People v. District Court

¶1specially concurring:

¶2People v. District Court, No. 91SA329 (Colo. June 29, 1992) (Thomas case), reverses the district court’s order holding that the prosecution cannot seek the death penalty against Allen Thomas, Jr. who is charged with first-degree murder,1 a class I *204felony, allegedly committed in February 1991. The majority opinion, the special concurrences, and the dissent demonstrate a wide divergence among the members of the court in the interpretation of the death penalty statutes enacted by the General Assembly in 1986, 1988, and 1991. The prosecution contends Thomas can be tried for the commission of a death penalty offense on either the theory of statutory revival or under the retrospective application of section 16 — 11—103(2)(b)(II), which was enacted in 1991 (H.B. 91S2-1038, ch. 6, sec. 1, §§ 16-11-801 & 802, 1991 Colo.2d Ex.Sess.Laws 16, 16-22).

¶3Chief Justice Rovira agrees that the procedural changes made in the 1991 statute permit the prosecution to seek the death penalty in this case, but he does not agree with the prosecution’s revival argument. I agree with his analysis of the 1991 statute but differ with him on his reasons for not endorsing the statutory revival argument. However, I agree that our decision in Young did not revive the 1986 statute. Chief Justice Rovira, supported by the reasoning of the Supreme Court of the United States in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), and Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990), concludes that the retrospective application of H.B. 91S2-1038 in proscribing the procedure for the penalty phase of the trial does not violate either the federal or Colorado ex post facto clauses. I agree with the Chief Justice in a substantial part of his opinion, which is buttressed by the concurrences of Justice Vollack and Justice Mullarkey. See U.S. Const, art. I, § 10, cl. 1; Colo. Const, art. II, § 11.

¶4Justice Vollack and Justice Kirshbaum agree with the statutory revival argument made by the prosecution, but with a distinct difference in the interpretation of the statutory revival doctrine. Justice Vollack concurs in the majority opinion in part and dissents in part, but endorses revival. In concluding that the 1986 statute was revived, Justice Kirshbaum relies on White v. District Court, 180 Colo. 147, 503 P.2d 340 (1977) and People v. Young, 814 P.2d 834 (Colo.1991), which he states struck down the 1988 statute in its entirety. Justice Kirshbaum would uphold the right of the prosecution to seek the death penalty under the 1986 statute under the revival doctrine, but joins Justice Lohr’s dissent to the retroactive application of the 1991 statute. I agree with the Chief Justice, Justice Vol-lack, and Justice Kirshbaum in their recognition that the clear legislative intent in the 1986, 1988, and 1991 statutes was to provide the death penalty for first-degree murder. The constitutionality of the 1986 statute was upheld in People v. Tenneson, 788 P.2d 786 (Colo.1990), and it was the General Assembly’s attempt to clarify the 1986 statute that brought about this court’s declaration in People v. Young, 814 P.2d 834 (Colo.1991), that the procedure for imposing the death penalty under the 1988 death penalty statute was facially unconstitutional.

¶5The Youngdecision invalidated the 1988 statutory procedure at the penalty phase of the trial for securing a death sentence but left the remaining parts of the statute as a viable method for prosecuting the offenses set forth in the statute. In my view, the majority opinion properly holds that the severability clause in the 1988 statute preserved the remainder of the statute intact. See § 16-ll-103(8)(a), 8 C.R.S. (1986 & 1988 Supp.). Accordingly, Thomas could *205be prosecuted under the 1988 statute, but the prosecution would be foreclosed from seeking the death penalty because of the Youngdecision. The 1991 statute is patterned after the constitutionally valid 1986 death penalty statute and includes procedural changes that conform the statute to the decisions of our Colorado court and the Supreme Court of the United States. See Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977); see also Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). Thus, I would hold that the prosecution can seek the death penalty under the 1991 statute in this case and in the two companion cases that are being announced contemporaneously with this decision.

