2023 New Mexico Statutes › Chapter 30 - Criminal Offenses › Article 3 - Assault and Battery › Section 30-3-8 - Shooting at dwelling or occupied building; shooting at or from a motor vehicle.

A. Shooting at a dwelling or occupied building consists of willfully discharging a firearm at a dwelling or occupied building. Whoever commits shooting at a dwelling or occupied building that does not result in great bodily harm to another person is guilty of a fourth degree felony. Whoever commits shooting at a dwelling or occupied building that results in injury to another person is guilty of a third degree felony. Whoever commits shooting at a dwelling or occupied building that results in great bodily harm to another person is guilty of a second degree felony.
B. Shooting at or from a motor vehicle consists of willfully discharging a firearm at or from a motor vehicle with reckless disregard for the person of another. Whoever commits shooting at or from a motor vehicle that does not result in great bodily harm to another person is guilty of a fourth degree felony. Whoever commits shooting at or from a motor vehicle that results in injury to another person is guilty of a third degree felony. Whoever commits shooting at or from a motor vehicle that results in great bodily harm to another person is guilty of a second degree felony.
C. This section shall not apply to a law enforcement officer discharging a firearm in the lawful performance of his duties.
History:
Laws 1987, ch. 213, § 1; 1993, ch. 78, § 1.
ANNOTATIONS
The 1993 amendment,
effective July 1, 1993, deleted "Inhabited" preceding "Dwelling" and inserted "shooting at or from a motor vehicle" in the section heading; designated the formerly undesignated provisions as Subsection A and rewrote the provisions thereof; and added Subsections B and C.
This section reflects legislature's judgment
that traditional homicide and assault and battery crimes are inadequate to respond to the particular dangers involved with motor vehicle shootings.
State v. Dominguez
, 2005-NMSC-001, 137 N.M. 1, 106 P.3d 563.
No double jeopardy violation.
— Defendant's convictions of voluntary manslaughter and shooting at or from a motor vehicle do not violate double jeopardy.
State v. Dominguez
, 2005-NMSC-001, 137 N.M. 1, 106 P.3d 563.
Where the facts support non-unitary conduct for two violations of this section, defendant's double jeopardy claim is rejected.
State v. Dominguez
, 2005-NMSC-001, 137 N.M. 1, 106 P.3d 563.
Conviction for shooting at a motor vehicle under Subsection B of this section did not preclude the state from seeking a further conviction for first or second degree murder under Section 30-2-1 NMSA 1978.
State v. Garcia
, 2005-NMCA-042, 137 N.M. 315, 110 P.3d 531, cert. denied, 2005-NMCERT-004, 137 N.M. 454, 112 P.3d 1111.
Violation of double jeopardy.
— There was no double jeopardy violation for convictions for second degree murder and shooting at or from a motor vehicle because the testimony at trial permitted the inference that each conviction was based on distinct conduct and because the two statutes evince legislative intent to impose separate punishments for each crimes.
State v. Mireles
, 2004-NMCA-100, 136 N.M. 337, 98 P.3d 727, cert. denied, 2004-NMCERT-008, 136 N.M. 492, 100 P.3d 197.
Convictions for felony murder and shooting at a dwelling violated defendant's right to be protected from double jeopardy.
State v. Varela
, 1999-NMSC-045, 128 N.M. 454, 993 P.2d 1280.
Cumulative punishment is precluded for shooting at a vehicle and homicide.
— New Mexico jurisprudence precludes cumulative punishment for the offenses of causing great bodily harm to a person by shooting at a motor vehicle and the homicide resulting from the penetration of the same bullet into the same person.
State v. Montoya
, 2013-NMSC-020, 306 P.3d 426,
overruling
State v. Gonzales
, 1992-NMSC-003, 113 N.M. 221, 824 P.2d 1023,
State v. Dominguez
, 2005-NMSC-001, 137 N.M. 1, 106 P.3d 563 and
State v. Riley
, 2010-NMSC-005, 147 N.M. 557, 226 P.3d 656.
