This decision was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citati on of non-precedential dispositions. Please also note that this electronic decision may contain computer-g enerated errors or other deviations from the official paper version filed by the Supreme Court.

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 1 Filing Date: August 13, 2018 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4

v. NO. S-1-SC-36061 5 CARLOS ORTIZ, 6 n/k/a Jesus Suarez, 7 Defendant-Appellant. 8

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 9 David N. Williams, District Judge 10

Law Works LLC 11 John A. McCall 12 Albuquerque, NM 13 for Appellant 14 Hector H. Balderas, Attorney General 15 Maris Veidemanis, Assistant Attorney General 16 Santa Fe, NM 172 for Appellee 1

DECISION 2 DANIELS, Justice. 3 {1} Defendant Jesus Suarez appeals his convi ctions for felony murder and related 4 offenses arising from a deadly home invasi on. He argues that there is insufficient 5 evidence to support his convictions and th at he received ineffective assistance of 6 counsel because his trial counsel did not attempt to have the court join this prosecution 7 for trial, before one jury, with a separate prosecution ch arging Defendant with 8 murdering another victim in a separate home invasion on the same day, a case we have 9 addressed on this date ina separate decision, State v. Suarez , S-1-SC-36080. 10 {2} We conclude that substantial eviden ce supports Defendant’s convictions and 11 that the record before us fails to establis h a prima facie case of ineffective assistance 12 of counsel. We affirm Defendant’s conviction by nonprecedential decision. See Rule 13 12-405(B) NMRA (“The appellate court may dispose of a case by non-precedential 14 order, decision or memorandum opinion . . . [where t]he issues presented have been 15 previously decided by the Supreme Court or Court of Appeals . . . [or t]he presence 16 or absence of substantial evidence disposes of the issue . . . [or t] he asserted error is 17 not prejudicial to the complaining party . . . [or t]he issues presented are manifestly 183 without merit.”). But we also address an issue not raised by appellate counsel and 1 reverse Defendant’s convicti on for aggravated burglary, the predicate felony for his 2 felony murder conviction, on double jeopardy grounds. 3 I. BACKGROUND 4 {3} The charges against Defendant arose from a homicide committed in 5 Albuquerque, New Mexico, on February 25, 2013. Victim Robert Kinter was at home 6 with his girlfriend Peri Schindler in thei r two-bedroom house where he kept a lockbox 7 and safe in his bedroom. 8 {4} At approximately 1:30 a.m., Schindler saw Kinter asleep in his bedroom before 9 going to her separate bedroom to sleep. After she went to her bedroom, she saw 10 chunks of plaster fly into the room and h eard people kicking in the front door to the 11 house and yelling, “APD. Where’s the mone y? Where’s the money?” A surveillance 12 camera in the living room facing the front door captured footage of two men breaking 13 the front door open and entering the house. Schi ndler testified that neither of them was 14 authorized to enter the house. 15 {5} After the two men entered the house, Schindler heard gunshots and smelled 16 gunpowder, and then one of the men entere d her bedroom and stared at her for a 17 minute with a gun in his hand before return ing to Kinter’s bedroom. The same person 18 returned to her bedroom and again stared at her with a gun in his hand. As he left her 194 bedroom the second time, hesaid, “You never saw me.” Schindler waited in her 1 bedroom to hear the sound of a car drive away before checking on Kinter. She yelled 2 to him, but when he did not respond, she went to his bedroom, where he “was faced 3 down in a pool of blood.” She then contacted the police. 4 {6} When police arrived, officers escorted Schindler out of the house. The front 5 door was found to be damaged and its door jamb was broken. A white cell phone was 6 on the floor in Kinter’s bedroom near the closet with its battery exposed. At trial, 7 Schindler testified that the phone belonged ne ither to her nor to Kinter. The phone was 8 registered to Defendant’s sister, who liv ed in Albuquerque. After police obtained a 9 search warrant for the p hone, an agent from the Drug Enforcement Administration 10 extracted photographs, text messages, and printouts of phone numbers from the phone. 11 A detective testified at trial that the investigation showed that Defendant had used the 12 phone. Several messages sent to and from the phone mentioned the name “Jesus.” 13 Listed in the phone as a contact was “Abue la,” which was the name of Defendant’s 14 only emergency contact in a police database . The detective also identified Defendant 15 in several photographs retrieved from the phone. 