Meads v. People

Petitioner, MEADS, William of the State

The PEOPLE Colorado, Respondent.

No. 02SC590. Colorado, Supreme Court En Banc. 14, 2003. Oct. 3, 2003.* Rehearing Denied Nov. * MULLARKEY, grant would the Petition. Justice BENDER MARTINEZ Chief Justice Justice Kaplan,

David S8. Colorado State Public Defender, Renner, Tracy Deputy C. State Defender, Denver, Colorado, Public Attor- neys for Petitioner. Salazar, General, Attorney Ken Paul Koeh-

ler, General, Attorney Assistant Appellate Division, Section, Denver, Criminal Justice Colorado,Attorneys Respondent. Opinion Justice KOURLIS delivered the the Court.

I. Introduction

In this we address the issue of degree aggravated whether second motor vehicle thef t1 is a lesser-included offense of trial, Following jury theft.2 Defen dant William L. Meads was convictedof both Meads, offenses. 58 P.3d 1187 (Colo.App.2002), appeals the court of af convictions, concluding firmed both that see- ond motor vehicle theft was not a lesser-included offense of theft. Id. at 1189-1140. affirm appeals'

We the court of decision that second motor vehicle theft is not a lesser-included offense of theft. Applying the "strict elements test" 18-4-409(4), (2002). 18-4-401(1)(a), (2002). § 1. See 6 C.R.S. 2. See 6 C.R.S. of the same crim- offenses that arose out conclude two in this we relevant rejected episode. inal statutory elements de- argument and held that second all Meads' include offense, do theft is not gree aggravated motor vehicle of the lesser statutory elements Meads, 58 of theft. lesser-included offense P.3d at 1189-1140. is not a lesser-in- Accordingly, one theft. and the defendant of the other offense cluded appeals com- analysis, the court of In its for both offenses. convictions suffer could of theft and pared the elements aggravated motor vehicle degree second History and Procedural II. Facts main differences The court noted two theft. Petitioner, Meads, stood trial offenses. Id. at 1139. the the two between William family belonging to a of a truck for the theft First, the actor felony requires theft charged Meads with prosecution friend. deprive the permanently intent have the theft, 18-4- a of section felony violation thing of a of the use or benefit victim counsel, 401(1)(a). request- Through Meads requirement is not an mens rea value. This jury the instruct on court ed the degree aggravated motor of second degree aggravated motor offense of second Second, aggravated motor ve- vehicle theft. theft, violation of see- a misdemeanor vehicle thing a requires that the taken be hicle theft 18-4-409(4). asserted that Meads tion felony Conversely, theft motor vehicle. offense of charge was a lesser-included latter thing anything taken be requires that the give jury agreed court theft. The trial value. degree categorized second instruction but statutes, two comparing After theft as a lesser aggravated motor vehicle Leske, People v. appeals relied on court result, a offense of theft. As non-included (Colo.1998) and concluded that 957 P.2d 1030 option convicting Meads jury had the vehicle degree aggravated motor second offenses, ultimately find him did of both felony offense of theft is not a lesser-included degree felony theft and second guilty of both Meads, at 1139-1140. theft. 58 P.3d motor vehicle theft. Leske, that under the strict elements we held Meads to four The trial court sentenced test, establishing proof "if of the facts custody Department of years in the of the felony for the theft conviction. Corrections all of the elements of establishes him to Additionally, the trial court sentenced offense is in the lesser the lesser aggra jail degree the second year one for the of section 18-1- cluded conviction, and or vated 408(b)(a)" Leske, at 957 P.2d 10364 We run concurre that both sentences should dered "[ilf, however, clarify each went on to argues he ntly.3 the harm Meads necessarily requires proof of at least imposition of a mis has suffered is the both not, the other does one additional fact which felony and a conviction. demeanor conviction test not satisfied and a the strict elements is suffering argue that he is a He does not arises that convictions for both presumption a of the two convie- longer sentence as result legislative is with intent." consistent tions. Henderson, (citing People v. Id. (Colo.1991)). 1058,1063 convictions to the appealed Meads his asserting that second de- appeals, Analysis III. gree aggravated motor vehicle theft is less- crux of we are asked to deter- what result, As a er-included offense of theft. quite simple: pun- what mine in this case is argued, could not be convicted of Meads he 18-1-408(3), (2002). may of an offense includ- defendant be convicted 6 C.R.S. 3. See charged in the indictment or ed in an offense that, 18-1-408(1) expressly provides 4. Section included when [ilt information. An offense is so any a defendant establishes "[when conduct of by proof less than established of the same or offense, the the commission of more than one required to establish the commission all the facts prosecuted for each such of- defendant charged." of the offense 18-1-408(5)(a) "[al fense." states that Section legislature prescribed ishment has the guishable for a permit imposition of multiple criminal act? specifically, More punishments. Patton, 35 P.8d at 129. a person when is convictedof stealing a truck Thus, in order to answer question Colorado, charged can he be with and punishment what legislature intended for separate convicted of two arising crimes out an actor who Colorado, steals a truck in we view, of that incident? In our the court of engage in a two-part inquiry. First, See id. appeals correctly applied the strict elements did the Assembly General clearly authorize formally test adopted Rivera, in People v. separate punishments for stealing both "any- (1974). Therefore, 186 Colo. 525 P.2d 431 value", thing of required by as the felony the court of did not err in concluding statute, vehicle", and a "motor as re- degree that second motor vehicle theft is not quired by the aggravated mo- lesser-included offense of tor statute, vehicle theft or was one that, therefore, Meads could suffer convic punishment contemplated? Second, if no tions for arising both offenses out of the express such authorization is evident in the same incident. legislation, are these offenses otherwise suffi- ciently distinguishable permit to multiple Background A. punishments? Id. Jeopardy

