v. Lee

Citations

• 2019 COA 130

Syllabus

The prosecution charged defendant with two counts of second degree assault under CRS § 18-3-203(1)(i) (strangulation subsection), one count of child abuse under CRS § 18-6-401(1)(7)(b)(I), and a crime of violence sentence enhancer under CRS § 18-1.3-406(2)(a)(I)(A). The prosecution later added a habitual child abuser sentence enhancer and two second degree assault charges under CRS § 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. While this case was pending, a Court of Appeals' division decided People v. Slaughter, 2019 COA 27. The Slaughter division held that charging a defendant with second degree assault by strangulation under CRS § 18-3-203(1)(i) and a crime of violence count under CRS § 18-1.3-406(2)(a)(I)(A) violates his or her right to equal protection because the penalty is substantially more severe than if the defendant were charged with second degree assault under CRS § 18-3-203(1)(b), 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. Following Slaughter, defendant moved to dismiss the second degree assault deadly weapon counts and the crime of violence sentence enhancer. The court concluded that 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 a potential equal protection violation existed. The court dismissed the second degree assault deadly weapon and crime of violence counts. On appeal, the People argued that the court misinterpreted Slaughter. The Court of Appeals concluded that charging strangulation under both the deadly weapon and strangulation subsections of the second degree assault statute would violate a defendant's right to equal protection because the subsections carry different maximum penalties.