February 4, 2020- State of New Mexico v. Sarita Jones, No. A-1-CA-37558

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: ___________________	2
Filing Date: February 4, 2020	3
No. A-1-CA-37558	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
SARITA JONES,	8
Defendant-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY	10
Matthew E. Chandler, District Judge	11
Hector H. Balderas, Attorney General	12
Maris Veidemanis, Assistant Attorney General	13
Santa Fe, NM	14
for Appellee	15
Bennett J. Baur, Chief Public Defender	16
Nina Lalevic, Assistant Appellate Defender	17
Santa Fe, NM	18
for Appellant	19
Court of Appeals of New Mexico
Filed 2/4/2020 11:08 AM

OPINION	1
B. ZAMORA, Judge.	2
{1} 	At issue in this appeal is the district court’s refusal to instruct the jury on Sarita	3
Jones’s (Defendant’s) theory that she acted in defense of another against use of	4
excessive force by a police officer. We hold for the first time in New Mexico that	5
defense of another against use of excessive force by a police officer is a viable	6
defense, and we apply the standard announced in State v. Ellis, 2008-NMSC-032,	7
144 N.M. 253, 186 P.3d 245, involving self-defense claims against police officers.	8
We conclude that Defendant was entitled to a defense of another instruction against	9
the use of excessive force by police officers directed at her son. We thus reverse	10
Defendant’s convictions for battery upon a peace officer (NMSA 1978, § 30-22-24	11
(1971)), and resisting or abusing a peace officer (NMSA 1978, § 30-22-1(D) (1981))	12
and remand this case to the district court for a new trial.	13
BACKGROUND	14
{2} 	The following facts are derived from testimony and video evidence presented	15
at trial. Officers John Hong and Raphael Aguilar were dispatched to Defendant’s	16
home in reference to a domestic dispute. Officer Hong arrived first, and as he	17
approached the house, he saw the front door slam shut and heard yelling from inside	18
the home. After knocking loudly and announcing his presence, Officer Hong asked	19
Defendant and her two sons to step outside of the house for safety reasons. Although	20

2
they were resistant at first, all three eventually came outside and stood on the porch.	1
While Officer Hong was attempting to ascertain their identities and investigate the	2
situation, Defendant’s son, Corey, stepped inside the house and closed the door.	3
Almost immediately, Corey opened the door, yelled at his brother and Sergeant	4
Aguilar, who had just arrived and was walking across the front lawn. Sergeant	5
Aguilar immediately pulled his taser and ordered Corey to the ground, advancing	6
into the house as Corey retreated with his hands raised. Sergeant Aguilar knew that	7
Corey had a warrant for his arrest and intended to arrest Corey because of the	8
warrant, but he did not convey this information to Corey or Defendant at the time of	9
the arrest. However, Sergeant Aguilar testified that another officer had informed	10
Corey and Defendant a “couple weeks” prior that Corey had an outstanding warrant	11
for his arrest. As Sergeant Aguilar advanced towards Corey, Officer Hong drew his	12
taser as well and pointed it at Corey. Defendant testified that when she saw the	13
officers with tasers drawn and pointed at her son, she believed the weapons were	14
guns and attempted to place herself between the officers and her son. Defendant	15
grabbed Sergeant Aguilar’s wrist. Sergeant Aguilar fired the taser at Corey but	16
struck Defendant instead. Officer Hong’s lapel video captured the incident, all of	17
which occurred within a few minutes.	18

3
{3} 	At trial the district court denied Defendant’s request for a defense of another	1
jury instruction. Defendant was found guilty of battery upon a peace officer and	2
resisting or abusing an officer. Defendant appeals her convictions.	3
DISCUSSION	4
I. 	The District Court Erred in Denying Defendant’s Defense of Another	5
Instruction	6
{4} 	At the outset, we note that the district court denied Defendant’s request for a	7
defense of another jury instruction finding it was not a viable defense because the	8
“law does not allow” for defending another against excessive force by a police	9
officer. We disagree and hold that defense of another against use of excessive force	10
by a police officer is a viable defense as set forth below.	11
A. 	Defense of Another Against Excessive Police Force	12
{5} 	Defendant argues that under the facts and circumstances of this case she was	13
entitled to a defense of another instruction to the same extent that Corey would have	14
been entitled to a self-defense instruction. The State agrees on the law, specifying	15
that the controlling case on use of self-defense against a police officer, Ellis, 2008-	16
NMSC-032, should apply when a defense of another instruction is requested in the	17
context of alleged excessive police force.1
18
1 Although Defendant contends that the standard used in Ellis is inappropriate
because it is based on a civil standard, she concedes that this Court is bound by our
Supreme Court’s decision in Ellis and “we do not have the authority to overrule it.”

