(concurring in part and dissenting in part).
{32} I concur with Section 11(A) of the majority opinion. However, because in my view the legislature did not intend separate punishments for attempted first-degree murder and third-degree aggravated battery when convictions for both offenses arise from a single act of shooting and wounding a victim, I would vacate Defendant’s aggravated battery conviction as a violation of double jeopardy. Therefore, I respectfully dissent from Section 11(B).
{33} It is undisputed that Defendant’s single act of shooting and wounding the victim resulted in convictions of both attempted first-degree murder and third-degree aggravated battery. Attempted first-degree murder requires proof that a defendant, with deliberate intent to kill, committed an overt act in furtherance of murder but failed to kill the victim. NMSA 1978, §§ 30-2-1 (1994), 30-28-1 (2006). Aggravated battery requires proof that a defendant, with intent to injure, touched or applied force to the victim. NMSA 1978, § 30-3-5 (2006). Aggravated battery is a misdemeanor if the touching was committed in a manner whereby great bodily harm or death is not likely to be inflicted. § 30-3-5(B). However, aggravated battery is a third-degree felony when the touching inflicts great bodily harm, is committed in a manner whereby great bodily harm or death can be inflicted, or is committed with a deadly weapon. § 30-3-5(C). Of course, a deadly weapon is an instrument or object that, when used, could cause death or great bodily harm. UJI 14-322 NMRA. In this case, Defendant was charged with aggravated battery constituting a third-degree felony.
{34} To support a conviction for both attempted first-degree murder and third-degree aggravated battery, the overt act required for attempted first-degree murder must be an application of force in a manner whereby great bodily harm or death can be inflicted. Otherwise, if the overt act did not involve the application of force (i.e. the defendant missed in his attempt to apply deadly force) the single act could not also support a conviction for aggravated battery. This is because aggravated battery requires proof that Defendant applied force to the victim. Shooting and wounding the victim satisfied the actus reus requirement under both statutes. Similarly, since the jury found that Defendant intended to kill the victim, the jury could also find that Defendant intended to injure the victim.2 Thus, the single act of shooting at the victim and wounding the victim constitutes unitary conduct. Had the conduct not been unitary, the inquiry regarding double jeopardy would end, and the Defendant could be subjected to multiple punishments. However, because the conduct was unitary and resulted in two offenses, we must determine “whether the legislature intended multiple punishments for unitary conduct.” Swafford v. State, 112 N.M. 3, 14, 810 P.2d 1223, 1234 (1991).
{35} My disagreement with the majority opinion arises from its formalistic application of the Swafford test. I agree with the majority that the Legislature has not expressly provided for double punishment for attempted first-degree murder and third-degree aggravated battery, and that we must therefore proceed to the Blockburger test. Id. at 14, 810 P.2d at 1234. Under Blockburger, we must begin the analysis by determining whether the elements of one of the statutes at issue are subsumed within the other. Id.; see Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) (the test to determine whether the same act constitutes two offenses, or only one, is whether each statute requires proof of a fact which the other does not). Yet, even if we were to conclude that attempted first-degree murder does not subsume the elements of third-degree aggravated battery, the Block-burger test only raises a presumption that the Legislature intended multiple punishments for the single act. This presumption may be overcome by other indicia of legislative intent. Swafford, 112 N.M. at 14, 810 P.2d at 1234.
{36} To support its conclusion that Defendant’s dual convictions do not constitute double jeopardy the majority compares the elements of attempted murder with the elements of a misdemeanor aggravated battery. Maj. Op. ¶ 24. I would take a less formalistic approach than the majority and hold that attempted murder subsumes the elements of third-degree aggravated battery, since these are the crimes at issue in this case. The majority rejects this approach because they believe such an approach requires a court to look at the facts of the case which is more a DeMary analysis than a Swafford analysis. Maj. Op. ¶ 27. Considering the crimes actually charged, and thus the statutes actually at issue, is not the same as looking at the facts. This approach simply requires a court to consider the elements of the crimes as charged as opposed to crimes that were not charged. The approach also requires the court to be mindful that it was unitary conduct that gave rise to multiple convictions. In my opinion, such an approach is called for by Swafford and Blockburger. See Swafford, 112 N.M. at 8, 810 P.2d at 1228 (stating that the traditional Blockburger test for legislative intent focuses “upon the elements of the statutes at issue” and that “the proper inquiry focuses upon the elements of the statutes in question”).
