State v. Gonzales

• Decision Date: 02 May 2019
• Docket Number: No. A-1-CA-35208,A-1-CA-35208
• Citation: 444 P.3d 1064
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. David GONZALES, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

444 P.3d 1064

STATE of New Mexico, Plaintiff-Appellee,

v.David GONZALES, Defendant-Appellant.

No. A-1-CA-35208

Court of Appeals of New Mexico.

Filing Date: May 2, 2019

Certiorari Denied, July 1, 2019, S-1-SC-37707

Released for Publication July 23, 2019

Hector H. Balderas, Attorney General, Maha Khoury, Assistant Attorney General, Santa Fe, NM, for Appellee

Bennett J. Baur, Chief Public Defender, C. David Henderson, Appellate Defender, Santa Fe, NM, for Appellant

ATTREP, Judge.

{1} Defendant David Gonzales appeals his convictions for racing on highways ( NMSA 1978, § 66-8-115 (1978) ), aggravated fleeing a law enforcement officer ( NMSA 1978, § 30-22-1.1 (2003) ), and careless driving ( NMSA 1978, § 66-8-114 (1978) ). Defendant argues that: (1) there is insufficient evidence to sustain his conviction for racing on highways and (2) his convictions for aggravated fleeing and careless driving violate double jeopardy. We agree with Defendant’s double jeopardy argument and, accordingly, remand to the district court to vacate Defendant’s conviction for careless driving. We otherwise affirm.

BACKGROUND

{2} At trial, Officer Joshua Herrera of the Las Cruces Police Department testified to the events giving rise to Defendant’s convictions. While on duty in his marked patrol car, Officer Herrera was stopped at a red light behind two pickup trucks. One truck was directly in front of him and the other truck was in the right-hand lane. When the light turned green, Officer Herrera observed the driver of the truck to his right (later identified as Defendant) "rev[ ] up [his] engine and start[ ] peeling out." Defendant’s truck "sat there while the tires were squealing," creating blue smoke. Defendant then "darted into the intersection once the tires were able to gain grip." Defendant’s truck "lunged forward so fast that it left a gap" between Defendant and the rest of traffic, which enabled Officer Herrera to pull into Defendant’s lane.

{3} After Officer Herrera engaged his emergency lights, Defendant pulled into a bank parking lot. Officer Herrera pulled in behind Defendant, left his emergency lights on, and got out of his patrol car. As the officer approached, the truck began "creeping forward" as if Defendant had left it in drive and taken his foot off the brake. Officer Herrera ordered Defendant to stop, and Defendant eventually brought his vehicle to a stop. When asked what happened at the intersection, Officer Herrera testified that Defendant said that "the guy beside him had pissed him off," referring to the truck to Defendant’s left at the intersection. Defendant disputed this statement at trial and testified that he told Officer Herrera that he "popped the clutch in the intersection." After Officer Herrera requested Defendant’s driver’s license, insurance, and registration, Defendant "stepped on the gas" and took off from the parking lot. According to the officer, he had to "jump back ... to get away from [Defendant’s] vehicle." Defendant "sped down the parking lot," turned out onto the street, and passed "through civilian traffic at a high rate of speed."

{4} Officer Herrera ran back to his patrol car, advised dispatch that Defendant was fleeing, and began to pursue Defendant with his lights and sirens on. There was substantial traffic on the road at the time, and the officer observed Defendant make a right-hand turn onto Roadrunner Lane, causing a white car to maneuver out of the way. Officer Herrera pursued Defendant onto Roadrunner Lane, where Defendant continued to drive fast behind other vehicles, forcing these vehicles to attempt to move to the right. Due to traffic conditions, Officer Herrera’s supervisor quickly ordered him to stop pursuing Defendant.

{5} As the officer began to slow down and turn off his lights and sirens, he saw Defendant attempt to make a right-hand turn into a driveway. Because he was driving too fast, however, Defendant was unable to complete the turn successfully. His truck flew into the air and landed upside down in a ditch full of water. Officer Herrera then re-engaged his emergency equipment and proceeded to the crash, finding Defendant’s truck partially submerged in water with Defendant trapped inside. With the help of other officers, Officer Herrera pulled Defendant to safety. Defendant testified that the entire chase took maybe three minutes and spanned a distance of, at most, a half of a mile. The parties stipulated at trial that, shortly after the incident, Defendant’s blood alcohol content was above the legal limit.

