lesser included offense instruction in Colorado

2025In the absence of a request for a lesser included offense instruction, “[i]t may reasonably be assumed that . . . the 12 defendant ‘elected to take his chance on an outright acquittal or conviction of the principal charge rather than to provide the jury with an opportunity to convict him of a lesser offense.’” Id. at 811 (quoting People v. Romero, 694 P.2d 1256, 1269 (Colo. 1985)).

2017People v. Romero, 694 P.2d 1256, 1269 (Colo. 1985). ¶10 Unless either the prosecution or the defense requests a lesser-included-offense instruction, the court is therefore not obligated to give one.

2026Brown, 239 P.3d at 769 (“[A] voluntary intoxication instruction . . . , while legally distinct from a lesser included offense instruction, serves substantially the same purpose under the law and facts of this case.”); see also Thornburg v. Mullin, 422 F.3d 1113, 1126 (10th Cir. 2005) (explaining that the trial court’s failure to sua sponte instruct the jury on voluntary intoxication did not deny the defendant a fundamentally fair trial 2 The parties agree that Torreyson was present when his initial counsel argued that “voluntary intoxication is relevant” to the mens rea elements of first degre

2015Id. at 769 ; see also id. at 768 (noting that Garcia “turned not on the inconsistency of the requested [lesser non-included] instruction, but on the inconsistency of the defendant’s sworn testimony”). ¶ 24 True, Brown involved a lesser included offense instruction.

2025Arko v. People, 183 P.3d 555, 556 (Colo. 2008).

2017Because instructing the jury on a lesser non-included offense would be tantamount to adding a new charge against the defendant, it clearly involves a tactical or strategic choice of a different order even from requesting a lesser-included-offense instruction, see Arko v. People, 183 P.3d 555, 558 (Colo. 2008), and therefore in the absence of a defense request specifically for a non-included-offense instruction, giving one would be improper, Moore v. People, 925 P.2d 264 , 268–69 (Colo. 1996). ¶10 Since our opinion in Rivera in 1975, we have looked to what has variously been described as the “e

2024Thomas v. People, 2021 CO 84 , ¶ 31; see also People v. Lowe, 660 P.2d 1261, 1269 (Colo. 1983) (concluding that a person could not be convicted of two murder convictions for a single victim because 8 the legislature had not manifested “any clear intent that a defendant could be convicted of more than one kind of first-degree murder where there is but one victim”), abrogated on other grounds by Callis v. People, 692 P.2d 1045 (Colo. 1984). ¶ 18 But importantly, even if two murder convictions merge because of a single victim, “the trial court should be directed to enter as many convictions and i

2024Thomas v. People, 2021 CO 84 , ¶ 31; see also People v. Lowe, 660 P.2d 1261, 1269 (Colo. 1983) (concluding that a person could not be convicted of two murder convictions for a single victim because 8 the legislature had not manifested “any clear intent that a defendant could be convicted of more than one kind of first-degree murder where there is but one victim”), abrogated on other grounds by Callis v. People, 692 P.2d 1045 (Colo. 1984). ¶ 18 But importantly, even if two murder convictions merge because of a single victim, “the trial court should be directed to enter as many convictions and i

2024Thomas v. People, 2021 CO 84 , ¶ 31; see also People v. Lowe, 660 P.2d 1261, 1269 (Colo. 1983) (concluding that a person could not be convicted of two murder convictions for a single victim because 8 the legislature had not manifested “any clear intent that a defendant could be convicted of more than one kind of first-degree murder where there is but one victim”), abrogated on other grounds by Callis v. People, 692 P.2d 1045 (Colo. 1984). ¶ 18 But importantly, even if two murder convictions merge because of a single victim, “the trial court should be directed to enter as many convictions and i

2024Thomas v. People, 2021 CO 84 , ¶ 31; see also People v. Lowe, 660 P.2d 1261, 1269 (Colo. 1983) (concluding that a person could not be convicted of two murder convictions for a single victim because 8 the legislature had not manifested “any clear intent that a defendant could be convicted of more than one kind of first-degree murder where there is but one victim”), abrogated on other grounds by Callis v. People, 692 P.2d 1045 (Colo. 1984). ¶ 18 But importantly, even if two murder convictions merge because of a single victim, “the trial court should be directed to enter as many convictions and i

