double jeopardy clause in New Mexico

2026State v. Lorenzo, 2024- NMSC-003, ¶ 5, 545 P.3d 1156 . {10} One of the protections of the double jeopardy clause of the Fifth Amendment to the United States Constitution is the prohibition of “multiple punishments for the same offense.” Swafford v. State, 1991-NMSC-043 , ¶ 6, 112 N.M. 3 , 810 P.2d 1223 (internal quotation marks and citation omitted).

2026State v. Lorenzo, 2024- NMSC-003, ¶ 5, 545 P.3d 1156 . {10} One of the protections of the double jeopardy clause of the Fifth Amendment to the United States Constitution is the prohibition of “multiple punishments for the same offense.” Swafford v. State, 1991-NMSC-043 , ¶ 6, 112 N.M. 3 , 810 P.2d 1223 (internal quotation marks and citation omitted).

2026“A double jeopardy challenge is a constitutional question of law which we review de novo.” State v. Swick, 2012-NMSC-018, ¶ 10 , 279 P.3d 747 . {6} Both the United States and New Mexico Constitutions provide that “No person shall be . . . twice put in jeopardy” for the same offense.

2025Defendant’s Convictions of Criminal Conspiracy and Criminal Solicitation Do Not Violate Double Jeopardy Protections {48} “A double jeopardy challenge is a constitutional question of law which we review de novo.” State v. Swick, 2012-NMSC-018, ¶ 10 , 279 P.3d 747 . {49} Defendant argues that her convictions of conspiracy to commit first-degree murder and criminal solicitation of first-degree murder violate double jeopardy protections afforded by the Fifth Amendment to the United States Constitution.

2025See State v. Graham, 2003-NMCA-127, ¶ 8 , 134 N.M. 613 , 81 P.3d 556 (observing parenthetically that “when the record does not support the factual basis for a contention that may be raised for the first time on appeal, the preferred method of resolution of the issue is in habeas corpus proceedings”), rev’d on other grounds, 2005 NMSC-004, 137 N.M. 197 , 109 P.3d 285 ; see, e.g., Kersey v. Hatch, 2010-NMSC-020, ¶ 26 , 148 N.M. 381 , 237 P.3d 683 (addressing a double jeopardy argument on review of habeas proceedings); State v. Nunez, 2000-NMSC-013 , ¶ 98, 129 N.M. 63 , 2 P.3d 264 (stating that “

2025See State v. Graham, 2003-NMCA-127, ¶ 8 , 134 N.M. 613 , 81 P.3d 556 (observing parenthetically that “when the record does not support the factual basis for a contention that may be raised for the first time on appeal, the preferred method of resolution of the issue is in habeas corpus proceedings”), rev’d on other grounds, 2005 NMSC-004, 137 N.M. 197 , 109 P.3d 285 ; see, e.g., Kersey v. Hatch, 2010-NMSC-020, ¶ 26 , 148 N.M. 381 , 237 P.3d 683 (addressing a double jeopardy argument on review of habeas proceedings); State v. Nunez, 2000-NMSC-013 , ¶ 98, 129 N.M. 63 , 2 P.3d 264 (stating that “

2025Defendant’s Convictions of Criminal Conspiracy and Criminal 12 Solicitation Do Not Violate Double Jeopardy Protections 13 {48} “A double jeopardy challenge is a constitutional question of law which we 14 review de novo.” State v. Swick, 2012-NMSC-018, ¶ 10 , 279 P.3d 747 . 15 {49} Defendant argues that her convictions of conspiracy to commit first-degree 16 murder and criminal solicitation of first-degree murder violate double jeopardy 17 protections afforded by the Fifth Amendment to the United States Constitution. 18 When we conclude that there was a double jeopardy violation, we “vacate the

2025When we conclude that there was a double jeopardy violation, we “vacate the conviction carrying the shorter sentence.” State v. Montoya, 2013-NMSC-020, ¶ 55 , 306 P.3d 426 . {50} “Double jeopardy protects against multiple punishments for the same offense.” State v. Silvas, 2015-NMSC-006, ¶ 8 , 343 P.3d 616 .

