     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                            October 17, 2019

                               2019COA155

No. 17CA0356, People v. Quezada-Caro — People v. Quezada-
Caro — Crimes — DUI — Prior Convictions; Regulation of
Vehicles and Traffic — Alcohol and Drug Offenses — Penalties
for Traffic Offenses Involving Alcohol and Drugs — Third and
Subsequent Offenses; Constitutional Law — Colorado
Constitution — Equal Protection

     In this felony DUI case, a division of the court of appeals

agrees with the holding in People v. Gwinn, 2018 COA 130, that a

defendant is not entitled to have a jury determine beyond a

reasonable doubt the existence of the prior DUI convictions used to

enhance his or her sentence from a misdemeanor to a felony. The

division concludes that, based on the plain language of section 42-

4-1301(1)(a), C.R.S. 2019, proof of prior DUI convictions is a

sentence enhancer rather than an element of a felony DUI offense.

     Further, as a matter of first impression, the division rejects the

defendant’s contention that, if prior convictions are considered a
sentence enhancer, section 42-4-1301(1)(a) violates his right to

equal protection because it proscribes the same conduct as section

42-4-1307(6), C.R.S. 2019, but exposes him to substantially greater

penalties. The division concludes that the statutes do not violate

the defendant’s right to equal protection because they proscribe

different conduct for which the legislature may impose different

penalties.

     The division also finds that, although district courts have an

obligation to either correct a theory of defense instruction or

incorporate the substance of a theory of defense instruction into the

other jury instructions, that obligation only extends to tendered

theory of defense instructions. Because the defendant did not

tender an instruction that set forth a theory of defense, the district

court was not required to draft one on counsel’s behalf.

     Accordingly, the division affirms the judgment of the district

court.
COLORADO COURT OF APPEALS                                      2019COA155


Court of Appeals No. 17CA0356
Arapahoe County District Court No. 15CR3137
Honorable Phillip L. Douglass, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Dolores Quezada-Caro,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                   Division II
                          Opinion by JUDGE BROWN
                        Dailey and Richman, JJ., concur

                         Announced October 17, 2019


Philip J. Weiser, Attorney General, Elizabeth Ford Milani, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Brian Cox, Deputy State Public
Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Dolores Quezada-Caro, appeals his judgment of

 conviction for felony driving under the influence (DUI). Among

 other things, he contends he was entitled to have a jury determine

 beyond a reasonable doubt whether he had prior convictions for

 impaired-driving offenses. If section 42-4-1301(1)(a), C.R.S. 2019,

 is interpreted otherwise, he argues, it violates his right to equal

 protection because it proscribes the same conduct as section 42-4-

 1307(6), C.R.S. 2019, but carries harsher penalties.

¶2    Consistent with other divisions of this court, we conclude that

 the felony DUI statute does not require prior convictions to be

 proved to the jury beyond a reasonable doubt. And we reject

 Quezada-Caro’s contention that section 42-4-1301(1)(a) violates his

 right to equal protection. Because Quezada-Caro’s remaining

 contentions also fail, we affirm.

                           I.    Background

¶3    An officer with the Glendale Police Department was on patrol

 at around 2:35 a.m. when he noticed a pickup truck parked in a

 lane of traffic with its engine running and the lights on. When the

 officer approached the truck, he found Quezada-Caro asleep in the

 driver’s seat with vomit on his shirt and drool leaking from his


                                     1
 mouth. After several attempts, the officer was able to wake and

 speak with Quezada-Caro.

¶4    The officer testified that, during the encounter, Quezada-

 Caro’s eyes were bloodshot and watery, he had difficulty standing

 and walking, and he smelled strongly of alcohol. Quezada-Caro told

 the officer that he had been at a bar about 1.6 miles away and had

 consumed three or four beers. Later, during the same conversation,

 he admitted he actually had eight or more drinks that evening. The

 officer arrested him.

¶5    At the police station, Quezada-Caro consented to a blood

 draw, which showed his blood alcohol level was 0.207. Quezada-

 Caro told the officer approximately fifty times that he did not care if

 he had been driving drunk and that it was “no big deal.” The

 prosecution charged Quezada-Caro with, as pertinent here, felony

 DUI and DUI per se.

