A-1-CA-37486•October 14, 2021- State of New Mexico v. Lee Waldo Garcia, No. A-1-CA-37486
October 14, 2021- State of New Mexico v. Lee Waldo Garcia, No. A-1-CA-37486
A-1-CA-37486Nmctapp
Gesamter Gesetzestext
Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 Opinion Number: 2 Filing Date: October 14, 2021 3 No. A-1-CA-37486 4 STATE OF NEW MEXICO, 5 Plaintiff-Appellee, v. 6 LEE WALDO GARCIA, 7 Defendant-Appellant. APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Briana H. Zamora, District Judge 9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 M. Victoria Wilson, Assistant Attorney General 12 Albuquerque, NM 13 for Appellee 14 Bennett J. Baur, Chief Public Defender 15 John Bennett, Assistant Appellate Defender 16 Santa Fe, NM 17 for Appellant 18 Court of Appeals of New Mexico Filed 10/14/2021 11:34 AM
OPINION 1
IVES, Judge. 2
{1} Defendant Lee Waldo Garcia appeals his conviction and sentence for 3
homicide by vehicle while under the influence of intoxicating liquor, contrary to 4
NMSA 1978, Section 66-8-101(A), (C) (2016). Defendant argues that his conviction 5
was the result of fundamental error because the jury instructions did not accurately 6
present the law of proximate causation and that it is not supported by sufficient 7
evidence of causation. Should his conviction stand, Defendant argues that his 8
sentence must be reversed because it violates his right against double jeopardy. We 9
disagree with Defendant regarding the validity of his conviction, but, because the 10
district court increased Defendant’s sentence after he had formed a reasonable 11
expectation in its finality, we reverse his sentence. 12
BACKGROUND 13
{2} While drunk, Defendant crashed his truck into Victim as Victim was 14
attempting to cross the street in his motorized wheelchair. After Victim had been in 15
the hospital for approximately two weeks, Victim’s family decided to remove him 16
from life support, and he died. 17
{3} The State prosecuted Defendant for driving while under the influence (DWI), 18
aggravated DWI, and vehicular homicide. The jury found Defendant guilty of two 19
crimes: (1) homicide by vehicle while under the influence of intoxicating liquor, 202
contrary to Section 66-8-101(A), (C), a second-degree felony; and (2) aggravated 1
DWI, contrary to NMSA 1978, Section 66-8-102(D)(1) (2016). The district court 2
initially sentenced Defendant to an actual prison term of ten years but twice 3
resentenced Defendant, and the ultimate sentence includes a fifteen-year term of 4
incarceration. Defendant appeals. 5
DISCUSSION 6
I. The Jury Instruction for Vehicular Homicide Did Not Result in 7
Fundamental Error 8
{4} Defendant argues that his conviction must be reversed because the phrase 9
“outside event,” as used in the uniform jury instruction defining proximate cause, 10
UJI 14-251 NMRA, and in the given instructions, was not defined for the jury. 11
Because Defendant did not raise the issue in the district court, we review for 12
fundamental error. State v. Cabezuela, 2015-NMSC-016, ¶ 37, 350 P.3d 1145. Our 13
analysis “begins at the same place as [the] analysis for reversible error[:]” we ask 14
whether “a reasonable juror would have been confused or misdirected by the jury 15
instruction.” State v. Barber, 2004-NMSC-019, ¶ 19, 135 N.M. 621, 92 P.3d 633; 16
see State v. Grubb, 2020-NMCA-003, ¶ 7, 455 P.3d 877 (“In a fundamental error 17
analysis, we begin by considering whether reversible error exists[.]”). Jury 18
instructions cause confusion or misdirection when, “through omission or 19
misstatement,” they do not provide “an accurate rendition” of the essential elements 20
of a crime. State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134. 213
But if an instruction “accurately presents the law[,]” it “is proper, and nothing more 1
is required[.]” State v. Laney, 2003-NMCA-144, ¶ 38, 134 N.M. 648, 81 P.3d 591. 2
To the extent Defendant’s argument requires us to analyze whether UJI 14-251 3
accurately states the law, our review is de novo. Laney, 2003-NMCA-144, ¶ 38. 4
{5} Defendant contends that, by using the phrase “outside event” to refer to 5
something that could interrupt the chain of events between a defendant’s act and a 6
victim’s death, the UJI departs from conventional notions of proximate causation in 7
criminal law. We disagree. 8
{6} When causation is at issue in a homicide case, the jury must determine 9
whether an act of the defendant was (1) a factual cause of the victim’s death and (2) 10
the proximate cause of the victim’s death. See UJI 14-251, use note 1; State v. 11
Montoya, 2003-NMSC-004, ¶ 22 n.1, 133 N.M. 84, 61 P.3d 793. Proximate 12
causation is a question of whether the death was a “natural and probable consequence 13
of[] the accused’s conduct.” State v. Simpson, 1993-NMSC-073, ¶ 14, 116 N.M. 768, 14
867 P.2d 1150 (internal quotation marks and citation omitted). To be a proximate 15
cause, a defendant’s conduct need not “be the sole cause of the [death,]” id., and a 16
coinciding event that contributed to a victim’s death “to an insignificant extent” 17
cannot relieve a defendant of liability. Montoya, 2003-NMSC-004, ¶ 19 (internal 18
quotation marks and citation omitted). Even an event that significantly contributes 19
to a victim’s death does not relieve a defendant of liability, id., unless “it is a 204
superseding cause that negates the defendant’s conduct.” Simpson, 1993-NMSC- 1
073, ¶ 14. 2
{7} We presume that our Supreme Court’s uniform instruction regarding 3
causation in homicide cases, UJI 14-251, is correct, see State v. Ortega, 2014- 4
NMSC-017, ¶ 32, 327 P.3d 1076, and our Supreme Court has recognized that UJI 5
14-251 encompasses both factual and proximate causation. Montoya, 2003-NMSC- 6
004, ¶ 22 n.1. Our own review of the text of UJI 14-251 confirms that the instruction 7
adequately conveys the necessary causation concepts. The instruction requires the 8
jury to determine whether an “act of the defendant was a significant cause of the 9
death . . . without which the death would not have occurred” and whether “[t]he 10
death was a foreseeable result of” that act—i.e., whether the death resulted from that 11
act “in a natural and continuous chain of events, uninterrupted by an outside event[.]” 12
Id. Defendant asserts that the phrase “outside event” is ambiguous and should have 13
been defined for the jury. We conclude that no such definition was necessary because 14
“outside event” has a common meaning, see State v. Munoz, 2006-NMSC-005, ¶ 24, 15
139 N.M. 106, 129 P.3d 142, and a reasonable jury would understand the meaning 16
of the phrase in the context of the given instruction. We therefore reject Defendant’s 17
argument that, without a definition of “outside event,” the given instructions may 185
have confused the jury and were thus erroneous.1 See Laney, 2003-NMCA-144, 1
¶ 38. Because it would not have been reversible error for the district court to decline 2
to instruct the jury on the meaning of “outside event” if Defendant had requested 3
such an instruction at trial, we hold that the lack of an instruction defining that phrase 4
was not fundamental error. See State v. Adamo, 2018-NMCA-013, ¶ 27, 409 P.3d 5
1002 (holding that, where “there was no reversible error” “in the instructions[,]” 6
“there was no fundamental error”). 7
II. The Evidence Suffices to Support Defendant’s Conviction 8
{8} Defendant argues that the evidence did not suffice to show that Victim’s death 9
resulted from Defendant’s act, uninterrupted by an outside event, and that it only 10
sufficed to show that he caused great bodily harm, not homicide. Defendant contends 11
that (1) the evidence demonstrates that Victim’s own negligence in attempting to 12
cross the street caused the collision, and (2) the subsequent decision to remove 13
1 Defendant urges us to apply the rule of lenity, see generally State v. Ogden,
1994-NMSC-029, ¶ 25, 118 N.M. 234, 880 P.2d 845 (“The rule of lenity counsels
that criminal statutes should be interpreted in the defendant’s favor when
insurmountable ambiguity persists regarding the intended scope of a criminal
statute.”), and cites State v. Crain, 1997-NMCA-101, ¶ 20, 124 N.M. 84, 946 P.2d
1095, for the proposition that the rule of lenity applies to uniform jury instructions.
