     This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
     Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
     opinions.   Please also note that this electronic memorandum opinion may contain
     computer-generated errors or other deviations from the official paper version filed by the Court of
     Appeals and does not include the filing date.

 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                    No. A-1-CA-34242

 5 FRANKIE L. GARDUÑO,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
 8 T. Glenn Ellington, District Judge

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   Jane A. Bernstein, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Bennett J. Baur, Chief Public Defender
15 Kimberly Chavez Cook, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant

18                                 MEMORANDUM OPINION

19 FRENCH, Judge.
 1   {1}   Defendant Frankie L. Garduño appeals from the district court’s judgment,

 2 entered pursuant to a jury verdict, for the crimes of attempt to commit armed robbery

 3 (firearm enhancement) (Count 1), contrary to NMSA 1978, Sections 30-28-1(B)

 4 (1963), 30-16-2 (1973), 31-18-16(A) (1993); and aggravated battery with a deadly

 5 weapon (Count 4), contrary to NMSA 1978, Section 30-3-5(C) (1969). Defendant

 6 argues that: (1) these convictions violated his constitutional right to be free from

 7 double jeopardy; (2) the enhancement of his sentence for attempted armed robbery by

 8 one year, pursuant to Section 31-18-16(A), violated his constitutional right to be free

 9 from double jeopardy; (3) the district court abused its discretion by denying a

10 severance for the charge of felon in possession of a firearm; (4) the district court erred

11 in excluding evidence of law enforcement bias; (5) there was insufficient evidence to

12 support his convictions; and (6) although the district court merged the charges of

13 assault with intent to commit a violent felony (Count 2 and Count 7), it must enter an

14 order vacating those convictions.

15   {2}   We affirm Defendant’s convictions but hold that the firearm enhancement must

16 be vacated and therefore remand for resentencing.

17 BACKGROUND

18   {3}   Because this is a memorandum opinion and the parties are familiar with the

19 facts, this background section is limited to the factual and procedural events that are



                                               3
 1 required to place our analysis in context. Additional facts will be provided as

 2 necessary.

 3   {4}   Cody Tapie and Michelle Radosevich were getting gas at an Allsup’s

 4 convenience store in Española, New Mexico. Tapie’s driver door faced the gas pump

 5 and Radosevich’s door faced the curb. Tapie was outside the vehicle pumping gas,

 6 when a black Ford F-150, driven by Joseph Vigil, pulled up directly behind Tapie’s

 7 vehicle. Defendant emerged from the passenger side of the truck, approached

 8 Radosevich, “lean[ed] in,” and began speaking to her.

 9   {5}   Defendant pointed his gun at Radosevich and demanded money. Radosevich

10 advised Defendant that she had no money, having concealed her purse by the driver’s

11 seat. After being told that Radosevich had no money, Defendant “turned his attention

12 to [Tapie].” From across the car, Tapie asked Defendant what he was doing, and

13 Defendant pointed his firearm at Tapie and demanded his money.

14   {6}   In response to Defendant’s demand and having focused on him while he was

15 on the other side of the vehicle, Tapie passed his wallet to Defendant “over the car”

16 fearing Defendant would “seriously injure or kill [him].” Defendant seized the wallet

17 and ordered that Tapie get back in the car. Once Tapie was back in the car, Defendant

18 again pointed his gun inside the vehicle. Defendant turned his attention back to

19 Radosevich and demanded money from her.



                                             4
 1   {7}   In an attempt to deflect attention from Radosevich, Tapie offered Defendant his

 2 sunglasses, which Defendant seized. Defendant again demanded money from

 3 Radosevich and then demanded her purse. Radosevich refused to comply. Frustrated

 4 with the resistance he was receiving, Defendant opened the passenger door and began

 5 striking Radosevich in the head and forehead with the barrel of his firearm as many

 6 as five times. The physical attack on Radosevich continued until Defendant was

 7 subdued by Tapie and other patrons at the station.

 8 DISCUSSION

 9 I.      Double Jeopardy

10   {8}   The appellate courts “generally review double jeopardy claims de novo.” State

11 v. Rodriguez, 2006-NMSC-018, ¶ 3, 139 N.M. 450, 134 P.3d 737; see State v. Saiz,

12 2008-NMSC-048, ¶ 22, 144 N.M. 663, 191 P.3d 521 (“Double jeopardy presents a

13 question of law, which [the appellate courts] review de novo.”), abrogated on other

14 grounds by State v. Belanger, 2009-NMSC-025, ¶ 36 n.1, 146 N.M. 357, 210 P.3d

15 783. “The constitutional prohibition against double jeopardy protects against both

16 successive prosecutions and multiple punishments for the same offense.” State v.

