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State v. Sosa6/18/1997
tilize the two step assessment set forth in Swafford. Id. The sentencing court should first determine whether the same conduct violates both statutes, meaning the conduct is unitary. Id. If the statutes punish the same conduct, the court must then determine whether the legislature intended that a defendant convicted of both offenses receive punishment for both offenses. Id. If the legislature did not intend to create separately punishable offenses, the Double Jeopardy Clause will prohibit punishment for both offenses. Id.
{36} In determining whether the legislature intended to punish both offenses, the sentencing court will look for an express provision allowing for multiple punishments. Absent such a provision, the sentencing court must apply the Blockburger test to the elements of each statute to determine whether multiple punishments are permissible. . The Blockburger test provides:
Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact the other does not.
Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 52 S. Ct. 180 (1932). If the elements of the statutes are not subsumed within each other, there is a presumption that the legislature intended separate punishment for each offense. . The presumption may be rebutted by other indicia of legislative intent such as language, history, and the subject of the statutes. Id. Of particular relevance to Sosa's case is the observation that "statutes directed toward protecting different social norms and achieving different policies can be viewed as separate and amenable to multiple punishments." Id. The fact that each statute may be violated independent of the other will also lend support to the imposition of sentences for each offense.
{37} In the instant case there is no dispute that the offenses of shooting into an occupied vehicle and aggravated assault with a deadly weapon arose out of unitary conduct. Therefore, we move on to the second prong of our analysis, considering whether the legislature intended to provide multiple punishments for these offenses. There is no express authorization of multiple punishments in either of the statutes. The legislature defined aggravated assault as "unlawfully assaulting or striking at another with a deadly weapon." NMSA 1978, § 30-3-2(A) (1963). The legislature defined shooting at an occupied vehicle as "willfully discharging a firearm at or from a motor vehicle with reckless disregard for the person of another." NMSA 1978, § 30-3-8(B) (1993). Aggravated assault with a deadly weapon requires proof of the victim's belief that he or she was about to be shot, an element not required for the offense of shooting at an occupied vehicle. Shooting into an occupied vehicle requires that the offender know the vehicle was occupied, an element not required for the offense of aggravated assault with a deadly weapon. Thus, the elements of one offense do not subsume those of the other offense. We presume that the legislature intended separate punishments for each offense. See .
{38} The distinct social evils proscribed by these two statutes provide additional support for imposition of separate punishments for each offense. The aggravated assault with a deadly weapon statute is "aimed at deterring aggression against other people in which the use of deadly weapons is involved." . The offense of shooting into an occupied vehicle is "designed to protect the public from reckless shooting into a vehicle and the possible property damage and bodily injury that may result."
{39} We also note that ea
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