Crain does not support that proposition. Even assuming the rule of lenity is
applicable to the interpretation of jury instructions as a general matter, that rule only
comes into play when the language at issue is ambiguous, and, as we have explained,
the language of UJI 14-251 is not ambiguous.6
Victim from life support relieves Defendant of liability for Victim’s death. We 1
disagree with both contentions. 2
{9} In reviewing the sufficiency of the evidence, we first “view the evidence in 3
the light most favorable to the guilty verdict, indulging all reasonable inferences and 4
resolving all conflicts in the evidence in favor of the verdict.” State v. Cunningham, 5
2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. We then consider “whether 6
the evidence, so viewed, supports the verdict beyond a reasonable doubt.” State v. 7
Garcia, 2016-NMSC-034, ¶ 24, 384 P.3d 1076. “We do not reweigh the evidence or 8
substitute our judgment for that of the fact[-]finder as long as there is sufficient 9
evidence to support the verdict.” State v. Gipson, 2009-NMCA-053, ¶ 4, 146 N.M. 10
202, 207 P.3d 1179. 11
{10} “We will affirm a conviction if supported by a fair inference from the evidence 12
regardless of whether a contrary inference might support a contrary result.” State v. 13
Barrera, 2002-NMCA-098, ¶ 10, 132 N.M. 707, 54 P.3d 548. A fair inference “is a 14
conclusion arrived at by a process of reasoning which is a rational and logical 15
deduction from facts admitted or established by the evidence.” State v. Slade, 2014- 16
NMCA-088, ¶ 14, 331 P.3d 930 (alterations, internal quotation marks, and citation 17
omitted). Inferences and evidence contrary to the verdict “[do] not provide a basis 18
for reversal because the jury is free to reject [the d]efendant’s version of the facts.” 19
State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. “[I]n the 207
determination of proximate cause[,] common sense is not to be eliminated.” State v. 1
Landgraf, 1996-NMCA-024, ¶ 31, 121 N.M. 445, 913 P.2d 252 (internal quotation 2
marks and citation omitted). 3
{11} The State presented sufficient evidence for the jury to conclude, under the 4
given instructions, that Defendant’s act of “operat[ing] a motor vehicle while under 5
the influence of intoxicating liquor” caused Victim’s death “in a natural and 6
continuous chain of events, uninterrupted by an outside event[.]” See UJI 14-240B 7
NMRA; UJI 14-251; see generally State v. Holt, 2016-NMSC-011, ¶ 20, 368 P.3d 8
409 (“The jury instructions become the law of the case against which the sufficiency 9
of the evidence is to be measured.” (alterations, internal quotation marks, and 10
citation omitted)). We reject the first of Defendant’s two arguments to the contrary 11
because the State presented sufficient evidence that Defendant was responsible for 12
the collision. One of the State’s eyewitnesses, Melissa Jacobsen, testified that she 13
was driving approximately one car length behind Defendant, who had been swerving 14
and driving at inconsistent speeds, when she noticed Victim begin to cross the street. 15
Recognizing that it was dangerous for Victim to cross when Defendant had been 16
driving so erratically, Ms. Jacobsen screamed out her car window and honked the 17
horn repeatedly. And, in the time that Ms. Jacobsen was screaming and honking her 18
car horn, Defendant did not change his speed, apply his brakes, or take any other 19
action to avoid colliding with Victim. Based on Ms. Jacobsen’s testimony regarding 208
everything she did to warn of the danger she perceived, it was reasonable for the jury 1
to conclude that Defendant had enough time to avoid the collision and indeed could 2
have avoided the collision had he not been drunk. Cf. State v. Munoz, 1998-NMSC- 3
041, ¶¶ 19-22, 126 N.M. 371, 970 P.2d 143 (explaining that “a jury’s guilty verdict 4
in a vehicular homicide case is its determination that the defendant had the power to 5
prevent the victim’s death by driving lawfully”). 6
{12} We reject Defendant’s second argument because the State also presented 7
sufficient evidence that Victim’s injuries from the collision caused his death. This 8
evidence consisted of the testimony of two experts: Dr. Jasmeet Singh Paul, the 9
attending surgeon when Victim arrived at the University of New Mexico Hospital 10
(UNMH), and Dr. Hannah Kastenbaum, the medical investigator who declared the 11
cause of Victim’s death. Dr. Paul testified that, upon Victim’s arrival at UNMH, 12
hospital staff determined that Victim was likely to die of his injuries within two to 13
three weeks. Acknowledging that Victim died after he was taken off life support at 14
the direction of Victim’s family, Dr. Paul explained that, from the collision, Victim 15
suffered “multisystem trauma” including thirteen rib fractures, which in turn caused 16
pneumonia, and a severe brain injury and that the combination of Victim’s injuries 17
and resulting complications was what “really” “led to his death.” In addition, Dr. 18
Kastenbaum testified that “blunt trauma” from “being struck by a vehicle” was the 19
cause of Victim’s death. Dr. Kastenbaum elaborated that there was no reason to 209
conclude that Victim “would have died when he did” “but for [those] injuries[.]” 1
And Dr. Kastenbaum testified that, while Victim’s preexisting health problems 2
contributed to his death and that it was impossible to determine the extent to which 3
each underlying factor caused Victim to die when he did, his injuries from the 4
collision were a “tipping point” in bringing about his death. 5
{13} Contrary to Defendant’s arguments on appeal, the evidence at trial gave the 6
jury a reasonable basis for concluding that no outside event—whether it be Victim’s 7
own negligence or his family’s decision to remove him from life support— 8
interrupted the natural and continuous chain of events that foreseeably resulted from 9
Defendant’s act of drunk driving. See Montoya, 2003-NMSC-004, ¶ 19 (explaining 10
that a defendant’s act “may be a legal cause of death” even when there are “other 11
significant causes” of the death); Rojo, 1999-NMSC-001, ¶ 19 (explaining that the 12
jury is free to reject a defendant’s portrayal of the facts). Put simply, the evidence 13
was sufficient for the jury to find that (1) Defendant would have been able to avoid 14
the collision if he had not been drunk; (2) Victim would not have died when he did 15
but for the injuries he suffered as a result of Defendant’s drunk driving; and (3) the 16
manner of Victim’s death was a foreseeable consequence of Defendant’s actions. 17
Accordingly, we hold that the evidence suffices to sustain Defendant’s conviction. 1810
III. Defendant’s Sentence Violates His Right Against Double Jeopardy 1
{14} We now turn to Defendant’s double jeopardy challenge to his sentence. We 2
begin by describing the relevant procedural background, then explain our analysis. 3
A. Procedural Background 4
{15} At sentencing on April 3, 2018, Defendant admitted that this was his fourth 5
conviction for DWI, and the State offered proof, for the purposes of the habitual- 6
offender statute, NMSA 1978, § 31-18-17(A), (D)(1) (2003), that Defendant had a 7
2011 felony conviction for selling or giving alcoholic beverages to minors. See 8
generally NMSA 1978, § 60-7B-1(A), (F) (2004, amended 2013). The district court 9
orally sentenced Defendant, at the highest end of its jurisdiction, to a total of 10
seventeen-and-a-half years: eighteen months for aggravated DWI, see § 66-8-102(G) 11
(mandating an eighteen-month sentence upon a fourth conviction for DWI), to be 12
served consecutively to a sixteen-year sentence for vehicular homicide, which 13
included a one-year habitual offender enhancement. See NMSA 1978, § 31-18- 14
15(A)(4) (2016) (setting the basic sentence for a second-degree felony “resulting in 15
the death of a human being” at fifteen years); § 31-18-17(A), (D)(1) (increasing the 16
basic sentence for a noncapital felony by one year when the person convicted is 17
deemed a habitual offender based on one prior conviction or conditional discharge 18
for a felony that was part of a separate transaction or occurrence and less than ten 19
years has passed since the person completed the sentence for the prior felony). The 2011
court suspended seven-and-a-half years of the sentence for an actual term of ten 1
years. Nothing in the district court’s oral pronouncement of sentence indicated that 2
the sentence was tentative. Thereafter, the court entered an order remanding 3
Defendant “to the custody of the Metropolitan Detention Center” (MDC) because he 4
had been “[s]entenced to the custody of the [New Mexico Corrections Department 5
(NMCD)]” “to serve a term of [ten years].” The district court memorialized its 6
sentence in a letter to counsel sent two days later. 7
{16} Before entry of judgment and sentence—which the district court delayed 8
because the parties’ proposed judgment and sentence did not reflect the sentence of 9
actual incarceration corresponding to each of Defendant’s convictions—Defendant 10
moved to reconsider his sentence and vacate the aggravated DWI conviction. 11
