 1       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 Opinion Number: ____________

 3 Filing Date: February 16, 2016

 4 NO. 33,564

 5 STATE OF NEW MEXICO,

 6         Plaintiff-Appellee,

 7 v.

 8 REQUILDO CARDENAS,

 9         Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
11 Sarah C. Backus, District Judge

12   Hector H. Balderas, Attorney General
13   Santa Fe, NM
14   M. Victoria Wilson, Assistant Attorney General
15   Albuquerque, NM

16 for Appellee

17   Alan Maestas Law Office, P.C.
18   Kathryn J. Hardy
19   Alan H. Maestas
20   Taos, NM

21 for Appellant
 1                                        OPINION

 2 KENNEDY, Judge.

 3   {1}   A formal opinion in this matter was filed on February 2, 2016. We hereby

 4 withdraw that opinion and substitute it with this Opinion to correct an oversight. The

 5 victim was referred to as “Matthew Lucero” in the preceding opinion, and the correct

 6 name of victim is “Matthew Lujan.”

 7   {2}   Defendant shot and killed an unknown intruder, who he later discovered was

 8 his friend, by firing a single fatal shot through his front door in the early hours of the

 9 morning. Defendant appeals the district court’s refusal to give a defense of habitation

10 instruction as well as an involuntary manslaughter instruction. We conclude that

11 adequate evidence was presented to warrant the giving of both. We therefore reverse.

12 I.      BACKGROUND

13   {3}   Matthew Lujan and Defendant, Requildo Cardenas, were close friends. At

14 approximately 1:30 a.m., on July 5, 2012, Lujan was involved in a fight at a party.

15 Enraged by the fight, Lujan left the party and drove immediately to Defendant’s

16 home. Lujan arrived at Defendant’s home, opened the screen door, and began

17 knocking and pounding on the door within. Lujan’s actions were loud enough to

18 rouse Defendant from sleep. Defendant armed himself and demanded that the visitor

19 identify himself. Defendant received no answer in response to his demand, and the
 1 intruder continued pounding on the door. Defendant fired a single shot through the

 2 front door, which killed Lujan. When Defendant fired the fatal shot, Lujan’s identity

 3 was unknown to him.

 4   {4}   Defendant was tried for voluntary manslaughter.1 He requested jury

 5 instructions on defense of habitation and involuntary manslaughter. The district court

 6 denied the instructions. Defendant was found guilty of voluntary manslaughter.

 7 Defendant now appeals his conviction, asserting that the district court erred in

 8 denying his requested instructions on defense of habitation and involuntary

 9 manslaughter.

10 II.     DISCUSSION

11   {5}   Whether a jury instruction was properly denied is a mixed question of law and

12 fact that we review de novo. State v. Guerra, 2012-NMSC-014, ¶ 13, 278 P.3d 1031.

13 “ ‘When considering a defendant’s requested instructions, we view the evidence in

14 the light most favorable to the giving of the requested instruction[s].’ ” State v.

15 Skippings, 2011-NMSC-021, ¶ 10, 150 N.M. 216, 258 P.3d 1008 (quoting State v.

16 Boyett, 2008-NMSC-030, ¶ 12, 144 N.M. 184, 185 P.3d 355). While “[a] defendant

17 is entitled to an instruction on his or her theory of the case if evidence has been


          1
18          During a previous trial, a jury acquitted Defendant of second degree murder,
19 but it could not reach a verdict on the voluntary manslaughter charge. The district
20 court declared a mistrial, and the case went to trial again based solely on the
21 voluntary manslaughter charge.
                                             2
 1 presented that is sufficient to allow reasonable minds to differ as to all elements of

 2 the offense[,]” the failure to instruct the jury on a defendant’s theory of the case is

 3 reversible error only if there is evidence to support giving the instruction. Boyett,

 4 2008-NMSC-030, ¶ 12 (internal quotation marks and citation omitted). A defendant

 5 charged with involuntary homicide may present a theory of self-defense. State v.

