The slip opinion is the first version of an opinion released by the Chief Clerk of the
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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Opinion Number: __________________
Filing Date: April 12, 2021
NO. S-1-SC-37978
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
ROBERT CHAVEZ,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
James Waylon Counts, District Judge
Bennett J. Baur, Chief Public Defender
Allison H. Jaramillo, Assistant Appellant Defender
Santa Fe, NM
for Appellant
Hector H. Balderas, Attorney General
Charles J. Gutierrez, Assistant Attorney General
Santa Fe, NM
for Appellee
OPINION
BACON, Justice.
I. INTRODUCTION
{1} In 2011, Richard Valdez (Victim) died after Defendant Robert Chavez and his
coconspirators beat and shot him. Later they burned Victim’s body in a 2006 Suzuki
station wagon. After a joint trial, Defendant was convicted of first-degree murder,
conspiracy to commit first-degree murder, arson, and tampering with evidence due
to his involvement in the murder of Victim. Defendant now appeals, arguing that (1)
the trial court erred when it failed to sever the joint trial, (2) his convictions violate
principles of double jeopardy, and (3) there was insufficient evidence to support his
arson conviction. He asks this Court to reverse his convictions. We affirm.
II. BACKGROUND
{2} Defendant’s case was joined with that of coconspirator, Matias Loza under
Rule 5-203(B) NMRA. Defendant consistently opposed the joinder to Loza but
never argued for severance. Only Loza submitted a motion for severance and argued
at the hearing on joinder and severance before the court that a joint trial would
prejudice him due to “unfavorable” defenses, in part because Defendant planned to
testify but Loza did not. Loza’s motion to sever notes that Defendant “would
stipulate” to the motion, but Defendant did not join Loza in the motion. At the
hearing before trial, Defendant made no comment on the issue of severance nor
indicated why he did not join Loza’s motion to sever the joint trial. Then, in a
response to Loza’s motion to sever filed after the hearing, Defendant only reiterated
his opposition to the joinder.
{3} The trial court denied Loza’s motion to sever and proceeded to trial.
{4} At the joint trial, the jury heard extensive evidence incriminating Defendant,
including testimony from his nephew, Joey Chavez (Joey), who participated in the
murder, and Tracy Garrison (Tracy), who was Joe Chavez’s (Joe) girlfriend at the
time of the murder. Joe is Defendant’s brother, the father of Joey, and the father of
Victim’s girlfriend, Priscilla Chavez (Priscilla). The jury also heard from other
witnesses including law enforcement officers, crime scene and forensic experts, and
Loza’s cellmate.
{5} The jury heard from Joey how Loza and Victim got into a fight on the evening
of October 30, 2011, at Applebee’s. Later, Defendant, Loza, and others drove around
looking for Victim as they talked about killing him, a conversation which Loza
recorded on his cell phone. In the recording, Defendant can be heard saying, “It’s
my turn, now. I get to pop him in the face. I know you like to hit him in the head, I
like to hit him in the face, right in the . . . forehead.” The others also talked about
how best to kill Victim. They returned to Defendant’s house at around 5:00 or 6:00
2
a.m. on October 31 and slept. Joey testified that Defendant woke him up around
noon, saying that Victim was on his way to Defendant’s house and Joey should “get
ready.”
{6} Joey’s testimony at trial revealed that Defendant, Loza, and others agreed to
kill Victim. They planned for Victim to come to Defendant’s house, to kidnap
Victim, and then to kill him somewhere away from the house. Defendant specifically
told Joey, Loza, and Joe not to “pop” Victim in the house. They had shackles to
kidnap Victim, and Defendant gave Joey a flashlight to hit Victim if he tried to fight.
Defendant also had a gun.
{7} Joey testified that after he woke up around noon on October 31, Victim arrived
at Defendant’s house, walked into the kitchen, and tried to apologize to Defendant
for the fight the night before. Defendant, Loza, and Joey attacked Victim who tried
to escape through the front door, which was locked. Defendant helped keep Victim
from escaping by pulling him back into the house. Defendant, Joey, and Loza beat
Victim, and Defendant hit Victim with Defendant’s gun. Finally, while standing in
the living room, Loza shot Victim in the head. Initially, Defendant directed everyone
to leave Victim’s body on the floor. Eventually, however, the coconspirators decided
to “clean up” Victim’s body by moving it and burning it in Priscilla’s Suzuki. After
3
driving a few miles away, Defendant handed Joey the matches to burn the Suzuki
and Victim’s body. Joey lit the vehicle on fire and left the scene with Defendant.
{8} After the State rested its case, Loza pleaded guilty. Loza did not testify at the
trial. On the next day of trial after Loza pleaded guilty, Defendant testified in his
own defense. Defendant claimed he was not present at the time of the murder.
