State v. Moncada

• Decision Date: 02 March 2011
• Docket Number: 07CR1362; A138282.
• Citation: 241 Or.App. 202,250 P.3d 31
• Parties: STATE of Oregon, Plaintiff–Respondent,v.Noe Garcia MONCADA, aka Noe Garcia, aka Noe Moncado Garcia, aka Noe Moncada, aka Noe Garcia–Moncada, aka Noe Moncada–Garcia, Defendant–Appellant.
• Court: Oregon Court of Appeals

241 Or.App. 202

250 P.3d 31

STATE of Oregon, Plaintiff–Respondent,

v.Noe Garcia MONCADA, aka Noe Garcia, aka Noe Moncado Garcia, aka Noe Moncada, aka Noe Garcia–Moncada, aka Noe Moncada–Garcia, Defendant–Appellant.

07CR1362; A138282.

Court of Appeals of Oregon.

Argued and Submitted March 12, 2010.Decided March 2, 2011.

Jesse Wm. Barton, Salem, argued the cause and filed the brief for appellant.

Joanna L. Jenkins, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.Before HASELTON, Presiding Judge, and BREWER, Chief Judge, and ARMSTRONG, Judge.HASELTON, P.J.

Defendant, who pleaded guilty to two counts of failure to perform the duties of a driver to injured persons, ORS 811.705, appeals the resulting judgment, assigning error to (1) the trial court's failure to merge his convictions and (2) the court's imposition of consecutive sentences. Defendant contends that, where, as here, multiple people are injured or killed in a single accident, each person is not a separate “victim” for purposes of ORS 811.705, commonly known as felony hit and run.¹ As amplified below, we reject that premise and conclude that each person injured in a single accident is a separate “victim” for purposes of ORS 811.705. Accordingly, we affirm.

Defendant pleaded guilty to two counts of failure to perform the duties of a driver to injured persons as described in the indictment:

“COUNT 3:

“The said defendant, on or about the 16th day of October, 2007, in Coos County, Oregon, being the driver of a vehicle being operated on premises open to the public, which vehicle was involved in an accident that resulted in the death of Marilyn Vance, did unlawfully and knowingly fail to remain at the scene of the accident until defendant had rendered reasonable assistance to Marilyn Vance, a person injured in the accident;

“COUNT 4:

“The said defendant, on or about the 16th day of October, 2007, in Coos County, Oregon, being the driver of a vehicle being operated on premises open to the public, which vehicle was involved in an accident that resulted in the death of Dallas Vance, did unlawfully and knowingly fail to remain at the scene of the accident until defendant had rendered reasonable assistance to Dallas Vance, a person injured in the accident[.]” ²

Capitalization in original.) Other than defendant's acknowledgement that the allegations in the indictment were true, there were no other facts established at defendant's plea hearing.

At sentencing, defendant contended that the Vances were not the “victims” of the criminal conduct to which he had pleaded guilty. Instead, defendant asserted that there was only a single “victim” with respect to that conduct— viz., the State of Oregon—and, for that reason, his convictions should merge. Further and relatedly, defendant contended that, if the convictions did not merge, his sentences should be concurrent. According to defendant, the Vances were not “victims” for purposes of ORS 137.123 because there was no evidence that defendant's criminal conduct—that is, leaving the scene of the accident without rendering aid—injured the Vances.

The trial court disagreed with defendant, concluding that each count to which defendant pleaded guilty concerned a separate “victim.” Accordingly, on Count 3 and on Count 4 the trial court imposed a departure sentence of 36 months' imprisonment followed by 36 months' post-prison supervision. The sentence on Count 4 was consecutive to the sentence imposed on Count 3. Defendant appeals.

On appeal, defendant reiterates that the trial court erred in failing to merge his convictions and, alternatively, in imposing consecutive sentences. ³ As framed by defendant, the legal predicate underlying both of his contentions is that the text and context of ORS 811.705 “reflects a single legislative concern”— viz., “like the rest of the traffic code, the statute was intended to protect the public generally ”—and, consequently, individual “persons injured in an accident that precedes a motorist's flight are not victims of the crime.” (Emphasis added.) Invoking the Supreme Court's decision in State v. Glaspey, 337 Or. 558, 100 P.3d 730 (2004), and our decision in State v. Luers, 211 Or.App. 34, 153 P.3d 688, adh'd to as modified on recons, 213 Or.App. 389, 160 P.3d 1013 (2007), defendant reasons that an individual's injuries are merely “collateral or secondary consequence [s], which [are] necessary to the statutory definition of felony hit and run” and “constitute[ ] no more than a theory under which misdemeanor hit and run becomes subject to the enhanced penalties for felony hit and run.” ⁴ (Internal quotation marks omitted.)

