     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
                                                             August 22, 2019

                               2019COA130

No. 19CA0482, People v. Lee — Constitutional Law — Colorado
Constitution — Equal Protection; Crimes — Assault in the
Second Degree — Strangulation

     In this People’s appeal, a division of the court of appeals holds

that a defendant may not be charged with second degree assault for

the same manual strangulation conduct under both subsections

(1)(b) and (1)(i) of section 18-3-203, C.R.S. 2018, for two

reasons. First, these subsections carry different maximum

penalties, so charging the same strangulation conduct under both

sections would violate equal protection. Second, the legislative

history reveals the General Assembly’s intent that all strangulations

be charged under section 18-3-203(1)(i), rather than under the

more general subsection. Accordingly, the division affirms the
district court’s order dismissing the second degree assault charged

under section 18-3-203(1)(b) and the crime of violence counts.
COLORADO COURT OF APPEALS                                    2019COA130


Court of Appeals No. 19CA0482
Arapahoe County District Court No. 18CR1431
Honorable Ben L. Leutwyler, Judge


The People of the State of Colorado,

Plaintiff-Appellant,

v.

Dearies Deshonne Austin Lee,

Defendant-Appellee.


                               ORDER AFFIRMED

                                 Division VI
                         Opinion by JUDGE FREYRE
                         Fox and Welling, JJ., concur

                         Announced August 22, 2019


George H. Brauchler, District Attorney, Jacob Edson, Chief District Deputy
Attorney, Centennial, Colorado, for Plaintiff-Appellant

Megan A. Ring, Colorado State Public Defender, Alison E. Blackwell, Deputy
State Public Defender, Centennial, Colorado, for Defendant-Appellee
¶1    In this People’s appeal, brought under section 16-12-102(1),

 C.R.S. 2018, and C.A.R. 4(b)(3), we are asked to decide an issue left

 unresolved by another division in People v. Slaughter, 2019 COA 27.

 The Slaughter division held that charging a defendant with second

 degree assault by strangulation under section 18-3-203(1)(i), C.R.S.

 2018, (strangulation subsection), and a crime of violence count

 under section 18-1.3-406(2)(a)(I)(A), C.R.S. 2018, violated his right

 to equal protection because the penalty was substantially more

 severe than if the defendant were charged with second degree

 assault under section 18-3-203(1)(b) (deadly weapon subsection), a

 per se crime of violence, for the same conduct. Consequently, the

 division affirmed the district court’s order dismissing the crime of

 violence counts attached to the strangulation charges.

¶2    Here, we must decide whether a defendant may be charged

 with strangulation under both the deadly weapon and strangulation

 subsections of the second degree assault statute.1 We hold that a


 1 Strangulation causing serious bodily injury constitutes first degree
 assault under section 18-3-202(1)(g), C.R.S. 2018. We only
 consider second degree assault strangulation here. Because the
 circumstances here and the legislative amendment concern manual
 strangulation, we offer no opinion on whether our analysis would
 apply to strangulation with a ligature or other instrument.

                                   1
 defendant may not be charged under both subsections for two

 reasons. First, we conclude that charging the same conduct under

 both subsections would violate a defendant’s right to equal

 protection because the subsections carry different maximum

 penalties. Second, we conclude, from the legislative history, that

 when the General Assembly amended the second degree assault

 statute to add the strangulation subsection, it intended all

 strangulation conduct to be charged under this specific subsection,

 rather than under the more general deadly weapon subsection.

 Accordingly, we affirm the district court’s order dismissing the

 second degree assault deadly weapon and crime of violence counts

 filed against the defendant, Dearies Deshonne Austin Lee.

