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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. 29,338

 5 JOSE GARCIA,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
 8 William G. Shoobridge, District Judge


 9   Gary K. King, Attorney General
10   Margaret E. McLean, Assistant Attorney General
11   Joel Jacobsen, Assistant Appellate Defender
12   Santa Fe, NM

13 for Appellee

14 Jorge A. Alvarado, Chief Public Defender
15 J.K. Theodosia Johnson, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant
 1                    MEMORANDUM OPINION ON REMAND

 2 BUSTAMANTE, Judge.

 3   {1}   This matter comes before the Court on remand from our Supreme Court,

 4 directing us to reconsider our prior opinion in light of the Supreme Court’s opinion

 5 in State v. Montoya, 2013-NMSC-020, 306 P.3d 426. We now reverse.

 6   {2}   Defendant appealed his conviction for voluntary manslaughter and third degree

 7 shooting at or from a motor vehicle arguing that his conviction for both crimes

 8 violated his right to be free from double jeopardy. In our original opinion filed on

 9 September 15, 2011, we affirmed all of Defendant’s convictions. Specifically with

10 regard to his double jeopardy arguments, we relied almost entirely on State v.

11 Dominguez, 2005-NMSC-001, 137 N.M. 1, 106 P.3d 563, overruled 2013-NMSC-

12 020, for our ruling. Defendant at that point had acknowledged that Dominguez was

13 directly on point and that it defeated his claim of a double jeopardy violation.

14   {3}   In Montoya, the Supreme Court specifically overruled Dominguez and two

15 other cases which had held that convictions for homicide crimes and shooting from

16 or at a motor vehicle could support separate convictions even though both convictions

17 were premised on the unitary act of shooting and killing one victim. Montoya, 2013-

18 NMSC-020, ¶ 54.




                                              2
 1   {4}   This case presents the same factual and legal scenario considered in Montoya.

 2 As such, Montoya controls and requires that one of the two convictions be vacated.

 3 The only question remaining is which conviction should be vacated.

 4   {5}   Montoya notes that the normal procedure is to vacate the conviction that carries

 5 the shorter sentence. In Montoya the defendant was apparently convicted of shooting

 6 at a motor vehicle resulting in great bodily harm—a second degree felony. Id. ¶ 56.

 7   {6}   We have a different situation in this case. Apart from the straight murder

 8 theories, Defendant here was charged only with shooting “a firearm from a motor

 9 vehicle with reckless disregard for another person.” The jury was not asked to

10 consider any greater or more serious form of the crime. Based on the jury finding of

11 guilty as instructed and in light of the death that ensued, the district court entered a

12 judgment and sentence for shooting at or from a motor vehicle as a third degree

13 felony.

14   {7}   Thus, in this case the voluntary manslaughter—a third degree felony—and

15 shooting at or from a motor vehicle carry the same sentence. And, in fact, Defendant

16 was sentenced to identical sentences of six years for each of them. As such Montoya’s

17 rationale for choosing which conviction to vacate does not apply here.

18   {8}   Given that the sentences are the same, we choose to vacate the conviction for

19 shooting at or from a motor vehicle. We believe that the conviction for voluntary


                                               3
 1 manslaughter—involving as it does the taking of a life—is the more serious crime.

 2 Id. ¶ 56.

 3   {9}    In our prior Opinion we also rejected Defendant’s argument that the district

 4 court improperly enhanced his punishment for his conviction of shooting from or at

 5 a motor vehicle. Given our resolution of the primary double jeopardy issue, this

 6 assertion becomes moot.

 7 CONCLUSION

 8   {10}   In accordance with Montoya, we vacate Defendant’s conviction for shooting at

 9 or from a motor vehicle and remand to the district court for re-sentencing.

10   {11}   IT IS SO ORDERED.



11
12                                         MICHAEL D. BUSTAMANTE, Judge

13 WE CONCUR:


14
15 CYNTHIA A. FRY, Judge


16
17 TIMOTHY L. GARCIA, Judge




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