17 Armijo, 2005-NMCA-010, ¶ 15, 136 N.M. 723, 104 P.3d 1114 (internal quotation

18 marks and citation omitted); see U.S. Const. amend. V; see also N.M. Const. art. II,

19 § 15.



                                              5
 1 A.       Attempted Armed Robbery and Aggravated Battery With a Deadly
 2          Weapon

 3   {9}    Defendant argues that his convictions for attempted armed robbery and

 4 aggravated battery with a deadly weapon violate double jeopardy because they impose

 5 multiple punishments for the same conduct. In the present case, “we are faced with

 6 multiple punishments, . . . [a] double description case.” Armijo, 2005-NMCA-010, ¶

 7 15 (internal quotation marks and citation omitted). Because Defendant’s claim is a

 8 double description type double jeopardy claim, which involves convictions of multiple

 9 statutes based on the same criminal conduct, we apply the analysis set out in Swafford

10 v. State, 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223. For double description

11 claims, we follow the two-part test set out in Swafford. State v. Bernal, 2006-NMSC-

12 050, ¶ 9, 140 N.M. 644, 146 P.3d 289. We first “examine whether the conduct was

13 unitary, meaning whether the same criminal conduct is the basis for both charges. If

14 the conduct is not unitary, then the inquiry is at an end and there is no double jeopardy

15 violation.” Id. (citation omitted).

16   {10}   Defendant argues that his convictions for attempted armed robbery and

17 aggravated battery with a deadly weapon violate this prohibition because his conduct

18 was unitary based on the facts and that “[t]his was one series of acts of a similar



                                               6
 1 nature, committed with a single purpose, and which occurred in and around the car

 2 over a matter of minutes without interrupting events.” Defendant asserts his acts were

 3 unitary because “[t]he ongoing attempted robbery of [Radosevich] never stopped and

 4 was ongoing, by virtue of the fact that it was not ‘successful.’ ” The State responds

 5 that the conduct was not unitary under the facts and double jeopardy does not apply.

 6 We agree that Defendant’s conduct was not unitary.

 7   {11}   Our analysis begins with an examination of the contours of unitary conduct. As

 8 our Supreme Court observed, “[u]nitary conduct is often defined by what it is not.

 9 Thus, conduct is not unitary if the defendant commits two discrete acts violative of the

10 same statutory offense, but separated by sufficient indicia of distinctness.” State v.

11 Cooper, 1997-NMSC-058, ¶ 59, 124 N.M. 277, 949 P.2d 660 (internal quotation

12 marks and citation omitted). In analyzing the contours of the “indicia of distinctness,”

13 our courts are to consider “the separation between the illegal acts by either time or

14 physical distance, the quality and nature of the individual acts, and the objectives and

15 results of each act.” Id. (internal quotation marks and citation omitted); see State v.

16 Sotelo, 2013-NMCA-028, ¶ 18, 296 P.3d 1232 (“Independent factual bases may be

17 established by determining whether the acts constituting the two offenses are

18 sufficiently separated by time or space, looking to the quality and nature of the acts,

19 the objects and results involved, and the defendant’s mens rea and goals during each



                                               7
 1 act.” (internal quotation marks and citation omitted)). Distinctness may also be

 2 established by the “existence of an intervening event[,] . . . [the] defendant’s intent as

 3 evidenced by his conduct and utterances[,] . . . [the] number of victims,” and “the

 4 behavior of the defendant between [acts.]” Herron v. State, 1991-NMSC-012, ¶ 15,

 5 111 N.M. 357, 805 P.2d 624.

 6   {12}   Regarding whether conduct is unitary, we look for “an identifiable point at

 7 which one of the charged crimes had been completed and the other not yet

 8 committed.” State v. DeGraff, 2006-NMSC-011, ¶ 27, 139 N.M. 211, 131 P.3d 61; see

 9 Bernal, 2006-NMSC-050, ¶ 11 (holding that the defendant’s conduct is not unitary

10 where the defendant completes one of the charged crimes before committing the

11 other); State v. Montoya, 2016-NMCA-098, ¶ 21, 384 P.3d 1114 (same), cert. denied,

12 2016-NMCERT-___, ___ P.3d ___ (No. S-1-SC-36067, Sept. 29, 2016); State v.

