2020 New Mexico Statutes
Chapter 31 - Criminal Procedure
Article 18 - Criminal Sentencing
Section 31-18-16 - Brandishing of firearm; alteration of basic sentence; suspension and deferral limited.

A. When a separate finding of fact by the court or jury shows that a firearm was brandished 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 three years, except that when the offender is a serious youthful offender or a youthful offender, the sentence imposed by this subsection may be increased by one year.

B. For a second or subsequent noncapital felony in which a firearm is brandished, the basic sentence of imprisonment prescribed in Section 31-18-15 NMSA 1978 shall be increased by five years, except that when the offender is a serious youthful offender or a youthful offender, the sentence imposed by this subsection may be increased by three years.

C. If the case is tried before a jury and if a prima facie case has been established showing that a firearm was brandished in the commission of the offense, the court shall submit the issue to the jury by special interrogatory. If the case is tried by the court and if a prima facie case has been established showing that a firearm was brandished in the commission of the offense, the court shall decide the issue and shall make a separate finding of fact thereon.

D. As used in this section, "brandished" means displaying or making a firearm known to another person while the firearm is present on the person of the offending party with intent to intimidate or injure a person.

History: 1953 Comp., § 40A-29-29, enacted by Laws 1977, ch. 216, § 5; 1979, ch. 152, § 3; 1993, ch. 77, § 7; 2020, ch. 54, § 3.

The 2020 amendment, effective July 1, 2020, increased the sentence enhancements for brandishing of a firearm in the commission of a noncapital felony, and defined "brandished" as used in this section; in the section heading, and throughout the section, substituted "brandished" for "used"; in Subsection A, after "shall be increased by", deleted "one year and the sentence imposed by this subsection shall be the first served" and added "three years, except"; in Subsection B, after "shall be increased by", deleted "three" and added "five", and after "years", deleted "and the sentence imposed by this subsection shall be the first three years served, and shall not be suspended or deferred; provided" and added "except"; and added Subsection D.

The 1993 amendment, effective July 1, 1993, added the provisos at the end of Subsections A and B.

I. GENERAL CONSIDERATION.

Intent of statute is to deter the use of firearms in committing felonies. State v. Trujillo, 1978-NMCA-041, 91 N.M. 641, 578 P.2d 342, cert. denied, 91 N.M. 751, 580 P.2d 972.

Section directed at sentencing only. — This section is, by its own terms and in actual application, directed at sentencing only. Cordova v. Romero, 614 F.2d 1267 (10th Cir.), cert. denied, 449 U.S. 851, 101 S. Ct. 142, 66 L. Ed. 2d 63 (1980).

This section does not create new class of crimes; rather, it provides for additional consequences for felonies committed by use of a firearm. Cordova v. Romero, 614 F.2d 1267 (10th Cir.), cert. denied, 449 U.S. 851, 101 S. Ct. 142, 66 L. Ed. 2d 63 (1980).

There is no repugnancy between 30-16-2 NMSA 1978 and this section. — Subsection B of this section does not conflict with Section 30-16-2 NMSA 1978 when it provides that the first year of the statutory sentence shall not be suspended. The two statutes are in harmony; each expresses a separate legislative intent. State v. Wilkins, 1975-NMCA-069, 88 N.M. 116, 537 P.2d 1012, cert. denied, 88 N.M. 319, 540 P.2d 249.

Combined use of sections creates no new crime. — No new crime is created by the combined use of Section 30-16-2 NMSA 1978 and this section in an indictment. Section 30-16-2 NMSA 1978 defines robbery with a deadly weapon, the crime of which defendant was convicted. This section specifies various consequences for the defendant if a finding is made that the deadly weapon used in the robbery was, in fact, a firearm, and serves no other purpose in the indictment than to alert the defendant to the possible sentencing consequences following a conviction under Section 30-16-2 NMSA 1978. State v. Sanchez, 1974-NMCA-144, 87 N.M. 140, 530 P.2d 404.

