by Sam Rutherford

The Supreme Court of Colorado held that convictions for second-degree burglary and first-degree criminal trespass of a dwelling arising from the same course of criminal conduct violate the double jeopardy clauses of the U.S. and Colorado Constitutions, requiring the trespass conviction and sentence be vacated and merged with the burglary conviction.

Background

Taunia Marie Whiteaker was convicted of second-degree burglary, first-degree criminal trespass, third-degree assault, and harassment stemming from an altercation with family members at her mother-in-law’s home in 2019. The district court entered judgment for each conviction and sentenced Whiteaker to three years of probation on each count, imposed concurrently. Whitaker timely appealed, arguing, among other things, that her convictions for burglary and trespass violated double jeopardy protections.

The court of appeals rejected this argument. The appellate court relied on the Colorado Supreme Court’s decision in People v. Garcia, 940 P.2d 357 (Colo. 1997), which held that “first degree criminal trespass is not a lesser included offense of second degree burglary” and concluded that the district court did not err when sentencing Whiteaker for both offenses. Although noting that subsequent decisions had cast doubt on the validity of Garcia, the appellate court felt bound by the decision because the Supreme Court had not explicitly overruled it. Whiteaker sought and obtained review in the Supreme Court.

Analysis

Both the state and federal constitutions prohibit placing someone in jeopardy twice for the same offense. U.S. Const. amends. V, XIV; Colo. Const. art. II, § 18. Double jeopardy protections prohibit the imposition of multiple punishments for the same offense absent specific legislative authorization. Page v. People, 402 P.3d 468 (Colo. 2017). “And the General Assembly has not authorized multiple punishments in the form of two convictions for the same conduct when the lesser offense is included in the greater offense.” See id.

            Under Colorado law, one offense is necessarily included in another if “[i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” Section 18-1-408(5)(a), C.R.S. (2023). The Garcia Court explained that this statute means that “one offense is a lesser included of another offense when all of the essential elements of the lesser offense comprise a subset of the essential elements of the greater offense, such that it is impossible to commit the greater offense without also committing the lesser.” Applying this test, the Garcia Court determined that first-degree criminal trespass is not a lesser included offense of second-degree burglary because the trespass statute requires that the defendant entered a “dwelling” illegally while the burglary statute requires only that the defendant illegally entered a “building,” which is a broader category than dwelling.

            Twenty years later, however, the Court revisited the analytical framework in Garcia, determining that its lesser included offense analysis had proved to be “unworkable.” Reyna-Abarca v. People, 390 P.3d 816 (Colo. 2017). In an effort to “adopt a standard that can be applied readily and uniformly in all cases,” the Reyna-Abarca Court declared that “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 the elements of the greater offense.”

            In the present case, the Court went one step further to clarify the standard announced in Reyna-Abarca, holding that “it no longer matters whether the greater offense can be committed in a way that wouldn’t encompass the lesser offense. An 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.” The Court then expressly overruled Garcia because “[u]nder the existing statutory scheme for these offenses, first degree criminal trespass is always a lesser-included offense of second degree burglary because one of the ways to commit second degree burglary satisfies all the elements of first degree criminal trespass.” Thus, the Court held that Whiteaker’s burglary and trespass convictions violated double jeopardy clauses of both the U.S. and Colorado Constitutions. See People v. Rigsby, 471 P.3d 1068 (Colo. 2020).

            Although the State and Whiteaker agreed that first-degree trespass is always a lesser included offense of second-degree burglary, they parted ways on whether she was entitled to relief on her double jeopardy claim. Whiteaker argued that double jeopardy sentencing errors always require reversal and merger of the greater offense with the lesser-included offense, regardless of whether the error was obvious to the district court. The State, on the other hand, argued that unpreserved double jeopardy claims are reviewed for plain error and that any error in convicting Whiteaker of both offenses was not “plain” because the district court did not know that Garcia was a “dead letter.”

            The Court rejected the State’s position and agreed with Whiteaker that double jeopardy violations always require a remedy, obvious or not. It explained that the double jeopardy clauses require it to vacate the lesser-included offense. Patton v. People, 35 P.3d 124 (Colo. 2001). This is because district courts may only impose sentences authorized by statute, and the General Assembly has made clear that a lesser included offense may not be punished separately from a greater offense. See id. Moreover, automatic reversal in this “narrow context” also “promotes the interests of justice” by correcting an “illegal, unconstitutional punishment,” the Court stated. Thus, the Court held that the lesser-included offense must be merged into the greater offense.

Conclusion

Accordingly, the Court reversed the judgement of the court of appeals and remanded the case with instructions for the district court to amend the mittimus to reflect merger of Whiteaker’s conviction for first degree criminal trespass into her conviction for second degree burglary. See: Whiteaker v. People, 547 P.3d 1122 (Colo. 2024).

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