State v. Montoya

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 15:27:27 2011.07.21

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMCA-074

Filing Date: May 27, 2011

Docket No. 28,881

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

FREDDIE BENJI MONTOYA,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Stephen Bridgforth, District Judge

Gary K. King, Attorney General
Anita Carlson, Assistant Attorney General
Santa Fe, NM

for Appellee

Law Office of Craig C. Kling
Craig C. Kling
San Diego, CA

for Appellant

OPINION

FRY, Judge.

{1} Defendant appeals from convictions of kidnaping, conspiracy to commit kidnaping,
second-degree criminal sexual penetration (CSP II), and aggravated burglary. He raises
three points on appeal: (1) his right to a speedy trial was violated by a twenty-one-month
delay between his arrest and trial; (2) he was deprived of his right to a trial by jury because
a certified court interpreter was not sworn in before voir dire commenced; and (3) his right
to be free from double jeopardy was violated by his convictions for kidnaping, CSP II, and
aggravated burglary. We conclude that Defendant’s convictions of kidnaping and CSP II

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violate principles of double jeopardy, and we therefore remand with instructions to vacate
one of Defendant’s convictions. We affirm on all other issues.

I. BACKGROUND

{2} Defendant’s convictions stem from an incident that occurred on March 2, 2006, in
Doña Ana County, New Mexico. At trial, Victim testified that she was driving home that
evening after stopping for fuel at a gas station. Shortly after leaving the gas station, Victim
observed a work truck pass her vehicle. A few minutes later, Victim testified that she
stopped her vehicle on the roadway because the work truck she had observed earlier was
now parked sideways across the road, blocking traffic in both directions. Victim stated that
two men exited the truck and approached her vehicle. She explained that she opened her car
door after the driver of the truck displayed a gun. She testified that after the truck driver
gained entry to her vehicle, he proceeded to sexually assault her while the passenger of the
truck held her hands above her head. After the assault, Victim stated that the men let her go,
returned to the work truck, and drove away. The next day, Victim reported the incident to
the police and subsequently identified Defendant as the driver of the truck.

{3} Defendant was arrested and charged with: (1) kidnaping; (2) conspiracy to commit
kidnaping; (3) aggravated burglary committed with a deadly weapon or, in the alternative,
committed during the commission of a battery; and (4) CSP II committed during the
commission of a felony, or in the alternative, committed while being aided or abetted by
another. Following a jury trial, Defendant was convicted on all charges. This appeal
followed.

II. DISCUSSION

{4} Defendant argues that his right to a speedy trial was violated, that he was denied his
right to trial by jury, and that his convictions violate his right to be free from double
jeopardy. We address each argument in turn.

A. The District Court Did Not Violate Defendant’s Right to a Speedy Trial

{5} Defendant argues that the delay of his trial for over twenty-one months prejudiced
his defense due to the death of an alibi witness during the pretrial delay. As a result, he
maintains that the delay violated his right to a speedy trial.

{6} As an initial matter, we consider Defendant’s argument that our Supreme Court’s
decision in State v. Garza, 2009-NMSC-038, 146 N.M. 499, 212 P.3d 387, should not apply
retroactively to his case. Defendant claims that Garza overturned established precedent
governing speedy trial analysis and held that the burden no longer shifts to the state if
pretrial delay is determined to be presumptively prejudicial. As a result, according to
Defendant, this holding in Garza is a “new rule” enacted prior to Defendant’s convictions
becoming final, and it should not have retroactive effect. See State v. Mascarenas,
2000-NMSC-017, ¶ 24, 129 N.M. 230, 4 P.3d 1221 (“An appellate court’s consideration of

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whether a rule should be retroactively or prospectively applied is invoked only when the rule
at issue is in fact a ‘new rule.’”).

