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1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
2 Opinion Number: __________________
3 Filing Date: June 22, 2023
4 NO. S-1-SC-38177
5 MARIO RUDOLFO,
6 Petitioner,
7 v.
8 ROBERT STEWARD, LCCC, Warden,
9 VINCENT HORTON, FCCF, Warden,
10 Respondents.
11 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
12 Cindy M. Mercer, District Judge
13 Burgess & Porter Law, LLC
14 Barrett G. Porter
15 Albuquerque, NM
16 for Petitioner
17 Hector H. Balderas, Attorney General
18 Walter Hart, Assistant Attorney General
19 Santa Fe, NM
20 for Respondents
1 OPINION
2 VIGIL, Justice.
3 {1} A jury convicted Petitioner Mario Rudolfo of first-degree murder under a
4 general verdict. The jury instructions contained two alternative theories for the jury
5 to use as a basis for the first-degree murder conviction: (1) felony murder predicated
6 on shooting at or from a motor vehicle and (2) willful and deliberate murder. Twelve
7 years after Petitioner’s conviction, this Court issued its opinion in State v. Marquez,
8 2016-NMSC-025, ¶ 2, 376 P.3d 815, holding that “the crime of shooting at or from
9 a motor vehicle may not serve as the predicate felony in support of a felony murder
10 charge.” Now, Petitioner argues that the Marquez holding applies retroactively and
11 asserts that his conviction for first-degree murder must be vacated.
12 {2} We hold that Marquez announced a new substantive rule which applies
13 retroactively. As a result, we set aside the district court’s denial of Petitioner’s writ
14 of habeas corpus, vacate Petitioner’s first-degree murder conviction, and remand the
15 case for a new trial on first-degree murder.
16 I. BACKGROUND
17 {3} In addition to his conviction for one count of first-degree murder, the jury also
18 convicted Petitioner of attempted murder, shooting at or from a motor vehicle, and
19 tampering with evidence. The jury’s general verdict did not indicate whether
1 Petitioner’s first-degree murder conviction was based upon the theory of felony
2 murder or willful and deliberate murder.
3 {4} On direct appeal, Petitioner challenged his convictions alleging a double
4 jeopardy violation, that the district court improperly failed to instruct the jury on
5 self-defense, and that there was insufficient evidence to support Petitioner’s
6 tampering with evidence conviction. State v. Rudolfo, 2008-NMSC-036, ¶ 2, 144
7 N.M. 305, 187 P.3d 170. This Court affirmed his convictions for first-degree murder,
8 attempted first-degree murder, and tampering with the evidence. However, we
9 vacated Petitioner’s conviction for shooting at or from a motor vehicle and held that
10 the alternative theory of felony murder could subject Petitioner to a double jeopardy
11 violation. Id. ¶¶ 3, 10-12.
12 {5} Petitioner then filed a petition for writ of habeas corpus in the district court,
13 arguing that the holding from Marquez, 2016-NMSC-025, ¶ 23, is substantive, that
14 it applies retroactively, and that this first-degree murder conviction should be
15 converted to second-degree murder. The district court concluded that Marquez
16 should not be applied retroactively because the case did not announce a substantive
17 rule “but that it simply clarified the procedure for determining whether felonies
18 qualify as predicate felonies.” The district court denied Petitioner’s writ of habeas
19 corpus petition.
2
1 {6} Thereafter, Petitioner petitioned this Court for a writ of certiorari to review
2 the district court’s denial of his petition for writ of habeas corpus. See Rule 5-
3 802(N)(2) NMRA; Rule 12-501 NMRA. We granted certiorari to address whether
4 Marquez is afforded retroactive effect and to determine the implications of our
5 decision on Petitioner’s first-degree murder conviction.
6 II. DISCUSSION
7 {7} “It is within the inherent power of this Court to give its decision prospective
8 or retroactive application without offending constitutional principles.” Kersey v.
9 Hatch, 2010-NMSC-020, ¶ 14, 148 N.M. 381, 237 P.3d 683 (internal quotation
10 marks and citation omitted). “Retroactivity is a legal question, which we review de
11 novo.” Id. (internal quotation marks and citation omitted).
12 A. Threshold Requirements for Retroactivity Analysis
13 {8} For new case law to apply retroactively, a judicial opinion must have
14 announced a new rule after a defendant’s criminal conviction had been finalized. Id.
