State v. LORENZO P.

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 13:04:18 2011.04.27
Certiorari Denied, January 10, 2011, No. 32,745

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMCA-013

Filing Date: November 9, 2010

Docket No. 29,292

STATE OF NEW MEXICO,

Plaintiff-Appellant,

v.

LORENZO P.,

Child-Appellee.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Lisa Schultz, District Judge

Gary K. King, Attorney General
Santa Fe, NM

Jacqueline R. Medina, Assistant Attorney General
Albuquerque, NM

for Appellant

Hugh W. Dangler, Chief Public Defender
Nina Lalevic, Assistant Appellate Defender
Santa Fe, NM

for Appellee

OPINION

BUSTAMANTE, Judge.

{1} The State appeals from a district court order dismissing a delinquency petition
against Child. At issue is (1) whether the district court erred by not applying the standard
set forth in Gonzales v. State, 111 N.M. 363, 805 P.2d 630 (1991); and (2) whether the

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Children’s Code, 1978 NMSA, §§ 32A-1-1 to 24-5 (1993, as amended through 2009),
provides a basis for dismissal.1 Because we hold that Gonzales applies equally to juveniles
and to adults, and that the Children’s Code does not authorize the dismissal, we reverse.

I. BACKGROUND

A. The Investigation

{2} On August 12, 2007, police responded to a graffiti complaint at a grocery store in
Anthony, New Mexico. By October 11, police suspected that Child was responsible for the
graffiti. However, the investigator did not prepare a referral until February 28, 2008. The
Sheriff’s department received the referral on March 5, 2008. It mailed the referral to the
juvenile probation office (JPO) the following day. The JPO received the referral on March
25. A preliminary inquiry was held on April 3, 2008, and the determination was filed on
April 17. A petition against Child for criminal damage to property over $1000 was filed on
May 23, 2008, approximately nine months after the incident and seven months after police
initially suspected Child.

B. The Motion Hearings

{3} Child filed a motion to dismiss. In it, he contended that the delay between the time
of the incident and the filing of the petition violated his rights to due process as guaranteed
under the Fifth and Fourteenth Amendments to the United States Constitution and Article
II, Section 18 of the New Mexico Constitution. He also contended that the delay exceeded
the procedural limits set forth in the Children’s Code and children’s court rules. During the
hearing, Child suggested that prejudice existed because, due to the delay, he “might be more
inclined to plea to get it over with,” “his memory might not be that sharp,” and “he might
not think he has a case anymore.” He also argued that there was prejudice because
rehabilitative services would be unavailable once he turned eighteen.

{4} In response, the State asserted that it had complied with all time limits. The State
argued that the petition had been filed within the five-year statute of limitations and that all
procedural deadlines in the Children’s Code had been satisfied. According to the State,
Gonzales governed the question of whether the delay violated Child’s due process rights.
Because Child had presented no evidence of prejudice or intent to delay, the State argued
that the Gonzales standard had not been met and that the motion should be denied.

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Article 2 of the Children’s Code is known as the Delinquency Act. Although much
of this Opinion deals with the Delinquency Act, we use the short form “Children’s Code”
to refer to all statutes in Chapter 32A.

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{5} The district court orally granted the motion to dismiss with prejudice. The dismissal
was based on the court’s finding that seven months was an unjustified delay contrary to the
purposes and legislative intent behind the Children’s Code. Although the court held that
Gonzales did not apply to juveniles, it found that, since Child would soon be eighteen, he
would be prejudiced by not having access to rehabilitative services.

{6} Subsequently, the State moved for reconsideration of the dismissal. A hearing was
held at which the State presented several witnesses to explain the delay between the incident
and the referral to the JPO. After hearing arguments, the court denied the motion. A written
order was later entered confirming the oral order from the original hearing.

II. DISCUSSION

{7} On appeal, the State contends that the district court erred in dismissing the
delinquency petition against Child because all statutory time limits were satisfied and Child
was afforded due process under Gonzales. Child argues that the district court’s ruling was
correct and that Gonzales does not apply to juveniles. We agree with the State. Although
the Children’s Code does treat juveniles differently than adults, in this circumstance the Due
Process Clause does not. Furthermore, we find no support for dismissal in the Children’s
Code.

A. The Delay Between the Incident and the Filing of the Petition Did Not Violate
Due Process Under the Fifth and Fourteenth Amendments

{8} We first examine whether the preaccusation delay violated Child’s due process
rights. Dismissal of charges on due process grounds is reviewed de novo, deferring to the
district court’s findings of fact when they are supported by substantial evidence. State v.
Hill, 2005-NMCA-143, ¶ 16, 138 N.M. 693, 125 P.3d 1175.

{9} As a preliminary matter, we note Child argues that Article II, Section 18 of the New
Mexico Constitution provides him greater due process protection. Under our interstitial
approach, the New Mexico Constitution may provide greater protection than its federal
counterparts. State v. Gomez, 1997-NMSC-006, ¶ 20, 122 N.M. 777, 932 P.2d 1. We “may
diverge from federal precedent for three reasons: a flawed federal analysis, structural
differences between state and federal government, or distinctive state characteristics.” Id.
¶ 19. The State argues that this issue was not preserved. Even assuming that the issue was
preserved, Child presents no argument on appeal directed to the three permissible reasons
to diverge. Accordingly, we limit our discussion to federal constitutional analysis. See
Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076
(“We will not review unclear arguments, or guess at what [the] arguments might be.”).