{7} While Defendant correctly states the relevant holding in Garza, we disagree with his
characterization of that holding. The Court in Garza sought to clarify what it perceived to
be ambiguities in Barker v. Wingo, 407 U.S. 514 (1972), the United States Supreme Court’s
seminal decision concerning the right to speedy trial. Garza, 2009-NMSC-038, ¶ 15. The
Court in Garza reviewed New Mexico case law and case law from federal appeals courts and
stated that “[i]n light of the overwhelming consensus among the federal Circuit Courts of
Appeals and our policy of providing a functional analysis based on the facts and
circumstances of each case, we abolish the presumption that a defendant’s right to a speedy
trial has been violated based solely on the threshold determination that the length of delay
is presumptively prejudicial.” Id. ¶ 21 (internal quotation marks omitted). Although the
Court used the term “abolish” in describing its holding, it nonetheless characterized its
holding as “modify[ing]” New Mexico precedent on the issue. Id. ¶¶ 21, 22. As a result, we
do not view Garza’s holding as a “new rule” triggering an inquiry into whether it may be
applied retroactively. See Kersey v. Hatch, 2010-NMSC-020, ¶ 16, 148 N.M. 381, 237 P.3d
683 (explaining that “a court establishes a new rule when its decision is flatly inconsistent
with the prior governing precedent and is an explicit overruling of an earlier holding”
(internal quotation marks omitted)).

{8} Defendant’s argument regarding the alleged retroactive application of Garza appears
to be directed solely at Garza’s modification of the burden-shifting employed in prior New
Mexico case law. To the extent that Defendant’s argument is also directed to Garza’s
modification of the guidelines governing the determination of presumptive prejudice, we
reject the argument. The Court in Garza changed the existing guidelines from nine months
to one year for a simple case, from twelve months to fifteen months for an intermediate case,
and from fifteen months to eighteen months for a complex case. 2009-NMSC-038, ¶¶ 41,
47, 48. The Court explicitly stated that these new guidelines would apply “to speedy trial
motions to dismiss initiated on or after August 13, 2007.” Id. ¶ 50. Because Defendant filed
his motion to dismiss on December 26, 2007, the new guidelines announced in Garza are
applicable.

1. Application of the Barker factors

{9} We turn now to analysis of Defendant’s argument that his speedy trial right was
violated. In making this determination, we employ the balancing test created in Barker and
weigh the conduct of both the prosecution and the defendant in light of four factors: “(1) the
length of delay, (2) the reasons for the delay, (3) the defendant’s assertion of his right, and
(4) the actual prejudice to the defendant.” Garza, 2009-NMSC-038, ¶ 13 (internal quotation
marks omitted). In considering each of the factors, we defer to the district court’s factual
findings but review de novo the question of whether Defendant’s constitutional right to a
speedy trial was violated. State v. Brown, 2003-NMCA-110, ¶ 11, 134 N.M. 356, 76 P.3d
1113.

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{10} According to Garza, the initial inquiry in speedy trial analysis is a determination as
to whether the length of pretrial delay is “presumptively prejudicial.” 2009-NMSC-038, ¶
15. “[A] presumptively prejudicial length of delay is simply a triggering mechanism,
requiring further inquiry into the Barker factors.” Id. ¶ 21 (internal quotation marks
omitted). In the present case, there was a delay of approximately twenty-one months
between Defendant’s indictment and the beginning of his trial. Although the district court
made no findings regarding the complexity of the present case, twenty-one months exceeds
the guideline for even the most complex case. See id. ¶ 48. Accordingly, inquiry into the
Barker factors is warranted.

{11} Garza provides guidance as to the order in which we consider the factors. Our
Supreme Court in Garza stated that “generally a defendant must show particularized
prejudice of the kind against which the speedy trial right is intended to protect.” 2009-
NMSC-038, ¶ 39. If a defendant does not demonstrate prejudice, he or she may still show
violation of the speedy trial right “if the length of delay and the reasons for the delay weigh
heavily in [the] defendant’s favor and [the] defendant has asserted his right and not
acquiesced to the delay.” Id. Therefore, we turn first to the fourth Barker factor and
consider whether Defendant has demonstrated actual prejudice. See Garza,
2009-NMSC-038, ¶¶ 35-37 (explaining that the defendant has the burden to demonstrate and
substantiate prejudice).