¶6Justice Lohr, in his dissent, is supported by Justice Quinn and by Justice Kirshbaum on the ex post facto issue. He concludes that reliance on the 1991 statute to justify the prosecution’s right to seek the death penalty violates the ex post facto clause of the United States Constitution, and squarely conflicts with the provisions of the Colorado Constitution. He supports his dissent with strong criticism of the notice and “fair warning” test set forth by the United States Supreme Court in Dobbertand Collins, and declines to follow Dobbertand Collinsin interpreting the Colorado Constitution. I disagree with Justice Lohr’s use of the Colorado Constitution to escape the plain and unequivocal holdings of the United States Supreme Court in interpreting parallel ex post facto provisions in the United States Constitution. The dissent, by centering on the Colorado Constitution, avoids recognizing the principles laid down in Dobbertand Collinsin interpreting the ex post facto clause of the United States Constitution that is congruent in relevant part with the Colorado Constitution.

¶7We must determine whether the 1986, 1988, or 1991 death penalty statute controls the prosecution of Thomas for first-degree murder. The acts charged, if proven at trial, are death penalty offenses under the 1986, 1988,(prior to July 9, 1991, the date Youngwas announced), and the 1991 statute. The sole difference in the three statutes is the procedure employed at the sentencing phase of the trial to justify the imposition of the death penalty if a jury has found a defendant guilty of first-degree murder. Prior to the announcement of Tennesonand Young, death penalty convictions under the 1986 statute were upheld in People v. Davis, 794 P.2d 159 (Colo.1990), cert, denied, — U.S.-, 111 S.Ct. 662, 112 L.Ed.2d 656 (1991), and People v. Rodriguez, 794 P.2d 965 (Colo.1990), cert, denied, — U.S.-, 111 S.Ct. 770, 112 L.Ed.2d 789 (1991). The Colorado Constitution was not the sole predicate for the decision of either Davis, Rodriguez, or Tenneson, or the focus in People v. O’Neill, 803 P.2d 164 (Colo.1991).

¶8Dobbertand Collinsaddress two issues relevant to our decision in this case — the notice and “fair warning” test and procedural changes in a statute that do not violate the ex post facto clause. Dobbertauthorized the retroactive application of a death penalty statute in a case with similar facts. Dobbertheld that the statute, although subsequently declared unconstitutional, “served as an operative fact to warn the [defendant] of the penalty Florida would seek to impose on him if he were convicted of first-degree murder.” Dob-bert, 432 U.S. at 298, 97 S.Ct. at 2300. The Dobbertcourt held that “this [notice and fair warning] was sufficient compliance with the ex post facto [requirements] of the United States Constitution.” Id.The offense that Thomas is charged with was committed in February 1991. The death penalty statute in effect was § 16-11-103, 8A C.R.S. (1986 & 1988 Supp.) (1988 statute), and was intended by the General Assembly to provide maximum deterrence by making the death penalty available in Colorado to punish first-degree murder. In my mind, it is clear that the defendant had notice and fair warning of the availability of the death penalty for first-degree murder, and that the restoration of the fourth step is a procedural change of the type that Dobbertauthorized. The trial court confused substance with procedure and concluded that the 1991 statute was substantive and not procedural and, therefore, ignored Dobbert.

¶9*206Justice Lohr, in dissent, urges the court to reject the “fair warning” doctrine of Dobbertand Collins. Citing Collins, he states that the “fair warning” doctrine limits the “substantial protections” doctrine that has been a traditional part of Colorado and federal ex post facto law. However, Collinsholds that “references ... to 'substantial protections’ ... should not be read to adopt without explanation an undefined enlargement of the Ex Post Facto Clause.” Collins, 497 U.S. at-, 110 S.Ct. at 2721 (citations omitted). If a more onerous punishment was imposed by the 1991 statute directed to the death penalty procedure, that part of the statute would be subject to substantial protection analysis under the ex post fact clause. See Colder v. Bull, 3 U.S. (3 Dali.) 386, 1 L.Ed. 648 (1798). In my view, the “substantial protection” doctrine does nothing more than restate guarantees that were first recognized in Colder v. Bull.2Although I agree that retroactive application of a law should not alter any substantive right or protection afforded an accused under prior law, the “substantial protection” doctrine clearly is not implicated here. No changes in the 1991 statute reduced or diminished in any way the protections afforded an accused under the pri- or law.

