specially concurring.
I agree with the result reached by the majority, and I agree with most of the analysis contained within that opinion. I write separately, however, because I would rely more upon the language employed by the Colorado General Assembly than upon prior jurisprudence.
Section 18-l-408(5)(a), C.R.S. (1986 Repl. Vol. 8B) states that, if another offense is proven by “the same or less than all of the facts required to establish the commission of the offense charged,” that offense is “included within the charged offense.” (emphasis supplied) And, § 18-l-408(l)(a), C.R.S. (1986 Repl.Vol. 8B) prevents conviction of “more than one offense” if one is “included” within the other “as defined in subsection (5).”
It is to be noted that, while the term “less” or “lesser” might generally bear at least two differing interpretations when reference is made to a “lesser included” offense, § 18-1-408(5)(a) uses this term in only one sense. It refers to an “included” offense as one that is proven by proof of “less than all the facts ” than are needed to be proven in order to convict of the offense charged. Neither § 18-1^08(l)(a) nor § 18-l-408(5)(a) uses the term “less” in reference to the severity of sentence that may be imposed for either the charged or the included offense.
In this context, I agree that the term “facts” refers to the essential factual circumstances (or the factual elements of the offense) that must be proven to support a conviction. Hence, all that is required in order to be an “included” offense within the definition of § 18-l-408(5)(a) is that the evidence necessary to prove the charged offense also, of necessity, prove the included offense. If such is the ease, § 18-l-408(l)(a) prohibits conviction of more than one offense.
*409Here, then, because the People chose to charge defendant with the commission of felony first degree assault, which does not require proof of a specific intent to cause serious bodily injury, but which does require proof of the commission, or an attempt to commit, one of the felonies described in § 18-3-202(l)(d), C.R.S. (1986 Repl.Vol. 8B), proof of all of the necessary factual circumstances of such assault necessarily required proof of all of the elements of the underlying predicate offenses. That being the case, such predicate offenses were “included” within the crime of first degree assault, as that term is defined in § 18 — 1—408(5)(a), and the stricture of § 18-l-408(l)(a) must be applied. And, I would reach this conclusion, based upon the language used by the General Assembly in this statute, even without the prior jurisprudence contained in Boulies v. People, 770 P.2d 1274 (Colo.1989); People v. Bartowsheski, 661 P.2d 235 (Colo.1983); and People v. Moore, 860 P.2d 549 (Colo.App.1993).
Finally, it seems evident to me that, in adopting § 18 — 3—202(l)(d), the General Assembly intended to impose a greater penalty upon those persons committing the offenses listed in that statute, if an assault occurs and serious bodily injury results during the commission of one of those offenses. This legislative goal could have been accomplished by the adoption of a sentence enhancing statute, in which event the problem facing us here would not have been presented. See Armintrout v. People, 864 P.2d 576 (Colo.1994). The General Assembly chose not to take this course of action, however.
Rather, with full knowledge of the provisions of § 18-l-408(l)(a) and § 18 — 1— 408(5)(a), it chose to create an entirely new crime. And, we are required to apply the lesser included offense statute to that statutory offense in the same manner that we must apply it to all other offenses. Any anomaly resulting from our application, therefore, is caused by the specific language selected to express the legislative intent. While we may be reluctant to apply this plain language, we, nevertheless, must do so.