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Feb. 19, 2026 Get Citation Alerts Download PDF Add Note

State v. Urquidi-Martinez

New Mexico Supreme Court

• Citations: None known
• Docket Number: Unknown

• Precedential Status: Non-Precedential

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• Summaries (0)

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Combined Opinion

This decision of the Supreme Court of New Mexico was not selected for publication in
the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the
citation of unpublished decisions. Electronic decisions may contain computer-
generated errors or other deviations from the official version filed by the Supreme Court.

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Filing Date: February 19, 2026

No. S-1-SC-40730

STATE OF NEW MEXICO,

Plaintiff-Petitioner/Cross-Respondent,

v.

MARIO URQUIDI-MARTINEZ,

Defendant-Respondent/Cross-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI
Mary Marlowe Sommer, District Judge

Raúl Torrez, Attorney General
Teresa M. Ryan, Assistant Solicitor General
Santa Fe, NM

for Petitioner/Cross-Respondent

Bennett J. Baur, Chief Public Defender
Kimberly M. Chavez Cook, Appellate Defender
Joelle N. Gonzales, Assistant Appellate Defender
Santa Fe, NM

for Respondent/Cross-Petitioner

DECISION

ZAMORA, Justice.

{1} Defendant Mario Urquidi-Martinez was convicted on three counts of criminal
sexual penetration (CSP) contrary to NMSA 1978, Section 30-9-11 (2009). The Court of
Appeals vacated two of his convictions on double jeopardy grounds. See State v.
Urquidi-Martinez, 2025-NMCA-028, ¶¶ 1, 33, cert. granted (S-1-SC-40730, Feb. 11,
2025). Upon the grant of the State’s petition for certiorari, the State asks that this Court
reverse the Court of Appeals and reinstate the two vacated convictions.

{2} The State argues that when a defendant is convicted of committing CSP in more
than one way as listed in Section 30-9-11(A), it is not a violation of the defendant’s right
against double jeopardy to subject that defendant to more than one punishment. To that
end, the State urges this Court to adopt the following rule:

In a prolonged sexual assault, if the evidence shows that CSP is
committed [in more than one way as listed in Section 30-9-11(A)]—and
further shows that none of [the] acts was merely incidental to another—
then the perpetrator is subject to [multiple] punishments.

For the reasons set forth below, we decline to adopt the State’s proposed rule and hold
that the evidence supports two of Defendant’s CSP convictions under our existing
double jeopardy framework. Accordingly, we reverse the Court of Appeals as to one of
Defendant’s convictions for third-degree CSP. We otherwise affirm.

I. BACKGROUND

{3} We exercise our discretion to resolve Defendant’s appeal by nonprecedential
decision, and limit our recitation of the facts accordingly. See Rule 12-405(B) NMRA.

{4} Defendant and Victim were co-workers and went out for drinks one night after
work. After telling Defendant that she did not want to have sex, Victim blacked out in
Defendant’s car and only remembers parts of the rest of the evening. Victim remembers
coming to in the back seat of Defendant’s car with his face in her genital area, and
seeing her car in the rear-view mirror. She remembers waking up later, still in the back
seat of Defendant’s car, but this time parked in the Whole Foods parking lot. Finally, she
remembers Defendant in the back seat of the car with her, penetrating her with his
fingers. The State also presented evidence that Defendant caused Victim to engage in
intercourse, though there was no evidence as to where or when this occurred.

II. DISCUSSION

{5} On appeal to this Court the State contends that the Court of Appeals erred in
vacating two of Defendant’s three CSP convictions on double jeopardy grounds. “A
double jeopardy challenge is a constitutional question of law which we review de novo.”
State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747.

{6} Both the United States and New Mexico Constitutions provide that “No person
shall be . . . twice put in jeopardy” for the same offense. U.S. Const. amend. V; N.M.
Const. art. II, § 15. Because Defendant was convicted of three counts of CSP based on
a single course of conduct under Section 30-9-11, this presents a unit of prosecution
double jeopardy issue. See Swafford v. State, 1991-NMSC-043, ¶ 8, 112 N.M. 3, 810
P.2d 1223 (“In [unit of prosecution] cases the defendant has been charged with multiple
violations of a single statute based on a single course of conduct.”).
{7} In unit of prosecution cases, we engage in a two-step analysis. First, we “analyze
the statute at issue to determine whether the Legislature has defined the unit of
prosecution.” Swick, 2012-NMSC-018, ¶ 33. If the statute clearly defines the unit of
prosecution, the course of conduct is considered in terms of that unit of prosecution. Id.

