STATE OF NEW MEXICO v. CHRISTOPHER VALDIVIA

<h2><font color="black"> Las Cruces, NM - Criminal defense lawyer represented defendant Christopher Valdivia charged with possession of a controlled substance, tampering with evidence, battery upon a peace officer, and resisting, evading or obstructing an officer </h2></font><br>
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Officer Veronica De La O of the Las Cruces Police Department testified at<br>
6 the suppression hearing as follows. The police department received a call reporting<br>
7 a man slumped over in a chair in the front yard of a residence; the caller could not<br>
8 tell whether the man was breathing. Officers De La O and Francisco Gomez<br>
9 separately were dispatched, with Officer De La O arriving first and Officer Gomez<br>
10 arriving shortly thereafter. Officer De La O identified the residence as “a known<br>
11 drug house”—she previously had responded to the residence for drug overdoses and<br>
12 had observed narcotics in the residence. When she arrived, Officer De La O parked<br>
13 a couple houses away and walked to the residence to find Defendant, who appeared<br>
14 to be sleeping, slumped over in the yard. Officer De La O recognized Defendant<br>
15 from previous encounters and, based on this, believed he might have used or been in<br>
16 possession of drugs.<br>
17 {3} Officer De La O approached Defendant and tried to rouse him “to make sure<br>
18 that he was okay, since [she] didn’t know the circumstances.” She explained, “Being<br>
19 that he could be under the influence of narcotics, I didn’t want to just walk away in<br>
20 case he was overdosed, and there were also children in the neighborhood across the<br>
21 street.” She began “calling out to him, trying to wake him up.” Defendant did not <br>
3<br>
1 wake up the first time she called out but started to wake up the second time.<br>
2 Defendant “seemed a little out of it,” but when Officer De La O asked if he was<br>
3 okay, he said he was “fine.” By that point, Officer Gomez had also arrived on scene,<br>
4 and the two officers continued to ask Defendant if he was okay to ensure he was<br>
5 “alert and oriented” before they left.<br>
6 {4} During this time, the officers observed an open container on the ground next<br>
7 to Defendant containing a green leafy substance, which Officer De La O recognized<br>
8 as spice or marijuana, and bulges in Defendant’s knee-high socks. In response to<br>
9 Officer Gomez asking what was in his socks, Defendant twice removed folded<br>
10 pieces of paper from his socks and consumed them. Officers then gained control of<br>
11 Defendant, handcuffing him, and Officer De La O recovered an additional paper<br>
12 containing heroin from Defendant’s socks. As Defendant was being escorted to the<br>
13 patrol unit, he pulled away from the officers and began to run. Defendant was<br>
14 brought to the ground by Officer Gomez. Defendant then kicked Officer De La O as<br>
15 the officers tried to regain control of him. At some point, officers called for<br>
16 emergency services to check out Defendant, given his consumption of the heroin<br>
17 packets.<br>
18 {5} Defendant also testified at the suppression hearing to the following. On the<br>
19 day in question, Defendant was unconscious in a chair outside the residence, and he<br>
20 had not eaten or slept in a week. He testified that officers did not ask him about his<br>
21 well-being but instead their first question to him was, “what’s in your sock?” During <br>
4<br>
1 his testimony, Defendant admitted to possessing spice and heroin, consuming two<br>
2 packets of heroin, and trying to run after being handcuffed.<br>
3 {6} Defendant’s motion to suppress argued that—although the officers stated they<br>
4 were performing duties as “community caretakers”—the community caretaker<br>
5 exception to the warrant requirement did not apply in this case because the officers<br>
6 were, in reality, motivated to investigate a drug crime. After hearing testimony from<br>