{9} Defendant was convicted on all four counts.
III. DISCUSSION
A. In a Joint Trial, Each Defendant Must Individually Preserve the Issue of
Severance
{10} Defendant argues for the first time on appeal that his joint trial with Loza
should have been severed. He contends that the joint trial resulted in severe prejudice
to him. Before we consider whether the trial court erred in deciding not to sever the
joint trial, we first consider whether Defendant properly preserved his claim for
severance.
1. Severance requires prejudice
{11} Severance allows a court to separate proceedings that involve joint offenses
or joint defendants. Rule 5-203(C). In order to sever a case, there must first be a
joinder under Rule 5-203(A) (joinder of offenses) or (B) (joinder of defendants).
State v. Gallegos, 2007-NMSC-007, ¶ 16, 141 N.M. 185, 152 P.3d 828; State v. Paiz,
4
2011-NMSC-008, ¶ 18, 149 N.M. 412, 249 P.3d 1235. If there is joinder, and “[i]f
it appears that a defendant or the state is prejudiced” by the joinder, then “the court
may order separate trials of offenses, grant a severance of defendants, or provide
whatever other relief justice requires.” Rule 5-203(C).
{12} “A defendant ‘is prejudiced’ in this context if there is an appreciable risk that
reversal will be warranted because of a later determination of actual prejudice.”
Gallegos, 2007-NMSC-007, ¶ 19 (quoting Rule 5-203(C)); see also State v.
Montoya, 1992-NMCA-067, ¶ 11, 114 N.M. 221, 836 P.2d 667 (determining that an
appellate court must decide whether “there is an appreciable risk that the jury
convicted for illegitimate reasons” by considering the degree of prejudice a joint trial
causes and the strength of legitimate evidence against the defendant). Actual
prejudice that might warrant severance includes when codefendants have
contradictory, irreconcilable defenses, which could result in a jury “unjustifiably
infer[ring] that this conflict alone demonstrates” guilt or when evidence is included
in a joint trial when it would not be cross-admissible in separate trials. See State v.
Segotta, 1983-NMCA-054, ¶¶ 30, 32, 100 N.M. 18, 665 P.2d 280 (internal quotation
marks and citation omitted), rev’d on other grounds, 1983-NMSC-092, ¶ 1, 100
N.M. 498, 672 P.2d 1129; Gallegos, 2007-NMSC-007, ¶ 19 (noting the possibility
of prejudice if evidence would not have been cross-admissible in a separate trial). A
5
defendant has the burden to establish prejudice. State v. Garcia, 2011-NMSC-003,
¶ 20, 149 N.M. 185, 246 P.3d 1057.
{13} We review a trial court’s denial of a motion to sever for an abuse of discretion.
Id. ¶ 16. “An abuse of discretion occurs when the ruling is clearly against the logic
and effect of the facts and circumstances of the case.” State v. Apodaca, 1994-
NMSC-121, ¶ 23, 118 N.M. 762, 887 P.2d 756 (internal quotation marks omitted)
(quoting State v. Simonson, 1983-NMSC-075, ¶ 22, 100 N.M. 297, 669 P.2d 1092).
A trial court abuses its discretion if, at the time of the motion to sever, “there is an
appreciable risk that reversal will be warranted because of a later determination of
actual prejudice.” Gallegos, 2007-NMSC-007, ¶ 19.
{14} Even if we conclude that a trial court abused its discretion when it decided not
to sever, where an error is preserved, we review for harmless error. See State v.
Lovett, 2012-NMSC-036, ¶¶ 52-53, 286 P.3d 265 (“In the context of failure to sever,
we have sometimes called the harmless-error analysis a question of actual prejudice
to the accused.”). We “will not reverse unless the error actually prejudiced the
defendant.” Gallegos, 2007-NMSC-007, ¶ 18. “[A]ny error by the trial judge is
harmless if it did not actually prejudice the defendant.” Garcia, 2011-NMSC-003, ¶
19. However, when an argument is unpreserved, an appellate court will review only
6
for fundamental error. State v. Barber, 2004-NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d
633.
2. Preserving severance
{15} To claim on appeal that a defendant was prejudiced by the trial court’s failure
to sever a joined trial, a defendant must have preserved the claim for severance by
invoking “a ruling or decision by the trial court.” Rule 12-321 NMRA. Defendant
contends that New Mexico’s preservation rules only require a party to invoke a trial
court’s ruling or decision. Defendant argues that he successfully preserved the issue
of severance because the trial court denied Loza’s motion to sever. This is incorrect.
