Bernal v. Lytle ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 9 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
RAYMOND MICHAEL BERNAL,
Petitioner-Appellant,
v. No. 96-2280
(D.C. No. CIV 94-1294 HB/JHG)
RON LYTLE; ATTORNEY (D. N.M.)
GENERAL FOR THE STATE OF
NEW MEXICO,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before TACHA, MCKAY, and BALDOCK, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore,
appellant’s request for oral argument is denied, and this case is ordered submitted
without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Petitioner Raymond Michael Bernal appeals the district court’s dismissal of
his habeas corpus petition brought pursuant to 28 U.S.C. § 2254. 1 On appeal,
petitioner asserts that his consecutive twelve-year sentences for kidnaping and
two counts of second degree criminal sexual penetration and his consecutive
twelve-year sentences on the two counts of second degree criminal sexual
penetration violate the Double Jeopardy Clause of the Fifth Amendment. We
have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
I.
We will set forth here only those facts of this case pertinent to our
disposition. During the early morning hours of October 7, 1985, petitioner was
following his female victim on the road to Chama, New Mexico. After petitioner
repeatedly flashed his lights behind her, the victim pulled her car to the side of
the road, and rolled down her window only four inches. Petitioner approached
her car, allegedly to inquire as to whether he was on the right road. When the
1
Petitioner has moved this court for issuance of a certificate of appealability
to prosecute his appeal. Because he filed his habeas corpus petition on November
14, 1994, prior to the April 24, 1996 effective date of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), he does not need a certificate of
appealability to proceed. See United States v. Kunzman, No. 96-1310, 1997 WL
602507, at *1 n.2 (10th Cir. Oct. 1, 1997). Therefore, pursuant to the
requirements of 28 U.S.C. § 2253 in effect at the time petitioner filed in the
district court, we grant a certificate of probable cause and proceed to the merits of
petitioner’s appeal.
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victim turned to lower the volume on her car stereo, petitioner shoved his arm
into the window opening and unlocked her car door. He entered the victim’s car,
struggled with her for the car keys, which she managed to keep, and told her he
wanted to “make love to her.” He then exited the car and attempted to remove her
pants. She continued to struggle, so he hit her several times in the face and the
head and threatened to get a gun from his truck and kill her.
When he attempted to take the victim to his truck, she managed to break
away and ran into the road in an attempt to flag down an approaching car.
Petitioner caught her, shoved her into the side of her car and threw her into a mud
puddle between the vehicles. He then pulled her to his truck and continued to hit
her until she removed her pants and entered the truck. Once the victim was laying
on the seat of the truck, petitioner got on top of her and raped her by putting his
penis in her vagina. He then had oral sex with her by placing his tongue in her
vagina. Following this act, he let her get up, and when she was outside the truck
attempting to put on her clothes, he said, “Wait, I’m not done,” and shoved her
back into the truck where he raped her again by putting his penis in her vagina.
After the third rape, while the victim was attempting to return to her car,
petitioner grabbed her and asked if she had his truck keys. After ascertaining that
she did not have the keys, he let her go. She returned to a Circle K store where
she had previously asked directions of a police officer, and reported the attack.
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Following a jury trial, at which petitioner presented no defense, he was
found guilty of two counts of second degree criminal sexual penetration (with
injury) (CSP II), one count of second degree kidnaping (holding for service), one
count of false imprisonment, and one count of assault with intent to commit a
violent felony. Upon a finding of aggravating circumstances, petitioner was
sentenced to twelve years’ imprisonment on each CSP II count and on the
kidnaping count to run consecutively. He was also sentenced to four years on the
false imprisonment count and two years on the assault count to run concurrently,
for a total of thirty-six years. His convictions were affirmed on direct appeal, and
his state habeas corpus petition was denied. The New Mexico Supreme Court
denied certiorari, and petitioner filed this action in federal court.
II.
In reviewing the denial of petitioner’s federal habeas corpus petition, we
accept the district court’s findings of fact unless clearly erroneous, and we review
the court’s conclusions of law de novo. See Matthews v. Price, 83 F.3d 328, 331
(10th Cir. 1996).
