first part test in New Mexico

2026“Only if the first part of the test is answered in the affirmative, and the second in the negative, will the double jeopardy clause prohibit multiple punishment in the same trial.” State v. Silvas, 2015-NMSC-006, ¶ 9 , 343 P.3d 616 (internal quotation marks and citation omitted). {21} “When determining whether [a d]efendant’s conduct was unitary, we consider whether [the d]efendant’s acts are separated by sufficient indicia of distinctness.” DeGraff, 2006-NMSC-011, ¶ 27 (internal quotation marks and citation omitted).

2025“Only if the first part of the test is answered in the affirmative, and the second in the negative, will the double jeopardy clause prohibit multiple punishment in the same trial.” Id. (internal quotation marks and citation omitted). {10} “When determining whether [a d]efendant’s conduct was unitary, we consider whether [a d]efendant’s acts are separated by sufficient indicia of distinctness.” DeGraff, 2006-NMSC-011, ¶ 27 (internal quotation marks and citation omitted).

2024Double description claims are subject to the two-part test adopted by our Supreme Court in Swafford v. State, 1991-NMSC-043 , ¶ 25, 112 N.M. 3 , 810 P.2d 1223 . {24} Under the first part of the test, we review “whether the conduct underlying the offenses is unitary.” Id.

2024Double description claims are subject to the two-part test adopted by our Supreme Court in Swafford v. State, 1991-NMSC-043 , ¶ 25, 112 N.M. 3 , 810 P.2d 1223 . {24} Under the first part of the test, we review “whether the conduct underlying the offenses is unitary.” Id.

2025Id. ¶ 26; see State v. Sena, 2020-NMSC-011, ¶ 46 , 470 P.3d 227 .

2025Id. ¶ 26; see State v. Sena, 2020-NMSC-011, ¶ 46 , 470 P.3d 227 .

2023See State v. 20 Begaye, ___-NMSC-___, ¶ 13, ___ P.3d ___ (S-1-SC-38797, Jan. 12, 2023). “‘Only 3 1 if the first part of the test is answered in the affirmative, and the second in the 2 negative, will the double jeopardy clause prohibit multiple punishment in the same 3 trial.’” Id. (quoting Swafford, 1991-NMSC-043 , ¶ 25.) 4 {7} A defendant’s conduct is unitary “if the acts are not separated by sufficient 5 indicia of distinctness.” State v. Porter, 2020-NMSC-020, ¶ 12 , 476 P.3d 1201 6 (internal quotation marks and citation omitted).

2023See State v. 20 Begaye, ___-NMSC-___, ¶ 13, ___ P.3d ___ (S-1-SC-38797, Jan. 12, 2023). “‘Only 3 1 if the first part of the test is answered in the affirmative, and the second in the 2 negative, will the double jeopardy clause prohibit multiple punishment in the same 3 trial.’” Id. (quoting Swafford, 1991-NMSC-043 , ¶ 25.) 4 {7} A defendant’s conduct is unitary “if the acts are not separated by sufficient 5 indicia of distinctness.” State v. Porter, 2020-NMSC-020, ¶ 12 , 476 P.3d 1201 6 (internal quotation marks and citation omitted).

2026“Only if the first part of the test is answered in the affirmative, and the second in the negative, will the double jeopardy clause prohibit multiple punishment in the same trial.” State v. Silvas, 2015-NMSC-006, ¶ 9 , 343 P.3d 616 (internal quotation marks and citation omitted). {21} “When determining whether [a d]efendant’s conduct was unitary, we consider whether [the d]efendant’s acts are separated by sufficient indicia of distinctness.” DeGraff, 2006-NMSC-011, ¶ 27 (internal quotation marks and citation omitted).

2024“Only if the first part of the test is answered in the affirmative, and the second in the negative, will the double jeopardy clause prohibit multiple punishment in the same trial.” Id. (internal quotation marks and citation omitted). {40} Conduct is not unitary when “the jury reasonably could have inferred independent factual bases for the charged offenses.” State v. Melendrez, 2014-NMCA-062, ¶ 8 , 326 P.3d 1126 (internal quotation marks and citation omitted).

