v. Slaughter

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
February 21, 2019

2019COA27

No. 18CA0842, People v. Slaughter — Constitutional Law —
Colorado Constitution — Equal Protection; Crimes — Assault in
the Second Degree; Criminal Law — Sentencing — Mandatory
Sentences for Violent Crimes

A division of the court of appeals considers whether charging a

defendant with second degree assault by strangulation under

section 18-3-203(1)(i), C.R.S. 2018, with a crime of violence

sentence enhancer under section 18-1.3-406(2)(a)(I)(A), C.R.S.

2018, violates a defendant’s equal protection rights under the

Colorado Constitution. The division concludes that it does.

Under the Colorado Constitution, if two criminal statutes

provide for different penalties for identical conduct, a person

convicted under the statute with the harsher penalty is denied
equal protection of the laws unless there are reasonable differences

or distinctions between the prohibited behaviors.

The division reviews the disparate sentences available for

identical strangulation conduct and concludes that, because there

is no intelligible standard for distinguishing between the prohibited

acts under section 18-3-203(1)(b), on the one hand, and the

prohibited acts under section 18-3-203(1)(i) when charged with a

crime of violence sentence enhancer, on the other hand, the

prosecution’s attempt to charge defendant with the latter

combination violates equal protection. Thus, the prosecution’s

attempt to charge defendant with the combination of section 18-3-

203(1)(i) with a crime of violence sentence enhancer under section

18-1.3-406(2)(a)(I)(A) would be unconstitutional as applied to him.
COLORADO COURT OF APPEALS 2019COA27

Court of Appeals No. 18CA0842
Arapahoe County District Court No. 16CR2045
Honorable Andrew C. Baum, Judge

The People of the State of Colorado,

Plaintiff-Appellant,

v.

Darius Javonmarquise Slaughter,

Defendant-Appellee.

ORDER AFFIRMED

Division I
Opinion by JUDGE TERRY
Taubman and Fox, JJ., concur

Announced February 21, 2019

George H. Brauchler, District Attorney, Jacob Edson, Chief Deputy District
Attorney, Centennial, Colorado, for Plaintiff-Appellant

Megan A. Ring, Colorado State Public Defender, Jessica Sommer, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellee
¶1 A prosecutor seeking to charge an accused with felony

strangulation has multiple charging options available under

Colorado criminal statutes.

¶2 The crime can be charged under the first degree assault

statute, section 18-3-202(1)(g), C.R.S. 2018. To obtain a conviction

under that statute, the prosecution would have to prove that the

accused caused serious bodily injury to the victim.

¶3 If the prosecution wants to dispense with the requirement to

prove serious bodily injury, it can charge the accused under the

second degree assault statute, section 18-3-203, C.R.S. 2018. Two

charging options are available for a strangulation crime under that

statute, neither of which would require proof of serious bodily

injury: under subsection (1)(b) or under subsection (1)(i).

¶4 A charge under subsection (1)(b) would require proof of use of

a deadly weapon. Unless charged with a crime of violence sentence

enhancer, a strangulation charge under subsection (1)(i) would not

require proof of use of a deadly weapon.

¶5 As we will discuss, the penalty available for a strangulation

charged under subsection (1)(i) if charged as a crime of violence

under section 18-1.3-406(2)(a)(I)(A), C.R.S. 2018, is substantially

1
more severe than if an accused is charged merely under subsection

(1)(b), even though conviction for both crimes would require proof of

use of a deadly weapon.

¶6 The prosecution charged defendant, Darius Javonmarquise

Slaughter, with strangulation under the second degree assault

statute, section 18-3-203(1)(i). If it were allowed to charge

Slaughter under subsection (1)(i) and also charge a sentence

enhancer under the crime of violence sentencing statute, such

charging would subject him to harsher and disparate sentencing, as

compared with other persons accused of engaging in the same

conduct, based solely on the prosecution’s charging decision. Thus,

his right to equal protection under the Colorado Constitution would

be violated. For that reason, we conclude that the district court did

not err in denying the prosecution’s motion to add a charge under

the crime of violence statute, and we affirm the court’s order

dismissing the added crime of violence charge.

