People v. Esparza-Treto, 282 P.3d 471

Esparza-Treto was pursued by Colorado State Patrol during a high-speed chase through Grand Junction; he failed to stop for speeding and traffic controls, driving through red lights and stop signs.
The chase ended when Esparza collided with another vehicle, causing serious bodily injury to the other driver and to his passenger.
Esparza was convicted of first degree assault with extreme indifference, second degree reckless assault, third degree assault, two vehicular assaults, vehicular eluding, reckless driving, speeding, and a traffic-control device violation.
The trial court sentenced on these convictions; the record shows the collision occurred while Esparza was attempting to elude law enforcement.
The appellate court held that Esparza did not use his vehicle as a deadly weapon to support second and third degree assault, and that the reckless driving conviction should merge into vehicular eluding; mittimus corrections were required.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Deadly weapon use in second/third degree assault	Esparza used the car as a deadly weapon to cause injuries.	The vehicle was not used as a weapon directed at an intended opponent.	Insufficient evidence; reverse second and third degree assault convictions.
Merger of reckless driving into vehicular eluding	Reckless driving should stand separately from vehicular eluding.	Reckless driving is a lesser included offense of vehicular eluding.	Merge required; reckless driving vacated.
Merger of vehicular eluding and attempting to elude a police officer	Attempting to elude should merge into vehicular eluding.	They are distinct offenses.	Not merged; distinct offenses.
Jury instruction on extreme indifference and grave risk of death	Court should have defined the terms with narrower or different wording.	Common usage definitions were sufficient; no abuse of discretion.	No reversible error; instruction proper.
Mittimus correction	Mittimus incorrectly reflected attempted vehicular eluding rather than attempted to elude a police officer.	Mittimus must reflect the actual conviction.	Remand for mittimus correction.

People v. Stewart, 55 P.3d 107 (Colo. 2002) (deadly weapon analysis for vehicle use requires use or deployment as a weapon)
People v. Pena, 962 P.2d 285 (Colo. App. 1997) (reckless driving as a lesser included offense of vehicular eluding)
People v. Scarlett, 985 P.2d 36 (Colo. App. 1998) (addressed held Pena cited)
People v. Marcy, 628 P.2d 69 (Colo. 1981) (definition of extreme indifference in context of culpable mental states)
People v. Johnson, 923 P.2d 342 (Colo. App. 1996) (common understandings of grave risk of death; lack of need for definitional instruction)
People v. Saleh, 45 P.3d 1272 (Colo. 2002) (deadly weapon defined by manner used)
People v. Ross, 831 P.2d 1310 (Colo. 1992) (when an object is used as a deadly weapon depends on its use)
Candelaria v. People, 148 P.3d 178 (Colo. 2006) (remedies for inconsistent verdicts; maximizing punishment approach)
Frye, 898 P.2d 559 (Colo. 1995) (inconsistent verdicts; remedies in remand/vacatur)
Glover, 893 P.2d 1311 (Colo. 1995) (remedies for multiple convictions not standing; approach to remedy)
Jurado, 30 P.3d 769 (Colo. App. 2001) (consecutive sentencing when separate victims; identical evidence test)
Torres, 224 P.3d 268 (Colo. App. 2009) (strict elements test for lesser included offenses)