CO Code § 18-1-408 (2021)
2021 Colorado Code|Title 18 - Criminal Code|Article 1 - Provisions Applicable to Offenses Generally|Part 4 - Rights of Defendant|§ 18-1-408. Prosecution of Multiple Counts for Same Act

  When any conduct of a defendant establishes the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not be convicted of more than one offense if:   One offense is included in the other, as defined in subsection (5) of this section; or    One offense consists only of an attempt to commit the other; or    Inconsistent findings of fact are required to establish the commission of the offenses; or    The offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct; or    The offense is defined as a continuing course of conduct and the defendant's course of conduct was uninterrupted, unless the law provides that specific periods or instances of such conduct constitute separate offenses.       If the several offenses are actually known to the district attorney at the time of commencing the prosecution and were committed within the district attorney's judicial district, all such offenses upon which the district attorney elects to proceed must be prosecuted by separate counts in a single prosecution if they are based on the same act or series of acts arising from the same criminal episode. Any offense not thus joined by separate count cannot thereafter be the basis of a subsequent prosecution; except that, if at the time jeopardy attaches with respect to the first prosecution against the defendant the defendant or counsel for the defendant actually knows of additional pending prosecutions that this subsection (2) requires the district attorney to charge and the defendant or counsel for the defendant fails to object to the prosecution's failure to join the charges, the defendant waives any claim pursuant to this subsection (2) that a subsequent prosecution is prohibited.    When two or more offenses are charged as required by subsection (2) of this section and they are supported by identical evidence, the court upon application of the defendant may require the state, at the conclusion of all the evidence, to elect the count upon which the issues shall be tried. If more than one guilty verdict is returned as to any defendant in a prosecution where multiple counts are tried as required by subsection (2) of this section, the sentences imposed shall run concurrently; except that, where multiple victims are involved, the court may, within its discretion, impose consecutive sentences.    When a defendant is charged with two or more offenses based on the same act or series of acts arising from the same criminal episode, the court, on application of either the defendant or the district attorney, may order any such charge to be tried separately, if it is satisfied that justice so requires.    A defendant may be convicted of an offense included in an offense charged in the indictment or the information. An offense is so included when:   It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or    It consists of an attempt or solicitation to commit the offense charged or to commit an offense otherwise included therein; or    It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.       The court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.    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.    Without the consent of the prosecution, no jury shall be instructed to return a guilty verdict on a lesser offense if any juror remains convinced by the facts and law that the defendant is guilty of a greater offense submitted for the jury's consideration, the retrial of which would be barred by conviction of the lesser offense.     History. Source: L. 71: R&RE, p. 400, § 1. C.R.S. 1963: § 40-1-508 . L. 85: (3) amended, p. 661, § 1, effective July 1. L. 94: (2) amended, p. 1049, § 2, effective July 1. L. 2000: (8) added, p. 452, § 6, effective April 24.    Cross references:   For the sentencing of a defendant convicted of multiple crimes of violence arising out of the same incident, see § 18-1.3-406 (1)(a) .   ANNOTATION   Analysis     I. GENERAL CONSIDERATION.    II. JOINDER AND ELECTIONOF OFFENSES.   A. In General.    B. Illustrative Cases.       III. LESSER INCLUDED OFFENSES.   A. In General.    B. Legal Standard.    C. Jury Instructions.    D. Finding of Lesser Included Offenses.    E. Not A Lesser Included Offense.        I. GENERAL CONSIDERATION.   Law reviews. For article, “By Leave of Court First Had”, see 8 Dicta 14 (June 1931). For note, “Larceny, Embezzlement, and False Pretenses in Colorado -- A Need for Consolidation”, see 23 Rocky Mt. L. Rev. 446 (1951). For article, “Joinder of Criminal Charges, Election, Duplicity”, see 30 Dicta 117 (1953). For article, “Colorado Felony Sentencing”, see 11 Colo. Law. 1478 (1982). For article, “Criminal Procedure”, which discusses a Tenth Circuit decision dealing with the failure to instruct or lessen included offense, see 62 Den. U. L. Rev. 191 (1985). For comment, “Diverging Views on the Merger of Criminal Offenses: Colorado Has Veered Off Course”, see 66 U. Colo. L. Rev. 523 (1995). For article, “Lesser Included and Nonincluded Offenses and Jury Instructions”, see 25 Colo. Law. 35 (June 1996). For article, “Convict My Client of Something Else! Lesser Included Offenses after Reyna-Abarca”, see 47 Colo. Law. 38 (Nov. 2018).   Annotator's note. Since § 18-1-408 is similar to former § 39-3-4 , C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.   Constitutional limitations. Insofar as this section is concerned, a defendant may be prosecuted for each offense that he allegedly commits, with certain well-defined limitations. The limitations are primarily those embodied within the constitutional concepts of double jeopardy, amendment V, U.S. Const., and § 18 of art. II, Colo. Const., impermissible joinder, and the doctrine of collateral estoppel. People v. Pinyan, 190 Colo. 304 , 546 P.2d 488 (1976).   This section does not conflict with the double jeopardy clause of the United States Constitution. People v. Salas, 189 Colo. 111 , 538 P.2d 437 (1975).   Notions of double jeopardy were the underpinnings of this statute. People v. District Court, 183 Colo. 101 , 515 P.2d 101 (1973).   A defendant's double jeopardy rights are not violated when the court sentences a defendant to consecutive sentences based on separate incidents involving the same victim. People v. Shepard, 98 P.3d 905 (Colo. App. 2004).   This section does not apply to municipal code violations. The compulsory joinder bar has no application when the initial prosecution is in a municipal court for a municipal ordinance violation and the later prosecution is in a state court for state offenses based on different conduct but arising out of the same criminal episode as the ordinance violation. People v. Wright, 742 P.2d 316 (Colo. 1987); Priday v. People, 742 P.2d 321 (Colo. 1987).   As long as the criminal episode which is the basis for the municipal code violations and the state offenses gives rise to separate offenses, each of which requires proof of a fact which the other does not, the constitutional prohibition against double jeopardy is not violated. People v. Wright, 742 P.2d 316 (Colo. 1987).   Compulsory joinder provisions extend further than constitutional guarantee against double jeopardy. Jeffrey v. District Court, 626 P.2d 631 (Colo. 1981); Corr v. District Court, 661 P.2d 668 (Colo. 1983); People v. Taylor, 732 P.2d 1172 (Colo. 1987).   Statutory language of this section clearly recognizes that a district attorney's authority to initiate a criminal prosecution is limited to crimes committed within the geographical district served by the district attorney. People v. Taylor, 732 P.2d 1172 (Colo. 1987).   Term “judicial district”, as used in this section, means that the offenses must have been committed within the same judicial district in which the accused has previously been subjected to a completed prosecution. People v. Taylor, 732 P.2d 1172 (Colo. 1987).   More than one felony conviction may be based upon same occurrence without running afoul of either federal or state double jeopardy prohibitions. People v. Opson, 632 P.2d 602 (Colo. App. 1980).   A defendant may be convicted for multiple offenses arising out of a single transaction if the defendant has violated more than one statute. People v. Martinez, 640 P.2d 255 (Colo. App. 1981).   That conduct may give rise to more than one offense is irrelevant so long as the offenses have not merged for purposes of double jeopardy. People v. Miller, 199 Colo. 32 , 604 P.2d 36 (1979).   A single transaction that violates two criminal statutes may generally be prosecuted under either. People v. Fowler, 183 Colo. 300 , 516 P.2d 428 (1973).   Subsection (3) requires the trial court to impose concurrent sentences, if two or more charged offenses arise from the same criminal episode. People v. Montanez, 944 P.2d 529 (Colo. App. 1996).   A court must impose concurrent sentences on crimes that are based upon identical evidence. The evidence supporting the attempted sexual assault was not identical to evidence for kidnapping, therefore, the court had discretion to impose consecutive sentences for the two crimes. People v. McAfee, 160 P.3d 277 (Colo. App. 2007).   Crimes involving multiple victims do not fall within the concurrent sentencing mandate of subsection (3). Offenses defined in terms of their victimization of another and committed against different victims are not capable of being proved by identical evidence, whether or not the defendant's volitional act causing harm was the same. People v. Espinoza, 2020 CO 43, 463 P.3d 855.   Trial court did not err in determining that the prosecution was not required to elect between two counts of first degree burglary since each of the two counts consisted of different elements that were proved by evidence of different conduct, there were multiple victims, and, even if two counts were supported by identical evidence, defendant received concurrent sentences, thereby meeting the requirements of subsection (3). People v. Montanez, 944 P.2d 529 (Colo. App. 1996).   Prosecutor determines under which statute to proceed. A single transaction may give rise to the violation of more than one statute, and in such a situation it is a proper function of the prosecutor to determine under which of the statutes he wishes to prosecute. People v. James, 178 Colo. 401 , 497 P.2d 1256 (1972).   Enactment of a specific criminal statute does not preclude prosecution under a general criminal statute unless a legislative intent to limit prosecution to the special statute is shown. People v. James, 178 Colo. 401 , 497 P.2d 1256 (1972); People v. Tippett, 733 P.2d 1183 (Colo. 1987).   In a situation where a single transaction violates two criminal statutes, it is the proper function of the district attorney to determine under which of the statutes, he wishes to prosecute. People v. Fowler, 183 Colo. 300 , 516 P.2d 428 (1973).   Prosecution under the general burglary statutes was precluded where the defendant's actions violated the specific provisions of criminal offenses included in the Limited Gaming Act of 1991. Because the Act invokes the full extent of the state's police powers, creates a comprehensive and thorough regulatory scheme to control limited gaming, and specifically defines criminal offenses related to gambling both in the Act and in sections reproduced verbatim in this title, the general assembly adequately demonstrated its intention that conduct violating the specific limited gaming provisions be prosecuted under those provisions only. People v. Warner, 930 P.2d 564 (Colo. 1996).   A defendant does not impliedly waive his right to rely upon the statute and rule by entering a plea of guilty in a county court case with knowledge that the district court case is pending. People v. Robinson, 774 P.2d 884 (Colo. 1989).   