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                                                             New Mexico Compilation
                                                           Commission, Santa Fe, NM
                                                          '00'04- 10:46:42 2012.09.27
Certiorari Denied, August 13, 2012, No. 33,717

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-095

Filing Date: June 18, 2012

Docket No. 30,439

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

SONNY J. GUTIERREZ,

       Defendant-Appellant.


APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
James Waylon Counts, District Judge

Gary K. King, Attorney General
Santa Fe, NM
Francine A. Chavez, Assistant Attorney General
Albuquerque, NM

for Appellee

Jacqueline L. Cooper, Chief Public Defender
Will O’Connell, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                       OPINION

HANISEE, Judge.

{1}    This case is among the flood of “double-description” type double jeopardy challenges
this Court reviews each year. And while the legal path in this area is well worn, the facts
here are surprisingly novel. Sonny Gutierrez (Defendant), a former employee of the

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Kentucky Fried Chicken (KFC) restaurant in Alamogordo, robbed nearly ten-thousand
dollars from KFC assistant manager Louann Logan during her daily-deposit routine of
KFC’s proceeds. Ms. Logan, whom Defendant struck in the face while simultaneously
relieving her of the money, also happened to be his girlfriend of two months. That unlikely
merger of robbery and romance netted Defendant separate convictions based on two distinct
statutes: (1) robbery, contrary to NMSA 1978, Section 30-16-2 (1973), and (2) battery
against a household member, contrary to NMSA 1978, Section 30-3-15 (2008). On appeal,
Defendant argues that because both convictions arose from the same criminal conduct, his
double jeopardy rights were violated. Applying our precedent in this area, we hold that
Defendant’s unique combination of convictions does not offend our notions of double
jeopardy. Accordingly, we affirm.

BACKGROUND

{2}    The State presented Ms. Logan as a witness at trial. She testified that she had known
Defendant for three years, first as an employee at the KFC where she was assistant manager,
and most recently as her boyfriend. Several weeks prior to the robbery, however, Defendant
resigned his employment with KFC.

{3}     On the morning of July 28, 2008, Ms. Logan drove to Defendant’s motel room,
where he had been living with his three children, in order to transport Defendant to a local
fast-food restaurant and purchase breakfast for his children. After driving Defendant to the
restaurant, providing money for breakfast, and also lending Defendant her cell phone, Ms.
Logan reported for work at KFC.

{4}     While on duty, Ms. Logan received several calls from Defendant in which he told her
that he wanted to return her cell phone to her at work. Ms. Logan agreed to meet Defendant
outside KFC, and while awaiting his arrival she prepared two money bags containing KFC’s
proceeds for a routine deposit she planned to make at a nearby bank.

{5}      When Ms. Logan exited the store with the money bags, Defendant was waiting for
her in the passenger seat of a truck parked alongside Ms. Logan’s vehicle. Ms. Logan talked
with Defendant briefly as she approached and then entered the driver’s side of her vehicle.
While her door remained open, Defendant exited the truck and walked toward Ms. Logan’s
vehicle under the guise of delivering her cell phone. Instead, he suddenly grabbed the two
money bags and struck Ms. Logan with his fist on the side of her face. Defendant
immediately re-entered the truck with the money, instructed the driver to “go,” and fled the
scene.

{6}    Police later arrested Defendant, and he was charged with both robbery and
aggravated battery against a household member. At the subsequent trial, however, the jury
was instructed only as to robbery and the lesser charge of simple battery against a household
member. Defendant was convicted of both, and now brings this appeal on double jeopardy
grounds, pursuant to both the United States and New Mexico Constitutions. He argues that

                                             2
he was impermissibly punished twice for the same underlying criminal conduct. We address
the merits of Defendant’s appeal below.

DISCUSSION

{7}     The double jeopardy clause established within the Fifth Amendment of the United
States Constitution, and echoed within Article II, Section 15 of the New Mexico
Constitution, states that “nor shall any person be subject for the same offense to be twice put
in jeopardy of life or limb.” U.S. Const. amend. V. One of the functions of that clause is
to protect “against multiple punishments for the same offense.” State v. Gutierrez, 2011-
NMSC-024, ¶ 49, 150 N.M. 232, 258 P.3d 1024 (internal quotation marks and citation
omitted).

