People v. Arzabala, No. 10CA0651.

Docket NºNo. 10CA0651.
Citation317 P.3d 1196
Case DateJune 21, 2012
CourtCourt of Appeals of Colorado

317 P.3d 1196

The PEOPLE of the State of Colorado, Plaintiff–Appellee,
v.
Randy ARZABALA, Defendant–Appellant.

No. 10CA0651.

Colorado Court of Appeals,
Div.
V.

June 21, 2012.


[317 P.3d 1200]


John W. Suthers, Attorney General, Wendy J. Ritz, First Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Kielly Dunn, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.


Opinion by Judge LOEB.

¶ 1 Defendant, Randy Arzabala, appeals the judgment of conviction entered on jury verdicts finding him guilty of two counts of vehicular assault (reckless), two counts of leaving the scene of an accident, two counts of providing alcohol to a minor, and one count of aggravated driving after revocation prohibited—leaving the scene of an accident (ADARP).

¶ 2 As a matter of first impression, we conclude, in Section II.B., that the appropriate unit of prosecution in the statute proscribing the offense of leaving the scene of an accident is the number of accident scenes, not the number of victims involved. Accordingly, because defendant was convicted and sentenced on two counts of leaving the scene of an accident, with each conviction corresponding to one of the two victims injured in the same accident, we remand to the trial court with directions to merge defendant's two convictions for leaving the scene of an accident into one, vacate the sentence imposed as to one of the convictions, and correct the mittimus accordingly. In all other respects, we affirm the judgment of conviction.

[317 P.3d 1201]

I. Background

¶ 3 On the evening of October 11, 2008, defendant was driving with two female passengers, K.E. and O.C., both of whom were eighteen years old at the time. All three were drinking alcohol, which defendant had bought earlier that night.

¶ 4 Defendant struck a car driven by K.P., who had been parked on the right side of the road and was attempting to make a U-turn at the time of the collision. K.P. and her passenger, E.P., were seriously injured. K.E. also hit her head and suffered minor injuries, but neither defendant nor O.C. was injured.

¶ 5 Police responded to the scene of the accident and asked defendant for his driver's license and other information. Before receiving any information, however, police focused their attention on attending to K.P. and E.P. Meanwhile, defendant got into the back of an ambulance with K.E. to go to the hospital. On the way to the hospital, he jumped out of the ambulance when it stopped at a traffic light and fled. Later, a police detective learned that defendant was a habitual traffic offender and that his driver's license had been revoked.

¶ 6 In connection with these events, defendant was eventually arrested and charged with several counts: one count of driving under the influence (DUI); two counts of vehicular assault (reckless), with one count corresponding to K.P. as the victim and one count corresponding to E.P. as the victim; two counts of vehicular assault (DUI), with one count corresponding to K.P. and one count corresponding to E.P.; two counts of leaving the scene of an accident, with one count corresponding to K.P. and one count corresponding to E.P.; two counts of providing alcohol to a minor; ADARP (leaving the scene of an accident); and ADARP (DUI).

¶ 7 Before trial, the prosecution and defendant stipulated that both K.P. and E.P. suffered serious bodily injury as a result of the accident. At trial, the prosecution argued and presented evidence to prove that defendant was driving under the influence and was speeding at the time of the accident. The prosecution presented testimony from several witnesses, including K.E. and O.C., who both testified that they were drinking alcohol in the car the night of the accident. Police officers testified that they found alcoholic beverage containers, empty or partially empty, in defendant's car. The prosecution also presented the testimony of an accident reconstruction expert who opined that defendant was driving at a speed between 49 and 60 miles per hour at the time of the accident, well above the posted 35 miles per hour speed limit. The expert further opined that the accident would not have occurred had defendant been driving at the posted speed limit.

¶ 8 Defendant's theory of defense was that his driving was not the proximate cause of the accident. Consistent with his theory of defense, defendant presented argument and evidence attempting to show that K.P.'s conduct was an intervening cause of the accident because she attempted to make a sudden U-turn in front of him immediately before the collision. Although defendant admitted to drinking alcohol the night of the accident, he denied driving under the influence. Defendant also presented testimony of an accident reconstruction expert who testified that defendant was driving at a speed of 39 miles per hour, only four miles above the posted speed limit. The expert opined that the cause of the collision was K.P.'s “failure to properly monitor the roadway, and ensure that it was clear before she made her U-turn.”

