CO Code § 18-3-103 (2021)
2021 Colorado Code|Title 18 - Criminal Code|Article 3 - Offenses Against the Person|Part 1 - Homicide and Related Offenses|§ 18-3-103. Murder in the Second Degree - Definitions

  A person commits the crime of murder in the second degree if:   The person knowingly causes the death of a person; or    Acting either alone or with one or more persons, he or she commits or attempts to commit felony arson, robbery, burglary, kidnapping, sexual assault as prohibited by section 18-3-402, sexual assault in the first or second degree as prohibited by section 18-3-402 or 18-3-403, as those sections existed prior to July 1, 2000, or a class 3 felony for sexual assault on a child as provided in section 18-3-405 (2), or the felony crime of escape as provided in section 18-8-208, and, in the course of or in furtherance of the crime that he or she is committing or attempting to commit, or of immediate flight therefrom, the death of a person, other than one of the participants, is caused by any participant. (1.5) It is an affirmative defense to a charge of violating subsection (1)(b) of this section that the defendant:   Was not the only participant in the underlying crime; and    Did not commit the homicidal act or in any way solicit, request, command, importune, cause, or aid the commission thereof; and    Was not armed with a deadly weapon; and    Did not engage himself or herself in or intend to engage in and had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious bodily injury.          Diminished responsibility due to self-induced intoxication is not a defense to murder in the second degree. (2.5) (Deleted by amendment, L. 96, p. 1844 , § 12, effective July 1, 1996.)      Except as otherwise provided in paragraph (b) of this subsection (3), murder in the second degree is a class 2 felony.    Notwithstanding the provisions of paragraph (a) of this subsection (3), murder in the second degree is a class 3 felony where the act causing the death was performed upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the defendant sufficiently to excite an irresistible passion in a reasonable person; but, if between the provocation and the killing there is an interval sufficient for the voice of reason and humanity to be heard, the killing is a class 2 felony.    For purposes of determining sudden heat of passion pursuant to subsection (3)(b) of this section, a defendant's act does not constitute an act performed upon a sudden heat of passion if it results solely from the discovery of, knowledge about, or potential disclosure of the victim's actual or perceived gender, gender identity, gender expression, or sexual orientation, including but not limited to under circumstances in which the victim made an unwanted nonforcible romantic or sexual advance toward the defendant.       A defendant convicted pursuant to subsection (1) of this section shall be sentenced by the court in accordance with the provisions of section 18-1.3-406.    As used in this section, unless the context otherwise requires:   “Gender identity” and “gender expression” have the same meaning as in section 18-1-901 (3)(h.5).    “Intimate relationship” has the same meaning as in section 18-6-800.3.    “Sexual orientation” has the same meaning as in section 18-9-121 (5)(b).         History. Source: L. 71: R&RE, p. 418, § 1. C.R.S. 1963: § 40-3-103 . L. 75: (1)(a) amended, p. 622, § 1, effective March 19. L. 77: (1)(a) amended and (1)(b) repealed, pp. 960, 971, §§ 6, 67, effective July 1. L. 86: (4) added, p. 776, § 1, effective July 1. L. 95: IP(1) amended and (2.5) added, p. 1222, § 5, effective July 1. L. 96: Entire section amended, p. 1844, § 12, effective July 1. L. 2002: (4) amended, p. 1512, § 184, effective October 1. L. 2020: (3)(c) and (5) added,(SB 20-221), ch. 279, p. 1368, § 6, effective July 13. L. 2021: (1) amended and (1.5) added,(SB 21-124), ch. 58, p. 236, § 2, effective September 15.    Editor's note:   Section 6(2) of chapter 58 (SB 21-124), Session Laws of Colorado 2021, provides that the act changing this section applies to offenses committed on or after September 15, 2021.   Cross references:   For the legislative declaration contained in the 2002 act amending subsection (4), see section 1 of chapter 318, Session Laws of Colorado 2002. For the legislative declaration in SB 20-221, see section 1 of chapter 279, Session Laws of Colorado 2020.   ANNOTATION   Analysis     I. GENERAL CONSIDERATION.    II. ELEMENTS OF OFFENSE.    III. TRIAL AND PROSECUTION.   A. Evidence.    B. Defenses.    C. Instructions.       IV. VERDICT AND SENTENCE.     I. GENERAL CONSIDERATION.   