State v. RUDY B.

Certiorari Granted, No. 31,909, September 15, 2009

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMCA-104

Filing Date: July 30, 2009

Docket No. 27,589

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

RUDY B.,

Child-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Monica Zamora, District Judge

Gary K. King, Attorney General
Santa Fe, NM
M. Victoria Wilson, Assistant Attorney General
Albuquerque, NM

for Appellee

Hugh W. Dangler, Chief Public Defender
J.K. Theodosia Johnson, Assistant Appellate Defender
Santa Fe, NM

for Appellant

Juvenile Law Center
Marsha Levick
Jessica Feierman
Philadelphia, PA

for Amicus Curiae

OPINION

1
CASTILLO, Judge.

{1} The primary issue in this appeal concerns a challenge to the statutory procedure used
to determine whether a youthful offender is sentenced as an adult or as a juvenile. Under the
Delinquency Act, NMSA 1978, §§ 32A-2-1 to -33 (1993, as amended through 2007)
(Delinquency Act), the trial court determines whether to impose a juvenile or adult sentence
after making findings based on evidence presented at an amenability hearing. Section 32A-
2-20(B)(1), (2). In the case before us, the trial court found that Child was not amenable to
treatment, and Child was sentenced as an adult to twenty-five years in prison. Child appeals
his sentence and urges this Court to overrule State v. Gonzales, 2001-NMCA-025, ¶ 1, 130
N.M. 341, 24 P.3d 776, and urges this Court to hold that Apprendi v. New Jersey, 530 U.S.
466 (2000), requires a jury determination of the facts necessary to impose an adult sentence.
Child additionally asserts that there was insufficient evidence to support the findings
necessary to sentence him as an adult and that his separate convictions for shooting from a
motor vehicle resulting in great bodily harm and aggravated battery with a deadly weapon
violate double jeopardy. After considering the line of cases decided since Apprendi and
Gonzales, we conclude that Gonzales should be overruled and that Apprendi applies to the
amenability hearings of youthful offenders. We need not reach the question of substantial
evidence because we remand this case to the trial court for resentencing. We also hold that
the resentencing should be based on all of the counts to which Child pleaded because there
was no double jeopardy violation.

I. BACKGROUND

{2} Child was involved in a gang fight in a parking lot. Under the impression that one
of the other gang members had a gun, Child pulled out his own weapon and began shooting.
He hit three people, one of whom was rendered a quadriplegic.

{3} Child was charged by petition under the Delinquency Act for nine counts: (1) three
counts of shooting at or from a motor vehicle; (2) three counts of aggravated battery with a
deadly weapon or, in the alternative, aggravated battery resulting in great bodily harm; (3)
two counts of negligent use of a deadly weapon; and (4) one count of unlawful possession
of a handgun by a minor. The State provided notice of its intent to seek an adult sentence,
pursuant to Section 32A-2-20(A). The trial court then issued an administrative closing order
on the petition, and the case proceeded forward on a grand jury indictment on essentially the
same counts.

{4} Before trial, Child pleaded as a youthful offender under the Delinquency Act to four
of the counts: two counts of shooting from a motor vehicle resulting in great bodily harm
and two counts of aggravated battery with a deadly weapon. After the plea agreement was
accepted, the trial court held an amenability hearing in order to determine whether Child was
amenable to treatment and rehabilitation or whether Child should be subject to an adult
sentence. See § 32A-2-20(B). The trial court concluded that Child was not amenable to
treatment, the case proceeded to sentencing, and Child was sentenced to twenty-five years
in prison. Child appeals.

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II. DISCUSSION

{5} Child makes three arguments on appeal. First, he urges this Court to overrule
Gonzales and to hold that the Sixth Amendment and Apprendi require a jury to determine
beyond a reasonable doubt whether a youthful offender is amenable to treatment as a
juvenile in an amenability proceeding held pursuant to Section 32A-2-20(B). Second, Child
argues that in any event, the trial court incorrectly determined that he was not amenable to
treatment. Third, Child contends that the convictions for violations of NMSA 1978, Section
30-3-8 (1993) (shooting at or from a motor vehicle) and NMSA 1978, Section 30-3-5 (1969)
(aggravated battery, enhanced by NMSA 1978, Section 31-18-16 (1993) for the use of a
firearm) violate the constitutional prohibition against double jeopardy. We address each
argument in turn.

