 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
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 6   IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                                   NO. 30,337

10 GUADALUPE URQUIZO,

11          Defendant-Appellant.


12 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
13 Robert S. Orlik, District Judge


14   Gary K. King, Attorney General
15   Margaret McLean, Assistant Attorney General
16   Joel Jacobsen, Assistant Attorney General
17   Santa Fe, NM

18 for Appellee


19 Jacqueline L. Cooper, Acting Chief Public Defender
20 Kathleen T. Baldridge, Assistant Appellate Defender
21 Santa Fe, NM

22 for Appellant


23                                 MEMORANDUM OPINION
 1 HANISEE, Judge.

 2        Defendant Guadalupe Urquizo appeals from his convictions of attempted

 3 first-degree murder and aggravated battery on a peace officer with a deadly

 4 weapon, both related to the stabbing of a corrections officer at the Curry County

 5 Detention Center with a jail-made weapon, commonly known as a “shank.” We

 6 reject Defendant’s arguments that the jury was not presented with sufficient

 7 evidence to support the requisite deliberate intent to kill. We further hold

 8 Defendant’s convictions for attempted first-degree murder and aggravated battery

 9 do not violate double jeopardy. Accordingly, we affirm Defendant’s convictions in

10 all respects.

11 FACTUAL SUMMARY

12        On October 23, 2008, Defendant was transported from the Curry County

13 Detention Center, where he was detained as a prisoner, to attend a court hearing.

14 Upon his return to the detention center later that afternoon, Defendant asked

15 Corrections Officer David Casanova whether he was allowed the recreation period

16 he missed while at court. When Officer Casanova said he would have to check

17 with his supervisor, Defendant grabbed the officer’s shoulder-mounted radio and

18 stated “use your fucking radio, that’s what it’s for.” In response to Defendant’s

19 aggressive behavior, Officer Casanova informed Defendant that he would not get


                                             2
 1 his recreation period as a consequence for grabbing the radio. The Defendant was

 2 returned to his “pod” and the officer continued with his duties.

 3        Several hours later, Officer Casanova and another corrections officer,

 4 Michael Turvey, entered Defendant’s pod to collect dinner trays. When they

 5 approached Defendant’s cell and opened his door to remove the trays within,

 6 Defendant stepped outside of his cell and asked again about his recreation period.

 7 Officer Casanova repeated his earlier decision that Defendant would not get his

 8 recreation time due to Defendant’s unauthorized touching of his radio. Defendant

 9 immediately leaped toward Officer Casanova, grabbed him around the shoulder,

10 and stabbed the officer five times with a metal shank he had concealed in his

11 waistband. Officer Turvey rushed to the aid of Officer Casanova, tackled

12 Defendant and caused all three participants to fall to the ground. Officer Casanova

13 suffered a broken hand from the fall and five superficial wounds from the

14 shank—two to the stomach, two to the upper right shoulder, and one to the upper

15 left arm. Only the wound to the stomach appears to have broken the skin, but each

16 caused discernible bruising and were visually apparent in photographs admitted

17 into evidence at trial. Officer Turvey’s hand was also injured in the melee, a

18 wound which he described to be “superficial . . . from reaching in the middle of

19 [Defendant] swinging . . . [and] trying to stop the situation[.]”



                                              3
 1        At trial, Defendant was convicted on counts of attempted first-degree murder

 2 of Officer Casanova, third-degree aggravated battery with a deadly weapon against

 3 both officers, and possession of a weapon by an inmate. On appeal before our

 4 Court, Defendant challenges his conviction for attempted murder, claiming that the

 5 evidence was insufficient to show deliberate intent to kill. Defendant also claims

 6 that his convictions for both aggravated battery and attempted murder violate the

 7 constitutional protections of double jeopardy. We discuss the merits of those

 8 claims below.

 9 DISCUSSION

10 The State Presented Adequate Evidence of Deliberate Intent to Kill

11        “In reviewing the sufficiency of the evidence, we must view the evidence in

12 the light most favorable to the guilty verdict, indulging all reasonable inferences

13 and resolving all conflicts in the evidence in favor of the verdict.” State v.

