1                Opinions of the Colorado Supreme Court are available to the
2            public and can be accessed through the Judicial Branch’s homepage at
3              http://www.courts.state.co.us. Opinions are also posted on the
4              Colorado Bar Association’s homepage at http://www.cobar.org.
5
6                                                           ADVANCE SHEET HEADNOTE
7                                                                     February 27, 2017
8
9                                          2017 CO 15
0
1   No. 13SC725, Reyna-Abarca v. People, No. 13SC750, Hill v. People, No. 14SC3,
2   Medrano-Bustamante v. People, & No. 14SC7, People v. Smoots—Plain Error
3   Review—Double Jeopardy—Lesser Included Offenses.
4
5          In these four cases, which raise the ultimate question of whether driving under

6   the influence (“DUI”) is a lesser included offense of either vehicular assault-DUI or

7   vehicular homicide-DUI, the supreme court addresses (1) whether a double jeopardy

8   claim can be raised for the first time on direct appeal and (2) what test courts should

9   apply in evaluating whether one offense is a lesser included offense of another.

0          The court concludes that unpreserved double jeopardy claims can be raised for

1   the first time on appeal and that appellate courts should ordinarily review such claims

2   for plain error. In so holding, the court rejects the People’s contention that defendants

3   waive their double jeopardy claims unless they raise them at trial through a Crim. P.

4   12(b)(2) challenge to defective charging documents.

5          The court further concludes that the applicable test for determining whether one

6   offense is a lesser included offense of another is the strict elements test articulated in

7   Schmuck v. United States, 489 U.S. 705, 716 (1989). Under this test, an offense is a lesser

8   included offense of another offense if the elements of the lesser offense are a subset of
1   the elements of the greater offense, such that the lesser offense contains only elements

2   that are also included in the elements of the greater offense.

3          Applying this test to the cases before it, the court concludes that DUI is a lesser

4   included offense of both vehicular assault-DUI and vehicular homicide-DUI, and thus,

5   defendants’ DUI convictions must merge into the greater offenses. The court further

6   concludes that in not merging such offenses, the trial courts plainly erred and that

7   reversal of the multiplicitous convictions is therefore required.

8          Accordingly, the supreme court affirms the divisions’ rulings in People v.

9   Reyna-Abarca, No. 10CA637 (Colo. App. Aug. 1, 2013), and People v. Hill, No. 12CA168

0   (Colo. App. Aug. 8, 2013), that appellate courts review unpreserved double jeopardy

1   claims for plain error, but reverses the portions of the judgments in those cases

2   concluding that DUI is not a lesser included offense of vehicular assault-DUI, and

3   remands for further proceedings consistent with the opinion.         Similarly, the court

4   reverses the portion of the judgment in People v. Medrano-Bustamante, 2013 COA 139,

5   ___ P.3d ___, concluding that DUI is not a lesser included offense of vehicular

6   assault-DUI and vehicular homicide-DUI, and remands for further proceedings. The

7   court affirms the judgments in those cases in all other respects, and affirms in full the

8   judgment in People v. Smoots, 2013 COA 152, ___ P.3d ___.
1

2

3     The Supreme Court of the State of Colorado
4      2 East 14th Avenue • Denver, Colorado 80203


5                      2017 CO 15

6         Supreme Court Case No. 13SC725
7       Certiorari to the Colorado Court of Appeals
8         Court of Appeals Case No. 10CA637

9                      Petitioner:
0                 Mario Reyna-Abarca,
1                           v.
2                     Respondent:
3          The People of the State of Colorado.

4   Judgment Affirmed in Part and Reversed in Part
5                        en banc
6                   February 27, 2017

7                        *****

8         Supreme Court Case No. 13SC750
9       Certiorari to the Colorado Court of Appeals
0         Court of Appeals Case No. 12CA168

1            Petitioner/Cross-Respondent:
2                 Dallas Cameron Hill,
3                           v.
4            Respondent/Cross-Petitioner:
5          The People of the State of Colorado.

6   Judgment Affirmed in Part and Reversed in Part
7                        en banc
8                   February 27, 2017

9                        *****
1                             Supreme Court Case No. 14SC3
2                          Certiorari to the Colorado Court of Appeals
3                            Court of Appeals Case No. 10CA791

4                                         Petitioner:
5                            Jorge Arturo Medrano-Bustamante,
6                                              v.
7                                        Respondent:
8                            The People of the State of Colorado.

9                     Judgment Affirmed in Part and Reversed in Part
0                                           en banc
1                                      February 27, 2017

2                                           *****

3                             Supreme Court Case No. 14SC7
4                          Certiorari to the Colorado Court of Appeals
5                           Court of Appeals Case No. 11CA2381

6                                         Petitioner:
7                            The People of the State of Colorado,
8                                              v.
9                                        Respondent:
0                                   Ruben Charles Smoots.

1                                    Judgment Affirmed
2                                           en banc
3                                      February 27, 2017


4   Attorneys for Petitioner Mario Reyna-Abarca:
5   Douglas K. Wilson, Public Defender
6   Anne T. Amicarella, Deputy Public Defender
7    Denver, Colorado
8
9   Attorneys for Petitioner Dallas Cameron Hill:
0   Douglas K. Wilson, Public Defender
1   Rachel K. Mercer, Deputy Public Defender
2   Britta Kruse, Senior Deputy Public Defender
3    Denver, Colorado

                                               2
1
2   Attorneys for Petitioner Jorge Arturo Medrano-Bustamante:
3   Douglas K. Wilson, Public Defender
4   Alan Kratz, Deputy Public Defender
5    Denver, Colorado
6
7   Attorneys for Petitioner/Respondent The People of the State of Colorado:
8   Cynthia H. Coffman, Attorney General
9   John T. Lee, Assistant Attorney General
0     Denver, Colorado
1
2   Attorneys for Respondent Ruben Charles Smoots:
3   Douglas K. Wilson, Public Defender
4   Inga K. Nelson, Deputy Public Defender
5   Britta Kruse, Senior Deputy Public Defender
6     Denver, Colorado
7
8   Attorneys for Amicus Curiae Colorado Criminal Defense Bar:
9   Tiftickjian Law Firm, P.C.
0   Jay M. Tiftickjian
1     Denver, Colorado
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1   JUSTICE GABRIEL delivered the Opinion of the Court.
2   JUSTICE COATS concurs in part and dissents in part, and JUSTICE EID and JUSTICE
3   BOATRIGHT join in the concurrence in part and dissent in part.

                                             3
¶1      These four cases, which raise the ultimate question of whether driving under the

influence (“DUI”) is a lesser included offense of either vehicular assault-DUI or

vehicular homicide-DUI, present us with an opportunity to address (1) whether a

double jeopardy claim can be raised for the first time on direct appeal and (2) what test

courts should apply in evaluating whether one offense is a lesser included offense of

another.1

¶2      We now conclude that unpreserved double jeopardy claims can be raised for the

first time on appeal, and appellate courts should ordinarily review such claims for plain

error. In so holding, we reject the People’s contention that defendants waive their

double jeopardy claims unless they raise them at trial through a Crim. P. 12(b)(2)

challenge to defective charging documents.        Contrary to the People’s assertion, a

defendant’s claim that his or her conviction violates double jeopardy principles does not

amount to an objection regarding defects in the charging document.           Accordingly,

Crim. P. 12(b)(2) is inapplicable here.