Defendant argued that his conviction for both crimes subjected him to double 12
jeopardy. The district court agreed and, at a hearing on April 11, vacated the 13
aggravated DWI conviction and resentenced Defendant on the vehicular homicide 14
conviction, as a habitual offender, to sixteen years with six years suspended for an 15
actual term of ten years. The court also, for the first time, designated Defendant’s 16
crime a serious violent offense at the April 11 sentencing. See generally NMSA 17
1978, § 31-18-15(F) (2016, amended 2019) (directing the sentencing court to 18
determine whether any felony for which it has imposed a sentence of imprisonment 1912
is a serious violent offense that, under NMSA 1978, Section 33-2-34 (2015), is 1
eligible for fewer merit-based sentence reductions than are nonviolent offenses). 2
{17} The district court orally resentenced Defendant a second time on April 19, 3
2018. In a later order clarifying its judgment and sentence, the district court 4
explained that it held the April 19 hearing because the parties had not submitted a 5
proposed judgment and sentence following the April 11 sentencing. At the April 19 6
hearing, the district court determined that it had lacked the discretion to designate 7
Defendant’s conviction for second-degree vehicular homicide a serious violent 8
offense due to what it perceived as a legislative oversight. See §§ 31-18-15(F), 33- 9
2-34(L)(4)(o)(14) (granting trial courts discretion to determine that a person 10
convicted of third-degree—but not second-degree—homicide by vehicle has 11
committed a serious violent offense). Attempting to compensate for this perceived 12
error, the court resentenced Defendant to fifteen years, which included a one-year 13
habitual offender enhancement. The district court did not suspend any part of the 14
sentence and did not designate the crime a serious violent offense. The net result was 15
to change the actual term of imprisonment from ten to fifteen years. 16
{18} Defendant argues that his current sentence violates principles of double 17
jeopardy because, after his original sentencing, he began serving the original 18
sentence with a reasonable expectation in its finality. Specifically, Defendant 19
contends that the second resentencing subjected him to double jeopardy because the 2013
sentence imposed at that time and currently in place is fifteen years, whereas his 1
prison term had been ten years under the previous two sentences. Reviewing this 2
claim of error de novo, State v. Soutar, 2012 NMCA-024, ¶ 11, 272 P.3d 154; State 3
v. Yazzie, 2018-NMCA-001, ¶ 9, 410 P.3d 220, we agree. 4
B. Resentencing Defendant Violated a Double Jeopardy Principle Because 5
He Had a Reasonable Expectation That His Original Sentence Would Not 6
Be Increased 7
{19} The double jeopardy clauses of the United States and New Mexico 8
Constitutions protect a criminal defendant’s “reasonable expectation of finality” in 9
a sentence. State v. Porras, 1999-NMCA-016, ¶¶ 1, 13-14, 126 N.M. 628, 973 P.2d 10
880. That protection is the basis of a “well-established principle of New Mexico law 11
that a trial court generally cannot increase a valid sentence once a defendant begins 12
serving that sentence.” Id. ¶ 7 (citing, among other cases, State v. Cheadle, 1987- 13
NMSC-100, ¶¶ 10-16, 106 N.M. 391, 744 P.2d 166); see also 6 Wayne R. LaFave 14
et al., Criminal Procedure § 26.7(c) (4th ed. 2020) (recognizing that, under the 15
double jeopardy clause of the United States Constitution, “a defendant’s legitimate 16
expectation of finality in an imposed sentence” may “stand as a bar to resentencing” 17
(internal quotation marks and citation omitted)). This principle protects against an 18
increase in the actual term of incarceration in which a defendant has a reasonable 19
expectation of finality. See Porras, 1999-NMCA-016, ¶¶ 3-5, 12-13 (holding that 20
the defendant had a “reasonable expectation in the finality of the length and 2114
structure” of his sentence that was violated when the district court modified his 1
sentence to suspend less imprisonment than it had originally suspended). 2
{20} Straightforward application of these principles leads to the conclusion that 3
upon remand to custody for the purpose of serving the originally-imposed sentence, 4
Defendant began serving his sentence, with a reasonable expectation in its finality, 5
before his resentencings on April 11 and April 19. See id. ¶ 14 (holding that the 6
defendant had a reasonable expectation of finality in an oral sentence from the 7
moment “the trial court remanded him to the custody of the sheriff” and he began 8
serving the sentence). Seeking to avoid this conclusion, the State makes three 9
arguments. We address each in turn. 10
C. The State’s Arguments Are Unavailing 11
{21} First, the State argues that Defendant could not have had a reasonable 12
expectation of finality in his sentence because it had not yet been incorporated into 13
a final judgment. This argument is contrary to New Mexico precedent. Under New 14
Mexico law, a defendant can form a reasonable expectation of finality in an 15
otherwise interlocutory sentence such as an oral sentence. Id. An oral 16
pronouncement of sentence does not always give rise to a reasonable expectation of 17
finality. See, e.g., Soutar, 2012-NMCA-024, ¶¶ 13-15. Our courts have instead 18
drawn a bright line at the commencement of service of sentence; a defendant can 19
reasonably rely on the finality of a sentence—oral or written—once the defendant 2015
has begun serving the sentence. See Porras, 1999-NMCA-016, ¶ 14; Cheadle, 1987- 1
NMSC-100, ¶ 16 (“[I]t is . . . improper for a trial court in New Mexico to set aside a 2
valid sentence after a defendant has been committed thereunder[] and impose a new 3
or different sentence increasing the punishment.” (internal quotation marks and 4
citation omitted)).2
5
{22} We also reject the State’s second argument—that Defendant did not have a 6
reasonable expectation of finality in his sentence because he filed a motion labelled 7
2 We recognize that some New Mexico precedent invokes the
“well[-]established” rule that “the trial court can change [an oral sentence] at any
time before the entry of written judgment.” State v. Diaz, 1983-NMSC-090, ¶ 4, 100
N.M. 524, 673 P.2d 501. But cf. 6 LaFave, supra, § 26.4(d) (“Unfortunately, it is not
unusual for a trial judge to announce one sentence and enter another. Jurisdictions
have taken various approaches to resolving this inconsistency, with the majority
noting that the oral pronouncement controls, based in part on the defendant’s right
to be present at sentencing.”); State v. Stejskal, 2018-NMCA-045, ¶ 14, 421 P.3d
856 (discussing Rule 5-113(B) NMRA, which permits courts to correct clerical
mistakes in written sentencing orders, and recognizing a defendant’s “a
constitutional right to be present when [the defendant] is sentenced”). But those
precedents recognize that the rule applies only up to the point at which a defendant
begins serving that sentence. See Diaz, 1983-NMSC-090, ¶¶ 5-6 (holding that the
district court had the authority to resentence the defendant because the defendant
had not yet served any portion of the original, oral sentence); Soutar, 2012-NMCA-
024, ¶¶ 13-15 (holding that the defendant did not have a reasonable expectation of
finality in an oral sentence where the district court’s revocation of the defendant’s
plea agreement was justified by the defendant’s failure to abide by its terms and the
defendant’s appellate argument that he had begun serving his sentence was
baseless); State v. Rushing, 1985-NMCA-091, ¶¶ 5, 10, 103 N.M. 333, 706 P.2d 875
(holding that double jeopardy principles did not prevent resentencing in part because
the defendant had made misrepresentations at the original sentencing and in part
because the defendant had not commenced serving the original, oral sentence).16
a motion for reconsideration of his sentence after the April 3 sentencing3—because 1
it relies on the dubious premise that when defendants ask trial courts to decrease 2
their sentences, they must reasonably expect that the courts might increase their 3
sentences. This defies common sense and, as we will explain, is inconsistent with 4
New Mexico law. 5
{23} The only avenue available for a discretionary reconsideration of sentence 6
following the April 3 sentencing was Rule 5-801,4 regarding motions for reduction 7
3 We note that, although Defendant’s motion was styled a motion to reconsider
sentence, the contents of the motion pertain only to the question of whether the
double jeopardy bar against multiple convictions and punishments for the same
offense precluded convicting Defendant of both vehicular homicide and aggravated
DWI and sentencing him for both offenses. Based on its substance, we believe the
motion is best understood exclusively as a request to vacate Defendant’s conviction
for aggravated DWI and his sentence for that crime. See State v. Roybal, 2006-
NMCA-043, ¶ 17, 139 N.M. 341, 132 P.3d 598 (“[I]t is the substance of the motion,
and not its form or label, that controls.”).
