594 P.2d 340 (N.M.App. 1979), 3757, State v. Luna

Docket Nº:3757.
Citation:594 P.2d 340, 92 N.M. 680, 1979 -NMCA- 048
Opinion Judge:[9] Andrews
Party Name:STATE of New Mexico, Plaintiff-Appellee, v. Joseph LUNA, Defendant-Appellant.
Attorney:[6] David G. Gilbert, Albuquerque, for defendant-appellant. [7] Jeff Bingaman, Atty. Gen., Lawrence A. Gamble, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.
Case Date:April 05, 1979
Court:Court of Appeals of New Mexico

Page 340

594 P.2d 340 (N.M.App. 1979)

92 N.M. 680, 1979 -NMCA- 048

STATE of New Mexico, Plaintiff-Appellee,

v.

Joseph LUNA, Defendant-Appellant.

No. 3757.

Court of Appeals of New Mexico.

April 5, 1979

[92 N.M. 681]

Page 341

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

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

[92 N.M. 682]

Page 342

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 [92 N.M. 683]

Page 343

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...

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