step-down instruction in New Mexico

2010As a result, insofar as the jury is presumed to have read and followed the instructions, see State v. Gonzales, 113 N.M. 221, 230 , 824 P.2d 1023, 1032 (1992), we conclude that the jury was adequately informed. {11} We also note that our recent opinion State v. Sandoval, 2010-NMCA-025 , 147 N.M. 465 , 225 P.3d 795 (filed 2009), cert. granted, 2010-NMCERT-003 , 148 N.M. 560 , 240 P.3d 15 (2010), addressed a similar issue in which an error in jury instructions prevented the defendant from presenting self-defense with regard to one of the assailants.

2010As a result, insofar as the jury is presumed to have read and followed the instructions, see State v. Gonzales, 113 N.M. 221, 230 , 824 P.2d 1023, 1032 (1992), we conclude that the jury was adequately informed. {11} We also note that our recent opinion State v. Sandoval, 2010-NMCA-025 , 147 N.M. 465 , 225 P.3d 795 (filed 2009), cert. granted, 2010-NMCERT-003 , 148 N.M. 560 , 240 P.3d 15 (2010), addressed a similar issue in which an error in jury instructions prevented the defendant from presenting self-defense with regard to one of the assailants.

2010As a result, insofar as the jury is presumed to have read and followed the instructions, see State v. Gonzales, 113 N.M. 221, 230 , 824 P.2d 1023, 1032 (1992), we conclude that the jury was adequately informed. {11} We also note that our recent opinion State v. Sandoval, 2010-NMCA-025 , 147 N.M. 465 , 225 P.3d 795 (filed 2009), cert. granted, 2010-NMCERT-003 , 148 N.M. 560 , 240 P.3d 15 (2010), addressed a similar issue in which an error in jury instructions prevented the defendant from presenting self-defense with regard to one of the assailants.

2010As a result, insofar as the jury is presumed to have read and followed the instructions, see State v. Gonzales, 113 N.M. 221, 230 , 824 P.2d 1023, 1032 (1992), we conclude that the jury was adequately informed. {11} We also note that our recent opinion State v. Sandoval, 2010-NMCA-025 , 147 N.M. 465 , 225 P.3d 795 (filed 2009), cert. granted, 2010-NMCERT-003 , 148 N.M. 560 , 240 P.3d 15 (2010), addressed a similar issue in which an error in jury instructions prevented the defendant from presenting self-defense with regard to one of the assailants.

2010As a result, insofar as the jury is presumed to have read and followed the instructions, see State v. Gonzales, 113 N.M. 221, 230 , 824 P.2d 1023, 1032 (1992), we conclude that the jury was adequately informed. {11} We also note that our recent opinion State v. Sandoval, 2010-NMCA-025 , 147 N.M. 465 , 225 P.3d 795 (filed 2009), cert. granted, 2010-NMCERT-003 , 148 N.M. 560 , 240 P.3d 15 (2010), addressed a similar issue in which an error in jury instructions prevented the defendant from presenting self-defense with regard to one of the assailants.

2010As a result, insofar as the jury is presumed to have read and followed the instructions, see State v. Gonzales, 113 N.M. 221, 230 , 824 P.2d 1023, 1032 (1992), we conclude that the jury was adequately informed. {11} We also note that our recent opinion State v. Sandoval, 2010-NMCA-025 , 147 N.M. 465 , 225 P.3d 795 (filed 2009), cert. granted, 2010-NMCERT-003 , 148 N.M. 560 , 240 P.3d 15 (2010), addressed a similar issue in which an error in jury instructions prevented the defendant from presenting self-defense with regard to one of the assailants.

2010As a result, insofar as the jury is presumed to have read and followed the instructions, see State v. Gonzales, 113 N.M. 221, 230 , 824 P.2d 1023, 1032 (1992), we conclude that the jury was adequately informed. {11} We also note that our recent opinion State v. Sandoval, 2010-NMCA-025 , 147 N.M. 465 , 225 P.3d 795 (filed 2009), cert. granted, 2010-NMCERT-003 , 148 N.M. 560 , 240 P.3d 15 (2010), addressed a similar issue in which an error in jury instructions prevented the defendant from presenting self-defense with regard to one of the assailants.

