second part inquiry in New Mexico

2023“If the conduct is unitary, however, then the second part of the analysis is to determine if the Legislature intended to punish the offenses separately.” State v. Silvas, 2015-NMSC-006, ¶ 9 , 343 P.3d 616 . {35} Defendant argues the conduct underlying his manufacturing and possession charges was unitary.

2018"If the conduct is unitary, however, then the second part of the analysis is to determine if the Legislature intended to punish the offenses separately." State v. Silvas , 2015-NMSC-006 , ¶ 9, 343 P.3d 616 . {11} Defendant argues that the conduct underlying the manufacturing and possession of child pornography charges "was clearly unitary[.]" The State argues it was not.

2022State v. Laney, 2003-NMCA-144, ¶ 39 , 134 N.M. 648 , 6 81 P.3d 591 .

2022State v. Laney, 2003-NMCA-144, ¶ 39 , 134 N.M. 648 , 6 81 P.3d 591 .

2018Because the 6 statutes at issue here do not expressly state that conviction for one offense shall not 7 preclude conviction for the other, compare NMSA 1978, § 30-31-23(A), (E) (2011) 8 (prohibiting meth possession), with NMSA 1978, § 30-31-25.1(A) (2001) (prohibiting 9 drug paraphernalia possession), we proceed to apply the test set out in Blockburger 10 v. United States, 284 U.S. 299 (1932).

2007If there is no clear expression of legislative intent, a court must apply the rule of statutory interpretation announced by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932).

2018Esposito , 912 F.2d at 65 -67 . {11} Garrett and its progeny leave no doubt that this area of law is, as the State points out, "entirely settled against Defendant." See Rakoff & Goldstein, supra , at § 10.04[2] ("Federal courts have uniformly held that a defendant may be convicted separately and sentenced cumulatively for engaging in [racketeering] and for committing the crimes alleged as the predicates for the [racketeering] charge."); 1 McCormack, supra , at 6.16 ("In general, the courts have found no double jeopardy problems involved in successive federal prosecutions for predicate offenses

2018Esposito, 912 F.2d at 65-67 . {11} Garrett and its progeny leave no doubt that this area of law is, as the State points out, “entirely settled against Defendant.” See Rakoff & Goldstein, supra, at § 10.04[2] (“Federal courts have uniformly held that a defendant may be convicted separately and sentenced cumulatively for engaging in [racketeering] and for committing the crimes alleged as the predicates for the [racketeering] charge.”); 1 McCormack, supra, at 6.16 (“In general, the courts have found no double jeopardy problems involved in successive federal prosecutions for predicate offenses and

2015Accordingly, we view the Section 66-8-102(N) requirement as an independent means by which the Legislature intended to deter drunk drivers from endangering the public safety. {26} We therefore proceed to the second part of the inquiry, to determine whether the 2009 amendment “is so punitive either in purpose or effect as to negate the [Legislature’s] intention.” Foy, 2013-NMCA-043 , ¶ 15 (internal quotation marks and citation omitted).

2015Laws, ch. 254; Chatterjee v. King, 2012-NMSC-019, ¶ 12 , 280 P.3d 283 (“In 2 addition to looking at the statute’s plain language, we will consider its history and 3 background and how the specific statute fits within the broader statutory scheme.”). 4 Accordingly, we view the Section 66-8-102(N) requirement as an independent means 5 by which the Legislature intended to deter drunk drivers from endangering the public 6 safety. 7 {26} We therefore proceed to the second part of the inquiry, to determine whether 8 the 2009 amendment “is so punitive either in purpose or effect as to negate the 9 [L

2009Id. (quoting United States v. McConney, 728 F.2d 1195 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 , 105 S.Ct. 101 , 83 L.Ed.2d 46 (1984)).

2009Id. (quoting United States v. McConney, 728 F.2d 1195 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 , 105 S.Ct. 101 , 83 L.Ed.2d 46 (1984)).

