Background - At an Española Allsup’s, Frankie L. Garduño (defendant) exited a pickup and pointed a gun at Michelle Radosevich and Cody Tapie, demanded money, took Tapie’s wallet and sunglasses, and struck Radosevich with the gun multiple times until patrons subdued him. - Defendant was charged and convicted by jury of attempted armed robbery (with firearm enhancement), aggravated battery with a deadly weapon, conspiracy/armed robbery-related counts, and felon-in-possession, among others. - The district court merged certain alternative counts but did not vacate the merged convictions; it imposed a one-year statutory firearm enhancement under NMSA 31-18-16(A) on the attempted armed-robbery sentence. - On appeal Defendant raised double jeopardy (multiple convictions and the firearm enhancement), argued the felon-in-possession count should have been severed, challenged exclusion of evidence of alleged law-enforcement bias, and contested sufficiency of the evidence for conspiracy and other counts. - The Court of Appeals affirmed the convictions generally, but held the firearm enhancement violated double jeopardy and ordered resentencing; it also ordered vacatur of two merged alternative-count convictions that the district court had not vacated. ### Issues | Issue | State's Argument | Garduño's Argument | Held | |---|---:|---|---| | Whether attempted armed robbery and aggravated battery convictions violate double jeopardy as multiplicitous (unitary conduct) | The acts were sufficiently distinct (time, nature, objectives); independent factual bases existed for each offense | The acts were one continuous series (single purpose, same time/frame) and thus unitary | No double jeopardy violation; conduct not unitary — jury could reasonably infer independent factual bases, so separate convictions allowed | | Whether the statutory 1-year firearm enhancement to attempted armed robbery violates double jeopardy | Enhancement proper under statute | Enhancement imposes multiple punishments without additional factual elements and thus violates double jeopardy (relies on Branch) | Enhancement vacated: under Branch the enhancement violated double jeopardy; remand for resentencing without the enhancement | | Whether the district court erred in denying severance of the felon-in-possession charge (prejudice) | Joinder appropriate; evidence of felon status was limited and handled by stipulation and limiting instruction, so no prejudice | Joinder prejudicial; denial untimely and court failed to make cross-admissibility findings | No abuse of discretion; no actual prejudice shown given limited mention, stipulation, and limiting jury instruction | | Whether evidence was sufficient to support conspiracy and other convictions | Circumstantial evidence (coordinated actions, Vigil’s statements/acts, defendant’s admissions, eyewitness testimony) supports convictions | Insufficient: agreement not proved beyond presence and a single statement | Sufficient: cooperative actions, Vigil’s "let’s go" and covering face, and defendant’s admission permitted an inference of agreement; other counts supported by eyewitness testimony and stipulation of felon status | | Whether exclusion of evidence about alleged law-enforcement bias (city-councilor father) was erroneous | Exclusion proper; defense offered no proof that father influenced investigation; father’s reaction was ordinary parental response | Evidence relevant to show investigative bias and flawed investigation | No abuse of discretion: proffered facts did not show influence or bias; exclusion was within trial court’s discretion | ### Key Cases Cited State v. Rodriguez, 139 N.M. 450, 134 P.3d 737 (N.M. 2006) (double jeopardy review standard) State v. Saiz, 144 N.M. 663, 191 P.3d 521 (N.M. 2008) (unitary-conduct/multiple-punishment analysis) State v. Armijo, 136 N.M. 723, 104 P.3d 1114 (N.M. Ct. App. 2005) (double jeopardy protects against multiple punishments) Swafford v. State, 112 N.M. 3, 810 P.2d 1223 (N.M. 1991) (two-part test for double-description/unitary conduct analysis) State v. Bernal, 140 N.M. 644, 146 P.3d 289 (N.M. 2006) (application of Swafford test) State v. Cooper, 124 N.M. 277, 949 P.2d 660 (N.M. 1997) (indicia of distinctness: time, space, nature, objectives) State v. Branch, 2016-NMCA decision reported at 387 P.3d 250 (N.M. Ct. App.) (held firearm enhancement implicates double jeopardy where no additional facts are required) State v. Santillanes, 130 N.M. 464, 27 P.3d 456 (N.M. 2001) (lesser-of-alternatives convictions must be vacated, not merely sentenced concurrently) State v. Garcia, 149 N.M. 185, 246 P.3d 1057 (N.M. 2011) (standard for severance and actual prejudice) State v. Gallegos, 141 N.M. 185, 152 P.3d 828 (N.M. 2007) (guidance on joinder, cross-admissibility, and jury instruction vigilance)