2010As a result, insofar as the jury is presumed to have read and followed the instructions, see State v. Gonzales, 113 N.M. 221, 230 , 824 P.2d 1023, 1032 (1992), we conclude that the jury was adequately informed. {11} We also note that our recent opinion State v. Sandoval, 2010-NMCA-025 , 147 N.M. 465 , 225 P.3d 795 (filed 2009), cert. granted, 2010-NMCERT-003 , 148 N.M. 560 , 240 P.3d 15 (2010), addressed a similar issue in which an error in jury instructions prevented the defendant from presenting self-defense with regard to one of the assailants.

2010As a result, insofar as the jury is presumed to have read and followed the instructions, see State v. Gonzales, 113 N.M. 221, 230 , 824 P.2d 1023, 1032 (1992), we conclude that the jury was adequately informed. {11} We also note that our recent opinion State v. Sandoval, 2010-NMCA-025 , 147 N.M. 465 , 225 P.3d 795 (filed 2009), cert. granted, 2010-NMCERT-003 , 148 N.M. 560 , 240 P.3d 15 (2010), addressed a similar issue in which an error in jury instructions prevented the defendant from presenting self-defense with regard to one of the assailants.

2010As a result, insofar as the jury is presumed to have read and followed the instructions, see State v. Gonzales, 113 N.M. 221, 230 , 824 P.2d 1023, 1032 (1992), we conclude that the jury was adequately informed. {11} We also note that our recent opinion State v. Sandoval, 2010-NMCA-025 , 147 N.M. 465 , 225 P.3d 795 (filed 2009), cert. granted, 2010-NMCERT-003 , 148 N.M. 560 , 240 P.3d 15 (2010), addressed a similar issue in which an error in jury instructions prevented the defendant from presenting self-defense with regard to one of the assailants.

2025Accordingly, the district court was correct in recognizing that the voluntary manslaughter instruction suffices to instruct the jury regarding a valid claim of imperfect self-defense. {17} Defendant further cites Justice Minzner’s nonbinding concurrence-in-part, dissent-in-part in State v. Jernigan, 2006-NMSC-003, ¶ 34 , 139 N.M. 1 , 127 P.3d 537 , in which Justice Minzner reasoned: If facts that support imperfect self-defense always justify an instruction on provocation, we at least need an instruction on provocation that fits the circumstances in which, based on evidence supporting an imperf

2025Accordingly, the district court was correct in recognizing that the voluntary manslaughter instruction suffices to instruct the jury regarding a valid claim of imperfect self-defense. {17} Defendant further cites Justice Minzner’s nonbinding concurrence-in-part, dissent-in-part in State v. Jernigan, 2006-NMSC-003, ¶ 34 , 139 N.M. 1 , 127 P.3d 537 , in which Justice Minzner reasoned: If facts that support imperfect self-defense always justify an instruction on provocation, we at least need an instruction on provocation that fits the circumstances in which, based on evidence supporting an imperf

2024State v. Garcia, 2011-NMSC-003, ¶ 5 , 149 N.M. 185 , 246 P.3d 1057 (text only) (citations omitted). {41} The jury instructions in this case provided that the jury could find Defendant guilty of first-degree murder if it found that Defendant killed Victim “with the deliberate intention to take away the life” of Victim. 5 The findings that Defendant invited Victim into his truck, Victim’s blood was found in Defendant’s truck and on the sleeve of 5The Court does note that the State engages in roulette when only charging a defendant with first-degree murder without a step-down instruction to secon

2024State v. Garcia, 2011-NMSC-003, ¶ 5 , 149 N.M. 185 , 246 P.3d 1057 (text only) (citations omitted). {41} The jury instructions in this case provided that the jury could find Defendant guilty of first-degree murder if it found that Defendant killed Victim “with the deliberate intention to take away the life” of Victim. 5 The findings that Defendant invited Victim into his truck, Victim’s blood was found in Defendant’s truck and on the sleeve of 5The Court does note that the State engages in roulette when only charging a defendant with first-degree murder without a step-down instruction to secon

2023Cf. State v. Cummingham, 2000-NMSC-009, ¶ 21 , 128 N.M. 711 , 998 P.2d 176 (“[I]n a fundamental error analysis jury instructions should be considered as a whole and a failure to include an essential element in the elements section may be corrected by subsequent proper instructions that adequately addresses the omitted element.”).

