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.
Notes to Decisions
Applicability.
30-3-8 NMSA 1978 does not intend to punish the same conduct that is prohibited by 30-2-1 NMSA 1978, defining murder in the first degree. State v. Elmquist, 1992-NMCA-119, 114 N.M. 551, 844 P.2d 131, 1992 N.M. App. LEXIS 114 (N.M. Ct. App. 1992).
Construction.
Shooting entirely within a motor vehicle is not “shooting at or from a motor vehicle” for purposes of Subsection B of this section. State v. Tafoya, 2012-NMSC-030, 285 P.3d 604, 2012 N.M. LEXIS 332 (N.M. 2012).
Defendant’s sentence was affirmed because when defendant pleaded guilty as an accessory to shooting at or from a motor vehicle, an offense enumerated as a serious violent crime in 33-2-34L(4) NMSA 1978, he was then sentenced accordingly under 33-2-34A(1) NMSA 1978. It was irrelevant whether defendant, the driver, was acting as a principal or an accessory in the commission of the crime. State v. Flores, 2005-NMCA-092, 138 N.M. 61, 116 P.3d 852, 2005 N.M. App. LEXIS 80 (N.M. Ct. App.), cert. denied, 138 N.M. 145, 117 P.3d 951, 2005 N.M. LEXIS 368 (N.M. 2005).
Construction with other law.
At defendant’s trial under this section, the trial court did not err in failing to give a jury instruction on the negligent use of a firearm because such offense was not a lesser included offense of shooting into an occupied dwelling. The negligent use of a firearm would not necessarily have been committed when defendant shot into the inhabited dwelling. State v. Highfield, 1992-NMCA-020, 113 N.M. 606, 830 P.2d 158, 1992 N.M. App. LEXIS 24 (N.M. Ct. App.), cert. denied, 113 N.M. 503, 828 P.2d 415, 1992 N.M. LEXIS 105 (N.M. 1992).
Double jeopardy.
Although a habeas petitioner's convictions for voluntary manslaughter, aggravated battery, and shooting at or from a motor vehicle, NMSA 1978, §§ 30-2-3(A), 30-3-5, and 30-3-8(B), violated double jeopardy, U.S. Const. amends. V, under a new rule announced in State v. Montoya, the rule was procedural and did not apply retroactively. Dominguez v. State, 2015-NMSC-014, 348 P.3d 183, 2015 N.M. LEXIS 104 (N.M. 2015).
Defendant could not be punished for manslaughter and causing great bodily harm by shooting at a motor vehicle, based on the same shooting of the same victim, because (1) neither crime was definitionally subsumed in the other, and (2) it could not be concluded that the legislature intended to impose more than the maximum punishment for either crime. State v. Montoya, 2013-NMSC-020, 306 P.3d 426, 2013 N.M. LEXIS 139 (N.M. 2013).
Facts supported non-unitary conduct for two violations of 30-3-8 NMSA 1978 where there were two shooting victims and two shooters that were separated by space. The jury could have found that defendant acted as a principal and shot one victim, and also acted as an accessory in the death of the other victim, and thus the jury’s conclusion did not violate double jeopardy. State v. Dominguez, 2005-NMSC-001, 137 N.M. 1, 106 P.3d 563, 2005 N.M. LEXIS 78 (N.M. 2005), overruled, State v. Montoya, 2013-NMSC-020, 306 P.3d 426, 2013 N.M. LEXIS 139 (N.M. 2013), overruled as stated in State v. Tungovia, No. 28914, 2013 N.M. App. Unpub. LEXIS 181 (N.M. Ct. App. June 13, 2013), overruled as stated in State v. Garcia, No. 29338, 2014 N.M. App. Unpub. LEXIS 56 (N.M. Ct. App. Feb. 12, 2014), overruled in part as stated in State v. Rudy B., No. 27589, 2014 N.M. App. Unpub. LEXIS 177 (N.M. Ct. App. May 8, 2014), overruled as stated in State v. Munoz, No. 30837, 2014 N.M. App. Unpub. LEXIS 208 (N.M. Ct. App. June 23, 2014), overruled as stated in State v. Franco, No. 33392, 2016-NMCA-074, 2016 N.M. App. LEXIS 54 (N.M. Ct. App. 2016).