{8}      As with all constitutional questions of law, we review double jeopardy claims de
novo. State v. Quick, 2009-NMSC-015, ¶ 6, 146 N.M. 80, 206 P.3d 985. And because
Defendant’s claim is a double-description type double jeopardy claim, which involves
convictions of multiple statutes based on the same criminal conduct, we apply the analysis
set out in Swafford v. State, 112 N.M. 3, 8-9, 810 P.2d 1223, 1228-29 (1991). The Swafford
analysis provides a two-part inquiry for double-description claims: first analyzing “whether
the conduct underlying the offenses is unitary, i.e., whether the same conduct violates both
statutes,” and, if so, proceeding to analyze “whether the legislature intended to create
separately punishable offenses.” 112 N.M. at 13, 810 P.2d at 1233.

{9}     The parties agree that the criminal activity herein amounts to unitary conduct under
the first prong. A brief review of the facts offered at trial supports that consensus.
Defendant struck Ms. Logan in the face in nearly the same motion as he relieved her of
KFC’s money bags. The blow and the robbery “were not separated by any significant time
or space; they were part of one continuous and compressed chain of events.” State v.
Fuentes, 119 N.M. 104, 105, 888 P.2d 986, 987 (Ct. App. 1994). Accordingly, we move to
an analysis of the second prong of Swafford—legislative intent. State v. Franco, 2005-
NMSC-013, ¶ 11, 137 N.M. 447, 112 P.3d 1104 (noting that when the conduct is unitary,
“we proceed to the second part of the Swafford analysis to determine whether the Legislature
intended to allow multiple punishments based on the facts and circumstances of this case”).

{10} “[T]he sole limitation on multiple punishments is legislative intent, and, unless the
Legislature clearly authorized multiple punishments, we apply the test articulated in
Blockburger v. United States, 284 U.S. 299, 304 (1932), to determine that intent.” Franco,
2005-NMSC-013, ¶ 12 (alteration in original) (internal quotation marks and citation
omitted). Here, the State does not contend that the Legislature has expressly provided for
multiple punishments. Indeed, neither Section 30-16-2 nor Section 30-3-15 contains any
language that would guide our analysis with respect to overlapping punishment. Absent
express legislative authorization of multiple punishments, we thus proceed to an application
of the Blockburger test. See Swafford, 112 N.M. at 14, 810 P.2d at 1234.


                                              3
{11} Blockburger provides 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 a fact which the other does
not.” 284 U.S. at 304. “In applying the Blockburger test, this Court compares the elements
of each crime with the elements of the other . . . .” State v. Lee, 2009-NMCA-075, ¶ 9, 146
N.M. 605, 213 P.3d 509. “If each statute requires proof of a fact that the other does not, it
may be inferred that the Legislature intended to authorize separate punishments under each
statute.” State v. Swick, 2012-NMSC-018, ¶ 13, ___ P.3d ___ (No. 32,510, Jun. 1, 2012)
(emphasis added).

{12} In this case, Defendant concedes that “[t]he elements of battery [against] a household
member do . . . contain an element that is extraneous to the elements of robbery: [Ms.]
Logan’s status as a ‘family member[,]’ . . . [which] introduce[s] a formal element that, under
the Blockburger test, establishes the battery as a crime distinct from the robbery.” Indeed,
the statute requires proof of “the unlawful, intentional touching or application of force to the
person of a household member, when done in a rude, insolent or angry manner.” Section 30-
3-15(A) (emphasis added). “[H]ousehold member” is defined broadly as including “a person
with whom a person has had a continuing personal relationship”—or in other words, “a
dating or intimate relationship.” NMSA 1978, § 30-3-11 (2008) (amended 2010). Robbery,
of course, contains no requirement that the victim have any specific relationship to the
assailant. See § 30-16-2 (using the broad term, “the person of another”). The crime of
robbery likewise contains an element extraneous to the battery: “the theft of anything of
value.” Id. Battery simply requires the application of force, not the deprivation of property.
Considered together, the coupled offenses are elementally distinct.