a. Prejudice Factor

{12} “The United States Supreme Court has identified three interests under which we
analyze prejudice to the defendant: (i) to prevent oppressive pretrial incarceration[,] (ii) to
minimize anxiety and concern of the accused[,] and (iii) to limit the possibility that the
defense will be impaired.” Id. ¶ 35 (internal quotation marks omitted). “As to the first two
types of prejudice, some degree of oppression and anxiety is inherent for every defendant
who is jailed while awaiting trial.” Id. (alterations omitted) (internal quotation marks
omitted). “Therefore, we weigh this factor in the defendant’s favor only where the pretrial
incarceration or the anxiety suffered is undue.” Id. Furthermore, “[t]he oppressive nature
of the pretrial incarceration depends on the length of incarceration, whether the defendant
obtained release prior to trial, and what prejudicial effects the defendant has shown as a
result of the incarceration.” Id.

{13} In the present case, Defendant spent only three months in jail while he negotiated the
reduction of his bond. He was released a full year-and-a-half before his trial. In addition,
while Defendant asserts that he “was forced to worry about the pending trial for the better
part of two years,” he has not demonstrated that his worry was undue. See In re Ernesto M.,
Jr., 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318 (“An assertion of prejudice is not
a showing of prejudice.”).

{14} Defendant also claims he was prejudiced because one of his alibi witnesses died
during the time he was awaiting trial. However, Defendant did not inform his attorney about
the existence of this witness until the week before trial. In addition, Defendant concedes that
he was able to present the testimony of another alibi witness and, as a result, he was not

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deprived of an alibi defense. Moreover, Defendant failed to state what exculpatory
testimony would have been offered through the alibi witness and, in turn, how the witness’s
absence prejudiced him. Therefore, because Defendant has not made a particularized
showing of prejudice, we conclude that he has not met his burden.

{15} We now turn to the other Barker factors to determine whether they weigh heavily in
his favor, despite his failure to demonstrate prejudice. See Garza, 2009-NMSC-038, ¶ 39
(explaining that the right to a speedy trial may be violated if the factors other than prejudice
weigh heavily in the defendant’s favor).

b. Length of Delay

{16} The greater the delay in comparison to the complexity of the case, “the more heavily
it will potentially weigh against the [s]tate.” Id. ¶ 24. As previously noted, the district court
made no findings regarding the complexity of the present case, but we conclude that it was
of intermediate complexity. “Typically, simple cases require less investigation and tend to
involve primarily police officer testimony during the trial.” State v. Laney, 2003-NMCA-
144, ¶ 14, 134 N.M. 648, 81 P.3d 591 (internal quotation marks omitted). “Cases of
intermediate complexity, on the other hand, seem to involve numerous or relatively difficult
criminal charges and evidentiary issues, numerous witnesses, expert testimony, and scientific
evidence.” Id. Here, Defendant faced four somewhat difficult charges, and there were nine
witnesses, including a sexual assault nurse examiner and a forensic scientist. Accordingly,
this case falls in the category of intermediate complexity, for which our Supreme Court has
determined that a fifteen-month delay may be deemed presumptively prejudicial. Garza,
2009-NMSC-038, ¶ 48.

{17} The delay in this case was six months longer than the fifteen-month guideline. In our
view, such a delay was not so long or protracted as to weigh more than slightly against the
State. See State v. Wilson, 2010-NMCA-018, ¶ 29, 147 N.M. 706, 228 P.3d 490 (stating that
delay of five months beyond the guideline for a simple case was not so extraordinary or
protracted as to compel weighing the length of delay factor against the state more than
slightly), cert. denied, 2010-NMCERT-001, 147 N.M. 673, 227 P.3d 1055.

c. Reasons for the Delay

{18} There are three types of delay, each of which weighs differently in favor of or against
the state. The delays range from a deliberate attempt to delay trial to a valid, non-negligent
reason for delay. See Barker, 407 U.S. at 531 (noting that a “deliberate attempt to delay the
trial in order to hamper the defense should be weighted heavily against the government,” that
“more neutral” delays caused by negligence or administrative problems should be weighted
less heavily against the state, and that “a valid reason, such as a missing witness, should
serve to justify appropriate delay”) (footnote omitted).