                     I.   Procedural Background

¶3    The prosecution originally charged Mr. Lee with two counts of

 second degree assault under section 18-3-203(1)(i) (strangulation

 subsection), one count of child abuse under section 18-6-401(1),

 (7)(b)(I), C.R.S. 2018, and a crime of violence sentence enhancer

 under section 18-1.3-406(2)(a)(I)(A). The prosecution later added a

 habitual child abuser sentence enhancer, under section 18-6-

 401.2, C.R.S. 2018, and two second degree assault charges under


                                   2
 section 18-3-203(1)(b) (deadly weapon subsection). It also amended

 the crime of violence count to attach to all four second degree

 assault counts.

¶4    Shortly after Slaughter was announced, Mr. Lee moved to

 dismiss the second degree assault deadly weapon counts and the

 crime of violence sentence enhancer. After a hearing, the court

 granted Mr. Lee’s motion. It concluded that a conviction under the

 deadly weapon subsection could produce a more severe penalty

 than a conviction under the strangulation subsection for the same

 conduct and thus, that a potential equal protection violation

 existed. It dismissed the crime of violence counts based on

 Slaughter.

¶5    On appeal, the People contend that the district court

 erroneously interpreted Slaughter. They rely on dicta in the case

 stating, “the prosecution, at least in theory, could have charged [the

 defendant] with second degree assault (not specifying acts

 amounting to strangulation) under section 18-3-203(1)(b) [the

 deadly weapon subsection].” Id. at ¶ 20. We agree with Slaughter’s

 holding. But, to the extent the Slaughter division intended to

 suggest that a defendant can be charged with strangulation under


                                   3
 both the deadly weapon and strangulation subsections, we disagree

 with it, because the legislative history, extensively discussed in

 Slaughter, reveals a contrary intent. Moreover, charging a

 defendant with the same strangulation conduct under both

 subsections would violate a defendant’s right to equal protection, an

 issue the Slaughter division did not consider.

     II.   Second Degree Assault Strangulation Conduct May Be
                Charged Only Under Section 18-3-203(1)(i)

                   A.   Standard of Review and Law

¶6    We review a court’s legal conclusions and its dismissal of

 charges de novo. People v. Porter, 2015 CO 34, ¶ 8. We also

 interpret statutes de novo. In re Estate of King, 2019 COA 82, ¶ 11.

 When interpreting a statute, our primary goal is to ascertain and

 give effect to the General Assembly’s intent. Cowen v. People, 2018

 CO 96, ¶ 11. To do so, we examine the plain meaning of the

 statutory language. Id. We give consistent effect to all its parts and

 construe each provision in harmony with the overall statutory

 design. Id.




                                    4
¶7     Before 2016, the People could charge manual strangulation

 resulting in bodily injury as a felony only under section 18-3-

 203(1)(b), which provides:

            (1) A person commits the crime of assault in
            the second degree if:

            …

            (b) With intent to cause bodily injury to
            another person, he or she causes such injury
            to any person by means of a deadly weapon[.]

 Consequently, to obtain a felony conviction in the case of a manual

 strangulation, the prosecution was required to prove that the

 defendant’s hands were a deadly weapon.

¶8    Second degree assault with a deadly weapon is a class four

 felony and constitutes a per se crime of violence. See § 18-3-

 203(2)(b); see also § 18-1.3-406(2)(a)(I)(A), (II)(C). A crime of

 violence conviction requires a court to sentence a defendant to

 prison for a term of at least the midpoint of the presumptive range

 but no more than twice the maximum of the presumptive range. §

 18-1.3-401(8)(a)(I), C.R.S. 2018. However, in 2016 the General

 Assembly created an exception to this requirement for some second

 degree assault convictions, including under the deadly weapon



                                     5
 subsection. Ch. 181, sec. 1, § 18-3-203, 2016 Colo Sess. Laws 620.

 This exception at section 18-3-203(2)(c)(II) provides:

             If a defendant is convicted of assault in the
             second degree pursuant to paragraph (b), (c),
             (d), or (g) of subsection (1) of this section, the
             court shall sentence the offender in
             accordance with section 18-1.3-406; except
             that, notwithstanding the provisions of section
             18-1.3-406, the court is not required to
             sentence the defendant to the department of
             corrections for a mandatory term of
             incarceration.