4
{6} 	We agree with the parties that controlling case law on use of self-defense	1
against a police officer applies with full force in this case, involving defense of	2
another. New Mexico “[c]ase law and commentary treat ‘defense of another’ and	3
‘self-defense’ as virtually identical for purposes of analysis.” State v. Sandoval,	4
2011-NMSC-022, ¶ 16, 150 N.M. 224, 258 P.3d 1016 (internal quotation marks and	5
citation omitted); State v. Gallegos, 2001-NMCA-021, ¶ 7, 130 N.M. 221, 22 P.3d	6
689 (using “self-defense” interchangeably with “defense of another”); State v.	7
Duarte, 1996-NMCA-038, ¶ 3, 121 N.M. 553, 915 P.2d 309 (relying on self-defense	8
theory to analyze instructions for defense of another); see also UJI 14-5182 NMRA	9
comm. cmt. (referring specifically to UJI 14-5181 NMRA (self-defense) in the	10
defense of another instruction); cf. NMSA 1978, § 30-2-7 (1963) (distinguishing	11
justifiable homicide without differentiating between defense of self and defense of	12
family or others, in certain circumstances). Because we analyze self-defense and	13
defense of another claims similarly, we see no reason, and the parties have provided	14
us none, why the defense of another defense would be unavailable to a defendant	15
when an officer uses excessive force. See State v. Orosco, 1982-NMCA-181, ¶ 10,	16
99 N.M. 180, 655 P.2d 1024 (acknowledging that the defendant had successfully	17
raised defense of another in response to a misdemeanor charge for resisting and	18
Romero v. Laidlaw Transit Servs., Inc., 2015-NMCA-107, ¶ 15, 357 P.3d 463. Thus,
we do not address this argument.

5
abusing an officer based on the defendant’s action in protecting his father, and that	1
this identical defense could be used to defeat the battery upon a police officer charge	2
arising from the same incident). We thus look to New Mexico law on self-defense	3
against the use of excessive force by a police officer to determine the availability of	4
the defense of another defense in this context.	5
{7} 	In New Mexico, a person has a limited right of self-defense against a police	6
officer using excessive force. See State v. Kraul, 1977-NMCA-032, ¶ 29, 90 N.M.	7
314, 563 P.2d 108 (holding that a person has a limited right “to defend oneself from	8
a police officer[,]” regardless of “whether the attempted arrest is lawful or	9
unlawful”). In Ellis, our Supreme Court outlined the standard to apply in cases	10
involving self-defense claims against police officers. See generally 2008-NMSC-	11
032, ¶¶ 14-42. The Court concluded that the right to self-defense against a police	12
officer is not absolute; it does not exist if the officer is “using necessary force to	13
effect an arrest.” Id. ¶ 16 (internal quotation marks and citation omitted). However,	14
if “some evidence of excessive force” is presented, an “instruction on self-defense	15
is required.” Id. (internal quotation marks and citation omitted). Given the similar	16
treatment of self-defense and defense of another by our courts, we apply the Ellis	17
standard, as the parties have done, to determine whether a jury should be instructed	18

