State v. Terrazas

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date.

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

7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee, 9 v. NO. 27,613 10 MOISES TERRAZAS, 11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 13 James W. Counts, District Judge

14 Gary K. King, Attorney General 15 Nicole Beder, Assistant Attorney General 16 Santa Fe, NM

17 for Appellee

18 Hugh W. Dangler, Chief Public Defender 19 Kathleen T. Baldridge, Assistant Appellate Defender 20 Santa Fe, NM

21 for Appellant

22 MEMORANDUM OPINION

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1 ROBLES, Judge. 2 Moises Terrazas (Defendant) appeals his conviction of four counts of child 3 endangerment, contrary to NMSA 1978, Section 30-6-1(D)(1) (2005) (amended 4 2009). On appeal, he asserts that there was insufficient evidence to sustain a 5 conviction for child endangerment, and that conviction of four counts of the same 6 offense for the same continuous course of conduct violates double jeopardy principles. 7 We partially affirm and partially reverse. 8 I. BACKGROUND 9 In 2004, Robin Bailey lived in a house in Alamogordo. She had been separated 10 from her husband, Shishmon, for about a year, and the property was in both of their 11 names. In April, Bailey moved to Kansas City, Missouri. She asked a friend to look 12 after the house, but did not give her a key. However, her friend also moved to Kansas 13 City two weeks after Bailey did. Shishmon did not have access to the house at that 14 time. 15 In September, Bailey returned to the house in Alamogordo and found that 16 people were living there. According to Bailey, the house was in good condition when 17 she left in April but, upon her return, the house was “trashed” and “messed up.” She 18 eventually contacted the people who were living there and discovered that the 19 occupants were Defendant, his girlfriend (Etta Sides), and four children ages eight, 20 six, two years, and ten months old. Defendant and Sides are the parents of the two

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1 younger children. Bailey testified that Defendant told her that they were living in the 2 house, and they had broken the screens and hinges on the windows because that was 3 the only way they could get in and out of the house. Bailey told Defendant that she 4 wanted to move back into her house and returned five to seven times over the course 5 of the next month, but Defendant and his family did not move out. In mid-October, 6 Bailey called the Children, Youth and Families Department (CYFD) and reported the 7 condition of the house and the children. 8 Lee Martinez, an employee with CYFD, testified that he and CYFD had 9 received referrals regarding Defendant and his family in the past and had interacted 10 with them before. On October 20, Martinez went to Bailey’s house after getting a 11 referral to check on the welfare of the children living there. When Martinez arrived, 12 he met with Sides and the two younger children. A short time later, the two older 13 children returned from school. Martinez took photographs of the residence, which 14 were admitted into evidence. Martinez testified further that he was concerned about 15 the condition of the house and the health and safety of the children. According to 16 Martinez, there was trash, spoiled food, a bicycle against a wall that could fall on a 17 crawling child, dirty clothes, sharp objects, broken windows, no gas, dirty dishes, 18 multiple “trip hazards” on the floor, and an insufficient amount of food in the house. 19 Martinez stated that, when the oldest child came home from school, she recognized 20 him as a CYFD employee, and she began picking up beer bottles from the patio and

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1 taking them behind the house, presumably to a garbage dumpster. Martinez called for 2 police assistance. 3 Officer Mike Storseth with the Alamogordo Department of Public Safety was 4 dispatched to assist Martinez. The officer testified that, upon his arrival, there were 5 overgrown weeds, a lawn mower, and car parts in the front yard. On the front porch, 6 there were beer bottles, a broken alcohol bottle, a box of beer cans, and ants were 7 “everywhere.” The officer also testified that the yard had “[s]tuff that wouldn’t make 8 it safe for children to be playing around.” Upon entering the house, the officer stated 9 hat the house was dirty and cluttered, and there was “an overwhelming sense of . . . 10 a stink in the air from old food, dirty diapers, just overall being dirty.” The officer 11 described a pot “on the counter that had a little bit of . . . [n]oodles in it[] and liquid, 12 more like it was water that they’d cooked the noodles in this electric . . . cooker. 13 It had been there for a while. . . . It was dried up, but there still was some moisture 14 in it indicating to me that recently within the last day or so there [were] people in 15 there that had eaten from that [pot].” The officer further stated that there were 16 “piles of dirty dishes [and] that . . . some of them had been sitting there for a long 17 time. There [were] beer cans [and] beer bottles throughout the kitchen.” Broken 18 glass had been swept into a pile in the kitchen, and more broken glass was inside a 19 pitcher. There was trash along the baseboard of the kitchen, no heat or hot water in 20 the house, multiple stains on the carpet, trash, dirty diapers and clothes on the floor

