1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 Opinion Number: _______________

3 Filing Date: June 28, 2018

4 NO. A-1-CA-36092

5 STATE OF NEW MEXICO,

6 Plaintiff-Appellee,

7 v.

8 EL RICO CUMMINGS,

9 Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY

11 James Waylon Counts, District Judge

12 Hector H. Balderas, Attorney General

13 Eran Sharon, Assistant Attorney General

14 Santa Fe, NM 

15 for Appellee

16 Bennett J. Baur, Chief Public Defender

17 Allison H. Jaramillo, Assistant Appellate Defender

18 Santa Fe, NM

19 for Appellant
1 OPINION

2 VANZI, Chief Judge.

3 {1} Following entry of a conditional plea, Defendant El Rico Cummings appeals

4 his convictions for possession of a firearm by a felon, contrary to NMSA 1978,

5 Section 30-7-16(A) (2001), and receiving stolen property, contrary to NMSA 1978,

6 Section 30-16-11(A) (2006). Defendant argues that (1) his convictions violate double

7 jeopardy because they are based on the same firearm, and (2) the district court erred

8 in denying his motion to suppress because an officer exceeded the scope of the search

9 warrant when he forcibly opened a locked safe. Because we hold that (1) there was

10 no double jeopardy violation and (2) the district court did not err in denying

11 Defendant’s motion to suppress, we affirm.

12 BACKGROUND

13 {2} The pertinent facts are undisputed. On June 9, 2013, the Alamogordo Police

14 Department obtained and served an arrest warrant and a search warrant on Defendant

15 at his home as part of an investigation into a shooting. Relevant here, the search

16 warrant—the validity of which is not disputed—authorized police to search

17 Defendant’s home for firearms, ammunition, weapons or tools, cell phones,

18 prescription and illegal narcotics and paraphernalia, documentation of the premises,

19 and records as to the state of mind of the subjects of the warrant, including diaries or
2

1 journals. The parties agree that the search warrant did not specifically mention a

2 lockbox or a safe.

3 {3} At the hearing on Defendant’s motion to suppress, an officer testified that

4 while searching the house, he found a locked safe that was large enough to hold a

5 firearm. According to the officer, when he was “handling the safe,” it sounded like

6 it had a metal object inside and had some weight to it. Neither Defendant nor his

7 sister gave permission to the officersto search the safe, and neither Defendant nor his

8 sister had a key to the safe available. Defendant later testified that he kept private

9 things in his safe, such as bank statements and identity documents, including birth

10 certificates and social security numbers. 

11 {4} The officer removed the safe to the police station for further investigation and

12 opened it there. Although the officer did not obtain a second search warrant, he

13 testified that he could have done so, and he conceded that there were not otherwise

14 any exigent circumstances. The officer did not find the gun that he was looking for

15 inside the safe, but instead found a different firearm that formed the basis for the two

16 charges against Defendant for possession of a firearm by a felon and receiving stolen

17 property. Defendant entered a no contest plea to both charges, reserving his right to

18 appeal the denial of his motion to suppress. 
3

1 DISCUSSION

2 Double Jeopardy

3 {5} Defendant first argues that, because they are based on the same firearm, his

4 convictions for felon in possession of a firearm and receiving stolen property violate

5 double jeopardy. Defendant did not reserve a double jeopardy argument in his

6 conditional plea. Nevertheless, double jeopardy claims are not subject to waiver and

7 can be raised at any time before or after entry of a judgment. See NMSA 1978, § 30-

8 1-10 (1963). Moreover, this Court has held that a guilty plea does not necessarily

9 waive a claim of double jeopardy, although the defendant should reserve the issue in

10 the plea agreement and must present a record capable of review for this Court to

11 engage in a unitary conduct double jeopardy analysis. See State v. Sanchez, 1996-

12 NMCA-089, ¶¶ 10-11, 14, 122 N.M. 280, 923 P.2d 1165.

13 {6} We generally apply a de novo standard of review to the constitutional question

14 of whether there has been a double jeopardy violation. State v. Andazola, 2003-

15 NMCA-146, ¶ 14, 134 N.M. 710, 82 P.3d 77. The Double Jeopardy Clause “has been

16 held to incorporate a broad and general collection of protections against several

17 conceptually separate kinds of harm: (1) a second prosecution for the same offense

18 after acquittal, (2) a second prosecution for the same offense after conviction, and (3)

19 multiple punishments for the same offense.” State v. Montoya, 2013-NMSC-020,
4

1 ¶ 23, 306 P.3d 426 (internal quotation marks and citation omitted). The present case

2 deals with the question of whether Defendant has received multiple punishments for

3 the same offense.

