The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY August 22, 2019
2019COA130
No. 19CA0482, People v. Lee — Constitutional Law — Colorado Constitution — Equal Protection; Crimes — Assault in the Second Degree — Strangulation
In this People’s appeal, a division of the court of appeals holds
that a defendant may not be charged with second degree assault for
the same manual strangulation conduct under both subsections
(1)(b) and (1)(i) of section 18-3-203, C.R.S. 2018, for two
reasons. First, these subsections carry different maximum
penalties, so charging the same strangulation conduct under both
sections would violate equal protection. Second, the legislative
history reveals the General Assembly’s intent that all strangulations
be charged under section 18-3-203(1)(i), rather than under the
more general subsection. Accordingly, the division affirms the district court’s order dismissing the second degree assault charged
under section 18-3-203(1)(b) and the crime of violence counts. COLORADO COURT OF APPEALS 2019COA130
Court of Appeals No. 19CA0482 Arapahoe County District Court No. 18CR1431 Honorable Ben L. Leutwyler, Judge
The People of the State of Colorado,
Plaintiff-Appellant,
v.
Dearies Deshonne Austin Lee,
Defendant-Appellee.
ORDER AFFIRMED
Division VI Opinion by JUDGE FREYRE Fox and Welling, JJ., concur
Announced August 22, 2019
George H. Brauchler, District Attorney, Jacob Edson, Chief District Deputy Attorney, Centennial, Colorado, for Plaintiff-Appellant
Megan A. Ring, Colorado State Public Defender, Alison E. Blackwell, Deputy State Public Defender, Centennial, Colorado, for Defendant-Appellee ¶1 In this People’s appeal, brought under section 16-12-102(1),
C.R.S. 2018, and C.A.R. 4(b)(3), we are asked to decide an issue left
unresolved by another division in People v. Slaughter, 2019 COA 27.
The Slaughter division held that charging a defendant with second
degree assault by strangulation under section 18-3-203(1)(i), C.R.S.
2018, (strangulation subsection), and a crime of violence count
under section 18-1.3-406(2)(a)(I)(A), C.R.S. 2018, violated his right
to equal protection because the penalty was substantially more
severe than if the defendant were charged with second degree
assault under section 18-3-203(1)(b) (deadly weapon subsection), a
per se crime of violence, for the same conduct. Consequently, the
division affirmed the district court’s order dismissing the crime of
violence counts attached to the strangulation charges.
¶2 Here, we must decide whether a defendant may be charged
with strangulation under both the deadly weapon and strangulation
subsections of the second degree assault statute.1 We hold that a
1 Strangulation causing serious bodily injury constitutes first degree assault under section 18-3-202(1)(g), C.R.S. 2018. We only consider second degree assault strangulation here. Because the circumstances here and the legislative amendment concern manual strangulation, we offer no opinion on whether our analysis would apply to strangulation with a ligature or other instrument.
1 defendant may not be charged under both subsections for two
reasons. First, we conclude that charging the same conduct under
both subsections would violate a defendant’s right to equal
protection because the subsections carry different maximum
penalties. Second, we conclude, from the legislative history, that
when the General Assembly amended the second degree assault
statute to add the strangulation subsection, it intended all
strangulation conduct to be charged under this specific subsection,
rather than under the more general deadly weapon subsection.
Accordingly, we affirm the district court’s order dismissing the
second degree assault deadly weapon and crime of violence counts
filed against the defendant, Dearies Deshonne Austin Lee.
I. Procedural Background
¶3 The prosecution originally charged Mr. Lee with two counts of
second degree assault under section 18-3-203(1)(i) (strangulation
subsection), one count of child abuse under section 18-6-401(1),
(7)(b)(I), C.R.S. 2018, and a crime of violence sentence enhancer
under section 18-1.3-406(2)(a)(I)(A). The prosecution later added a
habitual child abuser sentence enhancer, under section 18-6-
401.2, C.R.S. 2018, and two second degree assault charges under
2 section 18-3-203(1)(b) (deadly weapon subsection). It also amended
the crime of violence count to attach to all four second degree
assault counts.
¶4 Shortly after Slaughter was announced, Mr. Lee moved to
dismiss the second degree assault deadly weapon counts and the
crime of violence sentence enhancer. After a hearing, the court
granted Mr. Lee’s motion. It concluded that a conviction under the
deadly weapon subsection could produce a more severe penalty
than a conviction under the strangulation subsection for the same
conduct and thus, that a potential equal protection violation
existed. It dismissed the crime of violence counts based on
Slaughter.