¶3      With respect to the applicable test for determining whether one offense is a lesser

included offense of another, we reiterate that the strict elements test is the proper test,



1 Specifically, we granted certiorari in Reyna-Abarca, Hill, and Smoots to review the
following issues:
     1. Whether a double jeopardy claim can be raised for the first time on direct appeal.
     2. Whether driving under the influence is a lesser included offense of vehicular
        assault-driving under the influence, requiring merger.
We granted certiorari in Medrano-Bustamante to review the following issue:
     1. Whether DUI is a lesser included offense of vehicular assault-DUI or vehicular
        homicide-DUI.


                                             4
but we acknowledge that our prior iterations of that test have arguably been

inconsistent.   Accordingly, we now clarify that the proper test for making such a

determination is that articulated in Schmuck v. United States, 489 U.S. 705, 716 (1989),

which we have cited previously with approval. We thus hold that an offense is a lesser

included offense of another offense if the elements of the lesser offense are a subset of

the elements of the greater offense, such that the lesser offense contains only elements

that are also included in the elements of the greater offense.            In our view, this

articulation of the test is consistent with applicable statutory law and the plain meaning

of “lesser included,” it harmonizes our previous iterations of the “statutory elements”

or “strict elements” test, and it can be applied readily and uniformly.

¶4     Applying this test to the cases now before us, we conclude that DUI is a lesser

included offense of both vehicular assault-DUI and vehicular homicide-DUI, and thus,

defendants’ DUI convictions must merge into the greater offenses. We further conclude

that in not merging such offenses, the trial courts here plainly erred and that reversal of

the multiplicitous convictions is therefore required.

¶5     Accordingly, we affirm the divisions’ rulings in People v. Reyna-Abarca,

No. 10CA637 (Colo. App. Aug. 1, 2013), and People v. Hill, No. 12CA168 (Colo. App.

Aug. 8, 2013), that appellate courts review unpreserved double jeopardy claims for

plain error, but we reverse the portions of the judgments in those cases concluding that

DUI is not a lesser included offense of vehicular assault-DUI, and we remand for

further proceedings consistent with this opinion. Similarly, we reverse the portion of

the judgment in People v. Medrano-Bustamante, 2013 COA 139, ___ P.3d ___,


                                             5
concluding that DUI is not a lesser included offense of vehicular assault-DUI and

vehicular homicide-DUI, and we remand for further proceedings.           We affirm the

judgments in those cases in all other respects, and we affirm in full the judgment in

People v. Smoots, 2013 COA 152, ___ P.3d ___.

                           I. Facts and Procedural History

¶6    We begin by discussing the pertinent facts and procedural histories of each of the

cases now before us.

                                   A. Reyna-Abarca

¶7    The People charged Mario Reyna-Abarca by complaint and information with six

counts arising from a motor vehicle accident. Among those counts were DUI and

vehicular assault-DUI.    Reyna-Abarca did not object to these counts pursuant to

Crim. P. 12(b)(2), which provides, as pertinent here, that objections based on defects in

the charging document may be raised only by motion and that the failure to present

such an objection constitutes a waiver thereof.

¶8    A jury ultimately found Reyna-Abarca guilty of, among other things, both DUI

and vehicular assault-DUI. At no time prior to or during the sentencing proceedings

did Reyna-Abarca contend that his convictions for both DUI and vehicular assault-DUI

violated his double jeopardy rights under either the United States or Colorado

Constitutions.

¶9    Reyna-Abarca appealed and argued for the first time that DUI is a lesser

included offense of vehicular assault-DUI, thereby requiring that his DUI conviction

merge into his vehicular assault-DUI conviction. The People disagreed, arguing that


                                            6
DUI is not a lesser included offense of vehicular assault-DUI because DUI is not

established by proof of the same or less than all of the facts required to prove vehicular

assault-DUI.

¶10      In a unanimous, unpublished decision, the court of appeals division reviewed

Reyna-Abarca’s claim for plain error. Reyna-Abarca, slip op. at 15. In considering

whether Reyna-Abarca’s DUI conviction was a lesser included offense of vehicular

assault-DUI, the division began by applying the version of the strict elements test

providing that “one offense is a lesser included of another offense when all of the

essential elements of the lesser offense comprise a subset of the essential elements of the

greater offense, such that it is impossible to commit the greater offense without also

committing the lesser.” Id. at 21.

¶11      Applying that test to Reyna-Abarca’s convictions, the division observed that the

definition of “motor vehicle” for purposes of vehicular assault-DUI is “materially

different” from the definition of “motor vehicle” that applies to DUI.          Id. at 23.

Specifically, the division noted that vehicular assault-DUI can be committed with a boat

or a plane, whereas DUI, which can be committed only in a self-propelled vehicle that is

designed primarily for travel on the public highways, cannot. Id. As a result, the

division concluded that it is possible to commit vehicular assault-DUI without also

committing DUI, and thus, the latter is not a lesser included offense of the former. Id. at

23–24.

¶12      We subsequently granted Reyna-Abarca’s petition for certiorari review.




                                             7
                                        B. Hill

¶13    The People charged Dallas Cameron Hill with a number of counts arising from a

motor vehicle accident including, as pertinent here, vehicular assault-DUI and DUI. As

in Reyna-Abarca, Hill did not file any objections to these charges under Crim. P.

12(b)(2).

¶14    A jury ultimately found Hill guilty of, among other things, both the vehicular

assault-DUI and DUI charges. At no point during or prior to sentencing did Hill

specifically assert that his convictions for both vehicular assault-DUI and DUI violated

double jeopardy principles.

¶15    Hill appealed, arguing that his DUI conviction should merge into his vehicular

assault-DUI conviction because DUI is a lesser included offense of vehicular

assault-DUI. The People contended that Hill had waived this claim by not objecting at

trial to defects in the information under Crim. P. 12(b)(2). Alternatively, they argued

that DUI is not a lesser included offense of vehicular assault-DUI because (1) vehicular

assault-DUI can be committed by driving or operating a motor vehicle, whereas DUI

requires proof that the defendant was driving a motor vehicle, and (2) “motor vehicle”

is defined more narrowly in the traffic code than in the criminal code, such that DUI

requires that the defendant drive a self-propelled device designed primarily for travel

on the public highways, whereas vehicular assault-DUI can be committed by driving or

operating any self-propelled device by which persons or property may be transported

by land, water, or air. The People thus argued that merger was inappropriate.




                                           8
¶16    In a unanimous, unpublished decision, the division rejected the People’s

contention that Hill had waived his merger claim by not filing an objection at trial

under Crim. P. 12(b)(2). Hill, slip op. at 2. The division instead determined that errors

resulting in double jeopardy violations implicate fundamental rights, are obvious, and

affect the fairness and integrity of the proceedings, thus warranting plain error review.

Id. at 15–16.

¶17    The division then proceeded to apply the version of the strict elements test

providing that “an offense is included in another offense if establishing the statutory

elements of the greater offense necessarily establishes all the elements of the lesser

offense.” Id. at 17. Applying this test to Hill’s convictions, the division agreed with the

People that because the criminal code’s definition of “motor vehicle” is broader than the

traffic code’s definition of “motor vehicle,” vehicular assault-DUI can be committed in

ways that DUI cannot, and thus, a defendant can commit vehicular assault-DUI without

necessarily committing DUI. Id. at 19–22. Accordingly, the division concluded that

DUI is not a lesser included offense of vehicular assault-DUI. Id. at 22.

¶18    Hill petitioned this court for a writ of certiorari on the issue of whether DUI is a

lesser included offense of vehicular assault-DUI. The People cross-petitioned on the

issue of whether a double jeopardy claim can be raised for the first time on appeal. We

granted both petitions.

                                       C. Smoots

¶19    The People charged Ruben Charles Smoots with a number of counts arising from

a motor vehicle accident, including, as pertinent here, vehicular assault-DUI and DUI.