Law reviews. For article, “Homicides Under the Colorado Criminal Code”, see 49 Den. L. J. 137 (1972). For article, “Mens Rea and the Colorado Criminal Code”, see 52 U. Colo. L. Rev. 167 (1981). For note, “Extreme-Indifference Murder: The Impact of People v. Marcy”, see 54 U. Colo. L. Rev. 83 (1982).   Annotator's note. Since § 18-3-103 is similar to former § 40-2-3 , C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.   This section is not unconstitutionally overbroad. People v. Gladney, 194 Colo. 68 , 570 P.2d 231 (1977), cert. denied, 434 U.S. 1038, 98 S. Ct. 776, 54 L. Ed. 2d 787 (1978).   Subsection (2) is not violative of the due process clause of the Colorado Constitution. People v. Campisi, 649 P.2d 1053 (Colo. 1982).   This section does not violate due process rights by rendering irrelevant evidence concerning an impaired mental condition due to voluntary intoxication. People v. Loscutoff, 661 P.2d 274 (Colo. 1983).   Distinction between second degree murder and manslaughter constitutional. The difference between the mental states required for second degree murder (knowingly) and manslaughter (recklessly) mirrors the distinction between practically certain of result on the one hand, and probability or contingency of result on the other, and this difference is sufficient to avoid an equal protection violation. People v. Padilla, 638 P.2d 15 (Colo. 1981).   Section constitutionally distinguishable from manslaughter statute, § 18-3-104 (1)(a) , because the two statutes require different mens rea elements for conviction. People v. DelGuidice, 199 Colo. 41 , 606 P.2d 840 (1979); People v. Padilla, 638 P.2d 15 (Colo. 1981). See People v. White, 199 Colo. 82 , 606 P.2d 847 (1980).   Statutory prohibition of extreme indifference murder in § 18-3-102 (1)(d) (as it existed prior to the 1983 amendment) violated equal protection of the laws because it could not reasonably be distinguished from the lesser offense of second degree murder as defined in this section. People v. Marcy, 628 P.2d 69 (Colo. 1981); Crespin v. People, 721 P.2d 688 (Colo. 1986).   This section does not proscribe conduct identical to § 18-3-202 (1)(c) and therefore does not violate equal protection because § 18-3-202 (1)(c) requires only a substantial step toward causing serious bodily harm and this section requires a substantial step toward causing death. People v. Ornelas-Licano, 2020 COA 62 , __ P.3d __.   Double jeopardy prohibits simultaneous convictions for first and second degree murder. A court cannot impose cumulative punishments for the same offense unless the legislature authorizes it to do so. The legislature intended to permit a defendant to suffer only one conviction of murder for the killing of a single victim. Wood v. Milyard, 721 F.3d 1190 (10th Cir. 2013).   Both first degree murder by extreme indifference and second degree murder are committed “knowingly” and are thus general intent crimes. People v. Rodriguez, 888 P.2d 278 (Colo. App. 1994).   The general assembly intended that there be two grades of murder. People v. Sneed, 183 Colo. 96 , 514 P.2d 776 (1973).   Distinction intended to be meaningful. The general assembly intended that there be a meaningful distinction between first and second degree murder. People v. Mullins, 188 Colo. 23 , 532 P.2d 733 (1975).   The distinctions between § 18-3-102 and this section are not inconsequential and satisfy due process requirements and the informational requirements of § 16 of art. II, Colo. Const.People v. Mendoza, 195 Colo. 19 , 575 P.2d 403 (1978).   Lesser included offense of first degree murder. The difference in substance between first degree murder and second degree murder is that first degree murder requires the additional element of premeditation. Since proof of first degree murder necessarily establishes every element of second degree murder, the latter is necessarily a lesser included offense of the former. People v. Gladney, 194 Colo. 68 , 570 P.2d 231 (1977), cert. denied, 434 U.S. 1038, 98 S. Ct. 776, 54 L. Ed. 2d 787 (1978).   A conviction for attempted second degree murder cannot merge with a conviction for attempted first degree murder with extreme indifference when the offenses had different victims. People v. Torres, 224 P.3d 268 (Colo. App. 2009).   Felony menacing is not a lesser included offense of attempted second degree murder. People v. Torres, 224 P.3d 268 (Colo. App. 2009).   