¶5 On appeal, the People contend that the district court
erroneously interpreted Slaughter. They rely on dicta in the case
stating, “the prosecution, at least in theory, could have charged [the
defendant] with second degree assault (not specifying acts
amounting to strangulation) under section 18-3-203(1)(b) [the
deadly weapon subsection].” Id. at ¶ 20. We agree with Slaughter’s
holding. But, to the extent the Slaughter division intended to
suggest that a defendant can be charged with strangulation under
3 both the deadly weapon and strangulation subsections, we disagree
with it, because the legislative history, extensively discussed in
Slaughter, reveals a contrary intent. Moreover, charging a
defendant with the same strangulation conduct under both
subsections would violate a defendant’s right to equal protection, an
issue the Slaughter division did not consider.
II. Second Degree Assault Strangulation Conduct May Be Charged Only Under Section 18-3-203(1)(i)
A. Standard of Review and Law
¶6 We review a court’s legal conclusions and its dismissal of
charges de novo. People v. Porter, 2015 CO 34, ¶ 8. We also
interpret statutes de novo. In re Estate of King, 2019 COA 82, ¶ 11.
When interpreting a statute, our primary goal is to ascertain and
give effect to the General Assembly’s intent. Cowen v. People, 2018
CO 96, ¶ 11. To do so, we examine the plain meaning of the
statutory language. Id. We give consistent effect to all its parts and
construe each provision in harmony with the overall statutory
design. Id.
4 ¶7 Before 2016, the People could charge manual strangulation
resulting in bodily injury as a felony only under section 18-3-
203(1)(b), which provides:
(1) A person commits the crime of assault in the second degree if:
…
(b) With intent to cause bodily injury to another person, he or she causes such injury to any person by means of a deadly weapon[.]
Consequently, to obtain a felony conviction in the case of a manual
strangulation, the prosecution was required to prove that the
defendant’s hands were a deadly weapon.
¶8 Second degree assault with a deadly weapon is a class four
felony and constitutes a per se crime of violence. See § 18-3-
203(2)(b); see also § 18-1.3-406(2)(a)(I)(A), (II)(C). A crime of
violence conviction requires a court to sentence a defendant to
prison for a term of at least the midpoint of the presumptive range
but no more than twice the maximum of the presumptive range. §
18-1.3-401(8)(a)(I), C.R.S. 2018. However, in 2016 the General
Assembly created an exception to this requirement for some second
degree assault convictions, including under the deadly weapon
5 subsection. Ch. 181, sec. 1, § 18-3-203, 2016 Colo Sess. Laws 620.
This exception at section 18-3-203(2)(c)(II) provides:
If a defendant is convicted of assault in the second degree pursuant to paragraph (b), (c), (d), or (g) of subsection (1) of this section, the court shall sentence the offender in accordance with section 18-1.3-406; except that, notwithstanding the provisions of section 18-1.3-406, the court is not required to sentence the defendant to the department of corrections for a mandatory term of incarceration.
Consequently, a defendant convicted of second degree assault with
a deadly weapon may be sentenced to probation or community
corrections, but the length of any sentence, including one to prison,
must be in the range of five to sixteen years. See § 18-1.3-
401(8)(a)(I).
¶9 In the same 2016 legislative session, the General Assembly
added the strangulation subsection to the second degree assault
statute. Ch. 327, sec. 2, § 18-3-203, 2016 Colo. Sess. Laws 1328.
This subsection provides that a person commits second degree
assault when,
[w]ith the intent to cause bodily injury, he or she applies sufficient pressure to impede or restrict the breathing or circulation of the blood of another person by applying such
6 pressure to the neck or by blocking the nose or mouth of the other person and thereby causes bodily injury.
§ 18-3-203(1)(i). This subsection allowed the prosecution, for the
first time, to obtain a felony conviction for strangulation without the
burden of proving that hands were a deadly weapon. And because
this subsection does not include a deadly weapon element, it is not
a per se crime of violence and thus is not listed in section 18-3-
203(2)(c)(II)’s crime of violence exception. Rather, it is an
extraordinary risk crime under section 18-1.3-401(10)(b)(XVIII).
Therefore, a defendant convicted of strangulation can be sentenced
to probation, community corrections, or prison for a period of two to
eight years, see id.; § 18-1.3-401(1)(a)(V)(A), and cannot be charged
with the crime of violence sentence enhancer, Slaughter, ¶ 52.
