In applying the fundamental error analysis to deficient jury instructions,we are required to reverse when the misinstruction leaves us with “no way of knowing whether the conviction was or was not based on the lack of the essential element.” State v. Swick, 2012–NMSC–018, ¶¶ 46, 58, 279 P.3d 747 (holding that it was fundamental error to fail to instruct on the second-degree murder element of lack of sufficient provocation). In this case, it is highly likely that the felony murder guilty verdict was based on the lack of an essential element in the definitional jury instruction.
Defendant's double jeopardy challenges present a constitutional question of law, which we review de novo. State v. Swick , 2012-NMSC-018, ¶ 10, 279 P.3d 747. {12} For double-description claims, this Court follows the two-part test identified in Swafford v. State , 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223.
{18} This Court modified the original strict elements analysis "to be more in line with [the subsequent development of] United States Supreme Court precedent" because the proper analysis relies on the elements of the state's legal theory of how the statutes were violated. State v. Swick , 2012-NMSC-018, ¶¶ 21-27, 279 P.3d 747. Therefore, we consider the state's legal theory of the case applied to the statutes at issue to determine the elements of each offense the defendant committed.
Defendant asserted that, under the facts and instructions given to the jury, imposing a sentence for both convictions would result in multiple punishments for the same offense in violation of the Fifth Amendment. In support of her argument, Defendant referred the district court to State v. Montoya, 2013-NMSC-020, 306 P.3d 426 ; State v. Swick, 2012-NMSC-018, 279 P.3d 747 ; and Swafford v. State, 1991-NMSC-043, 112 N.M. 3, 810 P.2d 1223. The State responded that in its view there was no double jeopardy prohibition to imposing a sentence for each conviction to be served consecutively.
“When considering a defendant's requested instructions, we view the evidence in the light most favorable to the giving of the requested instructions.” State v. Swick, 2012–NMSC–018, ¶ 60, 279 P.3d 747 (alteration, internal quotation marks, and citations omitted). “For a defendant to be entitled to a self-defense instruction ... there need be only enough evidence to raise a reasonable doubt in the mind of a juror about whether the defendant lawfully acted in self-defense.
"In analyzing legislative intent, we first look to the language of the statute itself." State v. Swick , 2012-NMSC-018, ¶ 11, 279 P.3d 747. "If the statute does not clearly prescribe multiple punishments, then the rule of statutory construction established in Blockburger v. United States , 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 ... (1932) applies."
"A double jeopardy challenge is a constitutional question of law[,] which we review de novo." State v. Swick (Swick II ), 2012-NMSC-018, ¶ 10, 279 P.3d 747. "The Fifth Amendment of the United States Constitution[,] ... made applicable to New Mexico by the Fourteenth Amendment[,]" prohibits double jeopardy and "functions in part to protect a criminal defendant against multiple punishments for the same offense."
{21} When unitary conduct is the basis for multiple convictions, we must attempt to determine whether "the Legislature [ ] inten[ded] to punish the crimes separately." State v. Swick , 2012-NMSC-018, ¶ 11, 279 P.3d 747. "In analyzing legislative intent, we first look to the language of the statute itself."
If the unit of prosecution is not clear, we proceed to the second step to "determine whether [the] defendant's acts are separated by sufficient indicia of distinctness to justify multiple punishments." State v. Swick , 2012-NMSC-018, ¶ 33, 279 P.3d 747 (internal quotation marks and citation omitted). In making this determination, we look at a number of factors, including: "(1) temporal proximity of the acts; (2) location of the victim(s) during each act; (3) existence of an intervening event; (4) sequencing of acts; (5) [the] defendant's intent as evidenced by his conduct and utterances; and (6) the number of victims."
Accordingly, "the application of Blockburger should not be so mechanical that it is enough for two statutes to have different elements." State v. Swick , 2012–NMSC–018, ¶ 21, 279 P.3d 747. That is, we no longer apply a strict elements test in the abstract; rather, we look to the state's trial theory to identify the specific criminal cause of action for which the defendant was convicted, filling in the case-specific meaning of generic terms in the statute when necessary.