¶10Justice Mullarkey agrees that application of the 1991 statute does not violate the ex post facto clauses of either the federal or Colorado constitution and supports Chief Justice Rovira’s analysis and conclusion regarding the statutory revival doctrine and the severability clause of the 1988 statute. However, she departs from the majority’s decision to go beyond the fair notice standard in resolving this case, and states that the majority narrows unnecessarily the scope of protections provided by Colorado’s ex post facto clause. I do not endorse her view and agree with the Chief Justice. I agree with the conclusion that the defendant had fair notice of Colorado’s punishment for murder as well as notice of procedures more onerous than those contained in the 1991 statute. However, I do not agree, as Justice Mullarkey states, that we should not decide this case based on whether the change in the law is substantive or procedural. Here, the element of change distinguishes whether Thomas had fair warning and notice of the punishment for first-degree murder (which has not changed) and notice of procedures which have. It is the effect of those changes that is dispositive, and not notice of the change. Deciding whether procedures are more onerous necessarily involves a substantive law issue.

¶11Accordingly, I specially concur and join the opinion of Chief Justice Rovira except in that part of his opinion on the application of the 1988 statute, his interpretation of Young, and the revival of the 1986 statute. In my opinion, the procedure for obtaining a death sentence at the penalty phase of the trial under the 1988 statute was void ab initio after People v. Young was announced. See White v. District Court, 180 Colo. 147, 503 P.2d 340 (1977); City & County of Denver v. McNichols, 129 Colo. 251, 268 P.2d 1026 (1954); Armstrong v. Mitten, 95 Colo. 425, 37 P.2d 757 (1934); Coulter v. Board of County Comm’rs, 9 Colo. 258, 11 P. 199 (1886). My conclusion, however, does not negate the fact that the 1988 statute provided notice and fair warning that the death penalty could be imposed for first-degree murder.

¶12I also agree with Chief Justice Rovira’s conclusion that the doctrine of statutory revival is not available to reincarnate the 1986 statute for the prosecution of Thomas but for different reasons. Justice Kirsh-baum and Justice Vollack, in their separate opinions, set forth reasons for reviving the 1986 statute after the 1988 statutory death penalty procedure was declared to be un*207constitutional. Justice Kirshbaum concludes that the facial unconstitutionality of the 1988 statutory death penalty procedure leaves Colorado without a death penalty if we do not revive the 1986 statute. Such a result, he states, would create a hiatus in the law, which could not have been the legislative intent. In my mind, there is no question that the General Assembly intended that the death penalty should be available to punish first-degree murder. However, I believe his focus on the revival issue is wrong. White v. District Court, 180 Colo. 147, 503 P.2d 340 (1977), provides our only support for the revival argument. White was charged with violation of the 1970 bad check law, pled nolo contendere, and was sentenced to the penitentiary. The 1970 bad check law was declared to be unconstitutional in People v. Vinnola, 177 Colo. 405, 494 P.2d 826 (1972). Thereafter, White successfully moved to vacate his plea and when the plea was granted, he was charged under the 1983 “no account” check statute. In upholding White’s prosecution, we held that the General Assembly could not have intended to create a void in the law relating to bad checks. We recognized the revival doctrine by declaring that the General Assembly did not intend to repeal the older statute if the new statute was unconstitutional. In White, the entire bad check law statute was invalid, and the “no account” check statute was revived. It is a far different situation when an entire statute is declared to be unconstitutional.