Insofar as the State’s argument is that the filing of the motion signals that the
sentence was interlocutory, see State v. Romero, 2014-NMCA-063, ¶¶ 5, 8, 327 P.3d
525 (explaining that a defendant’s timely postjudgment motion for reconsideration
of sentence under Rule 5-801 NMRA suspends the finality of the judgment for the
purposes of appeal), we reiterate that the reasonableness of a defendant’s expectation
of finality in a sentence is not dependent on the entry of a written final judgment.
Porras, 1999-NMCA-016, ¶ 14. As we will explain, it is perfectly reasonable for a
defendant who has begun serving a prison sentence and who moves under Rule
5-801 for a purely discretionary reduction of that sentence to expect the district court
to take one of only two actions on the motion: (1) grant the motion and reduce the
sentence, or (2) deny the motion, leaving the original sentence in place.
4 We are aware of one circumstance under which a district court must modify
its sentence regardless of the defendant’s expectations: where the habitual offender
statutes require an increase to the sentence. See NMSA 1978, §§ 31-18-19 (1977),
31-18-20 (1983); State v. Diaz, 2007-NMCA-026, ¶ 11, 141 N.M. 223, 153 P.3d 57.
But that circumstance is not present here because the district court imposed the17
of sentence, and its availability did not prevent Defendant from forming a reasonable 1
expectation of finality because the Rule’s plain language and history demonstrate 2
that it only permits sentencing courts to reduce a defendant’s sentence. In construing 3
a rule of criminal procedure, our appellate courts employ “the same rules of 4
construction [as those] applicable to the interpretation of statutes.” State v. Aslin, 5
2020-NMSC-004, ¶ 9, 457 P.3d 249 (internal quotation marks and citation omitted). 6
We examine “the plain language of the rule as well as the context in which it was 7
promulgated, including the history of the rule and [its] object and purpose.” Id. 8
(internal quotation marks and citation omitted). The plain language of Rule 5-801 is 9
clear as to the scope of authority it confers. The applicable part of the Rule, 10
Subsection A, discusses only “[a] motion to reduce a sentence” and, fittingly, is 11
entitled “[r]eduction of sentence.” We see nothing in the Rule stating or implying 12
that a district court has the authority to increase a sentence upon the filing of a motion 13
to reduce the sentence. 14
{24} The history of Rule 5-801 confirms that its plain language means what it says. 15
This Court discussed that history in State v. Torres, 2012-NMCA-026, 272 P.3d 689, 16
which involved a prior version of the rule, Rule 5-801(A) (1989). Torres, 2012- 17
habitual-offender enhancement at Defendant’s original sentencing. And, in any
event, it is clear under our precedent that a defendant may have a reasonable
expectation of finality in an underlying sentence regardless of the possibility of later
habitual-offender enhancement. Porras, 1999-NMCA-016, ¶ 13.18
NMCA-026, ¶ 13. In Torres, this Court recognized that, with the 1989 amendment 1
to Rule 5-801, New Mexico abolished a common-law principle that gave sentencing 2
courts inherent authority to correct illegal sentences. Torres, 2012-NMCA-026, 3
¶¶ 13-15, 17, 37-38.5 This Court explained that the evolution of Rule 5-801 has 4
“closely tracked” that of Federal Rule of Criminal Procedure 35, which, in the 5
interest of “mak[ing] prisoner release dates more certain and sentences imposed in 6
the public forum more final,” Congress amended it in 1984 specifically “to remove 7
any historical common law jurisdiction the federal district courts once enjoyed with 8
respect to correction of illegal sentences.” Torres, 2012-NMCA-026, ¶¶ 17-27. New 9
Mexico has “[f]ollow[ed] the federal lead,” id. ¶ 20, by “continually narrow[ing] the 10
scope of Rule 5-801.” Torres, 2012-NMCA-026, ¶ 27. 11
{25} The narrowing has continued since Torres. Our Supreme Court amended the 12
Rule again in 2014, upon the recommendations of a committee it had appointed to 13
review various rules of criminal procedure. See Supreme Court Order No. 14-8300- 14
014 (Nov. 1, 2014). See generally Max Minzner, Habeas Corpus in New Mexico, 46 15
N.M. L. Rev. 43 (2016). The amendment to Rule 5-801 further narrowed the scope 16
of the rule to “motions where the defendant seeks a discretionary reduction in 17
5 This case does not present a question about the district court’s authority to
correct an illegal sentence. The State does not argue, and we are aware of no basis
for concluding, that the district court increased Defendant’s original sentence to
correct any illegality.19
sentence from the district court judge.” Minzner, supra, at 65. Prior to the 2014 1
amendment, Rule 5-801(A) (2009) permitted sentencing courts to “correct a 2
sentence imposed in an illegal manner” within ninety days of the imposition of 3
sentence. The current version, as amended, only permits motions “to reduce a 4
sentence.” Rule 5-801(A). The change reflects a deliberate effort to remove any 5
ambiguity regarding whether Rule 5-801 permits motions to correct illegal 6
sentences, Minzner, supra, at 64-65, which, since 1989, it has not. Torres, 2012- 7
NMCA-026, ¶¶ 13, 17. The Rule’s plain language and history thus demonstrate that 8
Rule 5-801 does not authorize a sentencing court to increase a sentence on a 9
defendant’s motion to reconsider sentence. Therefore, Defendant’s motion 10
requesting his aggravated DWI conviction be vacated on double jeopardy grounds 11
had no bearing on whether he had a reasonable expectation that his actual prison 12
term would be no longer than the ten years imposed at his original sentencing. 13
{26} The State’s third argument is that Defendant had not begun serving his 14
sentence because he was incarcerated at the local jail rather than the prison facility 15
where he could expect to serve the greater part of his sentence. We are not persuaded. 16
In our view, Defendant’s expectation of finality in his sentence was no less 17
reasonable than that of the defendant in Porras—where this Court held that the 18
defendant began serving a ninety-day jail sentence when he was remanded to the 19
local jail, 1999-NMCA-016, ¶ 14—simply because Defendant, though incarcerated 2020
pursuant to the original sentence the district court imposed, had not yet been 1
transported from the jail to an NMCD facility. 2
{27} To accept the State’s position, we would have to draw two distinctions that 3
we perceive as untethered from the purpose of the double jeopardy principle at issue 4
here. The first distinction is between two defendants who are remanded to the 5
custody of the local jail but who will serve their sentences in different types of 6
facilities. See generally NMSA 1978, § 31-20-2(A), (D), (E) (1993) (identifying the 7
circumstances under which a sentence must be served in a facility under NMCD 8
jurisdiction). Under the rule the State proposes, the defendant who is sentenced to 9
serve time in the local jail would have a reasonable expectation of finality upon 10
remand to the local jail, but the defendant who is sentenced to a prison term would 11
not. The second distinction is between two defendants who are remanded to the 12
custody of the local jail and have received sentences that will be served in NMCD 13
facilities but who arrive at those facilities at different times. Under the State’s 14
proposed rule, the defendant who is transported to an NMCD facility first would 15
obtain a reasonable expectation of finality upon transport, but the defendant who 16
remains in the local jail awaiting transport to an NMCD facility would have no such 17
expectation. We are aware of no basis in New Mexico law for such distinctions. And 18
we think those distinctions are arbitrary; they are driven not by the reasons for the 19
double jeopardy rule but instead by happenstance. Where a particular defendant 2021
happens to be incarcerated when a trial court decides to increase the sentence it has 1
imposed bears no meaningful relationship to whether it is reasonable for that 2
defendant to expect that the sentence is final and will not be increased. 3
{28} We conclude that defendants who have heard the district court impose 4
sentence in open court, in no uncertain terms, and who are then remanded into 5
custody for the purpose of beginning to serve that sentence have a reasonable 6
expectation that their sentences will not be increased, regardless of whether they 7
subsequently request a discretionary reduction to their sentences and regardless of 8
whether they are incarcerated in an institution operating under the authority of 9
NMCD or under the authority of a county or local government. We therefore hold 10
that Defendant began serving the sentence originally imposed by the district court 11
when he was remanded to the custody of the MDC and that, from then on, he had a 12
reasonable expectation that his sentence would not be increased. Because the 13