A. Amenability Hearings and Apprendi

{6} We begin our discussion by briefly considering the history of juvenile criminal
disposition. At common law, children younger than seven were not held criminally
responsible, children over fourteen were held to the same standards as adults, and children
between seven and fourteen were presumed to lack criminal capacity, although the
presumption was rebuttable. Courtney P. Fain, Note, What’s in a Name? The Worrisome
Interchange of Juvenile “Adjudications” with Criminal “Convictions,” 49 B.C. L. Rev. 495,
496-99 (2008). At the end of the nineteenth century, reformers began to develop a separate
criminal justice system for juvenile offenders. See id. at 498; Paul Piersma et al., Law and
Tactics in Juvenile Cases, 1997 A.L.I. 3d ed. § 1.1, at 5. These courts were intended to
focus on “the needs of the offender with a goal of rehabilitation,” and “[t]he objective of the
juvenile court was to rehabilitate the child and protect society rather than to adjudge guilt[.]”
Fain, supra, at 499.

{7} Many of the constitutional protections afforded to adult criminal proceedings were
not provided to children who were charged with criminal offenses. Piersma, supra, at 13.
This changed in 1966, when the Supreme Court of the United States decided Kent v. United
States, 383 U.S. 541 (1966). Kent held that a juvenile court may not waive jurisdiction over
a juvenile offender and transfer the offender to face prosecution as an adult without a
hearing, effective assistance of counsel, and a statement of reasons. Id. at 554. One year
later, the Court considered the constitutional protections afforded to juveniles during the
adjudication proceeding and determined that a juvenile offender is entitled to adequate notice
of the pending charges, to counsel who is either retained by the offender or provided by the
state, to the privilege against self-incrimination, and to confront witnesses who testify
against him. See In re Gault, 387 U.S. 1, 13, 33, 41, 55, 57 (1967). Since then, juveniles
have been granted the additional safeguard of proof beyond a reasonable doubt in a juvenile
adjudication, In re Winship, 397 U.S. 358, 368 (1970), as well as protection from double
jeopardy. See Breed v. Jones, 421 U.S. 519, 532 (1975) (holding that double jeopardy is
violated when a juvenile is subject to adjudication in the juvenile system, determined to be
unamenable to treatment at the juvenile disposition, and then transferred and retried in the
adult system). Notably, the Supreme Court of the United States has explicitly refused to
require the states to extend the right to a jury trial to juvenile adjudications. See McKeiver

3
v. Pennsylvania, 403 U.S. 528, 545 (1971).

{8} During the 1980s, “substantial [public] misperception regarding increases in juvenile
crime led many states to begin passing legislation that took a more punitive approach to
juvenile justice.” Kelly K. Waterfall, Note, State v. Muniz: Authorizing Adult Sentencing
of Juveniles Absent a Conviction that Authorizes an Adult Sentence, 35 N.M. L. Rev. 229,
231 (2005) (alteration in original) (internal quotation marks and footnote omitted). These
approaches were “designed to crack down on juvenile crime, and generally involved
expanded eligibility for criminal court processing and adult correctional sanctioning.” Id.
(internal quotation marks and footnote omitted). With this history in mind, we turn to
examine the relevant statutory backdrop of New Mexico’s juvenile system.

1. New Mexico’s Juvenile System

{9} New Mexico’s early treatment of juveniles mirrored that of other states. At the time of
statehood in 1912, juveniles accused of criminal acts were treated no differently from adults.
Peyton v. Nord, 78 N.M. 717, 723, 437 P.2d 716, 722 (1968). In 1917, the Legislature adopted
the first juvenile code. Id. When faced with the question of whether a juvenile has a right to a
jury trial, the New Mexico Supreme Court relied on the right to a jury trial as enunciated in
Article II, Section 12 of the New Mexico Constitution: “The right of trial by jury as it has
heretofore existed shall be secured to all and remain inviolate.” Based on the fact that juveniles
charged with a felony were entitled to a jury trial at the time the constitution was adopted in 1912,
the Peyton court held that such juveniles are guaranteed a jury trial in New Mexico. 78 N.M. at
723, 437 P.2d at 722.