¶13The Youngcase only vitiated the procedure for imposing the death penalty under the 1988 statute. The remaining provisions in the 1988 statute were left intact. In my view the General Assembly did not, and could not, have contemplated the piecemeal revival of the 1986 statute. Accordingly, I do not support the revival position of either Justice Kirshbaum or Justice Vollack. The conclusion reached by Justices Kirshbaum and Vollack renders the severability clause meaningless in this case. It is clear that the legislature, by including a severability clause in the 1988 statute, wanted to retain the option to impose a life sentence for murder in the event the death penalty sentencing procedure was declared unconstitutional. Our decision in Youngleft unaffected the ability to prosecute Thomas for murder under the 1988 statute with the possibility of a life sentence if a guilty verdict was returned. Thus, no hiatus in the law regarding the crime of murder has occurred. The General Assembly, with the guidance of Young, enacted the 1991 statute and included other procedural amendments to cause the penalty phase of a first-degree murder trial to fall within constitutional boundaries. The 1991 statute, as applied to this case, accomplished the legislative intent of making the death penalty a viable punishment for the crime of first-degree murder.

¶17specially concurring:

¶18I

¶19I join the court’s opinion except as to ■ Part III in which I concur in the judgment only. I agree that our decision in People v. Young, 814 P.2d 834 (Colo.1991), did not revive the 1986 death penalty statute. Young’s holding that certain provisions of the 1988 statute were facially invalid should not now preclude us from effectuating the severability clause of the death penalty statute. The severability clause, § 16-ll-103(8)(a), 8A C.R.S. (1986), provides that unconstitutional provisions of section 16-11-103 shall be severed and that the remaining provisions which can be given effect without the offending provisions shall be given effect. After Young, by virtue of the severability clause, there remained a sufficiently meaningful legislative enactment, see City of Lakewood v. Colfax Unlimited Ass’n, Inc., 634 P.2d 52, 70 (Colo.1981), namely, an authorized penalty of life imprisonment upon conviction for a class 1 felony.1 Because of the penalty of life imprisonment, no hiatus in the law punishing class 1 felonies was created by *208our holding in Young. Thus, the revival doctrine is inapplicable in this case.

¶20II

¶21Where I depart from the plurality is in its analysis of the defendant’s ex post facto claims.2 I agree, guided by the relevant reasoning in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), that the 1991 statute does not violate the ex post facto clauses of either the federal or state constitutions. However, we need not adopt for state constitutional purposes Dobbert’& other holdings which are immaterial to this case, much less the Supreme Court’s recent contraction of the scope of the federal ex post facto prohibition in Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). In my view, the plurality’s wholesale acceptance of Dobbertand its uncritical invocation of Collinsunnecessarily constricts the scope of our state constitution’s protections against ex post facto laws. Hence, I write separately.

¶22A

¶23The plurality, in Part III A, begins its analysis of the federal and state ex post facto claims by correctly acknowledging that even when specific clauses of our state constitution and our federal constitution are similarly or identically worded this court has found that our state constitutional clauses may afford greater protections to the citizens of Colorado than do their federal counterparts as construed by federal courts. See Young, 814 P.2d at 842. The plurality also correctly notes that we have found differences in wording between otherwise analogous clauses of the state and federal constitutions to warrant an interpretation of the state constitution which differs from that given the federal constitution by federal courts. See Bock v. Westminster Mall Co., 819 P.2d 55 (Colo. 1991). The plurality then notes that in our analysis in Youngof the cruel and unusual punishment clause of our state constitution, we were attentive to the Supreme Court’s reasoning on the federal counterpart because both clauses are similarly worded. 814 P.2d at 845. I understand the plurality’s review of these approaches to mean only that there is no predetermined correspondence between textual similarity or difference and our interpretations of the state constitution which follow or depart from federal constitutional interpretation.

¶24Thus, because the ex post facto clauses of our respective constitutions are similarly worded,3 we should be attentive to the Supreme Court’s interpretation of the federal ex post facto clause when we resolve claims brought under our state constitution’s prohibition of ex post facto laws. We have given the Supreme Court that attention in the past. See Garvey v. People, 6 Colo. 559 (1883). However, when the Supreme Court’s construction and application of the federal ex post facto clause departs in a significant way from its own precedents, especially from those precedents which we have found persuasive in our past constructions of the state ex post facto clause, then we must make a critical and independent assessment of the scope of our state constitution’s affirmative prohibitions. We are not committed to follow the Supreme Court when it abruptly changes course simply because we have followed it in the past. See Westminster Mall, 819 P.2d at 58 (declining to follow the “twists and turns” of federal First Amendment jurisprudence).

