State v. Gonzales

• Court: New Mexico Supreme Court
• Writing for the Court: Vez
• Citation: State v. Gonzales, 172 P.3d 162, 2007 NMSC 59, 143 N.M. 25 (N.M. 2007)
• Decision Date: 31 October 2007
• Docket Number: No. 29,623.,29,623.
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Jacob GONZALES, Defendant-Appellant.

172 P.3d 162

2007 NMSC 059

STATE of New Mexico, Plaintiff-Appellee, v. Jacob GONZALES, Defendant-Appellant.

No. 29,623.

Supreme Court of New Mexico.

October 31, 2007.

Law Offices of Nancy L. Simmons, P.C., Nancy L. Simmons, Albuquerque, NM for Appellant.

Gary King, Attorney General, Andrew S. Montgomery, Assistant Attorney General, Santa Fe, NM, for Appellee.

OPINION

CHÁVEZ, Chief Justice.

{1} Defendant Jacob Gonzales was convicted of first-degree murder, shooting at a motor vehicle resulting in great bodily harm, and tampering with evidence. He raises three arguments on appeal. First, the jury verdict of guilty of murder in the first degree without specifying whether the jury relied on the theory of willful and deliberate murder or felony murder subjected Defendant to double jeopardy when the jury also found him guilty of the predicate felony, shooting at a motor vehicle resulting in great bodily harm. Second, that he was denied effective assistance of counsel because trial counsel neither moved for a continuance to pursue a missing witness nor requested an imperfect self-defense jury instruction. Finally, that the trial court committed reversible error by denying jury instructions on self-defense and defense of habitation. We hold that Defendant was subjected to double jeopardy, and we thus vacate his felony conviction of shooting at a motor vehicle resulting in great bodily harm. We also find that Defendant has not made a prima facie case of ineffective assistance of counsel, but Defendant may pursue habeas corpus proceedings on this issue. Finally, we reject Defendant's argument that the trial court erred in denying self-defense and defense of habitation jury instructions.

I. BACKGROUND

{2} On Thanksgiving Day, Defendant Jacob Gonzales and his brother, Mario Rudolfo, were involved in a violent altercation with family members of Defendant's girlfriend, Sara Montour. Sara and Defendant lived together in a trailer, and they had been arguing throughout Thanksgiving Day. In the midst of the argument, Sara went to her parents' home and told some of her family members about the argument. Sara asked her family for help in retrieving some of her belongings from the trailer. That evening, the Montour family, including Sara's father, Angelo; her mother, Darlene; her brother, Eli; and Eli's girlfriend, Pamela Martinez, drove together to Defendant's trailer to help recover Sara's belongings. When they arrived, Angelo and Eli Montour went inside the trailer, while Darlene and Pamela waited in the family van.

{3} An altercation then took place in the trailer between Angelo, Eli, Defendant, and Defendant's brother, the details of which are disputed. It is clear, however, that Angelo and Defendant's brother were involved in a struggle for a rifle, which discharged inside the trailer. Subsequently, Angelo and Eli left the trailer and returned to the van. As they were driving away from the trailer, several gunshots were fired at the van. Angelo and Eli sustained non-fatal gunshot wounds, and Pamela died from a gunshot wound to the back of her head.

{4} Defendant was charged with first-degree murder of Pamela Martinez based on willful and deliberate murder under NMSA 1978, Section 30-2-1(A)(1) (1994), or, in the alternative, based on felony murder under Section 30-2-1(A)(2). As a predicate to felony murder, Defendant was also charged with shooting at a motor vehicle resulting in great bodily harm to Pamela Martinez under NMSA 1978, Section 30-3-8(B) (1993).¹ The alternative bases for convicting Defendant of first-degree murder were set forth in the jury instructions. The jury returned a general verdict of guilty of first-degree murder, but did not indicate on which theory it relied in convicting Defendant. The trial judge, however, sentenced Defendant to life imprisonment for willful and deliberate murder under Section 30-2-1(A)(1). Defendant was also convicted of and sentenced to nine years' imprisonment for shooting at a motor vehicle resulting in great bodily harm.²

II. DISCUSSION

A. Double Jeopardy

{5} Defendant contends that his right to be free from double jeopardy was violated when the jury returned a general verdict of guilty of first-degree murder and also found him guilty of shooting at a motor vehicle resulting in great bodily harm. Defendant argues that there was insufficient evidence for the jury to find first-degree murder based on willful and deliberate murder, and thus the jury must have relied on felony murder. Accordingly, Defendant maintains that he was subjected to double jeopardy by being convicted of both felony murder and the underlying felony, shooting at a motor vehicle resulting in great bodily harm. The State disagrees, contending that any double jeopardy problem was resolved when the trial judge sentenced Defendant to willful and deliberate first-degree murder. We review Defendant's double jeopardy claim de novo. State v. Bernal, 2006-NMSC-050, ¶ 6, 140 N.M. 644, 146 P.3d 289 (citing State v. Andazola, 2003-NMCA-146, ¶ 14, 134 N.M. 710, 82 P.3d 77).