{19} The record reflects only one motion for continuance and one petition for extension
of the so-called six-month rule, both filed by the State. Our Supreme Court granted two
additional extensions of the six-month rule. It appears that the majority of the delay in the

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present case was due to backlog at the lab that was conducting what the State termed “DNA
testing.” In fact, the forensic scientist who testified for the State clarified that she tested
vaginal swabs taken from Victim and items of Victim’s clothing for the presence of semen
and, finding no semen, she did no further testing. The scientist also testified that the
evidence to be tested arrived at the lab in May and June 2006, but that she was unable to test
the evidence until March 2007 due to the “very large backlog” of evidence waiting to be
tested.

{20} We conclude that the delay attributable to the lab’s backlog weighs only slightly
against the State. There is no evidence and Defendant does not suggest that the State
deliberately caused the backlog. See State v. Tortolito, 1997-NMCA-128, ¶¶ 9, 13, 124
N.M. 368, 950 P.2d 811 (weighing only slightly against the state a delay attributable to the
crime lab’s backlog when there was no evidence suggesting that the state was negligent or
willful in the conduct of its DNA investigation).

{21} The reason for the remaining delay, from the completion of the lab’s testing in March
2007 to the trial in December 2007, is unclear. However, it appears likely that this delay was
attributable to the district court’s schedule because no motions for continuance appear in the
record. Accordingly, we consider this period of delay to be administrative, which we weigh
only slightly against the State, given the relatively short length of time that the overall delay
extended beyond the triggering guideline. See Garza, 2009-NMSC-038, ¶¶ 29-30
(explaining that administrative delay is negligent and weighed against the state according
to the length of the delay and, where the delay extends only slightly beyond the triggering
guideline, the factor weighs only slightly in the defendant’s favor).

d. Defendant’s Assertion of the Right

{22} In considering the third Barker factor, “we assess the timing of the defendant’s
assertion and the manner in which the right was asserted.” Garza, 2009-NMSC-038, ¶ 32.
“An early assertion of the speedy trial right indicates the defendant’s desire to have the
charges resolved rather than gambling that the passage of time will operate to hinder
prosecution.” Zurla v. State, 109 N.M. 640, 644, 789 P.2d 588, 592 (1990) modified on
other grounds by Garza, 2009-NMSC-038.

{23} Defendant objected to only one of the State’s two motions for continuance or
extension. Moreover, he waited until the day before trial to affirmatively assert the right
through a motion to dismiss. Thus, this factor weighs only slightly in Defendant’s favor.
See Laney, 2003-NMCA-144, ¶ 24 (“Because [the d]efendant waited until the eleventh hour
to specifically and meaningfully invoke a ruling on the speedy trial issue, we find this factor
weighs only slightly in his favor.”).

e. Balancing the Factors

{24} In the present case, Defendant failed to demonstrate actual prejudice, and the
remaining factors weigh only slightly in his favor. The delay passed the threshold for
asserting the right by only a few months and was largely caused by the time it took to

6
complete lab testing and by administrative delay. Defendant acquiesced in part of the delay
because he did not oppose the State’s first motion for continuance, and he did not assert his
right to a speedy trial until the day before trial began. Thus, Defendant’s failure to make an
affirmative showing of particularized prejudice precludes a determination that his speedy
trial right was violated because the other three factors weigh only slightly against the State.
Accordingly, on balance, we affirm the district court’s denial of his motion to dismiss.

B. The District Court Did Not Violate Defendant’s Right to Trial by Jury

{25} Defendant argues that he was deprived of his right to a trial by jury because a
certified court interpreter who served the jury venire during voir dire was not properly sworn
in. Defendant maintains that the district court abused its discretion by not granting a mistrial
after defense counsel alerted the court to this fact. Defendant did not properly preserve the
issue and, therefore, we decline to address it.