Aggravated battery requires an intent to injure, which is not an element of shooting at or from a motor vehicle and the crime of shooting at or from a motor vehicle requires the discharge of a firearm at or from a motor vehicle, which is not an element of aggravated battery. Thus, the legislature intended to create separately punishable offenses by enacting the aggravated battery statute and the shooting at or from a motor vehicle statute and defendant’s conviction for both offenses did not violate double jeopardy. State v. Dominguez, 2005-NMSC-001, 137 N.M. 1, 106 P.3d 563, 2005 N.M. LEXIS 78 (N.M. 2005), overruled, State v. Montoya, 2013-NMSC-020, 306 P.3d 426, 2013 N.M. LEXIS 139 (N.M. 2013), overruled as stated in State v. Tungovia, No. 28914, 2013 N.M. App. Unpub. LEXIS 181 (N.M. Ct. App. June 13, 2013), overruled as stated in State v. Garcia, No. 29338, 2014 N.M. App. Unpub. LEXIS 56 (N.M. Ct. App. Feb. 12, 2014), overruled in part as stated in State v. Rudy B., No. 27589, 2014 N.M. App. Unpub. LEXIS 177 (N.M. Ct. App. May 8, 2014), overruled as stated in State v. Munoz, No. 30837, 2014 N.M. App. Unpub. LEXIS 208 (N.M. Ct. App. June 23, 2014), overruled as stated in State v. Franco, No. 33392, 2016-NMCA-074, 2016 N.M. App. LEXIS 54 (N.M. Ct. App. 2016).
Convictions for voluntary manslaughter and the offense of shooting at or from a motor vehicle did not violate double jeopardy because voluntary manslaughter did not require the element of discharging a firearm at or from a motor vehicle, but that element was required for the crime of shooting at or from a motor vehicle. Furthermore, the crime of voluntary manslaughter included the element of unlawful killing. State v. Dominguez, 2005-NMSC-001, 137 N.M. 1, 106 P.3d 563, 2005 N.M. LEXIS 78 (N.M. 2005), overruled, State v. Montoya, 2013-NMSC-020, 306 P.3d 426, 2013 N.M. LEXIS 139 (N.M. 2013), overruled as stated in State v. Tungovia, No. 28914, 2013 N.M. App. Unpub. LEXIS 181 (N.M. Ct. App. June 13, 2013), overruled as stated in State v. Garcia, No. 29338, 2014 N.M. App. Unpub. LEXIS 56 (N.M. Ct. App. Feb. 12, 2014), overruled in part as stated in State v. Rudy B., No. 27589, 2014 N.M. App. Unpub. LEXIS 177 (N.M. Ct. App. May 8, 2014), overruled as stated in State v. Munoz, No. 30837, 2014 N.M. App. Unpub. LEXIS 208 (N.M. Ct. App. June 23, 2014), overruled as stated in State v. Franco, No. 33392, 2016-NMCA-074, 2016 N.M. App. LEXIS 54 (N.M. Ct. App. 2016).
Defendant’s conviction for second degree murder with a firearm enhancement, and shooting from a motor vehicle with great bodily harm did not violate double jeopardy because the acts did not involve unitary conduct where defendant shot into the car and then shot again when the victim got out of the car. State v. Mireles, 2004-NMCA-100, 136 N.M. 337, 98 P.3d 727, 2004 N.M. App. LEXIS 77 (N.M. Ct. App.), cert. denied, 100 P.3d 197, 2004 N.M. LEXIS 454 (N.M. 2004).
Defendant was properly charged with felony murder, a violation of 30-2-1A(2) NMSA 1978, based on defendant’s involvement in a shooting into a mobile home; however, a violation of the prohibition against double jeopardy occurred as a result of defendant’s conviction for both felony murder and shooting at a dwelling, 30-3-8 NMSA 1978, because the two convictions arose out of unitary conduct. State v. Varela, 1999-NMSC-045, 128 N.M. 454, 993 P.2d 1280, 1999 N.M. LEXIS 372 (N.M. 1999).
Charges against defendant for assault with intent to commit murder in violation of 30-3-3 NMSA 1978 and shooting at an inhabited dwelling in violation of this section, for shooting at a mobile home in which he thought his ex-wife was sleeping, did not merge, even though they involved the same conduct; this section is concerned with conduct designed to terrorize or intimidate, regardless of whether the dwelling was actually occupied, while 30-3-3 NMSA 1978 is directed towards conduct motivated by an intention to cause another’s death. State v. Highfield, 1992-NMCA-020, 113 N.M. 606, 830 P.2d 158, 1992 N.M. App. LEXIS 24 (N.M. Ct. App.), cert. denied, 113 N.M. 503, 828 P.2d 415, 1992 N.M. LEXIS 105 (N.M. 1992).
