*1 “juniоr” part is “no of a name” and rial since judgment made clear that
recitation plaintiff’s fa- judgment was rendered
vor). Accordingly, I would hold that rejected signatures
Secretary improperly “junior” designation “senior” or
where the petition
had been omitted either list.
the master Colorado,
The PEOPLE of the State of
Plaintiff-Appellant, NGUYEN, Defendant-Appellee.
Duc
No. 94SA317. Colorado,
Supreme Court
En Banc.
June 1995.
Rehearing Aug. Denied *2 Vela, Defender,
David F. State Public Kar- Defender, Gerash, Deputy en M. State Public Denver, defendant-appellee. for Justice MULLARKEY delivered Opinion of the Court. People appeal an order of the district vacating Ngu-
court two of defendant Due yen’s convictions of second assault on grounds that the section of the second convicted, assault statute under which he was 18-3-203(l)(b), (1986), 8A C.R.S. vio- equal protection guaran- lates XIV; tees.1 Amend. U.S. Const. Colo. Const, II, art. 25. The and Due Nguyen agree in that the district court erred striking portion the substantive of the statute They vacating the convictions. also agree that the case must be remanded for However, resentencing. they disagree on portion of the statute that should be severed to cure the constitutional defect. hold that the is to We mandatory strike the crime of violence sen- tencing provision under section 18-3- 203(2)(c) as it (l)(b) degree assault under subsection resentencing remand the case for as a class 4 I. July Nguyen participated
On by” shooting County a “drive Jefferson during which he fired a semi-automatic fire- arm the direction of three teen- aged boys, Binny Quintana, Michael Peter- son, and Jason Smith. One bullet struck Peterson in Michael the ankle. The other boys injured. two were not Thomas, Atty., jury Nguyen guilty Dist. Donna David J. Skin- found Due of at- Reed, Appellate Deputy tempted manslaughter2 ner Chief Dist. and three counts of Golden, Atty., plaintiff-appellant. for assault.3 The court sentenced offense, people appeal directly pursu- engages to this court commission of 13-4-102(l)(b), (1987 constituting step ant to section 6A C.R.S. conduct a substantial toward Supp.), 8A C.R.S. the commission of the offense. 18-2-101(1), (1986). Supp.), and C.A.R. 3. 8B C.R.S. 3."A commits the crime of assault in the manslaughter 2. "A commits the crime of ... [w]ith second injury if intent recklessly [h]e if ... causes the death of another to another he causes or 18-3-104(l)(a), person." any person by cause such Supp.). Pursuant to criminal intent deadly weapon; ....” statute: if, 3—203(l)(b), acting commits criminal 18— culpability with the kind of otherwise years Department II. Nguyen to in the four attempted manslaughter; Corrections agree parties We with the on years for second fourteen degree assault statute violates consti Peterson; years for second de- Michael ten protection guarantees. tutional While *3 Binny Quintana; and ten gree assault on prerogative we have held that it is the degree on years for second assault Jason penalties “to establish the which sentences for second de- Smith. The three offenses,” particular apply are to to criminal consecutively gree assault were to run Bramlett, People v. 573 concurrently the four- each other and (1977), “[e)qual protection P.2d 97 re year attempted manslaughter. sentence for quires that classifications of crimes be based on differences that are real in fact Nguyen appealed his convictions reasonably purposes and are related to the of appeals the court of and then filed a motion legislation.” People appeals for with the court of limited remand (Colo.1984). A 1082 scheme to the district court for consideration of a that causes an offender who acts with less 35(c) 35(c) motion. The mo- Crim.P. Crim.P. culpable intent and who causes the less requested tion that the district court vacate grievous greater penalty result to receive the degree assault on his convictions second “constitutionally People, infirm.” is Smith v. Quintana and or resentence him for Smith (Colo.1993). 422 presumptive range the two convictions Nguyen under which Due The statute grounds for class 5 felonies on that the stat- was convicted and sentenced creates such an ute under which he was convicted violatеd unconstitutional result. 