State v. Vasquez

542 P.3d 806

2024-NMCA-020

STATE of New Mexico, Plaintiff-Appellee,

v.Adrian D. VASQUEZ a/k/a Adrian Dion Vasquez, Defendant-Appellant.

No. A-1-CA-40597

Court of Appeals of New Mexico.

Filing Date: December 4, 2023

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY, Angie K. Schneider, District Court Judge

Raúl Torrez, Attorney General, Santa Fe, NM, Leland M. Churan, Assistant Attorney General, Albuquerque, NM, for Appellee

Bennett J. Baur, Chief Public Defender, Nina Lalevic, Assistant Appellate Defender, Santa Fe, NM, for Appellant

OPINION

WRAY, Judge.

{1} Defendant was convicted on multiple charges after entering a home with two other individuals—all three of them armed—to confront another individual about a romantic entanglement. The individual was not there, only three other teenagers, whom Defendant and the others kept in the home, with weapons drawn, in anticipation of a confrontation that never occurred. A jury convicted Defendant on eight counts: aggravated burglary with a deadly weapon, conspiracy, three counts of false imprisonment, and three counts of aggravated assault with a deadly weapon. At sentencing, the district court applied firearm enhancements, found aggravating circumstances, suspended a portion of the sentence, and ultimately sentenced Defendant to thirty years in prison. On appeal, Defendant argues that six of the convictions violate double jeopardy and that the district court abused its discretion in aggravating and enhancing the sentence. As to double jeopardy, we conclude that three of the convictions must be vacated, because Defendant’s conduct was unitary and based on the State’s theory of the present case, the Legislature did not intend to create separately punishable offenses. As to sentencing, we affirm in large part the district court’s aggravation of Defendant’s sentence but hold that whether Defendant "was armed" should not have been an aggravating factor in the present circumstances. We reverse and remand for resentencing.

BACKGROUND

{2} J.S., who was seventeen years old at the time of the incident, testified that at about nine-forty-five or ten o’clock in the evening, she left her home to visit her boyfriend next door. She left the door unlocked, and left two friends, N.T. and N.Y., inside the home. After N.Y. and N.T. were left alone, Defendant walked into the room, and N.Y. did not know how Defendant got into the house. N.T. greeted Defendant and asked why he was there, Defendant pulled out a gun and said he was looking for another friend of theirs, T.B., whom Defendant believed had been sexually involved with A.C., Defendant’s girlfriend. Defendant called for two other individuals to come into the room, and those two people also had guns. During this time, Defendant directed N.Y. and N.T. to sit down and the doors were locked. With weapon in hand, Defendant ordered N.Y. and N.T. to put their cell phones on a table.

{3} When J.S. returned ten minutes later, the deadbolt was locked, and she banged on the door. Inside, Defendant told N.T. to open the door, and when N.T. opened the door, he told J.S. "there w[ere] people with guns in the house." J.S. did not believe N.T. and came inside. Once J.S. entered the "den area," where N.T. and N.Y. were seated, Defendant ordered her to sit down and put her cell phone on the table. J.S. testified that Defendant told them that he was "pretty much here to beat up [T.B.], shoot him … we’re just waiting for [T.B.] to get here." T.B. eventually called J.S.’s cell phone. Defendant held the gun to J.S.’s head and told her to answer the phone and tell T.B. to come inside. J.S. answered the phone and spoke with T.B. After the call, J.S. asked to go to the bathroom and escaped to the house next door for help. Defendant and the two other individuals left before the police arrived. T.B. did not come inside, and no one was physically injured.

{4} The jury convicted Defendant for each of the eight charged counts. The jury was additionally requested to find—and did find—that Defendant brandished a firearm for each charge, except the conspiracy charge. Defendant waived the right to have a jury decide aggravating circumstances, and at a later hearing, the district court found aggravating circumstances for five of the convictions, omitting only the three convictions for aggravated assault with a deadly weapon. The district court additionally enhanced all of Defendant’s sentences based on the brandishing of a firearm during the commission of the crimes. Defendant received a sentence of fifty and one-half years, with twenty and one-half years suspended. Defendant appeals.