¶6    Prior to trial, Quezada-Caro moved for a ruling that prior

 impaired-driving convictions are an element of a felony DUI charge

 that must be proved to a jury beyond a reasonable doubt. The

 district court disagreed, concluding that prior convictions are a

 sentence enhancer, which it would determine after trial.


                                    2
¶7    A jury convicted Quezada-Caro of both counts. At a separate

 hearing, the district court found, beyond a reasonable doubt, that

 Quezada-Caro had three prior Colorado DUI convictions and at

 least two prior California DUI convictions. The district court

 sentenced Quezada-Caro to six years in the custody of the

 Department of Corrections, suspended upon the successful

 completion of fifteen years of probation. Quezada-Caro now appeals

 his felony DUI conviction.

                               II.   Analysis

¶8    Quezada-Caro contends that (1) he was entitled to have a jury

 determine beyond a reasonable doubt whether he had prior

 convictions for impaired-driving offenses and (2) the district court

 erred by failing to modify his tendered definitional instruction into a

 theory of the case instruction. We disagree.

                      A.      Prior DUI Convictions

¶9    Quezada-Caro contends the district court erred by treating his

 prior impaired-driving convictions as a sentence enhancer rather

 than as an element of the offense that had to be proved to the jury

 beyond a reasonable doubt. Specifically, Quezada-Caro argues that

 (1) the legislature intended proof of prior impaired-driving


                                     3
  convictions to be a substantive element of a felony DUI offense; (2)

  we should not apply the prior conviction exception to the general

  rule that any fact increasing a penalty beyond the statutory

  maximum must be submitted to a jury and proved beyond a

  reasonable doubt; and (3) treating prior convictions as a sentence

  enhancer rather than an element of the offense violates his right to

  equal protection. We reject each contention.

   1.   Prior Convictions Are a Sentence Enhancer for a DUI Offense

¶ 10    Whether a statutory provision is a sentence enhancer or a

  substantive element of an offense is a question of law that we review

  de novo. Lopez v. People, 113 P.3d 713, 720 (Colo. 2005); People v.

  Gwinn, 2018 COA 130, ¶ 20. We interpret the plain language of a

  statute to give full effect to the intent of the General Assembly.

  People v. Griego, 2018 CO 5, ¶ 25. When the statutory language is

  clear, we apply the plain and ordinary meaning of the provision. Id.

  In doing so, we give consistent, harmonious, and sensible effect to

  each part of the statute, and we render no words or phrases

  superfluous. Id.

¶ 11    “A statutory provision is a sentence enhancer when the

  defendant may be convicted of the underlying offense without any


                                     4
  proof of the prior conviction.” Gwinn, ¶ 44; see People v. Schreiber,

  226 P.3d 1221, 1223 (Colo. App. 2009); People v. Whitley, 998 P.2d

  31, 33 (Colo. App. 1999). In contrast, elements of a crime are the

  “the legal components that are necessary to establish criminal

  liability.” People v. Hopkins, 2013 COA 74, ¶ 8. Thus, a fact is a

  sentence enhancer rather than a substantive element of an offense

  if (1) a defendant may be convicted of the underlying offense

  without any proof of the fact and (2) the fact merely increases the

  defendant’s potential punishment. People v. Becker, 2014 COA 36,

  ¶ 11.

¶ 12      The felony DUI statute, section 42-4-1301(1)(a), provides that

  “[a] person who drives a motor vehicle . . . under the influence of

  alcohol . . . commits driving under the influence.” These are the

  only elements that must be proved to convict a defendant of DUI.

  See Gwinn, ¶ 49.

¶ 13      The statute continues:

               Driving under the influence is a misdemeanor, but
               it is a class 4 felony if the violation occurred after
               three or more prior convictions, arising out of
               separate and distinct criminal episodes, for DUI,
               DUI per se, or [driving while ability impaired
               (DWAI)]; vehicular homicide . . . ; vehicular
               assault . . . ; or any combination thereof.


