State v. Rudy B.

• Court: New Mexico Court of Appeals
• Decided: May 8, 2014
• Docket: 27,589
• Status: Unpublished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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 27,589

5 RUDY B.,

6 Child-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 M. Monica Zamora, District Judge

9 Gary K. King, Attorney General 10 Santa Fe, NM 11 M. Victoria Wilson, Assistant Attorney General 12 Albuquerque, NM

13 for Appellee

14 Jorge A. Alavarado, Chief Public Defender 15 J.K. Theodosia Johnson, Assistant Appellate Defender 16 Santa Fe, NM

17 for Appellant

18 Juvenile Law Center 19 Marsha Levick 20 Neha Desai 21 Jessica Feierman 22 Philadelphia, PA

23 for Amicus Curiae 1 MEMORANDUM OPINION

2 FRY, Judge.

3 {1} This matter was remanded to us for consideration of whether Child’s separate

4 convictions for shooting from a motor vehicle resulting in great bodily harm and

5 aggravated battery with a deadly weapon violate constitutional protections against

6 double jeopardy. We assigned this case to the summary calendar. In our notice of

7 proposed summary disposition, we proposed to conclude that Child’s convictions

8 violated his constitutional right to be free from double jeopardy due to our Supreme

9 Court’s recent decision in State v. Montoya, 2013-NMSC-020, 306 P.3d 426. [CN 2]

10 The State has filed a memorandum in opposition, which we have duly considered.

11 Because we do not find it persuasive, we reverse.

12 {2} The State argues that the holding in State v. Dominguez, 2005-NMSC-001, 137

13 N.M. 1, 106 P.3d 563, that convictions for shooting at or from a motor vehicle and

14 aggravated battery do not violate double jeopardy protections, was not overruled by

15 Montoya. See id. ¶ 17; Montoya, 2013-NMSC-020, ¶ 54. [MIO 5] While we

16 acknowledged in our calendar notice that the precise scope of Montoya’s overruling

17 of Dominguez was certainly unclear, we interpreted the Supreme Court’s mandate in

18 this case to permit this Court to conclude that Montoya’s reasoning not only

19 invalidated Dominguez’s holding that convictions for voluntary manslaughter and

2 1 shooting at or from a motor vehicle arising from unitary conduct do not violate double

2 jeopardy, but also its holding that convictions for aggravated battery and shooting at

3 or from a motor vehicle do not violate double jeopardy. [CN 6-7] Accordingly, we are

4 unpersuaded by the State’s argument that Dominguez should control our decision in

5 this case.

6 {3} The State further argues that this Court does not have jurisdiction to review this

7 issue because Child did not petition our Supreme Court to review the double jeopardy

8 issue. [MIO 14] The State’s argument essentially contends that Child waived his right

9 to review of this issue. However, “[t]he defense of double jeopardy may not be

10 waived and may be raised by the accused at any stage of a criminal prosecution, either

11 before or after judgment.” NMSA 1978, § 30-1-10 (1963). Accordingly, we conclude

12 that this issue is properly before this Court.

13 CONCLUSION

14 {4} For the foregoing reasons, we conclude that Child’s convictions violate his right

15 to be free from double jeopardy and remand to the district court for proceedings

16 consistent with this opinion.

17 {5} IT IS SO ORDERED.

18 __________________________________ 19 CYNTHIA A. FRY, Judge

3 1 WE CONCUR:

2 3 MICHAEL D. BUSTAMANTE, Judge

4 5 MICHAEL E. VIGIL, Judge