The offense of second degree murder does not establish every element of felony menacing. Attempted second degree murder requires a defendant to knowingly engage in conduct that is a substantial step toward causing the death of a person. There is no requirement that the victim be in fear of imminent serious bodily injury. Thus, an attempted second degree murder conviction does not necessarily establish all the elements of menacing. People v. Torres, 224 P.3d 268 (Colo. App. 2009).   Second degree murder as defined in this section is “conceptually distinguishable” from intentional manslaughter. People v. Gladney, 194 Colo. 68 , 570 P.2d 231 (1977), cert. denied, 434 U.S. 1038, 98 S. Ct. 776, 54 L. Ed. 2d 787 (1978).   Applied in Salas v. District Court, 190 Colo. 447 , 548 P.2d 605 (1976); Reliford v. People, 195 Colo. 549 , 579 P.2d 1145 (1978); People v. Sepeda, 196 Colo. 13 , 581 P.2d 723 (1978); People v. Fink, 41 Colo. App. 47, 579 P.2d 659 (1978); People v. Parsons, 199 Colo. 421 , 610 P.2d 93 (1980); People v. Botham, 629 P.2d 589 (Colo. 1981); People v. Chavez, 629 P.2d 1040 (Colo. 1981); People v. Lee, 630 P.2d 583 (Colo. 1981); Coston v. People, 633 P.2d 470 (Colo. 1981); People v. Harris, 633 P.2d 1095 (Colo. App. 1981); People v. District Court, 652 P.2d 582 (Colo. 1982); People ex rel. Gallagher v. District Court, 656 P.2d 1287 (Colo. 1983); People v. Clark, 662 P.2d 1100 (Colo. App. 1982); People v. Bartowsheski, 661 P.2d 235 (Colo. 1983); People v. Fisher, 759 P.2d 33 (Colo. 1988).   II. ELEMENTS OF OFFENSE.   Term “knowingly” describes the requisite culpability for second degree murder. People v. Marcy, 628 P.2d 69 (Colo. 1981).   No requirement that knowing conduct be directed against person actually killed. There is no requirement that the knowing conduct essential to second degree murder be directed against the person actually killed. On the contrary, the offense is a general intent crime, and as long as the offender knowingly acts in the proscribed manner and causes the death of another, he is guilty of the crime, even though the person killed is not the person against whom the criminal conduct was directed. People v. Marcy, 628 P.2d 69 (Colo. 1981).   Elements of murder in second degree concerning defendant's state of mind are: (1) That the death was more than merely a probable result of the defendant's actions; and (2) that the defendant was aware of the circumstances which made death practically certain. The first is an objective standard; the second, a subjective standard. People v. Mingo, 196 Colo. 315 , 584 P.2d 632 (1978); People v. District Court, 198 Colo. 70 , 595 P.2d 1045 (1979).   The express statutory definition of second degree murder does not include malice as an element. People v. Gladney, 194 Colo. 68 , 570 P.2d 231 (1977), cert. denied, 434 U.S. 1038, 98 S. Ct. 776, 54 L. Ed. 2d 787 (1978).   For discussion of element of implied malice required by former statute, see Walker v. People, 175 Colo. 173 , 489 P.2d 584 (1971); People v. Morant, 179 Colo. 287 , 499 P.2d 1173 (1972); People v. Gallegos, 180 Colo. 238 , 504 P.2d 343 (1972); People v. Tapia, 183 Colo. 141 , 515 P.2d 453 (1973); People v. Garcia, 186 Colo. 167 , 526 P.2d 292 (1974).   Application of specific intent as element. Specific intent as an element of second degree murder applies whenever the events giving rise to a second degree murder charge occurred after the 1973 amendments. People v. Stitt, 40 Colo. App. 355, 575 P.2d 446 (1978).   Second degree murder is general intent crime which entails being aware that one's actions are practically certain to result in another's death. People v. Mingo, 196 Colo. 315 , 584 P.2d 632 (1978).   Second degree murder consists of an unlawful killing without premeditation and deliberation. Washington v. People, 158 Colo. 115 , 405 P.2d 735 (1965), cert. denied, 383 U.S. 953, 86 S. Ct. 1217, 16 L. Ed. 2d 215 (1966).   Conviction requires proof that death natural consequence of unlawful act. A conviction for criminal homicide requires proof beyond a reasonable doubt that the death was a natural and probable consequence of the defendant's unlawful act. People v. Fite, 627 P.2d 761 (Colo. 1981).   Unlawful infliction of wound which develops into fatal infection renders offender criminally responsible for the consequential death. People v. Fite, 627 P.2d 761 (Colo. 1981).   For “premeditated intent” and “intentionally, but without premeditation” as different elements, prior to the 1975 amendment of § 18-3-102 , see People v. Pearson, 190 Colo. 313 , 546 P.2d 1259 (1976).   There is no crime of second degree felony murder in the state of Colorado. Sawyer v. People, 173 Colo. 351 , 478 P.2d 672 (1970).   