August 13, 2020- State of New Mexico v. Gerardo Torres, No. A-1-CA-37642

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: _______________	2
Filing Date: AUGUST 13, 2020	3
Nos. A-1-CA-37642 and A-1-CA-38099	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellant,	6
v.	7
GERARDO TORRES,	8
Defendant-Appellee.	9
and	10
STATE OF NEW MEXICO,	11
Plaintiff-Appellant,	12
v.	13
KENDALE HENDRIX,	14
Defendant-Appellee.	15
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY	16
Steven E. Blankinship, District Judge	17
Hector H. Balderas, Attorney General	18
Marko D. Hananel, Assistant Attorney General	19
Santa Fe, NM	20
for Appellant	21
Court of Appeals of New Mexico
Filed 8/13/2020 11:00 AM

Bennett J. Baur, Chief Public Defender	1
Santa Fe, NM	2
Victor E. Sanchez, Jr., Assistant Appellate Defender	3
Albuquerque, NM	4
for Appellees	5

OPINION	1
DUFFY, Judge.	2
{1} 	These appeals arise from separate and apparently unrelated incidents of cattle	3
rustling in Otero County occurring some eighteen months apart. Defendant Gerardo	4
Torres, accused of thefts occurring on two dates in early 2017, and Defendant	5
Kendale Hendrix, accused of a theft occurring in August 2018, were each charged	6
with multiple counts of larceny (livestock)—one count per head—contrary to	7
NMSA 1978, Section 30-16-1(G) (2006). In both cases, the district court granted	8
Defendants’ motions to merge the larceny counts in their respective indictments	9
based on the single-larceny doctrine and on double jeopardy grounds. Because the	10
State’s appeals in both cases address identical issues on substantially similar facts,	11
we exercise our discretion to consolidate them for decision. See Rule 12-317(B)	12
NMRA. We conclude the district court correctly determined the unit of prosecution	13
and affirm both orders.	14
BACKGROUND	15
{2} 	For purposes of evaluating Defendants’ multiplicity arguments, the district	16
court accepted the parties’ stipulations to treat as true the factual allegations	17
contained in affidavits accompanying the criminal complaint or the arrest warrant in	18
their respective cases. See Herron v. State, 1991-NMSC-012, ¶ 6 n.4, 111 N.M. 357,	19
805 P.2d 624 (“We use the term ‘multiplicity’ to describe the situation when an	20

2
indictment charges a single offense in different counts.”). On appeal, the parties do	1
not dispute the factual predicate underlying the charges,1 and pursuant to State v.	2
Foulenfont, we review the legal issues raised in these appeals in light of the	3
uncontested factual predicates presented to the district court. 1995-NMCA-028,	4
¶¶ 4-6, 119 N.M. 788, 895 P.2d 1329 (concluding that the district court had authority	5
to consider the defendants’ pretrial motion to dismiss two counts in the indictment	6
where the defendants argued that the factual predicate underlying the charges did	7
not fit within the definition of burglary, the state did not dispute the defendants’	8
characterization, and the state focused on whether a “fence” comes within the	9
definition of “structure” in the statute, rendering the argument a purely legal	10
question).	11
The Torres Case	12
{3} 	Defendant Torres was an employee at Crossroads Cattle Company. On June	13
1, 2017, the ranch foreman at Crossroads observed that the calf crop in one of the	14
pastures was substantially low—about 40-50 percent compared to 80-90 percent in	15
the other pastures. Approximately three weeks later, Peewee Serna advised the ranch	16
1 Defendants stated in their answer briefs that for purposes of these appeals,
they accept as true the allegations set forth in the affidavits. Although the State
contends on appeal that the facts set forth in the affidavits are not adequate to
determine whether there was a single offense or multiple offenses, the State does not
otherwise dispute the characterization of the factual predicates underlying the
charges.

3
foreman that Defendant Torres had stolen and sold unbranded calves; Peewee stated	1
that he had unwittingly helped Defendant Torres load about thirteen unbranded	2
calves in January and more later. When questioned by the foreman, Defendant	3
Torres admitted to stealing thirteen head in January 2017. Officer Skylar Davis, an	4
enforcement officer with the New Mexico Livestock Board, obtained copies of	5
market inspections for sales at the Rio Grande Livestock Auction in El Paso, Texas,	6
which showed that Defendant Torres had sold a total of eighteen calves on two dates.	7
The ranch foreman at Crossroads told Officer Davis that Crossroads had never sold	8
cattle at that auction and employees are not allowed to keep their own cattle on the	9
ranch. The State subsequently filed a criminal information charging Defendant	10
Torres with eighteen counts of larceny of livestock.	11
The Hendrix Case	12
{4} 	Defendant Hendrix was “known to be a hauler of cattle for the Ganada Cattle	13
Company.” Although Defendant Hendrix’s own accounts varied, he generally	14
admitted that he and Skeeter Chadwick, an employee of Ganada, made arrangements	15
to take twenty-five head of no-brand cattle from Ganada to San Angelo, Texas to	16
sell them. Chadwick apparently offered to pay Defendant Hendrix three times the	17
normal rate for hauling.	18
{5} 	Defendant Hendrix picked up twenty-five head from Ganada on August 28,	19
2018, and while he and Chadwick were on the road to Texas, an off-duty cattle	20

