State v. Sotelo, 2013 NMCA 028

Defendant Sotelo was living with Victim, with whom she shares a child; Victim had two other children, one aged 15.
During a July 12–13, 2009 incident, Sotelo drove Victim to a secluded area after gas, then repeatedly beat and restrained her.
Sotelo claimed he would drive but instead took Victim to multiple locations, beating her and restraining her while moving her between sites.
Victim testified Sotelo told her he wanted to go to a place with no cops and no phones and threatened to kill her or leave her to die.
Victim finally called the sheriff after Sotelo drove home; Sotelo was convicted of kidnapping, battery on a household member, and witness intimidation (crime of sexual penetration was acquitted).
At sentencing, Sotelo received 18 years for kidnapping, 3 years for intimidation, and 364 days for battery; the two latter sentences were concurrent to each other but consecutive to kidnapping; rehearing was granted and the case was remanded for resentencing to consider mitigating circumstances.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a lesser-included offense instruction on false imprisonment was proper	Sotelo contends false imprisonment could be the lesser offense.	State argues no reasonable view supports false imprisonment as highest offense.	Instruction denied; no reasonable view supports false imprisonment as the greatest offense.
Double jeopardy—kidnapping and battery	State asserts non-unitary conduct; legislative intent favors separate punishments.	Sotelo argues unitary conduct would violate double jeopardy.	No double jeopardy violation; offenses not unitary as facts or law.
Whether kidnapping was incidental to battery	State contends restraint had independent significance beyond battery.	Defense argues restraint was incidental to battery.	Restraint not incidental; sufficient to sustain kidnapping separate from battery.
Ineffective assistance of counsel for failure to object to character evidence	Defense counsel failed to object to prior-act references.	Objecting would have changed outcome; evidence prejudicial.	No prima facie ineffective assistance shown; trial not likely affected.
District court failed to consider mitigating circumstances in sentencing	Court misapprehended authority; mitigations should be considered.	Court acted within discretion; no regard to mitigation required.	Remand for resentencing to consider mitigating circumstances.

State v. Meadors, 121 N.M. 38 (1995) (lesser-included offense elements and Meadors test)
State v. Darkis, 2000-NMCA-085 (2000) (defendant's right to lesser-included offense instruction when evidence supports lesser offense)
State v. Wilson, 117 N.M. 11 (1993) (limitation on using fragmented portions of testimony to support lesser offense)
State v. Pisio, 119 N.M. 252 (1994) (key to restraint element in kidnapping; independent factual bases)
State v. Riley, 2010-NMSC-005 (2010) (sufficiency standard; independent factual bases for offenses)
State v. Trujillo, 2012-NMCA-039 (2012) (restraint incidental to battery; kidnapping requires independent basis)
State v. Urioste, 2011-NMCA-121 (2011) (factually unitary vs non-unitary conduct analysis)
State v. Frazier, 2007-NMSC-032 (2007) (felony murder unitary conduct framework; legislative intent to punish separately)
Juan v. State, 2010-NMSC-041 (2010) (mitigating considerations at sentencing; statutory interpretation)
State v. Roybal, 2002-NMSC-027 (2002) (ineffective assistance; prejudice inquiry includes totality of the circumstances)