                                            9
As in both Reyna-Abarca and Hill, Smoots did not challenge the charges under Crim. P.

12(b)(2).

¶20    A jury ultimately found Smoots guilty of both DUI and vehicular assault-DUI.

Smoots did not contend during or prior to sentencing that his convictions for both DUI

and vehicular assault-DUI violated his double jeopardy rights.

¶21    Smoots appealed and argued for the first time that DUI is a lesser included

offense of vehicular assault-DUI and, thus, his convictions for both violated double

jeopardy principles. As in Hill, the People contended that (1) Smoots had waived his

double jeopardy claim by not filing an objection at trial pursuant to Crim. P. 12(b)(2)

and (2) alternatively, DUI is not a lesser included offense of vehicular assault-DUI

because vehicular assault-DUI can be committed by operating a car, truck, boat, or

plane, whereas DUI can be committed only by driving a vehicle intended for use on

public highways.

¶22    In a published decision, the division unanimously rejected the People’s

contention that Smoots had waived his double jeopardy claim by not raising it under

Crim. P. 12(b)(2). Smoots, ¶ 15. The division instead reviewed the unpreserved double

jeopardy challenge for plain error. Id. at ¶ 14. The division split, however, on the

merits of Smoots’s double jeopardy claim. As pertinent here, the majority applied the

version of the strict elements test providing that a party establishes that one crime is a

lesser included offense of another “by showing that proof of the same or less than all of

the facts required to establish commission of the greater offense will also establish

commission of the lesser offense.” Id. at ¶¶ 16, 23. The majority ultimately determined


                                           10
that although the definition of “motor vehicle” that applies to vehicular assault-DUI is

broader than the definition that applies to DUI, and although vehicular assault-DUI can

be committed by either operating or driving a motor vehicle whereas DUI can be

committed only by driving, Smoots’s act of driving a car under the influence of alcohol

satisfied elements common to both statutes. Id. at ¶¶ 21–23. Accordingly, the majority

concluded that Smoots’s conviction for vehicular assault-DUI necessarily included his

conviction for DUI, and therefore, the division vacated Smoots’s DUI conviction. Id. at

¶¶ 24–25.

¶23    Judge Furman specially concurred, expressing his view that the version of the

strict elements test set forth in Boulies v. People, 770 P.2d 1274, 1278–81 (Colo. 1989),

was more appropriate for cases like the present one, which involve a greater offense

statute that provides alternative bases for prosecution. Id. at ¶ 26 (Furman, J., specially

concurring). Accordingly, Judge Furman would have analyzed the charges actually

brought in this case before comparing the statutory elements of the offenses. Id. at

¶¶ 27–28. Applying that analysis led him to conclude that DUI is a lesser included

offense of vehicular assault-DUI. Id. at ¶ 29.

¶24    Judge Miller dissented. As pertinent here, he agreed with the analyses adopted

by the divisions in Reyna-Abarca, Hill, and Medrano-Bustamante and thus concluded

that DUI is not a lesser included offense of vehicular assault-DUI. Id. at ¶¶ 33–39

(Miller, J., concurring in part and dissenting in part).

¶25    The People petitioned this court for certiorari review, and we granted that

petition.


                                             11
                              D. Medrano-Bustamante

¶26    The People charged Jorge Arturo Medrano-Bustamante with, among other

things, vehicular assault-DUI, vehicular homicide-DUI, and DUI.              As in the

above-described cases, Medrano-Bustamante did not object to the charges pursuant to

Crim. P. 12(b)(2).

¶27    A jury ultimately found Medrano-Bustamante guilty on all of the charged

counts, including the DUI, vehicular assault-DUI, and vehicular homicide-DUI counts.

At no point prior to or during his sentencing did Medrano-Bustamante argue that his

convictions on these counts violated double jeopardy principles.

¶28    Medrano-Bustamante appealed and argued for the first time that his DUI

conviction constituted a lesser included offense of both his vehicular assault-DUI and

vehicular homicide-DUI convictions. In this case, unlike the others now before us, the

People conceded that DUI is a lesser included offense of vehicular assault-DUI and

vehicular homicide-DUI, thus requiring that Medrano-Bustamante’s DUI conviction

merge into his convictions for vehicular assault-DUI and vehicular homicide-DUI.

¶29    Notwithstanding the People’s concession, in a published decision, a split division

of    the    court   of    appeals    rejected    Medrano-Bustamante’s       contention.

Medrano-Bustamante, ¶¶ 6–7. The majority began by defining the strict elements test

to require a determination as to “whether the essential elements of DUI comprise a

subset of the essential elements of vehicular assault-DUI or vehicular homicide-DUI,

such that committing the greater offenses without also committing the lesser is

impossible.” Id. at ¶ 9. The majority then compared the elements of the respective


                                           12
statutes and determined that because the criminal code’s definition of “motor vehicle”

is broader than the traffic code’s definition of “motor vehicle,” vehicular assault-DUI

and vehicular homicide-DUI can be committed in ways that DUI cannot. Id. at ¶ 14.

Accordingly, the majority concluded that the trial court did not err in entering

Medrano-Bustamante’s separate convictions for vehicular assault-DUI, vehicular

homicide-DUI, and DUI. Id. at ¶ 16.

¶30   Judge Webb concurred in part and dissented in part. As pertinent here, he

concluded that as a practical matter, the merger question had not been briefed, and he

perceived no compelling reason to take up an issue that the People had conceded. Id. at

¶¶ 98–100 (Webb, J., concurring in part and dissenting in part).

¶31   Judge Bernard also wrote separately, concurring in the portions of the judgment

at issue here but dissenting from portions of the judgment not before us.          Id. at

¶¶ 101–03 (Bernard, J., concurring in part and dissenting in part).

¶32   We subsequently granted Medrano-Bustamante’s petition for certiorari.

                                      II. Analysis

¶33   We begin our analysis by assessing whether courts can review double jeopardy

claims raised for the first time on appeal. Concluding that they can, we next clarify the

proper articulation of the strict elements test that courts should apply when evaluating

whether one offense is a lesser included offense of another. Finally, we apply that test

to the four cases now before us and conclude that DUI is a lesser included offense of

vehicular assault-DUI and vehicular homicide-DUI.




                                            13
         A. Appellate Review of Unpreserved Double Jeopardy Claims

¶34    The question of whether an unpreserved double jeopardy claim can be reviewed

for the first time on appeal is one that has resulted in substantial disagreement among

divisions of our court of appeals. Compare, e.g., People v. Cooper, 205 P.3d 475, 478

(Colo. App. 2008) (declining to address defendant’s unpreserved double jeopardy

claim), and People v. Novitskiy, 81 P.3d 1070, 1073 (Colo. App. 2003) (same), with

People v. Tillery, 231 P.3d 36, 47–48 (Colo. App. 2009) (reviewing defendant’s

unpreserved double jeopardy claim for plain error under Crim. P. 52(b)), aff’d sub nom.

People v. Simon, 266 P.3d 1099 (Colo. 2011), and People v. Cruthers, 124 P.3d 887, 890

(Colo. App. 2005) (same). See generally People v. Greer, 262 P.3d 920, 933–35 (Colo.

App. 2011) (J. Jones, J., concurring) (collecting cases and discussing the split among

divisions of the court of appeals regarding whether to review unpreserved

constitutional claims on appeal).

¶35    Much of the divisions’ disagreement appears to stem from the apparent

inconsistency between the plain language of Crim. P. 52(b), which provides, “Plain

errors or defects affecting substantial rights may be noticed although they were not

brought to the attention of the court,” and our statement in People v. Cagle, 751 P.2d

614, 619 (Colo. 1988), that “[i]t is axiomatic that this court will not consider

constitutional issues raised for the first time on appeal.”