4 {7} For the double jeopardy prohibition against multiple punishments, there are

5 two types of cases: (1) when a defendant is charged with violations of multiple

6 statutes for the same conduct, referred to as “double description” cases; and (2) when

7 a defendant is charged with multiple violations of the same statute based on a single

8 course of conduct, referred to as “unit of prosecution” cases. State v. DeGraff, 2006-

9 NMSC-011, ¶ 25, 139 N.M. 211, 131 P.3d 61 (internal quotation marks omitted). The

10 present case is a double description case. For such cases, we apply the two-part test

11 set forth in Swafford v. State, 1991-NMSC-043, ¶ 9, 112 N.M. 3, 810 P.2d 1223: (1)

12 whether the conduct is unitary, and (2) if so, whether the Legislature intended to

13 punish the offenses separately. State v. Silvas, 2015-NMSC-006, ¶ 9, 343 P.3d 616.

14 “Only if the first part of the test is answered in the affirmative, and the second in the

15 negative, will the double jeopardy clause prohibit multiple punishment in the same

16 trial.” Id. (internal quotation marks and citation omitted). The State concedes that the

17 conduct is unitary, so we analyze the second part of the Swafford test.

18 {8} Where unitary conduct forms the basis for multiple convictions, we “inquire

19 whether [the d]efendant has been punished twice for the same offense, and if so,
5

1 whether the Legislature intended that result.” Id. ¶ 11. “In analyzing legislative intent,

2 we first look to the language of the statute itself.” State v. Swick, 2012-NMSC-018,

3 ¶ 11, 279 P.3d 747. “If the statute does not clearly prescribe multiple punishments,

4 then the rule of statutory construction established in Blockburger v. United States,

5 284 U.S. 299 . . . (1932) applies.” Swick, 2012-NMSC-018, ¶ 11. Under Blockburger,

6 we look to see whether each statute requires proof of a fact that the other does not.

7 See Swick, 2012-NMSC-018, ¶ 12. When interpreting vague and unspecific or

8 multipurpose criminal statutes, we apply a modified Blockburger test, which avoids

9 a mechanical application of the elements test in favor of a case-by-case approach that

10 considersthe State’s legal theory of the particular case. See Silvas, 2015-NMSC-006,

11 ¶ 14; Swick, 2012-NMSC-018, ¶ 21; State v. Gutierrez, 2011-NMSC-024, ¶ 58, 150

12 N.M. 232, 258 P.3d 1024.

13 {9} “If the Blockburger test shows that one statute is subsumed within the other,

14 then the analysis ends and the statutes are considered the same for double jeopardy

15 purposes.” Silvas, 2015-NMSC-006, ¶ 12. “If one statute requires proof of a fact that

16 the other does not, then the Legislature is presumed to have intended a separate

17 punishment for each statute without offending principles of double jeopardy.” Id.

18 {10} The presumption that the Legislature intended separate punishments is not

19 conclusive, however, and “may be overcome by other indicia of legislative intent.”
6

1 Swafford, 1991-NMSC-043, ¶ 31. “[W]e must turn to traditional means of

2 determining legislative intent: the language, history, and subject of the statutes[, and

3 we] must identify the particular evil sought to be addressed by each offense.” Id.

4 ¶¶ 31-32. “If after examining the relevant indicia the legislative intent remains

5 ambiguous, the rule of lenity requires us to presume that the Legislature did not

6 intend multiple punishments for the same conduct.” Swick, 2012-NMSC-018, ¶ 13.

7 {11} In the present case, Defendant pled to and was convicted of both possession of

8 a firearm by a felon and receiving stolen property based on the single gun found

9 within his locked safe. As indicated above, the State concedes that the conduct was

10 unitary. We therefore turn to whether the Legislature intended that a defendant be

11 punished twice for the same offense. See Silvas, 2015-NMSC-006, ¶ 11.