13 Melendrez, 2014-NMCA-062, ¶ 10, 326 P.3d 1126 (same).

14   {13}   In this case we conclude that the attempted armed robbery of Radosevich was

15 separated with a sufficient indicia of distinctness from Radosevich’s aggravated

16 battery by time, the nature of the individual criminal acts, and the objectives of the

17 criminal acts. Specifically, Defendant’s attempted armed robbery of Radosevich was

18 complete before Defendant turned his attention to the armed robbery of Tapie and

19 began to use force or threatened force against him. Defendant’s armed robbery of



                                               8
 1 Tapie was complete before Defendant subsequently committed aggravated battery on

 2 Radosevich.

 3   {14}   Our conclusion that Defendant’s offenses were not unitary is also premised on

 4 Saiz, which held that “[t]he proper analytical framework is whether the facts presented

 5 at trial establish that the jury reasonably could have inferred independent factual bases

 6 for the charged offenses.” 2008-NMSC-048, ¶ 30 (internal quotation marks and

 7 citation omitted). Given the indicia of distinctness here and with Saiz in mind, we hold

 8 that the criminal conduct was not unitary, and thus there was no double jeopardy

 9 violation.

10 B.       Firearm Enhancement and Merger Issues

11   {15}   The district court sentenced Defendant to an additional year of incarceration,

12 pursuant to Section 31-18-16(A). Defendant appeals the enhancement of his sentence

13 for use of a firearm in the attempted armed robbery of Radosevich relying on this

14 Court’s decision in State v. Branch, 2016-NMCA-071, 387 P.3d 250, cert. granted,

15 2016-NMCERT-___, ___ P.3d ___ (No. S-1-SC-35951, July 28, 2016). Based on

16 Branch, we agree with Defendant that the enhancement violated his constitutional

17 right to be free from double jeopardy. “Because the [s]tate, according to its own

18 theory of the case, was not required to prove any additional facts to have [the

19 d]efendant’s sentence enhanced, the firearm enhancement[] . . . violate[s] double



                                               9
 1 jeopardy[.]” Id. ¶ 38. We decline the State’s invitation to hold this issue in abeyance

 2 pending the Supreme Court’s decision in Branch. The firearm enhancement to

 3 Defendant’s conviction of attempted armed robbery of Radosevich must be vacated.

 4   {16}   In regard to Defendant’s convictions on the “merged” alternative counts,

 5 Count 2 and Count 7, the same reasoning under double jeopardy applies. Although the

 6 district court correctly merged Count 2 and Count 7 with Count 1 and Count 6,

 7 respectively, and did not sentence Defendant on those counts, it inadvertently failed

 8 to vacate the alternate convictions. Count 2 and Count 7 must be vacated. See State

 9 v. Santillanes, 2001-NMSC-018, ¶ 28, 130 N.M. 464, 27 P.3d 456 (“[C]oncurrent

10 sentencing does not adequately remedy the imposition of impermissible multiple

11 punishments for a single offense; double jeopardy requires that the lesser offense

12 merge into the greater offense such that the conviction of the lesser offense, not

13 merely the sentence, is vacated.”); see also State v. Mercer, 2005-NMCA-023, ¶ 29,

14 137 N.M. 36, 106 P.3d 1283 (stating that “[i]f, upon retrial, the jury again convicts

15 [the d]efendant of alternatives on any count, one alternative conviction must be

16 vacated”).

17 II.      Failure to Sever Felon in Possession Charge Did Not Prejudice Defendant

18   {17}   “[T]he standard of review applicable to a severance issue is exceedingly

19 narrow.” State v. Ramming, 1987-NMCA-067, ¶ 24, 106 N.M. 42, 738 P.2d 914. “The



                                             10
 1 decision to grant a severance motion lies within the trial judge’s discretion and will

 2 not be overturned on appeal unless the joinder of offenses results in actual prejudice

 3 against the moving party.” State v. Garcia, 2011-NMSC-003, ¶ 16, 149 N.M. 185, 246

 4 P.3d 1057. “[The d]efendant bears the burden of establishing that he was actually

 5 prejudiced by a failure to sever.” Id.