7 Officer De La O and Defendant, as outlined above, the district court denied the<br>
8 motion. Defendant later entered a no contest plea to all charges and, as relevant to<br>
9 this appeal, stipulated to the factual basis for battery upon a peace officer (Count 3)<br>
10 and resisting, evading or obstructing an officer (Count 4) as follows. As for Count<br>
11 3, “[D]efendant was allegedly uncooperative throughout the encounter, and is<br>
12 alleged to have kicked one of the officers as she was trying to detain him.” As for<br>
13 Count 4, “when the officers were beginning to arrest [D]efendant . . . he also ran<br>
14 away from the officers.”<br>
15 DISCUSSION<br>
16 I. Motion to Suppress<br>
17 {7} Defendant initially contends that the district court misunderstood its fact18 finding role in denying the motion to suppress. In light of this, Defendant then invites<br>
19 this Court to reweigh the evidence and determine that the officers were primarily<br>
20 motivated to investigate drug crimes, not to provide emergency aid. We first explain<br>
21 why Defendant has misapprehended the district court’s ruling and this Court’s role <br>
5<br>
1 on appeal. Next, upon applying the required standard of review, we detect no error<br>
2 in the district court’s denial of the motion to suppress.<br>
3 {8} Defendant first contends that the district court “refused to consider the<br>
4 evidence that indicated the officers’ primary motivation was to investigate for<br>
5 criminal activity” and “failed to exercise its fact-finding discretion[.]” Defendant<br>
6 thus posits that “the [district] court’s implicit finding of a primary motivation of<br>
7 community caretaking is not entitled to the deference of substantial evidence<br>
8 review.” These contentions are not supported by our review of the record or the<br>
9 applicable law. In arguing the suppression motion, defense counsel requested the<br>
10 district court draw the inference that the officers’ motivation was a drug<br>
11 investigation. In support, counsel pointed to various facts, including that Officer De<br>
12 La O parked down the street and walked to the house (instead of running),<br>
13 recognized the house as a known drug house, and surmised Defendant might be in<br>
14 possession of drugs based on her prior encounters with him. The district court<br>
15 rejected defense’s argument, emphasizing that the officers were responding to a<br>
16 welfare check dispatch and that Officer De La O’s testimony was “reasonable.” The<br>
17 district court made clear its belief that the inferences defense counsel wished the<br>
18 court to draw were not “supported by the evidence.” The court denied the motion,<br>
19 stating that “there’s been sufficient testimony that would substantiate that there was<br>
20 a response to a call concerning the well-being of the individual.” Contrary to<br>
21 Defendant’s characterization, the record demonstrates that the district court <br>
6<br>
1 considered the evidence and exercised its fact-finding discretion in rejecting<br>
2 defense’s requested inferences. Moreover, Defendant’s suggested approach on<br>
3 appeal, which would have this Court parse the district court’s oral pronouncements<br>
4 and draw inferences contrary to the district court’s decision, runs afoul of our well5 established practice of employing presumptions and inferences in favor of a district<br>
6 court’s suppression ruling. See State v. Jason L., 2000-NMSC-018, ¶¶ 10-11, 129<br>
7 N.M. 119, 2 P.3d 856 (“[W]e will draw all inferences and indulge all presumptions<br>
8 in favor of the district court’s ruling.”).<br>
9 {9} We turn now to Defendant’s substantive challenge of the suppression ruling.<br>
10 Defendant below and on appeal disputes the applicability of the community<br>
caretaker exception—and in particular, the emergency assistance doctrine1 11 branch<br>
12 of that exception—to justify the officers’ actions. Because Defendant preserved a<br>
13 state constitutional claim and because our constitution already has been construed to<br>
1<br>
While the State urges us to apply the less stringent public servant doctrine<br>
