noting that one division of the Colorado Court of Appeals is not obligated to follow the precedent established by another division but that the latter division gives the prior decision considerable deference
How later courts described this case
- noting that one division of the Colorado Court of Appeals is not obligated to follow the precedent established by another division but that the latter division gives the prior decision considerable deference
- holding that although one division is not bound by holdings of another division, “we give [prior] decisions considerable deference”
- stating that one division of the court of appeals is “not obligated to follow the precedent established by another division”
- stating that one division is not obligated to follow another division’s precedent
Written by the judges who cited it.
The opinion
JUDGE FURMAN
specially concurring.
¶26 I concur in the judgment. I write separately, however, because I think the strict elements test that was applied in Boulies v. People, 770 P.2d 1274, 1278-81 (Colo. 1989), is more appropriate for a case involving a greater offense statute that provides alternative bases for prosecution. In contrast, the strict elements test that was applied in Meads v. People, 78 P.3d 290, 294-95 (Colo.2003), is more appropriate for a case involving a greater offense statute that provides only a single basis for prosecution.
¶ 27 The court in Boulies determined it was necessary to analyze “the charges actually brought” before comparing the statutory elements of the offenses. 770 P.2d at 1280 . I think that analyzing the charges actually brought before conducting the strict elements test makes more sense in the current case because, in the vehicular- assault — DUI statute, the legislature has defined alternative .ways of- committing the offense. See § 18-3-205(l)(b)(I), C.R.S.2013; People v. Stewart, 56 P.3d 107 , 115 (Colo.2002) (distin *58 guished between the terms “drive” and “operate” in vehicular assault-DUI statute).
¶ 28 Moreover, our supreme court has determined that it may be appropriate to analyze the charges actually brought before conducting the strict elements test in eases other than those involving felony murders. See, e.g., People v. Harlan, 8 P.3d 448, 478 (Colo.2000) (in a case involving kidnapping, attempted first degree murder, and first degree murder, the court held that it may “consider the charging documents ... to determine if an offense is lesser included”), overruled on other grounds by People v. Miller, 113 P.3d 743, 748 (Colo.2005); People v. Leske, 957 P.2d 1030 , 1046 n. 8 (Colo.1998) (in a case involving, among other things, sexual assault on a child, the application of the strict elements test “may properly involve an examination of the charging documents”).
¶29 It was undisputed that the charges actually brought in this case alleged Smoots, while under the influence of alcohol, was driving a motor vehicle that struck the victim’s vehicle. Thus, I have no hesitation in concluding the DUI statute, section 42^4-1301(l)(a), C.R.S.2013, is a lesser included offense of the vehicular assault — DUI statute, section 18-3-205(l)(b)(I). See Brown v. Ohio, 432 U.S. 161, 168 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977) (“As is invariably true of a greater and lesser included offense, the lesser offense ... requires no proof beyond that which is required for conviction of the greater [offense].”).