18-3-203 Section protection. appeals The court of provides: granted the motion for limited remand. (1) commits the crime of assault remand, limited the trial court found On in the if: second 3—203(l)(b), section under which Due 18— convicted, Nguyen was to be a violation of (b) With intent to cause equal protection guarantees under the Unit- he causes or ed States and Colorado Constitutions be- cause such imposed penal- cause the statute more severe deadly weapon; aof attempted ties fоr assault4 attempted than for the more severe crime of (2)(b) If assault in the second is assault. On a second limited passion], committed without it is a [heat appeals grant remand from the court of class n felony. appropriate,” “relief as the trial court deems (e) If a convicted defendant is assault Nguyen’s trial court vacated Due two degree pursuant parar in the second convictions for as- (a), (b), (c), (d), graph (g) of subsection sault. section, of this the court shall sentence pro- in accordancе with the court, appeal On to this concede defendant 16-11-309, section visions the second assault statute vio- (1986 Likewise, equal protection guarantees. Supp.) lates & 1994 added).5 Nguyen (emphasis district court 16-11-309 re- concedes Section quires that: improperly par- vacated his convictions. The disagree portion
ties on what of the statute Any person convicted of a crime of violence must be severed to cure the constitutional pursuant shall be sentenced to section 18- 1-105(9), C.R.S. to a term of incarceration defect. (b) only attempt 4. We will refer to an 5. Subsection is the subsection that in- injury by “attempt- cludes within its definition of second assault,” though ed second even it is a degree assault. form of second to sec- 18-3-203(l)(b). midpoint presumptive at least the Criminal class range, felony felony; but not more than twice the maxi- is a class criminal term, provided felony mum for such offense to commit a class 2 a class 3 is 18-l-105(l)(a), felony; criminal to commit a felony felony; class is a class criminal l (em- 16-11-309(1), Supp.) 8A C.R.S. felony to commit a class 4 is a added). phasis Pursuant 18—1— felony; 105(l)(a)(IV), a class 4 to a 5 or 6 a class is a class 6 penalty presumptive range eight from two to Supp.) & 1994 Thus, years. presumptive sentencing convicted of range *4 attempted degree first assault thus would be years. a is sixteen five to subject presumptive within the contrast, attempted degree first assault range eight years two to of for a class 4 subject presumptive sentencing range to a is 18-l-105(l)(a)(IV). felony pursuant to section eight years. degree of two The first as- scheme, statutory this Under the sen providеs: statute sault range tencing to commit serious commits the crime of assault in (two deadly with a weapon degree the first if: eight years) range is less than the for at (a) With intent tempt deadly injury to he causes seri- (five weapon years). Accordingly, to sixteen by ous degree statute, the second assault section 18- weapon; of 3-203, equal protection guarantees violates imposes it penalty because a harsher for less serious criminal conduct than does the first (2)(b) If assault in the first is com- statute, degree assault sectiоn 18-3-202. passion], mitted without of it [heat is a statutory provision When a is found unconstitutional, (c) to be If a defendant is convicted of assault in degree pursuant the first paragraph remaining provisions the of the are statute (a), (e.5) (e), (e), (f) of subsection of valid, appears unless it court to the section, the court shall sentence the provisions the valid of the statute are so provi- the accordance with essentially with, inseparably and defendant connected sions dependent upon, provision and so the vоid presumed, cannot that it be the 8B Supp.) provisions have would enacted the valid one; without the void the or unless court Since this statute does include not provisions, determines that the valid stand within definition of the crime of first alone, ing incomplete incapable are and are assault, attempted first as- being executed accordance with the general falls sault under the criminal legislative intent. statute, section 18-2-101. 18-2-101 Section 2-4r-204, (1980).6 Furthermore, IB C.R.S. provides: determining severability “[i]n of the sec if, commits criminal statute, tions of thе court must look to acting with culpability the kind of other- Project-Com intent.” Colorado offense, wise of an commission Anderson, 402, 404, mon Cause 177 Colo. engages constituting in conduct a sub- (1972). disputed 495 P.2d issue step stantial toward the commission of the this case which statute offense. must be severed to the constitutional defect. Vinnola, special People
6. Unless the statute contains a severabili- 4-204. ty provision, (1972). where a statute is unconstitutional 494 P.2d apply provision, severability 2- Therefore, legisla- at argue it is the People рrerogative punish assault ture’s crimes of the second stat- different treatment it penalty, may punish with the but ute the crime of violence sentenc- same is to strike attempted ing provision as it sec- a more serious crime with a less severe penalty. assault under section 18-3- ond
203(l)(b).