{10} The next development relevant to our analysis took place in 1993 when New Mexico
joined other states in an effort to establish “statutory authority to impose adult sanctions on
children convicted of certain criminal offenses.” Waterfall, supra, at 231. The 1993
amendments to the children’s code comprised what is now known as the Delinquency Act,
Sections 32A-2-1 to -33. See Waterfall, supra, at 231. Under the Delinquency Act, there
are three classes of juvenile offenders: delinquent offenders, serious youthful offenders, and
youthful offenders. See § 32A-2-3(C), (H), (I). As this Court explained in Gonzales:
“These classifications reflect the rehabilitative purpose of the Delinquency Act, coupled with
the realization that some juvenile offenders cannot be rehabilitated given the limited
resources and jurisdiction of the juvenile justice system.” 2001-NMCA-025, ¶ 16. A
delinquent offender is “subject to juvenile sanctions only,” Section 32A-2-3(C), and a
youthful offender is “subject to adult or juvenile sanctions,” Section 32A-2-3( I). A serious
youthful offender is “an individual fifteen to eighteen years of age who is charged with and
indicted or bound over for trial for first degree murder.” Section 32A-2-3(H). If convicted
of first degree murder, serious youthful offenders “cannot be rehabilitated using existing
resources in the time available” and “are excluded from the jurisdiction of the children’s
court.” Gonzales, 2001-NMCA-025, ¶ 16. We limit our analysis to youthful offenders.

{11} In order to invoke an adult sentence for a youthful offender, the children’s court
attorney is required to file a notice of intent to invoke an adult sentence. Section 32A-2-
20(A). “If the children’s court attorney has filed a notice of intent to invoke an adult

4
sentence and the child is adjudicated as a youthful offender,” the trial court must make the
following two findings before imposing an adult sentence:

(1) the child is not amenable to treatment or rehabilitation
as a child in available facilities; and

(2) the child is not eligible for commitment to an
institution for children with developmental disabilities or mental disorders.

Section 32A-2-20(B).

{12} The statute further directs the trial court to consider eight factors in order to make the
required findings:

(1) the seriousness of the alleged offense;

(2) whether the alleged offense was committed in an
aggressive, violent, premeditated or willful manner;

(3) whether a firearm was used to commit the alleged
offense;

(4) whether the alleged offense was against persons or
against property, greater weight being given to offenses against persons,
especially if personal injury resulted;

(5) the sophistication and maturity of the child as
determined by consideration of the child's home, environmental situation,
emotional attitude and pattern of living;

(6) the record and previous history of the child;

(7) the prospects for adequate protection of the public and
the likelihood of reasonable rehabilitation of the child by the use of
procedures, services and facilities currently available; and

(8) any other relevant factor, provided that factor is stated
on the record.

Section 32A-2-20(C).

{13} New Mexico’s statutory system of handling juvenile cases is unusual. See Daniel M.
Vannella, Notes, Let the Jury Do the Waive: How Apprendi v. New Jersey Applies to
Juvenile Transfer Proceedings, 48 Wm. & Mary L. Rev. 723, 753 (2006). Most states
operate a judicial waiver system, which allows a judge “to waive juvenile court jurisdiction
so that the juvenile may be tried as an adult.” Id. at 739 (identifying forty-five states and the

5
District of Columbia as applying a judicial waiver system). “The New Mexico [L]egislature
ha[s] created a unique juvenile transfer system: all juveniles [are] tried in juvenile court,
after which the judge [may] sentence certain offenders as adults following an amenability
hearing.” Id. at 753. Thus, in the typical system, the waiver proceeding occurs at the
beginning of a case and determines whether an offender will be placed in the juvenile or the
adult system. This initial decision governs the case for the entirety of the criminal process:
from trial to sentencing. In New Mexico, the offender—unless charged with first degree
murder—is tried entirely within the juvenile system, and whether to impose adult sanctions
is only considered at the sentencing phase. See Waterfall, supra, at 232-33.

{14} Child argues that the holding of the United States Supreme Court in Apprendi,
together with its subsequent related cases, requires that the determination about whether a
youthful offender is amenable to treatment under Section 32A-2-20(B)(1) must be made by
a jury and be proved beyond a reasonable doubt. In Gonzales, however, this Court held that
“Apprendi is inapplicable to [amenability] findings.” 2001-NMCA-025, ¶ 32. The State
argues that this Court’s opinion in Gonzales should remain controlling. “We review issues
of statutory and constitutional interpretation de novo.” State v. Lucero, 2007-NMSC-041,
¶ 8, 142 N.M. 102, 163 P.3d 489. We first assess the circumstances and holdings in the
Apprendi line of cases, and we then turn to Gonzales.

