statutory elements test in Colorado

2017See Reyna-Abarca v. People, 2017 CO 15 , ¶ 51 n.3 (recognizing that section 18-1- 408(5)(c) provides a distinct basis from the “strict elements” test for determining whether an offense is a lesser included offense); People v. Raymer, 662 P.2d 1066, 1069 (Colo. 1983) (“We neither held nor implied . . . that subsection (5)(a) of section 18-1-408 constituted the only test of a lesser included offense.”). ¶ 30 We decline to follow Riley because we conclude that second degree forgery is a lesser included offense of felony forgery under the test set forth in section 18-1-408(5)(c) — a test which the

1998See People v. Leske, 957 P.2d 1030 (Colo.1998); see also People v. Garcia, 940 P.2d 357 , 361 n. 3 (Colo.1997); People v. Raymer, 662 P.2d 1066, 1069 (Colo.1983).

2018Reyna-Abarca, ¶ 53. ¶9 Under the supreme court’s formulation of the statutory elements test in Reyna-Abarca, ¶ 64, “an offense is a lesser included offense of another offense if the elements of the lesser offense are a subset of the elements of the greater offense, such that the lesser offense contains only elements that are also included in 4 the elements of the greater offense.” The Reyna-Abarca court recognized, however, that “one offense is not a lesser included offense of another if the lesser offense requires an element not required for the greater offense.” Id. at ¶ 60 (discussing Schmu

2017More to the issue involved in Reyna-Abarca itself, ¶ 67, 390 P.3d at' 827, we acknowledged that our characterization of the statutory elements test as a statutory subset test amounted to a rejection of our holding in Meads v. People, 78 P.3d 290, 294-96 (Colo. 2003), which upheld separate convictions for theft and aggravated motor vehicle theft on the ground that the lesser was limited to a'specific instance or application of the'greater—that the thing of value required for the greater must have been a motor vehicle to satisfy the elements of the lesser—and therefore required proof of an eleme

2022See, e.g., Reyna-Abarca, ¶¶ 51-53, 64, 390 P.3d at 824, 826 (articulating the statutory elements test for determining whether two convictions must merge).

2020SUMMARY April 16, 2020 2020COA68 No. 17CA1399, People v. Gillis — Crimes — First Degree Burglary — First Degree Criminal Trespass — Assault in the Third Degree; Criminal Law — Prosecution of Multiple Counts for Same Act — Lesser Included Offenses A division of the court of appeals considers whether first degree criminal trespass and third degree assault are lesser included offenses of first degree burglary under the statutory elements test articulated in Reyna-Abarca v. People, 2017 CO 15 , 390 P.3d 816 .

2006This standard has been variously referred to as the "strict elements test," "the statutory elements test," and the "Blockburger test." People v. Abiodun, 111 P.3d 462 (Colo.2005); Meads v. People, 78 P.3d 290 (Colo.2003); People v. Leske, 957 P.2d 1030 (Colo.1998).

2005This standard has been referred to as the “strict elements test,” “the statutory elements test,” and the “Blockburger test.” People v. Abiodun, 111 P.3d 462 (Colo.2005); Meads v. People, 78 P.3d 290 (Colo.2003); People v. Leske, 957 P.2d 1030 (Colo.1998).

2022Garcia, 940 P.2d at 360 .

1998See People v. Leske, 957 P.2d 1030 (Colo.1998); see also People v. Garcia, 940 P.2d 357 , 361 n. 3 (Colo.1997); People v. Raymer, 662 P.2d 1066, 1069 (Colo.1983).

2021Second, “[a] n offense can also be included in another under the statutory elements test wh en there are multiple ways to commit the lesser, not all of which are included within the greater. ” Page v. People , 2017 CO 88, ¶ 11 (citing People v. Rock , 2017 CO 84 ). ¶ 55 In People v. Etchells , a division of this court considered wh ether possession of less than one ounce of marijuana is a lesser included offense of introducing contraband. 646 P.2d 950 , 951 27 (Colo. App. 1982).

2018The Rock 29 court clarified that, “[t]o the extent that a lesser offense is statutorily defined in disjunctive terms, effectively providing alternative ways of being committed, any set of elements sufficient for commission of that lesser offense that is necessarily established by establishing the statutory elements of a greater offense constitutes an included offense.” Id.; see also Page v. People, 2017 CO 88, ¶ 11 , 402 P.3d 468, 470 (“An offense can . . . be included in another under the statutory elements test when there are multiple ways to commit the lesser, not all of which are included

2021Applying the test in People v. Rivera , 186 Colo. 24, 525 P.2d 431 (1974), the division concluded that the offense is not lesser included because proof of possession is not an essential element to the crime of introducing contraband.

2017See 525 P.2d at 433–34 (comparing the “evidentiary test” against the statutory elements test and selecting the latter test for this jurisdiction).

2022Still, the supreme court “alone can overrule [its] prior precedents concerning matters of state law.” Thus, if a precedent of the supreme court “has direct application in a case, yet appears to rest on reasons rejected in some other line of 7 decisions,” the court of appeals “should follow the case which directly controls,” leaving to the supreme court “the prerogative of overruling its own decisions.” 2019 COA 23, ¶¶ 77, 78 , 452 P.3d 148 , 160 (citations omitted). ¶ 19 We therefore reject Whiteaker’s assertion that her conviction for first degree criminal trespass must merge into her convict

2022See People v. Denhartog, 2019 COA 23, ¶ 78 (quoting Rodriguez de Quijas v. Shearson/Am.

2017A trial court’s erroneous denial of a defendant’s request for an instruction on a lesser included offense constitutes trial, rather than structural, error, People v. Roman, 2017 CO. 70, ¶¶ 11-12, 398 P.3d 134, 137-38 ; see also Mata-Medina v. People, 71 P.3d 973, 980 (Colo. 2003), which cannot be disregarded as harmless if it affected a substantial right of the defendant, Crim.

2005See Meads, 78 P.3d at 299. .We have also, in the past, found inapplicable a holding with implications for the doctrine of former jeopardy on the grounds that the case in which it appeared "was decided before the expansive development of double jeopardy doctrine by the United States Supreme Court, and the court's passing remark on former jeopardy would be in contravention of the law today." Boulies, 770 P.2d at 1281 n. 3. .