 Consequently, a defendant convicted of second degree assault with

 a deadly weapon may be sentenced to probation or community

 corrections, but the length of any sentence, including one to prison,

 must be in the range of five to sixteen years. See § 18-1.3-

 401(8)(a)(I).

¶9     In the same 2016 legislative session, the General Assembly

 added the strangulation subsection to the second degree assault

 statute. Ch. 327, sec. 2, § 18-3-203, 2016 Colo. Sess. Laws 1328.

 This subsection provides that a person commits second degree

 assault when,

             [w]ith the intent to cause bodily injury, he or
             she applies sufficient pressure to impede or
             restrict the breathing or circulation of the
             blood of another person by applying such


                                     6
             pressure to the neck or by blocking the nose or
             mouth of the other person and thereby causes
             bodily injury.

  § 18-3-203(1)(i). This subsection allowed the prosecution, for the

  first time, to obtain a felony conviction for strangulation without the

  burden of proving that hands were a deadly weapon. And because

  this subsection does not include a deadly weapon element, it is not

  a per se crime of violence and thus is not listed in section 18-3-

  203(2)(c)(II)’s crime of violence exception. Rather, it is an

  extraordinary risk crime under section 18-1.3-401(10)(b)(XVIII).

  Therefore, a defendant convicted of strangulation can be sentenced

  to probation, community corrections, or prison for a period of two to

  eight years, see id.; § 18-1.3-401(1)(a)(V)(A), and cannot be charged

  with the crime of violence sentence enhancer, Slaughter, ¶ 52.

¶ 10   As noted in Slaughter and as the statutory language reveals,

  the potential for disparate charges and sentencing arising from the

  same strangulation conduct “renders ambiguous the statutory

  scheme for the charging and sentence of second degree assault by

  strangulation.” Id. at ¶ 23. Therefore, as the Slaughter division did,

  we delve into the legislative history of the 2016 amendments to

  determine the General Assembly’s intent in adding the


                                     7
  strangulation provision to the second degree assault statute and

  whether it contemplated strangulation charges arising under

  multiple provisions of the statute. See § 2-4-203(1)(c), C.R.S. 2018

  (courts may consider legislative history as an aid in construing

  ambiguous statutes); see also Frazier v. People, 90 P.3d 807, 811

  (Colo. 2004) (when a statute conflicts with other provisions, an

  appellate court may look to legislative history).

                         B.    Legislative History

¶ 11   The strangulation subsection originated as House Bill 16-

  1080. Slaughter, ¶ 25. Before its introduction, prosecutors

  routinely charged manual strangulation resulting in bodily injury

  under the deadly weapon subsection, § 18-3-203(1)(b), which

  required them to prove that hands were a deadly weapon. See

  Slaughter, ¶ 26. Such proof often required expert testimony. In

  rural jurisdictions, prosecutors found it difficult to retain such

  experts and, consequently, frequently obtained verdicts for the

  lesser offense of misdemeanor third degree assault (requiring proof

  of bodily injury without a deadly weapon). See id.; Assault by

  Strangulation: Hearing on H.B. 16-1080 before H. Judiciary Comm.,

  70th Gen. Assemb., 2d Reg. Sess. (Feb. 9, 2016) (statements of Rep.


                                     8
  Mike Foote, Member, H. Judiciary Comm., sponsor of H.B. 16-1080,

  and Mark Hurlbert, Assistant Arapahoe County District Attorney).

  Thus, a goal of House Bill 16-1080 was to create a specific

  strangulation statute that dispensed with proof of the deadly

  weapon element. See § 18-3-203(1)(i); Assault by Strangulation:

  Hearing on H.B. 16-1080 before H. Judiciary Comm., 70th Gen.