¶36    In Cagle, the defendant claimed that a Colorado statute prohibiting possession of

a Schedule I controlled substance was unconstitutional because it carried a greater

penalty than the statute involving felony use of a Schedule I controlled substance. Id. at


                                             14
618–19. The People argued that the defendant had not properly preserved this issue for

review, but we disagreed, noting that when, as in the case then at bar, the defendant

had challenged the constitutionality of the statute under which he was convicted prior

to sentencing, the claim was properly preserved for appeal. Id. at 619. Accordingly,

our above-referenced statement that we will not consider constitutional issues raised for

the first time on appeal was dictum and ultimately had no bearing on our reasoning or

conclusion in Cagle. See id. We therefore do not view that statement as controlling on

the question of whether courts may review unpreserved double jeopardy claims for the

first time on appeal.

¶37    Instead, we conclude that Crim. P. 52(b) applies here. As noted above, Crim. P.

52(b) allows courts to notice “[p]lain errors or defects affecting substantial rights,” even

though such errors were not brought to the attention of the trial court. This rule does

not distinguish between constitutional and nonconstitutional errors, and we perceive no

reason to read in such a distinction here. See Hagos v. People, 2012 CO 63, ¶ 14,

288 P.3d 116, 120.

¶38    We are not persuaded otherwise by the People’s contentions in Hill,

Reyna-Abarca, and Smoots that the divisions erred in reviewing those defendants’

double jeopardy claims for plain error because the defendants had waived their claims

by failing to object pursuant to Crim. P. 12(b)(2).2


2 Although the People also raised this issue in their briefs in Medrano-Bustamante, we
granted certiorari in that case only on the question of whether DUI is a lesser included
offense of vehicular assault-DUI or vehicular homicide-DUI. Accordingly, the waiver
issue is not before us in that case.


                                             15
¶39   Crim. P. 12(b)(2) provides, in pertinent part:

      Defenses and objections based on defects in the institution of the
      prosecution or in the indictment or information or complaint, or summons
      and complaint, other than that it fails to show jurisdiction in the court or
      to charge an offense, may be raised only by motion . . . . Failure to present
      any such defense or objection constitutes a waiver of it, but the court for
      cause shown may grant relief from the waiver.

¶40   The People assert that Crim. P. 12(b)(2) applies here because defendants’ claims

that they could not be convicted of both DUI and either vehicular homicide-DUI or

vehicular assault-DUI constituted objections to errors that were based on, or that flowed

from, the charging documents.      The People further contend that even though the

potential harm from a defect in the charging document might not be realized until the

defendant is actually convicted of multiplicitous charges, the defendants still must

“bookmark” their challenges at the pleadings stage.        For several reasons, we are

unpersuaded.

¶41   First, as the People concede, prosecutors are permitted to charge in an

information multiple claims arising from the same set of facts. See § 18-1-408(1), C.R.S.

(2016) (“When any conduct of a defendant establishes the commission of more than one

offense, the defendant may be prosecuted for each such offense.”); Woellhaf v. People,

105 P.3d 209, 214 (Colo. 2005) (noting that multiplicitous counts are not fatal to an

indictment). Accordingly, the mere fact that the People charged an offense and also a

lesser included offense does not render the charging document defective. Cf. Ball v.

United States, 470 U.S. 856, 865 (1985) (indicating that although the prosecution was




                                           16
permitted to bring a multi-count indictment arising from a single act, the defendant

could not suffer two convictions or sentences on that indictment).

¶42    Second, as defendants observe, a double jeopardy claim does not arise in

circumstances such as those at issue here until the defendant is convicted of both a

greater and lesser included offense. See, e.g., Greer, 262 P.3d at 929 (“[T]he double

jeopardy claim ripens only upon conviction of multiple offenses[.]”). Therefore, at the

pleadings stage, defendants had no viable double jeopardy claim to raise under Crim. P.

12(b)(2).

¶43    Third, we perceive nothing in Crim. P. 12(b)(2) that requires a defendant to file a

motion regarding any error that might later flow from the charging document,

including, allegedly, a double jeopardy error. The People appear to premise their

argument to the contrary on the phrase, “objections based on defects in the institution

of the prosecution or in the indictment or information or complaint, or summons and

complaint.”   Crim. P. 12(b)(2) (emphasis added).      In the People’s view, a double

jeopardy claim is “based on” a defect in the charging document because it flows from

an alleged defect in the charging document. We, however, disagree with the People’s

premise. Specifically, for the reasons set forth above, merely charging multiple counts

is proper and, thus, does not constitute a defect in the charging document.

Accordingly, a later-arising double jeopardy issue is not based on, and does not flow

from, any defect in the charging document. To conclude otherwise would substantially

expand the reach of Crim. P. 12(b)(2). Because the plain language of that rule does not

support the broad interpretation that the People advance, however, and because we


                                           17
must construe the rules of criminal procedure “to secure simplicity in procedure,

fairness in administration, and the elimination of unjustifiable expense and delay,”

Crim. P. 2, we reject the People’s interpretation.

¶44    Fourth, we have seen no applicable authority, and the People cite none,

supporting their contention that defendants must “bookmark” a future double jeopardy

claim at the pleadings stage. Indeed, the People cite no area of law in which parties are

required to take action to preserve an issue before the issue has arisen and before any

error has occurred. Nor can we discern what a trial court is to do with a motion that

would serve no purpose other than to “bookmark” an issue that might never arise. The

purpose of a motion is to request some relief from the court. The motion that the People

envision here would not serve this purpose, and therefore, we will not read Crim. P.

12(b)(2) to require such a motion.

¶45    For these reasons, we reject the People’s contention that the defendants waived

their double jeopardy claims by not filing motions under Crim. P. 12(b)(2).

¶46    In concluding that unpreserved double jeopardy claims are reviewable for plain

error, we also are unpersuaded by the argument made by several of the defendants that

double jeopardy violations amount to structural error and thus the divisions below

erred in applying plain error review. Defendants cite no applicable law supporting

their view that a double jeopardy violation falls within the limited class of fundamental

constitutional errors that have been deemed to be structural errors. See Krutsinger v.

People, 219 P.3d 1054, 1058 n.1 (Colo. 2009) (noting the types of errors that have been

designated structural errors). Nor do we perceive anything in Lucero v. People, 2012


                                             18
CO 7, 272 P.3d 1063, on which the defendants rely, as precluding plain error review in

the circumstances presented here. In Lucero, we concluded that because an illegal

sentence can be corrected at any time, the court of appeals division had erred in relying

on the plain error rule to bar the defendant from obtaining relief from his illegal

sentence. See id. at ¶ 23, 272 P.3d at 1066. In contrast, in the cases now before us, we

have specifically concluded that the defendants are entitled to review of their

unpreserved double jeopardy claims. Lucero is thus inapposite.

¶47   Accordingly, we conclude that an appellate court may review an unpreserved

double jeopardy claim and that the court should ordinarily review such a claim for

plain error. We thus proceed to the merits of defendants’ claims.

              B. Merits of the Defendants’ Double Jeopardy Claims

¶48   In addressing the merits of defendants’ double jeopardy claims, we first address

the applicable standard for determining whether one offense is a lesser included offense

of another. We then proceed to apply that standard to the facts presented.

                    1. Test for Lesser Included Offenses

¶49   The Double Jeopardy Clauses of the United States and Colorado Constitutions

provide that an accused shall not be twice placed in jeopardy for the same offense.

