State v. Dominguez1/27/2005
13, 810 P.2d at 1233.
We believe that the facts in this case support a conclusion that Defendant's conduct with respect to each conviction under Section 30-3-8 was distinct rather than unitary. In assessing whether conduct is unitary or distinct in a unit of prosecution case, we look to a number of indicia of distinctness. It is firmly established in New Mexico law that the existence of multiple victims is an important factor both in assessing whether conduct is unitary and in determining, in accordance with legislative intent, the appropriate unit of prosecution for crimes of violence. Herron v. State, 111 N.M. 357, 361, 805 P.2d 624, 628 (1991) (stating that "multiple victims will likely give rise to multiple offenses"); State v. Roper, 2001-NMCA-093, 10-13, 131 N.M. 189, 34 P.3d 133; State v. Castaneda, 2001-NMCA-052, 12-14, 130 N.M. 679, 30 P.3d 368; House, 2001-NMCA-011, 24; State v. Morro, 1999-NMCA-118, 19, 127 N.M. 763, 987 P.2d 420; State v. Barr, 1999-NMCA-081, 17-23, 127 N.M. 504, 984 P.2d 185; State v. Johnson, 103 N.M. 364, 374, 707 P.2d 1174, 1184 (Ct. App. 1985). In addition to this factor, other indicia of distinctness include the temporal proximity of the acts, the spatial proximity of the acts, the similarity of the acts, the location of the victim at the time of the acts, the identity and number of victims for each act, the identity and number of perpetrators for each act, the existence of any intervening events, the sequence of the acts, and the defendant's mental state or objective during each act. See Swafford, 112 N.M. at 13-14, 810 P.2d at 1233-34; Herron, 111 N.M. at 361, 805 P.2d at 628; Barr, 1999- NMCA-081, 16.
In Gonzales and Varela, we determined that the firing of multiple bullets from a single gun without any separation of time and space was a unitary act. Varela, 1999- NMSC-045, 39; Gonzales, 113 N.M. at 224, 824 P.2d at 1026. However, in the present case, the evidence of distinctness extends far beyond the firing of multiple bullets. In addition to this fact, this case involves the important factor of multiple victims. The evidence further supported a finding that each victim was shot with a different gun. There were also multiple perpetrators, with a reasonable inference that different principals shot different victims. Cf. State v. Perez, 2002-NMCA-040, 31-32, 132 N.M. 84, 44 P.3d 530 (concluding that the defendant's conduct was not unitary because "there were two victims and four perpetrators"). The two victims, as well as the two shooters, were separated by space. Cf. Mireles, 2004-NMCA-100, 27-28 (concluding that conduct supporting convictions for second degree murder and shooting at or from a motor vehicle was separated by time and space, and thus not unitary, because the defendant initially shot the victim from inside a car and then pursued the victim in order to shoot him again); Barr, 1999-NMCA-081, 20 (" ertain of the criminal acts were separated in time and space from each other, they involved separate objectives and effects, and they involved different combinations of the seven juveniles."). Martinez was shot outside of his group's vehicle. As a result, the jury had to find that the shooter was inside a vehicle in order to be a violation of Section 30-3-8. There was eyewitness testimony that flashes of gunfire came from the driver's side of Defendant's vehicle, and Defendant had a Glock .40, which matched the caliber of shell casings at the scene. Thus, the jury could have found that Defendant acted as a principal and shot Martinez. In doing so, Defendant was found guilty of shooting from a motor vehicle. By contrast, Solisz was shot inside his vehicle by the second shooter, who was outside of Defendant's vehicle at the time he
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