State v. Solano

Certiorari Denied, No. 31,841, July 30, 2009

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMCA-098

Filing Date: June 25, 2009

Docket No. 28,166

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

TIMOTHY SOLANO,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Michael E. Vigil, District Judge

Gary K. King, Attorney General
Santa Fe, NM
Steven S Suttle, Special Counsel
Albuquerque, NM

for Appellee

Hugh W. Dangler, Chief Public Defender
Mary A. Barket, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION

CASTILLO, Judge.

{1} Defendant challenges the district court’s designation of his conviction for third
degree vehicular homicide as a serious violent offense for the purposes of the Earned
Meritorious Deductions Act (the EMDA), NMSA 1978, § 33-2-34 (2004) (amended 2006).
We conclude that the district court’s designation was not an abuse of discretion because (1)

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the factual findings were legally sufficient to satisfy this Court’s requirements in State v.
Morales, 2002-NMCA-016, 131 N.M. 530, 39 P.3d 747 (filed 2001) and (2) substantial
evidence supported those findings. Accordingly, we affirm the district court.

I. BACKGROUND

{2} On July 27, 2005, Defendant struck and killed the victim with his vehicle.
Defendant’s blood alcohol level tested at .23 and .24. On August 12, 2005, Defendant was
charged in district court with one count of homicide by vehicle, contrary to NMSA 1978,
Section 66-8-101 (2004). Defendant waived indictment, pled guilty, and judgment was
entered on August 15, 2005. The district court committed Defendant to the corrections
department for sixty days for the purposes of diagnosis and evaluation.

{3} The sentencing hearing was held on November 23, 2005, during which the district
court heard from the victim’s family. The State recommended the maximum sentence. The
district court imposed the maximum sentence and designated the conviction to be a serious
violent offense, thus limiting the amount of good time credit that Defendant could earn. The
district court commended Defendant for taking responsibility for his actions and suspended
two years of the sentence based on this and Defendant’s remorse.

{4} Defendant appealed the serious violent offender designation to this Court. By
memorandum opinion, this Court remanded the matter back to the district court because the
findings supporting the serious violent offense designation were insufficient to satisfy the
established legal standard. State v. Solano, No. 26,403, slip op. at 3-4 (N.M. Ct. App. July
24, 2007). On remand, the district court held a second sentencing hearing. The court made
additional findings and imposed the same sentence, including the serious violent offense
designation. Defendant again appeals his sentence.

II. DISCUSSION

{5} Defendant makes two arguments in the current appeal. First, Defendant contends
that the district court’s findings on remand were again insufficient to support a serious
violent offense designation. Second, Defendant argues that the district court’s serious
violent offense designation was not supported by substantial evidence. In addition,
Defendant and the State dispute the standard for our review. We begin with the standard of
review and a brief overview of the EMDA, and then we turn to Defendant’s arguments.

A. Standard of Review

{6} Defendant argues that we apply both a de novo and a substantial evidence standard.
He states that we consider de novo whether the district court’s findings are in compliance
with the EMDA and then consider whether the designation was supported by substantial
evidence. The State contends that we conduct our review for abuse of discretion. Although
we agree with the State that the proper standard is abuse of discretion, we observe that

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Defendant’s approach effects the same result.

{7} Our Supreme Court has explained that the judiciary has no role in the administration
of the EMDA apart from exercising “discretion to determine whether the nature of the
offense and the resulting harm in a particular factual context justify categorizing the offense
as a serious violent offense.” State v. Rudolfo, 2008-NMSC-036, ¶ 37, 144 N.M. 305, 187
P.3d 170. Nevertheless, “[a]lthough the determination that a crime that falls within the
district court’s discretionary authority under the EMDA as a serious violent offense is a
discretionary act, the district court will abuse its discretion if it acts contrary to law.” State
v. Scurry, 2007-NMCA-064, ¶ 4, 141 N.M. 591, 158 P.3d 1034. In addition, a district court
abuses “its discretion when its decision is not supported by substantial evidence.” State v.
Montoya, 2005-NMCA-078, ¶ 8, 137 N.M. 713, 114 P.3d 393. Thus, we review the district
court’s findings and subsequent serious violent offender designation “for sufficient evidence,
for legal error, as well as for an untenable choice between or among alternatives.” State v.
Gonzales, 2005-NMSC-025, ¶ 25, 138 N.M. 271, 119 P.3d 151 (describing the scope of
appellate review under the abuse of discretion standard).