The right to imposition of concurrent sentences applies equally to a conviction arising from a trial or one arising from the entry and acceptance of a guilty plea. Construing statute to allow the imposition of a more severe sentence for a guilty plea than for a conviction resulting from trial would likely raise constitutional concerns. Juhl v. People, 172 P.3d 896 (Colo. 2007).   Right to compulsory joinder may be waived by raising the issue after jeopardy attaches in the second prosecution. People v. Wilson, 819 P.2d 510 (Colo. App. 1991).   “Single prosecution”, as used in this section, means those proceedings from the commencement of the criminal action until further prosecution is barred. People v. District Court, 183 Colo. 101 , 515 P.2d 101 (1973); Ruth v. County Court, 198 Colo. 6 , 595 P.2d 237 (1979).   Where there are two separate and distinct offenses which violate the laws of two different jurisdictions, each offense must be prosecuted in the jurisdiction where the respective criminal acts occurred and neither offense could be tried in the court of the other jurisdiction. People v. Pinyan, 190 Colo. 304 , 546 P.2d 488 (1976).   Prosecution in both municipal and state systems not precluded. This section does not preclude prosecution in both municipal and state systems for crimes arising from the same criminal episode, at least in situations where there was no counterpart to the municipal offense under state law. People v. Talarico, 192 Colo. 445 , 560 P.2d 90 (1977).   Where there was no knowledge or participation by the district attorney in the decision to prosecute different offenses in both the municipal and state systems, this section does not apply. People v. Talarico, 192 Colo. 445 , 560 P.2d 90 (1977); Blum v. County Court, 631 P.2d 1191 (Colo. App. 1981).   Guilty plea to related charge bars subsequent prosecution. Crim. P. 8(a) and this section bar the prosecution of a defendant for two pending charges arising out of a single criminal episode after the defendant has pleaded guilty and has been sentenced for a third related charge. Ruth v. County Court, 198 Colo. 6 , 595 P.2d 237 (1979).   The denial of a motion to dismiss for failure to comply with this section is appealable. County Court v. Ruth, 194 Colo. 352 , 575 P.2d 1 (1977).   Concurrent sentence does not affect fines for separate counts. Although the defendant is concurrently sentenced, this has no effect on individual fines for separate counts. People v. Blair, 195 Colo. 462 , 579 P.2d 1133 (1978); People v. Kern, 2020 COA 96 , 474 P.3d 197.   Defendant's multiple convictions arise from crimes committed upon different victims and, therefore, evidence is not identical and prohibition against consecutive sentences in this section is not applicable. People v. Wafai, 713 P.2d 1354 (Colo. App. 1985), aff'd, 750 P.2d 37 (Colo. 1988) (decided under law in effect prior to 1985 amendment); People v. Grant, 30 P.3d 667 (Colo. App. 2000), aff'd on other grounds, 48 P.3d 543 (Colo. 2002); People v. O'Dell, 53 P.3d 655 (Colo. App. 2001).   When determining whether to sentence two crimes of violence consecutively or concurrently in relation to § 16-11-309 , 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).   The test for identical evidence is an evidentiary test rather than an elemental test. The court of appeals incorrectly interpreted “identical evidence” to entail an analysis of the evidence necessary to prove the elements of the offenses charged, rather than what evidence supports the conviction. Juhl v. People, 172 P.3d 896 (Colo. 2007).   Test applied in Thompson v. People, 2020 CO 72, 471 P.3d 1045.   Convictions not based upon identical evidence. Kidnapping occurred at a different time and in a different place than the sexual assault. People v. Glasser, 293 P.3d 68 (Colo. App. 2011).   Because the evidence supporting the convictions for conspiracy and solicitation was identical, concurrent sentencing was required even though the crime of solicitation requires proof of inducement and conspiracy requires proof of an agreement and an act in furtherance thereof. The convictions here were based on the same acts: The planning by the members of the group to rob the home of the victim and the performance of that robbery. People v. Le, 74 P.3d 431 (Colo. App. 2003).   Trial court erred in imposing consecutive sentences. The evidence presented at trial supported no reasonable inference other than that defendant's convictions of first degree murder and of child abuse resulting in death were based on identical evidence. People v. Phillips, 2012 COA 176 , 315 P.3d 136.   Identical evidence was presented at trial to establish the sexual assault on a child, sexual assault on a child by one in a position of trust, and aggravated incest charges as to each victim. People v. Aldridge, 2018 COA 131 , 446 P.3d 897.   Convictions for first degree assault and vehicular assault were supported by identical evidence because both convictions were based on one distinct act rather than multiple acts separated by time or place. Consequently, pursuant to the mandate in subsection (3), the trial court lacked the authority to impose consecutive sentences where the convictions were supported by identical evidence. Juhl v. People, 172 P.3d 896 (Colo. 2007).   By waiving the establishment of a factual basis for the added second degree assault charge, defendant also waived right to rely on subsection (3). If defendant wanted to ensure that all of the sentences imposed pursuant to the plea bargain would be subject to concurrent sentencing mandate of subsection (3), defendant could have rejected any plea agreement that called for guilty pleas to multiple charges or by rejecting any plea agreement that did not include a stipulation for concurrent sentences. People v. Maestas, 224 P.3d 405 (Colo. App. 2009).   Unless multiple victims are involved, concurrent sentences are required where two or more convictions are based upon the same act or series of acts arising from the same criminal episode and the evidence supporting the counts is identical. People v. Farrell, 10 P.3d 672 (Colo. App. 2000), rev'd on other grounds, 34 P.3d 401 (Colo. 2001).   Even though identical evidence is used for multiple convictions of felony murder and attempted aggravated robbery, the court may impose consecutive sentences because there were two separate victims involved. People v. Laurson, 15 P.3d 791 (Colo. App. 2000).   Thus, where multiple victims are involved, the court may, within its discretion, impose consecutive sentences. People v. Trujillo, 114 P.3d 27 (Colo. App. 2004).   The mere possibility that the jury may have relied on identical evidence in returning more than one conviction is not sufficient to trigger the mandatory concurrent sentencing provision. There was sufficient evidence for the trial court to conclude that the two acts were sufficiently separate to justify consecutive sentencing. The mandatory concurrent sentencing provision is only implicated when the evidence supports no conclusion that the charges are based on identical evidence. People v. Muckle, 107 P.3d 380 (Colo. 2005) (overruling People v. Page, 907 P.2d 624 (Colo. App. 1995)).   Prosecutor not required to select specific instances of sexual assault on which the state would rely when there were numerous counts of sexual assault on a child. People v. Elinger, 754 P.2d 396 (Colo. App. 1987).   Court could properly impose consecutive sentences for multiple sexual exploitation convictions since the crime recognizes that each sexually exploitive image of a child constitutes a discrete act of victimization of the child. People v. Rabes, 258 P.3d 937 (Colo. App. 2010).   Conduct that violates a specific provision of the liquor code may only be filed under the penal provisions specifically provided by said code. People v. Bagby, 734 P.2d 1059 (Colo. 1987).   When the jury could have relied on identical evidence to support separate charges, and the record provides no basis to determine that each charge is supported by separate evidence, subsection (3) requires concurrent sentencing. People v. Brown, 119 P.3d 486 (Colo. App. 2004).   Defendant's convictions for theft and unauthorized use of a financial instrument were supported by identical evidence, so the sentences must be concurrent not consecutive. People v. Patton, 2016 COA 187 , 425 P.3d 1152, aff'd on other grounds, 2018 CO 67, 421 P.3d 184.   Imposition of concurrent or consecutive sentences lies in trial court's discretion if the multiple counts are not supported by identical evidence. People v. Fincham, 799 P.2d 419 (Colo. App. 1990).   Trial court did not abuse its discretion in imposing consecutive sentences where the conspiracy conviction was not based on the same evidence as the robbery convictions. People v. Sweeney, 78 P.3d 1133 (Colo. App. 2003).   Consecutive sentencing was proper for convictions of first degree sexual assault, second degree kidnapping, and second degree assault committed against one victim when evidence establishing each charge was not identical for purposes of subsection (3) and when taking into account the gravity of defendant's conduct toward both victims. People v. Martinez, 32 P.3d 520 (Colo. App. 2001).   When multiple victims are involved, court has discretion to impose consecutive sentences. People v. Hogan, 114 P.3d 42 (Colo. App. 2004).   More than one felony conviction may be based upon same occurrence. People v. Ball, 813 P.2d 759 (Colo. App. 1990).   When an identical act gives rise to multiple charges, the court must impose concurrent sentences for convictions on the multiple charges. People v. Blankenship, 30 P.3d 698 (Colo. App. 2000); People v. Dotson, 55 P.3d 175 (Colo. App. 2002).   Court not required to impose concurrent sentences when evidence supporting two crimes was not identical even though the jury could have relied on the same evidence in finding defendant guilty of both counts. People v. Douglas, 2012 COA 57 , 296 P.3d 234.   Because defendant could not be convicted of first degree assault without proof that he committed a class 3 felony sexual assault under § 18-3-202 (1)(d) , the latter offense was a lesser included offense of the first degree assault charge and he could not, therefore, be convicted of both offenses. People v. Moore, 860 P.2d 549 (Colo. App. 1993).   Court can deny request to include lesser included offense instruction where the record does not present any evidence leading to a rational basis for acquitting a defendant of the greater offense and convicting him or her of the lesser offense. People v. Cardenas, 25 P.3d 1258 (Colo. App. 2000).   A defendant may be convicted of more than one offense arising out of a single incident if the defendant has violated more than one statute. People v. Moore, 877 P.2d 840 (Colo. 1994); People v. Marquez, 107 P.3d 993 (Colo. App. 2004).   A defendant may be convicted of both assault and menacing based on the same criminal transaction when the facts support both convictions. There is no conflict or disqualifying overlap in the statutory elements, and none of the provisions of subsection (1) prohibit the multiple convictions. Margerum v. People, 2019 CO 100, 454 P.3d 236.   Assaults committed within a relatively short period of time did not constitute a continuing course of conduct. Each incident constituted a separate offense and the charges were not multiplicitous. People v. Quintano, 81 P.3d 1093 (Colo. App. 2003), aff'd, 105 P.3d 585 (Colo. 2005); People v. Gillis, 2020 COA 68 , 471 P.3d 1197.   