branch of the community caretaker exception, we assume without deciding that the<br>
emergency assistance doctrine applies here because Defendant’s claim nevertheless<br>
fails under that standard. We underscore that we express no opinion as to whether<br>
the emergency assistance doctrine does in fact apply to the situation at issue in this<br>
case—i.e., to the publicly visible portions of a front yard. See State v. Sheehan, 2015-<br>
NMCA-021, ¶ 11, 344 P.3d 1064 (“The emergency aid doctrine applies specifically<br>
to warrantless intrusions into the home.” (internal quotation marks and citation<br>
omitted)); State v. Hamilton, 2012-NMCA-115, ¶¶ 16-17, 290 P.3d 271 (observing<br>
that “[g]enerally, the curtilage is the enclosed space of the grounds and buildings<br>
immediately surrounding a dwelling house[,]” and considering several factors to<br>
determine whether a specific location is within the curtilage of a residence, and<br>
thereby subject to constitutional privacy protections (internal quotation marks and<br>
citation omitted)).<br>
7<br>
1 provide greater protections than the federal constitution in this situation, we examine<br>
2 the suppression issue here under the New Mexico Constitution only.<br>
3 {10} In State v. Ryon, 2005-NMSC-005, ¶¶ 29-39, 137 N.M. 174, 108 P.3d 1032,<br>
4 our Supreme Court articulated a three-prong test to determine whether the<br>
5 emergency assistance doctrine excused a warrantless, nonconsensual entry into a<br>
6 home.<br>
7 First, the police must have reasonable grounds to believe that there is<br>
8 an emergency at hand and an immediate need for their assistance for<br>
9 the protection of life or property. Second, the search must not be<br>
10 primarily motivated by intent to arrest and seize evidence. Third, there<br>
11 must be some reasonable basis, approximating probable cause, to<br>
12 associate the emergency with the area or place to be searched.<br>
13 Id. ¶ 29 (alterations, internal quotation marks, and citations omitted). Once lawfully<br>
14 present, “officers may expand the scope of the intrusion, if probable cause or<br>
15 reasonable suspicion arises,” and “may also seize evidence of a crime that is in plain<br>
16 view or arrest a suspect if there is probable cause.” Id. ¶ 38. Although the Ryon test<br>
17 was later modified under the Fourth Amendment of the United States Constitution,<br>
18 it was retained under Article II, Section 10 of the New Mexico Constitution. See<br>
19 State v. Yazzie, 2019-NMSC-008, ¶¶ 23, 44-48, 437 P.3d 182.<br>
20 {11} Our review of the applicability of the emergency assistance doctrine, as with<br>
21 other suppression rulings, is a mixed question of fact and law. See Ryon, 2005-<br>
22 NMSC-005, ¶ 11. We first look for substantial evidence to support the district court’s<br>
23 factual findings, deferring to the district court’s findings, indulging all reasonable <br>
8<br>
1 inferences in support of the district court’s decision, and disregarding all evidence<br>
2 or inferences to the contrary. Jason L., 2000-NMSC-018, ¶¶ 10-11. Ultimately, the<br>
3 propriety of a search or seizure turns on whether it was reasonable, which we review<br>
4 de novo. Ryon, 2005-NMSC-005, ¶ 11.<br>
5 {12} On appeal, Defendant asks that we examine the second Ryon prong, arguing<br>
6 “the State failed to meet its burden of proving that [Officer] De La O’s primary<br>
7 motivation was a medical emergency, rather than a desire to investigate for drug<br>
crimes[,]” and, consequently, the emergency assistance doctrine does not apply.2 8<br>
9 The State argues to the contrary—that substantial evidence supported the district<br>
10 court’s decision. We agree with the State. Because we affirm on this basis, we do<br>
11 not address the State’s additional preservation or right for any reason arguments.<br>
2Defendant seems to concede the first Ryon prong, stating that “an initial<br>
interaction to confirm or dispel a medical concern was objectively reasonable[.]”<br>