subsequent imposition of an actual term of imprisonment greater than ten years 14
violated Defendant’s right to be free from double jeopardy, Defendant’s sentence 15
cannot stand. 16
CONCLUSION 17
{29} We affirm Defendant’s conviction but reverse the judgment and sentence and 18
remand for entry of a judgment and sentence consistent with this opinion. 19
{30} IT IS SO ORDERED. 2022 ______________________________ 1 ZACHARY A. IVES, Judge 2 WE CONCUR: 3 _____________________________ 4 JENNIFER L. ATTREP, Judge 5 _____________________________ 6 MEGAN P. DUFFY, Judge 7
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Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication
with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly
in Odyssey.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: Court of Appeals of New Mexico
Filed 10/14/2021 11:34 AM
Filing Date: October 14, 2021 A. >
al
No. A-1-CA-37486 Mark Reynolds
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
LEE WALDO GARCIA,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Briana H. Zamora, District Judge
Hector H. Balderas, Attorney General
Santa Fe, NM
M. Victoria Wilson, Assistant Attorney General
Albuquerque, NM
for Appellee
Bennett J. Baur, Chief Public Defender
John Bennett, Assistant Appellate Defender
Santa Fe, NM
for Appellant
OPINION 1
IVES, Judge. 2
{1} Defendant Lee Waldo Garcia appeals his conviction and sentence for 3
homicide by vehicle while under the influence of intoxicating liquor, contrary to 4
NMSA 1978, Section 66-8-101(A), (C) (2016). Defendant argues that his conviction 5
was the result of fundamental error because the jury instructions did not accurately 6
present the law of proximate causation and that it is not supported by sufficient 7
evidence of causation. Should his conviction stand, Defendant argues that his 8
sentence must be reversed because it violates his right against double jeopardy. We 9
disagree with Defendant regarding the validity of his conviction, but, because the 10
district court increased Defendant’s sentence after he had formed a reasonable 11
expectation in its finality, we reverse his sentence. 12
BACKGROUND 13
{2} While drunk, Defendant crashed his truck into Victim as Victim was 14
attempting to cross the street in his motorized wheelchair. After Victim had been in 15
the hospital for approximately two weeks, Victim’s family decided to remove him 16
from life support, and he died. 17
{3} The State prosecuted Defendant for driving while under the influence (DWI), 18
aggravated DWI, and vehicular homicide. The jury found Defendant guilty of two 19
crimes: (1) homicide by vehicle while under the influence of intoxicating liquor, 20
2
contrary to Section 66-8-101(A), (C), a second-degree felony; and (2) aggravated 1
DWI, contrary to NMSA 1978, Section 66-8-102(D)(1) (2016). The district court 2
initially sentenced Defendant to an actual prison term of ten years but twice 3
resentenced Defendant, and the ultimate sentence includes a fifteen-year term of 4
incarceration. Defendant appeals. 5
DISCUSSION 6
I. The Jury Instruction for Vehicular Homicide Did Not Result in 7
Fundamental Error 8
{4} Defendant argues that his conviction must be reversed because the phrase 9
“outside event,” as used in the uniform jury instruction defining proximate cause, 10
UJI 14-251 NMRA, and in the given instructions, was not defined for the jury. 11
Because Defendant did not raise the issue in the district court, we review for 12
fundamental error. State v. Cabezuela, 2015-NMSC-016, ¶ 37, 350 P.3d 1145. Our 13
analysis “begins at the same place as [the] analysis for reversible error[:]” we ask 14
whether “a reasonable juror would have been confused or misdirected by the jury 15
instruction.” State v. Barber, 2004-NMSC-019, ¶ 19, 135 N.M. 621, 92 P.3d 633; 16
see State v. Grubb, 2020-NMCA-003, ¶ 7, 455 P.3d 877 (“In a fundamental error 17
analysis, we begin by considering whether reversible error exists[.]”). Jury 18
instructions cause confusion or misdirection when, “through omission or 19
misstatement,” they do not provide “an accurate rendition” of the essential elements 20
of a crime. State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134. 21
3
But if an instruction “accurately presents the law[,]” it “is proper, and nothing more 1
is required[.]” State v. Laney, 2003-NMCA-144, ¶ 38, 134 N.M. 648, 81 P.3d 591. 2
To the extent Defendant’s argument requires us to analyze whether UJI 14-251 3
accurately states the law, our review is de novo. Laney, 2003-NMCA-144, ¶ 38. 4
{5} Defendant contends that, by using the phrase “outside event” to refer to 5
something that could interrupt the chain of events between a defendant’s act and a 6
victim’s death, the UJI departs from conventional notions of proximate causation in 7
criminal law. We disagree. 8
{6} When causation is at issue in a homicide case, the jury must determine 9
whether an act of the defendant was (1) a factual cause of the victim’s death and (2) 10
the proximate cause of the victim’s death. See UJI 14-251, use note 1; State v. 11
Montoya, 2003-NMSC-004, ¶ 22 n.1, 133 N.M. 84, 61 P.3d 793. Proximate 12
causation is a question of whether the death was a “natural and probable consequence 13
of[] the accused’s conduct.” State v. Simpson, 1993-NMSC-073, ¶ 14, 116 N.M. 768, 14
867 P.2d 1150 (internal quotation marks and citation omitted). To be a proximate 15
cause, a defendant’s conduct need not “be the sole cause of the [death,]” id., and a 16
coinciding event that contributed to a victim’s death “to an insignificant extent” 17
cannot relieve a defendant of liability. Montoya, 2003-NMSC-004, ¶ 19 (internal 18
quotation marks and citation omitted). Even an event that significantly contributes 19
to a victim’s death does not relieve a defendant of liability, id., unless “it is a 20
4
superseding cause that negates the defendant’s conduct.” Simpson, 1993-NMSC- 1
073, ¶ 14. 2
{7} We presume that our Supreme Court’s uniform instruction regarding 3
causation in homicide cases, UJI 14-251, is correct, see State v. Ortega, 2014- 4
NMSC-017, ¶ 32, 327 P.3d 1076, and our Supreme Court has recognized that UJI 5
14-251 encompasses both factual and proximate causation. Montoya, 2003-NMSC- 6
004, ¶ 22 n.1. Our own review of the text of UJI 14-251 confirms that the instruction 7
adequately conveys the necessary causation concepts. The instruction requires the 8
jury to determine whether an “act of the defendant was a significant cause of the 9
death . . . without which the death would not have occurred” and whether “[t]he 10
death was a foreseeable result of” that act—i.e., whether the death resulted from that 11
act “in a natural and continuous chain of events, uninterrupted by an outside event[.]” 12
Id. Defendant asserts that the phrase “outside event” is ambiguous and should have 13
been defined for the jury. We conclude that no such definition was necessary because 14
“outside event” has a common meaning, see State v. Munoz, 2006-NMSC-005, ¶ 24, 15
139 N.M. 106, 129 P.3d 142, and a reasonable jury would understand the meaning 16
of the phrase in the context of the given instruction. We therefore reject Defendant’s 17
argument that, without a definition of “outside event,” the given instructions may 18
5
have confused the jury and were thus erroneous.1 See Laney, 2003-NMCA-144, 1
¶ 38. Because it would not have been reversible error for the district court to decline 2
to instruct the jury on the meaning of “outside event” if Defendant had requested 3
such an instruction at trial, we hold that the lack of an instruction defining that phrase 4
was not fundamental error. See State v. Adamo, 2018-NMCA-013, ¶ 27, 409 P.3d 5
1002 (holding that, where “there was no reversible error” “in the instructions[,]” 6
“there was no fundamental error”). 7
II. The Evidence Suffices to Support Defendant’s Conviction 8
{8} Defendant argues that the evidence did not suffice to show that Victim’s death 9
resulted from Defendant’s act, uninterrupted by an outside event, and that it only 10
sufficed to show that he caused great bodily harm, not homicide. Defendant contends 11
that (1) the evidence demonstrates that Victim’s own negligence in attempting to 12
cross the street caused the collision, and (2) the subsequent decision to remove 13
1 Defendant urges us to apply the rule of lenity, see generally State v. Ogden,
1994-NMSC-029, ¶ 25, 118 N.M. 234, 880 P.2d 845 (“The rule of lenity counsels
that criminal statutes should be interpreted in the defendant’s favor when
insurmountable ambiguity persists regarding the intended scope of a criminal
statute.”), and cites State v. Crain, 1997-NMCA-101, ¶ 20, 124 N.M. 84, 946 P.2d
1095, for the proposition that the rule of lenity applies to uniform jury instructions.
Crain does not support that proposition. Even assuming the rule of lenity is
applicable to the interpretation of jury instructions as a general matter, that rule only
comes into play when the language at issue is ambiguous, and, as we have explained,
the language of UJI 14-251 is not ambiguous.