I. Procedural History

¶7 The People filed this interlocutory appeal in accordance with

section 16-12-102(1), C.R.S. 2018, and C.A.R. 4(b)(3). The

prosecution charged Slaughter with second degree assault by

2
strangulation under section 18-3-203(1)(i) for allegedly strangling

the victim with his hands. The People later moved to add a new

count under the crime of violence sentencing statute, section 18-

1.3-406(2)(a)(I)(A), based on their assertion that Slaughter used his

hands as a deadly weapon.

¶8 Though the trial court initially granted the motion, it later

reconsidered that ruling on Slaughter’s motion and dismissed the

charged sentence enhancer. The court reasoned that, as applied to

Slaughter, such a charge violated his right to equal protection of the

laws guaranteed by the Colorado Constitution.

II. Constitutional and Statutory Background

¶9 Under the Fourteenth Amendment to the United States

Constitution, no state shall “deny to any person within its

jurisdiction the equal protection of the laws.” U.S. Const. amend.

XIV, § 1.

¶ 10 In harmony with the Federal Constitution, our supreme court

has held that the right to equal protection of the laws is included

within due process of law as provided in article II, section 25, of the

Colorado Constitution. People v. Marcy, 628 P.2d 69, 83 (Colo.

1981). Even so, distinguishing United States v. Batchelder, 442

3
U.S. 114 (1979), which construed the Federal Constitution, the

court in Marcy emphasized that, under the Colorado Constitution,

“equal protection of the laws requires that statutory classifications

of crimes be based on differences that are real in fact and

reasonably related to the general purposes of criminal legislation.”

Marcy, 628 P.2d at 74. In this respect, equal protection under the

Colorado Constitution is more far-reaching than it is under the

Federal Constitution. Slaughter argues an equal protection

violation only under the Colorado Constitution.

¶ 11 Equal protection of the law assures that those who are

similarly situated will be afforded like treatment. People v. Mozee,

723 P.2d 117, 126 (Colo. 1986). When two criminal statutes

provide different penalties for identical conduct, a defendant is

denied equal protection under the law if he is convicted under the

harsher statute. Id. And, “when separate statutes prescribe

different penalties for what ostensibly might be different acts but

offer no intelligent standard for distinguishing between and among

these acts, those statutes deny equal protection under the law.”

People v. Griego, 2018 CO 5, ¶ 35 (citing Marcy, 628 P.2d at 75).

4
¶ 12 Under the Colorado Constitution, “if a criminal statute

[provides] different penalties for identical conduct, a person

convicted under the harsher penalty is denied equal protection

unless there are reasonable differences or distinctions between the

proscribed behavior[s].” People v. Stewart, 55 P.3d 107, 114 (Colo.

2002).

¶ 13 In keeping with Colorado’s equal protection guarantee, we

scrutinize the statute under which defendant was charged, as well

as the statute under which the prosecution seeks to charge him

and the broader statutory scheme, to determine whether these

standards are met.

III. Standards of Review and Principles of Statutory Construction

¶ 14 We review the constitutionality of statutes de novo. Colo.

Union of Taxpayers Found. v. City of Aspen, 2018 CO 36, ¶ 13.

Statutes are presumed constitutional, id., and a party challenging

the constitutionality of a statute must prove unconstitutionality

beyond a reasonable doubt, TABOR Found. v. Reg’l Transp. Dist.,

2018 CO 29, ¶ 15.

¶ 15 We construe defendant’s arguments as raising a challenge to

the relevant statutes as applied to the prosecution’s charging

5
decision. To prevail on an as-applied constitutional challenge, the

challenging party must establish that the statute is

unconstitutional under the circumstances in which the plaintiff has

acted or proposes to act. Qwest Servs. v. Blood, 252 P.3d 1071,

1085 (Colo. 2011).

¶ 16 The interpretation of sections 18-3-203(1)(i) and 18-1.3-

406(2)(a)(I)(A) is a question of law which we review de novo. Cowen

v. People, 2018 CO 96, ¶ 11. When interpreting a statute, our

primary purpose is to ascertain and give effect to the General

Assembly’s intent. Id. We start by examining the plain meaning of

the statutory language. Id. We give consistent effect to all parts of

the statute and construe each provision in harmony with the overall

statutory design. Id., ¶ 13.

IV. The Disparate Charging Options Available for the Same
Strangulation Conduct Render the Statutory Scheme
Ambiguous

¶ 17 Before 2016, a prosecutor seeking to charge an accused for

strangulation of a victim could charge under the first degree assault

6
statute, section 18-3-202. Subsection (1)(a) of that statute

provided, and still provides:

(1) A person commits the crime of assault in the
first degree if:
(a) With intent to cause serious bodily injury to
another person, he causes serious bodily
injury to any person by means of a deadly
weapon[.]

