Colo. Rev. Stat. » Title 18
Colorado Revised Statutes

Colo. Rev. Stat. § 18-1-408 (2024)

Prosecution of multiple counts for same act

✓ C.R.S. 2024: the 2025 and 2026 sessions are not included
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(1) When any conduct of a defendant establishes the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not be convicted of more than one offense if:

(a) One offense is included in the other, as defined in subsection (5) of this section; or

(b) One offense consists only of an attempt to commit the other; or

(c) Inconsistent findings of fact are required to establish the commission of the offenses; or

(d) The offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct; or

(e) The offense is defined as a continuing course of conduct and the defendant's course of conduct was uninterrupted, unless the law provides that specific periods or instances of such conduct constitute separate offenses.

(2) If the several offenses are actually known to the district attorney at the time of commencing the prosecution and were committed within the district attorney's judicial district, all such offenses upon which the district attorney elects to proceed must be prosecuted by separate counts in a single prosecution if they are based on the same act or series of acts arising from the same criminal episode. Any offense not thus joined by separate count cannot thereafter be the basis of a subsequent prosecution; except that, if at the time jeopardy attaches with respect to the first prosecution against the defendant the defendant or counsel for the defendant actually knows of additional pending prosecutions that this subsection (2) requires the district attorney to charge and the defendant or counsel for the defendant fails to object to the prosecution's failure to join the charges, the defendant waives any claim pursuant to this subsection (2) that a subsequent prosecution is prohibited.

(3) When two or more offenses are charged as required by subsection (2) of this section and they are supported by identical evidence, the court upon application of the defendant may require the state, at the conclusion of all the evidence, to elect the count upon which the issues shall be tried. If more than one guilty verdict is returned as to any defendant in a prosecution where multiple counts are tried as required by subsection (2) of this section, the sentences imposed shall run concurrently; except that, where multiple victims are involved, the court may, within its discretion, impose consecutive sentences.

(4) When a defendant is charged with two or more offenses based on the same act or series of acts arising from the same criminal episode, the court, on application of either the defendant or the district attorney, may order any such charge to be tried separately, if it is satisfied that justice so requires.

(5) A defendant may be convicted of an offense included in an offense charged in the indictment or the information. An offense is so included when:

(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or

(b) It consists of an attempt or solicitation to commit the offense charged or to commit an offense otherwise included therein; or

(c) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.

(6) The court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.

(7) 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.

(8) Without the consent of the prosecution, no jury shall be instructed to return a guilty verdict on a lesser offense if any juror remains convinced by the facts and law that the defendant is guilty of a greater offense submitted for the jury's consideration, the retrial of which would be barred by conviction of the lesser offense.

Source: L. 71: R&RE, p. 400, § 1. C.R.S. 1963: § 40-1-508. L. 85: (3) amended, p. 661, § 1, effective July 1. L. 94: (2) amended, p. 1049, § 2, effective July 1. L. 2000: (8) added, p. 452, § 6, effective April 24.

Cross references: For the sentencing of a defendant convicted of multiple crimes of violence arising out of the same incident, see § 18-1.3-406 (1)(a).

