 1   This decision was not selected for publication in the New Mexico Reports. Please see Rule 12-
 2   405 NMRA for restrictions on the citation of unpublished decisions. Please also note that this
 3   electronic decision may contain computer-generated errors or other deviations from the official
 4   paper version filed by the Supreme Court and does not include the filing date.

 5         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO


 6 STATE OF NEW MEXICO,

 7          Plaintiff-Appellee,

 8 v.                                                           NO. 31,718

 9 ISRAEL MARQUEZ,

10          Defendant-Appellant.


11 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
12 Don Maddox, District Judge


13 Templeman and Crutchfield
14 C. Barry Crutchfield
15 Lovington, New Mexico

16 for Appellant

17 Gary K. King, Attorney General
18 M. Victoria Wilson, Assistant Attorney General
19 Albuquerque, NM

20 for Appellee


21                                            DECISION
 1 CHÁVEZ, Chief Justice.

 2        Defendant appeals his felony murder conviction, arguing that his pretrial

 3 plea of guilty to the predicate felony, followed by the post-conviction dismissal of

 4 the predicate felony by the court, requires the felony murder conviction to be set

 5 aside. We disagree and affirm the convictions.

 6        Defendant was charged with first degree murder, conspiracy to commit first

 7 degree murder, attempted armed robbery, conspiracy to commit armed robbery,

 8 and tampering with evidence. These charges stemmed from an attempted armed

 9 robbery of an Allsup’s Convenience Store which resulted in the death of the

10 Allsup’s clerk.     Before trial began, Defendant sought to plead no contest to the

11 attempted armed robbery count. However, the State argued against the no contest

12 plea, contending that such a plea would prejudice the State and the presentation of

13 its evidence at trial. As a result, Defendant changed his plea from no contest to

14 guilty, knowing that the State intended to advise the jury of the plea. Immediately

15 after accepting the plea, Defendant asked the district court to dismiss the felony

16 murder count, since Defendant pled guilty to the predicate felony. The motion was

17 denied and Defendant was found guilty by a jury of felony murder, conspiracy to

18 commit armed robbery, and tampering with evidence.

19        While discussing the jury instructions, the district court asked how the State

20 intended to inform the jury that Defendant committed the crime of attempted


                                             1
 1 armed robbery. See UJI 14-202 NMRA. The State responded that attempted

 2 armed robbery was no longer an issue, and therefore an abbreviated instruction on

 3 attempted armed robbery should be given. See UJI 14-2801 NMRA. Rather than

 4 instructing the jury that the State had to prove the elements of attempted armed

 5 robbery, the jury was instructed that (1) Defendant intended to commit the crime of

 6 armed robbery, (2) Defendant started to do an act that constituted a substantial part

 7 of the armed robbery, but failed to commit the armed robbery, and (3) this occurred

 8 in New Mexico on or about November 5, 2007. Both parties agreed that this

 9 instruction would best serve the purpose of informing the jury that Defendant

10 attempted to commit armed robbery. Defendant was found guilty by the jury.

11 After the verdict was reported, the State immediately moved to vacate the

12 attempted armed robbery charge. Defendant agreed, and stated “we believe that

13 has to be dismissed with prejudice under [the] circumstance[s].” The charge was

14 dismissed with prejudice. Defendant then filed a motion to set aside the felony

15 murder conviction, arguing that attempted armed robbery was the predicate felony

16 for the felony murder charge, and when the armed robbery charge was dismissed,

17 there was no longer a predicate felony to support the felony murder charge. The

18 district court denied this motion and Defendant was sentenced to life plus five and

19 one-half years. Defendant appeals directly to this Court the denial of his motion to

20 set aside the felony murder verdict. See N.M. Const. art. VI, § 2; Rule 12-


                                             2
 1 102(A)(1) NMRA (direct appeal to Supreme Court where sentence of death or life

 2 imprisonment has been imposed).

