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 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




                                 4
