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
February 21, 2019
2019COA27
No. 18CA0842, People v. Slaughter — Constitutional Law —
Colorado Constitution — Equal Protection; Crimes — Assault in
the Second Degree; Criminal Law — Sentencing — Mandatory
Sentences for Violent Crimes
A division of the court of appeals considers whether charging a
defendant with second degree assault by strangulation under
section 18-3-203(1)(i), C.R.S. 2018, with a crime of violence
sentence enhancer under section 18-1.3-406(2)(a)(I)(A), C.R.S.
2018, violates a defendant’s equal protection rights under the
Colorado Constitution. The division concludes that it does.
Under the Colorado Constitution, if two criminal statutes
provide for different penalties for identical conduct, a person
convicted under the statute with the harsher penalty is denied
equal protection of the laws unless there are reasonable differences
or distinctions between the prohibited behaviors.
The division reviews the disparate sentences available for
identical strangulation conduct and concludes that, because there
is no intelligible standard for distinguishing between the prohibited
acts under section 18-3-203(1)(b), on the one hand, and the
prohibited acts under section 18-3-203(1)(i) when charged with a
crime of violence sentence enhancer, on the other hand, the
prosecution’s attempt to charge defendant with the latter
combination violates equal protection. Thus, the prosecution’s
attempt to charge defendant with the combination of section 18-3-
203(1)(i) with a crime of violence sentence enhancer under section
18-1.3-406(2)(a)(I)(A) would be unconstitutional as applied to him.
COLORADO COURT OF APPEALS 2019COA27
Court of Appeals No. 18CA0842
Arapahoe County District Court No. 16CR2045
Honorable Andrew C. Baum, Judge
The People of the State of Colorado,
Plaintiff-Appellant,
v.
Darius Javonmarquise Slaughter,
Defendant-Appellee.
ORDER AFFIRMED
Division I
Opinion by JUDGE TERRY
Taubman and Fox, JJ., concur
Announced February 21, 2019
George H. Brauchler, District Attorney, Jacob Edson, Chief Deputy District
Attorney, Centennial, Colorado, for Plaintiff-Appellant
Megan A. Ring, Colorado State Public Defender, Jessica Sommer, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellee
¶1 A prosecutor seeking to charge an accused with felony
strangulation has multiple charging options available under
Colorado criminal statutes.
¶2 The crime can be charged under the first degree assault
statute, section 18-3-202(1)(g), C.R.S. 2018. To obtain a conviction
under that statute, the prosecution would have to prove that the
accused caused serious bodily injury to the victim.
¶3 If the prosecution wants to dispense with the requirement to
prove serious bodily injury, it can charge the accused under the
second degree assault statute, section 18-3-203, C.R.S. 2018. Two
charging options are available for a strangulation crime under that
statute, neither of which would require proof of serious bodily
injury: under subsection (1)(b) or under subsection (1)(i).
¶4 A charge under subsection (1)(b) would require proof of use of
a deadly weapon. Unless charged with a crime of violence sentence
enhancer, a strangulation charge under subsection (1)(i) would not
require proof of use of a deadly weapon.
¶5 As we will discuss, the penalty available for a strangulation
charged under subsection (1)(i) if charged as a crime of violence
under section 18-1.3-406(2)(a)(I)(A), C.R.S. 2018, is substantially
1
more severe than if an accused is charged merely under subsection
(1)(b), even though conviction for both crimes would require proof of
use of a deadly weapon.
¶6 The prosecution charged defendant, Darius Javonmarquise
Slaughter, with strangulation under the second degree assault
statute, section 18-3-203(1)(i). If it were allowed to charge
Slaughter under subsection (1)(i) and also charge a sentence
enhancer under the crime of violence sentencing statute, such
charging would subject him to harsher and disparate sentencing, as
compared with other persons accused of engaging in the same
conduct, based solely on the prosecution’s charging decision. Thus,
his right to equal protection under the Colorado Constitution would
be violated. For that reason, we conclude that the district court did
not err in denying the prosecution’s motion to add a charge under
the crime of violence statute, and we affirm the court’s order
dismissing the added crime of violence charge.
