{ "id": 1571088, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Alex TRUJILLO, Defendant-Appellant", "name_abbreviation": "State v. Trujillo", "decision_date": "1978-04-11", "docket_number": "No. 3347", "first_page": "641", "last_page": "644", "citations": [ { "type": "official", "cite": "91 N.M. 641" }, { "type": "parallel", "cite": "578 P.2d 342" } ], "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": "88 N.M. 116", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2837200 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0116-01" ] }, { "cite": "91 N.M. 38", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571206 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/91/0038-01" ] }, { "cite": "117 Cal.Rptr. 163", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1974, "opinion_index": 0 }, { "cite": "42 Cal.App.3d 852", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 2352253 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/cal-app-3d/42/0852-01" ] }, { "cite": "498 P.2d 1024", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1972, "opinion_index": 0 }, { "cite": "102 Cal.Rptr. 776", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1972, "opinion_index": 0 }, { "cite": "7 Cal.3d 666", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 2277315 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/cal-3d/7/0666-01" ] }, { "cite": "91 N.M. 207", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571185 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/91/0207-01" ] }, { "cite": "80 N.M. 274", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5354928 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0274-01" ] }, { "cite": "88 N.M. 466", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2840798 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/88/0466-01" ] }, { "cite": "79 N.M. 131", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2747531 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/79/0131-01" ] }, { "cite": "83 N.M. 175", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5333630 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0175-01" ] } ], "analysis": { "cardinality": 489, "char_count": 7840, "ocr_confidence": 0.809, "pagerank": { "raw": 1.8682593724526185e-07, "percentile": 0.7258367186658373 }, "sha256": "e5a65a5593c3821abc0919cc8a32e84f830414640ee75d708be8a1946ef57817", "simhash": "1:e99c89e325975ad3", "word_count": 1299 }, "last_updated": "2023-07-14T15:07:42.064818+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ and LOPEZ, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Alex TRUJILLO, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nDefendant was convicted of two counts of aggravated battery, two counts of aggravated assault and two counts of bribery of a witness. The bribery convictions were based on threatening a witness. See \u00a7 40A-24-3(C), N.M.S.A. 1953 (2d Repl. Vol. 6). We discuss: (1) statutory misreference in the indictment; (2) denial of motions to suppress; and (3) the meaning of \u201cuse\u201d in the firearm enhancement statute.\nStatutory Misreference\nThe two counts of aggravated battery charged aggravated battery on July 2, 1977 in that defendant unlawfully applied force to the victim (there is a different victim for each count), with intent to injure by inflicting great bodily harm by use of a loaded firearm (a shotgun). Each count refers to the firearm enhancement statute, \u00a7 40A-29-3.1(A), N.M.S.A. 1953 (2d Repl. Vol. 6, Supp. 1975).\nEach count also refers to \u00a7 40A-2-5 rather than \u00a7 40A-3-5, N.M.S.A. 1953 (2d Repl. Vol. 6). Section 40A-2-5, supra, defines the crime of \u201cassisting suicide\u201d. Section 40A-3-5, supra, defines the crime of aggravated battery.\nDefendant moved to dismiss because of the statutory misreference and claims that denial of this motion was error. The contention is frivolous. The statutory misreference was a patent typing error. Such did not provide a basis for dismissal. Rule of Crim.Proc. 7(a); see State v. Covens, 83 N.M. 175, 489 P.2d 888 (Ct.App.1971); State v. Lucero, 79 N.M. 131, 440 P.2d 806 (Ct.App.1968).\nMotions to Suppress\nThe crimes were committed on July 2nd and 3rd, 1977. Defendant was apprehended on July 9, 1977. The evidence shows that defendant was advised of his constitutional rights. Defendant stated that he understood his rights and did not have anything to say.\nOfficer Filip had been talking to a resident of a nearby house. Upon his return to where defendant was standing, handcuffed, Officer Filip asked defendant \u201cwho the car belonged to.\u201d Defendant said he did not know. Officer Filip said \u201che was going to have the car towed away, since nobody seemed to know who it belonged to\u201d. .Defendant \u201cblurted out quickly, no, don\u2019t have it towed away, I borrowed that car.\u201d Officer Filip asked defendant if there was any personal property he would like, from the car, and defendant answered, \u201cyes, he would.\u201d The evidence is that it is standard practice to afford an arrested individual the opportunity to remove personal belongings from the arrestee\u2019s car in order to cut down on liability claims against officers once the police take possession of a car.\nWhile walking to the car, defendant asked \u201cif you find anything in that car, can it be used as evidence against me?\u201d Officer Filip stated, \u201cyes, it can. . . [I]f you would like, I can obtain a search warrant, if necessary.