15 ¶ 15. “A case is finalized when ‘a judgment of conviction has been rendered, the
16 availability of appeal exhausted, and the time for a petition for certiorari elapsed or
17 a petition for certiorari finally denied.’” State v. Nunez, 2000-NMSC-013, ¶ 114, 129
18 N.M. 63, 2 P.3d 264 (quoting Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987)).
3
1 Here, Petitioner’s conviction for first-degree murder was finalized in 2008 following
2 his direct appeal. See Rudolfo, 2008-NMSC-036, ¶ 3.
3 {9} The parties and the district court agree that Marquez announced a new rule.
4 An appellate opinion “need not overrule a prior decision in order to qualify as new.”
5 Kersey, 2010-NMSC-020, ¶ 18 (internal quotation marks and citation omitted).
6 “Rather, an opinion announces a new rule if it breaks new ground, imposes new
7 obligations on the government, or was not dictated by precedent.” Id.
8 {10} In New Mexico, our laws “elevate second-degree murder to [first-degree
9 murder] when the murder occurs during the commission of a dangerous felony.”
10 Campos v. Bravo, 2007-NMSC-021, ¶ 9, 141 N.M. 801, 161 P.3d 846; NMSA 1978,
11 § 30-2-1(A)(2) (1994). Prior to Marquez, the predicate felony for felony murder had
12 to “be independent of or collateral to the homicide.” See State v. Harrison, 1977-
13 NMSC-038, ¶ 9, 90 N.M. 439, 564 P.2d 1321, modified on other grounds by State
14 v. Ortega, 1991-NMSC-084, ¶ 26, 112 N.M. 554, 817 P.2d 1196. Following this
15 rule, this Court employed a strict-elements test to determine whether a particular
16 felony was independent of or collateral to a homicide. State v. Duffy, 1998-NMSC-
17 014, ¶¶ 23-24, 126 N.M. 132, 967 P.2d 807, overruled on other grounds by State v.
18 Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110. “Under this test, an offense
19 [was] deemed to be a lesser-included offense of another only if all of the statutory
4
1 elements of the lesser offense [were] completely embodied within the statutory
2 elements of the greater offense such that it would [have been] impossible ever to
3 commit the greater offense without also committing the lesser offense.” Id. ¶ 24
4 (internal quotation marks and citation omitted).
5 {11} In Marquez, this Court announced and applied a new test—the felonious
6 purpose test—to determine whether an underlying felony is an appropriate collateral
7 felony to support a charge of felony murder. 2016-NMSC-025, ¶ 19. The Marquez
8 Court explained that under the felonious-purpose test, “a dangerous felony may only
9 serve as a predicate to felony murder when the elements of any form of the predicate
10 felony—looked at in the abstract—require a felonious purpose independent from the
11 purpose of endangering the physical health of the victim.” Id. ¶ 24. “In other words,
12 there must be a felonious purpose that is independent from the purpose of
13 endangering the physical health of the victim before the dangerous felony can be
14 used to elevate a second-degree murder to a first-degree murder.” Id.
15 {12} To reach its ultimate conclusion—that shooting at or from a motor vehicle
16 cannot serve as the predicate felony for felony murder—the Marquez Court outlined
17 the relationship between second-degree murder and the crime of battery. Id. ¶¶ 17,
18 18. The Marquez Court explained that battery “is the prototypical lesser-included
19 offense of murder that fails to meet the collateral-felony requirement,” id. ¶ 17,
5
1 because “all or virtually all murders include the commission of some underlying
2 felony in the nature of an assault or battery.” Id. ¶ 16. The Marquez Court determined
3 that “shooting at or from a motor vehicle ‘is an elevated form of aggravated battery’
4 and thus cannot be used as a predicate for felony murder.” Id. ¶ 23 (citation omitted).
5 The Court reasoned that it “did not have a felonious purpose independent from the
6 purpose of endangering the physical health of the victim because shooting from a
7 motor vehicle must be accomplished with reckless disregard for the safety of a
8 person.” Id. ¶ 25. Thus, shooting at or from a motor vehicle cannot serve as the
9 predicate felony for felony murder. Id.
10 {13} Therefore, because Marquez broke new ground in announcing the felonious-
11 purpose test for determining an applicable predicate felony for felony murder and
12 because Petitioner’s conviction was finalized before Marquez was decided, the
13 threshold requirements for retroactivity are satisfied.
