People v. Martinez, 26172
| Citation | 189 Colo. 408,540 P.2d 1091 |
| Decision Date | 06 October 1975 |
| Docket Number | No. 26172,26172 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Nestor A. MARTINEZ, Defendant-Appellant. |
| Court | Supreme Court of Colorado |
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., E. Ronald Beeks, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, T. Michael Dutton, Deputy State Public Defender, Denver, for defendant-appellant.
Appellant was charged with two counts of first-degree assault in violation of section 40--3--202(1)(a), 1971 Perm.Supp., C.R.S.1963, 1 and convicted of first-degree assault on count I and second-degree assault as to count II. He was sentenced to two identical terms in the county jail. The appellant seeks reversal of the judgment of conviction, contending as to count I that no 'serious bodily injury' was proven and, as to count II, that second-degree assault is not a lesser included offense of first-degree assault. We disagree with both contentions and affirm.
On February 24, 1973, a fight took place at the Spanish Villa Bar in Brighton between appellant and appellant's brothers, Albert and Fernando Martinez, on the one hand, and Sena and Ramirez on the other. Fernando Martinez was the bartender of the Spanish Villa. Appellant conceded in his trial testimony that he stabbed Sena and Ramirez with a pocket-knife, but claimed that he acted in self-defense.
Sena received a small laceration on the front of his liver and the capsule covering his spleen was knocked, free, causing internal bleeding. This necessitated the surgical removal of the spleen. Ramirez suffered a six-inch laceration on the left side of his neck, which transected the external jugular vein.
The information alleged that appellant, with intent to cause serious bodily injury, did unlawfully and feloniously cause serious bodily injury by means of a deadly weapon. Count I related to the assault against Sena, and count II to the assault against Ramirez.
At the close of the People's case, appellant moved for a judgment of acquittal based on the contention that the People had failed to prove a prima facie case of 'serious bodily injury' as to both counts. The court denied appellant's motion but reduced the charge on count II to second-degree assault, basing its ruling on its finding that the People had failed to prove 'serious bodily injury' as to count II.
'Serious bodily injury' is an element of first-degree assault, which the People must prove beyond a reasonable doubt, and is defined as
'. . . bodily injury which involves a substantial risk of death, serious permanent disfigurement, or protracted loss or impairment of the function of any part or organ of the body.'
Section 18--1--901(3)(p), C.R.S.1973.
Appellant argues that the loss of Sena's spleen was not a 'serious bodily injury' because there was no 'substantial risk of death' upon his immediate hospitalization, and because the spleen is a useless organ after adolescence and therefore should not be considered in determining 'serious bodily injury.'
Dr. McGrath, who treated Sena on the night of the incident, testified that there was a substantial risk of death from the wound due to the bleeding. She further testified that once treated in the hospital the wound presented only a 'risk of death' which could not qualify as substantial.
The quantum of risk involved is to be determined as of the time of the act, not at some point later in time. We look to the moment of the assault to determine the amount of risk to which Sena was subjected. Under this test, the People established a prima facie case of 'serious bodily injury.'
The appellant, as his second ground for reversal, alleges that the trial court erred in ruling as to count II that second-degree assault is a lesser included offense of first-degree assault.
The appellant's argument:
'The requisite intent in first degree assault is 'specific intent to cause serious bodily injury.' The requisite intent in second degree assault, however, is 'specific intent to cause bodily injury to another person."
In support of his argument, appellant cites People v. Futamata, 140 Colo. 233, 343 P.2d 1058 (1959). We agree with appellant that Futamata is the law. On several occasions we have reaffirmed the Futamata rule. An example is Daniels v. People, 159 Colo. 190, 411 P.2d 316 (1966), in which we said:
'* * * (T)he greater offense includes a lesser offense when the establishment of the essential elements of the greater necessarily establishes all of the elements required to prove the lesser. * * *'
The appellant in his argument overlooked a material portion of the...
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People v. Thatcher
...upon which the defendant focuses, "serious bodily injury," has been applied in a number of instances. See, e.g., People v. Martinez, 189 Colo. 408, 540 P.2d 1091 (1975); People v. Thompson, 187 Colo. 252, 529 P.2d 1314 The defendant contends that defining "serious bodily injury" is more dif......
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People v. Mozee, 84SA411
...degree assault requires the use of a deadly weapon in causing the serious bodily injury to the victim. See People v. Martinez, 189 Colo. 408, 410-11, 540 P.2d 1091, 1093-94 (1975). Mozee does not dispute that this is a reasonable distinction for the legislature to make and justifies the dis......
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People v. Lovato
...proved that the person intended to cause, and did cause, the lesser degree of bodily injury as well. See People v. Martinez, 189 Colo. 408, 411, 540 P.2d 1091, 1093–94 (1975). We turn now to the three convictions that defendant contends must merge.¶ 98 First, the prosecution charged and the......