This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 29,011 9 FRANK AMOS LUCERO, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY 12 Eugenio S. Mathis, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 Jacqueline R. Medina, Assistant Attorney General 16 Albuquerque, NM 17 for Appellee 18 Hugh W. Dangler, Chief Public Defender 19 Kathleen T. Baldridge, Assistant Appellate Defender 20 Santa Fe, NM 21 for Appellant 22 MEMORANDUM OPINION 23 SUTIN, Judge. 242 Defendant Frank Amos Lucero appeals hi s convictions of second degree murder 1 and child endangerment for shooting and killi ng John Paul Gonzales and, before doing 2 so, pointing a gun in the direction of Franchesca Saiz who wa s holding her infant 3 child. On appeal, Defendant primarily argues that he was denied his right to present 4 evidence that Gonzales was a member of a notoriously violent prison gang to support 5 the self-defense instruction that was given to the jury. Defendant also argues that the 6 court erred in refusing to give a self-d efense instruction as a defense to child 7 endangerment. Defendant further argues that there was insufficient evidence of child 8 endangerment and also argues that he was improperly sentenced. We affirm on all 9 issues except sentencing. 10 BACKGROUND 11 The facts essentially are the following. Defendant was at another person’s 12 house with several other persons. He had a handgun for personal protection. He 13 indicated that he wanted to get rid of so me drugs and Franchesca called Gonzales and 14 handed the phone to Defendant, upon which Gonzales asked Defendant, “why the 15 fuck [Defendant] was talking shit about him” and threatened to “fuck [Defendant] up.” 16 Defendant was scared and handed the phone back to Franchesca. Robert Sandoval, 17 by whom Defendant felt intimidated and with whom De fendant did not have a good 18 relationship, also spoke to Gonzales. Gonzales came to the house and told someone 193 to have Franchesca come outside. Sandoval and Franchesca went outside to see 1 Gonzales. Sandoval and Gonzales were good fri ends. Apparently, Defendant told one 2 of the detectives that he saw Gonzales point a gun at him. Franchesca went back into 3 the house with her infant child , and Defendant pointed his gun at her and her child that 4 she was still holding. Defendant then shot more than once from the house killing 5 Gonzales. 6 Evidence of Gang Membership 7 Defendant tendered evidence of Gonzales’s prison gang membership in 8 “Syndicato Nuevo Mexico,” also known as “S NM,” to show a ba sis for Defendant’s 9 fear of Gonzales. The district court did not permit Defendant to introduce the 10 evidence, stating that only Gonzales’s reputation for violence was at issue on self11 defense and not the re putation of the gang. The c ourt relied in part on Rule 11- 12 404(A)(2) NMRA barring character evidence, but indicated that if Defendant could 13 produce a witness to testify that Gonzales had a reputation for violence, that testimony 14 would be admissible. The court also e xpressed concern that if Defendant were 15 allowed to introduce the evidence, he would open himself up to prejudicial 16 examination on his own prison incarceration during which he met Gonzales, a concern 17 the court appears to have harbored despite Defendant’s i ndication that he was willing 18 to take that risk. 194 Defendant asserts that the court abused its discretion in refusing to allow him 1 to present evidence of Gonzales’s gang aff iliation in furtherance of his self-defense 2 claim. Defendant complains that the jurywas unable to hear evidence that Defendant 3 knew Gonzales and Sandoval were members of the SNM gang and that Defendant was 4 personally aware of Gonzales’s reputation for violence because of Gonzales’s 5 affiliation with SNM. Defe ndant asserts that the evid ence he sought to place before 6 the jury “would have lent perspective to [his] claim of self-defense, greater 7 significance to . . . Gonzales ’[s] telephonic threats, and legitimacy to [Defendant’s] 8 fear of . . . Gonzales.” Ingeneral, we review the excl usion of evidence for abuse of 9 discretion. State v. Armendariz , 2006-NMSC-036, ¶ 6, 140 N.M. 182, 141 P.3d 526. 