                                       5
  § 42-4-1301(1)(a). Thus, as the division in Gwinn explained, a

  defendant may be convicted of DUI without any proof of prior

  convictions, and proof of prior convictions only increases the

  potential punishment. See Gwinn, ¶¶ 44-49. Accordingly, the

  statute unambiguously demonstrates that “the General Assembly

  intended prior DUI convictions to constitute a sentence enhancer

  rather than an element of DUI.” Id. at ¶ 49. We see no reason to

  depart from this well-reasoned opinion.

¶ 14   Nevertheless, Quezada-Caro urges us to reject the division’s

  holding in Gwinn, arguing that the statutory structure reveals that

  the General Assembly intended prior convictions to be an element of

  felony DUI rather than a sentence enhancer. We are not

  persuaded.

¶ 15   First, Quezada-Caro contends that, by referencing prior

  convictions in the same subsection as the elemental definition of

  the crime, the General Assembly intended prior convictions to be an

  element of the offense. See § 42-4-1301(1)(a). But the structure of

  the statute does not change its plain language. And we know of no

  authority or rule of statutory construction that would require a




                                    6
  sentence enhancer to be set off from the elements of an offense in a

  separate subsection.

¶ 16   Although the elements of DUI and the prior conviction

  sentence enhancer appear in the same statutory subsection, the

  prior conviction language is in a separate sentence that follows the

  substantive definition of the crime. See § 42-4-1301(1)(a). This

  construction reflects a legislative intent to treat prior convictions

  separately from the substantive elements or definition of the

  offense. See Hopkins, ¶ 20 (rejecting argument that placing a prior

  conviction provision in the same statutory subsection as an element

  reflects legislative intent to treat a prior conviction as an element).

¶ 17   If the General Assembly intended to make prior convictions an

  element of felony DUI, it could have done so. See Vensor v. People,

  151 P.3d 1274, 1275 (Colo. 2007) (“[I]t is the prerogative of the

  legislature to define crimes and prescribe punishments.”). Indeed,

  the possession of a weapon by a prior offender (POWPO) statute is

  one example of the General Assembly expressing in plain language

  its intent that a prior conviction be an element of the offense. See

  § 18-12-108(1), C.R.S. 2019.




                                      7
¶ 18   Based on the plain language of the POWPO statute, a

  defendant cannot be convicted of POWPO without proof of a prior

  felony conviction. See id. (“A person commits the crime of

  possession of a weapon by a previous offender if the person

  knowingly possesses, uses, or carries upon his or her person a

  firearm . . . subsequent to the person’s conviction for a felony . . . .”)

  (emphasis added). The prior conviction requirement is included in

  the definition and is an element of the POWPO offense. People v.

  Dist. Court, 953 P.2d 184, 189 (Colo. 1998) (stating that a prior

  felony conviction is an element of POWPO offense).

¶ 19   In contrast, as explained above, a defendant may be convicted

  of DUI without proof of a prior conviction. The prior conviction

  requirement is not included in the definition and is not an element

  of felony DUI. Therefore, contrary to Quezada-Caro’s contention,

  the felony DUI statute is unlike the POWPO statute.

¶ 20   Second, Quezada-Caro contends that by referencing prior

  convictions in the same section as the elements of DUI, rather than

  in the separate DUI sentencing section, the General Assembly

  intended that prior convictions be considered an element of the

  offense. See § 42-4-1301(1)(a) (elements and prior convictions


                                       8
  sentence enhancer); see also §§ 18-1.3-401, 42-4-1307(6.5)

  (presumptive penalties for felonies and penalties for felony DUI,

  respectively). But, again, the structure of the statute does not

  change its plain language. And, in other statutory schemes, the

  General Assembly similarly placed a prior conviction sentence

  enhancer in the same section as the elements of the offense, rather

  than in a separate sentencing section. See, e.g., § 18-7-302, C.R.S.

  2019 (elements of indecent exposure and prior conviction sentence

  enhancer); see also §§ 18-1.3-401, 18-1.3-501, C.R.S. 2019

  (presumptive penalties for felonies and misdemeanors, respectively);

  Schreiber, 226 P.3d at 1223 (holding that prior convictions for

  indecent exposure are a sentence enhancer). That the prior

  conviction sentence enhancer appears in section 42-4-1301(1)(a)

  rather than section 42-4-1307(6.5) does not mean the General

  Assembly intended prior convictions to be an element of the offense.

