Opinion · Colorado Court Opinions

PEOPLE v. FLORES, 39 Colo. App. 556 (1977)

575 P.2d 11

Type: Opinion
Court: Colorado Court Opinions
Jurisdiction: Colorado
Date: 1977-08-04
Topic: general

PEOPLE v. FLORES, 39 Colo. App. 556 (1977) (575 P.2d 11) The People of the State of Colorado v. Raymond R. Flores No. 76-810Colorado Court of Appeals.

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PEOPLE v. FLORES,39 Colo. App. 556(1977)

(575 P.2d 11)

The People of the State of Colorado v. Raymond R. Flores

No. 76-810

Colorado Court of Appeals.

Decided August 4, 1977. Rehearing denied September 15, 1977. Certiorari

granted February 21, 1978.

Convicted of robbery, defendant appealed.Affirmed

1.CRIMINAL LAW—Preliminary Hearing — Represented by Counsel —Cross-Examined Victim — Admission of Transcript — No Violation — Right ofConfrontation.Where defendant was represented by counsel at preliminary hearing and his counsel did, during that hearing, cross-examine the victim with respect to the robbery of which defendant was charged, the trial court's subsequent admission of the transcript of that hearing into evidence at defendant's trial did not deprive defendant of his constitutional right of confrontation.

2.Third-Degree Assault — Not — Lesser-Included Offense — Robbery.Under the present statutes, third degree assault is not a lesser included offense of the crime of robbery.

3.Robbery — Shown by Uncontroverted Evidence — No Error — Refusal ofInstruction — Lesser Offense — Assault.Since uncontroverted evidence established that defendant had forcibly seized radio from victim and had then fled the scene, there was no rational basis for a verdict acquitting the defendant of robbery and convicting him of assault; hence, the trial court properly refused a request for an instruction on the lesser offense.

Appeal from the District Court of the City and County of Denver, Honorable Leonard P. Plank, Judge.

J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, J. Stephen Phillips, Chief, Criminal Appeals, for plaintiff-appellee.

Robert T. Page, for defendant-appellant.

Division I.

Page 557

Opinion by JUDGE COYTE.

The defendant, Raymond Flores, appeals the judgment of conviction on a charge of robbery. We affirm the judgment.

Asserting that he was denied his constitutional right of confrontation, defendant contends that the trial court erred in admitting into evidence the transcript of proceedings at the preliminary hearing in the case, which transcript contained the testimony of the victim of the robbery. The contention is without merit.

Defendant concedes that the witness, who was hospitalized at the time of the trial, was unavailable for the purpose of providing testimony. He maintains, however, that in view of the limited nature of preliminary hearings in this state,see Hunter v. District Court,190 Colo. 48,543 P.2d 1265(1975), he was denied the opportunity to confront and effectively cross-examine the witness.

Under certain circumstances, the admission into evidence of the prior recorded testimony of an unavailable witness is not constitutionally offensive.See, e.g., Mancusi v. Stubbs,408 U.S. 204,92 S.Ct. 2308,33 L.Ed.2d 293(1972);California v. Green,399 U.S. 149,90 S.Ct. 1930,26 L.Ed.2d 489(1970). And, inPeople v. Fink,37 Colo. App. 512,552 P.2d 529(1976), we held that where a defendant had the opportunity, and exercised his right, to cross-examine an adverse witness during a preliminary hearing, that witness' recorded testimony might be used as evidence at trial.[1]The transcript here reveals that defendant was represented by counsel at the preliminary hearing, and that his counsel did cross-examine the victim with respect to the alleged robbery. Accordingly, regardless of the fact that the preliminary hearing merely determined the existence of probable cause and the credibility of the witness was not in issue,Hunter v. District Court, supra, defendant was not deprived of any constitutional protections in connection with the testimony.People v. Fink, supra; see alsoCrim. P. 7(h)(3);People v.Salas,58 Cal. App.3d 460,129 Cal. Rptr. 871(1976).

II.

Defendant next maintains that the trial court erred in refusing his tendered instruction which would have informed the jury that defendant might be found guilty of the lesser included offense of third-degree assault rather than the crime of robbery. We disagree.

AlthoughPeople v. Stephens,188 Colo. 8,532 P.2d 728(1975) held that assault with intent to rob was a lesser included offense of aggravated robbery, that decision was based upon C.R.S. 1963, 40-2-34, which provisionPage 558is no longer in effect. The crime of assault was substantially redefined in 1973,People v. Marlott,191 Colo. 304,552 P.2d 491(1976), and the requisite identity of elements between the offenses of third degree assault, §18-3-204, C.R.S. 1973, and robbery, §18-4-301, C.R.S. 1973, does not exist under the present statutes.[2]Robbery is committed when a person "takes anything of value from the person or presence of another by the use of force, threats, or intimidation." Section18-4-301(1), C.R.S. 1973. In contrast, to the extent pertinent here, third degree assault occurs when a person "intentionally, knowingly, or recklessly causes bodily injury to another person." Section18-3-204, C.R.S. 1973. The latter statute requires proof of bodily injury, an element not necessary to culpability under the former, and therefore, the lesser offense is not included within the greater.People v. Rivera,186 Colo. 24,525 P.2d 431(1974).[3]Further, the uncontroverted evidence in this case establishes that defendant entered a local church and demanded money from the victim, a priest. When the victim refused to comply, defendant forcibly seized a transistor radio and fled. There being no rational basis in the evidence to support a verdict acquitting defendant of robbery and convicting him of third degree assault, the trial court properly refused to instruct the jury concerning the lesser offense.See§18-1-408(6), C.R.S. 1973;People v.Arispe,191 Colo. 555,555 P.2d 525(1976).

The judgment is affirmed.

JUDGE BERMAN and JUDGE KELLY CONCUR.Page 559