{16} “To preserve an issue for review, it must appear that a ruling or decision by
the trial court was fairly invoked . . . [by an] object[tion] to a ruling or order at the
time it is made.” Rule 12-321. “The party claiming error must have raised the issue
below clearly and have invoked a ruling by the court . . . .” Diversey Corp. v. Chem-
Source Corp., 1998-NMCA-112, ¶ 12, 125 N.M. 748, 965 P.2d 332 (emphasis
added) (citations omitted). In order to invoke a ruling, a party must assert a legal
principle and develop the facts to support the issue. State v. Adame, 2020-NMSC-
015, ¶ 13, 476 P.3d 872. “In order to preserve an error for appeal, it is essential that
the ground or grounds of the objection or motion be made with sufficient specificity
to alert the mind of the trial court to the claimed error or errors . . . .” State v. Varela,
7
1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280 (internal quotation marks and
citation omitted).
{17} The issue of prejudice is inherent in a claim for severance. Rule 5-203(C). In
a joint trial, each codefendant who claims that the trial court erred by failing to sever
must individually preserve the claim for severance. See State v. Pacheco, 1990-
NMCA-071, ¶¶ 22-23, 110 N.M. 599, 798 P.2d 200 (considering only one
codefendant’s claim for severance when the other codefendant did not object to the
joint trial) overruled on other grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37
n.6, 275 P.3d 110; State v. Schuler, 774 N.W.2d 294, 297 n.2 (Iowa 2009) (holding
that when a codefendant did not join his defendants in a motion to sever, he failed
to preserve the error for appeal on the issue). In so doing, a defendant must alert the
court with specificity to the risk of actual prejudice a joint trial poses to the individual
defendant. See Gallegos, 2007-NMSC-007, ¶ 19; see also State v. Lopez, 2007-
NMSC-037, ¶ 16, 142 N.M. 138, 164 P.3d 19 (determining that a defendant properly
preserved an objection to a joint trial by notifying the trial court of prejudice by
violation of the defendant’s confrontation rights); State v. Walters, 2007-NMSC-
050, 142 N.M. 644, ¶¶ 18-19, 168 P.3d 1068 (same).
{18} Together, Lopez, 2007-NMSC-037, and Walters, 2007-NMSC-050, illustrate
codefendants’ responsibility and ability to preserve arguments related to a trial
8
court’s failure to sever their joint trial. Lopez, Walters, and three other codefendants
were tried in a joint trial for an incident involving the gruesome abuse and death of
a child. Walters, 2007-NMSC-050, ¶ 1. All codefendants made statements during
investigations that implicated their fellow codefendants and themselves for the
respective charges. State v. Walters, 2006-NMCA-071, ¶¶ 6-14, 139 N.M. 705, 137
P.3d 645 rev’d in part on other grounds, 2007-NMSC-050, ¶ 1. Walters and Lopez
each argued for severance, contending that a joint trial would prejudice them because
the admission of their codefendants’ statements, which were interlocking
confessions, would violate their right to confront the witnesses against them. See
Walters, 2006-NMCA-071, ¶ 41.
{19} After the state moved to join all defendants, Walters opposed the joinder and
generally alerted the court to the danger that admitting his codefendants’
interlocking confessions would violate his right to confrontation. Walters, 2006-
NMCA-071, ¶ 17. He asserted that “each of the codefendants ‘may give statements
that would be inadmissible against the other party and therefore a violation of each
defendant’s right to cross-examine the witnesses against them.’” Walters, 2007-
NMSC-050, ¶ 15. Then, Walters joined in Lopez’s motion to sever in which Lopez
asserted that she would be prejudiced by her codefendants’ statements. Id. ¶ 18.
Lopez argued that Walters and her other codefendants “made admissions of their
9
own abusive or negligent conduct which would be inadmissible against [her] in a
separate trial.” Walters, 2006-NMCA-071, ¶ 16.
{20} Walters renewed the motion to sever immediately before trial, and all of the
defendants renewed the motion to sever after opening statements, adding to their
claims that admitting the statements would violate United States v. Bruton.1 Id. ¶ 18.
After the trial court denied the motion, both Walters and Lopez continued to object
to the admission of statements made by their codefendants based on “hearsay, [the]
fifth amendment, and Bruton.” Lopez, 2007-NMSC-037, ¶ 15 (alteration in original)
(internal quotation marks and citation omitted); Walters, 2007-NMSC-050, ¶ 18
(same).
{21} On appeal, this Court held that Lopez preserved the issue of prejudice through
her motion to sever and her objections that related the Confrontation Clause issues
to the trial court. Lopez, 2007-NMSC-037, ¶ 16. We held that Walters also preserved
the issue of prejudice by filing his statement against joinder, joining Lopez’s motion
to sever, and making objections “prior to the admission of the statements of his
1
In United States v. Bruton, 391 U.S. 123 (1968), the United States Supreme
Court held that under the Sixth Amendment’s Confrontation Clause, evidence of a
codefendant’s confession to a postal inspector that he and the defendant committed
aggravated robbery of a post office could not be admitted in a joint trial due to the
substantial prejudice a confession would cause to the defendant.