U.S. Const. amends. V, XIV; Colo. Const. art. II, § 18. These clauses protect an accused

not only from facing a second trial for the same offense but also from suffering multiple

punishments for the same offense. See Whalen v. United States, 445 U.S. 684, 688 (1980);

Woellhaf, 105 P.3d at 214. The Double Jeopardy Clauses, however, do not prevent the

General Assembly from specifying multiple punishments based on the same criminal


                                           19
conduct. Woellhaf, 105 P.3d at 214. The power to define criminal offenses and to

prescribe the punishments to be imposed on those found guilty of them rests

exclusively with the legislature. See Whalen, 445 U.S. at 689.

¶50    Thus, to determine whether punishments imposed by a court after a defendant’s

conviction are constitutionally proper, we must determine what punishments the

legislature has authorized. See id. at 688. If the legislature has not conferred specific

authorization for multiple punishments, then double jeopardy principles preclude the

imposition of multiple punishments. Woellhaf, 105 P.3d at 214. In this regard, the

double jeopardy clauses embody the constitutional principle of separation of powers by

ensuring that courts do not exceed their own authority by imposing multiple

punishments not authorized by the legislature. See Whalen, 445 U.S. at 689.

¶51    As pertinent here, the General Assembly has determined that when a

defendant’s conduct establishes the commission of more than one offense, he or she

may be prosecuted for each such offense. See § 18-1-408(1). If one offense is included in

the other, however, then the defendant may not be convicted of both.                     See

§ 18-1-408(1)(a). One offense is included in an offense charged in the information when,

as pertinent here, “[i]t is established by proof of the same or less than all the facts

required to establish the commission of the offense charged.” § 18-1-408(5)(a).3



3 We note that section 18-1-408(5)(c) provides that one offense is included in an offense
charged in an information when it differs from the offense charged “only in the respect
that a less serious injury or risk of injury to the same person, property, or public interest
or a lesser kind of culpability suffices to establish its commission.” Although
defendants contend that this subsection applies here because DUI differs from vehicular
assault-DUI and vehicular homicide-DUI only by the degree of injury required to prove


                                             20
¶52    The question thus becomes how courts should evaluate whether one offense is a

lesser included offense of another within the meaning of section 18-1-408(5)(a).

¶53    We have consistently answered this question by applying what we have deemed

a “statutory elements” or “strict elements” test. See People v. Rivera, 525 P.2d 431,

433–34 (Colo. 1974). Under this test, we compare the elements of the two criminal

statutes rather than the specific evidence used to sustain the charges. Id.

¶54    We acknowledge, however, that we arguably have not been consistent in

defining this strict elements test. In some cases, we have referenced a version of the test

set forth in Blockburger v. United States, 284 U.S. 299, 304 (1932), which provided that

courts must analyze “whether each provision requires proof of a fact which the other

does not.” See, e.g., People v. Henderson, 810 P.2d 1058, 1061 (Colo. 1991). In other

cases, we have said that the appropriate inquiry is whether proof of the essential

elements of the greater offense necessarily establishes the elements required to prove

the lesser offense. See, e.g., Armintrout v. People, 864 P.2d 576, 579 (Colo. 1993). And

in still other cases, we have explained that under the statutory or strict elements test,

“one offense is a lesser included of another offense when all of the essential elements of

the lesser offense comprise a subset of the essential elements of the greater offense, such

that it is impossible to commit the greater offense without also committing the lesser.”

People v. Garcia, 940 P.2d 357, 360 (Colo. 1997).




its commission, we need not reach this argument because we resolve defendants’ claims
under subsection (a).


                                            21
¶55    Although these tests have generally, and appropriately, focused our inquiry on

the elements of the statutes at issue rather than on the evidence presented to prove the

charges, these tests have proved unworkable in certain circumstances, as, for example,

when a greater offense (e.g., felony murder) can be committed in multiple ways. See,

e.g., § 18-3-102(1)(b), C.R.S. (2016) (defining felony murder and listing the offenses that

could provide the predicate offenses therefor).            In such a case, under the

above-described versions of the strict elements test, one offense can arguably never be a

lesser included offense of the greater offense because, comparing only the elements of

the respective offenses, (1) both offenses invariably require proof of a fact that the other

does not, (2) proof of the greater offense does not necessarily establish the lesser offense,

and (3) it is not impossible to commit the greater offense without also committing the

lesser offense.

¶56    We confronted this problem in Boulies, 770 P.2d at 1275–82. In that case, a jury

convicted the defendant of (1) felony murder with a predicate offense of robbery and

(2) aggravated robbery. Id. at 1277. The defendant eventually filed for post-conviction

relief under Crim. P. 35(c) and challenged his convictions on, as pertinent here, double

jeopardy grounds. Id. When the matter reached the court of appeals, the division

applied the Blockburger test and concluded that aggravated robbery and felony murder

were not the “same offense.” Id. In reaching this conclusion, the division reasoned that

felony murder required only that a murder occur during the perpetration or attempt to

perpetrate a robbery, whereas aggravated robbery required additional elements,

including a dangerous weapon and intent, if resisted, to kill, maim, or wound another


                                             22
person. Id. The division thus determined that it was possible to commit felony murder

without also satisfying the elements of aggravated robbery and vice versa.              Id.

Accordingly, the division discerned no double jeopardy violation resulting from

convictions on both counts. Id.

¶57   We granted certiorari review and reversed, relying principally on a unit of

prosecution analysis to conclude that aggravated robbery is, in fact, a lesser included

offense of felony murder-robbery. Id. at 1279–80. Specifically, we opined that the

inclusion of the word “any” before the listed predicates in the felony murder statute

reflected a legislative intent to authorize as the allowable unit of prosecution for felony

murder all deaths committed in the perpetration or attempt to perpetrate any of the

listed offenses, regardless of the particular degree attached to the underlying felony. Id.

at 1280.   Accordingly, under the felony murder statute, what was necessary for a

conviction was the taking of a human life while perpetrating or attempting to

perpetrate any of the enumerated felonies. Id. We then proceeded to conclude that the

defendant’s aggravated robbery conviction satisfied the “same offense” test because the

predicate felony underlying the felony murder at issue was “the very same aggravated

robbery” for which the defendant had been tried and convicted. Id. We thus concluded

that the aggravated robbery conviction was a lesser included offense of the felony

murder conviction. Id.

¶58   In reaching this conclusion in Boulies, we arguably strayed from the strict

elements test, relying instead on the charges brought in that case and the proof

marshalled to obtain the convictions at issue.      See id.   Accordingly, although we


                                            23
continue to believe that the result in that case was correct, it is difficult to square our

analysis with our repeated admonition that the proper test must focus on the elements

of the crimes charged and not on the evidence presented in a particular case.

¶59      In light of the foregoing, it has become clear that our prior articulations of the

strict elements test have not provided the clear and consistent guidance that we believe

is necessary to allow our trial judges to assess with assurance questions like those now

before us. Accordingly, we deem it appropriate to adopt a standard that can be applied

readily and uniformly in all cases. In our view, the test articulated by the Supreme

Court in Schmuck, 489 U.S. at 716, on which this court itself has previously relied, see,

e.g., Garcia, 940 P.2d at 360, is well-suited to this task.

¶60      In Schmuck, 489 U.S. at 716, the Court adopted the elements “approach” for

lesser included offenses. Under this approach, one offense is not necessarily included in

another “unless the elements of the lesser offense are a subset of the elements of the

charged offense.” Id. Thus, for example, one offense is not a lesser included offense of

another if the lesser offense requires an element not required for the greater offense. Id.

For several reasons, we believe that this standard best comports with the principles to

which the Double Jeopardy Clauses and section 18-1-408(5)(a) are directed.