2008State v. Franco, 2005-NMSC-013, ¶ 5 , 137 N.M. 447 , 112 P.3d 1104 . {13} Swafford set forth the test for double jeopardy violations in double-description eases: Under the first part of the analysis, ... the task is merely to determine whether the conduct for which there are multiple charges is discrete (unitary) or distinguishable.

2008State v. Franco, 2005-NMSC-013, ¶ 5 , 137 N.M. 447 , 112 P.3d 1104 . {13} Swafford set forth the test for double jeopardy violations in double-description eases: Under the first part of the analysis, ... the task is merely to determine whether the conduct for which there are multiple charges is discrete (unitary) or distinguishable.

2024“Only if the first part of the test is answered in the affirmative, and the second in the negative, will the double jeopardy clause prohibit multiple punishment in the same trial.” Id. (internal quotation marks and citation omitted). {19} Defendant contends that his conviction for CSP elevated the kidnapping charge from a second-degree to a first-degree offense, resulting in a double jeopardy violation because the two convictions were based on unitary conduct and the CSP conviction was subsumed in his kidnapping conviction.

2023See State v. Begaye, 2023-NMSC-015 , ¶ 13, 533 P.3d 1057 . ‘“Only if the first part of the test is answered in the affirmative, and the second in the negative, will the double jeopardy clause prohibit multiple punishment in the same trial.’” Id. (quoting Swafford, 1991-NMSC-043 , ¶ 25). {14} We first conclude that the conduct in this case was unitary.

2023See, e.g., Porter, 2020-NMSC-020, ¶ 12 (explaining that our unitary conduct inquiry examines whether the conduct underlying both convictions is sufficiently distinct as to time, place, or action); see also State v. Swick, 2012-NMSC-018, ¶ 11 , 279 P.3d 747 ; Gutierrez, 2011-NMSC-024, ¶ 51 (applying substantially the same analysis in discerning whether the conduct underlying the two convictions was unitary).

2022Only if the first part of the test is answered in the affirmative, and the second in the negative, will the double jeopardy clause prohibit multiple punishment in the same trial.” Swafford, 1991-NMSC-043 , ¶ 25. {8} Our Supreme Court has previously held that our Legislature did not authorize multiple punishments for attempted murder and aggravated battery with a deadly weapon for the same conduct.1 Swick, 2012-NMSC-018, ¶ 29 (stating that “the social harms addressed by each statute do not conclusively indicate an intent to punish separately” and that “both statutes address the social evil of h

2019But we need not undertake a unitary conduct analysis here because 8 Defendant “cannot carry the burden imposed by the second prong of the Swafford 9 test.” Ramirez, 2018-NMSC-003, ¶ 42 ; see also State v. Bahney, 2012-NMCA- 10 039, ¶ 21, 274 P.3d 134 (stating that it is permissible to presume unitary conduct 11 because “our case law separately makes it clear that analysis pursuant to either 12 prong can be dispositive of a Swafford-governed double jeopardy challenge”). 13 {16} “The sole limitation on multiple punishments is legislative intent[.]” State v. 14 Franco, 2005-NMSC-013, ¶ 12 , 137 N

2008State v. Franco, 2005-NMSC-013, ¶ 5 , 137 N.M. 447 , 112 P.3d 1104 . {13} Swafford set forth the test for double jeopardy violations in double-description eases: Under the first part of the analysis, ... the task is merely to determine whether the conduct for which there are multiple charges is discrete (unitary) or distinguishable.

2024The second Swafford prong on legislative intent may take the form of a strict-elements test, as set forth in Blockburger v. United States, 284 U.S. 299, 304 (1932) (examining the criminal statutes to determine whether each offense requires proof of an element that the other does not; and if not, concluding that the elements of one offense subsume the other and convictions cannot be had for both), or a modified form of the Blockburger test, as adopted by our Supreme Court in State v. Gutierrez, 2011-NMSC-024, ¶¶ 48, 58-59 , 150 N.M. 232 , 258 P.3d 1024 (examining, as in Blockburger, whether eac

2023See, e.g., Porter, 2020-NMSC-020, ¶ 12 (explaining that our unitary conduct inquiry examines whether the conduct underlying both convictions is sufficiently distinct as to time, place, or action); see also State v. Swick, 2012-NMSC-018, ¶ 11 , 279 P.3d 747 ; Gutierrez, 2011-NMSC-024, ¶ 51 (applying substantially the same analysis in discerning whether the conduct underlying the two convictions was unitary).