I. Procedural History
¶7 The People filed this interlocutory appeal in accordance with
section 16-12-102(1), C.R.S. 2018, and C.A.R. 4(b)(3). The
prosecution charged Slaughter with second degree assault by
2
strangulation under section 18-3-203(1)(i) for allegedly strangling
the victim with his hands. The People later moved to add a new
count under the crime of violence sentencing statute, section 18-
1.3-406(2)(a)(I)(A), based on their assertion that Slaughter used his
hands as a deadly weapon.
¶8 Though the trial court initially granted the motion, it later
reconsidered that ruling on Slaughter’s motion and dismissed the
charged sentence enhancer. The court reasoned that, as applied to
Slaughter, such a charge violated his right to equal protection of the
laws guaranteed by the Colorado Constitution.
II. Constitutional and Statutory Background
¶9 Under the Fourteenth Amendment to the United States
Constitution, no state shall “deny to any person within its
jurisdiction the equal protection of the laws.” U.S. Const. amend.
XIV, § 1.
¶ 10 In harmony with the Federal Constitution, our supreme court
has held that the right to equal protection of the laws is included
within due process of law as provided in article II, section 25, of the
Colorado Constitution. People v. Marcy, 628 P.2d 69, 83 (Colo.
1981). Even so, distinguishing United States v. Batchelder, 442
3
U.S. 114 (1979), which construed the Federal Constitution, the
court in Marcy emphasized that, 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.”
Marcy,
628 P.2d at 74. In this respect, equal protection under the
Colorado Constitution is more far-reaching than it is under the
Federal Constitution. Slaughter argues an equal protection
violation only under the Colorado Constitution.
¶ 11 Equal protection of the law assures that those who are
similarly situated will be afforded like treatment. People v. Mozee,
723 P.2d 117, 126 (Colo. 1986). When two criminal statutes
provide different penalties for identical conduct, a defendant is
denied equal protection under the law if he is convicted under the
harsher statute.
Id. And, “when separate statutes prescribe
different penalties for what ostensibly might be different acts but
offer no intelligent standard for distinguishing between and among
these acts, those statutes deny equal protection under the law.”
People v. Griego,
2018 CO 5, ¶ 35 (citing Marcy,
628 P.2d at 75).
4
¶ 12 Under the Colorado Constitution, “if a criminal statute
[provides] different penalties for identical conduct, a person
convicted under the harsher penalty is denied equal protection
unless there are reasonable differences or distinctions between the
proscribed behavior[s].” People v. Stewart, 55 P.3d 107, 114 (Colo.
2002).
¶ 13 In keeping with Colorado’s equal protection guarantee, we
scrutinize the statute under which defendant was charged, as well
as the statute under which the prosecution seeks to charge him
and the broader statutory scheme, to determine whether these
standards are met.
III. Standards of Review and Principles of Statutory Construction
¶ 14 We review the constitutionality of statutes de novo. Colo.
Union of Taxpayers Found. v. City of Aspen, 2018 CO 36, ¶ 13.
Statutes are presumed constitutional,
id., and a party challenging
the constitutionality of a statute must prove unconstitutionality
beyond a reasonable doubt, TABOR Found. v. Reg’l Transp. Dist.,
2018 CO 29, ¶ 15.
¶ 15 We construe defendant’s arguments as raising a challenge to
the relevant statutes as applied to the prosecution’s charging
5
decision. To prevail on an as-applied constitutional challenge, the
challenging party must establish that the statute is
unconstitutional under the circumstances in which the plaintiff has
acted or proposes to act. Qwest Servs. v. Blood, 252 P.3d 1071,
1085 (Colo. 2011).
¶ 16 The interpretation of sections 18-3-203(1)(i) and 18-1.3-
406(2)(a)(I)(A) is a question of law which we review de novo. Cowen
v. People,
2018 CO 96, ¶ 11. When interpreting a statute, our
primary purpose is to ascertain and give effect to the General
Assembly’s intent.
Id. We start by examining the plain meaning of
the statutory language.
Id. We give consistent effect to all parts of
the statute and construe each provision in harmony with the overall
statutory design. Id., ¶ 13.
IV. The Disparate Charging Options Available for the Same
Strangulation Conduct Render the Statutory Scheme
Ambiguous
¶ 17 Before 2016, a prosecutor seeking to charge an accused for
strangulation of a victim could charge under the first degree assault
6
statute, section 18-3-202. Subsection (1)(a) of that statute
provided, and still provides:
(1) A person commits the crime of assault in the
first degree if:
(a) With intent to cause serious bodily injury to
another person, he causes serious bodily
injury to any person by means of a deadly
weapon[.]
