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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-35196
5 DAVID GONZALES,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 8 Douglas R. Driggers, District Judge
9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 Charles J. Gutierrez, Assistant Attorney General 12 Albuquerque, NM
13 for Appellee
14 Bennett J. Baur, Chief Public Defender 15 C. David Henderson, Appellate Defender 16 Santa Fe, NM
17 for Appellant
18 MEMORANDUM OPINION
19 ATTREP, Judge.
1 {1} Defendant David Gonzales appeals his convictions for aggravating fleeing a
2 law enforcement officer, contrary to NMSA 1978, Section 30-22-1.1 (2003), and
3 resisting, evading or obstructing an officer, contrary to NMSA 1978, Section 30-
4 22-1 (1981). Defendant raises the following issues on appeal—whether (1)
5 “pursuit” by a law enforcement officer is an essential element of aggravated
6 fleeing and the district court’s failure to instruct the jury on this element resulted in
7 reversible error; (2) there was sufficient evidence to support Defendant’s
8 aggravated fleeing conviction; and (3) Defendant’s convictions for aggravated
9 fleeing and resisting, evading or obstructing an officer violate double jeopardy. We
10 conclude that Defendant’s convictions for both aggravated fleeing and resisting,
11 evading or obstructing an officer violate the prohibition against double jeopardy.
12 Accordingly, we remand to the district court to vacate Defendant’s conviction for
13 resisting, evading or obstructing an officer. Otherwise, we affirm.
14 BACKGROUND
15 {2} While on duty in a marked patrol car, Officer Veronica De La O of the Las
16 Cruces Police Department received a be-on-the-lookout (BOLO) alert for a large
17 blue truck with a flatbed traveling north. Three to five minutes after receiving the
18 BOLO, Officer De La O saw a vehicle matching the description and observed the
19 driver (later identified as Defendant) drinking what she believed to be a beer.
20 Officer De La O then observed Defendant turn left in front of oncoming traffic,
1 causing several cars to slam on their brakes to avoid a collision. Officer De La O
2 engaged her lights, signaled Defendant to pull over, and activated her air horn.
3 Defendant drove into a congested shopping center parking lot, weaving through
4 parking spaces and vehicles, and nearly crashing into a light pole.
5 {3} Defendant then stopped his vehicle but never shifted out of drive. Officer De
6 La O left her emergency lights on, exited her patrol car, and approached
7 Defendant’s vehicle. Defendant looked briefly at Officer De La O, then drove off
8 at a high rate of speed through the drop-off area of Goodwill Industries without
9 yielding to pedestrians or traffic. Officer De La O had to jump out of the way to
10 avoid being hit by the flatbed attached to Defendant’s truck. Officer De La O
11 testified that she then “immediately got back into [her] unit and began to follow
12 [Defendant].” She estimated it took her about five seconds to get back into her
13 patrol car and another “couple of seconds” to engage her sirens. Officer De La O
14 alerted other officers via radio that she “was going to be in a pursuit” of Defendant.
15 {4} Officer De La O then drove after Defendant but did not directly follow him
16 through the drop-off area. She chose instead to go around the store and onto the
17 street in order to leave the parking lot area “as safely as [she] could.” Although
18 Officer De La O could not see Defendant, she knew his general trajectory because
19 several pedestrians and drivers were gesturing in the direction Defendant had gone,
20 and she could see a large cloud of dust in that direction. Within two to three
1 minutes of leaving the parking lot, Officer De La O found Defendant’s unoccupied
2 truck crashed in the front yard of a residence. Officer De La O continued on foot
3 and located Defendant in the yard of a residence two or three houses down from
4 the crash.
5 {5} Officer Julian Gomez joined Officer De La O in attempting to apprehend
6 Defendant soon after being alerted by radio that Officer De La O had observed a
7 truck matching the BOLO description. As he approached the parking lot, however,
8 Officer Gomez saw Defendant take off at a high rate of speed. Officer Gomez then
9 activated his lights and sirens and made a U-turn in an attempt to apprehend
10 Defendant. Officer Gomez followed the path he believed Defendant had taken and
11 eventually caught a glimpse of the tail end of Defendant’s vehicle as it turned onto
12 a side street. Officer Gomez came upon Defendant’s crashed vehicle
13 approximately thirty to sixty seconds later.
