CO Code § 18-1.3-406 (2021)
2021 Colorado Code|Title 18 - Criminal Code|Article 1.3 - Sentencing in Criminal Cases|Part 4 - Sentences to Imprisonment|§ 18-1.3-406. Mandatory Sentences for Violent Crimes - Definitions

     Any person convicted of a crime of violence shall be sentenced pursuant to the provisions of section 18-1.3-401 (8) to the department of corrections for a term of incarceration of at least the midpoint in, but not more than twice the maximum of, the presumptive range provided for such offense in section 18-1.3-401 (1)(a), as modified for an extraordinary risk crime pursuant to section 18-1.3-401 (10), without suspension; except that, within ninety-one days after he or she has been placed in the custody of the department of corrections, the department shall transmit to the sentencing court a report on the evaluation and diagnosis of the violent offender, and the court, in a case which it considers to be exceptional and to involve unusual and extenuating circumstances, may thereupon modify the sentence, effective not earlier than one hundred nineteen days after his or her placement in the custody of the department. Such modification may include probation if the person is otherwise eligible therefor. Whenever a court finds that modification of a sentence is justified, the judge shall notify the state court administrator of his or her decision and shall advise said administrator of the unusual and extenuating circumstances that justified such modification. The state court administrator shall maintain a record, which shall be open to the public, summarizing all modifications of sentences and the grounds therefor for each judge of each district court in the state. Except as described in paragraph (c) of this subsection (1), a court shall sentence a person convicted of two or more separate crimes of violence arising out of the same incident so that his or her sentences are served consecutively rather than concurrently.    Notwithstanding the provisions of subsection (1)(a) of this section, any person convicted of a sex offense, as defined in section 18-1.3-1003 (5), committed on or after November 1, 1998, that constitutes a crime of violence shall be sentenced to the department of corrections for an indeterminate term of incarceration of at least the midpoint in the presumptive range specified in section 18-1.3-401 (1)(a)(V)(A) or 18-1.3-401 (1)(a)(V)(A.1) up to a maximum of the person's natural life, as provided in section 18-1.3-1004 (1).    The court may require a defendant to serve his or her sentences concurrently rather than consecutively if the defendant is convicted of two or more separate crimes of violence arising out of the same incident and one of such crimes is:   Aggravated robbery, as described in section 18-4-302;    Assault in the second degree, as described in section 18-3-203; or    Escape, as described in section 18-8-208.    Subparagraph (I) of this paragraph (a) applies to the following crimes:            committed, conspired to be committed, or attempted to be committed by a person during which, or in the immediate flight therefrom, the person:   Used, or possessed and threatened the use of, a deadly weapon; or    Caused serious bodily injury or death to any other person except another participant.   Any crime against an at-risk adult or at-risk juvenile;    Murder;    First or second degree assault;    Kidnapping;    A sexual offense pursuant to part 4 of article 3 of this title;    Aggravated robbery;    First degree arson;    First degree burglary;    Escape;            “Crime of violence” also means any unlawful sexual offense in which the defendant caused bodily injury to the victim or in which the defendant used threat, intimidation, or force against the victim. For purposes of this subparagraph (I), “unlawful sexual offense” shall have the same meaning as set forth in section 18-3-411 (1), and “bodily injury” shall have the same meaning as set forth in section 18-1-901 (3)(c). (b) (I) “Crime of violence” also means any unlawful sexual offense in which the defendant caused bodily injury to the victim or in which the defendant used threat, intimidation, or force against the victim. For purposes of this subparagraph (I), “unlawful sexual offense” shall have the same meaning as set forth in section 18-3-411 (1), and “bodily injury” shall have the same meaning as set forth in section 18-1-901 (3)(c).    The provisions of subparagraph (I) of this paragraph (b) shall apply only to felony unlawful sexual offenses.       As used in this section, “at-risk adult” has the same meaning as set forth in section 18-6.5-102 (2), and “at-risk juvenile” has the same meaning as set forth in section 18-6.5-102 (4).       In any case in which the accused is charged with a crime of violence as defined in subsection (2)(a) of this section, the indictment or information shall so allege in a separate count, even though the use or threatened use of such deadly weapon or infliction of such serious bodily injury or death is not an essential element of the crime charged.    The jury, or the court if no jury trial is had, in any case as provided in subsection (3) of this section shall make a specific finding as to whether the accused did or did not use, or possessed and threatened to use, a deadly weapon during the commission of such crime or whether such serious bodily injury or death was caused by the accused. If the jury or court finds that the accused used, or possessed and threatened the use of, such deadly weapon or that such injury or death was caused by the accused, the penalty provisions of this section shall be applicable.    In any case in which the accused is charged with a crime of violence as defined in subsection (2)(b)(I) of this section, the indictment or information shall so allege in a separate count, even though the use of threat, intimidation, or force or the infliction of bodily injury is not an essential element of the crime charged.    