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 Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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-Appellee, 3

v. No. 35,212 4 DAVID CORDOVA, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Cristina T. Jaramillo, District Judge 8 Hector H. Balderas, Attorney General 9 Maris Veidemanis, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 L. Helen Bennett, P.C. 13 L. Helen Bennett 14 Albuquerque, NM 15 for Appellant 16 MEMORANDUM OPINION 17 SUTIN, Judge. 182 {1} Defendant David Cordova appeals his conviction for armed robbery, contrary 1 to NMSA 1978, Section 30-16-2 (1973), thatwas enhanced, pursuant to NMSA 1978, 2 Section 31-18-16 (1993), because he used a firearm in the commission of the offense. 3 On appeal, Defendant asserts, as his soleissue, a double jeopardy violation arising 4 from the firearm enhan cement. This Court recently heldthat the use of Section 31-18- 5 16 to enhance a sentence violates double je opardy when the State, based upon its own 6 theory of the case, is “not required toprove any additional facts to have [a 7 d]efendant’s sentence enhanced[.]” State v. Branch , 2016-NMCA-071, ¶ 38, 387 P.3d 8 250, cert. granted, 2016-NMCERT-007, ___ P.3d ___. 9 {2} In order to assess the State’s theory of the case for these purposes, “we look to 10 the charging documents and jury instructions.” Id. ¶ 36. In this case, Defendant was 11 charged with taking money fro m his victim, intending to permanently deprive her of 12 the same while “armed with a firearm, aninstrument or object, which when used as 13 a weapon, could cause death or great bodily harm[.]” In order to convict him of that 14 offense, the jury was instructed that it must find that he “was armed with a gun, an 15 instrument or object which, when used as a weapon, could cau se death or serious 16 injury[.]” With regard to the firearm enhancement, the jury was instructed to 17 “determine if the crime was committed withthe use of a firearm and report [its] 18 determination” on a special verdict form. 193 {3} Because Defendant’s use of a firearm was charged and instructed as an element 1 of the offense of armed robbery and was also the only finding necessary to enhance 2 Defendant’s sentence, that enhanced senten ce is in direct conflict with the central 3 holding in Branch. Id. ¶ 38. Acknowledging that the enhancement of Defendant’s 4 sentence under Section 31-18-16 is inconsistent with Branch , the State invites us to 5 reconsider Branchin this appeal. 6 {4} In doing so, the State cites to Swafford v. State , in which our Supreme Court 7 discussed the importance of legislative inte nt in double jeopardy analysis, and asserts 8 that Branch failed to consider “the [L]egislature’s intent to authorize multiple 9 punishments for the same offense.” Swafford, 1991-NMSC-043, ¶ 9, 112 N.M. 3, 810 10 P.2d 1223. More specifically, the State asserts that Branch erred by applying the test 11 of statutory construction articulated in Blockburger v. United States , 284 U.S. 299 12 (1932), because that test is irrelevant “where the [L]egislature has explicitly 13 authorized multiple punishment[.]” Swafford, 1991-NMSC-043, ¶ 11. 14 {5} Although the State’s remaining argument relies upon an explicit legislative 15 authorization of multiple punishments, the St ate does not direct us to any language in 16 Section 31-18-16 or Section 30-16-2 that explicitly authorizes multiple punishments. 17 Examining those statutes ourselves, wefind no language expressly providing for 18 multiple punishments. See State v. Gutierrez , 2011-NMSC-024, ¶ 55 n.2, 150 N.M. 194 232, 258 P.3d 1024 (discussing NMSA 1978, Section 30-16-38 (1971) and noting that 1 our Legislature knows how to provide for multiple punishments depending upon the 2 circumstances of the particular crime). Nonetheless, the State’s argument proceeds, 3 briefly tracing the history of this Court’s cases dealing with Section 31-18-16, but 4 stopping short of our Supreme Court’s opinion in Gutierrezthat modified the 5 Blockburger analysis for statutes involving vague and unspecific elements. See 6 Gutierrez , 2011-NMSC-024, ¶¶ 55-60. In Branch , this Court specifically applied this 7 modified Blockburger analysis requiring that “we look to the [prosecution’s] trial 8 theory to identify the specifi c criminal cause of action for which the defendant was 9 convicted, filling in the case-specific meaning of generic terms in the statute when 10 necessary.” Branch , 2016-NMCA-071, ¶ 23. 11 {6} In this case, as in Branch , the term “deadly weapon” is a generic statutory term, 12 requiring that we look to the State’s theory of the case as demonstr ated in the charging 13 documents and jury instructions to supply a case-specific meaning. See id. ¶ 35 (“A 14 ‘deadly weapon’ is a generic term.”). Here, again as in Branch , “there is no doubt that 15 the [prosecution] sought to prove that the deadly weapon actually used in this case 16 was a firearm.” Id. Because we see no language in th e relevant statutes explicitly 17 authorizing multiple punishments and the State offers no other basis to disregard 185 Gutierrezin addressing the double jeopardy issue in this case, we are unpersuaded that 1 Branchwas decided in error. 2 {7} Alternatively, the State suggests that a conviction accompanied by a firearm 3 enhancement should be treated, not as multip le punishments, but simply as a greater 4 penalty for a single offense because that offense was committed with a gun. Thus, the 5 State posits that the Legislature “could have increased the punishment for armed 6 robbery when a firearm is used within the elements of the armed robbery statute, but 7 instead did so in a separate statute.” Our purpose here, however, is to ascertain 8 legislative intent. In accomplishing that goal, it is of no particular help to posit things 9 the Legislature could have done, but did not. It may be that the Legislature could enact 10 legislation specifically establishing various degrees of robbery based upon factors that 11 include the use or non-use of a firearm to enhance the crime of armed robbery 12 depending upon the type of weapon used. We, however, must discern legislative intent 13 from the statutes that were enacted. The merefact that the Legislature could have done 14 something different presents a broad spectrum of possibilities, but such a recognition 15 is not proof that the Legislature intended the interpretation suggested by the State. In 16 the context of double jeopardy, that means applying the Blockburger test—as 17 modified by Gutierrez—to the relevant statutes. As discussed earlier in this opinion, 186 that analysis results in a conclusion thata double jeopardy violation occurred in this 1

case. 2 {8} Ultimately, we decline the State’s invitation to overrule Branchand, given that 3 opinion’s clear applicability to the facts of this case, we conclude that the 4 enhancement of Defendant’s sentence pur suant to Section 31-18-16 violates double 5 jeopardy. Accordingly, Defendant’s senten ce is vacated, and this case is remanded to 6 the district court for re-sentencing consistent with this opinion. 7 {9} IT IS SO ORDERED. 8

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

_______________________________ 12 MICHAEL E. VIGIL, Judge 13

_______________________________ 14 TIMOTHY L. GARCIA, Judge 15