But Defendant in reply suggests officers needed to conduct some “minimal check”<br>
to ensure emergency aid was necessary prior to approaching Defendant. In light of<br>
the nature of the dispatch (a welfare check) and the concern that Defendant may be<br>
experiencing a drug overdose, Defendant’s bald assertion that officers should have<br>
done something more before approaching him—without discussing “the availability,<br>
feasibility and effectiveness of alternatives to the type of intrusion actually<br>
accomplished[,]” Ryon, 2005-NMSC-005, ¶ 32 (internal quotation marks and<br>
citation omitted)—is not well developed, and we decline to consider it further. See<br>
State v. Duttle, 2017-NMCA-001, ¶ 15, 387 P.3d 885 (“For this Court to rule on an<br>
inadequately briefed constitutional issue would essentially require it to do the work<br>
on behalf of [the d]efendant.”); see also State v. Guerra, 2012-NMSC-014, ¶ 21, 278<br>
P.3d 1031 (explaining that appellate courts do not review unclear or undeveloped<br>
arguments).<br>
9<br>
1 {13} In this case, police dispatch received a call concerning the well-being of an<br>
2 individual slumped over in a chair in the front yard of a residence who may not have<br>
3 been breathing. Officer De La O responded to that call and observed Defendant<br>
4 unconscious in the yard. Based on her prior experience with Defendant and her<br>
5 knowledge of drug activity at the residence, Officer De La O was concerned that<br>
6 Defendant may be under the influence of narcotics and that he may have overdosed.<br>
7 And because of this, she did not want to simply walk away. Officer De La O instead<br>
8 approached and tried to rouse Defendant, who soon awoke. She was then joined by<br>
9 Officer Gomez, and they both continued to ask Defendant if he was okay to ensure<br>
10 he was “alert and oriented” before they left. This is direct evidence of the officers’<br>
11 motivation, which the district court credited in denying the motion to suppress. See<br>
12 Yazzie, 2019-NMSC-008, ¶ 50 (crediting the officer’s testimony about why he<br>
13 entered the defendant’s home); see also Schuster v. N.M. Dep’t of Taxation &<br>
14 Revenue, 2012-NMSC-025, ¶ 27, 283 P.3d 288 (recognizing that when an officer is<br>
15 “conducting a ‘welfare check, plain and simple,’ then it is logical to infer that he<br>
16 would investigate the incident until he was satisfied that his assistance was not<br>
17 needed”). The foregoing provides substantial evidence that the officers’ primary<br>
18 motivation, in approaching and questioning Defendant about his well-being, was to<br>
19 render aid and protect from harm. See Yazzie, 2019-NMSC-008, ¶ 50. The officers<br>
20 subsequently were not required to turn a blind eye to criminal activity before them.<br>
21 See Ryon, 2005-NMSC-005, ¶ 38; State v. Nemeth, 2001-NMCA-029, ¶ 38, 130 <br>
10<br>
1 N.M. 261, 23 P.3d 936 (“[O]nce the veil of the home has been legally pierced, we<br>
2 see no need for police officers to turn a blind eye to crime[.]”), overruled on other<br>
3 grounds by Ryon, 2005-NMSC-005.<br>
4 {14} Defendant would have us ignore this evidence and, pointing to the same kinds<br>
5 of evidence he relied on below, asks us to draw the contrary inference that the<br>
6 officers were primarily motivated to undertake a criminal investigation. We decline,<br>
7 as we must, Defendant’s invitation to reweigh the evidence on appeal. See State v.<br>
8 Estrada, 2001-NMCA-034, ¶ 41, 130 N.M. 358, 24 P.3d 793 (“[A]s a reviewing<br>
9 court, we do not reweigh the evidence or attempt to draw alternative inferences from<br>
10 the evidence.”). We defer to the district court’s decision because, as stated, it is<br>
11 supported by substantial evidence. See Yazzie, 2019-NMSC-008, ¶ 51; State v.<br>
12 Garcia, 2013-NMCA-064, ¶ 48, 302 P.3d 111 (“The question is whether the district<br>
13 court’s decision is supported by substantial evidence, not whether the court could<br>
14 have reached a different conclusion.” (alteration, internal quotation marks, and<br>
