People v. Garcia (1999)

In People v. Garcia, 1 P.3d 214 (Colo. App. 1999), the Court held that plain error occurred when the instructions given to the jury incorrectly characterized second degree murder upon provocation as a separate, lesser-included offense of first degree murder and second degree murder, and then impermissibly assigned to the prosecution the burden of proving the existence of provocation as an element of that non-existent offense. However, the division in Garcia did not hold or even suggest that it would be plain error not to give a proper special interrogatory, as discussed above, when the evidence might support a finding of sudden heat of passion, but the defendant does not request it.