14 {6} Ana Marie Aldaz, a pedestrian walking in the area at the time Defendant fled
15 from Officer De La O, testified that she observed a truck “fl[y] past” her, driving
16 around the corner “in a dangerous fashion.” Ms. Aldaz was scared that the truck
17 was going to “keel over on top of [her]” because of its speed as it went around the
18 corner. A minute after seeing the truck, Ms. Aldaz heard sirens and saw two police
19 cars drive past, describing that the officers “were on [Defendant’s] heels.”
1 {7} Defendant was charged with aggravated fleeing; resisting, evading or
2 obstructing an officer; aggravated driving while under the influence; no proof of
3 insurance; and driving with a suspended license. Prior to the conclusion of trial,
4 Defendant pleaded guilty to the charge of driving with a suspended license. The
5 jury found Defendant guilty on all remaining charges. Defendant appeals his
6 convictions for aggravated fleeing and resisting, evading or obstructing an officer.
7 DISCUSSION
8 I. Instructional Error
9 {8} With respect to his aggravated fleeing conviction, Defendant argues that the
10 district court erred in refusing to give an instruction that the officer was “in
11 pursuit” of Defendant. The relevant portion of the aggravated fleeing statute
12 provides:
13 Aggravated fleeing a law enforcement officer consists of a person 14 willfully and carelessly driving his vehicle in a manner that endangers 15 the life of another person after being given a visual or audible signal 16 to stop, whether by hand, voice, emergency light, flashing light, siren 17 or other signal, by a uniformed law enforcement officer in an 18 appropriately marked law enforcement vehicle in pursuit in 19 accordance with the provisions of the Law Enforcement Safe Pursuit 20 Act.
21 Section 30-22-1.1(A) (emphasis added). At trial, the State proposed to instruct the
22 jury using the uniform jury instruction for aggravated fleeing, UJI 14-2217
23 NMRA. In response, Defendant asked the district court to modify the instruction to
24 include “pursuit” as an element. The district court denied Defendant’s request and
1 instructed the jury in accordance with the uniform jury instruction for aggravated
2 fleeing as follows:
3 For you to find [D]efendant guilty of aggravated fleeing a law 4 enforcement officer as charged in Count 1, the [S]tate must prove to 5 your satisfaction beyond a reasonable doubt each of the following 6 elements of the crime:
7 1. [D]efendant operated a motor vehicle;
8 2. [D]efendant drove willfully and carelessly in a manner 9 that endangered the life of another person;
10 3. [D]efendant had been given a visual or audible signal to 11 stop by a uniformed law enforcement officer in an appropriately 12 marked law enforcement vehicle;
13 4. [D]efendant knew that a law enforcement officer had 14 given him an audible or visual signal to stop;
15 5. This happened in New Mexico on or about the 21st day 16 of February, 2011.
17 See UJI 14-2217.
18 {9} Because Defendant preserved his challenge to the jury instructions, our
19 review on appeal is for reversible error.1 See State v. Benally, 2001-NMSC-033, ¶
20 12, 131 N.M. 258, 34 P.3d 1134. “Reversible error arises if a reasonable juror
21 would have been confused or misdirected.” State v. Montoya, 2015-NMSC-010,
22 ¶ 25, 345 P.3d 1056 (omission, internal quotation marks, and citation omitted).
23 “Failure to instruct the jury on an essential element of the charged offense has been
1 To the extent our review involves the interpretation of our criminal statutes, “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.
1 held to be reversible error.” Santillanes v. State, 1993-NMSC-012, ¶ 32, 115 N.M.
2 215, 849 P.2d 358. “When there can be no dispute that the essential element was
3 established, however, failure to instruct on that element does not require reversal of
4 the conviction.” Id.
5 {10} Because we conclude that there can be no dispute that “pursuit” was
6 established in this case, we need not decide whether “pursuit” is an element
7 essential to aggravated fleeing that must be instructed to the jury. Instead, for
8 purposes of this opinion, we assume that “a law enforcement officer . . . [being] in
9 pursuit” of the accused is an essential element of the crime of aggravated fleeing.
10 Section 30-22-1.1(A); see State v. Romero, ___-NMSC-___, ¶¶ 53, 55, ___
11 P.3d___ (No. S-1-SC-36229, Dec. 27, 2018) (noting that “[t]he absence of
12 ‘pursuit’ in the jury instruction is not dispositive of whether pursuit is an element
13 essential to aggravated fleeing” and proceeding with sufficiency of the evidence
14 analysis by treating “pursuit” as an essential element of aggravated fleeing).
