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State v. Dominguez1/27/2005
erentiate 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.
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").
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.
RICHARD C. BOSSON, Justice
CHÁVEZ, Justice (dissenting).
Because I do not believe the Legislature intended multiple punishments for the unitary conduct at issue in this case, I dissent. A defendant who kills the victim in a single homicidal act should only be prosecuted under the homicide statutes. I also believe the Legislature intended to punish shooting from or at a vehicle as an elevated form of aggravated battery precluding multiple punishments.
Voluntary Manslaughter and Shooting from or at a Motor Vehicle
After finding that Defendant's accomplice shot and killed Solisz in a single homicidal act, the majority concludes that this unitary conduct could violate both a homicide statute, NMSA 1978, § 30-2-3(A) (1994) (voluntary manslaughter), and a statute that does not have as an element, the death of a victim, NMSA 1978, § 30-3-8(B) (1993) (shooting from or at a motor vehicle). When a defendant's conduct is not unitary, he may be convicted of both murder and
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