People v. Ornelas-Licano
| Decision Date | 09 April 2020 |
| Docket Number | Court of Appeals No. 16CA0244 |
| Citation | 490 P.3d 714 |
| Court | Colorado Court of Appeals |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jose ORNELAS-LICANO, Defendant-Appellant. |
Philip J. Weiser, Attorney General, John T. Lee, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, James S. Hardy, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
Opinion by JUDGE WELLING
¶1 Defendant, Jose Ornelas-Licano, appeals his conviction for attempted second degree murder. He argues that his conviction violates equal protection guarantees because attempted second degree murder is indistinguishable from the lesser offense of attempted first degree assault – extreme indifference. He also argues that the trial court abused its discretion by admitting expert testimony of a police officer analyzing the shape of a bullet hole in a windshield to determine where the shot came from.
¶2 We first conclude that the conduct proscribed by the second degree murder statute and first degree assault – extreme indifference statute is distinguishable for equal protection purposes. We next conclude that the trial court abused its discretion by admitting the officer's expert testimony because his experience did not qualify him to opine on the relationship between the angle of impact and shape of the bullet hole, and there is nothing in the record beyond the officer's own assertions to show that someone can determine from the shape of a bullet hole in a windshield where the bullet came from. Because this error was not harmless, we reverse.
¶3 For reasons not pertinent to this appeal, a warrant was issued for Ornelas-Licano's arrest. An officer driving an unmarked vehicle located Ornelas-Licano in his pickup truck parked in a driveway. The officer called for backup because he had been told that Ornelas-Licano might be armed. More officers arrived in their vehicles, turned on their emergency lights, and pulled up near Ornelas-Licano's truck.
¶4 The officers got out and, with their guns drawn, commanded Ornelas-Licano to put his hands up and shut off the truck. Ornelas-Licano initially complied with the officers’ commands, but ultimately put the truck in gear and fled the scene. A chase ensued.
¶5 During the chase, Ornelas-Licano approached a marked police vehicle at an intersection. As the vehicles drew closer, a shot went off inside Ornelas-Licano's truck, resulting in a bullet hole in his truck's windshield. No one was hit, and the chase continued.
¶6 Ornelas-Licano eventually ran into another car, abandoned his truck and his gun, and fled on foot. Police ultimately apprehended him without further incident.
¶7 After his arrest, Ornelas-Licano claimed that he had fired the gun accidentally while operating the stick shift for the truck's manual transmission. The prosecutor did not credit this account and charged him with attempted first degree murder of the officer in the vehicle at the intersection and the lesser included offenses of attempted second degree murder and attempted first degree assault – extreme indifference. He was also charged with eluding police, leaving the scene of an accident, and other crimes.
¶8 At trial, Ornelas-Licano argued that he was not guilty of attempted murder or attempted assault because he had fired the gun accidentally. In other words, because the gunshot was the result of an accidental discharge, he acted without the requisite intent to commit either attempted murder or attempted assault. Ornelas-Licano's lawyer told the jury that he was not contesting the other charges.
¶9 The prosecutor argued that Ornelas-Licano had intentionally pointed the gun at the officer in the police vehicle and fired. A police officer, qualified as an expert, testified that, based on the shape of the bullet hole in the truck's windshield, the shot had been fired from shoulder height, rather than from below the dash, near the stick shift, as Ornelas-Licano had claimed.
¶10 To rebut this testimony, Ornelas-Licano called his own expert witness, who testified that there were too many variables in play to conclude, based on either the shape of the bullet hole in the windshield or the experiment the prosecution expert conducted, that the shot had come from shoulder height, rather than below the dash.
¶11 A jury convicted Ornelas-Licano of attempted second degree murder, eluding police, reckless driving, leaving the scene of an accident, possession of a defaced firearm, and prohibited use of a weapon, and the trial court sentenced him accordingly. Ornelas-Licano appeals only the conviction for attempted second degree murder.
¶12 Ornelas-Licano first contends that his conviction for attempted second degree murder violates equal protection guarantees because it requires a harsher punishment than, but is indistinguishable from, first degree assault – extreme indifference.1 We disagree.