¶ 21   Finally, relying on People v. Tafoya, 2019 CO 13, Quezada-

  Caro contends that the DUI statute is ambiguous. In Tafoya, the

  Colorado Supreme Court held that a defendant charged with felony

  DUI was entitled to a preliminary hearing under the plain language

  of section 16-5-301(1)(b)(II), C.R.S. 2019, and Crim. P. 7(h). Tafoya,


                                    9
  ¶ 16. The court stated, “section 42-4-1301(1)(a) and its related

  penalty provisions alternately accord the prior convictions qualities

  of both elements of an offense and sentence enhancers.” Id. at

  ¶ 27. The court also acknowledged that section 42-4-1301(1)(a)

  raises “difficult questions” regarding “whether a repeat DUI

  offender’s prior convictions are elements of a felony DUI that must

  be proved at trial.” Id. at ¶ 28 n.2.

¶ 22   But the court was clear to “express no opinion” on this

  question, instead encouraging the legislature to address it. Id. 1

  Ultimately, the court concluded, “regardless of whether [the


  1The supreme court recently granted certiorari on the following
  question:

             Whether the court of appeals erred in
             concluding that the portion of section 42-4-
             1301, C.R.S. (2018), that elevates a
             misdemeanor to a class four felony for driving
             under the influence . . . after three or more
             prior convictions for certain enumerated
             offenses establishes a sentence enhancer and
             not an element of the offense for purposes of
             determining whether jury findings are
             required.

  Linnebur v. People, No. 18SC884, 2019 WL 3934483, at *1 (Colo.
  Aug. 19, 2019) (unpublished order); see People v. Linnebur, (Colo.
  App. No. 16CA2133, Nov. 8, 2018) (not published pursuant to
  C.A.R. 35(e)).

                                     10
  defendant’s] prior convictions could be deemed sentence enhancers,

  the prosecution ‘accused’ [the defendant] of committing a class four

  felony DUI” and she was entitled to a preliminary hearing. Id. at ¶

  27 (emphasis added).

¶ 23   The dicta in Tafoya does not change our analysis here, which

  is based on the plain language of the statute. The court’s

  statements are not binding on us, nor do they require a finding that

  the DUI statutes are ambiguous. See Main Elec., Ltd. v. Printz

  Servs. Corp., 980 P.2d 522, 526 n.2 (Colo. 1999) (stating dictum is

  not controlling precedent). In reaching its conclusion, the court did

  not decide whether prior convictions were an element or a sentence

  enhancer under the DUI statute and did not address the division’s

  holding in Gwinn. Rather, the court’s limited holding turned on the

  fact that the defendant was entitled to additional procedural

  protections because she had been charged with a class 4 felony.




                                   11
¶ 24        Based on the plain language of the statute, we conclude that

  prior DUI convictions are a sentence enhancer rather than an

  element of felony DUI. 2

       2.     Prior Convictions are Blakely-Exempt Facts Appropriately
                                 Decided by a Judge

¶ 25        Quezada-Caro next contends that, even if prior convictions are

  a sentence enhancer, we should still require that they be proved to

  a jury beyond a reasonable doubt because (1) the prior conviction

  exception is unsound and should be rejected by this court and (2)

  they transform a misdemeanor into a felony.

¶ 26        “Generally, any fact, other than the fact of a prior conviction,

  that increases the penalty for a crime beyond the prescribed

  statutory maximum must be submitted to a jury and proved beyond

  a reasonable doubt.” Gwinn, ¶ 45 (emphasis added); see Blakely v.

  Washington, 542 U.S. 296, 303 (2004); Apprendi v. New Jersey, 530

  U.S. 466, 490 (2000); Lopez, 113 P.3d at 723. In other words, proof

  of prior convictions are “Blakely-exempt” facts that sentencing


  2 Because our conclusion rests on the unambiguous language of the
  statute, we need not consider Quezada-Caro’s legislative history or
  lenity arguments. See Candelaria v. People, 2013 CO 47, ¶ 12
  (stating rule that when the statutory language is clear, appellate
  courts do not resort to other rules of statutory construction).

