People v. Nguyen

900 P.2d 37, 19 Brief Times Rptr. 1127, 1995 Colo. LEXIS 278, 1995 WL 375527

• Court: Supreme Court of Colorado
• Decided: June 26, 1995
• Docket: 94SA317
• Status: Published

Opinions

Justice MULLARKEY

delivered the Opinion of the Court.

The People appeal an order of the district court vacating two of defendant Due Nguyen’s convictions of second degree assault on grounds that the section of the second degree assault statute under which he was convicted, section 18-3-203(l)(b), 8A C.R.S. (1986), violates constitutional equal protection guarantees.¹ U.S. Const. Amend. XIV; Colo. Const, art. II, § 25. The People and Due Nguyen agree that the district court erred in striking the substantive portion of the statute and vacating the convictions. They also agree that the case must be remanded for resentencing. However, they disagree on the portion of the statute that should be severed to cure the constitutional defect. We hold that the appropriate remedy is to strike the mandatory crime of violence sentencing provision under section 18-3-203(2)(c) as it applies to attempted second degree assault under subsection (l)(b) and remand the case for resentencing as a class 4 felony.

I.

On July 7, 1992, Due Nguyen participated in a “drive by” shooting in Jefferson County during which he fired a semi-automatic firearm in the general direction of three teenaged boys, Binny Quintana, Michael Peterson, and Jason Smith. One bullet struck Michael Peterson in the ankle. The other two boys were not injured.

A jury found Due Nguyen guilty of attempted manslaughter² and three counts of second degree assault.³ The court sentenced Due Nguyen to four years in the Department of Corrections for attempted manslaughter; fourteen years for second degree assault on Michael Peterson; ten years for second degree assault on Binny Quintana; and ten years for second degree assault on Jason Smith. The three sentences for second degree assault were to run consecutively to each other and concurrently with the four-year sentence for attempted manslaughter.

Due Nguyen appealed his convictions to the court of appeals and then filed a motion with the court of appeals for limited remand to the district court for consideration of a Crim.P. 35(c) motion. The Crim.P. 35(c) motion requested that the district court vacate his convictions for second degree assault on Quintana and Smith or resentence him for the two convictions in the presumptive range for class 5 felonies on grounds that the statute under which he was convicted violated equal protection. The court of appeals granted the motion for limited remand.

On limited remand, the trial court found section 18 — 3—203(l)(b), under which Due Nguyen was convicted, to be a violation of equal protection guarantees under the United States and Colorado Constitutions because the statute imposed more severe penalties for attempted second degree assault⁴ than for the more severe crime of attempted first degree assault. On a second limited remand from the court of appeals to grant “relief as the trial court deems appropriate,” the trial court vacated Due Nguyen’s two convictions for attempted second degree assault.

On appeal to this court, the People concede that the second degree assault statute violates equal protection guarantees. Likewise, Due Nguyen concedes that the district court improperly vacated his convictions. The parties disagree on what portion of the statute must be severed to cure the constitutional defect.

II.

We agree with the parties that the second degree assault statute violates constitutional equal protection guarantees. While we have held that it is the prerogative of the legislature “to establish the penalties which are to apply to particular criminal offenses,” People v. Bramlett, 194 Colo. 205, 210, 573 P.2d 94, 97 (1977), “[e)qual protection requires that statutory classifications of crimes be based on differences that are real in fact and are reasonably related to the purposes of the legislation.” People v. Weller, 679 P.2d 1077, 1082 (Colo.1984). A legislative scheme that causes an offender who acts with less culpable intent and who causes the less grievous result to receive the greater penalty is “constitutionally infirm.” Smith v. People, 852 P.2d 420, 422 (Colo.1993).

The statute under which Due Nguyen was convicted and sentenced creates such an unconstitutional result. Section 18-3-203 provides:

(1) A person commits the crime of assault in the second degree if:

[[Image here]]

(b) With intent to cause bodily injury to another person, he causes or attempts to cause such injury to any person by means of a deadly weapon;

[[Image here]]

(2)(b) If assault in the second degree is committed without [heat of passion], it is a class ⅛ felony.

