CO 18-3-305. Criminally negligent homicide
TITLE 18. CRIMINAL CODE
ARTICLE 3. OFFENSES AGAINST THE PERSON
PART 1. HOMICIDE AND RELATED OFFENSES
C.R.S. 18-3-105 (2016)
18-3-105. Criminally negligent homicide
Any person who causes the death of another person by conduct amounting to criminal negligence commits criminally negligent homicide which is a class 5 felony.
HISTORY: Source: L. 71: R&RE, p. 419, § 1. C.R.S. 1963: § 40-3-105.L. 77: (1)(b) amended, p. 960, § 7, effective July 1.L. 81: Entire section R&RE, p. 973, § 5, effective July 1.L. 85: Entire section amended, p. 665, § 1, effective July 1.
Law reviews. For note, “Correcting an Erroneous Judgment in a Criminal Case”, see 19 Rocky Mt. L. Rev. 295 (1947). For article, “Homicides Under the Colorado Criminal Code”, see 49 Den. L. J. 137 (1972). For article, “The Jurisprudence of Death by Another: Accessories and Capital Punishment”, see 51 U. Colo. L. Rev. 17 (1979).
Annotator’s note. Since § 18-3-105 is similar to former § 40-2-7, C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
Classification of first-degree assault as more serious than negligent homicide constitutional. The culpable mental state required for first-degree assault is sufficiently distinguishable from that required for criminally negligent homicide to justify a harsher sentence for the former. People v. Lucero, 714 P.2d 498 (Colo. App. 1985).
To be guilty of criminally negligent homicide, the defendant must fail to perceive a substantial and unjustifiable risk that a certain result will occur, and the risk must be of such a nature that the defendant’s failure to perceive it constitutes a gross deviation from a reasonable person’s standard of care. People v. Jones, 193 Colo. 250, 565 P.2d 1333 (1977).
The defendant’s guilt in criminally negligent homicide stems from his culpable failure to perceive the risk. People v. Jones, 193 Colo. 250, 565 P.2d 1333 (1977).
Criminally negligent homicide is an unintentional killing caused by the actor’s failure to perceive a substantial and unjustifiable risk that a certain result will occur. People v. Hernandez, 44 Colo. App. 161, 614 P.2d 900 (1980).
Criminal negligence, as applied to homicide, means a failure to perceive, through a gross deviation from the standard of reasonable care, a substantial and unjustifiable risk that death will result from certain conduct. People v. Taggart, 621 P.2d 1375 (Colo. 1981); People v. Shaw, 646 P.2d 375 (Colo. 1982).
Attempted criminally negligent homicide logical and legal impossibility. Where the trial court joined criminally negligent homicide and attempt and charged the jury on attempted criminally negligent homicide, the charge was a logical and legal impossibility. People v. Hernandez, 44 Colo. App. 161, 614 P.2d 900 (1980).
Defendant cannot avoid his conviction on the ground that he did not intend death to result from his act. People v. Palumbo, 192 Colo. 7, 555 P.2d 521 (1976).
In this section and § 18-3-106 there is a crucial difference in that the vehicular homicide statute requires for conviction that the prosecution prove the additional element of a death caused through the use of a motor vehicle. People v. Hulse, 192 Colo. 302, 557 P.2d 1205 (1976).
More severe penalty for vehicular homicide does not deny equal protection. It cannot be said that the legislature’s decision to provide a more severe penalty for vehicular homicide than for criminal negligent homicide is arbitrary or unreasonable. The state has a legitimate interest in discouraging a specific evil which it believes to be of greater societal consequence. This choice does not offend equal protection. People v. Hulse, 192 Colo. 302, 557 P.2d 1205 (1976).
Classification of child abuse as more serious than negligent homicide constitutional. The legislative classification of child abuse as a crime more serious in penalty than the offense of criminally negligent homicide is neither arbitrary nor unreasonable and does not violate equal protection of the laws. People v. Taggart, 621 P.2d 1375 (Colo. 1981).
Sections 18-6-401 and 18-3-405 do not proscribe identical conduct. The proscriptions of § 18-6-401 encompass conduct that is particularly abusive to children, that is directed specifically against a child, and that results in injury to that child. Criminally negligent homicide, on the other hand, proscribes in general terms a gross carelessness that causes death to anyone, adult or child. People v. Taggart, 621 P.2d 1375 (Colo. 1981).
Equal protection violated by provisions setting forth same conduct with different sanctions. It is only where the same acts or conduct are set forth in two sections with different criminal sanctions or to which different defenses are available that equal protection guarantees are violated. People v. Gibson, 623 P.2d 391 (Colo. 1981).
Divergent penalties in former versions of criminally negligent homicide and first degree assault violated equal protection because both statutes proscribed similar conduct and intent. People v. Jackson, 198 Colo. 193, 601 P.2d 622 (1979).
The statutory language in this section and § § 18-3-102 and 18-3-104 creates distinguishable standards which can be fairly applied by jurors. People v. Favors, 192 Colo. 136, 556 P.2d 72 (1976).
The standards of culpability in this section and § 18-3-102 (1)(d) are distinct enough to be intelligently understood and applied, and therefore, the defendant was not denied equal protection of the law by virtue of his conviction under subsection (1)(d) of § 18-3-102. People v. Jones, 193 Colo. 250, 565 P.2d 1333 (1977).
Liability due to mechanical failure of motor vehicles and appurtenances is not conclusive of negligence, criminal or otherwise, where the failure occurred under circumstances beyond one’s control. Where acts or circumstances are attributable to either an innocent or a criminal cause, the innocent hypothesis will be adopted. Bennett v. People, 155 Colo. 101, 392 P.2d 657 (1964).