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1 in the bedrooms, and a child’s car seat and more dirty clothes in the living room. The 2 officer stated that the clothes were piled up so high in one of the bedrooms that he 3 could only get the door open halfway. After seeing the residence, the officer was 4 concerned for the health and safety of the children. 5 Officer Storseth left the house after ninety minutes. In an attempt to contact 6 Defendant, the officer went to Defendant’s mother’s house. Although unable to locate 7 Defendant, the officer noticed, on the front porch, a black hibachi-type grill with 8 yellow paint splattered on it that was the same color of splattered paint he had 9 observed at Bailey’s house in the living room on the television and entertainment 10 center. 11 The next day, October 21, 2004, while driving to Bailey’s house, in a further 12 attempt to locate Defendant, Officer Storseth passed a vehicle driven by Sides in 13 which Defendant was in the passenger seat, and the four children were in the back. 14 The officer testified that after pulling the vehicle over, the officer noticed that the 15 children were not in car seats or wearing seat belts. The officer then contacted his 16 sergeant to have him contact Martinez, who arrived on the scene and took the children 17 “for placement.” Martinez testified that when he arrived to take custody of the 18 children, Defendant told him that the family was living at Bailey’s house. 19 II. DISCUSSION

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1 Defendant disputes that a rational jury could have found, beyond a reasonable 2 doubt, the essential facts required to support a conviction of four counts of child 3 endangerment. Defendant argues that three counts of child endangerment should be 4 vacated because all four counts are based on unitary conduct and, allowing them to 5 stand, would violate federal and state constitutional protections against double 6 jeopardy. We address each issue in turn. 7 A. Child Endangerment 8 Under our standard of review, if reasonable minds could differ on whether 9 Defendant’s acts placed the children in a situation whereby a reasonable probability 10 existed that their health or lives would be endangered, the reviewing court will defer 11 to the factfinder all conflicts in evidence and weight accorded to the testimony of 12 witnesses. State v. Ungarten, 115 N.M. 607, 610, 856 P.2d 569, 572 (Ct. App. 1993). 13 “We view the evidence as a whole and indulge all reasonable inferences in favor of 14 the jury’s verdict.” State v. Graham, 2005-NMSC-004, ¶ 13, 137 N.M. 197, 109 P.3d 15 285. We shall not “substitute our judgment for that of the factfinder concerning the 16 credibility of witnesses or the weight to be given their testimony.” Id. ¶ 11 (internal 17 quotation marks and citation omitted). An appellate court will only reject testimony 18 believed by a factfinder “if there is a physical impossibility that the statements are 19 true[,] or the falsity of the statement is apparent without resort to inferences or 20 deductions.” Id. (internal quotation marks and citation omitted). “Contrary evidence