(e) If a defendant is convicted of assault in the second degree pursuant to parar graph (a), (b), (c), (d), or (g) of subsection (1) of this section, the court shall sentence the defendant in accordance with the provisions of section 16-11-309, C.R.S.

§ 18-3-203, 8B C.R.S. (1986 & 1994 Supp.) (emphasis added).⁵ Section 16-11-309 requires that:

Any person convicted of a crime of violence shall be sentenced pursuant to section 18-1-105(9), C.R.S. to a term of incarceration of at least the midpoint of the presumptive range, but not more than twice the maximum term, provided for such offense in section 18-l-105(l)(a), C.R.S.

§ 16-11-309(1), 8A C.R.S. (1994 Supp.) (emphasis added). Pursuant to section 18 — 1— 105(l)(a)(IV), a class 4 felony is subject to a presumptive penalty range from two to eight years. Thus, the presumptive sentencing range for attempted second degree assault with a deadly weapon is five to sixteen years.

In contrast, attempted first degree assault is subject to a presumptive sentencing range of two to eight years. The first degree assault statute provides:

A person commits the crime of assault in the first degree if:

(a) With intent to cause serious bodily injury to another person, he causes serious bodily injury to any person by means of a deadly weapon;

[[Image here]]

(2)(b) If assault in the first degree is committed without [heat of passion], it is a class 3 felony.

(c) If a defendant is convicted of assault in the first degree pursuant to paragraph (a), (e), (e), (e.5) or (f) of subsection (1) of this section, the court shall sentence the defendant in accordance with the provisions of section 16-11-309, C.R.S.

§ 18-3-202, 8B C.R.S. (1986 & 1994 Supp.) (emphasis added).

Since this statute does not include attempt within the definition of the crime of first degree assault, attempted first degree assault falls under the general criminal attempt statute, section 18-2-101. Section 18-2-101 provides:

(1) A person commits criminal attempt if, acting with the kind of culpability otherwise required for commission of an offense, he engages in conduct constituting a substantial step toward the commission of the offense.

[[Image here]]

(4) Criminal attempt to commit a class 1 felony is a class 2 felony; criminal attempt to commit a class 2 felony is a class 3 felony; criminal attempt to commit a class 3 felony is a class l felony; criminal attempt to commit a class 4 felony is a class 5 felony; criminal attempt to commit a class 5 or 6 felony is a class 6 felony.

§ 18-2-101, 8B C.R.S. (1986 & 1994 Supp.) (emphasis added). A person convicted of attempted first degree assault thus would be subject to sentencing within the presumptive range of two to eight years for a class 4 felony pursuant to section 18-l-105(l)(a)(IV).

Under this statutory scheme, the sentencing range for attempt to commit serious bodily injury with a deadly weapon (two to eight years) is less than the range for attempt to commit bodily injury with a deadly weapon (five to sixteen years). Accordingly, the second degree assault statute, section 18-3-203, violates equal protection guarantees because it imposes a harsher penalty for less serious criminal conduct than does the first degree assault statute, section 18-3-202.

When a statutory provision is found to be unconstitutional,

the remaining provisions of the statute are valid, unless it appears to the court that the valid provisions of the statute are so essentially and inseparably connected with, and so dependent upon, the void provision that it cannot be presumed, the legislature would have enacted the valid provisions without the void one; or unless the court determines that the valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.

§ 2-4r-204, IB C.R.S. (1980).⁶ Furthermore, “[i]n determining the severability of the sections of a statute, the court must look to legislative intent.” Colorado Project-Common Cause v. Anderson, 177 Colo. 402, 404, 495 P.2d 218, 219 (1972). The disputed issue in this case is which provision of the statute must be severed to remedy the constitutional defect.

