People v. Stewart

• Decision Date: 22 June 2000
• Docket Number: No. 98CA0838.,98CA0838.
• Citation: 26 P.3d 17
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Wayne Robert STEWART, Defendant-Appellant.
• Court: Colorado Court of Appeals

26 P.3d 17

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Wayne Robert STEWART, Defendant-Appellant.

No. 98CA0838.

Colorado Court of Appeals, Div. V.

June 22, 2000.¹

Rehearing Denied July 27, 2000.

Certiorari Granted June 25, 2001.

Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McLachlan, Solicitor General, Robert Mark Russel, Assistant Solicitor General, Kathleen M. Byrne, Special Assistant Attorney General, Katherine A. Hansen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

David F. Vela, Colorado State Public Defender, Cynthia Camp, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE ROY

Defendant, Wayne Robert Stewart, appeals the judgment of conviction entered upon a jury verdict finding him guilty of reckless second degree assault. We reverse the judgment and remand. We also vacate the trial court order granting an appeal bond to defendant.

On March 23, 1997, as defendant was exiting a restaurant parking lot in his car, he passed very close to three persons (victims). This resulted in an escalating confrontation. According to the prosecution's evidence, this confrontation culminated in defendant driving his vehicle into the principal victim, throwing him up on the hood. Defendant then stopped his vehicle, the principal victim rolled off the hood, and defendant drove over his head causing serious injury. Subsequent to the trial in this matter, the principal victim died.

Other witnesses, including defendant, testified that the principal victim jumped up on the hood rather than being thrown there. Also, there is conflict in the evidence as to whether defendant stopped after the principal victim rolled off the hood and before defendant proceeded forward, running over that victim's head.

Defendant was initially charged with first degree assault, § 18-3-202, C.R.S.1999, and reckless vehicular assault, § 18-3-205(1)(a), C.R.S.1999, as to the principal victim and reckless endangerment as to the remaining victims. The jury was instructed on reckless second degree assault as a lesser included offense to first degree assault and independently instructed on reckless vehicular assault and careless driving resulting in injury, § 42-4-1402, C.R.S.1999, all with reference to the principal victim. The jury was also instructed as to intervening cause on the charges of reckless vehicular assault and careless driving resulting in injury. Defendant was convicted of, and does not appeal, two counts of reckless endangerment as to the two victims not struck by the car. As to the principal victim, he was convicted of reckless second degree assault.

I.

Defendant first contends that, under the circumstances here, his conviction of second degree assault denies him equal protection of the laws because the statute under which he was convicted, § 18-3-203(1)(d), C.R.S.1999, proscribes the same conduct forbidden by the reckless vehicular assault statute, § 18-3-205, C.R.S.1999, but carries a disproportionately greater penalty. We agree.

Statutes are presumed to be constitutional. People v. Fuller, 791 P.2d 702 (Colo.1990). When two criminal statutes prescribe different penalties for identical conduct, a defendant convicted and sentenced under the harsher statute is denied his or her constitutional right to equal protection of the laws. People v. Oliver, 745 P.2d 222 (Colo.1987). However, two statutes do not violate equal protection guarantees if there is a rational basis for disparate sanctions. People v. Brewer, 720 P.2d 596 (Colo.App.1985).

A person may be prosecuted for more than one offense when such person's conduct establishes more than one offense. Section 18-1-408(1), C.R.S.1999; see also People v. James, 178 Colo. 401, 497 P.2d 1256 (1972)

.

The fact that a single act may give rise to more than one criminal violation does not, by itself, create an equal protection question. People v. Madril, 746 P.2d 1329 (Colo.1987). Equal protection does, however, require statutory classifications of crimes to be based on differences that are real and reasonably related to the general purposes of criminal legislation. People v. Onesimo Romero, 746 P.2d 534 (Colo.1987).

Section 18-3-203(1)(d) provides that a person commits the crime of reckless second degree assault if:

He recklessly causes serious bodily injury to another person by means of a deadly weapon....

Reckless vehicular assault, § 18-3-205(1)(a), C.R.S.1999, is defined as follows:

If a person operates or drives a motor vehicle in a reckless manner, and this conduct is the proximate cause of serious bodily injury to another, such person commits vehicular assault.

