People v. Tanner

542 P.3d 263

2023 COA 97

2023 COA 97

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Brennan Fleet TANNER, Defendant-Appellant.

Court of Appeals No. 22CA2178

Colorado Court of Appeals, Div. A.

Announced October 19, 2023

Larimer County District Court No. 21CR1606, Honorable Laurie K. Dean, Judge

Philip J. Weiser, Attorney General, Brittany Limes Zehner, Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

OllomPrice Criminal Defense, Levi Price, Denver, Colorado, for Defendant-Appellant

Opinion by CHIEF JUDGE ROMÁN

¶ 1 Defendant, Brennan Fleet Tanner, appeals the judgment of conviction entered on two counts of careless driving. Tanner contends, the People concede, and we agree that the district court erred by declining to merge the two convictions. Accordingly, we reverse the judgment and remand for the district court to merge one of the convictions into the other, vacate the sentence corresponding to the merged conviction, and reinstate the judgment as to only one count of careless driving.

I. Background

¶ 2 Tanner was the driver in a single-car crash that killed his two passengers. Before the crash, witnesses observed Tanner’s truck speeding and weaving into oncoming traffic. The prosecution charged him with two counts of vehicular homicide – reckless, two counts of criminally negligent homicide, and two counts of careless driving.

¶ 3 After a bench trial, the district court acquitted Tanner of the four homicide counts but convicted him of the two counts of careless driving.

¶ 4 Before sentencing, Tanner moved to merge his two careless driving convictions because the unit of prosecution for careless driving is each driving incident, not each victim. The prosecution agreed. But the district court did not. Citing subsections (2)(b) and (2)(c) of the careless driving statute, § 42-4-1402, C.R.S. 2023, the court concluded that the unit of prosecution for careless driving is the harm caused to each victim, and, thus, merger was not required. The court imposed two one-year jail sentences, to be served consecutively.¹

II. Discussion

[1] ¶ 5 Tanner contends that the court erred by not merging his two careless driving convictions because the unit of prosecution for that offense is each driving incident, not each person injured or killed as a result thereof. Reviewing this legal question de novo, Magana v. People, 2022 CO 25, ¶ 18, 511 P.3d 585, we agree.

[2–4] ¶ 6 The Double Jeopardy Clauses of the United States and Colorado Constitutions protect an accused against being twice placed in jeopardy for the same crime. People v. Arzabala, 2012 COA 99, ¶ 20, 317 P.3d 1196. As pertinent here, the Double Jeopardy Clause protects not only against a second trial for the same offense, but also against multiple punishments for the same offense. Id. The double jeopardy prohibition does not, however, preclude the General Assembly from specifying multiple punishments based on the same criminal conduct. Id. at ¶ 21; Magana, ¶ 20. Rather, the General Assembly may establish and define offenses by prescribing the allowable "unit of prosecution." Arzabala, ¶ 21 (quoting Woellhaf v. People, 105 P.3d 209, 215 (Colo. 2005)).

[5] ¶ 7 "The unit of prosecution is the way the General Assembly, in drafting a criminal statute, divides a defendant’s conduct ‘into discrete acts for purposes of prosecuting multiple offenses.’ " Magana, ¶ 19 (quoting Woellhaf, 105 P.3d at 215). To discern the unit of prosecution, we look to the plain language of the relevant statute. Id.

¶ 8 Section 42-4-1402(1) establishes the offense of careless driving. It provides, in relevant part, "A person who drives a motor vehicle … in a careless and imprudent manner, without due regard for the width, grade, curves, corners, traffic, and use of the streets and highways and all other attendant circumstances, is guilty of careless driving." § 42-4-1402(1). Careless driving is a class 2 misde- meanor traffic offense. § 42-4-1402(2)(a). However, if the driver’s actions proximately cause bodily injury or death to another, it is a class 1 misdemeanor traffic offense. § 42-4-1402(2)(b)-(c).

[6, 7] ¶ 9 A statute sets out a sentence enhancer "if its proof, while raising the … level of an offense, is not necessarily required to secure a conviction." People v. Leske, 957 P.2d 1030, 1039 (Colo. 1998). A statutory sentence enhancer is not a substantive element of the charged offense for purposes of a double jeopardy and merger analysis. Id.