4
inspector spotted them and reported a possible illegal shipment to the New Mexico	1
Livestock Board. Once the men arrived at the San Angelo Sale Barn, a special ranger	2
for the Texas Southwest Cattle Raisers noted that the men unloaded twenty-four	3
head of no-brand cattle, mixed in breed and color, with no ear tags or ear marks; one	4
calf was too weak to walk off the trailer on its own and was later euthanized. When	5
questioned, Defendant Hendrix stated that he had loaded up the cattle alone in Dell	6
City, Texas, and that the cattle belonged to him. Defendant Hendrix then checked	7
the cattle into the Sale Barn under his name. In a later interview with an inspector	8
for the New Mexico Livestock Board, Defendant Hendrix indicated that he acted at	9
Chadwick’s direction, but stated that Chadwick told him “that he could get the	10
money for the cattle, keep his $1200, and Chadwick would get the rest.” A grand	11
jury indicted Defendant Hendrix on twenty-five counts of larceny of livestock.2
12
Procedural Background	13
{6} 	Defendant Torres filed a pretrial motion asking the district court to merge the	14
larceny counts into a single charge. He argued that the multiple larceny charges	15
violate double jeopardy principles under the circumstances and that the single	16
larceny doctrine, which defines the taking of multiple articles of property from the	17
same owner at the same time and place as a single transaction, allows the court to	18
2 Chadwick was also charged and prosecuted separately.

5
merge the larceny charges into a single count before trial as a matter of law. See	1
State v. Alvarez-Lopez, 2004-NMSC-030, ¶ 43, 136 N.M. 309, 98 P.3d 699 (defining	2
the single-larceny doctrine). The State did not file a response. After conducting a	3
hearing and considering the oral arguments of both the State and Defendant Torres,	4
the district court granted the motion on June 13, 2018, holding that under the facts	5
stipulated to by the parties, no more than two larcenies occurred. After the district	6
court declined the State’s motion to reconsider, the State sought an interlocutory	7
appeal.	8
{7} 	When Defendant Hendrix was indicted later that year, his case was assigned	9
to the same district court judge. Defendant Hendrix also filed a motion to merge his	10
larceny charges on substantially the same basis. The district court considered the	11
State’s response but ultimately granted the motion, applying the same analysis set	12
forth in its earlier order in Defendant Torres’s case. The State pursued pretrial	13
appeals in both cases.3
14
3 Although 	the 	State 	pursued 	both 	appeals 	through 	applications 	for
interlocutory review, we construed them as direct appeals pursuant to NMSA 1978,
§ 39-3-3(B)(1) (1972) (stating that the state may appeal within “thirty days from a
decision, judgment or order dismissing a complaint, indictment or information as to
any one or more counts”), because the district court’s orders practically resulted in
the dismissal of multiple counts against each Defendant.

6
DISCUSSION	1
{8} 	The State’s appeals ask us to consider the unit of prosecution for larceny of	2
livestock under Section 30-16-1(G) and determine whether, under the circumstances	3
presented in these cases, the Legislature intended to punish the theft of multiple	4
animals as a single offense or to allow separate punishments for each animal taken.	5
See State v. Ramirez, 2018-NMSC-003, ¶ 46, 409 P.3d 902 (“[T]he unit of	6
prosecution defines how many offenses the defendant has committed. It determines	7
whether conduct constitutes one or several violations of a single statutory provision.”	8
(internal quotation marks and citation omitted)); Swafford v. State, 1991-NMSC-	9
043, ¶ 8, 112 N.M. 3, 810 P.2d 1223 (“The relevant inquiry in [a unit of prosecution	10
case] is whether the legislature intended punishment for the entire course of conduct	11
or for each discrete act.”). For three decades, our courts have evaluated the	12
Legislature’s intent with respect to the unit of prosecution by applying the analytical	13
approach set forth in Herron, 1991-NMSC-012. First, we ask “whether the statute	14
clearly defines the unit of prosecution, which is purely a legal question.” State v.	15
Olsson (Olsson I), 2008-NMCA-009, ¶ 5, 143 N.M. 351, 176 P.3d 340 (alterations,	16
internal quotation marks, and citation omitted). If the statutory language spells out	17
the unit of prosecution, the inquiry is complete. State v. Gallegos, 2011-NMSC-027,	18
¶ 31, 149 N.M. 704, 254 P.3d 655. But if it does not, then courts traditionally move	19
to the second step, “in which we determine whether a defendant’s acts are separated	20