  Assemb., 2d Reg. Sess. (Feb. 9, 2016) (statement of Rep. Mike

  Foote, sponsor of H.B. 16-1080) (“The elements [of subsection (1)(i)]

  don’t require the finding of hands as a deadly weapon.”); see also

  Slaughter, ¶ 30.

¶ 12   Testimony before the General Assembly revealed that another

  goal of the bill was to make strangulation a stand-alone criminal

  offense due to a disparity in charging decisions and verdicts for

  strangulation conduct across the state. According to the bill’s

  proponents, the legislation was intended to unify and elevate all

  forms of strangulation resulting in bodily injury to a felony in order

  to more consistently punish this type of behavior, which is

  particularly prevalent in domestic violence situations. See Assault

  by Strangulation: Hearing on H.B. 16-1080 before S. Judiciary

  Comm., 70th Gen. Assemb., 2d Reg. Sess. (Apr. 27, 2016)


                                     9
  (statement of Rep. John Cooke, Member, S. Judiciary Comm.,

  sponsor of H.B. 16-1080) (“We want to increase this to a felony[.]”);

  Assault by Strangulation: Hearing on H.B. 16-1080 before H.

  Judiciary Comm., 70th Gen. Assemb., 2d Reg. Sess. (Feb. 9, 2016)

  (statement of Rep. Mike Foote, sponsor of H.B. 16-1080) (“Our law

  currently does not recognize strangulation as a specific offense. It’s

  prosecuted right now under various levels of assault in our code,

  but there is nothing in our code that actually recognizes

  strangulation as a specific subset of assault, and this is what this

  bill would address. And, we would be in the vast majority of states

  to adopt language like this that recognizes strangulation as a

  specific type of assault offense.”); see also Slaughter, ¶ 27.

¶ 13   The passage of House Bill 16-1080 created sections 18-3-

  203(1)(i) and 18-3-202(1)(g) (first degree strangulation requiring

  proof of “intent to cause serious bodily injury” and “serious bodily

  injury”), and, for the first time, allowed prosecutors to obtain a

  felony conviction for strangulation without proving that the

  defendant’s hands were a deadly weapon. See § 18-3-203(1)(i).




                                     10
                         C.    Equal Protection Problem

¶ 14        We now address the district court’s equal protection ruling.

  Relying on Slaughter, the People contend that an equal protection

  violation occurs only when a defendant is charged with

  strangulation under section 18-3-203(1)(i) and the crime of violence

  sentence enhancer under section 18-1.3-406(2)(a)(I)(A). They

  further argue that, in the dicta recited above, the Slaughter division

  specifically sanctioned their ability to charge under both the deadly

  weapon and strangulation subsections. We are not persuaded

  because the statutory language and the legislative history belie their

  contention. Moreover, when a statute is susceptible of both

  constitutional and unconstitutional constructions, we must adopt

  the constitutional construction where it is reasonably consistent

  with legislative intent. People in re R.M.D., 829 P.2d 852, 853 (Colo.

  1992); People v. Felgar, 58 P.3d 1122, 1124-25 (Colo. App. 2002).

       1.     Charging Strangulation Under Both Subsections Violates a
                        Defendant’s Right to Equal Protection

¶ 15        The Fourteenth Amendment to the United States Constitution

  provides that no state shall “deny to any person within its

  jurisdiction the equal protection of the laws.” U.S. Const. amend.



                                        11
  XIV, § 1. For Colorado state law purposes, the right to equal

  protection is provided in article II, section 25, of the Colorado

  Constitution. People v. Stewart, 55 P.3d 107, 114 (Colo. 2002).

  “[E]qual 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). Unlike federal

  jurisprudence, which finds no equal protection problem when

  statutes proscribe identical conduct and authorize different

  penalties, Colorado law takes a “stricter view” by consistently

  holding that statutes proscribing identical conduct and carrying

  disparate penalties violate equal protection unless there are

  reasonable distinctions in the proscribed conduct. Stewart, 55 P.3d

  at 114 (collecting cases).

