Gallegos v. State

We granted certiorari to review an unpublished opinion of the court of appeals affirming defendants convictions of third-degree larceny, NMSA 1978, Section 30-16-1 (Repl. Pamp. 1984), conspiracy to commit larceny, NMSA 1978, Section 30-28-2 (Repl. Pamp. 1984), and aggravated assault, NMSA 1978, Section 30-3-2 (Repl. Pamp. 1984). Arguing the value of the property stolen was $900, defendant tendered an instruction for fourth-degree larceny as a lesser included offense of third-degree larceny. The trial court refused the instruction. Citing State v. Isiah, 109 N.M. 21, 781 P.2d 293 (1989), and State v. Johnson, 103 N.M. 364, 707 P.2d 1174 (Ct. App.), cert. quashed, 103 N.M. 344, 707 P.2d 552 (1985), the court of appeals affirmed, stating that "The trial court did not err in refusing a lesser included offense instruction that was a misstatement of the applicable law." On different rationale, we affirm.