(concurring in part and dissenting in part).
{28} The principle enunciated in State v. Santillanes, 2001-NMSC-018, 130 N.M. 464, 27 P.3d 456 expresses a long-standing tenet of our criminal jurisprudence that, for a single death, there can be only one conviction. In my view, the majority opinion seriously erodes this vital principle. It reaffirms State v. Gonzales, 113 N.M. 221, 824 P.2d 1023 (1992), while professing continuing loyalty to Santillanes. The majority tries to have it both ways. For a single death, Defendant was convicted of both voluntary manslaughter and shooting from a motor vehicle causing that same death. By concluding that Defendant’s double jeopardy rights were not violated, the majority walks an invisible line. Respectfully, I am compelled to dissent. I concur with the majority on all remaining issues.
{29} The majority stresses that under the Swafford/Blockburger analysis, these two criminal statutes (manslaughter and shooting from a vehicle) do not violate double jeopardy. Using that test, I agree, and easily so. Under Blockburger, when comparing the elements of these two criminal statutes, one statute is not subsumed by the other; the elements of each are different. That point, however, proves little. The Blockburger analysis only creates a presumption in favor of multiple punishment. The presumption is not conclusive and can be overcome by other indicia of legislative intent. See State v. Santillanes, 2000-NMCA-017, ¶ 7, 128 N.M. 752, 998 P.2d 1203 [hereafter Santillanes I ].
{30} In both the Court of Appeals opinion in Santillanes and the opinion of this Court, we acknowledged that the two statutes involved in that particular case, vehicular manslaughter and child abuse resulting in death, punished “distinct offenses.” 2001-NMSC-018, ¶ 5, 130 N.M. 464, 27 P.3d 456. As with the present situation, the two criminal statutes created offenses with different elements under the Blockburger analysis. Applying only Blockburger, double jeopardy did not bar multiple convictions. But that was not the end of the matter. Judge Apodaca, writing for the Court of Appeals in Santillanes, concluded that the Blockburger presumption “is rebutted by the generally accepted notion that one death should result in only one homicide conviction.” Santillanes I, 2000-NMCA-017, ¶ 8, 128 N.M. 752, 998 P.2d 1203, adopted by Santillanes, 2001 NMSC018, ¶ 5, 130 N.M. 464, 27 P.3d 456. In other words, it does not matter that the two criminal statutes possess distinctive elements under Blockburger. Death is different, we said. For one death, there can only be one death conviction, we said. This is settled law.
{31} Importantly, that “generally accepted notion” is not confined to Santillanes; it has been affirmed in several opinions both before and after Santillanes was decided. See State v. Reyes, 2002-NMSC-024, ¶18, 132 N.M. 576, 52 P.3d 948; State v. Mora, 1997-NMSC-060, ¶ 64, 124 N.M. 346, 950 P.2d 789; State v. Cooper, 1997-NMSC-058, 124 N.M. 277, 949 P.2d 660; State v. Pierce, 110 N.M. 76, 85, 792 P.2d 408, 417 (1990); State v. Crain, 1997-NMCA-101, ¶ 15, 124 N.M. 84, 946 P.2d 1095; State v. Landgraf, 1996— NMCA-024, ¶ 31, 121 N.M. 445, 913 P.2d 252. Several times in the past we have stated that it is “the death of another the legislature intended to punish, not the manner in which it was accomplished.” Santillanes, 2001-NMSC-018, ¶ 5,130 N.M. 464, 27 P.3d 456; see State v. Landgraf, 1996-NMCA-024, ¶ 31, 121 N.M. 445, 913 P.2d 252. That “notion” is now a mainstay of New Mexico law and merits our respect.