The jury, or the court if no jury trial is had, in any case as provided in subsection (5) of this section shall make a specific finding as to whether the accused did or did not use threat, intimidation, or force during the commission of such crime or whether such bodily injury was caused by the accused. If the jury or court finds that the accused used threat, intimidation, or force or that such bodily injury was caused by the accused, the penalty provisions of this section shall be applicable.      In any case in which the accused is charged with a crime of violence as defined in this section and the indictment or information specifies the use of a dangerous weapon as defined in sections 18-12-101 and 18-12-102, or the use of a semiautomatic assault weapon as defined in paragraph (b) of this subsection (7), upon conviction for said crime of violence, the judge shall impose an additional sentence to the department of corrections of five years for the use of such weapon. The sentence of five years shall be in addition to the mandatory sentence imposed for the substantive offense and shall be served consecutively to any other sentence and shall not be subject to suspension or probation.    For the purposes of this subsection (7), “semiautomatic assault weapon” means any semiautomatic center fire firearm that is equipped with a detachable magazine with a capacity of twenty or more rounds of ammunition.        (J) Criminal extortion; or   (K) First or second degree unlawful termination of pregnancy.   History. Source: L. 2002: Entire article added with relocations, p. 1403, § 2, effective October 1. L. 2003: (1), (2)(a)(II)(E), and (7)(a) amended, pp. 1424, 1432, §§ 3, 21, effective April 29. L. 2004: (1) amended, p. 634, § 2, effective August 4. L. 2012: (1)(a) amended,(SB 12-175), ch. 208, p. 865, § 110, effective July 1. L. 2013: (2)(c) amended,(SB 13-111), ch. 233, p. 1127, § 11, effective May 16; (2)(a)(II)(I) and (2)(a)(II)(J) amended and (2)(a)(II)(K) added,(HB 13-1154), ch. 372, p. 2193, § 7, effective July 1. L. 2016: (3) and (5) amended,(SB 16-189), ch. 210, p. 760, § 29, effective June 6; (1)(a) amended and (1)(c) added,(SB 16-051), ch. 85, p. 241, § 1, effective July 1; IP(1)(c) amended,(SB 16-189), ch. 210, p. 798, § 124, effective July 1. L. 2018: (1)(b) amended,(HB 18-1029), ch. 153, p. 1087, § 3, effective April 23.    Editor's note:   This section is similar to former § 16-11-309 as it existed prior to 2002.   Cross references:    For the sentencing of a defendant for multiple counts arising from the same act, see § 18-1-408 (3).    For the legislative declaration in the 2013 act amending subsections (2)(a)(II)(I) and (2)(a)(II)(J) and adding subsection (2)(a)(II)(K), see section 1 of chapter 372, Session Laws of Colorado 2013. For the legislative declaration in the 2013 act amending subsection (2)(c), see section 1 of chapter 233, Session Laws of Colorado 2013.     ANNOTATION   Law reviews. For article, “Colorado Felony Sentencing”, see 11 Colo. Law. 1478 (1982). For article, “Review of New Legislation Relating to Criminal Law”, see 11 Colo. Law. 2148 (1982). For article, “Colorado Felony Sentencing -- an Update”, see 14 Colo. Law. 2163 (1985). For article, “Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986”, which discusses a case relating to mandatory sentencing, see 15 Colo. Law. 1605 (1986). For article, “The Definition of ‘Deadly Weapon' Under the Colorado Criminal Code”, see 15 Colo. Law. 1663 (1986). For article, “Sentencing Dilemmas”, see 29 Colo. Law. 67 (Oct. 2000). For article, “Criminal Sentencing in Colorado After Blakely v. Washington”, see 34 Colo. Law. 85 (Jan. 2005). For article, “Adult Parole in Colorado: An Overview”, see 44 Colo. Law. 37 (May 2015). For article, “Exceeding Presumptive Maximum Sentences in Colorado”, see 44 Colo. Law. 43 (Dec. 2015).   Annotator's note. Since § 18-1.3-406 is similar to § 16-11-309 as it existed prior to the 2002 relocation of certain criminal sentencing provisions, relevant cases construing that provision have been included in the annotations to this section.   Under former language of subsection (1)(a) and (b) which existed prior to 1988, subsection (1)(a) and (b) was constitutional, and did not violate equal protection clause since the two paragraphs could be harmonized and the difference between the two paragraphs was rationally related to a legitimate state interest in preventing crimes of violence and crimes against the elderly and handicapped. People v. Wells, 775 P.2d 563 (Colo. 1989), cert. denied, 783 P.2d 1223 (Colo. 1989).   1988 amendment to subsection (1)(a), changing “two” to “two or more,” worked a substantive change in the law and did not merely clarify intent of prior version of statute. Robles v. People, 811 P.2d 804 (Colo. 1991).   The general assembly intended that this section define sentencing standards rather than create a substantive offense by its placement among other sections relating to sentencing. Brown v. District Court, 194 Colo. 45 , 569 P.2d 1390 (1977).   The general assembly intended subsection (1) to authorize only one sentence reduction by the court, after its receipt of the diagnostic report filed by department of corrections upon the defendant's placement there. People v. Belgard, 58 P.3d 1077 (Colo. App. 2002).   More than one sentence reduction is not permitted by this section read in conjunction with Crim. P. 35. Although multiple sentence reductions are permitted under Crim. P. 35 if the sentence is reduced to a term within statutory limits, more than one sentence reduction under this section would be outside the statutory limits. People v. Belgard, 58 P.3d 1077 (Colo. App. 2002).   