although he"d[id] not see Garcia’s holding as continuing to be directly controlling,"id.at ¶¶ 59–60, 519 P.3d at 1139, he nevertheless agreed with the majority that both convictions should survive because the district court’s unpreserved error in failing to merge the two offenses was not plain, id. at ¶ 62, 519 P.3d at 1139-40.In Judge Kuhn’s view, the error wasn’t plain because it wasn’t "obvious error for the trial court to have acted consistently with"People v. Denhartog,2019 COA 23, ¶ 78, 452 P.3d 148, 160—a binding court of appeals decision expressly holding that Garcia remained good law after Reyna-Abarca.Whiteaker,¶ 62, 519 P.3d at 1139–40.

¶8 Whiteaker now urges us to more expressly abandon Garcia, and vacate her conviction for first degree criminal trespass.

II.Analysis

A.Standard of Review

[2, 3]¶9We review interpretations of our cases de novo, seeGallegos v. Colo. Ground Water Conm’n,147 P.3d 20, 28(Colo.2006), and we"review de novo a defendant’s claim that a conviction violates the constitutional protection against double jeopardy,"Garcia v. People,2023 CO 41, ¶ 13, 530 P.3d 1200, 1203.

B. Reyna-Abarca Abrogated Garcia

[4, 5]¶10The state and federal constitutions prohibit placing someone in jeopardy twice for the same offense.U.S. Const. amends. V, XIV;Colo. Const. art. II, § 18.As relevant here, these "[c]onstitutional double-jeopardy protections preclude the imposition of multiple punishments when the General Assembly has not ‘conferred specific authorization for multiple punishments.’ "Page v. People,2017 CO 88, ¶ 8, 402 P.3d 468, 470(quotingWoellhaf v. People,105 P.3d 209, 214(Colo.2005)).And the General Assembly has not authorized multiple punishments in the form of two convictions for the same conduct when the lesser offense is included in the greater offense.Id. at ¶ 9, 402 P.3d at 470.Accordingly, multiplicitous convictions run afoul of double jeopardy principles.

¶11 To determine whether a lesser offense is included in a greater offense for double jeopardy purposes, we look to the legislature.Section18-l-408(5)(a), C.R.S.(2023), provides that an offense is included in another if "[i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged."In applying this statutory language, we have employed what we have variously termed the "strict elements,""statutory elements," or "subset" test.Reyna-Abarca,¶¶ 53–54, 390 P.3d at 824;Thomas v. People,2021 CO 84, ¶ 24, 500 P.3d 1095, 1101.The competing labels sometimes add to the confusion.In the interest of alleviating some of that confusion, we will refer to the current section 18-1-408(5)(a) test for determining whether an offense is included in another for double jeopardy purposes as the "clarified subset" test.

¶12 In Garcia, we articulated the former subset test this way: "one offense is a lesser included of another offense when all of the essential elements of the lesser offense comprise a subset of the essential elements of the greater offense, such that it is impossible to commit the greater offense without also committing the lesser."940 P.2d at 360(emphasis added).Although Garcia used the term "subset," in practice it didn’t honor the conventional meaning of that term.Potential elemental distinctions controlled even when the greater offense still completely subsumed the lesser.This meant that when it was possible to commit a greater offense in a manner that didn’t satisfy the elements of the lesser offense, the lesser was not an included offense.

¶13 Applying that test in Garcia,we declared that "first degree criminal trespass is not a lesser included offense of second de- gree burglary."Id. at 362.That’s because it is possible to commit second degree burglary without necessarily committing first degree criminal trespass.Specifically, first degree trespass requires entering a "dwelling" while second degree burglary may be satisfied by entering a "building," which is a broader category that need not be a dwelling.Compare§ 18-4-502(1)(a), C.R.S.(2023), with§ 18-4-203(1), C.R.S.(2023).

¶14 Twenty years later, we revisited the analytical framework for these kinds of issues in Reyna-Abarca.We began by acknowledging that we"ha[d] not been consistent in defining this strict elements test."Reyna-Abarca,¶ 54, 390 P.3d at 824.Then we listed cases that applied versions of the test that "ha[d] proved unworkable in certain circumstances, as, for example, when a greater offense (e.g., felony murder) can be committed in multiple ways."Id. at ¶¶ 54–55, 390 P.3d at 824–25.We listed Garcia among the cases that had employed "unworkable" tests.Id. at ¶ 54, 390 P.3d at 824.Seeking to "adopt a standard that can be applied readily and uniformly in all cases,"id. at ¶ 59, 390 P.3d at 825, we announced the following test: "an offense is a lesser included offense of another offense if the elements of the lesser offense are a subset of the elements of the greater offense, such that the lesser offense contains only elements that are also included in the elements of the greater offense,"id. at ¶ 64, 390 P.3d at 826.

¶15 To clarify this new test, we pointed to our opinion in Meads v. People,78 P.3d 290(Colo.2003).Reyna-Abarca,¶ 65, 390 P.3d at 826.In Meads,we held that second degree aggravated motor vehicle theft was not a lesser-included offense of felony theft because it was possible to commit felony theft without committing motor vehicle theft.78 P.3d at 295–96.That’s because the motor vehicle theft statute requires theft of a "motor vehicle" while felony theft may be committed by taking "anything of value," which need not be a motor vehicle.Id. at 295;see also§ 18-4-409(4), C.R.S.(2023);§ 18-4-401(1), C.R.S.(2023).

¶16 In Reyna-Abarca,we"disavow[ed]" our holding in Meads, explaining that "[u]nder the clarified version of the strict...