The People argue that the appropriate treatment of the second degree assault statute is to strike the crime of violence sentencing provision as it applies to attempted second degree assault under section 18-3-203(l)(b). This solution would make attempted second degree assault under section 18-3-203(l)(b) a class 4 felony subject to the same presumptive range of penalty as attempted first degree assault. Due Nguyen disagrees and argues that the equal protection violation remains if both offenses are subject to the same punishment because attempted second degree assault is a less serious offense. He contends that the “only constitutional construction of subsection (l)(b) is to strike the attempt language from the substantive provision, and to sentence Due Nguyen in accordance with the general attempt statute which authorizes a reduction in the class of felony for which he stands convicted.”

We find that either proposal would cure the constitutional defect. In Smith, we held that “when an offender who acts with a less culpable intent may receive a greater penalty than the offender who acts with a greater culpable intent, such a statutory scheme is ‘unreasonably structured’ and ‘constitutionally infirm,’ even though the two offenses result in the same harm.” Smith, 852 P.2d at 422. On this basis, we struck down an earlier version of the sentencing provision of the second degree assault statute because it required enhanced “crime of violence” sentencing when an offender acted with intent to cause bodily injury but not when an offender acted with intent to cause serious bodily injury. Id.; see also People v. Blizzard, 852 P.2d 418, 419 (Colo.1993).

However, we consistently have held that where the legislature provides the same penalty for different crimes, or the same penalty for the same crime with alternate culpability requirements there is no equal protection violation. People v. Cowden, 735 P.2d 199, 201 (Colo.1987); People v. Aragon, 653 P.2d 715, 719 (Colo.1982). In our view, “alternative culpability elements ... represent a legislative judgment that ... the act is equally heinous in the eyes of the law and deserving of similar punishment.” Aragon, 653 P.2d at 719. Therefore, it is the legislature’s prerogative to punish different crimes with the same penalty, but it may not punish a more serious crime with a less severe penalty.

Under our prior eases, then, both the proposal by the People and the proposal by Due Nguyen cure the constitutional defect in the instant statutory scheme. The remedy proposed by Due Nguyen would strike the attempt language from section 18-3-203(l)(b) so that, by operation of the general criminal attempt statute, the offense of attempted second degree assault would be subject to a lesser penalty (class 5 felony range) than the more culpable offense of attempted first degree assault (class 4 felony range). The remedy proposed by the People would strike the crime of violence sentencing for attempted assault under section 18-3-203(l)(b) so that the two offenses would be subject to the same presumptive penalty range, ie., class 4 felony range. Thus, either solution would create a constitutional result.

Nevertheless, the People’s approach is supported by our earlier cases that have addressed the constitutionality of the second degree assault statute. It is also more consistent with legislative intent.

Striking the application of enhanced, crime of violence sentencing is consistent with the remedy we selected in Smith. In Smith, as here, the version of the second degree assault statute at issue violated equal protection because it required enhanced “crime of violence” sentencing when an offender acted with intent to cause bodily injury while enhanced sentencing was not required when an offender acted with intent to cause serious bodily injury. To cure the constitutional violation in Smith we severed the crime of violence sentencing provision rather than striking any part of the substantive definition of the crime. See 852 P.2d at 422.

Furthermore, to strike the attempt language from section 18-3-203(l)(b) would be inconsistent with our holding in Weller. In Weller, we upheld section 18-3-203(l)(b) against an equal protection challenge similar to the one posed by Due Nguyen in this ease. The defendant argued that section 18-3-203(l)(b) subjected an offender to a greater penalty than if he had been convicted of attempted second degree assault pursuant to the general criminal attempt statute and section 18-3-203(l)(a), which did not include attempt in its definition of second degree assault.⁷ We disagreed and held that “[i]t is certainly within the legislative prerogative to punish attempted assault with a deadly weapon more severely than an attempt to cause serious bodily injury without a deadly weapon.” Weller, 679 P.2d at 1083. As discussed earlier, it is likewise within the legislative prerogative to impose the same punishment for attempt to commit serious bodily injury and attempt to commit bodily injury. Therefore, we find that it would be inconsistent with Weller to strike the attempt language from section 18-3-203(l)(b) on equal protection grounds.