Section mandatory. — The enhancement provisions of this section are mandatory. State v. Kendall, 1977-NMCA-002, 90 N.M. 236, 561 P.2d 935, rev'd on other grounds, Kendall v. State, 1977-NMSC-015, 90 N.M. 191, 561 P.2d 464.

Sentence enhancement provisions for use of firearm mandatory. State v. Pendley, 1979-NMCA-036, 92 N.M. 658, 593 P.2d 755.

The provisions of this section were mandatory in a robbery case where a special finding was made by the jury that a firearm was used. State v. Wilkins, 1975-NMCA-069, 88 N.M. 116, 537 P.2d 1012, cert. denied, 88 N.M. 319, 540 P.2d 249.

Firearm enhancement statute authorizes multiple punishments for the commission of a noncapital felony with a firearm. — Where defendant was convicted of two counts of aggravated assault with a deadly weapon, and where defendant's sentences on these counts were each enhanced by one year, defendant's right to be free from double jeopardy was not violated, because 31-18-16(A) NMSA 1978 authorizes multiple punishments for the commission of a noncapital felony with a firearm, and where a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the same conduct under Blockburger, a court may impose cumulative punishment under such statutes in a single trial. State v. Baroz, 2017-NMSC-030.

Sentence enhancements for committing aggravated battery and aggravated assault with a firearm. — Double jeopardy was not violated where the sentences for defendant's aggravated battery and aggravated assault convictions were each increased by the firearm enhancement, because the legislature intended to authorize greater punishment when a firearm is used in the commission of aggravated assault and aggravated battery. State v. Comitz, 2019-NMSC-011.

Firearm enhancements to convictions for aggravated battery with a deadly weapon and aggravated assault with a deadly weapon do not violate double jeopardy. — Where defendant was convicted of aggravated battery with a deadly weapon for shooting and injuring his son and aggravated assault with a deadly weapon because his wife was standing next to their son at the time of the shooting, defendant's double jeopardy rights were not violated when the district court enhanced defendant's sentence based on the use of a firearm during the commission of the crimes, because the legislature intended to authorize an enhanced punishment when a firearm is used in the commission of a noncapital felony. State v. Branch, 2018-NMCA-031, replacing 2016-NMCA-071, 387 P.3d 250, cert. denied.

Firearm enhancements to convictions for aggravated battery with a deadly weapon and aggravated assault with a deadly weapon violate double jeopardy. — Where defendant was convicted of aggravated battery with a deadly weapon for shooting and injuring his son and for aggravated assault with a deadly weapon for assaulting his wife, who was standing next to defendant's son when he was shot, double jeopardy was violated because the firearm enhancements are subsumed within the underlying offenses, and punishment cannot be had for both the enhancements and the enhanced offenses. State v. Branch, 2016-NMCA-071, 387 P.3d 250, replaced by 2018-NMCA-031, and cert. quashed.

Application not prohibited by double jeopardy provisions. — Neither the rules of statutory construction nor the federal and state constitutional provisions against double jeopardy prohibit the application of the firearm enhancement statute to a person convicted of aggravated battery with a deadly weapon when the weapon used was a firearm. State v. Gonzales, 1981-NMCA-023, 95 N.M. 636, 624 P.2d 1033, overruled on other grounds by Buzbee v. Donnelly, 1981-NMSC-097, 96 N.M. 692, 634 P.2d 1244.

No double jeopardy in aggravated assault application. — Double jeopardy did not prohibit the trial court from enhancing defendant's sentence for aggravated assault with a deadly weapon (Section 30-3-2A NMSA 1978), under this section, since each section contains an element or elements not included in the other and the phrase "a noncapital felony" means "any noncapital felony". State v. Charlton, 1992-NMCA-124, 115 N.M. 35, 846 P.2d 341, cert. denied, 114 N.M. 577, 844 P.2d 827.

Judgment suspending firearm enhancement provision of original sentence void, and later resentencing constitutional. — Since a judgment purporting to suspend a firearm enhancement provision of an original sentence is void, where the defendant is not sentenced to serve any time of official confinement, he cannot be said to have served any portion thereof and he cannot be held to have accrued a right to a credit against the enhanced portion of his sentence as later imposed. Double jeopardy does not attach, and a resentencing for the mandatory enhancement provision of this section must stand. State v. Aguilar, 1982-NMCA-116, 98 N.M. 510, 650 P.2d 32, cert. denied, 98 N.M. 478, 649 P.2d 1391.