Subsection (3) sets forth the elements of provocation, which is a mitigating factor and not a separate crime or a lesser included offense of murder in the second degree. If proven, provocation is a statutory mitigating factor that will reduce a defendant's sentence for second degree murder, but it is not an element of a separate offense. Further, to secure a conviction of second degree murder, the prosecution must prove a lack of provocation beyond a reasonable doubt. People v. Garcia, 1 P.3d 214 (Colo. App. 1999), aff'd, 28 P.3d 340 (Colo. 2001).   The general assembly intended to eliminate the offense of heat of passion manslaughter and create a single crime of second degree murder with two different felony levels by making provocation, or acting in the heat of passion, a factor in mitigation of second degree murder. People v. Martinez, 32 P.3d 582 (Colo. App. 2001).   Second degree murder is a per se crime of violence, even if committed in the heat of passion. People v. Martinez, 32 P.3d 582 (Colo. App. 2001).   Second degree murder is a lesser included offense of first degree murder as well as the associated attempt offenses. Brown v. People, 239 P.3d 764 (Colo. 2010).   III. TRIAL AND PROSECUTION.   A. Evidence.   It is the people's burden to make out a case that would have sustained a verdict of guilty of first or second degree murder before the prosecution is entitled to instructions thereto. Leonard v. People, 149 Colo. 360 , 369 P.2d 54 (1962).   Subsection (2) does not create any presumption of culpability, conclusive or otherwise, and the prosecution retains the burden of establishing the defendant's guilt as to all elements of the crime beyond a reasonable doubt. People v. Morgan, 637 P.2d 338 (Colo. 1981).   Prosecution's burden of proving “knowingly”. Subsection (2) does not lessen the prosecution's constitutional burden to prove the requisite culpability of “knowingly” for a second-degree murder. People v. Gallegos, 628 P.2d 999 (Colo. 1981).   Where the trial court admits evidence as to the defendant's diminished mental capacity and such evidence is considered as to the charge of murder in the second degree, subsection (2) does not unconstitutionally restrict the defense in contesting the culpability element of the charge nor does it lessen the prosecution's burden of proving guilt beyond a reasonable doubt. People v. Gallegos, 628 P.2d 999 (Colo. 1981).   Proof of killing alone is not murder. Proof of the mere abstract fact that the accused killed the deceased will not sustain a verdict of guilty of first or second degree murder based on instructions thereto. Leonard v. People, 149 Colo. 360 , 369 P.2d 54 (1962).   Presumption of intent to kill may be presumed or implied as inference of fact from act itself with regard to second degree murder. People v. Morant, 179 Colo. 287 , 499 P.2d 1173 (1972).   The use of a deadly weapon is sufficient to support finding of second degree murder. Hervey v. People, 178 Colo. 38 , 495 P.2d 204 (1972).   Use of a deadly weapon is not in itself sufficient to show deliberation. People v. Hamrick, 624 P.2d 1333 (Colo. App. 1979), aff'd, 624 P.2d 1320 (Colo. 1981).   Evidence sustaining first degree verdict sustains verdict in second degree. When evidence viewed in its most favorable light was sufficient to sustain a verdict of first degree murder, that evidence must perforce sustain a finding of second degree murder. People v. Lankford, 185 Colo. 445 , 524 P.2d 1382 (1974).   Jury's province to determine degree evidence justifies. Assuming the sufficiency of the evidence to support first degree murder, it is strictly within the province of the jury to evaluate the evidence and say by its verdict whether the evidence justifies a verdict of first or second degree murder. People v. Lankford, 185 Colo. 445 , 524 P.2d 1382 (1974).   First and second degree murder properly submitted to jury. Where there was sufficient evidence to support the contention of the prosecution that the offense of murder in the first degree had been committed, but a jury could find from the evidence that because defendant had been the victim of a robbery at the hands of decedent he was seeking revenge, it was within the province of the jury to determine whether the evidence established beyond a reasonable doubt that there was no justification or considerable provocation in the circumstances of the homicide; hence, an instruction and form of verdict on second degree murder was proper. Vigil v. People, 143 Colo. 328 , 353 P.2d 82 (1960).   Court properly excluded defendant's expert heat of passion testimony because the heat of passion mitigator does not apply when a person seeks out the highly provoking act in question, as defendant did here. Therefore, trial court properly excluded the testimony since it would not have been helpful to the jury. People v. Valdez, 183 P.3d 720 (Colo. App. 2008).   