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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. 30,414

 5 CHRIS SERVANTEZ,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF CHAVEZ COUNTY
 8 Charles Cruse Currier, District Judge

 9 Gary K. King, Attorney General
10 Nicole Beder, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 The Law Offices of the Public Defender
14 Jorge A. Alvarado, Chief Public Defender
15 Santa Fe, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 WECHSLER, Judge.
 1   {1}   Defendant Chris Servantez appeals his convictions for attempt to commit

 2 second degree murder and shooting at or from a motor vehicle resulting in personal

 3 injury.   In a previous memorandum opinion, this Court affirmed Defendant’s

 4 convictions. See State v. Servantez, No. 30,414, mem. op. (N.M. Ct. App. Dec. 8,

 5 2010) (non-precedential). Defendant petitioned the New Mexico Supreme Court for

 6 review of that decision. The Supreme Court granted Defendant’s petition and held the

 7 case in abeyance pending the disposition of State v. Montoya, No. 32,279, and State

 8 v. Franco, No. 32,605. On May 16, 2013, our Supreme Court issued an opinion in

 9 State v. Montoya, 2013-NMSC-020, 306 P.3d 426, overruling State v. Gonzales,

10 1992-NMSC-003, 113 N.M. 221, 824 P.2d 1023, State v. Dominguez, 2005-NMSC-

11 001, 137 N.M. 1, 106 P.3d 563, and State v. Riley, 2010-NMSC-005, 147 N.M. 557,

12 226 P.3d 656. Subsequently, the Supreme Court quashed the writ of certiorari in this

13 case and remanded it to this Court for further proceedings in light of its decision in

14 Montoya. This Court reconsidered its prior decision in light of the Supreme Court’s

15 mandate and issued a calendar notice proposing to reverse one of Defendant’s

16 convictions. The State has filed a memorandum in opposition to this proposed

17 disposition. As we remain unpersuaded by the State’s arguments, we reverse.

18   {2}   In this Court’s calendar notice, we noted that our Supreme Court concluded in

19 Montoya that convictions arising from unitary conduct for both voluntary

                                             2
 1 manslaughter and shooting at or from a vehicle resulting in great bodily harm violated

 2 double jeopardy. We further noted that, in doing so, our Supreme Court reasoned that

 3 it could

 4         no longer conclude that the Legislature intended that [the d]efendant
 5         should receive more than the maximum punishment it determined
 6         appropriate for either a drive-by shooting or a completed homicide,
 7         taking into consideration the relationship between the statutory offenses
 8         and their common commission by unitary conduct, the identical social
 9         harms to which they are directed, and their use by the [s]tate in this case
10         to impose double punishment for the killing of a single victim.

11 2013-NMSC-020, ¶ 52.

12   {3}   Although we noted that this case provided a slight variation on the facts of

13 Montoya, we proposed to conclude that the distinction between an attempted homicide

14 and an actual homicide did not provide this Court with a basis for distinguishing

15 Montoya. Specifically, we relied on our Supreme Court’s recent decision in State v.

16 Swick, overruling its holding in State v. Armendariz, 2006-NMSC-036, 140 N.M. 182,

17 141 P.3d 526, that double jeopardy was not violated when unitary conduct gave rise

18 to convictions for both attempted murder and aggravated battery, because the

19 Legislature was “punishing the state of mind in attempted murder and punishing

20 actual harm in aggravated battery.” Swick, 2012-NMSC-018, ¶ 16, 279 P.3d 747

21 (citing Armendariz, 2006-NMSC-036, ¶ 25). Given Swick’s rejection of Armendariz’s

22 approach of viewing the social evil of attempt crimes differently because they address


                                               3
 1 mental state rather than actual harm, we proposed to conclude that Montoya’s holding

 2 would apply to Defendant’s convictions for both attempted second-degree murder and

 3 shooting at or from a motor vehicle.

 4   {4}   The State has responded by arguing that the one-death-one-homicide principle

 5 was integral to Montoya’s decision to overrule prior precedent, and as a result the

 6 battery holding in State v. Dominguez, 2005-NMSC-001, 137 N.M.1, 106 P.3d 563,

 7 and the assault holdings in State v. Sosa, 1997-NMSC-032, 123 N.M. 564, 943 P.2d

 8 1017, and State v. Highfield, 1992-NMCA-020, 113 N.M. 606, 830 P.2d 158, are still

 9 good law. [MIO 8] Regardless of whether these cases were overruled by our Supreme

10 Court in Montoya, the cases are distinguishable as this case does not involve a

11 conviction for aggravated battery or assault. It remains unclear from the State’s

12 memorandum in opposition how “the continued validity of the battery holding in

13 Dominguez” [MIO 11] binds this Court with respect to our proposed determination

14 that attempted murder should be treated the same as the voluntary manslaughter

15 conviction in Montoya. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15,

16 137 N.M. 339, 110 P.3d 1076 (“We will not review unclear arguments, or guess at

17 what [a party’s] arguments might be.”); Hennessy v. Duryea, 1998-NMCA-036, ¶ 24,

18 124 N.M. 754, 955 P.2d 683(“Our courts have repeatedly held that, in summary




                                             4
 1 calendar cases, the burden is on the party opposing the proposed disposition to clearly

 2 point out errors in fact or law.”).

 3   {5}   Accordingly, for the reasons stated in this Court’s notice of proposed

 4 disposition, we reverse and remand for one of Defendant’s convictions to be vacated.

 5 As explained in this Court’s notice of proposed disposition, “we express no opinion

 6 as to which alternative conviction would need to be vacated.” See State v. Mercer,

 7 2005-NMCA-023, ¶ 29, 137 N.M. 36, 106 P.3d 1283 (“As both the fraud and

 8 embezzlement offenses are the same degree felonies, we express no opinion as to

 9 which alternative conviction would need to be vacated.”).

10   {6}   IT IS SO ORDERED.


11
12                                                ________________________________
13                                                JAMES J. WECHSLER, Judge


14 WE CONCUR:


15 ________________________________
16 MICHAEL D. BUSTAMANTE, Judge


17 ________________________________
18 MICHAEL E. VIGIL, Judge




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