State v. Cardoza

• Decision Date: 05 December 2019
• Docket Number: No. A-1-CA-36100,A-1-CA-36100
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. JORGE L. CARDOZA, JR., Defendant-Appellant.
• Court: Court of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee, v. JORGE L. CARDOZA, JR., Defendant-Appellant.

No. A-1-CA-36100

COURT OF APPEALS OF THE STATE OF NEW MEXICO

December 5, 2019

This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.

APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY

Jennifer E. Delaney, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

John J. Woykovsky, Assistant Attorney General

Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Will O'Connell, Assistant Appellate Defender

Santa Fe, NM

for Appellant

MEMORANDUM OPINION

IVES, Judge.

{1} After a jury trial, Defendant Jorge L. Cardoza, Jr., was convicted of one count of kidnapping in violation of NMSA 1978, Section 30-4-1 (2003); one count of conspiracy to commit kidnapping in violation of Section 30-4-1 and NMSA 1978, Section 30-28-2 (1979); one count of attempted first degree murder in violation of NMSA 1978, Sections 30-2-1(A)(2) (1994) and 30-28-1 (1963); three counts of aggravated battery in violation of NMSA 1978, Section 30-3-5(A), and (C) (1969); one count of child abuse in violation of NMSA 1978, Section 30-6-1(D) (2009); and one count of aggravated fleeing from a law enforcement officer in violation of NMSA 1978, Section 30-22-1.1 (2003). Defendant appeals, arguing: (1) under principles of double jeopardy, that his conviction for attempt to murder Arielle Voorhies merges with his conviction for aggravated battery of Voorhies and that his conviction for aggravated battery of Kayla Burkhardt merges with his conviction of child abuse against Burkhardt; (2) that the evidence is insufficient to support his child abuse conviction; (3) that the district court abused its discretion by admitting recordings of calls between two of the victims and a 911 operator; and (4) that his sentence violates the Eighth Amendment.

{2} We agree that allowing Defendant's convictions for attempted murder and aggravated battery of Voorhies to stand would violate Defendant's right to be free from double jeopardy. We reject Defendant's remaining arguments. Accordingly, we (1) remand to the district court with instructions to vacate one of Defendant's aggravated battery convictions and the sentence for that conviction and (2) affirm in all other respects.¹

DISCUSSION

I. Double Jeopardy

A. Standard of Review and General Principles of Double Jeopardy

{3} We review double jeopardy claims de novo, State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747, except "where factual issues are intertwined with the double jeopardy analysis," in which case "we review the trial court's fact determinations under a deferential substantial evidence standard of review[,]" State v. Rodriguez, 2006-NMSC-018, ¶ 3, 139 N.M. 450, 134 P.3d 737.

{4} The double jeopardy clause "protects defendants from receiving multiple punishments for the same offense." State v. Ramirez, 2018-NMSC-003, ¶ 38, 409 P.3d 902 (internal quotation marks and citation omitted); see U.S. Const. amend. V; N.M. Const. art. II, § 15. Defendant's argument, based on a double-description theory, is that "a single act result[ed] in multiple charges under different criminal statutes[.]" State v. Bernal, 2006-NMSC-050, ¶ 7, 140 N.M. 644, 146 P.3d 289. In analyzing such challenges, we ask: (1) whether the conduct is unitary, and, if so, (2) whether the Legislature intended to punish the offenses separately. Swafford v. State, 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223. "Only if the first part of the test is answered in the affirmative, and the second in the negative, will the double jeopardy clause prohibit multiple punishment in the same trial." Id.

1. Unitary Conduct

{5} "Conduct is unitary when not sufficiently separated by time or place, and the object and result or quality and nature of the acts cannot be distinguished." State v. Silvas, 2015-NMSC-006, ¶ 10, 343 P.3d 616. The resolution of the unitary-conduct question "depends to a large degree on the elements of the charged offenses and the facts presented at trial." State v. Franco, 2005-NMSC-013, ¶ 7, 137 N.M. 447, 112 P.3d 1104 (internal quotation marks and citation omitted). "[S]eparate punishments may be imposed if the offenses are separated by sufficient indicia of distinctness." Id. (internal quotation marks and citation omitted). In making this determination, "we consider such factors as whether acts were close in time and space, their similarity, the sequence in which they occurred, whether other events intervened, and the defendant's goals for and mental state during each act." Id. "The proper analytical framework is whether the facts presented at trial establish that the jury reasonably could have inferred independent factual bases for the charged offenses." Id. (internal quotation marks and citation omitted).

