State v. Bernal

Decision Date17 October 2006
Docket NumberNo. 29,183.,29,183.
Citation2006 NMSC 050,146 P.3d 289
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Mario BERNAL, Defendant-Appellant.
CourtNew Mexico Supreme Court

Kennedy & Han, P.C., Paul J. Kennedy, Albuquerque, NM, Caren Ilene Friedman, Santa Fe, NM, for Appellant.

Patricia A. Madrid, Attorney General, Steven S. Suttle, Assistant Attorney General, Santa Fe, NM, for Appellee.


BOSSON, Chief Justice.

{1} In this direct appeal from Defendant's conviction of felony murder, attempted armed robbery, and several other crimes, Defendant presents certain double jeopardy arguments, challenging his attempted armed robbery conviction as being the predicate for his felony murder conviction. In the course of addressing those arguments, we decide, for the first time, whether the single-larceny doctrine applies to the crime of attempted armed robbery. Addressing that issue and others regarding double jeopardy, as well as Defendant's claim of ineffective assistance of counsel, we affirm Defendant's convictions.


{2} In the early morning of September 3, 2000, two masked gunmen broke into Felipe Giron's house in Belen, intent on robbing him. The gunmen had apparently learned that Giron had nearly $10,000 in cash at his home, purportedly the proceeds of illegal drug sales. They entered Giron's bedroom where he and Giron's live-in girlfriend, Carey Romero, were sleeping. Almost immediately, one of the men shot Giron in the head with a rifle, killing him.

{3} The men then pointed their guns at Romero and demanded she produce the money. Initially, Romero huddled under the covers of the bed for safety. The gunmen forced her out of bed, poked her with their weapons, and demanded that she find the money. At gunpoint, Romero was forced to look through the drawers in the bedroom, but did not find any money. She then turned on the lights in the house and proceeded through the living room to the dining room. During the entire time, one of the gunmen followed her closely with a gun. The gunmen continually yelled at her to hurry and threatened to kill her. She looked through a desk in the dining room, and then started searching a closet. She could not reach the top shelf of the closet, so the gunmen both attempted to reach the shelf. This distracted the gunmen enough to allow Romero to escape through the front door of the house and flee to a neighbor's house, where she called police. The two men left the house without finding any money.

{4} Romero was not able to identify the gunmen and no immediate arrests were made. Over two years later, Eric Jaramillo, a former gang member, was arrested on an unrelated charge of armed robbery. He told police that he knew who killed Giron. In exchange for leniency on his charge, Jaramillo testified that Defendant had confessed to the attempted robbery and murder of Giron. Based upon Jaramillo's testimony, Defendant was indicted on charges of first-degree murder on the alternative theories of willful and deliberate murder, NMSA 1978, § 30-2-1(A)(1) (1994), or felony murder, Section 30-2-1(A)(2), two counts of attempted armed robbery, NMSA 1978, § 30-16-2 (1973), and various other crimes.1 At trial, both the prosecution and defense acknowledged that Jaramillo's testimony was the only direct evidence linking Defendant to the crime.

{5} A jury found Defendant guilty of felony murder, both counts of attempted armed robbery, and other charges. Prior to sentencing, the trial court dismissed Defendant's conviction for the attempted armed robbery of Giron because, according to the court, that count represented the predicate felony for the felony murder conviction. The court sentenced Defendant for the attempted armed robbery of Romero. Defendant received a sentence of life imprisonment plus twenty-nine years for the murder, the attempted robbery of Romero, and the other remaining convictions. He now appeals directly to this Court from the trial court's judgment and sentence. See Rule 12-102(A)(1) NMRA (direct appeal to Supreme Court of convictions in which sentence of life imprisonment imposed).

Double Jeopardy

{6} Defendant appeals on double jeopardy grounds asking us to reverse his conviction for the attempted armed robbery of Romero. A double jeopardy claim is a question of law that we review de novo. State v. Andazola, 2003-NMCA-146, ¶ 14, 134 N.M. 710, 82 P.3d 77.

{7} The Double Jeopardy Clause of the Fifth Amendment protects citizens against multiple punishments for the same offense. Swafford v. State, 112 N.M. 3, 7, 810 P.2d 1223, 1227 (1991). Multiple punishment problems can arise from both "double-description" claims, in which a single act results in multiple charges under different criminal statutes, and "unit-of-prosecution" claims, in which an individual is convicted of multiple violations of the same criminal statute. Id. at 8, 810 P.2d at 1228.