2. Apprendi

{15} Thirty-two years prior to the Apprendi decision, the Supreme Court of the United
States decided Duncan v. Louisiana, 391 U.S. 145 (1968). In that case, the Court held that
the Due Process Clause of the Fourteenth Amendment required the states to afford the Sixth
Amendment right to a jury trial to defendants charged with serious criminal offenses. Id. at
149, 158. In so holding, the Court stated that “the right to jury trial in serious criminal cases
is a fundamental right and hence must be recognized by the [s]tates as part of their obligation
to extend due process of law to all persons within their jurisdiction.” Id. at 154. Decades
later, in Apprendi, the question before the Court was “whether the Due Process Clause of the
Fourteenth Amendment requires that a factual determination authorizing an increase in the
maximum prison sentence . . . be made by a jury on the basis of proof beyond a reasonable
doubt.” 530 U.S. at 469. Thus, the primary concern of the Apprendi Court was to explain
that the scope of the Sixth Amendment right—whether due process protections require a jury
to make any findings of facts necessary to increase a basic sentence. See id. at 476-77.

{16} The defendant in Apprendi was charged with and pleaded guilty to, among other
things, second degree possession of a firearm for an unlawful purpose. Id. In the plea
agreement, the state indicated that it could request the court to enhance the defendant’s
sentence with respect to that count, based on grounds that the offense “was committed with
a biased purpose.” Id. at 470. The trial court found, by a preponderance of the evidence,
that the defendant had “a purpose to intimidate” and applied the sentence enhancement. Id.
at 471 (internal quotation marks and citation omitted).

{17} The Sixth Amendment to the United States Constitution guarantees that “[i]n all
criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an

6
impartial jury.” U.S. Const. amend VI. Read together with the Fourteenth Amendment,
“these rights indisputably entitle a criminal defendant to a jury determination that [he] is
guilty of every element of the crime with which he is charged, beyond a reasonable doubt.”
Apprendi, 530 U.S. at 477 (alteration in original) (internal quotation marks and citation
omitted). Historically, “trial by jury has been understood to require that the truth of every
accusation . . . should afterwards be confirmed by the unanimous suffrage of twelve of [the
defendant’s] equals and neighbors.” Id. (second alteration in original) (emphasis omitted)
(internal quotation marks and citation omitted). Thus, “any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Id. at 525 (internal quotation marks and citation
omitted). “[T]he relevant inquiry is one not of form, but of effect—does the required finding
expose the defendant to a greater punishment than that authorized by the jury’s guilty
verdict?” Id. at 494.

{18} The Apprendi Court characterized the underlying offense—weapons possession—and
the enhancement—biased purpose—as “two acts that [the state] has singled out for
punishment” because the defendant was threatened “with certain pains if he unlawfully
possessed a weapon and with additional pains if he selected his victims with a purpose to
intimidate them because of their race.” Id. at 476. The enhancement statute required a
second showing of intent, apart from the intent requirement of the underlying offense, id. at
493, and the effect of applying the enhancement transformed a second degree offense into
a first degree offense. Id. at 494. For these reasons, the Apprendi Court held that the
sentencing scheme was “an unacceptable departure from the jury tradition that is an
indispensable part of our criminal justice system.” Id. at 497.

{19} As discussed before, the McKeiver Court held that there is no Sixth Amendment right
to a jury trial in juvenile proceedings. See 403 U.S. at 545. As a result, there may be a
preliminary question as to the applicability of Apprendi when there is no Sixth Amendment
right to a jury trial, and the concurring opinion contains two approaches that would allow
application of Apprendi notwithstanding McKeiver. Special Concurrence ¶ 65. This issue,
however, was not raised or briefed by the parties. Nor was the issue addressed in Gonzales,
2001-NMCA-025. At this juncture, we are reluctant to address this question in the absence
of argument or authority. Accordingly, because Child frames his question as whether we
should overrule the holding of Gonzales and because the State does not raise an objection
based on McKiever, we will phrase the issue presented in this appeal as it was set forth in
Gonzales: “whether the due process clause of the Fourteenth Amendment to the United
States Constitution requires that the Section 32A-2-20(B) findings be made by a jury beyond
a reasonable doubt.” 2001-NMCA-025, ¶ 20. Thus, we continue our analysis to consider
whether the rights defined in Apprendi and its progeny are applicable to amenability
hearings under Section 32A-2-20(C). We evaluate this question in light of the recent line
of United States Supreme Court cases interpreting Apprendi, beginning with Ring v. Arizona,
536 U.S. 584 (2002), and concluding with Oregon v. Ice, __U.S. __, 129 S. Ct. 711 (2009).