¶ 9 The jury convicted defendant of two counts of vehicular assault (reckless); two counts of leaving the scene of an accident; two counts of providing alcohol to a minor; and one count of ADARP (leaving the scene of an accident). The jury acquitted defendant of DUI; two counts of vehicular assault (DUI); and ADARP (DUI).

¶ 10 This appeal followed.

II. Leaving the Scene of an Accident

¶ 11 Defendant makes two contentions regarding his two convictions for leaving the scene of an accident and his conviction for ADARP (leaving the scene of an accident). First, defendant contends that the evidence was insufficient to sustain his convictions for leaving the scene of an accident and for

[317 P.3d 1202]

ADARP (leaving the scene of an accident). Second, defendant contends that his two convictions for leaving the scene of an accident violate constitutional protections against double jeopardy. We reject his first contention and agree with the second.

A. Sufficiency of the Evidence

¶ 12 We first address and reject defendant's contention that the evidence was insufficient to support his two convictions for leaving the scene of an accident and the aggravating factor of leaving the scene of an accident for his ADARP conviction.

¶ 13 When reviewing a sufficiency of the evidence contention, a court must determine whether any rational trier of fact might accept the evidence, taken as a whole and in the light most favorable to the prosecution, as sufficient to support a finding of guilt beyond a reasonable doubt. People v. Sprouse, 983 P.2d 771, 777 (Colo.1999); People v. McIntier, 134 P.3d 467, 471 (Colo.App.2005). The prosecution must be given the benefit of every reasonable inference that might be fairly drawn from the evidence. McIntier, 134 P.3d at 471. The determination of the credibility of witnesses is solely within the province of the fact finder, and it is the fact finder's function in a criminal case to consider and determine what weight should be given to all parts of the evidence and to resolve conflicts, testimonial inconsistencies, and disputes in the evidence. Id. An appellate court is not permitted to act as a “thirteenth juror” and set aside a verdict because it might have drawn a different conclusion had it been the trier of fact. Sprouse, 983 P.2d at 778;McIntier, 134 P.3d at 471–72.

¶ 14 The offense of leaving the scene of an accident, section 42–4–1601, C.R.S.2011, is defined as follows:

The driver of any vehicle directly involved in an accident resulting in injury to, serious bodily injury to, or death of any person shall immediately stop such vehicle at the scene of such accident or as close to the scene as possible but shall immediately return to and in every event shall remain at the scene of the accident until the driver has fulfilled the requirements of section 42–4–1603(1).

§ 42–4–1601(1). Section 42–4–1603(1), C.R.S.2011, imposes the following duties upon a driver who is involved in an accident:


The driver of any vehicle involved in an accident resulting in injury to, serious bodily injury to, or death of any person or damage to any vehicle which is driven or attended by any person shall give the driver's name, the driver's address, and the registration number of the vehicle he or she is driving and shall upon request exhibit his or her driver's license ... and where practical shall render to any person injured in such accident reasonable assistance, including the carrying, or the making of arrangements for the carrying, of such person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that such treatment is necessary or if the carrying is requested by the injured person.

§ 42–4–1603(1).


¶ 15 If a driver fails to discharge his or her duties upon being involved in an accident, section 42–4–1601(2), C.R.S.2011, provides for a range of penalties depending on the degree of harm that results from the accident. A driver commits a class 1 misdemeanor traffic offense if the accident resulted in “injury” to “any person,” a class 5 felony if the accident resulted in “serious bodily injury” to “any person,” and a class 3 felony if the accident resulted in the death of “any person.” § 42–4–1601(2)(a)–(c); People v. Manzo, 144 P.3d 551, 554 (Colo.2006). Here, because the parties stipulated that both K.P. and E.P. suffered serious bodily injury, defendant was charged with two counts of the class 5 felony of leaving the scene of an accident resulting in “serious bodily injury” to “any person.” See§ 42–4–1601(2)(b).

¶ 16 Considering the evidence as a whole, and viewing it in the light most favorable to the prosecution, we conclude that there was sufficient evidence to convict defendant of leaving the scene of an accident and to support the aggravating factor of leaving the scene of an accident for defendant's ADARP conviction. At trial, a police officer testified...