2022See State v. Sanchez, 1996- NMCA-089, ¶ 11, 122 N.M. 280 , 923 P.2d 1165 (explaining that a guilty plea does not necessarily waive a claim of double jeopardy, although the defendant should reserve the issue in the plea agreement and must present a record capable of review for this Court to engage in a double jeopardy analysis); see also State v. Andazola, 2003- NMCA-146, ¶ 27, 134 N.M. 710 , 82 P.3d 77 (explaining that the defendant’s burden to provide a sufficient record and complete the double jeopardy analysis is “fundamentally fair to the state which must have the opportunity to contest [t

2022See State v. Sanchez, 1996- NMCA-089, ¶ 11, 122 N.M. 280 , 923 P.2d 1165 (explaining that a guilty plea does not necessarily waive a claim of double jeopardy, although the defendant should reserve the issue in the plea agreement and must present a record capable of review for this Court to engage in a double jeopardy analysis); see also State v. Andazola, 2003- NMCA-146, ¶ 27, 134 N.M. 710 , 82 P.3d 77 (explaining that the defendant’s burden to provide a sufficient record and complete the double jeopardy analysis is “fundamentally fair to the state which must have the opportunity to contest [t

2020State v. Sanchez, 1996-NMCA-089 , ¶ 11, 122 N.M. 280 , 923 P.2d 1165 ; see State v. Wood, 1994-NMCA-060 , ¶ 19, 117 N.M. 682 , 875 P.2d 1113 (stating that “a factual basis must appear in the record” to support a double jeopardy claim); State v. Jackson, 1993- NMCA-092, ¶¶ 4, 18-19, 116 N.M. 130 , 860 P.2d 772 (analyzing a double jeopardy claim from facts established during the sentencing hearing); State v. Tsethlikai, 1989- NMCA-107, ¶¶ 2, 8-9, 109 N.M. 371 , 785 P.2d 282 (analyzing a double jeopardy claim from facts in a sentencing memorandum). {21} To support his claim, Defendant points us t

2017See State v. Wood, 1994-NMCA-060 , ¶ 19, 117 N.M. 11 682 , 875 P.2d 1113 (acknowledging double jeopardy issues may be raised at any time 12 “either before or after judgment,” but providing that “a factual basis must appear in 13 the record in order to support such claim”); see also State v. Antillon, 14 2000-NMSC-014 , ¶ 6, 129 N.M. 114 , 2 P.3d 315 (recognizing double jeopardy claims 15 may not be waived and citing Wood for the proposition that a double jeopardy 16 defense “must be supported by a factual basis in the record”); State v. Sanchez, 17 1996-NMCA-089 , ¶ 11, 122 N.M. 280 , 923 P.2d

2024See State v. Bernal, 2006- NMSC-050, ¶ 6, 140 N.M. 644 , 146 P.3d 289 (“A double jeopardy claim is a question of law that we review de novo.”).

2024See State v. Bernal, 2006- NMSC-050, ¶ 6, 140 N.M. 644 , 146 P.3d 289 (“A double jeopardy claim is a question of law that we review de novo.”).

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).

2025“The proper analysis is not what a reasonable jury could have concluded 5 but whether there are ‘sufficient facts in the record’ to support distinct conduct which 6 would defeat a double jeopardy claim.” State v. Phillips, 2024-NMSC-009 , ¶ 41, 548 7 P.3d 51 (quoting State v. Sanchez, 1996-NMCA-089 , ¶ 11, 122 N.M. 280 , 923 P.2d 8 1165 ). 9 {22} As the State argues, “Defendant’s intent was not limited to assaulting 10 [Victim]—Defendant also intended specifically to shoot the dwelling,” and we 11 agree.