§ 18-3-202(1)(a) (emphasis added).

¶ 18 Also before 2016, a prosecutor seeking to charge an accused

for strangulation of a victim under the second degree assault

statute was limited to charging under subsections (1)(b), (1)(d), or

(1)(g) of section 18-3-203(1), C.R.S. 2015, each of which also

required either proof of use of a deadly weapon or the infliction of

bodily injury.

¶ 19 In 2016, the General Assembly amended the second degree

assault statute to add the provision under which defendant was

charged. Ch. 327, sec. 1, § 18-3-203, 2016 Colo. Sess. Laws 1328.

That section states that a person commits second degree assault if,

[w]ith the intent to cause bodily injury, he or
she applies sufficient pressure to impede or
restrict the breathing or circulation of the
blood of another person by applying such
pressure to the neck or by blocking the nose or

7
mouth of the other person and thereby causes
bodily injury.

§ 18-3-203(1)(i). Thus, for the first time, an accused could be

charged with felony assault for strangulation without the need for

the prosecution to prove use of a deadly weapon or serious bodily

injury.

¶ 20 The prosecution now seeks to add a charge against Slaughter

under the crime of violence sentencing statute, section 18-1.3-

406(2)(a)(I)(A) and (II)(C), based on the use of his hands as a deadly

weapon. As we have noted above, the prosecution, at least in

theory, could have charged him with second degree assault (not

specifying acts amounting to strangulation) under section 18-3-

203(1)(b).

¶ 21 Subsection (1)(b) provides that a person commits second

degree assault if, “[w]ith intent to cause bodily injury to another

person, he or she causes such injury to any person by means of a

deadly weapon.” (Emphasis added.) An accused convicted under

subsection (1)(b) is subject to sentencing under the crime of

violence sentencing statute, but with an important difference: under

the legislature’s 2016 amendment to section 18-3-203(2)(c)(II),

8
“notwithstanding the provisions of [the crime of violence sentencing

statute], the court is not required to sentence the defendant

[convicted under subsection (1)(b)] to the department of corrections

for a mandatory term of incarceration.” § 18-3-203(2)(c)(II).

¶ 22 As a result, a person convicted under subsection (1)(b) would

be subject to potentially lighter sentencing — even to probation —

than the prosecution seeks to impose here if Slaughter is convicted

under subsection (1)(i), even though a subsection (1)(b) offense is a

per se crime of violence.

¶ 23 Given the potential for disparate charges and sentencing

arising from the exact same conduct, we conclude that the interplay

between sections 18-3-203(1)(b), 18-3-203(1)(i), and 18-1.3-

406(2)(a)(I) renders ambiguous the statutory scheme for the

charging and sentencing of second degree assault by strangulation.

¶ 24 We therefore review the legislative history of the 2016

amendments to determine the legislative intent behind these

statutes. See People in Interest of M.W., 796 P.2d 66, 68 (Colo. App.

1990) (statute susceptible of more than one interpretation must be

construed in light of its legislative intent and purpose); see also

Farmers Ins. Exch. v. Bill Boom Inc., 961 P.2d 465, 470 (Colo. 1998)

9
(to determine legislative intent, an appellate court may consider the

textual context, the statute’s legislative history, the state of the law

before the legislative enactment, the problem addressed by the

legislation, and the relationship between the particular legislation

and other relevant legislative provisions).

V. Legislative History of 2016 Amendments

¶ 25 Section 18-3-203(1)(i) originated as House Bill 16-1080.

Statements from the Legislative Council Staff Research Note

accompanying the bill show that the legislature intended the new

strangulation subsection to institute a change from prosecutors’

past practice. See Gen. Assemb. Legis. Council, Research Note for

H.B. 1060, 70th Gen. Assemb., 2d Reg. Sess. (2016). Before the

passage of House Bill 16-1080 and Senate Bill 16-102 in 2016,

prosecutors charged strangulation under section 18-3-203(1)(b), see

Assault by Strangulation: Hearing on H.B. 16-1080 before the H.

Judiciary Comm., 70th Gen. Assemb., 2d Reg. Sess. (Feb. 9, 2016)

(statement of Mark Hurlbert, Assistant Arapahoe County District

Attorney), which at that time carried with it crime of violence

sentencing, including mandatory minimums.