3. From Ring to Ice

{20} Two years after deciding Apprendi, the Supreme Court of the United States

7
considered Arizona’s death penalty sentencing procedures. Ring, 536 U.S. at 588-89. Under
Arizona law, the trial court determined whether the death penalty was justified by the
presence of aggravating factors. Id. at 588. The Ring Court concluded that this procedure
did not comport with Apprendi because “[c]apital defendants, no less than noncapital
defendants, . . . are entitled to a jury determination of any fact on which the legislature
conditions an increase in their maximum punishment.” Ring, 536 U.S. at 589. Two years
after that, the Court decided Blakely v. Washington, 542 U.S. 296 (2004). In that case, the
trial court enhanced the defendant’s sentence based on a finding that the crime had been
committed with deliberate cruelty. Id. at 298. The Blakely Court applied Apprendi to
conclude that the trial court “could not have imposed the exceptional [ninety]-month
sentence solely on the basis of the facts admitted in the guilty plea.” Blakely, 542 U.S. at
301, 304. Thus, the Court reversed the defendant’s sentence, remarking that

[t]he Framers would not have thought it too much to demand that, before
depriving a man of three more years of his liberty, the [s]tate should suffer
the modest inconvenience of submitting its accusation to the unanimous
suffrage of twelve of his equals and neighbours, rather than a lone employee
of the [s]tate.”

Id. at 313-14 (internal quotation marks and citation omitted).

{21} The next case in line is United States v. Booker, 543 U.S. 220 (2005). In Booker, a
divided Court held that the federal sentencing guidelines implicate the holdings in Apprendi
and Blakely. See Booker, 543 U.S. at 243-44. A different majority further concluded that
the mandatory provisions of the guidelines were unconstitutional under the lens of Apprendi.
Booker, 543 U.S. at 245. Following Booker, the Supreme Court handed down Cunningham
v. California, 549 U.S. 270 (2007), which dealt with California’s determinate sentencing
law. Id. at 274. Under California law, the defendant was convicted of a crime that carried
three possible sentences—six, twelve, or sixteen years. Id. at 275. The trial court was
obligated to impose the twelve-year sentence unless it found aggravating factors. Id. The
Supreme Court considered the sentencing scheme under the Apprendi line of cases and
determined that “[f]actfinding to elevate a sentence from [twelve] to [sixteen] years, our
decisions make plain, falls within the province of the jury employing a beyond-a-reasonable-
doubt standard, not the bailiwick of a judge determining where the preponderance of the
evidence lies.” Cunningham, 549 U.S. at 273, 292. The Cunningham Court held that
because the determinate sentencing scheme “authorizes the judge, not the jury, to find the
facts permitting an upper[-]term sentence, the system cannot withstand measurement against
our Sixth Amendment precedent.” Id. at 293. Recently, our Supreme Court has applied
Apprendi in the context of sentence enhancements based on aggravating factors. State v.
Frawley, 2007-NMSC-057, ¶ 1, 143 N.M. 7, 172 P.3d 144.

{22} The most recent case in the Apprendi line is Ice, decided nine years after Apprendi.
Ice establishes a threshold inquiry for the application of Apprendi: unless the jury played
a historical role in the issue to be decided, Apprendi’s “core concern is inapplicable.” Ice,
129 S. Ct. at 718. We thus consider Ice and whether it proscribes the application of
Apprendi under the present circumstances. The issue before the Ice Court was whether the

8
Sixth Amendment required a jury determination of the facts necessary to impose
consecutive, rather than concurrent, sentences. 129 S. Ct. at 714-15. The controlling state
statute in Ice required sentences to run concurrently unless the trial court found certain facts,
in which case the court could order consecutive sentences. Id. at 715. The defendant argued
that he had a Sixth Amendment right to have a jury find the facts that permitted consecutive
sentencing. Id. at 716. The Ice Court determined that the “historical record demonstrates
that the jury played no role in the decision to impose sentences consecutively or
concurrently,” id. at 717, that consecutive sentences were the prevailing historical practice,
id. at 718, and that the state statute establishing concurrent sentences as the default merely
granted statutory protections that were “meant to temper the harshness of the historical
practice.” Id. Thus, Apprendi did not apply. Ice, 129 S. Ct. at 719.

