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


 2 STATE OF NEW MEXICO,

 3       Plaintiff-Appellee,

 4 v.                                                          NO. 28,255

 5 CARLOS J. MALDONADO,

 6       Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
 8 Don Maddox, District Judge


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

12 for Appellee

13 Templeman and Crutchfield
14 C. Barry Crutchfield
15 Lovington, NM

16 for Appellant

17                             MEMORANDUM OPINION

18 WECHSLER, Judge.

19       Defendant Carlos Maldonado appeals the district court’s judgment and

20 sentence, convicting him of voluntary manslaughter and tampering with evidence.
 1 The district court instructed the jury on Defendant’s claim of self-defense. It did not,

 2 however, as requested by Defendant, instruct the jury in the elements instruction for

 3 voluntary manslaughter that Defendant did not act in self-defense. State v. Parish,

 4 118 N.M. 39, 43-44, 878 P.2d 988, 992-93 (1994), requires such instruction. The

 5 State argues on appeal that Parish does not require reversal and retrial of this case

 6 because the evidence did not entitle Defendant to a self-defense instruction.

 7        An entitlement to a jury instruction involves questions of law and fact, and we

 8 afford it de novo review on appeal. See State v. Lucero, 1998-NMSC-044, ¶ 5, 126

 9 N.M. 552, 972 P.2d 1143. A defendant is entitled to jury instructions based on the

10 defendant’s theory of the case when supported by evidence. Id. “Whenever there is

11 evidence, however slight, that the defendant acted in self-defense, the instruction

12 should be given.” State v. Sutphin, 2007-NMSC-045, ¶ 22, 142 N.M. 191, 164 P.3d

13 72. No instruction is necessary if the evidence does not raise a reasonable doubt that

14 the defendant acted in self-defense. Id. Thus, in this case, we must determine whether

15 the evidence of self-defense was sufficient to give rise to a reasonable belief that

16 Defendant acted in self-defense.

17        The district court instructed the jury that Defendant acted in self-defense if:

18              1.     There was an appearance of immediate danger of death or
19        great bodily harm to the defendant as a result of the approach of the

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 1        Black Durango at a high speed with belief of defendant that such
 2        Durango was occupied by Sammy Pinon; and

 3               2.    The defendant was in fact put in fear of immediate death or
 4        great bodily harm and defendant shot at such vehicle because of that
 5        fear; and

 6               3.    The apparent danger would have caused a reasonable person
 7        in the same circumstance to act as the defendant did.

 8 Thus, the defense embraces both the requirement of a subjective belief of Defendant,

 9 as well as the requirement that Defendant act as an objectively reasonable person

10 would have acted in Defendant’s place. See State v. Duarte, 1996-NMCA-038, ¶ 8,

11 121 N.M. 553, 915 P.2d 309 (stating that “there must have been some evidence that

12 an objectively reasonable person, put into [the d]efendant’s subjective situation, would

13 have thought” that action was necessary).

14        The State argues that there is insufficient evidence that Defendant “personally

15 perceived a risk of danger of death or great bodily harm as a result of the approaching

16 black Durango driven by Oswaldo Juarez, or that even if he did, any such fear would

17 have been objectively reasonable.” According to the State, Defendant left the house

18 after arguing with Harris Lee and opened fire with two guns in the direction of Harris

19 Lee and the black Durango. It argues that the ballistics evidence was clear that no one

20 shot at Defendant from the Durango and that Defendant knew that Oswaldo Juarez


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 1 was driving the Durango because Defendant saw him in it earlier that evening. The

 2 State thus concludes that Defendant did not or could not have perceived any danger

 3 from the Durango. The State further argues that there was no evidence that Defendant

 4 acted because he believed that Sammy Pinon was present, that someone thought that

 5 Sammy Pinon was present, or that someone shot at Defendant from the Durango.

 6        However, there was evidence that Sammy Pinon had shot at Defendant in the

 7 past, that Sammy Pinon had previously shot Defendant’s cousin Donald Trujillo, and

 8 that Sammy Pinon had driven a black SUV. When the Durango arrived at the scene,

 9 someone yelled “It’s Sammy.” When Defendant exited the house, there were multiple

10 shots from at least two, and as many as three, shooters. Harris Lee testified that there

11 were as many as thirty gunshots, and he could not testify as to who had shot first.

12 Oswaldo Juarez testified that there were three shooters when the shooting began and

13 also could not testify about who began shooting first. He gave the same information

14 to Detective J.B. Hardy. Donald Trujillo stated that there were multiple shots at the

15 same time from multiple weapons. Defendant was shot in the chest, apparently while

16 facing the Durango.

17        From this evidence, it would not be unreasonable for a jury to have a belief that

18 Defendant, having been previously shot at by Sammy Pinon and associating him with


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 1 a black SUV, thought that Sammy Pinon was approaching or had approached. Indeed,

 2 someone else had the same belief and called it out. The Durango approached quickly.

 3 Because there was testimony about multiple shots from different directions and lack

 4 of clarity as to who was the first shooter, it would not be unreasonable for the jury to

 5 have a belief that Defendant was shot at before he opened fire. In addition, even

 6 though the ballistics evidence may show that no one shot from or exited the Durango

 7 to shoot, at the time, with shots in the air, one of which hit Defendant in the chest, it

 8 would not have been unreasonable for the jury to have a belief that Defendant could

 9 have thought shots were coming from the direction of the Durango. Defendant was

10 entitled to a self-defense instruction if there was even slight evidence that he

11 reasonably acted in self-defense. Sutphin, 2007-NMSC-045, ¶ 22. The district court

12 concluded that there was such evidence. In our de novo review, we reach the same

13 conclusion.

14 CONCLUSION

15        We reverse the judgment and sentence and remand for a new trial.

16        IT IS SO ORDERED.

17                                                 _______________________________
18                                                 JAMES J. WECHSLER, Judge

19 WE CONCUR:

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1 _________________________________
2 MICHAEL D. BUSTAMANTE, Judge




3 _________________________________
4 RODERICK T. KENNEDY, Judge




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