State v. Vallejos
| Decision Date | 05 July 2000 |
| Docket Number | No. 20,265.,20,265. |
| Citation | 2000 NMCA 75,129 N.M. 424,9 P.3d 668 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Michael VALLEJOS, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Patricia A. Madrid, Attorney General, Patricia Gandert, Ass't Attorney General, Santa Fe, for Appellee.
Phyllis H. Subin, Chief Public Defender, Sheila Lewis, Ass't Appellate Defender, Santa Fe, for Appellant.
Certiorari Denied, No. 26,473, August 30, 2000.
{1} This case serves to remind us that "[t]he prohibition against double jeopardy `is not one rule but several, each applying to a different situation; and each rule is marooned in a sea of exceptions.'" State v. Medina, 87 N.M. 394, 396, 534 P.2d 486, 488 (Ct.App.1975) (quoting Comment, Twice in Jeopardy, 75 Yale L.J. 262, 263 (1965-66)). Today, we address two aspects of the rule proscribing multiple punishment for the same offense, both of which demonstrate the truth of these words, written over thirty-five years ago.
{2} Defendant appeals his convictions for attempted first degree murder, conspiracy to commit first degree murder, aggravated battery inflicting great bodily harm, conspiracy to commit aggravated battery, and criminal solicitation to commit murder. On appeal, he argues that his state and federal constitutional rights to be protected from double jeopardy were violated by (1) his convictions for both attempted first degree murder and aggravated battery and (2) his convictions for both criminal solicitation and conspiracy to commit murder, although the sentences for these two offenses were merged. He also asserts (3) insufficiency of the evidence to support more than one conspiracy conviction, (4) trial court error in admitting the testimony of two witnesses not timely disclosed by the State, and (5) cumulative error. We affirm on issues (1), (4), and (5), reverse on issues (2) and (3), and remand for further proceedings consistent with this opinion.
{3} On January 20, 1996, Defendant's nephew Chris Sedillo entered a Taco Bell in Los Lunas, New Mexico, and shot Sybil Saiz (Victim), who was standing behind the counter, once in the lower back at close range. Although seriously injured, Victim survived the shooting. Sedillo shot Victim with the help and encouragement of Defendant. Defendant blamed Victim for the shooting of his son Michael Hurtado and sought revenge against Victim. Before the shooting at the Taco Bell, Defendant had confronted Victim and her boyfriend, Robert Castillo, on another occasion in a bank parking lot and at a park and had discharged his gun several times. Defendant had learned that Castillo also had beaten up his son in a store parking lot and wanted to exact revenge.
{4} At trial, the State's theory of the case was that Defendant solicited, conspired with, and aided and abetted Sedillo in the shooting and attempted murder of Victim at Taco Bell. Defendant was convicted by a jury of attempted first degree murder, aggravated battery with great bodily harm, conspiracy to commit first degree murder, conspiracy to commit aggravated battery, and criminal solicitation.
{5} The Double Jeopardy Clauses of the New Mexico and the United States Constitutions guarantee that no person shall be "twice put in jeopardy" for the same offense. See N.M. Const. art. II, § 15; U.S. Const. amend. V. These guarantees protect an individual against successive prosecutions for the same offense after an acquittal or conviction and against multiple punishments for the same offense. See Swafford v. State, 112 N.M. 3, 7, 810 P.2d 1223, 1227 (1991)
. This case implicates Defendant's right to be protected from multiple punishments for the same offense.
{6} Defendant argues that his convictions for both attempted first degree murder and aggravated battery unconstitutionally subjected him to double jeopardy. New Mexico courts apply the two-part test from Swafford, 112 N.M. at 13-15, 810 P.2d at 1233-35, to determine whether convictions under different criminal statutes in the same trial violate the constitutional guarantee against double jeopardy. We first determine "whether the conduct underlying the offenses is unitary, i.e., whether the same conduct violates both statutes." Id. at 13, 810 P.2d at 1233. If the conduct is not unitary, there is no double jeopardy violation, and our analysis ends. See id. at 14, 810 P.2d at 1234.
810 P.2d at 1234. We then consider other indicia of legislative intent, including the language, history, and subject of the statutes; the social evils sought to be addressed by each statute; and the quantum of punishment prescribed by each statute. See id. at 14-15, 810 P.2d at 1234-35. If these factors reinforce the presumption that the legislature intended to punish offenses separately, we conclude that the convictions under different statutes do not violate the constitutional protection against double jeopardy.
{8} Relying on recent felony murder cases, including State v. Varela, 1999-NMSC-045, 128 N.M. 454, 993 P.2d 1280, State v. Cooper, 1997-NMSC-058, 124 N.M. 277, 949 P.2d 660, and Campos, 1996-NMSC-043, 122 N.M. 148, 921 P.2d 1266 Defendant argues that the crime of aggravated battery is subsumed within the crime of attempted first degree murder, and therefore his convictions for both offenses violate double jeopardy. We believe Defendant's reliance on these cases is misplaced because they were addressing a different question of legislative intent.
949 P.2d 660. Cooper argued that because the conduct underlying the aggravated battery was the same conduct that caused the victim's death, he could not be twice convicted for the same act. See id. ¶ 54. The State argued that the battery, consisting of hitting the victim over the head, was distinct from the struggle that resulted in the victim's death. See id. Although Cooper's arguments raised the question of whether battery is always a lesser included offense of second degree murder when the underlying conduct is unitary, the New Mexico Supreme Court did not reach the issue because it determined that the acts constituting the battery and the second degree murder were not unitary. See id. ¶ 58. Therefore, the Cooper court never addressed the issue on which Defendant relies.
921 P.2d 1266. Under this doctrine, the predicate felony cannot be a lesser included offense of second degree murder. See id. ¶ 19. If the predicate felony is a lesser included offense of second degree murder, then the felony murder rule does not apply. See id. New Mexico adopted the collateral felony limitation to prevent the unreasonable expansion of the felony murder doctrine and to preclude the possibility that most second degree murders might be raised to first degree murders simply by charging the initial assaultive act as the predicate felony in a felony murder charge, a result the legislature could not have intended. See id.
{11} Specifically, Defendant points to language in both Varela and Campos stating that one cannot be convicted of felony murder if the underlying felony is aggravated assault or aggravated battery because it would be "impossible to commit second degree murder without committing some form of both aggravated assault and aggravated battery." Varela, 1999-NMSC-045, ¶ 17,128 N.M. 454,993 P.2d 1280; Campos, 1996-NMSC-043, ¶ 23,122 N.M. 148,921 P.2d 1266. Defendant argues that this language supports the conclusion that aggravated battery is a lesser included offense of second degree murder for purposes of double jeopardy analysis. Therefore, he argues, under the same analysis, aggravated battery is a lesser included offense of attempted first degree murder, and his conviction for aggravated battery must be vacated.
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