10
codefendants.” Walters, 2007-NMSC-050, ¶¶ 18-19. However, while Walters had
raised his claim for severance before trial, he did not successfully preserve the issue
of prejudice until he made his specific objections at trial. Id. ¶ 19. “By including the
terms, ‘Bruton’ and ‘Confrontation Clause’ in [the] objections, Defendant
effectively put the court on notice of the specific nature of [the] objection and the
impropriety of allowing a joint trial where the statements of codefendants would be
offered as evidence.” Id. (internal quotation marks omitted) (quoting Lopez, 2007-
NMSC-037, ¶ 16).
{22} The individualized responsibility to preserve the claim for severance and issue
of prejudice protects the interests of each codefendant, as a joint trial may affect each
codefendant differently. It ensures that the trial court has notice of specific and
possibly different dangers of prejudice that a joint trial may pose to each
codefendant. Finally, this requirement to explicitly and unambiguously raise the
individualized claim for severance ensures that a defendant who may be advantaged
by a joint trial does not implicitly or inadvertently concede to a severed trial.
3. Defendant did not preserve a claim for severance and the issue of
prejudice
{23} Defendant suggests that because Loza successfully invoked the trial court
ruling regarding the claim for severance and issue of prejudice that Defendant
11
successfully preserved these issues for appeal. However, Defendant cannot now rely
on Loza to preserve his claim that the trials should have been severed.
{24} Loza successfully preserved for himself the claim for severance and issue of
prejudice by filing a motion for severance that suggested a joint trial would prejudice
Loza due to his claimed antagonistic defenses and self-incrimination issues. At the
hearing on joinder and severance, Loza repeated these arguments and added that his
intent not to testify at trial along with violations of his Sixth Amendment rights at a
joint trial would prejudice him. The trial court denied Loza’s motion for severance.
{25} Defendant, meanwhile, did not preserve the claim for severance or issue of
prejudice to support his claim on appeal that the trial court erred when it failed to
sever the joint trial. He only opposed his joinder to Loza. Opposing joinder is not
sufficient to preserve the claim for severance; a defendant must raise the specific
claim for severance and issue of prejudice. For example, Walters successfully
preserved his claim for severance because after he opposed the joinder, he also
joined Lopez’s motion to sever, renewed the motion to sever before trial and after
opening arguments, and raised objections at trial including the issue of prejudice
under his Sixth Amendment confrontation rights arising from the admission of his
codefendants’ statements. Walters, 2007-NMSC-050, ¶ 18; Walters, 2006-NMCA-
071, ¶ 17.
12
{26} Here, however, Defendant did not raise the claim for severance at all. While
Loza’s motion to sever noted that Defendant “would stipulate” to his motion,
Defendant did not actually join the motion to sever or bring his own motion. When
responding to Loza’s motion to sever, Defendant made no mention of a claim for
severance and only stated opposition to the joinder, and at trial, Defendant did not
object to the joint trial and the prejudice it might raise.
{27} Defendant also failed to develop facts or arguments establishing an
appreciable risk of actual prejudice to him. Even in his arguments against joinder,
Defendant did not contend that a joint trial would prejudice him or raise any legal
principle to support his arguments. At the hearing on joinder and severance, while
Defendant alluded to some possibility of a mistrial, Defendant provided no specific
legal principle or facts in support of this contention, and he did not specify what
prejudice he might suffer.
{28} Defendant did not invoke a ruling from the trial court related to severance or
prejudice. Only Loza preserved the claim for severance by raising legal arguments
and facts and invoking a ruling. On appeal, Defendant cannot rely on the fact that
Loza preserved a claim for severance when Defendant did not.
13
B. The Trial Court’s Decision Not to Sever the Joint Trials Was Not
Fundamental Error
{29} Defendant argues that the trial court’s decision not to sever the joint trial was
an abuse of discretion. As we have described, Defendant did not preserve any claim
for severance. Therefore, we review the trial court’s decision not to sever the joint
trial for fundamental error, Barber, 2004-NMSC-019, ¶ 8, not abuse of discretion.
Error that is fundamental must be such error as goes to the foundation
or basis of a defendant’s rights or must go to the foundation of the case
or take from the defendant a right which was essential to his defense
and which no court could or ought to permit him to waive. Fundamental
error only applies in exceptional circumstances when guilt is so
doubtful that it would shock the judicial conscience to allow the
conviction to stand.