Relation to Section 31-18-15.1 NMSA 1978. — The defendant was charged with the use of a firearm in the murder of a police officer, and the jury found that he did use a firearm in committing that crime. This section provided a separate and distinct basis (use of a firearm) for further altering his basic sentence in addition to the alteration for aggravating circumstances permitted by Section 31-18-15.1 NMSA 1978: the language and requirements of each statute were totally independent of the other. State v. Hall, 1987-NMCA-145, 107 N.M. 17, 751 P.2d 701, cert. denied, 107 N.M. 16, 751 P.2d 700.

It is solely within province of legislature to establish penalties for criminal behavior. State v. Lack, 1982-NMCA-111, 98 N.M. 500, 650 P.2d 22, cert. denied, 98 N.M. 478, 649 P.2d 1391.

II. PROCEDURAL MATTERS.

Punishment to be applied for each felony committed. — If this section punishes for "use" of a firearm in committing a felony, the punishment is to be applied for each felony committed by using a firearm. State v. Kendall, 1977-NMCA-002, 90 N.M. 236, 561 P.2d 935, rev'd on other grounds, Kendall v. State, 1977-NMSC-015, 90 N.M. 191, 561 P.2d 464.

Application to some, not all, of crimes charged. — The trial court did not err in applying this section to two of the crimes which the defendant committed, rather than applying one firearm enhancement sentence to his entire series of crimes. State v. Espinosa, 1988-NMSC-050, 107 N.M. 293, 756 P.2d 573.

Notification to defendant. — Under this section, the prosecution does not have to formally notify a defendant in a charging instrument of either firearm use or that the state may seek a firearm enhanced sentence. State v. Badoni, 2003-NMCA-009, 133 N.M. 257, 62 P.3d 348, cert. denied, 133 N.M. 126, 61 P.3d 835.

Section requires separate finding of fact that firearm was used. — Where the jury did not make a separate finding of fact as to use of a firearm, the enhanced sentence under this section was not proper. State v. Duran, 1977-NMCA-091, 91 N.M. 35, 570 P.2d 39, cert. denied, 91 N.M. 3, 569 P.2d 413, cert. denied, 435 U.S. 972, 98 S. Ct. 1615, 56 L. Ed. 2d 65 (1978).

Objection to absence of separate finding not waived. — Defendant did not waive his objection to the absence of a separate finding of fact by failing to request that the special interrogatory be submitted to the jury, as it was not defendant's obligation to see that his sentence was enhanced. State v. Duran, 1977-NMCA-091, 91 N.M. 35, 570 P.2d 39, cert. denied, 91 N.M. 3, 569 P.2d 413, cert. denied, 435 U.S. 972, 98 S. Ct. 1615, 56 L. Ed. 2d 65 (1978).

Use of firearm must be proved beyond reasonable doubt. — Proof beyond a reasonable doubt is the traditional burden which our system of criminal justice deems essential, and the due process clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged; this standard applies not only to factual determinations of guilt, but also to the factual determination that a firearm was used, because that fact is a predicate for enhancing defendant's sentence. State v. Kendall, 1977-NMCA-002, 90 N.M. 236, 561 P.2d 935, rev'd on other grounds, Kendall v. State, 1977-NMSC-015, 90 N.M. 191, 561 P.2d 464.

Failure to instruct as to burden of proof. — Where the burden of proof instruction, by its wording, was applied to a determination of guilt, no reference was made to use of a firearm, and after the guilty verdicts were returned, instructions were given submitting the use of a firearm issue to the jury without a burden of proof instruction, the jury was not instructed on the burden of proof concerning use of a firearm; however, defendant did not complain of the absence of an instruction, he acquiesced in submitting only use instructions after a guilty verdict was returned, the evidence was almost uncontradicted that a firearm was used as to each count, and, accordingly, there was no violation of federal due process because the jury was not instructed that the firearm use must be proved beyond a reasonable doubt. State v. Kendall, 1977-NMCA-002, 90 N.M. 236, 561 P.2d 935, rev'd on other grounds, Kendall v. State, 1977-NMSC-015, 90 N.M. 191, 561 P.2d 464.