4. Ice and Amenability Hearings

{23} The State relies on Ice for the proposition that Apprendi does not apply to
amenability hearings because the amenability determination for youthful offenders has not
historically been decided by a jury. In Ice, the Court evaluated the history of the jury’s role
in sentencing to determine whether the judge or the jury traditionally decided the specific
issue of concurrent or consecutive sentences. The application of Ice is not so straightforward
in the context of juvenile sentencing. As explained in Gonzales, amenability hearings for
sentencing purposes were incorporated into the New Mexico juvenile justice system by the
1993 amendments to the Children’s Code. 2001-NMCA-025, ¶¶ 15-18. Under Section 32A-
2-20(B), amenability findings are made by judges, but this does not answer our question.
Expanding the time frame, we observe that throughout history, juveniles have received a
range of treatment by the courts. As we have described, at common law, children over
fourteen were treated as adults and children between seven and fourteen could be treated as
adults for purposes of trial and sentencing. See Fain, supra, at 498-99. After the national
policy changes at the turn of the century, the juvenile courts emerged, and the state was
given “a parens patriae interest in preserving and promoting the welfare of the child.” Tina
Chen, Notes and Comments, The Sixth Amendment Right to a Jury Trial: Why is it a
Fundamental Right for Adults and Not Juveniles?, 28 J. Juv. L. 1, 3 (2007) (internal
quotation marks and citation omitted). To achieve the goals of the reformers, children were
tried “at informal proceedings without a jury.” Id. at 2 (internal quotation marks and citation
omitted). “The informal nature of the juvenile justice system set few guidelines to be
followed and gave judges great discretion in deciding what types of resources and evidence
are to be presented.” Id. at 3. Over time, these juvenile proceedings were infused with
certain constitutional safeguards; a jury trial, however, is not constitutionally mandated by
the Sixth Amendment in juvenile court proceedings. See McKeiver, 403 U.S. at 545. Thus,
it could be argued that the historical trend in juvenile court systems has been to afford juries
no role in juvenile proceedings.

{24} This characterization, however, is misleading. A juvenile who is transferred to the
adult system is afforded the constitutional rights of an adult, presumably including the jury
trial right, and that juvenile is sentenced as an adult, with the attendant Apprendi protections.
The offender who remains in the juvenile system is afforded the benefits of that system and
its sentencing procedures, but need not be afforded the right to a jury trial. It is therefore not

9
the status of the offender as a juvenile that determines the sentencing scheme and attendant
protections. Rather, the sentencing scheme is determined by the decision to place the
offender in the adult or the juvenile system. Consequently, instead of considering whether
juries have historically had a role in juvenile proceedings, we evaluate whether juries have
historically made the determinations that lead to a juvenile being placed in one system or the
other.

{25} In New Mexico, as we have explained, that determination is made at a post-guilt-
phase amenability hearing. See § 32A-2-20(B)(1). This proceeding is similar to the transfer
proceedings that are held in most other jurisdictions in that both proceedings result in a
determination of a juvenile’s legal status. We acknowledge that most of those jurisdictions
have held that Apprendi does not apply to transfer proceedings. See Vannella, supra, at 751.
In general, courts have offered three bases for not applying Apprendi to transfer proceedings:
(1) adequate procedural safeguards exist in the juvenile system, (2) transfer proceedings are
jurisdictional in nature, and (3) introduction of a jury will erode the special protections
offered to offenders who benefit from the juvenile system. See id. at 751-53 (citing cases
to that effect). We are not persuaded that the reasoning applying to transfer proceedings
requires us to foreclose the application of Apprendi to post-guilt-phase amenability hearings.

{26} Most importantly, post-guilt-phase amenability hearings are not jurisdictional.
Transfer proceedings take place before trial, immediately after charges are instigated. In
those states, the transfer hearing answers a purely legal question—in which court will the
juvenile be charged? See People v. Beltran, 765 N.E.2d 1071, 1076 (Ill. App. Ct. 2002)
(explaining that a transfer hearing is “dispositional, not adjudicatory” and that “the hearing
determines not the minor’s guilt but the forum in which his guilt may be adjudicated”). In
New Mexico the decision to treat a youthful offender as an adult (1) does not occur until
guilt has been determined, (2) is not a question of law but instead is a factual determination,
and (3) affects only the offender’s status for sentencing purposes. Thus, in New Mexico, the
amenability determination is a means of gauging whether an offender should be exposed to
a particular sentence and not a means of determining what court will have jurisdiction over
the offender, as is the case in transfer jurisdictions.