State v. Candelaria, 2019-NMSC-004, ¶ 31, 434 P.3d 297 (quoting State v. Johnson,
2010-NMSC-016, ¶ 25, 148 N.M. 50, 229 P.3d 523 (internal quotation marks
omitted)).
{30} The trial court did not commit a fundamental error when it decided not to
sever the joint trial. The joint trial did not undermine the “foundation” of
Defendant’s rights or case. See id. Neither did the joint trial deprive Defendant of a
right that was essential to his defense. See id. As far as we can tell, the foundation
of Defendant’s case at trial was his claim that he was not present at the time Victim
was murdered. A joint trial did not deprive him of that defense or any other rights.
14
{31} Defendant contends on appeal that the decision not to sever the joint trial
resulted in severe prejudice to him, although he does not argue that this prejudice
constituted a fundamental error.
{32} First, Defendant argues that he was prejudiced by the antagonistic defenses
presented by him and by Loza in the joint trial. In addition to Defendant’s defense
that he was not present at the murder, Defendant suggested at trial that Joe, his
brother, was the person who wanted Victim dead. Defendant did not dispute that
Loza shot Victim. Meanwhile, Loza’s defense was that the Chavez family was
responsible for Victim’s murder and that Joe and Joey had already been convicted
for Victim’s murder. In his opening argument, Loza suggested that the State could
not prove he was involved.
{33} Any conflict that did arise from Defendant’s and Loza’s defenses in the joint
trial was not on such a collision course as to warrant a severance had Defendant’s
claim been preserved. See Segotta, 1983-NMCA-054, ¶ 30 (“To warrant a severance
. . . the accounts of co-defendants must be ‘on a collision course.’” (quoting United
States v. Haldeman, 559 F.2d 31, 71 (D.C. Cir. 1976) (internal quotation marks
omitted))). Certainly, the conflict between the defenses did not undermine the
foundation of Defendant’s rights, case, or defense under a fundamental error
standard. See Candelaria, 2019-NMSC-004, ¶ 31.
15
{34} Second, Defendant contests the admission of the recording of a statement
Loza made to law enforcement officers during an interview, contending that it
resulted in severe prejudice to him. The recorded statement at issue is of an
interrogation in which Loza told law enforcement officers, “You want me to tell you
that I did this, that I shot [Victim].” At the time of Loza’s interview, law enforcement
did not know that Victim had been shot. Defendant asserts that “[t]he joint trial and
the admission of [Loza’s] statement violated [Defendant’s] distinct right to
confrontation.” However, the admission of Loza’s statement in the joint trial was not
a fundamental error.
{35} Under the Sixth Amendment, “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const.
amend. VI. This right to confrontation bars the “admission of testimonial statements
of a witness who did not appear at trial unless he was unavailable to testify, and the
defendant had had a prior opportunity for cross-examination.” Crawford v.
Washington, 541 U.S. 36, 53-54 (2004). It “does not bar the use of testimonial
statements for purposes other than establishing the truth of the matter asserted.”
Walters, 2006-NMCA-071, ¶ 32 (internal quotation marks omitted) (quoting
Crawford, 541 U.S. at 60 n.9). Statements made to law enforcement during
interrogations are testimonial when there is no ongoing emergency and “the primary
16
purpose of the interrogation is to establish or prove past events potentially relevant
to later criminal prosecution.” Davis v. Washington, 547 U.S. 813, 822 (2006). When
evidence of a statement is nontestimonial or not hearsay, then the court must
consider whether the statement would have been admissible in a separate trial under
the rules of evidence. See State v. Gurule, 2013-NMSC-025, ¶ 40, 303 P.3d 838
(holding that a codefendant’s nontestimonial hearsay statement was improperly
excluded from a joint trial under both Crawford and Bruton and noting that the issue
of whether the statement could be properly excluded under New Mexico rules of
evidence “remain[ed] for the district court to consider on remand”); Montoya, 1992-
NMCA-067, ¶¶ 7, 9 (holding that nonhearsay statements identifying the defendant
as a drug dealer should not have been admitted in a joint trial due to their negligible
probative value and notable prejudicial value).
{36} The admission of Loza’s statement violated Defendant’s Sixth Amendment
right to confrontation under Crawford. See Walters, 2007-NMSC-050, ¶ 24. Loza’s
statement was clearly testimonial because he gave it during the course of an
interrogation with law enforcement officers. The State offered the statement to prove
that Loza shot Victim. Defendant did not have the opportunity to cross-examine
Loza. However, the violation of Defendant’s right to confrontation was not a
fundamental error nor did it result in severe prejudice as Defendant contends. Loza’s
17
statement was not particularly important to the State’s case against Defendant.