2024The second Swafford prong on legislative intent may take the form of a strict-elements test, as set forth in Blockburger v. United States, 284 U.S. 299, 304 (1932) (examining the criminal statutes to determine whether each offense requires proof of an element that the other does not; and if not, concluding that the elements of one offense subsume the other and convictions cannot be had for both), or a modified form of the Blockburger test, as adopted by our Supreme Court in State v. Gutierrez, 2011-NMSC-024, ¶¶ 48, 58-59 , 150 N.M. 232 , 258 P.3d 1024 (examining, as in Blockburger, whether eac

1991See, e.g., Blockburger, 284 U.S. at 299 , 52 S.Ct. at 180 (after stating that it was a single sale of narcotics that triggered prosecution for two statutory offenses Court reaches the statutory question); Whalen, 445 U.S. at 684 , 100 S.Ct. at 715 (before addressing question of legislative intent to authorize multiple punishment, Court notes that rape and murder occurred in “single criminal episode”).

2023See State v. Vest, 2021-NMSC-020, ¶ 18 , 488 P.3d 626 (reiterating that 3 statutes should not be interpreted to render any part superfluous).

2023See State v. Vest, 2021-NMSC-020, ¶ 18 , 488 P.3d 626 (reiterating that 3 statutes should not be interpreted to render any part superfluous).

2019But we need not undertake a unitary conduct analysis here because Defendant “cannot carry the burden imposed by the second prong of the Swafford test.” Ramirez, 2018- NMSC-003, ¶ 42; see also State v. Bahney, 2012-NMCA-039, ¶ 21 , 274 P.3d 134 (stating that it is permissible to presume unitary conduct because “our case law separately makes it clear that analysis pursuant to either prong can be dispositive of a Swafford-governed double jeopardy challenge”). {16} “The sole limitation on multiple punishments is legislative intent[.]” State v. Franco, 2005-NMSC-013, ¶ 12 , 137 N.M. 447 , 112 P.3d

2019“Only if the first part of the test is answered in the affirmative, and the second in the negative, will the double jeopardy clause prohibit multiple punishment in the same trial.” State v. Silvas, 2015-NMSC-006, ¶ 9 , 343 P.3d 616 (internal quotation marks and citation omitted). {8} In this instance, we assume without deciding that Defendant’s conduct was unitary because he “cannot carry the burden imposed by the second prong of the Swafford test.” State v. Ramirez, 2018-NMSC-003, ¶ 42 , 409 P.3d 902 ; see also State v. Bahney, 2012-NMCA-039, ¶ 21 , 274 P.3d 134 (stating that it is permissibl

2015See id. ¶¶ 2, 6 (holding that State 7 Road 16, which separates the Santo Domingo and Cochiti Pueblos and is located on 8 land owned by the federal government and administered by the U.S. Forest Service, 9 is not a dependent Indian community because “there is no evidence of any explicit 10 congressional or executive action recognizing State Road 16 as Indian country”); 11 Frank, 2002-NMSC-026, ¶¶ 4, 11, 23 (holding that a state road located on federally 12 owned and administered land within a “checkerboard area” was not a dependent 13 Indian community because there was “‘no evidence . . . indic

2015See id. ¶¶ 2, 6 (holding that State Road 16, which separates the Santo Domingo and Cochiti Pueblos and is located on land owned by the federal government and administered by the U.S. Forest Service, is not a dependent Indian community because “there is no evidence of any explicit congressional or executive action recognizing State Road 16 as Indian country”); Frank, 2002-NMSC-026, ¶¶ 4, 11, 23 (holding that a state road located on federally owned and administered land within a “checkerboard area” was not a dependent Indian community because there was “‘no evidence . . . indicating that the are