 6 Gallegos, 2001-NMCA-021, ¶ 18, 130 N.M. 221, 22 P.3d 689.

 7 A.      Defense of Habitation

 8   {6}   Defense of habitation contains both a subjective and an objective element; the

 9 parties acknowledge this. Cf. State v. Coffin, 1999-NMSC-038, ¶ 15, 128 N.M. 192,

10 991 P.2d 477 (indicating self-defense is made up of both a subjective standard that

11 focuses on the perception of the defendant at the time of the incident and an objective

12 standard that focuses on how a reasonable person in the same situation would have

13 acted). The subjective element allows for the use of deadly force where “[i]t appeared

14 to the defendant that the commission of [a violent felony] was immediately at hand

15 and that it was necessary to kill the intruder to prevent the commission of [the violent

16 felony].” UJI 14-5170 NMRA; Boyett, 2008-NMSC-030, ¶ 21 (requiring felony, in

17 defense of habitation context, to be a violent felony). In evaluating this element, it is

18 necessary to look to the subjective belief of the defendant. The objective element




                                               3
 1 requires that “[a] reasonable person in the same circumstances as the defendant would

 2 have acted as the defendant did.” UJI 14-5170.

 3   {7}   Our Supreme Court’s opinion in Boyett sought to clarify the law governing

 4 defense of habitation. 2008-NMSC-030, ¶¶ 9, 11. The Boyett court acknowledged

 5 that, although defense of habitation applies to the prevention of a felony in the home,

 6 felonies no longer solely encompass “forcible and atrocious” crimes. Id. ¶ 20 (internal

 7 quotation marks and citation omitted). As a result, the Court endeavored to clarify

 8 what qualifies as a “felony” in the defense of habitation context. Id. The Court

 9 concluded, based on applicable precedent, that a “ ‘felony’ in the defense of

10 habitation context is properly limited to those felonies involving violence.” Id. ¶ 21

11 (stating that a felony must result “in violence against the occupants were it not

12 prevented”). The Court reasoned that, using this clarification, an instruction on

13 defense of habitation would be warranted “if some evidence reasonably tended to

14 show that [the defendant] killed [the v]ictim to prevent her from forcing entry into his

15 home and committing a violent felony once inside.” Id. ¶ 22. The Court looked to the

16 evidence presented in the case and concluded that an instruction on defense of

17 habitation was not warranted because there was no evidence that the victim was

18 endeavoring to enter the home by violence or intended to do violence on those inside.

19 Id. ¶ 23. The Court acknowledged that, assuming the defendant held a reasonable

20 belief that the victim intended to commit a felony in his home, defense of habitation
                                              4
 1 would justify the defendant’s actions “only if he could show that [the v]ictim was

 2 attempting to force entry to his home.” Id. Thus, if there is evidence that the victim

 3 is trying to break through the defendant’s front door at the time he kills the victim,

 4 defense of habitation applies. Id.

 5   {8}   The district court in this case seems to have interpreted Boyett to require an

 6 analysis of the intruder’s intent for the subjective element of defense of habitation,

 7 rather than solely on Defendant’s perception of the intruder’s actions and intentions.

 8 The State asserts that the defense of habitation instruction was not warranted because

 9 there was no evidence that “the commission of [a violent felony] was immediately at

10 hand.” UJI 14-5170. The State also asserts that, without evidence that Defendant

11 intended to kill Lujan, no evidence existed to support the assertion that Defendant

12 believed “it was necessary to kill [Lujan] to prevent the commission of [the violent

13 felony.]” Id. We address each argument in turn.

14 1.      Evidence of a Violent Felony

15   {9}   Perhaps following the district court’s ruling, the State suggests that in order to

16 satisfy the subjective prong of defense of habitation, which requires Defendant to

17 believe that the commission of a violent felony was immediately at hand, there must

18 have been evidence that Lujan intended to commit a violent felony within

19 Defendant’s home. In support of this suggestion, the State cites to Boyett and suggests



                                               5
 1 that by requiring a certain type of felony—namely, a violent one—the Court super-

 2 imposed a requirement that evidence of Lujan’s intent to commit a violent felony be

 3 presented to warrant a defense of habitation instruction.

