Abarca v. People No. 13SC750, Hill v. People No. 14SC3, Medrano-Bustamante v. People No. 14SC7, People v. Smoots
390 P.3d 816
| Colo. | 2017Background
- Four consolidated Colorado cases (Reyna-Abarca, Hill, Smoots, Medrano‑Bustamante) involved convictions for both DUI and either vehicular assault‑DUI or vehicular homicide‑DUI arising from single driving incidents.
- None of the defendants raised a double jeopardy/merger objection at trial under Colo. Crim. P. 12(b)(2); each raised the merger/double jeopardy claim for the first time on direct appeal.
- Colorado statutes allow prosecution for multiple offenses based on the same conduct but bar multiple convictions when one offense is included in another (§ 18‑1‑408). The statutory test defines a lesser included offense as one established by proof of the same or less than all facts required for the greater offense.
- Lower appellate divisions were split: some reviewed unpreserved double jeopardy claims for plain error; divisions disagreed whether DUI is a lesser included offense of vehicular assault‑DUI/vehicular homicide‑DUI, largely because the criminal code and traffic code define “motor vehicle” differently.
- The Supreme Court granted certiorari to resolve (1) whether unpreserved double jeopardy claims may be raised on direct appeal and reviewed for plain error, and (2) which test governs whether one offense is a lesser included offense of another and whether DUI is included in the vehicular assault/homicide DUI offenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May an unpreserved double jeopardy/merger claim be raised for the first time on direct appeal? | People: defendants waived the claim by failing to object under Crim. P. 12(b)(2) at the charging stage. | Defendants: claim ripens only upon conviction of both offenses; Crim. P. 12(b)(2) inapplicable; appellate plain‑error review appropriate. | Yes. Unpreserved double jeopardy claims are reviewable on appeal; appellate courts should ordinarily apply plain‑error review. |
| Is Crim. P. 12(b)(2) a bar to raising merger on appeal? | People: merger flows from a defect in the charging document, so defendants needed to raise it under 12(b)(2). | Defendants: multiple counts are lawful; no defect exists at pleading stage; merger issue arises only after conviction. | No. 12(b)(2) does not require “bookmarking” a future double jeopardy claim; it is inapplicable here. |
| What is the correct test to determine whether one offense is a lesser included offense of another? | People/Some divisions: apply prior formulations (Blockburger variants; impossibility formulation) or compare statutory definitions strictly as previously applied. | Defendants: rely on strict/statutory elements approaches; urge clarity and uniform standard. | Adopt the Schmuck elements/subset formulation: a lesser offense is included only if its elements are a subset of the greater offense’s elements. This aligns with § 18‑1‑408(5)(a). |
| Is DUI a lesser included offense of vehicular assault‑DUI and vehicular homicide‑DUI? | People/Some divisions: criminal‑code definitions of "motor vehicle" and "operate/drive" are broader than traffic‑code DUI definitions, so vehicular assault/homicide can occur without DUI. | Defendants: DUI elements (driving a highway vehicle while intoxicated) are subsumed by vehicular assault/homicide elements (operating/driving a motor vehicle while intoxicated causing injury/death). | Held: DUI is a lesser included offense of vehicular assault‑DUI and vehicular homicide‑DUI; DUI convictions must merge into the greater offenses and the separate DUI convictions are vacated as plain error. |
Key Cases Cited
- Schmuck v. United States, 489 U.S. 705 (1989) (adopts elements/subset approach for lesser‑included offense analysis)
- Blockburger v. United States, 284 U.S. 299 (1932) (same‑elements test for double jeopardy comparison)
- Boulies v. People, 770 P.2d 1274 (Colo. 1989) (unit‑of‑prosecution analysis recognizing aggravated robbery as included in felony murder‑robbery in that factual posture)
- Meads v. People, 78 P.3d 290 (Colo. 2003) (prior Colorado decision concluding aggravated motor‑vehicle theft was not a lesser included offense of felony theft; disavowed by majority)
- People v. Rivera, 525 P.2d 431 (Colo. 1974) (articulated the statutory/strict elements approach comparing statutory elements rather than evidence)
- Whalen v. United States, 445 U.S. 684 (1980) (double jeopardy protects against multiple punishments absent legislative authorization)
- Brown v. Ohio, 432 U.S. 161 (1977) (remedy where conviction for lesser included offense violates double jeopardy)