7
by sufficient ‘indicia of distinctness’ to justify multiple punishments under the same	1
statute.” Id. (internal quotation marks and citation omitted). But see Olsson I, 2008-	2
NMCA-009, ¶¶ 5-10 (evaluating a defendant’s pretrial appeal after the district court	3
denied his request to merge sixty counts of sexual exploitation of children into a	4
single count, and concluding that while the statutory language does not clearly define	5
the unit of prosecution, this Court could not apply the second step of the Herron	6
analysis because there had been no trial or evidentiary hearing to develop the facts).	7
“[B]oth stages of the unit of prosecution analysis turn on legislative intent.”	8
Gallegos, 2011-NMSC-027, ¶ 32.	9
A. 	The Plain Meaning of the Statutory Language is Ambiguous	10
{9} 	Under the first step of the unit of prosecution analysis, we are mindful that	11
“[t]he 	issue, 	though 	essentially 	constitutional, 	becomes 	one 	of 	statutory	12
construction.” Herron, 1991-NMSC-012, ¶ 6. While our courts often go no further	13
than evaluating the plain language of the statute, see, e.g., Olsson I, 2008-NMCA-	14
009, ¶ 5 (stating that we proceed to the second step only if “the legislative intent is	15
unclear after simply looking to the statute”), in Herron, the Court also considered	16
whether the legislative and statutory history provided guidance on the Legislature’s	17
intended unit of prosecution. See 1991-NMSC-012, ¶ 8. In 2011, the New Mexico	18
Supreme Court, borrowing intentionally from the analysis applied in the double	19
description line of double jeopardy cases, stated that “when analyzing whether an	20

8
‘indicium of distinctness’ sufficiently separates the acts of the accused to justify	1
multiple punishment [in a unit of prosecution case], we remain guided by the statute	2
at issue, including its language, history, and purpose, as well as the quantum of	3
punishment 	that 	is 	prescribed.” 	Gallegos, 	2011-NMSC-027, 	¶ 33 	(alteration	4
omitted). Since then, the Court has included these considerations as part of the first	5
step of the analysis. State v. Swick, 2012-NMSC-018, ¶ 33, 279 P.3d 747 (stating	6
that “[i]f the unit of prosecution is not clear from the statute at issue, including its	7
wording, history, purpose, and the quantum of punishment that is prescribed” then	8
courts should move to the second step of the inquiry). Under the traditional or	9
expanded approach, our fundamental task remains the same: we are looking for a	10
clear expression that the Legislature intended to allow multiple punishments for a	11
single act or transaction. State v. Brown, 1992-NMCA-028, ¶ 8, 113 N.M. 631, 830	12
P.2d 183 (“Any doubt will be resolved against construing ambiguous legislative	13
intent in favor of allowing multiple punishments for one act.”).	14
{10} 	The Legislature identified larceny of livestock as a felony offense in Section	15
30-16-1(G), stating, “Whoever commits larceny when the property of value stolen	16
is livestock is guilty of a third degree felony regardless of its value.” The livestock	17
provision is a subsection of the general larceny statute, Section 30-16-1,4 in which	18
4 Section 30-16-1 provides:

9
the Legislature identified three categories of property: “ ‘generic’ property, with	1
gradations of punishment based on the monetary value of the property” and two	2
specific types of property—livestock and firearms. Alvarez-Lopez, 2004-NMSC-	3
030, ¶ 41 (discussing the structure of the larceny statute). While our Supreme Court	4
has held that the larceny statute explicitly provides for separate punishments when a	5
defendant 	steals 	generic 	property 	and 	another 	category 	of 	property, 	see 	id.	6
A. 	Larceny consists of the stealing of anything of value that
belongs to another.
B. 	Whoever commits larceny when the value of the property
stolen is two hundred fifty dollars ($250) or less is guilty of a petty
misdemeanor.
C. 	Whoever commits larceny when the value of the property
stolen is over two hundred fifty dollars ($250) but not more than five
hundred dollars ($500) is guilty of a misdemeanor.
D. 	Whoever commits larceny when the value of the property
stolen is over five hundred dollars ($500) but not more than two
thousand five hundred dollars ($2,500) is guilty of a fourth degree
felony.
E. 	Whoever commits larceny when the value of the property
stolen is over two thousand five hundred dollars ($2,500) but not more
than twenty thousand dollars ($20,000) is guilty of a third degree
felony.
F. 	Whoever commits larceny when the value of the property
stolen is over twenty thousand dollars ($20,000) is guilty of a second
degree felony.
G. 	Whoever commits larceny when the property of value
stolen is livestock is guilty of a third degree felony regardless of its
value.
H. 	Whoever commits larceny when the property of value
stolen is a firearm is guilty of a fourth degree felony when its value is
less than two thousand five hundred dollars ($2,500).

