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Date: 05-23-2021

Case Style:

State of New Mexico v. Manual Sandoval

Case Number: A-1-CA-38716

Judge: J. Miles Hanisee


Plaintiff's Attorney: Hector H. Balderas, Attorney General

Defendant's Attorney:

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Albuquerque, NM - Criminal defense attorney represented MANUAL SANDOVAL with a receiving stolen property charge.

Defendant appeals his conviction for receiving stolen property contrary to
19 NMSA 1978, Section 30-16-11 (2006). We issued a notice of proposed summary
20 disposition in this matter proposing to affirm. Defendant has filed a memorandum
Court of Appeals of New Mexico
Filed 3/10/2021 3:16 PM2
1 in opposition, which we have duly considered. We remain unpersuaded that our
2 initial proposed disposition was incorrect, and we therefore affirm.
3 {2} Defendant continues to argue that his right to be free from double jeopardy
4 was violated. “A double jeopardy challenge is a constitutional question of law which
5 we review de novo.” State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747; see also
6 See State v. Cummings, 2018-NMCA-055, ¶ 6, 425 P.3d 745 (“We generally apply
7 a de novo standard of review to the constitutional question of whether there has been
8 a double jeopardy violation.”).
9 {3} Briefly stated, the facts relevant to Defendant’s double jeopardy issue are as
10 follows. Defendant was initially tried for larceny and receiving stolen property in
11 relation to the theft of a Bobcat skid-steer from his employer. [DS 1] The district
12 court entered a directed verdict on the larceny charge, and the jury was therefore
13 instructed only on the charge of receiving stolen property. See State v. Baca, 2015-
14 NMSC-021, ¶ 32, 352 P.3d 1151 (recognizing that in New Mexico precedent, a trial
15 court’s dismissal based on insufficient evidence to support a conviction has the effect
16 of an acquittal, whether characterized as a directed verdict or other resolution of guilt
17 or innocence). The jury was unable to reach a verdict, and the district court declared
18 a mistrial. The State then retried Defendant for receiving stolen property, and he was
19 convicted. 3
1 {4} Defendant now argues that because a person cannot be convicted for both
2 larceny and receiving stolen property where the same property is at issue, it logically
3 follows that double jeopardy must bar a subsequent prosecution for receiving stolen
4 property when there has been a prior acquittal for larceny. [MIO 2-3] See State v.
5 Tapia, 1976-NMCA-042, ¶ 1, 12-13, 89 N.M. 221, 549 P.2d 636 (recognizing that
6 a thief of property cannot violate the receiving stolen property statute based on
7 receipt or possession of the property because the thief cannot receive the property
8 from himself).
9 {5} “In general, the federal double jeopardy clause protects against (1) a second
10 prosecution for the same offense after an acquittal, (2) a second prosecution for the
11 same offense after a conviction, and (3) multiple punishments for the same offense.”
12 State v. Jimenez, 2007-NMCA-005, ¶ 14, 141 N.M. 106, 151 P.3d 67. Defendant’s
13 specific double jeopardy claim invokes the principal of collateral estoppel or issue
14 preclusion contained within the prohibition against a second prosecution for the
15 same offense after acquittal. See State v. Montoya, 2013-NMSC-020, ¶ 27, 306 P.3d
16 426 (recognizing that the double jeopardy guarantee against a second prosecution
17 after acquittal includes the concept of collateral estoppel or issue preclusion); see
18 also State v. Arevaldo, 2002-NMCA-062, ¶ 8, 132 N.M. 306, 47 P.3d 866 (“The
19 principle of collateral estoppel is embodied in the Fifth Amendment to the
20 Constitution of the United States guaranty against double jeopardy and is fully 4
1 applicable to states by force of the Fourteenth Amendment.”). “Issue preclusion in
2 the double jeopardy context ‘means simply that when an issue of ultimate fact has
3 once been determined by a valid and final judgment, that issue cannot again be
4 litigated between the same parties in any future lawsuit.’ ” State v. Collier, 2013-
5 NMSC-015, ¶ 24, 301 P.3d 370 (quoting Ashe v. Swenson, 397 U.S. 436, 443
6 (1970)).
7 {6} We understand Defendant to argue specifically that the issue of whether he
8 stole the Bobcat was already decided against the State by the directed verdict on the
9 larceny charge, and he therefore could not be charged with a subsequent offense
10 requiring proof that he stole the property. [MIO 2-3] However, Defendant’s acquittal
11 on the larceny charge did not necessarily encompass a determination that he did not
12 steal the Bobcat. In order to convict for larceny, the State is required to prove that a
13 defendant (1) took and carried away property belonging to another, and (2) at the
14 time he took the property, the defendant intended to permanently deprive the owner