Applied in People v. Hauschel, 37 Colo. App. 114, 550 P.2d 876 (1976); People v. Bielecki, 41 Colo. App. 256, 588 P.2d 377 (1978); People v. Hanes, 42 Colo. App. 527, 596 P.2d 395 (1978); People v. Taylor, 197 Colo. 161 , 591 P.2d 1017 (1979); People v. Roberts, 43 Colo. App. 100, 601 P.2d 654 (1979); People v. Hardin, 199 Colo. 229 , 607 P.2d 1291 (1980); People v. Scott, 615 P.2d 680 (Colo. 1980); People v. Knaub, 624 P.2d 922 (Colo. App. 1980); People v. Riddick, 626 P.2d 641 (Colo. 1981); People in Interest of R.G., 630 P.2d 89 (Colo. App. 1981); People v. Clerkin, 638 P.2d 808 (Colo. App. 1981); People v. Williams, 651 P.2d 899 (Colo. 1982); People v. Aragon, 653 P.2d 715 (Colo. 1982); People v. Williams, 654 P.2d 319 (Colo. App. 1982); People v. Castro, 657 P.2d 932 (Colo. 1983); People v. Lowe, 660 P.2d 1261 (Colo. 1983); People v. Bartowsheski, 661 P.2d 235 (Colo. 1983); People v. Hepler, 665 P.2d 627 (Colo. App. 1982); People v. Santisteven, 693 P.2d 1008 (Colo. App. 1984); People v. Clements, 732 P.2d 1245 (Colo. App. 1986); People v. Avila, 770 P.2d 1330 (Colo. App. 1988).   II. JOINDER AND ELECTION OF OFFENSES.    A. In General.   Offenses defined in terms of general and specific conduct. Subsection (1)(d) of this section is intended to deal with situations where the offenses themselves are defined in terms of general and specific kinds of conduct. People v. Miller, 199 Colo. 32 , 604 P.2d 36 (1979).   Statutory elements to be satisfied to bar subsequent prosecution. This section can be broken down into the following elements, all of which must be satisfied in order for the bar to apply to a subsequent prosecution: (1) Several offenses committed within the same judicial district; (2) a prosecution against the offender; (3) prosecutorial knowledge of the several offenses at the commencement of the prosecution; (4) the several offenses arising from the same criminal episode; and (5) the offender previously having been subjected to a single prosecution. Jeffrey v. District Court, 626 P.2d 631 (Colo. 1981); People v. Garcia, 735 P.2d 897 (Colo. App. 1986); Williamsen v. People, 735 P.2d 176 (Colo. 1987).   Test for “same criminal episode” under this section should be identical to the standard for joinder under Crim. P. (8)(a). Jeffrey v. District Court, 626 P.2d 631 (Colo. 1981).   The term “same criminal episode” contemplates a joinder standard sufficiently broad to include offenses committed within the same unit of time at the same location, irrespective of whether these offenses are otherwise related to each other by some underlying unity of purpose or scheme. Corr v. District Court, 661 P.2d 668 (Colo. 1983).   Factors to consider when making the determination as to whether a series of acts arose from the same criminal episode include whether the physical acts were committed simultaneously or in close sequence, whether they occurred in the same place or closely related places, and whether they formed part of a schematic whole. Where the two incidents occurred at different times, at different places, with different victims, and under different circumstances and were not part of any schematic whole, it can be concluded that the two offenses did not arise from the same criminal episode. People v. Garcia, 735 P.2d 897 (Colo. App. 1986).   Test must be interpreted to include the condition that the offenses be connected in such a manner that prosecution of the offenses involve substantially interrelated proof. People v. Rogers, 742 P.2d 912 (Colo. 1987); People v. Miranda, 754 P.2d 377 (Colo. 1988); People v. Patrick, 773 P.2d 575 (Colo. 1989).   Where a six-day interval existed between the distribution, possession, and conspiracy offenses charged in the separate prosecutions and where there were other factual differences relating to the charges alleged in the separate prosecutions, proof of the offenses at issue involved evidence substantially different from the evidence underlying the former prosecution. People v. Miranda, 754 P.2d 377 (Colo. 1988).   Where the seizure of drugs from defendant's car occurred after defendant was arrested on an outstanding warrant and the car was impounded and inventoried, the drug possession charge did not arise from the same criminal episode as the speeding charges which were the initial cause for which defendant was stopped. People v. Herr, 868 P.2d 1121 (Colo. App. 1993).   The crime of identity theft under § 18-5-902 (1)(a) is not a continuing course of conduct, and each discrete use of another's identity is a separate chargeable offense. People v. Allman, 2017 COA 108 , 454 P.3d 289, aff'd, 2019 CO 78, 451 P.3d 826.   Charges against the defendant were based on identical evidence when the defendant engaged in a continuous attack of the victim and there was no break in the time and change in circumstances between the inflicted wounds. People v. DeBoer, 829 P.2d 447 (Colo. App. 1991).   The compulsive joinder rule did not bar subsequent prosecution for drug possession arising from the discovery of drugs in defendant's car where the district attorney was not involved in disposing of the original traffic infraction in county court. People v. Herr, 868 P.2d 1121 (Colo. App. 1993).   Required before dismissal. Trial court must determine extent to which two prosecutions would burden defendant with repetitive proof before it could dismiss for violation of compulsory joinder statute. People v. Rogers, 742 P.2d 912 (Colo. 1987).   The compulsory joinder bar of subsection (2) is applicable even though it might have been one of a series of criminal acts committed in several judicial districts as part of a single criminal episode. People v. Taylor, 732 P.2d 1172 (Colo. 1987).   Because § 42-4-1505.3 clearly contemplates separate trials and hearings where separate complaints alleging traffic infractions and crimes are filed, and the district attorney does not participate in the decision to “prosecute” traffic infractions, the compulsory joinder statute does not apply. Williamsen v. People, 735 P.2d 176 (Colo. 1987).   Section permitting joinder of offenses is a declaration of the common law on the subject of joinder of counts in one indictment. Bergdahl v. People, 27 Colo. 302 , 61 P. 228 (1900).   This section permits the joinder of crimes or offenses which may be properly joined as consistent with the common-law rule upon the subject. At common law, disconnected and independent felonies might not be properly joined. White v. People, 8 Colo. App. 289, 45 P. 539 (1896).   This section is in reality but an embodiment of a well established principle of the common law, and is no broader than was that rule unless it be in the consolidation of causes, and confers no greater power than that enjoyed and exercised prior to the enactment of the statute. Cummins v. People, 4 Colo. App. 71, 34 P. 734 (1893).   Subsection (2) was adapted from the model penal code, section 108 (2). People v. Tulipane, 192 Colo. 476 , 560 P.2d 94 (1977).   The purpose of subsection (2) was to prevent the bringing of successive prosecutions based upon essentially the same conduct. People v. Tulipane, 192 Colo. 476 , 560 P.2d 94 (1977); Brutcher v. District Court, 195 Colo. 579 , 580 P.2d 396 (1978).   The evil which subsection (2) was designed to cure was harassment of the defendant by means of multiple prosecution for the same act. People v. Cooke, 186 Colo. 44 , 525 P.2d 426 (1974); People v. Tulipane, 192 Colo. 476 , 560 P.2d 94 (1977).   The concern of the general assembly in enacting this section was not an insufficient number of charges, but rather duplicitous charges which charge in the same count two or more separate offenses. People v. Cooke, 186 Colo. 44 , 525 P.2d 426 (1974).   The purpose of the joinder statute is to “prevent vexatious prosecution and harassment of a defendant by a district attorney who initiates successive prosecutions for crimes which stem from the same criminal episode”. Subsequent prosecution is permissible when the statute by its terms does not apply. County Court v. Ruth, 194 Colo. 352 , 575 P.2d 1 (1977); Ruth v. County Court, 198 Colo. 6 , 595 P.2d 237 (1979).   The purposes of compulsory joinder are to protect the accused against the oppressive effect of sequential prosecutions based on conduct occurring during the same criminal episode and to conserve judicial and legal resources that otherwise would be wasted in duplicative proceedings. Jeffrey v. District Court, 626 P.2d 631 (Colo. 1981).   Compulsory joinder broader than “same offense” principle or collateral estoppel. The compulsory joinder requirement of subsection (2) of this section is broader than both the “same offense” principle of double jeopardy as codified in § 18-1-301 and the collateral estoppel effect of a prior determination of an ultimate fact as outlined in § 18-1-302 . Jeffrey v. District Court, 626 P.2d 631 (Colo. 1981).   Attachment of jeopardy triggers bar of subsection (2). Jeopardy attaches upon the court's acceptance of a plea of guilty, and the attachment of jeopardy is what triggers the statutory bar of subsection (2). Jeffrey v. District Court, 626 P.2d 631 (Colo. 1981).   Compulsory joinder claim is waived if the defendant fails to raise the issue prior to the time at which jeopardy attaches in the second prosecution. People v. Bossert, 722 P.2d 998 (Colo. 1986); People v. Carey, 198 P.3d 1223 (Colo. App. 2008).   Compulsory joinder defense not waived. Where compulsory joinder defense was not available when prosecution of felony offense was initiated because second charge had not been filed, defendant did not waive compulsory joinder claim when he failed to raise issue within twenty days after arraignment on felony charge. People v. Rogers, 742 P.2d 912 (Colo. 1987).   Compulsory joinder section provides no exceptions to requirement of a single multiple-count prosecution. A juvenile faced with a misdemeanor charge and related traffic charges committed as part of the same act or series of acts should be afforded the protection of the compulsory joinder statute despite the fact that under the juvenile code a juvenile court has no authority to try traffic charges when such charges are the sole basis for a delinquency petition. Marquez v. County Court, 719 P.2d 797 (Colo. App. 1986).   Several counts based on one transaction proper. It was not error to consolidate two informations upon the statement of the district attorney that the several counts in the two informations referred to the same transaction, and where the evidence showed that such was the case. Short v. People, 27 Colo. 175 , 60 P. 350 (1900).   Several cognate offenses growing out of the same transaction may be charged in separate counts in the same indictment or information. Roland v. People, 23 Colo. 283 , 47 P. 269 (1896).   A single transaction may give rise to the violation of more than one statutory provision, and in such a situation separate offenses are perpetrated, each of which may be subject to prosecution. Johnson v. People, 174 Colo. 413 , 484 P.2d 110 (1971).   Since a dismissal of a felony complaint by a county court does not bar further prosecution, this statute does not prohibit the filing of a direct information joining any or all offenses arising from a criminal episode. People v. District Court, 183 Colo. 101 , 515 P.2d 101 (1973).   Where the acts involved were committed at the same time or in immediate succession and at the same place, they arose out of the same criminal episode; therefore, it is appropriate to include the separate counts in a single information. People v. McGregor, 635 P.2d 912 (Colo. App. 1981).   All offenses alleged must be alleged in separate counts. Subsection (2) does not provide that all offenses upon which the prosecution desires to proceed must be alleged, but rather that all offenses which the district attorney does allege must be alleged in separate counts. People v. Cooke, 186 Colo. 44 , 525 P.2d 426 (1974).   State's amendment to information adding charge of sale of narcotic drugs to conspiracy charge complied with provision which requires that all offenses against defendant be “prosecuted by separate counts in a single prosecution”. People v. Wright, 678 P.2d 1072 (Colo. App. 1984).   