(dissenting)
{40} I respectfully dissent. I would affirm the Court of Appeals, but for different reasons than those articulated in its opinion in State v. Santillanes, 2000-NMCA-017, 128 N.M. 752, 998 P.2d 1203, cert. denied, 128 N.M. 689, 997 P.2d 821 and cert. granted, 128 N.M. 690, 997 P.2d 822 (2000). I believe that the language, purpose, subject matter, and history of the relevant statutes all indicate that Defendant’s convictions for child abuse resulting in death, contrary to NMSA 1978, § 30 — 6—1(C)(1) (1989, prior to 1997 amendment), should be vacated.
{41} The panel of the Court of Appeals that decided Santillanes and the members of this Court all agree that the Legislature did not intend multiple punishments on these facts and that the question on appeal is which convictions should be vacated: the convictions for child abuse resulting in death, contrary to Section 30 — 6—1(C)(1), or the convictions for vehicular homicide, contrary to NMSA 1978, § 66-8-101(0) (1991). We also all agree that the Legislature’s intent should control. That is, if the Legislature would have intended that Defendant be punished for child abuse resulting in death, then those convictions should stand and Defendant’s convictions for vehicular homicide should be vacated. If, however, the Legislature would have intended that Defendant be punished for vehicular homicide, then those convictions should stand and Defendant’s convictions for child abuse resulting in death should be vacated. We have not been able to reach consensus on this Court, however, on the appropriate starting point for analyzing this case nor on the proper application of the double jeopardy clause.
{42} It seems to me that the starting point for our analysis should be the double jeopardy clause, see U.S. Const, amends. V, XIV, N.M. Const, art. II, § 15, because the State has conceded at the outset that a double jeopardy violation exists, and because the Court of Appeals only reached the question of whether the vehicular homicide statute preempted the child abuse statute following its determination that the double jeopardy clause required Defendant’s vehicular homicide convictions to be vacated. See Majority Opinion, ¶ 9; Santillanes, 2000-NMCA-017, ¶ 9, 128 N.M. 752, 998 P.2d 1203. It further seems to me that the starting point for our analysis under the double jeopardy clause is the language of the vehicular homicide and child abuse statutes, particularly the core language that creates the two offenses. Section 66-8-101(0 punishes the commission of “homicide by vehicle ... while under the influence of intoxicating liquor.” Section 30-6 — 1(C)(1) punishes the placing of children “in a situation that may endanger the child’s life or health.” If we compare these terms, the vehicular homicide statute is more specific to Defendant’s conduct than the child abuse statute. Defendant committed four homicides, killing four children by driving his car while under the influence of intoxicating liquor. The greater specificity of the vehicular homicide statute demonstrates to me that the Legislature focused on the conduct of which Defendant has been convicted when it enacted the vehicular homicide statute. We have no indication, based on the language of the child abuse statute, that the Legislature focused on that conduct when it enacted the child abuse statute.
{43} Examination of more of the language of the vehicular homicide statute and its companion statute, NMSA 1978, § 66-8-101.1 (1985), further supports my belief that the Legislature would have considered Defendant’s conduct vehicular homicide. Section 66-8-101.1 punishes as a third-degree felony the act of driving while intoxicated when it results in injury to a pregnant woman such that a miscarriage or stillbirth occurs. Section 66-8-101(A) defines homicide by vehicle as the killing of a human being. Viewed together, the two statutes create a comprehensive scheme that punishes as a third-degree felony the death of an adult or child, or a stillbirth or miscarriage resulting from vehicular homicide. Construing the child abuse statute to apply to Defendant’s conduct would upset this scheme by making the death of a child by vehicular homicide a first-degree felony. The Court of Appeals “[did] not believe that the Legislature intended that the death of a child between birth and eighteen years of age should result in different and considerably greater punishment than the death of an unborn child or an adult, when the conduct causing the death, driving while intoxicated, is the same.” Santillanes, 2000-NMCA-017, ¶ 12, 128 N.M. 752, 998 P.2d 1203. I, too, do not believe that the Legislature intended such a result.
{44} In fact, examination of more of the language of the child abuse statute leads me to believe that the Legislature has created an overlap it did not foresee. Section 30-6-l(C) articulates three circumstances that constitute child abuse: (1) placing a child in a situation that may endanger the child’s life or health; (2) torture or cruel confinement or cruel punishment of a child; and (3) exposure of a child to inclement weather. If the Legislature had intended for the phrase “placing a child in a situation that may endanger the child’s life or health” to be broadly construed, there would be no need to punish specifically torture, cruel confinement, cruel punishment, or exposure of a child to inclement weather, because these acts place a child in a situation that may endanger the child’s life or health. In other words, a very broad construction of the child endangerment language of the statute would render superfluous the specific enumerations contained in subsections (C)(2) and (C)(3). We do not construe statutes in a manner that renders other parts of the same statute superfluous. See Katz v. New Mexico Dep’t of Human Servs., 95 N.M. 530, 534, 624 P.2d 39, 43 (1981) (“A statute must be construed so that no part of the statute is rendered surplusage or superfluous.”). Therefore, it seems sensible to me to conclude that subsection (C)(1) was not intended to capture all conduct that might fit its statutory definition, but rather was worded broadly in an attempt to leave prosecutors in a position to punish acts of child abuse, similar to those enumerated in subsections (C)(2) and (C)(3), upon which the Legislature did not focus at the time of enactment.