{26} The trial transcript does not conclusively show whether or not the interpreter was
sworn in. Although the transcript of voir dire does not reflect that the interpreter was sworn,
it is possible that the oath occurred before voir dire took place. However, even if the oath
did not take place before voir dire, Defendant did not draw the district court’s attention to
this procedural defect until after voir dire, after the petit jury had been seated, and after four
witnesses had already testified. Defendant did not properly preserve the issue because he
waited until after the time when the district court could have avoided or cured the error. See
Gracia v. Bittner, 120 N.M. 191, 195, 900 P.2d 351, 355 (Ct. App. 1995) (stating that one
purpose of the preservation requirement is to give the district court “an opportunity to correct
the mistake”); see also State v. Trujillo, 119 N.M. 772, 776, 895 P.2d 672, 676 (Ct. App.
1995) (explaining that timely objections must be made in order to preserve an issue for
appeal).

{27} Moreover, even if Defendant had properly preserved the alleged error, there was no
prejudice to him. Apparently the only venire person for whom the interpreter provided her
services, juror no. 62, was not ultimately selected to serve on the jury.

C. Defendant’s Convictions for Both CSP II (Commission of a Felony) and
Kidnaping Violated Protections Against Double Jeopardy

{28} Defendant claims that his constitutional protection against double jeopardy was
violated because he was convicted of both CSP II (commission of a felony) and the predicate
felony underlying the CSP II conviction. The State offered two theories of CSP II: (1)
sexual intercourse during the commission of aggravated burglary and (2) sexual intercourse
during the commission of kidnaping. Defendant maintains that the conduct supporting his
conviction of CSP II under either theory and the conduct supporting his convictions of
aggravated burglary and/or kidnaping was unitary and not intended to be punished
separately.

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{29} “The right to be free from double jeopardy consists of three separate constitutional
protections. It protects against a second prosecution for the same offense after acquittal. It
protects against a second prosecution for the same offense after conviction. And it protects
against multiple punishments for the same offense.” State v. Rodriguez, 2005-NMSC-019,
¶ 6, 138 N.M. 21, 116 P.3d 92 (alteration omitted) (internal quotation marks omitted). In the
present case, we are concerned with the third type—multiple punishment for the same
offense. This is “a question of legislative intent, which we review de novo.” State v.
Franco, 2005-NMSC-013, ¶ 5, 137 N.M. 447, 112 P.3d 1104.

{30} “We analyze a multiple punishment double jeopardy challenge under Swafford v.
State, 112 N.M. 3, 810 P.2d 1223 (1991), and its progeny.” State v. Padilla, 2006-NMCA-
107, ¶ 26, 140 N.M. 333, 142 P.3d 921, rev’d on other grounds by 2008-NMSC-006, 143
N.M. 310, 176 P.3d 299. The protection against multiple punishments Defendant invokes
in the present case is categorized as a “double-description [case], which prohibits charging
a defendant with violations of multiple statutes for the same conduct in violation of the
[L]egislature’s intent.” State v. Armendariz, 2006-NMCA-152, ¶ 5, 140 N.M. 712, 148 P.3d
798 (internal quotation marks omitted). In such a case, “double jeopardy bars a conviction
if the conduct underlying the two offenses is unitary and the [L]egislature has not indicated
an intent to punish the same conduct separately.” Padilla, 2006-NMCA-107, ¶ 26.

1. Unitary Conduct

{31} We begin our analysis by determining whether Defendant’s actions may be viewed
as one, single transaction. Conduct is not unitary if sufficient “indicia of distinctness”
separate the transaction into several acts. State v. Cooper, 1997-NMSC-058, ¶ 59, 124 N.M.
277, 949 P.2d 660 (internal quotation marks omitted). In making this determination, we
evaluate separations in time and space as well as the quality and nature of the acts or the
results involved. Swafford, 112 N.M. at 13-14, 810 P.2d at 1233-34. Sufficient indicia of
distinctness exist “when one crime is completed before another,” and also “when the
conviction is supported by at least two distinct acts or forces, one which completes the first
crime and another which is used in conjunction with the subsequent crime.” Armendariz,
2006-NMCA-152, ¶ 7. The key consideration is whether the same force was used to commit
both crimes. Id.

