A Tucson teen awaiting trial for manslaughter after an infant was ejected from a car during a high-speed crash in 2018 is not entitled to a jury instruction about the baby’s father driving while impaired and not properly restraining his son in the vehicle, the Arizona Court of Appeals has ruled.
Max Fontes was traveling 70 to 95 mph in a 45 mph zone when he collided with a car driven by Angel Shelby near Mission and Irvington Roads on April 10, 2018. Shelby and his son Gabriel Antonio Torres-Shelby, age seven months, were ejected from their vehicle.
Shelby suffered serious injuries and the infant died a short time later. Court records show the father pleaded guilty to DUI and endangerment after it was revealed he had THC in his blood at the time of the crash.
Fontes was 17 at the time of the crash but is being prosecuted as an adult by the Pima County Attorney’s Office for manslaughter, aggravated assault, and criminal damage. Jurors must find that Fontes’ actions were the proximate cause of the baby’s death and believe the death would not have occurred “but for” Fontes’ action.
Earlier this year, Judge Gus Aragon of the Pima County Superior Court ruled that when Fontes’ case goes to trial the jurors could hear evidence that neither the father nor baby were properly restrained in the vehicle. Aragon also ruled the jurors could be instructed that they may consider Shelby’s conduct, which included failure to yield, as a superseding cause for eliminating criminal culpability from Fontes.
In June, the Arizona Attorney General’s Office challenged Aragon’s ruling through a petition for special action to the court of appeals. The AGO argued it was Fontes’ excessive speed, and none of the father’s actions, which posed “the very risk of harm” that caused the baby’s death.
The court of appeals agreed, releasing an Aug. 14 opinion which unanimously overturned Aragon’s ruling. The opinion notes the father’s DUI and failure to yield can be disclosed to the jury even though it “only increased the risk caused by Fontes’ conduct.” The jurors will not, however, hear about the father’s disuse of safety restraints for himself and his son.
“This court has already determined that a victim’s failure to wear a seatbelt is not a superseding cause,” the opinion notes. “That Shelby’s conduct increased that risk does not entitle Fontes to a superseding-cause instruction.”
The father’s conduct leading up to the accident was the basis of a petition for special action filed by Fontes last year asking the court of appeals to dismiss his criminal charges. The court declined to consider Fontes’ petition for dismissal in January and then again this month.
Fontes has been ordered back to court Nov. 3 for a status conference. No trial date has been scheduled yet, but with delays caused by COVID-19 it likely won’t take place until early 2021.