Instead, it essentially confirmed other evidence that Loza shot Victim and only
distantly implicated Defendant.
{37} Defendant also misconstrues United States v. Lemonakis, 485 F.2d 941 (D.C.
Cir. 1973), and DeLuna v. United States, 308 F.2d 140 (5th Cir. 1962), to argue that
a joint trial resulted in severe prejudice to him due to the fact that he chose to testify
at trial but Loza did not. Defendant contends that this violated his right to
confrontation. He is incorrect, and the circumstances do not constitute a fundamental
error. Lemonakis and DeLuna relate to the rights of a codefendant who chooses not
to testify in a joint trial when another codefendant does testify and then comments
on the nontestifying defendant’s silence as an indication of guilt. DeLuna, 308 F.2d
at 154-55; Lemonakis, 485 F.2d at 951-52. While a codefendant who declines to
testify at a joint trial in effect deprives another codefendant of a confrontation
opportunity, the Sixth Amendment does not provide an accused with opportunity
right to confront witnesses who do not testify against the accused and provides no
support to Defendant’s argument. U.S. Const. amend. VI.
{38} Finally, Defendant contends that a lack of limiting instructions to guide the
jury on using “separate evidence” (evidence that may have been inadmissible against
Defendant in a separate trial) or evaluating the defendants’ defenses contributed to
18
the prejudice he faced in the joint trial. However, Defendant did not request limiting
instructions. While limiting instructions would have provided useful guidance for
the jury in this case, the lack of limiting instructions did not rise to fundamental
error. The charges, defenses, and evidence against the two codefendants were not
particularly complex such that the jury would have been unable to differentiate
between the codefendants’ respective culpability. See Zafiro v. United States, 506
U.S. 534, 539 (1998) (noting a higher “risk of prejudice” where “many defendants
are tried together in a complex case”); State v. Dominguez, 1993-NMCA-042, ¶ 29,
115 N.M. 445, 853 P.2d 147 (affirming the varied convictions of five codefendants
jointly tried).
{39} For the reasons described above, not severing Defendant and Loza’s joint trial
was not fundamental error. Nor does Defendant present “exceptional circumstances”
in which his guilt is so doubtful that allowing his conviction to stand “would shock
the judicial conscience.” Candelaria, 2019-NMSC-004, ¶¶ 31, 38 (internal quotation
marks and citation omitted).
C. Double Jeopardy Arguments
{40} Defendant contends that his convictions and sentences for first-degree
murder and conspiracy to commit first-degree murder violate protections against
19
double jeopardy. Because Defendant’s conduct underlying both convictions and
sentences was not unitary, we disagree.
1. Standard of review
{41} Questions of double jeopardy are questions of law that this Court reviews de
novo. State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747. A party can raise a
double jeopardy issue regardless of whether the defendant preserved the issue in the
trial court. State v. Martinez, 2007-NMCA-160, ¶ 5, 143 N.M. 96, 173 P.3d 18.
2. Double jeopardy requires unitary conduct
{42} Defendant argues that his convictions for first-degree murder and conspiracy
to commit first-degree murder violate double jeopardy because they arose from the
same conduct. Defendant contends that his involvement in the murder was that of an
accessory whose actions in the course of the murder did not extend beyond the words
or acts that formed the conspiracy to commit the murder.
{43} Defendant raises a double-description claim “where the same conduct results
in multiple convictions under different statutes.” Swick, 2012-NMSC-018, ¶ 10
(citing State v. Gallegos, 2011-NMSC-027, ¶ 31, 149 N.M. 704, 254 P.3d 655).
Double jeopardy protects “a criminal defendant ‘against multiple punishments for
the same offense.’” Id. (quoting State v. Gutierrez, 2011-NMSC-024, ¶ 49, 150 N.M.
232, 258 P.3d 1024). When this Court considers a double-description claim, we first
20
consider whether the conduct was unitary. Id. ¶ 11 (citing Swafford v. State, 1991-
NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223 (1991)). To determine whether the
conduct was unitary, we consider whether the acts are “sufficiently separated by
either time or space.” Swafford, 1991-NMSC-043, ¶ 28. If a consideration of time or
space cannot resolve whether the conduct was unitary, this Court then considers “the
quality and nature of the acts or . . . the objects and results involved.” Id. “[I]f the
conduct is separate and distinct, [the] inquiry is at an end,” and there is no double
jeopardy violation. Id. If the conduct is unitary, then we will consider whether the
Legislature intended to punish the two crimes separately. See id. ¶ 25. If there is
unitary conduct and the “Legislature clearly authorized multiple punishments,” then
“there is no double jeopardy violation.” State v. Torres, 2018-NMSC-013, ¶ 21, 413
P.3d 467.