¶61      First, the concept of a subset is intuitively and logically consistent with the plain

meaning of “lesser included.”          See subset, Webster’s Third New International

Dictionary (2002) (defining “subset” as “a set . . . that is itself an element of a larger

set”).   The elements that comprise a subset are always fully included within the

elements of the set of which the subset is a part.


                                               24
¶62    Second, the test that we adopt today aligns directly with and gives force to the

language of section 18-1-408(5)(a), which requires that a lesser included offense be

established by proof of the same or less than all of the facts required to establish the

greater offense. This is true because, by definition, a subset contains only the same or

fewer elements than the set of which it is a part. See subset, Webster’s Third New

International Dictionary. Thus, a subset can always be established by the same or fewer

than all of the facts of the set of which it is a part.

¶63    Third, unlike some of our prior articulations of the elements test, the test that we

adopt today captures those cases referenced above in which an allegedly greater offense

can be committed in multiple ways, without requiring us to stray from our consistently

articulated view that in deciding whether one offense is included in another, we must

look only to the elements of the respective offenses. For example, in a case like Boulies,

770 P.2d at 1280, rather than looking to how the offenses at issue were charged and the

evidence presented, we would need to rely only on a comparison of the statutory

elements of those offenses. Under this approach, we would conclude that aggravated

robbery is a subset of felony murder-robbery because as pertinent here, aggravated

robbery falls within the universe of felonies that may be predicates of felony murder,

which predicates include robbery of any degree. See id.

¶64    Accordingly, we hold that an offense is a lesser included offense of another

offense if the elements of the lesser offense are a subset of the elements of the greater

offense, such that the lesser offense contains only elements that are also included in the

elements of the greater offense.


                                                25
¶65    In so clarifying the applicable test for evaluating whether one offense is a lesser

included offense of another, we acknowledge that our analysis calls into question the

result that we reached in Meads v. People, 78 P.3d 290 (Colo. 2003). In Meads, we

considered whether second degree aggravated motor vehicle theft as defined in section

18-4-409(4), C.R.S. (2016), is a lesser included offense of felony theft as defined in

section 18-4-401(1)(a), C.R.S. (2016). Id. at 292. We began our analysis by noting that

under the strict elements test, “if proof of facts establishing the statutory elements of the

greater offense necessarily establishes all of the elements of the lesser offense, the lesser

offense is included.” Id. at 294. We added, however, that “if each offense necessarily

requires proof of at least one additional fact which the other does not, the strict

elements test is not satisfied.” Id.

¶66    Applying that test in the case then before us, we observed that aggravated motor

vehicle theft requires obtaining or exercising control over a motor vehicle whereas

felony theft can be committed by obtaining or exercising control over any number of

things of value that are not motor vehicles. Id. at 295. Accordingly, we concluded that

the element of obtaining or exercising control over anything of value does not

necessarily establish the element of obtaining or exercising control over a motor vehicle.

Id. We thus opined that the strict elements test was not met and that second degree

aggravated motor vehicle theft was not a lesser included offense of felony theft. Id. at

296.

¶67    Under the clarified version of the strict elements test that we adopt today, the

result in Meads would have been different because as Justice Martinez observed in his


                                             26
dissent in that case, a “motor vehicle” is always a thing of value under the felony theft

statute.   See id. at 296 (Martinez, J., dissenting).      Accordingly, we disavow the

conclusion that we reached in that case.

¶68    Having thus articulated the proper standard for determining whether one

offense is a lesser included offense of another, we turn to the application of that

standard to the cases before us.

                                      2. Application

¶69    Applying our clarified articulation of the strict elements test to the present cases,

we conclude that DUI is a lesser included offense of vehicular assault-DUI and

vehicular homicide-DUI and that convicting and sentencing defendants for both the

lesser included and greater offenses amounted to plain error.

¶70    As pertinent here, vehicular assault-DUI is defined in the criminal code and

requires proof that (1) the defendant operated or drove, (2) a motor vehicle, (3) while

under the influence of alcohol, and (4) this conduct was the proximate cause of a serious

bodily injury to another. § 18-3-205(1)(b)(I), C.R.S. (2016).

¶71    Vehicular homicide-DUI likewise is defined in the criminal code and requires

proof that (1) the defendant operated or drove, (2) a motor vehicle, (3) while under the

influence of alcohol, and (4) this conduct was the proximate cause of the death of

another. § 18-3-106(1)(b)(I), C.R.S. (2016).

¶72    The criminal code defines “motor vehicle” to include, as pertinent here, “any

self-propelled device by which persons or property may be moved, carried, or




                                               27
transported from one place to another by land, water, or air.” § 18-1-901(3)(k), C.R.S.

(2016).

¶73       DUI, in contrast, is defined in the traffic code and requires proof that the

defendant (1) drove, (2) a motor vehicle or vehicle, (3) while under the influence of

alcohol. § 42-4-1301(1)(a), C.R.S. (2016)

¶74       The traffic code defines “motor vehicle,” in pertinent part, as “any self-propelled

vehicle that is designed primarily for travel on the public highways.” § 42-1-102(58),

C.R.S. (2016).

¶75       Based on these definitions, a DUI conviction requires proof that the defendant

drove a self-propelled vehicle designed primarily for travel on the public highways

while under the influence of alcohol.          By comparison, the pertinent elements of

vehicular assault-DUI and vehicular homicide-DUI require proof that the defendant

operated or drove a self-propelled device by which persons or property may be moved,

carried, or transported from one place to another by land, water, or air while under the

influence of alcohol.

¶76       Applying our clarified test to these elements, we conclude that DUI is a lesser

included offense of vehicular assault-DUI and vehicular homicide-DUI. We reach this

conclusion for two reasons.

¶77       First, the elements of DUI comprise a subset of the elements of vehicular

assault-DUI and vehicular homicide-DUI because (1) driving, as required for DUI, is, by

definition, a subset of driving or operating, as required for vehicular assault-DUI and

vehicular homicide-DUI, and (2) a vehicle designed primarily for travel on the public


                                              28
highways is a subset of self-propelled devices that can move, carry, or transport people

or property by land, water, or air.

¶78    Second, comparing the above-described elements reveals that DUI contains only

elements that are also included in the elements of vehicular assault-DUI and vehicular

homicide-DUI. Specifically, as pertinent here, DUI requires proof that a defendant

drove a vehicle designed primarily for travel on the public highways.         Vehicular

assault-DUI and vehicular homicide-DUI can be committed by proof of those elements

plus certain others.

¶79    In light of the foregoing, we conclude that (1) Reyna-Abarca’s, Hill’s, and

Smoots’s DUI convictions must merge into their vehicular assault-DUI convictions and

(2) Medrano-Bustamante’s DUI conviction should have merged into his vehicular

assault-DUI and vehicular homicide-DUI convictions.

¶80    The question remains whether these double jeopardy violations constituted plain

error under Crim. P. 52(b). We conclude that they did.

¶81    In both our own jurisprudence and in case law nationally, courts have invariably

concluded that when a defendant’s double jeopardy rights are violated for failure to

merge a lesser included offense into a greater offense, such a violation requires a

remedy. See, e.g., Brown v. Ohio, 432 U.S. 161, 169 (1977) (reversing a defendant’s

conviction for the lesser included offense of joyriding); United States v. Davenport,

519 F.3d 940, 947–48 (9th Cir. 2008) (concluding that the trial court plainly erred in

sentencing the defendant for violating both a lesser included and a greater offense on

facts arising from the same incident and thus vacating the defendant’s conviction and


                                          29
sentence on the lesser included offense); United States v. Jackson, 443 F.3d 293, 301–02

(3d Cir. 2006) (same); Boulies, 770 P.2d at 1282 (reversing a conviction for the lesser

included offense of aggravated robbery and remanding with directions to vacate that

conviction and sentence).

