This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Jose Armando Padilla,
Filed June 19, 2007
Kandiyohi County District Court
File No. CR-05-1276
Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Boyd Beccue, Kandiyohi County
John M. Stuart, State Public
Defender, Rochelle R. Winn, Assistant Public Defender,
Considered and decided by Shumaker, Presiding Judge; Klaphake, Judge; and Willis, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his two convictions of attempted second-degree murder by drive-by shooting, arguing that there is no such crime because the recklessness described in the drive-by-shooting statute is a mental state inconsistent with the specific intent required for an attempt. We agree, and we reverse and remand.
July 6, 2005, during an argument at a party, appellant Jose Armando Padilla
threatened to kill Ruben Ybarra and Ybarra’s wife and child. On
Police responded and stopped a van matching the description given to the dispatcher. They arrested the driver and three passengers, including Padilla. In the van were a sawed-off shotgun, a rifle later discovered to be stolen, and ammunition.
Padilla was charged with two counts of attempted second-degree murder by drive-by shooting, first-degree assault, two counts of drive-by shooting, and receiving stolen property. A jury found Padilla guilty on all charges. The district court entered judgments of conviction on only the two counts of attempted second-degree murder by drive-by shooting and the count of receiving stolen property. Because the district court concluded that the first-degree assault and the two drive-by-shooting charges arose out of the same behavioral incident as the two charges of attempted second-degree murder by drive-by shooting, it “defer[red] any action” and declined to enter judgments of conviction on the assault and drive-by-shooting charges. It entered judgments of conviction on the two counts of attempted second-degree murder by drive-by shooting because they were the “most serious” charges and on the count of receiving stolen property because it did not arise from the same behavioral incident.
The district court sentenced Padilla to 213 months for the attempted murder at the unoccupied Ybarra mobile home, a consecutive 153-month sentence for the attempted murder at Ybarra’s father-in-law’s mobile home, and a concurrent sentence of 27 months for receiving stolen property. This appeal follows.
D E C I S I O N
Padilla argues, and the state agrees, that “there is no such crime as attempted second-degree murder by drive-by shooting because the recklessness element of the drive-by shooting statute does not furnish a mental state consistent with the specific intent required for an attempt.”
The parties’ position is supported
by the relevant statutory provisions and by caselaw. A person is guilty of second-degree murder by
drive-by shooting if he “causes the death of a human being while committing or
attempting to commit a drive-by shooting.”
To be guilty of an attempt to commit
a crime that is defined in terms of a particular result, a person must
specifically intend to accomplish that result.
State v. Zupetz, 322 N.W.2d
730, 735 (
Because we reverse Padilla’s convictions on this ground, we do not reach the arguments that Padilla makes in his pro se supplemental brief.
jury found Padilla guilty on all counts, but the district court did not enter
judgments on the two convictions of drive-by shooting or the conviction of
first-degree assault. It erroneously
applied a “same behavioral incident” analysis, which is properly applied to
prevent multiple sentences, not multiple convictions. See
We reverse Padilla’s two convictions of attempted second-degree murder by drive-by shooting and remand for vacation of those convictions, for entry of judgments on the two drive-by-shooting convictions and the conviction of first-degree assault, and for re-sentencing.
Reversed and remanded.