6
that a defendant was defending another against the use of excessive force by a police	1
officer.2
2
B. 	Application of Ellis Standard in Defendant’s Case	3
{8} 	Having concluded that the Ellis standard applies in determining whether a jury	4
should be instructed on defense of another, we apply it to the facts of this case. The	5
propriety of jury instructions is a mixed question of law and fact that we review de	6
novo. State v. Salazar, 1997-NMSC-044, ¶ 49, 123 N.M. 778, 945 P.2d 996. “When	7
evidence at trial supports the giving of an instruction on a defendant’s theory of the	8
2 Our conclusion is reinforced by similar holdings in other jurisdictions that
have recognized the right of defense of another against the use of excessive force by
a police officer. See, e.g., People v. Bailey, 439 N.E.2d 4, 9 (Ill. App. Ct. 1982)
(recognizing “defense of another against excessive force in the effectuation of an
arrest”); Commonwealth v. Miranda, 928 N.E.2d 664, 668-69 (Mass. App. Ct. 2010)
(holding that the defendant was entitled to an instruction on defense of another on
her interaction with a state trooper engaged in a scuffle with a third party); Batson
v. State, 941 P.2d 478, 483 (Nev. 1997) (“hold[ing] that a person may defend another
only where that person has witnessed a police officer’s unlawful and excessive use
of force, and only where the individual being ‘rescued’ is facing imminent and
serious bodily harm at the hands of the police officer”); State v. Gelinas, 417 A.2d
1381, 1386 (R.I. 1980) (“[W]e hereby adopt the rule that one who comes to the aid
of an arrestee must do so at his own peril and should be excused only when the
individual would himself be justified in defending himself from the use of excessive
force by the arresting officer.”); Letson v. State, 805 S.W.2d 801, 805 (Tex. App.
1990) (providing that defense of another against a police officer requires “evidence
that a police officer was using or attempting to use excessive force”). The
jurisdictions that have recognized defense of another against excessive police force
are “split in terms of the circumstances under which an intervener may use force in
defending another from excessive police force.” Kindaka Sanders, A Reason to
Resist: The Use of Deadly Force in Aiding Victims of Unlawful Police Aggression,
52 San Diego L. Rev. 695, 732 (2015).

7
case, failure to so instruct is reversible error.” See State v. Brown, 1996-NMSC-073,	1
¶ 34, 122 N.M. 724, 931 P.2d 69. “We view the evidence in the light most favorable	2
to the giving of the requested instruction.” State v. Hill, 2001-NMCA-094, ¶ 5, 131	3
N.M. 195, 34 P.3d 139. If a defendant presents any evidence, even slight, to support	4
a jury instruction, he is entitled to the instruction. Id. ¶ 8.	5
{9} 	A defendant is only entitled to a defense of another jury instruction if an	6
officer used force against another that was unreasonable and unnecessary. See Ellis,	7
2008-NMSC-032, ¶ 17. “Generally, the question of the reasonableness of the actions	8
of the officer is a question of fact for the jury.” Id. (alteration, omission, internal	9
quotation marks, and citation omitted). However, a court may determine as a matter	10
of law that reasonable minds of the jurors could not differ as to whether the officer	11
used excessive force. Id. To make this determination, the court must evaluate	12
whether an objectively reasonable officer on the scene would have acted similarly	13
in light of the facts and circumstances of the case, including the severity of the crime	14
at issue, whether the suspect poses a threat to the safety of others, and whether the	15
suspect is actively resisting arrest or attempting to evade arrest by flight. Id. ¶ 26.	16
The objective standard, based on a “reasonable officer’s opinion about the use of	17
force,” takes into consideration the “fact that police officers are often forced to make	18
split-second judgments—in circumstances that are tense, uncertain, and rapidly	19
evolving—about the amount of force that is necessary in a particular situation.” Id.	20

8
¶¶ 26, 28 (internal quotation marks and citation omitted). “The [s]tate must prove to	1
the jury that the officer met an objectively reasonable standard in employing force	2
against the defendant.” Id. ¶ 31.	3
{10} 	Applying the Ellis standard to the facts here, we conclude that reasonable	4
minds could differ as to whether the officers used excessive force against Corey. We	5
cannot evaluate the severity of the crime that was the basis for the arrest warrant	6
because the State did not present any evidence as to the nature of the original crime,	7
let alone whether the officers had reason to be wary for his safety. And, the State	8
only put on evidence that the officers were called because of domestic issues and	9
yelling within the home. Likewise there was insufficient evidence that Corey posed	10
a threat to the officers. While unquestionably Corey was arguing loudly with his	11
family and screaming profanities, both officers testified that Corey never threatened	12
anyone. Indeed, Sergeant Aguilar testified that even though Corey was difficult to	13
deal with, Corey was not threatening during this incident and was never threatening	14
during past encounters. Although Officer Hong testified that he was somewhat	15
concerned that Corey could have retrieved a weapon when he briefly went inside	16
and closed the door, he never testified to acting on this concern. Finally, at the time	17
Sergeant Aguilar drew and pointed his taser at Corey and advanced on him, Corey	18
had not yet resisted or evaded arrest. Based on these facts, we conclude that the	19

