State v. Gutierrez, 35,797

Defendant pleaded guilty to attempted murder, two counts of aggravated assault with intent to commit a violent felony on a peace officer, and possession of a firearm by a felon.
The underlying conduct: Defendant fired multiple shots through a closed door at two police officers.
Defendant raised double jeopardy challenges on appeal, including a unit-of-prosecution challenge to the two assault convictions and a double-description challenge between attempted murder and the assault-on-an-officer counts.
Court issued a proposed summary disposition to affirm; Defendant filed a memorandum in opposition and a motion to amend the docketing statement seeking to advance the unit-of-prosecution argument.
The panel considered precedent about multiple assault convictions for unitary conduct directed at multiple victims and precedent distinguishing attempted murder from assault-on-a-officer for double jeopardy purposes.
Court denied the motion to amend and affirmed the convictions, finding no double jeopardy violation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether two convictions for aggravated assault on peace officers (unit of prosecution) violate double jeopardy	Multiple convictions permissible when unitary conduct threatens distinct victims	Single act should not support multiple convictions (unit of prosecution challenge)	Convictions valid; assault statutes protect distinct victims from the same act, so no double jeopardy
Whether convictions for attempted murder and assault with intent to commit a violent felony on a peace officer violate double jeopardy (double-description)	Offenses have distinct elements and purposes; cumulative punishment permitted	Overlap in intent (to kill) and theory of the case requires merger or bar on multiple convictions	No double jeopardy violation; offenses differ in elements and legislative purpose, so separate punishment allowed

State v. Nunez, 129 N.M. 63, 2 P.3d 264 (N.M. 2000) (defendant may assert double jeopardy challenge after guilty plea)
State v. Roper, 131 N.M. 189, 34 P.3d 133 (N.M. Ct. App. 2001) (multiple assault convictions allowed for pointing a gun at multiple persons)
State v. Branch, 387 P.3d 250 (N.M. Ct. App. 2016) (assault statutes protect distinct victims from mental harm caused by single act)
State v. Demongey, 144 N.M. 333, 187 P.3d 679 (N.M. Ct. App. 2008) (attempted murder and assault-on-officer have distinct elements and purposes; no double jeopardy)
State v. Ibarra, 116 N.M. 486, 864 P.2d 302 (N.M. Ct. App. 1993) (motion to amend denied when proposed issue is not viable)
State v. Urquizo, 288 P.3d 919 (N.M. Ct. App. 2012) (crimes in Article 22 target protection of peace officers; legislative intent supports separate punishment)
State v. Montoya, 306 P.3d 426 (N.M. 2013) (felony murder/felony predicate merger principles; used analogously by defendant but not applied here)