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State v. Dominguez1/27/2005
harm for shooting at a motor vehicle is distinct from the element of an unlawful killing for first degree murder. In Gonzales, the defendant was convicted of both first degree murder and shooting at a motor vehicle in relation to the death of a single victim. 113 N.M. at 223, 824 P.2d 1025. At that time, the shooting at a motor vehicle statute provided that the crime was a fourth degree felony if it did not result in great bodily harm and a third degree felony if it did result in great bodily harm. 1987 N.M. Laws, ch. 213, § 1. We take judicial notice of the record in Gonzales and note that the jury instruction for the crime of shooting at a motor vehicle in that case included the element of the victim suffering great bodily harm as a result of the shooting at a motor vehicle. See Miller v. Smith, 59 N.M. 235, 241, 282 P.2d 715, 719 (1955) ("This Court may take judicial notice under proper circumstances of other cases which are, or have been, on its docket . . . ."); State v. Turner, 81 N.M. 571, 576, 469 P.2d 720, 725 (Ct. App. 1970) (similar). In addition, in Varela, our interpretation of Section 30-3-8 relied on NMSA 1978, § 30-1- 12(A) (1963), which defines great bodily harm as "an injury to the person which creates a high probability of death; or which causes serious disfigurement; or which results in permanent or protracted loss or impairment of the function of any member or organ of the body." Varela, 1999-NMSC-045, 12. This same statutory definition of great bodily harm was in existence at the time we decided Gonzales. Under these circumstances, we believe that our opinion in Gonzales implicitly assumes, as we later explicitly held in Varela, that evidence of death could support a jury finding on the element of great bodily harm. See Gonzales, 113 N.M. at 225, 824 P.2d at 1027 (" eath may occur as a result of shooting into an occupied vehicle . . . ."); see also Varela, 1999-NMSC-045, 14. We nevertheless held in Gonzales that the element of an unlawful killing for first degree murder was distinct from the elements of shooting at a motor vehicle, including the element of great bodily harm. Thus, contrary to Defendant's argument, Varela does not alter our holding in Gonzales, and there has been no change in the elements of the crime of shooting at a motor vehicle to distinguish our analysis in Gonzales from the Blockburger analysis in the present case.
Second, Defendant's argument that death and great bodily harm are identical elements for purposes of a Blockburger test ignores the plain language of the Legislature. The shooting at or from a motor vehicle statute does not require proof of a death or include death as an alternative to great bodily harm. Section 30-3-8(B). Had Solisz survived his wounds, Defendant would still have been liable for the same crime of shooting at a motor vehicle resulting in great bodily harm, Section 30-3-8(B), and would still have received the same elements instruction for this crime. See UJI 14-344 NMRA 2005. However, in the same factual scenario, Defendant could not have been convicted of voluntary manslaughter because the element of an unlawful killing would be absent. As a result, proving the violation of shooting at a motor vehicle resulting in great bodily harm does not always prove the violation of voluntary manslaughter such that one crime subsumes the other. See Swafford, 112 N.M. at 9, 810 P.2d at 1229 (" f each statute requires an element of proof not required by the other, it may be inferred that the egislature intended to authorize separate application of each statute."). These crimes have distinct elements under the Blockburger test.
We recognize that we stated in Varela that "the Legislature equated `causing death' and `great bodily harm.'" 1
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