6
Victim from life support relieves Defendant of liability for Victim’s death. We 1
disagree with both contentions. 2
{9} In reviewing the sufficiency of the evidence, we first “view the evidence in 3
the light most favorable to the guilty verdict, indulging all reasonable inferences and 4
resolving all conflicts in the evidence in favor of the verdict.” State v. Cunningham, 5
2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. We then consider “whether 6
the evidence, so viewed, supports the verdict beyond a reasonable doubt.” State v. 7
Garcia, 2016-NMSC-034, ¶ 24, 384 P.3d 1076. “We do not reweigh the evidence or 8
substitute our judgment for that of the fact[-]finder as long as there is sufficient 9
evidence to support the verdict.” State v. Gipson, 2009-NMCA-053, ¶ 4, 146 N.M. 10
202, 207 P.3d 1179. 11
{10} “We will affirm a conviction if supported by a fair inference from the evidence 12
regardless of whether a contrary inference might support a contrary result.” State v. 13
Barrera, 2002-NMCA-098, ¶ 10, 132 N.M. 707, 54 P.3d 548. A fair inference “is a 14
conclusion arrived at by a process of reasoning which is a rational and logical 15
deduction from facts admitted or established by the evidence.” State v. Slade, 2014- 16
NMCA-088, ¶ 14, 331 P.3d 930 (alterations, internal quotation marks, and citation 17
omitted). Inferences and evidence contrary to the verdict “[do] not provide a basis 18
for reversal because the jury is free to reject [the d]efendant’s version of the facts.” 19
State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. “[I]n the 20
7
determination of proximate cause[,] common sense is not to be eliminated.” State v. 1
Landgraf, 1996-NMCA-024, ¶ 31, 121 N.M. 445, 913 P.2d 252 (internal quotation 2
marks and citation omitted). 3
{11} The State presented sufficient evidence for the jury to conclude, under the 4
given instructions, that Defendant’s act of “operat[ing] a motor vehicle while under 5
the influence of intoxicating liquor” caused Victim’s death “in a natural and 6
continuous chain of events, uninterrupted by an outside event[.]” See UJI 14-240B 7
NMRA; UJI 14-251; see generally State v. Holt, 2016-NMSC-011, ¶ 20, 368 P.3d 8
409 (“The jury instructions become the law of the case against which the sufficiency 9
of the evidence is to be measured.” (alterations, internal quotation marks, and 10
citation omitted)). We reject the first of Defendant’s two arguments to the contrary 11
because the State presented sufficient evidence that Defendant was responsible for 12
the collision. One of the State’s eyewitnesses, Melissa Jacobsen, testified that she 13
was driving approximately one car length behind Defendant, who had been swerving 14
and driving at inconsistent speeds, when she noticed Victim begin to cross the street. 15
Recognizing that it was dangerous for Victim to cross when Defendant had been 16
driving so erratically, Ms. Jacobsen screamed out her car window and honked the 17
horn repeatedly. And, in the time that Ms. Jacobsen was screaming and honking her 18
car horn, Defendant did not change his speed, apply his brakes, or take any other 19
action to avoid colliding with Victim. Based on Ms. Jacobsen’s testimony regarding 20
8
everything she did to warn of the danger she perceived, it was reasonable for the jury 1
to conclude that Defendant had enough time to avoid the collision and indeed could 2
have avoided the collision had he not been drunk. Cf. State v. Munoz, 1998-NMSC- 3
041, ¶¶ 19-22, 126 N.M. 371, 970 P.2d 143 (explaining that “a jury’s guilty verdict 4
in a vehicular homicide case is its determination that the defendant had the power to 5
prevent the victim’s death by driving lawfully”). 6
{12} We reject Defendant’s second argument because the State also presented 7
sufficient evidence that Victim’s injuries from the collision caused his death. This 8
evidence consisted of the testimony of two experts: Dr. Jasmeet Singh Paul, the 9
attending surgeon when Victim arrived at the University of New Mexico Hospital 10
(UNMH), and Dr. Hannah Kastenbaum, the medical investigator who declared the 11
cause of Victim’s death. Dr. Paul testified that, upon Victim’s arrival at UNMH, 12
hospital staff determined that Victim was likely to die of his injuries within two to 13
three weeks. Acknowledging that Victim died after he was taken off life support at 14
the direction of Victim’s family, Dr. Paul explained that, from the collision, Victim 15
suffered “multisystem trauma” including thirteen rib fractures, which in turn caused 16
pneumonia, and a severe brain injury and that the combination of Victim’s injuries 17
and resulting complications was what “really” “led to his death.” In addition, Dr. 18
Kastenbaum testified that “blunt trauma” from “being struck by a vehicle” was the 19
cause of Victim’s death. Dr. Kastenbaum elaborated that there was no reason to 20
9
conclude that Victim “would have died when he did” “but for [those] injuries[.]” 1
And Dr. Kastenbaum testified that, while Victim’s preexisting health problems 2
contributed to his death and that it was impossible to determine the extent to which 3
each underlying factor caused Victim to die when he did, his injuries from the 4
collision were a “tipping point” in bringing about his death. 5
{13} Contrary to Defendant’s arguments on appeal, the evidence at trial gave the 6
jury a reasonable basis for concluding that no outside event—whether it be Victim’s 7
own negligence or his family’s decision to remove him from life support— 8
interrupted the natural and continuous chain of events that foreseeably resulted from 9
Defendant’s act of drunk driving. See Montoya, 2003-NMSC-004, ¶ 19 (explaining 10
that a defendant’s act “may be a legal cause of death” even when there are “other 11
significant causes” of the death); Rojo, 1999-NMSC-001, ¶ 19 (explaining that the 12
jury is free to reject a defendant’s portrayal of the facts). Put simply, the evidence 13
was sufficient for the jury to find that (1) Defendant would have been able to avoid 14
the collision if he had not been drunk; (2) Victim would not have died when he did 15
but for the injuries he suffered as a result of Defendant’s drunk driving; and (3) the 16
manner of Victim’s death was a foreseeable consequence of Defendant’s actions. 17
Accordingly, we hold that the evidence suffices to sustain Defendant’s conviction. 18
10
III. Defendant’s Sentence Violates His Right Against Double Jeopardy 1
{14} We now turn to Defendant’s double jeopardy challenge to his sentence. We 2
begin by describing the relevant procedural background, then explain our analysis. 3
A. Procedural Background 4
{15} At sentencing on April 3, 2018, Defendant admitted that this was his fourth 5
conviction for DWI, and the State offered proof, for the purposes of the habitual- 6
offender statute, NMSA 1978, § 31-18-17(A), (D)(1) (2003), that Defendant had a 7
2011 felony conviction for selling or giving alcoholic beverages to minors. See 8
generally NMSA 1978, § 60-7B-1(A), (F) (2004, amended 2013). The district court 9
orally sentenced Defendant, at the highest end of its jurisdiction, to a total of 10
seventeen-and-a-half years: eighteen months for aggravated DWI, see § 66-8-102(G) 11
(mandating an eighteen-month sentence upon a fourth conviction for DWI), to be 12
served consecutively to a sixteen-year sentence for vehicular homicide, which 13
included a one-year habitual offender enhancement. See NMSA 1978, § 31-18- 14
15(A)(4) (2016) (setting the basic sentence for a second-degree felony “resulting in 15
the death of a human being” at fifteen years); § 31-18-17(A), (D)(1) (increasing the 16
basic sentence for a noncapital felony by one year when the person convicted is 17
deemed a habitual offender based on one prior conviction or conditional discharge 18
for a felony that was part of a separate transaction or occurrence and less than ten 19
years has passed since the person completed the sentence for the prior felony). The 20
11
court suspended seven-and-a-half years of the sentence for an actual term of ten 1
years. Nothing in the district court’s oral pronouncement of sentence indicated that 2
the sentence was tentative. Thereafter, the court entered an order remanding 3
Defendant “to the custody of the Metropolitan Detention Center” (MDC) because he 4
had been “[s]entenced to the custody of the [New Mexico Corrections Department 5
(NMCD)]” “to serve a term of [ten years].” The district court memorialized its 6
sentence in a letter to counsel sent two days later. 7
{16} Before entry of judgment and sentence—which the district court delayed 8
because the parties’ proposed judgment and sentence did not reflect the sentence of 9
actual incarceration corresponding to each of Defendant’s convictions—Defendant 10
moved to reconsider his sentence and vacate the aggravated DWI conviction. 11
Defendant argued that his conviction for both crimes subjected him to double 12
jeopardy. The district court agreed and, at a hearing on April 11, vacated the 13