Each count must charge a distinct offense. When separate counts are charged in the same indictment, each count, to be valid, must be independent of the others, and in itself charge the defendant with a different and distinct offense. Roland v. People, 23 Colo. 283 , 47 P. 269 (1896).   Not more than one offense should be charged in one count. Sweek v. People, 85 Colo. 479 , 277 P. 1 (1929).   Duplicity in an indictment means the charging of two or more separate and distinct offenses in one count, not the charging of a single offense into which several related acts enter as ways and means of accomplishing the purpose. Leyba v. People, 174 Colo. 1 , 481 P.2d 417 (1971).   Exception made in cases of embezzlement over period of time. Under this section an indictment which charges a clerk of the district court with failure to pay over a large number of jury and witness fees amounting to several thousand dollars is not defective as charging a number of offenses in one count because the fees were collected by him at various times in small amounts, nor because part of it was collected during each of three different appointments under which he acted in discharge of his official duties. Adams v. People, 25 Colo. 532 , 55 P. 806 (1898).   It is proper for the prosecution in a charge of embezzlement to lump several items into one count of an information and to try them as a single transaction. Gill v. People, 139 Colo. 401 , 339 P.2d 1000 (1959).   When counts may not be joined. Wherever the felonies are separate and distinct, are not provable by the same evidence, and have been committed at different times, so that they cannot be deemed to result from the same series of acts, they may not be joined in one indictment; and, if several indictments be found, the court cannot consolidate the causes. Cummins v. People, 4 Colo. App. 71, 34 P. 734 (1893).   If the actions or transactions covered by the information are so connected together as to bring them within the provisions of this section the same should be charged in separate counts of the information. If, on the other hand, they were separate, distinct, and disconnected acts and transactions, they should be charged in separate and distinct informations or indictments. Trask v. People, 35 Colo. 83 , 83 P. 1010 (1905).   This section is undoubtedly clear as to the joinder of charges growing out of the same transaction or transactions that are connected; however, “transactions of the same class of crimes or offenses, which may be properly joined”, presents a debatable question when a felony and misdemeanor are joined. Eckhardt v. People, 126 Colo. 18 , 247 P.2d 673 (1952).   A motion to dismiss will lie. Upon a motion to quash the information interposed at the close of the state's case, at which time it appeared from the evidence that several offenses had been charged in one count, it is error not to sustain the motion. Trask v. People, 35 Colo. 83 , 83 P. 1010 (1905).   The question of whether or not an information is duplicitous must be presented either by motion to quash or demurrer, and in limine. Critchfield v. People, 91 Colo. 127 , 13 P.2d 270 (1932).   Duplicity may be overcome by election of district attorney. If an information is duplicitous the defect is overcome where the district attorney in his opening statement elects to proceed on one specific charge. Critchfield v. People, 91 Colo. 127 , 13 P.2d 270 (1932).   It is improper to include distinct offenses in the same indictment, and either in the case of duplicity or of misjoinder of counts, if objection is made in apt time, the court will in the one case quash the indictment, and in the other compel the prosecutor to elect on which count he will proceed. White v. People, 8 Colo. App. 289, 45 P. 539 (1896).   Subsection (3) relates to court's discretionary power requiring prosecutor to elect between multiple counts. Subsection (3) relates to the discretionary power of the trial court, upon motion of the defendant at the conclusion of all of the evidence, to require the prosecution to elect between multiple counts when they are supported by identical evidence. People v. Anderson, 187 Colo. 171 , 529 P.2d 310 (1974).   Motion to compel election. A motion to compel a prosecutor to elect upon which count in an indictment he will proceed, when such indictment contains more than one count, each charging a felony, is a matter addressed to the discretion of the trial court. Roberts v. People, 11 Colo. 213 , 17 P. 637 (1888).   Compelling election is discretionary with the court. Sarno v. People, 74 Colo. 528 , 223 P. 41 (1924).   Motions to compel the prosecutor to elect upon which of several counts of a criminal information he will proceed are addressed to the sound discretion of the trial court. Smaldone v. People, 102 Colo. 500 , 81 P.2d 385 (1938).   A motion to require the district attorney to elect upon which of two counts relating to the same transaction he desired to proceed generally is addressed to the sound discretion of the court. Sanders v. People, 109 Colo. 243 , 125 P.2d 154 (1942); People v. Heller, 698 P.2d 1357 (Colo. App. 1984), rev'd on other grounds, 712 P.2d 1023 (Colo. 1986).   Defendant's remedy, in cases where two sections overlap and evidence is identical, is to move for an election as between counts as provided for by this section; and if no such application is filed, he is limited to the remedy of concurrent sentencing. People v. Blair, 195 Colo. 462 , 579 P.2d 1133 (1978).   Knowledge and actions of deputies and assistants imputed to district attorney. Deputies and assistant district attorneys function only by virtue of the district attorney's authority, and their knowledge and official actions are imputed to the district attorney for purposes of the compulsory joinder statute. Corr v. District Court, 661 P.2d 668 (Colo. 1983).   Power of court to protect accused in this regard. When the evidence in this case disclosed that the defendant was being prosecuted under two counts for distinct and different felonies, the court should have interposed sua sponte to protect him from being tried and convicted upon both counts together. Not to do so was reversible error. White v. People, 8 Colo. App. 289, 45 P. 539 (1896).   Prosecutor need not elect where different counts properly joined. Where different counts are properly joined in a criminal information, the prosecutor is not obliged to elect one upon which he will proceed to trial. Smaldone v. People, 102 Colo. 500 , 81 P.2d 385 (1938).   Prosecutor may go to jury on both counts. Where a criminal information embraces two counts, one for larceny and the other for receiving stolen goods, the same evidence being admissible to support both charges, the prosecutor is not required to elect, but may go to the jury on both. Smaldone v. People, 102 Colo. 500 , 81 P.2d 385 (1938).   Or request jury be instructed verdict of guilt is returnable on one count only. Where two counts were based upon the same transaction, counsel may request the court to instruct the jury that a verdict of guilty could be returned on only one of the counts. Sanders v. People, 109 Colo. 243 , 125 P.2d 154 (1942).   While a conviction on joined counts of confidence game and false pretenses predicated upon the same transaction cannot necessarily stand, the question is solved where the trial court instructs the jury that, if it finds the defendant guilty of confidence game it cannot find him guilty of false pretenses; that if it finds him guilty of false pretenses it cannot find him guilty of confidence game; and if it finds him guilty of conspiracy to commit one of the foregoing felonies, it cannot find him guilty of conspiracy to commit the other. Small v. People, 173 Colo. 304 , 479 P.2d 386 (1970).   Subsection (3) requires concurrent sentences only where the counts of which the accused was convicted were supported by identical evidence. People v. Anderson, 187 Colo. 171 , 529 P.2d 310 (1974); Qureshi v. District Court, 727 P.2d 45 (Colo. 1986); People v. Ellinger, 754 P.2d 396 (Colo. App. 1987); People v. Johnson, 74 P.3d 349 (Colo. App. 2002); People v. Le, 74 P.3d 431 (Colo. App. 2003); People v. Torrez, 2013 COA 37 M, 316 P.3d 25.   If, under the discretionary authority of subsection (3), the trial court chooses not to require the prosecution to elect, and the defendant is convicted on multiple counts based on identical evidence, then “the sentences imposed must run concurrently”. People v. Anderson, 187 Colo. 171 , 529 P.2d 310 (1974); People v. Tivis, 727 P.2d 392 (Colo. App. 1986).   Section 18-1.3-1004 (5)(a) does not create an exception to the general rule found in subsection (3) of this section that a court must impose concurrent sentences for counts based on identical evidence. People v. Torrez, 2013 COA 37 M, 316 P.3d 25.   The trial court has discretion to impose consecutive or concurrent sentences when a defendant is convicted of multiple offenses. Such authority is not affected by this section unless the crimes are supported by identical evidence. People v. Dixon, 950 P.2d 686 (Colo. App. 1997).   Evidence supporting different crimes is considered identical for purposes of this section when the same act or acts gave rise to both charges. People v. Dixon, 950 P.2d 686 (Colo. App. 1997).   No requirement that sentences run concurrently. Where the offenses for which a defendant are convicted are not based on the same act or series of acts arising from the same criminal episode, there is no requirement that the sentences for each offense run concurrently. People v. Early, 692 P.2d 1116 (Colo. App. 1984); Qureshi v. District Court, 727 P.2d 45 (Colo. 1986).   Inapplicable to different theories of same crime. Subsection (3) applies only to cases charging several different offenses, and not to the various theories of first-degree murder. People v. Bowman, 669 P.2d 1369 (Colo. 1983).   Consecutive sentencing for same transaction improper. When the burglary and the larceny involve one transaction, typical of many burglary-larceny situations, consecutive, double sentencing for the same transaction is inherently wrong and basically unjust and evades the legislative intent. Maynes v. People, 169 Colo. 186 , 454 P.2d 797 (1969). But see Trujillo v. Patterson, 266 F. Supp. 901 (D. Colo. 1966 ), aff'd per curiam, 389 F.2d 1003 (10th Cir. 1967).   Consecutive sentences for burglary and for larceny are improper. Maes v. People, 169 Colo. 200 , 454 P.2d 792 (1969).   But consecutive sentences proper for multiple offenses occurring during one continuous criminal episode where offenses, although involving some common elements of proof, were nevertheless separate and distinct, and required proof of different facts to establish their disparate elements. People v. Martinez, 36 P.3d 154 (Colo. App. 2001).   Consecutive sentences may be imposed when the crimes require proof of different elements and are supported by different evidence. People v. Russom, 107 P.3d 986 (Colo. App. 2004).   Concurrent sentences are not prejudicial. The denial of a motion to compel election might constitute prejudicial error, but where the sentences run concurrently, there was no prejudice. Sanders v. People, 109 Colo. 243 , 125 P.2d 154 (1942).   Law depends on facts in each particular case. The law relating to joinder and severance and that which permits consolidation of charges depends on the facts in each particular case. Hunter v. District Court, 193 Colo. 308 , 565 P.2d 942 (1977).   Applicability to proceedings against juvenile. When a court has jurisdiction to entertain criminal proceedings against a juvenile under § 19-1-104(4)(b)(II) , any additional charges arising out of the same act or series of acts can and must be prosecuted in that same action, even though they do not rise to the seriousness of class 3 felonies. People v. Jiminez, 651 P.2d 395 (Colo. 1982).   