                                          12
  judges consider without further jury involvement. Lopez, 113 P.3d

  at 723; see also Becker, ¶ 9 (“When a prior conviction serves as a

  sentence enhancer rather than as an element of a substantive

  crime, the court — not the jury — decides the prior conviction

  question.”); Schreiber, 226 P.3d at 1223 (“[T]he court decides this

  sentence enhancer because . . . a defendant ‘has no constitutional

  right to a jury trial to determine whether he has a prior conviction.’”

  (quoting People v. French, 165 P.3d 836, 841 (Colo. App. 2007))).

  And while “there is some doubt about the continued vitality of the

  prior conviction exception,” Lopez, 113 P.3d at 723, it remains

  valid. See Misenhelter v. People, 234 P.3d 657, 660 (Colo. 2010)

  (“[T]he [Supreme] Court has now firmly established that the fact of a

  prior conviction is specifically exempted and need not be proven to

  a jury beyond a reasonable doubt.”); People v. Huber, 139 P.3d 628,

  631 (Colo. 2006) (declining to readdress the validity of the prior

  conviction exception absent new legal developments).

¶ 27   Even so, Quezada-Caro contends that the prior conviction

  exception should not apply where, as here, proof of prior

  convictions transforms a misdemeanor into a felony because (1)

  felonies carry significantly greater collateral consequences and (2)


                                    13
  misdemeanors are not subject to the same procedural protections

  that attach to felonies.

¶ 28   We recognize “that the consequences of transforming a

  misdemeanor offense into a felony offense involve more than simply

  increasing the punishment and that critical constitutional and

  statutory protections attend felony charges.” Gwinn, ¶ 52; see also

  Schreiber, 226 P.3d at 1225 (Bernard, J., concurring in part and

  dissenting in part) (acknowledging “there are substantial differences

  between misdemeanors and felonies beyond the prospect of a longer

  sentence in a county jail if one is convicted of a felony”). However,

  we are aware of no authority holding that the severity of collateral

  consequences affects whether prior convictions are Blakely-exempt

  facts. See, e.g., Gwinn, ¶¶ 51-54; Schreiber, 226 P.3d at 1223

  (stating that other state courts that have addressed the collateral

  consequences argument still treat prior convictions as Blakely-

  exempt facts (citing State v. Palmer, 189 P.3d 69, 76 (Utah Ct. App.

  2008) (collecting cases))). 3 Rather, prior convictions are Blakely-


  3Quezada-Caro cites United States v. Rodriguez-Gonzales, 358 F.3d
  1156, 1160 (9th Cir. 2004), for the proposition that the prior
  conviction exception should not apply when the prior conviction


                                    14
  exempt facts because they have already been determined by a jury

  beyond a reasonable doubt or admitted by a defendant in a knowing

  and voluntary plea agreement. Lopez, 113 P.3d at 730.

¶ 29   And, that Quezada-Caro’s prior convictions were

  misdemeanors does not preclude applicability of the prior

  conviction exception. Quezada-Caro does not contend that his prior

  misdemeanor proceedings were constitutionally flawed.

  Accordingly, Quezada-Caro’s Sixth Amendment rights were

  protected because his prior convictions were established through

  adequate procedures. See id. A sentencing judge “no more has to

  find additional facts when the defendant’s prior conviction is for a

  misdemeanor than when it is for a felony.” Huber, 139 P.3d at 632

  (finding a judge could enhance the defendant’s sentence based on

  previous misdemeanors if the prior convictions arose from

  procedures that satisfy the Sixth and Fourteenth Amendments).




  transforms a misdemeanor into a felony. However, that case is
  readily distinguishable because the Ninth Circuit had previously
  determined that prior convictions were an element of the offense at
  issue in that case. Id. In contrast, we have determined that prior
  convictions are not an element of felony DUI.

                                    15
¶ 30   Likewise, Colorado’s felony DUI statute provides a defendant

  adequate constitutional and procedural protection. Section 42-4-

  1301 requires the prosecution to set forth a felony DUI charge and

  identify the previous impaired-driving convictions in an “indictment

  or information.” Gwinn, ¶ 53. And the felony DUI prosecution

  occurs in district court where heightened protections exist. Id.