DISCUSSION

{5} Defendant raises three issues on appeal: (1) the punishment for each of the six convictions—arising from the three aggravated assault charges and the three false imprisonment charges—violates double jeopardy protections; (2) the district court relied on improper evidence to aggravate the basic sentences for Defendant’s convictions; and (3) the district court did not instruct the jury to make the requisite findings to support the firearm enhancement for the conspiracy conviction. See NMSA 1978, § 31-18-16(A) (1993, amended 2022) (requiring a "separate finding of fact by the court or jury" to enhance the basic sentence based on the brandishing of a firearm during the commission of a noncapital felony). The State concedes that the firearm enhancement for the conspiracy charge was not submitted to the jury, and having reviewed the record, we accept the State’s concession. See State v. Serrato, 2021-NMCA-027, ¶ 13, 493 P.3d 383 (accepting the state’s concession after review). We begin the remainder of our review with the double jeopardy arguments.

I. Defendant’s Punishment Based on Convictions for Aggravated Assault With a Deadly Weapon and False Imprisonment Violate Double Jeopardy Protections Under These Circumstances

[1, 2] {6} The constitutional prohibition against double jeopardy protects against both subsequent prosecutions and multiple punishments, and we review these issues de novo. State v. Begaye, 2023-NMSC-015, ¶¶ 12, 533 P.3d 1057 (internal quotation marks and citation omitted); see U.S. Const. amend. V; N.M. Const. art. II, § 15. The present case involves a multiple punishment scenario, and more specifically, a "double-description" claim in which Defendant argues that multiple punishments for convictions under different statutes were impermissibly based on the same, unitary conduct. See Begaye, 2023-NMSC-015, ¶ 12, 533 P.3d 1057. For this analysis, we use a two-part test to first evaluate whether the conduct underlying the offenses is unitary and second determine whether the "[L]egislature intended to create separately punishable offenses." Id ¶¶ 11, 13 (internal quotation marks and citation omitted). Defendant contends that the convictions violate double jeopardy protections because (1) the conduct was "one, continuing act of restraint by gunpoint"; and (2) the Legislature did not intend for multiple punishments under these circumstances because the State used the same evidence to prove both crimes. Because both inquiries require us to consider the elements of the charged crimes, we first review the statutory elements of aggravated assault with a deadly weapon and false imprisonment. See State v. Sena, 2020-NMSC-011, ¶ 46, 470 P.3d 227 (considering "the elements of the charged offenses" in the unitary conduct inquiry); Begaye, 2023-NMSC-015, ¶¶ 22, 24, 533 P.3d 1057 (considering the statutory elements of the charged offenses to evaluate legislative intent).

{7} In relevant part, the aggravated assault statute outlines three ways to commit the crime, by (1) "unlawfully assaulting or striking at another with a deadly weapon"; (2) "committing assault by threatening or menacing another while wearing a mask, hood, robe or other covering upon the face, head or body, or while disguised in any manner, so as to conceal identity"; or (3) "willfully and intentionally assaulting another with intent to commit any felony." NMSA 1978, § 30-3-2(A)-(C) (1963). Our Legislature has separately defined "assault," in relevant part, as "an attempt to commit a battery upon the person of another"; or "any unlawful act, threat or menacing conduct which causes another person to reasonably believe that [they are] in danger of receiving an immediate battery." NMSA 1978, § 30-3-1(A), (B) (1963); see also NMSA 1978, § 30-3-4 (1963) (defining "battery" as "the unlawful, intentional touching or application of force to the person of another, when done in a rude, insolent or angry manner"). The false imprisonment statute states in its entirety, "False imprisonment consists of intentionally confining or restraining another person without [their] consent and with knowledge that [there is] no lawful authority to do so." NMSA 1978, § 30-4-3 (1963). With this statutory background, we turn to the double jeopardy analysis and "first ask whether the conduct was unitary, meaning whether the same criminal conduct is the basis for both charges." State v. Reed, 2022-NMCA-025, ¶ 8, 510 P.3d 1261 (internal quotation marks and citation omitted), cert. denied (S-1-SC-39187, May 3, 2022).

A. Defendant’s Conduct Was Unitary

[3–6] {8} The unitary conduct inquiry "turns on sufficient indicia of distinctness between the acts at issue," id. ¶ 9 (internal quotation marks and citation omitted), and "depends to a large degree on the elements of the charged offenses and the facts presented at trial." State v. Porter, 2020-NMSC-020, ¶ 12, 476 P.3d 1201 (internal quotation marks and citation omitted). We focus on Defendant’s conduct to determine whether the acts were distinct from each other: "Conduct is not unitary, rather it is separate and distinct, when space and time separates the events." See Reed, 2022-NMCA-025, ¶ 9, 510 P.3d 1261. Sometimes, however, we must make other inquiries or look to other sources to identify the significant conduct. See Sena, 2020-NMSC-011, ¶ 46, 470 P.3d 227 (identifying other considerations...