                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           OCT 9 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    RAYMOND MICHAEL BERNAL,

                Petitioner-Appellant,

    v.                                                   No. 96-2280
                                               (D.C. No. CIV 94-1294 HB/JHG)
    RON LYTLE; ATTORNEY                                   (D. N.M.)
    GENERAL FOR THE STATE OF
    NEW MEXICO,

                Respondents-Appellees.


                             ORDER AND JUDGMENT *


Before TACHA, MCKAY, and BALDOCK, Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore,

appellant’s request for oral argument is denied, and this case is ordered submitted

without oral argument.



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Petitioner Raymond Michael Bernal appeals the district court’s dismissal of

his habeas corpus petition brought pursuant to 28 U.S.C. § 2254. 1 On appeal,

petitioner asserts that his consecutive twelve-year sentences for kidnaping and

two counts of second degree criminal sexual penetration and his consecutive

twelve-year sentences on the two counts of second degree criminal sexual

penetration violate the Double Jeopardy Clause of the Fifth Amendment. We

have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.



                                          I.

      We will set forth here only those facts of this case pertinent to our

disposition. During the early morning hours of October 7, 1985, petitioner was

following his female victim on the road to Chama, New Mexico. After petitioner

repeatedly flashed his lights behind her, the victim pulled her car to the side of

the road, and rolled down her window only four inches. Petitioner approached

her car, allegedly to inquire as to whether he was on the right road. When the


1
       Petitioner has moved this court for issuance of a certificate of appealability
to prosecute his appeal. Because he filed his habeas corpus petition on November
14, 1994, prior to the April 24, 1996 effective date of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), he does not need a certificate of
appealability to proceed. See United States v. Kunzman, No. 96-1310, 1997 WL
602507, at *1 n.2 (10th Cir. Oct. 1, 1997). Therefore, pursuant to the
requirements of 28 U.S.C. § 2253 in effect at the time petitioner filed in the
district court, we grant a certificate of probable cause and proceed to the merits of
petitioner’s appeal.

                                         -2-
victim turned to lower the volume on her car stereo, petitioner shoved his arm

into the window opening and unlocked her car door. He entered the victim’s car,

struggled with her for the car keys, which she managed to keep, and told her he

wanted to “make love to her.” He then exited the car and attempted to remove her

pants. She continued to struggle, so he hit her several times in the face and the

head and threatened to get a gun from his truck and kill her.

      When he attempted to take the victim to his truck, she managed to break

away and ran into the road in an attempt to flag down an approaching car.

Petitioner caught her, shoved her into the side of her car and threw her into a mud

puddle between the vehicles. He then pulled her to his truck and continued to hit

her until she removed her pants and entered the truck. Once the victim was laying

on the seat of the truck, petitioner got on top of her and raped her by putting his

penis in her vagina. He then had oral sex with her by placing his tongue in her

vagina. Following this act, he let her get up, and when she was outside the truck

attempting to put on her clothes, he said, “Wait, I’m not done,” and shoved her

back into the truck where he raped her again by putting his penis in her vagina.

      After the third rape, while the victim was attempting to return to her car,

petitioner grabbed her and asked if she had his truck keys. After ascertaining that

she did not have the keys, he let her go. She returned to a Circle K store where

she had previously asked directions of a police officer, and reported the attack.


                                          -3-
      Following a jury trial, at which petitioner presented no defense, he was

found guilty of two counts of second degree criminal sexual penetration (with

injury) (CSP II), one count of second degree kidnaping (holding for service), one

count of false imprisonment, and one count of assault with intent to commit a

violent felony. Upon a finding of aggravating circumstances, petitioner was

sentenced to twelve years’ imprisonment on each CSP II count and on the

kidnaping count to run consecutively. He was also sentenced to four years on the

false imprisonment count and two years on the assault count to run concurrently,

for a total of thirty-six years. His convictions were affirmed on direct appeal, and

his state habeas corpus petition was denied. The New Mexico Supreme Court

denied certiorari, and petitioner filed this action in federal court.



                                           II.