We first address whether the trial court erred in failing to merge defendant's convictions. The statute governing the merger of convictions is ORS 161.067. As pertinent to this case, ORS 161.067(2) precludes the merger of convictions under certain circumstances. Specifically, that statute provides that, “[w]hen the same conduct or criminal episode, though violating only one statutory provision involves two or more victims, there are as many separately punishable offenses as there are victims.” (Emphasis added.)

Here, defendant asserts that his conduct violated only one statutory provision and that his convictions “stem from the same accident”—that is, according to defendant, they “stem from a single criminal episode ( i.e., from the same act and transaction).” Accordingly, the issue reduces to whether each of the Vances was a separate “victim” for purposes of ORS 161.067(2).

In Glaspey, the Supreme Court concluded that “ORS 161.067(2) uses the term ‘victims' to describe the category of persons who are victims within the meaning of the specific substantive statute defining the relevant offense.” 337 Or. at 563, 100 P.3d 730. Thus, the proper focus of our analysis in this case is ORS 811.705, the statute that defines the crime of felony hit and run, which provides, in part:

“(1) A person commits the offense of failure to perform the duties of a driver to injured persons if the person is the driver of any vehicle involved in an accident that results in injury or death to any person and does not do all of the following:

“(a) Immediately stop the vehicle at the scene of the accident or as close thereto as possible. Every stop required under this paragraph shall be made without obstructing traffic more than is necessary.

“(b) Remain at the scene of the accident until the driver has fulfilled all of the requirements under this subsection.

“(c) Give to the other driver or surviving passenger or any person not a passenger who is injured as a result of the accident the name and address of the driver and the registration number of the vehicle that the driver is driving and the name and address of any other occupants of the vehicle.

“(d) Upon request and if available, exhibit and give to the persons injured or to the occupant of or person attending any vehicle damaged the number of any document issued as official evidence of a grant of driving privileges.

“(e) Render to any person injured in the accident reasonable assistance, including the conveying or the making of arrangements for the conveying of such person to a physician, surgeon or hospital for medical or surgical treatment, if it is apparent that such treatment is necessary or if such conveying is requested by any injured person.

“(f) Remain at the scene of an accident until a police officer has arrived and has received the required information, if all persons required to be given information under paragraph (c) of this subsection are killed in the accident or are unconscious or otherwise incapable of receiving the information. The requirement of this paragraph to remain at the scene of an accident until a police officer arrives does not apply to a driver who needs immediate medical care, who needs to leave the scene in order to secure medical care for another person injured in the accident or who needs to leave the scene in order to report the accident to the authorities, so long as the driver who leaves takes reasonable steps to return to the scene or to contact the nearest police agency.”

Because ORS 811.705 does not expressly use the term “victim,” our task, as the parties acknowledge, is to determine whether the “injured persons” referenced in the statute qualify as “victims” for purposes of ORS 811.705. In resolving that issue, we adhere to the methodology described in PGE v. Bureau of Labor and Industries, 317 Or. 606, 859 P.2d 1143 (1993), as amplified in State v. Gaines, 346 Or. 160, 206 P.3d 1042 (2009). In general, “we examine the text and context of the statute, as well as any legislative history offered by the parties that, in the court's determination, is pertinent.” ⁵ State v. Bassett, 234 Or.App. 259, 265, 228 P.3d 590, rev. den., 348 Or. 461, 234 P.3d 983 (2010).

ORS 811.705 is “one of several statutes describing the duties that a motor vehicle driver must perform when involved in an accident.” State v. Hval, 174 Or.App. 164, 169, 25 P.3d 958, rev. den., 332 Or. 559, 34 P.3d 1177 (2001).⁶ Although the statute imposes numerous and varied duties on a driver who injures one or more persons in an accident, they all further a single, overarching legislative purpose—that is “protecting injured persons.” State v. Hamlett, 235 Or.App. 72, 78, 230 P.3d 92 (2010). See also State v. Corpuz, 49 Or.App. 811, 820, 621 P.2d 604 (1980) (describing similar policy served by predecessor statute). Specifically, in Hamlett, we explained that it is “readily apparent from the statutory text” that “the provisions of ORS 811.705(1) are plainly intended to ensure aid to injured persons at the scene of an accident, preserve evidence pertaining to injury-producing accidents, and facilitate communication in the exchange of information concerning claims made following such an accident.” 235 Or.App. at 78, ...