15 {11} In support of his argument that “pursuit” was contested, Defendant contends
16 that aggravated fleeing “cannot be committed when there was no direct pursuit.”
17 Defendant elaborates that there was no “pursuit” in this case because Officer De La
18 O “decided not to follow [Defendant] directly and lost sight of him for up to three
19 minutes.” Defendant’s contention that “pursuit” can only be established when the
20 officer followed the defendant’s direct path without losing visual contact is made
1 without citation to any authority, and we can fairly assume that none exists. See
2 State v. Vigil-Giron, 2014-NMCA-069, ¶ 60, 327 P.3d 1129 (“[A]ppellate courts
3 will not consider an issue if no authority is cited in support of the issue and that,
4 given no cited authority, we assume no such authority exists[.]”). Further, under
5 Defendant’s construction of the aggravated fleeing statute, a defendant who flees
6 quickly and dangerously enough would be insulated from prosecution for
7 aggravated fleeing. Such a construction seems directly contrary to what the
8 Legislature had in mind when it enacted the aggravated fleeing statute and would
9 lead to absurd and unreasonable results. See State v. Padilla (Padilla II), 2008-
10 NMSC-006, ¶ 21, 143 N.M. 310, 176 P.3d 299 (“The statute appears to be
11 designed to protect the general public from the dangers of a high speed chase.”);
12 State v. Davis, 2003-NMSC-022, ¶ 13, 134 N.M. 172, 74 P.3d 1064 (“No rule of
13 construction necessitates our acceptance of [a statutory] interpretation resulting in
14 patently absurd consequences.” (internal quotation marks and citation omitted)).
15 {12} Accordingly, we decline Defendant’s invitation to read the word “directly”
16 into the aggravated fleeing statute, and instead give the words in the statute their
17 plain meaning. See State v. Trujillo, 2009-NMSC-012, ¶ 11, 146 N.M. 14, 206
18 P.3d 125 (“In discerning legislative intent, we look first to the language used and
19 the plain meaning of that language. . . . We will not read into a statute any words
20 that are not there, particularly when the statute is complete and makes sense as
1 written.” (citations omitted)). The term “pursuit” is not defined in the relevant
2 criminal statutes, and we thus look to the dictionary definition of the term. See
3 State v. Lindsey, 2017-NMCA-048, ¶ 14, 396 P.3d 199 (“[O]ur courts often use
4 dictionary definitions to ascertain the ordinary meaning of words that form the
5 basis of statutory construction inquiries.” (internal quotation marks and citation
6 omitted)). “Pursuit” is defined as the act of “follow[ing] in order to overtake [or]
7 capture[.]” Merriam-Webster Dictionary, https://www.merriam-
8 webster.com/dictionary/pursue (last visited on Feb. 8, 2019); cf. NMSA 1978, §
9 29-20-2 (2003) (defining a “high speed pursuit” as “an attempt by a law
10 enforcement officer in an authorized emergency vehicle to apprehend an occupant
11 of a motor vehicle, the driver of which is actively attempting to avoid apprehension
12 by exceeding the speed limit”).
13 {13} In view of the plain meaning of “pursuit,” there can be no dispute that the
14 evidence at trial established that Officer De La O was in continuous pursuit of
15 Defendant throughout the relevant events. See Santillanes, 1993-NMSC-012,
16 ¶¶ 32-34 (holding that there was no reversible error when the court failed to
17 instruct on an element that was clearly established by the evidence at trial). During
18 the initial traffic stop, Officer De La O engaged her lights and air horn in an
19 attempt to get Defendant to stop his vehicle. At that time, Defendant drove through
20 a congested parking lot, weaving through parking spaces and vehicles. Defendant
1 stopped only briefly, waited for Officer De La O to approach Defendant’s truck,
2 and then sped off from the parking lot, again failing to yield to pedestrians and
3 traffic. It took Officer De La O mere seconds to get back into her patrol car,
4 engage her sirens, and take chase after Defendant. Officer De La O then proceeded
5 to follow Defendant in the direction of the cloud of dust created by Defendant’s
6 truck and with the assistance of onlookers. Officer Gomez also gave chase and
7 observed Defendant’s fleeing vehicle in his attempt to locate Defendant. Both
8 officers came upon Defendant’s wrecked truck shortly after Defendant fled the
9 shopping center parking lot.
