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PEOPLE v. CAPONEY

No. 81SA219.

647 P.2d 668 (1982)

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Juan Caloca CAPONEY, Defendant-Appellee.

Supreme Court of Colorado, En Banc.

July 6, 1982.

Attorney(s) appearing for the Case

John F. Healy, Dist. Atty., Breckenridge, J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Nathan B. Coats, William Morris, Asst. Attys. Gen., Denver, for plaintiff-appellant.

Itkin, Thorson & Burns, P. C., Gerald Itkin, David M. Thorson, Breckenridge, for defendant-appellee.

HODGES, Chief Justice.

The district attorney appeals the trial court's ruling that section 12-22-319(5), C.R.S.1973 (1978 Repl.Vol. 5), is unconstitutional as providing a different penalty for identical conduct also proscribed in section 12-22-126(1)(e), C.R.S.1973 (1978 Repl.Vol. 5) (1981 Supp.). The premise for the trial court's ruling was found to have no merit in People v. Wellington, Colo., 633 P.2d 1390

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