§ 18-3-202(1)(a) (emphasis added).
¶ 18 Also before 2016, a prosecutor seeking to charge an accused
for strangulation of a victim under the second degree assault
statute was limited to charging under subsections (1)(b), (1)(d), or
(1)(g) of section 18-3-203(1), C.R.S. 2015, each of which also
required either proof of use of a deadly weapon or the infliction of
bodily injury.
¶ 19 In 2016, the General Assembly amended the second degree
assault statute to add the provision under which defendant was
charged. Ch. 327, sec. 1, § 18-3-203, 2016 Colo. Sess. Laws 1328.
That section states that a person commits second degree assault if,
[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
pressure to the neck or by blocking the nose or
7
mouth of the other person and thereby causes
bodily injury.
§ 18-3-203(1)(i). Thus, for the first time, an accused could be
charged with felony assault for strangulation without the need for
the prosecution to prove use of a deadly weapon or serious bodily
injury.
¶ 20 The prosecution now seeks to add a charge against Slaughter
under the crime of violence sentencing statute, section 18-1.3-
406(2)(a)(I)(A) and (II)(C), based on the use of his hands as a deadly
weapon. As we have noted above, the prosecution, at least in
theory, could have charged him with second degree assault (not
specifying acts amounting to strangulation) under section 18-3-
203(1)(b).
¶ 21 Subsection (1)(b) provides that a person commits second
degree assault if, “[w]ith intent to cause bodily injury to another
person, he or she causes such injury to any person by means of a
deadly weapon.” (Emphasis added.) An accused convicted under
subsection (1)(b) is subject to sentencing under the crime of
violence sentencing statute, but with an important difference: under
the legislature’s 2016 amendment to section 18-3-203(2)(c)(II),
8
“notwithstanding the provisions of [the crime of violence sentencing
statute], the court is not required to sentence the defendant
[convicted under subsection (1)(b)] to the department of corrections
for a mandatory term of incarceration.” § 18-3-203(2)(c)(II).
¶ 22 As a result, a person convicted under subsection (1)(b) would
be subject to potentially lighter sentencing — even to probation —
than the prosecution seeks to impose here if Slaughter is convicted
under subsection (1)(i), even though a subsection (1)(b) offense is a
per se crime of violence.
¶ 23 Given the potential for disparate charges and sentencing
arising from the exact same conduct, we conclude that the interplay
between sections 18-3-203(1)(b), 18-3-203(1)(i), and 18-1.3-
406(2)(a)(I) renders ambiguous the statutory scheme for the
charging and sentencing of second degree assault by strangulation.
¶ 24 We therefore review the legislative history of the 2016
amendments to determine the legislative intent behind these
statutes. See People in Interest of M.W., 796 P.2d 66, 68 (Colo. App.
1990) (statute susceptible of more than one interpretation must be
construed in light of its legislative intent and purpose); see also
Farmers Ins. Exch. v. Bill Boom Inc.,
961 P.2d 465, 470 (Colo. 1998)
9
(to determine legislative intent, an appellate court may consider the
textual context, the statute’s legislative history, the state of the law
before the legislative enactment, the problem addressed by the
legislation, and the relationship between the particular legislation
and other relevant legislative provisions).
V. Legislative History of 2016 Amendments
¶ 25 Section 18-3-203(1)(i) originated as House Bill 16-1080.
Statements from the Legislative Council Staff Research Note
accompanying the bill show that the legislature intended the new
strangulation subsection to institute a change from prosecutors’
past practice. See Gen. Assemb. Legis. Council, Research Note for
H.B. 1060, 70th Gen. Assemb., 2d Reg. Sess. (2016). Before the
passage of House Bill 16-1080 and Senate Bill 16-102 in 2016,
prosecutors charged strangulation under section 18-3-203(1)(b), see
Assault by Strangulation: Hearing on H.B. 16-1080 before the H.
Judiciary Comm., 70th Gen. Assemb., 2d Reg. Sess. (Feb. 9, 2016)
(statement of Mark Hurlbert, Assistant Arapahoe County District
Attorney), which at that time carried with it crime of violence
sentencing, including mandatory minimums.
