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State v. Landgraf1/11/1996
Mexico courts have adopted these principles and repeatedly recognized that "in the absence of a clear indication that the legislature intended multiple punishment for the unitary conduct, the court should apply the rule of lenity to presume that the legislature did not intend multiple punishment." ; see also ; ), cert. denied, 114 N.M. 577, 844 P.2d 827 (1993).
{37} The Colorado Supreme Court applied the rule of lenity to analogous facts in People v. Lowe, 660 P.2d 1261 (Colo. 1983) (en banc). The defendant therein argued "that principles of double jeopardy prohibited him from being convicted of two counts of first degree murder for one killing." Id. at 1265. The Colorado Supreme Court vacated the defendant's multiple murder convictions with language apropos in the present case:
The most difficult problem presented by this appeal is whether the defendant committed one or two offenses. We are persuaded that the evidence could establish, as it does in this case, that a single act of killing could be committed both after deliberation and in the perpetration of one of the enumerated felonies. . . . Murder after deliberation and felony murder are not denominated by the Code as separate and independent offenses, but only ways in which criminal liability for first-degree murder may be charged and prosecuted.
The legislature has not manifested any clear intent that a defendant could be convicted of more than one kind of first-degree murder where there is but one victim. The rule of lenity requires that the first-degree murder statute be construed to favor the defendant. That construction is that a defendant can be convicted only of one first-degree murder for one killing.
Id. at 1269 (footnote omitted).
{38} We do not believe the New Mexico legislature has manifested any clear intent that Defendant could be convicted of more than one type of homicide by vehicle for each victim. We therefore remand this case to the trial court with instructions to vacate three of Defendant's homicide by vehicle convictions under Section 66-8-101 and for resentencing, but affirm as to all other issues.
{39} IT IS SO ORDERED.
BRUCE D. BLACK, Judge
WE CONCUR:
A. JOSEPH ALARID, Judge
LYNN PICKARD, JUDGE
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