10
¶ 26 According to testimony before the General Assembly in 2016,

the requirement to prove that hands were deadly weapons under

subsection (1)(b) was seen as an impediment to proving that an

accused who committed strangulation through the use of hands

had committed a felony. Particularly in more rural jurisdictions,

prosecutors had difficulty obtaining expert testimony that would be

necessary to establish that a defendant’s hands were used as a

deadly weapon so that a felony level crime could be proved. Assault

by Strangulation: Hearing on H.B. 16-1080 before the H. Judiciary

Comm., 70th Gen. Assemb., 2d Reg. Sess. (Feb. 9, 2016) (statement

of Mark Hurlbert, Assistant Arapahoe County District Attorney). As

a result, strangulation offenses were resulting in convictions only

for a class 1 misdemeanor under the third degree assault statute,

section 18-3-204, C.R.S. 2018, or for a municipal code violation.

See Assault by Strangulation: Hearing on H.B. 16-1080 before the H.

Judiciary Comm., 70th Gen. Assemb., 2d Reg. Sess. (Feb. 9, 2016)

(statement of Rep. Mike Foote, sponsor of H.B. 16-1080).

¶ 27 A perception emerged that a serious form of domestic violence

was not resulting in appropriately severe sentencing. See Assault

by Strangulation: Hearing on H.B. 16-1080 before the S. Judiciary

11
Comm., 70th Gen. Assemb., 2d Reg. Sess. (Apr. 27, 2016)

(statement of Rep. John Cooke, Member, S. Judiciary Comm.,

sponsor of H.B. 16-1080) (“We want to increase this to a felony[.]”);

see also Assault by Strangulation: Hearing on H.B. 16-1080 before

the H. Judiciary Comm., 70th Gen. Assemb., 2d Reg. Sess. (Feb. 9,

2016) (statement of Rep. Mike Foote, sponsor of H.B. 16-1080).

¶ 28 Reflecting these concerns, the legislature amended the first

and second degree assault statutes. New statutory language was

proposed to deal specifically with strangulation, resulting in the

enactment of section 18-3-202(1)(g) and section 18-3-203(1)(i).

¶ 29 The new addition to the first degree assault statute

criminalizes strangulation that is done “[w]ith the intent to cause

serious bodily injury” and also “causes serious bodily injury.” § 18-

3-202(1)(g).

¶ 30 More of interest to us here, section 18-3-203(1)(i) for the first

time specifically included acts that amount to strangulation in the

second degree assault statute. One of the bill’s sponsors pointed

out that “[t]he elements [of section 18-3-203(1)(i)] don’t require the

finding of hands as a deadly weapon.” Assault by Strangulation:

Hearing on H.B. 16-1080 before the H. Judiciary Comm., 70th Gen.

12
Assemb., 2d Reg. Sess. (Feb. 9, 2016) (statement of Rep. Mike

Foote, sponsor of H.B. 16-1080).

¶ 31 Also unlike section 18-3-202(1)(g), section 18-3-203(1)(i) does

not mention the element of serious bodily injury.

¶ 32 While House Bill 16-1080 was the impetus for the addition of

the first and second degree assault by strangulation crimes in

sections 18-3-202(1)(g) and 18-3-203(1)(i), Senate Bill 16-102

eliminated mandatory minimum sentences for certain other second

degree assault crimes in section 18-3-203(2)(c)(II). The legislative

history does not answer whether the legislature intended the

sentencing disparities that would result for strangulation crimes

based on a prosecutor’s charging decisions, or whether the 2016

General Assembly simply ran out of time during the legislative

session to reconcile the House and Senate bills before their

enactment. In the legislature’s discussion of these bills, we find no

mention of whether a prosecutor could add a crime of violence

sentence enhancer or whether doing so would cause an equal

protection problem.

¶ 33 In any event, the legislature did not demonstrate a clear intent

to prevent the prosecution from charging subsection (1)(i) with a

13
crime of violence sentence enhancer pursuant to section 18-1.3-

406(2)(a)(I)(A). Thus, it would be permissible under the statutory

scheme to do as the People request — to charge defendant with a

crime of violence sentence enhancer — unless such charging would

result in an equal protection violation.

¶ 34 We turn next to whether such a violation would arise if the

People were allowed to so charge Slaughter.

