noting that a defendant is entitled to a lesser included offense instruction if there is a rational basis in the evidence to support a verdict acquitting him or her of a greater offense and convicting him or her of the lesser offense
How later courts described this case
- noting that a defendant is entitled to a lesser included offense instruction if there is a rational basis in the evidence to support a verdict acquitting him or her of a greater offense and convicting him or her of the lesser offense
- discharge of firearm, even though no person was injured, was use of deadly force
Written by the judges who cited it.
The opinion
Judge J. JONES,
specially concurring.
I concur in the result reached by the majority.. I specifically coneur in all parts of the majority opinion except part ILB.1. I write separately because it is not necessary for us to address the issue discussed in part II.B.1-whether defendant's reliance on a defense that he was not at all involved in the incident giving rise to the charges automatically disentitled him to instructions on lesser included offenses and voluntary intoxication-since it is clear that defendant was not entitled to such instructions on the state of the evidentiary record, as explained in part I1.B.2. Given the lack of any need to address that issue, as well as the difficulty of the issue; the uncertainty (in my view) of the appropriate resolution; the existence of authority from our appellate courts arguably conflicting with the majority's holding, eg., People v. Garcia, 826 P.2d 1259, 1262-64 (Colo.1992); People v. Chaves, 190 P.3d 760, 769-70 (Colo.App.2007); People v. Villarreal, 131 P.3d 1119, 1125 (Colo.App.2005); and the fact the parties' briefs do not address any authority from other jurisdictions (discussed at length by the majority), I do not think that this is a proper case to resolve it.