Convict My Client of Something Else! Lesser Included Offenses After Reyna-abarca

Publication year2018
47 Colo.Law. 38
Convict My Client of Something Else! Lesser Included Offenses after Reyna-Abarca
Vol. 47, No. 10 [Page 38]
The Colorado Lawyer
November, 2018



The Colorado Supreme Court recently changed the standard for when one offense is included in another, invalidating years of its own precedent and creating new challenges for criminal practitioners. This article considers the implications of the new standard.

A recent decision by the Colorado Supreme Court, Reyna-Abarca v. People, changed the rules for determining whether one offense is a lesser included offense of another.[1] In the long run, this change may clarify this issue, but in the short run it has introduced uncertainty by overturning a host of prior rulings about which crimes are and are not lesser included offenses of other crimes. The change in the definition of a lesser included offense affects all phases of a criminal case, from plea bargaining through sentencing, and has significant consequences for defendants, attorneys, and judges.

Why Lesser Offenses Matter

The public and attorneys who do not practice criminal law may not understand why lesser offenses matter. Most people tend to view trials in a sort of binary way—either a person is guilty or not. But that understanding ignores fundamental issues that criminal practitioners face. Often, the issue at trial is not whether the accused is guilty, but whether the accused is guilty of exactly what the prosecutor alleges or guilty of some lesser offense. Lesser offenses can dramatically change the parties' negotiations, the issues the jury decides, and the eventual sentence a court may impose.

The issues surrounding lesser included offenses generally arise in the context of: that one charged offense is subsumed by another charged offense for purposes of double jeopardy or merger (i.e., whether the defendant can be convicted and punished for both offenses);

2. a defendant's request that the jury be instructed on a non-charged lesser offense; and

3. the prosecution's request that the jury be instructed on a non-charged lesser offense.[2]

Double jeopardy and statutory merger are sentencing issues. As discussed in greater detail below, because Colorado and federal law normally authorize only one punishment for a single crime, the double jeopardy version of this controversy asks whether a lesser crime is in fact merely part of a charged crime. If so, double jeopardy principles prevent a defendant from receiving multiple punishments for the same act.[3] Similarly, the merger inquiry involves whether the charged crime and any lesser crimes must constitute one crime for sentencing purposes.[4]

A defendant's or the prosecution's request that the court instruct the jury on a non- charged lesser offense arises in the trial context. And it is in this context that many tactical and strategic influences operate and where practicing lawyers need a firm grip on exactly what lesser crimes might qualify for addition to the jury's decision tree.

For those wondering why a criminal defendant would ask a judge to instruct the jury about a crime with which he or she was never charged, the answer is, in hope that the jury will convict the defendant of the less serious crime and acquit of the more serious one.

For example, consider a hypothetical defendant charged with one count of second degree burglary of a dwelling[5] and three habitual criminal counts.[6] If convicted of these charges the hypothetical defendant will be sentenced to a mandatory 48 years in prison.[7] But if the judge instructs the jury on the lesser offense of first degree criminal trespass and the jury finds the defendant guilty of that charge rather than the original charge of second degree burglary (and there is the tactical problem), the hypothetical defendant faces a mandatory prison sentence of only 12 years, even with the habitual criminal counts.[8] So criminal defense lawyers have a big incentive to present the jury with a less serious alternative to a charged crime, but only if they have some confidence that the jury likely won't (or better, cannot) find the defendant guilty of both crimes.

This central strategic (and constitutional) question—whether the jury may find a defendant guilty of both the original charged crime and a lesser crime—depends in turn on whether the lesser crime is what the cases call a "lesser included offense" or a "lesser non-included offense." If a lesser crime is a lesser included offense, the judge must instruct the jury that it cannot convict the defendant of both the greater c rime and the lesser crime, precisely because the lesser crime is "included" for constitutional purposes in the original charged crime.[9] And adding a lesser included offense does not violate any notions of notice or due process, again because the lesser offense is already essentially charged as part of the charged offense.[10] But if the lesser charge is a non-included offense, the jury may find the defendant guilty of both.

