State v. Mendez

1

STATE OF NEW MEXICO, Plaintiff-Appellee, v. EDGAR ALEJANDRO MENDEZ, Defendant-Appellant.

No. A-1-CA-40445

Court of Appeals of New Mexico

September 10, 2024

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY Mary Marlowe Sommer, District Court Judge.

Raúl Torrez, Attorney General Santa Fe, NM Michael J Thomas, Assistant Attorney General Albuquerque, NM for Appellee.

Harrison & Hart, LLC Nicholas T. Hart Albuquerque, NM for Appellant

MEMORANDUM OPINION

GERALD E. BACA, Judge.

{¶1} Defendant Edgar Alejandro Mendez was convicted in the First Judicial District Court, in Santa Fe County, of multiple charges arising out of two separate incidents: a motor vehicle accident occurring on June 7, 2018, and an altercation with police officers a week later on June 13, 2018.^[1] On appeal, Defendant argues the following: (1) several of his convictions related to the June 13 incident violate double jeopardy; (2) the jury instructions for the charges of accidents involving death or personal injuries omitted an essential element; (3) Defendant was coerced into waiving his right to a speedy trial; (4) Defendant was deprived of his right to enter into a conditional plea agreement; and (5) the district court lacked jurisdiction to sentence Defendant as a habitual offender.

{¶2} Agreeing with Defendant that his right to be free from double jeopardy was violated, we reverse Defendant's convictions for resisting or abusing an officer as charged in Counts 11 and 13 of the amended grand jury indictment and otherwise affirm his remaining convictions.

DISCUSSION

{¶3} Because this is an unpublished, memorandum opinion written solely for the benefit of the parties, and the parties are familiar with the factual and procedural background of this case, we omit a background section and discuss the facts only as necessary to our analysis of the issues.

{¶4} For the June 7 motor vehicle accident, Defendant was convicted of one count of homicide by vehicle, contrary to NMSA 1978, Sections 66-8-101(A), (D) (2016) and 66-8-113 (1987); one count of great bodily harm by vehicle, contrary to Sections 66-8-101(B), (E) and 66-8-113; two counts of accidents involving death or personal injuries, contrary to Section 66-7-201(C) (1989); and two counts of failure to give immediate notice of accidents, contrary to Section 66-7-206 (1991, amended 2021). On appeal, Defendant argues that the jury was not instructed as to an essential element of the two charges related to accidents involving death or personal injuries.

{¶5} For the June 13 incident, Defendant was convicted of one count of aggravated battery upon a peace officer, contrary to NMSA 1978, Section 30-22-25(C) (1971); two counts of aggravated assault upon a peace officer, contrary to NMSA 1978, Section 30-22-22(A)(1) (1971); one count of evading an officer, contrary to NMSA 1978, Section 30-22-1(B) (1981);^[2] two counts of resisting or abusing an officer, contrary to Section 30-22-1(D) (1981); and one count of concealing identity, contrary to NMSA 1978, Section 30-22-3 (1963). On appeal, Defendant argues that his convictions for resisting, evading, abusing or obstructing an officer and his convictions for aggravated battery upon a peace officer and aggravated assault upon a peace officer are based on the same conduct and violate his double jeopardy rights.

{¶6} Independently, Defendant argues that he was unconstitutionally coerced into waiving his right to a speedy trial and was prevented from entering into a plea agreement, which would have resulted in a shorter sentence. Consequently, Defendant requests that all his convictions be vacated. Lastly, Defendant argues that the district court lacked subject matter jurisdiction to sentence him as a habitual offender, and that his sentence should be reduced accordingly.

{¶7} We address each of Defendant's arguments beginning with his double jeopardy argument.

I. Double Jeopardy

{¶8} Defendant argues that his convictions for resisting, evading, abusing or obstructing an officer and his convictions for aggravated battery upon a peace officer and aggravated assault upon a peace officer violate double jeopardy. "Aggravated battery upon a peace officer consists of the unlawful touching or application of force to the person of a peace officer with intent to injure that peace officer while [they are] in the lawful discharge of [their] duties," and any person who does so "with a deadly weapon or in any manner whereby great bodily harm or death can be inflicted, is guilty of a third[-]degree felony." Section 30-22-25(A), (C). Aggravated assault upon a peace officer consists of "unlawfully assaulting or striking at a peace officer with a deadly weapon while he is in the lawful discharge of his duties." Section 30- 22-22(A)(1). Resisting, evading, abusing, or obstructing an officer consists, in relevant part, of

B. [I]ntentionally fleeing, attempting to evade or evading an officer of this state when the person committing the act of fleeing, attempting to evade or evasion has knowledge that the officer is attempting to apprehend or arrest [them];

. . . .