  Here, the record demonstrates that Quezada-Caro received felony

  protections before his felony DUI conviction. 4

¶ 31   We conclude that the district court properly decided Quezada-

  Caro’s prior convictions as Blakely-exempt facts rather than

  requiring that they be submitted to the jury as a substantive

  element of the offense.

  3.   The Felony DUI Statute Does Not Violate Quezada-Caro’s Right
                           to Equal Protection

¶ 32   Finally, for the first time on appeal, Quezada-Caro contends

  that, if prior convictions are considered a sentence enhancer,

  section 42-4-1301(1)(a) violates his right to equal protection


  4 Quezada-Caro argues that, under the Colorado Constitution, he
  had a right to be tried to a jury of twelve before being convicted of a
  felony. Because he was, in fact, tried to a jury of twelve, we reject
  this argument.


                                    16
  because it proscribes the same conduct as section 42-4-1307(6) but

  exposes him to substantially greater penalties.5 Because the

  statutes proscribe different conduct, for which the legislature may

  impose different penalties, we reject Quezada-Caro’s equal

  protection argument.

¶ 33   The constitutionality of a statute is a question of law that we

  review de novo. Dean v. People, 2016 CO 14, ¶ 8. A statute is

  presumed to be constitutional, and the challenging party bears the

  burden of proving its unconstitutionality beyond a reasonable

  doubt. Id.




  5 The prosecution argues that we should decline to address this
  unpreserved constitutional challenge. Quezada-Caro contends that
  he is not challenging the constitutionality of the felony DUI statute,
  but instead arguing that we should apply the doctrine of
  constitutional avoidance in interpreting the statutory language.
  Because we have concluded the statute is unambiguous, we need
  not resort to rules of construction such as constitutional avoidance.
  People in Interest of T.B., 2019 CO 53, ¶ 34. Still, in the interests of
  judicial economy and efficiency, we exercise our discretion to
  evaluate whether the plain language of the felony DUI statute
  violates Quezada-Caro’s right to equal protection. See People v.
  Houser, 2013 COA 11, ¶ 35 (concluding that an appellate court
  may, as a matter of discretion, take up an unpreserved
  constitutional challenge when doing so would further judicial
  economy).

                                     17
¶ 34   “Equal protection of the laws is guaranteed by the fourteenth

  amendment of the United States Constitution and by the due

  process clause in article II, section 25, of the Colorado

  Constitution.” People v. Alexander, 797 P.2d 1250, 1255 (Colo.

  1990) (quoting People v. Rickstrew, 775 P.2d 570, 574 (Colo. 1989)).

  Under the Colorado Constitution, “equal protection of the laws

  requires that statutory classifications of crimes be based on

  differences that are real in fact and reasonably related to the

  general purposes of criminal legislation.” People v. Marcy, 628 P.2d

  69, 74 (Colo. 1981). Thus, equal protection is not violated if the

  legislative classification is not arbitrary or unreasonable, and the

  differences in the statutes bear a reasonable relationship to the

  public policy to be achieved. Dean, ¶ 16. But, equal protection is

  violated where two criminal statutes proscribe identical conduct, yet

  one punishes that conduct more harshly. Id. at ¶ 14.

¶ 35   Quezada-Caro contends that, for a fourth or subsequent

  impaired-driving offense, a defendant could be charged with either a

  felony or a misdemeanor and both offenses would require only that

  (1) a jury find the defendant drove under the influence of alcohol

  and (2) the court find three or more prior convictions. In other


                                    18
  words, for identical conduct, a defendant could be charged with

  either a felony or a misdemeanor based solely on the prosecution’s

  charging decision. And, because felony DUI carries harsher

  penalties, such disparate treatment of persons engaging in the

  same conduct violates their right to equal protection. We disagree.

¶ 36   Section 42-4-1307(6) is the penalty provision generally

  applicable when a defendant is found guilty of a third or

  subsequent impaired-driving offense. Before 2015, the statute

  applied to any person who was “convicted of DUI, DUI per se, or

  DWAI who, at the time of sentencing, [also] has two or more prior

  convictions” for one or any combination of seven specific offenses:

  (1) DUI; (2) DUI per se; (3) DWAI; (4) vehicular homicide; (5)

  vehicular assault; (6) aggravated driving with a revoked license; or

  (7) driving while the person’s driver’s license was under restraint.