2009Id. (quoting United States v. McConney, 728 F.2d 1195 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 , 105 S.Ct. 101 , 83 L.Ed.2d 46 (1984)).

2009Id. (quoting United States v. McConney, 728 F.2d 1195 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 , 105 S.Ct. 101 , 83 L.Ed.2d 46 (1984)).

2009Id. (quoting United States v. McConney, 728 F.2d 1195 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 , 105 S.Ct. 101 , 83 L.Ed.2d 46 (1984)).

2009Id. (quoting United States v. McConney, 728 F.2d 1195 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 , 105 S.Ct. 101 , 83 L.Ed.2d 46 (1984)).

2009Id. (quoting United States v. McConney, 728 F.2d 1195 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 , 105 S.Ct. 101 , 83 L.Ed.2d 46 (1984)).

2009Id. (quoting United States v. McConney, 728 F.2d 1195 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 , 105 S.Ct. 101 , 83 L.Ed.2d 46 (1984)).

2009Id. (quoting United States v. McConney, 728 F.2d 1195 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 , 105 S.Ct. 101 , 83 L.Ed.2d 46 (1984)).

2009Id. (quoting United States v. McConney, 728 F.2d 1195 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 , 105 S.Ct. 101 , 83 L.Ed.2d 46 (1984)).

2025See Swafford, 1991-NMSC- 043, ¶ 25. {8} When determining whether a defendant’s conduct is unitary or distinct, we consider the six Herron factors: “(1) temporal proximity of the acts, (2) location of the victim during each act, (3) the existence of [any] intervening events, (4) the sequencing of the acts, (5) the defendant’s intent as evidenced by his conduct and utterances, and (6) the number of victims.” Phillips, 2024-NMSC-009 , ¶ 12 (citing Herron v. State, 1991- NMSC-012, ¶ 15, 111 N.M. 357 , 805 P.2d 624 ).

2025See Swafford, 1991-NMSC- 043, ¶ 25. {8} When determining whether a defendant’s conduct is unitary or distinct, we consider the six Herron factors: “(1) temporal proximity of the acts, (2) location of the victim during each act, (3) the existence of [any] intervening events, (4) the sequencing of the acts, (5) the defendant’s intent as evidenced by his conduct and utterances, and (6) the number of victims.” Phillips, 2024-NMSC-009 , ¶ 12 (citing Herron v. State, 1991- NMSC-012, ¶ 15, 111 N.M. 357 , 805 P.2d 624 ).

2024If the conduct is unitary, we then “proceed to the second part of the test,” Vigil, 2021-NMCA-024, ¶ 18 , where we review whether the Legislature intended to punish the offenses separately, Swafford, 1991-NMSC-043 , ¶ 25.

2023In this case, we assume but do not decide that the conduct was unitary, see State v. Bahney, 2012-NMCA-039, ¶ 21 , 274 P.3d 134 , and proceed directly to the second part of the analysis, in which we ask a legal question, “whether the Legislature intended to impose multiple punishments for the unitary conduct” in separate statutes.

2021Sena, 2020-NMSC-011, ¶ 45 .

2019Id. 9 {40} Turning first to the question of whether Defendant’s conduct was unitary, 10 we keep in mind that “the task is merely to determine whether the conduct for 11 which there are multiple charges is discrete (unitary) or distinguishable.” Swafford, 12 1991-NMSC-043 , ¶ 28.

2018We agree with the State. {12} "In analyzing whether a defendant's conduct is unitary, we look to whether [the] defendant's acts have sufficient indicia of distinctness." Contreras , 2007-NMCA-045 , ¶ 21, 156 P.3d 725 (internal quotation marks and citation omitted).

2018We agree with the State. {12} "In analyzing whether a defendant's conduct is unitary, we look to whether [the] defendant's acts have sufficient indicia of distinctness." Contreras , 2007-NMCA-045 , ¶ 21, 156 P.3d 725 (internal quotation marks and citation omitted).