A06-446

State of Minnesota,

Respondent,

vs.

Jose Armando Padilla,

Appellant.

Filed June 19, 2007

Reversed and remanded

Willis, Judge

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 Attorney, 415 Southwest Sixth Street, Willmar, MN 56201 (for respondent)

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

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

WILLIS, Judge

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.

FACTS

On 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 July 8, 2005, Padilla again threatened Ybarra. In response, Ybarra moved his family from their mobile home to his father-in-law’s mobile home. At about midnight on July 22, 2005, Ybarra’s neighbor heard gunshots and saw four people get into a van in front of the unoccupied Ybarra mobile home and drive away. The neighbor called Ybarra’s wife at her father’s mobile home. Ybarra instructed the several people present in his father-in-law’s mobile home to move to the back rooms. He then saw a van stop in the middle of the street, told everyone to get down, and lay on top of the children. Mrs. Ybarra was on the phone with a 911 dispatcher when shots were fired. Mrs. Ybarra’s stepmother was shot in the left hand and abdomen.

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.” Minn. Stat. § 609.19, subd. 1(2) (2004). And the drive-by-shooting statute provides that a person who, “while in or having just exited from a motor vehicle, recklessly discharges a firearm at or toward another motor vehicle or a building is guilty of a felony.” Minn. Stat. § 609.66, subd. 1e(a) (2004). Finally, Minn. Stat. § 609.17, subd. 1 (2004), provides that “[w]hoever, with intent to commit a crime, does an act which is a substantial step toward, and more than preparation for, the commission of the crime is guilty of an attempt to commit that crime.”

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 (Minn. 1982). Thus, for example, one cannot commit attempted second-degree manslaughter because manslaughter involves killing another negligently or recklessly, not with specific intent. See id. at 735-36; see also State v. Schmitz, 559 N.W.2d 701, 704 (Minn. App. 1997) (reversing the defendant’s conviction of attempted first-degree domestic-abuse murder because one could not specifically intend to kill another by “being extremely indifferent to human life”), review denied (Minn. Apr. 15, 1997). Similarly, because a person cannot specifically intend to cause the death of another by recklessly discharging a firearm at or toward them, one cannot commit attempted second-degree murder by drive-by shooting. Padilla’s convictions of attempted second-degree murder by drive-by shooting must therefore be reversed.

Because we reverse Padilla’s convictions on this ground, we do not reach the arguments that Padilla makes in his pro se supplemental brief.

The 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 Minn. Stat. § 609.035, subd. 1 (2004) (prohibiting multiple punishment for offenses that arise out of the same behavioral incident).

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.