{27} In turning to our inquiry, we observe that because post-guilt phase amenability
hearings are unusual and of relatively recent development, we have little historical
information on which to rely. Prior to Ice, however, courts applied Apprendi without
stopping to evaluate the historical jury function. As Ice made no pretense of overruling these
cases, we will compare amenability determinations to the types of proceedings considered
by earlier cases, as well as to the sentencing scheme that was evaluated in Ice itself.

{28} In Ice, the Supreme Court of the United States considered consecutive and concurrent
sentencing and concluded that such a determination has been traditionally the province of
the trial judge. 129 S. Ct. at 717-18. The Ice Court explained that concurrent and
consecutive sentencing involves discrete sentences for multiple offenses, and there was no
question that the jury found the facts necessary to impose the sentences related to each of the
multiple offenses. See id. at 714. The only issue was whether the trial court had the
discretion to find facts that would cause those sentences to run consecutively, rather than

10
simultaneously.

{29} In another context, this Court has considered whether a hearing to determine whether
a defendant is competent to stand trial requires the jury protections afforded by Apprendi.
State v. Flores, 2005-NMCA-135, ¶¶ 36-39, 138 N.M. 636, 124 P.3d 1175. “Competency”
is defined as “[a] criminal defendant’s ability to stand trial, measured by the capacity to
understand the proceedings, to consult meaningfully with counsel, and to assist in the
defense.” Black’s Law Dictionary 302 (8th ed. 2004). The Flores Court explained that (1)
competency is not an element of an offense and (2) a competency determination does not
enhance or increase a defendant’s sentence. 2005-NMCA-135, ¶ 39. Therefore, Apprendi
was not triggered. Flores, 2005-NMCA-135, ¶ 39.

{30} The Ring Court considered whether a jury was required to find facts supporting an
aggravating factor that would have increased the defendant’s statutory sentence from life
imprisonment to the death penalty. 536 U.S. at 588-89, 597. An “aggravating” circumstance
or factor is “[a] fact or situation that increases the degree of liability or culpability for a
criminal act.” Black’s Law Dictionary, supra, at 259. The Ring Court stated that the
statutory aggravating factors “operate as ‘the functional equivalent of an element of a greater
offense,’” and as a result, “the Sixth Amendment requires that they be found by a jury.” 536
U.S. at 609 (quoting Apprendi, 530 U.S. at 494 n.19 (describing an increase beyond the
maximum authorized statutory sentence)). As a result, the Court applied the reasoning of
Apprendi to the facts of the case. Ring, 536 U.S. at 609; see Cunningham, 549 U.S. at 274-
75 (applying Apprendi to aggravating circumstances in noncapital cases).

{31} In our view, the present case is distinguishable from Ice and Flores. In Ice, the jury
found the facts that supported the charged offenses and imposed sentence for each offense.
129 S. Ct. at 715-16. The only determination for the trial court was the manner in which
those sentences would be served. In the present case, Child did not plead to the facts that
would support an adult sentence—those additional facts were reserved for determination in
an amenability hearing. See Cunningham, 549 U.S. at 290 (“If the jury’s verdict alone does
not authorize the sentence, if, instead, the judge must find an additional fact to impose the
longer term, the Sixth Amendment requirement is not satisfied.”). The competency
determination in Flores was designed to determine the defendant’s ability to stand trial for
the charged crimes. Such a proceeding has no bearing on the facts necessary to convict the
defendant or impose a sentence. We are thus unpersuaded that an amenability hearing can
reasonably be compared to consecutive or concurrent sentencing or to competency
proceedings.

{32} Turning to the analysis in Ring, a finding of non-amenability may have the same
effect as an aggravating factor: to increase the defendant’s degree of criminal liability from
a juvenile sanction to an adult sentence. Whereas the jury found all of the necessary facts
to impose a particular sentence in Ice, an amenability determination adds to the accumulation
of facts necessary to impose a sentence. Sentencing is not possible until the amenability
hearing has been conducted. Thus, amenability findings “operate as the functional
equivalent of an element of a greater offense.” Ring, 536 U.S. at 609 (internal quotation
marks and citation omitted).

11
{33} Comparing the types of proceedings, we conclude that amenability findings are
similar to aggravating factors and, as such, are within the jury’s exclusive province. See Ice,
129 S. Ct. at 716-17 (assigning “certain facts to the jury’s exclusive province” under
Apprendi and acknowledging that Apprendi applies to Cunningham); Cunningham, 549 U.S.
at 288 (applying Apprendi to aggravating factors). Because we are satisfied that the holding
in Ice does not prevent the application of Apprendi, we consider whether there is sufficient
basis to overrule Gonzales.