15 citation omitted)). Although Defendant points to evidence that might support an<br>
16 inference contrary to that drawn by the district court, it is “not sufficient to overcome<br>
17 the standard of review in this case.” Yazzie, 2019-NMSC-008, ¶ 51; see also Jason<br>
18 L., 2000-NMSC-018, ¶¶ 10-11 (“When the evidence conflicts, we consider the<br>
19 evidence that supports the district court’s ruling[.]” (emphasis added)).<br>
20 {15} Balancing the public need and interest in providing assistance to those who<br>
21 may be in imminent peril from a drug overdose against the intrusion of approaching <br>
11<br>
1 and inquiring of Defendant’s well-being in the front yard of a residence, we conclude<br>
2 the officers acted reasonably as community caretakers in this case. See Ryon, 2005-<br>
3 NMSC-005, ¶ 16. The district court’s denial of Defendant’s motion to suppress is<br>
4 affirmed.<br>
5 II. Double Jeopardy<br>
6 {16} Defendant next contends that his convictions for battery upon a peace officer,<br>
7 contrary to Section 30-22-24, and resisting, evading or obstructing an officer,<br>
8 contrary to Section 30-22-1(B) (fleeing or evading), violate the double jeopardy<br>
9 protection against multiple punishments for the same conduct. Although Defendant<br>
10 did not reserve this issue in his conditional guilty plea, he may nevertheless advance<br>
11 his double jeopardy challenge on appeal. See State v. Franco, 2016-NMCA-074, ¶ 8,<br>
12 387 P.3d 279.<br>
13 {17} “A double jeopardy challenge is a constitutional question of law which we<br>
14 review de novo.” State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747. Defendant<br>
15 raises a “double description” challenge “in which a single act results in multiple<br>
16 charges under different criminal statutes[.]” State v. Bernal, 2006-NMSC-050, ¶ 7,<br>
17 140 N.M. 644, 146 P.3d 289. In analyzing such challenges, we examine (1) whether<br>
18 the conduct is unitary and (2) if so, whether the Legislature intended to punish the<br>
19 offenses separately. Swafford v. State, 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d<br>
20 1223. Given Defendant’s convictions resulted from a no contest plea, the record is<br>
21 thin regarding the facts that gave rise to the two convictions. We, however, need not <br>
12<br>
1 undertake a unitary conduct analysis here because Defendant “cannot carry the<br>
2 burden imposed by the second prong of the Swafford test.” State v. Ramirez, 2018-<br>
3 NMSC-003, ¶ 42, 409 P.3d 902; see also State v. Bahney, 2012-NMCA-039, ¶ 21,<br>
4 274 P.3d 134 (stating that it is permissible to presume unitary conduct because “our<br>
5 case law separately makes it clear that analysis pursuant to either prong can be<br>
6 dispositive of a Swafford-governed double jeopardy challenge”).<br>
7 {18} “The sole limitation on multiple punishments is legislative intent[.]” State v.<br>
8 Franco, 2005-NMSC-013, ¶ 12, 137 N.M. 447, 112 P.3d 1104 (alteration, internal<br>
9 quotation marks, and citation omitted). “When, as here, the statutes themselves do<br>
10 not expressly provide for multiple punishments, we begin by applying the rule of<br>
11 statutory construction from Blockburger v. United States, 284 U.S. 299 . . . (1932),<br>
12 to determine whether each provision requires proof of a fact that the other does not.”<br>
13 State v. Branch, 2018-NMCA-031, ¶ 24, 417 P.3d 1141. When a statute is “vague<br>
14 and unspecific” or “written with many alternatives,” however, we apply a modified<br>
15 Blockburger analysis, State v. Gutierrez, 2011-NMSC-024, ¶ 59, 150 N.M. 232, 258<br>
16 P.3d 1024—“look[ing] to the state’s trial theory to identify the specific criminal<br>
17 cause of action for which the defendant was convicted [and] filling in the case18 specific meaning of generic terms in the statute when necessary[,]” Branch, 2018-<br>
19 NMCA-031, ¶ 25. We do so “independent of the particular facts of the case . . . by<br>
20 examining the charging documents and the jury instructions given in the case.”<br>
21 Swick, 2012-NMSC-018, ¶ 21 (citation omitted). If, under modified Blockburger, <br>