Where defendant and defendant's companions were accosted by a rival gang in front of defendant's family home, guns were pulled on both sides and defendant's sibling was severely wounded by gunshots in the leg and abdomen; while defendant's group were trying to help defendant's sibling in the driveway and stop the bleeding from the gunshot wounds, the person in the rival gang who had been shooting at defendant and defendant's companions returned in a Ford Expedition; when defendant saw gunfire coming from the Expedition, defendant ran into the house and retrieved an AK-47 rifle and began shooting at the Expedition; the driver of Expedition was shot seven times and died; the jury convicted defendant of voluntary manslaughter and shooting into a motor vehicle resulting in great bodily harm, the Double Jeopardy Clause protected defendant from being punished both for the homicide of the victim and for shooting into a vehicle causing great bodily harm to the victim where both convictions were premised on the unitary act of shooting the victim.
State v. Montoya
, 2013-NMSC-020, 306 P.3d 426,
overruling
State v. Gonzales
, 1992-NMSC-003, 113 N.M. 221, 824 P.2d 1023,
State v. Dominguez
, 2005-NMSC-001, 137 N.M. 1, 106 P.3d 563 and
State v. Riley
, 2010-NMSC-005, 147 N.M. 557, 226 P.3d 656.
Legislature intended to provide multiple punishments
for the offenses of second degree murder and shooting into or from a vehicle.
State v. Mireles
, 2004-NMCA-100, 136 N.M. 337, 98 P.3d 727, cert. denied, 2004-NMCERT-008, 136 N.M. 492, 100 P.3d 197.
Acts must be done while in vehicle.
— Shooting from a motor vehicle requires that the acts be done while in a motor vehicle.
State v. Mireles
, 2004-NMCA-100, 136 N.M. 337, 98 P.3d 727, cert. denied, 2004-NMCERT-008, 136 N.M. 492, 100 P.3d 197.
Shooting entirely within a vehicle.
— Shooting entirely within a vehicle is neither shooting "at" nor "from" a vehicle pursuant to Subsection B of 30-3-8 NMSA 1978.
State v. Tafoya
, 2012-NMSC-030, 285 P.3d 604.
Where defendant, who was riding in the back seat of a vehicle, shot the driver of the vehicle and the passenger who was riding in the front seat of the vehicle, Subsection B of 30-3-8 NMSA 1978 did not apply to defendant's conduct.
State v. Tafoya
, 2012-NMSC-030, 285 P.3d 604.
This section does not require proof of death
or include death as an alternative to great bodily harm.
State v. Dominguez
, 2005-NMSC-001, 137 N.M. 1, 106 P.3d 563.
Elements distinguished between crimes.
— Voluntary manslaughter and shooting at or from a motor vehicle resulting in great bodily harm have distinct elements.
State v. Dominguez
, 2005-NMSC-001, 137 N.M. 1, 106 P.3d 563.
Evidence sufficient.
— Where defendant shot multiple times into a house, wounding one victim; witnesses testified that defendant opened fire on the house without any one firing back at defendant; and the victim testified that the victim was wounded by the gunfire, there was sufficient evidence to support defendant's conviction of shooting at a dwelling.
State v. Torrez
, 2013-NMSC-034.
Where defendant fired two gunshots into a house; the bullets found in the house matched those fired from defendant's handgun; the trajectory of the bullets indicated that the shooter was aiming directly at the house; defendant had expressed hostility towards one of the occupants of the house whom defendant knew was in the house; after defendant fired into the house, defendant aimed the gun downward and shot and killed the victim; the trajectory of the bullets that entered the body of the victim was different from the trajectory of the bullets that entered the house, there was sufficient evidence to support defendant's conviction for shooting at a dwelling.
State v. Arrendondo
, 2012-NMSC-013, 278 P.3d 517.
Evidence is sufficient under this section which supports conviction, which requires proof that the defendant willfully discharged a firearm from a motor vehicle with reckless disregard for another.
State v. Mireles
, 2004-NMCA-100, 136 N.M. 337, 98 P.3d 727, cert. denied, 2004-NMCERT-008, 136 N.M. 492, 100 P.3d 197.
"Reckless disregard" requires
that defendant's conduct created a substantial and foreseeable risk and that defendant disregarded such risk and was wholly indifferent to the consequences of his conduct and the welfare and safety of others.
State v. Mireles
, 2004-NMCA-100, 136 N.M. 337, 98 P.3d 727, cert. denied, 2004-NMCERT-008, 136 N.M. 492, 100 P.3d 197.
Vehicle not required to be in motion.