 6   {18}   Defendant argues that he moved the district court to sever the felon in

 7 possession charge thirteen days before trial. However, “the district court denied

 8 severance as ‘untimely.’ ” Defendant contends that the district court erred in failing

 9 to make “an affirmative finding of cross-admissibility” of the evidence pertaining to

10 each charge at separate trials and that admission of the evidence was highly prejudicial

11 to him.

12   {19}   Our Supreme Court in Garcia, 2011-NMSC-003, ¶ 19, and State v. Gallegos,

13 2007-NMSC-007, ¶ 41, 141 N.M. 185, 152 P.3d 828, provided ample guidance

14 regarding the factors to be considered in deciding whether a defendant suffered actual

15 prejudice from failing to sever a felon in possession charge at trial.

16   {20}   Defendant argues that his “being found guilty on all counts, . . . factual

17 similarities linking the offenses, . . . offenses that are inflammatory in nature, . . . [and]

18 proper jury instructions that adequately make clear to the jury that it must not consider




                                                 11
 1 evidence inadmissible to a particular count,” all demonstrate actual prejudice.

 2 Gallegos, 2007-NMSC-007, ¶ 41. We disagree.

 3   {21}   Our review of the record establishes that the State minimally focused on the fact

 4 that Defendant was a convicted felon in its opening statement, during its case in chief,

 5 or in closing. Moreover, the disclosure of Defendant’s status as a “convicted felon”

 6 was appropriately handled by the district court when it read the stipulation of the

 7 parties to the jury and by the State at the commencement of the State’s closing

 8 argument when the prosecutor discussed the jury instruction relative to Count 5. The

 9 stipulation and the second element of the jury instruction are identical: “Defendant,

10 in the preceding ten years, was convicted and sentenced to one or more years

11 imprisonment by a court of the United States or by a court of any state[.]”

12   {22}   We conclude that the State did not prejudicially intertwine the offenses during

13 Defendant’s trial. See Garcia, 2011-NMSC-003, ¶ 20 (describing how the state

14 “generically mentioned the fact of the prior offenses” and in no way intertwined the

15 evidence of the past felony and the armed robbery charges). “Thus, in order for there

16 to be no prejudice at a trial of joined offenses when the simple and distinct evidence

17 as to each would not be cross-admissible at separate trials, court and counsel must

18 exercise a vigilant precision in speech and action far beyond that required in the




                                               12
 1 ordinary trial.” Gallegos, 2007-NMSC-007, ¶ 40 (internal quotation marks and

 2 citation omitted).

 3   {23}   The limiting jury instruction given by the district court in regard to the charge

 4 of felon in possession of a firearm, weighs against a showing of actual prejudice to

 5 Defendant. The district court presented the following jury instruction tendered by

 6 Defendant:

 7                 Evidence concerning [D]efendant’s status as a felon was admitted
 8          for the limited purpose of consideration for Count 5.

 9                You are instructed that you must not consider such evidence for
10          any purpose other than for your consideration of Count 5.

11   {24}   Here, the district court took the proper step to mitigate the impact of the prior

12 felony evidence with its limiting instruction. We conclude, as our Supreme Court did

13 in Garcia, “the trial judge’s instruction to consider each offense separately adequately

14 addressed any concern that the jury might apply the evidence of prior felonies beyond

15 the felon in possession charge.” 2011-NMSC-003, ¶ 21.

16 III.     Sufficiency of the Evidence

17   {25}   Defendant appeals his conviction for conspiracy to commit armed robbery,

18 contending “[t]here was insufficient evidence of an agreement.” “The test for

19 sufficiency of the evidence is whether substantial evidence of either a direct or

20 circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt



                                               13
 1 with respect to every element essential to a conviction.” State v. Montoya,

 2 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and citation omitted).

 3 The reviewing court “view[s] the evidence in the light most favorable to the guilty

 4 verdict, indulging all reasonable inferences and resolving all conflicts in the evidence

 5 in favor of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711,

 6 998 P.2d 176. We disregard all inferences and evidence that support a different result.