10
¶ 26 According to testimony before the General Assembly in 2016,
the requirement to prove that hands were deadly weapons under
subsection (1)(b) was seen as an impediment to proving that an
accused who committed strangulation through the use of hands
had committed a felony. Particularly in more rural jurisdictions,
prosecutors had difficulty obtaining expert testimony that would be
necessary to establish that a defendant’s hands were used as a
deadly weapon so that a felony level crime could be proved. Assault
by Strangulation: Hearing on H.B. 16-1080 before the H. Judiciary
Comm., 70th Gen. Assemb., 2d Reg. Sess. (Feb. 9, 2016) (statement
of Mark Hurlbert, Assistant Arapahoe County District Attorney). As
a result, strangulation offenses were resulting in convictions only
for a class 1 misdemeanor under the third degree assault statute,
section 18-3-204, C.R.S. 2018, or for a municipal code violation.
See Assault by Strangulation: Hearing on H.B. 16-1080 before the H.
Judiciary Comm., 70th Gen. Assemb., 2d Reg. Sess. (Feb. 9, 2016)
(statement of Rep. Mike Foote, sponsor of H.B. 16-1080).
¶ 27 A perception emerged that a serious form of domestic violence
was not resulting in appropriately severe sentencing. See Assault
by Strangulation: Hearing on H.B. 16-1080 before the S. Judiciary
11
Comm., 70th Gen. Assemb., 2d Reg. Sess. (Apr. 27, 2016)
(statement of Rep. John Cooke, Member, S. Judiciary Comm.,
sponsor of H.B. 16-1080) (“We want to increase this to a felony[.]”);
see also Assault by Strangulation: Hearing on H.B. 16-1080 before
the H. Judiciary Comm., 70th Gen. Assemb., 2d Reg. Sess. (Feb. 9,
2016) (statement of Rep. Mike Foote, sponsor of H.B. 16-1080).
¶ 28 Reflecting these concerns, the legislature amended the first
and second degree assault statutes. New statutory language was
proposed to deal specifically with strangulation, resulting in the
enactment of section 18-3-202(1)(g) and section 18-3-203(1)(i).
¶ 29 The new addition to the first degree assault statute
criminalizes strangulation that is done “[w]ith the intent to cause
serious bodily injury” and also “causes serious bodily injury.” § 18-
3-202(1)(g).
¶ 30 More of interest to us here, section 18-3-203(1)(i) for the first
time specifically included acts that amount to strangulation in the
second degree assault statute. One of the bill’s sponsors pointed
out that “[t]he elements [of section 18-3-203(1)(i)] don’t require the
finding of hands as a deadly weapon.” Assault by Strangulation:
Hearing on H.B. 16-1080 before the H. Judiciary Comm., 70th Gen.
12
Assemb., 2d Reg. Sess. (Feb. 9, 2016) (statement of Rep. Mike
Foote, sponsor of H.B. 16-1080).
¶ 31 Also unlike section 18-3-202(1)(g), section 18-3-203(1)(i) does
not mention the element of serious bodily injury.
¶ 32 While House Bill 16-1080 was the impetus for the addition of
the first and second degree assault by strangulation crimes in
sections 18-3-202(1)(g) and 18-3-203(1)(i), Senate Bill 16-102
eliminated mandatory minimum sentences for certain other second
degree assault crimes in section 18-3-203(2)(c)(II). The legislative
history does not answer whether the legislature intended the
sentencing disparities that would result for strangulation crimes
based on a prosecutor’s charging decisions, or whether the 2016
General Assembly simply ran out of time during the legislative
session to reconcile the House and Senate bills before their
enactment. In the legislature’s discussion of these bills, we find no
mention of whether a prosecutor could add a crime of violence
sentence enhancer or whether doing so would cause an equal
protection problem.
¶ 33 In any event, the legislature did not demonstrate a clear intent
to prevent the prosecution from charging subsection (1)(i) with a
13
crime of violence sentence enhancer pursuant to section 18-1.3-
406(2)(a)(I)(A). Thus, it would be permissible under the statutory
scheme to do as the People request — to charge defendant with a
crime of violence sentence enhancer — unless such charging would
result in an equal protection violation.
