State v. Cordova ( 2018 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. A-1-CA-35212
5 DAVID CORDOVA,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Cristina T. Jaramillo, District Judge
9 Hector H. Balderas, Attorney General
10 Maris Veidemanis, Assistant Attorney General
11 Santa Fe, NM
12 for Appellee
13 L. Helen Bennett, P.C.
14 L. Helen Bennett
15 Albuquerque, NM
16 for Appellant
17 MEMORANDUM OPINION
18 VIGIL, Judge.
1 {1} This matter comes before us on remand from the Supreme Court to consider our
2 memorandum opinion filed herein on March 14, 2017, in light of its disposition in
3 State v. Baroz, 2017-NMSC-030, 404 P.3d 769. See Order at *1-2, State v. Cordova,
4 No. S-1-SC-36354, (December 18, 2017). We withdraw our memorandum opinion
5 filed herein on March 14, 2017, and substitute the following in its stead.
6 {2} Defendant David Cordova appeals his conviction for armed robbery, contrary
7 to NMSA 1978, Section 30-16-2 (1973), that was enhanced, pursuant to NMSA 1978,
8 Section 31-18-16(A) (1993), because he used a firearm in the commission of the
9 offense. Defendant was charged with taking money from his victim, intending to
10 permanently deprive her of the same while “armed with a firearm, an instrument or
11 object, which when used as a weapon, could cause death or great bodily harm[.]” In
12 order to convict him of that offense, the jury was instructed that it must find that he
13 “was armed with a gun, an instrument or object which, when used as a weapon, could
14 cause death or serious injury[.]” With regard to the firearm enhancement, the jury was
15 instructed to “determine if the crime was committed with the use of a firearm and
16 report [its] determination” on a special verdict form. See § 31-18-16(A)(1) (“When
17 a separate finding of fact by the court or jury shows that a firearm was used in the
18 commission of a noncapital felony, the basic sentence of imprisonment prescribed for
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1 the offense . . . shall be increased by one year, and the sentence imposed by this
2 subsection shall be the first year served and shall not be suspended or deferred[.]”).
3 {3} On appeal, Defendant asserts, as his sole issue, that adding the firearm
4 enhancement to the armed robbery conviction violated his right to be free from
5 multiple punishments in violation of the Double Jeopardy Clause of the Fifth
6 Amendment. Following the analysis mandated by Swafford v. State, 1991-NMSC-043,
7 112 N.M. 3, 810 P.2d 1223, our Supreme Court in Baroz rejected the defendant’s
8 argument that imposition of the firearm enhancement violates double jeopardy where
9 the use of a firearm is an element of the underlying conviction of aggravated assault
10 with a deadly weapon. Baroz, 2017-NMSC-030, ¶¶ 20-27. Concluding that the
11 reasoning of Baroz applies to Defendant’s sentence for armed robbery, we reject
12 Defendant’s argument and affirm.
13 {4} IT IS SO ORDERED.
14 __________________________________
15 MICHAEL E. VIGIL, Judge
16 WE CONCUR:
17 _______________________________
18 LINDA M. VANZI, Chief Judge
19 _______________________________
20 STEPHEN G. FRENCH, Judge
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