 3 DISMISSAL OF PREDICATE FELONY DOES NOT REQUIRE
 4 DISMISSAL OF THE FELONY MURDER CONVICTION

 5        Defendant argues that dismissal of the predicate felony mandates dismissal

 6 of the felony murder conviction, since there is no longer a predicate felony to

 7 support the felony murder conviction. We review the district court decision de

 8 novo, since Defendant concedes that “[a]ny analysis of the evidence offered by the

 9 State reflects clear evidence of the killing of Virginia Land by [Defendant].”

10 Jicarilla Apache Nation v. Rodarte, 2004-NMSC-035, ¶ 24, 136 N.M. 630, 103

11 P.3d 554 (“[T]he facts are not in dispute. Instead, the parties disagree about the

12 legal conclusion to draw from those facts. Thus, we are faced with a pure question

13 of law, which we review de novo.”); see also State v. Mondragon,

14 2008-NMCA-157, ¶ 6, 145 N.M. 574, 203 P.3d 105 (“[W]e review de novo the

15 denial of the motion to dismiss.”).

16        To support his argument that the felony murder conviction must be set aside,

17 Defendant cites State v. DeSantos, 89 N.M. 458, 553 P.2d 1265 (1976) for the

18 proposition that dismissing the predicate felony post-conviction is similar to

19 having insufficient evidence on the predicate felony. In DeSantos, we held that the

20 instruction on felony murder was erroneously given because there was insufficient

21 evidence to support the predicate felony of rape. 89 N.M. at 461, 462, 553 P.2d at

                                             3
 1 1268, 1269. Without evidence to support a predicate felony, it was inappropriate

 2 to instruct on felony murder. Id. at 461, 553 P.2d at 1268. In this case, there was

 3 evidence to support the predicate felony of attempted armed robbery. Defendant

 4 pled guilty to the charge and agreed to instruct the jury that he had committed the

 5 offense. State v. Garcia, 1996-NMSC-013, 121 N.M. 544, 548, 915 P.2d 300, 304

 6 (“When a defendant pleads guilty, he is admitting to all the elements of a formal

 7 criminal charge.” (internal quotation marks and citation omitted)). There simply is

 8 no legitimate question about the sufficiency of the evidence to support the

 9 predicate felony.

10        As an alternative argument, Defendant contends that “had the State sought to

11 vacate the predicate offense for reasons of double jeopardy issues, a totally

12 different matter would be presented.” We see no reason to draw a distinction

13 between the State requesting that the predicate felony be vacated without stating a

14 specific reason versus asking that the predicate felony be dismissed specifically to

15 avoid violating the constitutional prohibition against double jeopardy. The

16 fundamental question is whether the district court erred in refusing to set aside the

17 felony murder conviction after dismissing the predicate felony. We hold that it did

18 not err.

19        A defendant simply cannot be convicted for both felony murder and the

20 predicate felony. See State v. Frazier, 2007-NMSC-032, ¶ 1, 142 N.M. 120, 164


                                              4
 1 P.3d 1 (“the predicate felony is always subsumed into a felony murder conviction,

 2 and no defendant can be convicted of both.”); State v. Bernal, 2006-NMSC-050, ¶

 3 10, 140 N.M. 644, 146 P.3d 289; State v. Contreras, 120 N.M. 486, 492, 903 P.2d

 4 228, 234 (1995). Under our current double jeopardy law as it relates to felony

 5 murder, the district court was obligated to dismiss the predicate felony charge

 6 when Defendant was convicted of felony murder. See Bernal, 2006-NMSC-050, ¶

 7 10 (“If the predicate felony and felony murder are unitary, then the predicate

 8 felony must be dismissed because it is subsumed within the elements of felony

 9 murder.” (emphasis added)); Contreras, 120 N.M. at 492, 903 P.2d at 234

10 (“[A]llowing the conviction to stand or allowing sentencing on that conviction

11 would impose multiple punishments in violation of the Double Jeopardy Clause.”).

12 The district court was correct in dismissing the predicate felony and in declining to

13 dismiss the felony murder count. Accordingly, we affirm Defendant’s conviction

14 and sentence for felony murder.

15        IT IS SO ORDERED.



16                                        ________________________________
17                                        EDWARD L. CHÁVEZ, Chief Justice


18 WE CONCUR:




                                             5
1 ________________________________
2 PATRICIO M. SERNA, Justice



3 ________________________________
4 PETRA JIMENEZ MAES, Justice



5 ________________________________
6 RICHARD C. BOSSON, Justice



7 ________________________________
8 CHARLES W. DANIELS, Justice




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