10
(upholding separate convictions for larceny of generic property and a firearm), our	1
courts have not previously addressed whether separate punishments are permitted	2
under Section 30-16-1(G) for the theft of multiple animals.	3
{11} 	The district court thoroughly reviewed the livestock provision and concluded	4
that Section 30-16-1(G) defines the unit of prosecution as a single offense regardless	5
of the number of animals taken. The court reasoned that the term “livestock” is used	6
consistently by our Legislature and elsewhere to refer to animals in aggregate and	7
concluded that “[t]he term ‘livestock’ is plural and, accordingly, it is the whole, or	8
rather, the aggregate of the parts, such that, a single offense exists irrespective of	9
whether one (1) or ten (10) animals or fowls were taken when the elements of the	10
offense are the same.” See, e.g., NMSA 1978, § 7-35-2(D) (2018) (“ ‘[L]ivestock’	11
means cattle, buffalo, horses, mules, sheep, goats, swine, ratites and other domestic	12
animals useful to humans[.]”); NMSA 1978, § 77-1B-2(K) (2017) (“ ‘[L]ivestock’	13
means all domestic or domesticated animals that are used or raised on a farm or	14
ranch and exotic animals in captivity and includes horses, asses, mules, cattle, sheep,	15
goats, swine, bison, poultry, ostriches, emus, rheas, camelids and farmed cervidae	16
but does not include canine or feline animals[.]”); NMSA 1978, § 77-16-2 (1977)	17
(“ ‘[L]ivestock’ shall include domestic animals such as cattle, horses, sheep, hogs,	18
goats and buffaloes.”); NMSA 1978, § 30-18-1.2(H) (2009) (“ ‘[L]ivestock’ means	19
all domestic or domesticated animals that are used or raised on a farm or ranch and	20

11
exotic animals in captivity and includes horses, asses, mules, cattle, sheep, goats,	1
swine, bison, poultry, ostriches, emus, rheas, camelids and farmed cervidae but does	2
not include canine or feline animals.”). Defendants advocate a similar construction	3
on appeal, contending that the term “livestock” is a collective noun that refers to a	4
group as a single unit.	5
{12} 	The State challenges the district court’s interpretation, arguing that the	6
statutory language does not express a clear unit of prosecution. The State submits	7
that the term “livestock” refers only to a specific class of property separate from	8
generic larceny. The State also contends that “[t]reating the term livestock as strictly	9
plural would require that a defendant steal more than one [animal]” before criminal	10
liability could attach—a result the Legislature could not have intended.	11
{13} 	Although the district court indicated that it did not consider the term to be	12
strictly plural by stating in its order that “a single offense exists irrespective of	13
whether one (1) or ten (10) animals or fowls were taken” (emphasis added), we have	14
previously held that where a term can be both singular and plural, it provides “no	15
clear indication of a unit-of-prosecution.” State v. Tidey, 2018-NMCA-014, ¶ 10,	16
409 P.3d 1019 (concluding that the unit of prosecution was unclear because	17
“[n]either the legislative definition nor [the statute] indicate whether ‘paraphernalia’	18
was intended to be construed as a singular or plural noun”). The same conclusion is	19
required here. The Legislature has not defined “livestock” for purposes of Section	20

12
30-16-1(G) and its usage of the term within the statute does not express a clear intent	1
to punish the theft of multiple animals either singly or separately. We conclude the	2
statutory language is ambiguous.	3
B. 	The History and Purpose of Section 30-16-1(G) Does Not Define a Clear	4
Unit of Prosecution	5
{14} 	Because the plain language of the statute is not dispositive, we accept the	6
State’s 	invitation 	to 	explore 	the 	statute’s 	history, 	purpose, 	and 	quantum 	of	7
punishment in accordance with Gallegos and Swick.	8
{15} 	The larceny of livestock statute dates back to 1884, when our territorial	9
legislature enacted an “Act For The Protection of Livestock And Other Purposes.”	10
The Legislature stated in Section 68 of the Act that “[a]ny person who shall	11
steal . . . or in any manner deprive the owner of the immediate possession of any neat	12
cattle, horse, mule, sheep, goat, swine, or ass” was guilty of a felony. See 1884	13
Compiled Laws of New Mexico, Title II, ch. I, § 68, C.L. 1885.5 In Chapter I,	14
5 Section 68 states in its entirety: “Any person who shall steal, embezzle or
knowingly kill, sell, drive, lead, or ride away, or in any manner deprive the owner
of the immediate possession of any neat cattle, horse, mule, sheep, goat, swine, or
ass; or any person who shall steal embezzle, or knowingly kill, sell, drive, lead, or
ride away, or in any manner apply to his own use any neat cattle, horse, mule, goat,
sheep, ass, or swine, the owner of which is unknown; or any person who shall
knowingly purchase from any one not having the lawful right to sell and dispose of
the same, any neat cattle, horse, mule, sheep, swine, or ass, shall be deemed guilty
of a felony, and on conviction thereof in any court of competent jurisdiction, shall
be punished by imprisonment not less than one year nor more than five years, and
by a fine not less than five hundred dollars, nor more than five thousand dollars, at
the discretion of the court.”

