Rudolfo v. Steward

Office of the Director
08:40:12 2023.08.16 New Mexico
Compilation
'00'06- Commission
2020.005.30514
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2023-NMSC-013

Filing Date: June 22, 2023

No. S-1-SC-38177

MARIO RUDOLFO,

Petitioner,

v.

ROBERT STEWARD, LCCC, Warden,
VINCENT HORTON, FCCF, Warden,

Respondents.

APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
Cindy M. Mercer, District Judge

Burgess & Porter Law, LLC
Barrett G. Porter
Albuquerque, NM

for Petitioner

Hector H. Balderas, Attorney General
Walter Hart, Assistant Attorney General
Santa Fe, NM

for Respondents

OPINION

VIGIL, Justice.

{1} A jury convicted Petitioner Mario Rudolfo of first-degree murder under a general
verdict. The jury instructions contained two alternative theories for the jury to use as a
basis for the first-degree murder conviction: (1) felony murder predicated on shooting at
or from a motor vehicle and (2) willful and deliberate murder. Twelve years after
Petitioner’s conviction, this Court issued its opinion in State v. Marquez, 2016-NMSC-
025, ¶ 2, 376 P.3d 815, holding that “the crime of shooting at or from a motor vehicle
may not serve as the predicate felony in support of a felony murder charge.” Now,
Petitioner argues that the Marquez holding applies retroactively and asserts that his
conviction for first-degree murder must be vacated.

{2} We hold that Marquez announced a new substantive rule which applies
retroactively. As a result, we set aside the district court’s denial of Petitioner’s writ of
habeas corpus, vacate Petitioner’s first-degree murder conviction, and remand the case
for a new trial on first-degree murder.

I. BACKGROUND

{3} In addition to his conviction for one count of first-degree murder, the jury also
convicted Petitioner of attempted murder, shooting at or from a motor vehicle, and
tampering with evidence. The jury’s general verdict did not indicate whether Petitioner’s
first-degree murder conviction was based upon the theory of felony murder or willful and
deliberate murder.

{4} On direct appeal, Petitioner challenged his convictions alleging a double jeopardy
violation, that the district court improperly failed to instruct the jury on self-defense, and
that there was insufficient evidence to support Petitioner’s tampering with evidence
conviction. State v. Rudolfo, 2008-NMSC-036, ¶ 2, 144 N.M. 305, 187 P.3d 170. This
Court affirmed his convictions for first-degree murder, attempted first-degree murder,
and tampering with the evidence. However, we vacated Petitioner’s conviction for
shooting at or from a motor vehicle and held that the alternative theory of felony murder
could subject Petitioner to a double jeopardy violation. Id. ¶¶ 3, 10-12.

{5} Petitioner then filed a petition for writ of habeas corpus in the district court,
arguing that the holding from Marquez, 2016-NMSC-025, ¶ 23, is substantive, that it
applies retroactively, and that this first-degree murder conviction should be converted to
second-degree murder. The district court concluded that Marquez should not be applied
retroactively because the case did not announce a substantive rule “but that it simply
clarified the procedure for determining whether felonies qualify as predicate felonies.”
The district court denied Petitioner’s writ of habeas corpus petition.

{6} Thereafter, Petitioner petitioned this Court for a writ of certiorari to review the
district court’s denial of his petition for writ of habeas corpus. See Rule 5-802(N)(2)
NMRA; Rule 12-501 NMRA. We granted certiorari to address whether Marquez is
afforded retroactive effect and to determine the implications of our decision on
Petitioner’s first-degree murder conviction.

II. DISCUSSION

{7} “It is within the inherent power of this Court to give its decision prospective or
retroactive application without offending constitutional principles.” Kersey v. Hatch,
2010-NMSC-020, ¶ 14, 148 N.M. 381, 237 P.3d 683 (internal quotation marks and
citation omitted). “Retroactivity is a legal question, which we review de novo.” Id.
(internal quotation marks and citation omitted).
A. Threshold Requirements for Retroactivity Analysis

{8} For new case law to apply retroactively, a judicial opinion must have announced
a new rule after a defendant’s criminal conviction had been finalized. Id. ¶ 15. “A case is
finalized when ‘a judgment of conviction has been rendered, the availability of appeal
exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari
finally denied.’” State v. Nunez, 2000-NMSC-013, ¶ 114, 129 N.M. 63, 2 P.3d 264
(quoting Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987)). Here, Petitioner’s
conviction for first-degree murder was finalized in 2008 following his direct appeal. See
Rudolfo, 2008-NMSC-036, ¶ 3.