Compulsory joinder section provides no exceptions to requirement of a single multiple-count prosecution. A juvenile faced with a misdemeanor charge and related traffic charges committed as part of the same act or series of acts should be afforded the protection of the compulsory joinder statute despite the fact that under the juvenile code a juvenile court has no authority to try traffic charges when such charges are the sole basis for a delinquency petition. Marquez v. County Court, 719 P.2d 797 (Colo. App. 1986).   Where multiple convictions are erroneously entered based on identical evidence, the appropriate remedy is to sustain the conviction that gives maximum effect to the jury's verdicts and vacate the duplicate convictions. People v. Denton, 91 P.3d 388 (Colo. App. 2003).   Where defendant is convicted of multiple counts arising out of the same incident, but proof of each count was not based on identical evidence, the imposition of consecutive sentences was appropriate. People v. Jiron, 796 P.2d 499 (Colo. App. 1990).   This section is designed to protect an accused defendant from an oppressive second trial and to preserve judicial and legal resources. People v. McCormick, 859 P.2d 846 (Colo. 1993).   By extending the constitutional guarantee against double jeopardy, this section establishes the specific circumstances under which a subsequent prosecution may be barred. People v. McCormick, 859 P.2d 846 (Colo. 1993).   This section contains five elements which must be satisfied before a subsequent prosecution is barred: (1) The offenses must have been committed in the same judicial district; (2) there must be a prosecution against the offender; (3) the prosecutor must have had knowledge of the several offenses at the commencement of the prosecution; (4) the offenses must have arisen out of the same criminal episode; and (5) the offender must have been previously subjected to a single prosecution. People v. McCormick, 859 P.2d 846 (Colo. 1993); Zipse v. County Ct. for Jefferson County, 917 P.2d 331 (Colo. App. 1996); People v. Allen, 944 P.2d 541 (Colo. App. 1996).   In determining whether the third element has been met, the focus should be on prosecutorial knowledge at the commencement of the jeopardy phase of the criminal prosecution. People v. McCormick, 859 P.2d 846 (Colo. 1993).   This section does not bar a subsequent prosecution where the attorney had no knowledge and does not participate in the decision to prosecute the different offenses. People v. McCormick, 859 P.2d 846 (Colo. 1993); People v. Allen, 944 P.2d 541 (Colo. App. 1996).   For a subsequently charged offense to be properly barred, the offense must have been ready for prosecution prior to the first trial, in addition to the district attorney having knowledge of the offense. People v. McCormick, 859 P.2d 846 (Colo. 1993).   Wife's authority as a private party to seek contempt sanctions for violation of a restraining order was independent of district attorney's authority to file criminal charges. Contempt of court proceeding and prosecution for criminal trespass and misdemeanor menacing, therefore, were not subject to compulsory joinder pursuant to this section. People v. Allen, 944 P.2d 541 (Colo. App. 1996).   Absent contrary evidence, fact that police officers issue separate summonses and complaints for multiple misdemeanors or petty offenses arising out of the same criminal episode provides no basis in fact or law to impute the knowledge of the separate offenses to the district attorney. Zipse v. County Ct. for Jefferson County, 917 P.2d 331 (Colo. App. 1996).   A defendant may not oppose a prosecution's failed motion to join two cases and then later move to dismiss the second case because the court did not join the cases originally. A defendant waives his or her joinder rights when he or she objects to a joinder motion and the court denies the motion. People v. Marshall, 2014 COA 42 , 348 P.3d 462.   Court did not abuse its discretion by rejecting defendant's guilty plea prior to joinder of two cases where doing so would prevent prosecution of a felony charge. Defendant attempted to plead guilty to a misdemeanor charge before the prosecution moved to join the cases. The compulsory joinder statute would therefore prevent prosecution of the second charge. There is no absolute right to have a guilty plea accepted. The maneuver was an attempt to manipulate the legal system. People v. Leverton, 2017 COA 34 , 405 P.3d 402.   B. Illustrative Cases.   Count for murder and one for manslaughter may be tried together. Where the first count of an indictment was for murder and the second for manslaughter, it was held that the prosecutor might proceed to trial upon both counts at the same time, and that he could not properly be required to elect upon which count he would rely, so long as it appeared from the evidence that the two counts related to the same transaction. Kelly v. People, 17 Colo. 130 , 29 P. 805 (1892).   Counts for burglary, larceny, and related offenses. One indictment may contain a count for burglary and one for larceny. Parker v. People, 13 Colo. 155 , 21 P. 1120 (1889).   An information charging defendants in separate counts with breaking ore from certain mines with intent to steal, and with removing ore from the same premises with intent to defraud, was properly consolidated for trial with an information charging the same defendants in separate counts with larceny and receiving stolen goods knowing them to have been stolen, where both informations and both counts in each information refer to one and the same transaction and constitute but one offense. Bergdahl v. People, 27 Colo. 302 , 61 P. 228 (1900).   The stealing of several articles of property at the same time and place as one continuous transaction may be prosecuted as a single offense, although the several articles belonged to several owners. Sweek v. People, 85 Colo. 479 , 277 P. 1 (1929).   Rape and assault to commit rape. When relating to the same transaction, completed rape and an assault to commit that offense rightly may be charged in separate counts of the same information. Abeyta v. People, 112 Colo. 195 , 147 P.2d 481 (1944).   Joinder of count for assault on child under 16 with count for contributing to juvenile delinquency was proper. Warren v. People, 121 Colo. 118 , 213 P.2d 381 (1949).   Two separate counts charging perjury were properly joined in one indictment where the two counts were admittedly based upon the same facts, and such facts would render defendants guilty under both sections. People v. Swanson, 109 Colo. 371 , 125 P.2d 637 (1942).   Marijuana possession and motor vehicle offenses. Where a charge of possession of a marijuana concentrate involves an act which occurs at practically the same time and in the same place as the offenses of speeding and driving under the influence, the marijuana charge arises out of the “same criminal episode” as those other offenses for purposes of the compulsory joinder statute. Corr v. District Court, 661 P.2d 668 (Colo. 1983).   Concealed weapon and possession of controlled substance. Where a defendant enters a plea of guilty to a concealed weapons charge, the trial court can later dismiss a charge of possession of a controlled substance which arises out of the same criminal episode when the police and district attorney, through a field test, had probable cause to believe that the capsules seized contained barbiturates and when they could have and should have learned of the specific identity of the capsules prior to the time of the first preliminary hearing. People v. Deschamp, 662 P.2d 171 (Colo. 1983).   Second degree kidnapping and violation of custody. Where charges resulted from long family dispute and defendants took their children from guardians who had legal custody, trial court abused its discretion in not requiring district attorney to elect one charge or in not instructing jury that it could find defendants guilty of only one offense. People v. Tippett, 733 P.2d 1183 (Colo. 1987).   Court did not abuse its discretion by not requiring election between kidnapping and violation of custody where, in contrast with Tippett case, defendant never attempted to contact police or child welfare agency, never initiated proceeding to obtain custody, and apparently was motivated only by a desire to punish his former wife for the marital dissolution. People v. Metcalf, 926 P.2d 133 (Colo. App. 1996).   Second degree kidnapping and second degree kidnapping involving sexual assault are not separate offenses; therefore this section held not to apply. People v. Henderson, 810 P.2d 1058 (Colo. 1991); Lewis v. People, 261 P.3d 480 (Colo. 2011).   Either the crime of first degree sexual assault or the crime of sexual assault on a child, depending on the facts of the case, is necessarily a lesser included offense of second degree kidnapping including sexual assault. Defendant's conviction for at least one of such sexual assault crimes must merge into the defendant's conviction for second degree kidnapping including sexual assault. Because the two sexual assault crimes are not lesser included crimes of each other, and because the sexual assault elements in the kidnapping conviction are satisfied by proof of either of the sexual assault crimes, the defendant's conviction for only one of the sexual assault crimes must be vacated. People v. Henderson, 794 P.2d 1050 (Colo. App. 1990).   There can be only one conviction for first degree murder when there is only one victim. People v. Fincham, 799 P.2d 419 (Colo. App. 1990).   Convictions may not be entered for both second degree murder and first degree felony murder when there is only one victim. People v. Driggers, 812 P.2d 702 (Colo. App. 1991).   Defendant cannot be convicted of both felony murder and aggravated robbery when felony murder conviction is based upon offense of aggravated robbery. People v. Driggers, 812 P.2d 702 (Colo. App. 1991).   Defendant may not be simultaneously convicted of felony murder and the felony on which the felony murder conviction rests. Where a defendant is convicted of multiple felonies, all of which are alleged as the legal predicates for the commission of felony murder, only that felony that most directly contributes to the death of the victim should be vacated. People v. Huynh, 98 P.3d 907 (Colo. App. 2004).   Convictions for aggravated motor vehicle theft and attempted aggravated robbery are factually and legally inconsistent. People v. James, 981 P.2d 637 (Colo. App. 1998).   Trial court did not abuse its discretion in denying motion to elect between second degree murder and second degree assault. The two offenses are separate offenses having different elements, and in any event, the court sentenced defendant to concurrent sentences as required by subsection (3). People v. Fry, 74 P.3d 360 (Colo. App. 2002), aff'd on other grounds, 92 P.3d 970 (Colo. 2004).   III. LESSER INCLUDED OFFENSES.   A. In General.   Burden on defendant not enough to make constructive notice unconstitutional. It is true that a prosecution's use of the lesser included offense doctrine places some burden upon a defendant to determine the specific charges that have been made against him. This fact, in itself, however, is not enough to make the constructive notice that is embodied in the greater charge unconstitutional. The effectiveness of many constitutional rights of an accused depends upon the self-initiative of the accused. People v. Cooke, 186 Colo. 44 , 525 P.2d 426 (1974).   Defendant presumed on notice that he or she can be convicted of lesser included offense. The provisions of this section and Crim. P. 31(c) are embodiments of the rule at common law that a defendant was presumed to be on notice that he or she could be convicted of the crime charged or a lesser offense included therein. If this presumption of notice can be said to satisfy the sixth amendment guarantees of notice, the prosecution's right to an instruction on an offense necessarily included within the offense charged must be upheld. People v. Cooke, 186 Colo. 44 , 525 P.2d 426 (1974).   