{6} Defendant was charged with aggravated assault upon a peace officer, aggravated fleeing a law enforcement officer, driving while under the influence, careless driving, racing on highways, and various other Motor Vehicle Code offenses. Prior to trial, Defendant pleaded guilty to two Motor Vehicle Code offenses. The jury acquitted Defendant of aggravated assault upon a peace officer and convicted him of all remaining charges. Defendant appeals his convictions for racing on highways, aggravated fleeing a law enforcement officer, and careless driving.

DISCUSSION

I. Sufficient Evidence Supports Defendant’s Conviction for Racing on Highways

{7} Defendant first contends that the evidence at trial was insufficient to support his conviction for racing on highways. To the extent Defendant’s sufficiency argument turns on an interpretation of the racing on highways statute, "that presents a question of law which is reviewed de novo on appeal." State v. Chavez , 2009-NMSC-035, ¶ 10, 146 N.M. 434, 211 P.3d 891. As is stated often, "[i]n interpreting a statute, our primary objective is to give effect to the Legislature’s intent." State v. Trujillo , 2009-NMSC-012, ¶ 11, 146 N.M. 14, 206 P.3d 125. "In discerning legislative intent, we look first to the language used and the plain meaning of that language." Id. "[W]hen a statute contains clear and unambiguous language, we will heed that language and refrain from further statutory interpretation." Id. "After reviewing the statutory standard, we apply a substantial evidence standard to review the sufficiency of the evidence at trial." Chavez , 2009-NMSC-035, ¶ 11, 146 N.M. 434, 211 P.3d 891.

{8} The racing on highways statute provides, in relevant part, that:

no person shall drive a vehicle on a highway in any race, speed competition or contest, drag race or acceleration contest, test of physical endurance, exhibition of speed or acceleration or for the purpose of making a speed record, whether or not the speed is in excess of the maximum speed prescribed by law, and no person shall in any manner participate in any such race, drag race, competition, contest, test or exhibition.

Section 66-8-115(A). The jury was instructed consistent with this statutory language. Both at trial and on appeal, the State contends that Defendant’s conduct at the stop light prior to the traffic stop violated the portion of Section 66-8-115 criminalizing driving in an "exhibition of speed or acceleration." Id. The State does not contend that Defendant engaged in any race, competition, contest, or test. Defendant argues that in order to be convicted under Section 66-8-115 for exhibition of speed or acceleration, two elements must be present—first, there must be a competition or agreement with another driver, and second, any exhibition must include a display of driving skill or prowess to an audience.

{9} In service of his primary contention that a person can violate Section 66-8-115 only by making an agreement with another or by engaging in a competition, Defendant relies on a non-precedential memorandum opinion from this Court. In State v. Dominguez , this Court stated in passing that, "[a]s for exhibition of speed, [ Section 66-8-115 ] applies to drag racing and speed competitions." No. 30,189, memo op., 2010 WL 4162159, at *3 (N.M. Ct. App. May 4, 2010) (non-precedential). Dominguez did not, however, address the elements necessary for conviction under Section 66-8-115, nor did it address conduct similar to that at issue in this appeal. Id. To the extent Dominguez can be read to require that a race or competition with another is a necessary element of every violation of Section 66-8-115, that conclusion is contrary to the clear and unambiguous language in the statute, as discussed below, and is in tension with an earlier Supreme Court opinion in which the Court imposed no such requirement. See State v. Luna , 1980-NMSC-009, ¶¶ 5, 10, 93 N.M. 773, 606 P.2d 183 (construing municipal ordinance identical to Section 66-8-115 and concluding that a traffic stop was "reasonable and valid" where the defendant "pull[ed] away from a street intersection at a high rate of acceleration, causing the rear tires of his car to spin on the pavement"), abrogated on other grounds by Horton v. California , 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). Consequently, we do not find Dominguez persuasive and we decline to follow its rationale. See Rule 12-405(A) NMRA ("Non-precedential dispositions may be cited for any persuasive value[.]").

{10} Moreover, Defendant’s construction of Section 66-8-115 is not borne out by the statutory language. The statute sets out a list of prohibited driving activities—in particular, "no person shall drive a vehicle on a highway in any race, speed competition or contest, drag race or acceleration contest, test of physical endurance, exhibition of speed or acceleration or for the purpose of making a speed record ... and no person shall in any manner participate in any such race, drag race, competition, contest, test or exhibition." Section 66-8-115(A) (emphases added). The use of the disjunctive "or" makes plain that the statute may be violated in a number of ways—by engaging in a race, drag race, competition, contest, test, or exhibition—at least two of which (a test or an exhibition) require no agreement or competition among drivers. Were we to interpret "exhibitions of speed or acceleration" to require some element of competition or agreement, as...