make
This solution would
at-
then,
eases,
prior
both the
Under our
tempted
under
proposal
proposal
18-3-203(l)(b)
subject
a class 4
Nguyen
cure
constitutional defect
penalty as
presumptive range
at-
instant
scheme. The
tempted
Due Nguyen
assault.
proposed by
Nguyen
would strike
disagrees
argues
equal protec-
18-3-203(l)(b)
attempt language from section
remains if
offenses are
violation
both
that, by operation
so
subject
punishment because
to the same
at-
the offense of
tempted
a less
assault is
seri-
would
to a
“only
He
ous offense.
contends that
(class
penalty
range)
than the
lesser
construction of
subsection
culpable
more
first de
offense
(l)(b)
attempt language
is to strike
*5
(class
felony range).
4
gree assault
provision,
the
and to
substantivе
sentence
proposed
People
the
would strike
Nguyen
Due
in accordance with the
sentencing
attempt
the crime of violence
attempt statute which authorizes a reduction
18-3-203(l)(b)
so
ed
under section
in
the class of
for which
stands
the
to the
that
two offenses would be
convicted.”
ie.,
penalty range,
class 4
presumptive
same
proposal
that either
would
We find
cure
Thus,
either
would
range.
solution
Smith,
the
In
we
constitutional defect.
held
create
constitutional result.
that
“when an offender who acts
less
Nevertheless,
People’s approach
culpable
may
greater penalty
intent
receive
supported by our earlier
that have
cases
greater
than the offender who acts with a
constitutionality
addressed
of the second
intent,
culpable
such a
scheme is
It is
con-
degree assault statute.
also more
‘unreasonably structured’ and ‘constitutional-
legislative
sistent with
intent.
infirm,’
ly
though
even
the two offenses re-
Smith,
sult in the same harm.”
852 P.2d at
enhanced,
Striking
application of
crime
basis,
we
down an
On this
struck
earli-
sentencing
of violence
is consistent with
sentencing provision
Smith,
er
of the
of the
version
remedy we
in
In
selected
Smith.
degree assault
second
statute because it re-
here,
degree as-
of the second
version
quired
of violence”
enhanced “crime
sentenc-
equal protec-
sault statute at issue violated
ing
an offender acted with intent
when
required
“crime of
tion because it
enhanced
bodily injury but
an
cause
not when
offender
sentencing when an
acted
violence”
offender
bodily
acted with intent
cause serious
en-
with intent
while
Blizzard,
Id.;
injury.
also People
see
v.
852
an
sentencing
hanced
was
when
(Colo.1993).
