People v. Rubio, 06CA2014.

• Decision Date: 16 April 2009
• Docket Number: No. 06CA2014.,06CA2014.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Andreas RUBIO, Defendant-Appellant.
• Court: Colorado Court of Appeals

222 P.3d 355

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Andreas RUBIO, Defendant-Appellant.

No. 06CA2014.

Colorado Court of Appeals, Div. II.

April 16, 2009.

Rehearing Denied May 7 and June 11, 2009.

John W. Suthers, Attorney General, Patricia R. Van Horn, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Thomas K. Carberry, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge CONNELLY.

Defendant, Andreas Rubio, was convicted after a jury trial of five counts of attempted first degree extreme indifference murder, and sentenced to consecutive thirty-six-year terms for a total of 180 years in the Department of Corrections. We hold the trial court erroneously denied defendant's request to provide the jury with the option of convicting on a lesser non-included offense involving reckless discharge of a firearm. This error requires reversal of three of the five attempted murder convictions. It does not require reversal of the two convictions involving child victims actually struck by gunfire because the jury was instructed on analogous lesser assault offenses as to those two victims.

I. Background

One Sunday night, defendant used an AK-47 assault rifle to shoot repeatedly at an empty car parked outside a Denver residence. He did so because a woman inside the residence had argued with defendant's female friends, and had sent a text message disrespecting defendant's gang. After the shooting defendant called a friend of the woman, asking what the woman thought of the gang now that the car and house had been "shot up."

Defendant's wild shots blew holes not only in the car but also in two nearby residences. In one apartment, a man was in the living room and a woman was in a bedroom. In the other, Ms. V and her infant son were asleep in one bedroom, while her twelve- and seven-year-old daughters were asleep in another.

One bullet struck, bloodied, and seriously injured both the V daughters. Their mother, awakened by their screams, entered their room to encounter a nightmare. Before passing out, the older daughter said she was dying and told her mother she loved her. Paramedics responded to the mother's 911 call, and the girls were taken to a hospital by ambulance. Both fortunately recovered.

The prosecution, alleging defendant acted with extreme indifference to the value of human life, charged six counts of attempted murder. The named victims were the four occupants of the V residence and the man and woman inside the other residence.

The prosecution initially also charged defendant with less serious offenses, including illegal discharge of a firearm, criminal mischief, and assault of the two V girls who had been struck by bullets. It later moved and was allowed to dismiss the firearm and mischief charges.

The jury found defendant guilty on five of the six attempted murder counts, involving the four members of the V family and the man in the other residence. It acquitted him of the count involving the woman who at the time of the shooting was in a back bedroom not struck by bullets. The jury also made special findings, relevant for sentencing purposes, that the attempted murders involved a deadly weapon and had caused serious bodily injuries to the two V girls. Finally, the jury found defendant guilty of assaulting the two V girls, but those assault charges merged into the attempted murder convictions at sentencing.

II. Discussion

A. The Sufficiency of Evidence of Attempted Murder

Defendant argues the evidence was legally insufficient to convict him of attempted extreme indifference murder. We review the evidence in the light most favorable to the prosecution to determine whether any rational juror could find defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); People v. Lehnert, 163 P.3d 1111, 1115 (Colo.2007); People v. Dunlap, 124 P.3d 780, 819 (Colo.App.2004).

It is settled that attempted extreme indifference murder is "a cognizable crime under the Colorado Criminal Code." People v. Castro, 657 P.2d 932, 937 (Colo.1983). We recognize Colorado is the only state explicitly to recognize this attempt crime, and that the concept of attempting to commit a homicide through extreme indifference or recklessness is "largely disfavored by legal scholars and almost ... universally rejected in American law." See Michael T. Cahill, Attempt, Reckless Homicide, and the Design of Criminal Law, 78 U. Colo. L.Rev. 879, 879-84 (2007). Nonetheless, absent some constitutional impediment, we must apply Colorado laws as enacted by the legislature and definitively construed by the supreme court.

Extreme indifference murder requires proof a defendant "knowingly engage[d] in conduct which create[d] a grave risk of death" to another person or persons "[u]nder circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally." § 18-3-102(1)(d), C.R.S.2008. A defendant "commits criminal attempt if, acting with the kind of culpability otherwise required for commission of an offense, he engages in conduct constituting a substantial step toward the commission of the offense." § 18-2-101(1), C.R.S.2008.

