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People v. Prieto4/21/2005
JUDGMENT AFFIRMED
Webb and Graham, JJ., concur
Defendant, Victor Prieto, appeals the judgment of conviction entered on a jury verdict finding him guilty of felony first degree murder, under the influence vehicular homicide, reckless vehicular homicide, second degree burglary, criminal mischief, and theft. We affirm.
On the night of the crime, defendant was in a vehicle that rammed the side of a store. Certain merchandise from the store was removed. Shortly thereafter, and while fleeing the burglary, the vehicle ran a stop sign in a nearby residential area and, going an estimated speed of fifty to sixty miles per hour, collided with a vehicle driven by the victim, killing her almost instantly.
Defendant, who suffered a broken leg, was taken by ambulance to the hospital and was treated for his injuries. The police investigator who accompanied defendant to the hospital observed slurred speech and a smell of alcohol on defendant. Blood alcohol tests revealed that defendant had a blood alcohol level of .134.
Defendant's primary defense was insufficient evidence that he was the driver. Defendant was convicted and sentenced to life in prison without parole for felony first degree murder. This appeal followed.
I.
Defendant initially asserts, as he did below, that his constitutional right to equal protection was violated because felony first degree murder carries a greater punishment than aggravated vehicular homicide even though they proscribe identical conduct. We disagree.
Equal protection of the law is guaranteed by the United States Constitution and by the Due Process Clause of the Colorado Constitution. U.S. Const. amend. XIV; Colo. Const. art. II, § 25. The United States Supreme Court has held that statutes proscribing identical conduct but authorizing different penalties are not violative of federal equal protection guarantees. United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). Because Colorado has taken a more expansive view, we analyze defendant's claim under the Colorado Constitution. See People v. Stewart, 55 P.3d 107 (Colo. 2002).
Equal protection assures like treatment to those who are similarly situated. People v. Mozee, 723 P.2d 117 (Colo. 1986). "When two criminal statutes prescribe different penalties for identical conduct, a defendant convicted and sentenced under the harsher statute is denied equal protection of the laws." People v. Mozee, supra, 723 P.2d at 126; see People v. Haymaker, 716 P.2d 110, 115 (Colo. 1986).
If, however, the statutory classifications of crimes are based upon differences that are both real in fact and reasonably related to the purposes of the legislation, equal protection principles are not offended. The General Assembly may establish harsher penalties for more egregious conduct even if the differences are only a matter of degree. People v. Mozee, supra. Furthermore, statutes that prescribe different sanctions for what ostensibly might be different acts, but offer no rational standard for distinguishing the disparate punishment, run counter to equal protection guarantees. People v. Wilhelm, 676 P.2d 702 (Colo. 1984). However, it is equally well established that a single act may violate more than one criminal statute. People v. Owens, 670 P.2d 1233 (Colo. 1983).
Colorado employs the elemental analysis in determining whether there is an equal protection violation. Under the elemental analysis, the issue is not whether there may be several offenses with differing penalties that might apply to the defendant's conduct and from which the prosecuting attorney may choose in making a charging decision, but w
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