double jeopardy clause in Colorado

2022See, e.g., People v. Gillis, 2020 COA 68, ¶ 26 (“‘In the double jeopardy context, the answer [to whether plain error occurred] would invariably be “yes”’ if the defendant was convicted multiple times for the same conduct.”) (alteration in original) (citation omitted); People v. Arzabala, 2012 COA 99, ¶ 19 (“Where a reviewing court finds a double jeopardy violation, regardless of whether the issue was raised in the trial court, the defendant is entitled to appropriate relief on appeal.”); see also People v. Tillery, 231 P.3d 36, 47-48 (Colo. App. 2009) (analyzing the issue in detail and arrivin

2016In the double jeopardy context, "the answer would invariably be ‘yes.’" Id. ; see also Barry , ¶106 ("If we conclude that a double jeopardy violation occurred, it will likely constitute plain error."); Arzabala , ¶19 ("Where a reviewing court finds a double jeopardy violation, regardless of whether the issue was raised in the trial court, the defendant is entitled to appropriate relief on appeal.").

2022An accused is protected “not only from facing a second trial for the same offense but also from suffering multiple punishments for the same offense.” Id. ¶2 The merger doctrine, like the double jeopardy doctrine, generally seeks to “protect[] against punishing one criminal act twice.” People v. Henderson, 810 P.2d 1058, 1060 (Colo. 1991); cf. People v. Leske, 957 P.2d 1030, 1035 (Colo. 1998) (holding that, for purposes of double jeopardy and merger, a defendant may be “subjected to multiple punishments based upon the same criminal conduct” but only if the General Assembly “specifically authori

2014The Double Jeopardy Clause, U.S. Const. amend. 5, embraces "three separate but related prohibitions: (1) a rule which bars a reprosecution for the same offense after acquittal; (2) a rule barring reprosecution for the same offense after conviction, and; (8) a rule barring multiple punishment for the same offense." Henderson, 810 P.2d at 1060 (internal quotation marks omitted). 13 Colorado cases provide a framework for deciding when a defendant's conduct may support multiple punishments and thus withstand a double jeopardy challenge.

2026Davis, ¶ 18. ¶ 14 Because the double jeopardy clause protects criminal defendants from multiple punishments for a single crime, see People v. Arzabala, 2012 COA 99, ¶¶ 20-21 , if the evidence supports only a single conspiracy, the remaining conspiracy convictions must merge into a single conviction, see Whiteaker v. People, 2024 CO 25 , ¶ 24 (“[W]hen a defendant establishes that a [district] court entered multiplicitous punishments in violation of double jeopardy principles, merger is the remedy.”). ¶ 15 We review double jeopardy claims de novo.

2024Applicable Law ¶ 38 The double jeopardy clause protects criminal defendants f rom multiplicity, Arzabala , ¶ 20, which occurs “when the same offense is charged in multiple counts and results in multiple punish ments,” People v. Borghesi , 66 P.3d 93, 98 (Colo. 2003).

2010However, the double jeopardy inquiry is limited to a consideration of "the structure of the information and guilty plea at the time of the providency hearing," and the court "cannot inquire into the facts underlying the guilty plea or take into account statements made at the sentencing hearing.'' Patton, 35 P.3d at 183 (citing Broce, 488 U.S. at 574-75 , 109 S.Ct. 757 ); see also Broce, 488 U.S. at 575 , 109 S.Ct. 757 ("a plea of guilty to a charge does not waive a claim that-judged on its face-the charge is one which the State may not constitutionally prosecute" (quoting Menna, 423 U.S. at 63

2010However, the double jeopardy inquiry is limited to a consideration of "the structure of the information and guilty plea at the time of the providency hearing," and the court "cannot inquire into the facts underlying the guilty plea or take into account statements made at the sentencing hearing.'' Patton, 35 P.3d at 183 (citing Broce, 488 U.S. at 574-75 , 109 S.Ct. 757 ); see also Broce, 488 U.S. at 575 , 109 S.Ct. 757 ("a plea of guilty to a charge does not waive a claim that-judged on its face-the charge is one which the State may not constitutionally prosecute" (quoting Menna, 423 U.S. at 63

2016Woellhaf , 105 P.3d at 215 ; Friend , ¶52 . ¶52 The first "inquiry is whether the legislature intended to create more than one offense." Barry , ¶95 ; see People v. Abiodun , 111 P.3d 462, 465 (Colo. 2005).