13
Section 69 of the New Mexico Laws of 1884, the Legislature added that the taking	1
or stealing of “any animal or animals herein referred to” shall be deemed to be grand	2
larceny, subjecting the offender to anywhere from one to ten years in the penitentiary	3
“notwithstanding the value of such animal or animals may be less than twenty	4
dollars.” Id.6
5
{16} 	This enactment remained in force and without substantial change until 1963,	6
when the Legislature incorporated larceny of livestock into the general larceny	7
statute in its current form. State v. Pacheco, 1969-NMCA-127, ¶ 13, 81 N.M. 97,	8
463 P.2d 521 (“Until the adoption of Ch. 303, Laws 1963, provision had always been	9
made for the punishment of larceny of livestock in a section of our statutes separate	10
from those sections providing the punishments for other larcenies.”). Although the	11
current version of the statute continues to classify larceny of livestock separately	12
from other larcenies, the Legislature removed language that would have been helpful	13
in the present dispute. In particular, the pre-1963 act defined the crime as the taking	14
of “any animal or animals herein referred to” and stated that the punishment attaches	15
6 Section 69 states in its entirety: “All cases which are by this act declared to
be larceny, and in all cases of felonious taking, stealing, riding, driving, leading, and
carrying away of any animal or animals herein referred to, the same shall be deemed
and taken to be, and the courts of this Territory shall construe the same to be grand
larceny, subjecting the offender or offenders to be condemned to the penitentiary for
a term of not less than one year nor more than ten years, except as otherwise provided
for in this act, notwithstanding the value of such animal or animals may be less than
twenty dollars.”

14
notwithstanding the value of the “animal or animals”—a clearer suggestion that the	1
Legislature then intended to punish larceny of livestock as a single offense regardless	2
of 	the 	number 	of 	animals 	taken. 	The 	statute 	is 	less 	descriptive 	following	3
Legislature’s substantial revision in 1963, however, and nothing indicates whether	4
the changes reflect a legislative effort to streamline the statutory language while	5
maintaining a consistent construction with the prior act, or instead, whether the	6
changes signal an intent to abandon and depart from the earlier language. Given this,	7
we cannot draw any definitive conclusions about the Legislature’s intent from the	8
statutory history.	9
{17} 	The State’s remaining arguments in favor of separate punishments focus on	10
the purpose and structure of the livestock provision. The statute’s purpose, according	11
to an Attorney General Opinion from 1930, “was to specially protect ownership in a	12
particular class of property rather than to prevent larceny in general.” N.M. Att’y	13
Gen. Op. No. 30-38 (1930); see Pacheco, 1969-NMCA-127, ¶ 18 (evaluating the	14
modern larceny statute and noting, “the larceny of livestock statute was apparently	15
enacted to protect the ownership thereof, to prevent a kind of larceny peculiarly easy	16
of commission and difficult of discovery and punishment, and to protect the	17
important industry of stock raising”). To that end, the Legislature has always treated	18
larceny of livestock differently from generic larceny in two ways. First, larceny of	19
livestock has always occupied “a section of our statutes separate from those sections	20

15
providing the punishments for other larcenies.” Pacheco, 1969-NMCA-127, ¶ 13.	1
Second, larceny of livestock is punished differently from generic larceny—it	2
constitutes a third degree felony “regardless of [the livestock’s] value.” Section 30-	3
16-1(G); see also Pacheco, 1969-NMCA-127, ¶ 13 (noting that larceny of livestock	4
is punished “based upon the nature of the thing stolen (livestock), rather than upon	5
the value of the thing stolen”).	6
{18} 	According to the State, these differences show a legislative intent to attach a	7
different unit of prosecution to larceny of livestock and to punish it more severely	8
than larceny of generic property. Although there is support for the notion that the	9
specific larceny classifications address different social concerns warranting separate	10
punishments when charged along with other forms of larceny, as was the case in	11
Alvarez-Lopez, the statutory structure does not reveal the Legislature’s intended unit	12
of prosecution within a particular category. 2004-NMSC-030, ¶ 42 (concluding that	13
the structure of Section 30-16-1 indicates the Legislature considered the larceny of	14
firearms to be so serious it “created a separate offense within the general larceny	15
statute for the unlawful taking of a firearm” such that when the property stolen	16
includes both generic property and a firearm, multiple punishments are authorized).	17
{19} 	Nor does the quantum of punishment resolve the matter. See Gallegos, 2011-	18
NMSC-027, 	¶ 33 	(stating 	that 	the 	quantum 	of 	punishment 	is 	a 	relevant	19
consideration). Even if the Legislature’s designation of the crime as a third degree	20