{32} The majority opinion seeks to rationalize its betrayal of Santillanes by stating that the shooting from a vehicle statute, Section 30-3-8, is intended only to punish the act of shooting from a motor vehicle, rather than the resulting injury, and therefore there is no double conviction or punishment for the same death. This argument is belied by the very language of the statute. Other than the basic, lesser offense of shooting from a vehicle regardless of consequence (a fourth degree felony), punishment in Defendant’s instance is grounded on the harm actually inflicted. Defendant received an enhanced sentence for this harm. Therefore, the statute evinces a specific legislative intent to punish not just the act of shooting from a car, but also the degree of personal injury imposed, in this case death. Clearly, for the drive-by shooter, the greater the harm inflicted, the greater the punishment. Defendant is living proof of that fact.
{33} Defendant’s situation is far from unique; today’s opinion has far-reaching implications. There are other, similarly phrased criminal statutes. If shooting from a vehicle causing great bodily harm can be charged simultaneously with homicide for the same resulting death, then this changes the paradigm for other criminal statutes that have a “great bodily injury” or “death” enhancement. Unless we limit the present case to the present statute, these other statutes become fair game for overcharging based on multiple offenses for a single death. See NMSA 1978, § 30-3-9 (1989) (battery of school personnel, “great bodily harm or death”); NMSA 1978, § 30-3-9.1 (2001) (battery of sports officials, “death or great bodily harm”); NMSA 1978, § 30-3-16 (1995) (aggravated battery against a household member, “great bodily harm or death”); NMSA 1978, § 30-17-6 (1963) (aggravated arson, “causing a person great bodily harm”); NMSA 1978, § 30-22-17 (1963) (assault by prisoner, “causing or attempting to cause great bodily harm”). Future defendants could be charged under boutique criminal statutes describing the manner in which the person was killed, in addition to the traditional degrees of homicide. As a matter of sound judicial policy, we should avoid any shift in that direction.
{34} The majority opinion attempts to differentiate Santillanes from Gonzales on the ground that the specific statute, shooting from a vehicle, does not use the word “death” in its enhancement, but only “great bodily harm,” unlike Santillanes. The majority seeks to draw a strict line of demarcation between “death” and “great bodily harm.” In the majority’s view, this is not a death statute, and accordingly, there is no conflict with the homicide statutes. But, of course, this Court has previously equated proof of death with proof of great bodily harm. See State v. Varela, 1999-NMSC-045, ¶ 14, 128 N.M. 454, 993 P.2d 1280. In this case, Defendant was found guilty of inflicting great bodily harm precisely because he aided in the shooting and killing of the victim. No matter the rationalization, Defendant is being punished twice for the same, single death.
{35} Because of this professed line of demarcation in the majority opinion, it appears that we agree on one point. If the language of this statute had actually contained the word “death,” then based on the majority’s view, Santillanes would preclude prosecution under both the drive-by shooting statute and general homicide. This is an important point because, according to the majority, it means that criminal statutes that enhance for “death” still fall within the “generally accepted notion” of Santillanes. Therefore, at least some of the statutes previously mentioned could not be charged in conjunction with a homicide prosecution, such as, Section 30-3-9 (battery of school personnel, “great bodily harm or death”), Section 30-3-9.1 (battery of sports officials, “death or great bodily harm”), and Section 30-3-16 (aggravated battery against a household member, “great bodily harm or death”).
{36} The real reason for conflict here is that this Court decided Gonzales well before Santillanes. When Santillanes came down, it sharpened the focus of our double jeopardy analysis. It is clear that Gonzales could not have anticipated Santillanes, and that Santillanes did not discuss Gonzales. The circumstances in which the two opinions were decided did not directly address the conflict we now face. Given this conflict, both decisions cannot stand; one must yield to the other. Gonzales saw no double jeopardy problem in convicting for both the murder and the drive-by shooting responsible for that murder. Santillanes held the opposite. Possibly, Gonzales could be limited to the language of the statute as it was then written, which has since been amended. However, I favor reversing outright the portion of Gonzales now in conflict, because the principles promulgated in Santillanes are so heavily entrenched in our case law. In my view, we have to choose, and for me, the choice is clear.