¶ 10 As noted in Slaughter and as the statutory language reveals,
the potential for disparate charges and sentencing arising from the
same strangulation conduct “renders ambiguous the statutory
scheme for the charging and sentence of second degree assault by
strangulation.” Id. at ¶ 23. Therefore, as the Slaughter division did,
we delve into the legislative history of the 2016 amendments to
determine the General Assembly’s intent in adding the
7 strangulation provision to the second degree assault statute and
whether it contemplated strangulation charges arising under
multiple provisions of the statute. See § 2-4-203(1)(c), C.R.S. 2018
(courts may consider legislative history as an aid in construing
ambiguous statutes); see also Frazier v. People, 90 P.3d 807, 811
(Colo. 2004) (when a statute conflicts with other provisions, an
appellate court may look to legislative history).
B. Legislative History
¶ 11 The strangulation subsection originated as House Bill 16-
1080. Slaughter, ¶ 25. Before its introduction, prosecutors
routinely charged manual strangulation resulting in bodily injury
under the deadly weapon subsection, § 18-3-203(1)(b), which
required them to prove that hands were a deadly weapon. See
Slaughter, ¶ 26. Such proof often required expert testimony. In
rural jurisdictions, prosecutors found it difficult to retain such
experts and, consequently, frequently obtained verdicts for the
lesser offense of misdemeanor third degree assault (requiring proof
of bodily injury without a deadly weapon). See id.; Assault by
Strangulation: Hearing on H.B. 16-1080 before H. Judiciary Comm.,
70th Gen. Assemb., 2d Reg. Sess. (Feb. 9, 2016) (statements of Rep.
8 Mike Foote, Member, H. Judiciary Comm., sponsor of H.B. 16-1080,
and Mark Hurlbert, Assistant Arapahoe County District Attorney).
Thus, a goal of House Bill 16-1080 was to create a specific
strangulation statute that dispensed with proof of the deadly
weapon element. See § 18-3-203(1)(i); Assault by Strangulation:
Hearing on H.B. 16-1080 before H. Judiciary Comm., 70th Gen.
Assemb., 2d Reg. Sess. (Feb. 9, 2016) (statement of Rep. Mike
Foote, sponsor of H.B. 16-1080) (“The elements [of subsection (1)(i)]
don’t require the finding of hands as a deadly weapon.”); see also
Slaughter, ¶ 30.
¶ 12 Testimony before the General Assembly revealed that another
goal of the bill was to make strangulation a stand-alone criminal
offense due to a disparity in charging decisions and verdicts for
strangulation conduct across the state. According to the bill’s
proponents, the legislation was intended to unify and elevate all
forms of strangulation resulting in bodily injury to a felony in order
to more consistently punish this type of behavior, which is
particularly prevalent in domestic violence situations. See Assault
by Strangulation: Hearing on H.B. 16-1080 before S. Judiciary
Comm., 70th Gen. Assemb., 2d Reg. Sess. (Apr. 27, 2016)
9 (statement of Rep. John Cooke, Member, S. Judiciary Comm.,
sponsor of H.B. 16-1080) (“We want to increase this to a felony[.]”);
Assault by Strangulation: Hearing on H.B. 16-1080 before H.
Judiciary Comm., 70th Gen. Assemb., 2d Reg. Sess. (Feb. 9, 2016)
(statement of Rep. Mike Foote, sponsor of H.B. 16-1080) (“Our law
currently does not recognize strangulation as a specific offense. It’s
prosecuted right now under various levels of assault in our code,
but there is nothing in our code that actually recognizes
strangulation as a specific subset of assault, and this is what this
bill would address. And, we would be in the vast majority of states
to adopt language like this that recognizes strangulation as a
specific type of assault offense.”); see also Slaughter, ¶ 27.
¶ 13 The passage of House Bill 16-1080 created sections 18-3-
203(1)(i) and 18-3-202(1)(g) (first degree strangulation requiring
proof of “intent to cause serious bodily injury” and “serious bodily
injury”), and, for the first time, allowed prosecutors to obtain a
felony conviction for strangulation without proving that the
defendant’s hands were a deadly weapon. See § 18-3-203(1)(i).
10 C. Equal Protection Problem
¶ 14 We now address the district court’s equal protection ruling.