14 Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. Review for

15 substantial evidence “requires analysis of whether direct or circumstantial

16 substantial evidence exists and supports a verdict of guilt beyond a reasonable

17 doubt with respect to every element essential for conviction. We determine

18 whether a rational factfinder could have found that each element of the crime was

19 established beyond a reasonable doubt.” State v. Kent, 2006-NMCA-134, ¶ 10,

20 140 N.M. 606, 145 P.3d 86 (citations omitted).

                                              4
 1        In this case, Defendant restricts his argument on appeal to the element of

 2 intent, arguing that sufficient evidence was not presented for a rational jury to have

 3 found beyond a reasonable doubt that Defendant deliberately intended to kill

 4 Officer Casanova. Defendant is correct that specific intent to kill is required to

 5 support a conviction of attempted first-degree murder. State v. Hernandez,

 6 1998-NMCA-167, ¶ 10, 126 N.M. 377, 970 P.2d 149. The uniform jury

 7 instruction characterizes the required intent as deliberate intent and defines it as

 8 follows:

 9               A deliberate intention refers to the state of mind of the
10        defendant. A deliberate intention may be inferred from all of the facts
11        and circumstances of the killing. The word deliberate means arrived at
12        or determined upon as a result of careful thought and the weighing of
13        the consideration for and against the proposed course of action. A
14        calculated judgment and decision may be arrived at in a short period
15        of time. A mere unconsidered and rash impulse, even though it
16        includes an intent to kill, is not a deliberate intention to kill. To
17        constitute a deliberate killing, the slayer must weigh and consider the
18        question of killing and his reasons for and against such a choice.

19 UJI 14-201 NMRA.

20        Defendant argues that “there was no evidence from which the jury could

21 infer, without surmise and conjecture, that [Defendant] deliberately intended to

22 take the life of [Victim].” (Emphasis added.) We note initially that direct evidence

23 demonstrating Defendant’s intent to kill is not required. State v. Hoeffel, 112 N.M.

24 358, 361, 815 P.2d 654, 657 (Ct. App. 1991) (stating that “[i]ntent can be proved


                                              5
 1 by circumstantial evidence” alone). Moreover, “[i]ntent is subjective and is almost

 2 always inferred from other facts in the case . . . .” State v. Duran, 2006-NMSC-

 3 035, ¶ 7, 140 N.M. 94, 140 P.3d 515 (internal quotation marks and citation

 4 omitted).

 5        The sequence of events and evidence presented by the State supports an

 6 inference that because Defendant was enraged by Officer Casanova’s refusal to

 7 grant him a recreation period, he methodically plotted to kill the officer several

 8 hours later when the officer came to pick up his dinner tray. To this end,

 9 Defendant, who was admittedly angry at Officer Casanova, armed himself with a

10 shank prior to the arrival of the officers to his cell. Video evidence shows that

11 Defendant then waited at the entry to his cell where he again confronted Officer

12 Casanova about his recreation period. When he heard the officer’s second refusal,

13 he immediately launched a brutal attack that was also captured on videotape and

14 played for the jury. Officer Turvey testified that he believed the attack would

15 “have continued . . . had [he] not gotten involved. Finally, Investigator Sandy

16 Loomis testified that the shank used was “eight, almost ten inches long, [of] solid

17 metal, [and] . . . a very good weight,” which “could be used to inflict serious,

18 deadly harm to someone.” Despite the weight of evidence offered, Defendant

19 analogizes the facts of his case to those found to be insufficient in State v. Garcia,

20 114 N.M. 269, 837 P.2d 862 (1992) and distinguishes them from those found to be

                                              6
 1 sufficient in State v. Flores, 2010-NMSC-002, 147 N.M. 542, 226 P.3d 641. We

 2 agree that these two cases provide a good framework for analysis, representing the

 3 opposite ends of the spectrum in terms of defining sufficient evidence of deliberate

 4 intent to kill. But we disagree with Defendant’s conclusions as to which case is

 5 more factually similar to the facts herein. We hold Defendant’s case is more akin

 6 to Flores, and the many cases which similarly hold that sufficient evidence

 7 supported the jury’s verdict, than to the rare circumstances presented by Garcia.