After properly refusing to allow defendant's expert heat of passion testimony, trial court erred by instructing the jury on the heat of passion mitigator. People v. Valdez, 183 P.3d 720 (Colo. App. 2008).   Section 18-1-803 does not require evidence of any psychiatric abnormality or independent testimony to analyze the effect of a blow on the defendant's mental state. This effect may be inferred from the evidence present. People v. Delaney, 44 Colo. App. 366, 620 P.2d 44 (1980).   Court may deny admitting testimony that alcohol found in victim's bloodstream. As a matter of law, a trial court does not abuse its discretion in denying the admission of an expert's testimony that some alcohol and drug traces were found in the murder victim's bloodstream without any effort to show how such substances might have affected the victim's behavior. People v. Delaney, 44 Colo. App. 366, 620 P.2d 44 (1980).   Instruction on mental condition required if any evidence tends to establish impairment. An instruction on impaired mental condition is required if there is any evidence tending to establish that a blow to the defendant's head impaired his mental condition sufficiently to preclude formation of a conscious objective to cause the victim's death. People v. Delaney, 44 Colo. App. 366, 620 P.2d 44 (1980).   The perpetrator may testify to his state of mind at the time of the homicide, but the jury is not bound by this statement and may consider the attendant circumstances in resolving the matter. Washington v. People, 158 Colo. 115 , 405 P.2d 735 (1965), cert. denied, 383 U.S. 953, 86 S. Ct. 1217, 16 L. Ed. 2d 215 (1966).   Evidence sufficient to establish deliberation. Where a witness testified that the defendant left the room for a moment and returned carrying a wooden stick, that when the victim saw the stick he asked the defendant, “Where did you get that?” and to this question the defendant replied, “In the bedroom”, and began hitting the victim, this evidence was sufficient to establish that the defendant acted after deliberation. People v. Hamrick, 624 P.2d 1333 (Colo. App. 1979), aff'd, 624 P.2d 1320 (Colo. 1981).   Jury had sufficient evidence to determine that defendant was aware his conduct was practically certain to result in victim's death. People v. Fry, 74 P.3d 360 (Colo. App. 2002), aff'd on other grounds, 92 P.3d 970 (Colo. 2004).   Sufficient evidence to support a jury finding that defendant knew his conduct was practically certain to cause death. Evidence of the size differential between the defendant and victim, the way the defendant struck the victim, and the defendant's effort to conceal the crime afterwards was sufficient to support a jury finding that defendant knew his actions would cause death. Mata-Medina v. People, 71 P.3d 973 (Colo. 2003).   Evidence sufficient for conviction of second degree murder. People v. Naranjo, 181 Colo. 273 , 509 P.2d 1235 (1973); People v. Garcia, 186 Colo. 167 , 526 P.2d 292 (1974); Crespin v. People, 721 P.2d 688 (Colo. 1986); People v. Sepulveda, 65 P.3d 1002 (Colo. 2003).   B. Defenses.   Gross negligence constitutes defense. Gross negligence, not being reasonably foreseeable, constitutes a defense to criminal homicide under those circumstances where, but for the gross negligence, death would not have resulted. People v. Fite, 627 P.2d 761 (Colo. 1981).   Intoxication does not negative the necessary capacity to be guilty of second degree murder. Watkins v. People, 158 Colo. 485 , 408 P.2d 425 (1965).   Even if lack of deliberation and premeditation because of intoxication is shown, second degree murder can be proved. Washington v. People, 158 Colo. 115 , 405 P.2d 735 (1965), cert. denied, 383 U.S. 953, 86 S. Ct. 1217, 16 L. Ed. 2d 215 (1966).   An instruction limiting voluntary intoxication as an affirmative defense to second degree murder does not constitute a violation of due process by reducing the people's burden of proving every element of the crime beyond a reasonable doubt. People v. DelGuidice, 199 Colo. 41 , 606 P.2d 840 (1979). See People v. White, 199 Colo. 82 , 606 P.2d 847 (1980); People v. Lee, 199 Colo. 301 , 607 P.2d 998 (1980).   Subsection (2) prohibits admission of evidence of voluntary intoxication to contest the general intent required for second degree murder. People v. Gallegos, 628 P.2d 999 (Colo. 1981); People v. Vasquez, 148 P.3d 326 (Colo. App. 2006).   For voluntary intoxication as an affirmative defense prior to the 1977 amendment of this section, see People v. Cornelison, 192 Colo. 337 , 559 P.2d 1102 (1977).   