[8] ¶ 10 Bodily injury and death raise the level of the offense of careless driving from one class of misdemeanor to another; accordingly, they are sentence enhancers, not substantive elements of the offense. See Armintrout v. People, 864 P.2d 576, 580 (Colo. 1993) (a sentence enhancer is a statutory provision that raises the felony classification of a particular offense); People v. Zweygardt, 2012 COA 119, ¶¶ 16, 47, 298 P.3d 1018 (applying this principle to conclude that bodily injury and death are not substantive elements of careless driving but declining to address whether multiple careless driving convictions based on one act of driving should merge because the defendant did not present that issue for the court’s review); see also People v. Simon, 266 P.3d 1099, 1108 (Colo. 2011) ("Whether the offense is committed as a class 3 or class 4 felony, the relevant unit of prosecution — and the substantive crime of which the defendant stands convicted — remains the act statutorily designated as ‘Sexual assault on a child’ or ‘Sexual assault on a child by one in a position of trust.’ ").

[9] ¶ 11 Because subsection (1) of the careless driving statute evinces a legislative intent to criminally punish a certain type of driving, and subsections (2)(b) and (2)(c) describe sentence enhancers by raising the classification of the offense, we must conclude that the unit of prosecution for careless driving is the act of driving in the manner described and not the number of victims harmed by that conduct.

¶ 12 True, the unit of prosecution for some offenses is, as the district court noted, defined by each victim harmed. See, e.g., Magana, ¶¶ 20-32. But each of those statutes requires proof that the defendant harmed "another" as a substantive element of the offense, not as a sentence enhancer. See id. at ¶ 8 (detailing statutory definitions of first degree, second degree, and fourth degree arson offenses).

¶ 13 Accordingly, we reverse the judgment and remand with directions to merge one of the two careless driving convictions into the other, vacate the sentence for the merged conviction, and reinstate the judgment as to only one count of careless driving.

III. Disposition

¶ 14 The judgment is reversed, and the case is remanded for further proceedings as stated herein.

JUDGE DAVIDSON ^* concurs.

JUDGE BERNARD^* specially concurs.

JUDGE BERNARD, specially concurring.

¶ 15 Defendant’s careless driving was the proximate cause of the deaths of two people. Yet, as the majority correctly points out, under the law as it now stands, he cannot receive consecutive sentences for those two deaths; rather, his two careless driving convictions must merge, and he will only receive one sentence. In other words, the trial court has no discretion to impose consecutive sentences that would recognize the harm that defendant caused to the two victims, to their families, to their friends, and to their communities. While I agree with the result and the rationale in the majority’s opinion, I write separately to urge the General Assembly to take a fresh look at the careless driving statute, specifically section 42-4-1402(2)(c), C.R.S. 2023. Once it does, it can decide whether it wishes to amend that statute to give judges discretion to impose consecutive sentences in cases in which a defendant’s careless driving was the proximate cause of the deaths of two or more people.

¶ 16 How did the result in this case come about? Before 1985, the careless driving statute, then found in section 42-4-1204, had a penalty provision, subsection (2), which said that "[a]ny person who violates any provision of this section commits a class 2 traffic offense." § 42-4-1204(2), C.R.S. 1984. Effective July 1, 1985, the General Assembly amended subsection (2) by adding "[b]ut, if the person’s actions are the proximate cause of bodily injury or death to another, such person commits a class 1 traffic offense." Ch. 333, secs. 1-3, § 42-4-1204(2), 1985 Colo. Sess. Laws 1325. This change was approved on May 31, 1985. Id. (Today, the class 1 traffic misdemeanor of careless driving that proximately causes the death of another is found in section 42-4-1402(2)(c).)

¶ 17 Looking at the plain language of the amended subsection (2) of section 42-4-1204, see Garcia v. People, 2023 CO 41 ¶ 14, 530 P.3d 1200, it appears to me that the General Assembly intended to create a sentence enhancer, not a crime in which the proximate cause of the death of another is an element of the offense, see People v. Leske, 957 P.2d 1030, 1039 (Colo. 1998). The General Assembly was presumptively aware of the difference between elements of an offense and sentence enhancers, see Vaughan v. McMinn, 945 P.2d 404, 409 (Colo. 1997), because Colorado’s appellate courts had discussed the distinction between sentence enhancers and substantive offenses before 1985, see, e.g., People v. Beigel, 646 P.2d 948, 949-50 (Colo. App. 1982), reversed on other grounds, 683 P.2d 1188 (Colo. 1984).

¶ 18 But, even if I were to decide that the 1985 amendment to section 42-4-1204(2) is ambiguous as to whether it created a substantive offense or a sentence enhancer, the legislative history behind this amendment would still support a conclusion that it is a sentence enhancer. See Pellegrin v. People, 2023 CO 37, ¶ 23, 532 P.3d 1224 (if a statute is ambiguous, a court may employ other aids in statutory construction, including the statute’s legislative history).

¶ 19 When testifying about this amendment, the Senate sponsor said that

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