2024Phillips II, 2021-NMCA-062, ¶¶ 24-25 (stating that the 5 The State argues that “Defendant has the burden of creating the factual record for a double jeopardy claim,” and because he did not specify within his guilty plea “whether the underlying factual basis was the rifle shot alone or all the gunshots, the Court of Appeals should have resolved any lack of clarity on that issue against Defendant.” Although our case law requires a defendant who pleads guilty to “provide a sufficient record for the court to determine unitary conduct,” see State v. Sanchez, 1996-NMCA-089 , ¶ 11, 122 N.M. 280 , 923

2024“We generally apply a de novo standard of review to the constitutional question of whether there has been a double jeopardy violation.” State v. Cummings, 2018-NMCA-055 , ¶ 6, 425 P.3d 745 .

2022“We generally apply a de novo standard of review to the 13 constitutional question of whether there has been a double jeopardy violation.” State 14 v. Cummings, 2018-NMCA-055 , ¶ 6, 425 P.3d 745 .

2023The double jeopardy clause protects 17 against (1) “a second prosecution for the same offense after acquittal,” (2) “a second 18 prosecution for the same offense after conviction,” and (3) “multiple punishments 19 for the same offense.” Id. (internal quotation marks and citation omitted).

2023The double jeopardy clause protects 3 against (1) “a second prosecution for the same offense after acquittal,” (2) “a second 4 prosecution for the same offense after conviction,” and (3) “multiple punishments 5 for the same offense.” Id. (internal quotation marks and citation omitted).

2025The analysis starts with the comparison of the elements of 17 the two statutes, using the original double jeopardy test adopted by the United States 18 Supreme Court in Blockburger v. United States, 284 U.S. 299 (1932).

2024State v. Blevins, 1936-NMSC- 8 052, ¶ 10, 40 N.M. 367 , 60 P.2d 208 ; see also Blockburger, 284 U.S. at 304 (holding 9 a double jeopardy violation did not occur if each statute contained an element of 10 proof not required by the other).

2024The Foster presumption applies when a jury instruction permits the jury to convict a defendant based on an alternative that would result in a double jeopardy violation, and “the record does not disclose whether the jury relied on this legally inadequate alternative.” Foster, 1999- NMSC-007, ¶ 28; see State v. Sena, 2020-NMSC-011, ¶ 54 , 470 P.3d 227 (explaining the rebuttable presumption). {6} If we determine that Defendant’s conduct was unitary, we next consider “whether the Legislature intended for the unitary conduct to be punished as separate offenses.” Lorenzo, 2024-NMSC-003 , ¶ 5.

2024The Foster presumption applies when a jury instruction permits the jury to convict a defendant based on an alternative that would result in a double jeopardy violation, and “the record does not disclose whether the jury relied on this legally inadequate alternative.” Foster, 1999- NMSC-007, ¶ 28; see State v. Sena, 2020-NMSC-011, ¶ 54 , 470 P.3d 227 (explaining the rebuttable presumption). {6} If we determine that Defendant’s conduct was unitary, we next consider “whether the Legislature intended for the unitary conduct to be punished as separate offenses.” Lorenzo, 2024-NMSC-003 , ¶ 5.

2024DISCUSSION {9} The Fifth Amendment to the United States Constitution provides that “[n]o person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb.” The double jeopardy clause prohibits a court from “imposing multiple punishments for the same offense.” State v. Porter, 2020-NMSC-020, ¶ 5 , 476 P.3d 1201 (text only) 1 0F (citation omitted).

2024DISCUSSION 13 {9} The Fifth Amendment to the United States Constitution provides that “[n]o 14 person shall . . . be subject for the same offense to be twice put in jeopardy of life or 15 limb.” The double jeopardy clause prohibits a court from “imposing multiple 16 punishments for the same offense.” State v. Porter, 2020-NMSC-020, ¶ 5 , 476 P.3d 5 1 1201 (text only)1 (citation omitted).

