People v. Marquez, 02CA0204.

• Decision Date: 01 July 2004
• Docket Number: No. 02CA0204.,02CA0204.
• Citation: 107 P.3d 993
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joshua MARQUEZ, Defendant-Appellant.
• Court: Colorado Court of Appeals

107 P.3d 993

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joshua MARQUEZ, Defendant-Appellant.

No. 02CA0204.

Colorado Court of Appeals, Div. IV.

July 1, 2004.

As Modified on Denial of Rehearing July 29, 2004.

Certiorari Denied February 14, 2005.

Ken Salazar, Attorney General, Catherine P. Adkisson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Jud Lohnes, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge VOGT.

Defendant, Joshua Marquez, appeals the judgment of conviction entered on a jury verdict finding him guilty of vehicular homicide, first degree aggravated motor vehicle theft, and leaving the scene of an accident involving death. We affirm.

Defendant was driving a stolen van through a residential area at approximately twice the posted speed limit when he struck a car driven by a woman who had just backed out of her driveway. The woman died from the injuries she received.

I.

Defendant contends the trial court failed to instruct the jurors properly on the law of causation and independent intervening cause in connection with the charge of vehicular homicide. We disagree.

Section 18-3-106(1)(a), C.R.S.2003, states: "If a person operates or drives a motor vehicle in a reckless manner, and such conduct is the proximate cause of the death of another, such person commits vehicular homicide."

Under this statute, a defendant is responsible for the death of another if the death is a natural and probable consequence of the defendant's misconduct. Unlawful conduct that is broken by an independent intervening cause cannot be the proximate cause of the death of another. People v. Gentry, 738 P.2d 1188 (Colo.1987); see also People v. Stewart, 55 P.3d 107 (Colo.2002)(Stewart II).

An independent intervening cause is an act of an independent person or entity that destroys the causal connection between the defendant's act and the victim's injury and thereby becomes the cause of the victim's injury. To qualify as an intervening cause, an event must be unforeseeable and one in which the accused does not participate. Simple negligence is foreseeable, and thus may not constitute an independent intervening cause. However, gross negligence is unforeseeable behavior that may serve as an intervening cause. Stewart II, supra.

Although the causation element of the charged offense must be submitted to the jury, not all potential defenses to this element are jury issues. Only defenses raised and supported by some evidence fall within the province of the jury. Thus, a defendant seeking an intervening cause instruction must present some credible evidence to support the defense. The trial court must make the threshold determination of whether the intervening cause defense can be supported by the evidence. People v. Saavedra-Rodriguez, 971 P.2d 223 (Colo.1998)(where defendant's offer of proof was insufficient to show that allegedly improper medical care amounted to gross negligence, court of appeals erred in ruling that intervening cause issue should have gone to the jury); see Stewart II, supra (holding that intervening cause instruction would have been incorrect because facts of case did not implicate an intervening cause); People v. Lopez, 97 P.3d 277, 2004 WL 439384 (Colo.App. No. 02CA0443, Mar. 11, 2004)(no right to intervening cause instruction where other driver's conduct, even if negligent, did not amount to gross negligence).

Here, defendant tendered instructions on the affirmative defense of independent intervening cause, based on language in People v. Stewart, 26 P.3d 17 (Colo.App.2000)(Stewart I), which was reversed in Stewart II. The court did not give defendant's tendered instructions. Instead, it instructed the jury, in the elemental instruction on vehicular homicide, that the prosecution had to prove beyond a reasonable doubt that, along with other elements, defendant's conduct was the proximate cause of the death of another. It then gave the jury the following instruction defining "proximate cause":

"Proximate cause" means a cause which in the natural and probable sequence produced the claimed injury. It is a cause without which the injury would not have been sustained.

If more than one act or failure to act contributed to the claimed injury, then each act or failure to act may have been a "proximate cause" of the injury. A proximate cause does not have to be the only cause or the last or nearest cause. It is sufficient if the natural and probable way that some act or failure to act caused some or all of the injury.

One's conduct is not a "proximate cause" of another's injuries, however, if, in order to bring about such injuries, it was necessary that his or her conduct combine with or join with an "intervening cause" which also contributed to the cause of the injuries.