Where a person is initially sentenced pursuant to this section to a term of incarceration greater than the maximum in the presumptive range as the result of the conviction of such person of a crime of violence, such sentence may nonetheless be modified below the maximum presumptive terms if the court finds that “unusual and extenuating circumstances” justify such modification. People v. Beyer, 793 P.2d 644 (Colo. App. 1990) (decided under prior law).   The defendant is convicted of “separate” crimes when guilt for each crime is established by different evidence. In such case, the court must impose consecutive, rather than concurrent, sentences. People v. Hahn, 813 P.2d 782 (Colo. App. 1991).   When each crime is a separate crime of violence, this section requires the court to impose consecutive sentences for each offense. People v. Trujillo, 114 P.3d 27 (Colo. App. 2004).   In addition to consecutive sentences for separate crimes of violence, the court, pursuant to subsection (7), is required to impose an additional five-year sentence for each crime of violence involving the use of a semiautomatic assault weapon. People v. Trujillo, 114 P.3d 27 (Colo. App. 2004).   Trial court is required to impose consecutive sentences for defendant's convictions of first and second degree assault where convictions do not merge and the evidence supporting the respective convictions was not identical. People v. Martinez, 1 P.3d 192 (Colo. App. 1999).   When determining whether to sentence two crimes of violence consecutively or concurrently in relation to § 18-4-108 , the determining factor is whether the evidence supporting the convictions is identical. If the evidence supporting the convictions is not identical, the sentences are consecutive. People v. Jurado, 30 P.3d 769 (Colo. App. 2001).   Imposition of consecutive sentences proper when defendant shot multiple victims in one incident since each separate shot warranted separate counts of attempted first degree extreme indifference murder and defendant was convicted of two counts of attempted first degree extreme indifference murder. People v. Ellis, 30 P.3d 774 (Colo. App. 2001).   Imposition of consecutive sentences improper. The trial court erred in imposing consecutive rather than concurrent sentences when jury may have relied upon the same evidence to convict defendant on each charge. People v. Page, 907 P.2d 624 (Colo. App. 1995), overruled in People v. Muckle, 107 P.3d 380 (Colo. 2005).   When a defendant is convicted of two or more crimes of violence arising out of the same incident, the court must sentence the defendant to consecutive sentences. People v. Hogan, 114 P.3d 42 (Colo. App. 2004).   The phrase “arising out of the same incident” is a reference to, and has the same meaning as, the phrase “arising from the same criminal episode” in § 18-1-408 (2) . Because defendant's crimes were not “based on the same act or series of acts arising from the same criminal episode”, the court was not required to impose consecutive sentences. Rather, the court was required to exercise its discretion concerning the imposition of consecutive or concurrent sentences. Marquez v. People, 2013 CO 58, 311 P.3d 265.   This section does not require consecutive sentences unless the defendant is convicted of two separate crimes of violence, charged and proven as separate counts. The court was not required to impose consecutive sentences when one of the crimes of violence was proven as a predicate offense for the other. People v. Halstead, 881 P.2d 401 (Colo. App. 1994).   Court not required to impose consecutive sentences under this section when it is unclear whether convictions for four counts of sexual assault on a child occurred during a single incident or multiple incidents. People v. Woellhaf, 87 P.3d 142 (Colo. App. 2003), rev'd on other grounds, 105 P.3d 209 (Colo. 2005); People v. Simon, 100 P.3d 487 (Colo. App. 2004).   The imposition of concurrent sentences circumvents the requirement of this section that the sentences run consecutively. People v. Beyer, 793 P.2d 644 (Colo. App. 1990).   Court is not required to impose consecutive sentences under this section if the crimes do not arise out of the same incident. Where there were two different victims in offenses separated both by time and physical location, the crimes did not arise out of the same incident. People v. Smith, 881 P.2d 385 (Colo. App. 1994).   “Incident” refers to events that are not separated by time or an intervening event. People v. Woellhaf, 87 P.3d 142 (Colo. App. 2003), rev'd on other grounds, 105 P.3d 209 (Colo. 2005).   The evidence tends to show the individual acts of sexual contact occurred over a long period of time, thus the court erred in finding they were part of the same incident and required consecutive sentencing. People v. Bobrik, 87 P.3d 865 (Colo. App. 2003).   Statute only requires imposition of two consecutive sentences. It is within the trial court's discretion to decide whether a defendant convicted of more than two separate crimes of violence should serve more than two of the sentences consecutively. People v. Luu, 813 P.2d 826 (Colo. App. 1991).   When the defendant requests a proportionality review of consecutive sentences imposed under this section, the court is required to review the proportionality of each individual sentence, not the cumulative sentence. The cumulative sentence is not reviewable in the aggregate. Since each sentence represents punishment for a distinct and separate crime, it follows that a separate proportionality review should be completed for each sentence, even though the defendant is required to serve the sentences consecutively. Close v. People, 48 P.3d 528 (Colo. 2002).   Where defendant was convicted of multiple crimes of violence, the court of appeals was required to conduct a proportionality review, upon the defendant's request, of the consecutive sentence imposed for the crimes of violence, even though the statute mandates that the sentences be consecutive. Because the statutory mandate strips the trial court of discretion in sentencing and removes the trial court's ability to assess the proportionality of the sentences imposed, the court of appeals must conduct a separate abbreviated proportionality review. Close v. People, 48 P.3d 528 (Colo. 2002).   