One count may incorporate another count by reference. People v. Incerto, 180 Colo. 928 , 505 P.2d 1309 (1973).   A defendant cannot be convicted of more than one offense if one offense is a lesser included offense of the other. People v. Hancock, 186 Colo. 30 , 525 P.2d 435 (1974); People v. Martinez, 640 P.2d 255 (Colo. App. 1981); People v. Ball, 813 P.2d 759 (Colo. App. 1990); Armintrout v. People, 864 P.2d 576 (Colo. 1993); People v. Moore, 877 P.2d 840 (Colo. 1994); People v. Fisher, 904 P.2d 1326 (Colo. App. 1994); Litwinsky v. Zavaras, 132 F. Supp. 2d 1316 (D. Colo. 2001 ); Page v. People, 2017 CO 88, 402 P.3d 468.   The rule of merger in Colorado treats an offense as lesser included when proof of the essential elements of the greater offense necessarily establishes the elements required to prove the lesser offense. Armintrout v. People, 864 P.2d 576 (Colo. 1993); Boulies v. People, 770 P.2d 1274 (Colo. 1989); Litwinsky v. Zavaras, 132 F. Supp. 2d 1316 (D. Colo. 2001 ).   The lesser included offense “merges” into the conviction of the greater offense, and the defendant cannot be separately punished for it. Litwinsky v. Zavaras, 132 F. Supp. 2d 1316 (D. Colo. 2001 ).   When defendant is convicted of multiple lesser included offenses, the court must vacate the conviction of the offense that most directly relates to the elements of the greater offense. People v. Halstead, 881 P.2d 401 (Colo. App. 1994).   When the trial court must vacate a conviction among multiple convictions, the court should enter as many convictions and impose the longest sentences that are legally possible to fully effectuate the jury's verdict. People v. Glover, 893 P.2d 1311 (Colo. 1995) (standard established subsequent to the decision in People v. Halstead annotated above).   Jury not required to acquit defendant of offense charged in order to consider lesser nonincluded offenses. People v. Skinner, 825 P.2d 1045 (Colo. App. 1991).   B. Legal Standard.   In determining whether an offense is a lesser included offense of another, a court applies the strict comparison of the elements test, comparing the elements of the statutes involved. People v. Rivera, 186 Colo. 24 , 525 P.2d 431 (1974); People v. Chapman, 192 Colo. 322 , 557 P.2d 1211 (1977); People v. Martinez, 640 P.2d 255 (Colo. App. 1981); People v. Ball, 813 P.2d 759 (Colo. App. 1990); Patton v. People, 35 P.3d 124 (Colo. 2001); Litwinsky v. Zavaras, 132 F. Supp. 2d 1316 (D. Colo. 2001 ); People v. Griffith, 58 P.3d 1111 (Colo. App. 2002); People v. Delci, 109 P.3d 1035 (Colo. App. 2004); People v. Tallwhiteman, 124 P.3d 827 (Colo. App. 2005).   The strict elements test to determine whether an offense is a lesser included offense of another offense is if the elements of the lesser offense are a subset of the elements of the greater offense, such that the lesser offense contains only elements that are also included in the elements of the greater offense. Reyna-Abarca v. People, 2017 CO 15, 390 P.3d 816; People v. Gillis, 2020 COA 68 , 471 P.3d 1197.   If the greater of two offenses includes all the legal and factual elements of the lesser, the greater includes the lesser; but if the lesser offense requires the inclusion of some necessary element not so included in the greater offense, the lesser is not necessarily included in the greater. People v. Futamata, 140 Colo. 233 , 343 P.2d 1058 (1959); Howard v. People, 173 Colo. 209 , 477 P.2d 378 (1970); People v. Velasquez, 178 Colo. 264 , 497 P.2d 12 (1972); People v. Ellinger, 754 P.2d 396 (Colo. App. 1987); People v. Ager, 928 P.2d 784 (Colo. App. 1996); People v. Ortiz, 155 P.3d 532 (Colo. App. 2006).   The test requires a comparison of the elements, not the evidence presented on those elements. Armintrout v. People, 864 P.2d 576 (Colo. 1993); People v. Rodriguez, 888 P.2d 278 (Colo. App. 1994); People v. Delci, 109 P.3d 1035 (Colo. App. 2004).   The statutory elements test is not the exclusive test for determining whether an offense is a lesser included offense of another. People v. Hoggard, 2017 COA 88 , 468 P.3d 15, aff'd on other grounds, 2020 CO 54, 465 P.3d 34.   Statutory test better view and will be applied. The better view is that the statutes, and not the evidence, must establish the essential elements of the lesser included offense. In other words, in determining whether an offense is lesser included, the statutory test, which mandates that the greater offense must establish every essential element of the lesser included offense, will be applied. People v. Rivera, 186 Colo. 24 , 525 P.2d 431 (1974); Reyna-Abarca v. People, 2017 CO 15, 390 P.3d 816.   Because the statutory test is easily and more uniformly applied and a defendant is entitled to fair notice of the charges against him, the only reasonable method of ensuring such notice is the statutes that set forth the constituent elements. It would be haphazard and unfair to say to a defendant that he must defend on the principal charge and any other charge that the evidence established. People v. Rivera, 186 Colo. 24 , 525 P.2d 431 (1974).   The “statutory elements test” is described as: If proof of the facts establishing the statutory elements of the greater offense necessarily establishes all of the elements of the lesser offense, the lesser offense is included for the purposes of subsection (5)(a). If, however, each offense necessarily requires proof of at least one additional fact that the other does not, the test is not satisfied. People v. Leske, 957 P.2d 1030 (Colo. 1998); People v. Griffith, 58 P.3d 1111 (Colo. App. 2002).   The test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact that the other does not. Johnson v. People, 174 Colo. 413 , 484 P.2d 110 (1971); People v. Wieckert, 191 Colo. 511 , 554 P.2d 688 (1976), overruled on other grounds in Villafranca v. People, 194 Colo. 472 , 573 P.2d 540 (1978).   An offense is included within another if it is impossible to commit one offense without also committing the other, or if the only difference between the charges is in the degree of mens rea required or in the severity of the injury inflicted by the criminal conduct. People v. Martinez, 640 P.2d 255 (Colo. App. 1981).   Greater offense includes a lesser offense when the establishment of the essential elements of the greater necessarily establishes all of the elements required to prove the lesser. People v. Chapman, 192 Colo. 322 , 557 P.2d 1211 (1977).   It is the character of the evidence that must control in determining whether the lesser included offense of assault with intent to commit rape can stand alone or fall on acquittal of forcible rape. Miera v. People, 164 Colo. 254 , 434 P.2d 122 (1967).   C. Jury Instructions.   A court should instruct a jury on a lesser included offense only when there is a rational basis, warranted by the evidence, for acquitting the defendant of the greater offense and convicting him or her of the lesser. People v. Hansen, 191 Colo. 175 , 551 P.2d 710 (1976); People v. Bowers, 42 Colo. App. 467, 600 P.2d 95 (1979); People v. Lahr, 200 Colo. 425 , 615 P.2d 707 (Colo. 1980); Bowers v. People, 617 P.2d 560 (Colo. 1980); People v. Nhan Dao Van, 681 P.2d 932 (Colo. 1984); People v. Bustos, 725 P.2d 1174 (Colo. App. 1986); People v. Ramirez, 18 P.3d 822 (Colo. App. 2000); People v. Griffith, 58 P.3d 1111 (Colo. App. 2002).   When a jury could entertain a reasonable doubt of a defendant's guilt of a greater offense, and simultaneously be convinced beyond a reasonable doubt of the defendant's guilt of a lesser included offense, the defendant is entitled to have the jury instructed on the lesser included offense. People v. Nhan Dao Van, 681 P.2d 932 (Colo. 1984); People v. Castro, 10 P.3d 700 (Colo. App. 2000).   A defendant is not entitled to an instruction on a lesser included offense unless there is some evidence that, if believed, would render the defendant guilty of the lesser included offense, rather than the specifically charged offense. Ortega v. People, 178 Colo. 419 , 498 P.2d 1121 (1972).   Evidence must justify submission of lesser included offense to jury. The submission of a lesser degree or an included crime is justified only where there is some basis in the evidence for finding the accused innocent of the higher crime and yet guilty of the lower one. People v. Velasquez, 178 Colo. 264 , 497 P.2d 12 (1972).   In determining whether a lesser nonincluded offense instruction is appropriate, a court should use the same legal standard used to determine whether a lesser included offense instruction is required. A lesser included offense instruction is required whenever there is a rational basis for the jury to acquit the defendant on the greater charge and convict on the lesser offense. People v. Moore, 902 P.2d 366 (Colo. App. 1994).   When prosecutor may obtain lesser included offense instruction. Mindful of the primacy of notice within the constitutional guarantee of due process of law and of the duty of the courts to safeguard this right, where the lesser included offense upon which the prosecution requested an instruction is easily ascertainable from the charging instrument and not so remote in degree from the offense charged that the prosecution's request appears to be an attempt to salvage a conviction from a case that has proven to be weak, the prosecution may obtain a lesser included offense instruction over the defendant's objection. People v. Cooke, 186 Colo. 44 , 525 P.2d 426 (1974).   Before a lesser nonincluded offense may be submitted to a jury in a theory of the case instruction, there must be a rational basis for the jury to acquit the defendant of the offense charged and simultaneously find him guilty of the lesser offense. People v. Bustos, 725 P.2d 1174 (Colo. App. 1986).   A rational basis does not exist when the lesser offense instruction is inconsistent with defendant's theory of defense. People v. Chavez, 190 P.3d 760 (Colo. App. 2007).   When the record failed to present any evidence that would lead to a rational basis for acquitting the defendant of the greater offense but convicting the defendant of the lesser offense, request to instruct jury on lesser included offense was properly denied. People v. Price, 969 P.2d 766 (Colo. App. 1998).   A criminal defendant who maintains his or her innocence at trial is not automatically barred from seeking jury instructions on a lesser included offense or on a related defense. If an instruction is given in that case, there must be a rational basis for it in the evidence presented at trial. After a review of the record, there was no rational basis in the evidence for the lesser included offense instruction or the voluntary intoxication instruction. Brown v. People, 239 P.3d 764 (Colo. 2010).   No error for trial court to fail to instruct jury on second and third degree criminal trespass as lesser offense of second degree burglary of a building since there was no rational basis for acquitting the defendant of the offense charged and convicting him of the included offense. People v. Romero, 694 P.2d 1256 (Colo. 1985).   It was not error for the trial court to refuse defendant's requested instruction that stated that false imprisonment was a lesser included offense of attempted second degree kidnapping since there was no rational basis, supported by the evidence, for acquitting the defendant of the greater offense charged and convicting him of the lesser included offense. People v. Arispe, 191 Colo. 555 , 555 P.2d 525 (1976).   Subsection (8) prohibits the trial court to instruct the jury to return a guilty verdict on a lesser included offense without the prosecutor's consent if the jury has reached consensus as to the defendant's guilt but is deadlocked as to the degree of guilt. People v. Richardson, 184 P.3d 755 (Colo. 2008).   