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1 supporting acquittal does not provide a basis for reversal because the jury is free to 2 reject [a d]efendant’s version of the facts.” State v. Chavez, 2008-NMCA-126, ¶ 8, 3 145 N.M. 11, 193 P.3d 558 (alteration in original) (internal quotation marks and 4 citation omitted), rev’d on other grounds, 2009-NMSC-035, ___ N.M. ___, ___ P.3d 5 ___ (No. 31,202, June 23, 2009). 6 To the extent that we must interpret our criminal child endangerment statute, 7 that presents a question of law, which is reviewed de novo. See State ex rel. Children, 8 Youth & Families Dep’t v. Shawna C., 2005-NMCA-066, ¶ 24, 137 N.M. 687, 114 9 P.3d 367. Statutes defining criminal conduct are strictly construed. Santillanes v. 10 State, 115 N.M. 215, 221, 849 P.2d 358, 364 (1993). “A criminal statute may not be 11 applied beyond its intended scope, and it is a fundamental rule of constitutional law 12 that crimes must be defined with appropriate definiteness.” Id. 13 To be convicted, the jury must find the defendant guilty beyond a reasonable 14 doubt of every essential element. See State v. Guzman, 2004-NMCA-097, ¶ 16, 136 15 N.M. 253, 96 P.3d 1173. Section 30-6-1(D)(1) states, in pertinent part, that “[a]buse 16 of a child consists of a person knowingly, intentionally or negligently, and without 17 justifiable cause, causing or permitting a child to be . . . placed in a situation that may

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1 endanger the child’s life or health.” The jury was instructed on two different theories 2 of child endangerment: permitted and caused. See UJI 14-604 NMRA; UJI 14-605 3 NMRA. To convict under the theory of caused child abuse (endangerment without 4 great bodily harm or death), the State was required to prove beyond a reasonable 5 doubt that (1) Defendant caused the children to be placed in a situation which 6 endangered their life or health; (2) Defendant acted intentionally or with reckless 7 disregard, meaning that he knew, or should have known, that his conduct created a 8 substantial and foreseeable risk, and he disregarded that risk and was wholly 9 indifferent to the consequences of the conduct and to the welfare and safety of the 10 children; (3) the children were under the age of eighteen; and (4) the conduct took 11 place on or between October 20 and 21, 2004 in New Mexico. UJI 14-604. To 12 convict under the theory of permitting child abuse (endangerment without great bodily 13 harm or death), the State would have had to prove that (1) Defendant permitted the 14 children to be placed in a situation which endangered their lives or health; (2) 15 Defendant acted intentionally or with reckless disregard, meaning that he knew, or 16 should have known, his conduct created a substantial and foreseeable risk, and he 17 disregarded that risk and was wholly indifferent to the consequences of the conduct 18 and to the welfare and safety of the children; (3) Defendant was a parent, guardian, 19 or custodian of the children, or that he had accepted responsibility for the children’s 20 welfare; (4) the children were under the age of eighteen; and (5) the conduct took

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1 place on or between October 20 and 21, 2004 in New Mexico. UJI 14-605. It is 2 unclear from the verdict forms under which theory Defendant was convicted. 3 However, we conclude that the evidence was sufficient to convict under either theory. 4 5 A jury could conclude that Defendant knew, or should have known, of the 6 dangers of allowing the children to be in that environment. Most convincing of that 7 knowledge was Defendant’s agreement with the testimony of the State’s witness that 8 the house was not “a safe, healthy condition for children to be living in[.]” Defendant 9 admits that he was arguably “put on notice” by earlier CYFD referrals/interactions. 10 Defendant maintains, however, that the house in question was not his, and that there 11 was “no evidence that any member of the family spent the night at the home in 12 question.” We assume that Defendant’s argument is that there was no proof that the 13 family spent the night at the house on October 20 and 21, 2004. First, Section 30-6- 14 1(D)(1) does not require ownership in title of property for a conviction. Second, 15 Defendant stated that he and the children stayed the night there on at least three 16 occasions. That admission, combined with other evidence, could lead a jury to 17 conclude that Defendant and the children were there on the nights in question. 18 Moreover, the statute does not require that Defendant and the children spend the 19 night in a hazardous environment in order for the children to be “placed in a 20 situation that may endanger the child[ren]’s [lives] or health.” Section 30-6-1(D)(1).

