State v. Lorenzo

                                                                   Office of the
                                                                                         New Mexico
                                                                       Director          Compilation
                                                                                         Commission
                                                                    2024.04.11
                                                               '00'06- 16:44:13
             IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: January 16, 2024

No. S-1-SC-39355

STATE OF NEW MEXICO,

       Plaintiff-Respondent,

v.

RAMON LORENZO,

       Defendant-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI
Amanda Sanchez Villalobos, District Judge

Bennett J. Baur, Chief Public Defender
Kimberly Chavez Cook, Appellate Defender
Mark A. Peralta-Silva, Assistant Appellate Defender
Santa Fe, NM

for Petitioner

Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
Santa Fe, NM

for Respondent

                                      OPINION

THOMSON, Justice.

{1}    We consider whether convictions of both the armed robbery of a diner and the
aggravated battery of the diner’s owner violate a defendant’s right to be free from
double jeopardy. We conclude that the conduct underlying both charges was unitary
and that the State used evidence of the same force—a shooting which occurred during
the robbery—to prove both convictions. Because the Legislature did not intend to allow
multiple punishments for the same conduct, we hold that the convictions violate double
jeopardy.
I.      BACKGROUND

{2}    On March 23, 2013, in Milan, New Mexico, there was a knock on the back door
of the WOW Diner shortly after closing time. The owner, Richard Rivard (Victim),
answered the door and was confronted by two former employees, Ramon Lorenzo
(Defendant) and Leo Galindo, both holding guns. Victim tried to close the door, but the
intruders overpowered him, pushing him back about ten feet. Defendant pointed a gun
between Victim’s eyes and said, “Where’s the money?” Looking down the gun’s barrel,
Victim saw the hammer cocked back with Defendant’s finger on the trigger. Victim
“grabbed the gun, pulled [his] head back [, but] the gun went off,” shooting him in the
face. He fell to the ground. Defendant and Galindo demanded to know where they
would find the money as they searched the nearby office. They fled with about $1,800.
Victim survived the shooting.

{3}    A grand jury indicted Defendant on charges of armed robbery, conspiracy to
commit armed robbery, aggravated burglary, conspiracy to commit aggravated burglary,
aggravated battery by a deadly weapon, conspiracy to commit aggravated battery by a
deadly weapon, tampering with evidence, and conspiracy to commit tampering with
evidence. A felony failure to appear (FTA) charge was added when Defendant did not
show up to his first trial date. A jury convicted Defendant of all counts except tampering
with evidence and conspiracy to commit tampering with evidence, resulting in a
sentence of twenty-six and one-half years.

{4}    Defendant appealed, raising seven issues. State v. Lorenzo, A-1-CA-36648,
mem. op. ¶ 2 (N.M. Ct. App. Mar. 24, 2022) (nonprecedential). The Court of Appeals
rejected six of Defendant’s arguments, but reversed and remanded to the district court
to vacate two of the conspiracy convictions on double jeopardy grounds. 

 Defendant
appealed to this Court, asserting for the first time that his convictions of aggravated
battery and armed robbery violate his right to be free from double jeopardy. 1 It is
troubling to this Court that this second double jeopardy claim was not recognized until
the petition for writ of certiorari. 2 Fortunately for Defendant, double jeopardy is not
waivable and may be raised at any stage of a criminal case, including after judgment.
State v. Martinez, 

, 

, 

.




1Defendant raised, and we granted certiorari on, seven issues: (1) ineffective assistance of counsel
resulting from the State’s use of trial counsel’s statements at the first trial date for which Defendant failed
to appear as evidence of his FTA charge, (2) improper joinder and failure to sever the FTA charge from
the initial charges, (3) speedy trial, (4) questioning of a witness about her medicinal marijuana use, (5)
sufficiency of the evidence of FTA, (6) implied juror bias, and (7) double jeopardy for the armed robbery
and aggravated battery with a deadly weapon convictions. We quash the first six issues as improvidently
granted and address only the double jeopardy issue.
2The double jeopardy issue now presented is different from the one considered by the Court of Appeals
and is raised for the first time here. Lorenzo, A-1-CA-36648, mem. op. ¶ 44 (“remand[ing] to the district
court to vacate Defendant’s conviction for fourth degree conspiracy to commit aggravated battery and one
of his convictions for third degree conspiracy”).
II.     DOUBLE JEOPARDY PROHIBITS MULTIPLE PUNISHMENT IN THIS CASE

{5}      Double jeopardy “is a constitutional question of law which we review de novo.”
State v. Swick, 

, 

; U.S. Const. amend. V (“[N]or shall
any person be subject for the same offense to be twice put in jeopardy of life or limb.”);
N.M. Const. art. II, § 15 (“[N]or shall any person be twice put in jeopardy for the same
offense.”). When a single course of conduct results in multiple charges under separate
criminal statutes, one of the charges may be barred by double jeopardy. State v. Bernal,

, 

, 

. We term this a double-description
double jeopardy violation. 