Under the Double Claus es of both the United States and Colorado Legislative B.

Constitutions, Intent may punish state person twice for the same offense. Patton v. Where the same conduct violates 124, People, (Colo.2001)(cit 385P.8d 128-129 statutory two provisions, we must determine ing V; U.S. Const. amend. Colo. Const. art. whether legislature intended that each 18). II, § protection This specifically in violation separate Patton, be a 85 guarantee cludes the the accused will P.3d at (citing States, 129 Garrett v. United subject not be to multiple punishments im 773, 778, 471 2407, U.S. 105 S.Ct. 85 L.Ed.2d posed in the prosecution same criminal for (1985)). 764 legislative If the intent to create statutory proscribing offenses the same con separate offensesis clear from the face of the duct. Id. at 129. statute or legislative history, inquiry our

Ordinarily, ends. Id. legislature does not punish intend to the same offense under two Hunter, different statutes. See Missouri v. Our Assembly General express has 359, 366, 673, 459 678, U.S. 103 S.Ct. 74 ly provided that, any "[wlihen conduct of a L.Ed.2d 585 (1983)(quoting Whalen v. United defendant establishes the commission of States, 684, 691-692, 1482, 445 U.S. 100 S.Ct. offense, more than one may the defendant 1487-1488, (1980)); 68 L.Ed.2d 715 see also prosecuted Leske, for each such offense." (Colo. Haymaker, 110, 716 P.2d 116 18-1-408(1)). 957 P.2d at (citing This 1986). language clearly however, That is not say, to prosecutor authorizes a legislature may not Rather, choose to do so. charge a defendant with the violation of two upon a showing legislative intent, clear or more arising out of the same Assembly General is free However, to authorize multi conduct. general expression ple punishments upon based the same crimi of intent multiple charges allow for a nal conduct without offending Double single subject act is limitations. Paffon, Jeopardy 129; Clause. 35 P.3d at Specifically, may a defendant not be conviect- Leske, 1085; multiple ed of 957 P.2d at arising v. People, out of the Boulies (Colo.1989). 1278-1279 How same if conduct one offense is a lesser-includ ever, in the express absence of legislative offense, ed offense of the other as defined authorization, 18-1-408(5)(a)5 court must ascertain context, section In this the offenses sufficiently distin- order to determine whether one offense is a (5)(a) 5. Subsection required of section 18-1-408 defines a to establish the commission of the of- lesser-included offense as an offense "established charged." fense by proof of the same or less than all the facts another, greater-related offense but mon with the this court offense lesser-included or elements not essential have one two elements test. strict applies the crime.). Regardless of the greater