2. Legislative Intent

{6} "The sole limitation on multiple punishments is legislative intent[.]" Franco, 2005-NMSC-013, ¶ 12 (internal quotation marks and citation omitted). "When, as here, the statutes themselves do not expressly provide for multiple punishments, we begin by applying the rule of statutory construction from Blockburger v. United States, 284 U.S. 299 . . . (1932), to determine whether each provision requires proof of a fact that the other does not." State v. Branch, 2018-NMCA-031, ¶ 24, 417 P.3d 1141. If all elements of one statute are "subsumed within the other, then the analysis ends and the statutes are considered the same for double jeopardy purposes." Silvas, 2015-NMSC-006, ¶ 12. When dealing with statutes that are "vague and unspecific" or "written with many alternatives," we apply a modified Blockburger analysis. State v. Gutierrez, 2011-NMSC-024, ¶ 59, 150 N.M. 232, 258 P.3d 1024 (internal quotation marks and citation omitted). Under this analysis, "we no longer apply a strict elements test in the abstract; rather, we look to the state's trial theory to identify the specific criminal cause of action for which the defendant was convicted, filling in the case-specific meaning of generic terms in the statute when necessary." Branch, 2018-NMCA-031, ¶ 25.

B. Attempted Murder and Aggravated Battery of Voorhies

{7} Defendant argues that principles of double jeopardy preclude the State from convicting him of both attempted murder and aggravated battery with a deadly weapon with respect to Voorhies. We agree.

1. Unitary Conduct

{8} Defendant argues that the stabbing of Voorhies was the basis for both the attempted first degree murder charge and the aggravated battery with a deadly weapon charge, and that the two charges were therefore based on unitary conduct. Defendant is correct.

{9} To compare the "elements of the charged offenses," Franco, 2005-NMSC-013, ¶ 7 (internal quotation marks and citation omitted), we look to the jury instructions. The district court instructed the jury that to find Defendant of aggravated battery with a deadly weapon, it must find, among other things, that Defendant "touched or applied force to Arielle Voorhies by stabbing her with a deadly weapon[,]" and that Defendant did so "us[ing] a knife." The court instructed the jury that to find Defendant guilty of attempted first degree murder, it must find, among other things, that Defendant "began to do an act which constituted a substantial part" of the murder "but failed to commit" the murder. Because the attempted murder instruction uses open-ended language to describe the actus reus, we cannot determine from the jury instructions alone whether the stabbing or some other act was the basis for the attempted murder charge.

{10} To make this determination, we look to the State's closing arguments. See, e.g., Silvas, 2015-NMSC-006, ¶¶ 10, 19 (considering the state's closing arguments in determining whether the defendant's conduct was unitary). Our review of the record confirms that during closing argument the State invited the jury to find Defendant guilty of both attempted murder and aggravated battery based on the same act: the stabbing of Voorhies. The State argued Defendant's use of "a very big knife" to stab Voorhies was a "substantial part of . . . murder." Accordingly, the jury could have convicted Defendant of both attempted murder and aggravated battery based on unitary conduct.

{11} The State contends that its closing argument referred to other acts, in addition to the stabbing, that could have constituted "a substantial part of . . . [m]urder" under the jury instruction. The prosecutor did argue that Defendant's planning and preparation, which included bringing the knife and other items to the scene of the crime, also satisfied the "substantial part of . . . murder" element. However, the mere possibility that the jury based its verdicts on the planning and preparation, rather than the stabbing, is not dispositive in our unitary conduct inquiry. Because we are unable to determine from the record whether the jury found that Defendant committed the attempted murder by preparing for the attack or by stabbing Voorhies, we must conclude that the verdicts were based on unitary conduct. See State v. Montoya, 2011-NMCA-074, ¶ 39, 150 N.M. 415, 259 P.3d 820 (concluding that convictions for kidnapping and criminal sexual penetration violated double jeopardy because it was unclear from the record whether the force the defendant used for the kidnapping was the same as the force he used for the criminal sexual penetration).

2. Legislative Intent

{12} The remaining question is whether the Legislature intended to impose multiple punishments for such conduct. Our Supreme Court has concluded that "attempted murder is a generic, multipurpose statute that is vague and unspecific." Swick, 2012-NMSC-018, ¶ 25 (internal quotation marks omitted). Accordingly, we apply a modified version of the Blockburger analysis...