In a pair of 4-3 decisions, the Colorado Supreme Court on Monday upheld the actions of two separate trial courts, one of which illuminated an unintended consequence of a 2016 legislative tweak.

The first case centered around changes the General Assembly made four years ago to the state’s assault statutes. That year, legislators enacted a sentence of five to 16 years for those convicted of assault with a deadly weapon, and also created a strangulation subsection with a two to eight year sentence. By not requiring the use of hands as a deadly weapon for the latter crime, the legislature elevated strangulation to a felony and apparently intended to punish more consistently a behavior prevalent in domestic violence.

According to a Legislative Council Staff analysis of House Bill 1080, most strangulation victims lack visible injuries or corroborating evidence. Under the revision, strangulation “may be easier to prove since the criterion under this bill only requires that airflow be restricted or impeded and that the relevant level of injury occur.”

Prosecutors charged Dearies Deshonne Austin Lee with assault, following a violent incident in which he reportedly pushed a former romantic partner onto a bed and pressed her neck until she lost consciousness. When she woke up and confronted Lee, he again allegedly strangled her to the point of passing out. 

The charges against Lee included counts under both the strangulation subsection and the deadly weapon subjection. Lee moved to dismiss the deadly weapon charges, alleging it violated his equal protection rights under the law to be charged twice for the same act.

A Colorado Court of Appeals panel in 2019 sided with Lee, finding the deadly weapon and strangulation laws referred to different types of conduct, and the legislature specifically intended for strangulation to be charged pursuant to the strangulation provision.

Writing for the majority, Justice Richard L. Gabriel explained the state Supreme Court has held that laws with different penalties that criminalize the same conduct are unconstitutional. At the same time, the court has suggested that hands may be deadly weapons, depending on how a perpetrator uses them. The court’s job was to distinguish whether the two assault subsections applied to the same conduct.

For the majority, the answer was yes.

“The distinction between the two lies in the means used to cause that injury,” wrote Gabriel. “In the case of strangulation, we have little difficulty concluding that the perpetrator is using an instrument – whether hands or an object of some kind – as a weapon.”

Because strangulation can result in death or serious bodily injury, the majority declared that strangulation will always involve the use of a deadly weapon. Therefore, the two assault statutes outlaw the same conduct, and prosecutors may only charge according to the strangulation provision.

Justice Carlos A. Samour, Jr., who dissented for himself as well as for Chief Justice Nathan B. Coats and Justice Brian D. Boatright, slammed the “court’s stubborn loyalty to Colorado’s unique equal protection doctrine.”

Samour wrote that the U.S. Supreme Court and other jurisdictions permit prosecutors to charge someone using the harsher of two relevant statutes. To the extent the majority did not recognize that, “our court is in a legal no man’s land.” He likened overlapping statutes to a single provision that merely contained options for punishment.

Using strongly-worded language, Samour’s dissent characterized the state’s continued dissimilarity to federal practice as “a jugular strike to the dated principles we adopted eons ago but to which our court now clings with fierce determination.” He countered Gabriel’s equation of strangulation to the use of a deadly weapon with an argument that it is possible to use hands in a way that “briefly impeded breathing” without them being a deadly weapon.

The majority’s decision drew criticism from Sen. Mike Foote, D-Lafayette, who was one of the sponsors of the 2016 change as a state representative.

“The point of HB16-1080 was to make sure strangulation was specifically defined in Colorado criminal law and could be consistently prosecuted as a felony without having to call expert testimony to prove a perpetrator’s hands could be used as a deadly weapon,” he said. “We did not intend to reduce the possible penalty for strangulation incidents, but it appears the bill inadvertently did that by not making conforming amendments.”

Foote, who is leaving the legislature this year, added that he hoped the General Assembly could correct the discrepancy in the future.

The case is People v. Lee.

In the second case, a majority of justices upheld a judge’s self-defense instruction to the jury during an assault trial – despite the fact that neither the defendant nor the prosecution advocated for it.

Jose Luis Galvan, Sr. rode on a party bus between Greeley and Denver in March 2015 to celebrate a friend’s birthday. There were largely differing allegations between witnesses about what happened before the 3 a.m. arrival back in Greeley, but the night culminated in Galvan hitting another passenger after disembarking.

Weld County prosecutors charged him with three counts of assault and one account of felony menacing. Galvan at his trial argued he was acting in self defense, which the law permits if someone is responding to actual or imminent physical force. Because a defendant admits to the assault by asserting self defense, prosecutors must prove beyond a reasonable doubt that the individual’s action did not qualify as self defense. 

A jury convicted him only of second degree assault, and Galvan received 10 years in prison.

Galvan appealed, citing the trial judge’s decision to give the jury an instruction on one of the exceptions to self defense: if the defendant provokes the assault. Both Galvan and the prosecutor agreed there was no evidence Galvan was the provocateur, but the Weld County District Court judge found “some evidence” existed.

By a 4-3 vote, the Supreme Court’s majority agreed that the instruction was proper because “some evidence” did not change the prosecution’s burden to disprove self defense beyond a reasonable doubt.

“[T]here was evidence which, viewed in the light most favorable to giving the instruction, permitted the jury to reasonably infer that Galvan intended his provocation to egg on [the victim] to use unlawful physical force so that he would then have justification to injure her,” wrote Samour.

The court declined to consider Galvan’s contention that his incendiary words alone could not make him the provocateur. The Court of Appeals had considered whether the provocation provision of the law possibly violated the First Amendment when considering Galvan’s case, but the Supreme Court chastised the judges on that panel for bringing up the matter improperly. The majority observed that even considering the argument, Galvan appeared to back up his words with physical acts of provocation.

Justice Monica M. Márquez, dissenting for herself, Gabriel and Justice Melissa Hart, believed the provocation instruction likely caused the jury to assume provocation was an issue. Further, she criticized the majority for failing to identify the specific evidence of provocation.

Márquez also accused the majority of intertwining the provocation situation with another exception to self defense in which the defendant is the initial aggressor.

“By refusing to limit provocation to situations where the defendant goads the victim into attacking first, the majority renders the provocation exception indistinguishable from the initial aggressor exception,” she wrote.

The case is People v. Galvan. In both decisions, the justices grouped in the same coalitions, with Justice William W. Hood III in the majority in each instance.