{ "id": 727703, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Hector HERNANDEZ, Defendant-Appellant", "name_abbreviation": "State v. Hernandez", "decision_date": "1993-10-19", "docket_number": "No. 14897", "first_page": "562", "last_page": "565", "citations": [ { "type": "official", "cite": "116 N.M. 562" }, { "type": "parallel", "cite": "865 P.2d 1206" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "103 N.M. 655", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711335 ], "weight": 2, "pin_cites": [ { "page": "658-60" }, { "page": "4-6" } ], "opinion_index": 0, "case_paths": [ "/nm/103/0655-01" ] }, { "cite": "78 N.M. 127", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5324373 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "129" }, { "page": "984" } ], "opinion_index": 0, "case_paths": [ "/nm/78/0127-01" ] }, { "cite": "489 U.S. 602", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12032926 ], "weight": 4, "year": 1989, "pin_cites": [ { "page": "614" }, { "page": "1411" } ], "opinion_index": 0, "case_paths": [ "/us/489/0602-01" ] }, { "cite": "113 N.M. 186", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723186 ], "weight": 10, "pin_cites": [ { "page": "189" }, { "page": "329" }, { "page": "191" }, { "page": "331" }, { "page": "190-91" }, { "page": "330-31" }, { "page": "190" }, { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0186-01" ] }, { "cite": "691 P.2d 881", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1984, "opinion_index": 0 }, { "cite": "102 N.M. 88", "category": "reporters:state", "reporter": "N.M.", "year": 1984, "opinion_index": 0 }, { "cite": "102 N.M. 89", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580036 ], "weight": 2, "pin_cites": [ { "page": "92" }, { "page": "885" } ], "opinion_index": 0, "case_paths": [ "/nm/102/0089-01" ] }, { "cite": "473 N.E.2d 1300", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "85 Ill.Dec. 495", "category": "reporters:state", "reporter": "Ill. Dec.", "year": 1985, "opinion_index": 0 }, { "cite": "105 Ill.2d 310", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3141517 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-2d/105/0310-01" ] }, { "cite": "601 So.2d 1195", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7510583 ], "weight": 2, "pin_cites": [ { "page": "1196" } ], "opinion_index": 0, "case_paths": [ "/so2d/601/1195-01" ] }, { "cite": "679 P.2d 1287", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1984, "opinion_index": 0 }, { "cite": "101 N.M. 189", "category": "reporters:state", "reporter": "N.M.", "year": 1984, "opinion_index": 0 }, { "cite": "101 N.M. 192", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586399 ], "weight": 2, "pin_cites": [ { "page": "194" }, { "page": "1292" } ], "opinion_index": 0, "case_paths": [ "/nm/101/0192-01" ] }, { "cite": "788 P.2d 931", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 2, "year": 1990, "opinion_index": 0 }, { "cite": "109 N.M. 631", "category": "reporters:state", "reporter": "N.M.", "year": 1990, "opinion_index": 0 }, { "cite": "110 N.M. 486", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716974 ], "weight": 2, "pin_cites": [ { "page": "488-89" }, { "page": "277-78" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0486-01" ] }, { "cite": "107 N.M. 617", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597163 ], "weight": 4, "pin_cites": [ { "page": "620" }, { "page": "907" }, { "page": "620" }, { "page": "907", "parenthetical": "in applying specific-statute doctrine, different purposes and policies of statutes may be examined" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0617-01" ] }, { "cite": "40 N.M. 367", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8842073 ], "weight": 2, "year": 1936, "opinion_index": 0, "case_paths": [ "/nm/40/0367-01" ] }, { "cite": "91 N.M. 390", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571036 ], "weight": 2, "pin_cites": [ { "page": "392" }, { "page": "1020" } ], "opinion_index": 0, "case_paths": [ "/nm/91/0390-01" ] } ], "analysis": { "cardinality": 620, "char_count": 9919, "ocr_confidence": 0.735, "pagerank": { "raw": 1.085835736561939e-07, "percentile": 0.5636193461472078 }, "sha256": "b2111ea0a0f7f6f212a293f9a7c2be9cda36da397b8ad3875e10b3d27b876bd6", "simhash": "1:7abb69c265938c52", "word_count": 1604 }, "last_updated": "2023-07-14T22:33:33.360967+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "APODACA and FLORES, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Hector HERNANDEZ, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nHARTZ, Judge.\nDefendant appeals his convictions for auto burglary and possession of burglary tools. Our calendar notice proposed summary affirmance. Defendant has responded with a timely memorandum in opposition. Defendant has also moved to add the issue of whether the State presented sufficient evidence that he intended to commit a felony or theft within the vehicle. We deny the motion as unnecessary because our calendar notice anticipated and addressed the issue Defendant seeks to add. We affirm.