16
felony is an indication that it considers larceny of livestock a serious offense, the	1
State has not shown that the level of punishment demonstrates a clear intent to allow	2
multiple punishments here. Cf. id. ¶ 53 (observing that the Legislature’s punishment	3
scheme for conspiracy based on the highest crime conspired provided additional	4
support for the conclusion that its intended unit of prosecution was based on the	5
conspiratorial agreement rather than its objectives). Unlike the generic larceny	6
provisions and many other property crimes, the Legislature determined to apply the	7
same punishment regardless of the value of the livestock stolen. Consequently, while	8
the livestock provision allows the theft of a single calf to be punished as a third	9
degree felony, see Pacheco, 1969-NMCA-127, ¶¶ 5, 19 (upholding the defendant’s	10
conviction for theft of a single calf against his equal protection challenge to the	11
constitutionality of his sentence), it can also be read to prescribe the same	12
punishment regardless of the total, aggregate value of the stolen livestock. Because	13
value is simply not considered for this type of larceny, comparing the potential for	14
disparate punishments between the livestock provision and the value-based generic	15
larceny provisions, as 	the State advocates, is not 	a sound 	methodology for	16
identifying the Legislature’s intent. See State v. Olsson (Olsson II), 2014-NMSC-	17
012, ¶ 30, 324 P.3d 1230 (considering disparity in punishments when comparing	18
possession of child pornography under NMSA 1978, Section 30-6A-3(A) (2007,	19

17
amended 2016), to criminal sexual contact of a minor and concluding the disparity	1
may indicate the Legislature did not intend separate punishments).	2
{20} 	In the same manner, Defendants point out that larceny of livestock carries a	3
three-year basic sentence and thus the eighteen counts in Defendant Torres’s case	4
would result in a fifty-four-year basic sentence and the twenty-five counts in	5
Defendant Hendrix’s case would result in a seventy-five-year basic sentence—far	6
exceeding the punishments for higher-level violent offenses. See NMSA 1978, § 31-	7
18-15(A)(11) (2016, amended 2019) (stating the basic sentence for third degree	8
felonies); cf. State v. Santillanes, 2001-NMSC-018, ¶ 31, 130 N.M. 464, 27 P.3d 456	9
(“There are a very limited number of crimes in the Criminal Code that are designated	10
as first degree felonies, and these crimes are subject to a substantial sentence of	11
eighteen years imprisonment.”). Our courts have declined to consider the potential	12
length of a sentence as a guide in determining the appropriate unit of prosecution,	13
noting that we generally defer to the judgment of the Legislature concerning the	14
appropriate punishment for crimes. State v. Bernal, 2006-NMSC-050, ¶ 29, 140	15
N.M. 644, 146 P.3d 289. We see no reason to depart from that approach here.	16
{21} 	At the first step of our unit-of-prosecution analysis, however, we cannot	17
conclude that the Legislature intended to impose a separate punishment for each	18
stolen animal unless it is clear that the Legislature intended to do so. Based on our	19
review of the language, history, and purpose of Section 30-16-1(G), we do not find	20

18
clear indicia of a legislative intent to allow multiple punishments, and therefore	1
conclude the Legislature’s intent remains ambiguous.	2
C. 	Single-Larceny Doctrine	3
{22} 	The single-larceny doctrine, also known as the single criminal intent doctrine,	4
is “a canon of construction used when the Legislature’s intent regarding multiple	5
punishments is ambiguous.” Alvarez-Lopez, 2004-NMSC-030, ¶ 43 (holding that the	6
doctrine was inapplicable in that case because the Legislature’s intent was clear).	7
Fittingly, the doctrine originated in New Mexico in a cattle-rustling case in 1914.	8
See State v. Klasner, 1914-NMSC-015, ¶ 1, 19 N.M. 474, 145 P. 679.	9
{23} 	The traditional iteration of the single-larceny doctrine is that “when several	10
articles of property are stolen by the defendant from the same owner at the same time	11
and at the same place, only one larceny is committed.” State v. Rowell, 1995-NMSC-	12
079, ¶ 15, 121 N.M. 111, 908 P.2d 1379 (alteration, internal quotation marks, and	13
citation omitted). In Klasner, the defendant was charged with the larceny of nineteen	14
head of calves belonging to unknown owners, and our Supreme Court recognized	15
that “a taking at one time or place of property belonging to several people constitutes	16
a single crime that cannot be separately punished.” State v. Brooks, 1994-NMSC-	17
062, ¶ 5, 117 N.M. 751, 877 P.2d 557 (emphasis added) (citing Klasner, 1914-	18
NMSC-015, ¶ 2); see also Brown, 1992-NMCA-028, ¶ 8 (noting that because	19
larceny 	is 	defined 	as 	“the 	stealing 	of 	anything 	of 	value 	which 	belongs 	to	20

