This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellant, 3

v. NO. 32,579 4 JULIAN TAFOYA, 5 Defendant-Appellee. 6

APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 7 Charles C. Currier, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellant 11 Bennett J. Baur, Acting Chief Public Defender 12 Nina Lalevic, Assistant Appellate Defender 13 Santa Fe, NM 14 for Appellee 15

MEMORANDUM OPINION 16 WECHSLER, Judge. 172 {1} The State of New Mexico appeals fro m the amended judgment and sentence 1 entered by the district court following our Supreme Court’s decision in State v. 2 Tafoya , 2012-NMSC-030, 285 P.3d 604. [RP 252, DS 1] In Tafoya , our Supreme 3 Court vacated Defendant’s convictions for first-degree murder and attempted 4 first-degree murder and remanded for entry of judgment on the lesser-included 5 offenses of second-degree murder and attempted second-degree murder. 2012- 6 NMSC-030, ¶¶ 2, 3. In this appeal, the State contends the district court erred by 7 failing to include a firearm enhancement in Defendant’s sentence for second-degree 8 murder and by failing to include an hab itual offender enhan cement in Defendant’s 9 sentences for tampering with evidence and felon in possession of a firearm, which 10 convictions were not affected by the Supreme Court’s decision. [DS 6] We issued 11 a notice proposing to summarily revers e and Defendant filed a memorandum in 12 opposition. We continue to believe that our proposed disposition was correct and thus 13 reverse and remand. 14 BACKGROUND 15 {2} Following a jury trial, Defendant wa s convicted of first-degree murder, 16 attempted first-degree murder, and tampering with evidence. Tafoya , 2012-NMSC17 030, ¶ 1. The district court found Defendant guilty of an additional crime—felon in 183 possession—based on a special verdict form issued by the jury. Id. Defendant was 1 sentenced to life imprisonment plus seventeen and one-half years. Id. 2 {3} Defendant appealed to the New Mexico Supreme Court. He first argued that 3 his conviction for first-degree murder (bas ed on his act of shooting and killing Andrea 4 Larez) should be reversed because shooting entirely within a motor vehicle is neither 5 shooting “at” nor “from” a motor vehicle and therefore cannot serve as the predicate 6 felony for a felony murder conviction. Id. ¶¶ 2, 6. He also argued that there was 7 insufficient evidence of deliberation tosupport his convic tion for attempted 8 first-degree murder (based on his act of shooting and injuring Crystal Brady). Id. 9 ¶¶ 3, 7. Our Supreme Court agreed withthese two arguments and remanded to the 10 district court to vacate Defendant’s convic tions for first-degree murder and attempted 11 first-degree murder and enter judgment for second-degree murder and attempted 12 second-degree murder. Id. ¶¶ 2-3, 64. 13 {4} Upon remand, the State filed a resenten cing memorandum in the district court. 14 [RP 245] The State recommended that Defendant be sentenced to fifteen years 15 imprisonment for second-degree murder, enhanced by three years pursuant to the 16 firearm enhancement statute and by four years pursuant to the habitual offender 17 enhancement statute. See NMSA 1978, § 31-18-16 (1993) (firearm enhancement); 18 NMSA 1978, § 31-18-17 (2003) (habitual of fender enhancement). [RP 247] The 194 State also recommended that Defendant be re sentenced with respect to his convictions 1 for tampering with evidence and felon in possession. Defendant’s original sentence 2 did not include an habitual offender enhancement and the State argued that a four-year 3 enhancement was warranted. [RP 247] Withrespect to Defendant’s conviction for 4 second-degree murder, the district court sentenced Defendant to fifteen years 5 imprisonment, enhanced by four years pursuant to the habitual offender statute. [RP 6 253] The district court did not impose a firearm enhancement. With respect to 7 Defendant’s convictions for tampering w ith evidence and felon in possession, the 8 district court did not impose a habitual offender enhancement. [RP 254] 9 DISCUSSION 10 {5} The State raises two issues on appeal. Firs t, the State contends the district court 11 erred by failing to enhance Defendant’s sentence for second-degree murder pursuant 12 to the firearm enhancement. [DS 6] Second, the State contends the district court erred 13 by failing to enhance Defendant ’s sentences for tampering with evidence and felon in 14 possession pursuant to the habitual offender enhancement. [DS 6] We review the 15 district court’s interpretation and app lication of the sentencing law de novo. See State 16 v. Brown , 1999-NMSC-004, ¶ 8, 126 N.M. 642, 974 P.2d 136. 17 A. Firearm Enhancement 185 {6} In our notice, we proposed to conclude th at the district court erred in failing to 1 include a one-year firearm enhancement inDefendant’s sentence for second -degree 2 murder. In his memorandum in opposition, Defendant contends the district court 3 properly refused to enhance Defendant’s sentence for s econd -degree murder because 4 the jury did not find that the offense wa s committed with a firearm. [MIO 3, 9] 5 Defendant argues that “[a] jury must find that a firearm was us ed in the commission 6 of a specific felony in order for that specifi c felony to receive a firearm enhancement.” 