State v. Gutierrez, 30,439.

• Decision Date: 13 August 2012
• Docket Number: No. 30,439.,30,439.
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Sonny J. GUTIERREZ, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

286 P.3d 608

STATE of New Mexico, Plaintiff–Appellee,

v.Sonny J. GUTIERREZ, Defendant–Appellant.

No. 30,439.

Court of Appeals of New Mexico.

June 18, 2012.

Certiorari Denied, Aug. 13, 2012, No. 33,717.

Gary K. King, Attorney General, Santa Fe, NM, Francine A. Chavez, Assistant Attorney General, Albuquerque, NM, for Appellee.

Jacqueline L. Cooper, Chief Public Defender, Will O'Connell, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

HANISEE, Judge.

{1} This case is among the flood of “double-description” type double jeopardy challenges this Court reviews each year. And while the legal path in this area is well worn, the facts here are surprisingly novel. Sonny Gutierrez (Defendant), a former employee of the Kentucky Fried Chicken (KFC) restaurant in Alamogordo, robbed nearly ten-thousand dollars from KFC assistant manager Louann Logan during her daily-deposit routine of KFC's proceeds. Ms. Logan, whom Defendant struck in the face while simultaneously relieving her of the money, also happened to be his girlfriend of two months. That unlikely merger of robbery and romance netted Defendant separate convictions based on two distinct statutes: (1) robbery, contrary to NMSA 1978, Section 30–16–2 (1973), and (2) battery against a household member, contrary to NMSA 1978, Section 30–3–15 (2008). On appeal, Defendant argues that because both convictions arose from the same criminal conduct, his double jeopardy rights were violated. Applying our precedent in this area, we hold that Defendant's unique combination of convictions does not offend our notions of double jeopardy. Accordingly, we affirm.

BACKGROUND

{2} The State presented Ms. Logan as a witness at trial. She testified that she had known Defendant for three years, first as an employee at the KFC where she was assistant manager, and most recently as her boyfriend. Several weeks prior to the robbery, however, Defendant resigned his employment with KFC.

{3} On the morning of July 28, 2008, Ms. Logan drove to Defendant's motel room, where he had been living with his three children, in order to transport Defendant to a local fast-food restaurant and purchase breakfast for his children. After driving Defendant to the restaurant, providing money for breakfast, and also lending Defendant her cell phone, Ms. Logan reported for work at KFC.

{4} While on duty, Ms. Logan received several calls from Defendant in which he told her that he wanted to return her cell phone to her at work. Ms. Logan agreed to meet Defendant outside KFC, and while awaiting his arrival she prepared two money bags containing KFC's proceeds for a routine deposit she planned to make at a nearby bank.

{5} When Ms. Logan exited the store with the money bags, Defendant was waiting for her in the passenger seat of a truck parked alongside Ms. Logan's vehicle. Ms. Logan talked with Defendant briefly as she approached and then entered the driver's side of her vehicle. While her door remained open, Defendant exited the truck and walked toward Ms. Logan's vehicle under the guise of delivering her cell phone. Instead, he suddenly grabbed the two money bags and struck Ms. Logan with his fist on the side of her face. Defendant immediately re-entered the truck with the money, instructed the driver to “go,” and fled the scene.

{6} Police later arrested Defendant, and he was charged with both robbery and aggravated battery against a household member. At the subsequent trial, however, the jury was instructed only as to robbery and the lesser charge of simple battery against a household member. Defendant was convicted of both, and now brings this appeal on double jeopardy grounds, pursuant to both the United States and New Mexico Constitutions. He argues that he was impermissibly punished twice for the same underlying criminal conduct. We address the merits of Defendant's appeal below.

DISCUSSION

{7} The double jeopardy clause established within the Fifth Amendment of the United States Constitution, and echoed within Article II, Section 15 of the New Mexico Constitution, states that “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. One of the functions of that clause is to protect “against multiple punishments for the same offense.” State v. Gutierrez, 2011–NMSC–024, ¶ 49, 150 N.M. 232, 258 P.3d 1024 (internal quotation marks and citation omitted).