10 {14} During this entire episode, Defendant engaged in a continuous flight from
11 Officer De La O and Officer De La O engaged in a continuous pursuit of
12 Defendant. Cf. Romero, ___-NMSC-___, ¶¶ 54-56 (determining there was a
13 continuous course of aggravated fleeing under analogous circumstances where the
14 defendant continued to flee after an initial traffic stop). Under the facts of this case,
15 “no rational jury could have concluded” that Officer De La O was not “in pursuit”
16 of Defendant. See Santillanes, 1993-NMSC-012, ¶ 34. Thus, even assuming
17 “pursuit” is an essential element of aggravated fleeing, as we have in this case, the
18 district court’s failure to instruct on that element did not amount to reversible error.
19 See id.
20 II. Sufficiency of the Evidence
1 {15} Defendant does not contest that there was sufficient evidence to support the
2 aggravated fleeing elements submitted to the jury. Instead, Defendant’s sufficiency
3 argument hinges on his claim that there was insufficient evidence of “pursuit” as
4 set forth above. Because we have held that no rational jury could have concluded
5 that there was no pursuit, Defendant’s sufficiency of the evidence argument is
6 likewise without merit. See State v. Cunningham, 2000-NMSC-009, ¶ 26, 128
7 N.M. 711, 998 P.2d 176 (“The relevant question is whether, after viewing the
8 evidence in the light most favorable to the prosecution, any rational trier of fact
9 could have found the essential elements of the crime beyond a reasonable doubt.”
10 (alteration, internal quotation marks, and citation omitted)).
11 III. Double Jeopardy
12 {16} Relying on this Court’s holding in State v. Padilla (Padilla I), 2006-NMCA-
13 107, 140 N.M. 333, 142 P.3d 921, overruled on other grounds by Padilla II, 2008-
14 NMSC-006, Defendant argues that his convictions for aggravated fleeing (Section
15 30-22-1.1) and resisting, evading or obstructing an officer (Section 30-22-1(B))
16 stem from unitary conduct and violate double jeopardy.2 “A double jeopardy claim
2 The jury was instructed in the alternative under both Subsections (B) and (C) of the resisting, evading or obstructing an officer statute, Section 30-22-1. The parties, however, analyze Defendant’s double jeopardy claim under Section 30-22-1(B) alone, and we do the same. See State v. Foster, 1999-NMSC-007, ¶ 28, 126 N.M. 646, 974 P.2d 140 (“[W]e must presume that a conviction under a general verdict requires reversal if the jury is instructed on an alternative basis for the conviction that would result in double jeopardy, and the record does not
1 is a question of law that we review de novo.” State v. Bernal, 2006-NMSC-050, ¶
2 6, 140 N.M. 644, 146 P.3d 289.
3 {17} The double jeopardy clause “protects defendants from receiving multiple
4 punishments for the same offense.” State v. Ramirez, 2018-NMSC-003, ¶ 38, 409
5 P.3d 902 (internal quotation marks and citation omitted); see U.S. Const. amend.
6 V; N.M. Const. art. II, § 15. Defendant raises what is commonly referred to as a
7 double-description double jeopardy claim, “in which a single act results in multiple
8 charges under different criminal statutes[.]” Bernal, 2006-NMSC-050, ¶ 7. We
9 previously determined in Padilla I that “there are no indications of any legislative
10 intent to allow multiple punishments for misdemeanor resisting/evading and
11 aggravated fleeing when there is unitary conduct.” 2006-NMCA-107, ¶ 35. Thus,
12 we held “that resisting/evading under Section 30-22-1(B) is a lesser included
13 offense of aggravated fleeing and that [a d]efendant may not be convicted of both
14 crimes for the same course of conduct.” Id.
15 {18} The State concedes that the conduct at issue here is unitary and we agree.
16 While acknowledging that this concession compels the conclusion that Defendant’s
17 convictions for both aggravated fleeing and the lesser included offense of resisting,
18 evading or obstructing an officer violate double jeopardy under Padilla I, the State
disclose whether the jury relied on this legally inadequate alternative.”), abrogated on other grounds by Kersey v. Hatch, 2010-NMSC-020, ¶ 17, 148 N.M. 381, 237 P.3d 683.