to the Test Elements C. Strict negative app of each positive or attributes adopted the strict this court has roach,6 determining whether one of In determining the means of elements test as category, the lesser-included is within fense is the lesser-included of whether one crime 18-1- has construed section court Thus, until a another crime. deci fense of 408(5)(a) of the stat require comparison approach a new Patton, sion to abandon this test for utory of each offense. elements made, test, apply the strict elements we must the strict elements at 180. Under P.3d "statutory test" as it stands. test known as also test," if of facts estab "Blockburger proof formally adopted court the strict ele This lishing elements of the Rivera, 525 P.2d at 4883-484. ments test all of the ele establishes Rivera, recognized that In this court the lesser the lesser ments of determining is a problem of what lesser- 18-1- section is included had re included offense under Colorado law 408(5)(a). Leske, 957 P.2d at 1086. Howev "varied treatment." Id. at 483. ceived er, necessarily requires proof if each offense among test oth choosing the strict elements fact which the other of at least one additional tests, pointed to competing er this court sev not, test is not satis the strict elements does adoption the of eral attributes that favored that a defen presumption fied and a arises statutory approach. Specifically, this the convicted of offenses. Id. dant can be both highlighted ease with which the court the Here, establishing the elements of the of applied, test is the uniform nature its greater in this does not neces application right and a to notice defendant's aggra all of sarily of the elements establish possible charges against him or her. theft, the lesser offense. vated result, thirty Id. at 488-434. As almost Therefore, presume our case law would that years applied we have the test set could enter on both offenses. convictions Rivera, out in which mandates that the is one of a The strict elements test every greater offense must establish essen in of tests used courts the United number tial element of the lesser offense. Id. at 483 to define a lesser-included offense. States 190, (citing People, Dan iels v. 159 Colo. Jeffries, generally State v. 480 N.W See (1966)). P.2d 316 (Iowa 1988) 728, (survey of 730-732 various in approaches used the United States de Applying the strict elements test in offenses); see also fine lesser-included State nothing placing volves more than the rele Meadors, 38, 731, 121 N.M. 908 P.2d other, comparing next to each vant statutes (1995) (same); Pflaum, Comment, Patrick D. determining closely language, the how Nothing: Preserving Justice is Not All or match,. they greater If the offense includes Integrity Through the Criminal Trials the of plus all lesser offense of the elements of the Statutory All-Or-Nothing Abolition elements, one or more additional it is fair to Doctrine, 289, 783 U.Colo.L.Rev. 295-298 say that the lesser offense is included within (2002) (other "Pleadings" tests include the Conversely, if greater a com approach charges the actual which examines parison of the two statutes reveals that brought by prosecution; the "Evidence" substantively offense has different ele lesser approach in which courts consider the evi greater than the the lesser ments presented at trial if evidence dence to see in the any charges; offense is not included supports lesser-included offense "Cognate" approach and the which identifies and a defendant be convicted both. lesser-related, lesser-included, analysis in analysis parallels This used opposed as com- Rivera. in offenses that have several elements (referring "proof argument legislature or less than all