An "intervening cause" is a cause which a reasonably careful person under the same or similar circumstances would not have... reasonably foreseen.

A "simple act of negligence" by another person cannot constitute an "intervening cause." Only "gross negligence," which is unforeseeable, can be considered an "intervening cause."

The court also instructed the jury on the meaning of "simple negligence" and "gross negligence," and on the concept of foreseeability. These definitional instructions appear to be based on civil jury instructions addressing the same topics.

We conclude the trial court properly refused defendant's tendered instructions because defendant did not make the threshold showing necessary to support the affirmative defense of independent intervening cause.

The alleged intervening cause on which defendant relies was the victim's act of backing out of her driveway into the residential street on which the accident occurred. Three witnesses testified about that act at trial. A man who was in the vicinity at the time of the accident testified that the victim was backing out of her driveway and stopped to let him pass by on his motorcycle. Defendant's girlfriend testified that defendant told her the victim "pulled out in front of him." An accident reconstruction expert testified that the victim had backed out of her driveway and had driven in and across the southbound lane to get to the northbound lane. The van struck her car just as the car crossed the center line of the street.

There was no evidence that anything the victim did could amount to more than, at most, simple negligence. In contrast to People v. Gentry, supra, and People v. Calvaresi, 188 Colo. 277, 534 P.2d 316 (1975), there was no testimony, expert or otherwise, that the victim's conduct caused her death. Nor did defendant make any offer of proof that would support his intervening cause theory. Cf. People v. Saavedra-Rodriguez, supra (defense made offer of proof that medical practitioners would testify, in support of intervening cause defense, regarding errors in diagnosis and treatment of victim).

Moreover, although defendant tendered intervening cause instructions, he did not argue at trial that the victim's act was the cause of her death. Rather, his theory was that he was not the driver of the stolen van, and that was the focus of his opening statement and closing argument. The prosecutor had at one point agreed that an intervening cause instruction should be given. However, although defense counsel did not reference the issue in his closing, the prosecutor argued to the jury in rebuttal closing that the victim's act could not have been an intervening cause because it was foreseeable.

We agree with the People that the victim's act of backing out of her driveway after waiting for a motorcyclist to pass and then briefly proceeding north in the southbound lane to reach the northbound lane was, as a matter of law, not unforeseeable on a residential street, and therefore was not gross negligence. Accordingly, absent evidence of gross negligence, the trial court properly refused defendant's tendered affirmative defense instructions. See People v. Lopez, supra.

The instructions given by the court required the jurors to find that the prosecution had proved the causation element of vehicular homicide beyond a reasonable doubt, and they gave the jurors a correct definition of "proximate cause." See, e.g., People v. Gentry, supra. The additional references to intervening cause and related concepts were superfluous. However, any error inured to defendant's benefit, in that it suggested the existence of a defense to the causation element that was unwarranted in light of the evidence presented.

II.

Defendant next contends that his aggravated motor vehicle theft conviction must be vacated because, although there was evidence that he drove "recklessly," the prosecution did not prove that he "knowingly" used the stolen vehicle in the commission of a crime. We are not persuaded.

A person commits first degree aggravated motor vehicle theft if he or she "knowingly obtains or exercises control over the motor vehicle of another without authorization or by threat or deception," and one of eight specified aggravating factors is shown, including, as relevant here, that the person "[u]ses the motor vehicle in the commission of a crime other than a traffic offense." Section 18-4-409(2)(d), C.R.S.2003; People v. Garcia, 17 P.3d 820 (Colo.App.2000); see also People v. Andrews, 632 P.2d 1012, 1016 (Colo.1981)(§ 18-4-409(2)(a), C.R.S.2003, which refers to aggravated motor vehicle theft involving retention of vehicle for more than seventy-two hours, "contemplates a culpable mental state involving an awareness by the offender that he is obtaining or exercising control over the vehicle of another and that his control is indeed without authorization").

Defendant argues that he could not be convicted of aggravated motor vehicle theft under § 18-4-409(2)(d) because the crime he was committing when he used the stolen van had a mens rea of "recklessly," a lesser...