People v. Medrano-Bustamante
| Citation | 412 P.3d 581 |
| Decision Date | 24 October 2013 |
| Docket Number | Court of Appeals No. 10CA0791 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Jorge Arturo MEDRANO–BUSTAMANTE, Defendant–Appellant. |
| Court | Court of Appeals of Colorado |
John W. Suthers, Attorney General, Christine C. Brady, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee
Douglas K. Wilson, Colorado State Public Defender, Alan M. Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant
Opinion by JUDGE DUNN
¶ 1 Defendant, Jorge Arturo Medrano–Bustamante, appeals the judgment of conviction entered on jury verdicts involving multiple charges. We remand to the trial court with directions to (1) merge defendant's conviction for leaving the scene of an accident involving serious bodily injury into his conviction for leaving the scene of an accident involving death; (2) vacate the sentence imposed as to the conviction for leaving the scene of an accident involving serious bodily injury; and (3) correct the mittimus accordingly. In all other respects, the judgment is affirmed.
¶ 2 Defendant and two companions, Jose Medrano–Frias (Frias) and fifteen-year-old A.S., went to a barbeque where Frias and defendant drank beer. Shortly after leaving in defendant's car, the three men were involved in a single-car accident. While Frias sustained a fractured femur, A.S. died several hours after the accident.
¶ 3 As relevant here, defendant was charged with driving under the influence (DUI), vehicular homicide-DUI, vehicular assault-DUI, and two counts of leaving the scene of an accident.
¶ 4 At trial, the identity of the driver was contested. Defendant argued that A.S. was driving at the time of the accident. The prosecution argued that defendant was driving.
¶ 5 The jury convicted defendant as charged. The jury also convicted him of the lesser nonincluded offense of permitting a vehicle to be operated in an unlawful manner. The trial court sentenced defendant to an aggregate prison sentence of twelve years.
¶ 6 Defendant contends that his DUI conviction merges with his convictions for vehicular assault-DUI and vehicular homicide-DUI because DUI is a lesser included offense of both of these offenses. We disagree.
¶ 7 Based upon prior decisions of divisions of this court, the People do not challenge defendant's contention that DUI is a lesser included offense of both vehicular homicide-DUI and vehicular assault-DUI. See People v. Cruthers, 124 P.3d 887 (Colo.App.2005) ; People v. Grassi, 192 P.3d 496, 500 (Colo.App.2008).1 We are not bound by the decisions of other divisions of this court. People v. Moore, 321 P.3d 510, 513, 2010 WL 5013681 (Colo.App.2010) (cert. granted 2011 WL 4448964 (Sept. 26, 2011) ). Nor are we bound by the People's concessions regarding the interpretation of the law. See People v. Zubiate, 2013 COA 69, ¶ 22, 411 P.3d 757, 2013 WL 1909126.
¶ 8 Vehicular assault-DUI and vehicular homicide-DUI are in different provisions of the penal code than DUI. And they are identified with different titles. Compare § 18–3–205(1)(b)(I), C.R.S.2013, and § 18–3–106(1)(b)(I), C.R.S.2013, with § 42–4–1301(1)(a), C.R.S.2013. This legislative structure suggests that the legislature intended for these offenses to be separate. People v. Abiodun, 111 P.3d 462, 465 (Colo.2005) (). Accordingly, a court may impose a sentence for DUI separately from convictions for vehicular assault-DUI or vehicular homicide-DUI unless DUI is a lesser included offense of one or both of these offenses. See id . If it is, the convictions must merge. See People v. Vigil, 251 P.3d 442, 448 (Colo.App.2010).
¶ 9 To determine whether DUI is a lesser included offense, we apply the strict elements test. People v. Leske, 957 P.2d 1030, 1036 (Colo.1998). Under this test, we must determine whether the essential elements of DUI comprise a subset of the essential elements of vehicular assault-DUI or vehicular homicide-DUI, such that committing the greater offenses without also committing the lesser is impossible. People v. Garcia, 940 P.2d 357, 360 (Colo.1997) (citing Schmuck v. United States, 489 U.S. 705, 716, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989) ). To perform this test, we compare the statutory elements. Id . at 359.
¶ 10 A person is guilty of vehicular assault-DUI if:
See § 18–3–205(1)(b)(I). And a person is guilty of vehicular homicide-DUI if he commits elements (1) through (3) of vehicular assault-DUI and his conduct is the proximate cause of the death of another. See § 18–3–106(1)(b)(I).