However, it does not prevent a jury from being presented with a verdict form that gives jurors the option of considering the charge and its lesser included offenses on an individual basis, and acquitting the defendant on some or all of them. People v. Richardson, 184 P.3d 755 (Colo. 2008).   Therefore, the verdict form that allowed the jurors to return a not guilty verdict only if they found defendant not guilty of first degree murder, second degree murder, manslaughter, and criminally negligent homicide was not required by subsection (8). People v. Richardson, 184 P.3d 755 (Colo. 2008).   Claim of innocence alone does not disentitle defendant to lesser included offense instruction. The instruction, however, must be supported by evidence at trial. There was no error in failing to instruct the jury on attempted first degree murder where victim's injuries were such that no rational jury could have found the shooter acted with anything but a premeditated intent to cause death. People v. Brown, 218 P.3d 733 (Colo. App. 2009), aff'd, 239 P.3d 764 (Colo. 2010).   Instruction not required. Mere chance of the jury's rejection of uncontroverted testimony and conviction on a lesser charge does not necessitate an instruction on the lesser charge. People v. Campbell, 678 P.2d 1035 (Colo. App. 1983).   When the undisputed evidence clearly established the completed crime of second degree kidnapping, the trial court did not err in refusing to submit to the jury the defendant's instruction on the lesser offense of attempted second degree kidnapping. Apodaca v. People, 712 P.2d 467 (Colo. 1985).   Instruction on lesser offense when evidence supported conviction for greater offense. When the evidence supported a conviction for felony menacing, the fact that the trial court improperly submitted an instruction on misdemeanor menacing to the jury did not affect defendant's conviction for the lesser included offense of misdemeanor menacing. People v. Lahr, 200 Colo. 425 , 615 P.2d 707 (1980).   Lesser offense instruction is properly refused when an element that distinguishes the greater offense from the lesser offense is uncontested. Defendant charged with aggravated robbery and felony murder was not entitled to lesser theft offense instruction because there was no evidence disputing the use of force against, and the killing of, the victim. People v. Villalobos, 159 P.3d 624 (Colo. App. 2006).   Error to refuse instruction on included offense. Where the evidence is sufficient to support a charge of assault with the intent to commit rape, and such as to justify a simultaneous acquittal of the charge of rape, refusal of a trial court to submit a verdict and instruction on assault with intent to commit rape is error. People v. Futamata, 140 Colo. 233 , 343 P.2d 1058 (1959).   Trial court's refusal to give a lesser nonincluded offense instruction does not justify reversal if the court instructed on a comparable lesser nonincluded offense. People v. Rubio, 222 P.3d 355 (Colo. App. 2009).   Jury instruction that characterizes lesser nonincluded offenses as lesser included offenses is harmless error when jury does not convict defendant of any lesser nonincluded offenses. People v. Skinner, 825 P.2d 1045 (Colo. App. 1991).   D. Finding of Lesser Included Offenses.   For purposes of determining which of the underlying felonies constitutes the lesser included offense of felony murder, the felony that most directly contributes to the death of the victim should serve as the legal predicate for the felony murder conviction. Callis v. People, 692 P.2d 1045 (Colo. 1984).   When conviction for felony murder is based upon kidnapping, conviction on the lesser included offense of kidnapping is precluded; however, defendant may be convicted on the separate crimes of kidnapping and first degree murder. People v. Fincham, 799 P.2d 419 (Colo. App. 1990); People v. McCormick, 881 P.2d 423 (Colo. App. 1994).   When conviction for felony murder was predicated on the death of a robbery victim, a simultaneous conviction for robbery is precluded. People v. Cook, 22 P.3d 947 (Colo. App. 2000).   Aggravated robbery within felony murder based on robbery victim's death. Where the defendant's conviction for felony murder is based upon the causation of the robbery victim's death during the course of the robbery, a charge of aggravated robbery of the same victim is a lesser included offense of the felony murder charge within the meaning of subsection (5)(c). People v. Raymer, 662 P.2d 1066 (Colo. 1983).   Rape within felony murder based on rape victim's death. Where first degree sexual assault victim is killed during the course of the assault, charge of first degree sexual assault is a lesser included offense of felony murder charge. People v. Horton, 683 P.2d 358 (Colo. App. 1984); Callis v. People, 692 P.2d 1045 (Colo. 1984); People v. Angelini, 706 P.2d 2 (Colo. App. 1985).   Under the circumstances present in the case, subsections (1)(a) and (5)(a) prohibit a judgment of conviction for attempted sexual assault in addition to a conviction for felony murder. People v. Blackmer, 888 P.2d 343 (Colo. App. 1994).   The predicate offenses for “felony” first degree assault under § 18-3-202 fit the statutory test for a lesser included offense. As such, the conviction of the predicate offense must merge into the conviction for “felony” first degree assault, even though the predicate offense is a more serious offense and carries a greater punishment. People v. Halstead, 881 P.2d 401 (Colo. App. 1994).   The trial court correctly merged defendant's conviction for first degree assault into one of his convictions for first degree sexual assault. People v. Cole, 926 P.2d 164 (Colo. App. 1996).   Since defendant could not be convicted of both felony assault and aggravated robbery (since commission of robbery is an element of the assault), the assault conviction, rather than the robbery conviction, should be vacated. People v. Fisher, 926 P.2d 170 (Colo. App. 1996).   Attempted first degree murder is a lesser included offense of first degree murder. The elements of attempted first degree murder are a subset of first degree murder. When the defendant in this case aimed at and shot the victim, he intended and attempted to kill the victim, even if he mistakenly believed the victim was someone else. Therefore the particular attempted first degree murder in this case is a lesser included offense of the particular first degree murder in this case, and the defendant cannot be convicted of both. People v. Jackson, 2020 CO 75, 472 P.3d 553.   Generally, the crimes of second degree murder and attempted second degree murder are, respectively, lesser included offenses of first degree murder or attempted first degree murder under any theory, and second degree murder is a lesser included offense of first degree murder by extreme indifference. People v. Rodriguez, 888 P.2d 278 (Colo. App. 1994).   When jury convicted defendant of both extreme indifference murder and second degree murder and attempted murder, the trial court erred in applying the rule of lenity by vacating the more serious offenses instead of the lesser offenses. The proper course of action under such circumstances is to vacate the lesser offenses. People v. Rodriguez, 888 P.2d 278 (Colo. App. 1994).   When a defendant tries to kill one person but mistakenly kills a different person and is convicted of both attempted murder of the intended victim and murder of the actual victim, the attempted murder conviction must be vacated because it is a lesser included offense of the murder conviction. Under the doctrine of transferred intent the specific intent to kill the intended victim transferred to the actual victim and makes the defendant criminally liable for that death. People v. Jackson, 2018 COA 79 , 474 P.3d 60, aff'd on other grounds, 2020 CO 75, 472 P.3d 553.   Reckless endangerment is a lesser included offense of first degree assault with intent to cause serious bodily injury. People v. Tallwhiteman, 124 P.3d 827 (Colo. App. 2005).   Assault to rape is an included offense of the crime of rape, both include the necessary aggravated intent and both contain the element of assault. People v. Futamata, 140 Colo. 233 , 343 P.2d 1058 (1959).   Unlawful sexual contact is a lesser included offense of sexual assault based on sexual intrusion. Proof of sexual intrusion requires proof of sexual contact with a person's intimate parts satisfying the strict elements test, and unlawful sexual contact involves less serious injury than sexual intrusion and lesser culpability than sexual assault. People v. Loyas, 259 P.3d 505 (Colo. App. 2010), overruled in Page v. People, 2017 CO 88, 402 P.3d 468, as annotated below.   Unlawful sexual contact is a lesser included offense of sexual assault. Page v. People, 2017 CO 88, 402 P.3d 468 (overruling Loyas v. People, 259 P.3d 505 (Colo. App. 2010), to the extent it held otherwise); People v. Sabell, 2018 COA 85 , 452 P.3d 91.   When a defendant is convicted of both offenses based on the same conduct, the conviction for unlawful sexual contact merges into the conviction for sexual assault. Page v. People, 2017 CO 88, 402 P.3d 468 (overruling Loyas v. People, 259 P.3d 505 (Colo. App. 2010), to the extent it held otherwise); People v. Sabell, 2018 COA 85 , 452 P.3d 91.   Establishing the elements of sexual assault by means of penetration necessarily establishes the elements of unlawful sexual contact. The elements of unlawful sexual contact are a subset of the elements of sexual assault by means of penetration. Page v. People, 2017 CO 88, 402 P.3d 468 (overruling Loyas v. People, 259 P.3d 505 (Colo. App. 2010), to the extent it held otherwise).   One who commits reckless driving necessarily has been guilty of careless driving, for the greater degree of negligence includes the lesser. People v. Chapman, 192 Colo. 322 , 557 P.2d 1211 (1977).   In terms of subsection (5), careless driving “is established by proof of the same or less than all the facts required to establish . . .” reckless driving. People v. Chapman, 192 Colo. 322 , 557 P.2d 1211 (1977).   Careless driving is not a lesser included offense of vehicular assault (reckless). People v. Zweygardt, 2012 COA 119 , 298 P.3d 1018.   Reckless driving is a lesser included offense of vehicular eluding. People v. Pena, 962 P.2d 285 (Colo. App. 1997); People v. Esparza-Treto, 282 P.3d 471 (Colo. App. 2011).   DUI is a lesser included offense of vehicular assault-DUI and vehicular homicide-DUI. Reyna-Abarca v. People, 2017 CO 15, 390 P.3d 816.   Trial court erred when it failed to merge a conviction of reckless endangerment with a conviction for attempted first degree murder with extreme indifference. People v. Torres, 224 P.3d 268 (Colo. App. 2009).   Assault, a predicate offense for first degree burglary, is a lesser included offense of first degree burglary. Therefore, the two counts merge. People v. Delci, 109 P.3d 1035 (Colo. App. 2004).   Attempt to induce child prostitution is a lesser included offense encompassed within the crime of inducement of child prostitution. People v. Hansen, 708 P.2d 468 (Colo. App. 1985).   Possession of an illegal weapon under § 18-12-102 (4) is a lesser included offense of possession of weapon by a previous offender under § 18-12-108 (1) when the same weapon is alleged in each charge. People v. Brown, 119 P.3d 486 (Colo. App. 2004).   Second degree trespass is a lesser included offense of second degree burglary. People v. Rock, 2017 CO 84, 402 P.3d 472.   First degree criminal trespass is a lesser included offense of first degree burglary. People v. Gillis, 2020 COA 68 , 471 P.3d 1197. But see People v. Satre, 950 P.2d 667 (Colo. App. 1997), annotated below.   In a case where the lesser included offense carries a higher penalty, the court must vacate the conviction carrying the lower penalty and impose the higher penalty in order to maximize the jury's verdict. People v. Delci, 109 P.3d 1035 (Colo. App. 2004).   