Given the requirement that the court give great deference to legislatively mandated sentencing schemes and given the nature of the defendant's crimes and the sentences imposed, the court found no inference of gross disproportionality and upheld defendant's 60-year sentence for aggravated robbery and assault. The 10-year sentence imposed for each count of aggravated robbery did not give rise to an inference of gross disproportionality where aggravated robbery is a per se grave or serious offense. The court found that the crime of assault was grave or serious where the defendant, using a stick, caused bruises and lacerations requiring stitches. The legislatively mandated sentence of five years for each count of assault was also not grossly disproportional to the offense. Close v. People, 48 P.3d 528 (Colo. 2002).   No preliminary hearing is required for a charge under this section. Brown v. District Court, 194 Colo. 45 , 569 P.2d 1390 (1977).   A preliminary hearing must be granted under this section when a defendant is charged by information with a class 4 felony committed as a “crime as violence” as defined in subsection (2)(a)(I)(B) and (2)(a)(II)(C), whether or not the defendant would actually be subject to mandatory sentencing for a crime of violence. People v. Austin, 2018 CO 47, 419 P.3d 587.   Mandatory sentences for violent crimes do not violate separation of powers doctrine; the judiciary is not granted the absolute right to determine punishment in every case. People v. Childs, 199 Colo. 436 , 610 P.2d 101 (1980).   Nor equal protection clause. The statute providing mandatory sentences for violent crimes does not violate the equal protection clause by exempting attempted crimes from its enhanced penalties. The general assembly could rationally determine that since an attempt normally involves less severe consequences than are typical of a completed crime, attempts should not be included. People v. Childs, 199 Colo. 436 , 610 P.2d 101 (1980).   A sentence imposed beyond the presumptive range for a defendant convicted of both first degree sexual assault with a deadly weapon and a crime of violence does not deny equal protection of law since it cannot be said that the sentencing statutes permit different degrees of punishment for persons in the defendant's situation. People v. Haymaker, 716 P.2d 110 (Colo. 1986).   A rational distinction exists in the sentencing scheme for people convicted of first degree sexual assault with a deadly weapon in contrast to convictions of the same crime without a deadly weapon since the legislature could rationally perceive that use of a deadly weapon during the course of such an assault is more reprehensible and dangerous than commission of such a crime without a deadly weapon. People v. Haymaker, 716 P.2d 110 (Colo. 1986).   Defendant's sentencing in the aggravated range for a crime of violence based on the use of a deadly weapon during the commission of first degree assault does not violate the guarantee of equal protection of the laws. People v. Collins, 730 P.2d 293 (Colo. 1986); People v. Montoya, 736 P.2d 1208 (Colo. 1987).   Mandating sentencing requirement for the crime of violence specified in this section does not deny the defendant his right to equal protection because the sentencing requirement does not permit different degrees of punishment for persons in defendant's situation. People v. Chavez, 730 P.2d 321 (Colo. 1986).   Enhanced crime of violence sentence on conviction for pattern of sexual assault on a child does not violate defendant's due process and equal protection guarantees. Prosecution not required to charge and prove a separate crime of violence count pursuant to subsections (4) and (5) for per se crimes of violence even though the elements of the pattern sentence enhancer do not overlap with the elements of a crime of violence. People v. Brown, 70 P.3d 489 (Colo. App. 2002).   When the crime of violence statute is superimposed on convictions for both aggravated robbery and simple robbery, there are real differences between the two forms of robbery. These differences provide substantial support for the disparate penalty applicable to a crime of violence finding which is superimposed on a conviction for aggravated robbery, and such does not violate equal protection of the laws. People v. Young, 758 P.2d 667 (Colo. 1988).   Since the general assembly could have rationally decided that violent crimes committed as part of the same incident pose a greater threat to society than the same criminal conduct committed separately in different violent criminal episodes and since differing punishments have a reasonable relationship to the prevention of crime, the consecutive sentencing provision of subsection (1)(a) does not violate the constitutional requirements of equal protection of the law. People v. Fuller, 791 P.2d 702 (Colo. 1990).   Convictions for violent crime and underlying offense not double jeopardy. Conviction for “crime of violence” for use of deadly weapon during commission of substantive offenses, in addition to conviction of substantive crimes, did not violate double jeopardy clause because legislature intended to authorize punishment for crime of violence cumulative to punishment for underlying substantive offense. People v. Goodman, 733 P.2d 1204 (Colo. 1987).   Defendant's aggravated sentence did not violate Apprendi principles. Although the sentencing range was beyond the maximum, the enhancement did not require any proof beyond the elements of the charged offenses which were necessarily proved beyond a reasonable doubt. People v. Hogan, 114 P.3d 42 (Colo. App. 2004).   