P.2d
419
intent
serious
offender
with
to cause
acted
vio-
injury. To cure
constitutional
However,
consistently
we
have held
crime
lation
we severed the
Smith
legislature provides
where
than
sentencing
rather
violence
crimes,
penalty for different
or the same
striking any part of the substantive definition
penalty for the same crime with alternate
with Weller to language strike the we reverse the district judgment court’s va- 18-3-203(l)(b) equal protec- on cating Nguyen’s two convictions for at- grounds. tempted assault and remand Finally, to strike the lan the case resentencing consistent with this 18-3-203(l)(b) guage from section would be opinion. contrary intent. “When a stat *6 amended, judicial ute is pre construction dissenting; Justice LOHR viously placed upon the statute is deemed approved by Assembly the General to the This requires case us to determine the extent provision remains un appropriate remedy protection changed.” Rauschenberger Radetsky, 745 violation that results a 640, (Colo.1987); § see also 2-4^208 scheme that authorizes a more severe sen- (“A reenacted, revised, statute which is or tence for attempt bodily injury cause with amended is intended to a deadly be continuation of weapon than for attempt to cause prior enactment, statute and not a new bodily injury serious deadly with a weapon. insofar as it is the prior same as the majority stat The remedy elects a that classifies ute.”). degree Since the second as both of these crimes as class 4 felonies and sault statute has been amended seven times8 therefore results in the same authorized sen- (l)(b) without modification to subsection tencing range for each. recog- order to any the inclusion of other subsec nize that bodily serious tion of degree the second injury deadly statute. weapon is a more seri- Because the has declined to modi ous crime than attempt fy statute, legisla conclude that the injury deadly weapon, with a I would elect a ture intended that bodily remedy categorizes the former offense injury sentenced as a class 4 and the latter as a class 5 pursuant (l)(b) to subsection rather felony. than Accordingly, I respectfully dissent to criminаl majority opinion. (l)(a) 1, 138, repealed 3, Subsection July 18-3-203(2)(c), was effective § 8. Ch. sec. 287, 8, 18-3-203(l)(a), 776-77; 144, 2, § 1994. See Ch. sec. Sess.Laws § Ch. sec. 18—3— 203(l)(f), 789; 125, provided: Colo.Sess.Laws 1986 Colo.Sess.Laws 1717. It Ch. 4; 18-3-203(2)(c), § sec. 1988 Colo.Sess.Laws (1) person commits the crime of assault in 717; 128, 9, 18-3-203(l)(£), § Ch. sec. degree the second if: 986; 130, 2, § Colo.Sess.Laws Ch. sec. 18-3- (a) With bodily injury intent to cause serious 203(l)(f), 992; 73, 1990 Colo.Sess.Laws Ch. sec. person, injury another does cause such 18-3-203(2)(a) (2)(c), §§ & 1991 Colo.Sess. any person; 405; .... 18-3-203(l)(a), § Laws Ch. sec. 18-3-203(l)(a) (1986). § 1994 Colo.Sess.Laws 1717.
and the Colorado Constitution because it au- imposition penalty thorizes оf a more severe adequately majority opinion sets forth for conduct that is less serious than conduct background of procedural the facts and constituting attempted first assault. case, repeat them. and will The defendant was convicted of two counts II. provision assault under the of second equal protection As a for the viola- proscribing of section 18-3-203 tion, the trial court vacated the defendant’s to another two convictions for second deadly weapon. § 18-3- means of a attempt. prosecu- that were based on (1986). 203(l)(b), offense, 8B C.R.S. This asserts, concedes, and the defendant passion, absent heat of constitutes a class 4 improper. that this was Our task is (1986), 18-3-203(2)(b), § felony, 8B C.R.S. determine of the second requires sentencing under mandato- degree sexual assault statute that must be ry provision prescribed crime of violence defect, severed to cure the constitutional (1986 8A C.R.S. & 1994 resentencing appropriate.1 to direct 18-3-203(2)(c), Supp.). notes, Supp.). majority As the portions The relevant of the second sentenсing range for such an offense is five assault statute are as follows: years. Maj. op. to sixteen at 40. commits the crime of assault proscribes, The first assault statute if: the second conduct, among causing other injury person by to another (b) With intent to cause 18-3-202(l)(a), weapon. he causes or Absent heat of cause such passion, assault is a class 3 felo- deadly weapon; of a 18-3-202(2)(b), (1986). ny. 8B At- tempt pro- to commit first assault is (2)(b) If assault in the second scribed under the