16 {7} Police testified at trial that they found .45 caliber bullets and casings in Kinter 17 and Schindler’s house. Fore nsic pathologist Dr. Ross Zumwalt, who supervised 18 Kinter’s autopsy, testified that the causeof Kinter’s death was gunshot wounds and 195 that the manner of death was a homicide. 1 {8} Several days after the shooting of Kinter, police apprehended Defendant in the 2 front yard of the house wher e he lived and found a .45 caliber pistol underneath a bush 3 next to Defendant. A forensic firearm examiner testified attrial that the bullets and 4 casings found at the crime scene were fired from that pistol. 5 {9} Schindler tentatively identified Defendant as one of the two intruders from a 6 pretrial photographic array. At trial, she explained that her initial identification had 7 been expressed as tentative because of Defendant’s warning to her at the time of the 8 murder, but at trial she testified that sh e was certain Defendant was the person who 9 entered her bedroom with the handgun. The other intruder was identified as Luis 10 Vargas-Rivera. 11 {10} At trial, the jury found Defendant guilty of felony murder, conspiracy to 12 commit felony murder, aggravated burglary by use of a deadly weapon, conspiracy 13 to commit aggravated burglary by use of a deadly weapon, armed robbery, conspiracy 14 to commit armed robbery, and intimidation of a witness. The jury also made special 15 findings that Defendant used a firearm to commit aggravated burglary by use of a 16 deadly weapon, armed robbery, and intimidating a witness. 17 {11} The district court sentenced Defendant to concurrent prison terms of life for 18 felony murder, nine years for conspiracyto commit felony murder, ten years for 196 aggravated burglary, three years for conspiracy to commit aggrav ated burglary, three 1 years for conspiracy to commit armed robbery, and four years for intimidation of a 2 witness. The court also imposed a consecu tive prison sentence of eleven years for 3 armed robbery, for a total sentence of life plus eleven years in prison. 4 {12} Because he received a life sentence, Defendant appealed his convictions directly 5 to this Court. See N.M. Const. art. VI, § 2 (“App eals from a judgment of the district 6 court imposing a sentence of death or life imprisonment shall be taken directly to the 7 supreme court.”); State v. Smallwood , 2007-NMSC-005, ¶ 6, 141 N.M. 178, 152 P.3d 8 821. 9 II. DISCUSSION 10 {13} We address Defendant’s appellate contentions that insufficient evidence 11 supports his felony murder conviction and th at he was denied effective assistance of 12 counsel. 13 A. Sufficient Evidence Supports Defendant’s Felony Murder Conviction 14 {14} “The test for sufficiency of the evid ence is whether substantial evidence of 15 either a direct or circumstantial natureexists to support a verdict of guilt beyond a 16 reasonable doubt with respect to every element essential to a conviction.” State v. 17 Cabezuela , 2015-NMSC-016, ¶ 14, 350 P.3d 1145 (internal quotation marks and 18 citation omitted). “Substantial evidence is evidence acceptable to a reasonable mind 197 as adequate to support a conclusion.” State v. Arrendondo , 2012-NMSC-013, ¶ 10, 1 278 P.3d 517. We review the evidence “in the light most favorable to the State, 2 resolving all conflicts and making all permi ssible inferences in favor of the jury’s 3 verdict.” State v. Consaul , 2014-NMSC-030, ¶ 42, 332 P.3d 850 (internal quotation 4 marks and citation omitted). “Contrary ev idence supporting acquittal does not provide 5 a basis for reversal because th e jury is free to reject Defe ndant’s version of the facts.” 6 State v. Rojo , 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. 7 {15} In reviewing the sufficiency of the evid ence, this Court “must take into account 8 both the jury’s fundamental role as factfinder in our system of justice and the 9 independent responsibility of the courts to ensure that the jury’s decisions are 10 supportable by evidence in the record, rather than mere guess or conjecture.” State v. 11 Flores , 2010-NMSC-002, ¶ 2, 147 N.M. 542, 226 P.3d 641. 12 {16} The only challenge Defendantmakes to the sufficiency of evidence is to the 13 proof of his identity. He points to the lack of clarity in the surveillance video footage, 14 the uncertainties in Schindler’s testimony, the ownership of the white cell phone, and 15 the possibility of the .45 caliber murder weapon having been planted in his yard. He 16 contends that the State offered no substantial proof that he entered Kinter and 17 Schindler’s house or that he was in possessi on of either the phone or the firearm. He 18 also asserts that the photographic array shown to Schindler was impermissibly 198 suggestive. 