VI. Strangulation Charges Under Sections 18-3-202(1)(g), 18-3-
203(1)(b), and 18-3-203(1)(i)

¶ 35 It is important to the analysis here that, unlike subsection

(1)(b) of the second degree assault statute, which requires proof that

an accused intentionally caused bodily injury to another person “by

means of a deadly weapon,” § 18-3-203(1)(b), subsection (1)(i) allows

a conviction of second degree assault by strangulation without

requiring proof of use of a deadly weapon.

¶ 36 A prosecutor anticipating difficulty in proving serious bodily

injury may avoid charging strangulation under the first degree

assault statute and opt instead to bring charges under the second

degree assault statute, which requires only proof of bodily injury.

And a charge under section 18-3-203(1)(i) would not require proof of

14
use of a deadly weapon, unless a crime of violence sentence

enhancer is also charged.

A. Comparative Sentencing Options for Strangulation Charges

¶ 37 We now delve deeper into the sentencing discrepancies created

by the statutory scheme, with an eye toward how those

discrepancies affect equal protection analysis.

1. Equal Protection Standards

¶ 38 To determine whether the charging of a crime violates the

defendant’s right to equal protection of the laws guaranteed by the

Colorado Constitution, we begin by examining the conduct

prohibited by the applicable criminal statutes. See Stewart, 55 P.3d

at 114-18; Marcy, 628 P.2d at 73-82. We examine the statutory

language of the described crimes to determine if the conduct they

address contains differences that are both real in fact and

reasonably related to the general purposes of criminal legislation.

Marcy, 628 P.2d at 74.

¶ 39 If criminal statutes provide for different penalties for identical

conduct, a person convicted under the statute with the harsher

penalty is denied equal protection unless there are reasonable

15
differences or distinctions between the prohibited behaviors. People

v. Richardson, 983 P.2d 5, 6-7 (Colo. 1999).

2. Discussion

¶ 40 As mentioned above, second degree assault by strangulation

under section 18-3-203(1)(i), when charged with a crime of violence

sentence enhancer based on the use of a deadly weapon under

section 18-1.3-406(2)(a)(I)(A), carries with it a harsher penalty than

does a charge of second degree assault causing bodily injury with a

deadly weapon under section 18-3-203(1)(b). Even though the

prosecution in both instances would have to present proof of use of

a deadly weapon, the former offense, when charged as a crime of

violence, subjects a defendant to a much harsher penalty than does

the latter offense.

¶ 41 We conclude that the conduct prohibited by subsection (1)(i)

when charged with the crime of violence sentence enhancer, as

compared with the conduct prohibited by subsection (1)(b), lacks

differences that are both real in fact and reasonably related to the

general purposes of criminal legislation.

16
a. Second Degree Assault by Strangulation Without Crime of
Violence Charges

¶ 42 Given the current statutory scheme, an accused charged

under the second degree assault statute with use of a deadly

weapon (not specifying strangulation) under section 18-3-203(1)(b),

and without crime-of-violence sentence enhancement, is eligible for

a flexible sentencing range that includes an option for probation.

See § 18-3-203(2)(c)(II) (For such a crime, “the court is not required

to sentence the defendant to the department of corrections for a

mandatory term of incarceration.”).

¶ 43 Without crime of violence sentence enhancement, an accused

charged and convicted under section 18-3-203(1)(i), even though not

charged as having used a deadly weapon, is eligible for a

presumptive sentence ranging from two to eight years of

imprisonment. See § 18-1.3-401(1)(a)(V)(A), (1)(b)(XVIII), (10)(a),

C.R.S. 2018. Still, such an accused can be eligible for sentencing

below that presumptive range, as provided in section 18-1.3-401(6),

and could be sentenced instead to probation.

17
b. With Crime of Violence Charges

¶ 44 If — as the prosecution seeks to do here — an accused is

charged with both strangulation under the second degree assault

statute, section 18-3-203(1)(i), and with a crime of violence

sentence enhancer under section 18-1.3-406(2)(a)(I)(A) and

(2)(a)(II)(C), and the jury finds against the accused on both charges,

the sentencing range does not include a probation option.