{8} As with all constitutional questions of law, we review double jeopardy claims de novo. State v. Quick, 2009–NMSC–015, ¶ 6, 146 N.M. 80, 206 P.3d 985. And because Defendant's claim is a double-description type double jeopardy claim, which involves convictions of multiple statutes based on the same criminal conduct, we apply the analysis set out in Swafford v. State, 112 N.M. 3, 8–9, 810 P.2d 1223, 1228–29 (1991). The Swafford analysis provides a two-part inquiry for double-description claims: first analyzing “whether the conduct underlying the offenses is unitary, i.e., whether the same conduct violates both statutes,” and, if so, proceeding to analyze “whether the legislature intended to create separately punishable offenses.” 112 N.M. at 13, 810 P.2d at 1233.

{9} The parties agree that the criminal activity herein amounts to unitary conduct under the first prong. A brief review of the facts offered at trial supports that consensus. Defendant struck Ms. Logan in the face in nearly the same motion as he relieved her of KFC's money bags. The blow and the robbery “were not separated by any significant time or space; they were part of one continuous and compressed chain of events.” State v. Fuentes, 119 N.M. 104, 105, 888 P.2d 986, 987 (Ct.App.1994). Accordingly, we move to an analysis of the second prong of Swafford—legislative intent. State v. Franco, 2005–NMSC–013, ¶ 11, 137 N.M. 447, 112 P.3d 1104 (noting that when the conduct is unitary, “we proceed to the second part of the Swafford analysis to determine whether the Legislature intended to allow multiple punishments based on the facts and circumstances of this case”).

{10} “[T]he sole limitation on multiple punishments is legislative intent, and, unless the Legislature clearly authorized multiple punishments, we apply the test articulated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to determine that intent.” Franco, 2005–NMSC–013, ¶ 12, 137 N.M. 447, 112 P.3d 1104 (alteration in original) (internal quotation marks and citation omitted). Here, the State does not contend that the Legislature has expressly provided for multiple punishments. Indeed, neither Section 30–16–2 nor Section 30–3–15 contains any language that would guide our analysis with respect to overlapping punishment. Absent express legislative authorization of multiple punishments, we thus proceed to an application of the Blockburger test. See Swafford, 112 N.M. at 14, 810 P.2d at 1234.

{11} Blockburger provides that “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” 284 U.S. at 304, 52 S.Ct. 180. “In applying the Blockburger test, this Court compares the elements of each crime with the elements of the other....” State v. Lee, 2009–NMCA–075, ¶ 9, 146 N.M. 605, 213 P.3d 509. “If each statute requires proof of a fact that the other does not, it may be inferred that the Legislature intended to authorize separate punishments under each statute.” State v. Swick, 2012–NMSC–018, ¶ 13, 279 P.3d 747 (2012) (emphasis added).

{12} In this case, Defendant concedes that “[t]he elements of battery [against] a household member do ... contain an element that is extraneous to the elements of robbery: [Ms.] Logan's status as a ‘family member [,]’ ... [which] introduce[s] a formal element that, under the Blockburger test, establishes the battery as a crime distinct from the robbery.” Indeed, the statute requires proof of “the unlawful, intentional touching or application of force to the person of a household member, when done in a rude, insolent or angry manner.” Section 30–3–15(A) (emphasis added). “[H]ousehold member” is defined broadly as including “a person with whom a person has had a continuing personal relationship”—or in other words, “a dating or intimate relationship.” NMSA 1978, § 30–3–11 (2008) (amended 2010). Robbery, of course, contains no requirement that the victim have any specific relationship to the assailant. See§ 30–16–2 (using the broad term, “the person of another”). The crime of robbery likewise contains an element extraneous to the battery: “the theft of anything of value.” Id. Battery simply requires the application of force, not the deprivation of property. Considered together, the coupled offenses are elementally distinct.

{13} Under a strict application of Blockburger then, an inference arises that our Legislature intended separate punishment because “each statute requires proof of an element that the other does not.” Caldwell, 2008–NMCA–049, ¶ 11, 143 N.M. 792, 182 P.3d 775. Defendant acknowledges as much, but argues that we should (1) instead apply the situationally modified Blockburger analysis adopted by our Supreme Court in Gutierrez, or (2) conclude that the inference is overcome based on other indicia of legislative intent. While Defendant in fact correctly assesses the difficulties he faces under our traditional Blockburger analysis, we disagree with his assertion of how he circumvents its reach.

{14} First, even were we to apply the modified Blockburger analysis as adopted in Gutierrez—and it is not clear that we should—Defendant's battery against a household member conviction still cannot be subsumed within the robbery conviction. Gutierrez applies when one of the statutes at issue is written with many alternatives, or is vague or unspecific. Then, a reviewing court should “look at the...