1 nonetheless urges us to revisit Padilla I and abandon its holding. In support of this,
2 the State posits that while our “Supreme Court ultimately reversed this Court in
3 Padilla II on different grounds, . . . its reasoning gutted this Court’s opinion [in
4 Padilla I].” The State thus contends, “[s]tare decisis does not mandate continued
5 adherence to Padilla I because it is unsoundly reasoned and contrary to Padilla II.”
6 We disagree.
7 {19} We first note that this Court’s holding in Padilla I—that convictions for both
8 aggravated fleeing and resisting, evading or obstructing an officer (Section 30-22-
9 1(B)) violate double jeopardy—was not disturbed by our Supreme Court in Padilla
10 II and has not been disturbed in the intervening eleven years since Padilla II. See
11 2008-NMSC-006, ¶ 34 (“We remand this case to the district court to vacate [the
12 d]efendant’s conviction for resisting, evading or obstructing in accordance with
13 that part of the Court of Appeals opinion which is not the subject of review
14 herein.”); see also State v. Velarde, No. A-1-CA-33812, mem. op. ¶ 11 (N.M. Ct.
15 App. Nov. 20, 2017) (non-precedential) (recently applying Padilla I and vacating
16 the defendant’s resisting, evading or obstructing conviction on double jeopardy
17 grounds).
18 {20} Moreover, the State has not satisfied the high burden our courts adhere to
19 before overturning prior precedent. “Stare decisis is the judicial obligation to
20 follow precedent, and it lies at the very core of the judicial process of interpreting
1 and announcing law.” Trujillo v. City of Albuquerque, 1998-NMSC-031, ¶ 33, 125
2 N.M. 721, 965 P.2d 305. “It promotes very important principles in the maintenance
3 of a sound judicial system: (1) stability of the law, (2) fairness in assuring that like
4 cases are treated similarly, and (3) judicial economy[.]” Id. (citations omitted).
5 Thus, “any departure from precedent demands special justification,” in light of the
6 following factors:
7 (1) whether the precedent is so unworkable as to be intolerable; (2) 8 whether parties justifiably relied on the precedent so that reversing it 9 would create an undue hardship; (3) whether the principles of law 10 have developed to such an extent as to leave the old rule no more than 11 a remnant of abandoned doctrine; and (4) whether the facts have 12 changed in the interval from the old rule to reconsideration so as to 13 have robbed the old rule of justification.
14 Id. ¶ 34 (alteration, omission, internal quotation marks, and citations omitted). The
15 State has not argued, let alone established, that any one of these factors has been
16 met here. Absent such a demonstration, we decline to consider overruling Padilla
17 I. See State v. Riley, 2010-NMSC-005, ¶ 40, 147 N.M. 557, 226 P.3d 656 (Chávez,
18 J., specially concurring) (“[The appellant] does not make a case for us to overrule
19 our precedent by applying the factors relevant to a stare decisis analysis. [The
20 appellant] simply asks us to reconsider [our] holding[.] . . . This unilluminating
21 request lacks the disciplined approach we have required in numerous opinions on
22 the subject of stare decisis.” (citation omitted)), overruled on other grounds by
23 State v. Montoya, 2013-NMSC-020, ¶ 54, 306 P.3d 426.
1 {21} Applying Padilla I, we conclude that Defendant’s convictions for
2 aggravated fleeing and resisting, evading or obstructing an officer (Section 30-22-
3 1(B)) for the same course of conduct violate double jeopardy. See 2006-NMCA-
4 107, ¶¶ 35-36. Accordingly, Defendant’s conviction for the lesser offense of
5 resisting, evading or obstructing an officer must be vacated. See id. ¶ 36.
6 CONCLUSION
7 {22} We hold that Defendant’s convictions for aggravated fleeing a law
8 enforcement officer and resisting, evading or obstructing an officer violate the
9 prohibition against double jeopardy. We therefore remand to the district court to
10 vacate the lesser offense of resisting, evading or obstructing an officer and to
11 resentence Defendant accordingly. Having concluded Defendant’s remaining
12 claims of error are without merit, we otherwise affirm.
13 {23} IT IS SO ORDERED.
14 _________________________________ 15 JENNIFER L. ATTREP, Judge
16 WE CONCUR:
17 _________________________________ 18 LINDA M. VANZI, Judge
1 _________________________________ 2 J. MILES HANISEE, Judge