The Double Jeopardy Clause of the Fifth Amendment protects against
imposing multiple punishments for the same offense. See North Carolina v.
Pearce, 395 U.S. 711, 717 (1969). “With respect to cumulative sentences
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imposed in a single trial, the Double Jeopardy Clause does no more than prevent
the sentencing court from prescribing greater punishment than the legislature
intended.” Missouri v. Hunter, 459 U.S. 359, 366 (1983). In determining
whether a defendant’s acts constitute a single criminal offense or separate
criminal offenses for double jeopardy purposes, we defer to the state court’s
interpretation of the relevant state statutes. See Brecheisen v. Mondragon, 833
F.2d 238, 240 (10th Cir. 1987).
Initially, petitioner claims that his consecutive sentences for kidnaping and
CSP II violate double jeopardy because his conduct was unitary, and there is no
evidence that the New Mexico legislature intended multiple punishments for such
unitary conduct. In recommending denial of petitioner’s claim, the magistrate
judge relied on Blockburger v. United States, 284 U.S. 299 (1932). In
Blockburger, the Supreme Court held that “where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one is whether each provision
requires proof of an additional fact which the other does not.” Id. at 304.
Interpreting the Blockburger test as “a canon of construction used to guide
courts in deciphering legislative intent,” Swafford v. State, 810 P.2d 1223, 1229
(N.M. 1991), the New Mexico Supreme Court formulated a two-part test for
determining legislative intent as to multiple punishments, see id. at 1233-34.
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First, the court must inquire as to “whether the conduct underlying the offenses is
unitary, i.e., whether the same conduct violates both statutes.” Id. at 1233. If this
question is answered in the negative, multiple punishments would not violate the
double jeopardy clause, and there is no need to proceed to the second prong of the
test. See id. at 1234. The second part of the test “asks whether the legislature
intended multiple punishments for unitary conduct.” Id.New Mexico law defines criminal sexual penetration as “the unlawful and
intentional causing of a person to engage in sexual intercourse, cunnilingus,
fellatio or anal intercourse or the causing of penetration, to any extent and with
any object, of the genital or anal openings of another, whether or not there is any
emission.” N.M. Stat. Ann. § 30-9-11(A). Here, petitioner was charged with
three counts of second degree criminal sexual penetration which, in this case, is
unlawful criminal sexual penetration committed “in the commission of any other
felony.” Id. § 30-9-11(D)(4). Kidnaping is defined as “the unlawful taking,
restraining, transporting or confining of a person, by force, intimidation or
deception with intent . . . that the victim be held to service against [her] will.” Id.
§ 30-4-1(A)(3). The New Mexico court has stated that, absent “‘special
circumstances’” requiring merger, “double jeopardy principles do not preclude
multiple punishment for both CSP II, felony, and kidnapping.” State v. Pisio, 889
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P.2d 860, 869 (N.M. Ct. App. 1994) (quoting State v. Tsethlikai, 785 P.2d 282,
285 (N.M. Ct. App. 1989)).
Relying on State v. McGuire, 795 P.2d 996, 1000 (N.M. 1990), petitioner
argues that, pursuant to the applicable criminal statutes, it is possible for every
act of criminal sexual penetration also to constitute the act of kidnaping. In so
doing, petitioner misrepresents and misapplies the New Mexico Supreme Court’s
rationale and holding in McGuire, a case also addressing a defendant’s challenge
to his consecutive sentences for kidnaping and CSP II.
In McGuire, the defendant and his brother forced their way into the
victim’s car. While his brother drove, the defendant forced the victim into the
back seat, then bound, gagged, and raped her. The pair eventually drove the
victim to an isolated spot where they murdered her. The court held that under the
evidence presented, the jury could have found an independent factual basis for the
two offenses, and therefore, the CSP II was not a lesser included offense of
kidnaping. See id. at 1001-02.
