{ "id": 1582564, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Ricardo AGUILAR, Defendant-Appellant", "name_abbreviation": "State v. Aguilar", "decision_date": "1982-07-20", "docket_number": "No. 5580", "first_page": "510", "last_page": "514", "citations": [ { "type": "official", "cite": "98 N.M. 510" }, { "type": "parallel", "cite": "650 P.2d 32" } ], "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": "42 L.Ed.2d 142", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1974, "opinion_index": 0 }, { "cite": "95 S.Ct. 178", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1974, "opinion_index": 0 }, { "cite": "419 U.S. 897", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6388160, 6387303, 6387692, 6386991, 6387152, 6387825, 6387570, 6386392, 6386202, 6387966, 6386687 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/us/419/0897-11", "/us/419/0897-06", "/us/419/0897-08", "/us/419/0897-04", "/us/419/0897-05", "/us/419/0897-09", "/us/419/0897-07", "/us/419/0897-02", "/us/419/0897-01", "/us/419/0897-10", "/us/419/0897-03" ] }, { "cite": "492 F.2d 395", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 474837 ], "opinion_index": 0, "case_paths": [ "/f2d/492/0395-01" ] }, { "cite": "97 N.M. 760", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555164 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/97/0760-01" ] }, { "cite": "87 N.M. 398", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2836549 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/87/0398-01" ] }, { "cite": "71 N.M. 274", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5348411 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/71/0274-01" ] }, { "cite": "91 N.M. 386", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571155 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/91/0386-01" ] }, { "cite": "96 N.M. 640", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577361 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/96/0640-01" ] }, { "cite": "82 N.M. 373", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326410 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/82/0373-01" ] }, { "cite": "74 N.M. 659", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2804640 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/74/0659-01" ] }, { "cite": "395 U.S. 711", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1772134 ], "weight": 3, "year": 1969, "opinion_index": 0, "case_paths": [ "/us/395/0711-01" ] }, { "cite": "81 N.M. 324", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358960 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0324-01" ] }, { "cite": "644 P.2d 1040", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1982, "opinion_index": 0 }, { "cite": "98 N.M. 51", "category": "reporters:state", "reporter": "N.M.", "year": 1982, "opinion_index": 0 }, { "cite": "97 N.M. 575", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555072, 1555067, 1555127 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/97/0575-01", "/nm/97/0575-02", "/nm/97/0575-03" ] }, { "cite": "652 F.2d 964", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1251572 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/f2d/652/0964-01" ] }, { "cite": "96 N.M. 627", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577429 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/nm/96/0627-01" ] }, { "cite": "96 N.M. 753", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577274 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/96/0753-01" ] }, { "cite": "359 So.2d 78", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9700859 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/so2d/359/0078-01" ] }, { "cite": "614 P.2d 546", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1979, "opinion_index": 0 }, { "cite": "94 N.M. 629", "category": "reporters:state", "reporter": "N.M.", "year": 1979, "opinion_index": 0 }, { "cite": "94 N.M. 98", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573225 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/94/0098-01" ] }, { "cite": "96 N.M. 317", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577311 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/nm/96/0317-01" ] }, { "cite": "95 N.M. 578", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575550 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/nm/95/0578-01" ] }, { "cite": "96 N.M. 556", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577410 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/96/0556-01" ] } ], "analysis": { "cardinality": 687, "char_count": 13026, "ocr_confidence": 0.783, "pagerank": { "raw": 1.6033008900185464e-07, "percentile": 0.6842485797434522 }, "sha256": "9f8b4d38eb6c7199067a3321cc3cb52f0af6107c42c60ddbc1db5c2b26537b08", "simhash": "1:9acd2ecb63869f4e", "word_count": 2079 }, "last_updated": "2023-07-14T19:13:49.367595+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WALTERS, C. J., and NEAL, J., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Ricardo AGUILAR, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nDONNELLY, Judge.