1 {17} Defendant contends that the survei llance camera footage was sufficient to 2 identify Vargas-Rivera but not the second person who entered the house. Accordingly, 3 Defendant argues that there can be no reas onable inference that Defendant was the 4 second person. He also characterizes th e quality of the video as “very grainy,” 5 resulting in “forensic expert s [being unable to] obtain a clear picture of the alleged 6 shooter that killed Robert Kinter.” However “grainy” the footage may be, it 7 nonetheless reveals a second person who entered the house with Vargas-Rivera. 8 {18} He also argues that Schindler’s te stimony is conflicted because of an 9 inconsistency in her statements. He points to a portion of her testimony where she said 10 that she could not identify the person who entered her bedroom because she covered 11 her eyes and that she was unclear on whether she had one or two encounters with the 12 person. The conflict arising in her identifi cations and her descriptions of Defendant, 13 and the inconclusiveness of the surveillance footage, De fendant contends, is enough 14 to discount the evidence as insubstantial. 15 {19} At one point, Schindler testified that she covered her eyes at the point when the 16 gunman entered her room because she did not want him to see her see him. And she 17 explained that if the person wanted to kill her, she did not want to see it coming. But 18 she did not testify that she never got a l ook at the intruder, whom she testified had 199 entered her bedroom two different times: 1 Q. [Defense counsel] So he was probably in your room, what, ten 2 seconds or less? 3 A. [Schindler] He was in my room twice. 4 Q. Okay. But you didn’t tell the po lice that, right? You told the 5 police that you didn’t think he came back to your room a second time; 6 do you remember that? 7 A. He did come back into my room the second time. That’s when 8 he went out my door into the livi ng room, and said, You never saw me. 9 The first time he didn’t say anything. He just showed me his gun. 10 {20} Even if Schindler’s statement to the poli ce had been inconsistent with her trial 11 testimony, which counsel’s question does not establish, the jury was free to find her 12 trial testimony credible and to credit her photographic identification of Defendant as 13 the gunman who entered her bedroom two different times. 14 {21} Relying solely on a police report that stated that Defendant had reportedly been 15 kidnapped a few weeks before Kinter’s d eath, Defendant speculates on appeal that 16 someone arranged for him to be implicated in Kinter’s shooting, that Defendant’s 17 kidnapping could have been part of the setup, that someone could have planted the 18 murder weapon in his yard near where he wa s to be arrested, and that Kinter’s true 19 assailants could have influenced Schindlerto falsely identify him. But no evidence 20 Defendant or anyone else presented at trial established thatanyone arranged for 21 Defendant to be implicated or that his kidnapping was a key moment in the process 22 or that people related to th e assailants exercised undue influence in his identification. 2310 Defendant was free to offer any evidence s upporting those theories and to argue his 1 alternative theories to the jury. But th e jury and not this Court was the lawful 2 factfinder, and this Court cannot substituteDefendant’s speculations for the jury’s 3 verdict. This Court “will not invade th e jury’s province as fact-finder by second4 guess[ing] the jury’s decision concerning the credibility of witnesses, reweigh[ing] the 5 evidence, or substitut[ing] its judgment for that of the jury.” State v. Garcia , 2011- 6 NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d 1057 (alterations in original) (internal 7 quotation marks and citation omitted). 8 {22} Defendant also argues that the white cell phone found at the murder scene and 9 the murder weapon found on the ground near him when he was arrested were not 10 linked to him by scientific evidence. He point s to the lack of any conclusive evidence 11 that Defendant’s deoxyribonucleic acid ( DNA) was on either the cell phone or the 12 firearm. He also relies on the absence of fingerprint evidence linking Defendant to 13 either the cell phone or the firearm. 14 {23} Defendant cites no authority holding thatthe State was required to present 15 conclusive DNA or fingerprint evidence. Th e State’s duty was to present sufficient 16 evidence for a jury to find beyond a reas onable doubt that Defendant committed the 17 crimes. Here, the fact that trial evidence established that the firearm used in Kinter’s 18 shooting death was found on the ground n ear where police had just arrested 1911 Defendant, combined with Schindler’s photo identification of Defendant as the man 1 who entered her bedroom holding a pistol, allowed the jury to find that Defendant 2 possessed the pistol when he entered Kinter and Schindler’s house. 