Prior conviction required. — For there to be a second or subsequent felony within the terms of the statute, there must have been a conviction preceding the commission of the offense to which application of the statute is sought. State v. Garcia, 1978-NMSC-039, 91 N.M. 664, 579 P.2d 790.

Proper to enhance sentences under both habitual offender and firearm enhancement provisions. — It is not improper to enhance a sentence under the general habitual offender statute if it has already been enhanced under the firearm enhancement statute. State v. Reaves, 1982-NMCA-169, 99 N.M. 73, 653 P.2d 904.

Failure to enhance felony sentences as required. — Where the defendant was convicted of three counts, the trial court failed to follow the habitual offender statute when it enhanced defendant's total sentence by one year, because the habitual offender statute required the court to enhance each of defendant's current felony sentences by one year. State v. Bachicha, 1991-NMCA-014, 111 N.M. 601, 808 P.2d 51, cert. denied, 111 N.M. 529, 807 P.2d 227.

III. SENTENCES.

Service of a mandatory sentence under house arrest. — The mandatory firearm enhancement of a one-year term of imprisonment set forth in Subsection A of Section 31-18-16 NMSA 1978 may be served under house arrest by an electronic monitor under the supervision of state or local law enforcement or correctional officers if the defendant is subject to being punished for a crime of escape for an unauthorized departure from the place of confinement or other non-compliance with the sentencing court's order. State v. Woods, 2010-NMCA-017, 148 N.M. 89, 230 P.3d 836, cert. denied, 2010-NMCERT-001, 147 N.M. 673, 227 P.3d 1055.

Sentence to house arrest. — Where defendant, who was a state park ranger, fatally shot the victim during a confrontation, and defendant pleaded guilty to voluntary manslaughter resulting in the death of a human being with a mandatory firearm enhancement, the district court had authority to sentence defendant to house arrest by electronic monitor with global positioning system capability and work release to satisfy the mandatory sentence of imprisonment for one year. State v. Woods, 2010-NMCA-017, 148 N.M. 89, 230 P.3d 836, cert. denied, 2010-NMCERT-001, 147 N.M. 673, 227 P.3d 1055.

Sentences served concurrently unless trial court or legislature requires consecutive sentences. — The trial court has discretion to require sentences to be served consecutively, but if this is not done, and there is no legislation covering the situation, the sentences are to be served concurrently. State v. Mayberry, 1982-NMCA-061, 97 N.M. 760, 643 P.2d 629.

Section does not negate enhanced sentence for accessory. — This section is worded in terms of a finding of fact "that a firearm was used in the commission" of the crime, but the statutory wording does not limit the enhanced sentence to situations where the defendant was the user of the firearm. Thus, the statute does not negate an enhanced sentence for an accessory when a firearm was used by the principal. State v. Roque, 1977-NMCA-094, 91 N.M. 7, 569 P.2d 417, cert. denied, 91 N.M. 4, 569 P.2d 414; State v. Burdex, 1983-NMCA-087, 100 N.M. 197, 668 P.2d 313, cert. denied, 100 N.M. 192, 668 P.2d 308.

Concurrent or consecutive sentences. — The trial court has authority to order that a sentence be served concurrently or consecutively, and this section made no change in this authority. State v. Kendall, 1977-NMCA-002, 90 N.M. 236, 561 P.2d 935, rev'd on other grounds, Kendall v. State, 1977-NMSC-015, 90 N.M. 191, 561 P.2d 464.

The trial court has the discretion to order that sentences for different offenses be served concurrently or consecutively. State v. Lopez, 1983-NMCA-045, 99 N.M. 612, 661 P.2d 890.

