State v. Gonzales
| Decision Date | 06 January 1992 |
| Docket Number | No. 18429,18429 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Pedro GONZALES, Sr., Defendant-Appellant. |
| Court | New Mexico Supreme Court |
Defendant-appellant Pedro Gonzales appeals from his conviction of and sentencing on charges of first degree murder, shooting into an occupied motor vehicle, and felon in possession of a firearm. We affirm in part and reverse in part.
The incidents culminating in the death of Mike Sandoval stem from a history of animosity between Ben Rivera, and defendant and his family. Sandoval was a passenger in a truck driven by Rivera and was killed by shots fired into the truck while driving past the Gonzales residence. The fatal wound was caused by a bullet fired from a rifle belonging to Yolanda Gonzales, defendant's wife. Also charged in the shooting was defendant's son, Martin Gonzales.
Defendant raises the following issues on appeal: (1) Whether it violates double jeopardy principles (a) to enter judgment and sentence on the conviction for shooting into a motor vehicle, and (b) to enhance the sentence for felon in possession of a firearm based on the habitual offender statute; (2) whether the court erred when it admitted preliminary hearing testimony; (3) whether prosecutorial misconduct denied defendant a fair trial; and (4) whether defendant's right to effective assistance of counsel was violated.
Defendant raises two double jeopardy arguments: (1) Whether his convictions and sentences for both shooting into an occupied motor vehicle under NMSA 1978, Section 30-3-8 (Cum.Supp.1991), and first degree murder under NMSA 1978, Section 30-2-1 (Repl.Pamp.1984), violate double jeopardy principles; and (2) whether the use of the same prior felony to prove both the crime of felon in possession of a firearm and his status as an habitual offender violates double jeopardy. We discuss these contentions separately.
Defendant contends that his convictions for both shooting into an occupied vehicle and first degree murder is a violation of double jeopardy principles. His initial argument was based on our decision in State v. Pierce, 110 N.M. 76, 792 P.2d 408 (1990), in which we vacated a conviction on lesser included offenses when the defendant's actions constituted one criminal act. In their initial briefs, defendant and the State agreed that defendant's actions constituted one criminal act and that, under Pierce, the conviction for the lesser offense--shooting into an occupied vehicle--merged into the greater offense and should be vacated. However, we recently clarified the law surrounding double jeopardy in Swafford v. State, 112 N.M. 3, 810 P.2d 1223 (1991). In response to Swafford, we requested additional briefing on the double jeopardy question. The State now contends that the two offenses do not merge and that defendant may be punished for each offense.
At issue in this case is that category of double jeopardy that "protects against multiple punishments for the same offense." Id. at 7, 810 P.2d at 1227 (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969)); see also Pierce, 110 N.M. at 84-85, 792 P.2d at 416-17. The question of whether convictions under several statutes constitute the same offense for double jeopardy purposes is a matter of determining the legislative intent. Swafford, 112 N.M. at 8, 810 P.2d at 1228 (); see also Herron v. State, 111 N.M. 357, 359, 805 P.2d 624, 626 (1991); Pierce, 110 N.M. at 85, 792 P.2d at 417. Where a defendant "is convicted of one or more offenses which have merged into the greater offense he may be punished for only one." Pierce, 110 N.M. at 86-87, 792 P.2d at 418-19. Concurrent sentencing does not render multiple convictions for the same offense harmless. Pierce, 110 N.M. at 87, 792 P.2d at 419.
Under Swafford, the test to determine legislative intent to punish is: (1) "whether the conduct underlying the offenses is unitary, i.e., whether the same conduct violates both statutes," and (2) if so, did the legislature "intend[ ] to create separately punishable offenses." 112 N.M. at 13, 810 P.2d at 1233. The double jeopardy clause prohibits multiple punishment only if the first part of the test is answered affirmatively and the second part of the test is answered negatively. Id.