3 {24} Defendant argues that the photo array s hown to Schindler was impermissibly 4 suggestive. To determine whether a photo array is impermissible, a court must 5 determine “whether the photo array was so impermissibly suggestive as to give rise 6 to a very substantial likelihood of irreparable misidentification and, if so, under the 7 totality of the circumstances, whether th e identification was nonetheless reliable.” 8 State v. Stampley , 1999-NMSC-027, ¶ 14, 127 N.M. 426, 982 P.2d 477 (internal 9 quotation marks and citation omitted). 10 {25} Defendant maintains, without providing evidence or other support, that the 11 placement of his photo in the third position of a six-person array was highly 12 suggestive. Defendant offered no support at trial for the suggestibility of the third 13 position other than a question from his counsel to a detective on a proposed 14 “psychological dynamic that people often go to number three” in a photo array, a 15 hypothesis that the detective did not support. This unsupported suggestion of defense 16 counsel has no evidentiary value and does nothing to establish that there was a 17 substantial likelihood of irreparable misidentification. 18 {26} Defendant never objected to the admission of the photographic identification 1912 at trial, and there was never any in-court identification of Defendant by Schindler. The 1 only in-court identification that is linked to the photographic array is the identification 2 done by a detective. The detective administered the photographic array, and when he 3 testified at trial that Schindler had identified Defendant in the pretrial photographic 4 array, there was no objection made by defense counsel. 5 {27} We conclude that sufficient evidence supports Defendant’s identification and 6 convictions. 7 B. Defendant Has Not Established a Prima Facie Case of Ineffective 8 Assistance of Counsel as a Result of Counsel’s Not Attempting to Join 9 Defendant’s Two Separate Murder Prosecutions for a Joint Trial 10 {28} Defendant argues that his counsel was in effective for not joining this case with 11 a separate case in which Defendant was alsocharged with first- degree murder. In that 12 case, Michael Garris was murd ered in a separate home invasion less than twenty-four 13 hours after Kinter was murdered. We have explained the factual background of 14 Garris’s murder and the procedural background and discussion of the legal issues in 15 a separate decision filed on this date. See State v. Suarez , S-1-SC-36080. In that case, 16 we rejected an identical ineffective a ssistance of counsel argument made by the 17 appellate counsel represen ting Defendant in both appeals. For the sake of 18 completeness of each of the two written d ecisions, we repeat our analysis here. 19 {29} In Arrendondo , 2012-NMSC-013, ¶ 38, we summarized New Mexico 2013 requirements for assessment of ineffective assistance of counsel claims on direct 1 appeal: 2 For a successful ineffective assistance of counsel claim, a defendant must 3 first demonstrate error on the part of counsel, and then show that the 4 error resulted in prejudice. The re cord is frequently insufficient to 5 establish whether an action taken by defense counsel was reasonable or 6 if it caused prejudice. Thus, instead of remanding the matter to the trial 7 court, this Court prefers that these claims be brought under habeas 8 corpus proceedings so that the defe ndant may actually develop the record 9 with respect to defense counsel’s acti ons. For this Court to remand to the 10 trial court on this issue, the defendant must present a prima facie case of 11 ineffective assistance of counsel. Without such prima facie evidence, the 12 Court presumes that defense counsel ’s performance fell within the range 13 of reasonable representation. 14 (internal quotation marks and citations omitted). With those principles in mind, we 15 consider Defendant’s claims of ineffective assistance of counsel to determine whether 16 a prima facie case has been presented. 17 {30} Defendant contends that these two cases should have been joined to allow him 18 the opportunity to present a theme common to both cases that he was framed by a 19 gang for both murders. Defendant asserts both murder cases are tied together by his 20 kidnapping and the theft of his cell phone tw o weeks before the murders occurred. He 21 also asserts in support of his arguments that both cases arose under a single scheme 22 of “homicides involving home invasions that seemed destined to end in the shooting 23 of a male victim in the home he shared with his girlfriend.” 2414 {31} Defendant claims on appeal that he directed his trial counsel to join the two 1 separate murder prosecutions for a joint trial. But he fails to cite any place in the 2 record where such a claim is supported, in violation of Rule 12-318(A)(3) NMRA 3 (requiring that appellate briefs “shall contain citations to the record proper, transcript 4 of proceedings, or exhibits supporting eachfactual representation”). And our own 5 independent review of the record finds nothing to support such a claim. 