¶ 16   “To determine whether two statutes proscribe identical

  conduct, we analyze the elements of each.” Id. at 115. To avoid

  equal protection problems, criminal statutes must (1) adequately

  define the act and the mental state of each offense so that fair

  warning is given to all persons concerning the nature of the

  proscribed conduct and the resulting penalties; (2) reasonably


                                     12
  differentiate between the more serious and the less serious conduct;

  and (3) prescribe penalties that are proportionate to the seriousness

  of the offenses. Marcy, 628 P.2d at 73. Equal protection requires

  that differences in prohibited conduct be “real in fact and

  reasonably related to the general purposes of criminal legislation.”

  Id. at 74. And where, as here, the constitutional challenge is as-

  applied, we must examine the case’s circumstances. People v. Ford,

  232 P.3d 260, 263 (Colo. App. 2009); compare People v. Jefferson,

  748 P.2d 1223 (Colo. 1988) (facial equal protection challenge), with

  Slaughter, ¶ 15 (as applied equal protection challenge).

¶ 17    Here, as noted above, the maximum penalties for

  strangulation under the deadly weapon and strangulation

  subsections are different — a defendant convicted of strangulation

  under the deadly weapon subsection faces a maximum prison

  sentence of sixteen years while the same defendant convicted of the

  same conduct under the strangulation subsection faces a maximum

  prison sentence of only eight years. Yet, both subsections require

  proof of an intent to cause bodily injury and both require proof that

  bodily injury resulted from the conduct.




                                    13
¶ 18   We agree with the People that a prosecutor is legally permitted

  to charge separate offenses for the same conduct. Jefferson, 748

  P.2d at 1226. But we disagree with their assertion that there is a

  meaningful difference between manual strangulation under the

  deadly weapon and strangulation subsections — the conduct is the

  same; only the characterization of the instrument of the conduct is

  different. See Marcy, 628 P.2d at 78 (Differences in proscribed

  conduct “without a sufficiently pragmatic difference” violate a

  defendant’s right to equal protection.).

¶ 19   Moreover, whether a defendant suffers the higher penalty

  would depend entirely on the prosecutor’s charging discretion. See

  Slaughter, ¶ 51. And while we agree with the People that the

  subsections’ elements differ and that the deadly weapon subsection

  applies to a wide “range of unspecified conduct,” Stewart, 55 P.3d

  at 115, we perceive no scenario in which the manual strangulation

  conduct described in subsection (1)(i) would not also satisfy

  subsection (1)(b), nor have the People offered one. See Marcy, 628

  P.2d at 80 (“[A]n evenhanded application of the laws turns on

  reasonably intelligible standards of criminal culpability.”).




                                    14
¶ 20    Recognizing that we must construe statutes to avoid

  unconstitutional results, we conclude that manual strangulation

  causing bodily injury may only be charged under section 18-3-

  203(1)(i). Therefore, we affirm the district court’s order dismissing

  the deadly weapon and crime of violence counts against Mr. Lee.

  See People In Interest of J.D., 2017 COA 156, ¶ 10 (“We are . . .

  instructed to construe statutes and rules to avoid unconstitutional

  results.”) (cert. granted on other grounds Sept. 17, 2018).

       2.    The General Assembly Intended That All Strangulations
            Causing Bodily Injury Be Charged Under the Strangulation
                                   Subsection

¶ 21    Our resolution of the equal protection issue is supported by

  the legislative history that reveals the General Assembly’s intent to

  specifically carve out the crime of strangulation resulting in bodily

  injury and to make it a felony in all instances.