 In reviewing a double-description challenge, we first
determine “whether the conduct underlying the [two] offenses is unitary, i.e. whether the
same conduct violates both statutes.” Swafford v. State, 

, ¶ 25, 

, 

. If the conduct is not unitary, the analysis is complete because
the acts are discrete and no violation of the defendant’s right against double jeopardy is
possible. Id. ¶ 26. If the conduct is unitary, we must next determine whether the
Legislature intended for the unitary conduct to be punished as separate offenses. Id. ¶
25. “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 punishments in the same
trial.” Id.

A.      The Conduct Underlying Both Charges Was Unitary

{6}      The unitary conduct analysis turns on whether the acts underlying the two
offenses are separated by “sufficient indicia of distinctness.” 3 Id. ¶ 26. In determining
sufficiency, “we . . . look[] to the elements of the charged offenses, the facts presented
at trial, and the instructions given to the jury.” State v. Sena, 

, 

. When examining the factual record, courts “consider such factors as whether
[the] acts were close in time and space, their similarity, the sequence in which they
occurred, whether other events intervened, and the defendant’s goals for and mental
state during each act.” State v. Franco, 

, 

, 

. Looking at the totality of the circumstances, “if it reasonably can be said that the
conduct is unitary, then we must conclude that the conduct was unitary.” State v. Porter,

, 

 (text only) 4 (quoting Swafford, 

,
¶ 28).

{7}    Here, the acts were close together in time and space. The entire episode, from
the time Victim opened the door to the time Defendant and Galindo left, was described
by Victim as “seven or eight minutes tops.” The altercation was also contained spatially,
taking place in the kitchen area of the restaurant.



3The Court of Appeals, in its double jeopardy analysis of the conspiracy convictions, assumed without
discussing that the acts were unitary. Lorenzo, A-1-CA-36648, mem. op. ¶¶ 41-44. We complete the
analysis here.
4“(Text only)” indicates the omission of nonessential punctuation marks—including internal quotation
marks, ellipses, and brackets—that are present in the text of the quoted source, leaving the quoted text
otherwise unchanged.
{8}    The course of conduct underlying both offenses was also similar. Franco, 2005-
NMSC-013, ¶ 7 (“The proper analytical framework is whether the facts presented at trial
establish that the jury reasonably could have inferred independent factual bases for the
charged offenses.” (internal quotation marks and citation omitted)). Each conviction was
based on Defendant’s use of the gun. First, the gun was the means used to gain entry
to the diner and rob Victim. Second, the gun was the weapon that assaulted Victim.
Further, the acts were not interrupted by an intervening event.

{9}     The State argues that Defendant’s conduct was nonunitary because “the force
necessary to accomplish the robbery had already been threatened well before the shot
was fired.” The State’s view of the conduct is that Defendant’s act of displaying the gun
satisfied the threatened force element of armed robbery. Therefore, the gunshot after
the struggle was a different use of force that satisfied the aggravated battery. However,
there are two distinct issues with the State’s argument.

{10} First, the armed robbery was not complete with the threatened use of force. The
commission of the armed robbery began when Defendant and Galindo displayed their
guns and forcefully entered the diner. The robbery was not complete until they took
possession of the money. See NMSA 1978, § 30-16-2 (1973) (“Robbery consists of the
theft of anything of value from the person of another or from the immediate control of
another, by use or threatened use of force or violence.” (emphasis added)). The events
between the initiation and completion of the robbery were part of a single course of
conduct that occurred closely in time and space. See State v. Torres, 

, 

 (“When determining whether a defendant’s conduct is unitary, we
have looked for an identifiable point at which one of the charged crimes had been
completed and the other not yet committed.” (text only) (citation omitted)). The State
would have us parse out each act by Defendant as an intervening event without looking
for indicia of distinctness. This obstructs the purpose of the double jeopardy clause to
guard against multiple punishments for the same conduct. “‘The Double Jeopardy
Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the
simple expedient of dividing a single crime into a series of temporal or spatial units.’”
State v. Frazier, 

, 

, 

 (quoting Brown v.
Ohio, 

 (1977)).