passion], [heat committed without it is a 8B class k 18-2-101(4). Supp.), felony, § and is а class *7 (c) If a defendant is convicted assault of sentencing range attempt The for to commit degree pursuant para- in the second to years. eight first assault is two to (a), (b), (c), (d), graph (g) or of subsection maj. op. at 40. See (1) section, of this the court shall sentence “[ujnder majority acknowledges, As the pro- the in accordance with the defendant scheme, statutory sentencing range 16-11-209, visions section C.R.S. of attempt bodily injury to commit serious 18-3-203, Supp.) & 1994 (two deadly weapon eight years) to is 8A Section range attempt less than the (1994 Supp.), to which reference is C.R.S. (five a to 18-3-203(2)(c), provides, as made section Maj. years).” op. agree at 40. sixteen relevant here: majority prosecution with the con- —and Any person convicted of a crime of violence reason, cedes—that for this section' 18-3- 203(l)(b) be sentenced to section 18- equal protection guar- shall violates the C.R.S., 1-106(9), to a of incarceration antees of both the United States Constitution term determining severability presumed legislature 1. of a would have enactеd In specific provision language one; in the absence of provisions the void or the valid without itself, 204, by guided the statute we are IB pro- 2-4— the court determines that the valid unless (1980), C.R.S. which states: visions, alone, standing incomplete are and are any provision by If of a statute is found a court incapable being in accordance of executed competent jurisdiction of al, to be unconstitution- legislative with the intent. remaining provisions statute are agree, majority parties and as do The as does the valid, appears unless it to the court that the I, in this that severance is an provisions essentially the statute valid are so language case. It is the identification of with, inseparably depen- and connected and so be severed that is at issue. upon, dent it cannot be void midpoint in the presumptive Moreover,
of at least the the difference between range, more than twice the maxi- but not criminal conduct involved in the second de- term, mum gree for such at provided offense assault offense issue here and in 18-l-105(l)(a), attеmpted first assault is limited the result seriousness of the actor majority The the crime of strikes violence intends attempts. order to 3—203(2)(c) provision in section sentencing IS— under section 18-3- attempts bodily as it cause 203(l)(b), must the actor intend and 18-3-203(l)(b), injury under thus bodily injury. to cause In order to commit making a for second conviction as- assault under section felony sault based on conduct a class 4 such 18-3-202 and 18-2-101 the actor must intend a to enhanced bodily injury. cause serious See maj. 41, op. crime of at violence. only The distinction between the two crimes adopt I would is to strike the severity is the of the intended and words “or cause” from section See, e.g., People to the victim. 18-3-203(l)(b). bodily An Martinez, injury punishable would then under (differentiating between statute, 8B first and recogniz- Supp.), & 1994 and would con- ing that injury “[t]he basic element to a stitute a under class 5 subsection person’s body, being the difference one of the of that latter which makes criminal injury”). All the other ele- felony here, to commit a class 4 — ments of the offenses two are the same. assault —a class 5 has bodily defined seriоus 18-2-101). maj. op. (quoting at 40 injury encompass consequences much recognized that it We have is within the bodily injury. more severe than The terms legislative prerogative to determine that dif- are defined as follows: ferent involving crimes or crimes alternative (c) “Bodily injury” physical pain, means culpability requirements equally are serious illness, impairment physical or placed and can be the same mental condition. violating right without the constitutional Cowden, People v. protection. (p) bodily injury” “Serious (Colo.1987); Aragon, P.2d which, injury eithеr at the time of the (Colo.1982).2 pres- In the time, injury actual a later or at involves however, case, ent there is no death, substantial risk of substantial risk determination that second assault in- permanent disfigurement, a sub- volving *8 stantial protracted impair- risk of loss or weapon and any part ment of the organ function or assault, which involves breaks, body, fractures, of the or burns injury cause serious by degree. of the second or third equally reprehensible. such means are Supp.1994). fact, discussed, legislature