10 “An abuse of discretion arises when the evid entiary ruling is clearly contrary to logic 11 and the facts and circumstances of the case.” Id. 12 Rule 11-404(A)(2) states: 13 Evidence of a person’s character or a trait of character is not admissible 14 for the purpose of proving action in c onformity therewith on a particular 15 occasion, except: . . . In a criminalcase, and subject to the limitations 16 imposed by Rule 11-413 NMRA, evidence of a pertinent trait of 17 character of the victim of th e crime offered by an accused[.] 18 Rule 11-405(A) NMRA states: “In all cases in which evidence of character or a trait 19 of character of a person is admissible, proof may be made by testimony as to 20 reputation or by testimony in the form of anopinion. On cross-examination, inquiry 215 is allowable into relevant specific instances of conduct.” Rule 11-405(B) states: “In 1 cases in which character or a trait of character of a person is an essential element of 2 a charge, claim or defense, proof may also be made of specific instances of that 3 person’s conduct.” In Armendariz , 2006-NMSC-036, ¶ 17, the Court explained that 4 in cases in which a defendant asserts a cl aim of self-defense, “evidence of specific 5 instances of a victim’s prior violent conduct may not be admitted to show that the 6 victim was the first aggressor”; further, “only reputation or opinion evidence should 7 be admitted to show that the victim wa s the first aggressor”; and in addition, 8 “evidence of specific instances of the victim’s prior violent conduct of which the 9 defendant was aware may be admitted to show the defendant’s fear of the victim.” 10 We are unable to determine that the di strict court’s ruling was an abuse of 11 discretion. Defendant proffered no evidence of any prior specific instance of 12 misconduct on Gonzales’s part. The eviden ce Defendant wanted to present could do 13 nothing more than provide a basis on which to infer that Gonzales belonged to a gang 14 whose purpose was to harm others. We ther efore hold that the court did not abuse its 15 discretion in excluding the evidence. 16 Self-Defense Instruction on Child Endangerment 17 The jury was instructed on the elements of self-defense on the second degree 18 murder charge because there was eviden ce sufficient to justify a reasonable jury 196 determination that Defendant acted in self-d efense when he shot Gonzales. However, 1 the court did not permit a self-defense instruction relating to the aggravated assault 2 and child endangerment charges. Because De fendant was not convicted of aggravated 3 assault, we consider Defendant’s point only in relation to the child endangerment 4 charge. We review the propriety of denying a jury instruction de novo. See State v. 5 Salazar , 1997-NMSC-044, ¶ 49, 123 N.M. 778, 945 P.2d 996. We view the evidence 6 in the light most favorable to the gi ving of the requested instruction. State v. Vallejos , 7 1996-NMCA-086, ¶ 28, 122 N.M. 318, 924 P.2d 727, aff’d in part and rev’d in part 8 on other grounds , 1997-NMSC-040, 123 N.M. 739, 945 P.2d 957. 9 Defendant argued for the requested instruction based on the rationale that he 10 was allowed a self-defense in struction on the second degree murder charge, all of the 11 counts with which he was ch arged arose from the same incident, and the entire course 12 of events took place in a matter of seconds. See State v. Abeyta , 120 N.M. 233, 243, 13 901 P.2d 164, 174 (1995) (“[W]here an innocent bystander is accidentally killed 14 during the attempt to defend onself, the doc trine of self-defense provides a defense 15 against the unintended killing.”), abrogated on other grounds by State v. Campos , 16 1996-NMSC-043, 122 N.M. 148, 921 P.2d 1266. In State v. Coffin , 1999-NMSC-038, 17 ¶ 11, 128 N.M. 192, 991 P.2d 477, the defendant sought an instruction that would 187 have permitted a self-defense argument as to a person who may not have imposed an 1 immediate threat or danger to the defendant. The Court stated: 2 While it is true that a person may act in self-defense against multiple 