6. There is even an that our of the same facts"). anticipates 18-1-408(5)(a) a different test. See Rivera, concluded, felonies, ap- arson, In this court after number of different including rape, robbery. test, We have held that a plying the strict elements that assault deadly weapon a lesser-in- with a was not predicate felony ais lesser-includ felony-murder premised ed offense of upon of assault with the intent cluded offense court commit murder. Id. at 484. This rea- so, felony. commission of that In doing we soned, by defining comparing the two relevant stat- have made clear that the offense after utes, that assault with the intent to commit potential in terms of a series of predicate deadly of a murder did not have the use felonies, legislature prescribe intended to weapon as an essential element. Id. prosecution" the "unit of to which the strict this court concluded assault with intent Boulies, applied. elements test must be See to commit murder did not all the establish 1274; see also v. Bartowshe crime, essential elements of the lesser as- (Colo.1983). ski, 661 P.2d 235 For deadly weapon, sault with a and could not be then, the strict elements test considered lesser-included offense. Id. felony-murder elements of lim therefore predicated upon ited to a homicide the com

Similarly, applying the strict elements test particular underlying felony, just mission of a to the relevant in this if proscribed as each were in a different felony offense of theft does not Whalen, statutory provision. 445 U.S. at aggra Cf. include all of the essential elements of 694, ("'There 100 S.Ct. 1432 would be no vated motor theft.7 The latter question regard if Congress, instead only by obtaining exercising committed listing the six lesser included vehicle, control over a motor while the for alternative, separately proscribed had by obtaining mer can be committed or exer species six different murder under cising any things control number of over statutory provisions."). six differently, are not motor vehicles. Stated proof that a defendant obtained or exercised Bartowsheski, 661 P.2d at "anything control over of value" does not analyzed court defendant could be mecessarily establish that a defendant ob simultaneously felony convicted of both mur- tained or exercised control over a "motor predicate felony der and the robbery of with- sup vehicle." That conclusioncould be violating statutory provisions out the of see- ported by viewing pleadings either the or the tion 18-1-408. We concluded that because trial; inquiry evidence an adduced at outside proof upon of the offense "based the purview the of the strict elements test. robbery death, causation of the victim's ei- Thus, although aggravated the offense of mo ther in the course of or in furtherance of the by tor vehicle theft be established the robbery crime of or in the course of immedi- establishing felony in facts theft therefrom," flight necessarily ate included case, it is not established proof very of the same elements essential proof of the same or less than all of the offense, robbery, the lesser a conviction on felony elements of theft. both could offenses not stand. Id. at 245- portion precedent A of our on this issue Thus, in 246. Bartowsheski the court com- felony has in arisen murder context. pared proof required of in each apposite Those cases are not because of the statute, thereby robbery and determined that necessarily parasitic relationship between the felony was a lesser-included offense of mur- felony underlying murder offense and the predicated upon robbery. der note that We offense on In predicated. which it is other analysis goals effectuated the articulated words, a defendant cannot be convicted of Rivera-efficiency, uniformity, in and notice felony guilty murder he is of an un- unless to defendants. derlying qualifying offense. 1278-1279, 770 P.2d at Boulies Felony expressly murder is a homicide that court relied more on the unit of during occurs prosecution theory, reasoning commission of one of a that the rob at cial difference" between same two statutes Westrum, 7. We note that court, (Colo.1981), engaging issue in this case. protection recognized equal analysis, an a "cru- motor ve- degree aggravated felony second whereas for the predicate was bery offense element, that does not include thus, hicle theft and, was the "same conviction murder jeopardy. aggravated motor degree of double second for therefore offense" offense is not a lesser-included to unit of vehicle theft case looked in that The court Second, of held the court of theft. compare the charged to actually prosecution aggravated mo- degree that because second offenses, to the elements than rather two thing taken requires that ap This tor vehicle theft statute. felony murder the entire vehicle, that requires theft while analysis in this a motor our guide cannot proach value, anything of felony thing taken be murder to the in contrast because vehicle aggravated motor not legislature chose second statutes-here of theft. units is not a lesser-included separate theft in terms theft define ap- court of majority agrees with the prosecution. and does not ad- point second peals on the however, has, legislature disagree I with both the first. dress against protection without the defendant left appeals arguments. for the same conduct. multiple punishments First, motor degree aggravated ve- second are not related as two Even where all of the ele- not contain hicle theft need offenses within included greater and lesser a lesser-included of theft to be ments test, con meaning the strict elements must of theft proof of the elements While committing offenses cannot two for victions the elements of necessarily include all of if the conviec- sentences in consecutive result or series of the same act on tions are based degree aggravated motor for second episode criminal arising the same from acts theft to be a lesser-included by identical evidence. they supported Therefore, is not true. the converse 18-1-408@8). Although in the defendant requires the additional the fact for theft of conviction both judgments curred permanently deprive" of "intent motor vehicle theft of the prevent second does not result his sentences truck in this same being a lesser-in- vehicle theft from properly were those convictions ing from of theft. cluded offense sentences. concurrent value," Second, element, "anything of Conclusion IV. vehicle. A mo- necessarily includes a motor value under the thing is a of tor vehicle view, applying the strict In our between the the difference statute. case leads this the relevant test to compel the con- degree aggra- statutory elements does not that second to the conclusion degree aggravated motor that second clusion not a lesser- vehicle theft is vated motor not a lesser-included offense theft is vehicle According felony theft. offense of included contrary, it illustrates To the of theft. appeals uphold and ly, the court of we affirm lesser-greater relationship between the two by trial two convictions imposition of offenses. court. degree I would find that second Because dissents, and Chief MARTINEZ Justice is a lesser- aggravated motor vehicle theft and Justice