1. Preaccusation Delays Are Subject to the Same Due Process Standards for
Juveniles as for Adults

{10} The due process standard for preaccusation delay is set out in Gonzales. See 111
N.M. at 365, 805 P.2d at 632. At issue in that case was whether an eighteen-month delay

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between arrest and indictment violated due process guarantees under the Fourteenth and
Fifth Amendments to the United States Constitution. Id. at 364, 805 P.2d at 631. The Court
held that it did not. Noting that “the due process clause of the fifth amendment provides
additional, albeit limited, protection against improper preaccusation delay,” the Court
adopted a rule for determining when due process rights were violated. Id. Child argues that
this rule should not apply to juveniles.

{11} The standard for juveniles is no lower than for adults. In the 1960s, the Supreme
Court invalidated the idea, prevalent at the time, that juveniles were not entitled to the
constitutional protections afforded adults. See In re Gault, 387 U.S. 1, 14 (1967). It
reasoned that “‘[n]either man nor child can be allowed to stand condemned by methods
which flout constitutional requirements of due process of law,’” id. at 13 (quoting Kent v.
United States, 383 U.S. 541, 601 (1966)), and that “neither the Fourteenth Amendment nor
the Bill of Rights is for adults alone.” Id. The New Mexico Supreme Court discerned in both
Kent and Gault “a great concern that juveniles not be denied any of the protections
guaranteed to adults by the constitution.” Neller v. State, 79 N.M. 528, 530, 445 P.2d 949,
951 (1968). These cases indicate that juveniles enjoy, at the very least, the same protections
afforded to adults under the Federal Constitution. See State v. Rudy B., 2010-NMSC-045,
¶¶ 55, 59, ___ N.M. ___, ___ P.3d ___ (No. 31,909, Oct. 19, 2010) (“To be sure, the
Supreme Court has made clear that juvenile proceedings must meet minimum constitutional
requirements[,]” but holding that a juvenile defendant is not entitled under the Sixth
Amendment to a jury trial on post-trial amenability determinations that may result in an
increased sentence).

{12} Child has not cited to any case indicating that in this context juveniles have been
accorded or are due greater constitutional protection than adults. At least one circuit court
has stated that in the context of preaccusation delay “[t]he due process test applies to
juvenile cases.” United States v. Doe, 149 F.3d 945, 948-49 (9th Cir. 1998) (upholding a
four-year delay before indictment). This Court is not aware of any case adopting a different
due process standard for juveniles. We therefore conclude that the district court erred in
refusing to apply the due process standard set forth in Gonzales.

2. The Child Did Not Meet His Burden of Production Under Gonzales

{13} Having determined that the standard set out in Gonzales applies to juveniles as well
as adults, we next examine the application of that standard. To prevail on a claim that
preaccusation delay violated his rights to due process, a defendant must show both
“prejudice and an intentional delay by the state to gain a tactical advantage.” Gonzales, 111
N.M. at 365, 805 P.2d at 632. Prejudice must be established by more than mere conjecture,
and “is dependent upon the adverse effect delay has had on the merits of the defendant’s
case.” Id.

{14} The district court explicitly disclaimed prejudice as a basis of its ruling. However,
the court discussed the issue of prejudice several times, concluding that Child was prejudiced
by the delay because he would lose access to rehabilitative services upon turning eighteen.
To avoid further delay, and because the record on this issue was fully developed, we now

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hold that Child’s due process rights were not violated by the delay in referring his case to
probation services.

{15} The district court’s conclusion that it could not rehabilitate juveniles after they
reached majority was incorrect. The Children’s Code explicitly allows dispositions and
sanctions to extend until a juvenile reaches the age of twenty-one. See § 32A-2-23
(requiring various sanctions to terminate when the juvenile reaches twenty-one years of age);
State v. Jones, 2010-NMSC-012, ¶ 55, 148 N.M. 1, 229 P.3d 474 (“[O]ur juvenile system
is not equipped to treat or rehabilitate an individual over the age of [twenty-one].”); State v.
Jose S., 2007-NMCA-146, ¶ 22, 142 N.M. 829, 171 P.3d 768 (“[R]emand for new hearings
is complicated by the fact that [the c]hild is too old to be sentenced as a juvenile because he
is twenty-one.”). Child turns twenty-one in August 2011. Accordingly, in 2007, the district
court had ample time to provide rehabilitation if necessary.