{44} Defendant’s conduct underlying his convictions for first-degree murder and
conspiracy to commit first-degree murder was not unitary because the conduct was
separated by time and space. See Swafford, 1991-NMSC-043, ¶ 28. The quality and
nature of the conduct were also distinguishable. See id. The jury heard evidence that
included audio recordings of the discussions Defendant, Loza, and the others had
about killing Victim. The jury also heard testimony about Defendant’s active
participation in Victim’s murder when he arrived at Defendant’s house.
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{45} There was no unitary conduct. In the early morning of October 31, Defendant,
Loza, and the others conspired to kill Victim. They drove around all night looking
for him, and as they drove they discussed “pop[ping]” Victim. Then they all went to
sleep. In the afternoon of October 31, Victim arrived at Defendant’s house where
the coconspirators already had a plan to kidnap and kill Victim. When Victim tried
to escape, Defendant pulled him back into the house. The coconspirators beat
Victim. Joey beat Victim with the flashlight Defendant had given him, and
Defendant hit Victim with his pistol. Loza shot Victim and killed him. Afterwards,
Defendant directed everyone to leave Victim’s body. Eventually, they decided to
burn Victim’s body in the Suzuki. After they drove the Suzuki a few miles away,
Defendant handed Joey some matches, and Joey lit the vehicle on fire with Victim’s
body inside.
{46} We note also that “[t]he crimes of conspiracy and accessory to a crime are
separate offenses based on separate acts for which the Legislature has intended
multiple punishments.” State v. Carrasco, 1997-NMSC-047, ¶ 36, 124 N.M. 64, 946
P.2d 1075. Defendant acknowledges that these crimes are separate concepts, but he
contends that in this case his involvement in the murder as an accessory did not
extend beyond the words or acts that formed the conspiracy. As we have described,
Defendant’s actions in relation to the murder extended beyond the scope of the
22
conspiracy and were separated by time. Additionally, the jury instructions in this
case reflected the differences in conduct necessary for the jury to find both first-
degree murder, NMSA 1978, § 30-2-1(A) (1994), under accessory liability, NMSA
1978, § 30-1-13 (1972), and conspiracy to commit first-degree murder. See State v.
Baca, 1997-NMSC-059, ¶ 50, 124 N.M. 333, 950 P.2d 776. Specifically, the jury
instructions brought the jury’s attention to the agreement between Defendant and his
coconspirators to commit first-degree murder.
3. A fifteen-year sentence is the proper basic sentence for a second-degree
felony that resulted in the death of a human being
{47} Defendant also argues that his fifteen-year sentence for conspiracy to commit
first-degree murder violates double jeopardy and is an unconstitutional sentencing
enhancement based on Victim’s death. Essentially, Defendant argues that he was
punished twice for Victim’s death: once under his sentence for first-degree murder,
and once under his sentence for conspiracy to commit first-degree murder, which
was a second-degree felony that resulted in the death of a human being.
{48} Double jeopardy in double-description cases protects defendants from being
punished twice for unitary conduct. See Swafford, 1991-NMSC-043, ¶ 26. As we
described above, Defendant’s conduct underlying his first-degree murder and
conspiracy to commit first-degree murder convictions was not unitary. There were
23
clearly two instances of criminal conduct, and Defendant’s respective sentences
were based on those separate instances of criminal conduct. Defendant was
sentenced to life imprisonment for first-degree murder. Defendant’s sentence for
conspiracy to commit first-degree murder was fifteen years. The sentence for
conspiracy reflects “only the factual consequence” of Defendant’s criminal conduct
within the conspiracy. State v. McDonald, 2004-NMSC-033, ¶ 18, 136 N.M. 417,
99 P.3d 667.
{49} The fact that his sentence for conspiracy to commit first-degree murder took
into account the factual consequence of the conduct—Victim’s death—was not an
unconstitutional enhancement but rather the appropriate basic sentence for a second-
degree felony that resulted in the death of a human being. Id. ¶ 7; State v. Franco,
2016-NMCA-074, ¶ 18, 387 P.3d 279. Conspiracy to commit first-degree murder is
a second-degree felony. NMSA 1978, § 30-28-2(B)(1) (1979). The basic sentence
for a second-degree felony under NMSA 1978, Section 31-18-15(A)(7) (2019) is a
nine-year term of imprisonment. The basic sentence for a second-degree felony
resulting in the death of a human being is a fifteen-year term of imprisonment.
Section 31-18-15(A)(4). This more severe punishment reflects the Legislature’s
intent to authorize harsher punishment for felonies that result in death than those that
do not. McDonald, 2004-NMSC-033, ¶ 7.