3 attackers acting in concert, this prin ciple applies only to the extent that 4 each accomplice poses an immediate danger of death or great bodily 5 harm, thereby necessitating an act of self-defense. [The defendant’s] 6 tendered instruction would have allowed a claim of self-defense against 7 an accomplice to an att acker despite the fact that the accomplice posed 8 no immediate danger of death or great bodily harm and despite a lack of 9 necessity for the actions against the accomplice. Therefore, [the 10 defendant’s] instruction is contrary to the law of New Mexico regarding 11 self-defense, and the trial court properly denied [the defendant’s] request 12 to so instruct the jury. 13 Id. ¶ 12 (citation omitted). 14 The evidence in the presen t case did not support a self-defense instruction on 15 the child endangerment charge. Defendant ’s conduct relating to Franchesca and the 16 child she was holding occurred before Defendant shot Gonzales. The endangerment 17 did not occur from any fall out from the s hooting. That Defendant may have seen 18 Gonzales with a gun before this endangermen t is insufficient to tie his endangerment 19 conduct to his reaction to Gonzales. Further, there is no indication that the jury would 20 have acquitted Defendant of child endangerment based on self-defense where the jury 21 did not buy self-defense relate d to Defendant’s shooting Gonzales. We hold that the 22 court did not err in refusing Defendant’s tendered self-def ense instruction on the child 23 endangerment charge. 248 Sufficiency of the Evidence 1 Defendant contends that the evidence was not sufficient for the child 2 endangerment conviction. Wedetermine “whether substantial evidence of either a 3 direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable 4 doubt with respect to every elemen t essential to a conviction.” State v. Graham , 2005- 5 NMSC-004, ¶ 6, 137 N.M. 197, 109 P.3d 285 (internal quotation marks and citation 6 omitted). We review “the evidence in the light most favorable to the [S]tate, resolving 7 all conflicts therein and indul ging all permissible inferences therefrom in favor of the 8 verdict.” Id. (internal quotation marks and citation omitted). And we determine 9 “whether the evidence, viewed in this manner, could justify a finding by any rational 10 trier of fact that each element of the crime charged has been established beyond a 11 reasonable doubt.” Id . (emphasis omitted) (internal quotation marks and citation 12 omitted). 13 The statute in question, involving childabuse by endangermen t, requires that 14 the State prove Defendant caused a child unde r the age of eighteen to be placed in a 15 situation that may have e ndangered her life or health and did so with reckless 16 disregard. NMSA 1978, § 30-6-1(A)(3 ), (D)(1) (2005) (amended 2009). Reckless 17 disregard requires that a defendant “kne w or should have known [his] conduct created 18 a substantial and foreseeable risk, [he] di sregarded that risk and . . . was wholly 199 indifferent to the consequences of the c onduct and to the welfar e and safety of [the 1 child].” UJI 14-604 NMRA. “Child abus e by endangerment, as opposed to physical 2 abuse of a child, is a special classification designed to address situations where an 3 accused’s conduct exposes a child to a signi ficant risk of harm, even though the child 4 does not suffer a physical injury.” State v. Chavez , 2009-NMSC-035, ¶ 15, 146 N.M. 5 434, 211 P.3d 891 (emphasis omitte d) (internal quotation marks and citation omitted). 6 “Under this standard, an accused’s culpab ility is premised upon the degree of danger 7 created by his conduct.” Id. The phrase “may endanger” means that there is a 8 “reasonable probability or possibility th at the child will be endangered.” Id. ¶ 16 9 (internal quotation marks and citation omitted). 10 In this case, Franchesca testified thatDefendant pointed a gun at her and her 11 child, whom she was holding, when she was about to walk into the house. Defendant 12 contends that this indicated nothing morethan “speculation of potential harm, not 13 evidence of a truly significant risk of serious harm.” See id. ¶ 22 (noting that the 14 legislative purpose behind the child endangerment statute is “to punish conduct that 15 creates a truly significant risk of serious harm to children”). 