dissenting.
I dissent.
The aggregate penalty rule adopted by the majority is not supported by NMSA 1978, Subsection 34-8A-5(B) (Repl.Pamp. 1981), or the United States Supreme Court’s decisions in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), and Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970).
No common law right to a jury trial exists for petty offenses, Duncan v. Louisiana, 391 U.S. at 160, 88 S.Ct. at 1453, which is the rule under the New Mexico Constitution. See N.M. Const, art. II, sec. 12. Moreover, “[sjtatutes in derogation of the common law must be strictly construed.” State ex rel. Miera v. Chavez, 70 N.M. 289, 291, 373 P.2d 533, 534 (1962). “We are not permitted to read into a statute language which is not there, particularly if it makes sense as written.” State v. Ellenberger, 96 N.M. 287, 288, 629 P.2d 1216, 1217 (1981) (quoting State ex rel. Barela v. New Mexico State Board of Education, 80 N.M. 220, 222, 453 P.2d 583, 585 (1969)).
Subsection 34-8A-5(B) broadens the right to a jury trial in derogation of the common law beyond the six month period recognized in Duncan and Baldwin by establishing a right to a jury trial if the penalty exceeds ninety days. Thus, the statute should be strictly construed and the words chosen by the Legislature should be given their plain ordinary meaning. State v. Ortiz, 78 N.M. 507, 433 P.2d 92 (Ct.App.), cert. denied (1967). The majority opinion completely ignores the fact that Subsection 34-8A-5(B)(2) applies to individual offenses, not aggregate sentences, and completely ignores the legislative intent expressed in this section. If the Legislature intended “penalty” to mean “aggregate penalty,” they would have made that meaning clear. The redefinition of the right to a jury trial under Subsection 34-8A-5(B) is more properly a task for the Legislature, not this Court.
The majority ignores this Court’s prior rejection of the concept of aggregate offenses and penalties to obtain a jury trial. See State v. James, 76 N.M. 416, 415 P.2d 543 (1966). Instead, the majority cite Haar v. Hanrahan, 708 F.2d 1547 (10th Cir. 1983), as support for the aggregate penalty rule. However, the Tenth Circuit Court of Appeals in Haar recognized that the aggregate penalty rule was not “precisely squared with the Supreme Court’s holdings in Duncan and Baldwin.” Id. at 1553. Moreover, the aggregate penalty rule adopted by the Tenth Circuit Court of Appeals and the majority of this Court has absolutely no foundation in the common law of this State or of the United States. The aggregate penalty rule is a new judicial invention which erodes “the benefits to efficient law enforcement and simplified judicial administration resulting from the availability of speedy and inexpensive non-jury adjudications.” Duncan, 391 U.S. at 160, 88 S.Ct. at 1453.
Subsection 34-8A-5(B) is proper under the New Mexico Constitution, and it is consistent with Duncan and Baldwin. Absent a basis for departure from the language of the statute and the decisions of the United States Supreme Court, I must dissent. I would affirm the district court.