2016Woellhaf , 105 P.3d at 215 ; Friend , ¶52 . ¶52 The first "inquiry is whether the legislature intended to create more than one offense." Barry , ¶95 ; see People v. Abiodun , 111 P.3d 462, 465 (Colo. 2005).

1997See, e.g., Jeffrey v. District Court, 626 P.2d 631 (Colo.1981) (a plea of guilty followed by a deferred sentence and judgment is a conviction for purposes of implicating the double jeopardy clause); People v. Jacquez, 196 Colo. 569 , 588 P.2d 871 (1979) (see exhaustive recitation of cases cited in n.2).

1984See, e.g., Jeffrey v. District Court, 626 P.2d 631 (Colo.1981) (a plea of guilty followed by a deferred sentence and judgment is a conviction for purposes of implicating the double jeopardy clause); People v. Jacquez, 196 Colo. 569 , 588 P.2d 871 (1979) ( see exhaustive recitation of cases cited in n. 2).

2017See People v. Greer, 262 P.3d 920, 929 (Colo. App. 2011) (“[T]he double jeopardy claim ripens only upon conviction of multiple offenses.”).

2017See, e.g., Greer, 262 P.3d at 929 (“[T]he double jeopardy claim ripens only upon conviction of multiple offenses[.]”).

2016Jozwiak , 954 F.2d at 460 (citation omitted); see also Kennedy , 456 U.S. at 686 n.19 (Stevens, J., concurring in the judgment) (noting that the prosecutor might intend to provoke a mistrial "in order to shop for a more favorable trier of fact, or to correct deficiencies in [his] case, or to obtain an unwarranted preview of the defendant’s evidence" (quoting Peter Westen & Richard Drubel, Toward a General Theory of Double Jeopardy , 1978 Sup. Ct. Rev. 81 , 94 (1978))) (alteration in original). 3 ¶32 "Because ‘subjective’ intent often may be unknowable, . . . a court — in considering a double j

2016Jozwiak , 954 F.2d at 460 (citation omitted); see also Kennedy , 456 U.S. at 686 n.19 (Stevens, J., concurring in the judgment) (noting that the prosecutor might intend to provoke a mistrial "in order to shop for a more favorable trier of fact, or to correct deficiencies in [his] case, or to obtain an unwarranted preview of the defendant’s evidence" (quoting Peter Westen & Richard Drubel, Toward a General Theory of Double Jeopardy , 1978 Sup. Ct. Rev. 81 , 94 (1978))) (alteration in original). 3 ¶32 "Because ‘subjective’ intent often may be unknowable, . . . a court — in considering a double j

2016II, § 18. 114 "[OJne of the principal rights embodied in the double jeopardy clause is the defendant's 'valued right to have his trial completed by a particular tribunal.'" People v. Espinoza, 666 P.2d 555, 558 (Colo.1983) (quoting United States v. Dinitz, 424 U.S. 600, 606 , 96 S.Ct. 1075 , 47 L.Ed.2d 267 (1976)).

2016II, § 18. ¶14 "[O]ne of the principal rights embodied in the double jeopardy clause is the defendant’s ‘valued right to have his trial completed by a particular tribunal.’" People v. Espinoza , 666 P.2d 555, 558 (Colo. 1983) (quoting United States v. Dinitz , 424 U.S. 600, 606 (1976)).

2016Jozwiak, 954 F.2d at 460 (citation omitted); see also Kennedy, 456 U.S. at 686 n. 19, 102 S.Ct. 2083 (Stevens, J., concurring in the judgment) (noting that the prosecutor might intend to provoke a mistrial "in order to shop for a more favorable trier of fact, or to correct deficiencies in [his] case, or to obtain an unwarranted preview of the defendant's evidence" (quoting Peter Westen & Richard Drubel, Toward a General Theory of Double Jeopardy, 1978 Sup.Ct.

2016Jozwiak , 954 F.2d at 460 (citation omitted); see also Kennedy , 456 U.S. at 686 n.19 (Stevens, J., concurring in the judgment) (noting that the prosecutor might intend to provoke a mistrial "in order to shop for a more favorable trier of fact, or to correct deficiencies in [his] case, or to obtain an unwarranted preview of the defendant’s evidence" (quoting Peter Westen & Richard Drubel, Toward a General Theory of Double Jeopardy , 1978 Sup. Ct. Rev. 81 , 94 (1978))) (alteration in original). 3 ¶32 "Because ‘subjective’ intent often may be unknowable, . . . a court — in considering a double j

2014See, e.g., Roberts, 203 P.3d at 516 ; Quintano, 105 P.3d at 590-91 .