{16} Additionally, no argument made by Child presents the type of prejudice defined in
Gonzales. The availability of rehabilitative services does not affect the merits of a case.
Similarly, any anxiety experienced by Child or his family could not affect the merits of the
case. See State v. Palmer, 1998-NMCA-052, ¶ 7, 125 N.M. 86, 957 P.2d 71 (stating that the
defendant’s anxiety during the period of delay is not relevant because it does not impact his
defense). Child also argued below that he might have been more inclined to plea, that his
memory might not be as sharp, and that he might not think he has a case anymore. Attorney
arguments are not evidence and cannot support a finding of prejudice. See id. ¶ 5 (refusing
to find prejudice when arguments were not supported by evidence and the defendant had not
shown that the witnesses could not have testified). Even so, the arguments proffered are the
type of “mere conjecture” forbidden by Gonzales, 11 N.M. at 365, 805 P.2d at 632; see Elder
v. Marvel Roofing Co., 74 N.M. 357, 360, 393 P.2d 463, 466 (“A bare possibility,
unsupported by the evidence, [amounts] to nothing more than pure speculation and
conjecture.”).

{17} We therefore conclude that Child failed to meet his burden of demonstrating
prejudice under Gonzales. Without prejudice, we need not reach the issue of intent to delay,
and we conclude that there was no violation of Child’s due process rights.

B. No Statutory Support Exists for Dismissal

{18} We now turn to whether there was a statutory basis for the dismissal. Child suggests
that the dismissal was justified under Section 32A-2-2 of the Children’s Code. In examining
whether the Children’s Code supports a dismissal, we look first to its plain language. See
In re Jade G., 2001-NMCA-058, ¶ 16, 130 N.M. 687, 30 P.3d 376.

{19} Our examination of the Children’s Code reveals no authority for dismissal due to
preaccusation delay. Instead, dismissal is reserved for successful completion of time
waivers, Section 32A-2-7(G), failure to prove delinquency, Section 32A-2-16, incompetence
of the child, Section 32A-2-21, or certain duplicate proceedings, Section 32A-2-22. In
addition, if a child is not in custody or detention, dismissal is forbidden for failure to file a
petition within sixty days of preliminary inquiry unless there is a showing of prejudice to the

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child. See § 32A-2-7(D). None of these statutory sections apply to a delay prior to referral
to probation services, and no other provision of the Children’s Code addresses such a delay.

{20} This Court has declined to read in the “extreme remedy” of dismissal where it is not
explicitly conferred by the Children’s Code. See Jade G., 2001-NMCA-058, ¶ 20 (“[T]he
[L]egislature would have clearly provided for such a significant and extreme remedy in the
Children’s Code if it had intended the children’s court to possess such power.”). In
particular, we have rejected the idea that a dismissal can be supported by Section 32A-1-3,
the purposes section of the Children’s Code. Id. ¶ 19 (“The purpose provision of the
[Children’s] Code and its vague references to enforcement are not sufficiently clear to
support a conclusion that the [Children’s] Code contemplated the remedy of dismissal.”).
This argument applies with equal force to Section 32A-2-2. In ordering dismissal, the court
below made some observations about the purposes of the Children’s Code. To the extent
that the district court based its dismissal on the Children’s Code, it was in error.

{21} The Children’s Code starts from the premise that juveniles have the same rights as
adults. See § 32A-2-14(A) (“A child . . . is entitled to the same basic rights as an adult,
except as otherwise provided in the Children’s Code.”); see also § 32A-1-16. The plain
language of the statute contemplates that additional rights will be enacted into the Children’s
Code. Furthermore, this Court has recognized that “[i]n some instances, [a juvenile’s rights
under the Children’s Code] may be broader than the rights of an adult.” Jade G., 2001-
NMCA-058, ¶ 14. We therefore apply the statutes as written, limited only by the due
process test set forth in Gonzales. If this is perceived as unfair, we believe that, as in Jones,
“the legislative scheme of the Delinquency Act bear[s] much of the fault.” 2010-NMSC-
012, ¶ 56.

{22} Because the Legislature has not provided otherwise, the statute of limitations applies.
“[S]tatutes of limitation provide the primary protection against delay-induced prejudice.”
Gonzales, 111 N.M. at 364, 805 P.2d at 631. Here, a complaint for property damage
exceeding $1000 was filed within a year of the incident. This was well within the five-year
limit prescribed by the statute of limitations for this crime. See NMSA 1978, § 30-15-1
(1963) (defining property damage over $1000 as a fourth degree felony); NMSA 1978, § 30-
1-8(B) (1997) (amended 2009) (providing a five-year statute of limitations for fourth degree
felonies). Thus, the delay of seven months violated neither the Children’s Code nor the
applicable statute of limitations. We therefore conclude that there was no statutory basis for
the dismissal below.

III. CONCLUSION

{23} For the foregoing reasons, we reverse the order granting dismissal and remand for
further proceedings consistent with this opinion.

{24} IT IS SO ORDERED.

______________________________________
MICHAEL D. BUSTAMANTE, Judge

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WE CONCUR:

______________________________________
CYNTHIA A. FRY, Chief Judge

______________________________________
TIMOTHY L. GARCIA, Judge

Topic Index for State v. Lorenzo P., Docket No. 29,292

CD CHILDREN
CD-CC Children's Code

CA CRIMINAL PROCEDURE
CA-DC Dismissal of Charges
CA-DU Due Process
CA-TL Time Limitations

CT CONSTITUTIONAL LAW
CT-DP Due Process

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