In the instant case, we find that defendant's conduct leading to his multiple convictions was unitary. As we explained in Swafford,
[t]he conduct question depends to a large degree on the elements of the charged offense and the facts presented at trial. * * *
If two events are sufficiently separated by either time or space * * *, then it is a fairly simple task to distinguish the acts. * * * [T]he task is merely to determine whether the conduct for which there are multiple charges is discrete (unitary) or distinguishable.
Id. at 13-14, 810 P.2d at 1233-34. In defendant's case, the facts presented at trial established that defendant fired multiple gun shots into Rivera's truck in rapid succession. Because the shots were not "separated by either time or space," we agree with the trial court that defendant committed one criminal act.
Because defendant's conduct was unitary, we must examine whether the legislature intended to create two separately punishable offenses. Under Swafford, our first inquiry is whether the legislature has expressly provided for multiple punishment for unitary conduct. Id. at 14, 810 P.2d at 1234. In this case, the statutes under which defendant was convicted do not expressly provide for multiple punishment for unitary conduct. Compare NMSA 1978, Sec. 30-2-1 (Repl.Pamp.1984), with NMSA 1978, Sec. 30-3-8 (Cum.Supp.1991).
Where, as here, the legislature did not expressly provide for multiple punishments for unitary conduct, we must determine legislative intent by applying the test enunciated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). Swafford, 112 N.M. at 14, 810 P.2d at 1234. The Blockburger test requires an analysis of the elements of each statute to determine "whether each provision requires proof of a fact the other does not." Blockburger, 284 U.S. at 304, 52 S.Ct. at 182. Clearly, each statute in question in this appeal requires proof of an element that the other statute does not require. The murder statute, NMSA 1978, Section 30-2-1, requires proof of the unlawful killing of a human being which need not be accomplished by shooting at an occupied motor vehicle. The shooting at an occupied motor vehicle statute, NMSA 1978, Section 31-3-9, requires proof of discharging a firearm at an occupied vehicle but does not require the killing of a human being. Thus, the greater offense--murder--does not subsume the lesser offense--shooting into an occupied vehicle--because each requires proof of an element absent in the other. See Swafford, 112 N.M. at 14, 810 P.2d at 1234.
Because each statute requires proof of an element absent in the other, we presume that the legislature intended to punish each offense separately. Id. at 14, 810 P.2d at 1234. However, this presumption can be rebutted by showing that the legislature had a contrary intent. To determine legislative intent, we look to the "language, history, and subject of the statutes." Id. Legislative intent may be gleaned from the statutory schemes by identifying the particular evil addressed by each statute; determining whether the statutes are usually violated together; comparing the amount of punishment inflicted for a violation of each statute; and examining other relevant factors. Id. at 14-15, 810 P.2d at 1234-35.
In the instant case, an examination of the factors set out in Swafford convinces us that the legislature intended separate punishment for an act that violates both statutes. The murder statute is designed to avoid the unlawful killing of a person. In contrast, the shooting into an occupied vehicle statute is more narrowly designed to protect the public from reckless shooting into a vehicle and the possible property damage and bodily injury that may result. While death may occur as a result of shooting into an occupied vehicle, we must strictly construe the social purpose protected by each statute. Id. Thus, the statutes protect different social interests. In addition, while the statutes in question here may be violated together, they are not necessarily violated together. Further, although the murder statute extracts a greater penalty than the shooting into an occupied vehicle statute, the murder statute does not incorporate the same elements as the shooting into an occupied vehicle statute. Finally, punishment for a violation of either statute is not enhanced for a violation of the other statute. See id. at 15, 810 P.2d at 1235. Therefore, we find that the legislature intended for separate punishment for unitary conduct that violated both statutes. Thus, there is no violation of double jeopardy principles for defendant's punishment under both of the statutes in question here.
Defendant contends that the use of the same prior felony to prove both the crime of felon in possession of a firearm and appellant's status as an habitual offender violates double jeopardy principles. Because the State conceded that this enhancement was improper under State v. Haddenham, 110 N.M. 149, 793 P.2d 279 (Ct.App.1990), we vacate the enhancement provision of defendant's sentence and remand for resentencing. See also State v. Castrillo, 112 N.M. 766, 819 P.2d 1324 (1991).
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