Reckless second degree assault is a class four felony, requires mandatory sentencing to incarceration pursuant to § 16-11-309, C.R.S.1999, and carries a sentencing range of five to sixteen years. Sections 18-3-203(2)(c), 18-1-105(1)(a), C.R.S.1999. In contrast, reckless vehicular assault is a class five felony, does not require mandatory sentencing to incarceration, and has a sentencing range of one to three years and an aggravated range of one and a half years to six years. Sections 18-3-205(1)(a), 18-1-105(1)(V)(A), (9)(a), C.R.S.1999. Here, defendant contends that reckless vehicular assault and reckless second degree assault are indistinguishable from one another. In support of this contention, defendant points out that, under both statutes, the jury must determine whether the accused acted "recklessly," and caused "serious bodily injury" to another. Defendant also contends that his motor vehicle was the "deadly weapon" relied upon by the prosecution to prove reckless second degree assault. We agree with defendant.

While phrased differently, the mens rea for the two offenses is, as the People have conceded, the same. See People v. Pena, 962 P.2d 285 (Colo.App.1997)

. The jury was instructed on "recklessly" as that term is defined by § 18-1-501(8), C.R.S.1999.

We also note that the causation language differs in the two statutes. That is, the second degree assault statute requires that a defendant "cause" serious bodily injury while the reckless vehicular assault statute requires that defendant's conduct be the "proximate cause" of serious bodily injury. However, for our purposes here, we consider the two terms to be synonymous. See COLJI-Crim. Nos. 9:3 & 9:4 (1993 Supp.). The People have not argued to the contrary.

Since these linguistic discrepancies are without significance, an analysis of the two statutes leads us to conclude that proof of the elements of reckless second degree assault will not always establish the elements of reckless vehicular assault because there are deadly weapons other than a motor vehicle. However, if the deadly weapon at issue is a motor vehicle, then proof of the elements of reckless vehicular assault will necessarily establish the elements of reckless second degree assault.

Under § 18-1-901(3)(e), C.R.S.1999, a deadly weapon is defined to include almost anything which, in the manner used or intended to be used, is capable of producing death or serious bodily injury. Hence, a motor vehicle can certainly be a deadly weapon, but whether it is presents a question of fact. J.D.C. v. District Court, 910 P.2d 684 (Colo.1996); People v. Lucero, 985 P.2d 87 (Colo.App.1999).

The People argue that the statutes are intended to apply in different circumstances. They contend that the reckless vehicular assault statute is intended to apply in those instances when a defendant drives a vehicle recklessly, thereby causing an accident and the seriously injured victim is selected by happenstance. Reckless second degree assault, so the argument goes, is intended to apply to those circumstances in which a victim is first identified and a defendant recklessly and seriously injures the victim with a deadly weapon. Whatever the merits of this argument, it was not recognized by the prosecution at trial. The prosecution charged both, tried both, tendered instructions as to both, and argued both, without restriction or limitation, and without pointing out any distinction between the two.

In addition, the prosecution's argument grafts a mental state onto reckless second degree assault that is not required or contemplated by the statute. That is, a defendant must intend that the instrumentality, the motor vehicle, be, or become, a deadly weapon. That knowledge or intent is not an element of second degree assault. See § 18-3-203, C.R.S.1999.

Accordingly, since, in those cases in which the deadly weapon is a motor vehicle, the statutes proscribe identical conduct with widely disparate penalties, we conclude that defendant's conviction of second degree assault violates his right to equal protection.

In criminal proceedings, the established remedy for an equal protection violation is to vacate the conviction of the greater offense and remand for an entry of judgment and resentencing under the lesser offense, see People v. Mumaugh, 644 P.2d 299 (Colo.1982),

or for retrial on the lesser offense. People v. Calvaresi, 188 Colo. 277, 534 P.2d 316 (1975). Here, however, defendant was tried and acquitted of the lesser offense; therefore, retrial on the lesser offense would implicate the defendant's constitutional protection against double jeopardy under both the Fifth Amendment and Colo. Const. art. II, § 18.

An alternative remedy would be to leave defendant's conviction of reckless second degree assault undisturbed but remand for resentencing within the sentence range for reckless vehicular assault. The immediate problem with this remedy is that it would result in an illegal sentence for reckless second degree assault, as the penalty range for it and the penalty range for reckless vehicular assault do not overlap.

This alternative remedy has, however, been used under similar circumstances in People v. Bramlett, 194 Colo. 205, 573 P.2d 94 (1977), in which the defendant was convicted of...