¶25B

¶26Unlike the plurality, I see no reason to embrace Collins v. Youngblood, 497 U.S. 37,110 S.Ct. 2715, 111 L.Ed.2d 30 (1990), as *209a matter of our state ex post facto jurisprudence, and several reasons not to. First, the Collinsanalysis is not necessary to resolve this case. Second, the CollinsCourt overruled two longstanding precedents, namely, Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1883), and Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898), both of which found ex post facto violations. This overruling is a clear indication that the Supreme Court has significantly diverged from its own precedents and should be a sign of caution to us. Third, both Kringand Thompsonwere precedents we have found persuasive and upon which we have relied in the development of ex post facto jurisprudence under our state constitutional clause. See Kolkman v. People, 89 Colo. 8, 300 P. 575, 584 (1931) (“[Tjhere may be procedural changes which ... otherwise affect the [accused] in such a harsh and arbitrary manner as to fall within the constitutional prohibition.”) (citing Kring); French v. Deane, 19 Colo. 504, 513, 36 P. 609 (1894) (also citing Kring). In my view, the Supreme Court’s jurisprudence in Collinsleaves federal ex post facto law at the very least unsettled.4

¶27When the plurality states that Collins“does little more than affirm the decision in Dobbert, which relied solely on the definition of an ex post facto law as set forth in Calder v. Bull, [3 U.S. (3 Dali.) 386,1 L.Ed. 648 (1798),]” plurality op. at 199, the plurality commits two fundamental errors. As I have demonstrated, Collinsgoes far beyond merely affirming Dobbert, and if it did nothing more “for our purposes,” plurality op. at 199, then Part III D of the plurality opinion is dicta. Thus, the plurality’s question, at 199, whether, under Collins, “the ex post facto clause of the Colorado Constitution still prohibits laws which affect ‘substantial protections’ or disadvantageously alter the situation of a party” (my emphasis), is speculation within dicta.

¶28The other fundamental misstep in the plurality’s analysis is the view that Dob-bert relied solely on the definition of an ex post facto law as set forth in Calder, and that the “statutes at issue here can be tested under a Calderanalysis.” Plurality op. at 199. In fact, Calderappears in Dobbertonly once, and then only as a citation within a lengthy excerpt from another case, Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937). See Dobbert, 432 U.S. at 299, 97 S.Ct. at 2300. Rather, Dobbertexplicitly relied on Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925), which reformulated the Caldercategories of those laws violative of the federal ex post facto clause. Dobbert, 432 U.S. at 292, 97 S.Ct. at 2297-98. See Collins, 497 U.S. at -, 110 S.Ct. at 2719.5

¶29What Dobbertand this case have in common and what distinguishes them from Collinsand other federal ex post facto cases is a judicial declaration of unconstitutionality with a subsequent legislative at*210tempt to statutorily fill the gap which would be created by the application of the void ab initio doctrine. In Dobbert, a case originating in Florida with a chronology of events similar to the case here, the Supreme Court was faced with several ex post facto claims, only one of which was explicitly predicated on the void ab initio doctrine. 432 U.S. at 297-98, 97 S.Ct. at 2300-01. Dobbertrelied on Beazellonly to answer one of those claims, a claim not premised on the void ab initio doctrine. That doctrine describes one possible state of affairs following a judicial invalidation of a statute, namely, that the statute was never in effect.6 Thus, the defendant in Dobbertargued that “there was no ‘valid’ death penalty in effect in Florida as of the date of his actions.” 432 U.S. at 297, 97 5.Ct. at 2300. In its analysis of the void ab initio claim, the DobbertCourt developed the concept of “operative fact” in order to diminish the conclusiveness of the void ab initio doctrine. The Court cited Chicot County Dist. v. Baxter State Bank, 308 U.S. 371, 374, 60 S.Ct. 317, 318-19, 84 L.Ed. 329 (1940), for the proposition that the broad statement in Norton v. Shelby Co.

as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored.