7 [MIO 8] 8 {7} We agree with Defendant that a jury mu st find that a firearm was used in the 9 commission of a specific felony in order to support a firearm enhancement. See 10 NMSA 1978, § 31-18-16(A) (stating that a sentence “shall be increased by one year” 11 when “a separate finding of fact by the court or the jury shows th at a firearm was used 12 in the commission of a noncapital felony”). However, we believe that, in finding 13 Defendant guilty of first-degree murder, the jury made the requisite finding with 14 respect to the murder of Andrea Larez. 15 {8} The jury was instructed that, to find Defendant guilty of first-degree felony 16 murder, the State had to prove the fo llowing elements beyond a reasonable doubt: 17 1. [Defendant] committed the crime of shooting from a 18 motor vehicle under circumstances or in a manner 19 dangerous to human life; 206 2. [Defendant] caused the death of Andrea Larez during 1 the commission of shooting from a motor vehicle; 2 3. Julian Tafoya intended to kill or knew the acts 3 created a strong probability of death or great bodily 4 harm; 5 4. This happened in New Mexico on or about the 15 th 6 day of November, 2008. 7 [RP 105] The jury was instru cted that, if it did not unanimously agree that Defendant 8 was guilty of first-degree murder, it should consider whether Defendant was guilty of 9 second-degree murder, also relating to the killing of Larez. [RP 108, 122] The jury 10 was instructed that if it found Defendant guilty of second-degree murder, then it had 11 to determine if the crime was committed using a firearm and complete a special 12 verdict form. [RP 125] 13 {9} The jury found Defendant guilty of firs t-degree murder. [RP 129] It did not 14 complete the verdict form relating to sec ond-degree murder. [RP 130] The jury did, 15 however, complete the special verdict form relating to second-degree murder, 16 indicating that it did not unanimously fi nd beyond a reasonable doubt that a firearm 17 was used in the commission of second-degree murder. [RP 137] We believe that the 18 jury answered this special verdict form in the negative because it did not find 19 Defendant guilty of second-degree murder. Itis clear from the jury’s verdict finding 207 Defendant guilty of first-degree murder th at it found Defendant shot Larez, causing 1 her death. 2 {10} In appealing from his conviction for felony first-degree murder, Defendant did 3 not argue that he did not shoot and kill Larez, but instead argued that the manner in 4 which he shot and killed Larez did not , as a matter of law, constitute felony 5 first-degree murder. Tafoya , 2012-NMSC-030, ¶ 9. Our Supreme Court agreed, and 6 explained that a new trial was not necessary because it “accept[ed ] the jury’s finding 7 of the elements of second-degree murder w ithin the felony murder instruction as a 8 finding of guilt on second-degree murder.” Id. ¶ 34. The Court thus concluded that 9 “the record supports De fendant’s conviction of second-degree murder beyond a 10 reasonable doubt[.]” Id. Because the Supreme Court accepted the jury’s finding that 11 Defendant shot Larez and caused Larez’s death, we believe the statutory prerequisite 12 for the firearm enhancement has been met. 13 {11} Defendant relies on State v. Alvarado , 2012-NMCA-089, __ P.3d __, but this 14 case does not support his position. In Alvarado , we reaffirmed the principle that the 15 Sixth Amendment is violated any time a defendant is sentenced above what is 16 authorized solely by the jury’s verdict alone. Id. ¶ 13. This principle supports 17 application of the firearm enhancement here, because the jury found that Defendant 18 “committed the crime of shooting from a motor vehicle” and “caused the death of 191 Defendant does not argue that the distri ct court lacked authority to apply the 18 enhancement because of the scope of the Supreme Court’ s remand and we thus do not 19 consider the issue. 20 8 Andrea Larez during the commission of shoo ting from a motor vehicle[.]” [RP 105] 1 This finding authorizes the appli cation of the firearm enhancement. 2 B. Habitual Offender Enhancement 3 {12} In our notice, we proposed to conclude th at the district court erred in failing to 4 include a four-year habitual offender enhancement in Defendant’s sentences for 5 tampering with evidence and felon in po ssession. In his memorandum in opposition, 6 Defendant opposes our proposed summary re versal, but acknowledges that, pursuant 7 to State v. Freed, 1996-NMCA-044, ¶ 8, 121 N.M. 569, 915 P.2d 325, the habitual 8 offender enhancement “is mandatory if the prosecutor exercises discretion to pursue 9 the enhancement.” 1 [MIO 9] Here, the record refl ects that the State sought to pursue 10 the enhancement at resentencing, and we c onclude the district court erred in failing 11 to impose it on all counts. See State v. Howard, 1989-NMCA-029, ¶ 17, 108 N.M. 12 560, 775 P.2d 762 (“If a person with a prior fe lony conviction is convicted of multiple 13 felonies, then there are several basic sentences. Thus, there may be multiple 14 enhancements.”). 15 CONCLUSION 169 {13} For the reasons stated above and in ourearlier notice, we reverse and remand 1 to the district court for the limited purpose of including a one-year firearm 2 enhancement in Defendant’s sentence for second-degree murder and a four-year 3 firearm enhancement in Defendant’s senten ces for tampering with evidence and felon 4 in possession. 5 {14} IT IS SO ORDERED. 6

__________ ______________________ 7 JAMES J. WECHSLER, Judge 8

WE CONCUR: 9

________________________________ 10 CYNTHIA A. FRY, Judge 11

________________________________ 12 MICHAEL E. VIGIL, Judge 13