Certiorari Denied, No. 31,488, January 30, 2008
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:2009-NMCA-023
Filing Date: December 8, 2008
Docket No. 27,993
STATE OF NEW MEXICO,
Plaintiff-Appellant,
v.
JOSEPH VILLEGAS,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Denise Barela Shepherd, District Judge
Gary K. King, Attorney General
Santa Fe, NM
for Appellant
Hugh W. Dangler, Chief Public Defender
Nancy M. Hewitt, Appellate Defender
Santa Fe, NM
for Appellee
OPINION
ALARID, Judge.
{1} The State appeals, challenging the district court’s order denying the State’s request
for penalty enhancements for Defendant’s multiple, second, or subsequent armed robbery
convictions. The State argues that the district court erred by ruling that the State was barred
from enhancing the penalty for Defendant’s current armed robbery conviction with
Defendant’s prior armed robbery convictions because the issue was not presented to the jury
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pursuant to Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). We issued a notice of
summary disposition, proposing to agree with the State and reverse. Defendant has
responded to our notice with a memorandum in opposition. We are not persuaded that
Apprendi requires the State to prove the existence of prior convictions to the jury beyond a
reasonable doubt. Therefore, we reverse and remand to the district court for reconsideration
of the State’s proof of Defendant’s prior convictions for armed robbery.
DISCUSSION
{2} New Mexico’s armed robbery statute increases the class of felony and punishment
for repeat offenders, stating the following:
Robbery consists of the theft of anything of value from the person of
another or from the immediate control of another, by use or threatened use
of force or violence.
Whoever commits robbery is guilty of a third degree felony.
Whoever commits robbery while armed with a deadly weapon is, for
the first offense, guilty of a second degree felony and, for second and
subsequent offenses, is guilty of a first degree felony.
NMSA 1978, § 30-16-2 (1973). Although it appears that the definition of armed robbery
may include a second and subsequent offense, our case law has determined that proof of a
prior conviction is not an element of that crime. See, e.g., State v. Stout, 96 N.M. 29, 31-32,
627 P.2d 871, 873-74 (1981) (rejecting a double jeopardy challenge, permitting the State to
file a supplemental information alleging a prior armed robbery conviction after the defendant
was convicted, and holding that the procedure seems no different than a habitual criminal
proceeding under the habitual offender statute). Based on the reasoning in Stout, our case
law has treated the increased felony provision in the armed robbery statute as a sentence
enhancement, with the same purpose and effect of the habitual offender statute. See State
v. Keith, 102 N.M. 462, 464, 697 P.2d 145, 147 (Ct. App. 1985) (“Both have the same
purpose, the deterrence of repeat criminal conduct by holding an increased penalty in
terrorem over the offender for the purpose of effecting his reformation and preventing
subsequent offenses.”); see also State v. Bejar, 104 N.M. 138, 141, 717 P.2d 591, 594 (Ct.
App. 1985) (interpreting Stout to be describing “the sentencing provisions of the similar
armed robbery statute as an enhanced sentence provision”).
{3} Like the recidivist determinations required by the habitual offender statute, our notice
proposed to hold that the armed robbery provision’s enhanced penalty for second or
subsequent offenses is subject to the same burden of proof: a preponderance of the evidence
to be determined by the judge. See State v. Sandoval, 2004-NMCA-046, ¶ 3, 135 N.M. 420,
89 P.3d 92. In Sandoval, this Court rejected the defendant’s argument that, in order to
enhance his sentence based upon the habitual offender statute, Apprendi “requires that the
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facts of his convictions be found by a jury and proved beyond a reasonable doubt.”
Sandoval, 2004-NMCA-046, ¶ 3. We observed that federal courts have rejected a
defendant’s constitutional attack on the court’s, rather than the jury’s, authority to make
findings as to prior convictions that enhance a defendant’s sentence. Id. ¶¶ 5, 7. As our
notice pointed out, the Apprendi opinion itself carves out a prior conviction exception to
sentence-enhancing facts that must be decided by a jury. The United States Supreme Court
stated “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” Apprendi, 530 U.S. at 490 (emphasis added). “[R]ecidivism
. . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an
offender’s sentence.” Id. at 488 (quoting Almendarez-Torres v. United States, 523 U.S. 224,
243 (1998).
{4} Defendant argues that the Supreme Court’s opinion in Apprendi and its progeny
requires that all facts essential to the imposition of a greater level of punishment must be
presented to the jury and proved beyond a reasonable doubt, including the existence of prior
convictions. Defendant acknowledges that Apprendi recognized an exception for prior
convictions, but nevertheless argues that the opinion left the applicability of its holding to
prior convictions an open question and did not endorse such an exception.
{5} This Court has held otherwise. In State v. Bullcoming, 2008-NMCA-097, ¶¶ 25-27,
144 N.M. 546, 189 P.3d 679, cert. granted, 2008-NMCERT-007, 144 N.M. 594, 189 P.3d
1216, we rejected similar arguments made by a defendant who believed the jury should
determine the existence of prior DWI convictions beyond a reasonable doubt. We held that
the Apprendi decision “explicitly excluded ‘the fact of a prior conviction’ from the type of
facts that must be proved beyond a reasonable doubt.” Bullcoming, 2008-NMCA-097, ¶ 26.
We publish this opinion to make clear that Apprendi does not apply to the sentence
enhancements contained in the armed robbery statute for repeated violations, on the same
basis that it does not apply to the DWI sentence enhancements. See State v. Anaya, 1997-
NMSC-010, ¶¶ 20-21, 123 N.M. 14, 933 P.2d 223 (holding that the penalty structure of the
DWI statute, increasing the degree of offense and penalty for repeated offenses, is similar
to that of the armed robbery statute and should be treated similarly for purposes of enhancing
a sentence after a conviction). In light of our recent decision in Bullcoming, we decline
Defendant’s request that we revisit New Mexico sentence enhancement cases handed down
prior to the decision in Apprendi.
{6} Finally, Defendant emphasizes that he has raised a substantive challenge to the
State’s proof of his prior convictions, in addition to the procedural matter of the State’s
burden of proof. Defendant has not explained what substantive challenge he raised, and he
may raise it again on remand. See Bullcoming, 2008-NMCA-097, ¶ 22 (explaining that upon
the State’s prima facie showing of the validity of a defendant’s prior convictions, the
defendant may come forward with contrary evidence).
CONCLUSION
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{7} We hold that proof of prior armed robbery convictions should be presented to the
judge and established by a preponderance of the evidence. For the reasons stated above and
in our notice, we reverse and remand to the district court for reconsideration of the State’s
evidence of Defendant’s prior convictions.
{8} IT IS SO ORDERED.
A. JOSEPH ALARID, Judge
WE CONCUR:
MICHAEL D. BUSTAMANTE, Judge
RODERICK T. KENNEDY, Judge
Topic Index for State v. Villegas, No. 27,993
CL Criminal Law
CL-RB Robberty
CA Criminal Procedure
CA-ES Enhancement of Sentence
CA-PC Prior Convictions
CA-SN Sentencing
CT Constitutional Law
CT-TJ Trial by Jury
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