Notes of Decisions
Cited in 391 cases (53 in the last 5 years), 1975–2026 · leading case: Juhl v. People, 172 P.3d 896 (Colo. 2007).
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Juhl v. People, 172 P.3d 896 (Colo. 2007). · cites it 91× “On appeal, Juhl contended that the sentences imposed for his first degree assault and vehicular assault pleas should run concurrently pursuant to section 18-1-408@8), C.R.S. (2007), which requires that the trial court impose concurrent sentences for convictions *898 which arise…”
Abarca v. People No. 13SC750, Hill v. People No. 14SC3, Medrano-Bustamante v. People No. 14SC7, People v. Smoots, 2017 CO 15, 390 P.3d 816. · cites it 47× “The People further contend that even though the potential harm from a defect in the charging document might not be realized until the defendant is actually convicted of multiplicitous charges, the defendants still must “bookmark” their challenges at the pleadings stage. For…”
People v. Muckle, 107 P.3d 380 (Colo. 2005). · cites it 23× “We held in Qureshi that the trial court’s “traditional discretion to impose either consecutive or concurrent sentences, depending on the gravity of the accused’s criminal conduct, remains intact under section 18-1-408 if the trial court finds that the multiple counts are not…”
People v. McCormick, 859 P.2d 846 (Colo. 1993). · cites it 105× “McCormick for murder and kidnapping, finding that the compulsory joinder provisions of section 18-1-408(2), 8B C.R.S. (1986), precluded the subsequent prosecution of the murder and kidnapping charges.”
Meads v. People, 78 P.3d 290 (Colo. 2003). · cites it 38× “2d at 245 , this court analyzed whether a defendant could be simultaneously convicted of both felony murder and the predicate felony of robbery without violating the statutory provisions of section 18-1-408. We concluded that because proof of the greater offense "based upon the…”
People v. Maestas, 224 P.3d 405 (Colo. Ct. App. 2009). · cites it 19× “Section 18-1-408(8), C.R.S8.2009, which addresses the criteria for consecutive sentencing, states as follows: When two or more offenses are charged [based on the same act or series of acts arising from the same criminal episode within the district attorney's judicial district]…”
Colorado v. Richardson, 184 P.3d 755 (Colo. 2008). · cites it 44× “Subsection (8) states: Without the consent of the prosecution, no jury shall be instructed to return a guilty verdict on a lesser offense if any juror remains convinced by the facts and law that the defendant is guilty of a greater offense submitted for the jury's consideration,…”
Jeffrey v. Dist. Court In & For the Eighth Jud. Dist., 626 P.2d 631 (Colo. 1981). · cites it 35× “Petitioner claims that the prosecution of these charges is barred by the compulsory joinder provisions of section 18-1-408(2), C.R.S. 1973 (1978 Repl.”
v. Zadra No. 15SC262, People v. Adams, 2017 CO 18, 389 P.3d 885. · cites it 7× “She thus argued that her multiplicitous convictions violated section 18-1-408. ¶6 The People responded that Zadra had waived this claim by not objecting at trial to defects in the information under Crim.”
People v. Rogers, 742 P.2d 912 (Colo. 1987). · cites it 59× “If proof of one of the crimes charged is not relevant to proof of the other, then the two crimes do not involve interrelated proof and as a matter of law are not part of the "same criminal episode" as that term is used in section 18-1-408, 8B C.R.S. (1984). Since the defendant…”
People v. Rodriguez, 914 P.2d 230 (Colo. 1996). · cites it 12× “See § 18-1-408, 8B C.R.S. (1986). However, a defendant cannot be convicted of an offense which is a lesser included offense of another crime of which he is convicted.”
Brown v. People, 239 P.3d 764 (Colo. 2010). · cites it 30× “The court of appeals rejected the lower court's reasoning, determining that section 18-1-408(6), C.R.S. (2009), enables a criminal defendant to seek an inconsistent jury instruction for which there is a rational basis in the evidence.”
Show all 391 citing cases →
Colo. Rev. Stat. § 18-1-408(1): 44 cases
Abarca v. People No. 13SC750, Hill v. People No. 14SC3, Medrano-Bustamante v. People No. 14SC7, People v. Smoots, 2017 CO 15, 390 P.3d 816. “The People further contend that even though the potential harm from a defect in the charging document might not be realized until the defendant is actually convicted of multiplicitous charges, the defendants still must “bookmark” their challenges at the pleadings stage. For…”
v. People, 2019 CO 100.