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1 While we decline to rule on how much time is necessary to expose a child to a 2 hazardous environment before a conviction under Section 30-6-1(D)(1) will be 3 sustained, we note that New Mexico courts have held in the past that the placement 4 of a child in the direct line of physical danger can happen quickly. See Ungarten, 115 5 N.M. at 608, 856 P.2d at 570 (upholding conviction where knife wielded by the 6 defendant came close to the child’s body); see also State v. McGruder, 7 1997-NMSC-023, ¶¶ 37-38, 123 N.M. 302, 940 P.2d 150 (upholding conviction where 8 the defendant aimed a gun at, and threatened to shoot, the child’s mother when the 9 child was behind the mother, putting the child in a direct line of physical danger); 10 Chavez, 2009-NMSC-035, ¶ 36 (holding that the length of time that conditions are 11 allowed to exist is a factor that can increase or mitigate the degree of risk involved). 12 Defendant testified that he told Bailey they were living there because that was what 13 he wanted her to think. He testified that he had been there on at least four occasions 14 when she came by, that he went there occasionally to check on the house, and that he 15 guessed that Sides was probably going there in the middle of the day “to get away,” 16 presumably with the two younger children. Officer Storseth testified that while he 17 was en route to the house on October 21, 2004, he encountered the family driving in 18 the opposite direction. Martinez and Bailey testified that Defendant had told them that 19 he and his family were living there. The circumstantial evidence was that someone 20 had cooked there recently, left diapers there, and the two older children came to that

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1 house after school, all lending credence to the inference that Defendant and the 2 children were living there or, at the very least, spending ample time at the house and 3 were there on the days in question. See Graham, 2005-NMSC-004, ¶¶ 10, 14 (holding 4 that reasonable inferences can be drawn from direct and circumstantial evidence). 5 Although Defendant disputes that they were living there, a rational jury could have 6 concluded that the family was indeed staying there. “In reviewing the sufficiency of 7 evidence used to support a conviction, we resolve all disputed facts in favor of the 8 State, indulge all reasonable inferences in support of the verdict, and disregard all 9 evidence and inferences to the contrary.” State v. Rojo, 1999-NMSC-001, ¶ 19, 126 10 N.M. 438, 971 P.2d 829 (filed 1998). Whether Defendant and the children were 11 sleeping at the house misses the point of whether the children were endangered by 12 being in that environment on the days in question. 13 Defendant also claims that there was no evidence that any of the children were 14 left unattended around any of the dangers in the house. The State argues that one of 15 the children was observed picking up beer bottles unattended when she came home 16 from school. Even if the children were supervised, they could still be injured easily 17 and quickly by any of the hazards in the house. A jury could reasonably infer that the 18 children were endangered in that environment and were more endangered the longer 19 they were exposed to the conditions, regardless of a specific showing of the children 20 being unattended and having their lives, health, or safety jeopardized. See id.; see also

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1 Chavez, 2009-NMSC-035, ¶ 36 (holding that the amount of supervision in a home is 2 a factor that can increase or mitigate the degree of risk involved). “A reviewing court 3 may neither reweigh the evidence nor substitute its judgment for that of the jury.” 4 State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). 5 Citing to State v. Jensen, 2006-NMSC-045, ¶ 14, 140 N.M. 416, 143 P.3d 178, 6 Defendant contends that “[w]hen filthy living conditions provide the exclusive basis 7 for charging a defendant with child endangerment, the [s]tate must assist the trier of 8 fact with evidence that supports a finding that there is a reasonable probability or 9 possibility that such filthy conditions endangered the child.” Defendant argues that 10 the State never connected any harm, or risk of harm, to the children from the 11 conditions of the home. Defendant argues that, unlike Jensen, the State introduced no 12 evidence upon which a rational jury could have found that his conduct posed a risk of 13 harm. 14 We initially note that in light of Chavez, which was decided while this case was 15 on appeal, the standard has now become a “substantial and foreseeable risk” that 16 filthy conditions endanger a child. 2009-NMSC-035, ¶¶ 21-22, 31 (internal quotation 17 marks and citation omitted). We make two observations. First, this case is not 18 exclusively about filthy living conditions. Officer Storseth testified that when he 19 encountered the family on October 21, 2004, the four children were in the back seat 20 of a vehicle and were not wearing seat belts. In Chavez, our Supreme Court noted that