{32} We consider in turn whether unitary conduct supported (1) CSP II and aggravated
burglary, or (2) CSP II and kidnaping.

a. CSP II (Commission of a Felony) and Aggravated Burglary

{33} In order to convict Defendant of CSP II (commission of a felony), the jury had to find
that Defendant “caused [Victim] to engage in sexual intercourse” and that he committed this
act “during the commission of [either] kidnap[]ing or aggravated burglary.” The district
court gave the jury two alternative instructions on the charge of aggravated burglary. The
first charge was that Defendant committed aggravated burglary by entering a vehicle without
authorization “armed with a pistol while entering, leaving, or while inside the vehicle.” In
the alternative, the court instructed the jury that it could find Defendant guilty of aggravated

8
burglary if it found that Defendant entered the vehicle and “touched or applied force to
[Victim] in a rude or angry manner while entering, leaving, or while inside the vehicle.”
Both Defendant and the State agree that the jury convicted Defendant on the first
charge—being armed with a pistol—and not on the alternative charge. We therefore analyze
unitary conduct in accordance with the first charge of aggravated burglary.

{34} The jury could convict Defendant of aggravated burglary if it found that he entered
Victim’s vehicle without authorization with the intent to commit criminal sexual penetration
and while armed. Accordingly, the crime of aggravated burglary was completed as soon as
Defendant, with the requisite intent, gained entry to Victim’s vehicle while armed with a
pistol. The force Defendant used to gain entry into Victim’s car while armed with a pistol
was distinct from the force used to restrain Victim in order to commit criminal sexual
penetration. Cf. State v. Crain, 1997-NMCA-101, ¶ 21, 124 N.M. 84, 946 P.2d 1095
(explaining that CSP II involves “some force or restraint occurring either before or after the
sexual penetration without consent”). Thus, the conduct is not unitary and the evaluation of
this crime ends. See Swafford, 112 N.M. at 14, 810 P.2d at 1234 (explaining that if conduct
is not unitary the “inquiry is at an end”).

b. CSP II (Commission of a Felony) and Kidnaping

{35} We turn now to Defendant’s argument that convictions of both CSP II and kidnaping
violated his protections against double jeopardy. Again, in order to convict Defendant of
CSP II, the jury had to find that Defendant “caused [Victim] to engage in sexual intercourse”
and that he committed this act “during the commission of [either] kidnap[]ing or aggravated
burglary.” In order to convict Defendant of kidnaping, the jury was required to find that
Defendant “restrained or confined [Victim] by force or intimidation” and that he “intended
to hold [Victim] against [her] will to inflict a sexual offense on [Victim].” Defendant argues
that the force used to restrain or confine Victim was the same force used to cause Victim to
engage in sexual intercourse and, therefore, the conduct underlying both crimes was unitary.

{36} In order to address Defendant’s argument, we briefly review our case law on the
matter. In a case this Court decided prior to the decision in Swafford, we suggested that
double jeopardy principles do not preclude punishment for both CSP II (commission of a
felony) and kidnaping. See State v. Tsethlikai, 109 N.M. 371, 374, 785 P.2d 282, 285 (Ct.
App. 1989) (stating that “[b]ecause CSP II and kidnaping address different social norms,”
convictions of both crimes do not violate protections against double jeopardy). However,
we also indicated that “special circumstances in a particular case may require merger.” Id.
Since Swafford’s adoption of the double-description analysis set forth in Blockburger v.
United States, 284 U.S. 299 (1932), our case law has made it clear that a double-description
analysis is appropriate only on a showing of unitary conduct. See Armendariz, 2006-
NMCA-152, ¶ 8 (explaining that a reviewing court applies the Blockburger analysis to
ascertain legislative intent “[i]f the conduct underlying two offenses is unitary”). Thus, the
“special circumstances” alluded to in Tsethlikai refer to the constitutional problems that arise
when a defendant is convicted and punished of two crimes based on unitary conduct. See
State v. Pisio, 119 N.M. 252, 261, 889 P.2d 860, 869 (Ct. App. 1994) (stating that “the
special circumstances to which Tsethlikai referred include unitary conduct”).