v. Zadra No. 15SC262, People v. Adams, 2017 CO 18, 389 P.3d 885. “She thus argued that her multiplicitous convictions violated section 18-1-408. ¶6 The People responded that Zadra had waived this claim by not objecting at trial to defects in the information under Crim.”
People v. Rock, 2017 CO 84, 402 P.3d 472.
v. Rigsby, 2020 CO 74, 471 P.3d 1068.
Colo. Rev. Stat. § 18-1-408(1)(a): 62 cases
People v. Tillery, 231 P.3d 36 (Colo. Ct. App. 2009).
Friend v. People, 2018 CO 90, 429 P.3d 1191.
v. Procasky, 2019 COA 181.
Patton v. People, 35 P.3d 124 (Colo. 2001).
People v. Halstead, 881 P.2d 401 (Colo. Ct. App. 1994).
Colo. Rev. Stat. § 18-1-408(1)(b): 1 case
v. Jackson, 2020 CO 75, 472 P.3d 553.
Colo. Rev. Stat. § 18-1-408(1)(c): 2 cases
People v. Bowman, 669 P.2d 1369 (Colo. 1983).
People v. Badhawk, 761 P.2d 753 (Colo. 1988).
Colo. Rev. Stat. § 18-1-408(1)(d): 6 cases
Abarca v. People No. 13SC750, Hill v. People No. 14SC3, Medrano-Bustamante v. People No. 14SC7, People v. Smoots, 2017 CO 15, 390 P.3d 816. “The People further contend that even though the potential harm from a defect in the charging document might not be realized until the defendant is actually convicted of multiplicitous charges, the defendants still must “bookmark” their challenges at the pleadings stage. For…”
People v. Blue, 253 P.3d 1273 (Colo. Ct. App. 2011).
People v. Blair, 579 P.2d 1133 (Colo. 1978).
People v. Tippett, 733 P.2d 1183 (Colo. 1987).
People v. Van De Weghe, 2012 COA 204, 312 P.3d 231.
Colo. Rev. Stat. § 18-1-408(1)(e): 3 cases
v. Jackson, 2020 CO 75, 472 P.3d 553.
People v. Quintano, 81 P.3d 1093 (Colo. Ct. App. 2004).
Peo v. Ciarcia, No. 25CA0053 (Colo. Ct. App. Mar. 12, 2026).
Colo. Rev. Stat. § 18-1-408(2): 70 cases
People v. McCormick, 859 P.2d 846 (Colo. 1993). “McCormick for murder and kidnapping, finding that the compulsory joinder provisions of section 18-1-408(2), 8B C.R.S. (1986), precluded the subsequent prosecution of the murder and kidnapping charges.”
Jeffrey v. Dist. Court In & For the Eighth Jud. Dist., 626 P.2d 631 (Colo. 1981). “Petitioner claims that the prosecution of these charges is barred by the compulsory joinder provisions of section 18-1-408(2), C.R.S. 1973 (1978 Repl.”
People v. Rogers, 742 P.2d 912 (Colo. 1987). “If proof of one of the crimes charged is not relevant to proof of the other, then the two crimes do not involve interrelated proof and as a matter of law are not part of the "same criminal episode" as that term is used in section 18-1-408, 8B C.R.S. (1984). Since the defendant…”
People v. Wright, 742 P.2d 316 (Colo. 1987).
Cnty. Court in & for Cty. of El Paso v. Ruth, 575 P.2d 1 (Colo. 1977).
Colo. Rev. Stat. § 18-1-408(3): 83 cases
Juhl v. People, 172 P.3d 896 (Colo. 2007). “On appeal, Juhl contended that the sentences imposed for his first degree assault and vehicular assault pleas should run concurrently pursuant to section 18-1-408@8), C.R.S. (2007), which requires that the trial court impose concurrent sentences for convictions *898 which arise…”
People v. Muckle, 107 P.3d 380 (Colo. 2005). “We held in Qureshi that the trial court’s “traditional discretion to impose either consecutive or concurrent sentences, depending on the gravity of the accused’s criminal conduct, remains intact under section 18-1-408 if the trial court finds that the multiple counts are not…”
Thompson v. People, 2020 CO 72, 471 P.3d 1045.
v. Espinoza, 2020 CO 43, 463 P.3d 855.
People v. Blair, 579 P.2d 1133 (Colo. 1978).
Colo. Rev. Stat. § 18-1-408(4): 4 cases
People v. Bossert, 722 P.2d 998 (Colo. 1986).
People v. McCormick, 839 P.2d 474 (Colo. Ct. App. 1992).
People v. Avila, 770 P.2d 1330 (Colo. Ct. App. 1988).
Peo v. Welker, No. 22CA1795 (Colo. Ct. App. Apr. 3, 2025).
Colo. Rev. Stat. § 18-1-408(5): 28 cases
Abarca v. People No. 13SC750, Hill v. People No. 14SC3, Medrano-Bustamante v. People No. 14SC7, People v. Smoots, 2017 CO 15, 390 P.3d 816. “The People further contend that even though the potential harm from a defect in the charging document might not be realized until the defendant is actually convicted of multiplicitous charges, the defendants still must “bookmark” their challenges at the pleadings stage. For…”
People v. Rodriguez, 914 P.2d 230 (Colo. 1996). “See § 18-1-408, 8B C.R.S. (1986). However, a defendant cannot be convicted of an offense which is a lesser included offense of another crime of which he is convicted.”
People v. Lowe, 660 P.2d 1261 (Colo. 1983).
People v. Raymer, 662 P.2d 1066 (Colo. 1983).
People v. Tallwhiteman, 124 P.3d 827 (Colo. Ct. App. 2005).
Colo. Rev. Stat. § 18-1-408(5)(a): 56 cases