{8} If the unit of prosecution is ambiguous, we turn to the second step of the analysis
in which we consider “whether a defendant’s acts are separated by sufficient indicia of
distinctness to justify multiple punishments” under the same statute. Id. (internal
quotation marks and citation omitted.) “To determine whether a defendant’s acts are
sufficiently distinct, we consider the Herron factors.” State v. Phillips, 2024-NMSC-009,
¶ 12, 548 P.3d 51 (“The six Herron factors serve as a general policy for examining
distinctness.” (brackets, internal quotation marks and citation omitted)); see Herron v.
State, 1991-NMSC-012, ¶ 15, 111 N.M. 357, 805 P.2d 624. Those factors are:

(1) temporal proximity of penetrations (the greater the interval between
acts the greater the likelihood of separate offenses); (2) location of the
victim during each penetration (movement or repositioning of the victim
between penetrations tends to show separate offenses); (3) existence of
an intervening event; (4) sequencing of penetrations (serial penetrations of
different orifices, as opposed to repeated penetrations of the same orifice,
tend to establish separate offenses); (5) defendant’s intent as evidenced
by his conduct and utterances; and (6) number of victims (although not
relevant here, multiple victims will likely give rise to multiple offenses).

Id.

A. Section 30-9-11 is Ambiguous as to the Unit of Prosecution

{9} This Court held in Herron that Section 30-9-11 is ambiguous as to the unit of
prosecution. Herron, 1991-NMSC-012, ¶ 8. While the State does not suggest that
Herron should be overturned, it puts forth arguments similar to those addressed in
Herron and argues that Section 30-9-11 is not ambiguous.

{10} The State claims that the different acts identified in the statute each constitute
their own unit of prosecution. Section 30-9-11(A) reads:

Criminal sexual penetration is the unlawful and intentional causing of a
person to engage in sexual intercourse, cunnilingus, fellatio or anal
intercourse or the causing of penetration, to any extent and with any
object, of the genital or anal openings of another, whether or not there is
any emission.

To support its argument that the unit of prosecution is not ambiguous, the State points
to the fact that the statute lists each act by name, and includes the connector “or” to
identify the ways in which CSP may be committed. Additionally, the State points to
inherent differences between two of the acts, namely sexual intercourse and
cunnilingus, how they are performed, and the harms they may inflict.
{11} The State’s analysis ignores and misinterprets Herron. In Herron this Court held
that the language of Section 30-9-11(A), which has not changed since Herron was
decided, “does not indicate unambiguously whether the [L]egislature intended . . . to
create a separate offense for each penetration occurring during a continuous sexual
assault.” Herron, 1991-NMSC-012, ¶ 8. This Court also considered the legislative and
statutory history and found no further guidance as to the intended unit of prosecution.
Id.

{12} The State also argues that the holding in Herron that each act of penetration
must be “in some sense distinct from the others,” along with the conclusion that the
penile-vaginal penetration, penile-anal penetration, and fellatio at issue in that case
were separate acts, indicate that the unit of prosecution may be based on the different
acts identified in the statute. Id. ¶¶ 15, 21. Further, the State argues that cunnilingus by
its nature is “in some sense distinct from” the other acts listed in the statute. Id. ¶ 15.
This is a misreading of Herron. The requirement that “each act of penetration is in some
sense distinct from the others” is followed immediately by the identification of the six
factors to be used “[i]n determining whether an act is distinct.” Id. One of the six factors
listed is “sequencing of penetrations (serial penetrations of different orifices, as opposed
to repeated penetration of the same orifice, tend to establish separate offenses).” Id.
Penile-vaginal penetration, penile-anal penetration, and fellatio are all penetrations of
different orifices. In Herron this Court highlighted that fact in concluding that they
amounted to distinct offenses in that case. Id. ¶ 21 (“The serial penetrations of these
different orifices and the protracted nature of the defendant’s conduct establish, as a
matter of law, three distinct offenses.”). Cunnilingus is not always a penetration of a
different orifice, and is not always a separate offense, unless it is shown to be distinct
according to the Herron factors. Courts are to use the Herron factors to determine
whether offenses are separate and distinct on a case by case basis.

{13} Herron remains good law, and despite the State’s argument otherwise, Section
30-9-11 is ambiguous as to the unit of prosecution.

B. We Continue to Use the Herron Factors to Evaluate the Distinctness of Acts
in Unit of Prosecution Double Jeopardy Cases

{14} Having concluded that the statute is ambiguous as to the unit of prosecution, we
move on to the second step of the double jeopardy analysis: determining whether
Defendant’s “acts are separated by sufficient indicia of distinctness.” Phillips, 2024-
NMSC-009, ¶ 12 (internal quotation marks and citation omitted).

{15} The State proposes that we adopt the following rule:

In a prolonged sexual assault, if the evidence shows that CSP is
committed by sexual intercourse, cunnilingus, and digital-vaginal
penetration—and further shows that none of these acts was merely
incidental to another—then the perpetrator is subject to three
punishments.
This rule goes against our established double jeopardy analysis.

{16} The State asks that we allow multiple punishments when it shows that none of
the acts are “merely incidental to another,” rather than the current requirement of
showing that the “acts are separated by sufficient indicia of distinctness.” See Phillips,
2024-NMSC-009, ¶ 12 (internal quotation marks and citation omitted) (“The second step
[in our unit of prosecution analysis] requires us to ‘determine whether a defendant’s acts
are separated by sufficient indicia of distinctness to justify multiple punishments under
the same statute.’” (quoting State v. Ramirez, 2018-NMSC-003, ¶ 56, 409 P.3d 902)).
The State provides no guidance as to how courts should determine whether an act is
“merely incidental to another.” There is no indication in the briefing as to what
“incidental” means, or where that language comes from. In the absence of such
guidance, the State asks us to adopt a rule that would replace an existing, workable,
framework, without showing that there is a problem with that framework.

