Opinion
No. 94SA444, 95SA50
Decided October 10, 1995 Rehearing Denied (Mitchell) November 14, 1995
Appeal from the District Court, Pueblo County Honorable C. Dennis Maes, Judge
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
G.F. Sandstrom, District Attorney, Tenth Judicial District, M. Katherine Howard, Deputy District Attorney, Pueblo, Colorado, Attorneys for Plaintiff-Appellant
David F. Vela, Colorado State Public Defender, Karen M. Gerash, Deputy State Public Defender, Denver, Colorado, Attorneys for Defendant-Appellee
No appearance on behalf of Defendant-Appellee.
We have consolidated for opinion two cases, People v. Gallegos, No. 95SA50, and People v. Mitchell, No. 94SA444, because they raise identical issues. The People seek review of the trial court orders in both cases which dismissed the second degree assault charges against Gallegos and Mitchell, the defendants, on grounds that section 18-3-203(1)(b), 8B C.R.S. (1986), violates equal protection guarantees. We reverse the judgments of the trial court and remand the cases with directions.
The People appeal directly to this court pursuant to section 13-4-102(1)(b), 6A C.R.S. (1987 1994 Supp.), section 16-12-102, 8A C.R.S. (1994 Supp.), and C.A.R. 3.
The People allege the following facts in Gallegos and Mitchell. In Gallegos, Sharon Mercy Gallegos, the defendant, verbally and physically attacked the victim, Kim Mansfield, at Mansfield's apartment. After Gallegos left the apartment, Mansfield walked across the street to a convenience store to call the police. Gallegos, who was then driving her car, attempted to run over Mansfield.
Gallegos was charged with one count of assault in the second degree in violation of section 18-3-203(1)(b) for an attempt to commit bodily harm. On February 3, 1995, the trial court granted Gallegos' motion to dismiss based on equal protection grounds.
In Mitchell, Thomas B. Luxton, a Pueblo police officer, received a report that a passenger in a silver or gray pickup truck leaned out of the passenger-side window with a rifle and shot at a blue Grand Prix. After further investigation, Officer Luxton learned that Robert Phillips was the driver of the truck and Roy Damian Mitchell, the defendant, was the passenger in the truck.
Mitchell was charged with two counts of assault in the second degree in violation of section 18-3-203(1)(b) for an attempt to commit bodily harm. On December 12, 1994, the trial court granted Mitchell's amended motion to dismiss based on equal protection grounds.
People v. Duc Nguyen, 900 P.2d 37 (Colo. 1995), is dispositive of the issue in both cases. There, this court held that a portion of the second degree assault statute violates constitutional equal protection guarantees because a more severe sentence is required for attempt to commit bodily injury than is required for attempt to commit serious bodily injury. We concluded that the constitutional violation could be remedied by (1) severing the mandatory crime of violence sentencing provision under section 18-3-203(2)(c) as it applies to attempted second degree assault under section 18-3-203(1)(b), and (2) remanding the case for sentencing of the defendant for commission of a class 4 felony.
Accordingly, applying that decision to Gallegos and Mitchell, we find that the trial court erred in both cases when it granted the defendants' motions to dismiss. In each case, the second degree assault charge should be reinstated as a class 4 felony.
Hence, the trial court's judgments granting the defendants' motions to dismiss based on equal protection grounds in both cases are reversed and the cases are remanded to the trial court for further proceedings consistent with this opinion.
JUSTICE LOHR dissents, and JUSTICE ERICKSON and JUSTICE KIRSHBAUM join in the dissent.
JUSTICE KIRSHBAUM dissents.