12 {12} The statute for possession of a firearm by a felon states that “[i]t is unlawful for

13 a felon to receive, transport or possess any firearm or destructive device in this state.”

14 Section 30-7-16(A). The statute for receiving stolen property states that “[r]eceiving

15 stolen property means intentionally to receive, retain or dispose of stolen property

16 knowing that it has been stolen or believing it has been stolen, unless the property is

17 received, retained or disposed of with intent to restore it to the owner,” with a

18 separate section setting forth the degree of felony when such property is a firearm.

19 Section 30-16-11(A), (I). The statutes do not clearly prescribe multiple punishments,
7

1 so we evaluate whether each statute requires proof of a fact that the other does not.

2 See Swick, 2012-NMSC-018, ¶¶ 11-12. Possession of a firearm by a felon requires a

3 finding that the defendant be a felon, whereasreceiving a stolen firearm does not; and

4 receiving a stolen firearm requires a finding that the firearmreceived by the defendant

5 be stolen, whereas possession of a firearm by a felon does not. See § 30-7-16(A);

6 § 30-16-11(A), (I). The statutes each contain an element that the other does not, so

7 we would typically presume that the Legislature intended a separate punishment for

8 a violation of each statute. See Silvas, 2015-NMSC-006, ¶ 12.

9 {13} Although the statutes are not vague or unspecific, Defendant nonetheless

10 argues that we should apply the modified Blockburger test based on the State’s legal

11 theory and the facts of the present case. Specifically, Defendant argues that the two

12 statutes “share the element that [Defendant] possessed the [specific handgun]”

13 because “the element of proof for both charges was that he possessed a particular

14 firearm . . . , which was stolen.” Defendant argues, in other words, that even though

15 “[f]elon in possession ‘will not always entail proof’ of possessing a stolen firearm,

16 . . . in this case the firearm possessed was stolen.” We are unpersuaded.

17 {14} Defendant compares the present case to Gutierrez, in which our Supreme Court

18 noted that, even though armed robbery may not always entail proof that an

19 automobile was taken, in that case, it was required because the property was an
8

1 automobile, so the elements for armed robbery and the unlawful taking of a motor

2 vehicle were the same. See 2011-NMSC-024, ¶ 58. However, the comparison is

3 inapposite. In Gutierriez, a particular object was required to have been stolen in either

4 case, which object was, in both cases, an automobile. See id. In the present case, both

5 charges require the existence of a particular object, the firearm, but a stolen firearm

6 is required in only one of the charges. In other words, although the handgun in the

7 present case happened to be stolen, which finding was required to convict Defendant

8 for receiving stolen property, it does not mean that the handgun’s stolen

9 characteristic was thus required in order to convict Defendant of being a felon in

10 possession of a handgun. See § 30-7-16. Indeed, the fact that the handgun was stolen

11 is irrelevant to the felon in possession charge, which is reflected in the grand jury

12 indictment and the State’s theory of the case. The facts of the present case do not

13 require us to conclude differently. As indicated above, we therefore presume that the

14 Legislature intended a separate punishment for each statute. See Silvas, 2015-NMSC15 006, ¶ 12.

16 {15} Because this presumption is not conclusive, however, we turn to traditional

17 means of determining legislative intent. See Swick, 2012-NMSC-018, ¶ 13. We have

18 previously interpreted legislative intent for both statutes. In State v. Haddenham,

19 1990-NMCA-048, ¶ 14, 110 N.M. 149, 793 P.2d 279, we stated that “[t]he felon in
9

1 possession statute provides for an enhanced punishment in order to keep firearms out

2 of the hands of persons previously convicted and to deter recidivism.” In State v.

3 Watkins, 2008-NMCA-060, ¶ 17, 144 N.M. 66, 183 P.3d 951, we stated that “the

4 [L]egislature’s provision of separate punishment for receiving a stolen firearm as a

5 recognition that the dangers to public safety are heightened when a firearm is kept by

6 a person who has obtained its possession illegally.” Defendant argues that these

7 underlying policies are the same—to deter the illegal possession of firearms by

8 “higher risk individuals.” We disagree.