{8} We now turn to the relevant language of the EMDA and its accompanying case law.

B. The EMDA

{9} Under Section 33-2-34, a prisoner may earn meritorious deductions under certain
circumstances. If the offense is a nonviolent offense, the defendant may earn up to thirty
days per month of time served. Section 33-2-34(A)(2). If the offense of conviction is
designated as a serious violent offense, however, the sentence reduction is limited to no more
than four days per month of time served. Section 33-2-34(A)(1). A “nonviolent offense”
is defined as “any offense other than a serious violent offense.” Section 33-2-34(L)(3). A
“serious violent offense” is defined in two ways. Section 33-2-34(L)(4)(a) through (n)
enumerates specific crimes that are per se serious violent offenses—crimes that are
designated serious violent offenses regardless of the circumstances. Section 33-2-
34(L)(4)(o) lists several other specific crimes that may be considered serious violent offenses
“when the nature of the offense and the resulting harm are such that the court judges the
crime to be a serious violent offense for the purpose of this section.” Included among these
discretionary serious violent offenses is Defendant’s crime—third degree homicide by
vehicle, as prohibited by Section 66-8-101. See § 33-2-34(L)(4)(o)(14).

{10} This Court has previously addressed the differences between the per se serious
violent offenses under Section 33-2-34(L)(4)(a) through (n) and the discretionary
designations under Section 33-2-34(L)(4)(o). In order to designate the conduct of a
particular defendant as a serious violent offense under the discretionary category, the district
court must determine that the crime was “committed in a physically violent manner either
with an intent to do serious harm or with recklessness in the face of knowledge that one’s
acts are reasonably likely to result in serious harm.” Morales, 2002-NMCA-016, ¶ 16. This
factual basis for designation of a serious violent offense must be reflected in findings made
by the district court. Id. ¶¶ 17-18. This Court has since clarified the requirement for such
findings and has explained that a district court “need not express its findings in the Morales

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language as long as the findings are consistent with the Morales standard.” Montoya, 2005-
NMCA-078, ¶ 8. Turning to the facts of the present case, we consider the sufficiency of the
district court’s findings.

C. The District Court’s Findings

{11} The district court made two findings relevant to the Morales criteria:

This sentence finds that the offense was committed in a physically violent
manner with recklessness in the face of knowledge that his acts were
reasonably likely to result in serious harm.

Th[is c]ourt [has] consider[ed] [Defendant’s] prior history of alcohol
abuse along with prior criminal history involving alcohol related offenses not
used to enhance his sentence. The [c]ourt makes the specific finding [that
Defendant’s] actions amount to an offense committed in a physical violent
manner in that he crossed the center and struck the victim, who was on a
bicycle and propelled her through the air and into the bed of his truck.

Defendant first argues that the district court’s factual findings in the post-remand order do
not indicate “why this particular instance of vehicular homicide was, based on the
uncontested facts, more egregious than any other vehicular homicide case.” As we have
stated, the serious violent offense inquiry rests on two factors: (1) the physically violent
manner in which the crime was committed and (2) the level of intent demonstrated by the
defendant’s actions. See Morales, 2002-NMCA-016, ¶ 16. Defendant cites no authority to
suggest that the district court is further required to find that the particular offense was “more
egregious” than other similarly categorized offenses, and we therefore assume that no such
authority exists. See State v. Vaughn, 2005-NMCA-076, ¶ 42, 137 N.M. 674, 114 P.3d 354.