¶ 45 The minimum sentence for such a conviction would be five

years, and the maximum sentence would be increased to sixteen

years. See § 18-1.3-406(1)(a) (requiring mandatory minimum

sentencing to incarceration for persons convicted of crimes of

violence, ranging from “at least the midpoint in, but not more than

twice the maximum of, the presumptive range provided for such

offense in section 18-1.3-104(1)(a), as modified for an extraordinary

risk crime pursuant to section 18-1.3-401(10), without

suspension”); § 18-1.3-406(7) (requiring sentencing court to add five

years for conviction of crime of violence, consecutive to any other

sentence).

18
c. Comparison of Sentencing Outcomes

¶ 46 Clearly, the sentence for the crime of strangulation under the

second degree assault statute, section 18-3-203(1)(i), if charged

with a crime of violence sentence enhancer, is substantially harsher

even than one charged under section 18-3-203(1)(b), which requires

use of a deadly weapon. We next consider whether it is an equal

protection violation to allow such disparate sentencing results

based solely on a prosecutor’s charging decision.

B. Equal Protection Violation Based on Disparate Treatment

¶ 47 Courts have an obligation “to ‘avoid interpretations that invoke

constitutional deficiencies.’” Catholic Health Initiatives Colo. v. City

of Pueblo, Dep’t of Fin., 207 P.3d 812, 822 (Colo. 2009) (quoting

Adams Cty. Sch. Dist. No. 50 v. Heimer, 919 P.2d 786, 792 (Colo.

1996)). “[A]n evenhanded application of the law turns on

reasonably intelligible standards of criminal culpability.” Marcy,

628 P.2d at 80. As a result, any definition of a crime “must be

sufficiently coherent and discrete that a person of

average intelligence can reasonably distinguish it from conduct

proscribed by other offenses.” Id. at 80-81.

19
¶ 48 As demonstrated by the sentencing scenarios discussed above,

the prosecution’s decision to try to charge defendant with second

degree assault by strangulation under section 18-3-203(1)(i) with

the crime of violence sentence enhancer for use of his hands as

deadly weapons, if agreed to by the court, would put him in a

position to receive a much harsher sentence than if he had just

been charged with second degree assault using his hands as deadly

weapons under section 18-3-203(1)(b). This creates the potential

for greatly disparate treatment of defendants facing strangulation

charges where it is alleged that their hands were used as deadly

weapons. See People v. Mumaugh, 644 P.2d 299, 301 (Colo. 1982)

(To allow a defendant “to suffer a more severe penalty for conduct

indistinguishable from that which carries a lesser penalty violates

equal protection of the laws.”).

¶ 49 The People have not shown how anything other than the

prosecutor’s charging decision could be used to justify disparate

sentences for two defendants who engaged in precisely the same

conduct.

¶ 50 The requirement of equal protection that the differences in

prohibited conduct must be “real in fact” is meant to exclude

20
differences that are merely technical, conceptual, or semantic. See

Marcy, 628 P.2d at 78 (proscribed conduct “without a sufficiently

pragmatic difference” is insufficient in equal protection inquiry);

People v. Calvaresi, 188 Colo. 277, 281-82, 534 P.2d 316, 318

(1975) (“Classification of persons under the criminal law must be

under legislation that is reasonable and not arbitrary,” and, to

comport with equal protection, a difference in sentencing regimes

must not rest on “shifting sands of semantics.”).

¶ 51 To allow such disparate results in outcomes for strangulation

cases, given no meaningful distinction in the criminal conduct and

based solely on the prosecutor’s inclination to charge in a particular

manner, is indeed to deny equal protection of the law. The potential

for disparate charging decisions causes the statutory classification

of these crimes to lack “differences that are real in fact and

reasonably related to the general purposes of criminal legislation.”

Marcy, 628 P.2d at 71, 74 (finding equal protection violation where

“the crime of first degree murder by extreme indifference [was] not

sufficiently distinguishable from second degree murder to warrant

the substantial differential in penalty authorized by the statutory

scheme”).

21
¶ 52 We therefore conclude that, as applied to the circumstances

here, where the prosecution seeks to charge Slaughter with

strangulation under section 18-3-203(1)(i) together with the crime

of violence sentence enhancer under section 18-1.3-406(2)(a)(I)(A),

such charging would cause a violation of defendant’s right to equal

protection of the laws, and thus would be unconstitutional.