¶13 We review de novo the constitutionality of a statute. Dean v. People , 2016 CO 14, ¶ 8, 366 P.3d 593. A statute is presumed to be constitutional, and the challenging party bears a heavy burden to demonstrate its unconstitutionality. Id.
¶14 "When two criminal statutes prescribe different penalties for identical conduct, a defendant is denied equal protection under the laws if he is convicted under the harsher statute." People v. Griego , 2018 CO 5, ¶ 35, 409 P.3d 338. "Similarly, when separate statutes prescribe different penalties for what ostensibly might be different acts but offer no intelligent standard for distinguishing between and among these acts, those statutes deny equal protection under the law." Id. Distinctions between the two offenses "must turn on ‘reasonably intelligible standards of criminal culpability,’ and any definition of a crime must be ‘sufficiently coherent and discrete that a person of average intelligence can reasonably distinguish it from conduct proscribed by other offenses.’ " Id. at ¶ 36 (quoting People v. Marcy , 628 P.2d 69, 80-81 (Colo. 1981) ).
¶15 A person commits second degree murder if "the person knowingly causes the death of a person." § 18-3-103(1), C.R.S. 2019. To satisfy the "knowingly" requirement, the person must be aware that his or her conduct is "practically certain" to cause the death of another person. § 18-1-501(6), C.R.S. 2019.
§ 18-3-202(1)(c), C.R.S. 2019.
¶17 An attempt occurs when a person "acting with the kind of culpability otherwise required for commission of [the] offense ... engages in conduct constituting a substantial step toward the commission of the offense." § 18-2-101(1), C.R.S. 2019.
¶18 Looking to the plain language of the statutes, we conclude that they do not proscribe the same conduct.
¶19 Attempted second degree murder requires a substantial step toward causing death, while attempted first degree assault – extreme indifference requires only a substantial step toward causing serious bodily injury. § 18-2-101(1) ; § 18-3-103 ; § 18-3-202(1)(c).
¶20 People v. Castro , 657 P.2d 932, 940-41 (Colo. 1983), overruled on other grounds by West v. People , 2015 CO 5, ¶¶ 29, 64, 70, 341 P.3d 520, highlights the importance of this distinction. In that case, the supreme court considered whether the alleged overlap between the crimes of attempted first degree extreme indifference murder and first degree assault violated equal protection guarantees. Id. The court concluded the conduct proscribed by the statutes was distinguishable, in part because attempted murder requires "a substantial step towards the causation of another's death," and first degree assault does not. Id. at 941.
¶21 The same distinction applies here when we compare attempted second degree murder and attempted first degree assault – extreme in-difference: only one requires a substantial step toward the causation of another's death. Therefore, the statutes do not proscribe the same conduct, and the equal protection claim fails.
¶22 Even though this analysis is sufficient to reject Ornelas-Licano's equal protection argument, we briefly address his contention that Marcy , 628 P.2d at 78, requires a different result.
¶23 Attempted second degree murder requires conduct practically certain to result in death, while attempted first degree assault – extreme indifference requires conduct that creates a grave risk of death. §§ 18-3-103, - 202(1)(c). Ornelas-Licano argues that, under Marcy , 628 P.2d at 78, these standards proscribe the same conduct. But Marcy is distinguishable. Moreover, Marcy was superseded by statute, Ch. 212, sec. 4, § 18-3-102, 1981 Colo. Sess. Laws 973, as recognized in People v. Jefferson , 748 P.2d 1223, 1223-24 (Colo. 1988).
¶24 In Marcy , 628 P.2d at 79-80, the court held that first degree murder – extreme indifference was indistinguishable from the lesser offense of second degree murder for equal protection purposes, in part because the conduct proscribed by the greater offense (conduct practically certain to cause death) necessarily included the conduct proscribed by the lesser offense (conduct creating a grave risk of death).2
¶25 In this case, we are faced with the converse. And we conclude that, while conduct practically certain to cause death necessarily includes conduct creating a grave risk of death, conduct creating a grave risk of death does not necessarily include conduct practically certain to cause death.
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