{12} Defendant next argues that the facts recited by the district court do not establish the
Morales criteria. Specifically, Defendant contends that the district court’s reliance on his
history of alcoholism and previous alcohol-related convictions do not support an inference
of the requisite intent and that the district court’s recitation of the facts surrounding the
manner of the victim’s death do not establish that this vehicular homicide was committed
in a physically violent manner. We disagree.

1. History of Alcohol Abuse

{13} Defendant provides several bases for the argument that his history does not
demonstrate the requisite intent. He first argues that to rely on past convictions to support
a serious violent offense designation is inappropriate because he was already punished for
those offenses. He then asserts that the Legislature was undoubtedly aware that it is not
uncommon for perpetrators of vehicular homicide to have prior convictions and had it
intended for the district court to consider past offenses, it would have included vehicular
homicide as a per se serious violent offense. Next, Defendant points to Section 66-8-101(D)
and argues that because the Legislature does not permit a sentence enhancement to be based

4
on a vehicular homicide conviction that is more than ten years old, the Legislature also did
not intend for convictions that are greater than ten years old “to form the basis for the
imposition of further punishment.” Finally, Defendant relies on a United States Department
of Transportation report—referred to for the first time on appeal—to contend that “it is quite
unlikely that a given drunk driving episode will result in great bodily harm.” During this
appeal, the State filed a motion to strike references to the study from Defendant’s brief in
chief because the report was not offered as evidence during the district court proceedings or
made a part of the record. Although we denied the State’s motion to strike the references
to the report, we did so with the proviso that we would not consider the report on appeal.
Because Defendant’s argument is otherwise unsupported, we do not address it.

{14} We initially observe that Defendant’s first three arguments fail to explain why a
defendant’s extensive history of abusing alcohol would not permit an inference of
knowledge or recklessness. The first and third arguments relating to past convictions and
additional punishment have been addressed by this Court and our Supreme Court in the past.
“[T]he EMDA does not change the maximum penalty for a defendant’s crime or impose an
additional penalty. Rather, the statute affects the amount of time by which [a] defendant
through his own good conduct could decrease his sentence.” State v. Andazola, 2003-
NMCA-146, ¶ 21, 134 N.M. 710, 82 P.3d 77 (internal quotation marks and citation omitted);
see also State v. Schoonmaker, 2008-NMSC-010, ¶ 53, 143 N.M. 373, 176 P.3d 1105
(“Limiting a defendant’s ability to earn meritorious deductions does not result in punishment
beyond that which has been statutorily established for the offense.”). Thus, considering a
defendant’s history—criminal or otherwise—does not lead to impermissible further
punishment.

{15} Defendant’s second argument appears to be that because so many vehicular
homicides are caused by repeat offenders and vehicular homicides are not classified as per
se offenses, the Legislature intended for the courts to ignore evidence of past transgressions.
Defendant maintains that any other interpretation of the Legislature’s intent transforms all
vehicular homicides into serious violent offenses. This Court explained in Morales,
however, that discretionary serious violent offenses “are characterized by multiple ways of
committing the offense, some intentional and some not, and some utilizing physical force
and some not.” 2002-NMCA-016, ¶ 15. Thus, some incidents of vehicular homicide qualify
as serious violent offenses and some do not. It is only the evidence of a particular incident
that qualifies a defendant’s crime as a discretionary serious violent offense. We conclude
that the particular circumstances of Defendant’s history with alcohol and the law was
relevant to the Morales inquiry into intent, and we are satisfied that this conclusion does not
generally elevate vehicular homicide to a per se violent offense. See State v. Worrick, 2006-
NMCA-035, ¶ 9, 139 N.M. 247, 131 P.3d 97 (considering the defendant’s extremely high
blood alcohol content at the time of the accident as well as that the defendant “habitually
drank to the point of intoxication two times a week”); see also Montoya, 2005-NMCA-078,
¶¶ 9-10 (“The knowledge aspect is shown by the long, prior history of a drinking problem.”);
State v. Wildgrube, 2003-NMCA-108, ¶ 37, 134 N.M. 262, 75 P.3d 862 (evaluating, for the
purposes of the EMDA, the defendant’s previous four arrests for alcohol-related offenses and
two convictions for driving while intoxicated).