2020State v. Sanchez, 1996-NMCA-089 , ¶ 11, 122 N.M. 280 , 923 P.2d 1165 ; see State v. Wood, 1994-NMCA-060 , ¶ 19, 117 N.M. 682 , 875 P.2d 1113 (stating that “a factual basis must appear in the record” to support a double jeopardy claim); State v. Jackson, 1993- NMCA-092, ¶¶ 4, 18-19, 116 N.M. 130 , 860 P.2d 772 (analyzing a double jeopardy claim from facts established during the sentencing hearing); State v. Tsethlikai, 1989- NMCA-107, ¶¶ 2, 8-9, 109 N.M. 371 , 785 P.2d 282 (analyzing a double jeopardy claim from facts in a sentencing memorandum). {21} To support his claim, Defendant points us t

2017See State v. Wood, 1994-NMCA-060 , ¶ 19, 117 N.M. 682 , 875 P.2d 1113 (acknowledging double jeopardy issues may be raised at any time “either before or after judgment,” but providing that “a factual basis must appear in the record in order to support such claim”); see also State v. Antillon, 2000-NMSC-014 , ¶ 6, 129 N.M. 114 , 2 P.3d 315 (recognizing double jeopardy claims may not be waived and citing Wood for the proposition that a double jeopardy defense “must be supported by a factual basis in the record”); State v. Sanchez, 1996-NMCA-089 , ¶ 11, 122 N.M. 280 , 923 P.2d 1165 (stating that t

2024The double jeopardy clause “protects defendants from receiving multiple punishments for the same offense.” State v. Ramirez, 2018-NMSC-003, ¶ 38 , 409 P.3d 902 (internal quotation marks and citation omitted); see U.S. Const. amend.

2023Double Jeopardy 9 {5} The double jeopardy clause “protects defendants from receiving multiple 10 punishments for the same offense.” State v. Ramirez, 2018-NMSC-003, ¶ 38 , 409 11 P.3d 902 (internal quotation marks and citation omitted); see U.S. Const. amend.

2026Standard of review 6 {27} “A double jeopardy challenge presents a question of constitutional law, which 7 we review de novo.” State v. Torres, 2018-NMSC-013, ¶ 17 , 413 P.3d 467 . 8 2.

2025Standard of review 10 {38} “A double jeopardy challenge presents a question of constitutional law, which 11 we review de novo.” State v. Torres, 2018-NMSC-013, ¶ 17 , 413 P.3d 467 . 12 2.

2025Legal Standard for Double Jeopardy Bar 5 {36} In State v. Breit, 1996-NMSC-067, ¶ 32 , 122 N.M. 655 , 930 P.2d 792 , we 6 established the test for whether official misconduct presents a double jeopardy bar 7 to a retrial under Article II, Section 15 of the New Mexico Constitution.

2025Legal Standard for Double Jeopardy Bar 5 {36} In State v. Breit, 1996-NMSC-067, ¶ 32 , 122 N.M. 655 , 930 P.2d 792 , we 6 established the test for whether official misconduct presents a double jeopardy bar 7 to a retrial under Article II, Section 15 of the New Mexico Constitution.

2025Legal Standard for Double Jeopardy Bar 5 {36} In State v. Breit, 1996-NMSC-067, ¶ 32 , 122 N.M. 655 , 930 P.2d 792 , we 6 established the test for whether official misconduct presents a double jeopardy bar 7 to a retrial under Article II, Section 15 of the New Mexico Constitution.

2025In Breit, we 8 held that official misconduct at trial will result in a double jeopardy bar to retrial 9 when the misconduct (1) “is so unfairly prejudicial to the defendant that it cannot be 10 cured by means short of a mistrial or a motion for new trial,” (2) “the official knows 11 that the conduct is improper and prejudicial,” and (3) “the official either intends to 12 provoke a mistrial or acts in willful disregard of the resulting mistrial, retrial, or 13 reversal.” 1996-NMSC-067 , ¶ 32.