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1 an endangerment charge premised on a combination of risks, including filthy living 2 conditions and criminal acts, can have a cumulative effect. Id. ¶ 30. “Where a 3 defendant’s underlying conduct violates a separate criminal statute, such legislative 4 declaration of harm may be useful, though not dispositive, to an endangerment 5 analysis when the Legislature has defined the act as a threat to public health, safety, 6 and welfare.” Id. ¶ 25; see NMSA 1978, § 66-7-369(A) (2001) (amended 2005) (“A 7 person shall not operate a passenger car, van or pickup truck in this state . . . unless 8 all passengers less than eighteen years of age are properly restrained.”); see also 9 Graham, 2005-NMSC-004, ¶ 12 (noting that the Legislature’s designation of 10 marijuana as a Schedule I controlled substance and increased penalties for distributing 11 marijuana to minors or in the vicinity of schools, all illustrate a legislative 12 determination that marijuana is a dangerous substance, particularly for minors). 13 Second, the jury did hear testimony that assisted them in determining whether 14 there was a substantial and foreseeable threat of serious injury. See Chavez, 15 2009-NMSC-035, ¶ 35. Martinez testified that he had concerns for the health and 16 safety of the children based on what he observed at the house. He specifically noted 17 that his concern was based on the trash in the house, the spoiled food, a bicycle that 18 was precariously placed against a wall that could fall on a crawling child, lack of food 19 in the house, five bags of garbage or other debris that could cause “trip hazards,” 20 barbeque grills, sharp objects, and broken windows. Officer Storseth testified that the

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1 yard was not a safe place for a child to play, that it did not appear that there was 2 enough food in the house for the children to eat, and that there was no hot water or 3 heat. Additionally, the State argues that harm from other dangers were apparent and 4 required no explanation. We agree. No explanation about how broken glass on the 5 floor could hurt a young, crawling child would need to be explained to a jury. See id. 6 ¶ 24 (discussing endangerment cases where the seriousness of the threatened injury 7 is apparent); Dull v. Tellez, 83 N.M. 126, 128, 489 P.2d 406, 408 (Ct. App. 1971) 8 (defining a reasonable inference as “a rational and logical deduction from facts 9 admitted or established by the evidence, when such facts are viewed in light of 10 common knowledge or common experience”). 11 This Court is unpersuaded by Defendant’s assertion that the verdicts were based 12 on the speculation of potential harm. Citing to State v. Massengill, 2003-NMCA-024, 13 ¶¶ 43-48, 133 N.M. 263, 62 P.3d 354 (filed 2002), Defendant argues that his conduct 14 was not intended to be covered by the child abuse statute. Defendant’s argument is 15 that parents with unsanitary and unsafe homes should not be convicted of a third- 16 degree felony because there is recourse for the State under the civil code. Further, 17 Defendant argues that his conduct did not rise to the level of criminal liability. We 18 conclude that reliance on Massengill in this context is misplaced. 19 Massengill concerned a baby stroller that fell off a sidewalk and tipped over, 20 an accidental situation far different from the situation here. See id. ¶ 44. In Chavez,

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1 our Supreme Court discussed the difference between civil and criminal laws that 2 address child abuse. 2009-NMSC-035, ¶¶ 12-26. That opinion clearly held that filthy 3 living conditions alone may, in some circumstances, rise to the level of being criminal 4 in nature. Id. ¶¶ 27, 31, 40. “Child abuse by endangerment, as opposed to physical 5 abuse of a child, is a special classification designed to address situations where an 6 accused’s conduct exposes a child to a significant risk of harm, even though the child 7 does not suffer a physical injury.” Id. ¶ 15 (emphasis omitted) (internal quotation 8 marks and citation omitted). “[T]here are several factors the factfinder may consider 9 to determine whether the risk created by an accused’s conduct is substantial and 10 foreseeable.” Id. ¶ 23. Not every risk of injury will rise to the level of felony child 11 endangerment. Id. ¶ 35. However, a child’s particular susceptibility to a harm is a 12 factor that a jury can consider in determining if child abuse has occurred. Id. The 13 State is required to establish that the risks of the home in question are “far greater than 14 those in the average home.” Id. 15 Our Supreme Court noted that evidence of past civil actions can put a defendant 16 on notice of the potential for criminal prosecution. Id. ¶ 42. In the immediate case, 17 Martinez testified that as an investigator for CYFD, he was aware of four referrals 18 regarding Defendant and his family living in other residences in Alamogordo. 19 Martinez testified that, following the first referral, he met with Defendant and Sides, 20 and they were declining services. Following the second referral, Martinez gave