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{37} As we have made clear in cases decided after Swafford, unitary conduct occurs when
the state bases its theory of kidnaping on the same force used to commit CSP II (commission
of a felony) even though there were alternative ways to charge the crime. See, e.g., Crain,
1997-NMCA-101, ¶¶ 21-22 (stating that “CSP III cannot be charged as CSP II without some
force or restraint occurring either before or after the sexual penetration without consent” and
that the defendant’s convictions must be vacated because the court could not tell whether the
jury convicted him on the theory that the kidnaping was accomplished by force or by
deception); Pisio, 119 N.M. at 261-62, 889 P.2d at 869-70 (explaining that “force or
coercion exerted prior to the act [of penetration] itself [which] will support a conviction for
kidnap[]ing” and CSP II’s “force or coercion executed prior to the act of sexual intercourse
without consent but closely associated with it” can amount to unitary conduct).

{38} In the present case, Defendant’s conviction for CSP II (commission of a felony) was
based on sexual intercourse “during the commission of kidnap[]ing or aggravated burglary,”
and his conviction for kidnaping required that he “restrained or confined” Victim with the
intent to “inflict a sexual offense” on her. We said in Crain and Pisio that because some
force or restraint is involved in every sexual penetration without consent, kidnaping cannot
be charged out of every CSP without a showing of force or restraint separate from the CSP.
Crain, 1997-NMCA-101, ¶ 21; Pisio, 119 N.M. at 261-62, 889 P.2d at 869-70. The State
argues that such force or restraint exists in this case because the jury could have based the
kidnaping conviction on Defendant’s confining Victim by blocking the highway with his
truck rather than on the force Defendant exerted in restraining Victim while committing
CSP.

{39} We are unable to determine from the record whether the jury found that the kidnaping
was accomplished by the truck’s confinement of Victim’s vehicle or by Defendant’s restraint
of Victim inside the vehicle. The jury instruction supported either theory of kidnaping.
Under such circumstances, we must “reverse a conviction if one of the alternative bases for
the conviction provided in the jury instructions is legally inadequate because it violates a
defendant’s constitutional right to be free from double jeopardy.” State v. Foster, 1999-
NMSC-007, ¶ 2, 126 N.M. 646, 974 P.2d 140, abrogated on other grounds by Kersey, 2010-
NMSC-020. Because one of the alternative bases for kidnaping was the force of restraining
Victim and because that force was the same force used to commit CSP, we conclude that the
conduct underlying both of the convictions was unitary.

2. Legislative Intent

{40} Having determined that the conduct was unitary, we turn to the second prong of our
inquiry under a double-description analysis, which is to determine if the Legislature intended
for the unitary conduct to be punished as separate offenses. The “sole limitation on multiple
punishments is legislative intent.” Swafford, 112 N.M. at 13, 810 P.2d at 1233. “If the
[L]egislature expressly provides for multiple punishments, the double jeopardy inquiry must
cease.” Id. at 14, 810 P.2d at 1234. If the Legislature has not provided a clear expression
of intent for multiple punishments, a court must apply the Blockburger test to the elements
of each statue. Swafford, 112 N.M. at 14, 810 P.2d at 1234. If, as a result of that test, one
statute is subsumed within the other, the statues are the same for double jeopardy purposes.

10
Id. If, through the Blockburger test, we conclude that each statute requires an element that
the other does not, we will presume that the Legislature intended for the conduct to result
in separately punishable offenses. Swafford, 112 N.M. at 14, 810 P.2d at 1234. However,
this presumption is not conclusive and may be overcome by other indicia of legislative
intent, such as the “language, history, and subject of the statutes.” Id.

