State v. Luna, 3757

Decision Date05 April 1979
Docket NumberNo. 3757,3757
Citation92 N.M. 680,1979 NMCA 48,594 P.2d 340
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Joseph LUNA, Defendant-Appellant.
CourtCourt of Appeals of New Mexico

David G. Gilbert, Albuquerque, for defendant-appellant.

Jeff Bingaman, Atty. Gen., Lawrence A. Gamble, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

ANDREWS, Judge.

Following a jury trial in Bernalillo County District Court, defendant was convicted of robbery and conspiracy and acquitted of aggravated battery. Defendant, appellant here, was one of four occupants in a car when another passenger left the car and committed a robbery. The central question is whether the defendant was merely present in the vehicle at the time of the offense or whether he participated in the criminal plan and criminal acts. We affirm the robbery conviction and remand for further proceedings in regard to the conspiracy conviction.

Facts

During the afternoon of May 22, 1977, defendant, Joseph Luna (Luna) along with Patrick Gonzales (Gonzales) and Donald Juarez (Juarez), was a passenger in a Nova automobile driven by David Wolff (Wolff). Wolff drove the car into the Northdale Shopping Center parking lot where Juarez left the car and shortly thereafter seized the purse of an elderly woman, knocking her to the pavement as he did so.

Juarez then ran back across the parking lot, with the purse, and jumped into the Nova which was waiting with an open door. Wolff drove the car from the lot. None of the others left the Nova while it was parked in the lot.

A witness at the shopping center heard the victim calling for help and saw a young man get into a Nova containing three other people. The witness called the police and described the incident and the car.

After receiving a call concerning the incident, Officer Noga of the Bernalillo County Sheriff's Department spotted and followed the Nova. When the car entered a filling station, the officer blocked the Nova with his cruiser. Soon, two other officers (Lemmons and Kettles) joined Officer Noga and the three searched the Nova and its occupants. A purse matching the description of that taken, and containing the victim's identification, was found in the front seat of the car. Money in the denominations the victim stated she had carried in her purse was found in the possession of Wolff and Gonzales. When the officers searched the car, they found currency stuffed between the top and bottom of the front seat and under the left rear floor mat, and change beneath both the front and rear floor mats on the left and right sides. No money was found on the person of defendant Joseph Luna and he stated "I did not even touch the money."

On direct examination, Gonzales testified that he, Wolff, Juarez and Luna were riding around. They were all sniffing paint. They needed gas for the car because they were running low, but they "didn't have any money." (Tr. 1B 130-131). Juarez was talking about getting a purse. They took Juarez over to the Northdale Shopping Center. When asked, "Did you discuss what you were going to do at the Northdale Shopping Center?" Gonzales answered, "Yes" (Tr. 1B 176-177). When asked what was discussed, Gonzales stated that he said he was "going to stay in the car" and that "I didn't want nothing to do with it. Nobody else did I guess. Don Juarez wanted to steal a purse. He can do what he wants to, you know." (Tr. 1B 177-180). But when asked, "Did you all agree that he would go out and snatch a purse?" he answered, "Yes." When asked, "When you decided where to go and what to do there, did Mr. Luna agree to it?" he stated, "I guess we all agreed to it because we were all in it, you know." Officer Noga testified that after the car had been stopped by the police, defendant Luna told him, "Give us a break." (Tr. 1B 683-688).

When viewed in the light most favorable to the State, State v. Parker, 80 N.M. 551, 458 P.2d 803 (Ct.App.1969), cert. denied, 80 N.M. 607, 458 P.2d 859 (1969), the record shows: (1) Luna told Officer Foster that they were driving around trying to find some money and they decided to stop at the Northdale Shopping Center; (2) Luna knew that Juarez was going to snatch the purse because they had "discussed it over in the car;" (3) prior to stealing the money the occupants of the car didn't have any money; (4) they needed gas for the car because they were running low; (5) after they left the shopping center, they went to a gas station; (6) they all agreed that Juarez would go out and steal the purse; (7) after Juarez stole the purse and ran back to the car he jumped in the open door, and the car immediately took off; (8) when the car was found by the officers there was money stuffed in the crevice between the top and bottom of the front seat between Wolff and Luna; and (9) there was change on the front floorboard. Luna was in the front seat on the passenger side.