Section 18-1-803 does not require evidence of any psychiatric abnormality or independent testimony to analyze the effect of a blow on the defendant’s mental state. This effect may be inferred from the evidence present. People v. Delaney, 44 Colo. App. 366, 620 P.2d 44 (1980).
Court may deny admitting testimony that alcohol found in victim’s bloodstream. As a matter of law, a trial court does not abuse its discretion in denying the admission of an expert’s testimony that some alcohol and drug traces were found in the murder victim’s bloodstream without any effort to show how such substances might have affected the victim’s behavior. People v. Delaney, 44 Colo. App. 366, 620 P.2d 44 (1980).
Instruction on mental condition required if any evidence tends to establish impairment. An instruction on impaired mental condition is required if there is any evidence tending to establish that a blow to the defendant’s head impaired his mental condition sufficiently to preclude formation of a conscious objective to cause the victim’s death. People v. Delaney, 44 Colo. App. 366, 620 P.2d 44 (1980).
Theory of accidental killing should be submitted to jury. In a prosecution for murder where defendant testified that he did not think the gun used in the killing was loaded, and that he was merely waving it around to scare the deceased away when it was discharged accidentally, refusal to instruct the jury on this theory was error, as the drawing of the weapon could be considered by the jury as a proper and lawful act. Vigil v. People, 143 Colo. 328, 353 P.2d 82 (1960).
Because this section contains all of the elements of the crime in § 18-3-104(1)(a) and is a lesser included offense, the same abundance of competent evidence supports conviction of criminal negligence. People v. Webb, 189 Colo. 400, 542 P.2d 77 (1975).
Failure to give instruction on criminally negligent homicide was harmless, even if assumed to be erroneous, where jury convicted defendant of second degree murder and rejected charge of reckless manslaughter because criminally negligent homicide is a lesser included offense of reckless manslaughter. Jury’s selection of the highest available grade of offense was a rejection of the next lower included offense and of all lesser offenses included in the latter. People v. Medina, 51 P.3d 1006 (Colo. App. 2001), aff’d, 71 P.3d 973 (Colo. 2003).
Conviction held constitutional. Where defendant was charged with manslaughter and convicted of criminally negligent homicide as an included offense, the conviction was constitutional. People v. Palumbo, 192 Colo. 17, 555 P.2d 521 (1976).
Conviction not inconsistent with acquittal on charge of vehicular homicide. A conviction on a charge of criminally negligent homicide is not inconsistent with an acquittal on a charge of vehicular homicide. People v. Bettis, 43 Colo. App. 104, 602 P.2d 877 (1979).
Where defendant is charged with reckless manslaughter and criminally negligent homicide, no error occurred where the trial court allowed defendant to present evidence of self defense at trial and properly instructed the jury on the elements of crimes charged. Under these circumstances the trial court is not required to submit defendant’s tendered self defense instruction to the jury. Case v. People, 774 P.2d 866 (Colo. 1989).
However, a defendant may present evidence that he was acting in self-defense and such evidence may be considered by the jury in its determination of whether the defendant was acting recklessly or in a criminally negligent manner. When such evidence is presented, the jury should be informed of the right of a defendant to put himself in a position of reasonably defending himself. People v. Roberts, 983 P.2d 11 (Colo. App. 1998).
Criminally negligent homicide is not a lesser included offense of vehicular homicide. People v. Nhan Dao Van, 681 P.2d 932 (Colo. 1984).
Criminally negligent homicide is not an enumerated offense for purposes of the direct file statute. The offense is not a per se crime of violence and merely alleging use of deadly weapon as part of the factual basis does not satisfy the requirement of the crime of violence statute. In addition, the elements of the crime do not include the use, possession, or threatened use of a deadly weapon. People v. Vickers, 168 P.3d 9 (Colo. App. 2007).
Reckless manslaughter and criminally negligent homicide distinguished. People v. Shaw, 646 P.2d 375 (Colo. 1982).
The actions of a defendant convicted under this section may be the same as a person convicted of § 42-4-1402 (2), careless driving resulting in death. The enactment by the general assembly of a specific criminal statute does not preclude prosecution under a general criminal statute unless a legislative intent to limit prosecution to the specific statute is shown. Here no such intent is found. People v. Tow, 992 P.2d 665 (Colo. App. 1999).
Elements supported by credible evidence. People v. Palumbo, 192 Colo. 17, 555 P.2d 521 (1976).
Conviction as bar to prosecution for assault on another. A conviction of former crime of involuntary manslaughter for fatally wounding one person while shooting at another bars a prosecution upon a charge of assault to kill and murder the person at whom defendant shot. Carson v. People, 4 Colo. App. 463, 36 P. 551 (1894).
Applied in People in Interest of M.A.L., 37 Colo. App. 307, 592 P.2d 415 (1976); People v. District Court, 196 Colo. 116, 581 P.2d 300 (1978); People v. District Court, 198 Colo. 70, 595 P.2d 1045 (1979); People v. DelGuidice, 199 Colo. 41, 606 P.2d 840 (1979); People v. White, 199 Colo. 82, 606 P.2d 847 (1980); People v. Lee, 630 P.2d 583 (Colo. 1981). People v. Mumaugh, 644 P.2d 299 (Colo. 1982); People v. District Court, 652 P.2d 582 (Colo. 1982); Castro v. District Court, 656 P.2d 1283 (Colo. 1982).