15 of it. See UJI 14-1601 NMRA (setting out the essential elements of larceny). The
16 district court could have concluded that larceny was not proven based on a lack of
17 sufficient evidence to prove the specific intent to permanently deprive the owner of
18 the property without necessarily deciding that there was insufficient evidence to
19 show that Defendant took or carried away the Bobcat. See Collier, 2013-NMSC20 015, ¶ 25 (holding that, where the record was unclear on whether the defendant was 5
1 acquitted of felony cruelty to animals based on a failure to prove that the defendant
2 “tortured, mutilated or injured” an animal or based on a failure to prove the mens rea
3 of acting “intentionally or maliciously” double jeopardy did not bar retrial for
4 misdemeanor cruelty to animals because whether the defendant acted maliciously or
5 intentionally would be irrelevant to prove misdemeanor cruelty to animals).
6 {7} Moreover, Defendant has not pointed to anything in the record of the first trial
7 to establish on what basis the district court determined that the State had failed to
8 prove larceny. See State v. Abril, 2003-NMCA-111, ¶ 26, 134 N.M. 326, 76 P.3d
9 644 (recognizing that the defendant bears the burden of proof to establish the factual
10 predicate for application of collateral estoppel and that an issue of ultimate fact was
11 resolved by the factfinder in his favor), overruled on other grounds by State v.
12 Torres, 2012-NMCA-026, 272 P.3d 689; City of Roswell v. Hancock, 1998-NMCA13 130, ¶ 14, 126 N.M. 109, 967 P.2d 449 (rejecting the defendant’s argument that the
14 state was collaterally estopped from prosecuting him after an acquittal where the
15 defendant did not provide a record showing what was actually decided and
16 necessarily litigated in the prior proceeding); see also State v. Sanchez, 1996-
17 NMCA-089, ¶ 11, 122 N.M. 280, 923 P.2d 1165 (“We place the burden on the
18 defendant, the party raising the double jeopardy challenge, to provide a sufficient
19 record for the court to . . . complete the remainder of the double jeopardy analysis.”). 6
1 {8} However, even assuming that the district court entered a directed verdict on
2 larceny due to insufficient evidence that Defendant personally took and carried away
3 the Bobcat, based on our review of the jury instruction for receiving stolen property,
4 Defendant’s theft of the Bobcat was not at issue in the trial for receiving stolen
5 property. The jury instruction for stolen property required the State to prove that
6 between September 14, 2015 and November 8, 2015, (1) the Bobcat had been stolen
7 by another; (2) Defendant acquired possession of this property; (3) at the time
8 Defendant acquired possession of this property he knew or believed that it had been
9 stolen, and (4) the property had a market value of over $2,500. [RP 330] These
10 essential elements of receiving stolen property were not necessarily decided against
11 the State by a judicial determination that the evidence was insufficient to prove that
12 Defendant stole the Bobcat. Rather, the State’s evidence and theory at trial was that
13 Defendant was involved as a co-conspirator in facilitating the theft by other persons,
14 not that Defendant personally took and carried away the Bobcat. [DS 1, 3] See State
15 v. Tijerina, 1973-NMSC-105, ¶ 7, 86 N.M. 31, 519 P.2d 127 (recognizing that the
16 doctrine of collateral estoppel bars a second prosecution where fact-finder in the first
17 trial necessarily or actually determined the same issues that state attempts to raise in
18 second trial)
19 {9} Additionally, as Defendant was not acquitted of conspiracy in relation to the
20 theft, we see no error in the State pursuing a theory that Defendant was tangentially 7
1 involved in the theft of the property at the second trial; and, such evidence would be
2 relevant to prove his knowledge that the property was stolen, an essential element of
3 receiving stolen property. [RP 432] See generally State v. Armijo, 1976-NMCA-126,
4 ¶ 20, 90 N.M. 12, 558 P.2d 1151 (“[C]onspiracy and the completed offenses are
5 separate offenses and conviction of both does not amount to double jeopardy.”).
6 {10} For these reasons, Defendant’s right to be free from double jeopardy was not
7 violated by his conviction for receiving stolen property following his acquittal for
8 larceny, and we reject this assertion of error. Defendant does not set forth any additional facts or argument in his
10 memorandum in opposition in response to our proposed disposition of either his
11 argument that certain evidence was improperly admitted or his argument that he was
12 denied due process because of juror bias. Accordingly, we adhere to our original
13 analysis of these issues and affirm for the reasons set out in the notice of proposed
14 summary disposition.

Outcome: For these reasons, we affirm.

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