This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations fr om the official paper ve rsion 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. 29,338 4 JOSE GARCIA, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 7 William G. Shoobridge, District Judge 8 Gary K. King, Attorney General 9 Margaret E. McLean, Assistant Attorney General 10 Joel Jacobsen, Assistant Appellate Defender 11 Santa Fe, NM 12 for Appellee 13 Jorge A. Alvarado, Chief Public Defender 14 J.K. Theodosia Johnson, Assi stant Appellate Defender 15 Santa Fe, NM 16 for Appellant 172 MEMORANDUM OPINION ON REMAND 1 BUSTAMANTE, Judge. 2 {1} This matter comes before the Court on remand from our Supreme Court, 3 directing us to reconsider our prior opinion in light of the Supreme Court’s opinion 4 in State v. Montoya , 2013-NMSC-020, 306 P.3d 426. We now reverse. 5 {2} Defendant appealed his conviction for voluntary manslaughter and third degree 6 shooting at or from a motor vehicle arguing that his conviction for both crimes 7 violated his right to be free from double jeopardy. In our original opinion filed on 8 September 15, 2011, we affirm ed all of Defendant’s convictions. Specifically with 9 regard to his double jeopardy arguments, we relied almost entirely on State v. 10 Dominguez , 2005-NMSC-001, 137 N.M. 1, 106 P.3d 563, overruled2013-NMSC11 020, for our ruling. Defendant atthat point had acknowledged that Dominguezwas 12 directly on point and that it defeated his claim of a double jeopardy violation. 13 {3} In Montoya , the Supreme Court specifically overruled Dominguezand two 14 other cases which had held that convicti ons for homicide crimes and shooting from 15 or at a motor vehicle could support separate convictions even though both convictions 16 were premised on the unitary act of shooting and killing one victim. Montoya , 2013- 17 NMSC-020, ¶ 54. 183 {4} This case presents the sa me factual and legal scenario considered in Montoya

. 1 As such, Montoya controls and requires that one of the two convicti ons be vacated. 2 The only question remaining is which conviction should be vacated. 3 {5} Montoya notes that the normal procedure is to vacate the conviction that carries 4 the shorter sentence. In Montoya the defendant was apparen tly convicted of shooting 5 at a motor vehicle resulting in great bodily harm—a second degree felony. Id. ¶ 56. 6 {6} We have a different situa tion in this case. Apart from the straight murder 7 theories, Defendant here was charged onl y with shooting “a firearm from a motor 8 vehicle with reckless disregard for another person.” The jury was not asked to 9 consider any greater or more serious form of the crime. Based on the jury finding of 10 guilty as instructed and in light of the death that ensued, the district court entered a 11 judgment and sentence for shooting at or from a motor vehicle as a third degree 12 felony. 13 {7} Thus, in this case the voluntary ma nslaughter—a third degree felony—and 14 shooting at or from a motor vehicle carry th e same sentence. And, in fact, Defendant 15 was sentenced to identical sentences of six years for each of them. As such Montoya’s 16 rationale for choosing which convicti on to vacate does not apply here. 17 {8} Given that the sentences are the same, we choose to vacate the conviction for 18 shooting at or from a motor vehicle. We believe that the c onviction for voluntary 194 manslaughter—involving as it does the taking of a life—is the more serious crime. 1 Id. ¶ 56. 2 {9} In our prior Opinion we also rejectedDefendant’s argument that the district 3 court improperly enhanced his punishment for his conviction of shooting from or at 4 a motor vehicle. Given our resolution of the primary double jeopardy issue, this 5 assertion becomes moot. 6 CONCLUSION 7 {10} In accordance with Montoya , we vacate Defendant’s conviction for shooting at 8 or from a motor vehicle and remand to the district court for re-sentencing. 9 {11} IT IS SO ORDERED. 10

11 MICHAEL D. BUSTAMANTE, Judge 12 WE CONCUR: 13

14 CYNTHIA A. FRY, Judge 15

16 TIMOTHY L. GARCIA, Judge 17