People v. Kirby.
2024 COA 20. No. 21CA1699. Reckless Vehicular Homicide—Reckless Manslaughter—Careless Driving Resulting in Death—Prosecution of Multiple Counts for Same Act—Lesser Included Offenses.
February 29, 2024
Kirby was driving at a high rate of speed and lost control of his vehicle, which swerved into another lane and hit another vehicle. The impact caused both vehicles to roll over several times on the highway and down an embankment. The driver of the other car was severely injured and died at the scene. Kirby fled the scene without reporting the accident or assisting the victim. Kirby was convicted of reckless vehicular homicide, reckless manslaughter, leaving the scene of an accident resulting in death, and careless driving resulting in death. Kirby was sentenced to 15 years in the custody of the Colorado Department of Corrections for the leaving the scene of an accident resulting in death conviction, and eight years each for his reckless manslaughter and reckless vehicular homicide convictions. The court also imposed a 30-day jail sentence for the careless driving resulting in death conviction. All four sentences were imposed to run concurrently.
On appeal, Kirby argued that the trial court violated his statutory speedy trial right by continuing his trial date past the speedy trial deadline due to COVID-19 restrictions that affected the availability of out-of-state prosecution witness Ramos. CRS § 18-1-405(6) allows tolling of the speedy trial deadline for witness unavailability or exceptional circumstances. Under CRS § 18-1-405(1), Kirby’s six-month speedy trial time frame started in July 2019. In October, that deadline was extended to April 22, 2020, after Kirby waived his speedy trial right in connection with resetting the trial. Here, Ramos wasn’t allowed to travel out of his home state under its pandemic executive order, and the prosecution used due diligence to secure Ramos’s presence. Accordingly, the trial court didn’t err by continuing the case under § 18-1-405(6)(g)(I).
Kirby further argued, and the People conceded, that the trial court erred by failing to merge his convictions for reckless manslaughter and reckless vehicular homicide. Based on the statutory definitions of these two offenses, the court of appeals determined that every element of reckless manslaughter is also an element of reckless vehicular homicide, so reckless manslaughter is a lesser included offense of reckless vehicular homicide. Therefore, the trial court erred by not merging these convictions for these two crimes, and the error is plain.
Kirby further contended that careless driving resulting in death is a lesser included offense of reckless vehicular homicide under CRS § 18-1-408(5)(a) and (c) and the statutory elements test, so the trial court reversibly erred by not merging these convictions. The statutory elements test in Reyna-Abarca v. People, 2017 CO 15, provides that an offense is a lesser included offense of another offense if the lesser offense contains only elements that are a subset of the greater offense’s elements. The Colorado Supreme Court determined that each element of careless driving resulting in death is a subset of the elements of reckless vehicular homicide, so careless driving resulting in death is a lesser included offense of reckless vehicular homicide. Accordingly, the trial court plainly erred by not merging Kirby’s convictions for these two offenses.
Kirby also asserted that the trial court erred by sentencing him in the aggravated range for leaving the scene of an accident resulting in death and reckless vehicular homicide. Under CRS § 18-1.3-401(6), (7), a trial court may impose a sentence up to twice the maximum of the presumptive sentencing range if it makes detailed record findings about extraordinary aggravating circumstances. Here, the trial court determined that Kirby’s prior convictions for conspiracy to commit first-degree assault, conspiracy to commit first-degree burglary, and driving while ability impaired constituted an aggravating factor warranting the enhanced sentences. The court’s consideration of this prior criminal history was sufficient to support the finding of aggravation.
Lastly, Kirby argued that the trial court erred by not considering his character and rehabilitative potential before sentencing him. However, the record reveals that the trial court properly weighed various factors, both in favor of and against Kirby, and found that the aggravating nature of his conduct outweighed the mitigating evidence that he had presented. Accordingly, the court did not abuse its discretion.
The convictions for reckless manslaughter and careless driving resulting in death were vacated. The case was remanded with directions to merge those convictions into the conviction for reckless vehicular homicide and correct the mittimus. The judgment was otherwise affirmed.