{13} Under a strict application of Blockburger then, an inference arises that our
Legislature intended separate punishment because “each statute requires proof of an element
that the other does not.” Caldwell, 2008-NMCA-049, ¶ 11. Defendant acknowledges as
much, but argues that we should (1) instead apply the situationally modified Blockburger
analysis adopted by our Supreme Court in Gutierrez, or (2) conclude that the inference is
overcome based on other indicia of legislative intent. While Defendant in fact correctly
assesses the difficulties he faces under our traditional Blockburger analysis, we disagree with
his assertion of how he circumvents its reach.

{14} First, even were we to apply the modified Blockburger analysis as adopted in
Gutierrez—and it is not clear that we should—Defendant’s battery against a household
member conviction still cannot be subsumed within the robbery conviction. Gutierrez
applies when one of the statutes at issue is written with many alternatives, or is vague or
unspecific. Then, a reviewing court should “look at the legal theory of the offense that is
charged,” “instead of looking at the statute in the abstract” when comparing elements under
Blockburger. Gutierrez, 2011-NMSC-024, ¶ 58 (internal quotation marks and citation
omitted). Here, a comparison of the elements as written in the tendered jury instructions,
which evince the State’s legal theory, demonstrates the same extraneous elements present
under our analysis of the statutes.

                                               4
{15} The jury was instructed as to the battery against a household member charge,
pursuant to Section 30-3-15, as follows:

              For you to find the defendant guilty of battery on a household
       member, . . . the state must prove to your satisfaction beyond a reasonable
       doubt each of the following elements of the crime:

               1.     The defendant intentionally touched or applied force to Ms.
                      Louann Logan by hitting her in the face with his hand;

               2.     The defendant acted in a rude, insolent or angry manner;

               3.     Louann Logan is a household member;

               4.     This happened in New Mexico on or about the 28th day of
                      July, 2008.

(Emphasis added.)

In comparison, the jury received the following elemental instructions on robbery, pursuant
to Section 30-16-2:

              For you to find the defendant guilty of robbery[,] . . . the state must
       prove to your satisfaction beyond a reasonable doubt each of the following
       elements of the crime:

               1.     The defendant took and carried away a bank bag containing
                      US Currency from Louann Logan, or from her immediate
                      control intending to permanently deprive Louann Logan and
                      Kentucky Fried Chicken of the property[;]

               2.     The defendant took the bank bag by force or violence[;]

               3.     This happened in New Mexico on or about the 28th day of
                      July 2008.

(Emphasis added.)

{16} Under the battery charge, the State was required to show—and the jury was required
to find—that Ms. Logan was a household member. That relationship was not a required
element of the robbery charge. That “the person” referred to in the robbery statute was Ms.
Logan, who happened to also be a household member based on her intimate relationship with
Defendant, does not alter the State’s legal theory of robbery. That theory simply required
identification of a “person,” not the showing of any particular relationship between “the

                                             5
person” and Defendant. See § 30-16-2. With respect to the robbery charge, the State’s legal
instructions require a finding that Defendant “took and carried away a bank bag.” Likewise,
that requirement does not appear in the battery charge. Therefore, even under the modified
Blockburger test, in which we analyze the fact-specific theory of the case, robbery and
battery against a household member each requires proof of a fact that the other does not.
Accordingly, we continue to infer that the Legislature intended separate punishment.

{17} As a final argument, Defendant maintains that the inference is negated by an
examination of the common purpose behind both the robbery and battery against a household
member statutes. To that end, Defendant argues that “[t]he two statutes at issue here protect
similar societal interests”—protection of the person against the threat of injury. While we
agree that such an inference of Legislative intent based on elemental distinctness may be
called into question by “other indicia of legislative intent, including the language, history,
and subject of the statutes, the social evils sought to be addressed by each statute, and the
quantum of punishment prescribed by each statute,” State v. Almeida, 2008-NMCA-068, ¶
11, 144 N.M. 235, 185 P.3d 1085 (internal quotation marks and citation omitted), we
decline to read the purpose of the statutes in such a broadly homogenous manner.