{41} In the present case, there are no clear legislative expressions indicating that multiple
punishments are permissible. Thus, we turn to the Blockburger elements test. The
Blockburger test “focuses strictly upon the elements of the statutes.” State v. Armendariz,
2006-NMSC-036, ¶ 21, 140 N.M. 182, 141 P.3d 526. When applying the Blockburger test
to offenses that may be charged in alternate ways, we focus our inquiry on the elements of
the statute as they were presented in the jury instructions. State v. Armijo, 2005-NMCA-010,
¶ 22, 136 N.M. 723, 104 P.3d 1114 (“[W]e look only to the elements of the statute[] as
charged to the jury and disregard the inapplicable statutory elements.”). The jury instruction
in the present case for CSP II (commission of a felony) required the jury to find that
Defendant caused Victim to engage in sexual intercourse during the commission of
kidnaping or aggravated burglary. The jury instruction for kidnaping required the jury to
find that Defendant restrained or confined Victim by force or intimidation with the intent to
hold her against her will to inflict a sexual offense on her.

{42} In comparing the two offenses, we consider whether each offense requires proof of
an element that the other does not. Franco, 2005-NMSC-013, ¶ 12. Because we have
already determined that the conduct in this case is unitary, the “during the commission of a
felony” element of CSP II requires proof of all of the elements of kidnaping. Thus, the
offense of kidnaping is subsumed in CSP II (commission of a felony), and convictions of
both offenses violated Defendant’s right to be free from double jeopardy. See Armendariz,
2006-NMCA-152, ¶ 11 (holding that aggravated burglary was subsumed within CSP II
(commission of a felony) when the conduct was unitary and an element of CSP II
(commission of a felony) required that the sexual contact occur in the “commission of
aggravated burglary”).

{43} This does not mean that a defendant could never be punished for both kidnaping and
CSP II (commission of a felony). See Tsethlikai, 109 N.M. at 373-74, 785 P.2d at 284-85
(stating that convictions normally are allowed for both predicate and compound offenses and
our courts have held that CSP statutes and kidnaping statutes protect different social norms).
Had the jury in this case been instructed only on a theory based on non-unitary conduct to
establish kidnaping—for example, the theory that Defendant kidnaped Victim by preventing
her vehicle from traveling further by blocking it with his truck—convictions for both CSP
II (commission of a felony) and kidnaping may have been upheld. However, in light of the
unitary conduct in this case, punishment for both kidnaping and CSP II (commission of a
felony) fail the Blockburger test and violate Defendant’s right to be free from multiple
punishments. Therefore, we remand to the district court with instructions to vacate the
conviction for the lesser offense. See Kersey, 2010-NMSC-020, ¶ 12 (explaining that if
double jeopardy is violated, the conviction for the lesser offense should be vacated).

III. CONCLUSION

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{44} For the foregoing reasons, we remand to the district with instructions to vacate
Defendant’s conviction for the lesser offense, either kidnaping or CSP II. We affirm the
district court’s judgment in all other respects.

{45} IT IS SO ORDERED.

______________________________________
CYNTHIA A. FRY, Judge

WE CONCUR:

______________________________________
LINDA M. VANZI, Judge

______________________________________
TIMOTHY L. GARCIA, Judge

Topic Index for State v. Montoya, Docket No. 28,881

CT CONSTITUTIONAL LAW
CT-DJ Double Jeopardy
CT-ST Speedy Trial
CT-TJ Trial by Jury

CL CRIMINAL LAW
CL-BG Burglary
CL-CP Criminal Sexual Penetration
CL-KP Kidnaping

CA CRIMINAL PROCEDURE
CA-IT Interpreter
CA-RD Right to Speedy Trial
CA-RJ Right to Trial by Jury
CA-SP Speedy Trial

ST STATUTES
ST-LI Legislative Intent

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