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1 Defendant his card, presumably to assist Defendant in getting services for his family, 2 but Defendant never contacted him. After the third referral, the determination was 3 made to provide the family with in-home services, which focused on assisting the 4 family in getting utilities and concentrated on issues such as housekeeping, basic child 5 care, nutrition, cleanliness, parental responsibilities, and the security needs of the 6 children. Martinez testified further that there was a fourth referral that he was aware 7 of on which he was not the assigned caseworker/investigator. There is no need for the 8 State to exhaust all of its civil remedies before turning to a criminal sanction. Id. ¶ 43. 9 The State did have meaningful interaction with Defendant concerning the care of the 10 children. 11 We underscore that, in this case, the jury heard testimony about Defendant 12 being in a vehicle with the children unrestrained in the back seat on October 21, 2004, 13 as well as testimony about the house in question. Defendant engaged in a per se 14 unlawful act that bolsters his endangerment charges. Id. ¶ 31. Evidence was 15 presented to the jury about the incident in the vehicle, the living conditions, and the 16 past interactions with CYFD. The jury convicted Defendant of criminal child 17 endangerment and, under this Court’s standard of review, we will not reweigh the 18 evidence. 19 B. Unit of Prosecution

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1 This Court holds that Defendant was involved in one continuous act of 2 indifference and endangerment of the children and, accordingly, we vacate three 3 counts of child endangerment. In a very similar case, this Court held that a father 4 that had been convicted on multiple counts due to the living conditions of multiple 5 children should have been convicted on only one count on the premise that the 6 crime was a singular, continuous course of conduct. Chavez, 2008-NMCA-126, ¶¶ 7 17-21. Similarly, the conduct here is not sufficiently separated in time and space to 8 warrant separate convictions. 9 When an accused is charged with multiple violations of a statute and raises a 10 double jeopardy challenge, we must determine whether the intent of the Legislature 11 was to permit multiple charges and punishments under the circumstances of the case. 12 Id. ¶ 18. Section 30-6-1 does not define the unit of prosecution, so this Court must 13 determine whether the “different offenses are separated by sufficient indicia of 14 distinctness.” State v. Castañeda, 2001-NMCA-052, ¶ 13, 130 N.M. 679, 30 P.3d 368 15 (internal quotation marks and citation omitted). “[S]ingle-statute[,] unit-of- 16 prosecution issues should be decided on a case-by-case basis.” Id. ¶ 15. 17 The State concedes that Defendant’s convictions were “premised on a singular, 18 albeit continuous, course of conduct that amounts to child abuse by endangerment.” 19 The State agrees that under Castañeda and Chavez, Defendant’s conduct with regard 20 to the four children constituted only one count of child abuse by endangerment. We

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1 accept the State’s constrained concession and decline to reconsider Castañeda and 2 Chavez. 3 III. CONCLUSION 4 We affirm one conviction under Section 30-6-1(D)(1) and remand with 5 instructions to the district court to vacate the remaining three convictions under that 6 statute and for appropriate sentencing. 7 IT IS SO ORDERED.

8 _______________________________ 9 ROBERT E. ROBLES, Judge

10 WE CONCUR:

11 ___________________________ 12 JAMES J. WECHSLER, Judge

13 ___________________________ 14 JONATHAN B. SUTIN, Judge