¶82   In the cases now before us, the People have presented no compelling arguments

as to why any double jeopardy errors that may have been committed here did not rise

to the level of plain error. Nor have they offered a persuasive argument as to why,

having found error, we should not follow the lead of the vast majority of cases and

provide the defendants with a remedy.

¶83   Accordingly, we conclude that the defendants’ DUI convictions cannot stand.

                                    III. Conclusion

¶84   For these reasons, we affirm the portions of the divisions’ rulings in

Reyna-Abarca and Hill regarding review of unpreserved double jeopardy claims for

plain error; we reverse the portions of the judgments in those cases concluding that DUI

is not a lesser included offense of vehicular assault-DUI; we affirm the remaining

portions of the judgments in those cases; and we remand those cases for further

proceedings consistent with this opinion.

¶85   Similarly, we reverse the portion of the judgment in Medrano-Bustamante

concluding that DUI is not a lesser included offense of either vehicular assault-DUI or

vehicular homicide-DUI; we otherwise affirm the judgment in that case; and we remand

the case for further proceedings consistent with this opinion.

¶86   Finally, we affirm in full the judgment in Smoots.


                                            30
JUSTICE COATS concurs in part and dissents in part, and JUSTICE EID and JUSTICE
BOATRIGHT join in the concurrence in part and dissent in part.




                                      31
JUSTICE COATS, concurring in part and dissenting in part.

¶87   Today the majority reconsiders almost a half-century of Colorado law, ultimately

deeming it appropriate to adopt a new standard for evaluating whether one offense is

included in another within the meaning of section 18-1-408(5)(a) of the 1972 Criminal

Code, with the immediate consequence of expanding the reach of the double jeopardy

bars of both the state and federal constitutions. In doing so, I believe the majority

misinterprets the United States Supreme Court’s construction of Fed. R. Crim. P. 31(c),

governing a defendant’s entitlement in the federal system to an instruction on an

uncharged offense; draws a false equivalence between that standard, even according to

the majority’s own understanding, and the constitutional double jeopardy bar; and

misreads our voluminous jurisprudence concerning the permissibility of convicting a

defendant of offenses not named in the charging document, as well as the limitations on

subjecting defendants to multiple convictions at the same proceeding.

¶88   I find particularly objectionable the majority’s willingness to overrule (without so

much as mentioning the time-honored principle of stare decisis, much less offering a

justification for declining to adhere to it) Meads v. People, 78 P.3d 290 (Colo. 2003)—the

sole case by this court, decided little more than a decade ago, litigating the precise

question at issue today and expressly rejecting the solution advocated by today’s

majority.   And finally, I fear that rather than a standard that can be readily and

uniformly applied, the majority’s new standard for identifying lesser included offenses

not only upsets the long-established law and practice of this jurisdiction but will hold




                                            1
untold and deleterious consequences for both defendants and the administration of

justice alike. I therefore respectfully dissent from the majority’s lesser offense analysis.

¶89    It is now well-established that the double jeopardy clauses of both the state and

federal constitutions impact multiple convictions at the same proceeding only to the

extent of expressing a presumption that the enacting legislature did not intend more

than one conviction for the same offense, at the same proceeding, in the absence of

some clear indication to the contrary. See Missouri v. Hunter, 459 U.S. 359, 366–69

(1983); People v. Lewis, 261 P.3d 480, 481–82 (Colo. 2011).          Notwithstanding their

statutory designations, two offenses are the same for constitutional purposes unless

each requires proof of a fact that the other does not. Blockburger v. United States,

284 U.S. 299, 304 (1932). Since 1972, by statute in this jurisdiction, the Colorado General

Assembly has defined an included offense in terms far broader than the constitutional

same-offense standard, see § 18-1-408(5), C.R.S. (2016);1 see also People v. Raymer,

662 P.2d 1066, 1069 (Colo. 1983) (observing that section 18-1-408(5) codified a

“substantially broader” test for a lesser included offense than that developed by

pre-Criminal Code case law), and has protected criminal defendants from multiple

convictions more broadly still both by barring convictions, whether simultaneous or

not, of certain offenses that would not constitute the same or included offenses

1 An offense is included in an offense charged in the indictment or the information
when the former: “is established by proof of the same or less than all the facts required
to establish the commission of the offense charged”; “consists of an attempt or
solicitation to commit the offense charged or to commit an offense otherwise included
therein”; or “differs from the offense charged only in the respect that a less serious
injury or risk of injury to the same person, property, or public interest or a lesser kind of
culpability suffices to establish its commission.” § 18-1-408(5)(a)–(c).


                                              2
according to either the statutory or constitutional standard, see § 18-1-408(1),2 and by

prohibiting consecutive sentences for conviction of a still broader class of offenses,

based on the evidence offered to prove them, see § 18-1-408(3).

¶90    We have at times equated one particular aspect of our statutory, included-offense

test with the constitutional, Blockburger same-offense standard. See § 18-1-408(5)(a);

People v. Leske, 957 P.2d 1030, 1036 (Colo. 1998). In People v. Meads, we expressly

considered the situation in which a less serious offense differs from a more serious

offense not only by requiring proof of fewer facts, or elements, than the more serious

offense but also by requiring proof of a specific instance, or example, of a more general

category, or class, of conduct proscribed by the more serious offense. 78 P.3d at 293–94.

In Meads, we held that for purposes of the Blockburger standard, embodied in our

section 18-1-408(5)(a), the less serious offense is not the same as, or included in, the

more serious offense because offenses related in this way each require proof of a fact the

other does not—more particularly that by requiring proof of a narrower class of

conduct or thing, the less serious offense requires proof of a fact the more serious

offense does not. Id. at 294–95.



2When the conduct of a defendant establishes the commission of more than one offense,
he may not be convicted of more than one offense if: “one offense is included in the
other, as defined in [section 18-1-408(5)]”; “[o]ne offense consists only of an attempt to
commit the other”; “[i]nconsistent findings of fact are required to establish the
commission of the offenses”; “[t]he offenses differ only in that one is defined to prohibit
a designated kind of conduct generally and the other to prohibit a specific instance of
such conduct”; or “[t]he offense is defined as a continuing course of conduct and the
defendant’s course of conduct was uninterrupted, unless the law provides that specific
periods or instances of such conduct constitute separate offenses.” § 18-1-408(1)(a)–(e).


                                            3
¶91    In doing so, however, we also distinguished those situations in which the

legislature has actually created multiple crimes, or units of prosecution, within a single

rubric or statutory section, see Boulies v. People, 770 P.2d 1274, 1280–81 (Colo. 1989); we

declined to address, because we were not faced with, the question whether, despite not

involving the same or included offenses under the Blockburger standard, conviction of

both offenses at issue in that case would nevertheless have been precluded for

involving one offense proscribing a designated kind of conduct generally and another

proscribing a specific instance of that conduct, see § 18-1-408(1)(d); and we expressly

noted that because the thing of value satisfying the elements of the more serious offense

in that case was actually a motor vehicle, as required to satisfy the elements of the less

serious offense, the defendant could statutorily be, and actually was, sentenced to no

more than a concurrent term of incarceration, see Meads, 78 P.3d at 296.

¶92    Quite apart from the feasibility of imposing multiple judgments of conviction or

sentences on a defendant at a single proceeding, the question whether one offense is

included in another separately impacts the ability of a jury, at the request of one party

or the other, to convict of offenses not specifically presented in the charging document.