{9} The parties and the district court agree that Marquez announced a new rule. An
appellate opinion “need not overrule a prior decision in order to qualify as new.” Kersey,
2010-NMSC-020, ¶ 18 (internal quotation marks and citation omitted). “Rather, an
opinion announces a new rule if it breaks new ground, imposes new obligations on the
government, or was not dictated by precedent.” Id.

{10} In New Mexico, our laws “elevate second-degree murder to [first-degree murder]
when the murder occurs during the commission of a dangerous felony.” Campos v.
Bravo, 2007-NMSC-021, ¶ 9, 141 N.M. 801, 161 P.3d 846; NMSA 1978, § 30-2-1(A)(2)
(1994). Prior to Marquez, the predicate felony for felony murder had to “be independent
of or collateral to the homicide.” See State v. Harrison, 1977-NMSC-038, ¶ 9, 90 N.M.
439, 564 P.2d 1321, modified on other grounds by State v. Ortega, 1991-NMSC-084, ¶
26, 112 N.M. 554, 817 P.2d 1196. Following this rule, this Court employed a strict-
elements test to determine whether a particular felony was independent of or collateral
to a homicide. State v. Duffy, 1998-NMSC-014, ¶¶ 23-24, 126 N.M. 132, 967 P.2d 807,
overruled on other grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d
110. “Under this test, an offense [was] deemed to be a lesser-included offense of
another only if all of the statutory elements of the lesser offense [were] completely
embodied within the statutory elements of the greater offense such that it would [have
been] impossible ever to commit the greater offense without also committing the lesser
offense.” Id. ¶ 24 (internal quotation marks and citation omitted).

{11} In Marquez, this Court announced and applied a new test—the felonious purpose
test—to determine whether an underlying felony is an appropriate collateral felony to
support a charge of felony murder. 2016-NMSC-025, ¶ 19. The Marquez Court
explained that under the felonious-purpose test, “a dangerous felony may only serve as
a predicate to felony murder when the elements of any form of the predicate felony—
looked at in the abstract—require a felonious purpose independent from the purpose of
endangering the physical health of the victim.” Id. ¶ 24. “In other words, there must be a
felonious purpose that is independent from the purpose of endangering the physical
health of the victim before the dangerous felony can be used to elevate a second-
degree murder to a first-degree murder.” Id.

{12} To reach its ultimate conclusion—that shooting at or from a motor vehicle cannot
serve as the predicate felony for felony murder—the Marquez Court outlined the
relationship between second-degree murder and the crime of battery. Id. ¶¶ 17, 18. The
Marquez Court explained that battery “is the prototypical lesser-included offense of
murder that fails to meet the collateral-felony requirement,” id. ¶ 17, because “all or
virtually all murders include the commission of some underlying felony in the nature of
an assault or battery.” Id. ¶ 16. The Marquez Court determined that “shooting at or from
a motor vehicle ‘is an elevated form of aggravated battery’ and thus cannot be used as
a predicate for felony murder.” Id. ¶ 23 (citation omitted). The Court reasoned that it “did
not have a felonious purpose independent from the purpose of endangering the physical
health of the victim because shooting from a motor vehicle must be accomplished with
reckless disregard for the safety of a person.” Id. ¶ 25. Thus, shooting at or from a motor
vehicle cannot serve as the predicate felony for felony murder. Id.

{13} Therefore, because Marquez broke new ground in announcing the felonious-
purpose test for determining an applicable predicate felony for felony murder and
because Petitioner’s conviction was finalized before Marquez was decided, the
threshold requirements for retroactivity are satisfied.