14 B. Retroactive Application of Marquez
15 {14} In Teague v. Lane, 489 U.S. 288, 299-313 (1989), the United States Supreme
16 Court clarified how retroactivity should be determined by a federal court on
17 collateral review, such as on a writ of habeas corpus. Under United States Supreme
18 Court precedent, new rules are not generally applied retroactively to cases on
19 collateral review. See Mackey v. United States, 401 U.S. 667, 673-74 (1971).
6
1 However, the Teague Court announced two exceptions to the general rule of
2 nonretroactivity. Teague, 489 U.S. at 305-10. “First, a new rule should be applied
3 retroactively if it places certain kinds of primary, private individual conduct beyond
4 the power of the criminal law-making authority to proscribe. Second, a new rule
5 should be applied retroactively if it requires the observance of those procedures that
6 are implicit in the concept of ordered liberty.” Id. at 307 (ellipsis, internal quotation
7 marks, and citation omitted).
8 {15} We adopted the Teague standard in Kersey. 2010-NMSC-020, ¶ 25 (“[T]he
9 Teague standard, which focuses on the function and purpose of the writ of habeas
10 corpus, is the proper standard by which to determine whether new rules should apply
11 retroactively to habeas corpus proceedings.”). Therefore, under New Mexico law,
12 “new rules generally should not be afforded retroactive effect unless (1) the rule is
13 substantive in nature, in that it alters the range of conduct or the class of persons that
14 the law punishes, or (2) although procedural in nature, the rule announces a
15 watershed rule of criminal procedure.” Kersey, 2010-NMSC-020, ¶ 25 (internal
16 quotation marks and citation omitted); see also Schriro v. Summerlin, 542 U.S. 348,
17 351-53 (2004) (stating that a retroactively applicable new substantive rule “includes
18 decisions that narrow the scope of a criminal statute by interpreting its terms”).
7
1 {16} On the other hand, procedural rules “regulate only the manner of determining
2 the defendant’s culpability” and may not alter “the range of permissible methods for
3 determining whether a defendant’s conduct is punishable.” Schriro, 542 U.S. at 353.
4 Procedural rules “generally do not apply retroactively [and] do not produce a class
5 of persons convicted of conduct the law does not make criminal, but merely raise
6 the possibility that someone convicted with use of the invalidated procedure might
7 have been acquitted otherwise.” Id. at 352.
8 {17} In this case, we address only the first Teague exception adopted by Kersey
9 because the parties do not argue that Marquez announced a watershed rule of
10 criminal procedure. Petitioner argues that Marquez applies retroactively because its
11 holding altered the range of conduct that felony murder punishes by changing the
12 scope of the elements of the offense. Respondents disagree, arguing that Marquez
13 did not change the substantive law regarding felony murder. Instead, Respondents
14 contend that Marquez only announced a procedural methodology for determining
15 whether a dangerous felony is a lesser-included offense of second-degree murder.
16 {18} Generally, a felony with a purpose to “injure or kill” may not serve as a
17 predicate felony in a felony murder conviction. Marquez, 2016-NMSC-025, ¶¶ 19,
18 24-25. Although the elements of felony murder remain the same, Marquez
19 eliminated the possibility of using the crime of shooting at or from a motor vehicle
8
1 as a predicate felony. Id. ¶¶ 2, 19. Marquez therefore narrowed the range of
2 punishable conduct that could support a felony murder conviction. We hold that this
3 is a substantive rule and thus conclude Marquez is afforded retroactive effect.
4 Accordingly, we evaluate the legal consequences of this conclusion on Petitioner’s
5 conviction.
6 C. Effect on Petitioner’s Conviction
7 {19} It is well settled that “a conviction under a general verdict must be reversed
8 where it is based on more than one legal theory and at least one of those theories is
9 legally, as opposed to factually, invalid.” State v. Mailman, 2010-NMSC-036, ¶ 12,
10 148 N.M. 702, 242 P.3d 269. Petitioner argues that because the verdict and
11 instructions were general and did not indicate which theory the jury used to reach its
12 conclusion, the Court must conclude that the jury could have made the finding of
13 guilt based upon felony murder.
14 {20} This Court has previously examined whether a conviction under a general
15 verdict should be vacated. Campos, 2007-NMSC-021. In Campos, the defendant
16 challenged his felony murder conviction because it was unclear whether the jury
17 used aggravated battery or aggravated burglary as the predicate felony for his felony
18 murder conviction. Id. ¶ 1. The Campos Court noted that the defendant’s “conviction
19 of felony murder would be legally void if the jury used aggravated battery with a
9
1 deadly weapon as the predicate felony” because “it is not possible to commit second-
2 degree murder without also committing some form of aggravated battery.” Id. ¶ 12.