2025See Phillips, 2024-NMSC-009 , ¶ 38 (stating “[u]nitary conduct is not present when one crime is completed before another is committed, or when the force used to commit a crime is separate from the force used to commit another crime.” (internal quotation marks and citation omitted)); State v. Saiz, 2008-NMSC-048, ¶ 34 , 144 N.M. 663 , 191 P.3d 521 (holding that there was not a double jeopardy violation when the evidence of defendant’s intent to kidnap victim for the purpose of sexual assault was separate from defendant’s intent to murder victim), abrogated on other grounds by State v. Belanger,

2025See Phillips, 2024-NMSC-009 , ¶ 38 (stating “[u]nitary conduct is not present when one crime is completed before another is committed, or when the force used to commit a crime is separate from the force used to commit another crime.” (internal quotation marks and citation omitted)); State v. Saiz, 2008-NMSC-048, ¶ 34 , 144 N.M. 663 , 191 P.3d 521 (holding that there was not a double jeopardy violation when the evidence of defendant’s intent to kidnap victim for the purpose of sexual assault was separate from defendant’s intent to murder victim), abrogated on other grounds by State v. Belanger,

2025“We generally review double jeopardy claims de novo . . . , [but] where factual issues are intertwined with the double jeopardy analysis, we review the trial court’s fact determinations under a deferential substantial evidence standard of review.” See State v. Rodriguez, 2006-NMSC-018, ¶ 3 , 139 N.M. 450 , 134 P.3d 737 (citation omitted). {8} The double jeopardy clause of the Fifth Amendment to the United States Constitution provides that no “person [shall] be subject for the same offense to be twice put in jeopardy of life or limb.” State v. Baca, 2015-NMSC-021, ¶ 20 , 352 P.3d 115 (omission,

2025“We generally review double jeopardy claims de novo . . . , [but] where factual issues are intertwined with the double jeopardy analysis, we review the trial court’s fact determinations under a deferential substantial evidence standard of review.” See State v. Rodriguez, 2006-NMSC-018, ¶ 3 , 139 N.M. 450 , 134 P.3d 737 (citation omitted). {8} The double jeopardy clause of the Fifth Amendment to the United States Constitution provides that no “person [shall] be subject for the same offense to be twice put in jeopardy of life or limb.” State v. Baca, 2015-NMSC-021, ¶ 20 , 352 P.3d 115 (omission,

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).

2025When we conclude that there was a double jeopardy violation, we “vacate the conviction carrying the shorter sentence.” State v. Montoya, 2013-NMSC-020, ¶ 55 , 306 P.3d 426 . {50} “Double jeopardy protects against multiple punishments for the same offense.” State v. Silvas, 2015-NMSC-006, ¶ 8 , 343 P.3d 616 .

2020We therefore take this opportunity to conduct a full double jeopardy analysis of these two crimes. {15} “The sole limitation on multiple punishments is legislative intent[.]” State v. Franco, 2005-NMSC-013, ¶ 12 , 137 N.M. 447 , 112 P.3d 1104 (alteration, internal quotation marks, and citation omitted); see also State v. Gutierrez, 2011-NMSC-024, ¶ 50 , 150 N.M. 232 , 258 P.3d 1024 (explaining that “legislative intent must be the touchstone of our inquiry” in multiple punishment analysis (internal quotation marks and citation omitted)).

2020We therefore take this opportunity to conduct a full double jeopardy analysis of these two crimes. {15} “The sole limitation on multiple punishments is legislative intent[.]” State v. Franco, 2005-NMSC-013, ¶ 12 , 137 N.M. 447 , 112 P.3d 1104 (alteration, internal quotation marks, and citation omitted); see also State v. Gutierrez, 2011-NMSC-024, ¶ 50 , 150 N.M. 232 , 258 P.3d 1024 (explaining that “legislative intent must be the touchstone of our inquiry” in multiple punishment analysis (internal quotation marks and citation omitted)).

2025Defendant’s Conduct Was Unitary {40} In determining whether Defendant’s conduct is unitary, the first prong of the double jeopardy test, we must determine whether the two offenses the jury found Defendant committed were separated by “sufficient indicia of distinctness.” Id. ¶ 26. {41} Our Supreme Court recently held that in determining whether the conduct forming the basis of each conviction in a double description case is sufficiently distinct to avoid a double jeopardy violation, our courts should rely on the six factors identified in Herron v. State, 1991-NMSC-012 , ¶ 15, 111 N.M. 357 , 805