— The unambiguous language of this section does not require that the vehicle be in motion.
State v. Mireles
, 2004-NMCA-100, 136 N.M. 337, 98 P.3d 727, cert. denied, 2004-NMCERT-008, 136 N.M. 492, 100 P.3d 197.
Evidence insufficient.
— Evidence was insufficient to sustain defendant's conviction where the evidence showed that he fired shots from a balcony downward, but there was no evidence that he fired in the direction of any building.
State v. Trujillo
, 2002-NMSC-005, 131 N.M. 709, 42 P.3d 814.
No merger with aggravated assault with a deadly weapon.
— Separate punishments are intended for the offenses of shooting into an occupied vehicle and aggravated assault with a deadly weapon.
State v. Sosa
, 1997-NMSC-032, 123 N.M. 564, 943 P.2d 1017
abrogated by State v. Porter
, 2020-NMSC-020.
Knowledge that building occupied required.
— The statute requires not only that the discharge of the firearm be intentional and that it be discharged at a building intentionally, but that the discharge occur with the knowledge or reason to believe that the building was occupied at the time of the shooting.
State v. Elmquist
, 1992-NMCA-119, 114 N.M. 551, 844 P.2d 131.
Knowledge of occupation is not an element
of shooting at a dwelling.
State v. Coleman
, 2011-NMCA-087, 150 N.M. 622, 264 P.3d 523, cert. denied, 2011-NMCERT-008, 268 P.3d 513.
Evidence sufficient to prove conspiracy to commit shooting at a dwelling.
— Where defendant's friends asked defendant for a ride from a party; one of the friends suggested that they go "do some shootings"; defendant agreed to the plan and drove to the location of a trailer selected by the friend; the friend exited defendant's vehicle and fired three shots at the trailer; the owner of the trailer had recently moved from the trailer, but kept some possessions in the trailer and parked two vehicles in front of the trailer; and defendant claimed that defendant had no reason to know that the trailer was occupied at the time of the shooting, the evidence was sufficient to prove that defendant had the requisite intent to agree and the intent to commit shooting at a dwelling.
State v. Coleman
, 2011-NMCA-087, 150 N.M. 622, 264 P.3d 523, cert. denied, 2011-NMCERT-008, 268 P.3d 513.
Conspiracy to shoot from vehicle.
— To be guilty of conspiracy to shoot from a motor vehicle, there must have been an agreement that one of the parties thereto would shoot a firearm recklessly from the vehicle; the agreement could be explicit or a mutually implied understanding, but mere passive submission or acquiescence in the conduct of others would not suffice.
State v. Mariano R
., 1997-NMCA-018, 123 N.M. 121, 934 P.2d 315.
Conviction as accessory.
— Where defendant was convicted of violating this section as an accessory to the crime and the crime is one enumerated in Section 33-2-34L(4)(j) NMSA 1978, the fact that he pleaded guilty as an accessory and not a principal is irrelevant for purposes of the Earned Meritorious Deductions Act.
State v. Flores
, 2005-NMCA-092, 138 N.M. 61, 116 P.3d 852, cert. denied, 2005-NMCERT-007, 138 N.M. 145, 117 P.3d 951.
Separate punishments intended.
— The legislature intended to punish the crimes of voluntary manslaughter and shooting at or from a motor vehicle separately.
State v. Dominguez
, 2005-NMSC-001, 137 N.M. 1, 106 P.3d 563.
Shooting at or from a motor vehicle may not serve as the predicate felony for felony murder.
— Under the collateral felony rule, the predicate felony must be independent of or collateral to the homicide, and the predicate felony cannot be a lesser-included offense of second-degree murder. Shooting at or from a motor vehicle is an elevated form of aggravated battery, a lesser-included offense of second-degree murder, and thus cannot be used as a predicate for felony murder, so where defendant was convicted of first-degree felony murder, the underlying felony of which was shooting from a motor vehicle, defendant's felony murder conviction was vacated because the crime of shooting at or from a motor vehicle lacks an independent felonious purpose from that required under second-degree murder.
State v. Marquez
, 2016-NMSC-025.
New rule that shooting at or from a motor vehicle cannot be used as a predicate for felony murder applies retroactively.