pre- as earlier sentenсing range scribed a more upon severe for We have not called been to determine conduct, thereby identically less serious criminal whether two crimes defined ex- creating equal bodily injury very protection cept violation for the inclusion as an remedy.3 one and upon are called element tempered, Contrary majority, 2. legisla- This discretion is 3. howev I do not find er, by principle “[e]qual protection that re concerning sentencing range tive intent to be quires that classifications of crimes be helpful. maj. op. Certainly legis- See at 42. based on reasonably differences are real in fact and are adopt sentencing lature intended to scheme purposes legisla related to the of the equal protection. that we find to violate The 1077, People tion.” v. 679 P.2d 1082 legis- issue is the to be chosen when the (Colo. 1984); Torres, People accord v. 848 P.2d implemented lative intent cannot be because of 911, 1993); Fuller, (Colo. 913-14 v. 791 equal protection principles. 702, (Colo.1990). maj. op. at 39. differentiation, assigned phrase can I strike an element would “or class, prescribed so that sentenc- to cause” from section 18-3- same, ing ranges violating without are the 203(l)(b), which would reduce the second de- protection.4 majority no discovers gree assault convictions that are based on I equal protection defect such a scheme. attempt from felonies class 5 felo- necessary to do not find it reach this issue. operation nies of section assuming Even selected I statute. would then re- sufficient, majority constitutionally mand thе case to the trial court with di- adopt I would not it. In order to select a rections resentence the defendant within just remedy that achieves a and reasonable felony range the class 5 on each of his two result, there should be differentiation be- assault convictions that are penalties tween the for these two crimes attempt. Accordingly, respectful- based on commensurate in some with the dif- ly majority opinion. dissent to the severity in the of the ferences intended and attempted bodily injury that is fea- the sole KIRSHBAUM, JJ., join ERICKSON and Smith, distinguishing ture them. See 852 in this dissent. (differences P.2d at 422 classifi- rationally
cations for crimes must be based
upon variety proscribed); People of evil Torres, (Colo.1993)(clas- 911,
v. 848 P.2d persons
sifications of under criminal law arbitrary); must be. reasonable and not Peo- CERRONE, Petitioner, John (Colo.1990) Fuller, 702, ple v. 791 P.2d (statutory classifications crimes must be The PEOPLE of the State of based on substantial differences and reason- Colorado, Respondent. ably purposes legislation); related to (1986) (Colorado 18-l-102(l)(c), GOETZ, Petitioner, Lawrence Criminal Code is to be construed differ- “[t]o grounds entiatе on reasonable between seri- offenses, prescribe penal- ous and minor and PEOPLE State of proportionate Colorado, Respondent. ties which are to the serious- offenses-”). 2^4-201(l)(c), ness Cf. 94SC150, Nos. 94SC351. (1980) (in enacting IB it is statute Colorado, Supreme Court of just that a assumed and reasonable result is En Banc. intended); 2-4-203(l)(e), IB C.R.S. (in construing ambiguous a court 30, 1995. June
may consequences particu- consider the of a (Goetz) Rehearing July Denied 1995. construction). lar (Cerrone) Rehearing Aug. Denied 1995. legislature’s In order to effectuate the clear differentiation between serious just and to effect a result reasonable consistent with (Colo. Therefore, People, ciency. In Smith v. I do not ascribe to Smith the *9 1993), sentencing provision majority. maj. we struck significance down as does the See requiring intentionally an enhanced sentence for op. at 41. causing bodily injury intentionally but not for Likewise, causing bodily injury, classifying (Colo. 1984), upheld 1082-83 we 18-3- both offenses as class 4 felonies. We did not 203(l)(b) against equal protection attack. sufficiency address the constitutional of the statu violation, Finding equal protection no were tory provisions remaining striking the after en remedy. pro adopt provision, simply hancement resentencing. but remanded for case, however, present Smith, therefore, attack was tection dispositive is not successful and the issue is the to be equal protection sufficiency of the scheme, of such a Contrary majority, adopted. find presented concerning do not and it no issue resolving ques provisions Weller to be of assistance in selection between alternate for sever maj. op. ance in to maintain suffi tion. at 41-42. order