19
another[,] . . . the state need not prove ownership in a particular person; proof that	1
the property belonged to someone other than the defendant is sufficient” (internal	2
quotation marks and citation omitted)). “The determinative element was that there	3
had been one transaction even though the property belonged to several individuals.”	4
Brooks, 1994-NMSC-062, ¶ 5.	5
{24} 	In 1955, our Supreme Court applied the single-larceny doctrine to a series of	6
takings from a single owner. State v. Allen, 1955-NMSC-015, ¶ 5, 59 N.M. 139, 280	7
P.2d 298. “There, [the Court] focused not on the number of transactions, but on the	8
intent of the defendant[,]” stating:	9
Where the property is stolen from the same owner and from the same	10
place by a series of acts, if each taking is the result of a separate,	11
independent, impulse, each is a separate crime; but if the successive	12
takings are all pursuant to a single, sustained, criminal impulse and in	13
execution of a general fraudulent scheme, they together constitute a	14
single larceny, regardless of the time which may elapse between each	15
act.	16
Brooks, 1994-NMSC-062, ¶ 6 (internal quotation marks and citation omitted).	17
{25} 	The State urges us not to apply the single-larceny doctrine, arguing principally	18
that it is an antiquated relic that has been subsumed and replaced by the modern	19
double jeopardy analysis articulated in Herron. Contrary to the State’s position, this	20
Court specifically recognized the doctrine after Herron in Brown, 1992-NMCA-028,	21
¶ 13, 	and 	our 	courts 	have 	consistently 	applied 	the 	doctrine 	in 	larceny 	and	22
embezzlement cases for over a century, continuing until this day. See State v.	23

20
Pedroncelli, 1984-NMSC-009, ¶ 10, 100 N.M. 678, 675 P.2d 127 (affirming the	1
defendant’s single conviction for embezzlement after considering the single-larceny	2
doctrine and noting that a fact-finder may determine whether the successive takings	3
or conversions are associated with a single, sustained criminal intent); Allen, 1955-	4
NMSC-015, ¶ 8 (applying the single-larceny doctrine to a series of takings); Klasner,	5
1914-NMSC-015, ¶ 1 (holding that the taking of property from the same location at	6
the same time, although belonging to separate individuals, could be punished as a	7
single crime); see also State v. Krohn, No. A-1-CA-35546, mem. op. ¶ 12 (N.M. Ct.	8
App. Apr. 8, 2019) (non-precedential) (applying the single-larceny doctrine to the	9
defendant’s multiple acts of embezzlement); State v. Johnson, 1996-NMCA-017,	10
¶¶ 8-10, 121 N.M. 337, 911 P.2d 231 (applying the single-larceny doctrine to the	11
defendant’s multiple convictions for unlawful dealing in food coupons over time, a	12
form of larceny); Brown, 1992-NMCA-028, ¶ 13 (concluding that application of the	13
single-larceny doctrine to the defendant’s multiple convictions for larceny from two	14
separate victims would lead to a single larceny because there was only one taking);	15
State v. Boeglin, 1977-NMCA-004, ¶ 18, 90 N.M. 93, 559 P.2d 1220 (applying the	16
single-larceny doctrine to the defendant’s five convictions for stealing five firearms	17
and holding that the “taking of two or more articles of property from the same owner	18
at the same time and place [should] be prosecuted as only one larceny”).	19