\nWe accept the facts recited in Defendant\u2019s docketing statement as the facts in the ease. State v. Calanche, 91 N.M. 390, 392, 574 P.2d 1018, 1020 (Ct.App.1978). Tommy Urioste testified that on July 13, 1991, he parked his white Ford Escort in the parking lot of the Kmart at 7100 Lomas Boulevard in Albuquerque and went inside the store with his family to shop. When he returned to the car, he found the passenger door ajar and saw that the ignition switch had been damaged. The car stereo and speakers were not damaged and nothing was taken from inside the car. Thomas Gregory, a Kmart security guard, and Kevin McFarland, an employee in the Kmart electronics department, then approached Mr. Urioste. They had been in the parking lot looking at Gregory\u2019s new Jeep. About five minutes before Urioste returned to his car, they had seen a man getting out of the Escort and walk north toward Lomas. When Urioste told them that something had happened to his car, Gregory and McFarland pursued the man they had seen in the car and \u201cgot him to come back with us.\u201d At the Kmart Gregory instructed Defendant to empty his pockets, handcuffed him, and asked him questions. Albuquerque Police Officer Kelly Burt later arrived at the Kmart security office and was informed that Defendant had admitted being in the Escort and that two screwdrivers had been obtained from Defendant\u2019s pockets. After Defendant was arrested, Albuquerque Police Sergeant Ruben Davalos advised Defendant of his constitutional rights and questioned him. Davalos testified that Defendant admitted that he had purchased a screwdriver at the Kmart, opened an unlocked door to the Escort, and tried to start the car by inserting something into the ignition. At trial Defendant essentially repeated what he had admitted to Davalos, testifying that he had tried to start the car by jamming a screwdriver into the ignition.\nDefendant contends (1) that he was charged under the wrong statute, (2) that there was insufficient evidence to sustain either conviction, (3) that the evidence should be suppressed because of unconstitutional conduct by security guard Gregory, and (4) that his conviction constituted double jeopardy.\nApplicable Statutes \u2014 The Specific-Statute Doctrine\nDefendant contends that the district court should have dismissed his indictment for auto burglary, NMSA 1978, \u00a7 30-16-3(B) (Repl.Pamp.1984), and possession of burglary tools, NMSA 1978, \u00a7 30-16-5 (Repl.Pamp.1984), because the predicate conduct is more specifically covered by statutes prohibiting attempted unlawful taking of a motor vehicle, NMSA 1978, \u00a7 66-3-504 (Repl.Pamp.1989), and tampering with a vehicle, NMSA 1978, \u00a7 66-3-506(B), (D) (Repl.Pamp.1989). He relies on the specific-statute doctrine.\nWhen a general statute and a specific statute both cover a particular subject matter, the specific statute is considered to have been enacted as an exception to the general statute, and, in a criminal case, defendant must be tried under the more specific statute. State v. Blevins, 40 N.M. 367, 60 P.2d 208 (1936). In determining whether the offenses covered by the two statutes are the same, this court looks to the language of the statute and the elements of the crime to determine whether the statutes condemn the same offense and require the same proof.\nState v. Higgins, 107 N.M. 617, 620, 762 P.2d 904, 907 (Ct.App.1988); accord State v. Whitaker, 110 N.M. 486, 488-89, 797 P.2d 275, 277-78 (Ct.App.), cert. denied, 109 N.M. 631, 788 P.2d 931 (1990).\nThe offense of burglary requires an unauthorized entry. Section 30-16-3. Unauthorized entry is not an element of either unlawful taking of a vehicle, \u00a7 66-3-504, or tampering with a vehicle, \u00a7 66-3-506. This difference in the elements of the offenses is sufficient ground to reject Defendant\u2019s contention with respect to the burglary charge. See id. We also note that the burglary statute serves the purpose of protecting certain \u201cprohibited space,\u201d see State v. Rodriguez, 101 N.M. 192, 194, 679 P.2d 1290, 1292 (Ct.App.), cert. denied, 101 N.M. 189, 679 P.2d 1287 (1984), which distinguishes burglary from the offense of unlawful taking of a vehicle. See Higgins, 107 N.M. at 620, 762 P.2d at 907 (in applying specific-statute doctrine, different purposes and policies of statutes may be examined). Defendant\u2019s contention that he should not have been prosecuted for possession of burglary tools is likewise without merit.\nSufficiency of the Evidence\n\u201cBurglary consists of the unauthorized entry of any vehicle ... with the intent to commit any felony or theft therein.\u201d Section 30-16-3. The evidence would not support an inference that Defendant intended to steal anything from within the car. The State\u2019s theory therefore must have been that Defendant had the requisite intent because he intended to steal the car. Defendant argues that an intent to steal the car is not an intent to commit a theft \u201ctherein.