13<br>
1 “each statute requires proof of a fact that the other does not, it may be inferred that<br>
2 the Legislature intended to authorize separate punishments under each statute.”<br>
3 Swick, 2012-NMSC-018, ¶ 13.<br>
4 {19} On appeal, Defendant does not undertake a Blockburger analysis, arguing<br>
5 instead that our holding in State v. Ford, 2007-NMCA-052, 141 N.M. 512, 157 P.3d<br>
6 77, compels his fleeing or evading conviction be vacated. In Ford, this Court<br>
7 concluded that convictions, based on unitary conduct, for battery upon a peace<br>
8 officer, Section 30-22-24, and resisting or abusing a peace officer, Section 30-22-<br>
9 1(D), violate double jeopardy because resisting or abusing a peace officer is a lesser10 included offense of battery upon a peace officer. Ford, 2007-NMCA-052, ¶¶ 18-23.<br>
11 Ford, however, was specifically limited to Subsection (D) of the resisting, evading<br>
12 or obstructing statute. Id. And although Defendant argues that the subsection does<br>
13 not matter for purposes of our double jeopardy analysis, this simply is not the case.<br>
14 Defendant’s argument runs contrary to the clear delineation this Court has drawn<br>
15 between Subsection 30-22-1(D), at issue in Ford, and Subsection 30-22-1(B), under<br>
16 which Defendant was convicted. See State v. Jimenez, 2017-NMCA-039, ¶¶ 24, 37-<br>
17 38, 392 P.3d 668 (distinguishing the conduct at issue under the “resisting or abusing”<br>
18 Subsection (30-22-1(D)) from that at issue under the “fleeing or evading” Subsection<br>
19 (30-22-1(B)), and clarifying that evidence must be evaluated under the particular<br>
20 subsection charged). Moreover, it runs afoul of well-established double jeopardy law<br>
21 that “we treat statutes written in the alternative as separate statutes for purposes of <br>
14<br>
1 the Blockburger analysis.” Gutierrez, 2011-NMSC-024, ¶ 58 (emphasis added)<br>
2 (internal quotation marks and citation omitted). For these reasons, we conclude Ford<br>
3 is inapposite.<br>
4 {20} We proceed with the legislative intent analysis demanded by our double<br>
5 jeopardy jurisprudence, examining the relevant statutory provisions in light of the<br>
6 State’s theory. Defendant was charged in Count 3 of battery upon a peace officer,<br>
7 contrary to Section 30-22-24, for the touching or application of force to Officer De<br>
8 La O. Defendant was charged in Count 4 of resisting, evading or obstructing an<br>
9 officer, contrary to Section 30-22-1(B), for the intentional fleeing, evading, or<br>
10 attempted evading of Officer Gomez. The indictment is consistent with the little<br>
11 evidence available in the record as to the State’s theory of the charges.<br>
12 {21} Turning to the applicable statutory provisions, Section 30-22-1(B) requires<br>
13 “intentionally fleeing, attempting to evade or evading an officer of this state when<br>
14 the person committing the act of fleeing, attempting to evade or evasion has<br>
15 knowledge that the officer is attempting to apprehend or arrest him[.]” Whereas,<br>
16 battery upon a peace officer is “the unlawful, intentional touching or application of<br>
17 force to the person of a peace officer while he is in the lawful discharge of his duties,<br>
18 when done in a rude, insolent or angry manner.” Section 30-22-24(A). Battery upon<br>
19 a peace officer requires proof that Defendant touched or applied force to an officer,<br>
20 which is not required to prove fleeing or evading an officer. Likewise, Section 30-<br>
21 22-1(B) requires proof that Defendant (1) fled, attempted to evade, or evaded an <br>
15<br>
1 officer (2) with knowledge that the officer was attempting to apprehend or arrest<br>
2 Defendant, neither of which is required to prove battery upon a peace officer. In light<br>
3 of the State’s theory in this case and an examination of the statutory provisions, we<br>
4 conclude that one offense is not subsumed within the other, and Blockburger gives<br>
5 rise to a presumption that the Legislature intended the offenses to be separately<br>