Increase in penalty imposed pursuant to § 18-3-202 does not violate equal protection. Mandatory sentencing beyond the presumptive range in § 18-3-202 , imposed pursuant to this section, does not violate equal protection even though one of the elements of first degree assault was use of deadly weapon. People v. Montoya, 736 P.2d 1208 (Colo. 1987).   The trial court appropriately increased the maximum presumptive penalty based on § 18-1-105 (9.7)(a) before applying the presumptive penalty provisions applicable to crimes of violence under this section. Thus, this section permits a doubling of the maximum penalty that is already increased under § 18-1-105 (9.7)(a) for certain extraordinary risk crimes. People v. Greymountain, 952 P.2d 829 (Colo. App. 1997).   The legislature's intent was to treat this section not as a sentence-enhancing statute but as a presumptive penalty statute. People v. Terry, 791 P.2d 374 (Colo. 1990).   Imposition of a 25-year sentence for second degree murder committed in the heat of passion was not abuse of discretion, because it is a per se crime of violence under subsection (1) and an extraordinary risk of harm crime pursuant to § 18-1-105 (9.7); thus, the presumptive sentencing range was 10 to 32 years and the trial court was required to sentence defendant to a term of incarceration of at least the midpoint in the presumptive range, but not more than twice the maximum presumptive term for the offense. People v. Martinez, 32 P.3d 582 (Colo. App. 2001).   Court did not erroneously permit the jury to consider the crime of violence count after it found the defendant guilty of second degree murder committed in the heat of passion. Second degree murder is a per se crime of violence, even if committed in the heat of passion and defendant was properly sentenced according to this section. People v. Roadcap, 78 P.3d 1108 (Colo. App. 2003).   Stipulation by attorney that a guilty verdict to aggravated robbery also established that the defendant was guilty of a crime of violence did not violate the defendant's rights in that the jury returned a verdict form which showed it found the defendant placed another in fear by use of a deadly weapon and in that defendant failed to show how a special interrogatory could have produced a different result. People v. McMullen, 738 P.2d 23 (Colo. App. 1986).   Violent crime sentencing for patterned enhanced counts of sexual assault on a child by one in a position of trust only apply to offenses committed on or after July 1, 1998. People v. Bobrik, 87 P.3d 865 (Colo. App. 2003).   Although a conviction for sexual assault on a child as part of a pattern of abuse requires violent crime sentencing, that fact does not make it a violent crime as defined in this section. People ex rel. A.B.-B., 215 P.3d 1205 (Colo. App. 2009).   Where the defendant is not convicted of a crime of violence, the enhanced sentencing provisions of this section are not applicable. People v. Van Patrick, 789 P.2d 199 (Colo. App. 1989).   When the statute defining an offense does not prescribe crime of violence sentencing for the offense, the prosecution must meet the pleading and proof requirements specified in subsections (4) and (5) in order for the defendant to be sentenced for a crime of violence. If the statute defining the offense specifically requires crime of violence sentencing, the prosecution need not allege and prove the elements of a crime of violence, as described in this section. People v. Banks, 9 P.3d 1125 (Colo. 2000).   Where the defendant is sentenced for a crime of violence and the prosecution has not been required to comply with subsections (4) and (5) due to mandatory sentencing provisions in the statute describing the crime, the defendant is not subject to the extraordinary risk sentencing provisions of § 18-1-105 (9.7). Extraordinary risk sentencing applies only where the defendant is convicted of a crime of violence, as described in this section. This means that the prosecution must have followed the requirements of subsections (4) and (5). People v. Banks, 9 P.3d 1125 (Colo. 2000).   When defendant is convicted of a crime of violence under this section for a crime that also constitutes an extraordinary risk crime, the presumptive range is first increased pursuant to § 18-1-105 (9.7)(a) before it is doubled pursuant to this section. People v. Mata, 56 P.3d 1169 (Colo. App. 2002).   Separate sentence improper. A separate sentence imposed for the crime of violence is improper and must be vacated. People v. Espinoza, 669 P.2d 142 (Colo. App. 1983), aff'd, 712 P.2d 476 (Colo. 1985).   This statute is not ambiguous. It clearly mandates that a defendant's sentences, whatever length they may be, must run consecutively to each other. People v. Lanari, 926 P.2d 116 (Colo. App. 1996).   Sentencing is discretionary act that is not subject to scientific precision. People v. Warren, 200 Colo. 110 , 612 P.2d 1124 (1980).   Public interest in safety and deterrence is proper focal point of sentencing decision in crimes of grave personal violence or abuse, particularly when committed by a repeat-offender. People v. Warren, 200 Colo. 110 , 612 P.2d 1124 (1980).   Extended sentence must be clearly justified. When a sentence of an extended duration is imposed, the record must establish a clear justification in fact for the trial judge's action. People v. Warren, 200 Colo. 110 , 612 P.2d 1124 (1980).   Robbery as used in violent offender statute includes both simple robbery (§ 18-4-301 ) and aggravated robbery (§ 18-4-302 ). People v. Eggers, 196 Colo. 349 , 585 P.2d 284 (1978).   Second degree murder is a per se crime of violence, even if committed in the heat of passion. People v. Darbe, 62 P.3d 1006 (Colo. App. 2002).   Criminally negligent homicide is not a per se crime of violence and merely alleging use of a deadly weapon as part of the factual basis does not satisfy the requirement of the crime of violence statute. People v. Vickers, 168 P.3d 9 (Colo. App. 2007).   