      In reviewing the denial of petitioner’s federal habeas corpus petition, we

accept the district court’s findings of fact unless clearly erroneous, and we review

the court’s conclusions of law de novo. See Matthews v. Price, 83 F.3d 328, 331

(10th Cir. 1996).

      The Double Jeopardy Clause of the Fifth Amendment protects against

imposing multiple punishments for the same offense. See North Carolina v.

Pearce, 395 U.S. 711, 717 (1969). “With respect to cumulative sentences


                                           -4-
imposed in a single trial, the Double Jeopardy Clause does no more than prevent

the sentencing court from prescribing greater punishment than the legislature

intended.” Missouri v. Hunter, 459 U.S. 359, 366 (1983). In determining

whether a defendant’s acts constitute a single criminal offense or separate

criminal offenses for double jeopardy purposes, we defer to the state court’s

interpretation of the relevant state statutes. See Brecheisen v. Mondragon, 833

F.2d 238, 240 (10th Cir. 1987).

      Initially, petitioner claims that his consecutive sentences for kidnaping and

CSP II violate double jeopardy because his conduct was unitary, and there is no

evidence that the New Mexico legislature intended multiple punishments for such

unitary conduct. In recommending denial of petitioner’s claim, the magistrate

judge relied on Blockburger v. United States, 284 U.S. 299 (1932). In

Blockburger, the Supreme Court held that “where the same act or transaction

constitutes a violation of two distinct statutory provisions, the test to be applied to

determine whether there are two offenses or only one is whether each provision

requires proof of an additional fact which the other does not.” Id. at 304.

      Interpreting the Blockburger test as “a canon of construction used to guide

courts in deciphering legislative intent,” Swafford v. State, 810 P.2d 1223, 1229

(N.M. 1991), the New Mexico Supreme Court formulated a two-part test for

determining legislative intent as to multiple punishments, see id. at 1233-34.


                                          -5-
First, the court must inquire as to “whether the conduct underlying the offenses is

unitary, i.e., whether the same conduct violates both statutes.” Id. at 1233. If this

question is answered in the negative, multiple punishments would not violate the

double jeopardy clause, and there is no need to proceed to the second prong of the

test. See id. at 1234. The second part of the test “asks whether the legislature

intended multiple punishments for unitary conduct.” Id.

      New Mexico law defines criminal sexual penetration as “the unlawful and

intentional causing of a person to engage in sexual intercourse, cunnilingus,

fellatio or anal intercourse or the causing of penetration, to any extent and with

any object, of the genital or anal openings of another, whether or not there is any

emission.” N.M. Stat. Ann. § 30-9-11(A). Here, petitioner was charged with

three counts of second degree criminal sexual penetration which, in this case, is

unlawful criminal sexual penetration committed “in the commission of any other

felony.” Id. § 30-9-11(D)(4). Kidnaping is defined as “the unlawful taking,

restraining, transporting or confining of a person, by force, intimidation or

deception with intent . . . that the victim be held to service against [her] will.” Id.

§ 30-4-1(A)(3). The New Mexico court has stated that, absent “‘special

circumstances’” requiring merger, “double jeopardy principles do not preclude

multiple punishment for both CSP II, felony, and kidnapping.” State v. Pisio, 889




                                           -6-
P.2d 860, 869 (N.M. Ct. App. 1994) (quoting State v. Tsethlikai, 785 P.2d 282,

285 (N.M. Ct. App. 1989)).

      Relying on State v. McGuire, 795 P.2d 996, 1000 (N.M. 1990), petitioner

argues that, pursuant to the applicable criminal statutes, it is possible for every

act of criminal sexual penetration also to constitute the act of kidnaping. In so

doing, petitioner misrepresents and misapplies the New Mexico Supreme Court’s

rationale and holding in McGuire, a case also addressing a defendant’s challenge

to his consecutive sentences for kidnaping and CSP II.

      In McGuire, the defendant and his brother forced their way into the

victim’s car. While his brother drove, the defendant forced the victim into the

back seat, then bound, gagged, and raped her. The pair eventually drove the

victim to an isolated spot where they murdered her. The court held that under the

evidence presented, the jury could have found an independent factual basis for the

two offenses, and therefore, the CSP II was not a lesser included offense of

kidnaping. See id. at 1001-02.