{45} Examination of other parts of the criminal code further indicates that the Legislature did not contemplate that Section 30-6-l(C)(l) would encompass the entire universe of conduct involving harm or risk of harm to children. New Mexico’s criminal sexual-penetration statute, NMSA 1978, § 30-9-11(0,(D) (1995), for example, specifically punishes criminal sexual penetration of children under thirteen years of age and criminal sexual penetration of children between the ages of thirteen and sixteen under certain circumstances. Further, New Mexico’s sexual-exploitation-of-children statute, NMSA 1978, § 30-6A-3 (1993), and sexual-exploitation-of-ehildren-by-prostitution statute, NMSA 1978, § 30-6A-4 (1989), specifically punish acts of sexual exploitation committed against children. Section 30-6-1(C)(1) might have been construed broadly enough to make these offenses superfluous, because the crimes these provisions punish also may endanger a child’s life or health. In enacting these provisions, the Legislature seems to me to have indicated that it was providing more protection, and thus that it deemed Section 30-6-1(0(1) to protect against something else.
{46} Lastly, the history of the vehicular homicide and child abuse statutes reveals one statute that has remained relatively constant in coverage and another that has expanded slowly but steadily. Until recently, there was no overlap. A vehicular homicide statute was first enacted in 1953. See State v. Yarborough, 1996-NMSC-068, ¶ 28, 122 N.M. 596, 930 P.2d 131. At that time, the precursor of our current child abuse statute specifically punished abandonment, rather than child abuse, enhancing the penalty if abandonment caused death. See 1925 N.M. Laws, ch. 108, §§ 1, 2 (codified as NMSA 1953, § 40-2-1, -2). A comparison of these statutes indicates that the 1953 New Mexico Legislature would have considered Defendant’s actions to be vehicular homicide. The vehicular homicide statute was repealed in 1957 and reenacted in 1969. See Yarborough, 1996-NMSC-068, ¶28, 122 N.M. 596, 930 P.2d 131. At that time, our statutes continued to punish abandonment specifically, rather than child abuse. See 1963 N.M. Laws, eh. 303, §§ 6-1, -2 (codified as NMSA 1953, Repl.Vol. 6 (1964), § 40A-6-1, -2). A comparison of these statutes indicates that in 1969, the New Mexico Legislature would have considered Defendant’s actions to constitute vehicular homicide. In 1973, the Legislature amended Section 40A-6-1 to punish child abuse more generally. See 1973 N.M. Laws, ch. 360, § 10 (originally codified as NMSA 1953, 2d. Repl.Vol. 6 (1964), § 40A-6-1 (Supp.1973), then codified as § 30-6-1). The Legislature did not change the vehicular homicide statute. We have little or no basis for determining that the Legislature modified the crime of vehicular homicide by implication in 1973. I think it more likely that in 1973 the Legislature broadened the child abuse statute without ever considering the possibility that the death of a child resulting from a driving offense could constitute child abuse resulting in death.
{47} The Court of Appeals did not conduct a detailed inquiry into the language, history, and purpose of these statutes under the double jeopardy clause because it believed that our opinion in State v. Pierce, 110 N.M. 76, 86-87, 792 P.2d 408, 418-19 (1990), established the proposition that a lesser offense, as measured by the degree of felony, must be vacated in favor of the greater offense. Santillanes, 2000-NMCA-017, ¶ 9,128 N.M. 752, 998 P.2d 1203. I am not persuaded that Pierce establishes this proposition. In Pierce, the defendant had been convicted of first-degree murder and child abuse resulting in death based on one homicide. In vacating Defendant’s conviction for child abuse resulting in death, we reasoned that: (1) child abuse resulting in death was a lesser-ineluded offense of first-degree murder based on the facts of the case, and (2) a long-standing principle of double jeopardy jurisprudence requires that a conviction for a lesser-included offense be vacated in favor of a greater, inclusive offense. Pierce, 110 N.M. at 86, 792 P.2d at 418. The latter principle exists in our jurisprudence because the existence of greater-inclusive/lesser-included offenses gives us insight into the Legislature’s intent. Where one statute includes all elements of another statute and differs from the lesserineluded statute by virtue of an additional element, we can infer that the Legislature intended the more inclusive statute to cover instances in which the additional element was present. This double jeopardy principle does not apply when each offense includes an element that the other does not.
{48} Any general use of the concepts of “greater” and “lesser” offenses seems to me misleading, rather than helpful, in the double jeopardy context. The existence of greater-inclusive/lesser-included offenses is determined by the elements of offenses, not by the degree of felony. I think a general use of .the concepts of “greater” and “lesser” offenses ought not replace a detailed inquiry into legislative intent in analyzing a double jeopardy issue.
{49} For these reasons, I believe that the Legislature intended that a person in Defendant’s situation be punished for vehicular homicide. Although I am persuaded that we should so interpret the Legislature’s intent, I also acknowledge that reasonable minds can and do differ in determining the Legislature’s intent in this ease. I would therefore reach the same result by application of the rule of lenity. See Liparota v. United States, 471 U.S. 419, 427, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985) (stating that the rule of lenity “provides a time-honored interpretive guideline when the [legislative] purpose is unclear”); see also State v. Anaya, 1997-NMSC-010, ¶ 32, 123 N.M. 14, 933 P.2d 223 (applying the rule of lenity where the Court concluded that legislative intent to apply the habitual offender statute to felony DWI convictions was unclear notwithstanding the language of the statutes); State v. Begay, 2001-NMSC-002, ¶ 9, 130 N.M. 61, 17 P.3d 434 (same).
{50} I am persuaded on these grounds that Defendant’s convictions for child abuse resulting in death should be vacated. A majority of this Court being of a different view, I respectfully dissent.1
. Because I conclude that the Court of Appeals erred in analyzing our double jeopardy cases and in determining that under those cases Defendant’s vehicular homicide convictions would have been vacated, I do not reach the question of whether the vehicular homicide statute preempts die child abuse statute under the general/specific rule.