Discretionary sentencing of juveniles not affected. The general assembly did not automatically intend to repeal the special provision for discretionary sentencing of juveniles, § 19-1-104 , by the enactment of this section. People v. District Court, 196 Colo. 249 , 585 P.2d 913 (1978).   Accessory may be punished as principal. An accessory to a crime of violence as defined by subsection (2) may be charged, tried and punished as a principal. People v. Swanson, 638 P.2d 45 (Colo. 1981).   Requirement of specific findings by jury. An instruction by the trial court regarding the elements of a crime of violence, combined with a general verdict form does not meet the requirement of this section. Where the statute requires the jury to make specific findings, the court must submit special interrogatories, which elicit the required findings. People v. Grable, 43 Colo. App. 518, 611 P.2d 588 (1979).   The special finding serves as the basis for the mandatory sentence which must be imposed on the defendant's conviction for the separately charged offense, and does not constitute a separate felony conviction. People v. Russo, 713 P.2d 356 (Colo. 1986).   Focus of subsection (5) is on whether the instructions and verdict forms adequately inform the jury that it must find beyond a reasonable doubt that the defendant committed the underlying substantive offense and used, or possessed and threatened to use, a deadly weapon during the commission or attempted commission of the offense. People v. Griffin, 867 P.2d 27 (Colo. App. 1993).   Requirement of specific findings not applied retroactively. Where defense counsel did not object to the verdict forms and there is no showing of harm from the form of the verdict, the requirement that the court submit special interrogatories to the jury will not be applied retroactively. People v. Swanson, 638 P.2d 45 (Colo. 1981).   The holding of People v. Swanson that the special interrogatory requirement would not be applied retroactively is extended to the area of postconviction relief. Stroup v. People, 656 P.2d 680 (Colo. 1982).   Unusual and extenuating circumstances warranting sentence reduction found where record showed evidence of defendant's abusive family situation and mental problems, and where defendant had no previous convictions, had been a model prisoner, and with regular medical drug treatment, could lead a normal life. People v. Byrum, 784 P.2d 817 (Colo. App. 1989).   Court not required to hold hearing to modify a sentence. This section does not mandate a specific review procedure. People v. Olivas, 911 P.2d 675 (Colo. App. 1995).   It was not improper for trial court to consider during sentencing that violent crimes have a greater public impact in small rural communities than in larger urban ones since a sentencing court should always consider the interests of the public involved and this factor was not decisive of the court's decision. People v. Palmer, 888 P.2d 348 (Colo. App. 1994).   There are no conditions sufficient for a finding of aggravating circumstances in a criminal sentencing where evidence only shows each element of the crime charged. People v. Janke, 720 P.2d 613 (Colo. App. 1986).   When enhancement of sentence is plain error. Where a defendant is convicted of first-degree murder, and the mittimus reads that he was found to have committed a “crime of violence”, but the jury was not instructed on the elements of crime of violence nor given a separate verdict form or interrogatory as required, enhancement of sentence for having committed a crime of violence would be plain error. The cause must be remanded for correction of the mittimus to show conviction of first-degree murder only, and for imposition of sentence on that crime only. People v. Thrower, 670 P.2d 1251 (Colo. App. 1983).   When the trial court properly instructs the jury regarding the required, specific finding of fact under the crime-of-violence statute, but the verdict form fails to contain the mandatory language, the jury's resulting finding is inconclusive and inconsistent, and this incongruity constitutes trial error. Because the verdict form misstated an element of the crime-of-violence offense and there was contested evidence at trial, there is a reasonable possibility that the error in the verdict form contributed to the defendant's sentence. Lehnert v. People, 244 P.3d 1180 (Colo. 2010).   Penalty for first degree assault committed in “heat of passion”. Where a defendant charged with first degree assault can establish that he acted in the “heat of passion”, he cannot constitutionally receive a greater penalty than he would have received had he been convicted of manslaughter. People v. Grable, 43 Colo. App. 518, 611 P.2d 588 (1979); People v. Harris, 797 P.2d 816 (Colo. App. 1990).   Defendant waived notice pursuant to subsection (4) when defendant tendered an instruction for a lesser included offense which was a crime of violence. People v. Williams, 23 P.3d 1229 (Colo. App. 2000).   Verdict of not guilty of “crime of violence” not inconsistent with guilty verdicts on other charges. Guilty verdicts on the charges of first-degree sexual assault, sexual assault on a child and aggravated incest are not inconsistent as a matter of law with a jury finding of not guilty on a charge of “crime of violence”. People v. Fierro, 199 Colo. 215 , 606 P.2d 1291 (1980).   Burden of proof. Like charges under the habitual criminal statute, the people bear the burden of proving the material elements of violent crime beyond a reasonable doubt and a jury should be so instructed. People v. Russo, 677 P.2d 386 (Colo. App. 1983), rev'd on other grounds, 713 P.2d 356 (Colo. 1986).   Mere threatened use of deadly weapon is not sufficient evidence for successful prosecution for violent crime. People v. Janke, 720 P.2d 613 (Colo. App. 1986).   The term “participant”, for purposes of subsection (2)(a)(I), refers to a person who culpably engages in the offensive conduct and not to the victim of the criminal act. People v. Chavez, 730 P.2d 321 (Colo. 1986).   