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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 31,921
5 RAMON ARTURO RASCON,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Neil C. Candelaria, District Judge
9 Gary K. King, Attorney General
10 Nicole Beder, Assistant Attorney General
11 Santa Fe, NM
12 for Appellee
13 Jacqueline L. Cooper, Chief Public Defender
14 Allison H. Jaramillo, Assistant Appellate Defender
15 Santa Fe, NM
16 for Appellant
17 MEMORANDUM OPINION
18 KENNEDY, Judge.
1 Ramon Rascon (Defendant) appeals his convictions for child abuse (negligently
2 caused, no death or great bodily harm), homicide by vehicle (DWI and reckless), great
3 bodily injury by vehicle (DWI or reckless), aggravated DWI, and reckless driving.
4 [RP 443] Our second notice proposed to affirm, in part, and to reverse and remand,
5 in part. Defendant filed a second memorandum in opposition to our proposed
6 affirmance (2nd MIO), and the State filed a response, indicating that it agrees with our
7 proposed disposition. We remain unpersuaded by Defendant’s arguments and
8 therefore affirm Issues A-E and reverse and remand for resentencing as provided in
9 Issue F.
10 For Issues A-D, Defendant’s second memorandum provides that he “continues
11 to object to this Court’s proposed summary affirmance and relies on the arguments
12 made in his first memorandum for these issues.” [2nd MIO 1] For the reasons
13 extensively detailed in our second notice, we are not persuaded by Defendant’s
14 arguments and therefore affirm.
15 For Issue E, Defendant also continues to argue that the district court erred in
16 designating his felony convictions as serious violent offenses pursuant to NMSA
17 1978, Section 33-2-34 (2006). [2nd MIO 1] As support for his argument, Defendant
18 asserts that the district court failed to engage in the required “reasoned measurement
19 process” [1st MIO 30] to assess that the crimes merited designation as serious violent
2
1 offenses. See generally State v. Solano, 2009-NMCA-098, ¶ 10, 146 N.M. 831, 215
2 P.3d 769 (addressing when a district court may designate a crime as a serious violent
3 offense). As we pointed out in our first and second notices, the judgment and sentence
4 provides that the district court, in designating his offenses as serious violent offenses,
5 considered the high concentration of methamphetamine in Defendant’s system, the
6 force of the collision, and his prior drug use. [RP 445] We conclude that these factors
7 support the district court’s designation of his offenses as serious violent offenses. See
8 generally Solano, 2009-NMCA-098, ¶¶ 1, 29 (affirming the district court’s
9 designation of the defendant’s vehicular homicide conviction as a serious violent
10 offense because, among other reasons, the defendant had a history with alcohol, he
11 refused to address the problem, and he insisted on continuing to drive while drunk);
12 State v. Wildgrube, 2003-NMCA-108, ¶¶ 1, 37-38, 134 N.M. 262, 75 P.3d 862
13 (affirming the district court’s designation of the defendant’s vehicular homicide as a
14 serious violent offense where the court noted, among other things, that the defendant
15 had “consumed a significant amount of alcohol” and proceeded to drive in a reckless
16 manner such that he drove into and killed a person).
17 Despite the foregoing, Defendant argues that the designation was especially
18 inappropriate for his child abuse conviction, which was based on the endangerment
19 of his own daughter who was a passenger in his vehicle and who was not physically
3
1 harmed in the incident. [2nd MIO 1-2] While Defendant’s child may not have been
2 harmed as a result of Defendant’s actions, the serious violent offender designation was
3 not premised on the lack of physical harm to Defendant’s child, but instead on the
4 high concentration of methamphetamine in his system, the force of the collision, and
5 his prior drug use. While in the end Defendant’s child was not physically harmed, she
6 nonetheless was a victim, along with others, of Defendant’s crime that was
7 exacerbated by the foregoing factors, thereby meriting the serious violent offender
8 designation.
9 Lastly, with respect to Issue F, both Defendant and the State agree that it is
10 appropriate for this Court to reverse and remand with instructions that the district
11 court vacate one of the convictions for each of the underlying offenses for which
12 Defendant was convicted and sentenced in the alternative. [Defendant’s 2nd MIO 3;
13 State’s response/2]
14 To conclude, we affirm Issues A-E and reverse and remand for resentencing for
15 Issue F.
16 IT IS SO ORDERED.
17 _______________________________
18 RODERICK T. KENNEDY, Judge
4
1 WE CONCUR:
2 _________________________________
3 CELIA FOY CASTILLO, Chief Judge
4 _________________________________
5 MICHAEL E. VIGIL, Judge
5