2015See id. ¶¶ 2, 6 (holding that State 7 Road 16, which separates the Santo Domingo and Cochiti Pueblos and is located on 8 land owned by the federal government and administered by the U.S. Forest Service, 9 is not a dependent Indian community because “there is no evidence of any explicit 10 congressional or executive action recognizing State Road 16 as Indian country”); 11 Frank, 2002-NMSC-026, ¶¶ 4, 11, 23 (holding that a state road located on federally 12 owned and administered land within a “checkerboard area” was not a dependent 13 Indian community because there was “‘no evidence . . . indic

2015See id. ¶¶ 2, 6 (holding that State Road 16, which separates the Santo Domingo and Cochiti Pueblos and is located on land owned by the federal government and administered by the U.S. Forest Service, is not a dependent Indian community because “there is no evidence of any explicit congressional or executive action recognizing State Road 16 as Indian country”); Frank, 2002-NMSC-026, ¶¶ 4, 11, 23 (holding that a state road located on federally owned and administered land within a “checkerboard area” was not a dependent Indian community because there was “‘no evidence . . . indicating that the are

2011"Whether a defendant has standing involves two inquiries: (1) whether the defendant had an actual, subjective expectation of privacy in the premises searched; and (2) whether the defendant's `subjective expectation [is] one that society is prepared to recognize as reasonable.'" State v. Zamora, 2005-NMCA-039, ¶ 10 , 137 N.M. 301 , 110 P.3d 517 (quoting State v. Esguerra, 113 N.M. 310, 313 , 825 P.2d 243, 246 (Ct.App.1991) (alteration in original)). *997 {8} The State concedes that Defendants satisfied the first part of this inquiry in that they had an actual and subjective expectation of priva

2011"Whether a defendant has standing involves two inquiries: (1) whether the defendant had an actual, subjective expectation of privacy in the premises searched; and (2) whether the defendant's `subjective expectation [is] one that society is prepared to recognize as reasonable.'" State v. Zamora, 2005-NMCA-039, ¶ 10 , 137 N.M. 301 , 110 P.3d 517 (quoting State v. Esguerra, 113 N.M. 310, 313 , 825 P.2d 243, 246 (Ct.App.1991) (alteration in original)). *997 {8} The State concedes that Defendants satisfied the first part of this inquiry in that they had an actual and subjective expectation of priva

2024“Only if the first part of the test is answered in the affirmative, and the second in the negative, will the double jeopardy clause prohibit multiple punishment in the same trial.” Id. (internal quotation marks and citation omitted). {40} Conduct is not unitary when “the jury reasonably could have inferred independent factual bases for the charged offenses.” State v. Melendrez, 2014-NMCA-062, ¶ 8 , 326 P.3d 1126 (internal quotation marks and citation omitted).

2019“Only if the first part of the test is answered in the affirmative, and the second in the negative, will the double jeopardy clause prohibit multiple punishment in the same trial.” Id. {15} In double-description cases, conduct is not unitary and multiple punishments are authorized if there is “an identifiable point at which one of the charged crimes ha[s] been completed and the other not yet committed.” State v. DeGraff, 2006-NMSC-011, ¶ 27 , 139 N.M. 211 , 131 P.3d 61 ; see State v. Melendrez, 2014-NMCA-062, ¶ 10 , 326 P.3d 1126 (“[W]hen there is an identifiable point between the completion o

2025Under the first part of the test, when a trial court becomes “aware that a member of a given venire has difficulty with either English or Spanish or both,” the trial court must “determine whether the difficulty will prevent the juror from following the proceedings.” Rico, 2002-NMSC-022, ¶ 16 ; see also id. ¶ 1 (recognizing that a juror needs an interpreter if they are “not otherwise able to participate in court proceedings” due to language barriers); Rule 5-122(B)(1) (“The need for a court interpreter exists whenever a case participant is unable to hear, speak, or otherwise communicate in the

2025Under the first part of the test, when a trial court becomes “aware that a 6 member of a given venire has difficulty with either English or Spanish or both,” the 7 trial court must “determine whether the difficulty will prevent the juror from 8 following the proceedings.” Rico, 2002-NMSC-022, ¶ 16 ; see also id. ¶ 1 9 (recognizing that a juror needs an interpreter if they are “not otherwise able to 10 participate in court proceedings” due to language barriers); Rule 5-122(B)(1) (“The 11 need for a court interpreter exists whenever a case participant is unable to hear, 12 speak, or otherwise co