July 26, 2019- State of New Mexico v. Christian Garcia, No. A-1-CA-37740

l 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 	Plaintiff-Appellee,
4 	V. 	NO. A-1-CA-37740
5 	CHRISTIAN GARCIA,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
8 James M. Hudson, District Judge
9 Hector H. Balderas, Attorney General
10 	Santa Fe, NM
11 	for Appellee
12 Bennett J. Baur, Chief Public Defender
13 	Kathleen T. Baldridge, Assistant Appellate Defender
14 	Santa Fe, NM
15 	for Appellant
16 	MEMORANDUM OPINION
17 HANISEE, Judge.
18 	{l} 	Defendant appeals following his conviction for voluntary manslaughter. We
19 previously issued a notice of proposed summary disposition in which we proposed
20 to affirm. Defendant has filed a combined memorandum in opposition and motion to
Court of Appeals of New Mexico
Filed 7/26/2019 8:49 AM

1 amend the docketing statement. After due consideration, we remain unpersuaded by
2 Defendant's assertions of error. We therefore affirm.
3 	{2} 	We will begin with the motion to amend, by which Defendant seeks to raise
4 two related issues, contending that the jury should have been instructed on self-
5 defense and defense of habitation. [MIO 6-14] We note that Defendant did not
6 request such instructions. As a result, the issues are presented under the auspices of
7 the doctrines of fundamental error and/or ineffective assistance of counsel.
8 	{3} 	"Fundamental error occurs where there has been a miscarriage of justice, the
9 conviction shocks the conscience, or substantial justice has been denied." State v.
10 Erwin , 2016-NMCA-032, ,r 14 , 367 P.3d 905 (alteration, internal quotation marks,
11 	and citation omitted).
12 {4} 	To state a claim for ineffective assistance of counsel, a defendant must
13 	establish that counsel 's performance was deficient, and such deficiency resulted in
14 prejudice. State v. Garcia, 2011-NMSC-003 , ,r 33, 149 N.M. 185, 246 P.3d 1057.
15 	However, there is a strong presumption that trial counsel 's conduct falls within the
16 wide range of reasonable professional assistance, and we will not second-guess
17 	counsel's strategic judgment unless the conduct does not conform with an objective
18 	standard of reasonableness. See id.
2

1 {S} 	"In order to warrant jury instructions on self-defense and defense ofhabitation,
2 there must be evidence to support such instructions." State v. Gonzales, 2007-NMSC-
3 059, ,r 19, 143 N.M. 25 , 172P.3d 162. "Furthermore, theevidencemustsupportevery
4 element of the defense." Id.
5 	{6} 	An instruction on self-defense requires evidence that: "( 1) the defendant was
6 put in fear by an apparent danger of immediate death or great bodily harm, (2) the
7 killing resulted from that fear, and (3) the defendant acted reasonably." Id. ,r 20
8 (internal quotation marks and citation omitted); see also UJI 14-5171 NMRA. "An
9 instruction on defense ofhabitation requires evidence that: ( 1) the defendant believed
10 that the commission of a felony in [the] defendant's home was immediately at hand,
11 	(2) [the] defendant believed it was necessary to kill the intruder to prevent the
12 	commission of the felony, and (3) the defendant acted reasonably." Gonzales, 2007-
13 	NMSC-059, i121; see also UJI 14-5170 NMRA.
14 {7} 	"When considering a defendant' s requested instructions, we view the evidence
15 	in the light most favorable to the giving of the requested instructions. " State v. Swick,
16 	2012-NMSC-018, ,r 60, 279 P.3d 747 (alteration, internal quotation marks, and
17 	citation omitted). Applying this standard, evidence was presented that the victim
18 	visited Defendant's property several times on the day of the fatal shooting. Initially,
19 	the victim visited Defendant's home in order to consume methamphetamine and
3

1 marijuana. [MIO 3-4] Later he returned, and allegedly attempted to hotwire one of
2 Defendant' s vehicles. [MIO 4] The victim then approached the house and knocked,
3 whereupon Defendant "fired a warning shot" at the ceiling from inside the home, and
4 the victim left the property. [MIO 4] On the third and final visit the victim knocked
5 on the door and allegedly pried open a window, whereupon Defendant "barricaded
6 himself inside" in some fashion. 	[MIO 4] The victim then entered another of
7 Defendant's vehicles, and was attempting to steal items situated therein. [MIO 4] It
8 appears to have been undisputed that Defendant then fired a shot through an open
9 window, striking the victim. [MIO 4] The victim then got out of the vehicle, and
10 Defendant, believing him to be "crawling" toward the house, shot him a second time.
11 	[MIO 4, 16]
12 	{8} 	Although certain details leading up to the shooting were disputed, it is clear
13 	that the victim was shot while he was outside Defendant 's house, in a vehicle, and
14 apparently unarmed. If at any point Defendant was put in fear by an appearance of
15 	immediate death or great bodily harm, we fail to see how that fear could have been
16 present when the fatal shots were fired. Additionally, the victim was not attempting
17 	to commit a felony inside Defendant 's home at that time. As a result, the evidence
18 	appears to have been insufficient to support a self-defense or defense of habitation
4

1 instruction. 	See, 	e.g., 	Gonzales, 	2007-NMSC-059, ,r 22 	(arriving at 	a similar
2 conclusion under analogous circumstances).
3 	{9} 	In light of the foregoing considerations, we conclude that neither the claim of
4 fundamental error nor the claim of ineffective assistance is viable. We therefore deny
5 the motion to amend. See generally State v. Sommer, 1994-NMCA-070, ,r 11, 118
6 N.M. 58, 878 P.2d 1007 (observing that a motion to amend the docketing statement
7 and the argument offered in support thereof must be viable, and indicating that if it
8 is not, the motion will be denied).
9 	{10} 	Finally, we turn to the issue originally raised in the docketing statement and
10 	renewed in the memorandum in opposition, by which Defendant has challenged the
11 	sufficiency of the evidence to support the conviction. [DS 6; MIO 14] As previously
12 described at greater length in the notice of proposed summary disposition, the State
13 	presented evidence in support of each of the elements of the offense. [CN 2-4] In his
14 	memorandum in opposition, Defendant does not dispute this; instead, he contends
15 	that the evidence should be said to have established that the shooting was justified,
16 on either or both of the defense theories discussed above. [MIO 16] For the reasons
17 previously stated, we disagree.
18 	{11} 	Accordingly, for the reasons stated above and in the notice of proposed
19 	summary disposition, we affirm.
5

1 {12} 	IT IS SO ORDERED.
2
3
4 WE CONCUR:
5 ~,{a,- 	~£,,_s
6 	STINA B~RDUS, Judge
J. MILES HANISEE, Judge
6