D. [R]esisting or abusing any . . . peace officer in the lawful discharge of [their] duties. Section 30-22-1(B), (D).

A. Standard of Review

{¶9} This Court reviews double jeopardy challenges de novo. State v. Begaye, 2023-NMSC-015, ¶ 11, 533 P.3d 1057. Defendant's challenge falls into the category of "double description" cases, in which a defendant is charged with violations of multiple criminal statutes premised on the same alleged course of conduct. See State v. DeGraff, 2006-NMSC-011, ¶ 25, 139 N.M. 211, 131 P.3d 61. For "double description" cases, a two-part test applies asking whether (1) the conduct was unitary, i.e., the same conduct violated multiple statutes, and (2) the Legislature intended to allow for separate punishments. Swafford v. State, 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223. "Only if the first part of the test is answered in the affirmative, and the second in the negative, will the double jeopardy clause prohibit multiple punishment in the same trial." Id.

B. Unitary Conduct

{¶10} In determining whether conduct was unitary, "we look to whether [the] defendant's acts have sufficient indicia of distinctness." State v. Contreras, 2007-NMCA-045, ¶ 21, 141 N.M. 434, 156 P.3d 725 (internal quotation marks and citation omitted); see DeGraff, 2006-NMSC-011, ¶ 27. To determine whether Defendant's actions were sufficiently distinct, we apply six factors identified in Herron v. State, 1991-NMSC-012, ¶ 15, 111 N.M. 357, 805 P.2d 624. See State v. Phillips, 2024-NMSC-009, ¶ 38, 548 P.3d 51 (applying the Herron factors "in the double description analysis to determine whether a defendant's acts are unitary or distinct"). The six Herron factors include: "(1) temporal proximity of the acts, (2) location of the victim during each act, (3) the existence of intervening events, (4) the sequencing of the acts, (5) the defendant's intent as evidenced by his conduct and utterances, and (6) the number of victims." Phillips, 2024-NMSC-009, ¶ 12. Where it is clear that the conduct is "not sufficiently separated by time or place, and the object and result or quality and nature of the acts cannot be distinguished," then the conduct is unitary. State v. Silvas, 2015-NMSC-006, ¶ 10, 343 P.3d 616.

{¶11} This Court also looks to "the elements of the charged offenses, the facts presented at trial, and the instructions given to the jury" as well as "whether the facts presented at trial establish that the jury reasonably could have inferred independent factual bases for the charged offenses" to aid in our analysis of distinctness. State v. Vasquez, 2024-NMCA-020, ¶ 8, 542 P.3d 806 (internal quotation marks and citation omitted); see State v. Sena, 2020-NMSC-011, ¶ 46, 470 P.3d 227 (considering the elements of the crimes, the facts presented at trial, and the instructions given to the jury); DeGraff, 2006-NMSC-011, ¶¶ 28-30 (considering the statutory definition of the crime, the instructions given to the jury, and the evidence presented at trial). Evidence that one crime was complete before the other began also indicates that the conduct at issues is not unitary. See Sena, 2020-NMSC-011, ¶ 46. After "identify[ing] the criminal acts and the conduct at issue . . . if it reasonably can be said that the conduct is unitary, then we must conclude that the conduct was unitary." State v. Porter, 2020-NMSC-020, ¶ 12, 476 P.3d 1201 (alteration, internal quotation marks, and citation omitted).

{¶12} The following facts formed the basis of Defendant's convictions resulting from his interactions with police on June 13, 2018. On that date, Santa Fe Police Department Officer Derick Romero observed Defendant behaving erratically on Cerrillos Road. Officer Romero conducted a welfare check on Defendant, who told the officer that he was fine. After Officer Romero concluded this initial interaction with Defendant, the officer continued to observe Defendant, at which point he saw Defendant run across Cerrillos Road nearly being struck by a motor vehicle. Upon observing Defendant jaywalk, Officer Romero again approached Defendant. As Officer Romero approached, Defendant fled, and Officer Romero pursued. While he was fleeing from Officer Romero, Defendant picked up rocks and a piece of cinder block. Officer Romero pursued Defendant into a field, where Defendant threw a rock at the officer. Officer Romero repeatedly commanded Defendant to drop the objects and stop...