2024Thomas v. People, 2021 CO 84 , ¶ 31; see also People v. Lowe, 660 P.2d 1261, 1269 (Colo. 1983) (concluding that a person could not be convicted of two murder convictions for a single victim because 8 the legislature had not manifested “any clear intent that a defendant could be convicted of more than one kind of first-degree murder where there is but one victim”), abrogated on other grounds by Callis v. People, 692 P.2d 1045 (Colo. 1984). ¶ 18 But importantly, even if two murder convictions merge because of a single victim, “the trial court should be directed to enter as many convictions and i

2024Thomas v. People, 2021 CO 84 , ¶ 31; see also People v. Lowe, 660 P.2d 1261, 1269 (Colo. 1983) (concluding that a person could not be convicted of two murder convictions for a single victim because 8 the legislature had not manifested “any clear intent that a defendant could be convicted of more than one kind of first-degree murder where there is but one victim”), abrogated on other grounds by Callis v. People, 692 P.2d 1045 (Colo. 1984). ¶ 18 But importantly, even if two murder convictions merge because of a single victim, “the trial court should be directed to enter as many convictions and i

2007See People v. Rivera, 186 Colo. 24, 27 , 525 P.2d 431, 433 (1974) (defendant entitled to a lesser included offense instruction if the greater offense establishes every essential element of the lesser offense).

2007See People v. Rivera, 186 Colo. 24, 27 , 525 P.2d 431, 433 (1974) (defendant entitled to a lesser included offense instruction if the greater offense establishes every essential element of the lesser offense).

2021“A trial court is only required to give a lesser included offense instruction when there is ‘a rational basis in the evidence to support a verdict acquitting him of a greater offense . . . and convicting him of the lesser offense.’” Buell, ¶ 31 (quoting People v. Bartowsheski, 661 P.2d 235, 242 (Colo. 1983)). 2.

2017A trial court is only required to give a lesser included offense instruction when there is "a rational basis in the evidence to support a verdict acquitting him of a greater offense ... and convicting him of the lesser offense." Bartowsheski , 661 P.2d at 242 ; see § 18-1-408(6), C.R.S. 2017. "[T]he mere chance that a jury may reject uncontroverted testimony and convict on the lesser charge does not require the trial court to instruct the jury on the lesser charge." People v. Houser , 2013 COA 11 , ¶ 83, 337 P.3d 1238 (quoting People v. Ramirez , 18 P.3d 822 , 827 (Colo. App. 2000) ).

2019A trial court need not give a lesser included offense instruction “if the element that distinguishes the 21 greater from the lesser offense is uncontested [because] the jury cannot rationally acquit the defendant of the greater offense and convict him . . . of the lesser.” People v. Hall, 59 P.3d 298, 299-300 (Colo. App. 2002). ¶ 54 The general crime of soliciting another for prostitution and the specific crime of soliciting for child prostitution set forth the same means to commit those respective crimes: (1) soliciting another; or (2) arranging or offering to arrange a meeting of persons.

2011See, e.g., Martinez, 244 P.3d at 139 (court of appeals should not have considered the defendant's argument under the Colorado Constitution that the prosecutor had engaged in misconduct during closing argument); McMurtry, 122 P.3d at 241 (a defendant may not raise a claim of denial of constitutional right to a speedy trial for the first time on appeal); People v. Knott, 83 P.3d 1147, 1148-49 (Colo.App.2003) (unpreserved due process and double jeopardy challenges to sentencing procedures); People v. Kitsmiller, 74 P.3d 376, 378 (Colo.App.2002) (due process claim *934 that the defendant was entit

2009Compare Meads v. People, 78 P.3d 290, 293-96 (Colo. 2003) (independently deciding whether one statutory offense is included within another), with People v. Jimenez, 217 P.3d 841, 870 (Colo.App.2008) (whether evidence supports lesser included offense instruction is reviewed for an abuse of discretion).

2009Compare Meads v. People, 78 P.3d 290, 293-96 (Colo.2003) (independently deciding whether one statutory offense is included within another), with People v. Jimenez, 217 P.3d 841, 870 (Colo.App.2008) (whether evidence supports lesser included offense instruction is reviewed for an abuse of discretion).

2025As a division of this court has recognized, “A lesser included offense instruction risk[s] a compromise verdict.” People v. Newmiller, 2014 COA 84, ¶ 26 .