2014See, e.g., Roberts, 203 P.3d at 516 ; Quintano , 105 P.3d at 590–91.

2010However, the double jeopardy inquiry is limited to a consideration of "the structure of the information and guilty plea at the time of the providency hearing," and the court "cannot inquire into the facts underlying the guilty plea or take into account statements made at the sentencing hearing.'' Patton, 35 P.3d at 183 (citing Broce, 488 U.S. at 574-75 , 109 S.Ct. 757 ); see also Broce, 488 U.S. at 575 , 109 S.Ct. 757 ("a plea of guilty to a charge does not waive a claim that-judged on its face-the charge is one which the State may not constitutionally prosecute" (quoting Menna, 423 U.S. at 63

2010However, the double jeopardy inquiry is limited to a consideration of "the structure of the information and guilty plea at the time of the providency hearing," and the court "cannot inquire into the facts underlying the guilty plea or take into account statements made at the sentencing hearing.'' Patton, 35 P.3d at 183 (citing Broce, 488 U.S. at 574-75 , 109 S.Ct. 757 ); see also Broce, 488 U.S. at 575 , 109 S.Ct. 757 ("a plea of guilty to a charge does not waive a claim that-judged on its face-the charge is one which the State may not constitutionally prosecute" (quoting Menna, 423 U.S. at 63

2014"To determine the legislative intent, we look to the statutory language itself and give the words and phrases their ordinary and commonly accepted meaning." Cain v. People, 2014 CO 49, ¶ 10 , 327 P.3d 249 . €33 Where, as here, multiple charges arise under the same statute, the Double Jeopardy inquiry narrows to the "unit of prosecution," which is "the manner in which a criminal statute permits a defendant's conduct to be divided into discrete acts for purposes of prosecuting multiple offenses." Woellhaf, 105 P.3d at 215 .

2014"To determine the legislative intent, we look to the statutory language itself and give the words and phrases their ordinary and commonly accepted meaning." Cain v. People, 2014 CO 49, ¶ 10 , 327 P.3d 249 . €33 Where, as here, multiple charges arise under the same statute, the Double Jeopardy inquiry narrows to the "unit of prosecution," which is "the manner in which a criminal statute permits a defendant's conduct to be divided into discrete acts for purposes of prosecuting multiple offenses." Woellhaf, 105 P.3d at 215 .

2016II, § 18. 114 "[OJne of the principal rights embodied in the double jeopardy clause is the defendant's 'valued right to have his trial completed by a particular tribunal.'" People v. Espinoza, 666 P.2d 555, 558 (Colo.1983) (quoting United States v. Dinitz, 424 U.S. 600, 606 , 96 S.Ct. 1075 , 47 L.Ed.2d 267 (1976)).

2016II, § 18. ¶14 "[O]ne of the principal rights embodied in the double jeopardy clause is the defendant’s ‘valued right to have his trial completed by a particular tribunal.’" People v. Espinoza , 666 P.2d 555, 558 (Colo. 1983) (quoting United States v. Dinitz , 424 U.S. 600, 606 (1976)).

1989Upon remand of the case the district court denied postconviction relief, and the court of appeals affirmed the judgment, reasoning as follows with respect to the defendant’s double jeopardy claim: The established test for determining whether two offenses are, in fact, the same offense was set forth in Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932): “The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether

1989Upon remand of the case the district court denied postconviction relief, and the court of appeals affirmed the judgment, reasoning as follows with respect to the defendant’s double jeopardy claim: The established test for determining whether two offenses are, in fact, the same offense was set forth in Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932): “The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether

2016In the double jeopardy context, "the answer would invariably be ‘yes.’" Id. ; see also Barry , ¶106 ("If we conclude that a double jeopardy violation occurred, it will likely constitute plain error."); Arzabala , ¶19 ("Where a reviewing court finds a double jeopardy violation, regardless of whether the issue was raised in the trial court, the defendant is entitled to appropriate relief on appeal.").