Relying on Slaughter, the People contend that an equal protection
violation occurs only when a defendant is charged with
strangulation under section 18-3-203(1)(i) and the crime of violence
sentence enhancer under section 18-1.3-406(2)(a)(I)(A). They
further argue that, in the dicta recited above, the Slaughter division
specifically sanctioned their ability to charge under both the deadly
weapon and strangulation subsections. We are not persuaded
because the statutory language and the legislative history belie their
contention. Moreover, when a statute is susceptible of both
constitutional and unconstitutional constructions, we must adopt
the constitutional construction where it is reasonably consistent
with legislative intent. People in re R.M.D., 829 P.2d 852, 853 (Colo.
1992); People v. Felgar, 58 P.3d 1122, 1124-25 (Colo. App. 2002).
1. Charging Strangulation Under Both Subsections Violates a Defendant’s Right to Equal Protection
¶ 15 The Fourteenth Amendment to the United States Constitution
provides that no state shall “deny to any person within its
jurisdiction the equal protection of the laws.” U.S. Const. amend.
11 XIV, § 1. For Colorado state law purposes, the right to equal
protection is provided in article II, section 25, of the Colorado
Constitution. People v. Stewart, 55 P.3d 107, 114 (Colo. 2002).
“[E]qual protection of the laws requires that statutory classifications
of crimes be based on differences that are real in fact and
reasonably related to the general purposes of criminal legislation.”
People v. Marcy, 628 P.2d 69, 74 (Colo. 1981). Unlike federal
jurisprudence, which finds no equal protection problem when
statutes proscribe identical conduct and authorize different
penalties, Colorado law takes a “stricter view” by consistently
holding that statutes proscribing identical conduct and carrying
disparate penalties violate equal protection unless there are
reasonable distinctions in the proscribed conduct. Stewart, 55 P.3d
at 114 (collecting cases).
¶ 16 “To determine whether two statutes proscribe identical
conduct, we analyze the elements of each.” Id. at 115. To avoid
equal protection problems, criminal statutes must (1) adequately
define the act and the mental state of each offense so that fair
warning is given to all persons concerning the nature of the
proscribed conduct and the resulting penalties; (2) reasonably
12 differentiate between the more serious and the less serious conduct;
and (3) prescribe penalties that are proportionate to the seriousness
of the offenses. Marcy, 628 P.2d at 73. Equal protection requires
that differences in prohibited conduct be “real in fact and
reasonably related to the general purposes of criminal legislation.”
Id. at 74. And where, as here, the constitutional challenge is as-
applied, we must examine the case’s circumstances. People v. Ford,
232 P.3d 260, 263 (Colo. App. 2009); compare People v. Jefferson,
748 P.2d 1223 (Colo. 1988) (facial equal protection challenge), with
Slaughter, ¶ 15 (as applied equal protection challenge).
¶ 17 Here, as noted above, the maximum penalties for
strangulation under the deadly weapon and strangulation
subsections are different — a defendant convicted of strangulation
under the deadly weapon subsection faces a maximum prison
sentence of sixteen years while the same defendant convicted of the
same conduct under the strangulation subsection faces a maximum
prison sentence of only eight years. Yet, both subsections require
proof of an intent to cause bodily injury and both require proof that
bodily injury resulted from the conduct.
13 ¶ 18 We agree with the People that a prosecutor is legally permitted
to charge separate offenses for the same conduct. Jefferson, 748
P.2d at 1226. But we disagree with their assertion that there is a
meaningful difference between manual strangulation under the
deadly weapon and strangulation subsections — the conduct is the
same; only the characterization of the instrument of the conduct is
different. See Marcy, 628 P.2d at 78 (Differences in proscribed
conduct “without a sufficiently pragmatic difference” violate a
defendant’s right to equal protection.).
¶ 19 Moreover, whether a defendant suffers the higher penalty
would depend entirely on the prosecutor’s charging discretion. See
Slaughter, ¶ 51. And while we agree with the People that the
subsections’ elements differ and that the deadly weapon subsection
applies to a wide “range of unspecified conduct,” Stewart, 55 P.3d
at 115, we perceive no scenario in which the manual strangulation
conduct described in subsection (1)(i) would not also satisfy
subsection (1)(b), nor have the People offered one. See Marcy, 628
P.2d at 80 (“[A]n evenhanded application of the laws turns on
reasonably intelligible standards of criminal culpability.”).
14 ¶ 20 Recognizing that we must construe statutes to avoid
unconstitutional results, we conclude that manual strangulation
causing bodily injury may only be charged under section 18-3-
203(1)(i). Therefore, we affirm the district court’s order dismissing
the deadly weapon and crime of violence counts against Mr. Lee.