Killing in self-defense justified. A general fight ensued under circumstances which could lead only to the conclusion on the part of defendant that he was being set upon by at least three assailants. Defendant made his way out of the booth and was obviously trying to get out of the tavern. There was scuffling outside and defendant fired a second shot which fatally wounded deceased. Under the law and the circumstances, defendant had the right to defend himself against the threatened assault of those whose lawlessness and utter disregard of his right resulted in the justifiable killing of one of their number. The conviction of second degree murder is reversed and defendant discharged. Maes v. People, 166 Colo. 15 , 441 P.2d 1 (1968).   Intentional death not result of mutual combat. A defendant cannot avoid the consequences of a deliberate, intentional act of murder on grounds of mutual combat or hot state of blood when the person killed was not a party to the mutual combat nor a bystander accidentally and unintentionally slain. Armijo v. People, 134 Colo. 344 , 304 P.2d 633 (1956).   Attack by policeman was murder. A policeman who, without justification, strikes a citizen with his billy, in a manner calculated to produce death, but without deliberation or premeditation, is guilty of murder in the second degree if death ensues. Campbell v. People, 55 Colo. 302 , 133 P. 1043 (1913).   The refusal of a marriage proposal and the request or demand to leave one's home cannot under any circumstances rise to the level of provocation that would justify a reasonable person to use violence. Thus, there was not sufficient evidence to support the heat of passion mitigator. People v. Ramirez, 56 P.3d 89 (Colo. App. 2002).   C. Instructions.   Error to charge conviction of second degree murder required if killing was without deliberation. It is error to charge the jury that, if they believe the killing was without any deliberation or premeditation whatever, they should convict of murder of the second degree; and such charge must be considered erroneous, even when the conviction is murder of the first degree. Babcock v. People, 13 Colo. 515 , 22 P. 817 (1889).   Error to instruct upon higher degree of homicide when evidence will not support such instructions. Leonard v. People, 149 Colo. 360 , 369 P.2d 54 (1962).   Error in instruction on higher degree of crime not prejudicial to one convicted of lesser crime. Walker v. People, 126 Colo. 135 , 248 P.2d 287 (1952); Armijo v. People, 134 Colo. 344 , 304 P.2d 633 (1956).   The accused cannot complain of an error in instructing the jury as to the higher degree of the crime charged where the jury is properly instructed as to the lower degree and returns a verdict of guilty of the lower degree, especially with respect to charges upon the different grades and degrees of culpable homicide. Walker v. People, 126 Colo. 135 , 248 P.2d 287 (1952); Armijo v. People, 134 Colo. 344 , 304 P.2d 633 (1956); Crespin v. People, 721 P.2d 688 (Colo. 1986).   The court must instruct the jury (1) on what constitutes heat of passion provocation and (2) that the prosecution bears the burden of proving the absence of heat of passion provocation beyond a reasonable doubt. People v. Tardif, 2017 COA 136 , 433 P.3d 60.   Error to instruct that the prosecution was required to prove the elements of provocation beyond a reasonable doubt. Since provocation is a mitigating factor, not a separate offense, the prosecution must prove a lack of provocation in order to secure a conviction of second degree murder. People v. Garcia, 1 P.3d 214 (Colo. App. 1999), aff'd, 28 P.3d 340 (Colo. 2001).   The trial court erred when it did not instruct the jury that the prosecution had to prove the absence of heat of passion provocation beyond a reasonable doubt. People v. Tardif, 2017 COA 136 , 433 P.3d 60.   A provocation instruction is warranted whenever a defendant shows some supporting evidence--regardless of how incredible, unreasonable, improbable, or slight it may be--to establish each factor described in subsection (3)(b). Cassels v. People, 92 P.3d 951 (Colo. 2004).   Instruction on involuntary manslaughter should have been granted. Where one of the defense theories was that the grade of the crime, if there was a crime, was at most involuntary manslaughter because the shooting of the victim was unintentional according to some of the defense evidence presented to the jury, the defendant's request for an instruction on involuntary manslaughter should have been granted in prosecution for second degree murder. People v. Travis, 183 Colo. 255 , 516 P.2d 121 (1973).   