¶ 22    Well-settled law permits a prosecutor to charge separate

  offenses for the same conduct. People v. James, 178 Colo. 401,

  404, 497 P.2d 1256, 1257 (1972). Indeed, section 18-1-408(7),

  C.R.S. 2018, says,

               If the same conduct is defined as criminal in
               different enactments or in different sections of
               this code, the offender may be prosecuted


                                      15
            under any one or all of the sections or
            enactments subject to the limitations provided
            by this section. It is immaterial to the
            prosecution that one of the enactments or
            sections characterizes the crime as of lesser
            degree than another, or provides a lesser
            penalty than another, or was enacted by the
            general assembly at a later date than another
            unless the later section or enactment
            specifically repeals the earlier.

¶ 23   It is equally well settled that enactment of a specific criminal

  statute does not preclude prosecution under a general criminal

  statute “unless a legislative intent is shown to limit prosecution to

  the special statute.” People v. Bagby, 734 P.2d 1059, 1061 (Colo.

  1987). In most instances, we determine whether the General

  Assembly intended to supplant a general statute for a more specific

  statute by examining three factors:

            (1) whether the [specific] statute invokes the
            full extent of the state’s police powers; (2)
            whether the specific statute is part of an act
            creating a comprehensive and thorough
            regulatory scheme to control all aspects of a
            substantive area; and (3) whether the act
            carefully defines different types of offenses in
            detail.

  People v. Smith, 938 P.2d 111, 116 (Colo. 1997); see also Bagby,

  734 P.2d at 1062. But here, because the statute is ambiguous, we




                                    16
  may discern legislative intent from the legislative history. See

  Slaughter, ¶ 23.

¶ 24   As noted above, the legislative history shows that the General

  Assembly intended to eliminate misdemeanor convictions for

  strangulation resulting in bodily injury and to make all such

  strangulations felony offenses, recognizing that this conduct

  constitutes serious domestic violence behavior and that the

  enhanced punishment is consistent with that of the vast majority of

  other states. The General Assembly did this in two ways: (1) by

  specifically defining what constitutes strangulation (applying

  sufficient pressure to impede or restrict breathing or blood

  circulation by applying pressure to the neck or by blocking the nose

  or mouth); and (2) by removing the deadly weapon element, thereby

  lowering the prosecution’s burden of proof. Indeed, removing the

  deadly weapon element necessarily removed strangulation from the

  list of crimes constituting per se crimes of violence. That the

  General Assembly intended this trade-off — no per se crime of

  violence in exchange for all strangulations resulting in bodily injury

  constituting a felony — is evident from the testimony given during

  the bill’s consideration.


                                    17
¶ 25   As well, the General Assembly added the crime of violence

  exception found in section 18-3-203(2)(c)(II) during the same

  legislative session, and it specifically excluded strangulation from

  the exception, further evidencing that this trade-off was deliberate.

  See People v. Garcia, 2016 COA 124, ¶ 9 (“Courts presume that the

  General Assembly intended the entire statute to be effective.”); see

  also Pinnacol Assurance v. Hoff, 2016 CO 53, ¶ 48 (“We construe

  the legislature’s failure to include particular language not as an

  oversight, but as a deliberate omission reflecting legislative intent.”).

¶ 26   Accordingly, we conclude that the General Assembly has

  demonstrated its intent to limit prosecution for manual

  strangulation resulting in bodily injury to the strangulation

  subsection in section 18-3-203(1)(i). See Bagby, 734 P.2d at 1062.

  It may, and it did in the first degree assault statute, section 18-3-

  202(1)(g), provide a harsher penalty for strangulation that results in

  serious bodily injury. See Stewart, 55 P.3d at 114-15 (“The general

  assembly may establish more severe penalties for acts that it

  believes have graver consequences, even if the differences are only a

  matter of degree.”).




                                     18
¶ 27   Finally, because we affirm the district court’s order, we need

  not address Mr. Lee’s other contentions. See Qwest Corp. v. City of

  Northglenn, 2014 COA 55, ¶ 27 (appellate court need not reach all

  issues if one issue is dispositive).

                              III.   Conclusion

¶ 28   The order is affirmed.

       JUDGE FOX and JUDGE WELLING concur.




                                         19