 4   {10}   Self-defense and defense of habitation are virtually identical, State v. Bailey,

 5 1921-NMSC-009, ¶ 30, 27 N.M. 145, 198 P. 529, and it is well-established that self-

 6 defense focuses on the subjective intent of the defendant. See Coffin, 1999-NMSC-

 7 038, ¶ 15 (indicating that the subjective element of self-defense focuses on the

 8 perception of the defendant at the time of the incident). Defense of habitation

 9 employs the same focus with regard to the subjective prong; the relevant inquiry lies

10 in the defendant’s own subjective perception of the intruder’s intentions, rather than

11 interpreting the intruder’s intent itself. By asserting that evidence of the victim’s

12 intent is required, the State misstates the law governing defense of habitation. UJI 14-

13 5170 contains no reference to the intruder’s intent; instead, the instruction mentions

14 only the defendant’s perception of what is happening. The State’s shifted emphasis

15 is not supported by the language of the UJI.

16   {11}   Our case law is also clear that the defendant’s interpretation of the victim’s

17 actions is the relevant criterion in a defense of habitation inquiry. In State v. Couch,

18 1946-NMSC-047, ¶ 44, 52 N.M. 127, 193 P.2d 405, our Supreme Court decided that

19 the defendant was entitled to a defense of habitation instruction because he could

20 have believed that the person attacking his home intended to enter and commit
                                                6
 1 violence against the occupants. In Couch, the defendant, whose home had been

 2 subjected to other attacks and invasions, awoke late one night while his home was the

 3 target of vandals throwing rocks. Id. ¶ 2. The defendant shot at the intruders and

 4 killed one of them. Id. The Court concluded that the defendant was entitled to a

 5 defense of habitation instruction: “When one’s home is attacked in the middle of a

 6 dark night . . . the householder, being unable to determine what weapons the

 7 [unknown] assailants have . . . may pursue his adversaries till he finds himself out of

 8 danger.” Id. ¶¶ 44, 49.

 9   {12}   We interpret Boyett to stand not for the proposition that there must be evidence

10 of the intruder’s intent or that the victim intended to commit a violent felony, but

11 solely whether evidence exists that could give rise to a defendant’s belief that

12 commission of a felony of a violent nature was imminent. The instruction must be

13 given when the evidence presented at trial, viewed in the light most favorable to

14 giving the instruction, supports Defendant’s alleged belief that he or his home was

15 subject to the threat of a violent felony.

16   {13}   According to the evidence, Lujan arrived at Defendant’s door at approximately

17 1:30 a.m. and was pounding on the door loudly enough to rouse Defendant from sleep

18 and threateningly enough to cause Defendant to arm himself. Despite yelling a




                                                7
 1 request that the intruder identify himself, Defendant received no response before

 2 firing the fatal shot.

 3   {14}   Evidence at trial indicated that Lujan was in the process of opening the door

 4 when he was shot. Expert testimony suggested, based on spatter patterns of Lujan’s

 5 blood on the hinges and frame of the door, that the door could have been anywhere

 6 between one and four inches open when Defendant fired the fatal shot. Because there

 7 is no evidence that Defendant opened the door, it is reasonable to infer from the facts

 8 that Lujan did. One of the investigating officers testified that he believed Lujan was

 9 “trying to gain entry” into Defendant’s home.2 Defendant’s father testified that when

10 he visited the residence the day after the shooting, he observed that the lock on the

11 door had been damaged. This evidence, considered in the light most favorable to

12 giving the instruction, Skippings, 2011-NMSC-021, ¶ 10, satisfies Boyett’s

13 requirement that some evidence show that the intruder was attempting to force entry

14 into Defendant’s home. 2008-NMSC-030, ¶ 23. It was therefore adequate to support

15 an assertion by Defendant that he reasonably believed that a violent felony was about

16 to occur in his home. Confronted with a violent and unauthorized attempt of an

17 unknown actor to enter his home, and in the absence of the intruder’s response to

18 Defendant’s request to identify himself, Defendant’s actions could be found to be


          2
19          This came to light as impeachment evidence; defense counsel impeached the
20 officer using prior statements made regarding Lujan’s actions that evening.
                                              8
 1 objectively reasonable, as discussed more completely below. We therefore conclude

 2 that the district court erred in refusing Defendant’s requested defense of habitat

 3 instruction.