16 We reject Defendant’s insufficien t evidence challenge to the child 17 endangerment conviction. Evidence showed that he pointed a loaded handgun directly 18 at Franchesca and at her child. A rational juror could conclude that this conduct came 1910 within the statute and was proved beyond a reasonable doubt. See State v. McGruder , 1 1997-NMSC-023, ¶¶ 37-38, 123 N.M. 302, 940 P.2d 150 (determining that the 2 defendant’s act of pointing a loaded gun at a child’s mother and threatening to kill her, 3 while her two-year-old daughter stood behi nd her, was sufficient to support a jury 4 determination that the child’s life or health had been endangered), abrogated on other 5 grounds by Chavez , 2009-NMSC-035; State v. Ungarten , 115 N.M. 607, 609-10, 856 6 P.2d 569, 571-72 (Ct. App. 1993) (holding that evidence was sufficient to support 7 endangerment where the defendant brandished a knife in a threatening and menacing 8 manner and the almost eleven -year-old child could not di scern whether the knife was 9 directed at him or his father), abrogated on other grounds by Chavez , 2009-NMSC10 035, 146 N.M. 434, 211 P.3d 891. 11 Legality of Sentence 12 After Defendant’s convicti on of second degree murder and child endangerment 13 and acquittal of aggravated assault witha deadly weapon, the court entered its 14 judgment and sentence that ordered that De fendant’s sentences of fifteen years for 15 second degree murder and three years fo r child endangerment run concurrently; 16 however, the court also imposed a firearm enhancement of oneyear each on each of 17 the two counts to run consecutively, for a total of seventeen years incarceration. 18 A challenge to an illegal sentence raises a jurisdictional question that may be 1911 addressed for the first time on appeal. Rule 12-216(B) NMRA; State v. Shay , 2004- 1 NMCA-077, ¶ 6, 136 N.M. 8, 94 P.3d 8. Wereview the legality of a sentence de 2

novo. State v. Lovato , 2007-NMCA-049, ¶ 5, 141 N.M. 508, 157 P.3d 73. 3 Defendant does not quarrel w ith the basic sentences fo r the crimes on which he 4 was convicted, nor does he quarrel with the court’s firearm enhancement of each 5 count. Defendant contends th at the court committed revers ible error in ordering the 6 firearm enhancements to be served consecutively. He ar gues that “the basic sentence 7 and the enhancement are one sentence and cannot be bifurcated,” citing State v. 8 Bachicha , 111 N.M. 601, 609, 808 P.2d 51, 56 (Ct. App. 1991). The State agrees that 9 the sentence is improper and should be corrected. So do we. 10 The State argues that the court intende d to impose a seventeen year sentence. 11 The State asserts that “[t]he district court . . . ordered th e three-year basic sentence for 12 child abuse and the sixteen-year sentence for second degree murder [which included 13 one year for a firearm enhancement] to run concurrent to each other but consecutive 14 to the one-year firearm enhancement on the child abuse conviction, for a sentence of 15 seventeen years.” 16 Based on a view that this Court shoul d not divest the district court of 17 jurisdiction to impose a lawful sentence totaling seventeen years, the State asks this 18 Court to vacate Defendant’s sentence and remand for imposition of a new sentence as 1912 deemed appropriate by the district court, to include sentencing Defendant to sixteen 1 or seventeen years. In his reply brief, Defendant does not attempt to dissuade us from 2 such a remand; he simply “requests that hi s case be remanded to the district court to 3 correct the legal error in sentencing.” 4 CONCLUSION 5 We affirm on all issues except that of sentencing. We reverse the court’s 6 sentence and remand for appropriate sentencing. 7 IT IS SO ORDERED. 8

_____________________________ _____ 9 JONATHAN B. SUTIN, Judge 10 WE CONCUR: 11

________________________________ 12 JAMES J. WECHSLER, Judge 13

________________________________ 14 MICHAEL D. BUSTAMANTE, Judge 15