  § 42-4-1307(6), C.R.S. 2014.

¶ 37   In 2015, the General Assembly amended the DUI statute to,

  among other things, increase penalties for certain repeat DUI

  offenders. See Ch. 262, sec. 1, § 42-4-1301, 2015 Colo. Sess. Laws

  990-91. Under the new provision, a defendant found guilty of DUI

  commits a class 4 felony, rather than a misdemeanor,


                                    19
             if the violation occurred after three or more
             prior convictions, arising out of separate and
             distinct criminal episodes, for DUI, DUI per se,
             or DWAI; vehicular homicide, as described in
             section 18-3-106(1)(b), C.R.S.; vehicular
             assault, as described in section 18-3-205(1)(b),
             C.R.S.; or any combination thereof.

  § 42-4-1301(1)(a); see also § 42-4-1301(1)(b) (DWAI); § 42-4-

  1301(2)(a) (DUI per se). Notably, this provision does not include

  aggravated driving with a revoked license or driving while under

  restraint in the types of prior convictions that give rise to felony

  DUI. Compare § 42-4-1301(1)(a), with § 42-4-1307(6). Also, the

  three or more prior convictions on which a felony-level offense can

  be based must “aris[e] out of separate and distinct criminal

  episodes.” § 42-4-1301(1)(a), (1)(b), (2)(a).

¶ 38   At the same time, the General Assembly amended section 42-

  4-1307(6), limiting its application to third or subsequent impaired-

  driving offenses, “[e]xcept as provided in section 42-4-1301(1)(a),

  (1)(b), and (2)(a) . . . .” See Ch. 262, sec. 2, § 42-4-1307(6), 2015

  Colo. Sess. Laws 993.

¶ 39   Thus, for a defendant’s fourth offense, a DUI conviction

  becomes a class 4 felony subject to the penalties described in

  sections 18-1.3-401 and 42-4-1307(6.5), rather than a


                                     20
  misdemeanor subject to the penalties described in section 42-4-

  1307(6), when the defendant has three prior convictions for DUI,

  DUI per se, DWAI, vehicular homicide, or vehicular assault. In

  contrast, for a defendant’s fourth offense, a DUI conviction remains

  a misdemeanor if (1) the defendant has up to two prior convictions

  for DUI, DUI per se, DWAI, vehicular homicide, or vehicular assault;

  and (2) one or more convictions for aggravated driving with a

  revoked license or driving under restraint, for a total of three prior

  convictions. This is because a felony DUI charge cannot be based

  on prior convictions for the latter two offenses. Compare § 42-4-

  1301(1)(a), (1)(b), (2)(a), with § 42-4-1307(6).

¶ 40   Thus, once a defendant collects three or more convictions for

  DUI, DUI per se, DWAI, vehicular homicide, or vehicular assault,

  section 42-4-1307(6) no longer provides the penalties for

  subsequent impaired-driving offenses; instead, sections 18-1.3-401

  and 42-4-1307(6.5) apply. Because different conduct gives rise to

  different penalties, we conclude that the DUI statutes do not violate

  Quezada-Caro’s right to equal protection.

¶ 41   Furthermore, the distinction between the conduct falling

  under the misdemeanor and felony DUI provisions is not arbitrary


                                     21
  and the differences in the provisions bear a reasonable relationship

  to the public policy to be achieved. It is well settled that “the

  General Assembly has the prerogative to establish the penalties for

  criminal offenses and is entitled to establish more severe penalties

  for acts it believes have greater social impact and graver

  consequences.” Dean, ¶ 16. Here, the DUI statutes target repeat

  offenders and impose punishments that increase with the number

  and severity of the prior offenses. It is reasonable for the General

  Assembly to find that defendants with three or more prior DUI

  offenses pose a greater societal risk and should be charged with a

  felony offense. It is likewise reasonable for the General Assembly to

  differentiate between the risks associated with the prior convictions

  giving rise to a DUI felony offense and those giving rise to a

  misdemeanor.

