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State v. Dominguez1/27/2005
shooting from or at a vehicle without violating the double jeopardy clause. See State v. Mireles, 2004-NMCA-100, 25-28 , 98 P.3d 727 (finding no double jeopardy violation where defendant shot a victim from inside a car, seriously wounding the victim, then chased after the victim and shot the victim until he died). However, unless there are distinct acts, one resulting in great bodily harm and the other in death, adefendant cannot be punished for great bodily harm when his single homicidal act results in the death of the victim. See, e.g., State v. Reyes, 2002-NMSC- 024, 19, 132 N.M. 576, 52 P.3d 948 (upholding, inter alia, Defendant's convictions for armed robbery and felony murder after finding substantial evidence that distinct instances of force resulted in the armed robbery and killing). It is also appropriate to use Section 30-3-8(B) as the predicate felony for a felony murder count when a defendant allegedly shoots from or at a vehicle with the requisite mens rea, causing death. See State v. Varela, 1999-NMSC-045, 18-21, 128 N.M. 454, 993 P.2d 1280. Where a defendant's conduct is unitary, a defendant's conviction for both felony murder and shooting from or at a vehicle would result in double jeopardy. See id. at 38. Here the jury rejected felony murder with shooting from or at a vehicle as the predicate felony. Instead, the jury found sufficient provocation and found Defendant guilty of voluntary manslaughter.
The majority's reasoning that death may prove great bodily harm leads to punishment that is greater than what I believe the Legislature intended. Under the majority's approach, a defendant who kills a victim in one act of violence could be convicted of murder, aggravated battery, simple battery and assault. After all, if death proves great bodily harm, great bodily harm proves injury, injury proves assault_all technically different harms. Because the Legislature did not include death as an element in Section 30-3-8(B) while enumerating different levels of harm with correspondingly increased levels of punishment, in my opinion the Legislature did not intend Section 30-3-8(B) to apply to unitary conduct resulting in death other than under the felony murder doctrine. See Swafford v. State, 112 N.M. 3, 14, 810 P.2d 1223, 1234 (1991) (instructing courts to look to statutory language, history, subject matter and relative punishment as "several guiding, but by no means exclusive, principles for divining legislative intent" to rebut the Blockburger presumption). At the very least, given the Legislature's lack of express language to allow both convictions, I believe the rule of lenity applies and the correct presumption is that the Legislature did not intend to pyramid punishments for the unitary conduct at issue in this case. See id. at 15, 810 P.2d at 1235; State v. Landgraf, 121 N.M. 445, 454-55, 913 P.2d 252, 261-62 (Ct. App. 1996) (emphasizing that absent clear legislative intent, doubt should be resolved against turning a single act into multiple offenses). As such, I would vacate the shooting from or at a motor vehicle conviction as it relates to victim Solisz.
Aggravated Battery and Shooting from or at a Motor Vehicle
I would also find double jeopardy with respect to Defendant's convictions of aggravated battery and shooting from or at a motor vehicle. The shooting from or at a motor vehicle statute contains many of the same elements as the base statute of aggravated battery butincreases the punishment from a third degree felony to a second degree felony because the same conduct involves shooting from or ata vehicle. § 30-3- 8(B); NMSA 1978, § 30-3-5(C) (1969). Under Swafford I believe this sentencing structure evinces a legislative intent to punish shooting fr
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