But an appellate court is not required to enter judgment of conviction of a lesser offense implied in a jury verdict reversed on appeal, nor is an appellate court required to “maximize” the jury's verdict by entering judgment of conviction for as many lesser offenses as possible. Halaseh v. People, 2020 CO 35M, 463 P.3d 249.   First degree possession of contraband under § 18-8-204.1 (1) is a lesser included offense of first degree introducing contraband by making under § 18-8-203 (1)(b) . People v. Jamison, 2018 COA 121 , 436 P.3d 569.   Second degree possession of contraband is a lesser included offense of first degree possession of contraband. People v. Oliver, 2020 COA 97 , 474 P.3d 207.   Criminal mischief involving damage to another's building or occupied structure is included in first degree arson involving burning the same building or occupied structure because first degree arson, by its very nature, occurs in a single criminal episode. People v. Welborne, 2018 COA 127 , 457 P.3d 71.   Court did not err by instructing the jury on the lesser included offense of soliciting for prostitution in a soliciting for child prostitution case. People v. Ross, 2019 COA 79 , 482 P.3d 452, aff'd on other grounds, 2021 CO 9, 479 P.3d 910.   E. Not A Lesser Included Offense.   The crime of sexual assault on a child as part of a pattern of sexual abuse is not a lesser included offense of the crime of sexual assault on a child by one in a position of trust. In addition, neither of these are sentence enhancers for a person convicted of sexual assault on a child. All are separate crimes and each requires proof of facts not required by any of the others. People v. Valdez, 874 P.2d 415 (Colo. App. 1994).   Sexual assault on a child does not differ from sexual assault on a child by one in a position of trust only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission. In fact, these offenses do not involve different degrees of culpability, injury, or risk of injury, but they do differ with respect to other elements. Because the offenses differ in ways other than those contemplated by subsection (5)(c), sexual assault on a child is not a lesser included offense of sexual assault by one in a position of trust. People v. Leske, 957 P.2d 1030 (Colo. 1998).   Conviction of sexual assault on a child by one in a position of trust does not encompass the offense of sexual assault on a child as a lesser included offense. Subsection (5)(a) does not require an “evidentiary test” for determining lesser included offenses. Instead, a “strict elements test”, or a comparison of the statutory elements of the offenses in question, is required in order to determine whether an offense is lesser included. Applying this test, the language of sexual assault on a child offense requires that the victim be 15 years of age or younger, whereas the position of trust offense requires only that the victim be less than 18 years of age. Thus, each offense requires proof of a fact that the other does not, and sexual assault on a child is not a lesser included offense of sexual assault on a child by one in a position of trust. People v. Leske, 957 P.2d 1030 (Colo. 1998).   Convictions for solicitation to commit sexual assault on a child by one in a position of trust and attempted sexual assault on a child do not merge because each requires proof of intent to commit a different underlying offense. People v. Douglas, 2012 COA 57 , 296 P.3d 234.   Second degree burglary not lesser included offense of first degree burglary because conviction of class 3 felony second degree burglary required proof of a fact beyond the proof required for first degree burglary, even though entry was made into only one condominium unit. People v. Ball, 813 P.2d 759 (Colo. App. 1990).   When defendant's burglary conviction for first degree burglary is vacated as to victim, defendant's conviction for third degree assault as to the same victim is not a lesser included offense and thus does not merge. People v. Fuentes, 258 P.3d 320 (Colo. App. 2011).   Burglary is an offense against property, and the general assembly intended the additional element of assault in the first degree burglary statute to modify and aggravate the offense of burglary and not to change the gravamen of the crime. People v. Fuentes, 258 P.3d 320 (Colo. App. 2011).   A single entry can support only one conviction of first degree burglary, even if multiple assaults occur. People v. Fuentes, 258 P.3d 320 (Colo. App. 2011).   Not error to impose consecutive sentences of 32 years for first degree assault and life sentence for murder. People v. Ager, 928 P.2d 784 (Colo. App. 1996).   Attempted first degree assault is not a lesser included offense of attempted first degree murder after deliberation. The use of a deadly weapon is an element of attempted assault in the first degree but not of attempted murder. People v. Petschow, 119 P.3d 495 (Colo. App. 2004).   Under former criminal code, assault with deadly weapon was not a lesser included offense of assault with intent to commit murder. People v. Rivera, 186 Colo. 24 , 525 P.2d 431 (1974).   Heat of passion manslaughter is not a pure lesser included offense of either first or second degree murder because the greater inclusive offenses do not necessarily establish every essential element of this form of manslaughter. People v. Lewis, 676 P.2d 682 (Colo. 1984).   Attempted reckless manslaughter is not a lesser included offense of first degree assault with intent to cause serious bodily injury, because the fact that a defendant causes serious bodily injury to a person does not necessarily mean that he or she recklessly took a step toward causing the death of a person. People v. Tallwhiteman, 124 P.3d 827 (Colo. App. 2005).   Convictions do not merge when the elements required to be proven to convict defendant as a complicitor to an assault committed by another are not identical to those required to be proven to convict him of committing first degree assault as a principal. People v. Martinez, 1 P.3d 192 (Colo. App. 1999).   Second degree assault is not a lesser included offense of aggravated robbery because second degree assault requires proof of bodily injury and specific intent. People v. Dotson, 55 P.3d 175 (Colo. App. 2002).   Menacing is not a lesser included offense of second degree assault because the offenses differ with respect to both the culpability required and the injury or risk of the injury required. People v. Palmer, 944 P.2d 634 (Colo. App. 1997), aff'd in part and rev'd in part on other grounds, 964 P.2d 524 (Colo. 1998).   Third degree assault not included in robbery. Third degree assault requires proof of bodily injury, an element not necessary to culpability under robbery; therefore, the former offense is not included within the latter. People v. Flores, 39 Colo. App. 556, 575 P.2d 11 (1977).   First degree criminal trespass is not a lesser included offense of first degree burglary. However, it is a lesser nonincluded offense, and the trial court may instruct a jury on such offense over the objection of the defendant if the charging document provides notice that defendant might have to defend against that charge. People v. Satre, 950 P.2d 667 (Colo. App. 1997). But see People v. Gillis, 2020 COA 68 , 471 P.3d 1197, annotated above.   First degree criminal trespass is not a lesser included offense of second degree burglary. People v. Denhartog, 2019 COA 23 , 452 P.3d 148.   First degree criminal trespass is distinct from misdemeanor theft. People v. Martinez, 640 P.2d 255 (Colo. App. 1981).   When the essential elements of vehicular homicide are compared to those of criminally negligent homicide, it becomes clear that criminally negligent homicide is not a lesser included offense in a charge brought under § 18-3-106 (1)(b) . People v. Nhan Dao Van, 681 P.2d 932 (Colo. 1984).   Reckless driving is not a lesser included offense of vehicular homicide and vehicular assault because reckless driving posed an additional risk of injury to other persons and property in the vicinity of the accident. People v. Clary, 950 P.2d 654 (Colo. App. 1997).   Eluding a police officer, as defined in § 42-4-1413 , is not a lesser included offense of vehicular eluding, as defined in § 18-9-116.5 . People v. Fury, 872 P.2d 1280 (Colo. App. 1993) (decided prior to 1994 amendment relocating former § 42-4-1512 to § 42-4-1413 ); People v. Pena, 962 P.2d 285 (Colo. App. 1997); People v. Esparza-Treto, 282 P.3d 471 (Colo. App. 2011).   None of the elements of the offense of possession of drug paraphernalia are the same as those that relate to the charge of possession of a controlled substance, and thus a jury's finding that a defendant was guilty of the lesser offense would in no way tend to disprove the greater charge nor present a rational basis on which the jury could have chosen between them. People v. Bustos, 725 P.2d 1174 (Colo. App. 1986).   Possession of a controlled substance is not a lesser included offense of distribution of the same controlled substance. People v. Thurman, 948 P.2d 69 (Colo. App. 1997).   Information charging possession of narcotics with intent to sell was sufficient to advise the defendant that he must be prepared to controvert evidence of possession and to defend on that charge. Because possession is an essential element of possession with intent to sell, the defendant can scarcely claim surprise by the introduction of evidence establishing possession. People v. Cooke, 186 Colo. 44 , 525 P.2d 426 (1974).   Rape and incest, as well as the other named kindred offenses, remain separate and distinct offenses. McGee v. People, 160 Colo. 46 , 413 P.2d 901 (1966).   As do assault and kidnapping. The facts necessary to prove that the defendant was guilty of assault with a deadly weapon were not the same as those required to prove that the defendant was guilty of kidnapping. Johnson v. People, 174 Colo. 413 , 484 P.2d 110 (1971).   Sexual assault is not a lesser included offense of, and therefore not merged into, second degree kidnapping involving sexual assault. People v. Henderson, 810 P.2d 1058 (Colo. 1991); People v. Martinez, 32 P.3d 520 (Colo. App. 2001); People v. Ramirez, 140 P.3d 169 (Colo. App. 2005); Lewis v. People, 261 P.3d 480 (Colo. 2011).   Since reckless endangerment requires proof of an element that is not required to prove first degree assault on a peace officer, it is not a lesser included offense of such charge. The trial court did not err when it refused defendant's tendered jury instruction on reckless endangerment as a lesser included offense on that charge. People v. Delgado-Elizarras, 131 P.3d 1110 (Colo. App. 2005).   Arson is distinct from criminal mischief because each contains elements not required for the other. People v. Meyer, 952 P.2d 774 (Colo. App. 1997).   Littering is not a lesser included offense of throwing a missile at a vehicle. A throwing a missile offense is completed once a person knowingly projects a missile, regardless of where it lands. A littering offense is completed only if the object later lands on property. The two offenses occur sequentially and not simultaneously. People v. Kern, 2020 COA 96 , 474 P.3d 197.   A defendant is entitled to a jury instruction on a lesser nonincluded offense where there exists a rational basis in the evidence to simultaneously acquit the defendant of the greater charged offense and convict the defendant of the lesser offense. Montoya v. People, 2017 CO 40, 394 P.3d 676; People v. Naranjo, 2017 CO 87, 401 P.3d 534.   Court did not err in not giving lesser nonincluded offense instruction. Here, there was no rational basis for the jury to simultaneously acquit defendant of felony menacing and convict him of disorderly conduct. People v. Naranjo, 2017 CO 87, 401 P.3d 534.