{11} Second, the State’s presentation on appeal does not match its presentation at
trial. We note that, had the State opted for a different presentation at trial, it is possible
that the jury could have decided that different uses of force satisfied the elements of
each crime. For example, if the jury had determined that the threatened use of the gun
was sufficient for the robbery and separately that the discharge of the gun satisfied the
aggravated assault, then our analysis might be different. However, as described in Part
B.3, infra, the State’s legal theory, as presented in its closing argument, relies on the
shooting of Victim to prove both offenses. The State may not now argue in the abstract
about what it could have asked the jury to decide.

{12} We look finally to Defendant’s mental state during each act. Franco, 2005-
NMSC-013, ¶ 7 (“To determine whether a defendant’s conduct was unitary, we consider
. . . the defendant’s goals for and mental state during each act.”). Nothing in the record
suggests that Defendant’s actions, including gaining entry into the diner, pushing Victim
back from the door, and shooting Victim in the face, were driven by anything other than
the desire to steal money from the diner. Thus, none of the Franco factors support the
notion that the acts were “separated by sufficient indicia of distinctness.” Swafford,

, ¶ 26. We therefore conclude that the conduct was unitary.

B.    The Legislature Did Not Intend to Permit Multiple Punishments Under
      These Two Statutes for the Same Conduct

{13} When conduct is unitary, we must next decide “whether the Legislature intended
to permit multiple punishments” for the charged crimes. Porter, 

;
see also Torres, 

 (acknowledging that legislative intent is the
touchstone for whether multiple punishments are permissible). “In analyzing legislative
intent, we first look to the language of the statute[s]” to determine whether the
Legislature explicitly authorized multiple punishments for unitary conduct. Torres, 2018-
NMSC-013, ¶ 21. Neither the armed robbery nor the aggravated battery statute
explicitly authorizes multiple punishments, so an analysis of the plain language of the
statute does not resolve the issue. See § 30-16-2; NMSA 1978, § 30-3-5(A), (C) (1969);
Porter, 

, ¶ 16. Thus, we must attempt to discern intent through other
canons of construction. Torres, 

, ¶ 21.

{14} Early in our jurisprudence, we applied the statutory construction rule from
Blockburger v. United States, 

 (1932). State v. Blevins, 

, ¶
10, 

, 

; see also Blockburger, 

 (holding a double
jeopardy violation did not occur if each statute contained an element of proof not
required by the other). This Court has augmented the original mechanistic application of
Blockburger “to be more in line with United States Supreme Court precedent.” Swick,

. Rather than a strict elements test, the “analysis demands that
we compare the elements of the offense, looking at the State’s legal theory of how the
statutes were violated.” Porter, 

.

{15} Here, both statutes allow for alternative conduct, so comparing the elements of
the offenses is inconclusive. An aggravated battery may be effectuated through an
“unlawful touching or application of force” that “inflict[s] great bodily harm or does so
with a deadly weapon or . . . in any manner whereby great bodily harm or death can be
inflicted.” Section 30-3-5(A), (C). Similarly, an armed robbery occurs when a theft
results from the “use or threatened use of force or violence.” Section 30-16-2. At first
inspection, both aggravated battery and armed robbery involve the use of force, so the
two crimes share a common element. However, this abstract commonality is not enough
to declare that one crime subsumes the other because the two statutes could be
violated by different conduct. For example, Defendant’s threatened use of force could
be sufficient to violate the armed robbery statute, while the shooting could be the force
used to prove aggravated battery. To establish a double jeopardy violation, the jury
must have found that Defendant violated both statutes with the same use of force. We
must, therefore, determine which alternative conduct the State actually proved by
examining the statute, indictment, and jury instructions. Porter, 

(“When a defendant is charged with violating statutes that are vague, unspecific, or
written in such a way that a defendant could be convicted based on alternative conduct,
we review the statutory language, charging documents, and jury instructions used at
trial to ascertain the state’s legal theory.”).