2025See People v. Newmiller, 2014 COA 84, ¶¶ 26-27 ; Morrison v. State, 701 S.W.3d 879 , 883 (Mo. Ct. App. 2024); Jinkerson v. State, 666 S.W.3d 318 , 325 (Mo. Ct. App. 2023); Campbell v. State, 598 S.W.3d 611 , 615 (Mo. Ct. App. 2020).

2018While the lesser included offense doctrine derives from the double jeopardy prohibition, see Reyna-Abarca v. People , 2017 CO 15 , ¶¶ 49-52, 390 P.3d 816 , double jeopardy does "not prevent the legislature from specifying multiple punishments based on the same criminal conduct," People v. Hoover , 165 P.3d 784 , 798 (Colo. App. 2006).

2018While the lesser included offense doctrine derives from the double jeopardy prohibition, see Reyna-Abarca v. People , 2017 CO 15 , ¶¶ 49-52, 390 P.3d 816 , double jeopardy does "not prevent the legislature from specifying multiple punishments based on the same criminal conduct," People v. Hoover , 165 P.3d 784 , 798 (Colo. App. 2006).

2002See Beck v. Alabama, 447 U.S. 625, 637 , 100 S.Ct. 2382, 2389 , 65 L.Ed.2d 392, 402 (1980)("we have never held that a defendant is entitled to a lesser included offense instruction as a matter of due process"); People v. Sakarias, 22 Cal.4th 596 , 94 Cal. Rptr.2d 17 , 995 P.2d 152 (2000)(trial court's failure to give lesser included offense should be analyzed under state law standard of prejudice, which is whether the error was harmless).

2002See Beck v. Alabama, 447 U.S. 625, 637 , 100 S.Ct. 2382, 2389 , 65 L.Ed.2d 392, 402 (1980)("we have never held that a defendant is entitled to a lesser included offense instruction as a matter of due process"); People v. Sakarias, 22 Cal.4th 596 , 94 Cal. Rptr.2d 17 , 995 P.2d 152 (2000)(trial court's failure to give lesser included offense should be analyzed under state law standard of prejudice, which is whether the error was harmless).

2026Brown, 239 P.3d at 769 (“[A] voluntary intoxication instruction . . . , while legally distinct from a lesser included offense instruction, serves substantially the same purpose under the law and facts of this case.”); see also Thornburg v. Mullin, 422 F.3d 1113, 1126 (10th Cir. 2005) (explaining that the trial court’s failure to sua sponte instruct the jury on voluntary intoxication did not deny the defendant a fundamentally fair trial 2 The parties agree that Torreyson was present when his initial counsel argued that “voluntary intoxication is relevant” to the mens rea elements of first degre

2026Under this test, “[a]n offense is a lesser-included offense if at least one of the ways to commit the greater offense necessarily establishes all the elements of the lesser offense.” Whiteaker v. People, 2024 CO 25 , ¶¶ 11, 18, 547 P.3d 1122 , 1125-26. ¶ 44 A trial court must give a lesser included offense instruction when “some evidence tend[s] to establish the lesser included offense,” People v. Stafford, 890 P.2d 244, 248 (Colo. App. 1994), and there is a “rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense,” § 18-1-408(6).

2025In general, a trial court is required to give a lesser included offense instruction “when there is ‘a rational basis in the evidence to support a verdict acquitting [the defendant] of a greater offense . . . and convicting him of the lesser offense.’” People v. Draper, 2021 COA 120, ¶ 16 (citation omitted), overruled by Garcia v. People, 2023 CO 30 . ¶ 27 However, “[a] trial court is not obligated to instruct on a lesser included offense unless such an instruction is requested by the defense or the prosecution.” People v. Aalbu, 696 P.2d 796, 810 (Colo. 1985), overruled on other grounds by Bon

2024We therefore turn to whether Nardi showed an adverse effect resulting from that purported conflict. ¶ 22 Nardi identifies what he asserts are two plausible alternative defense strategies that Van Ness could have, but did not, pursue: (1) seeking a plea deal or conviction on lesser charges and 10 (2) invoking Nardi’s indigency earlier to facilitate either Van Ness’s replacement with a public defender or state funds to pay for an expert witness. ¶ 23 The postconviction court found that it was not objectively reasonable for Van Ness to initiate plea negotiations because Nardi steadfastly maintain