 4 2.       Intent to Kill

 5   {15}   The State incorrectly asserts that Defendant is required to prove he had an

 6 intent to kill Lujan in order to receive a defense of habitation instruction. The district

 7 court did not deny Defendant’s requested defense of habitation instruction based on

 8 Defendant’s lack of intent to kill. In fact, it appears that the State did not raise this

 9 argument below. The State suggests, however, that we affirm the district court’s

10 decision using the right for any reason doctrine. While we may affirm the district

11 court on grounds not relied on by it, we may not do so if it would result in unfairness

12 to the appellant. State v. Gallegos, 2007-NMSC-007, ¶ 26, 141 N.M. 185, 152 P.3d

13 828. Because we conclude that adding an “intent to kill” element to defense of

14 habitation would be inappropriate, we decline the State’s invitation to affirm on that

15 ground.

16   {16}   According to UJI 14-5170, it must appear to the defendant that it is “necessary

17 to kill the intruder to prevent the commission of [a violent felony].” In Bailey, our

18 Supreme Court noted, in dicta, that the right to kill in self-defense or defense of

19 habitation was not at issue in the case and that the defendant was not entitled to have



                                               9
 1 that issue presented to the jury because the defendant absolutely denied killing the

 2 victim. 1921-NMSC-009, ¶¶ 18, 31 (noting that the defendant “never intended to kill

 3 [the intruder], did not attempt to kill him, and did not kill him”).

 4   {17}   Bailey is inapposite to the case before us, and the State’s reliance on it is

 5 misplaced. Defense counsel argued at trial that Defendant may have intended the shot

 6 to be a warning shot, and that both the single shot fired and the location of the shot

 7 indicated that Defendant did not intend to kill the intruder. He does not contend that

 8 he did not shoot the victim or that he did not intentionally pull the trigger. The State

 9 now uses these arguments to assert that Defendant is not entitled to a defense of

10 habitation instruction because he had no intent to kill the intruder, contrary to the UJI

11 which requires that the defendant believe it is “necessary to kill the intruder.” See UJI

12 14-5170.

13   {18}   The State’s reading of Boyett, UJI 14-5170, and Bailey misinterprets the

14 language therein by suggesting that a belief that it is necessary to use deadly force to

15 prevent commission of a violent felony equates to an intent to kill an intruder. The

16 two are not equivalent; an intent to kill pertains to a desired result while a belief that

17 it is necessary to use deadly force relates to the means by which that result may be

18 reached. The focal point of the jury instruction’s “necessary to kill” language lies on

19 the defendant’s intent to prevent the commission of the violent felony using whatever

20 force—including deadly force—is necessary. The explicit language of UJI 14-5170
                                               10
 1 therefore requires that the defendant believe deadly or lethal force is necessary to

 2 prevent the commission of a violent felony. “The inquiry in a self-defense claim

 3 focuses on the reasonableness of [a] defendant’s belief as to the apparent necessity

 4 for the force used to repel an attack.” State v. Reneau, 1990-NMCA-119, ¶ 6, 111

 5 N.M. 217, 804 P.2d 408.

 6   {19}   Under UJI 14-5170, once a defendant reasonably holds the belief that it is

 7 necessary to use lethal force to prevent the felony and defend his habitation, he has

 8 satisfied the second half of the subjective element of defense of habitation. This belief

 9 can be inferred from circumstantial evidence. Cf. State v. Duarte, 1996-NMCA-038,

10 ¶ 7, 121 N.M. 553, 915 P.2d 309 (acknowledging that the defendant’s fear in self-

11 defense context can be inferred from circumstantial evidence); State v. Wood, 1994-

12 NMCA-060, ¶ 13, 117 N.M. 682, 875 P.2d 1113 (pointing out that subjective

13 elements are “rarely established by direct evidence and generally must be proven by

14 circumstantial or factual inferences”). In this case, a jury could reasonably conclude

15 that Defendant exhibited a belief that it was necessary to use deadly force by picking

16 up his gun and firing it. Regardless of whether he intended for that particular shot to

17 be lethal, the firing of the shot under the circumstances exhibited a willingness to use

18 deadly force. See Black’s Law Dictionary 760 (10th ed. 2014) (defining “deadly

19 force” as a “[v]iolent action known to create a substantial risk of causing death or

20 serious bodily harm”). If the first subjective element is met, and the choice to use
                                              11
 1 deadly force is reasonable, the elements of the defense are met, and the killing is