The definitions of these two terms—lesser included and lesser non-included—and the tests courts have adopted to distinguish between them thus become critical to this central strategic decision of whether to request that the court instruct the jury about lesser crimes. Practitioners on both sides, as well as judges, need to understand these definitions and tests to understand how Reyna-Abarca changed the field.

A Practitioner's Perspective on Lesser Included Offenses

A defendant benefits when one offense is a lesser included offense of another because a defendant generally cannot receive two punishments for the same crime.[11] Both the U.S. and Colorado constitutions protect a person from suffering multiple punishments for the same offense.[12] While a legislature may authorize multiple punishments based on the same criminal conduct, the absence of that authorization means a court only has the authority to impose a single punishment.[13]

Colorado has a statute regarding multiple punishments, CRS § 18-l-408(l)(a), which permits a person, when his or her conduct "establishes the commission of more than one offense," to be prosecuted for more than one offense. But the statute precludes conviction (and the attendant punishment) for more than one offense at a time under several circumstances, as relevant here, when one offense is "included in the other, as defined in subsection (5) of this section."[14] This provision means that there is a reduced danger to a defendant in requesting a lesser included offense instruction because (1) the judge instructs the jury that it may only find the defendant guilty of only one of the greater or lesser offenses,[15] and (2) even if a jury somehow convicted a defendant of a greater offense and a lesser included offense, the court could impose only one punishment because the convictions merge.[16]

Either the prosecution or defense may request a lesser included offense instruction.[17] A trial court must instruct on a lesser included offense at the defense request when there is a "rational basis in the evidence to acquit of the charged offense and yet convict of the lesser requested offense."[18] A prosecutor may request, and should receive, a lesser-offense instruction even over defense objection when an offense is a lesser included offense or the offense gives "fair notice to the defendant that he may be required to defense against the uncharged offense."[19] The prosecution request does not appear to require a rational basis analysis, but instead depends on whether the lesser offense is "easily ascertainable from the charging instrument" and is not "an attempt to salvage a conviction from a case that has proven to be weak."[20]

A Practitioner's Perspective on Lesser Non-Included Offenses

A lesser non-included offense presents a slightly different picture. First, the lesser non-included doctrine that Colorado follows is a minority position.[21] The lesser non-included offense doctrine stems from the idea that a defendant's theory of the case may permit the jury to find a defendant innocent of one charge but guilty of a lesser charge that may not have been a lesser included offense.[22] In that circumstance, the defendant is essentially consenting to an added count.

A good example would be a defendant facing a charge of third degree assault, which requires the actor to knowingly or recklessly cause injury to another.[23] Assume the charges are based on the person getting into an argument and starting a fight in public. A defendant, in a case with proper facts, could request the court to instruct the jury on a charge of disorderly conduct pursuant to CRS § 18-9- 106(l)(d) along with the charges the district attorney levied. The disorderly conduct statute makes it unlawful to fight with another in a public place. Disorderly conduct is not a lesser included offense because it contains elements not present in third degree assault—principally the element that one is fighting with another in a public place. While disorderly conduct is probably not a lesser included offense of third degree assault, it carries a reduced penalty when compared with third degree assault. Thus, if a jury finds the accused guilty of disorderly conduct as opposed to third degree assault, the sentence would be to the reduced charge.

The justification for the notion of a lesser non-included offense is that it can "insure better trials and fairer verdicts" because without the instruction, "the jury may be aware of the commission of a crime, not the principal charge, and yet convict the defendant of the greater crime."[24] The standard for a lesser non-included instruction is if there is a rational basis to acquit on the greater charge and convict on the lesser.[25] There are at least two other limits on the defense requesting a lesser non-included instruction. First, a defendant may not request such an...

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