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2. Physically Violent Manner

{16} Defendant next argues that the “fact that [Defendant] crossed the center and hit a
bicyclist, while ostensibly going to the manner in which the crime was committed, does not
sufficiently establish that [Defendant’s] act was committed in a particularly violent manner.”
Defendant also contends that nearly all vehicular homicides cause a particularly violent
death for the victim and that the district court impermissibly relied on an element of
vehicular homicide in order to designate the crime a serious violent offense.

{17} This Court has not previously been required to define “physically violent manner.”
The Morales Court, however, acknowledged that even though the record in that case was
sparse, there might have been a factual basis for the findings necessary to establish a serious
violent offense. 2002-NMCA-016, ¶ 18. Although Morales ultimately remanded the issue
to the district court to make the findings on the record, this Court observed that the defendant
“used physical force with his daughter in a manner that indicated an intent to do so” and that
the victim suffered some harm. Id. Thus, the term “physically violent manner” includes the
intentional use of force that results in some harm. In the present case, the district court’s
findings—findings that were missing in Morales—directly address the use of physical force,
intent, and harm to the victim. See id. ¶ 16 (“[T]he [L]egislature wanted to reserve the
serious violent offenses for those found by the trial judge to be committed in a physically
violent manner either with an intent to do serious harm or with recklessness in the face of
knowledge that one’s acts are reasonably likely to result in serious harm. Of course, the
statutory factor of actual resulting harm may be considered in determining a defendant’s
intent.” (internal quotation marks omitted)). Defendant recklessly veered across the center
line and struck the victim with sufficient force to propel her into the bed of Defendant’s
truck. These facts directly relate to whether force was used in a violent manner. See id. ¶
18.

{18} Defendant additionally insists that the district court is required to consider the
physically violent manner in which the offense was committed and not the physically violent
death of the victim. In State v. Loretto, 2006-NMCA-142, 140 N.M. 705, 147 P.3d 1138,
this Court explained that “[s]omething more than the mere elements in the definition of [the
crime] need to be shown to designate the crime as a serious violent offense.” Id. ¶ 18. One
of the elements of vehicular homicide is that the defendant commit homicide by using a
motor vehicle. See § 66-8-101(A). The facts set out in the preceding paragraphs
demonstrate that the district court considered more than the mere use of a vehicle to commit
the homicide: Defendant recklessly operated the truck at a high rate of speed that caused the
victim, once struck, to be “propelled . . . through the air and into the bed of Defendant’s
truck.” We are thus satisfied that the findings sufficiently detail the violent manner in which
the crime was committed and not merely the elements of the crime or the violent nature of
the victim’s death.

{19} We now turn to consider whether these findings are supported by sufficient evidence.

D. Sufficiency of the Evidence

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1. Begay v. United States

{20} The focus of Defendant’s sufficiency argument is that this Court should reconsider
the application of a serious violent offense designation to the crime of vehicular homicide
in light of the recent holdings and analysis of Begay v. United States, ___ U.S. ___, 128 S.
Ct. 1581 (2008). In Begay, the Supreme Court of the United States was concerned with
whether the crime of driving under the influence of alcohol should be considered a violent
felony as described by 18 U.S.C. § 924(e)(1) (2000) (amended 2005 and 2006) of the Armed
Career Criminal Act (ACCA). Begay, ___ U.S. at ___, 128 S. Ct. at 1583. 18 U.S.C. §
924(e)(1) provides that

[i]n the case of a person who violates [18 U.S.C. §] 922(g) [(2002)] of this
title and has three previous convictions by any court referred to in [18 U.S.C.
§] 922(g)(1) of this title for a violent felony or a serious drug offense, or
both, committed on occasions different from one another, such person shall
be fined under this title and imprisoned not less than fifteen years, and,
notwithstanding any other provision of law, the court shall not suspend the
sentence of, or grant a probationary sentence to, such person[.]