B. Retroactive Application of Marquez

{14} In Teague v. Lane, 489 U.S. 288, 299-313 (1989), the United States Supreme
Court clarified how retroactivity should be determined by a federal court on collateral
review, such as on a writ of habeas corpus. Under United States Supreme Court
precedent, new rules are not generally applied retroactively to cases on collateral
review. See Mackey v. United States, 401 U.S. 667, 673-74 (1971). However, the
Teague Court announced two exceptions to the general rule of nonretroactivity. Teague,
489 U.S. at 305-10. “First, a new rule should be applied retroactively if it places certain
kinds of primary, private individual conduct beyond the power of the criminal law-making
authority to proscribe. Second, a new rule should be applied retroactively if it requires
the observance of those procedures that are implicit in the concept of ordered liberty.”
Id. at 307 (ellipsis, internal quotation marks, and citation omitted).

{15} We adopted the Teague standard in Kersey. 2010-NMSC-020, ¶ 25 (“[T]he
Teague standard, which focuses on the function and purpose of the writ of habeas
corpus, is the proper standard by which to determine whether new rules should apply
retroactively to habeas corpus proceedings.”). Therefore, under New Mexico law, “new
rules generally should not be afforded retroactive effect unless (1) the rule is
substantive in nature, in that it alters the range of conduct or the class of persons that
the law punishes, or (2) although procedural in nature, the rule announces a watershed
rule of criminal procedure.” Kersey, 2010-NMSC-020, ¶ 25 (internal quotation marks
and citation omitted); see also Schriro v. Summerlin, 542 U.S. 348, 351-53 (2004)
(stating that a retroactively applicable new substantive rule “includes decisions that
narrow the scope of a criminal statute by interpreting its terms”).

{16} On the other hand, procedural rules “regulate only the manner of determining the
defendant’s culpability” and may not alter “the range of permissible methods for
determining whether a defendant’s conduct is punishable.” Schriro, 542 U.S. at 353.
Procedural rules “generally do not apply retroactively [and] do not produce a class of
persons convicted of conduct the law does not make criminal, but merely raise the
possibility that someone convicted with use of the invalidated procedure might have
been acquitted otherwise.” Id. at 352.

{17} In this case, we address only the first Teague exception adopted by Kersey
because the parties do not argue that Marquez announced a watershed rule of criminal
procedure. Petitioner argues that Marquez applies retroactively because its holding
altered the range of conduct that felony murder punishes by changing the scope of the
elements of the offense. Respondents disagree, arguing that Marquez did not change
the substantive law regarding felony murder. Instead, Respondents contend that
Marquez only announced a procedural methodology for determining whether a
dangerous felony is a lesser-included offense of second-degree murder.

{18} Generally, a felony with a purpose to “injure or kill” may not serve as a predicate
felony in a felony murder conviction. Marquez, 2016-NMSC-025, ¶¶ 19, 24-25. Although
the elements of felony murder remain the same, Marquez eliminated the possibility of
using the crime of shooting at or from a motor vehicle as a predicate felony. Id. ¶¶ 2, 19.
Marquez therefore narrowed the range of punishable conduct that could support a
felony murder conviction. We hold that this is a substantive rule and thus conclude
Marquez is afforded retroactive effect. Accordingly, we evaluate the legal consequences
of this conclusion on Petitioner’s conviction.

C. Effect on Petitioner’s Conviction

{19} It is well settled that “a conviction under a general verdict must be reversed
where it is based on more than one legal theory and at least one of those theories is
legally, as opposed to factually, invalid.” State v. Mailman, 2010-NMSC-036, ¶ 12, 148
N.M. 702, 242 P.3d 269. Petitioner argues that because the verdict and instructions
were general and did not indicate which theory the jury used to reach its conclusion, the
Court must conclude that the jury could have made the finding of guilt based upon
felony murder.

{20} This Court has previously examined whether a conviction under a general verdict
should be vacated. Campos, 2007-NMSC-021. In Campos, the defendant challenged
his felony murder conviction because it was unclear whether the jury used aggravated
battery or aggravated burglary as the predicate felony for his felony murder conviction.
Id. ¶ 1. The Campos Court noted that the defendant’s “conviction of felony murder
would be legally void if the jury used aggravated battery with a deadly weapon as the
predicate felony” because “it is not possible to commit second-degree murder without
also committing some form of aggravated battery.” Id. ¶ 12. For that reason, under a
fundamental-error analysis, the Campos Court concluded, “Error occurred at [the
defendant]’s trial because one of the alternative bases for his conviction was legally
inadequate.” Id. ¶ 17.