Crime of violence may be committed by use of a deadly weapon during the commission of a second-degree assault, and by causing serious bodily injury to another other than the defendant or another participant during the commission or attempted commission of second-degree assault or during the immediate flight therefrom. People v. Chavez, 730 P.2d 321 (Colo. 1986).   Sufficient finding by jury regarding use of deadly weapon to support conviction under violent crime statute. People v. Powell, 716 P.2d 1096 (Colo. 1986).   Conviction for conspiracy to commit aggravated robbery, as defined in § 18-4-302 (1)(b) , necessarily requires crime of violence sentencing. People v. Terry, 961 P.2d 500 (Colo. App. 1997), aff'd, 977 P.2d 145 (Colo. 1999).   Fifteen- to 20-year sentence was not excessive for aggravated robbery and a crime of violence. People v. Colasanti, 626 P.2d 1136 (Colo. 1981).   Under § 18-2-201 (4.5), conspiracy to commit a per se crime of violence is itself a crime of violence to which the sentence enhancing provisions of this section apply. Terry v. People, 977 P.2d 145 (Colo. 1999).   Defendant convicted of conspiracy cannot be sentenced pursuant to this section because conspiracy is not specifically included among offenses statutorily defined as crimes of violence. People v. Flores, 757 P.2d 159 (Colo. App. 1988) (decided prior to the enactment of subsection (4.5)).   Attempted first degree murder is not a statutory crime of violence, therefore, without either a guilty verdict on a separate crime of violence pursuant to this section or a finding of statutory aggravating factors pursuant to §§ 18-1-105 (6) , 18-1-105 (7) , and 18-1-105 (9) , the imposition of an aggravated range sentence for the class 2 felony of attempted first degree murder was error. People v. Webster, 987 P.2d 836 (Colo. App. 1998).   Using section as a basis for sentencing a defendant convicted of a crime not enumerated in section is error. People v. Hare, 782 P.2d 831 (Colo. App. 1989), aff'd on other grounds, 800 P.2d 1317 (Colo. 1990).   Where both the violent crimes statute and the habitual criminal statute apply, the sentencing provisions of both statutes apply and a judge must impose the defendant's sentences to run consecutively. People v. Pena, 794 P.2d 1070 (Colo. App. 1990).   The consecutive sentencing requirement of subsection (1)(a) does not conflict with the sentencing provisions of the habitual criminal statute, § 18-1.3-801 , so the sentencing court must give effect to both by imposing a sentence within the range required by the habitual criminal statute and then requiring that the sentences for two separate crimes of violence arising from the same incident be served consecutively. People v. Chavez, 2020 COA 80 M, __ P.3d __.   Consecutive sentencing requirement in section (1)(a) is not preempted by the sentencing provisions of the habitual criminal statute, § 18-1.3-801 . People v. Lowe, 2020 COA 116 , __ P.3d __.   Attempted second degree murder is not a crime of violence “as defined in” this section, so it is not subject to extraordinary risk sentencing in § 18-1.3-401 (10) . The offense does not have an element that meets the definitional criteria in this section. People v. Baca, 2015 COA 153 , 378 P.3d 780.   If different evidence is required to establish guilt of each of the multiple offenses, they are “separate” crimes for purposes of this statute. People v. Wilson, 841 P.2d 337 (Colo. App. 1992).   Where information charged only one crime of violence and did not include a separate crime of violence count for each of the three victims but did inform the defendant that enhanced sentencing was sought and alleged sufficient facts for defendant to prepare an adequate defense, the information was sufficient to support the imposition of three consecutive life sentences. People v. Pena, 794 P.2d 1070 (Colo. App. 1990).   Where defendant did not challenge the sufficiency of the information, jury completed only one verdict form finding that defendant did use or possess and threaten the use of a deadly weapon during the commission of the crime of criminal attempt first degree murder or criminal attempt second degree murder, and only one crime of violence count was plead and proven but defendant was convicted of two counts of criminal attempt to commit first degree extreme indifference murder, defendant waived right to challenge the sufficiency of the language in the information and was not entitled to resentencing. People v. Ellis, 30 P.3d 774 (Colo. App. 2001).   The term “incident” in subsection (1) means an occurrence taking place as part of a larger continuum or happening or related group of happenings subordinate to a main plot, including a series of acts committed in close proximity or a chain of events forming a part of a schematic whole. People v. Beyer, 768 P.2d 746 (Colo. App. 1988); People v. Trujillo, 860 P.2d 542 (Colo. App. 1992).   Remand for resentencing was required where the trial court, which imposed 20-year consecutive sentences for each robbery, failed to determine whether two aggravated robberies were separate incidents. People v. Trujillo, 860 P.2d 542 (Colo. App. 1992).   Phrase “at least” in § 16-11-309 (1) does not require the court to set the minimum length of the indeterminate sentence at the midpoint of the presumptive range. The court may impose a minimum length to the indeterminate sentence that is greater than the midpoint of the presumptive range. People v. Becker, 55 P.3d 246 (Colo. App. 2002).   Sections 16-11-309 (1)(c) and 18-1-105 (9) (e.5) conflict irreconcilably with § 16-13-804 (1)(b) . The phrase “up to the defendant's natural life” in §§ 16-11-309 (1)(c) and 18-1-105 (9) (e.5) conflicts with the phrase “a maximum of the sex offender's natural life” in § 16-13-804 (1)(b) . Statutory construction calls for § 16-13-804 (1)(b) to prevail, requiring the court to set the maximum length of the indeterminate sentence at the defendant's natural life. People v. Becker, 55 P.3d 246 (Colo. App. 2002).   