3 For that reason, under a fundamental-error analysis, the Campos Court concluded,
4 “Error occurred at [the defendant]’s trial because one of the alternative bases for his
5 conviction was legally inadequate.” Id. ¶ 17.
6 {21} The Campos Court reaffirmed that “‘a conviction under a general verdict must
7 be reversed if one of the alternative bases of conviction is legally inadequate.’”
8 Campos, 2007-NMSC-021, ¶ 19 (quoting State v. Olguin, 1995-NMSC-077, ¶ 2, 120
9 N.M. 740, 906 P.2d 731 (relying on Yates v. United States, 354 U.S. 298, 326-27
10 (1957), overruled on other grounds by Burks v. United States, 437 U.S. 1, 2, 18
11 (1978))).
12 {22} In addition, the Campos Court established that a reviewing court must
13 evaluate whether it is “impossible to tell which ground the jury selected” when
14 returning the guilty verdict. Id. (internal quotation marks and citation omitted). The
15 Campos Court ultimately found fundamental error occurred at the defendant’s trial
16 and granted him a writ of habeas corpus. Id. ¶¶ 17, 22.
17 {23} In the present case, by applying Marquez retroactively, we have invalidated
18 the theory of felony murder predicated on shooting at or from a motor vehicle.
19 Because the parties provided the jury with a general verdict, we cannot conclusively
10
1 determine whether the jury relied on an invalid theory of felony murder when
2 convicting Petitioner of first-degree murder. In other words, it is impossible for us
3 to determine which theory of first-degree murder the jury selected. See Campos,
4 2007-NMSC-021, ¶ 19.
5 {24} Petitioner asks this Court to reduce his conviction to second-degree murder
6 because “it is reasonable to assume that the jury indeed relied upon a felony murder
7 theory of the case for rendering their verdict.” Respondents in turn ask this Court to
8 remand to the district court for a retrial on willful and deliberate murder. We note
9 that the parties do not provide authority supporting their arguments regarding the
10 proper remedy.
11 {25} For guidance, we look to Campos, 2007-NMSC-021, ¶ 17. The Campos Court
12 noted that if the defendant had properly preserved the predicate felony issue by
13 raising it on direct appeal rather than for the first time in a habeas petition—where
14 the jury had not indicated which predicate felony was used to convict the defendant,
15 id. ¶ 1—the Campos Court “would undoubtedly have vacated [the defendant’s]
16 conviction and remanded for a new trial.” Id. ¶ 17.
17 {26} We also look to State v. Downey, in which this Court addressed “whether [the
18 d]efendant [was] entitled to a new trial, or whether his conviction may be affirmed
19 on the alternate theory of culpability under which the case was submitted to the jury.”
11
1 2008-NMSC-061, ¶ 40, 145 N.M. 232, 195 P.3d 1244. Based on the prejudicial
2 admission of improper expert witness testimony, the Downey Court concluded “that
3 the general verdict must be reversed because it may have rested on an invalid legal
4 basis.” Accordingly, the Downey Court vacated the defendant’s conviction and
5 remanded the case to the trial court for a new trial. Id.
6 {27} Therefore, because the theory of felony murder predicated on shooting at or
7 from a motor vehicle is legally invalid, we vacate Petitioner’s first-degree murder
8 conviction under the general verdict and remand to the district court for a new trial.
9 III. CONCLUSION
10 {28} Marquez announced a substantive rule of law by narrowing the scope of
11 punishable conduct underlying the crime of felony murder. See Marquez, 2016-
12 NMSC-025, ¶¶ 2, 19. Petitioner’s first-degree murder conviction must be vacated
13 because it is impossible to determine whether the general verdict is based on the
14 legally invalid theory of felony murder or on willful and deliberate murder. As a
15 result, we set aside the district court’s denial of Petitioner’s habeas petition and
16 remand this case for a new trial on the first-degree murder charge.1
This opinion does not disturb Petitioner’s convictions for attempted murder
1
and shooting at or from a motor vehicle.
12
1 {29} IT IS SO ORDERED.
2
3 MICHAEL E. VIGIL, Justice
4 WE CONCUR:
5
6 C. SHANNON BACON, Chief Justice
7
8 DAVID K. THOMSON, Justice
9
10 JULIE J. VARGAS, Justice
11
12 BRIANA H. ZAMORA, Justice
13