September 22, 2014

Colorado Court of Appeals: Rioting Not Lesser Included Offense of Rioting in Detention Facility

The Colorado Court of Appeals issued its opinion in People v. Lacallo on Thursday, June 19, 2014.

Public Disturbance—Riot—Detention Facility—Lesser Included Offense—Crime of Violence—Sentence.

Defendant and other inmates refused to leave a common area of the Jefferson County jail and lockdown. Before being returned to their cells, they damaged the common area. During the disruption, visiting members of the public were evacuated from the jail.

On appeal, defendant asserted that the prosecution failed to prove a “public disturbance” under CRS § 18-9-101(2), because a detention facility is not a place open to the public. Defendant failed to preserve this argument in the trial court, so the Court of Appeals reviewed this challenge for plain error. No Colorado case has interpreted the phrase “public disturbance” under CRS § 18-9-101(2), and there are no Colorado cases that provide a commonly accepted definition for the term “public” that would have alerted the trial court to alleged error arising from defendant’s interpretation. Thus, because determining the meaning of “public disturbance” under existing Colorado authority would be difficult, “the alleged error cannot be regarded as plain or obvious.”

Alternatively, defendant contended that even if sufficient evidence supported his conviction for engaging in a riot, because it is a lesser included offense of rioting in a detention center, the convictions should merge. However, each of these two offenses requires proof of one element that the other does not. Under CRS § 18-8-211(1), the offender must have been confined in a detention facility. Under CRS § 18-9-104(1), the offender—who need not have been confined—must have caused a public disturbance. Thus, engaging in a riot is not a lesser included offense of rioting in a detention facility.

The Attorney General conceded defendant’s contention that the trial court erred by applying crime of violence for sentencing to his conviction for engaging in a riot. The trial court imposed a consecutive six-year sentence for engaging in a riot, after the prosecution told the court that this offense was a crime of violence. However, CRS § 18-9-104(1) does not define engaging in a riot as a crime of violence. Because neither an increased sentencing range nor a consecutive sentence was mandated, defendant’s entire sentence was vacated and the case was remanded for resentencing.

Summary and full case available here.

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