 2 legally justified. The existence of any evidence to support the giving of a defense of

 3 habitation instruction, however slight, provides an adequate basis for giving the

 4 instruction. State v. Heisler, 1954-NMSC-032, ¶ 23, 58 N.M. 446, 272 P.2d 660

 5 (“[W]here self-defense is involved in a criminal case and there is any evidence,

 6 although slight, to establish the same, it is not only proper for the court, but its duty

 7 as well, to instruct the jury fully and clearly on all phases of the law on the issue that

 8 are warranted by the evidence[.]”). Because the evidence was sufficient to entitle

 9 Defendant to a defense of habitation instruction and that instruction was not given,

10 we reverse. See State v. Salazar, 1997-NMSC-044, ¶ 50, 123 N.M. 778, 945 P.2d 996

11 (“Failure to give an instruction which is warranted by the evidence is not harmless

12 error.”).

13 B.       Involuntary Manslaughter Instruction

14   {20}   There are three circumstances in which an involuntary manslaughter instruction

15 is warranted: (1) “the commission of an unlawful act not amounting to a felony”; (2)

16 “the commission of a lawful act that might produce death, in an unlawful manner”;

17 or (3) “the commission of a lawful act that might produce death without due caution

18 and circumspection.” State v. Henley, 2010-NMSC-039, ¶ 14, 148 N.M. 359, 237

19 P.3d 103 (internal quotation marks and citation omitted). “An involuntary



                                               12
 1 manslaughter instruction is proper only where there is evidence of an unintentional

 2 killing and a mens rea of criminal negligence[.]” Id. ¶ 22. Criminal negligence has

 3 been described in many different ways. It exists where there is a conscious disregard

 4 of a substantial and unjustifiable risk that harm will result from certain conduct. Id.

 5 ¶ 16. It exists where a person acts with willful disregard of the rights or safety of

 6 others and in a manner that endangers any person or property. Id. It also exists where

 7 a person’s actions are so reckless, wanton, and willful that they show an utter

 8 disregard for the safety of others. Id. Defendant requested an instruction pursuant to

 9 the third category of involuntary manslaughter instruction. Because we have held that

10 a defense of habitation instruction was available to Defendant, the jury could have

11 found that his shooting Lujan was in the commission of a lawful act, but was done

12 without due caution or circumspection. See State v. Romero, 2005-NMCA-060, ¶ 17,

13 137 N.M. 456, 112 P.3d 1113.

14   {21}   Looking at the evidence in the light most favorable to giving the instruction,

15 we conclude that the trial testimony would establish that Defendant knew that an

16 intruder was on the other side of the door and that, because he was pounding on the

17 door, the intruder was within an arm’s length of the door. Despite having at least this

18 much knowledge, Defendant fired a shot through the door. The jury could have

19 determined that Defendant was criminally negligent because firing a gun at the door

20 while someone was on the other side of it was “willful disregard of the rights or
                                              13
 1 safety of others” and endangered that unknown intruder. Henley, 2010-NMSC-039,

 2 ¶ 16 (quoting UJI 14-133 NMRA) (internal quotation marks omitted). The jury also

 3 could have inferred that Defendant unintentionally killed the intruder based on

 4 Defendant’s theory that he fired a warning shot, Duarte, 1996-NMCA-038, ¶ 7

 5 (stating that intent can be inferred), and evidence that Defendant only shot once, shot

 6 high into the door, and requested identification before he fired the shot. Because the

 7 jury could have found that Defendant committed a lawful act, and unintentionally

 8 killed the victim while acting criminally negligently, we conclude that an involuntary

 9 manslaughter instruction should have been given.

10 III.     CONCLUSION

11   {22}   Having decided that, when considering the evidence in the light most favorable

12 to giving the instructions, there was sufficient evidence to support the instructions,

13 we conclude that the district court erred in refusing Defendant’s request for a defense

14 of habitation instruction and involuntary manslaughter instruction. We therefore

15 reverse.

16   {23}   IT IS SO ORDERED.

17                                        ___________________________________
18                                        RODERICK T. KENNEDY, Judge




                                              14
1 WE CONCUR:



2 _________________________________
3 MICHAEL D. BUSTAMANTE, Judge



4 _________________________________
5 LINDA M. VANZI, Judge




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