¶30Dobbert, 432 U.S. at 297-98, 97 S.Ct. at 2300. The DobbertCourt thus extended the rule from the civil context of Chicot and stated that the existence of the penal statute served as an operative fact to warn the defendant of the penalty which the state would seek to impose should he be convicted of the crimes alleged. Id.The Court concluded that this “fair warning” was sufficiently compliant with the ex post facto clause of the federal constitution. Id.7

¶31C

¶32In Calder, Justice Chase set forth the now well-known categories of laws which violate the federal ex post facto clause:

1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.

¶333 U.S. (3 Dali.) at 390. I note that in Collins, the Supreme Court characterized the Caldercategories as implicating “the core concern of the Ex Post Facto Clause[ ].” 497 U.S. at-, 110 S.Ct. at 2719. I agree, but the fact that these are the core concerns does not mean that other categories of laws do not implicate the ex post facto clause. Thus, although I find the Caldercategories seminal in the development of ex post facto law, both federal and state, the Caldercategories are not exhaustive.

¶34In response to a judicial invalidation of a penal statute, a legislature may decide to pass, as did the Florida legislature and the Colorado legislature here, a new penal stat*211ute not only correcting the constitutional infirmity but also providing that the penalties apply retrospectively. It is these new penal statutes, passed after a judicial invalidation, which constitute a category of laws not corresponding to any of the Caldercategories. In Young, we invalidated certain provisions of the 1988 statute. Hence, according to the void ab initio doctrine, the law that can be said to be annexed to the crimes for purposes of the Calderanalysis is problematical. It is problematical because, although there is no doubt that here the law annexed to the crimes when committed was the 1988 death penalty statute, it is equally clear that, but for the 1991 statutes, the law remaining after Youngwas decided, namely, the penalty of life imprisonment for a class 1 felony, is the law which would be applied by the court to the defendant’s alleged conduct at trial. Thus, concepts not explicitly found in the Caldercatalog must be brought to bear to resolve an ex post facto challenge to this category of penal statutes. This is exactly what the Supreme Court did in Dobbertwhen it held that “the existence of the statute served as an ‘operative fact’ to warn the petitioner of the penalty which Florida would seek to impose on him if he were convicted of first-degree murder.” 432 U.S. at 298, 97 S.Ct. at 2300.

¶35Invocation of this concept of “operative fact” in those cases which involve a judicial invalidation of a penal statute does not mean that the core Calderconcerns are in any way diminished. The concept of an “operative fact” giving fair warning does not displace Calderat all. On the contrary, what we do take from Calder, even in a case which does implicate the void ab initio doctrine, is the importance of the time when the crimes were committed. For purposes of ex post facto analysis, the 2d, 3d and 4th Caldercategories all refer to the time when the alleged offense was committed.8 The law “annexed to the crime[s],” Calder(3rd category), allegedly committed by Allen Thomas, Jr. was the 1988 death penalty statute.

¶36With the law annexed to Thomas’s alleged crimes being the 1988 statute, two related issues are raised. First, what is the effect of Young’s invalidation of certain provisions of the 1988 statute on the law annexed to the defendant’s alleged crimes? Second, does the retroactive application of the October 1991 statutes violate the state constitution’s prohibition of ex post facto laws? In my view, these issues are intertwined and the resolution of the first must be made with an eye toward the resolution of the second.

¶37Although it is clear that, but for the 1991 statutes, the law remaining after Youngwas decided is the law which would be applied by the court to the defendant’s conduct at trial, it is also clear that the General Assembly never intended a hiatus in the availability of the death penalty for the punishment of first degree murder. From this perspective, the void ab initio doctrine is less than absolute. From Dob-bert, I gather that a judicial determination of unconstitutionality may not necessarily cancel the existence of fair warning to all that the state will seek to impose the death penalty for certain crimes. The death penalty per se is not unconstitutional in Colorado. People v. Davis, 794 P.2d 159 (Colo. 1990). When the defendant allegedly committed the murder, the death penalty was a possible punishment for first degree murder and the defendant here was on notice of that fact. In my view, the death penalty provision of the 1988 statute was an operative fact serving to give fair warning to the defendant here. The retrospectivity of the 1991 statute thus is not absolute. Because the defendant was on notice that the death penalty was an available punishment for murder, passage of the retroactive 1991 statutes does not violate the ex post facto prohibition of the state constitution.9

