Colorado Court of Appeals criminal law decision 7-21-11 People v. Chavez

People v. Chavez             Challenge for Cause

Facts: A jury convicted Mr. Chavez of various sexual assault on a child counts.  During voir dire defense counsel disclosed the evidence will show that Mr. Chavez also shot someone other than the complaining witness. Defense counsel then followed up with the jurors about whether that evidence would shift the burden to the defense. The CofA recited the following colloquies:

JUROR P.: To answer quite honestly, I feel lack of judgment shown in the shooting would color my opinion. I'd have a hard time getting past it. I'd have to hear evidence, of course, but the lack of judgment is a big thing.... I feel I probably would just tie those together.

DEFENSE COUNSEL: Same question to you I've been asking everyone.

JUROR P.: [Defendant] only had [a] couple points to start with, yeah, to be honest.

DEFENSE COUNSEL: [It would] give [the prosecution] a little advantage, improving the allegations in this case, in your mind?

JUROR P.: Yeah ... I'm really anti-violent, just the ability to pull a trigger to shoot someone, that shows a lot of character. To me it's a big thing.

DEFENSE COUNSEL: So more likely you would think that he is then guilty of sex assault?

JUROR P.: Hard to say without hearing the evidence. Definitely, I would be coloring in that direction.

DEFENSE COUNSEL: Starting off, starting from the beginning?

JUROR P.: I feel that way. After this exchange, one more prospective juror stated he could hold the prosecution to its burden.

The [trial] court then asked, “Anyone [we] haven't spoken to ... that feel you would not be able to—?” JUROR M raised his hand, and then said:

I definitely feel ... it could come down to he said she said. And I agree with the gentleman over here, violent shooting, shooting is a violent act and therefore it would dictate a character trait or behavior or pattern that you know I would essentially be kind of somebody else [sic] a tipping point if it was at that level.

Juror R. also raised his hand and said, “I think you're telling a story here [and] you're leaving one chapter out. To me it's all—that's the book of who the person is.” Defense counsel asked him if “[the prosecution's] burden gets a little bit less because of the shooting,” and Juror R. said, “Yes.”

(Emphasis added)

Issue: Whether the trial court abused its discretion in denying defense counsel’s challenges to Jurors P, R, and M.

Held: Yes.

Reasoning: The CofA did not address the issues related to Juror M because the Court reversed Mr. Chavez’s convictions based upon the bias both Juror P and R evinced against Mr. Chavez.

            The Court emphasized in its ruling that the jurors stated such bias after a “strong statements” of other jurors stating they would be able to follow the Court’s instruction not to use the shooting incident as proof Mr. Chavez committed a sexual assault. Further, the Court highlighted how many times the trial court and defense counsel told the jurors of the prosecution’s burden prior to the above colloquies. Thus, the Court concluded, “These two jurors must have been aware that their views diverged significantly from those of nearly all the other jurors who spoke before they did, and yet they persisted in their pronouncements of bias, thus demonstrating ‘an unwillingness to accept and apply those principles that form the bedrock of a fair trial.’”

Colorado Court of Appeals criminal law decision 7-21-11 People v. Esparza-Treto

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?

Held: No.

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?

Held: Yes.

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?

Held: Yes.

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.