Finally, to strike the attempt language from section 18-3-203(l)(b) would be contrary to legislative intent. “When a statute is amended, the judicial construction previously placed upon the statute is deemed approved by the General Assembly to the extent that the provision remains unchanged.” Rauschenberger v. Radetsky, 745 P.2d 640, 643 (Colo.1987); see also § 2-4^208 (“A statute which is reenacted, revised, or amended is intended to be a continuation of the prior statute and not a new enactment, insofar as it is the same as the prior statute.”). Since Weller, the second degree assault statute has been amended seven times⁸ without modification to subsection (l)(b) or the inclusion of attempt in any other subsection of the second degree assault statute. Because the legislature has declined to modify the statute, we conclude that the legislature intended that attempt to commit bodily injury with a deadly weapon be sentenced pursuant to subsection (l)(b) rather than pursuant to the general criminal attempt statute as are all forms of attempted first degree assault under section 18-3-202 and all other forms of second degree assault under section 18-3-203.

For the forgoing reasons, we agree with the People that the appropriate cure for the constitutional infirmity of section 18-3-203 is to strike the crime of violence sentencing under subsection (2)(c) as it applies to attempted second degree assault.

III.

In conclusion, we affirm the district court’s holding that section 18-3-203 violates the equal protection guarantees of the Colorado and United States Constitutions. However, we reverse the district court’s judgment vacating Due Nguyen’s two convictions for attempted second degree assault and remand the case for resentencing consistent with this opinion.

1 . The people appeal directly to this court pursuant to section 13-4-102(l)(b), 6A C.R.S. (1987 & 1994 Supp.), section 16-12-102, 8A C.R.S. (1994 Supp.), and C.A.R. 3.

2 . "A person commits the crime of manslaughter if ... [h]e recklessly causes the death of another person." § 18-3-104(l)(a), 8B C.R.S. (1995 Supp.). Pursuant to the general criminal intent statute:

A person commits criminal attempt if, acting with the kind of culpability otherwise required for commission of an offense, he engages in conduct constituting a substantial step toward the commission of the offense.

§ 18-2-101(1), 8B C.R.S. (1986).

3 ."A person commits the crime of assault in the second degree if ... [w]ith intent to cause bodily injury to another person, he causes or attempts to cause such injury to any person by means of a deadly weapon; ....”

§ 18 — 3—203(l)(b), 8B C.R.S. (1986) (emphasis added).

4 . We will refer to an attempt to cause bodily injury by means of a deadly weapon as “attempted second degree assault,” even though it is a form of second degree assault pursuant to section 18-3-203(l)(b).

5 . Subsection (b) is the only subsection that includes attempt within its definition of second degree assault.

6 . Unless the statute contains a special severability provision, where a statute is unconstitutional we apply the general severability provision, § 2-4-204. People v. Vinnola, 177 Colo. 405, 414, 494 P.2d 826, 830 (1972).

7 . Subsection (l)(a) was repealed effective July 1, 1994. See Ch. 287, sec. 8, § 18-3-203(l)(a), 1994 Colo.Sess.Laws 1717. It provided:

(1) A person commits the crime of assault in the second degree if:

(a) With intent to cause serious bodily injury to another person, he does cause such injury to any person; ....

§ 18-3-203(l)(a) (1986).

8 . Ch. 138, sec. 3, § 18-3-203(2)(c), 1986 Colo. Sess.Laws 776-77; Ch. 144, sec. 2, § 18 — 3— 203(l)(f), 1986 Colo.Sess.Laws 789; Ch. 125, sec. 4; § 18-3-203(2)(c), 1988 Colo.Sess.Laws 717; Ch. 128, sec. 9, § 18-3-203(l)(£), 1990 Colo.Sess.Laws 986; Ch. 130, sec. 2, § 18-3-203(l)(f), 1990 Colo.Sess.Laws 992; Ch. 73, sec. 9, §§ 18-3-203(2)(a) & (2)(c), 1991 Colo.Sess. Laws 405; Ch. 287, sec. 8, § 18-3-203(l)(a), 1994 Colo.Sess.Laws 1717.