State v. Andazola
| Decision Date | 20 April 2023 |
| Docket Number | A-1-CA-39763 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. CANDIDO ANDAZOLA, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.
APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY Jane Shuler Gray District Court Judge
Raul Torrez, Attorney General
Santa Fe, NM
Michael J. Thomas, Assistant Attorney General
for Appellee
Harrison, Hart & Davis, LLC
Nicholas T. Hart
Albuquerque, NM
for Appellant
{¶1} Defendant Candido Andazola appeals his convictions for five charges: two counts of aggravated assault on a peace officer, contrary to NMSA 1978, Section 30-22-22(A) (1971); one count of aggravated assault, contrary to NMSA 1978, Section 30-3-2(A) (1963); one count of shooting at a dwelling or occupied building, contrary to NMSA 1978, Section 30-3-8(A) (1993); and one count of shooting at or from a motor vehicle, contrary to Section 30-3-8(B). Defendant argues that (1) the evidence produced at trial was insufficient to convict him of aggravated assault on a peace officer under an attempted battery theory; (2) the district court improperly denied Defendant's request for presentence confinement credit for the time he spent on GPS location monitoring; and (3) Defendant's two convictions under Section 30-3-8(A) and (B) violate double jeopardy. We affirm.
{¶2} At trial, the State produced the following evidence leading to Defendant's conviction: two City of Roswell police officers and a civilian on a ride along were ordering food at Whataburger around 2:00 a.m. when they observed Defendant and his cousin walk in and order. Defendant and his cousin then left the restaurant with their food, and the officers and civilian sat at a table near a window. Shortly thereafter, a loud noise was heard outside and the officers were hit with pieces of glass from the window shattering. Along with having heard the sound of the shattered window, the civilian testified that she heard a gunshot. From the floor of the restaurant, where they had sought safety, the officers called dispatch for assistance.
{¶3} A few minutes later, Defendant and his cousin stepped out of a pickup truck parked immediately outside the restaurant window and ran into the restaurant, yelling incomprehensibly. Both were detained and Defendant was handcuffed. At trial, Defendant testified that he was unloading the gun when it discharged in his hand on accident, firing two shots "simultaneously." Realizing the gravity of what had happened, Defendant told his cousin that they should "make up the story" that someone was shooting at them in the parking lot. Defendant explained at trial that he went inside the restaurant with his hands up in order to relay that narrative to the police.
{¶4} As Defendant was being taken to a police vehicle, one of the officers noticed quantities of saliva and soda splattered on the exterior of his vehicle and on the ground nearby. A DNA comparison later revealed the presence of Defendant's DNA in the sample taken from the saliva on the police vehicle. Defendant testified that he did not know how his spit got on the patrol vehicle.
{¶5} Exterior surveillance footage from the restaurant showed the truck parked immediately outside the restaurant window, its front windshield break, followed by a puff of smoke. Subsequent inspection of the truck showed bullet holes through the front windshield, as well as the rear window of the passenger cab. A detective inspecting the truck determined that the bullets traveled in opposite directions from the inside of Defendant's truck because glass shards were found on both the hood and in the bed of the truck. Two bullet casings were found inside the truck cabin.
{¶6} Defendant argues that the jury was presented with insufficient evidence to convict him of two counts of aggravated assault on a peace officer under an attempted battery theory. Defendant maintains that while he discharged the firearm recklessly, no evidence indicates that he fired with sufficient intent to commit a battery by intentionally firing towards the officers.
{¶7} "When reviewing a challenge to the sufficiency of the evidence, we determine whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction." State v Uribe-Vidal, 2018-NMCA-008, ¶ 6, 409 P.3d 992 (internal quotation marks and citation omitted). "In reviewing whether there was sufficient evidence to support a conviction, we resolve all disputed facts in favor of the state, indulge all reasonable inferences in support of the verdict, and disregard all evidence and inferences to the contrary." State v. Zachariah G., 2021-NMCA-036, ¶ 8, 495 P.3d 537 (alteration, internal quotation marks, and citation omitted). "Contrary evidence supporting acquittal does not provide a basis for reversal because the jury is free to reject efendant's version of the facts." State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. "Just because the evidence supporting the conviction was circumstantial does not mean it was not substantial evidence." Id. ¶ 23 (internal quotation marks and citation omitted).
{¶8} The district court instructed the jury that to find aggravated assault on a peace officer by use of a deadly weapon, the State had to prove beyond a reasonable doubt that (1) Defendant intended to commit the crime of battery against the two officers by shooting a firearm in their direction; (2) Defendant began to do an act which constituted a substantial part of the battery but failed to commit the battery; (3) Defendant used a firearm; (4) the officers were peace officers performing their duties as such; (5) Defendant knew they were peace officers; (6) Defendant's conduct threatened the safety of the officers; and (7) it happened in Chaves County, New Mexico. See UJI 14-2201 NMRA; see also State v. Garcia, 2009-NMCA-107, ¶ 21, 147 N.M. 150, 217 P.3d 1048 .
{¶9} Defendant's argument regarding sufficiency of the evidence is that at best the record demonstrates the discharge of his firearm was reckless and not purposeful, which would negate the intent requirement for battery. The State answers that Defendant overlooks additional facts from which the jury could have determined Defendant intended to shoot his weapon at the officers' location in the restaurant. More specifically, the State asserts that Defendant's saliva found on one of the officer's vehicles suggests Defendant's hostility toward the officers to a degree that, coupled with the fact that the bullet struck a window near where the officers and civilian were seated, circumstantially demonstrates Defendant's intent. As well, a quantity of soda was splashed onto the police vehicle while it was parked outside the restaurant. Defendant testified that he had previously, unsuccessfully, applied to work at the Roswell Police Department. Defendant testified that he was proficient with firearms, calling into question the accidental discharge of his personal weapon twice in different directions. These facts presented to the jury can be viewed to demonstrate a collective intent to harm the officers as well as that it was unlikely, as the jury determined, that the gun discharged accidentally-recklessly or otherwise- while pointed at police officers, and then again in the opposite direction, outwardly shattering the front and back windows of Defendant's truck. We will not reweigh evidence when the jury has already been presented with two hypotheses and identified through the verdict which is the more reasonable of the two. See State v. Montoya, 2005-NMCA-078, ¶ 3, 137 N.M. 713, 114 P.3d 393. The other elements of the jury instructions were satisfied as Defendant testified that the firearm discharged in his hand, and Defendant would have known the officers were acting as peace officers in the discharge of their duties because they were wearing their uniforms and had conspicuously parked their marked patrol vehicles in the parking lot. We therefore hold that sufficient evidence supported a finding of Defendant's requisite mens rea for this conviction.
{¶10} Defendant argues that the district court erred at sentencing by denying him presentence confinement credit for the period of time that he was required to wear a GPS monitoring device prior to conviction. Defendant contends that the imposition of GPS location monitoring-in conjunction with a curfew between the hours of 8:00 p.m. and 6:00 a.m. and a travel restriction limited to Chaves County-deprived him of his freedom of movement such that he should be awarded presentence confinement credit. The State argues that Defendant's GPS location monitoring did not establish a restrictive condition "approaching those experienced by people who are incarcerated," State v Figueroa, 2020-NMCA-007, ¶ 30, 457 P.3d 983 (emphasis omitted), as Defendant was only confined to Chaves County during the day and to his home during conventional curfew hours. Indeed, the district court later issued a stipulated order modifying Defendant's conditions of release, which permitted him to be anywhere within the state for work purposes outside of curfew hours. "Because we must...
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