\u201d \u201cThe burglary statute on its face,\u201d he argues, \u201crequires proof of intent to steal or otherwise do wrong mthin a structure, not an intent to steal the structure itself.\u201d We disagree.\nTheft of the car itself may be an offense committed within the vehicle. If one intends to commit in a car acts that accomplish the crime, then one intends to commit the crime in the car. Theft of a car can be accomplished from within the vehicle. See State v. Stephens, 601 So.2d 1195 (Fla.1992); People v. Steppan, 105 Ill.2d 310, 85 Ill.Dec. 495, 473 N.E.2d 1300 (1985). We agree with the rationale of the unanimous Florida Supreme Court:\nThe use of the word \u201ctherein\u201d plainly indicates that the crime of burglary can exist if the defendant formed an intent to commit a crime \u201cin that place.\u201d There is no requirement that the crime must be one that can be completed solely within the fixed limits of that particular place, only that the crime is intended to be committed there. This obviously can include an intent to commit ear theft, because such a crime can be committed \u201cin that place.\u201d\nStephens, 601 So.2d at 1196.\nGiven our construction of the burglary statute, Defendant also must lose his argument regarding the sufficiency of the evidence of possession of burglary tools. See State v. Jennings, 102 N.M. 89, 92, 691 P.2d 882, 885 (Ct.App.) (intent to use, rather than actual use, will support conviction), cert. quashed, 102 N.M. 88, 691 P.2d 881 (1984).\nMotion to Suppress\nDefendant argues that the district court should have granted his motion to suppress statements and physical evidence that were the product of actions by security guard Gregory. Relying on State v. Murillo, 113 N.M. 186, 824 P.2d 326 (Ct.App.1991), Defendant argues that Gregory was performing a \u201cpublic function,\u201d thereby triggering Constitutional safeguards. He points to testimony by Gregory\u2019s supervisor that Gregory\u2019s duties included cooperating with and assisting law enforcement personnel.\nSuch duties, which are probably common to almost all private security personnel, do not suffice to make a private security guard an agent of the state whose acts are subject to Constitutional restraints. Murillo recognized the general rule that a private person\u2019s behavior does not constitute state action unless the person is \u201cacting \u2018as an instrument or agent of the Government.\u2019 \u201d Id. at 189, 824 P.2d at 329 (quoting Skinner v. Railway Labor Executives\u2019 Ass\u2019n, 489 U.S. 602, 614, 109 S.Ct. 1402, 1411, 103 L.Ed.2d 639 (1989)). Under Murillo when the actor is a publicly commissioned officer, the State carries the burden of showing that the officer was acting in a private capacity. Id. 113 N.M. at 191, 824 P.2d at 331. But Gregory was not a publicly commissioned officer. Defendant therefore had the burden to show that Gregory was acting as a government agent or instrument. See id. at 190-91, 824 P.2d at 330-31. This is a question of fact to be determined on a case-by-case basis. Id. at 190, 824 P.2d at 330.\nIt is undoubtedly in the interest of a private retail business that potential patrons believe that they will not be victimized by crime while shopping at the business. Gregory\u2019s actions thus served his employer. The district court could reasonably find that Defendant had not satisfied his burden of establishing that Gregory was acting as an agent or instrument of government. We are not persuaded by Defendant\u2019s argument that there is something unique about shopping centers that blurs the line between a guard performing a public or private function. We affirm the denial of Defendant\u2019s suppression motion.\nDouble Jeopardy\nDefendant argues, pursuant to State v. Franklin, 78 N.M. 127,129, 428 P.2d 982, 984 (1967), and State v. Boyer, 103 N.M. 655, 658-60, 712 P.2d 1, 4-6 (Ct.App.1985), that his conviction violates the prohibition against double jeopardy because he may be prosecuted in the future for attempted unlawful taking of a motor vehicle. The short answer is that he has not been prosecuted for that crime. Hence, there has been no double jeopardy.\nWe affirm Defendant\u2019s convictions.\nIT IS SO ORDERED.\nAPODACA and FLORES, JJ., concur.", "type": "majority", "author": "HARTZ, Judge." } ], "attorneys": [ "Tom Udall, Atty. Gen., Santa Fe, for plaintiff-appellee.", "Sammy J. Quintana, Chief Public Defender, Douglas W. Baker, Asst. Appellate Defender, Santa Fe, for defendant-appellant." ], "corrections": "", "head_matter": "865 P.2d 1206\nSTATE of New Mexico, Plaintiff-Appellee, v. Hector HERNANDEZ, Defendant-Appellant.\nNo. 14897.\nCourt of Appeals of New Mexico.\nOct. 19, 1993.\nCertiorari Denied Nov. 29, 1993.\nTom Udall, Atty. Gen., Santa Fe, for plaintiff-appellee.\nSammy J. Quintana, Chief Public Defender, Douglas W. Baker, Asst. Appellate Defender, Santa Fe, for defendant-appellant." }, "file_name": "0562-01", "first_page_order": 596, "last_page_order": 599 }