aggravated DWI conviction and resentenced Defendant on the vehicular homicide 14
conviction, as a habitual offender, to sixteen years with six years suspended for an 15
actual term of ten years. The court also, for the first time, designated Defendant’s 16
crime a serious violent offense at the April 11 sentencing. See generally NMSA 17
1978, § 31-18-15(F) (2016, amended 2019) (directing the sentencing court to 18
determine whether any felony for which it has imposed a sentence of imprisonment 19
12
is a serious violent offense that, under NMSA 1978, Section 33-2-34 (2015), is 1
eligible for fewer merit-based sentence reductions than are nonviolent offenses). 2
{17} The district court orally resentenced Defendant a second time on April 19, 3
2018. In a later order clarifying its judgment and sentence, the district court 4
explained that it held the April 19 hearing because the parties had not submitted a 5
proposed judgment and sentence following the April 11 sentencing. At the April 19 6
hearing, the district court determined that it had lacked the discretion to designate 7
Defendant’s conviction for second-degree vehicular homicide a serious violent 8
offense due to what it perceived as a legislative oversight. See §§ 31-18-15(F), 33- 9
2-34(L)(4)(o)(14) (granting trial courts discretion to determine that a person 10
convicted of third-degree—but not second-degree—homicide by vehicle has 11
committed a serious violent offense). Attempting to compensate for this perceived 12
error, the court resentenced Defendant to fifteen years, which included a one-year 13
habitual offender enhancement. The district court did not suspend any part of the 14
sentence and did not designate the crime a serious violent offense. The net result was 15
to change the actual term of imprisonment from ten to fifteen years. 16
{18} Defendant argues that his current sentence violates principles of double 17
jeopardy because, after his original sentencing, he began serving the original 18
sentence with a reasonable expectation in its finality. Specifically, Defendant 19
contends that the second resentencing subjected him to double jeopardy because the 20
13
sentence imposed at that time and currently in place is fifteen years, whereas his 1
prison term had been ten years under the previous two sentences. Reviewing this 2
claim of error de novo, State v. Soutar, 2012 NMCA-024, ¶ 11, 272 P.3d 154; State 3
v. Yazzie, 2018-NMCA-001, ¶ 9, 410 P.3d 220, we agree. 4
B. Resentencing Defendant Violated a Double Jeopardy Principle Because 5
He Had a Reasonable Expectation That His Original Sentence Would Not 6
Be Increased 7
{19} The double jeopardy clauses of the United States and New Mexico 8
Constitutions protect a criminal defendant’s “reasonable expectation of finality” in 9
a sentence. State v. Porras, 1999-NMCA-016, ¶¶ 1, 13-14, 126 N.M. 628, 973 P.2d 10
880. That protection is the basis of a “well-established principle of New Mexico law 11
that a trial court generally cannot increase a valid sentence once a defendant begins 12
serving that sentence.” Id. ¶ 7 (citing, among other cases, State v. Cheadle, 1987- 13
NMSC-100, ¶¶ 10-16, 106 N.M. 391, 744 P.2d 166); see also 6 Wayne R. LaFave 14
et al., Criminal Procedure § 26.7(c) (4th ed. 2020) (recognizing that, under the 15
double jeopardy clause of the United States Constitution, “a defendant’s legitimate 16
expectation of finality in an imposed sentence” may “stand as a bar to resentencing” 17
(internal quotation marks and citation omitted)). This principle protects against an 18
increase in the actual term of incarceration in which a defendant has a reasonable 19
expectation of finality. See Porras, 1999-NMCA-016, ¶¶ 3-5, 12-13 (holding that 20
the defendant had a “reasonable expectation in the finality of the length and 21
14
structure” of his sentence that was violated when the district court modified his 1
sentence to suspend less imprisonment than it had originally suspended). 2
{20} Straightforward application of these principles leads to the conclusion that 3
upon remand to custody for the purpose of serving the originally-imposed sentence, 4
Defendant began serving his sentence, with a reasonable expectation in its finality, 5
before his resentencings on April 11 and April 19. See id. ¶ 14 (holding that the 6
defendant had a reasonable expectation of finality in an oral sentence from the 7
moment “the trial court remanded him to the custody of the sheriff” and he began 8
serving the sentence). Seeking to avoid this conclusion, the State makes three 9
arguments. We address each in turn. 10
C. The State’s Arguments Are Unavailing 11
{21} First, the State argues that Defendant could not have had a reasonable 12
expectation of finality in his sentence because it had not yet been incorporated into 13
a final judgment. This argument is contrary to New Mexico precedent. Under New 14
Mexico law, a defendant can form a reasonable expectation of finality in an 15
otherwise interlocutory sentence such as an oral sentence. Id. An oral 16
pronouncement of sentence does not always give rise to a reasonable expectation of 17
finality. See, e.g., Soutar, 2012-NMCA-024, ¶¶ 13-15. Our courts have instead 18
drawn a bright line at the commencement of service of sentence; a defendant can 19
reasonably rely on the finality of a sentence—oral or written—once the defendant 20
15
has begun serving the sentence. See Porras, 1999-NMCA-016, ¶ 14; Cheadle, 1987- 1
NMSC-100, ¶ 16 (“[I]t is . . . improper for a trial court in New Mexico to set aside a 2
valid sentence after a defendant has been committed thereunder[] and impose a new 3
or different sentence increasing the punishment.” (internal quotation marks and 4
citation omitted)).2
5
{22} We also reject the State’s second argument—that Defendant did not have a 6
reasonable expectation of finality in his sentence because he filed a motion labelled 7
2 We recognize that some New Mexico precedent invokes the
“well[-]established” rule that “the trial court can change [an oral sentence] at any
time before the entry of written judgment.” State v. Diaz, 1983-NMSC-090, ¶ 4, 100
N.M. 524, 673 P.2d 501. But cf. 6 LaFave, supra, § 26.4(d) (“Unfortunately, it is not
unusual for a trial judge to announce one sentence and enter another. Jurisdictions
have taken various approaches to resolving this inconsistency, with the majority
noting that the oral pronouncement controls, based in part on the defendant’s right
to be present at sentencing.”); State v. Stejskal, 2018-NMCA-045, ¶ 14, 421 P.3d
856 (discussing Rule 5-113(B) NMRA, which permits courts to correct clerical
mistakes in written sentencing orders, and recognizing a defendant’s “a
constitutional right to be present when [the defendant] is sentenced”). But those
precedents recognize that the rule applies only up to the point at which a defendant
begins serving that sentence. See Diaz, 1983-NMSC-090, ¶¶ 5-6 (holding that the
district court had the authority to resentence the defendant because the defendant
had not yet served any portion of the original, oral sentence); Soutar, 2012-NMCA-
024, ¶¶ 13-15 (holding that the defendant did not have a reasonable expectation of
finality in an oral sentence where the district court’s revocation of the defendant’s
plea agreement was justified by the defendant’s failure to abide by its terms and the
defendant’s appellate argument that he had begun serving his sentence was
baseless); State v. Rushing, 1985-NMCA-091, ¶¶ 5, 10, 103 N.M. 333, 706 P.2d 875
(holding that double jeopardy principles did not prevent resentencing in part because
the defendant had made misrepresentations at the original sentencing and in part
because the defendant had not commenced serving the original, oral sentence).
16
a motion for reconsideration of his sentence after the April 3 sentencing3—because 1
it relies on the dubious premise that when defendants ask trial courts to decrease 2
their sentences, they must reasonably expect that the courts might increase their 3
sentences. This defies common sense and, as we will explain, is inconsistent with 4
New Mexico law. 5
{23} The only avenue available for a discretionary reconsideration of sentence 6
following the April 3 sentencing was Rule 5-801,4 regarding motions for reduction 7
3 We note that, although Defendant’s motion was styled a motion to reconsider
sentence, the contents of the motion pertain only to the question of whether the
double jeopardy bar against multiple convictions and punishments for the same
offense precluded convicting Defendant of both vehicular homicide and aggravated
DWI and sentencing him for both offenses. Based on its substance, we believe the
motion is best understood exclusively as a request to vacate Defendant’s conviction
for aggravated DWI and his sentence for that crime. See State v. Roybal, 2006-
NMCA-043, ¶ 17, 139 N.M. 341, 132 P.3d 598 (“[I]t is the substance of the motion,
and not its form or label, that controls.”).