{16} We turn then to “the state’s legal theory of the case applied to the statutes at
issue to determine the elements of each offense the defendant committed. This requires
us to identify how the state alleged that a defendant violated the statutes at issue.” Id. ¶
18 (citation omitted). “[I]f we determine that one of the offenses subsumes the other
offense, ‘the double jeopardy prohibition is violated, and punishment cannot be had for
both.’” Id. ¶ 20 (quoting Swick, 

). In this case, the armed robbery
offense subsumes the aggravated battery conviction because the same evidence, the
shooting, was used to prove each element of force.

1.     The armed robbery conviction

{17} As is true of most modern statutes, armed robbery is a multipurposed statute that
may be accomplished through alternative conduct. Here, Defendant could have violated
the armed robbery statute under either of two theories: (1) by robbing the diner with
force, through pushing or shooting Victim or (2) with the threatened use of force, by
wielding the firearm or pointing the gun at Victim’s head. Because there are multiple
acts that the State could have used to prove either theory of armed robbery, we look to
the indictment and jury instructions. See Porter, 

 (“[W]e review
the statutory language, charging documents, and jury instructions used at trial to
ascertain the state’s legal theory.”).

a.     Grand jury indictment

{18}   The grand jury indictment reads:

       Count I: Armed Robbery, . . . on or about March 23, 2013, [D]efendant did
       take and carry away money, which had some value, from Richard
       Rivard[’s] immediate control, intending to permanently deprive Richard
       Rivard of the property, and the [D]efendant was armed with a handgun, a
       deadly weapon or an instrument or object which, when used as a weapon,
       could cause death or very serious injury, and [D]efendant took the
       property by use or threatened use of force or violence, a second degree
       felony, contrary to Section 30-16-2,(F) [sic] Section 31-18-16 NMSA 1978.

While the indictment specifies that Defendant was armed with a handgun and that he
“took the property by use or threatened use of force or violence,” it does not specify the
force used or specifically whether the use of the handgun satisfied the use of force
element. We next examine the jury instructions for possible guidance.

b.     Jury instructions

{19}   The jury instruction read:
       Instruction 7: For you to find [D]efendant guilty of Armed Robbery as
       charged in Count 1 the state must prove to your satisfaction beyond a
       reasonable doubt each of the following elements of the crime:

       1. [D]efendant took and carried away monies, from Richard Rivard, or
       from his immediate control intending to permanently deprive Richard
       Rivard of the monies; the property had some value;

       2. [D]efendant was armed with a handgun;

       3. [D]efendant took the monies by force or violence or threatened force or
       violence;

       4. This happened in New Mexico on or about the 23rd day of March, 2013.

Like the charging document, the instruction includes both use of force and threatened
use of force. The instructions do not clarify which conduct the jury found sufficient for
the conviction. However, it does indicate the force or threatened use of force was
predicated on use of the handgun.

2.     The aggravated battery conviction

{20} Like the armed robbery statute, a defendant may accomplish a third-degree
aggravated burglary violation through alternative forms of conduct if the defendant (1)
“inflict[s] great bodily harm,” (2) commits aggravated battery “with a deadly weapon,” or
(3) “commits aggravated battery . . . in any manner whereby great bodily harm or death
can be inflicted.” Section 30-3-5. We, therefore, look again to the grand jury indictment
and jury instructions to understand which theory the State used to prove its case.

a.     Grand jury indictment

{21} The aggravated battery with a deadly weapon indictment is more specific than
that of armed robbery:

       Count V: Aggravated Battery (Deadly Weapon), . . . on or about March 23,
       2013, [D]efendant did touch or apply force to Richard Rivard, with a
       handgun or an instrument or object which, when used as a weapon, could
       cause death or very serious injury, and the defendant intended to injure or
       [sic] another, a third degree felony, contrary to Section 30-3-5(A)(F)&(C)
       [sic], Section 31-18-16 NMSA 1978.

Though the aggravated battery indictment specifies that the force used was with the
handgun, it also leaves room for another object that could cause death or serious injury.
We turn then to the jury instructions.
b.      Jury instructions

{22}   The aggravated battery jury instruction read:

       Instruction 12: For you to find [D]efendant guilty of Aggravated Battery as
       charged in Count V, the state must prove to your satisfaction beyond a
       reasonable doubt each of the following elements of the crime:

       1. [D]efendant touched or applied force to Richard Rivard by shooting him
       with a deadly weapon.

