{
  "id": 2842009,
  "name": "STATE of New Mexico, Plaintiff-Appellee, v. Isabel BARRERAS, Defendant-Appellant",
  "name_abbreviation": "State v. Barreras",
  "decision_date": "1975-05-28",
  "docket_number": "No. 1697",
  "first_page": "52",
  "last_page": "55",
  "citations": [
    {
      "type": "official",
      "cite": "88 N.M. 52"
    },
    {
      "type": "parallel",
      "cite": "536 P.2d 1108"
    }
  ],
  "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": "80 N.M. 663",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        5361811
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/nm/80/0663-01"
      ]
    },
    {
      "cite": "84 N.M. 595",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        2764665
      ],
      "weight": 3,
      "opinion_index": 0,
      "case_paths": [
        "/nm/84/0595-01"
      ]
    },
    {
      "cite": "87 N.M. 140",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        2832148
      ],
      "weight": 3,
      "opinion_index": 0,
      "case_paths": [
        "/nm/87/0140-01"
      ]
    },
    {
      "cite": "86 N.M. 71",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        2828365
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/nm/86/0071-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 421,
    "char_count": 8464,
    "ocr_confidence": 0.803,
    "pagerank": {
      "raw": 3.060117078359623e-07,
      "percentile": 0.8565601701103037
    },
    "sha256": "d7414e029c8cac0a2457c7dc8bdaaa4563ec8590dac0619e2f51d7e5656159c2",
    "simhash": "1:767df06e14b85c35",
    "word_count": 1393
  },
  "last_updated": "2023-07-14T21:34:46.516747+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "HENDLEY and HERNANDEZ, JJ., concur."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. Isabel BARRERAS, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nWOOD, Chief Judge.\nDefendant used a firearm in committing aggravated battery. In imposing sentence, the trial court refused to consider suspending defendant\u2019s sentence on the basis that \u00a7 40A-29-3.1, N.M.S.A.1953 (2d Repl. Vol. 6) was mandatory. Defendant contends that \u00a7 40A-29-3.1, supra, could not be applied in his case. We hold that \u00a7 40A-29-3.1, supra, was applicable to defendant\u2019s sentence but that it was misapplied. Accordingly, we remand for further hearing as to whether a part of the sentence should be suspended.\nSection 40A-29-3.1, supra, reads:\n\u201cWhen a separate finding of fact by the court or jury shows that a firearm was used in the commission of:\n\u201cA. murder other than murder in the first degree, rape, statutory rape, rape of a child, sexual assault, escape from jail, escape from penitentiary, escape from custody of a peace officer or assault by prisoner, the minimum and maximum terms of imprisonment prescribed by the Criminal Code shall each be increased by five [5] years; or\n\u201cB. any crime constituting a felony other than a capital felony, the court shall not suspend the first one [1] year of any sentence imposed; or\n\u201cC. any crime constituting a second or subsequent felony, other than a capital felony, the imposition or execution of a sentence shall not be suspended or parole shall not be granted unless one-half IY2] of the minimum imprisonment provided for the offense shall have been served.\u201d\nThe statute provides for sentencing consequences when a firearm is used in the commission of certain crimes. The enhancement is in various ways. Under Paragraph A the minimum and maximum terms of imprisonment are increased. Paragraph B limits the authority to suspend the sentence. Paragraph C limits the authority either to suspend the sentence or to grant parole. This statute provides for enhanced sentences for specified crimes which are committed with a firearm. See State v. Lard, 86 N.M. 71, 519 P.2d 307 (Ct.App.1974).\nDefendant asserts the trial court had no jurisdiction to utilize \u00a7 40A-29-3.1, supra, in imposing sentence. He contends that jurisdiction was lost because \u00a7 40A-29-3.1, supra, was not charged in the information. This contention is not concerned with the sufficiency of the information to charge the crime of aggravated battery contrary to \u00a7 40A-3-5, N.M.S.A.1953 (2d Repl. Vol. 6). See State v. Sanchez, 87 N.M. 140, 530 P.2d 404 (Ct.App.1974). This contention is directed to what must be charged in the information so that the enhanced penalties of \u00a7 40A-29-3.1, supra, apply when conviction occurs.\nState v. Blea, 84 N.M. 595, 506 P.2d 339 (Ct.App.1973) involved Paragraph A of \u00a7 40A-29-3.1, supra. Blea states that this statutory provision created a new class of crimes and that defendant must be charged with violating this new crime \u201cso as to enable him to prepare his defense to that crime.\u201d This statement is overly broad. On the other hand, State v. Sanchez, supra, indicates that \u00a7 40A-29-3.1, supra, creates \u201cno new crime\u201d and is superfluous to the criminal charge. This statement is too narrow. These seemingly contradictory statements are reconcilable because \u00a7 40A-29-3.1, supra, contains two major elements. Blea and Sanchez each emphasize a different element.\nOne major element in \u00a7 40A-29-3.1, supra, is that crimes committed by use of a firearm are to be treated differently than crimes committed without a firearm. Blea emphasizes this element. The second major element is the consequence for using a firearm. Sanchez emphasizes this element. Both decisions are correct.