Here, it is clear that petitioner’s intent to kidnap the victim for the purpose
of sexual service was formed at the time he initially restrained her in her car,
announcing that he intended to make love to her. See McGuire, 795 P.2d at 1001
(“Once [petitioner] restrained the victim with the requisite intent to hold her for
service against her will, he had committed the crime of kidnaping . . . .”). This
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conclusion is not altered by the fact that the kidnaping continued throughout the
subsequent struggles with the victim and the episodes of CSP II. See id.;
Brecheisen, 833 F.2d at 240-41 (holding that initial acts of battery were separate
and distinct from the battery which occurred during the CSP offense).
“[P]roof of the commission of one crime by evidence that proves
commission of another may constitute double jeopardy only when, given the
elements of each crime, the one crime could not have been committed without the
commission of the other.” McGuire, 795 P.2d at 1001. Independent factual
evidence was presented at trial to prove each of the charges. The jury was at
liberty to infer that the factual evidence presented supported independent
convictions and sentences. We conclude, therefore, that, because the conduct
underlying the two crimes was not unitary, the first prong of the Swafford test has
not been established, and petitioner’s convictions and consecutive sentences for
those two crimes did not violate the constitution’s proscription against double
jeopardy.
III.
Next, petitioner argues that his constitutional right to be free from double
jeopardy was violated when he was sentenced to consecutive sentences for his
convictions on the two charges of CSP II. Under New Mexico law, “if the
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defendant commits two discrete acts violative of the same statutory offense, but
separated by sufficient indicia of distinctness, then a court may impose separate,
consecutive punishments for each offense.” Swafford, 810 P.2d at 1233; see also
Herron v. State, 805 P.2d 624, 628 (N.M. 1991) (the number of actual criminal
sexual penetrations is not dispositive of the number of violations of section
30-9-11, “absent proof that each act of penetration is in some sense distinct from
the others”). In determining whether one act is distinct from another, the court
considers:
(1) temporal proximity of penetrations (the greater the interval
between acts the greater the likelihood of separate offenses); (2)
location of the victim during each penetration (movement or
repositioning of the victim between penetrations tends to show
separate offenses); (3) existence of an intervening event; (4)
sequencing of penetrations (serial penetrations of different orifices,
as opposed to repeated penetrations of the same orifice, tend to
establish separate offenses); (5) defendant’s intent as evidenced by
his conduct and utterances; and (6) number of victims (although not
relevant here, multiple victims will likely give rise to multiple
offenses).
Id.At trial, the victim testified that once petitioner had forced her into his
truck, he raped her. Following the first vaginal penetration with his penis, he
performed oral sex on her, and then allowed her to exit the truck. While she was
attempting to put her clothes on, petitioner shouted, “Wait! I’m not done,” at
which point he forced her back into the truck and committed another penile
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penetration of her vagina. The magistrate judge found these intervening events
sufficient to support separate convictions and sentences for each offense. We
agree.
The two offenses were separated by the intervening act of petitioner’s
release of the victim. 2 Following the apparent release, petitioner forced the
victim back into the truck thereby repositioning her prior to the second penile
penetration. Petitioner’s conduct in allowing the victim to exit the truck and
begin to dress and his subsequent command to her to “Wait, I’m not done,” also
served to separate the two offenses into distinct acts. Therefore, applying the
Herron factors, we conclude that the conduct surrounding the first CSP II charge
was sufficiently distinct from the conduct surrounding the second CSP II charge
to support separate convictions and consecutive sentences. The conduct was not
unitary, and double jeopardy was not violated
2
According to the victim’s testimony at trial the two offenses were also
separated by the intervening act of oral sex. The nurse attending the victim at the
hospital following the attack testified, however, that the victim told her the
petitioner had not performed oral sex on her. Consequently, although charged
with three counts of CSP II, petitioner was only convicted of the two counts
involving penile penetration.
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The judgment of the United States District Court for the District of New
Mexico is AFFIRMED.
Entered for the Court
Deanell Reece Tacha
Circuit Judge
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