New consecutive sentence following remand allowable where less than maximum possible penalty. — A new sentence imposed by the trial court following remand does not constitute a punishment for the defendant having previously exercised his rights to appeal where the term of incarceration ordered upon remand is less than the maximum penalty which can be imposed, despite the fact part of the new sentence is to be served consecutively, rather than concurrently. State v. Lopez, 1983-NMCA-045, 99 N.M. 612, 661 P.2d 890.

Sentences cannot be served concurrently. — An additional one-year sentence for the use of a firearm and an additional one-year sentence as an habitual offender cannot be served concurrently. State v. Mayberry, 1982-NMCA-061, 97 N.M. 760, 643 P.2d 629.

IV. SPECIFIC CASES.

Use of noncapital felonies to enhance a capital felony. — Where defendant was convicted of first degree murder, a capital felony, the district court erred in enhancing defendant's sentence for the use of a firearm in the commission of the offense, because the enhancement for the use of a firearm applied only to noncapital felonies. State v. Serna, 2013-NMSC-033.

"Use" of gun properly included within scope of statute. — The display of a gun in a menacing manner as a means of accomplishing a robbery or the employment of the gun to strike or "pistol whip" the victim is certainly "use" of the gun in the commonly accepted definition of that term. Because either such "use," i.e., the menacing display of or striking the victim with the gun, carries the ever-dangerous potential of a discharge of firearm, both such "uses" are properly included within the scope of the statute. State v. Trujillo, 1978-NMCA-041, 91 N.M. 641, 578 P.2d 342, cert. denied, 91 N.M. 751, 580 P.2d 972.

Shotgun used as club. — Defendant "used" the firearm within the meaning of the statute when he used the shotgun as a club in committing aggravated battery. State v. Trujillo, 1978-NMCA-041, 91 N.M. 641, 578 P.2d 342, cert. denied, 91 N.M. 751, 580 P.2d 972.

Possession of firearm not "use" of firearm. — Possession of a firearm during the commission of a felony does not constitute "use" of a firearm under this section since the defendant never pulled the firearm or in any way threatened to use it. State v. Chouinard, 1979-NMCA-145, 93 N.M. 634, 603 P.2d 744.

No enhancement for charge of negligent use of firearm. — Under the facts of this case, the state was required to prove that the defendant negligently used a firearm to commit a noncapital felony and this conduct resulted in the death of a human being. Use of a firearm is thus the same conduct required to enhance defendant's sentence under Subsection A. Because the state would not be required to prove any additional facts in order to have the defendant's sentence enhanced, the firearm enhancement statute is subsumed within the offense of involuntary manslaughter by negligent use of a firearm. State v. Franklin, 1993-NMCA-135, 116 N.M. 565, 865 P.2d 1209.

Conspiracy not susceptible to firearm enforcement. — Since conspiracy is an initiatory crime which involves no physical act other than communication, it is not conceivable how a firearm could be used in the commission of that offense. Accordingly, the crime of conspiracy is not susceptible to firearm enhancement under this section. State v. Padilla, 1994-NMCA-067, 118 N.M. 189, 879 P.2d 1208.

Law reviews. — For survey, "Evidence: Prior Crimes and Prior Bad Acts Evidence," see 6 N.M.L. Rev. 405 (1976).

For comment, "Definitive Sentencing in New Mexico: The 1977 Criminal Sentencing Act," see 9 N.M.L. Rev. 131 (1978-79).

For article, "Survey of New Mexico Law, 1979-80: Criminal Law and Procedure," see 11 N.M.L. Rev. 85 (1981).

For annual survey of New Mexico law relating to criminal law, see 13 N.M.L. Rev. 323 (1983).

For annual survey of New Mexico law relating to criminal procedure, see 13 N.M.L. Rev. 341 (1983).

For annual survey of New Mexico Criminal Procedure, see 20 N.M.L. Rev. 285 (1990).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 21 Am. Jur. 2d Criminal Law § 926.

Validity of statutes prohibiting or restricting parole, probation, or suspension of sentence in cases of violent crimes, 100 A.L.R.3d 431.

Propriety of using single prior felony conviction as basis for offense of possessing weapon by convicted felon and to enhance sentence, 37 A.L.R.4th 1168.