{6} A jury can return a first-degree murder conviction even if the jurors do not agree on the underlying theory. State v. Salazar, 1997-NMSC-044, ¶ 32, 123 N.M. 778, 945 P.2d 996. In such cases, the jury can return a general verdict on the overall charge of first-degree murder. Id. In this case, the jury returned a general verdict on the overall charge of first-degree murder, and it is not possible to discern whether the verdict was based on willful and deliberate murder or on felony murder. Under Salazar, even though the underlying theory cannot be discerned, the general verdict of guilty of first-degree murder is acceptable. Id. Therefore, the trial court could not sentence Defendant for willful and deliberate murder; the trial court was limited to sentencing Defendant for first-degree murder.

{7} Our responsibility on appeal, when a double jeopardy issue is raised involving a general verdict, is to determine whether any of the alternative theories violates double jeopardy. State v. Foster, 1999-NMSC-007, ¶ 27, 126 N.M. 646, 974 P.2d 140. In Foster, the Court was confronted with a similar situation. The defendant was convicted of felony murder, aggravated kidnaping, and armed robbery. Id. ¶ 1. The jury was instructed on alternative theories, but it returned a general verdict that did not indicate on which theories it relied in convicting the defendant. Id. ¶ 2. The defendant maintained that one of the alternative theories underlying aggravated kidnaping and armed robbery, when combined with his felony murder conviction, subjected him to double jeopardy. Id. ¶¶ 30, 37.

{8} On review, the Court determined that they were required to "reverse a conviction if one of the alternative bases for the conviction provided in the jury instructions is legally inadequate because it violates a defendant's constitutional right to be free from double jeopardy." Id. ¶ 2. The Court reasoned, "`Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law....'" Id. ¶ 28 (quoting State v. Olguin, 118 N.M. 91, 98, 879 P.2d 92, 99 (Ct.App. 1994)) (alteration in original) (citations and quotation marks omitted).

{9} The Court then reviewed the aggravated kidnaping and armed robbery charges under the theories that the defendant claimed subjected him to double jeopardy. After reviewing the aggravated kidnaping charge, the Court determined that there was no double jeopardy problem. Id. ¶ 35. However, after reviewing the armed robbery charge, the Court determined that a double jeopardy problem existed under one of the alternative theories. Id. ¶¶ 37, 40. For purposes of a double jeopardy analysis, the Court presumed that the jury relied on the problematic theory, and thus the Court reversed the conviction for armed robbery. Id. ¶ 40.

{10} In the present case, we must examine whether either of the alternative theories of first-degree murder would subject Defendant to double jeopardy. See id. ¶ 27. If double jeopardy is violated, we must vacate the conviction for the lesser offense. Id. We begin our analysis with the felony murder conviction, which is dispositive of this issue. The double jeopardy clause of the Fifth Amendment to the United States Constitution provides: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb...." U.S. Const. amend. V; see also N.M. Const. art. II, § 15 (providing for double-jeopardy protection). The clause is applicable to the States through the due process clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

{11} Among its protections, the double jeopardy clause protects a defendant against multiple punishments for the same offense. State v. Lynch, 2003-NMSC-020, ¶ 9, 134 N.M. 139, 74 P.3d 73. In cases where the defendant is charged with violation of multiple statutes for the same conduct ("double-description" cases), we must determine whether the legislature intended to authorize multiple punishments for the same offense. State v. Frazier, 2007-NMSC-032, ¶ 18, 142 N.M. 120, 164 P.3d 1. In Frazier, we clarified the law in New Mexico regarding multiple punishments for first-degree felony murder and the predicate felony, holding that "the predicate felony is always subsumed into a felony murder conviction, and no defendant can be convicted of both." Id. ¶ 1. Looking closely at our felony murder statute, we determined that the requirement for felony murder—that the killing happened during the commission of a felony—essentially means that in every felony murder case the conduct underlying both the felony murder and the predicate felony will always be unitary conduct. Id. ¶¶ 22-23. We also recognized that such unitary conduct cannot sustain multiple punishments. Id. ¶ 16 (citing State v. Contreras, 120 N.M. 486, 491, 903 P.2d 228, 233 (1995)). The reasoning is...