Abarca v. People No. 13SC750, Hill v. People No. 14SC3, Medrano-Bustamante v. People No. 14SC7, People v. Smoots, 2017 CO 15, 390 P.3d 816. “The People further contend that even though the potential harm from a defect in the charging document might not be realized until the defendant is actually convicted of multiplicitous charges, the defendants still must “bookmark” their challenges at the pleadings stage. For…”
Meads v. People, 78 P.3d 290 (Colo. 2003). “2d at 245 , this court analyzed whether a defendant could be simultaneously convicted of both felony murder and the predicate felony of robbery without violating the statutory provisions of section 18-1-408. We concluded that because proof of the greater offense "based upon the…”
People v. Halstead, 881 P.2d 401 (Colo. Ct. App. 1994).
v. Valera-Castillo, 2021 COA 91.
v. Jackson, 2020 CO 75, 472 P.3d 553.
Colo. Rev. Stat. § 18-1-408(5)(b): 3 cases
People v. Duran, 272 P.3d 1084 (Colo. Ct. App. 2011).
People v. Hansen, 708 P.2d 468 (Colo. Ct. App. 1985).
Peo v. Kim, No. 23CA2000 (Colo. Ct. App. Apr. 17, 2025).
Colo. Rev. Stat. § 18-1-408(5)(c): 20 cases
v. Pellegrin, 2021 COA 118, 500 P.3d 384.
v. People, 2020 CO 54.
Abarca v. People No. 13SC750, Hill v. People No. 14SC3, Medrano-Bustamante v. People No. 14SC7, People v. Smoots, 2017 CO 15, 390 P.3d 816. “The People further contend that even though the potential harm from a defect in the charging document might not be realized until the defendant is actually convicted of multiplicitous charges, the defendants still must “bookmark” their challenges at the pleadings stage. For…”
People v. Hoggard, 2017 COA 88, 468 P.3d 15.
People v. LOYAS, 259 P.3d 505 (Colo. Ct. App. 2010).
Colo. Rev. Stat. § 18-1-408(6): 39 cases
Brown v. People, 239 P.3d 764 (Colo. 2010). “The court of appeals rejected the lower court's reasoning, determining that section 18-1-408(6), C.R.S. (2009), enables a criminal defendant to seek an inconsistent jury instruction for which there is a rational basis in the evidence.”
Grissom v. People, 115 P.3d 1280 (Colo. 2005).
People v. Romero, 694 P.2d 1256 (Colo. 1985).
Bowers v. People, 617 P.2d 560 (Colo. 1980).
People v. Brown, 218 P.3d 733 (Colo. Ct. App. 2009).
Colo. Rev. Stat. § 18-1-408(7): 25 cases
v. Curtis, 2021 COA 103, 498 P.3d 677.
People v. Stewart, 55 P.3d 107 (Colo. 2002).
People v. Leske, 957 P.2d 1030 (Colo. 1998).
Armintrout v. People, 864 P.2d 576 (Colo. 1993).
People v. Westrum, 624 P.2d 1302 (Colo. 1981).
Colo. Rev. Stat. § 18-1-408(8): 33 cases
Juhl v. People, 172 P.3d 896 (Colo. 2007). “On appeal, Juhl contended that the sentences imposed for his first degree assault and vehicular assault pleas should run concurrently pursuant to section 18-1-408@8), C.R.S. (2007), which requires that the trial court impose concurrent sentences for convictions *898 which arise…”
People v. Maestas, 224 P.3d 405 (Colo. Ct. App. 2009). “Section 18-1-408(8), C.R.S8.2009, which addresses the criteria for consecutive sentencing, states as follows: When two or more offenses are charged [based on the same act or series of acts arising from the same criminal episode within the district attorney's judicial district]…”
Colorado v. Richardson, 184 P.3d 755 (Colo. 2008). “Subsection (8) states: Without the consent of the prosecution, no jury shall be instructed to return a guilty verdict on a lesser offense if any juror remains convinced by the facts and law that the defendant is guilty of a greater offense submitted for the jury's consideration,…”
People v. Torrez, 2013 COA 37, 316 P.3d 25.
People v. Esparza-Treto, 282 P.3d 471 (Colo. Ct. App. 2011).
Colo. Rev. Stat. § 18-1-408(B)(a): 1 case
People v. Joyce, 68 P.3d 521 (Colo. Ct. App. 2002).
Colo. Rev. Stat. § 18-1-408(b)(a): 3 cases
Meads v. People, 78 P.3d 290 (Colo. 2003). “2d at 245 , this court analyzed whether a defendant could be simultaneously convicted of both felony murder and the predicate felony of robbery without violating the statutory provisions of section 18-1-408. We concluded that because proof of the greater offense "based upon the…”
People v. Lowry, 160 P.3d 396 (Colo. Ct. App. 2007).
People v. Graybeal, 155 P.3d 614 (Colo. Ct. App. 2007).
Colo. Rev. Stat. § 18-1-408(l)(a): 6 cases
People v. Bartowsheski, 661 P.2d 235 (Colo. 1983).
People v. Delgado-Elizarras, 131 P.3d 1110 (Colo. Ct. App. 2005).
People v. Lovato, 179 P.3d 208 (Colo. Ct. App. 2007).
People v. Allen, 944 P.2d 541 (Colo. Ct. App. 1996).
People v. Driggers, 812 P.2d 702 (Colo. Ct. App. 1991).
Colo. Rev. Stat. § 18-1-408(l)(e): 1 case
People v. Martinez, 640 P.2d 255 (Colo. Ct. App. 1981).
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