 7 See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829.

 8   {26}   Defendant argues that the State’s only evidence of a conspiracy was the

 9 presence of Vigil in the vehicle when Defendant arrived at the gas station and that

10 Vigil told Defendant to hurry, and the State therefore failed to show an agreement

11 made “by words or acts agreed together to commit armed robbery.” We hold that this

12 evidence was sufficient to prove the existence of an agreement. A conspiratorial

13 agreement may be proved by circumstantial evidence, and “the agreement can be

14 nothing more than a mutually implied understanding that can be proved by the

15 cooperative actions of the participants involved.” State v. Roper, 2001-NMCA-093,

16 ¶ 8, 131 N.M. 189, 34 P.3d 133. After Defendant confronted Tapie and Radosevich,

17 Vigil’s calling out to Defendant—“let’s go, let’s go”—could indicate that Defendant

18 was taking too long, according to a pre-planned arrangement. Vigil also covered his

19 face with his shirt during the incident, and Defendant told a detective it was Vigil’s



                                              14
 1 idea, stating, “[h]e’s the one that came up with the idea.” From these facts, the jury

 2 could have reasonably inferred that Defendant and Vigil, by words or acts, agreed to

 3 commit armed robbery.

 4   {27}   We also reject Defendant’s arguments that there was insufficient evidence in

 5 support of his convictions for possession of a firearm by a felon, attempted armed

 6 robbery, aggravated battery, and armed robbery. Defendant stipulated to his status as

 7 a felon, and both Radosevich and Tapie testified that Defendant held a gun during the

 8 encounter. Though there is no physical forensic evidence that Defendant possessed a

 9 gun, the jury heard evidence establishing that Defendant threatened Radosevich and

10 Tapie at gunpoint, took Tapie’s wallet and sunglasses, tried to rob Radosevich of her

11 money, and struck Radosevich with a gun multiple times when she refused to comply

12 with his demands. The foregoing evidence was sufficient to support Defendant’s

13 convictions.

14 IV.      Exclusion of Evidence of Law Enforcement Bias

15   {28}   Defendant argues the district court erred by excluding evidence critical for

16 Defendant’s theory that the police were biased and therefore conducted a faulty

17 investigation. Defendant’s asserted defense theory was based on Radosevich and

18 Tapie “target[ing] and attack[ing]” him and that the police conducted a “flawed” or

19 “skewed” investigation because Radosevich’s father is a city councilor with influence



                                             15
 1 over the law enforcement officers handling the investigation. During cross-

 2 examination, defense counsel attempted to ask Radosevich and one of the

 3 investigating detectives about the position Radosevich’s father held as a city councilor

 4 and his role on the scene immediately after the incident, but the district court sustained

 5 the State’s objections based on relevance.

 6   {29}   “We review the admission of evidence under an abuse of discretion standard

 7 and will not reverse in the absence of a clear abuse.” State v. Sarracino, 1998-NMSC-

 8 022, ¶ 20, 125 N.M. 511, 964 P.2d 72. “An abuse of discretion occurs when the ruling

 9 is clearly against the logic and effect of the facts and circumstances of the case.” Rojo,

10 1999-NMSC-001, ¶ 41 (internal quotation marks and citation omitted).

11   {30}   We cannot conclude the district court abused its discretion by sustaining the

12 State’s objections. Defense counsel claimed that the presence of Radosevich’s father

13 on the scene was relevant because he was so “riled up” about what had happened to

14 his daughter that the police nearly arrested him. As noted in the State’s briefing, the

15 reaction of Radosevich’s father shows that he responded “as any normal parent

16 would” after discovering what had happened to his daughter, not that he improperly

17 exerted his authority as a politician or ordered law enforcement to investigate the

18 incident a particular way. Defense counsel was unable to offer any other explanation

19 or proof that Radosevich’s father attempted to direct the investigation through his



                                               16
 1 words or conduct. We, therefore, cannot “characterize [the ruling] as clearly untenable

 2 or not justified by reason[,]” and we hold that the district court did not abuse its

 3 discretion. Id. (internal quotation marks and citation omitted).

 4 CONCLUSION

 5   {31}   We affirm all of Defendant’s convictions. However, we hold that the district

 6 court erred when it enhanced Defendant’s attempted armed robbery conviction by one

 7 year, pursuant to Section 31-18-16(A), and remand to the district court for

 8 resentencing. We further direct the district court to vacate Defendant’s convictions for

 9 Count 2 and Count 7.

10   {32}   IT IS SO ORDERED.


11                                                 ______________________________
12                                                 STEPHEN G. FRENCH, Judge


13 WE CONCUR:


14 ___________________________________
15 LINDA M. VANZI, Chief Judge


16 ___________________________________
17 JONATHAN B. SUTIN, Judge




                                              17
