State v. Montoya

Full title: STATE OF NEW MEXICO, Plaintiff-Appellee, v. BENJAMIN MONTOYA…

Court: COURT OF APPEALS OF THE STATE OF NEW MEXICO

Date published: Jun 23, 2016

NO. 33,773 (N.M. Ct. App. Jun. 23, 2016)

Opinion

NO. 33,773

06-23-2016

STATE OF NEW MEXICO, Plaintiff-Appellee, v. BENJAMIN MONTOYA, Defendant-Appellant.

Hector H. Balderas, Attorney General Santa Fe, NM Steven H. Johnston, Assistant Attorney General Albuquerque, NM for Appellee Bennett J. Baur, Chief Public Defender J. K. Theodosia Johnson, Assistant Appellate Defender Santa Fe, NM for Appellant

BUSTAMANTE, Judge.

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Briana H. Zamora, District Judge Hector H. Balderas, Attorney General
Santa Fe, NM
Steven H. Johnston, Assistant Attorney General
Albuquerque, NM for Appellee Bennett J. Baur, Chief Public Defender
J. K. Theodosia Johnson, Assistant Appellate Defender
Santa Fe, NM for Appellant

MEMORANDUM OPINION

BUSTAMANTE, Judge. {1} This is Defendant's second appeal in this case. The details of his trial are contained in the Supreme Court's opinion in his first appeal and need not be repeated. See State v. Montoya, 2013-NMSC-020, 306 P.3d 426. The Supreme Court vacated Defendant's conviction for felony murder and remanded for entry of an amended sentence reflecting only his conviction for shooting at a motor vehicle. Id. ¶¶ 56, 65. On remand the district court imposed a sentence of fifteen years for a second degree felony resulting in the death of a human being for the offense of shooting at a motor vehicle resulting in great bodily harm (death). The district court suspended two years "on condition of probation and parole." {2} Defendant now appeals arguing that sentencing him under NMSA 1978, Section 31-18-15(A)(4) (2007, amended 2016) for his conviction under NMSA 1978, Section 30-3-8(B) (1993) constitutes double jeopardy. This is the same argument we rejected in State v. Franco, 2016-NMCA-___, ¶¶ 17-34, ___ P.3d ___ (No. 33,392, June 14, 2016. For the reasons noted in Franco, we reject it here. {3} Defendant's sentence is affirmed.

{4} IT IS SO ORDERED.

/s/ _________

MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:

/s/ _________
MICHAEL E. VIGIL, Chief Judge /s/ _________
JONATHAN B. SUTIN, Judge