2020 CO 75
Colo.2020Background:
- Gang retaliation plot: Jackson (Sicc Made) and others plotted to kill E.O. after prior shootings; they waited at E.O.’s apartment complex.
- Shooter approached a gold SUV, believed the driver was E.O., but the driver was Y.M. (an innocent bystander); the shooter aimed, fired, and killed Y.M.
- Jackson was convicted as a complicitor of first-degree murder (victim: Y.M.) and attempted first-degree murder (victim: E.O.), among other counts; sentenced to consecutive terms.
- The court of appeals vacated the attempted-murder conviction under double jeopardy, relying on the transferred-intent doctrine; the People sought certiorari.
- Colorado Supreme Court granted review, disapproved use of transferred intent in first-degree murder cases (and found it irrelevant in mistaken-identity cases), held the attempted-murder conviction was a lesser included offense of the murder conviction, and remanded to vacate the attempted-murder conviction.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of transferred-intent in first-degree murder | Transferred intent applies and supports treating the shooter as intending E.O., permitting separate attempted-murder conviction | Transferred intent is unnecessary under Colorado statute and should not be used to expand liability | Court disapproved transferred intent for first-degree murder: statute (§18-3-102(1)(a)) already encompasses unintended victims, making the doctrine unnecessary |
| Mistaken-identity vs. bad-aim distinction | The prosecution treated the events as implicating two distinct victims (E.O. and Y.M.) | This was a mistaken-identity case (one victim — the person shot), so transferred intent is immaterial | Mistaken-identity involves a single victim (the person aimed at); transferred intent is irrelevant; shooter intended the person he shot (Y.M.), even if he thought it was E.O. |
| Double jeopardy / multiplicity (are convictions factually distinct?) | Because charges named different victims, both convictions can stand as factually distinct offenses | Attempted first-degree murder is a lesser included offense of first-degree murder here and not factually distinct, so dual convictions violate double jeopardy | Attempted first-degree murder (as charged) is a lesser included offense and, under these facts, not factually distinct from the murder of Y.M.; conviction for attempt must merge and be vacated |
| Remedy / plain error review | Any error was not plain or that concurrent sentencing would cure issues | Trial court plainly erred; double jeopardy requires vacatur of the lesser conviction and remand | Court found plain error, vacated the attempted-murder conviction and sentence, and remanded to amend the mittimus |
Key Cases Cited
- Ryan v. People, 114 P. 306 (Colo. 1911) (early Colorado decision addressing killings of unintended victims under the murder statute)
- People v. Marcy, 628 P.2d 69 (Colo. 1981) (statutory interpretation showing no requirement that culpable conduct be directed at the person killed)
- Wieland v. State, 643 A.2d 446 (Md. Ct. Spec. App. 1994) (refusing to apply transferred intent in a mistaken-identity shooting; intended victim is the person actually shot)
- People v. Reyna-Abarca, 390 P.3d 816 (Colo. 2017) (test for lesser-included offenses: elements of lesser are subset of greater)
- People v. Wood, 433 P.3d 585 (Colo. 2019) (remedy for multiplicitous convictions: vacate one conviction and its sentence)