State v. Cordova

Opinion

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. NO. A-1-CA-35212

5 DAVID CORDOVA,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Cristina T. Jaramillo, District Judge

9 Hector H. Balderas, Attorney General 10 Maris Veidemanis, Assistant Attorney General 11 Santa Fe, NM

12 for Appellee

13 L. Helen Bennett, P.C. 14 L. Helen Bennett 15 Albuquerque, NM

16 for Appellant

17 MEMORANDUM OPINION

18 VIGIL, Judge. 1 {1} This matter comes before us on remand from the Supreme Court to consider our

2 memorandum opinion filed herein on March 14, 2017, in light of its disposition in

3 State v. Baroz, 2017-NMSC-030, 404 P.3d 769. See Order at *1-2, State v. Cordova,

4 No. S-1-SC-36354, (December 18, 2017). We withdraw our memorandum opinion

5 filed herein on March 14, 2017, and substitute the following in its stead.

6 {2} Defendant David Cordova appeals his conviction for armed robbery, contrary

7 to NMSA 1978, Section 30-16-2 (1973), that was enhanced, pursuant to NMSA 1978,

8 Section 31-18-16(A) (1993), because he used a firearm in the commission of the

9 offense. Defendant was charged with taking money from his victim, intending to

10 permanently deprive her of the same while “armed with a firearm, an instrument or

11 object, which when used as a weapon, could cause death or great bodily harm[.]” In

12 order to convict him of that offense, the jury was instructed that it must find that he

13 “was armed with a gun, an instrument or object which, when used as a weapon, could

14 cause death or serious injury[.]” With regard to the firearm enhancement, the jury was

15 instructed to “determine if the crime was committed with the use of a firearm and

16 report [its] determination” on a special verdict form. See § 31-18-16(A)(1) (“When

17 a separate finding of fact by the court or jury shows that a firearm was used in the

18 commission of a noncapital felony, the basic sentence of imprisonment prescribed for

2 1 the offense . . . shall be increased by one year, and the sentence imposed by this

2 subsection shall be the first year served and shall not be suspended or deferred[.]”).

3 {3} On appeal, Defendant asserts, as his sole issue, that adding the firearm

4 enhancement to the armed robbery conviction violated his right to be free from

5 multiple punishments in violation of the Double Jeopardy Clause of the Fifth

6 Amendment. Following the analysis mandated by Swafford v. State, 1991-NMSC-043,

7 112 N.M. 3, 810 P.2d 1223, our Supreme Court in Baroz rejected the defendant’s

8 argument that imposition of the firearm enhancement violates double jeopardy where

9 the use of a firearm is an element of the underlying conviction of aggravated assault

10 with a deadly weapon. Baroz, 2017-NMSC-030, ¶¶ 20-27. Concluding that the

11 reasoning of Baroz applies to Defendant’s sentence for armed robbery, we reject

12 Defendant’s argument and affirm.

13 {4} IT IS SO ORDERED.

14 __________________________________ 15 MICHAEL E. VIGIL, Judge

16 WE CONCUR:

17 _______________________________ 18 LINDA M. VANZI, Chief Judge

19 _______________________________ 20 STEPHEN G. FRENCH, Judge