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{50} Alternatively to his argument that his fifteen-year sentence for conspiracy
violates double jeopardy, Defendant urges this Court to hold that a second-degree
conspiracy conviction cannot receive a fifteen-year sentence as a matter of statutory
construction.
{51} When a defendant is convicted of conspiracy to commit first-degree murder,
the court will sentence the defendant according to Sections 31-18-15(A)(4) and
(A)(7), which differentiate sentences based on result, as described above. Compare
§ 31-18-15(A)(4) (providing the basic sentence for second-degree felonies that result
in death), with § 31-18-15(A)(7) (providing the basic sentence for second-degree
felonies that do not result in death). Franco and its predecessor, State v. Shije, clearly
establish that a fifteen-year term of imprisonment is an appropriate sentence under
the sentencing statute for a second-degree conspiracy that results in the death of a
human being. Franco, 2016-NMCA-074, ¶ 21; State v. Shije, 1998-NMCA-102, ¶
10, 125 N.M. 581, 964 P.2d 142. Defendant’s argument would require this Court to
overrule this precedent.
{52} When considering whether to overrule precedent, this Court determines
whether one of the following “convincingly demonstrates that a past decision is
wrong”:
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1) whether the precedent is so unworkable as to be intolerable; 2)
whether parties justifiably relied on the precedent so that reversing it
would create an undue hardship; 3) whether the principles of law have
developed to such an extent as to leave the old rule no more than a
remnant of abandoned doctrine; and 4) whether the facts have changed
in the interval from the old rule to reconsideration so as to have robbed
the old rule of justification.
Padilla v. State Farm Mut. Auto. Ins. Co., 2003-NMSC-011, ¶ 7, 133 N.M.
661, 68 P.3d 901) (internal quotations marks and citation omitted).
{53} To support his argument that the Court should depart from precedent
Defendant asserts “the precedent is so unworkable as to be intolerable.” He provides
no explanation as to what is unworkable or what is intolerable; he simply contends
that Franco was wrongly decided and must be overturned before courts impose more
basic sentences such as what Defendant now faces for his conspiracy to commit first-
degree murder. He notes that because Franco was decided in 2016, reversing Franco
would not cause undue hardship because it is unlikely that many parties have relied
on it. Finally, Defendant contends that the third and fourth factors do not apply.
{54} Defendant’s arguments do not compel us to abandon Franco’s precedent, and
we decline to do so.
{55} Thus, we conclude that Defendant’s convictions and sentences do not violate
protections against double jeopardy.
26
D. There Is Sufficient Evidence to Support Defendant’s Conviction of Arson
{56} Arson includes the malicious or willful burning or causing of an explosion
“with the purpose of destroying or damaging” the property of another. NMSA 1978,
§ 30-17-5 (2006). Defendant contends that the State did not provide sufficient
evidence that he burned the property of another or that the burning was malicious to
support his arson conviction. Defendant argues that the Suzuki in which they burned
Victim’s body belonged to Joe, who gave consent to burn the vehicle such that
Defendant did not burn the vehicle of another maliciously.
1. Standard of review
{57} The Court reviews a sufficiency of the evidence claim in the light most
favorable to the verdict. State v. Storey, 2018-NMCA-009, ¶ 45, 410 P.3d 256. The
Court determines “whether the evidence, viewed in this manner, could justify a
finding by any rational trier of fact that each element of the crime charged has been
established beyond a reasonable doubt.” Id. (internal quotation marks and citation
omitted).
2. There is sufficient evidence to support the jury’s finding
{58} There is sufficient evidence to support the jury’s conclusion that the Suzuki
did not belong to Joe. The jury heard testimony from Tracy and Joey in which both
witnesses referred to the Suzuki as Priscilla’s or Victim’s vehicle—not Joe’s vehicle.
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This is sufficient to support the jury’s conclusion that the vehicle did not belong to
Joe, consistent with Section 30-17-5(A)(1).
{59} There is also sufficient evidence to support the jury’s conclusion that
Defendant burned the Suzuki maliciously or willfully, consistent with Section 30-
17-5(A). The trial court instructed the jury to consider whether Defendant burned
the car maliciously or intentionally. The jury heard extensive evidence that
Defendant intended to burn the vehicle. Joe’s consent is irrelevant to whether
Defendant burned the vehicle intentionally. Therefore, a rational jury would be
justified in concluding that Defendant intentionally or willfully burned the Suzuki.
IV. CONCLUSION
{60} For the foregoing reasons, we affirm Defendant’s convictions.
{61} IT IS SO ORDERED.
C. SHANNON BACON, Justice
WE CONCUR:
MICHAEL E. VIGIL, Chief Justice
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BARBARA J. VIGIL, Justice
DAVID K. THOMSON, Justice
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