2016In the double jeopardy context, "the answer would invariably be ‘yes.’" Id. ; see also Barry , ¶106 ("If we conclude that a double jeopardy violation occurred, it will likely constitute plain error."); Arzabala , ¶19 ("Where a reviewing court finds a double jeopardy violation, regardless of whether the issue was raised in the trial court, the defendant is entitled to appropriate relief on appeal.").

2019Therefore, the "conviction for aggravated robbery merged into the conviction for the greater inclusive offense of felony murder." Id. at 1282 ; see, e.g. , Reyna-Abarca v. People , 2017 CO 15 , ¶ 4, 390 P.3d 816 , 818 (concluding, in the context of a double jeopardy claim, that "DUI is a lesser included offense of both vehicular assault-DUI and vehicular homicide-DUI, and thus, defendants' DUI convictions must merge into the greater offenses"). ¶31 But we have also implicitly acknowledged the application of the rule of merger outside the context of a lesser-included offense, such as where the

2005Boulies v. People, 770 P.2d 1274, 1280 (Colo.1989).

2022By contrast, “where reversal is predicated upon trial error consisting of the reception of inadmissible evidence, remand for a new trial is proper . . . and an appellate court should not review the remaining evidence in order to determine whether it is sufficient to sustain the 5 conviction.” People v. Sisneros, 44 Colo. App. 65, 68 , 606 P.2d 1317, 1319 (1980) (emphasis added). ¶ 11 If we conclude that a conviction must be reversed “solely because of evidentiary insufficiency, the double jeopardy clause of the United States Constitution requires entry of a judgment of acquittal.” Id. at 67 ,

2022By contrast, “where reversal is predicated upon trial error consisting of the reception of inadmissible evidence, remand for a new trial is proper . . . and an appellate court should not review the remaining evidence in order to determine whether it is sufficient to sustain the 5 conviction.” People v. Sisneros, 44 Colo. App. 65, 68 , 606 P.2d 1317, 1319 (1980) (emphasis added). ¶ 11 If we conclude that a conviction must be reversed “solely because of evidentiary insufficiency, the double jeopardy clause of the United States Constitution requires entry of a judgment of acquittal.” Id. at 67 ,

2010However, the double jeopardy inquiry is limited to a consideration of “the structure of the information and guilty plea at the time of the providency hearing,” and the court “cannot inquire into the facts underlying the guilty plea or take into account statements made at the sentencing hearing.” Patton, 35 P.3d at 133 (citing Broce , 488 U.S. at 574–75, 109 S.Ct. 757 ); see also Broce, 488 U.S. at 575 , 109 S.Ct. 757 (“a plea of guilty to a charge does not waive a claim that— judged on its face —the charge is one which the State may not constitutionally prosecute” (quoting Menna, 423 U.S. at 6

2010However, the double jeopardy inquiry is limited to a consideration of "the structure of the information and guilty plea at the time of the providency hearing," and the court "cannot inquire into the facts underlying the guilty plea or take into account statements made at the sentencing hearing.'' Patton, 35 P.3d at 183 (citing Broce, 488 U.S. at 574-75 , 109 S.Ct. 757 ); see also Broce, 488 U.S. at 575 , 109 S.Ct. 757 ("a plea of guilty to a charge does not waive a claim that-judged on its face-the charge is one which the State may not constitutionally prosecute" (quoting Menna, 423 U.S. at 63

2019Therefore, the "conviction for aggravated robbery merged into the conviction for the greater inclusive offense of felony murder." Id. at 1282 ; see, e.g. , Reyna-Abarca v. People , 2017 CO 15 , ¶ 4, 390 P.3d 816 , 818 (concluding, in the context of a double jeopardy claim, that "DUI is a lesser included offense of both vehicular assault-DUI and vehicular homicide-DUI, and thus, defendants' DUI convictions must merge into the greater offenses"). ¶31 But we have also implicitly acknowledged the application of the rule of merger outside the context of a lesser-included offense, such as where the

2019Therefore, the "conviction for aggravated robbery merged into the conviction for the greater inclusive offense of felony murder." Id. at 1282 ; see, e.g. , Reyna-Abarca v. People , 2017 CO 15 , ¶ 4, 390 P.3d 816 , 818 (concluding, in the context of a double jeopardy claim, that "DUI is a lesser included offense of both vehicular assault-DUI and vehicular homicide-DUI, and thus, defendants' DUI convictions must merge into the greater offenses"). ¶31 But we have also implicitly acknowledged the application of the rule of merger outside the context of a lesser-included offense, such as where the