{37} For a single act to result in the conviction of attempted first-degree murder and third-degree aggravated battery the actus reus must be the same. Both require a showing of application of force. Without application of force the Defendant could not have been convicted of aggravated battery and a double jeopardy analysis would not be necessary. Moreover, the mens rea requirement of attempted murder, intent to kill, proves the mens re a requirement for aggravated battery, intent to injure. In other words, by convicting a defendant of attempted first-degree murder and third-degree aggravated battery based on unitary conduct, a jury has essentially stated, “The defendant is guilty of attempted first degree murder because he or she committed aggravated battery with the intent to kill.” Although the mens rea element admittedly makes this a close case, in my opinion the elements of third-degree aggravated battery are subsumed within the elements of attempted first-degree murder. This is particularly true since aggravated battery is a lesser included offense of attempted murder. See State v. Meadors, 121 N.M. 38, 908 P.2d 731 (1995); see also People v. Robideau, 419 Mich. 458, 355 N.W.2d 592, 597 (1984) (“When one of the two statutes involved is a necessarily lesser included offense of the other, application of the Blockburger test will always raise the presumption that the two statutes involve the ‘same offense’.”) As such, I would conclude that the Legislature did not intend multiple punishments for such unitary conduct. Swafford, 112 N.M. at 14, 810 P.2d at 1234. “[T]he inquiry is over and the statutes are the same for double jeopardy purposes — punishment cannot be had for both.” Id.
{38} Even if attempted murder does not subsume the elements of aggravated battery, this court in Swafford requires a continued search for legislative intent which may overcome the presumption that the two statutes punish distinct offenses. Id. In my judgment, the most compelling statutory construction principle which mandates a finding of a double jeopardy violation in this case was stated by the Swafford court as follows:
The quantum of punishment also is probative of legislative intent to punish. Where one statutory provision incorporates many of the elements of a base statute, and extracts a greater penalty than the base statute, it may be inferred that the legislature did not intend punishment under both statutes.
112 N.M. at 15, 810 P.2d at 1235. The disparate sentences for attempted first-degree murder and aggravated battery offer further support for my conclusion that the legislature did not intend to punish the offenses separately. Aggravated battery inflicting great bodily harm, committed with a deadly weapon, or committed in a manner whereby great bodily harm or death can be inflicted is a third-degree felony. § 30-3-5(C). A third-degree felony not resulting in the death of a human being is punishable by three years in prison. NMSA 1978, § 31-18-15(A)(8) (2005). Attempted first-degree murder is a second degree felony. § 30-28-1(A). A second-degree felony not resulting in death is punishable by nine years in prison. § 31-18-15(A)(5). Tripling the sentence when a defendant applies force with intent to kill as opposed to applying force with only an intent to injure is indicia of legislative intent to not punish each offense separately. As the Swafford Court explained: “If the punishment attached to an offense is enhanced to allow for kindred crimes, these related offenses may be presumed to be punished as a single offense.” 112 N.M. at 15, 810 P.2d at 1235. Aggravated battery committed with the intent to injure is punishable by three years in prison. When the aggravated battery is done with an intent to kill, the legislature has enhanced the punishment to nine years and titled this kindred offense “attempted murder.” This analysis comports with language in Robideau, relied on by this court in Swafford:
Our criminal statutes often build upon one another. Where one statute incorporates most of the elements of a base statute and then increases the penalty as compared to the base statute, it is evidence that the Legislature did not intend punishment under both statutes. The Legislature has taken conduct from the base statute, decided that aggravating conduct deserves additional punishment, and imposed it accordingly, instead of imposing dual convictions.
Robideau 355 N.W.2d at 604. I would not summarily reject this important statutory construction principle as has the majority. Maj. Op. ¶25. At the very minimum, the doctrine of lenity requires us to presume that the Legislature did not intend to pyramid punishments for the same offense. Swafford, 112 N.M. at 15, 810 P.2d at 1235.
{39} Defendant’s dual convictions for attempted first-degree murder and third-degree aggravated battery violate the prohibition against double jeopardy, and the aggravated battery conviction must be vacated. For the foregoing reasons, I respectfully dissent from Section 11(B) of the majority opinion.
. Had the jury found that Defendant intended only to injure the victim and not intended to kill the victim, the jury could not have convicted Defendant of attempted first-degree murder.