February 5, 2020- State of New Mexico v. Sharla Desersa, No. A-1-CA-37931

Corrections to this opinion/decision not affecting the outcome, at the Court’s discretion, can occur up to the time of publication with
NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in
Odyssey.
1 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-37931
5 SHARLA DESERSA,
6 Defendant-Appellant.
7
8 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
9 James Waylon Counts, District Judge
10 Hector H. Balderas, Attorney General
11 Santa Fe, NM
12 for Appellee
13 Bennett J. Baur, Chief Public Defender
14 B. Douglas Wood III, Assistant Appellate Defender
15 Santa Fe, NM
16 for Appellant
17 MEMORANDUM OPINION
18 VANZI, Judge.
19 {1} Defendant appeals from a district court judgment entered after Defendant pled
20 guilty to larceny and conspiracy to commit larceny. We issued a calendar notice
21 proposing to affirm. Defendant has responded with a memorandum in opposition.
Court of Appeals of New Mexico
Filed 2/5/2020 10:27 AM

2
1 Issues 1 and 2:
2 {2} Defendant continues to claim [MIO 3] that the district court should have
3 allowed her to withdraw her plea because double jeopardy required merger of the two
4 offenses in her plea. See State v. Handa, 1995-NMCA-042, ¶ 39, 120 N.M. 38, 897
5 P.2d 225 (stating that the remedy for double jeopardy bar in a plea is to allow a
6 defendant to vacate the plea). Our Supreme Court has held that a defendant can assert
7 a double jeopardy defense even when they have pled guilty to the challenged offense
8 and failed to reserve the issue in the plea. See State v. Nunez, 2000-NMSC-013, ¶ 99,
9 129 N.M. 63, 2 P.3d 264.
10 {3} In this case, Defendant was indicted on four charges: larceny, conspiracy to
11 commit larceny, and two counts of attempted burglary of a vehicle. [RP 21]
12 Defendant pled guilty to the larceny charges in exchange for the dismissal of the
13 burglary charges. [RP 156] Prior to sentencing, Defendant filed a motion to dismiss
14 one of the offenses based on double jeopardy merger. [RP 169] Specifically,
15 Defendant argued that the conduct in this case is unitary. [RP 170-71]
16 {4} In double jeopardy double description cases, where we consider merger of
17 separate statutory offenses, we apply the two-part test set forth in State v. Swafford,
18 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223: (1) whether the conduct is

3
1 unitary and (2) if so, whether the Legislature intended to punish the offenses
2 separately. See State v. Silvas, 2015-NMSC-006, ¶ 9, 343 P.3d 616. “Only if the first
3 part of the test is answered in the affirmative, and the second in the negative, will the
4 double jeopardy clause prohibit multiple punishment in the same trial.” Id. (internal
5 quotation marks and citation omitted).
6 {5} The factual basis of the plea in this case indicated that Defendant committed
7 larceny as an accessory, and that she conspired with another individual to commit the
8 crime. [RP 175] Even if we agreed with Defendant that there was unitary conduct in
9 this case, our Supreme Court has stated that the legislative purpose factor would not
10 support Defendant’s double jeopardy claim. State v. Carrasco, 1997-NMSC-047,
11 ¶ 36, 124 N.M. 64, 946 P.2d 1075 (“The crimes of conspiracy and accessory to a
12 crime are separate offenses based on separate acts for which the Legislature has
13 intended multiple punishments.”).
14 Issue 3:
15 {6} Defendant continues to claim that she should have been allowed to withdraw
16 her excusal of a previously assigned judge. [MIO 5] Defendant has not indicated that
17 she filed her motion within the ten-day deadline governing excusals. Rule 5-106(D)
18 NMRA. In addition, any error with respect to excusal cannot be based on Defendant’s

4
1 own request. State v. Jim, 2014-NMCA-089, ¶ 22, 332 P.3d 870 (“It is well
2 established that a party may not invite error and then proceed to complain about it on
3 appeal.”).
4 {7} For the foregoing reasons, we affirm.
5 {8} IT IS SO ORDERED.
6
7 ______________________________
8 LINDA M. VANZI, Judge
9 WE CONCUR:
10 _______________________________
11 BRIANA H. ZAMORA, Judge
12 _______________________________
13 ZACHARY A. IVES, Judge