— In
State v. Marquez
, 2016-NMSC-025, the New Mexico Supreme Court determined that shooting at or from a motor vehicle is an elevated form of aggravated battery and thus cannot be used as a predicate for felony murder; shooting at or from a motor vehicle does not have a felonious purpose independent from the purpose of endangering the physical health of the victim because shooting from a motor vehicle must be accomplished with reckless disregard for the safety of a person.
Marquez
established a new substantive rule that narrowed the range of punishable conduct that could support a felony murder conviction, and therefore should be given retroactive effect.
Rudolfo v. Steward
, 2023-NMSC-013.
Retroactive application of new substantive rule established in
State v. Marquez
.
— Where petitioner was convicted of first-degree murder under a general verdict at a trial in which the jury instructions contained two alternative theories for the jury to use as a basis for the first-degree murder conviction: felony murder predicated on shooting at or from a motor vehicle and willful and deliberate murder, and where, on direct appeal, the New Mexico supreme court vacated petitioner's conviction for felony murder, holding that the crime of shooting at or from a motor vehicle may not serve as the predicate felony in support of a felony murder charge, and where, in a petition for habeas corpus, petitioner claimed that the supreme court's holding applies retroactively and that his conviction for willful and deliberate murder must also be vacated, the district court erred in denying petitioner's habeas petition, because a general verdict must be reversed if one of the alternative bases of conviction is legally inadequate, and in this case it is impossible to determine whether the general verdict was based on the legally invalid theory of felony murder or on willful and deliberate murder.
Rudolfo v. Steward
, 2023-NMSC-013.
Shooting at or from a motor vehicle cannot serve as the underlying felony sustaining a felony murder conviction.
— Where defendant was convicted of first-degree felony murder predicated on the underlying felony of shooting at or from a motor vehicle, the New Mexico supreme court vacated defendant's conviction of felony murder because shooting at or from a motor vehicle is an elevated form of aggravated battery, and thus cannot be used as a predicate for felony murder.
State v. Baroz
, 2017-NMSC-030.
Shooting resulting in death.
— Subsection A of this section, construed with the definition of "great bodily harm" in Section 30-1-12A NMSA 1978 includes a shooting at a dwelling that results in death.
State v. Varela
, 1999-NMSC-045, 128 N.M. 454, 993 P.2d 1280.
Felony murder.
— Applying the strict-elements test, shooting at a dwelling is not a lesser included offense of second degree murder, and the offense could serve as a predicate for applying the felony-murder doctrine.
State v. Varela
, 1999-NMSC-045, 128 N.M. 454, 993 P.2d 1280.
Insufficient evidence that defendant committed the predicate felony of shooting at a dwelling or occupied building.
— Where defendant was convicted of felony murder predicated on the felony of shooting at dwelling or occupied building, the evidence established that defendant and his companions targeted the victims in the course of a gunfight that took place in front of a dwelling, but did not shoot at or target the dwelling. Therefore, the evidence is not sufficient to support a conviction of felony murder predicated on the felony of shooting at a dwelling.
State v. Comitz
, 2019-NMSC-011.
Instruction on defense of another.
— Where defendant and the occupants of a house exchanged multiple gun shots; the shots defendant fired at the house killed one victim; defendant was tried for shooting at a dwelling; defendant requested a jury instruction on defense of another on the grounds that shots from the house were fired in the direction of defendant's car where two of defendant's friends were waiting; defendant testified that defendant shot back at the house, because people in the house were shooting at defendant; defendant's friends testified that they were not aware of any bullets reaching the vicinity of the car; and there was no evidence that defendant shot to protect anyone other than defendant, the district court did not err in refusing to instruct on defense of another.
State v. Torrez
, 2013-NMSC-034.
Exception to best-evidence rule for inaccessible text messages.
— Where defendant was charged with shooting at a motor vehicle and aggravated assault with a deadly weapon, and where the state presented testimony from the victim's nephew that he had seen threatening text messages from defendant on the victim's phone on the day of the incident, the district court did not abuse its discretion in admitting the testimony of the victim's nephew where the court found that the state had met its burden of showing that it had made a diligent, but unsuccessful, effort to obtain the original text messages and that there was no evidence indicating that additional efforts may have been successful.
State v. Stevenson
, 2020-NMCA-005, cert. denied.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 79 Am. Jur. 2d Weapons and Firearms § 29.
94 C.J.S. Weapons §§ 19, 20.