9
reasonableness of the officers’ actions remained a “question of fact for the jury.”	1
Ellis, 2008-NMSC-032, ¶ 17 (internal quotation marks and citation omitted).	2
{11} 	The State argues that like the defendant in Ellis, Corey “repeatedly disobeyed	3
the [officer’s] commands, . . . actively resisted the [officer’s] attempts to regain	4
control of the situation, [and] flaunted the [officer’s] authority[.]” Id. ¶ 40. We	5
disagree with this comparison. In Ellis, the defendant was “both physically and	6
verbally hostile” towards the police officer. Id. ¶ 37. The defendant was aggressively	7
approaching the officer, and the defendant “was aware that his actions affected” the	8
officer because the police officer “was shaking during the encounter[.]” 	Id.	9
¶ 38 (internal quotation marks omitted). Here, Corey did not approach Sergeant	10
Aguilar and retreated with his hands raised when the officer drew his taser and	11
advanced towards him. While Corey was clearly being uncooperative with Officer	12
Hong, Sergeant Aguilar gave Corey mere seconds to comply with his commands.	13
Finally, the video indicates that Officer Hong was on the path to gaining control of	14
the situation before Sergeant Aguilar arrived because the other members of the	15
household had calmed down and were communicating with him. Defendant’s case	16
is distinguishable from Ellis.	17
{12} 	For the reasons stated above, we conclude the district court erred by failing to	18
instruct the jury on defense of another against the use of excessive force by a police	19
officer.	20

10
II. 	Double Jeopardy Challenge	1
{13} 	Defendant argues that her convictions for battery upon a peace officer and	2
resisting or abusing a peace officer violate the double jeopardy guarantee against	3
multiple punishments for the same conduct and that the district court’s “merger” of	4
the two offenses was insufficient to remedy the violation. The State concedes this	5
error. Because this issue is likely to arise again on retrial if Defendant is convicted	6
of both offenses, we briefly address Defendant’s claim. If the State relies on unitary	7
conduct for both convictions, Defendant’s convictions for battery upon a peace	8
officer, § 30-22-24, and resisting or abusing a peace officer, § 30-22-1(D), would	9
violate double jeopardy. See State v. Ford, 2007-NMCA-052, ¶¶ 18-23, 141 N.M.	10
512, 157 P.3d 77 (concluding convictions, based on unitary conduct, for battery upon	11
a peace officer, § 30-22-24, and resisting or abusing a peace officer, § 30-22-1(D),	12
violate double jeopardy because resisting or abusing a peace officer is a lesser-	13
included offense of battery upon a peace officer). The appropriate remedy for such	14
a double jeopardy violation is vacation of the lesser offense of resisting or abusing a	15
peace officer. See State v. Santillanes, 2001-NMSC-018, ¶ 28, 130 N.M. 464, 27	16
P.3d 456 (“[T]he general rule requires that the lesser offense be vacated in the event	17
of impermissible multiple punishments.” (internal quotation marks and citation	18
omitted)).	19

11
CONCLUSION	1
{14} 	For the foregoing reasons, we reverse Defendant’s convictions for battery	2
upon a peace officer and resisting or abusing a peace officer and remand for a new	3
trial consistent with this opinion.	4
{15} 	IT IS SO ORDERED.	5
_____________________________	6
BRIANA H. ZAMORA, Judge	7
WE CONCUR:	8
___________________________	9
JENNIFER L. ATTREP, Judge	10
___________________________	11
MEGAN P. DUFFY, Judge	12