The district court in Begay determined that the defendant’s three prior convictions for
driving under the influence of alcohol constituted violent felonies and imposed the resulting
mandatory fifteen-year prison term. ___ U.S. at ___, 128 S. Ct. at 1584. The Supreme Court
of the United States disagreed and held that Congress did not intend “to bring within the
statute’s scope these kinds of crimes, far removed as they are from the deliberate kind of
behavior associated with violent criminal use of firearms.” Id. at 1587. Defendant argues
that the Begay construction of the term “violent felony” leads to a conclusion that the EMDA
has been improperly construed by New Mexico courts to include overly general and common
occurrences of vehicular homicide. We are unpersuaded that Begay requires us to reconsider
our previous constructions of the EMDA.

{21} We first observe that under the ACCA, driving under the influence is not an offense
specifically listed as a violent felony. The ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), provides a
list of examples of crimes that are violent felonies such as burglary, arson, extortion, or
crimes involving explosives. This list is clearly not exhaustive, see 18 U.S.C. § 924(e)(2)(B)
and, therefore, the Begay Court was required to analogize the crime of driving under the
influence to the other exemplar crimes that are listed in the ACCA. ___ U.S. at ___, 128 S.
Ct. at 1584-85 (“In our view, the provision’s listed examples—burglary, arson, extortion,
or crimes involving the use of explosives—illustrate the kinds of crimes that fall within the
statute’s scope. Their presence indicates that the statute covers only similar crimes, rather
than every crime that presents a serious potential risk of physical injury to another.” (internal
quotation marks and citation omitted)). Such analogy is not required in the present case
because third degree vehicular homicide is an offense listed in the EMDA as a discretionary
serious violent offense. See § 33-2-34(L)(4)(o)(14). There is thus no need to compare
Defendant’s crime with the other listed crimes because the Legislature clearly intended to
include vehicular homicide within the scope of the EMDA when the district court “judges
the crime to be a serious violent offense.” Id. {22} The Begay Court was also concerned

7
that statutes prohibiting driving under the influence “typically do not insist on purposeful,
violent, and aggressive conduct; rather, they are, or are most nearly comparable to, crimes
that impose strict liability, criminalizing conduct in respect to which the offender need not
have had any criminal intent at all.” ___ U.S. at ___, 128 S. Ct at 1586-87. The examples
of violent felonies in the ACCA, however, “all typically involve purposeful, violent, and
aggressive conduct.” Id. at ___, 128 S. Ct. at 1586 (internal quotation marks and citation
omitted). Defendant makes a similar point that “[b]y including third[ ]degree homicide in
a statute where the intent requirement is otherwise specific, the [L]egislature evidently
intended for there to be a somewhat heightened intent requirement for a particular vehicular
homicide case to constitute a serious violent offense.” The concerns of the Begay Court and
Defendant were addressed by this Court’s holding in Morales.

{23} In Morales, this Court compared the list of per se offenses from Section 33-2-
34(L)(4)(a) through (n) with the discretionary offenses described in Section 33-2-
34(L)(4)(o). We observed that the per se offenses “all involve an intent to do the harm
prohibited by the statute, or a specific intent to kill or injure, or knowledge that one’s acts
are reasonably likely to cause serious harm.” Morales, 2002-NMCA-016, ¶ 14. The
discretionary offenses, however, “are characterized by multiple ways of committing the
offense, some intentional and some not, and some utilizing physical force and some not.”
Id. ¶ 15. We concluded that

the [L]egislature wanted to reserve the serious violent offenses for those
found by the trial judge to be committed in a physically violent manner either
with an intent to do serious harm or with recklessness in the face of
knowledge that one’s acts are reasonably likely to result in serious harm.