6 {32} Even if Defendant had made such a re quest of counsel, “‘[a] prima facie case 7 for ineffective assistance of counsel is not ma de if there is a plausible, rational strategy 8 or tactic to explain the counsel’s conduct.’” State v. Ortega , 2014-NMSC-017, ¶ 55, 9 327 P.3d 1076 (quoting Lytle v. Jordan , 2001-NMSC-016, ¶ 26, 130 N.M. 198, 22 10 P.3d 666). The record in this case is undeveloped with respect to any reasons why 11 Defendant’s counsel, who represented him in both murder cases, would have thought 12 it tactically wise to join the two murder prosecutions for trial before the same jury. In 13 fact, during a pretrial hearing in the separate Garris murder case, Defendant’s counsel 14 candidly acknowledged, “There’s no link . . . between the two cases.” 15 {33} The record is similarly undeveloped regarding whether the decisions by 16 Defendant’s counsel prejudiced him. To establish prejudice, 17 a defendant must demonstrate that c ounsel’s errors were so serious, such 18 a failure of the adversarial process, that such errors undermine[] judicial 19 confidence in the accuracy and reliability of the outcome. A defendant 2015 must show a reasonable probability that, but for counsel’s unprofessional 1 errors, the result of the proceeding would have been different. 2 State v. Bernal , 2006-NMSC-050, ¶ 32, 140 N.M. 644, 146 P.3d 289 (alteration in 3 original) (internal quotation marks and citations omitted). 4 {34} Defendant relies on State v. Gallegos , 2007-NMSC-007, ¶ 15, 141 N.M. 185, 5 152 P.3d 828, in quoting Rule 5-203(A) NMRA toargue that joinder of offenses “of 6 the same or similar character” is require d under the rule. He asserts that he was 7 prejudiced by being “unable to introduce evid ence from the other trial that would have 8 demonstrated a pattern of events that w ould explain the evidence against [him].” He 9 maintains that the jury’s inability to hearboth surviving eyewitnesses, Schindler and 10 Glennda Trujillo, who respectively identified him as the murderer in the two cases, 11 prevented Defendant from showing the unre liability of their testimony. Specifically, 12 the jury in this case was unable to hear that Trujillo, the woman who implicated 13 Defendant in the Garris murder, “did not immediately identify [Defendant] until she 14 received a three-way phone call in structing her to do so.” De fendant maintains that the 15 jury was also deprived of hearing “the lie s Ms. Trujillo told regarding her identity and 16 her knowledge of the Garris murder.” He similarly argues that the jury in the 17 prosecution for Garris’s murder did not hear Schindler’s testimony regarding the cell 18 phone that he now maintains on appeal was placed “as a prop at the murder scene” in 1916 Kinter’s house. We note that Defendant madeno record in the district court that he 1 attempted to introduce any relevant eviden ce related to the other murder case that 2 might have helped establish such a defense theory in either trial. 3 {35} Gallegosheld that a district court abuses its discretion in failing to sever 4 offenses when the evidence pertaining to each charge would not have been cross5 admissible. See 2007-NMSC-007, ¶ 20. In State v. Lovett , 2012-NMSC-036, 286 P.3d 6 265, this Court reversed a murder convic tion because of prejudice, analyzing the 7 cross-admissibility of evidence presented in two separate murder cases joined in a 8 single trial for their prejudicial impact on the defendant. See id. ¶¶ 1, 9. In that case, 9 Paul Lovett was charged withtwo counts of first-degree murder for the separate 10 killings of Elizabeth Garcia and Patty Simon. Id. ¶¶ 2, 3, 7. We determined that 11 photographs of Garcia’s body presented as ev idence at his joint trial were admissible 12 “to illustrate, clarify and corroborate the testimony of witnesses concerning the scene 13 of the crime, wounds of the vi ctim and identity of” Garcia. Id. ¶ 34 (internal quotation 14 marks and citation omitted). But that eviden ce would not have been admissible in a 15 separate trial for Simon’s murder. Id. Similarly, we determined that photographs of 16 Simon’s body, admissible to prove Simon’s murder, would not have been admissible 17 in a separate trial for Garcia’s murder. Id. Accordingly, we concluded that those 18 photographs did not “tend to show motive, opportunity, or any other relevant fact in 1917 relation to the other murder, other than, perhaps, a propensity for violence, which is 1 an impermissible purpose under our rules” of evidence. Id. 2 {36} In this case, the same potential for in admissibility of evidence of the other 3 murder applies. The State presented photographs of Kinter’s and Garris’s bodies in 4 each respective murder trial. Photographs of Garris’s body were admissible at 5 Defendant’s trial for Garris’s murder to corroborate witness te stimony, the scene at 6 his house, his wounds, and his identity. Bu t those photographs would not have been 7 admissible in a separate trial for Kinter’s murder. Similarly, the photographs of 8 Kinter’s body would not have been admissible in a separate trial for Garris’s murder. 