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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. 35,212

 5 DAVID CORDOVA,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Cristina T. Jaramillo, District Judge

 9 Hector H. Balderas, Attorney General
10 Maris Veidemanis, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 L. Helen Bennett, P.C.
14 L. Helen Bennett
15 Albuquerque, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 SUTIN, Judge.
 1   {1}   Defendant David Cordova appeals his conviction for armed robbery, contrary

 2 to NMSA 1978, Section 30-16-2 (1973), that was enhanced, pursuant to NMSA 1978,

 3 Section 31-18-16 (1993), because he used a firearm in the commission of the offense.

 4 On appeal, Defendant asserts, as his sole issue, a double jeopardy violation arising

 5 from the firearm enhancement. This Court recently held that the use of Section 31-18-

 6 16 to enhance a sentence violates double jeopardy when the State, based upon its own

 7 theory of the case, is “not required to prove any additional facts to have [a

 8 d]efendant’s sentence enhanced[.]” State v. Branch, 2016-NMCA-071, ¶ 38, 387 P.3d

 9 250, cert. granted, 2016-NMCERT-007, ___ P.3d ___.

10   {2}   In order to assess the State’s theory of the case for these purposes, “we look to

11 the charging documents and jury instructions.” Id. ¶ 36. In this case, Defendant was

12 charged with taking money from his victim, intending to permanently deprive her of

13 the same while “armed with a firearm, an instrument or object, which when used as

14 a weapon, could cause death or great bodily harm[.]” In order to convict him of that

15 offense, the jury was instructed that it must find that he “was armed with a gun, an

16 instrument or object which, when used as a weapon, could cause death or serious

17 injury[.]” With regard to the firearm enhancement, the jury was instructed to

18 “determine if the crime was committed with the use of a firearm and report [its]

19 determination” on a special verdict form.


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 1   {3}   Because Defendant’s use of a firearm was charged and instructed as an element

 2 of the offense of armed robbery and was also the only finding necessary to enhance

 3 Defendant’s sentence, that enhanced sentence is in direct conflict with the central

 4 holding in Branch. Id. ¶ 38. Acknowledging that the enhancement of Defendant’s

 5 sentence under Section 31-18-16 is inconsistent with Branch, the State invites us to

 6 reconsider Branch in this appeal.

 7   {4}   In doing so, the State cites to Swafford v. State, in which our Supreme Court

 8 discussed the importance of legislative intent in double jeopardy analysis, and asserts

 9 that Branch failed to consider “the [L]egislature’s intent to authorize multiple

10 punishments for the same offense.” Swafford, 1991-NMSC-043, ¶ 9, 112 N.M. 3, 810

11 P.2d 1223. More specifically, the State asserts that Branch erred by applying the test

12 of statutory construction articulated in Blockburger v. United States, 284 U.S. 299

13 (1932), because that test is irrelevant “where the [L]egislature has explicitly

14 authorized multiple punishment[.]” Swafford, 1991-NMSC-043, ¶ 11.

15   {5}   Although the State’s remaining argument relies upon an explicit legislative

16 authorization of multiple punishments, the State does not direct us to any language in

17 Section 31-18-16 or Section 30-16-2 that explicitly authorizes multiple punishments.

18 Examining those statutes ourselves, we find no language expressly providing for

19 multiple punishments. See State v. Gutierrez, 2011-NMSC-024, ¶ 55 n.2, 150 N.M.


                                              3
 1 232, 258 P.3d 1024 (discussing NMSA 1978, Section 30-16-38 (1971) and noting that

 2 our Legislature knows how to provide for multiple punishments depending upon the

 3 circumstances of the particular crime). Nonetheless, the State’s argument proceeds,

 4 briefly tracing the history of this Court’s cases dealing with Section 31-18-16, but

 5 stopping short of our Supreme Court’s opinion in Gutierrez that modified the

 6 Blockburger analysis for statutes involving vague and unspecific elements. See

 7 Gutierrez, 2011-NMSC-024, ¶¶ 55-60. In Branch, this Court specifically applied this

 8 modified Blockburger analysis requiring that “we look to the [prosecution’s] trial

 9 theory to identify the specific criminal cause of action for which the defendant was

10 convicted, filling in the case-specific meaning of generic terms in the statute when

11 necessary.” Branch, 2016-NMCA-071, ¶ 23.

12   {6}   In this case, as in Branch, the term “deadly weapon” is a generic statutory term,

13 requiring that we look to the State’s theory of the case as demonstrated in the charging

14 documents and jury instructions to supply a case-specific meaning. See id. ¶ 35 (“A

15 ‘deadly weapon’ is a generic term.”). Here, again as in Branch, “there is no doubt that

16 the [prosecution] sought to prove that the deadly weapon actually used in this case

17 was a firearm.” Id. Because we see no language in the relevant statutes explicitly

18 authorizing multiple punishments and the State offers no other basis to disregard




                                               4
 1 Gutierrez in addressing the double jeopardy issue in this case, we are unpersuaded that

 2 Branch was decided in error.

 3   {7}   Alternatively, the State suggests that a conviction accompanied by a firearm

 4 enhancement should be treated, not as multiple punishments, but simply as a greater

 5 penalty for a single offense because that offense was committed with a gun. Thus, the

 6 State posits that the Legislature “could have increased the punishment for armed

 7 robbery when a firearm is used within the elements of the armed robbery statute, but

 8 instead did so in a separate statute.” Our purpose here, however, is to ascertain

 9 legislative intent. In accomplishing that goal, it is of no particular help to posit things

10 the Legislature could have done, but did not. It may be that the Legislature could enact

11 legislation specifically establishing various degrees of robbery based upon factors that

12 include the use or non-use of a firearm to enhance the crime of armed robbery

13 depending upon the type of weapon used. We, however, must discern legislative intent

14 from the statutes that were enacted. The mere fact that the Legislature could have done

15 something different presents a broad spectrum of possibilities, but such a recognition

16 is not proof that the Legislature intended the interpretation suggested by the State. In

17 the context of double jeopardy, that means applying the Blockburger test—as

18 modified by Gutierrez—to the relevant statutes. As discussed earlier in this opinion,




                                                5
 1 that analysis results in a conclusion that a double jeopardy violation occurred in this

 2 case.

 3   {8}   Ultimately, we decline the State’s invitation to overrule Branch and, given that

 4 opinion’s clear applicability to the facts of this case, we conclude that the

 5 enhancement of Defendant’s sentence pursuant to Section 31-18-16 violates double

 6 jeopardy. Accordingly, Defendant’s sentence is vacated, and this case is remanded to

 7 the district court for re-sentencing consistent with this opinion.

 8   {9}   IT IS SO ORDERED.


 9                                          __________________________________
10                                          JONATHAN B. SUTIN, Judge

11 WE CONCUR:


12 _______________________________
13 MICHAEL E. VIGIL, Judge


14 _______________________________
15 TIMOTHY L. GARCIA, Judge




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