Id. ¶ 16. Thus, in order for one of the discretionary crimes to be designated as a serious
violent offense, the district court must find that it was committed with “an intent to do
serious harm” or “with recklessness.” Id.

{24} Defendant argues that recklessness is an insufficient level of intent to support a
serious violent offense designation. For support, Defendant again cites Begay, in which the
Supreme Court of the United States rejected the application of a recklessness standard
because unlike the other crimes listed in the ACCA, the act of driving drunk “need not be
purposeful or deliberate.” ___ U.S. at ___, 128 S. Ct. at 1587. Taking our cue from the
Begay Court and comparing vehicular homicide to the other enumerated discretionary
serious violent offenses, we conclude that recklessness is an acceptable level of intent. Other
discretionary crimes listed under Section 33-2-34(L)(4)(o) incorporate the recklessness
standard or in some circumstances, the lesser negligence standard. See State v. Yarborough,
120 N.M. 669, 674, 905 P.2d 209, 214 (Ct. App. 1995) (requiring conduct that is “reckless,
wanton, or willful” in order to establish involuntary manslaughter (internal quotation marks
and citation omitted)), aff’d, 1996-NMSC-068, 122 N.M. 596, 930 P.2d 131; see also NMSA
1978, § 30-6-1(D), (E) (2005) (amended 2009) (identifying the intent for child abuse as
“knowingly, intentionally or negligently, and without justifiable cause). Indeed, recklessness
is even sufficient for at least one of the per se offenses under Section 33-2-34(L)(4)(a)
through (n). See NMSA 1978, § 30-3-8(B) (1993) (“Shooting at or from a motor vehicle

8
consists of willfully discharging a firearm at or from a motor vehicle with reckless disregard
for the person of another.”).

{25} Begay also focused on the unique purpose of the ACCA: “the [ACCA] focuses upon
the special danger created when a particular type of offender—a violent criminal or drug
trafficker—possesses a gun.” ___ U.S. at ___, 128 S. Ct. at 1587. Because the ACCA
focuses on preventing certain types of offenders from owning guns, the Begay Court had “no
reason to believe that Congress intended to bring within the statute’s scope these kinds of
crimes, far removed as they are from the deliberate kind of behavior associated with violent
criminal use of firearms.” Id. The purpose of the EMDA is entirely different: “In the
EMDA, the Legislature has established a detailed set of guidelines for both the courts and
the corrections department to administer in the ultimate determination of a prisoner’s
eligibility for good time reductions from his period of confinement.” Rudolfo, 2008-NMSC-
036, ¶ 35. The purpose of the EMDA is not to prevent certain types of offenders from
obtaining weapons. Instead, the EMDA is designed to reduce the period of confinement by
a designated number of days each month of time served for the perpetrators of certain
offenses that have been specifically delineated by the Legislature. We therefore see every
reason to believe that the Legislature intended to bring certain instances of vehicular
homicide within the scope of the EMDA and are not persuaded that Begay requires a
different result.

2. Evidence at Sentencing

{26} In addition to relying on Begay, Defendant also argues that the evidence was simply
insufficient to establish that his conduct constituted a serious violent offense. This argument
is distinct from Defendant’s earlier argument regarding the adequacy of the district court’s
findings. See Scurry, 2007-NMCA-064, ¶ 4 (declining to address the sufficiency of the
evidence after concluding that the findings were insufficient as a matter of law). Having
determined that the district court’s findings are legally adequate, we review the record to
ascertain whether the facts support the findings and hence, the serious violent offense
designation.

{27} As we have stated, in order to designate a particular crime as a serious violent
offense, the district court must find that it was “committed in a physically violent manner
either with an intent to do serious harm or with recklessness in the face of knowledge that
one’s acts are reasonably likely to result in serious harm.” Morales, 2002-NMCA-016, ¶ 16.
Defendant argues that in addition to the Morales criteria, the State must also demonstrate
that this particular vehicular homicide differs from other homicides caused by intoxicated
or otherwise impaired drivers. We are satisfied that the Morales criteria adequately separate
the average vehicular homicide from a properly designated serious violent offense and, thus,
we decline to consider whether Defendant’s acts were “notably worse than any other such
case.”