{18} We note that our Supreme Court recently clarified this analysis by explaining that
elemental distinctness between two crimes results in merely an inference “that leads to an
examination of other indicia of legislative intent.” Swick, 2012-NMSC-018, ¶ 13 (emphasis
added). And that “[i]f after examining the relevant indicia the legislative intent remains
ambiguous, the rule of lenity requires us to presume that the Legislature did not intend
multiple punishments for the same conduct.” Id. Nonetheless, we conclude that even after
such an examination, the legislative intent here is not ambiguous. The distinct policy
directives and subject matter of robbery and battery against a household member, and their
rare occurrence together, persuade us that the legislature intended these crimes to be
punished separately, even when they occur as part of the same criminal transaction.

{19} In Fuentes, this Court distinguished the policy directives of robbery and aggravated
battery. 119 N.M. at 109, 888 P.2d at 991. The Court recognized the robbery statute as
“primarily directed toward protection of property interests,” and the aggravated battery
statute as “address[ing] the use of force . . . directed against a person.” 119 N.M. at 106,
108, 888 P.2d at 988, 990 (“Whereas robbery primarily protects property, aggravated battery
directly protects people.”). And though the Court acknowledged that “[b]oth aggravated
battery and armed robbery may involve the use of force,” it stated that “[w]e have no
difficulty concluding that these two criminal statutes regulate distinct deviant social conducts
and protect separate, societal interests.” Id.

{20} We conclude that the statutes which regulate robbery and battery against a household
member are similarly distinct in purpose. As Fuentes has already recognized, robbery
primarily addresses the protection of property, albeit specific to takings by force. And
similar to aggravated battery, simple battery protects persons from the impermissible
application of force. But battery against a household member even more specifically

                                               6
protects against the use of that force when it is directed at a certain group of
people—household members. Thus, the legislative purpose of criminalizing battery against
a household member applies to a narrower class of persons than either aggravated or simple
battery. Guided by the logic that underpins this Court’s holding in Fuentes, we must
conclude that the separate crimes of robbery and battery against a household member
likewise address distinct deviant social conduct, even when simultaneously committed.

{21} We also follow Fuentes’ reasoning with respect to the quantum of punishment
authorized for each crime. Under Swafford, “[w]here one statutory provision incorporates
many of the elements of a base statute, and extracts a greater penalty than the base statute,
it may be inferred that the legislature did not intend punishment under both statutes.” 112
N.M. at 15, 810 P.2d at 1235. Here, as in Fuentes, robbery carries three times the potential
punishment of battery against a household member— a fact that initially favors Defendant’s
position. 119 N.M. at 109, 888 P.2d at 991. But also like Fuentes, battery against a
household member is not a “base statute” for robbery, just as aggravated battery is not a base
statute for armed robbery. Id. “The two stand alone, with independent elements and
separate policy objectives.” Id.

{22} Furthermore, we are not aware of any evidence that these two statutes are likely to
be violated together. See State v. Gonzales, 113 N.M. 221, 225, 824 P.2d 1023, 1027 (1992)
(listing a determination of “whether the statutes are usually violated together” as relevant to
an examination of legislative intent). To the contrary, there does not appear to be a single
case in our State’s appellate history in which a defendant was charged with both robbery and
battery against a household member for the same criminal event. We therefore conclude,
as this Court did in Fuentes, that our inference under Blockburger is undisturbed and “that
separate punishment is, indeed, consistent with legislative intent and does not constitute
double jeopardy.” Fuentes, 119 N.M. at 108-09, 888 P.2d at 990-91.

CONCLUSION

{23} Defendant’s convictions for both robbery and battery against a household member
are affirmed.

{24}   IT IS SO ORDERED.

                                               ____________________________________
                                               J. MILES HANISEE, Judge

WE CONCUR:

____________________________________
JAMES J. WECHSLER, Judge

____________________________________

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LINDA M. VANZI, Judge

Topic Index for State v. Gutierrez, No. 30,439

CONSTITUTIONAL LAW
Double Jeopardy

CRIMINAL LAW
Battery
Domestic Violence
Robbery

CRIMINAL PROCEDURE
Double Jeopardy




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