Insofar as the State’s argument is that the filing of the motion signals that the
sentence was interlocutory, see State v. Romero, 2014-NMCA-063, ¶¶ 5, 8, 327 P.3d
525 (explaining that a defendant’s timely postjudgment motion for reconsideration
of sentence under Rule 5-801 NMRA suspends the finality of the judgment for the
purposes of appeal), we reiterate that the reasonableness of a defendant’s expectation
of finality in a sentence is not dependent on the entry of a written final judgment.
Porras, 1999-NMCA-016, ¶ 14. As we will explain, it is perfectly reasonable for a
defendant who has begun serving a prison sentence and who moves under Rule
5-801 for a purely discretionary reduction of that sentence to expect the district court
to take one of only two actions on the motion: (1) grant the motion and reduce the
sentence, or (2) deny the motion, leaving the original sentence in place.
4 We are aware of one circumstance under which a district court must modify
its sentence regardless of the defendant’s expectations: where the habitual offender
statutes require an increase to the sentence. See NMSA 1978, §§ 31-18-19 (1977),
31-18-20 (1983); State v. Diaz, 2007-NMCA-026, ¶ 11, 141 N.M. 223, 153 P.3d 57.
But that circumstance is not present here because the district court imposed the
17
of sentence, and its availability did not prevent Defendant from forming a reasonable 1
expectation of finality because the Rule’s plain language and history demonstrate 2
that it only permits sentencing courts to reduce a defendant’s sentence. In construing 3
a rule of criminal procedure, our appellate courts employ “the same rules of 4
construction [as those] applicable to the interpretation of statutes.” State v. Aslin, 5
2020-NMSC-004, ¶ 9, 457 P.3d 249 (internal quotation marks and citation omitted). 6
We examine “the plain language of the rule as well as the context in which it was 7
promulgated, including the history of the rule and [its] object and purpose.” Id. 8
(internal quotation marks and citation omitted). The plain language of Rule 5-801 is 9
clear as to the scope of authority it confers. The applicable part of the Rule, 10
Subsection A, discusses only “[a] motion to reduce a sentence” and, fittingly, is 11
entitled “[r]eduction of sentence.” We see nothing in the Rule stating or implying 12
that a district court has the authority to increase a sentence upon the filing of a motion 13
to reduce the sentence. 14
{24} The history of Rule 5-801 confirms that its plain language means what it says. 15
This Court discussed that history in State v. Torres, 2012-NMCA-026, 272 P.3d 689, 16
which involved a prior version of the rule, Rule 5-801(A) (1989). Torres, 2012- 17
habitual-offender enhancement at Defendant’s original sentencing. And, in any
event, it is clear under our precedent that a defendant may have a reasonable
expectation of finality in an underlying sentence regardless of the possibility of later
habitual-offender enhancement. Porras, 1999-NMCA-016, ¶ 13.
18
NMCA-026, ¶ 13. In Torres, this Court recognized that, with the 1989 amendment 1
to Rule 5-801, New Mexico abolished a common-law principle that gave sentencing 2
courts inherent authority to correct illegal sentences. Torres, 2012-NMCA-026, 3
¶¶ 13-15, 17, 37-38.5 This Court explained that the evolution of Rule 5-801 has 4
“closely tracked” that of Federal Rule of Criminal Procedure 35, which, in the 5
interest of “mak[ing] prisoner release dates more certain and sentences imposed in 6
the public forum more final,” Congress amended it in 1984 specifically “to remove 7
any historical common law jurisdiction the federal district courts once enjoyed with 8
respect to correction of illegal sentences.” Torres, 2012-NMCA-026, ¶¶ 17-27. New 9
Mexico has “[f]ollow[ed] the federal lead,” id. ¶ 20, by “continually narrow[ing] the 10
scope of Rule 5-801.” Torres, 2012-NMCA-026, ¶ 27. 11
{25} The narrowing has continued since Torres. Our Supreme Court amended the 12
Rule again in 2014, upon the recommendations of a committee it had appointed to 13
review various rules of criminal procedure. See Supreme Court Order No. 14-8300- 14
014 (Nov. 1, 2014). See generally Max Minzner, Habeas Corpus in New Mexico, 46 15
N.M. L. Rev. 43 (2016). The amendment to Rule 5-801 further narrowed the scope 16
of the rule to “motions where the defendant seeks a discretionary reduction in 17
5 This case does not present a question about the district court’s authority to
correct an illegal sentence. The State does not argue, and we are aware of no basis
for concluding, that the district court increased Defendant’s original sentence to
correct any illegality.
19
sentence from the district court judge.” Minzner, supra, at 65. Prior to the 2014 1
amendment, Rule 5-801(A) (2009) permitted sentencing courts to “correct a 2
sentence imposed in an illegal manner” within ninety days of the imposition of 3
sentence. The current version, as amended, only permits motions “to reduce a 4
sentence.” Rule 5-801(A). The change reflects a deliberate effort to remove any 5
ambiguity regarding whether Rule 5-801 permits motions to correct illegal 6
sentences, Minzner, supra, at 64-65, which, since 1989, it has not. Torres, 2012- 7
NMCA-026, ¶¶ 13, 17. The Rule’s plain language and history thus demonstrate that 8
Rule 5-801 does not authorize a sentencing court to increase a sentence on a 9
defendant’s motion to reconsider sentence. Therefore, Defendant’s motion 10
requesting his aggravated DWI conviction be vacated on double jeopardy grounds 11
had no bearing on whether he had a reasonable expectation that his actual prison 12
term would be no longer than the ten years imposed at his original sentencing. 13
{26} The State’s third argument is that Defendant had not begun serving his 14
sentence because he was incarcerated at the local jail rather than the prison facility 15
where he could expect to serve the greater part of his sentence. We are not persuaded. 16
In our view, Defendant’s expectation of finality in his sentence was no less 17
reasonable than that of the defendant in Porras—where this Court held that the 18
defendant began serving a ninety-day jail sentence when he was remanded to the 19
local jail, 1999-NMCA-016, ¶ 14—simply because Defendant, though incarcerated 20
20
pursuant to the original sentence the district court imposed, had not yet been 1
transported from the jail to an NMCD facility. 2
{27} To accept the State’s position, we would have to draw two distinctions that 3
we perceive as untethered from the purpose of the double jeopardy principle at issue 4
here. The first distinction is between two defendants who are remanded to the 5
custody of the local jail but who will serve their sentences in different types of 6
facilities. See generally NMSA 1978, § 31-20-2(A), (D), (E) (1993) (identifying the 7
circumstances under which a sentence must be served in a facility under NMCD 8
jurisdiction). Under the rule the State proposes, the defendant who is sentenced to 9
serve time in the local jail would have a reasonable expectation of finality upon 10
remand to the local jail, but the defendant who is sentenced to a prison term would 11
not. The second distinction is between two defendants who are remanded to the 12
custody of the local jail and have received sentences that will be served in NMCD 13
facilities but who arrive at those facilities at different times. Under the State’s 14
proposed rule, the defendant who is transported to an NMCD facility first would 15
obtain a reasonable expectation of finality upon transport, but the defendant who 16
remains in the local jail awaiting transport to an NMCD facility would have no such 17
expectation. We are aware of no basis in New Mexico law for such distinctions. And 18
we think those distinctions are arbitrary; they are driven not by the reasons for the 19
double jeopardy rule but instead by happenstance. Where a particular defendant 20
21
happens to be incarcerated when a trial court decides to increase the sentence it has 1
imposed bears no meaningful relationship to whether it is reasonable for that 2
defendant to expect that the sentence is final and will not be increased. 3
{28} We conclude that defendants who have heard the district court impose 4
sentence in open court, in no uncertain terms, and who are then remanded into 5
custody for the purpose of beginning to serve that sentence have a reasonable 6
expectation that their sentences will not be increased, regardless of whether they 7
subsequently request a discretionary reduction to their sentences and regardless of 8
whether they are incarcerated in an institution operating under the authority of 9
NMCD or under the authority of a county or local government. We therefore hold 10
that Defendant began serving the sentence originally imposed by the district court 11
when he was remanded to the custody of the MDC and that, from then on, he had a 12
reasonable expectation that his sentence would not be increased. Because the 13
subsequent imposition of an actual term of imprisonment greater than ten years 14
violated Defendant’s right to be free from double jeopardy, Defendant’s sentence 15
cannot stand. 16
CONCLUSION 17
{29} We affirm Defendant’s conviction but reverse the judgment and sentence and 18
remand for entry of a judgment and sentence consistent with this opinion. 19
{30} IT IS SO ORDERED. 20
Ne
HN
WE CONCUR:
= f = L. ATTREP, Judge
MEGAN P. DUFFY, Yudge
22
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