State v. Montoya

• Court: New Mexico Court of Appeals
• Decided: June 23, 2016
• Docket: 33,773
• Status: Unpublished

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 33,773

5 BENJAMIN MONTOYA,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Briana H. Zamora, District Judge

9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 Steven H. Johnston, Assistant Attorney General 12 Albuquerque, NM

13 for Appellee

14 Bennett J. Baur, Chief Public Defender 15 J. K. Theodosia Johnson, Assistant Appellate Defender 16 Santa Fe, NM

17 for Appellant

18 MEMORANDUM OPINION

19 BUSTAMANTE, Judge. 1 {1} This is Defendant’s second appeal in this case. The details of his trial are

2 contained in the Supreme Court’s opinion in his first appeal and need not be repeated.

3 See State v. Montoya, 2013-NMSC-020, 306 P.3d 426. The Supreme Court vacated

4 Defendant’s conviction for felony murder and remanded for entry of an amended

5 sentence reflecting only his conviction for shooting at a motor vehicle. Id. ¶¶ 56, 65.

6 On remand the district court imposed a sentence of fifteen years for a second degree

7 felony resulting in the death of a human being for the offense of shooting at a motor

8 vehicle resulting in great bodily harm (death). The district court suspended two years

9 “on condition of probation and parole.”

10 {2} Defendant now appeals arguing that sentencing him under NMSA 1978,

11 Section 31-18-15(A)(4) (2007, amended 2016) for his conviction under NMSA 1978,

12 Section 30-3-8(B) (1993) constitutes double jeopardy. This is the same argument we

13 rejected in State v. Franco, 2016-NMCA- , ¶¶ 17-34, P.3d (No. 33,392, June

14 14, 2016. For the reasons noted in Franco, we reject it here.

15 {3} Defendant’s sentence is affirmed.

16 {4} IT IS SO ORDERED.

17 18 MICHAEL D. BUSTAMANTE, Judge

2 1 WE CONCUR:

2 __________________________________ 3 MICHAEL E. VIGIL, Chief Judge

4 __________________________________ 5 JONATHAN B. SUTIN, Judge