21
{26} 	Our holding in State v. Bernard does not require a different conclusion. 2015-	1
NMCA-089, ¶ 21, 355 P.3d 831 (considering whether to extend the doctrine to the	2
crime of possession of a stolen vehicle).7 We stated, “Even though our courts have	3
recognized the validity of the single-larceny doctrine, we see no indication that the	4
doctrine supersedes the well-established two-step legislative intent inquiry in a unit	5
of prosecution case.” Id. (citation omitted). While the State interprets this statement	6
to mean that Herron does, in fact, supersede the single-larceny doctrine, we do not	7
7Bernard is consistent with a long line of cases that have declined to extend
and apply the doctrine outside of the context of larceny and embezzlement. See
Bernal, 2006-NMSC-050, ¶ 30 (declining to extend the single-larceny doctrine to
the crime of robbery); State v. Baca, 1997-NMSC-018, ¶ 11, 123 N.M. 124, 934
P.2d 1053 (declining to extend the single-larceny doctrine to the crime of forgery);
Rowell, 1995-NMSC-079, ¶ 20 (declining to extend the doctrine where the larcenous
scheme involved multiple victims, locations, and time periods); Bernard, 2015-
NMCA-089, ¶ 21 (declining to extend the single-larceny doctrine to the crime of
possession of a stolen vehicle); State v. Boergadine, 2005-NMCA-028, ¶ 29, 137
N.M. 92, 107 P.3d 532 (declining to extend the single-larceny doctrine to the crime
of fraud); State v. Morro, 1999-NMCA-118, ¶ 26, 127 N.M. 763, 987 P.2d 420
(declining to extend the single-larceny doctrine to the crime of defacing tombs).
This fact, in combination with Bernard’s unique analytical approach to the
unit 	of 	prosecution 	in 	possession 	cases, 	renders 	Bernard 	substantively
distinguishable and inapplicable to the unit of prosecution analysis in this case.
Bernard, 2015-NMCA-089, ¶¶ 20-31 (discussing the unit of prosecution analysis for
possession 	after 	our 	Supreme 	Court 	determined 	that 	the 	Herron 	indicia 	of
distinctness factors did not apply in Olsson II). We decline the State’s request to
apply a similar analysis and to consider the statutory and regulatory scheme for
livestock as part of either the first step of the unit of prosecution analysis, as the State
advocates in the Torres appeal, or as an indicia of distinctness in the second step of
the analysis, as the State advocates in the Hendrix appeal. See id. ¶¶ 28-30
(examining, for purposes of the second step of the analysis, the state’s regulatory
scheme as evidence of the Legislature’s intent).

22
consider the two doctrines to be mutually exclusive or in conflict. As Justice Minzner	1
wrote 	in 	Alvarez-Lopez, 	the 	single-larceny 	doctrine 	applies 	only 	where 	the	2
Legislature’s 	intent 	regarding 	multiple 	punishments 	is 	unclear—meaning, 	in	3
practice, that the doctrine can only apply after engaging in the first step of the unit	4
of prosecution analysis and only then if the Legislature’s intent remains ambiguous.	5
2004-NMSC-030, ¶ 43. Because neither 	Bernard 	nor 	Alvarez-Lopez 	involved	6
questions of how to apply the single-larceny doctrine after the first step, they offer	7
no guidance on how we should do so here. See Sangre de Cristo Dev. Corp. v. City	8
of Santa Fe, 1972-NMSC-076, ¶ 23, 84 N.M. 343, 503 P.2d 323 (“The general rule	9
is that cases are not authority for propositions not considered.”).	10
{27} 	As the State correctly observes, our courts have never squarely reconciled the	11
single-larceny doctrine with the modern unit of prosecution analysis. See Brown,	12
1992-NMCA-028, ¶ 13 (affirming the validity of the single-larceny doctrine after	13
engaging in the second step of the Herron analysis and concluding that “had we	14
applied it rather than Herron, we would have reached the same result”). Our	15
Supreme Court’s characterization of the doctrine as “a canon of construction used	16
when the Legislature’s intent regarding multiple punishments is ambiguous” signals	17
that it functions as a rule or principle that guides interpretation of the statute to	18
resolve the ambiguity. 	See 	Alvarez-Lopez, 2004-NMSC-030, ¶ 43; 	Cannon of	19
Construction, 	Black’s 	Law 	Dictionary 	(11th 	ed. 	2019) 	(defining 	“canon 	of	20

23
construction” as “ [a] rule used in construing legal instruments, esp. contracts and	1
statutes; a principle that guides the interpreter of a text”). When we apply the single-	2
larceny doctrine to interpret the unit of prosecution in the larceny of livestock	3
provision, it clarifies that a taking of multiple head of cattle at the same time and	4
place (single transaction), or a series of takings from a single owner with a single	5
criminal intent (single intent), constitute but one larceny. Brooks, 1994-NMSC-062,	6
¶¶ 5-6.	7
{28} 	Consequently, the district court did not err in either of the cases before us.	8
Pursuant to the single-larceny doctrine, Defendant Hendrix could be found guilty of	9
only one larceny of livestock because he is alleged to have stolen multiple head of	10
cattle from the same owner at the same time and place. In other words, he is accused	11
of stealing the cattle in a single transaction. For similar reasons, Defendant Torres,	12
who allegedly stole multiple head of cattle from the same owner on two separate	13
days, can be found guilty of no more than two larcenies of livestock. See id. ¶ 9	14
(“[F]actual questions of intent must be decided by the jury unless the trial court can	15
say under the circumstances that, as a matter of law, the act is either a separate crime	16
or part of a broader scheme or plan.”).	17

24
CONCLUSION	1
{29} 	Because we hold that the district court correctly determined the applicable	2
unit of prosecution in both cases, we affirm its orders and remand for further	3
proceedings consistent with this opinion.	4
{30} 	IT IS SO ORDERED.	5
______________________________	6
MEGAN P. DUFFY, Judge	7
WE CONCUR:	8
______________________________	9
J. MILES HANISEE, Chief Judge	10
______________________________	11
ZACHARY A. IVES, Judge	12