A conviction for a sex offense that requires crime of violence sentencing does not require the prosecution to prove aggravating circumstances to support a bottom-end sentence in the aggravated range. Hunsaker v. People, 2015 CO 46, 351 P.3d 388.   The bottom end of an indeterminate sentence for a sex offense that is also a crime of violence is between the midpoint and twice the maximum of the presumptive range. People v. Hunsaker, 2013 COA 5 , 411 P.3d 36, aff'd, 2015 CO 46, 351 P.3d 388.   If the court sentences a defendant above the maximum of the presumptive range for a sex offense that is also a crime of violence, the prosecution does not have to establish aggravating circumstances to support sentencing above the maximum range. People v. Hunsaker, 2013 COA 5 , 411 P.3d 36, aff'd, 2015 CO 46, 351 P.3d 388.   When a defendant is convicted of a sex offense that is also a crime of violence, the defendant must be sentenced to an indeterminate sentence of incarceration with a minimum term in the enhanced sentencing range set forth in subsection (1)(b). Chavez v. People, 2015 CO 62, 359 P.3d 1040.   A defendant who is subject to subsection (1)(b) because he or she committed a crime of violence and a sex offense under the Colorado Sex Offender Lifetime Supervision Act of 1998, is not eligible to have his or her sentence of an indeterminate term of incarceration modified to probation under subsection (1)(a). People v. Al-Turki, , 454 P.3d 261, aff'd by an equally divided court, 2019 CO 77, 449 P.3d 373 .   Whether inmate is convicted of any crime enumerated in subsection (2) of this section is determinative as to how inmate is classified for eligibility for referral to community corrections pursuant to § 17-27-106 (4) . McKinney v. Kautzky, 801 P.2d 508 (Colo. 1990).   Jury finding that burglary and sexual assault were crimes of violence made this section applicable and court imposition of mandatory sentence correct. People v. Fishback, 829 P.2d 489 (Colo. App. 1991), aff'd, 851 P.2d 884 (Colo. 1993).   Definition of “crime of violence” in § 16-11-309 applies in determining when a convicted person is eligible for parole under § 17-22.5-303.3 (1) . Busch v. Gunter, 870 P.2d 586 (Colo. App. 1993).   Crimes of violence include attempts of the crimes listed in subsection (2)(a)(II). People v. Laurson, 70 P.3d 564 (Colo. App. 2002).   Even though defendant was not charged with a crime of violence under this section, the trial court found sufficient aggravating factors to support an enhanced, 48-year sentence for second degree kidnapping. People v. Smith, 881 P.2d 385 (Colo. App. 1994).   In bringing a motion for reduction of sentence under this section, defendant is subject to the procedures and time frames set forth in rule 35 of the criminal rules of procedure. This section alone merely authorizes a court to reduce a mandatory sentence imposed for a crime of violence, but a motion for reduction of sentence is not separately authorized in statute and is therefore subject to the provisions of rule 35. People v. Williams, 908 P.2d 1157 (Colo. App. 1995).   Trial court imposed an illegal sentence by refusing to sentence defendant for crime of violence when the defendant was convicted of first degree arson. First degree arson with fire may be charged, and a defendant may be convicted of a crime of violence where the prosecution proves to the jury beyond a reasonable doubt that the fire used by defendant was capable of producing death or serious bodily injury. People v. Magana, 2020 COA 148 , __ P.3d __.   Trial court erred in concluding that it was statutorily required to impose consecutive sentences. Defendant's convictions were not supported by identical evidence and arose out of different incidents. Under the circumstances, defendant was subject to concurrent or consecutive sentencing, in the court's discretion. People v. Wiseman, 2017 COA 49 M, 413 P.3d 233.   Applied in People v. Smith, 195 Colo. 404 , 579 P.2d 1129 (1978); People v. Warren, 196 Colo. 75 , 582 P.2d 663 (1978); People v. Girard, 196 Colo. 68 , 582 P.2d 666 (1978); People v. Vigil, 43 Colo. App. 121, 602 P.2d 884 (1979); People v. Swain, 43 Colo. App. 343, 607 P.2d 396 (1979); People in Interest of R.R., 43 Colo. App. 208, 607 P.2d 1013 (1979); People v. Martinez, 43 Colo. App. 419, 608 P.2d 359 (1979); Watson v. District Court, 199 Colo. 76 , 604 P.2d 1165 (1980); People v. Hardin, 199 Colo. 229 , 607 P.2d 1291 (1980); People v. Cabral, 629 P.2d 575 (Colo. 1981); People v. Lichtenstein, 630 P.2d 70 (Colo. 1981); People v. Francis, 630 P.2d 82 (Colo. 1981); People v. Valencia, 630 P.2d 85 (Colo. 1981); People v. Jones, 631 P.2d 1132 (Colo. 1981); People v. Flowers, 644 P.2d 916 (Colo. 1982); People v. Gallegos, 644 P.2d 920 (Colo. 1982); People v. Constant, 645 P.2d 843 (Colo. 1982); People v. Garries, 645 P.2d 1306 (Colo. 1982); People v. Bookman, 646 P.2d 924 (Colo. 1982); People v. Bueno, 646 P.2d 931 (Colo. 1982); People v. Hogan, 649 P.2d 326 (Colo. 1982); People v. Aragon, 653 P.2d 715 (Colo. 1982); People v. Ferguson, 653 P.2d 725 (Colo. 1982); Watkins v. People, 655 P.2d 834 (Colo. 1982); People v. Dillion, 655 P.2d 841 (Colo. 1982); People v. Cooper, 662 P.2d 478 (Colo. 1983); People v. District Court, 663 P.2d 616 (Colo. 1983); People v. Smith, 709 P.2d 4 (Colo. App. 1985); Rocha v. People, 713 P.2d 350 (Colo. 1986); People v. Sanders, 717 P.2d 948 (Colo. 1986); People v. Wieghard, 743 P.2d 977 (Colo. App. 1987); People v. Zapata, 759 P.2d 754 (Colo. App. 1988), aff'd on other grounds, 779 P.2d 1307 (Colo. 1989); People v. Guevara, 775 P.2d 74 (Colo. App. 1989), cert. denied, 786 P.2d 411 (Colo. 1989); People v. O'Shaughnessy, 275 P.3d 687 (Colo. App. 2010), aff'd, 2012 CO 9, 269 P.3d 1233; People v. Herdman, 2012 COA 89 , 310 P.3d 170.