Justice MULLARKEY theft, respectfully dis- of I included offense join in the dissent. BENDER sent. dissenting: Justice MARTINEZ Elements Test The Strict Introduction: decisionthat appeals of based its The court motor vehicle degree aggravated analysis of the case second I commence an Before offense of hand, a lesser-included which stat- theft was not I the test under at review a compared to determine the of- utes two distinctions between theft on First, appeals decided lesser-included a relationship exists. Under the court fenses. test, compare a court should actor strict elements requires that that theft because offenses. Peo- statutory elements of the deprive, permanently have the intent to (1) requires: (Colo.1998). Leske, 1080, the added mens rea of ple v. 957 P.2d test, applying permanently a strict elements to deprive, When courts intent while second degree should not examine the facts evidence of motor vehicle theft no has (2) requirement; the individual but should limit their such object and that value, comparison language anything of the taken be whereas second degree aggravated motor vehicle theft re- Id.; elements of the two offenses. Armin (Colo.1998). quires object that taken be a motor vehi- People, v. trout cle. theft, charged Meads was with a violation 18-4-401(1)(a), (2002), of section 6 C.R.S. appeals The court of relied on both of jury accordingly. was instructed differences, these majority whereas the relies latter, only on the jury to find that district court also instructed the second degree aggravated

offense of second motor aggravated motor vehicle theft is not a less- theft, er-included offense of theft. a violation of section 18-4- I do not find 409(4), (2002), that either of these distinctions forecloses the a 6 C.R.S. as lesser-noninelud- a ed offense. Because strict elements test possibility of a relationship. lesser-included involves, suggests, comparison its name a as contrary, To the the differences in the stat- elements, compari- and not a merely utes illustrate the nature of a lesser- any particular son of the facts in relationship. included court need look no further than the offenses

charged. I. Theft's Additional Element-'"Intent Permanently Deprive"