¶ 34 We turn next to whether such a violation would arise if the
People were allowed to so charge Slaughter.
VI. Strangulation Charges Under Sections 18-3-202(1)(g), 18-3-
203(1)(b), and 18-3-203(1)(i)
¶ 35 It is important to the analysis here that, unlike subsection
(1)(b) of the second degree assault statute, which requires proof that
an accused intentionally caused bodily injury to another person “by
means of a deadly weapon,” § 18-3-203(1)(b), subsection (1)(i) allows
a conviction of second degree assault by strangulation without
requiring proof of use of a deadly weapon.
¶ 36 A prosecutor anticipating difficulty in proving serious bodily
injury may avoid charging strangulation under the first degree
assault statute and opt instead to bring charges under the second
degree assault statute, which requires only proof of bodily injury.
And a charge under section 18-3-203(1)(i) would not require proof of
14
use of a deadly weapon, unless a crime of violence sentence
enhancer is also charged.
A. Comparative Sentencing Options for Strangulation Charges
¶ 37 We now delve deeper into the sentencing discrepancies created
by the statutory scheme, with an eye toward how those
discrepancies affect equal protection analysis.
1. Equal Protection Standards
¶ 38 To determine whether the charging of a crime violates the
defendant’s right to equal protection of the laws guaranteed by the
Colorado Constitution, we begin by examining the conduct
prohibited by the applicable criminal statutes. See Stewart, 55 P.3d
at 114-18; Marcy,
628 P.2d at 73-82. We examine the statutory
language of the described crimes to determine if the conduct they
address contains differences that are both real in fact and
reasonably related to the general purposes of criminal legislation.
Marcy,
628 P.2d at 74.
¶ 39 If criminal statutes provide for different penalties for identical
conduct, a person convicted under the statute with the harsher
penalty is denied equal protection unless there are reasonable
15
differences or distinctions between the prohibited behaviors. People
v. Richardson, 983 P.2d 5, 6-7 (Colo. 1999).
2. Discussion
¶ 40 As mentioned above, second degree assault by strangulation
under section 18-3-203(1)(i), when charged with a crime of violence
sentence enhancer based on the use of a deadly weapon under
section 18-1.3-406(2)(a)(I)(A), carries with it a harsher penalty than
does a charge of second degree assault causing bodily injury with a
deadly weapon under section 18-3-203(1)(b). Even though the
prosecution in both instances would have to present proof of use of
a deadly weapon, the former offense, when charged as a crime of
violence, subjects a defendant to a much harsher penalty than does
the latter offense.
¶ 41 We conclude that the conduct prohibited by subsection (1)(i)
when charged with the crime of violence sentence enhancer, as
compared with the conduct prohibited by subsection (1)(b), lacks
differences that are both real in fact and reasonably related to the
general purposes of criminal legislation.
16
a. Second Degree Assault by Strangulation Without Crime of
Violence Charges
¶ 42 Given the current statutory scheme, an accused charged
under the second degree assault statute with use of a deadly
weapon (not specifying strangulation) under section 18-3-203(1)(b),
and without crime-of-violence sentence enhancement, is eligible for
a flexible sentencing range that includes an option for probation.
See § 18-3-203(2)(c)(II) (For such a crime, “the court is not required
to sentence the defendant to the department of corrections for a
mandatory term of incarceration.”).
¶ 43 Without crime of violence sentence enhancement, an accused
charged and convicted under section 18-3-203(1)(i), even though not
charged as having used a deadly weapon, is eligible for a
presumptive sentence ranging from two to eight years of
imprisonment. See § 18-1.3-401(1)(a)(V)(A), (1)(b)(XVIII), (10)(a),
C.R.S. 2018. Still, such an accused can be eligible for sentencing
below that presumptive range, as provided in section 18-1.3-401(6),
and could be sentenced instead to probation.
17
b. With Crime of Violence Charges
¶ 44 If — as the prosecution seeks to do here — an accused is
charged with both strangulation under the second degree assault
statute, section 18-3-203(1)(i), and with a crime of violence
sentence enhancer under section 18-1.3-406(2)(a)(I)(A) and
(2)(a)(II)(C), and the jury finds against the accused on both charges,
the sentencing range does not include a probation option.