{8} Defendant advances two arguments. First, he claims that his remaining conviction for the attempted armed robbery of Romero was a predicate felony for the felony murder conviction and, like the attempted robbery of Giron, was unitary with the felony murder and must be dismissed. Second, Defendant claims he committed only one continuous attempted armed robbery which involved two victims, with only one object-Giron's money. There being only one crime, Defendant argues that since the conviction for attempted armed robbery of Giron was dismissed, the conviction for the attempted armed robbery of Romero must be dismissed as well.

{9} For his first argument, Defendant states a double-description claim because he claims that he was wrongfully convicted under two different statutes for unitary conduct: attempted armed robbery and felony murder. For double-description claims, this Court follows the two-part test identified in Swafford, 112 N.M. at 13-14, 810 P.2d at 1233-34. First, we examine whether the conduct was unitary, meaning whether the same criminal conduct is the basis for both charges. Id. If the conduct is not unitary, then the inquiry is at an end and there is no double jeopardy violation. Id. at 13, 810 P.2d at 1233.

{10} Felony murder has its own particular double jeopardy analysis. If the predicate felony and felony murder are unitary, then the predicate felony must be dismissed because it is subsumed within the elements of felony murder. State v. Contreras, 120 N.M. 486, 491, 903 P.2d 228, 233 (1995); see § 30-2-1(A)(2) ("Murder in the first degree is the killing of one human being ... in the commission of or attempt to commit any felony...."). Since Defendant claims a double jeopardy violation for the predicate felony of attempted armed robbery and felony murder, we examine only whether the conduct underlying these two convictions was unitary.

{11} The facts of this case indicate that, unlike the attempted robbery of Giron, the attempted robbery of Romero was not unitary with Giron's murder. Most significantly, the murder of Giron was complete before the would-be robbers turned their attention to Romero and began to use force and threatened force against her. See State v. DeGraff, 2006-NMSC-011, ¶ 27, 139 N.M. 211, 131 P.3d 61 ("In our consideration of whether conduct is unitary, we have looked for an identifiable point at which one of the charged crimes had been completed and the other not yet committed."). The facts of record indicate that the murder of Giron took place almost immediately after the break-in occurred. Once Giron was shot, the felony murder was complete. Only after did the intruders turn to Romero and threaten her in an effort to find the money. Because the attempted robbery of Romero began after the murder of Giron was complete, the acts were not unitary, and Defendant's double-description claim must fail under the traditional Swafford analysis for double-description claims.

{12} We turn now to Defendant's second argument: that only one attempted robbery occurred, involving two victims. Since the trial court dismissed one attempt, Defendant argues no conduct remains to sustain a second attempted robbery count. Defendant asserts that only one continuing attempted robbery took place because the assailants moved from Giron to Romero with the single intent of stealing Giron's money. If only one attempted robbery occurred, then there was only one predicate felony, which, as we have seen, must be dismissed as the predicate to the felony murder. However, if two attempted robberies occurred, one of Giron and one of Romero, then the conviction for the attempted robbery of Romero can stand because that robbery was not unitary with the murder of Giron.

{13} To determine whether two attempted robberies occurred, we must undertake a unit-of-prosecution analysis. For unit-of-prosecution challenges, the only basis for dismissal is proof that a suspect is charged with more counts of the same statutory crime than is statutorily authorized. Herron v. State, 111 N.M. 357, 359, 805 P.2d 624, 626 (1991). The inquiry is to determine whether the legislature intended multiple punishments for one continuing act. Id.

{14} The unit-of-prosecution analysis is done in two steps. First, we review the statutory language for guidance on the unit of prosecution. State v. Barr, 1999-NMCA-081, ¶¶ 13-14, 127 N.M. 504, 984 P.2d 185. If the statutory language spells out the unit of prosecution, then we follow the language, and the unit-of-prosecution inquiry is complete. Id. ¶ 14. If the language is not clear, then we move to the second step, in which we determine whether a defendant's acts are separated by sufficient "indicia of distinctness" to justify multiple punishments under the same statute. Id. ¶ 15. In examining the indicia of distinctness, courts may inquire as to the interests protected by the criminal statute, since the ultimate goal is to determine whether the legislature intended multiple punishments. See State v. Alvarez-Lopez, 2004-NMSC-030, ¶ 42, 136 N.M....

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