Theft, 18-4-401(1)(a), a violation of section requires following that the elements be met: Péople argument make the that see- (1) defendant, degree aggravated ond motor vehicle theft is that the in the state of Colo-

rado, place at or about the date and not a lesser-included offense of theft because charged, element, requires an additional the in (2) permanently deprive, tent is not re knowingly by quired a. obtained or exercised control over majority vehicle theft. The did not address anything b. value argument merely assume, seems to property c. which was the of another correctly, albeit person, have additional elements not included in the d. without authorization or threat or Nonetheless, lesser offense. because the deception, and separately relied on this (8) permanently deprive with intent argument, clarify I write to the misunder person other of the use or benefit of the standing which I believe result state thing of value. opinion, People ments made in this court's Leske, (Colo.1998). Second 957P.2d 1030 18-4-409(4), a violation of section re- People's The confusionin the and the court quires: arguments appeals' stems from the follow- (1) defendant, that the in the state of Colo- ing language: rado, place at or about the date and If, however, necessarily each offense re- charged, quires proof of at least one additional fact (2) knowingly, not, which the other does the strict ele- (8) obtained or exercised control over a presump- ments test is not satisfied a and vehicle, tion arises that both convictions for both (4) belonging person, to another legislative in- offenses is consistent with (5) tent. without authorization or threat or

deception. (citations omitted). Leske, 957 P.2d at 1086 Comparing People language support elements of theft cite to this and second proposition that for an offense to be a theft Specifically, reveals two distinctions. greater lesser-included of a its stat- and relationship between lesser-included need to be identical would

utory elements identical of- greater greater offense. offenses is not that of by the required those greater However, contrary, to the strict it is that language refers fenses. To the jeop- under a double employed test elements of lesser- possess all of the elements two of- determine whether analysis plus at least one additional ardy included offenses conduct; it does not identical punish fenses part of an element. element employed test elements to the strict refer offenses need not Because lesser-included analysis to jeopardy deter- under a double greater, elements of the contain all a lesser-included offense is an mine whether the additional mens rea and because of another offense offense, it does greater in the is included confusion exists because I believe lesser-greater rela- an to a pose not obstacle is used to determine test a strict Consequently, disagree I with the tionship. First, whether dou- violations: three kinds of distinction that this between multi- punishment for prohibits jeopardy ble degree aggra- prevents the offenses punish the statutes ple offenses because being from a less- motor vehicle theft vated see, conduct, People, eg., Boulies v. identical er-included offense theft. second, (Colo.1989); 1274, 1278 P.2d multiple jeopardy disallows whether double Thing of Value II. A Motor Vehicle is one offense is a lesser- convictions because id.; third, other, e.g., see included of the vehicle," element, taking a "motor con protection violation arises equal an whether mo tained the second punished dif- could be a defendant because clearly falls within the theft tor theft statute multiple for identical ferently under element, taking "anything of value." The Westrum, see, conduct, eg., People disagree majority does not seem to with this (Colo.1981). because P.2d 1302 argues that while proposition outright, but pur- is used for different type of test same prove the evidence used to the elements that test language associated with poses, the of second may establish the elements apply particular to a case. always not does in a degree aggravated motor vehicle misinterpret- In have prove given the evidence used analysis out- offense ed the lesser-included elements of theft will estab by incorporating into it the lined in Leske aggravat of second lish the elements identifying vio- analysis whether statutes for in all cases. This ed motor vehicle theft they punish jeopardy because late double persuasive. It not the nature point is not Leske, this court was identical conduct. relationships that the evi of lesser-included question of an both the faced with prove dence used to the elements a lesser-included offense was particular in a case will nee- were identical. Howev- whether the offenses every pos essarily the elements of establish er, in this case is not whether the inquiry example, offense. For sible lesser-included identical of either statutes are a wallet was taken does not estab proof that analy- equal protection or an jeopardy double taking element of a motor vehicle. lish the sis; rather, the sole issue is whether a lesser- However, the strict elements test dictates exists, relationship and thus wheth- included compare only the ele that courts properly punished er the defendant question, and not ments of the offenses statutes. under both proof in a case. examine the actual lesser-included offense argue To that a Leske, 957 P.2d at 1036. only relationship exists when neither not majority that theft does decides statutory an additional contains motor vehi aggravated of include the offense say- tantamount required by the other is can be committed cle theft because theft a lesser-included of- ing that an offense is value," taking "anything of whereas second only are identical fense if its elements degree aggravated motor vehicle theft re nature of greater those of the offense. The evidence, the that something other than a quires taking the of a "motor vehicle." majority in noting taken, While the is correct that motor vehicle was support would not a object under the theft statute the taken can motor vehicle theft instruction. "anything