¶ 42   Therefore, we conclude that Quezada-Caro’s equal protection

  rights were not violated when the district court treated his prior DUI

  convictions as a sentence enhancer rather than an element of the

  offense.




                                     22
                          B.   Jury Instructions

¶ 43   Quezada-Caro contends that the district court erred when it

  failed to construe the instruction he tendered on the definition of

  “drove” as a theory of defense instruction.6 We reject this

  contention.

¶ 44   A defendant is entitled to a jury instruction encompassing his

  theory of the case provided evidence in the record supports the

  instruction. People v. Bruno, 2014 COA 158, ¶ 18. We review de

  novo whether the defendant has met this burden. People v. Green,

  2012 COA 68M, ¶ 14.

¶ 45   A theory of defense instruction is general and brief, and must

  explain the evidence and its legal effect. Bruno, ¶ 19. A trial court

  may refuse to give an instruction that is “argumentative, contains

  errors of law, merely reiterates portions of the evidence, or is

  encompassed within the other instructions.” Id. (quoting People v.

  Lee, 30 P.3d 686, 689 (Colo. App. 2000)). But a trial court has an




  6 The parties disagree as to whether this error was preserved
  because Quezada-Caro did not tender a theory of defense
  instruction or ask the district court to help craft a theory of defense
  instruction based on the definition of “drove.” Because we perceive
  no error, we need not resolve this dispute.

                                    23
  obligation to cooperate with counsel to either correct a tendered

  theory of defense instruction or incorporate the substance of such

  instruction into an instruction drafted by the court. Id.

¶ 46   At trial, the prosecution and Quezada-Caro tendered proposed

  instructions defining “drove” under the DUI statute. See § 42-4-

  1301. Both proposed instructions listed factors for the jury to

  consider when deciding whether Quezada-Caro had been driving a

  motor vehicle the night of his arrest. The prosecution objected to

  Quezada-Caro’s tendered instruction.

¶ 47   At the close of evidence, the district court used the

  prosecution’s proposed definition of “drove,” stating that “it’s a

  correct statement of the law.” The court reasoned that the

  prosecution’s instruction “gives more of a generic description of

  what it constitutes to drive,” while Quezada-Caro’s instruction “is

  basically their argument in the case.” The court concluded that it

  did not “want to include as an instruction on the law a Defense

  argument.”

¶ 48   Defense counsel did not argue that the definitional instruction

  should be used as a theory of defense instruction or propose an

  additional instruction reflecting his theory of the case. Nonetheless,


                                    24
  relying on People v. Nunez, 841 P.2d 261 (Colo. 1992), Quezada-

  Caro argues the district court erred by failing to recognize the

  definitional instruction as a theory of defense instruction and by

  not working with counsel to modify it and present it to the jury.

¶ 49   In Nunez, the trial court refused to give the defendant’s

  tendered alibi defense instruction, which improperly suggested that

  alibi was an affirmative defense. Id. at 263. The Colorado Supreme

  Court concluded the trial court properly denied the instruction as

  inconsistent with Colorado law. Id. at 264. Nevertheless, the court

  held that the trial court erred by failing to correct the defendant’s

  tendered instruction or incorporate the substance of the instruction

  into one drafted by the court. Id. at 266.

¶ 50   But Quezada-Caro’s reliance on Nunez is misplaced. Nunez

  does not stand for the proposition that a trial court has an

  affirmative obligation to transform any tendered instruction into a

  theory of defense instruction. Rather, a court’s obligation is limited

  to either correcting a tendered theory of defense instruction or

  incorporating the substance of a tendered theory of defense

  instruction into the other jury instructions. Id.; Bruno, ¶ 19.




                                    25
¶ 51   Here, unlike the alibi instruction in Nunez, Quezada-Caro’s

  tendered instruction did not set forth a theory of defense; it

  explained a term used in an elemental instruction. Because

  Quezada-Caro did not submit an instruction that set forth a theory

  of defense, the district court was not required to draft one on

  counsel’s behalf. We perceive no error.

                             III.   Conclusion

¶ 52   The judgment is affirmed.

       JUDGE DAILEY and JUDGE RICHMAN concur.




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