\nDefendant appeals both his conviction for aggravated assault with a firearm, and the sentence imposed by the trial court. The issues before us are: (1) whether it was fundamental error to allow testimony relating to defendant\u2019s possession of a firearm, because the gun and evidence of its seizure had been ordered suppressed; and (2) whether defendant can be required to serve a mandatory prison sentence after he has served in excess of one year on probation for the same offense. Other issues listed in the docketing statement but not briefed are deemed abandoned. State v. Gonzales, 96 N.M. 556, 632 P.2d 1194 (Ct.App.1981).\nThis is the third time this cause has been before this court, and the proceedings herein have been lengthy and extensive. On November 29, 1979, defendant was indicted upon the charge appealed from here. Following his conviction, the trial court sentenced him to two years imprisonment, one year for aggravated assault and one year for the firearm enhancement, suspended the entire sentence, and ordered that he be placed on probation for two years. At the original sentencing hearing, the trial court further declared unconstitutional the mandatory penalty provisions of the firearm enhancement statute, \u00a7 31-18-16, N.M.S.A. 1978 (Repl.1981).\nIn the first appeal of this case, the state appealed both the trial court\u2019s ruling that the mandatory sentencing provision of the firearm enhancement statute was unconstitutional and the court\u2019s suspension of the mandatory sentence. The Court of Appeals dismissed the appeal, finding that the state had no right of appeal therein. On review by certiorari, the Supreme Court reversed the dismissal of the appeal and ordered the cause reinstated on the Court of Appeals docket for decision on the merits. State v. Aguilar, 95 N.M. 578, 624 P.2d 520 (1981).\nOn remand, the trial court\u2019s ruling that the mandatory sentencing provisions of \u00a7 31-18-16, supra, was an unconstitutional violation of the separation of powers doctrine was held erroneous by this court on August 11, 1981, in light of the decision in State v. Mabry, 96 N.M. 317, 630 P.2d 269 (1981). State v. Aguilar, No. 5082 (N.M.Ct.App. Aug. 11, 1981). We also held that the trial court erroneously suspended the mandatory sentence required under \u00a7 31-18-16, supra. The memorandum issued by this court provided, \u201cThe cause is remanded with instructions to vacate the sentence imposed and to resentence defendant in accordance with \u00a7 31-18-16 and State v. Mabry.\"\nFollowing the remand of this cause by the Court of Appeals, the trial court vacated defendant\u2019s prior sentence, and on January 8, 1982, imposed a sentence of eighteen months imprisonment for the assault, which he suspended, plus an additional one year sentence which was not suspended, for the firearm enhancement, less credit for three days presentence confinement.\nI. Claim of Fundamental Error\nDefendant became involved in a confrontation with another motorist in Albuquerque and brandished a gun at the other driver. During the argument, defendant\u2019s revolver discharged, sending a bullet into defendant\u2019s own car, but not striking the victim.\nFollowing the incident, a police officer went to defendant\u2019s home, but defendant did not answer the door. Apparently an officer looked in defendant\u2019s car outside his home and found a gun and ammunition, which he seized without obtaining a search warrant.\nPrior to trial, defendant successfully moved the court to suppress the .38 caliber revolver, five live rounds and one spent round of ammunition, all taken from defendant\u2019s automobile.\nDefendant contends that testimony about the gun was tainted fruit of an illegal search and seizure, and evidence concerning defendant\u2019s possession or use of the weapon was erroneously admitted. This point is without merit since defendant seeks to raise the issue for the first time on appeal. No objections on grounds of prior suppression were raised at trial to any of the testimony claimed as error. To preserve a claim of error for appellate review involving the admissibility of evidence, a party must make a timely objection. N.M. R.Evid. 103(a)(1), N.M.S.A.1978. A reviewing court will not reverse the trial court on grounds the trial court was neither first asked to consider nor had the opportunity to review. State v. Parrillo, 94 N.M. 98, 607 P.2d 636 (Ct.App.), cert. denied, 94 N.M. 629, 614 P.2d 546 (1979); N.M.R.Crim. App.P. 308, N.M.S.A.1978.