{28} Morales explained how vehicular homicide can be committed with and without the
requisite intent:

9
 [H]omicide by vehicle always results in death, but it can be committed by
one who had only one drink but is thereby less able to drive safely, or it can
be committed by one who intentionally and habitually gets drunk to the point
of being several times over the legal limit, knowing that he or she must drive
in a crowded area and is in no shape to do so, but does so nevertheless.

Id. ¶ 15. In the present case, the district court based the serious violent offense designation
in part on Defendant’s history of alcoholism and alcohol-related offenses. This history is
supported by the facts revealed at the sentencing hearings. See Montoya, 2005-NMCA-078,
¶¶ 8-9 (reviewing the facts and circumstances before the district court to determine if
substantial evidence supported the serious violent offense designation).

{29} Apart from the two convictions for driving under the influence that were used to
enhance the sentence, Defendant also had earlier alcohol-related accidents and encounters
with the police, ranging back at least as far as 1993. One of these accidents resulted in
bodily injury to a victim. The district court additionally noted that Defendant had many
opportunities for treatment but failed to embrace them. After remand by this Court, the
district court explained that the serious violent offense designation was based on Defendant’s
history with alcohol, his refusal to address the problem, and his insistence on continuing to
drive while drunk. The district court further referred to evidence that other people had tried
to prevent Defendant from driving on the day of the accident. To summarize, Defendant had
a long history of alcohol abuse, previous experience with injuring a person because of
alcohol impairment, and he disregarded advice to refrain from driving while under the
influence. We are satisfied that this evidence is sufficient to establish that Defendant acted
with recklessness in the face of knowledge that his acts were reasonably likely to result in
serious harm. See Wildgrube, 2003-NMCA-108, ¶ 38; Morales, 2002-NMCA-016, ¶¶ 15,
16.

{30} We further hold that the evidence supported the district court’s finding that
Defendant used physical force and that actual harm resulted. See Morales, 2002-NMCA-
016, ¶ 18. Although we acknowledge that any vehicular homicide employs some level of
physical force, the district court made findings that are specific to the force used in and the
harm caused by this particular vehicular homicide: Defendant drove recklessly while
intoxicated, crossed the center line, and struck the victim on a bicycle at such a rate of speed
that she was thrown over the truck and into Defendant’s truck bed. In addition, the district
court considered the “resulting harm” by accepting the statements of the victim’s family
regarding the emotional impact of the victim’s death. See id. ¶ 13 (“[R]esulting harm must
be considered along with the nature of the offense to determine if a listed offense
qualifies.”). The district court did not abuse its discretion by relying on these facts to
establish that the Defendant acted in a physically violent manner. See Wildgrube, 2003-
NMCA-108, ¶ 38 (concluding that the evidence supported a serious violent offense
designation when the defendant recklessly drove while intoxicated, looked away from the
road, and hit and killed a pedestrian).

{31} Review of the record demonstrates that the facts supported the district court’s
findings and the designation of Defendant’s conduct as a serious violent offense.

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III. CONCLUSION

{32} We affirm the district court.

{33} IT IS SO ORDERED.

____________________________________
CELIA FOY CASTILLO, Judge
WE CONCUR:

____________________________________
JONATHAN B. SUTIN, Judge

____________________________________
LINDA M. VANZI, Judge

Topic Index for State v. Solano, No. 28,166

AE APPEAL AND ERROR
AE-SR Standard of Review

CL CRIMINAL LAW
CL-DG Driving While Intoxicated
CL-VH Vehicular Homicide

CA CRIMINAL PROCEDURE
CA-ES Enhancement of Sentence
CA-GT Good Time
CA-JS Judgment and Sentence
CA-SE Substantial or Sufficient Evidence

EV EVIDENCE
EV-SS Substantial or Sufficient Evidence

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