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25 practice notes
  • State v. Ramirez, NO. S-1-SC-35629
    • United States
    • New Mexico Supreme Court of New Mexico
    • 21 Diciembre 2017
    ...legislature intended that each separate child be the appropriate unit of prosecution"); cf. People v. Arzabala , 2012 COA 99 ¶¶ 27, 29, 317 P.3d 1196 (concluding that the unit of prosecution for Colorado's statute criminalizing leaving the scene of an accident is per accident scene because ......
  • People v. Rhea, Court of Appeals No. 12CA1133
    • United States
    • Colorado Court of Appeals of Colorado
    • 8 Mayo 2014
    ...concerns warrant reversal are questions of law reviewed de novo. See, e.g., Lucero, ¶ 19 ; People v. Arzabala, 2012 COA 99, ¶ 19, 317 P.3d 1196 ; see also United States v. McKittrick, 142 F.3d 1170, 1176 (9th Cir.1998) (“We review de novo the question whether an indictment ... is multiplici......
  • People v. Zadra, Court of Appeals No. 10CA1207
    • United States
    • Colorado Court of Appeals of Colorado
    • 24 Octubre 2013
    ...Woellhaf, 105 P.3d at 214 ; People v. McMinn, 2013 COA 94, ¶ 19, ––– P.3d ––––, 2013 WL 3441643 ; People v. Arzabala, 2012 COA 99, ¶ 20, 317 P.3d 1196, 2012 WL 2353784 ; Vigil, 251 P.3d at 448. ¶ 73 Determining whether charges are multiplicitous involves a two-part inquiry. We first identif......
  • People v. Valera-Castillo, Court of Appeals No. 16CA0049
    • United States
    • Colorado Court of Appeals of Colorado
    • 8 Julio 2021
    ...claim that a conviction violates a defendant's constitutional protection against double jeopardy. People v. Arzabala , 2012 COA 99, ¶ 19, 317 P.3d 1196. ¶ 50 The parties agree that Valera-Castillo did not preserve his merger claim. We review unpreserved double jeopardy claims for plain erro......
  • Request a trial to view additional results
25 cases
  • State v. Ramirez, NO. S-1-SC-35629
    • United States
    • New Mexico Supreme Court of New Mexico
    • 21 Diciembre 2017
    ...intended that each separate child be the appropriate unit of prosecution"); cf. People v. Arzabala , 2012 COA 99 ¶¶ 27, 29, 317 P.3d 1196 (concluding that the unit of prosecution for Colorado's statute criminalizing leaving the scene of an accident is per accident scene because the com......
  • People v. Rhea, Court of Appeals No. 12CA1133
    • United States
    • Colorado Court of Appeals of Colorado
    • 8 Mayo 2014
    ...concerns warrant reversal are questions of law reviewed de novo. See, e.g., Lucero, ¶ 19 ; People v. Arzabala, 2012 COA 99, ¶ 19, 317 P.3d 1196 ; see also United States v. McKittrick, 142 F.3d 1170, 1176 (9th Cir.1998) (“We review de novo the question whether an indictment ... is multiplici......
  • People v. Zadra, Court of Appeals No. 10CA1207
    • United States
    • Colorado Court of Appeals of Colorado
    • 24 Octubre 2013
    ...Woellhaf, 105 P.3d at 214 ; People v. McMinn, 2013 COA 94, ¶ 19, ––– P.3d ––––, 2013 WL 3441643 ; People v. Arzabala, 2012 COA 99, ¶ 20, 317 P.3d 1196, 2012 WL 2353784 ; Vigil, 251 P.3d at 448. ¶ 73 Determining whether charges are multiplicitous involves a two-part inquiry. We first identif......
  • People v. Valera-Castillo, Court of Appeals No. 16CA0049
    • United States
    • Colorado Court of Appeals of Colorado
    • 8 Julio 2021
    ...claim that a conviction violates a defendant's constitutional protection against double jeopardy. People v. Arzabala , 2012 COA 99, ¶ 19, 317 P.3d 1196. ¶ 50 The parties agree that Valera-Castillo did not preserve his merger claim. We review unpreserved double jeopardy claims for plain erro......
  • Request a trial to view additional results

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