9 {16} As stated, the emphasis of the legislative intent in the felon in possession

10 statute is on deterring recidivism and “keep[ing] firearms out of the hands of persons

11 previously convicted[.]” Haddenham, 1990-NMCA-048, ¶ 14. It is not simply a

12 “higher risk” individual that the Legislature identified, but specifically those with

13 prior criminal records in order to deter recidivism. See id. Conversely, the emphasis

14 of the legislative intent in the receiving a stolen firearmstatute is on increasing public

15 safety by highlighting that the danger to the public is heightened when individuals

16 obtain or possess firearms that were obtained illegally. See Watkins, 2008-NMCA17 060, ¶ 17. The focus there is not in deterring recidivism but in protecting the public

18 from a situation that contains heightened danger. We therefore conclude that the

19 Legislature intended to punish possession of a firearm by a felon and receiving a
10

1 stolen firearm separately, and, as such, Defendant’s convictions do not violate double

2 jeopardy.

3 Suppression

4 {17} Defendant also argues that the district court erred in denying his motion to

5 suppress, maintaining that the officer exceeded the scope of the search warrant and

6 forcibly opened a locked safe. “Appellate review of a motion to suppress presents a

7 mixed question of law and fact.” State v. Paananen, 2015-NMSC-031, ¶ 10, 357 P.3d

8 958 (internal quotation marks and citation omitted). The appellate court “reviews

9 factual matters with deference to the district court’s findings if substantial evidence

10 exists to support them, and it reviews the district court’s application of the law de

11 novo.” State v. Almanzar, 2014-NMSC-001, ¶ 9, 316 P.3d 183. Because the facts are

12 not in dispute, we review the question de novo. See id.

13 {18} As indicated above, Defendant does not dispute that the search warrant itself

14 was valid—he only argues that the officer impermissibly exceeded the scope of the

15 warrant when he opened the locked safe. Defendant also acknowledges that the

16 Fourth Amendment to the United States Constitution permits the officer’s actions.

17 Instead, he argues that the officer’s actions were impermissible under the greater

18 protections provided by Article II, Section 10 of the New Mexico Constitution.
11

1 {19} “In New Mexico, the ultimate question in all cases regarding alleged search and

2 seizure violations is whether the search and seizure was reasonable.” State v. Attaway,

3 1994-NMSC-011, ¶ 20, 117 N.M. 141, 870 P.2d 103. In order to determine whether

4 the officer’s actions were reasonable, we look to the search warrant, which is required

5 to describe with particularity the items to be seized. See State v. Sabeerin, 2014-

6 NMCA-110, ¶ 26, 336 P.3d 990;see also State v. Malloy, 2001-NMCA-067, ¶ 9, 131

7 N.M. 222, 34 P.3d 611 (stating that “[a]search warrant is used as a means to establish

8 the reasonableness of an intrusion”).

9 {20} In the present case, while searching the house for firearms, bullets, and

10 ammunition, which were items specified in the search warrant for seizure, an officer

11 found a locked safe that, when he handled it, sounded like it had a metal object inside,

12 had some weight to it, and was large enough to hold a firearm. Although the search

13 warrant did not specify that a lockbox or a safe was an item to be seized, it is a

14 container that a reasonable officer could conclude was likely to contain any number

15 of the items described with particularity in the warrant—to wit: firearms, ammunition,

16 weapons or tools, cell phones, prescription and illegal narcotics and paraphernalia,

17 documentation of the premises, and records as to the state of mind of the subjects of

18 the warrant, including diaries or journals. Although the container in the present case

19 was locked, we hold that it was nonetheless reasonable for the officer to open the
12

1 container to discover whether it contained the items identified with particularity in

2 the search warrant. We therefore conclude that the opening of the safe did not exceed

3 the scope of the search warrant, and, as such, the district court did not err in denying

4 Defendant’s motion to suppress.

5 CONCLUSION

6 {21} For the foregoing reasons, we affirm Defendant’s convictions.

7 {22} IT IS SO ORDERED.

8 _______________________________

9 LINDA M. VANZI, Chief Judge

10 WE CONCUR:

11 _________________________________

12 EMIL J. KIEHNE, Judge

13 _________________________________

14 DANIEL J. GALLEGOS, Judge