¶ 45 The minimum sentence for such a conviction would be five
years, and the maximum sentence would be increased to sixteen
years. See § 18-1.3-406(1)(a) (requiring mandatory minimum
sentencing to incarceration for persons convicted of crimes of
violence, ranging from “at least the midpoint in, but not more than
twice the maximum of, the presumptive range provided for such
offense in section 18-1.3-104(1)(a), as modified for an extraordinary
risk crime pursuant to section 18-1.3-401(10), without
suspension”); § 18-1.3-406(7) (requiring sentencing court to add five
years for conviction of crime of violence, consecutive to any other
sentence).
18
c. Comparison of Sentencing Outcomes
¶ 46 Clearly, the sentence for the crime of strangulation under the
second degree assault statute, section 18-3-203(1)(i), if charged
with a crime of violence sentence enhancer, is substantially harsher
even than one charged under section 18-3-203(1)(b), which requires
use of a deadly weapon. We next consider whether it is an equal
protection violation to allow such disparate sentencing results
based solely on a prosecutor’s charging decision.
B. Equal Protection Violation Based on Disparate Treatment
¶ 47 Courts have an obligation “to ‘avoid interpretations that invoke
constitutional deficiencies.’” Catholic Health Initiatives Colo. v. City
of Pueblo, Dep’t of Fin., 207 P.3d 812, 822 (Colo. 2009) (quoting
Adams Cty. Sch. Dist. No. 50 v. Heimer,
919 P.2d 786, 792 (Colo.
1996)). “[A]n evenhanded application of the law turns on
reasonably intelligible standards of criminal culpability.” Marcy,
628 P.2d at 80. As a result, any definition of a crime “must be
sufficiently coherent and discrete that a person of
average intelligence can reasonably distinguish it from conduct
proscribed by other offenses.”
Id. at 80-81.
19
¶ 48 As demonstrated by the sentencing scenarios discussed above,
the prosecution’s decision to try to charge defendant with second
degree assault by strangulation under section 18-3-203(1)(i) with
the crime of violence sentence enhancer for use of his hands as
deadly weapons, if agreed to by the court, would put him in a
position to receive a much harsher sentence than if he had just
been charged with second degree assault using his hands as deadly
weapons under section 18-3-203(1)(b). This creates the potential
for greatly disparate treatment of defendants facing strangulation
charges where it is alleged that their hands were used as deadly
weapons. See People v. Mumaugh, 644 P.2d 299, 301 (Colo. 1982)
(To allow a defendant “to suffer a more severe penalty for conduct
indistinguishable from that which carries a lesser penalty violates
equal protection of the laws.”).
¶ 49 The People have not shown how anything other than the
prosecutor’s charging decision could be used to justify disparate
sentences for two defendants who engaged in precisely the same
conduct.
¶ 50 The requirement of equal protection that the differences in
prohibited conduct must be “real in fact” is meant to exclude
20
differences that are merely technical, conceptual, or semantic. See
Marcy, 628 P.2d at 78 (proscribed conduct “without a sufficiently
pragmatic difference” is insufficient in equal protection inquiry);
People v. Calvaresi,
188 Colo. 277, 281-82,
534 P.2d 316, 318
(1975) (“Classification of persons under the criminal law must be
under legislation that is reasonable and not arbitrary,” and, to
comport with equal protection, a difference in sentencing regimes
must not rest on “shifting sands of semantics.”).
¶ 51 To allow such disparate results in outcomes for strangulation
cases, given no meaningful distinction in the criminal conduct and
based solely on the prosecutor’s inclination to charge in a particular
manner, is indeed to deny equal protection of the law. The potential
for disparate charging decisions causes the statutory classification
of these crimes to lack “differences that are real in fact and
reasonably related to the general purposes of criminal legislation.”
Marcy,
628 P.2d at 71, 74 (finding equal protection violation where
“the crime of first degree murder by extreme indifference [was] not
sufficiently distinguishable from second degree murder to warrant
the substantial differential in penalty authorized by the statutory
scheme”).
21
¶ 52 We therefore conclude that, as applied to the circumstances
here, where the prosecution seeks to charge Slaughter with
strangulation under section 18-3-203(1)(i) together with the crime
of violence sentence enhancer under section 18-1.3-406(2)(a)(I)(A),
such charging would cause a violation of defendant’s right to equal
protection of the laws, and thus would be unconstitutional.
