August 8, 2011
People v. Esparza-Treto 1˚ Assault - Extreme Indifference / 2˚ & 3˚ Assault and Definition of Deadly Weapon / Merger (Reckless Driving and Vehicular Eluding)
Facts: Mr. Esparza-Treto attempted to flee the state patrol, crashed into another car, and unfortunately, injured both the passenger in his car and the driver of the other car. A jury convicted Mr. Esparza-Treto of 1˚ assault (under extreme indifference), 2˚ assault, 3˚ assault, two counts of vehicular assault, vehicular eluding, and reckless driving, speeding, and violation of a traffic control device.
Issue: Whether the prosecution provided sufficient evidence to convict Mr. Esparza-Treto of 2˚, or 3˚ assault?
Reasoning: The Court formulated a rule as to whether an object may be found to be a deadly weapon. The Court stated, “Thus, the fact that an object is capable of causing serious bodily injury is not alone enough. That an object was capable of producing serious bodily injury ‘would be irrelevant for purposes of section 18–1–901(3)(e) had [the object] not been deployed as a weapon. The defendant need not intend to cause serious bodily injury; he must merely use as a weapon an object or instrument that is capable of causing such injury.’” Here, The CofA reversed the 2˚ assault and 3˚ assault convictions because the Court found Mr. Esparza-Treto did not use his car as a deadly weapon.
Issue: Whether there was sufficient evidence for a jury to convict Mr. Esparza-Treto of 1˚ degree assault – extreme indifference?
Reasoning: The CofA regales us with the Colorado State Trooper tale of chasing Mr. Esparza-Treto through the streets of Grand Junction, Colorado. Further, nothing the CofA cited made this case anymore aggravated than any normal vehicular eluding with injury – dude drove; dude drove fast to get away from the police; dude hit someone. The CofA did not do any thorough analysis of why this situation is any different than those under a vehicular eluding with injury. Lastly, the CofA simply glosses over the fact that Mr. Esparza-Treto attempted to avoid the very car in which he collided. (Thus, Mr. Esparza-Treto did not act with extreme indifference to the sanctity of human life – he tried to avoid hurting anyone. However, this argument did not carry the day). Unfortunately, Mr. Esparza-Treto pulled this stunt in Grand Junction, a community hostile to anyone of Hispanic origin, and that jury convicted him.
Prior to this case, most of the case law under extreme indifference comes from cases where the goal of the assailant is to harm or kill – but the intended target may not always be apparent. See People v. Lee, 914 P.2d 441 (Colo. App. 1995)(firing into a car); People v. Ellis, 30 P.3d 774 (Colo.App. 2001)(shooting into a house); People v. Castro, (657 P.2d 932 (Colo. 1983)(shooting into a bar); People v. Candelaria, 148 P.3d 178 (Colo. 2006)(shooting into a car); People v. Meyer, 952 P.2d 774 (Colo.App. 1997)(torching an apartment building).
However, the prosecutors in Colorado seemingly all went to the same training, and that stellar brain trust theorized they could start charging vehicular homicides and vehicular eluding with injury cases under a theory of extreme indifference. The judiciary readily avoided the actually problem with this theory. See People v. Reynolds, 252 P.3d 1128 (Colo.App. 2010)(supposed road rage ends in a death sufficient evidence under extreme indifference 1˚ murder).
Issue: Whether reckless driving and vehicular eluding merge?
Reasoning: An element of vehicular eluding requires the accused to operate the car in a reckless manner, which is, of course reckless driving. Thus, the convictions for reckless driving and vehicular eluding merge.