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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO STATE OF NEW MEXICO, 3 Plaintiff-Appellee, v. No. 30,837 ERIC MUNOZ, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY Freddie J. Romero, District Judge Gary K. King, Attorney General Margaret E. McLean, Assistant Attorney General Joel Jacobsen, Assistant Attorney General Santa Fe, NM for Appellee The Law Office of the Public Defender Jorge A. Alvarado, Chief Public Defender Nina Lalevic, Assistant Appellate Defender Santa Fe, NM for Appellant 19 MEMORANDUM OPINION VIGIL, Judge.

1 {1} This matter comes before the Court on remand from our Supreme Court for further consideration of our prior decision to affirm in light of State v. Montoya, 2013- NMSC-020, 306 P.3d 426. After considering the impact of Montoya, we assigned this case to the summary calendar and proposed to conclude that Defendant’s convictions for aggravated battery with a deadly weapon and shooting at or from a motor vehicle violated his constitutional right to be free from double jeopardy. The State has filed a memorandum in opposition, which we have considered. We remain unpersuaded and reverse.

9 I. BACKGROUND {2} Convicted of aggravated battery, conspiracy to commit aggravated battery, and shooting at or from a motor vehicle, Defendant appealed to this Court. [CN 1-2] We affirmed, after denying Defendant’s motion to add the argument that his convictions for aggravated battery and shooting at or from a motor vehicle violated double jeopardy. [CN 2] We denied the motion on the basis that State v. Dominguez, 2005- NMSC-001, ¶¶ 17-21, 137 N.M. 1, 106 P.3d 563, overruled by Montoya, 2013- NMSC-020, ¶ 7, held that convictions for aggravated battery and shooting at or from a motor vehicle arising from unitary conduct does not violate double jeopardy. [May 2, 2011 Opinion, pp. 5-6] The Supreme Court then granted Defendant’s petition for

1 a writ of certiorari on the double jeopardy issue and held a decision in abeyance pending its disposition in Montoya. [CN 2] The Supreme Court then issued its opinion in Montoya, quashed the writ of certiorari, and remanded the case to us for further proceedings in light of Montoya. [CN 2] II. DISCUSSION {3} We recently addressed the impact of Montoya on the double jeopardy issue presented in this case and in State v. Rudy B., No. 27,589, mem. op. ¶¶ 2, 4 (N.M. Ct. App. May 8, 2014) (non-precedential), and we reach the same conclusion here as we did in Rudy B. Montoya holds that unitary conduct resulting in convictions for both manslaughter and shooting at or from a motor vehicle causing great bodily harm violates double jeopardy. 2013-NMSC-020, ¶¶ 52, 54. In doing so, Montoya states, “[w]e hold that current New Mexico jurisprudence precludes cumulative punishment for both crimes, and we therefore overrule State v. Gonzales, [1992-NMSC-003,] 113 14 N.M. 221, 824 P.2d 1023 . . ., and the cases that have followed it, including the divided opinion[] in . . . Dominguez.” Montoya, 2013-NMSC-020, ¶ 2. From this statement, the State continues to make the same argument it did in Rudy B.

17 Specifically, the State argues that because Montoya did not specifically overrule that part of Dominguez, which holds that convictions for shooting at or from a motor

1 vehicle and aggravated battery do not violate double jeopardy, Dominguez still governs here. [MIO 9-13].

3 {4} We acknowledged in our calendar notice that while the precise scope of Montoya’s overruling of Dominguez is certainly unclear, we conclude that Montoya’s reasoning also invalidates Dominguez’s holding that unitary conduct resulting in convictions for both aggravated battery and shooting at or from a motor vehicle does not violate double jeopardy. [CN 6-7] As in Rudy B., we therefore remain unpersuaded that Dominguez controls this case.

9 CONCLUSION {5} For the foregoing reasons and those stated in our calendar notice, Defendant’s conviction for aggravated battery is reversed, and the case is remanded for that conviction to be vacated and for Defendant to be resentenced.

13 {6} IT IS SO ORDERED.

14 ______________________________ 15 MICHAEL E. VIGIL, Judge WE CONCUR:

17 ___________________________________ MICHAEL D. BUSTAMANTE, Judge

1 ___________________________________ CYNTHIA A. FRY, Judge