       2. [D]efendant intended to injure Richard Rivard;

       3. This happened in New Mexico on or about the 23rd day of March, 2013.

{23} Unlike the armed robbery conviction, only one conduct was sufficient to prove
Defendant violated the aggravated battery statute: shooting Victim in the face. Thus,
Defendant’s act of shooting Victim is sufficient to violate both statutes, so it is possible
that “one offense subsumes the other.” Porter, 

. However, it is
also conceivable that the two statutes are violated by different forces so that neither
offense is subsumed. Because “the state’s legal theory cannot be ascertained using the
charging documents and jury instructions, we also review testimony, opening
arguments, and closing arguments to establish whether the same evidence supported a
defendant’s convictions under both statutes.” See Porter, 

.

3.     The State’s closing argument reveals that it relied on the same use of force
       for both crimes

{24} The State’s closing argument reveals its reliance on Defendant’s shooting of
Victim as the legal theory supporting the conviction of both offenses. First, the State
argued that the shooting was the required force for an armed robbery conviction:

       [Y]ou also have an instruction on armed robbery. In order to . . . prove that
       offense, you must find the evidence sufficient to show that the Defendant
       took money away from Mr. Rivard[,] that he was armed with a handgun[,]
       and that he used force or threaten[ed] to use force in order to take the
       money. Obviously Mr. Rivard was unable to keep the men from taking the
       money because he was shot. That was the use of force.

(Emphasis added.) The State then argued that the use of force for the aggravated
battery was also the shooting:

       The next element’s instruction you have has to do with aggravated battery
       and in this case what is required is that the evidence prove that the
       Defendant injured Mr. Rivard by shooting him. . . . The Defendant had to
       pull the trigger to shoot Mr. Rivard. He had to put the gun into firing
       position.
(Emphasis added.) Under the State’s legal theory presented to the jury, the conduct
proving the armed robbery, the shooting, would always prove the aggravated assault.

{25} Finally, this Court has noted in the past that when “one statutory provision
incorporates many of the elements of a base statute, and extracts a greater penalty
than the base statute, it may be inferred that the legislature did not intend punishment
under both statutes.” Swafford, 

, ¶ 33. A first offense of armed robbery
is a second-degree felony carrying a nine-year basic sentence. 5 NMSA 1978, § 31-18-
15(A) (2007, amended 2022). By comparison, both aggravated battery with a deadly
weapon and robbery (without a deadly weapon) are third-degree felonies requiring three
years imprisonment. Id. We recognize that the relationship between standards of
punishment is not a dispositive factor. Swick, 

, ¶ 9 n.1 (“This Court and
the Court of Appeals have used the quantum of punishment to support the proposition
that the Legislature did not intend to punish the two crimes separately, both when the
amount of punishment is the same and when the amount differs.”); State v. Caldwell,

, 

, 

 (“[T]his Court and our Supreme
Court have previously noted that a difference in the quantum of punishment alone is
insufficient to overcome other indicia of legislative intent.”). However, here, only one
element separates a violation of a simple robbery from an armed robbery—the use of a
deadly weapon. See § 30-16-2. The particular use relied on by the State to prove the
armed robbery was the shooting; that is, the shooting enhanced the punishment from a
third-degree to a second-degree felony. But the shooting was also used by the State to
prove the aggravated battery. Under the facts of this case, the aggravated battery, as a
third-degree felony, functions as the “base statute” for the armed robbery. See
Swafford, 

, ¶ 33. This further supports the inference that the
Legislature did not intend multiple punishments under both statutes for the same
conduct.

{26} Because the shooting was the sole force used to prove the aggravated battery
and armed robbery offenses, we hold that the aggravated battery conviction is
subsumed in the armed robbery conviction, violating Defendant’s right to be free from
double jeopardy. See Porter, 

.

III.    CONCLUSION

{27} For the foregoing reasons, we remand to the district court to vacate Defendant’s
conviction for aggravated battery as it carries the shorter sentence. See Torres, 2018-
NMSC-013, ¶ 28 (“When double jeopardy protections require one of two otherwise valid
convictions to be vacated, we vacate the conviction carrying the shorter sentence.”).

{28}    IT IS SO ORDERED.

DAVID K. THOMSON, Justice



5This may be enhanced by one year if “a separate finding of fact by the court or jury shows that a firearm
was used in the commission of a noncapital felony.” NMSA 1978, § 31-18-16(A) (1993, amended 2022).
WE CONCUR:

C. SHANNON BACON, Chief Justice

MICHAEL E. VIGIL, Justice

JULIE J. VARGAS, Justice

BRIANA H. ZAMORA, Justice