State v. Lozoya

Decision Date05 April 2017
Docket NumberNO. 34,651,34,651
Citation399 P.3d 410
Parties STATE of New Mexico, Plaintiff-Appellee, v. Brandon LOZOYA, Defendant-Appellant.
CourtCourt of Appeals of New Mexico

Hector H. Balderas, Attorney General, Santa Fe, NM, Elizabeth Ashton, Assistant Attorney General, Albuquerque, NM, for Appellee.

Bennett J. Baur, Chief Public Defender, Allison H. Jaramillo, Assistant Appellate Defender, Santa Fe, NM, for Appellant.


SUTIN, Judge.

{1} Defendant Brandon Lozoya was charged and convicted by a jury of contributing to the delinquency of a minor (CDM), in violation of NMSA 1978, Section 30-6-3 (1990), and shoplifting, in violation of NMSA 1978, Section 30-16-20(A)(1) (2006). On appeal, Defendant argues (1) that his convictions for CDM and shoplifting as an accessory violate double jeopardy; (2) alternatively, his conviction for CDM violates the plain language of Section 30-16-20(C), under a statutory construction analysis; (3) the State failed to present sufficient evidence of CDM; (4) the district court erred in failing to include knowledge of age as an element in the CDM instruction; (5) the district court erred in allowing the State to impeach Defendant with his prior conviction; and (6) the prosecutor committed prosecutorial misconduct during closing argument. We hold that Defendant's convictions for CDM and shoplifting violate double jeopardy, and for the reasons stated in this opinion, we reverse and remand with instructions to vacate the shoplifting conviction.


{2} Defendant was at a house party in Alamogordo, New Mexico, when he was offered a ride to Walmart to get more alcohol. He accepted the ride, and when he entered the backseat of a female friend's vehicle, he noticed that a third person, Child, was in the front passenger seat. Defendant and Child had never met each other before. The three individuals drove for approximately three to four minutes to Walmart. When they arrived, Defendant and Child got out of the car, entered Walmart, and headed toward the alcohol section.

{3} Defendant and Child dispute what was known to Defendant before entering Walmart and while they were in Walmart's alcohol section. Child testified that her intent when she was dropped off at Walmart was to steal bottles of alcohol. She testified that she had discussed her intent to shoplift with Defendant, and Defendant "looked out to see if anyone was coming" while she shoplifted. According to Child, Defendant pointed out bottles of alcohol that he wanted, but she instead only placed bottles she wanted in her purse. Child testified that she told Defendant that she did not have any money. Child admitted that she did not tell Defendant her age and admitted that she had never met Defendant before that night.

{4} Defendant testified that no one suggested stealing liquor and that he had no idea Child intended to shoplift. According to Defendant, he did not know Child was shoplifting until she had taken a second bottle. Defendant also testified that he had no idea how old Child was and assumed she was twenty-one years old.

{5} After Child placed two bottles of alcohol in her purse, Defendant and Child headed toward the exit. They were stopped by a Walmart asset protection associate who asked that they return the bottles. The associate testified that her observations made her believe that Defendant and Child were there together, and she believed that Defendant was assisting Child in picking out merchandise to steal. She further testified that Defendant asked her if she would agree to not call the police if they returned the items. The items were returned, and Child and Defendant left Walmart separately. The associate called the police, and Child and Defendant were both apprehended by law enforcement.

{6} For his role in the crime, Defendant was charged with shoplifting under $250 (a petty misdemeanor) and CDM (a fourth degree felony). Prior to trial, Defendant moved to keep out the names or nature of his prior convictions for robbery and possession of cocaine if he testified. The court deferred ruling at that time, but at trial denied the motion, finding that the probative value for impeachment purposes outweighed any prejudicial effect. At trial, Defendant testified in his own defense, and during direct examination, admitted he had previously been convicted of robbery and possession of cocaine. On cross-examination, the State further questioned Defendant about his prior convictions. He also questioned whether Defendant was under the influence of illegal drugs on the night in question and asked whether he had a sexual interest in Child.

{7} During closing argument, the prosecutor remarked, "What is a twenty-seven-year-old man doing with a fifteen-year-old girl and another young lady in the car ...? Well, nothing good I expect." He also referenced the fact that a condom packet was found in Defendant's pocket after he was apprehended and searched by law enforcement, suggested that alcohol, minors, and condoms were "[n]ot a recipe for a good ending[,]" and pleaded to the jury "[d]on't allow him to do this to our children." According to the prosecutor, "[Defendant] went there with one purpose. To get booze and to have some fun that night. You can infer the rest." The prosecutor also mentioned, "regarding [the] issue of credibility," Defendant's prior convictions, and categorized him as a "two-time felon." Defendant was convicted on both counts, and this appeal followed.