In the federal system, Rule 31(c) of the Federal Rules of Criminal Procedure permits a

defendant to be found guilty of an offense necessarily included in the offense actually

charged, and that rule has been interpreted by the Supreme Court to reciprocally permit

lesser included offense instructions, but only instructions on lesser included offenses, as

requested by either the defense or prosecution.        Although the Colorado Rules of

Criminal Procedure contain a substantially identical Rule 31, there is no mutuality of


                                            4
entitlement to present the jury with an instruction on a lesser uncharged offense in this

jurisdiction. As the result of pre-Criminal Code and pre-Rules case law, the prosecution

is entitled to present the jury with only a lesser included offense, or its equivalent, see

People v. Garcia, 940 P.2d 357 (Colo. 1997), as modified on denial of reh’g (Aug. 4,

1997); People v. Barger, 550 P.2d 1281 (Colo. 1976); People v. Cooke, 525 P.2d 426 (Colo.

1974), while a criminal defendant is entitled to a lesser offense instruction, whether

included in the charged offense or not, see People v. Rivera, 525 P.2d 431, 434 (Colo.

1974), as long as the evidence at trial presents a rational basis to acquit of the greater

charged offense and convict of the lesser added offense, see People v. Aragon, 653 P.2d

715, 720 n.5 (Colo. 1982).

¶93    Faced with the question whether a defendant was entitled to present the jury

with an option to convict of an offense other than the “principal charge,” this court, in

Rivera, distinguished our test for determining whether one offense is included in

another, which it characterized as the “statutory test,” from what it referred to as the

“evidentiary test,” 525 P.2d at 433, but held that in any event, in the interest of

permitting compromise and producing fairer verdicts, a criminal defendant should not

be limited to instructions on lesser included offenses, id. at 434. While the allowance of

lesser non-included offense instructions by defendants has been explicitly criticized by

the Supreme Court as hardly leading to reliable results, see Hopkins v. Reeves, 524 U.S.

88, 99 (1998), and clearly represents a minority position, see generally Ronald G.

Donaldson, Annotation, Lesser-Related State Offense Instructions: Modern Status,

50 A.L.R. 4th 1081 (1986) (noting that acceptance of the concept of lesser non-included


                                            5
offense instructions “has to date been limited in state courts”); see, e.g., People v. Birks,

960 P.2d 1073, 1082–90 (Cal. 1998) (California Supreme Court retreating from its prior

allowance of lesser non-included offense instructions following Hopkins), this

jurisdiction has steadfastly continued to permit it. Unlike the federal rule, with its

essential feature of mutuality of entitlement to added offense instructions, in this

jurisdiction it is therefore inconsequential whether a defendant’s requested offense is

included in the charged offense, under any standard.

¶94    Today the majority overrules our judgment to the contrary in Meads in reliance

on an isolated sentence from a United States Supreme Court opinion solely addressing a

defendant’s entitlement to an instruction on an uncharged lesser included offense,

under Fed. R. Crim. P. 31(c) of the federal system, and distinguishing an “elements

approach” from an “inherent relationship approach” generally, without the slightest

suggestion that its use of the word “subset” was intended to have implications for the

double jeopardy problem at all, much less to address the particular nuance in

application of that doctrine at issue here. See Schmuck v. United States, 489 U.S. 705,

716 (1989) (emphasis added) (“Under this test, one offense is not ‘necessarily included’

in another unless the elements of the lesser offense are a subset of the elements of the

charged offense.”). Not only did the Court not draw any connection between Rule 31(c)

and the Blockburger test, sometimes referred to as the “same-elements test,” see United

States v. Dixon, 509 U.S. 688, 696 (1993), other than by describing it as an “elements

approach” or “elements test,” but more importantly, it clearly used the term “subset” in




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reference to the offense as “charged in the indictment,” Schmuck, 489 U.S. at 719, rather

than as more broadly defined by statute.

¶95    In the sentence immediately following its use of the term “subset,” the Court

explains that “[w]here the lesser offense requires an element not required for the greater

offense, no instruction is to be given under Rule 31(c).” Id. at 716. The entire thrust of

the Court’s rejection of the inherent relationship approach in favor of the elements

approach is that “[t]he elements test, in contrast, permits lesser offense instructions only

in those cases where the indictment contains the elements of both offenses and thereby

gives notice to the defendant that he may be convicted on either charge.” Id. at 718. At

one point in its analysis, the Court even finds that the Ninth Circuit Court of Appeals

unequivocally applied the elements test in holding: “‘To be necessarily included in the

greater offense the lesser must be such that it is impossible to commit the greater

without first having committed the lesser.’” Id. at 719 (citation omitted). Unlike the

subset theory of the majority, it is abundantly clear, and in fact the entire basis for its

“elements approach” to interpreting the “necessarily included” language of the rule,

that the Supreme Court would not sanction the addition of any offense as to which the

defendant was not put on notice by the particular charge in the indictment, whether the

lesser offense constituted a subset of the statutory definition of the charged offense or

not.

¶96    In addition to the (at least) highly questionable nature of the majority’s

understanding of the Supreme Court’s construction of the federal rule, as well as its

attempt to apply that understanding to our own statutory scheme for quite different


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purposes, the majority offers no suggestion of a change in circumstances sufficient to

justify overruling a recent judgment of this court. On the contrary, the Supreme Court

jurisprudence upon which it relies as the mainstay of its new standard was available to

us at the time we rejected the majority’s subset theory in Meads, and we had, in fact,

already cited Schmuck favorably and relied on it, in the context in which it was

intended—to determine whether a criminal defendant is put on notice to defend against

a charged sentence enhancement factor, to the same extent as would be the case of an

actual element of the charged offense. See Garcia, 940 P.2d at 360–64. In the absence of

subsequent legislative action or conflicting jurisprudence by this court that might

undermine our reasoning in Meads, the only significant change in circumstances would

appear to be the makeup of the court. Cf. Mitchell v. W.T. Grant Co., 416 U.S. 600, 636

(1974) (Stewart, J., dissenting) (“A basic change in the law upon a ground no firmer than

a change in our membership invites the popular misconception that this institution is

little different from the two political branches of the Government. No misconception

could do more lasting injury to this Court and to the system of law which it is our

abiding mission to serve.”).

¶97    I do not pretend that the questions of law and policy at issue in the cases before

us today are easily resolved or are matters as to which reasonable minds cannot differ.

They do, however, clearly implicate a host of interrelated considerations that have been

the subject of litigation before the court of appeals, this court, and the Supreme Court of

the United States for many years. Whether an enacting legislature intended to create

more than one offense at all, and even if so, whether those offenses are for constitutional


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purposes actually the same; whether the legislature has indicated with sufficient clarity

that it intends cumulative convictions and punishments for constitutionally identical

offenses proved at the same proceeding; whether separate punishments should be

precluded even under some circumstances in which multiple convictions are permitted;

and whether and under what circumstances a jury may consider and convict criminal

defendants of offenses not actually charged are all questions implicated by the way in

which offenses are identified as being either the same as or included in one another.

Practical considerations concerning prosecuting, defending, and sentencing are all

implicated by changes to the way these determinations are made. I for one am not

inclined to upset settled expectations in virtually every aspect of the criminal justice

system by abruptly altering existing law, whatever might be my preference if writing

on a blank slate, for no better reason than to prevent an unpunishable misdemeanor

driving offense from also appearing on the record of a defendant convicted of a felony

for the same driving episode.

¶98   Despite agreeing with the majority’s plain error analysis, I respectfully dissent

from its adoption of a new lesser included offense standard and its holding that DUI is

a lesser included offense of both vehicular assault-DUI and vehicular homicide-DUI.

      I am authorized to state that JUSTICE EID and JUSTICE BOATRIGHT join in this

concurrence in part and dissent in part.




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