VII. Deference to Prosecutorial Discretion is Unwarranted When
Such Discretion Results in an Equal Protection Violation

¶ 53 The People rely on section 18-1-408(7), C.R.S. 2018, which

codifies the concept of prosecutorial discretion. That section

provides:

If the same conduct is defined as criminal in
different enactments or in different sections of
this code, the offender may be prosecuted
under any one or all of the sections or
enactments subject to the limitations provided
by this section. It is immaterial to the
prosecution that one of the enactments or
sections characterizes the crime as of lesser
degree than another, or provides a lesser
penalty than another, or was enacted by the
general assembly at a later date than another
unless the later section or enactment
specifically repeals the earlier.

§ 18-1-408(7).

22
¶ 54 Courts are “properly hesitant to examine the decision whether

to prosecute.” Wayte v. United States, 470 U.S. 598, 607-08 (1985)

(explaining why the prosecution’s charging decisions are

“particularly ill-suited to judicial review”).

¶ 55 People v. Bagby, 734 P.2d 1059, 1061-62 (Colo. 1987),

discussed factors to be considered by a court in determining

whether the legislature’s enactment of a specific statute precludes

prosecution under a general statute. Id. Because it did not discuss

equal protection, however, Bagby is not instructive in this context,

and we look, instead, to our supreme court’s precedent regarding

the limits imposed on prosecutorial discretion by equal protection

requirements.

¶ 56 Though prosecutors generally have discretion in charging

decisions, we agree with the district court that the prosecution is

not permitted to charge an accused in a manner that would result

in a violation of equal protection if the defendant were found guilty

and sentenced to a harsher penalty than another accused might

receive for identical assault conduct. See Stewart, 55 P.3d at 118

(“Generally, the prosecution has discretion to determine what

charges to file when a defendant’s conduct violates more than one

23
statute. See § 18-1-408(7), 6 C.R.S. (2001). There are certain

circumstances in which this general rule does not apply.” (citing

People v. Smith, 938 P.2d 111, 115-16 (Colo. 1997); Bagby, 734

P.2d at 1061-62)).

¶ 57 As the supreme court said in Griego, “when separate statutes

prescribe different penalties for what ostensibly might be different

acts but offer no intelligent standard for distinguishing between and

among these acts, those statutes deny equal protection under the

law.” Griego, ¶ 35.

¶ 58 “[T]o overcome a challenge under the equal protection

clause, the statutory classification [of crimes] must turn on

‘reasonably intelligible standards of criminal culpability,’ and any

definition of a crime must be ‘sufficiently coherent and discrete that

a person of average intelligence can reasonably distinguish it from

conduct proscribed by other offenses.’” Id. at ¶ 36 (quoting Marcy,

628 P.2d at 80-81).

¶ 59 As in Griego, identical behavior could result in different

charging decisions and “dramatically different punishments.” Id. at

¶ 38. If defendant A engages in an act of strangulation and is

charged with second degree assault with a deadly weapon for the

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use of his hands under subsection (1)(b), but is eligible for

probation, while defendant B is charged under subsection (1)(i) with

assault with a deadly weapon by strangulation with his hands as a

deadly weapon, but is eligible only for a minimum sentence of five

years in prison because the crime was charged with a crime of

violence sentence enhancer, defendant B’s right to equal protection

is violated because there is no intelligible standard for

distinguishing between the prohibited acts.

¶ 60 The prosecution cannot rely on its prosecutorial discretion to

sidestep Slaughter’s equal protection challenge.

VIII. “Inherent Deadliness”

¶ 61 Slaughter points out the inherent deadliness of the

strangulation conduct described by section 18-3-203(1)(i). But to

resolve the equal protection violation raised in this case, we do not

need to address his assertion that all cases of strangulation are

committed with a deadly weapon. The potential we have described

for disparate sentencing treatment of persons accused and

convicted of strangulation, based solely on prosecutorial discretion,

is enough by itself to establish the equal protection violation of

which defendant complains.

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IX. Conclusion

¶ 62 We conclude that the combination of the prosecution’s charge

against Slaughter under section 18-3-203(1)(i) and the crime of

violence charge under section 18-1.3-406(2)(a)(I)(A) renders these

statutory provisions unconstitutional as applied to him. Because of

this equal protection violation, the prosecution’s motion to charge

him with a crime of violence sentence enhancer under section 18-

1.3-406(2)(a)(I)(A) should have been denied, and we affirm the

district court’s order dismissing the added crime of violence count.

JUDGE TAUBMAN and JUDGE FOX concur.

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