1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
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5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 vs. No. 31,074
10 Consolidated with 31,077
11 JORDAN S.,
12 Child-Appellant.
13 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
14 John M. Paternoster, District Judge
15 Gary King, Attorney General
16 Santa Fe, NM
17 for Appellee
18 Jacqueline L. Cooper, Acting Chief Public Defender
19 Tania Shahani, Assistant Appellate Defender
20 Santa Fe, NM
21 for Appellant
22 MEMORANDUM OPINION
23 VIGIL, Judge.
24 Child appeals from two judgments of the district court; one judgment
25 adjudicated him as a delinquent child for having committed the act of aggravated
1 assault with a deadly weapon (as an accessory) by admission, and the other judgment
2 adjudicated him as a youthful offender for having committed the act of assault by a
3 prisoner causing great bodily harm (as an accessory) and aggravated assault upon a
4 peace officer causing great bodily harm (as an accessory). We issued two notices of
5 proposed summary disposition, proposing to affirm each judgment of the district
6 court. Child filed a motion to consolidate the appeals, which we granted under Case
7 No. 31,074. After the consolidation, Child filed a single memorandum in opposition
8 in response to our notices. We have considered Child’s response and remain
9 unpersuaded that Child has demonstrated error. Therefore, we affirm.
10 Accessory Liability
11 On appeal, Child argues that the district court erred by ruling that his offenses
12 were among those enumerated in NMSA 1978, § 32A-2-3(J) (2009), because those
13 offenses were not listed as having been committed by an accessory. Child argues that,
14 as a result, he should not have been punished as a youthful offender or, alternatively,
15 the rule of lenity should resolve the ambiguity in the Children’s Code in his favor.
16 [MIO 5-9]
17 We are not persuaded that accessory liability has lesser consequences than
18 principal liability. In State v. Perez, 2002-NMCA-040, ¶¶ 18, 23, 132 N.M. 84, 44
19 P.3d 530, we addressed this question and held that a child adjudicated as a youthful
2
1 offender for having been an accessory to one of the enumerated offenses is to be
2 punished in the same way as a juvenile adjudicated to have committed the offense as
3 a principal. Aggravated assault with a deadly weapon is considered one of the
4 offenses enumerated as Section 32A-2-3(J)(1)(b), assault with the intent to commit a
5 violent felony. [DS 3] Also, assault by a prisoner causing great bodily harm and
6 aggravated battery on a peace officer causing great bodily harm are considered
7 offenses enumerated respectively as Section 32A-2-3(J)(1)(f). As a result, we are not
8 persuaded that the district court erred by punishing Child as a youthful offender or that
9 the rule of lenity should apply.
10 Extended Commitment
11 Child argues that the district court erred by imposing the extended commitment
12 in the care of CYFD until he reaches the age of twenty-one because (1) it was based
13 on the court’s erroneous belief that it did not have discretion to do otherwise, (2) Child
14 was only liable as an accessory, and (3) the court should have considered Child’s
15 psychological evaluation as mitigating evidence. [MIO 9-15] We are not persuaded.
16 Child represents that the district court did not believe that it had discretion to
17 impose less than the extended commitment. [MIO 9-12] To support this
18 representation, Child notes that the district court judge asked trial counsel if he was
19 “inviting the court to summarily alter the available sanctions as provided in the
3
1 Children’s Code because [the case involved] accessory liability rather than principal
2 liability.” [MIO 10] Also, before issuing its final decision, the court stated that it
3 would “not change the law from the bench” and imposed the extended commitment.
4 [Id.] Child contends that these statements indicate that the court did not believe that
5 a lesser punishment was possible. [Id.] We are not convinced by Child’s
6 characterization of the court’s comments. It appears to us that the court was referring
7 to its lack of discretion as to Child’s status as a youthful offender for having been
8 adjudicated for an enumerated offense as an accessory, not its lack of discretion as to
9 the extent of the punishment for his accessory liability.
10 We also note that the district court’s decision to impose the extended
11 commitment is not contrary to law. As we stated above, Child committed acts
12 enumerated in the statute, the State did not seek to sentence Child as an adult, and the
13 district court found that a juvenile disposition was appropriate; thus, Child could have
14 been “subject[ed] to extended commitment in the care of the department until the age
15 of twenty-one.” NMSA 1978, § 32A-2-20(F) (2009) (using permissive language to
16 allow the district court to subject a youthful offender to the extended commitment
17 where a juvenile disposition is appropriate). [RP 52] The district court had discretion
18 within the limits of the Delinquency Act to impose the extended commitment and,
19 therefore, had discretion to consider whether the psychological evaluation rendered
4
1 another consequence more appropriate. Cf. State v. Jones, 2010-NMSC-012, ¶¶ 35-
2 38, 41, 45, 148 N.M. 1, 229 P.3d 474 (describing the purpose of an amenability
3 hearing and the discretion of the district court under the Delinquency Act). We will
4 not hold that the district court abused that discretion only because it did not impose
5 the consequences Child would have preferred. [MIO 13-15]
6 Amenability Hearing
7 Lastly, Child argues that the district court abused its discretion by failing to
8 conduct a hearing on Child’s amenability to treatment. [MIO 15-16] Child now
9 pursues this argument under the demands of State v. Franklin, 78 N.M. 127, 129, 428
10 P.2d 982, 984 (1967); and State v. Boyer, 103 N.M. 655, 658-60, 712 P.2d 1, 4-6 (Ct.
11 App. 1985). [MIO 15] As we stated in our notices, we hold that Child was not entitled
12 to amenability-to-treatment hearing because the State did not give notice of its intent
13 to invoke an adult sentence and because Child was not subject to sentencing as an
14 adult. See § 32A-2-20(B)(1); Jones, 2010-NMSC-012, ¶¶ 36-38 (observing that a
15 child’s “commitment to a facility for the care and rehabilitation of adjudicated
16 delinquent children for a period of up to two years” is a possible consequence after an
17 amenability hearing where the child may face an adult sentence (internal quotation
18 marks and citation omitted)).
5
1 For the reasons stated in our notices and in this opinion, we affirm the
2 judgments and dispositions of the district court.
3 IT IS SO ORDERED.
4 _______________________________
5 MICHAEL E. VIGIL, Judge
6 WE CONCUR:
7 _________________________________
8 MICHAEL D. BUSTAMANTE, Judge
9 _________________________________
10 LINDA M. VANZI, Judge
6