\nDefendant notes that his trial counsel raised suppression of the gun at the close of the state\u2019s case in chief. However, defendant\u2019s trial counsel only said at that time, \u201c[T]he defense moves for a partial directed verdict regarding m^re specifically the firearm enhancement provision of this charge. . . . First of all, . . . there was no evidence produced in this matter of a pistol other than testimony. Furthermore, your honor, that gun was suppressed in a suppression motion your honor heard earlier last month.\u201d The court properly denied the motion. Because the court suppressed the gun as physical evidence, it does not necessary follow that independent testimony regarding its existence was also improper. State v. Marshall, 359 So.2d 78 (La.1978).\nAlthough conceding that he interposed no objection to the evidence below, defendant argues nevertheless that the admission of such testimony constituted fundamental error which may be raised at any time. See State v. Stevens, 96 N.M. 753, 635 P.2d 308 (Ct.App.), rev\u2019d on other grounds, 96 N.M. 627, 633 P.2d 1225 (1981). This argument must also fail; admission of the testimony complained of does not constitute error.\nOn direct examination by the state, Mary Loy, an eyewitness, testified that she was in a car which was stopped directly behind the victim\u2019s pickup. She stated that she observed defendant approach the victim\u2019s pickup with a gun and saw defendant fire the pistol into the air.\nThereafter, defendant testified and denied ever having approached the victim\u2019s pickup truck. Defendant asserted that he stopped his car on a side street, that somehow his gun fell out of his car and accidently fired when he picked it up.\nDefendant also testified extensively about his efforts to attempt to get his gun back from the police who had seized it and stated that he worked as a security guard and used it in his employment. He was cross-examined on his attempts to retrieve the weapon, and during closing arguments the State discussed defendant\u2019s attempts to retrieve the gun from the police.\nEvidence by witnesses concerning defendant\u2019s use of a weapon during the commission of a crime is admissible, even though the weapon in question may have been subsequently ordered suppressed because of an illegal search and seizure. State v. Marshall, supra. In Marshall, the court stated that if the facts referred to in a witness\u2019s testimony are derived from an independent source not tainted in any way by an illegal search, the evidence is not rendered inadmissible. Similarly, in United States v. Weller, 652 F.2d 964 (10th Cir. 1981), the court held that testimony emanating not from an illegal interrogation but independently gained by police from independent sources other than the defendant was admissible notwithstanding that defendant\u2019s statements had been ordered suppressed as evidence. The court in Weller, supra, further held that for the proscription of the \u201cfruit of the poisonous tree\u201d doctrine to apply, \u201cthere must be some rational connection between the \u2018fruit\u2019 and \u2018the poisonous tree.\u2019 \u201d\nMoreover, evidence of the seizure of the weapon was brought up in direct examination of defendant by his counsel. Defendant may not complain of evidence which he injected into the case. State v. Turner, 97 N.M. 575, 642 P.2d 178, (Ct.App.1981); cert. quashed, 98 N.M. 51, 644 P.2d 1040 (1982); State v. Harrison, 81 N.M. 324, 466 P.2d 890 (Ct.App.1970). It was not error for the state to comment during closing argument upon the seizure of the weapon where defendant himself initially testified to such matters.\nSince defendant voluntarily injected the issues into evidence, it was not error to admit the unobjected to testimony concerning defendant\u2019s use of a gun or the events surrounding its seizure.\nII. Imposition of Sentence\nDefendant claims as error, the trial court\u2019s action in vacating his initial sentence and resentencing him to a 12 month prison term under the firearm enhancement statute. Defendant argues that since he had already served 12 months probation for the same firearm enhancement offense, he has in effect already served the mandatory sentence. Defendant\u2019s argument essentially raises a double jeopardy issue, i.e., that it is improper to sentence defendant a second time for the same offense after he has completed serving the original sentence.