9 The potential for a jury to consider th e photographs as evidence of Defendant’s 10 propensity for violence would have prejudiced him. 11 {37} It is difficult to imagine a competent attorney maki ng a deliberate choice to put 12 the evidence of these two separate homic ide prosecutions before the same jury, 13 particularly in light of Defendant’s central defense theory in both cases, not that the 14 home invasions and murders did not occur but that he was not properly identified as 15 the perpetrator. In each case Defendant ’s defense depended on challenging the 16 credibility of a sole eyewitness. Permitting a jury to hear both eyewitnesses 17 respectively describe Defendant as the person they saw commit two separate murders 18 just hours apart, buttressed by the ballis tics testimony that the pistol found on the 1918 ground near Defendant when he was arrested was the same weapon used in both 1 murders, would have strengthe ned the identifications of Defendant as the shooter in 2 both cases. 3 {38} Whether there is any case that can be made for ineffective assistance of counsel 4 in this case, the record before us certain ly does not establish a prima facie case as is 5 required for a reversal on direct appeal. 6 C. Defendant’s Conviction and Concu rrent Sentence for the Felony Murder 7 Predicate Felony Violate Double Jeopardy Protections 8 {39} Because Defendant was convicted of fel ony murder, his separate conviction of 9 its predicate felony, aggravated burglary, violates the protection against double 10 jeopardy guaranteed by the Fifth Amendment to the United States Constitution and 11 Article II, Section 15 of the New Mexico Constitution. See U.S. Const. amend. V 12 (“[N]or shall any person be subject for the same offense to be twice put in jeopardy 13 of life or limb.”); N.M. Const. art. II, § 15 (providing for protection from double 14 jeopardy); see also NMSA 1978, § 30-1-10 (1963) (pr oviding that “[t]he defense of 15 double jeopardy may not be waived and may be raised by the accused at any stage of 16 a criminal prosecution, either before or after judgment”). 17 {40} In State v. Frazier , 2007-NMSC-032, ¶ 1, 142 N.M . 120, 164 P.3d 1, we held 18 that “the predicate felony is always subsumed into a felony murder conviction, and no 1919 defendant can be convicted of both.” Accordingly, the Court in Frazier upheld the 1 defendant’s felony murder conviction but vacated his predicate felony kidnapping 2 conviction as a lesser-included offense of felony murder. See id. In State v. Montoya , 3 2013-NMSC-020, ¶ 11, 306 P.3d 426, we rec ognized the propriety of the district 4 court’s vacating Montoya’s predicate felony conviction, “leaving only the first-degree 5 felony murder conviction, as required by New Mexico double jeopardy jurisprudence 6 establishing that cumulative punishment may not be imposed for both felony murder 7 and its lesser included predicate felony.” 8 {41} In this case, the jury appropriately found Defendant factually guilty of felony 9 murder and of aggravated burglary, the separately charged predicate felony, but the 10 district court entered convictions on both charges and imposed concurrent sentences. 11 Our case law has emphasized that “concurre nt sentencing does not adequately remedy 12 the imposition of impermissible multiple punishments for a single offense; double 13 jeopardy requires that the lesser offense merge into the great er offense such that the 14 conviction of the lesser offense, not merely the sentence, is vacated.” State v. 15 Santillanes , 2001-NMSC-018, ¶¶ 28, 38, 130 N.M. 464, 27 P.3d 456 (remanding to 16 the district court with instructions to vacate the convictions barred by double 17 jeopardy). 18 {42} We therefore direct the district court on remand to enter an amended judgment 1920 and sentence vacating Defendant’s aggravated burglary conviction. 1 III. CONCLUSION 2 {43} For the foregoing reasons, we affirm all of Defendant’s convictions except 3 aggravated burglary, which we direct th e district court to vacate on remand in an 4 amended judgment and sentence. 5 {44} IT IS SO ORDERED. 6

__________________________________ 7 CHARLES W. DANIELS, Justice 8 WE CONCUR: 9

___________________________________ 10 JUDITH K. NAKAMURA, Chief Justice 11

___________________________________ 12 PETRA JIMENEZ MAES, Justice 13

___________________________________ 14 BARBARA J. VIGIL, Justice 15

___________________________________ 1621 GARY L. CLINGMAN, Justice 1