I. Double Jeopardy

{8} We begin by analyzing Defendant's claim that his CDM and shoplifting convictions violate double jeopardy and that this Court must vacate one of his convictions.

Because we ultimately reverse Defendant's shoplifting conviction on double jeopardy grounds, we need not and do not separately address his statutory construction argument that appears to rely almost entirely on the logic and case law set forth in his double jeopardy argument.

{9} "The Fifth Amendment of the United States Constitution prohibits double jeopardy and is made applicable to New Mexico by the Fourteenth Amendment." State v. Swick , 2012-NMSC-018, ¶ 10, 279 P.3d 747;see U.S. Const. amends. V & XIV, § 1. The right to be free from double jeopardy protects, in relevant part, "against multiple punishments for the same offense." State v. Montoya , 2011-NMCA-074, ¶ 29, 150 N.M. 415, 259 P.3d 820 (internal quotation marks and citation omitted). The specific type of multiple punishment case we are dealing with here, where Defendant was convicted of crimes under two separate statutes,

is categorized as a double[ ]description case, which prohibits charging a defendant with violations of multiple statutes for the same conduct in violation of the Legislature's intent. In such a case, double jeopardy bars a conviction if the conduct underlying the two offenses is unitary and the Legislature has not indicated an intent to punish the same conduct separately.

Id. ¶ 30 (alterations, internal quotation marks, and citations omitted). A double jeopardy challenge is a constitutional question of law that the appellate courts review de novo. Swick , 2012-NMSC-018, ¶ 10, 279 P.3d 747.

{10} The parties agree that the conduct underlying the CDM conviction and the shoplifting conviction was unitary and that, under a double description analysis, a double jeopardy violation exists. However, the parties disagree about which conviction should be vacated. Defendant argues that the CDM charge must be vacated because according to Section 30-16-20(C), "[a]n individual charged with a violation of this section shall not be charged with a separate or additional offense arising out of the same transaction[,]" and thus, the Legislature intended to bar punishment for CDM in cases, such as this, where CDM and shoplifting arose out of the same transaction. Defendant also argues that "[t]o the extent the reach of this statute is ambiguous, the rule of lenity applies" and that the Court should therefore vacate his CDM conviction as opposed to his shoplifting conviction. See State v. Santillanes , 2001-NMSC-018, ¶ 34, 130 N.M. 464, 27 P.3d 456 ("The rule of lenity counsels that criminal statutes should be interpreted in the defendant's favor when insurmountable ambiguity persists regarding the intended scope of a criminal statute." (internal quotation marks and citation omitted)).

{11} The State argues that under double jeopardy jurisprudence the shoplifting conviction, a petty misdemeanor that carries a lesser punishment, must be vacated, while the CDM conviction, a felony, must stand. See State v. Montoya , 2013-NMSC-020, ¶ 55, 306 P.3d 426 ("[W]here one of two otherwise valid convictions must be vacated to avoid violation of double jeopardy protections, we must vacate the conviction carrying the shorter sentence."); State v. Lee , 2009-NMCA-075, ¶ 16, 146 N.M. 605, 213 P.3d 509 ("When double jeopardy exists, the offense carrying the lesser punishment is to be vacated."). Defendant acknowledges that "typically the lesser conviction is vacated when both violate double jeopardy" but he asserts that the language in the shoplifting statute indicates that the Legislature intended only that shoplifting be charged.

{12} In evaluating that essential issue of whether we should vacate the shoplifting conviction or the CDM conviction, we are persuaded that the appellate courts' general practice of vacating the conviction carrying the shorter sentence in cases where double jeopardy protections have been violated is the proper approach here. In support of this approach of vacating the conviction with the lesser punishment, our Supreme Court has held that "[a]s a matter of separation of powers, it is the exclusive prerogative of the Legislature, the law-making branch of our representative democracy, to determine relative seriousness and punishment for criminal offenses." Montoya , 2013-NMSC-020, ¶ 56, 306 P.3d 426. Moreover, "as a matter of policy, it would be unacceptable for us to hold...

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