\u201d Defendant replied: \u201cthat won\u2019t be necessary. ... I have got a shotgun in the back seat. Let\u2019s get my things.\u201d The officers removed various things from the car at defendant\u2019s request \u2014shoes, a suit and shirt, a Levi jacket, some money and a shaving kit. Upon removal of the jacket from the back seat, the shotgun was revealed..\nDefendant moved to suppress his oral statement concerning the shotgun on the basis that officers were questioning defendant after he had stated that he had nothing to say. Defendant moved to suppress the shotgun on the basis that its discovery resulted from Officer Filip\u2019s remark that he could obtain a search warrant, if necessary. Both motions were properly denied.\nAlthough defendant was in custody, the circumstances here do not show any improper interrogation by police officers in violation of defendant\u2019s constitutional rights. See State v. Bidegain, 88 N.M. 466, 541 P.2d 971 (1975). Defendant was being given the opportunity to remove his personal belongings from the car. Defendant raised the question of evidence against him and in response, the officer stated a search warrant could be obtained if necessary. State v. Lewis, 80 N.M. 274, 454 P.2d 360 (Ct.App.1969) is not applicable to these facts. Defendant then volunteered the remark about the shotgun, which was found when defendant\u2019s belongings were being removed from the car. See State v. Greene, 91 N.M. 207, 572 P.2d 935 (1977). A search was not involved; the shotgun was properly seized when it came to view upon removing the jacket at defendant\u2019s request.\nMeaning of \u201cUse\"\nDefendant received an enhanced sentence for each of the aggravated batteries and for each of the aggravated assaults. Section 40A-29-3.1(A), supra, provides for enhancement of the sentences when \u201ca firearm was used in the commission of\u201d the felonies in this case.\nDefendant contends an enhanced sentence for one of the aggravated batteries was improper. This issue was raised by his requested, but refused, instruction, which read: \u201cA crime is committed with a firearm when the firearm is used as such and not as a club.\u201d There is evidence that defendant clubbed one of the battery victims during a struggle for the gun. Defendant asserts the . Legislature intended to increase the sentence only \u201cwhen a firearm is \u2018used\u2019 in accordance with its intended purpose, the shooting of a projectile or placing persons in fear of the shooting of a projectile, in order to accomplish a crime.\u201d\nPeople v. Chambers, 7 Cal.3d 666, 102 Cal.Rptr. 776, 498 P.2d 1024 (1972) states:\nBy employing the term \u201cuses\u201d instead of \u201cwhile armed\u201d the Legislature requires something more than merely being armed. . . One who is armed with a concealed weapon may have the potential to harm or threaten harm to the victim and those who might attempt to interrupt the commission of the crime . . . Although the use of a firearm connotes something more than a bare potential fqr use, there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies. \u201cUse\u201d means, among other things, \u201cto carry out a purpose or action by means of,\u201d to \u201cmake instrumental to an end or process,\u201d and to \u201capply to advantage.\u201d . . The obvious legislative intent to deter the use of firearms in the commission of the specified felonies requires that \u201cuses\u201d be broadly construed.\nPeople v. Reaves, 42 Cal.App.3d 852, 117 Cal.Rptr. 163 (1974) states:\n[T]he intentional firing of the gun is use of the firearm. The display of the gun in a menacing manner as a means of accomplishing a robbery or the employment of the gun to strike or \u201cpistol whip\u201d the victim is certainly \u201cuse\u201d of the gun in the commonly accepted definition of that term. Because either such \u201cuse,\u201d i. e., the menacing display of or striking the victim with the gun carries the ever-dangerous potential of a discharge of the firearm, both such \u201cuses\u201d are properly included .\nSimilarly to the California courts, we have distinguished between armed with a firearm and use of a firearm. State v. Duran, 91 N.M. 38, 570 P.2d 39 (Ct.App.1977); see State v. Wilkins, 88 N.M. 116, 537 P.2d 1012 (Ct.App.1975). The obvious intent of the New Mexico Legislature was to deter the use of firearms in committing felonies; consistent with that intent, \u201cuse\u201d should be broadly construed. People v. Chambers, supra. Defendant used the firearm within the meaning of \u00a7 40A-29-3.-1(A), supra, when he used the shotgun as a club in committing aggravated battery. People v. Reaves, supra. The trial court properly refused defendant\u2019s requested instruction.\nThe judgment and sentences are affirmed.\nIT IS SO ORDERED.\nHERNANDEZ and LOPEZ, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Stephen D. Pfeffer, Santa Fe, for defendant-appellant.\u201d", "Toney Anaya, Atty. Gen., Paquin M. Terrazas, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "578 P.2d 342\nSTATE of New Mexico, Plaintiff-Appellee, v. Alex TRUJILLO, Defendant-Appellant.\nNo. 3347.\nCourt of Appeals of New Mexico.\nApril 11, 1978.\nWrit of Certiorari Denied May 9, 1978.\nStephen D. Pfeffer, Santa Fe, for defendant-appellant.\u201d\nToney Anaya, Atty. Gen., Paquin M. Terrazas, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0641-01", "first_page_order": 677, "last_page_order": 680 }