Refusal of trial court to instruct on the lesser included offense not in error when there is no evidence to support the instruction. Jones v. People, 711 P.2d 1270 (Colo. 1986).   Where jury was instructed that if it found the people had failed to prove the elements of first degree murder beyond a reasonable doubt, it should consider any of the lesser offenses, not just second degree murder but also provoked passion manslaughter, the instructions adequately described the prosecution's burden of proof and did not unconstitutionally shift the burden of proof to the defendant in violation of his due process rights. People v. Seigler, 832 P.2d 980 (Colo. App. 1991), cert. denied, 846 P.2d 189 (Colo. 1993).   Failure to give instruction on lesser included offense of criminally negligent homicide was harmless, even if assumed to be erroneous, where jury convicted defendant of second degree murder and rejected charge of reckless manslaughter because criminally negligent homicide is a lesser included offense of reckless manslaughter. Jury's selection of the highest available grade of offense was a rejection of the next lower included offense and of all lesser offenses included in the latter. People v. Medina, 51 P.3d 1006 (Colo. App. 2001), aff'd, 71 P.3d 973 (Colo. 2003).   IV. VERDICT AND SENTENCE.   Trial court retains jurisdiction to correct erroneous sentence. Where the court has jurisdiction of the person and subject matter and has entered an erroneous judgment, it retains jurisdiction to correct, modify, and alter it in accordance with the statute. This rule is applicable to the judgment of a district court erroneously sentencing one guilty of second degree murder to life imprisonment, where defendant applied for rendition of a valid judgment after serving several years of the erroneous sentence. People ex rel. Best v. District Court, 115 Colo. 240 , 171 P.2d 774 (1946).   One can be guilty of first degree assault but not attempted second degree murder. A jury's verdict of guilty of first degree assault under § 18-3-202 (1)(e) is not irreconcilable and inconsistent with its verdict of not guilty on the charge of attempted second degree murder under this section. These crimes require different elements of proof, and the jury can find from the very same evidence that an element of one crime is present while an element of another charged crime is absent. People v. Ward, 673 P.2d 47 (Colo. App. 1983).   One is guilty of attempted second degree murder when it is established that the person acted with an awareness that death is certain to result, and proceeds to engage in conduct constituting a substantial step toward causing the death of a person. Because these are not the same elements of first degree assault, attempted second degree murder is not a lesser-included offense to first degree assault. People v. Laurson, 15 P.3d 791 (Colo. App. 2000).   Conviction for first degree assault is not inconsistent with conviction for attempted second degree murder. A defendant can engage in conduct with the intent to cause serious bodily injury while knowing but not caring that the conduct is practically certain to result in death. In such circumstances, the defendant may be found guilty of attempted second degree murder, even though lacking the specific intent to cause death. People v. Gonzales, 926 P.2d 153 (Colo. App. 1996).   Felony child abuse not inconsistent with acquittal of second degree murder. A guilty verdict for felony child abuse is not inconsistent with an acquittal of extreme indifference murder nor second degree murder. People v. Noble, 635 P.2d 203 (Colo. 1981).   Overturned first degree murder conviction resulting in conviction and resentence for second degree murder. Prosecution has discretion to decide whether case with conviction overturned, because of trial court's submission of extreme indifference murder, should be retried on other theories of first degree murder that were originally charged or whether defendant should be convicted and resentenced for second degree murder. Crespin v. People, 721 P.2d 688 (Colo. 1986).   Where conviction was overturned because of jury instruction regarding “after deliberation” element of first degree murder, prosecution has discretion to decide whether case should be retried or whether defendant should be convicted and resentenced for second degree murder. People v. Sepulveda, 65 P.3d 1002 (Colo. 2003).   Second degree murder is a per se crime of violence, even if committed in the heat of passion. Heat of passion is a sentence mitigating factor rather than a separate offense. People v. Darbe, 62 P.3d 1006 (Colo. App. 2002).