{21} The Campos Court reaffirmed that “‘a conviction under a general verdict must be
reversed if one of the alternative bases of conviction is legally inadequate.’” Campos,
2007-NMSC-021, ¶ 19 (quoting State v. Olguin, 1995-NMSC-077, ¶ 2, 120 N.M. 740,
906 P.2d 731 (relying on Yates v. United States, 354 U.S. 298, 326-27 (1957),
overruled on other grounds by Burks v. United States, 437 U.S. 1, 2, 18 (1978))).

{22} In addition, the Campos Court established that a reviewing court must evaluate
whether it is “impossible to tell which ground the jury selected” when returning the guilty
verdict. Id. (internal quotation marks and citation omitted). The Campos Court ultimately
found fundamental error occurred at the defendant’s trial and granted him a writ of
habeas corpus. Id. ¶¶ 17, 22.

{23} In the present case, by applying Marquez retroactively, we have invalidated the
theory of felony murder predicated on shooting at or from a motor vehicle. Because the
parties provided the jury with a general verdict, we cannot conclusively determine
whether the jury relied on an invalid theory of felony murder when convicting Petitioner
of first-degree murder. In other words, it is impossible for us to determine which theory
of first-degree murder the jury selected. See Campos, 2007-NMSC-021, ¶ 19.

{24} Petitioner asks this Court to reduce his conviction to second-degree murder
because “it is reasonable to assume that the jury indeed relied upon a felony murder
theory of the case for rendering their verdict.” Respondents in turn ask this Court to
remand to the district court for a retrial on willful and deliberate murder. We note that the
parties do not provide authority supporting their arguments regarding the proper
remedy.

{25} For guidance, we look to Campos, 2007-NMSC-021, ¶ 17. The Campos Court
noted that if the defendant had properly preserved the predicate felony issue by raising
it on direct appeal rather than for the first time in a habeas petition—where the jury had
not indicated which predicate felony was used to convict the defendant, id. ¶ 1—the
Campos Court “would undoubtedly have vacated [the defendant’s] conviction and
remanded for a new trial.” Id. ¶ 17.

{26} We also look to State v. Downey, in which this Court addressed “whether [the
d]efendant [was] entitled to a new trial, or whether his conviction may be affirmed on the
alternate theory of culpability under which the case was submitted to the jury.” 2008-
NMSC-061, ¶ 40, 145 N.M. 232, 195 P.3d 1244. Based on the prejudicial admission of
improper expert witness testimony, the Downey Court concluded “that the general
verdict must be reversed because it may have rested on an invalid legal basis.”
Accordingly, the Downey Court vacated the defendant’s conviction and remanded the
case to the trial court for a new trial. Id.

{27} Therefore, because the theory of felony murder predicated on shooting at or from
a motor vehicle is legally invalid, we vacate Petitioner’s first-degree murder conviction
under the general verdict and remand to the district court for a new trial.

III. CONCLUSION

{28} Marquez announced a substantive rule of law by narrowing the scope of
punishable conduct underlying the crime of felony murder. See Marquez, 2016-NMSC-
025, ¶¶ 2, 19. Petitioner’s first-degree murder conviction must be vacated because it is
impossible to determine whether the general verdict is based on the legally invalid
theory of felony murder or on willful and deliberate murder. As a result, we set aside the
district court’s denial of Petitioner’s habeas petition and remand this case for a new trial
on the first-degree murder charge. 1

{29} IT IS SO ORDERED.

MICHAEL E. VIGIL, Justice

WE CONCUR:

C. SHANNON BACON, Chief Justice

DAVID K. THOMSON, Justice

JULIE J. VARGAS, Justice

BRIANA H. ZAMORA, Justice

1This opinion does not disturb Petitioner’s convictions for attempted murder and shooting at or from a
motor vehicle.