VII. Deference to Prosecutorial Discretion is Unwarranted When
Such Discretion Results in an Equal Protection Violation
¶ 53 The People rely on section 18-1-408(7), C.R.S. 2018, which
codifies the concept of prosecutorial discretion. That section
provides:
If the same conduct is defined as criminal in
different enactments or in different sections of
this code, the offender may be prosecuted
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.
§ 18-1-408(7).
22
¶ 54 Courts are “properly hesitant to examine the decision whether
to prosecute.” Wayte v. United States, 470 U.S. 598, 607-08 (1985)
(explaining why the prosecution’s charging decisions are
“particularly ill-suited to judicial review”).
¶ 55 People v. Bagby,
734 P.2d 1059, 1061-62 (Colo. 1987),
discussed factors to be considered by a court in determining
whether the legislature’s enactment of a specific statute precludes
prosecution under a general statute.
Id. Because it did not discuss
equal protection, however, Bagby is not instructive in this context,
and we look, instead, to our supreme court’s precedent regarding
the limits imposed on prosecutorial discretion by equal protection
requirements.
¶ 56 Though prosecutors generally have discretion in charging
decisions, we agree with the district court that the prosecution is
not permitted to charge an accused in a manner that would result
in a violation of equal protection if the defendant were found guilty
and sentenced to a harsher penalty than another accused might
receive for identical assault conduct. See Stewart,
55 P.3d at 118
(“Generally, the prosecution has discretion to determine what
charges to file when a defendant’s conduct violates more than one
23
statute. See § 18-1-408(7), 6 C.R.S. (2001). There are certain
circumstances in which this general rule does not apply.” (citing
People v. Smith, 938 P.2d 111, 115-16 (Colo. 1997); Bagby,
734
P.2d at 1061-62)).
¶ 57 As the supreme court said in Griego, “when separate statutes
prescribe different penalties for what ostensibly might be different
acts but offer no intelligent standard for distinguishing between and
among these acts, those statutes deny equal protection under the
law.” Griego, ¶ 35.
¶ 58 “[T]o overcome a challenge under the equal protection
clause, the statutory classification [of crimes] must turn on
‘reasonably intelligible standards of criminal culpability,’ and any
definition of a crime must be ‘sufficiently coherent and discrete that
a person of average intelligence can reasonably distinguish it from
conduct proscribed by other offenses.’”
Id. at ¶ 36 (quoting Marcy,
628 P.2d at 80-81).
¶ 59 As in Griego, identical behavior could result in different
charging decisions and “dramatically different punishments.” Id. at
¶ 38. If defendant A engages in an act of strangulation and is
charged with second degree assault with a deadly weapon for the
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use of his hands under subsection (1)(b), but is eligible for
probation, while defendant B is charged under subsection (1)(i) with
assault with a deadly weapon by strangulation with his hands as a
deadly weapon, but is eligible only for a minimum sentence of five
years in prison because the crime was charged with a crime of
violence sentence enhancer, defendant B’s right to equal protection
is violated because there is no intelligible standard for
distinguishing between the prohibited acts.
¶ 60 The prosecution cannot rely on its prosecutorial discretion to
sidestep Slaughter’s equal protection challenge.
VIII. “Inherent Deadliness”
¶ 61 Slaughter points out the inherent deadliness of the
strangulation conduct described by section 18-3-203(1)(i). But to
resolve the equal protection violation raised in this case, we do not
need to address his assertion that all cases of strangulation are
committed with a deadly weapon. The potential we have described
for disparate sentencing treatment of persons accused and
convicted of strangulation, based solely on prosecutorial discretion,
is enough by itself to establish the equal protection violation of
which defendant complains.
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IX. Conclusion
¶ 62 We conclude that the combination of the prosecution’s charge
against Slaughter under section 18-3-203(1)(i) and the crime of
violence charge under section 18-1.3-406(2)(a)(I)(A) renders these
statutory provisions unconstitutional as applied to him. Because of
this equal protection violation, the prosecution’s motion to charge
him with a crime of violence sentence enhancer under section 18-
1.3-406(2)(a)(I)(A) should have been denied, and we affirm the
district court’s order dismissing the added crime of violence count.
JUDGE TAUBMAN and JUDGE FOX concur.
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