Where defendant was convicted of first-degree murder, shooting into an occupied motor vehicle, and felon in possession of a firearm, the use of the same prior felony to prove both the crime of felon in possession of a firearm and appellant’s status as an habitual offender violated double jeopardy principles; the enhancement provision of defendant’s sentence was improper. State v. Gonzales, 1992-NMSC-003, 113 N.M. 221, 824 P.2d 1023, 1992 N.M. LEXIS 38 (N.M. 1992), overruled as stated in State v. Tungovia, No. 28914, 2013 N.M. App. Unpub. LEXIS 181 (N.M. Ct. App. June 13, 2013), overruled as stated in State v. Munoz, No. 30837, 2014 N.M. App. Unpub. LEXIS 208 (N.M. Ct. App. June 23, 2014), overruled as stated in Dominguez v. State, 2015-NMSC-014, 348 P.3d 183, 2015 N.M. LEXIS 104 (N.M. 2015), overruled in part as stated in State v. Evensen, No. 33338, 2015 N.M. App. Unpub. LEXIS 179 (N.M. Ct. App. May 11, 2015).
Defendant’s convictions for first degree murder under 30-2-1 NMSA 1978 and shooting into an occupied motor vehicle under 30-3-8 NMSA 1978 did not violate double jeopardy. State v. Gonzales, 1992-NMSC-003, 113 N.M. 221, 824 P.2d 1023, 1992 N.M. LEXIS 38 (N.M. 1992), overruled as stated in State v. Tungovia, No. 28914, 2013 N.M. App. Unpub. LEXIS 181 (N.M. Ct. App. June 13, 2013), overruled as stated in State v. Munoz, No. 30837, 2014 N.M. App. Unpub. LEXIS 208 (N.M. Ct. App. June 23, 2014), overruled as stated in Dominguez v. State, 2015-NMSC-014, 348 P.3d 183, 2015 N.M. LEXIS 104 (N.M. 2015), overruled in part as stated in State v. Evensen, No. 33338, 2015 N.M. App. Unpub. LEXIS 179 (N.M. Ct. App. May 11, 2015).
Due process.
It does not follow that every instance of shooting at a dwelling which results in death is automatically felony murder where, if a defendant shoots into a dwelling, believing it to be abandoned, and kills an occupant, then he or she would be guilty of the felony, but would not necessarily be guilty of felony murder, and in such a fact pattern, a jury might find the requisite mens rea for second degree murder absent, precluding a conviction for felony murder under 30-3-8A NMSA 1978. State v. Varela, 1999-NMSC-045, 128 N.M. 454, 993 P.2d 1280, 1999 N.M. LEXIS 372 (N.M. 1999).
The felony murder doctrine raises second degree murder to first degree when the murder is committed in the course of a dangerous felony with the requisite mens rea; thus, for the doctrine to apply, the State must prove the elements of second degree murder as well as an independent felony, and under this doctrine, the court avoids the risk that a person committing a negligent or accidental killing will be convicted of felony murder, because a negligent or accidental killing does not constitute second degree murder under 30-3-8A NMSA 1978. State v. Varela, 1999-NMSC-045, 128 N.M. 454, 993 P.2d 1280, 1999 N.M. LEXIS 372 (N.M. 1999).
Elements.
Defendant who was a passenger in the back seat of a car and shot two people who were sitting in the front of the car did not shoot “at” or “from” the vehicle and therefore should not have been convicted for felony murder with shooting from the vehicle as the predicate offense. State v. Tafoya, 2012-NMSC-030, 285 P.3d 604, 2012 N.M. LEXIS 332 (N.M. 2012).
Trial court erred in instructing the jury that to convict defendant of the offense of shooting at an occupied building in violation of 30-3-8 NMSA 1978 that they had only to determine that defendant willfully discharged a firearm at the building, and that the building was occupied. State v. Elmquist, 1992-NMCA-119, 114 N.M. 551, 844 P.2d 131, 1992 N.M. App. LEXIS 114 (N.M. Ct. App. 1992).
Evidence.
