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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. 30,637

 5 ANTONIO MARTINEZ,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF CHAVEZ COUNTY
 8 Steven L. Bell, District Judge

 9   Gary K. King, Attorney General
10   Santa Fe, NM
11   Francine A. Baca-Chavez, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Liane E. Kerr
15 Albuquerque, NM

16 for Appellant



17                                 MEMORANDUM OPINION
 1 CASTILLO, Chief Judge.

 2       In August 2010, Martinez appealed to this Court, arguing that his right to be

 3 free from double jeopardy was violated when he was convicted of both attempted

 4 second degree murder and shooting at a motor vehicle. [DS 3] In November 2010,

 5 this Court issued a memorandum opinion affirming Martinez’s convictions based on

 6 State v. Mireles, 2004-NMCA-100, ¶¶ 29-30, 136 N.M. 337, 98 P.3d 727, and State

 7 v. Gonzales, 113 N.M. 221, 225, 824 P.2d 1023, 1027 (1992). [Ct. App. File]

 8 Martinez petitioned the New Mexico Supreme Court for a writ of certiorari, and the

 9 writ was granted in January 2011. [Ct. App. File] In July 2012, our Supreme Court

10 quashed the writ of certiorari and remanded the case to this Court for further

11 consideration in light of State v. Swick, 2012-NMSC-018, 279 P.3d 747. [Ct. App.

12 File] On remand, we issued a notice of proposed summary disposition proposing to

13 reverse. The State has responded with a memorandum in opposition that we have duly

14 considered. Because we are not persuaded by the State’s memorandum, we reverse.

15       In our notice of proposed summary disposition, we proposed to conclude that

16 Martinez’s conduct was unitary.     Accordingly, we proposed to apply State v.

17 Gutierrez, 2011-NMSC-024, ¶ 58, 150 N.M. 232, 258 P.3d 1024, which altered the

18 analysis to be employed in determining whether the Legislature intended to permit

19 separate punishments for unitary conduct. Under Gutierrez, although a court should

                                           2
 1 still look at the elements of the offenses to see if each statute contains an element that

 2 the other does not, this is not the end of the inquiry for determining whether one

 3 offense is subsumed by the other. Id. ¶¶ 55-56. When a statute is “vague and

 4 unspecific,” id. ¶ 59 (internal quotation marks omitted), a court must determine

 5 whether an offense subsumes another by considering the State’s legal theory of the

 6 crimes, id. ¶ 58. If an offense subsumes another, the statutes are the same for double

 7 jeopardy purposes and the defendant cannot be convicted of both. Id. ¶ 56. Swick

 8 held that attempted murder is “vague and unspecific” for purposes of a double

 9 jeopardy analysis since many forms of conduct can support the element of beginning

10 to do an act that constitutes a substantial part of murder. 2012-NMSC-018, ¶ 25.

11        Applying Gutierrez and Swick, we proposed to hold that Martinez’s convictions

12 for both attempted murder and shooting at a motor vehicle violated double jeopardy.

13 Martinez fired a single shot at the victim in his car, and this shot constituted the

14 underlying conduct supporting both the charge of shooting at a motor vehicle and the

15 charge of attempted murder. Accordingly, we proposed to conclude that the conduct

16 underlying the charges was unitary and that the elements of attempted murder

17 subsumed the elements of shooting at a motor vehicle.

18        In the State’s memorandum in opposition, it concedes that Martinez’s conduct

19 was unitary. [MIO 7] It also acknowledges that Swick mandates that we apply


                                               3
 1 Gutierrez’s modified test for determining legislative intent in this case. [MIO 8-9]

 2 Nevertheless, rather than simply applying Gutierrez and Swick to determine whether,

 3 under the State’s theory of the case, the offense of shooting at a motor vehicle is

 4 subsumed by the offense of attempted murder, the State asks this Court to engage in

 5 the analysis and then to go further to look at other indicia of legislative intent. As the

 6 State’s proposed analysis is contrary to Gutierrez and Swick, we decline to apply it.

 7 Under Gutierrez and Swick, the fact that one offense was subsumed within the other

 8 under the State’s theory of the case renders conviction of both a double jeopardy

 9 violation.

10         Accordingly, for the reasons stated in this opinion and in our notice of proposed

11 summary disposition, we reverse. We remand to permit Martinez to withdraw his

12 plea, or, if the State agrees, for the district court to vacate his sentence for shooting at

13 a motor vehicle. See State v. Handa, 120 N.M. 38, 46, 897 P.2d 225, 233 (Ct. App.

14 1995) (holding that when a defendant has been convicted pursuant to a plea agreement

15 of a crime in violation of his double jeopardy rights, he is permitted to withdraw his

16 plea, unless, in the state’s discretion, it agrees to vacate the improper conviction).

17         IT IS SO ORDERED.



18                                            __________________________________
19                                            CELIA FOY CASTILLO, Chief Judge

                                                4
1 WE CONCUR:



2 __________________________________
3 MICHAEL E. VIGIL, Judge



4 __________________________________
5 TIMOTHY L. GARCIA, Judge




                                  5