¶ 11 To be convicted of DUI, a person must:
See § 42–4–1301(1)(a).
¶ 12 At first blush, the elements of DUI appear to be almost identical to a subset of elements in both vehicular assault-DUI and vehicular homicide-DUI. They differ, however, in a material way: To be found guilty of DUI, a person must drive a motor vehicle or vehicle as those terms are defined by the Uniform Motor Vehicle Law, and to be found guilty of vehicular assault or homicide, a person must drive or operate a motor vehicle as that term is defined in the criminal code.
¶ 13 The criminal code defines motor vehicle as "any self-propelled device by which persons or property may be moved, carried, or transported from one place to another by land, water, or air, except devices operated on rails, tracks, or cables fixed to the ground or supported by pylons, towers, or other structures." § 18–1–901(3)(k), C.R.S.2013. In contrast, the Uniform Motor Vehicle Law defines motor vehicle as any "self-propelled vehicle that is designed primarily for travel on the public highways and that is generally and commonly used to transport persons and property over the public highways or a low-speed electric vehicle; except that the term does not include low-power scooters, wheelchairs, or vehicles moved solely by human power." § 42–1–102(58), C.R.S.2013.
¶ 14 The criminal code's definition of motor vehicle is broader than the Uniform Motor Vehicle Law's definition of motor vehicle.2 See Bertrand v. Bd. of Cnty. Commissioners, 872 P.2d 223, 228 (Colo.1994) (). Thus, vehicular assault-DUI and vehicular homicide-DUI can be committed in ways that DUI cannot. For example, vehicular assault-DUI and vehicular homicide-DUI might be committed while driving a boat or operating a plane. People v. Zweygardt, 2012 COA 119, ¶ 25, 298 P.3d 1018. But DUI may only be committed by driving a vehicle "designed primarily for travel on the public highways and that is generally and commonly used to transport persons and property over the public highways," or by driving a bicycle. § 42–1–102(58), (112), C.R.S.2013. Accordingly, it is possible to commit the greater offenses without also committing the lesser offense. See Garcia, 940 P.2d at 360.
¶ 15 Because a person can commit vehicular assault-DUI or vehicular homicide-DUI without necessarily committing DUI, we conclude that DUI is not a lesser included offense of vehicular assault-DUI or vehicular homicide-DUI. Cf. Zweygardt, ¶¶ 24, 25 ().
¶ 16 Consequently, we further conclude that the trial court did not err in entering separate judgments of conviction for vehicular assault-DUI, vehicular homicide-DUI, and DUI.
¶ 17 On the first day of trial, the prosecution filed its complete witness list including two state forensic laboratory employees, Joel Fay and Cynthia Burbach. Fay did not testify at trial. Instead, the prosecution called Burbach, the supervisor of the Colorado Department of Health toxicology lab. Through Burbach, the prosecution introduced reports of defendant's blood alcohol concentration (BAC) tests. The reports identified Fay as the analyst who performed the BAC testing, but bore Burbach's name and signature as the person who "reviewed and approved" the results of the testing.
¶ 18 Defendant contends that admitting the laboratory reports in the absence of Fay's testimony violated his right of confrontation under the United States and Colorado Constitutions as well as § 16–3–309(5), C.R.S.2013. We perceive no constitutional or statutory violation.
¶ 19 The right to confront and cross-examine witnesses is guaranteed by the Sixth Amendment and by Colorado constitution article II, section 16. People v. Russom, 107 P.3d 986, 992 (Colo.App.2004). This right applies to testimonial statements.
Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ; Cropper v. People, 251 P.3d 434, 435 (Colo.2011).
¶ 20 Forensic laboratory reports are testimonial statements. Bullcoming v. New Mexico, 564 U.S. 647, 657–60, 131 S.Ct. 2705, 2713–14, 180 L.Ed.2d 610 (2011) ; Cropper, 251 P.3d at 436. Accordingly, for such a report to be admitted into evidence, a defendant must have an opportunity to cross-examine the person who prepared it. Id .
¶ 21 The United States Supreme Court considered the confrontation issues raised by the introduction of forensic laboratory reports and related testimony in Bullcoming. There, the prosecution introduced blood alcohol test results...
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