 8 See State v. Riley, 2010-NMSC-005, ¶ 14, 147 N.M. 557, 226 P.3d 656; Duran,

 9 2006-NMSC-035, ¶ 8; State v. Sosa, 2000-NMSC-036, ¶ 14, 129 N.M. 767, 14

10 P.3d 32; Cunningham, 2000-NMSC-009, ¶ 28; State v. Rojo, 1999-NMSC-001, ¶

11 24, 126 N.M. 438, 971 P.2d 829.

12        In Garcia, the defendant had consumed large amounts of alcohol leading up

13 to and during the party where he later murdered his long-time friend. Garcia, 114

14 N.M. at 270, 837 P.2d at 863. Over the course of several hours during the party,

15 the defendant alternated between arguing and reconciling with the victim, before

16 ultimately engaging in a physical fight with the victim. Id. The physical

17 altercation ended when the defendant stabbed the victim in the chest, killing him.

18 Id. Although the defendant made incriminating statements before the

19 killing—“Remove Ray away from me or you’re not going to be seeing him for the

20 rest of the day,” and after—“I did it. I did it. I’m not ashamed to admit it. I told

                                              7
 1 my brother I did him and I’d do him again,” the Court held that “[t]here was no

 2 evidence to support the jury’s conclusion that . . . Garcia decided to stab [his

 3 victim] as a result of careful thought; that he weighed the considerations for and

 4 against his proposed course of action; and that he weighed and considered the

 5 question of killing and his reasons for and against this choice.” Id. at 274, 837

 6 P.2d at 867.

 7        Defendant’s behavior in the case at bar, however, did not demonstrate any

 8 intoxication or ambivalence with respect to the violence intended. Defendant had a

 9 motive, armed himself, waited for his victim, and when the opportunity presented

10 itself, repeatedly struck his victim with a deadly weapon. Indeed, the assault ended

11 only due to the intervention of another officer. Additionally, the jury was able to

12 see first-hand Defendant’s demeanor in the minutes preceding and during the

13 attack itself. In particular, the force and vigor with which Defendant’s attack was

14 perpetrated is compellingly documented by the State’s video evidence. We thus

15 conclude that the facts of this case are more closely analogous to those in Flores,

16 where the defendant stalked his victim, armed himself, lay in wait, confronted the

17 victim, and then stabbed him repeatedly with a screwdriver. Flores, 2010-NMSC-

18 002, ¶ 22.

19        We therefore conclude, as the Court did in Flores, that “[t]he totality of the

20 evidence in this record . . . supports rational findings by a jury that Defendant . . .

                                               8
 1 acted deliberately, rather than rashly and impulsively,” in attempting to kill Officer

 2 Casanova. Id. ¶ 24 (internal quotation marks and citation omitted). We therefore

 3 uphold the jury’s verdict and affirm Defendant’s conviction of attempted

 4 first-degree murder.

 5 Defendant’s Convictions for Aggravated Battery and Attempted Murder Do
 6 Not Violate Double Jeopardy

 7        Defendant argues that his “convictions for attempted first-degree murder and

 8 third-degree aggravated battery . . . violate the state and federal constitutional

 9 guarantees against double jeopardy because they subjected him to multiple

10 punishments for actions that amounted to only attempted murder.” As an initial

11 matter, we note that to preserve a claim under the New Mexico Constitution,

12 Defendant would have had to raise it in district court, and provide a basis on which

13 to interpret the state constitution more broadly than the federal constitution where,

14 as here, the provision in question has not been previously addressed under our

15 interstitial analysis. State v. Leyva, 2011-NMSC-009, ¶ 49, 149 N.M. 435, 250

16 P.3d 861. Defendant asserts protection under the New Mexico Constitution for the

17 first time on appeal, and the issue was therefore not preserved. Accordingly, we

18 analyze Defendant’s claims under the United States Constitution alone. See id. ¶ 8.