See People In Interest of J.D., 2017 COA 156, ¶ 10 (“We are . . .
instructed to construe statutes and rules to avoid unconstitutional
results.”) (cert. granted on other grounds Sept. 17, 2018).
2. The General Assembly Intended That All Strangulations Causing Bodily Injury Be Charged Under the Strangulation Subsection
¶ 21 Our resolution of the equal protection issue is supported by
the legislative history that reveals the General Assembly’s intent to
specifically carve out the crime of strangulation resulting in bodily
injury and to make it a felony in all instances.
¶ 22 Well-settled law permits a prosecutor to charge separate
offenses for the same conduct. People v. James, 178 Colo. 401,
404, 497 P.2d 1256, 1257 (1972). Indeed, section 18-1-408(7),
C.R.S. 2018, says,
If the same conduct is defined as criminal in different enactments or in different sections of this code, the offender may be prosecuted
15 under any one or all of the sections or enactments subject to the limitations provided by this section. It is immaterial to the prosecution that one of the enactments or sections characterizes the crime as of lesser degree than another, or provides a lesser penalty than another, or was enacted by the general assembly at a later date than another unless the later section or enactment specifically repeals the earlier.
¶ 23 It is equally well settled that enactment of a specific criminal
statute does not preclude prosecution under a general criminal
statute “unless a legislative intent is shown to limit prosecution to
the special statute.” People v. Bagby, 734 P.2d 1059, 1061 (Colo.
1987). In most instances, we determine whether the General
Assembly intended to supplant a general statute for a more specific
statute by examining three factors:
(1) whether the [specific] statute invokes the full extent of the state’s police powers; (2) whether the specific statute is part of an act creating a comprehensive and thorough regulatory scheme to control all aspects of a substantive area; and (3) whether the act carefully defines different types of offenses in detail.
People v. Smith, 938 P.2d 111, 116 (Colo. 1997); see also Bagby,
734 P.2d at 1062. But here, because the statute is ambiguous, we
16 may discern legislative intent from the legislative history. See
Slaughter, ¶ 23.
¶ 24 As noted above, the legislative history shows that the General
Assembly intended to eliminate misdemeanor convictions for
strangulation resulting in bodily injury and to make all such
strangulations felony offenses, recognizing that this conduct
constitutes serious domestic violence behavior and that the
enhanced punishment is consistent with that of the vast majority of
other states. The General Assembly did this in two ways: (1) by
specifically defining what constitutes strangulation (applying
sufficient pressure to impede or restrict breathing or blood
circulation by applying pressure to the neck or by blocking the nose
or mouth); and (2) by removing the deadly weapon element, thereby
lowering the prosecution’s burden of proof. Indeed, removing the
deadly weapon element necessarily removed strangulation from the
list of crimes constituting per se crimes of violence. That the
General Assembly intended this trade-off — no per se crime of
violence in exchange for all strangulations resulting in bodily injury
constituting a felony — is evident from the testimony given during
the bill’s consideration.
17 ¶ 25 As well, the General Assembly added the crime of violence
exception found in section 18-3-203(2)(c)(II) during the same
legislative session, and it specifically excluded strangulation from
the exception, further evidencing that this trade-off was deliberate.
See People v. Garcia, 2016 COA 124, ¶ 9 (“Courts presume that the
General Assembly intended the entire statute to be effective.”); see
also Pinnacol Assurance v. Hoff, 2016 CO 53, ¶ 48 (“We construe
the legislature’s failure to include particular language not as an
oversight, but as a deliberate omission reflecting legislative intent.”).
¶ 26 Accordingly, we conclude that the General Assembly has
demonstrated its intent to limit prosecution for manual
strangulation resulting in bodily injury to the strangulation
subsection in section 18-3-203(1)(i). See Bagby, 734 P.2d at 1062.
It may, and it did in the first degree assault statute, section 18-3-
202(1)(g), provide a harsher penalty for strangulation that results in
serious bodily injury. See Stewart, 55 P.3d at 114-15 (“The general
assembly may establish more severe penalties for acts that it
believes have graver consequences, even if the differences are only a
matter of degree.”).
18 ¶ 27 Finally, because we affirm the district court’s order, we need
not address Mr. Lee’s other contentions. See Qwest Corp. v. City of
Northglenn, 2014 COA 55, ¶ 27 (appellate court need not reach all
issues if one issue is dispositive).
III. Conclusion
¶ 28 The order is affirmed.
JUDGE FOX and JUDGE WELLING concur.