Affirmed1. ASSAULT AND BATTERY — First Degree — Guilty — Second Degree — Discharge — Negative — People v. Dominguez. Defendant, who was originally charged with first-degree assault but found guilty of second-degree assault, was not entitled to a discharge by reason of People v. Dominguez, 193 Colo. 468, 568 P.2d 54 (1977), which held the elements of first- and second-degree assault to be the same under the statute which defendant was charged with violating. 2.
¶ 14 Relying on People v. Dominguez, Duncan argues that, because protracted and permanent lack a "sufficiently pragmatic difference," protracted necessarily means permanent. 193 Colo. 468, 470, 568 P.2d 54, 55 (1977) (quoting People v. Calvaresi, 188 Colo. 277, 282, 534 P.2d 316, 319 (1975)).
A statute violates equal protection if a separate law covers the identical conduct but has lower penalties, even if different acts could potentially be covered. See, e.g., People v. Marcy, 628 P.2d 69, 80 (Colo. 1981) (invalidating extreme indifference first degree murder as indistinguishable from second degree murder); People v. Calvaresi, 534 P.2d 316, 318-319 (Colo. 1975) (then existing manslaughter violated equal protection since practically identical to criminally negligent homicide); People v. Dominquez, 568 P.2d 54, 55 (Colo. 1977) (conviction for first degree assault reversed due then existing statute being basically identical to second degree assault).The tax evasion statute does not define what is mean [sic] by evading or defeating a tax and how that can be differentiated from legal activity to minimize taxes in naming deductions.
We have held on several occasions that when all the elements of a lesser offense have been established by competent evidence and have been included in the jury's guilty verdict to the more serious but constitutionally infirm crime, it is appropriate to vacate the conviction and remand the case with directions to enter a judgment of conviction on the lesser offense and to resentence the defendant for that crime. E.g. Curtis, 627 P.2d 734; Till v. People, 196 Colo. 126, 581 P.2d 299 (1978); People v. Dominguez, 193 Colo. 468, 568 P.2d 54 (1977); People v. Horrocks, 190 Colo. 501, 549 P.2d 400 (1976); People v. Webb, 189 Colo. 400, 542 P.2d 77 (1975); People v. Bowers, 187 Colo. 233, 530 P.2d 1282 (1974). Under the state of the record before us, we are satisfied that there was abundant evidence establishing all the essential elements of the lesser offense of second degree murder, which consists of causing the death of another "knowingly."
Statutes prescribing different sanctions for what ostensibly might be different acts, but offering no rational standard for distinguishing such different acts for purposes of disparate punishment, also contravene the equal protections guaranties of Colorado's constitution. People v. Dominguez, 193 Colo. 468, 568 P.2d 54 (1977); People v. Calvaresi, 188 Colo. 277, 534 P.2d 316 (1975). Therefore, statutory classifications of crimes must be based on differences that are real in fact and reasonably related to the purposes of the legislative enactments.
1981); People v. Westrum, 624 P.2d 1302 (Colo. 1981); People v. Bramlett, 194 Colo. 205, 573 P.2d 94 (1977), cert. denied 435 U.S. 956, 98 S.Ct. 1590, 55 L.Ed.2d 808 (1978); People v. Dominguez, 193 Colo. 468, 568 P.2d 54 (1977); People v. Calvaresi, 188 Colo. 277, 534 P.2d 316 (1975). On July 30, 1974, the defendant was charged in the Boulder District Court with extreme indifference murder.
." People v. Marcy, 628 P.2d at 74-75; see also, e.g., People v. Bramlett, 194 Colo. 205, 573 P.2d 94 (1977), cert. denied, 435 U.S. 956, 98 S.Ct. 1590, 55 L.Ed.2d 808 (1978); People v. Dominguez, 193 Colo. 468, 568 P.2d 54 (1977); People v. Calvaresi, 188 Colo. 277, 534 P.2d 316 (1975). A review of the statutory definitions of attempted extreme indifference murder and of assault in the first degree satisfies us that there is a sufficient difference in the conduct proscribed by these offenses to justify the resulting differential in penalty.
People v. Marcy, 628 P.2d at 75. See, e.g., People v. Bramlett, supra; People v. Dominguez, 193 Colo. 468, 568 P.2d 54 (1977); People v. Calvaresi, supra. The distinction, if any, between "directly involved in an accident" and "involved in an accident" is "one without a sufficiently pragmatic difference to permit an intelligent and uniform application of the law."
"On prior occasions where all the elements of the lesser offense were proved by competent evidence and were included in the jury's verdict of guilty to the more serious but constitutionally infirm crime, we have vacated the conviction and remanded with directions to enter a judgment of conviction on the lesser offense and to resentence the defendant. People v. Dominguez, 193 Colo. 468, 568 P.2d 54 (1977); People v. Horrocks, 190 Colo. 501, 549 P.2d 400 (1976); People v. Webb, 189 Colo. 400, 542 P.2d 77 (1975); People v. Bowers, 187 Colo. 233, 530 P.2d 1282 (1974)."
Equal protection prohibits a state from enacting a statute which prescribes different punishments for the same acts committed under like circumstances by persons similarly situated. People v. Dominguez, 193 Colo. 468, 568 P.2d 54 (1977); People v. Calvaresi, 188 Colo. 277, 534 P.2d 316 (1975). However, the law has long recognized a relation between punishment for escape and the offense for which the prisoner was held at the time of the escape, and the courts have approved statutes which provide for increasingly severe punishments for escape by those inmates serving sentences for more grievous crimes.