6 punished. See Swick, 2012-NMSC-018, ¶ 21.<br>
7 {22} This presumption, however, “is not conclusive and it may be overcome by<br>
8 other indicia of legislative intent.” Swafford, 1991-NMSC-043, ¶ 31. To resolve<br>
9 whether this presumption is overcome, “we must turn to traditional means of<br>
10 determining legislative intent: the language, history, and subject of the statutes[,]”<br>
11 and, in particular, we look to the societal interests protected by each statute and the<br>
12 quantum of punishment for the offenses. Id. ¶¶ 31-33. Unfortunately, Defendant<br>
13 does not address the additional legislative intent considerations set out in Swafford,<br>
14 and so we undertake this analysis without input from him.<br>
15 {23} First, as for societal interests, our Supreme Court has explained that “[i]f<br>
16 several statutes are not only usually violated together, but also seem designed to<br>
17 protect the same social interest, the inference becomes strong that the function of the<br>
18 multiple statutes is only to allow alternative means of prosecution.” Id. ¶ 32. We,<br>
19 however, must take care to “identify the particular evil sought to be addressed by<br>
20 each offense.” Id. (noting that “the social evils proscribed by different statutes must<br>
21 be construed narrowly”). Here, the applicable statutes protect against different <br>
16<br>
1 societal harms. One of the purposes of Section 30-22-1(B), which prohibits the<br>
2 “intentionally fleeing, attempting to evade or evading an officer,” is to protect the<br>
3 general public from harm that may result from a fleeing suspect. Cf. State v. Padilla,<br>
4 2008-NMSC-006, ¶ 21, 143 N.M. 310, 176 P.3d 299 (concluding that the purpose<br>
5 of the aggravated fleeing statute, NMSA 1978, § 30-22-1.1 (2003), is to protect the<br>
6 general public from the dangers of a high speed chase); State v. Padilla, 2006-<br>
7 NMCA-107, ¶¶ 34-35, 140 N.M. 333, 142 P.3d 921 (determining that Section 30-<br>
8 22-1.1 and Section 30-22-1(B) are “kindred” crimes and that Section 30-22-1(B) is<br>
9 an included offense of Section 30-22-1.1), rev’d on other grounds, 2008-NMSC10 006. Conversely, the purpose of Section 30-22-24 “is to protect the safety and<br>
11 authority of peace officers.” State v. Padilla, 1997-NMSC-022, ¶ 5, 123 N.M. 216,<br>
12 937 P.2d 492 (emphasis omitted). We also consider whether the statutes are usually<br>
13 violated together. See Swick, 2012-NMSC-018, ¶ 13. We can envision many ways<br>
14 in which a defendant may flee or evade an officer without committing battery on<br>
15 that officer and the converse is true as well—the two statutes are not necessarily<br>
16 violated together. Thus, our analysis here does not give rise to an inference that “the<br>
17 function of the multiple statutes is only to allow alternative means of prosecution.”<br>
18 Swafford, 1991-NMSC-043, ¶ 32.<br>
19 {24} Second, we look to the quantum of punishment to detect legislative intent.<br>
20 “Where one statutory provision incorporates many of the elements of a base statute,<br>
21 and extracts a greater penalty than the base statute, it may be inferred that the <br>
17<br>
1 [L]egislature did not intend punishment under both statutes.” Id. ¶ 33. In this case,<br>
2 battery upon a peace officer, Section 30-22-24, is a fourth-degree felony, and fleeing<br>
3 or evading, Section 30-22-1(B), is a misdemeanor. Neither crime, however, is a<br>
4 “base statute” for the other, nor is one “merely an aggravated form of the other.”<br>
5 State v. Fuentes, 1994-NMCA-158, ¶ 17, 119 N.M. 104, 888 P.2d 986. “The two<br>
6 stand alone, with independent elements and separate policy objectives.” Id. In sum,<br>
7 consideration of the indicia of legislative intent does not overcome the Blockburger<br>
8 presumption that the Legislature intended separate punishment.<br>
9 {25} We therefore conclude that Defendant’s convictions for battery upon a peace<br>
10 officer and fleeing or evading do not violate double jeopardy.

For the foregoing reasons, we affirm.