Attempted extreme indifference murder thus covers knowing conduct that created a grave risk of, but did not result in, death. Castro, 657 P.2d at 937-38, discussed in People v. Thomas, 729 P.2d 972, 975 (Colo. 1986). We reject defendant's contention that the prosecution must prove he knew his actions were "practically certain" to cause death. The "knowingly" requirement in this type of offense relates to the conduct but not to its result. See Castro, 657 P.2d at 938. Defendant thus misplaces reliance on the general definition providing a person acts "`knowingly' ... with respect to a result of his conduct, when he is aware that his conduct is practically certain to cause the result." § 18-1-501(6), C.R.S.2008.

The knowingly requirement is satisfied in an attempted extreme indifference murder case by proving a defendant "engage[d] in conduct that in fact create[d] a grave risk of death." Thomas, 729 P.2d at 975; see also Palmer v. People, 964 P.2d 524, 527-28 (Colo.1998) (to be convicted of attempting a crime requiring knowing conduct, "it is enough that the accused knowingly engages in the risk producing conduct that could lead to the result"). Defendant need not have known his conduct was practically certain to cause death.

We recognize a division of this court has stated "the extreme indifference murder statute requires an awareness on the part of the offender that his actions were practically certain to cause the death of another." People v. Ellis, 30 P.3d 774, 779 (Colo.App.2001) (citing People v. Marcy, 628 P.2d 69 (Colo. 1981)). But Marcy has been superseded by statute, see Candelaria v. People, 148 P.3d 178, 181-82 (Colo.2006); People v. Jefferson, 748 P.2d 1223, 1229-34 (Colo.1988), and does not support the proposition for which it was cited in Ellis. The Ellis language is also contrary to the supreme court's post-Marcy holdings in Castro and Thomas.

It was not irrational to find defendant guilty beyond a reasonable doubt of five counts of attempted extreme indifference murder. See People v. Beatty, 80 P.3d 847, 855 (Colo.App.2003) (defendant may be convicted of multiple counts of attempted extreme indifference murder if conduct gravely endangered several lives). Defendant knowingly engaged in depraved conduct that in fact created a grave risk of death. Even if he meant only to destroy a car, spraying such firepower around a neighborhood could be found to reflect an attitude of universal malice manifesting extreme indifference to human life generally.

B. Lesser Non-Included Offenses

1. Procedural Background

Defendant requested the court to instruct the jury on lesser offenses of illegally discharging a firearm and criminal mischief. The former occurs where one "knowingly or recklessly discharges a firearm into any dwelling or any other building or occupied structure, or into any motor vehicle occupied by any person." § 18-12-107.5(1), C.R.S. 2008. The latter occurs where one "knowingly damages" property; the classification of the crime depends on the value of the damaged property. § 18-4-501(1), C.R.S. 2008.

The court declined to instruct on the requested lesser offenses. It stated the People had "discretion to determine which crimes" to prosecute, and that it previously had struck the lesser crimes on which defendant sought instructions.

The court did instruct on assault offenses involving the two girls seriously injured by the gunfire. The People had charged two counts of first degree extreme indifference assault. § 18-3-202(1)(c), C.R.S.2008. The court also granted a defense request to instruct on two counts of second degree reckless assault. § 18-3-203(1)(d), C.R.S.2008.

The jury returned guilty verdicts on five of the six attempted murder counts and all four assault counts (the two counts charged by the prosecution and the two lesser ones added at defense request). The court merged all the assault counts into the attempted murder counts involving the two girls.

2. Case Law

The "lesser non-included offense" doctrine—as distinct from the doctrine whereby either side may seek instructions on lesser offenses included within a charged offense— is entirely the creation of Colorado cases. It is not imposed by Colorado statute or rule. See Meads v. People, 78 P.3d 290, 294 (Colo. 2003) ("this court has adopted the strict elements tests as the means of determining whether one crime is the lesser-included offense of another crime"); Crim. P. 31(c) (defendant may be found guilty of a lesser offense "necessarily included" in the offense charged). Nor is it required by the federal or state constitutions, and it is contrary to practice in federal courts and most other states. See Hopkins v. Reeves, 524 U.S. 88, 94-99, 118 S.Ct. 1895, 141 L.Ed.2d 76 ...