{17} The State claims that its proposed rule fits within our existing framework and
therefore does not analyze the factors this Court considers in overturning precedent.
See Trujillo v. City of Albuquerque, 1998-NMSC-031, ¶ 34, 125 N.M. 721, 965 P.2d 305
(identifying the factors this Court considers before overturning precedent). However, by
adopting the State’s proposed rule, we would be replacing our long-standing framework
with a new test, effectively overruling the existing framework. As the parties have not
made a case for us to reconsider precedent by applying the factors relevant to a stare
decisis analysis, we decline to do so.

{18} Again, Herron remains good law. The State’s proposed rule does not fit within the
existing framework, and we decline to adopt a new rule without argument as to why the
existing framework should be reconsidered.

C. The Evidence Supports Two of Defendant’s Three CSP Convictions Under
Herron

{19} Defendant was convicted of three counts of CSP. The State presented evidence
that Defendant performed cunnilingus on Victim, digitally penetrated Victim’s vagina,
and caused her to engage in intercourse. Although there was no evidence as to when
the intercourse occurred, there was specificity as to the cunnilingus and the digital
penetration. It is undisputed that Defendant performed cunnilingus on Victim while they
were parked in front of Victim’s car. Then, Defendant digitally penetrated Victim
sometime after Defendant drove them to the Whole Foods parking lot.

{20} At trial Victim testified that she came to in the back seat of Defendant’s car
parked in the Whole Foods parking lot. When she came to, Defendant was speaking to
someone on the phone. Defendant hung up the phone and asked Victim if she had any
cash. Victim testified that she had cash in her pants but did not know where her pants
were. Then the following exchange occurred:

[Prosecutor:] Did you eventually find your pants?
[Victim:] Yes.

[Prosecutor:] And what happens next, Miss?

[Victim:] I get dressed because he tells me to get dressed. I’m
guessing that this person that he was talking to was coming.

[Prosecutor:] Now you said your pants were off, did you have any other
clothes off?

[Victim:] No.

[Prosecutor:] All right. What’s the next thing you remember?

[Victim:] I remember him being in the back seat with me, behind me,
and his arm around my neck.

[Prosecutor:] Was he choking you?

[Victim:] No.

[Prosecutor:] No. And what was he doing with his hands? His other hand,
once his arm is around your neck.

[Victim:] They were in my private parts.

The language used by the prosecutor, “What’s the next thing you remember?” and
Victim’s response indicates that Defendant was behind her, digitally penetrating her,
sometime after she found her pants in the Whole Foods parking lot.

{21} The sequence of events provided by this portion of the testimony is: Defendant
performed cunnilingus on Victim. She blacked out, and Defendant drove to Whole
Foods. Victim came to in the back seat of Defendant’s car in the Whole Foods parking
lot while Defendant was on the phone. Defendant got off the phone, asked Victim if she
had any cash, and told her to get dressed. Victim found her pants and got dressed.
Sometime later, though it is unclear when, Victim remembered Defendant behind her,
“fingering” her. At some point after Victim got dressed, Defendant drove them to the
Sage Inn, where Victim’s sister ultimately picked her up. Based on Victim’s testimony
the “fingering” occurred sometime between her getting dressed at Whole Foods, and
her sister picking her up at the Sage Inn.

{22} To separately punish each penetration in a continuous attack, or to determine
whether different acts of CSP amount to one continuous or multiple separate attacks,
Herron requires “proof that each act of penetration is in some sense distinct from the
others.” 1991-NMSC-012, ¶ 15. Here, while it is unclear exactly when the digital
penetration occurred, Victim’s testimony sufficiently distinguishes the digital penetration
from the cunnilingus. Three of the six Herron factors provide support for the distinction:
“(1) temporal proximity,” “(2) the location of the victim,” and “(3) existence of an
intervening event.” Id. Defendant performed cunnilingus on Victim while they were
parked in front of her car, he then drove them to the Whole Foods parking lot where he
took a phone call, and then to the Sage Inn. Sometime after driving to the Whole Foods
parking lot and taking a phone call, but before Victim’s sister picked her up at the Sage
Inn, Defendant digitally penetrated Victim. This is sufficient to distinguish the two
penetrations under Herron. Id. (“Except for penetrations of separate orifices with the
same object, none of these factors alone is a panacea, but collectively they will assist in
guiding future prosecutions.”).

III. CONCLUSION

{23} Defendant committed two distinct acts of CSP. Therefore, we reverse the Court
of Appeals as to one count of third-degree CSP, order that count be reinstated, and
remand to the district court for further proceedings consistent with this decision. We
otherwise affirm.

{24} IT IS SO ORDERED.

BRIANA H. ZAMORA, Justice

WE CONCUR:

DAVID K. THOMSON, Chief Justice

MICHAEL E. VIGIL, Justice

C. SHANNON BACON, Justice

JAROD K. HOFACKET, Judge
Sitting by designation