be of value" whereas under Here, the issue is not whether the lesser- degree aggravated second motor vehicle included offense instruction should have been object theft the taken must be a motor vehi given under the facts of this but wheth- cle, prevent this distinction does not second er second motor vehicle degree aggravated motor vehicle theft from theft is a lesser-included offense of theft. being a lesser-included offense of theft. Thus, this court is determining whether the Rather, pertinent inquiry is whether the statutory obtaining element of exercising or statutory taking element of "a motor vehicle" vehicle, control over a motor required by as statutory is included within the element of the statute degree second aggravated taking "anything of value." theft, motor vehicle necessarily is included theft, statutory within the

Under element of obtaining element defin- and exercising ing anything value, the item control over "anything taken as of value" is of regard without very in to the specify broad it does not a facts of the case. Be- cause the category of "anything item. The theft statute of alternates value" value, "thing everything use of includes of "anything of value" and and of because a 18-4-401(1)(a). value, motor thing § vehicle is a of value." I Within the defini- would find 18, tion "thing section for title value" element "a motor vehicle" is category included within the "anything property, tangible intangi- includes real and of value." Accordingly, ble, the element of ob- personal property, rights, contract chos- action, services, taining exercising es in confidential control over a informa- motor tion, information, vehicle is included within any medical records the element of ob- taining or rights enjoyment exercising control anything use or over connected there- (2002). 18-1-901(8)(r), with. 6 CRS. A value. tangible personal motor vehicle is property The fact that "anything of value" also en- therefore, thing a of value. any tails things number of other besides here; motor significant vehicles is not may great- The fact that a defendant charged may er encompass parts elements or with theft of something other than a motor only required by elements not important vehicle becomes when deter- lesser-includ- ed offense if mining give all of the elements of the lesser- lesser-included included offense jury. offense instruction to included A defendant within is not the elements of the entitled to a lesser-included offense disagree I just majority instruction with the degree because that mere- ag- second ly gravated may objects because theft include other is a lesser-in- vehicles, Rather, degree than motor aggravat- cluded offense of second theft. a defendant ed motor is entitled to an vehicle not be a lesser- instruction on a lesser-in- included offense of cluded offense if theft. there is some evidence tending to establish the lesser-included of- Conclusion fense and upon there is a rational basis which jury may acquit First, the defendant of the the fact that theft contains the "in- greater offense but convict him permanently or her of the tent to deprive," an element not in present 1, 6, second Naranjo, lesser. 200 Colo. (1980). Therefore, a prevent degree does not second charged case where the defendant with being motor vehicle theft from something theft of Second, other than a motor vehi- lesser-included offense of theft. cle, the defendant proper would not be entitled to an application of the strict elements test instruction on the lesser-included offense of taking results the conclusion that degree motor vehicle theft because "motor vehicle" element of second majority felony 1. length. analysis discusses pertinent murder at murder is not to the However, majority ultimately recognizes, as the issues before us. wholly in- aggravated motor "anything of value" taking

cluded within I conclude of theft. is a motor vehicle theft I would of theft and lesser-included Accordingly, I appeals. the court reverse dissent. respectfully say that Chief Justice I am authorized join in BENDER and Justice MULLARKEY dissent. REQUESTS Matter of the In the INVESTIGATION OF FOR E.

ATTORNEY No. 01SA404. Colorado, Supreme Court En Banc. 14, 2003. Oct.

Case Details

Case Name: Meads v. People

Court Name: Supreme Court of Colorado

Date Published: Oct 14, 2003

Citation: 78 P.3d 290

Docket Number: 02SC590

Court Abbreviation: Colo.