Evidence was sufficient to support a finding that defendant conspired to commit shooting at a dwelling, in violation of Subsection A of this section and 30-28-2A NMSA 1978, because defendant willfully agreed to drive two codefendants to “do some shootings,” and willfully drove to the victim’s trailer, knowing full well what a codefendant intended to do when they arrived at the destination. State v. Coleman, 2011-NMCA-087, 150 N.M. 622, 264 P.3d 523, 2011 N.M. App. LEXIS 48 (N.M. Ct. App.), cert. denied, 268 P.3d 513, 2011 N.M. LEXIS 336 (N.M. 2011).
Where a ten-year-old victim was shot to death while sleeping in his bedroom, defendant told a witness that he fired nine gunshots into the victim’s house and threatened the witness to keep her mouth shut. Defendant was properly convicted of (1) first-degree murder in violation of 30-2-1A(1), (2) NMSA 1978; (2) attempted first-degree murder in violation of 30-2-1A(1) NMSA 1978, 30-28-1 NMSA 1978; (3) shooting at a dwelling or occupied building and causing death or great bodily harm in violation of Subsection A of this section; (4) tampering with evidence in violation of 30-22-5 NMSA 1978; and (5) intimidation of a witness in violation of 30-24-3A(3) NMSA 1978. State v. Salas, 2010-NMSC-028, 148 N.M. 313, 236 P.3d 32, 2010 N.M. LEXIS 308 (N.M. 2010).
—Insufficient.
Defendant, a minor, was improperly adjudicated a delinquent offender based on findings that he conspired to shoot from a motor vehicle, violations of 30-3-8B, 30-28-2A NMSA 1978, because the evidence was insufficient to show that defendant, one of six occupants of the car, including four juveniles and two adults, knew that anyone planned to fire a shot or that he participated in the planning. State v. Mariano R., 1997-NMCA-018, 123 N.M. 121, 934 P.2d 315, 1997 N.M. App. LEXIS 8 (N.M. Ct. App. 1997).
—Sufficient.
Because the trajectory of the bullets that landed in the house indicated that the shooter was aiming directly at the house and because there was testimony that defendant was expressing hostility towards someone he knew was inside the house, the evidence was sufficient to convict him of shooting at a dwelling under this section. State v. Arrendondo, 2012-NMSC-013, 278 P.3d 517, 2012 N.M. LEXIS 179 (N.M. 2012).
Purpose.
30-3-8 NMSA 1978 has a different goal than 30-3-3 NMSA 1978, assault with intent to commit a violent felony, because 30-3-8 NMSA 1978 is concerned with conduct typically designed to terrorize or intimidate. A requirement of knowledge of occupancy of the building shot at would be consistent with this design. State v. Elmquist, 1992-NMCA-119, 114 N.M. 551, 844 P.2d 131, 1992 N.M. App. LEXIS 114 (N.M. Ct. App. 1992).
Recklessness.
Evidence was sufficient to convict defendant of shooting at a motor vehicle because even though defendant shot directly at the victim, it did not negate that his conduct was reckless. State v. Mireles, 2004-NMCA-100, 136 N.M. 337, 98 P.3d 727, 2004 N.M. App. LEXIS 77 (N.M. Ct. App.), cert. denied, 100 P.3d 197, 2004 N.M. LEXIS 454 (N.M. 2004).
Shooting at an occupied building must be “reckless,” which requires the state to prove that defendant knew or should have known that the building at which he was shooting was occupied; there was sufficient evidence to put the element of knowledge at issue where the shooting occurred at 6:37 on a Saturday morning, the building defendant shot at was a business that did not open until 8:00 a.m., the only light on was one that was regularly used as a night-light, and the only person inside was one of the co-owners of the business. State v. Elmquist, 1992-NMCA-119, 114 N.M. 551, 844 P.2d 131, 1992 N.M. App. LEXIS 114 (N.M. Ct. App. 1992).
Research References and Practice Aids
Cross references.
Seizure and forfeiture of motor vehicle; procedure, 30-3-8.1 NMSA 1978.
Court record of conviction; revocation of driver’s license, 30-3-8.2 NMSA 1978.
Definitions, 31-18-15.2 NMSA 1978.
Three violent felony convictions; mandatory life imprisonment; exception, 31-18-23 NMSA 1978.
Definitions, 32A-2-3 NMSA 1978.
Eligibility for earned meritorious deductions, 33-2-34 NMSA 1978.
Mandatory revocation of license by division, 66-5-29 NMSA 1978.