      Here, it is clear that petitioner’s intent to kidnap the victim for the purpose

of sexual service was formed at the time he initially restrained her in her car,

announcing that he intended to make love to her. See McGuire, 795 P.2d at 1001

(“Once [petitioner] restrained the victim with the requisite intent to hold her for

service against her will, he had committed the crime of kidnaping . . . .”). This


                                          -7-
conclusion is not altered by the fact that the kidnaping continued throughout the

subsequent struggles with the victim and the episodes of CSP II. See id.;

Brecheisen, 833 F.2d at 240-41 (holding that initial acts of battery were separate

and distinct from the battery which occurred during the CSP offense).

      “[P]roof of the commission of one crime by evidence that proves

commission of another may constitute double jeopardy only when, given the

elements of each crime, the one crime could not have been committed without the

commission of the other.” McGuire, 795 P.2d at 1001. Independent factual

evidence was presented at trial to prove each of the charges. The jury was at

liberty to infer that the factual evidence presented supported independent

convictions and sentences. We conclude, therefore, that, because the conduct

underlying the two crimes was not unitary, the first prong of the Swafford test has

not been established, and petitioner’s convictions and consecutive sentences for

those two crimes did not violate the constitution’s proscription against double

jeopardy.



                                        III.

      Next, petitioner argues that his constitutional right to be free from double

jeopardy was violated when he was sentenced to consecutive sentences for his

convictions on the two charges of CSP II. Under New Mexico law, “if the


                                         -8-
defendant commits two discrete acts violative of the same statutory offense, but

separated by sufficient indicia of distinctness, then a court may impose separate,

consecutive punishments for each offense.” Swafford, 810 P.2d at 1233; see also

Herron v. State, 805 P.2d 624, 628 (N.M. 1991) (the number of actual criminal

sexual penetrations is not dispositive of the number of violations of section

30-9-11, “absent proof that each act of penetration is in some sense distinct from

the others”). In determining whether one act is distinct from another, the court

considers:

      (1) temporal proximity of penetrations (the greater the interval
      between acts the greater the likelihood of separate offenses); (2)
      location of the victim during each penetration (movement or
      repositioning of the victim between penetrations tends to show
      separate offenses); (3) existence of an intervening event; (4)
      sequencing of penetrations (serial penetrations of different orifices,
      as opposed to repeated penetrations of the same orifice, tend to
      establish separate offenses); (5) defendant’s intent as evidenced by
      his conduct and utterances; and (6) number of victims (although not
      relevant here, multiple victims will likely give rise to multiple
      offenses).

Id.

      At trial, the victim testified that once petitioner had forced her into his

truck, he raped her. Following the first vaginal penetration with his penis, he

performed oral sex on her, and then allowed her to exit the truck. While she was

attempting to put her clothes on, petitioner shouted, “Wait! I’m not done,” at

which point he forced her back into the truck and committed another penile


                                          -9-
penetration of her vagina. The magistrate judge found these intervening events

sufficient to support separate convictions and sentences for each offense. We

agree.

         The two offenses were separated by the intervening act of petitioner’s

release of the victim. 2 Following the apparent release, petitioner forced the

victim back into the truck thereby repositioning her prior to the second penile

penetration. Petitioner’s conduct in allowing the victim to exit the truck and

begin to dress and his subsequent command to her to “Wait, I’m not done,” also

served to separate the two offenses into distinct acts. Therefore, applying the

Herron factors, we conclude that the conduct surrounding the first CSP II charge

was sufficiently distinct from the conduct surrounding the second CSP II charge

to support separate convictions and consecutive sentences. The conduct was not

unitary, and double jeopardy was not violated




2
       According to the victim’s testimony at trial the two offenses were also
separated by the intervening act of oral sex. The nurse attending the victim at the
hospital following the attack testified, however, that the victim told her the
petitioner had not performed oral sex on her. Consequently, although charged
with three counts of CSP II, petitioner was only convicted of the two counts
involving penile penetration.

                                          -10-
     The judgment of the United States District Court for the District of New

Mexico is AFFIRMED.



                                                 Entered for the Court

                                                 Deanell Reece Tacha
                                                 Circuit Judge




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