\nDefendant argues that time already served by him under a sentence imposed cannot be taken away and that he has effectively served the mandatory sentence even though he was on probation. Alternatively, defendant argues that he must be given credit against the mandatory firearm enhancement sentence for the time previously served by him on probation during the pendency of the initial appeal.\nThe state concedes that under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the proscription against double jeopardy requires that credit must be given on resentencing for punishment already endured. The decision in North Carolina, however, is not applicable to the instant case. The court there was referring to incarceration already endured. See also Sneed v. Cox, 74 N.M. 659, 397 P.2d 308 (1964).\nIn the decision of this court issued following remand from the Supreme Court, the trial court was directed to vacate its previously imposed sentence and to resentence defendant in accord with the mandatory firearm enhancement statute. The trial court correctly carried out the mandate imposed by this court.\nSection 31-18-16, supra, provides in part:\nA. When a separate finding of fact by the court or jury shows that a firearm was used in the commission of a noncapital felony, the basic sentence of imprisonment prescribed for the offense in Section 31-18-15 NMSA 1978 shall be increased by one year, and the sentence imposed by this subsection shall be the first year served and shall not be suspended or deferred. [Emphasis supplied.]\nThe sentence originally imposed upon defendant for firearm enhancement was void. On appeal, the sentence was declared invalid and the constitutionality of the firearm enhancement statute was judicially affirmed.\nWhere a valid sentence has been imposed, a court may not thereafter increase the penalty. State v. Allen, 82 N.M. 373, 482 P.2d 237 (1971); State v. Crespin, 96 N.M. 640, 633 P.2d 1238 (Ct.App.1981). However, where the original sentence imposed is determined to be void, defendant\u2019s sentence may be enhanced to comply with the requirements of law.\nAs stated in State v. Crespin, supra:\nThe fixing of penalties is a legislative function; the trial court\u2019s authority is to impose a penalty which has been authorized by the legislature .... State v. Holland, 91 N.M. 386, 574 P.2d 605 (Ct.App.1978); see McCutcheon v. Cox, 71 N.M. 274, 377 P.2d 683 (1962); State v. Hovey, 87 N.M. 398, 534 P.2d 777 (Ct.App.1975).\nSince the judgment purporting to suspend the firearm enhancement provision of defendant\u2019s original sentence was void, and he was not previously sentenced to serve any time of official confinement, defendant cannot be said to have served any portion thereof and defendant cannot be held to have accrued a right to credit against the enhanced portion of defendant\u2019s sentence as finally imposed. Section 31-20-11, N.M.S.A.1978 (Repl.1981).\nIn State v. Mayberry, 97 N.M. 760, 643 P.2d 629 (Ct.App.1982), it was held that a firearm enhancement sentence cannot be bifurcated from the basic sentence imposed on defendant. Inasmuch as defendant\u2019s original sentence was void, double jeopardy did not attach, and defendant\u2019s resentencing for the mandatory enhancement provision must stand.\nAs stated in Garcia v. United States, 492 F.2d 395 (10th Cir.), cert. denied, 419 U.S. 897, 95 S.Ct. 178, 42 L.Ed.2d 142 (1974), it is a \u201cwell established principle that an invalid sentence may be corrected by the imposition of a proper sentence . . . even though, at the time of the resentencing, the original sentence is being served.\u201d\nUnder the facts herein, the trial court correctly imposed sentence upon defendant in accordance with this court\u2019s mandate.\nFinding no error, we affirm the judgment and sentence of the trial court.\nIT IS SO ORDERED.\nWALTERS, C. J., and NEAL, J., concur.", "type": "majority", "author": "DONNELLY, Judge." } ], "attorneys": [ "Dale B. Dilts, Albuquerque, for defendant-appellant.", "Jeff Bingaman, Atty. Gen., Heidi Topp Brooks, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "650 P.2d 32\nSTATE of New Mexico, Plaintiff-Appellee, v. Ricardo AGUILAR, Defendant-Appellant.\nNo. 5580.\nCourt of Appeals of New Mexico.\nJuly 20, 1982.\nRehearing Denied Aug. 20, 1982.\nCertiorari Denied Aug. 20, 1982.\nDale B. Dilts, Albuquerque, for defendant-appellant.\nJeff Bingaman, Atty. Gen., Heidi Topp Brooks, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0510-01", "first_page_order": 548, "last_page_order": 552 }