Zubiate v. People
390 P.3d 394
| Colo. | 2017Background
- Vanessa Zubiate was charged with aggravated driving after revocation (aggravated DARP) and driving under revocation (DUR) after a traffic stop; she pleaded guilty to DUR and was later tried and convicted of aggravated DARP.
- She did not object at trial that the charging or convictions violated double jeopardy or seek merger of convictions.
- On appeal Zubiate argued for the first time that DUR is a lesser included offense of aggravated DARP and that her DUR conviction must merge with aggravated DARP under double jeopardy principles.
- The court of appeals reviewed the unpreserved double jeopardy claim for plain error and concluded DUR is not a lesser included offense of aggravated DARP; the Colorado Supreme Court granted certiorari to resolve (1) whether unpreserved double jeopardy claims can be raised on appeal and the correct standard of review and (2) whether DUR is a lesser included offense of aggravated DARP.
- The Supreme Court held that unpreserved double jeopardy claims can be raised for the first time on appeal and are ordinarily reviewed for plain error, and it concluded that DUR is not a lesser included offense of aggravated DARP because DUR’s elements (including driving an off-highway vehicle) are not a subset of aggravated DARP’s elements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May an unpreserved double jeopardy claim be raised for the first time on appeal and what standard governs? | Zubiate: such claims may be raised on appeal; courts should review for plain error. | People: claim waived under Crim. P. 12(b)(2) or by DUR guilty plea. | Yes; unpreserved double jeopardy claims can be raised on appeal and are ordinarily reviewed for plain error. |
| Does a guilty plea to a lesser offense waive a subsequent double jeopardy claim arising after a later conviction? | Zubiate: plea to DUR did not waive a double jeopardy claim that ripened only after conviction of aggravated DARP. | People: guilty plea waived related constitutional claims. | Plea did not waive the double jeopardy claim because the claim ripened only after the subsequent conviction. |
| Is DUR a lesser included offense of aggravated DARP under the strict elements test? | Zubiate: DUR is a lesser included offense so convictions must merge. | People: DUR requires proof of an additional element (revocation based on alcohol-related offense) and thus is not lesser included. | DUR is not a lesser included offense of aggravated DARP because DUR’s elements (motor vehicle or off-highway vehicle) are not a subset of aggravated DARP’s elements (motor vehicle/operate). |
| Does the sentence-enhancer argument affect lesser-included analysis? | People (alternative): enhancement for alcohol-related revocation is a sentencing factor, not an element. | Division: enhancement is inapposite; other element differences control. | Court rejected the enhancer distinction as dispositive here and relied on element mismatch (off-highway vehicle) to deny inclusion. |
Key Cases Cited
- Reyna-Abarca v. People, 390 P.3d 816 (clarified that unpreserved double jeopardy claims may be raised on appeal and reaffirmed the strict elements test for lesser-included offenses)
- Schmuck v. United States, 489 U.S. 705 (adopted strict elements/subset test for lesser-included offenses)
- Tollett v. Henderson, 411 U.S. 258 (guilty plea generally precludes review of pre-plea constitutional claims)
- Neuhaus v. People, 289 P.3d 19 (discussed effect of guilty plea on appellate review in Colorado)
- People v. Greer, 262 P.3d 920 (double jeopardy claim ripens upon conviction of multiple offenses)