19        Defendant’s double jeopardy argument is a “double-description” claim; i.e.,

20 Defendant was convicted under two separate statutes, which may or may not be


                                              9
 1 considered the same offense for double jeopardy purposes. State v. Gutierrez,

 2 2011-NMSC-024, ¶ 49, 150 N.M. 232, 258 P.3d 1024. We apply what is

 3 “generally a two-part inquiry for double-description claims, first analyzing whether

 4 the conduct underlying the offenses is unitary, i.e., whether the same conduct

 5 violates both statutes[] and, if so, proceeding to analyze whether the legislature

 6 intended to create separately punishable offenses.” Id. ¶ 51 (internal quotation

 7 marks and citation omitted).

 8        Defendant argues that the conduct underlying his convictions for aggravated

 9 battery and attempted murder was unitary, and the State does not challenge the

10 point. We assume the conduct was unitary, without deciding, and move to the

11 second prong of analysis: whether the Legislature intended to separately punish

12 the same conduct under multiple statutes.

13        The State does not argue that the Legislature specifically provided for

14 multiple punishments for the conduct at issue, and we see no such intent on the

15 face of the attempted-murder and aggravated-battery statutes. See NMSA 1978, §

16 30-2-1 (1994); NMSA 1978, § 30-3-5 (1969); NMSA 1978, § 30-28-1 (1963).

17 When the Legislature has not clearly authorized multiple punishments, we examine

18 the statutory provisions underlying the convictions to determine “whether each

19 provision requires proof of a fact [that] the other does not.” Gutierrez, 2011-

20 NMSC-024, ¶ 56 (internal quotation marks and citation omitted). If that test

                                             10
 1 “establishes that one statute is subsumed within the other, the inquiry is over and

 2 the statutes are the same for double jeopardy purposes—punishment cannot be had

 3 for both.” Id. (citation omitted).

 4        As the parties note, this Court and our Supreme Court have recently

 5 examined convictions of aggravated battery and attempted murder to determine

 6 whether their combination is appropriate under the double jeopardy clause. See

 7 State v. Armendariz, 2006-NMSC-036, 140 N.M. 182, 141 P.3d 526; State v.

 8 Swick, 2010-NMCA-098, 148 N.M. 895, 242 P.3d 462, cert. granted, 2010-

 9 NMCERT-010, 149 N.M. 65, 243 P.3d 1147. In both instances, the convictions

10 were found not to violate the constitutional protection against double jeopardy.

11 Armendariz, 2006-NMSC-036, ¶ 30, Swick, 2010-NMCA-098, ¶ 29. Swick

12 followed Armendariz, holding that:

13        Controlling precedent exists with respect to [the d]efendant’s
14        challenge to his convictions for attempted murder and for aggravated
15        battery with a deadly weapon. In [Armendariz], our Supreme Court
16        held that convictions for both attempted murder and for aggravated
17        battery with a deadly weapon do not present a double jeopardy
18        problem because the elements of the offenses are not subsumed within
19        each other and because other factors indicate legislative intent to
20        separately punish.

21 Swick, 2010-NMCA-098, ¶ 20. In Swick, as here, “[d]espite the clear holding of

22 the majority in Armendariz, [the d]efendant urges this Court to adopt the position

23 of the dissenting justices. This we cannot do.” Id. ¶ 21. As long as Armendariz


                                            11
 1 remains good law, we are bound by its holding, however strenuously Defendant

 2 may argue that its dissent is better reasoned. We must therefore conclude that

 3 “convictions for attempted murder and aggravated battery [with a deadly weapon]

 4 do not violate the prohibition against double jeopardy.” Armendariz, 2006-NMSC-

 5 036, ¶ 25.

 6 CONCLUSION

 7        Because we hold that the jury was presented with sufficient evidence upon

 8 which to conclude that Defendant deliberately intended to kill Officer Casanova,

 9 and because we are bound by precedent to hold that Defendant’s convictions

10 present no impediment to his right to be free from double jeopardy, we affirm the

11 judgment of the district court.

12        IT IS SO ORDERED.


13                                                    ________________________
14                                                    J. MILES HANISEE, Judge




15 WE CONCUR:



16 ______________________________
17 CYNTHIA A. FRY, Judge


                                           12
1 ______________________________
2 LINDA M. VANZI, Judge




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