¶38Thus, I depart from the plurality’s view that we can be guided solely “by the histor*212ical Caldertest for an ex post facto law.” Plurality Op. at 199. Also, just because Dobbertprovided the proper resolution of the void ab initio problem does not mean that we must embrace other holdings immaterial to the case here, e.g., that “[e]ven though it may work to the disadvantage of a defendant, a procedural change is not ex post facto.” 432 U.S. at 293, 97 S.Ct. at 2298 (a holding cited by the plurality at 195). A fortiori, we need not embrace the holdings in Collins, a case which did not implicate the void ab initio problem.

¶39In my view, applying the concept of an “operative fact” which gives fair warning in cases implicating the void ab initio problem need not depreciate the “substantial protections” or “substantial disadvantage” tests developed in earlier federal ex post facto cases and followed in our case law. The case before us does not require us to conclude that the scope of the state constitution’s prohibition of ex post facto laws does not include those laws which retroactively disadvantage an accused. In People v. Billips, 652 P.2d 1060 (Colo.1982), for example, we held that “[t]wo critical elements must be present for a criminal statute to be stricken down as an ex post facto law: ‘it must be retrospective ... and it must disadvantage the offender affected by it.’ ” 652 P.2d at 1064(citing Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981)). The standard requires both retrospectivity and a disadvantage to the accused. This means that a statute may be retrospective and not there-' by violate the ex post facto clause if it does not disadvantage the defendant. Simply put, an actor is not disadvantaged if he was on fair notice of both the punishment which the People would seek to impose on his conduct and the procedures to be employed in imposing that punishment.

¶40D

¶41The issues then are whether the central provisions of the 1991 statutes disadvantage the defendant here. These issues too should be handled under the “operative fact” concept developed to overcome the absoluteness of the void ab initio doctrine. In Dobbert, the Supreme Court resolved the several ex post facto claims there by resort to what it conceived as different and independent bases. 432 U.S. at 292 n. 6, 97 S.Ct. at 2298 n. 6 (procedural changes and ameliorative changes). Those analytical distinctions may have been compelled by the facts there. Here we need not consider whether a change in the law is procedural or substantive. If the defendant was on notice of what the state would have sought to do, whether substantively or procedurally, at the time of his actions, then there is no ex post facto violation provided that what the state seeks retrospectively to do is equally or less burdensome than what it could have sought to do at that time. Thus, rather than tangle with the substance versus procedure distinction, we should inquire whether the law annexed to the crimes when committed, notice of which is an operative fact, was as, or less, burdensome than the new retrospective law to be applied at trial.

¶42With the reinstatement of the four-step jury verdict by the 1991 statutes, the procedure for imposing the death penalty was not made more onerous than the jury verdict procedure which was annexed to the crimes when the crimes were committed. Thus, the defendant was on notice when the crimes were committed of the procedures provided by the retrospective statutes. Likewise, the change in the parole possibilities for a life sentence made by the 1991 statutes do not disadvantage the defendant because the defendant was on notice of a more burdensome parole scheme at the time he allegedly committed the crimes. The defendant’s speculation that the jury will deliberate differently and to his disadvantage because of the new parole scheme does not defeat his being on notice that the state intended to impose the death penalty and/or a life sentence with harsher parole requirements. The defendant therefore is not disadvantaged by the retroactive statutes in this regard. Finally, the statutory changes in the aggravators are not more burdensome to the defendant, as I agree with the plurality that the statutory terms must be defined according to our decision in Davis.

¶43*213III

¶44For the reasons expressed above, I join in Parts II and IV of the court’s opinion, and I concur in the judgment reached in Part III.