\nBlea holds that a defendant must be given notice, in the criminal charge, that he used a firearm in committing the crime. We reaffirm this holding because, as stated in Blea, a defendant is entitled to be informed of the nature of the accusation against him so as to enable him to prepare his defense. Sanchez states that a defendant need not be given notice, in the criminal charge, of the enhanced penalty for using a firearm. We reaffirm this holding because the sentence is not an element of the conviction; rather it is a consequence of the conviction. State v. Ferris, 80 N.M. 663, 459 P.2d 462 (Ct.App.1969). We add, however, that the reference in Blea to a new class of crimes and the reference in Sanchez that \u00a7 40A-29-3.-1, supra, is superfluous is verbiage unnecessary to the decision in either case. This verbiage is disapproved because \u00a7 40A-29-3.1, supra, creates new consequences for criminal conduct committed by using a firearm.\nFor the enhanced penalties of \u00a7 40A-29-3.1, supra, to apply, a defendant must have been put on notice that the crime charged was committed by using a firearm. Direct ways of giving notice is to allege that a firearm was used or that defendant is charged under \u00a7 40A-29-3.1, supra. That was not done in this case. The information charged defendant with committing the aggravated battery \u201cwith a deadly weapon\u201d. Was this sufficient notice ?\nThe information gave defendant notice that he must be prepared to defend against a charge of using a deadly weapon. Deadly weapon \u201cmeans any firearm\u201d. Section 40A-1-13(B), N.M.S.A.1953 (2d Repl. Vol. 6). The definition of deadly weapon encompasses more than firearms. If defendant was uncertain whether the charge of deadly weapon encompassed a firearm, he could have obtained a description of the weapon under \u00a7\u00a7 41-23-8 and 41-23-9, N.M.S.A.19S3 (2d Repl. Vol. 6, Supp.1973).\nWe hold that the information charging that the offense was committed with a deadly weapon was sufficient to put defendant on notice to defend against committing the crime by using a firearm. The charge was sufficient in this case; the trial court had jurisdction and \u00a7 40 A-29-3.1, supra, was applicable.\nDefendant also asserts he was prejudiced by the failure to charge \u00a7 40A-29-3.1, supra, in the information. He concedes that a specific mention of the statute or the word \u201cfirearm\u201d would not have significantly altered defense strategy at trial. His contention is that the failure to specifically mention the statute or \u201cfirearm\u201d severely handicapped his decision as to whether to plead guilty to a lesser offense. This claim is answered by the record. At the sentencing proceeding, his counsel stated that \u201cwe did not plead him guilty because he [defendant] didn\u2019t feel like he was guilty . . . .\u201d There is no factual basis for a claim of prejudice based on loss of a plea bargain.\nSection 40A-29-3.1, supra, requires a separate finding of fact by the court or jury that a firearm was used. State v. Blea, supra, holds that this finding must be made by the fact finder in the case.' This case was tried to the court without a jury. The court specifically found that a firearm was used in commission of the aggravated battery. No claim is made that there was insufficient evidence for this finding; it is uncontroverted that defendant shot the victim with a pistol.\nThus, the penalty provisions of \u00a7 40A-29-3.1, supra, were mandatory. The applicable provision in this case was Paragraph B\u2014\u201cthe court shall not suspend the first one [1] year of any sentence imposed . .\u201d Thus, the first one year of defendant\u2019s sentence of not less than two nor more than ten years could not properly be suspended.\nThe trial court, however, was of the view that under \u00a7 40A-29-3.1(B), supra, \u201cI have no power to suspend . .\u201d \u201cI am faced with the statute that practically ties my hands.\u201d Accordingly, the trial court refused to consider whether any part of the sentence after the first year could be suspended. In this the trial cdhrt erred.\nOral argument in this case is unnecessary; the cause is submitted for decision on the briefs. The conviction is affirmed. The statutory sentence for a third degree felony is affirmed. The cause is remanded to the trial court with instructions to reopen the sentencing hearing. At that hearing the trial court is to determine, in its discretion, whether any part of the sentence after the first year is to be suspended. See \u00a7 40A-29-15(B), N.M.S.A.1953 (2d Repl. Vol. 6).\nIt is so ordered.\nHENDLEY and HERNANDEZ, JJ., concur.",
        "type": "majority",
        "author": "WOOD, Chief Judge."
      }
    ],
    "attorneys": [
      "Chester H. Walter, Jr., Chief Public Defender, Bruce L. Herr, App. Defender, Gerald Chakerian, Asst. App. Defender, Santa Fe, for defendant-appellant.",
      "Toney Anaya, Atty. Gen., Ralph Muxlow II, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee."
    ],
    "corrections": "",
    "head_matter": "536 P.2d 1108\nSTATE of New Mexico, Plaintiff-Appellee, v. Isabel BARRERAS, Defendant-Appellant.\nNo. 1697.\nCourt of Appeals of New Mexico.\nMay 28, 1975.\nChester H. Walter, Jr., Chief Public Defender, Bruce L. Herr, App. Defender, Gerald Chakerian, Asst. App. Defender, Santa Fe, for defendant-appellant.\nToney Anaya, Atty. Gen., Ralph Muxlow II, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee."
  },
  "file_name": "0052-01",
  "first_page_order": 82,
  "last_page_order": 85
}