2023Cf. State v. Cummingham, 2000-NMSC-009, ¶ 21 , 128 N.M. 711 , 998 P.2d 176 (“[I]n a fundamental error analysis jury instructions should be considered as a whole and a failure to include an essential element in the elements section may be corrected by subsequent proper instructions that adequately addresses the omitted element.”).

2019State v. Candelaria, 2019-NMSC-004 , ¶ 31, 434 P.3d 297 .

2018Cabezuela II, 2015-NMSC-016, ¶ 33 . 11 The district court gave a separate step-down instruction on negligent child abuse and 12 did not include failure-to-act language in its instruction on the elements of intentional 13 child abuse.

2015“When one offense is a lesser included offense of a crime named in 5 a charging document, the defendant is put on notice that he [or she] must defend not 6 only against the greater offense as charged but also against any lesser included 7 offense.” Collins, 2005-NMCA-044, ¶ 8 ; see also Davis, 2009-NMCA-067, ¶ 8 (“It 8 is improper to instruct the jury as to a crime not formally charged if that crime is not 9 a lesser[-]included offense of the crime formally charged.” (alteration in original)). 10 “The defendant’s constitutional right to notice of the crime against which he must 11 defend is a

2013We are not persuaded 17 that the step-down instruction was error. 18 “A defendant is considered to be on notice to defend against uncharged 19 lesser-included offenses.” State v. Davis, 2009-NMCA-067, ¶ 9 , 146 N.M. 550 , 212 15 1 P.3d 438 .

2011“The 2 1 propriety of denying a jury instruction is a mixed question of law and fact that we 2 review de novo.” State v. Gaines, 2001-NMSC-036, ¶ 4 , 131 N.M. 347 , 36 P.3d 438 . 3 Defendant’s argument is unavailing because possession of drug paraphernalia 4 is not a lesser-included offense to possession of a controlled substance “under the 5 facts of this case.” The tendered instruction did not provide that the paraphernalia 6 count must be considered if the possession count was rejected.

2011“The 2 1 propriety of denying a jury instruction is a mixed question of law and fact that we 2 review de novo.” State v. Gaines, 2001-NMSC-036, ¶ 4 , 131 N.M. 347 , 36 P.3d 438 . 3 Defendant’s argument is unavailing because possession of drug paraphernalia 4 is not a lesser-included offense to possession of a controlled substance “under the 5 facts of this case.” The tendered instruction did not provide that the paraphernalia 6 count must be considered if the possession count was rejected.

2008State v. Manus, 93 N.M. 95, 100 , 597 P.2d 280, 285 (1979), overruled on other grounds by Sells v. State, 98 N.M. 786 , 653 P.2d 162 (1982).

2008State v. Manus, 93 N.M. 95, 100 , 597 P.2d 280, 285 (1979), overruled on other grounds by Sells v. State, 98 N.M. 786 , 653 P.2d 162 (1982).

2005Otherwise, it would have been error for the court to instruct the jury on attempted second-degree murder, see id., and the appropriate step-down instruction from attempted first-degree murder would have been aggravated battery.

2005Otherwise, it would have been error for the court to instruct the jury on attempted second-degree murder, see id., and the appropriate step-down instruction from attempted first-degree murder would have been aggravated battery.

2005Defendant's tendered instruction was not refused because Defendant failed to include the word "voluntary," but rather because the trial court was persuaded that the appropriate step-down instruction from attempted second-degree murder was aggravated battery. {13} The present case is analogous to Hill , in which the Court of Appeals held the defendant had preserved his argument for a self-defense instruction for appellate review. 2001-NMCA-094, ¶ 7 , 131 N.M. 195 , 34 P.3d 139 .

2005Defendant's tendered instruction was not refused because Defendant failed to include the word "voluntary," but rather because the trial court was persuaded that the appropriate step-down instruction from attempted second-degree murder was aggravated battery. {13} The present case is analogous to Hill , in which the Court of Appeals held the defendant had preserved his argument for a self-defense instruction for appellate review. 2001-NMCA-094, ¶ 7 , 131 N.M. 195 , 34 P.3d 139 .