Wolff and Juarez were tried before the same jury on April 25, 1978. Wolff was found guilty of robbery and acquitted of conspiracy and aggravated battery, and Juarez was convicted of robbery and aggravated battery with great bodily harm and acquitted of conspiracy. Patrick Gonzales pleaded guilty to robbery and aggravated battery and the conspiracy count against him was dismissed. Defendant Luna's trial was held June 19, 1978, and he received concurrent sentences of two-to-ten years and one-to-five years on the robbery and conspiracy counts, respectively. These sentences were suspended and Luna was put on three years probation and ordered to pay the victim $1,000.00 in restitution.

The issues presented in regard to Luna's conviction relate to: (1) substantial evidence; (2) admission and relevancy of lay opinion; and (3) effective assistance of counsel.

Sufficiency of the Evidence

Although aiding and abetting and conspiracy are separate offenses, State v. Armijo, 90 N.M. 12, 558 P.2d 1151 (Ct.App.1976), the same set of facts is applicable to each offense in this case.

(1) Aiding and Abetting

Neither presence, nor presence with mental approbation is sufficient to sustain a conviction as an aider or abettor. Presence must be accompanied by some outward manifestation or expression of approval. State v. Salazar, 78 N.M. 329, 431 P.2d 62 (1967). There must be a community of purpose, a partnership, in the unlawful undertaking. State v. Harrison, 81 N.M. 324, 466 P.2d 890 (Ct.App.1970). This community of purpose may be shown by evidence of acts, conduct, words, signs or any means sufficient to incite, encourage or instigate commission of the offense. State v. Atwood, 83 N.M. 416, 492 P.2d 1279 (Ct.App.1971), cert. denied, 83 N.M. 395, 492 P.2d 1258 (1972).

Although defendant admits he was a passenger in the car when Juarez snatched the purse, he asserts that the evidence shows only that he was in the presence of Juarez and Wolff, evidence insufficient to support the conviction. We disagree, and find sufficient outward manifestation and expression of approval of the crime to support the conviction in: (a) the fact that the four occupants of the car were riding around without money which they needed for gas; (b) that they went to a gas station after the robbery; (c) that the police found money in the area of the car where the defendant was seated; (d) that the four occupants of the car "discussed it over in the car;" (e) that they agreed that Juarez would steal the purse; (f) that they "were all in it." All of these facts support a finding of the "community of purpose" necessary to establish a charge of aiding and abetting.

(2) Conspiracy

Gonzales testified that they all "agreed" that Juarez would snatch a purse. When queried as to whether the four of them had reached an agreement as to the commission of the crime, he stated, "I guess we all agreed to it 'cause we were all in it." (Tr. 1B, 249).

Defendant argues that the only reasonable inference that can be drawn from the totality of Gonzales's testimony is that if the defendants agreed to do anything, it was to let Juarez carry out his unlawful intentions on his own. We disagree. The facts show that the car door was open for Juarez, that Wolff and Gonzales had money in their possession, and that money was within the immediate area where Luna was seated. These facts support an inference that the occupants of the car agreed to assist Juarez in carrying out his unlawful intentions.

Defendant also argues that Gonzales's testimony is so inconsistent, vague and speculative that no inference regarding Joseph Luna can reasonably be drawn from it. This Court will not weigh the evidence. The determination of the weight and effect of evidence, including all reasonable inferences to be drawn from both direct and circumstantial evidence, is reserved for determination by the trier of facts, which in this case is the jury. State v. Bloom, 90 N.M. 192, 561 P.2d 465 (1977).

Opinion Testimony

The testimony which defendant argues was improper and to which objections were made at trial is as follows:

Q. Did you all agree that he (Juarez) would go out and snatch the purse?

MR. JAFFEE: Objection Your Honor.

A. Yes.

MR. JAFFEE: The question is improper.

THE COURT: No, it is permitted. Overruled.

(B: 183-186).

Q. Mr. Gonzales, when you have stated on examination at this point, that before you decided where to go . . .

MR. JAFFEE: Objection Your Honor, there has been no such statement.

THE COURT: Let me hear the rest of the question.

Q. And what you were going to do, did Mr. Luna specifically enter into the agreement of what to do?

MR. JAFFEE: Objection.

THE COURT: That's permitted. Overruled.

MR. JAFFEE: May I state the basis for it.

THE COURT: He may answer the question. Overruled.

A. Now you were saying . . .?

Q. Let me state it again. Listen very carefully. When you decided where to go and what you were going to do there, did Mr. Luna agree to it?

A. We all agreed to it, because we were all in it.

(1B: 240-251).

Rule 701, New Mexico Rules of Evidence in regard to opinion testimony by a...

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