2025Defendant’s Conduct Was Unitary {40} In determining whether Defendant’s conduct is unitary, the first prong of the double jeopardy test, we must determine whether the two offenses the jury found Defendant committed were separated by “sufficient indicia of distinctness.” Id. ¶ 26. {41} Our Supreme Court recently held that in determining whether the conduct forming the basis of each conviction in a double description case is sufficiently distinct to avoid a double jeopardy violation, our courts should rely on the six factors identified in Herron v. State, 1991-NMSC-012 , ¶ 15, 111 N.M. 357 , 805

2026“Among its protections, the double jeopardy clause protects a defendant against 6 multiple punishments for the same offense.” State v. Gonzales, 2007-NMSC-059 , ¶¶ 7 10-11, 143 N.M. 25 , 172 P.3d 162 .

2026“Among its protections, the double jeopardy clause protects a defendant against 6 multiple punishments for the same offense.” State v. Gonzales, 2007-NMSC-059 , ¶¶ 7 10-11, 143 N.M. 25 , 172 P.3d 162 .

2020We therefore take this opportunity to conduct a full double jeopardy analysis of these two crimes. {15} “The sole limitation on multiple punishments is legislative intent[.]” State v. Franco, 2005-NMSC-013, ¶ 12 , 137 N.M. 447 , 112 P.3d 1104 (alteration, internal quotation marks, and citation omitted); see also State v. Gutierrez, 2011-NMSC-024, ¶ 50 , 150 N.M. 232 , 258 P.3d 1024 (explaining that “legislative intent must be the touchstone of our inquiry” in multiple punishment analysis (internal quotation marks and citation omitted)).

2009Whether a defendant’s convictions constitute multiple punishments for the same offense as barred by the double jeopardy clause “is a question of legislative intent, which we review de novo.” State v. Franco, 2005-NMSC-013, ¶5 , 137 N.M. 447 , 112 P.3d 1104 ; State v. Caldwell, 2008-NMCA-049 , ¶ 5, 143 N.M. 792 , 182 P.3d 775 , cert. denied, 2008-NMCERT-003 , 143 N.M. 681 , 180 P.3d 1180 .

2026“The double jeopardy clause protects against (1) a second prosecution 12 for the same offense after acquittal, (2) a second prosecution for the same offense 13 after conviction, and (3) multiple punishments for the same offense.” State v. 14 Begaye, 2023-NMSC-015 , ¶ 12, 533 P.3d 1057 (internal quotation marks and 15 citation omitted). “[M]ultiple punishment cases [come to this Court] in two ways.” 16 Id.

2026“The double jeopardy clause protects against (1) a second prosecution 12 for the same offense after acquittal, (2) a second prosecution for the same offense 13 after conviction, and (3) multiple punishments for the same offense.” State v. 14 Begaye, 2023-NMSC-015 , ¶ 12, 533 P.3d 1057 (internal quotation marks and 15 citation omitted). “[M]ultiple punishment cases [come to this Court] in two ways.” 16 Id.

2019“Only if the first 18 part of the test is answered in the affirmative, and the second in the negative, will 19 the double jeopardy clause prohibit multiple punishment in the same trial.” 20 Swafford v. State, 1991-NMSC-043 , ¶ 25, 112 N.M. 3 , 810 P.2d 1223 . 17 1 {28} “Separate punishments are permissible and conduct is not unitary if the 2 offenses are separated by sufficient indicia of distinctness.” State v. Ford, 2007- 3 NMCA-052, ¶ 12, 141 N.M. 512 , 157 P.3d 77 (internal quotation marks and 4 citation omitted).

2019“Only if the first 18 part of the test is answered in the affirmative, and the second in the negative, will 19 the double jeopardy clause prohibit multiple punishment in the same trial.” 20 Swafford v. State, 1991-NMSC-043 , ¶ 25, 112 N.M. 3 , 810 P.2d 1223 . 17 1 {28} “Separate punishments are permissible and conduct is not unitary if the 2 offenses are separated by sufficient indicia of distinctness.” State v. Ford, 2007- 3 NMCA-052, ¶ 12, 141 N.M. 512 , 157 P.3d 77 (internal quotation marks and 4 citation omitted).