5. Gonzales

{34} In Gonzales, this Court was directly confronted with the question in the present case:
whether the State is required to prove the Section 32A-2-20(B) findings “to a jury beyond
a reasonable doubt before a court may exercise its discretion to sentence a child as an adult.”
2001-NMCA-025, ¶ 1. This Court held that Apprendi did not require a jury determination
of amenability. Gonzales, 2001-NMCA-025, ¶ 1. In order to justify departing from a prior
holding, a number of factors may be material:

1) whether the precedent is so unworkable as to be intolerable; 2) whether
parties justifiably relied on the precedent so that reversing it would create an
undue hardship; 3) whether the principles of law have developed to such an
extent as to leave the old rule no more than a remnant of abandoned doctrine;
and 4) whether the facts have changed in the interval from the old rule to
reconsideration so as to have robbed the old rule of justification.

State v. Martinez, 2006-NMSC-007, ¶ 28, 139 N.M. 152, 130 P.3d 731 (internal quotation
marks and citation omitted). We consider only the third factor to be relevant to our current
analysis and evaluate Gonzales in light of that one factor.

{35} The Gonzales Court provided three bases for its holding: (1) amenability
proceedings do not increase the maximum penalty for a youthful offender, 2001-NMCA-
025, ¶¶ 31, 68; (2) amenability does not relate to culpability, id. ¶ 24; and (3) amenability
is a predictive determination, which is not well suited for jury consideration, id. ¶ 28. We
consider each point in order to determine whether the law has changed sufficiently to require
a departure from Gonzales.

a. Maximum Sentence

{36} Gonzales questioned whether the amenability determination actually had the effect
of imposing greater punishment than the statutory maximum. This Court focused on the
time of the plea bargain and noted that once an offender has notice that he has been
categorized as a youthful offender, the maximum sentence is the mandatory adult sentence.
Id. ¶ 31. In this respect, the amenability findings were not the determinative factors that led
to the adult sentence. Id. Instead, the initial categorization of the offender as a youthful
offender broadened the range of sentences to include the maximum adult sentence. Id.
Thus, a determination that an offender is not amenable to treatment does not result in a
sentence that is greater than the statutory maximum, and Apprendi is not implicated. See

12
Apprendi, 530 U.S. at 481 (“We should be clear that nothing in this history suggests that it
is impermissible for judges to exercise discretion—taking into consideration various factors
relating both to offense and offender—in imposing a judgment within the range prescribed
by statute.”).

{37} The Supreme Court of the United States, however, has since defined “‘statutory
maximum’ for Apprendi purposes [as] the maximum sentence a judge may impose solely on
the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542
U.S. at 303 (emphasis omitted). It thus appears that the statutory maximum is not based on
the maximum sentence of which a defendant has notice, whether by way of a plea agreement
or by statute. Instead, the statutory maximum is the maximum sentence that is supported by
the facts found by the jury or pleaded to by the defendant. This conclusion is further borne
out by Cunningham.

{38} As we have described, in Cunningham, the defendant was convicted of an offense
that was punishable by imprisonment for either six, twelve, or sixteen years. 549 U.S. at
275. The jury’s verdict supported the imposition of the twelve-year sentence, but the trial
court found additional facts and sentenced the defendant to sixteen years. Id. at 275-76. The
Cunningham Court concluded that the trial court did not have the “discretion to select a
sentence within a range of [six] to [sixteen] years.” Id. at 273, 292. The trial court was
instead required to “select [twelve] years, nothing less and nothing more, unless he found
facts allowing the imposition of a sentence of [six] or [sixteen] years.” Id. at 292. Because
state law authorized “the judge, not the jury, to find the facts permitting an upper[-]term
sentence,” the Cunningham Court held that California’s system violated the Sixth
Amendment. Id. at 293.

{39} Section 32A-2-20(A) states that “[t]he court has the discretion to invoke either an
adult sentence or juvenile sanctions on a youthful offender.” Similar to Cunningham, the
trial court does not have a range of available sentences between the minimum juvenile
sanction to the maximum adult sentence. Instead, the trial court may choose to apply either
the juvenile sentence or the adult sentence—but in order to apply the adult sentence, the trial
court is required to make additional factual findings to determine whether the offender is
amenable to treatment or eligible for commitment. See § 32A-2-20(B). This is exactly the
scenario that the United States Supreme Court rejected in Cunningham.

{40} The State argues that Section 32A-2-20(B) does not increase the sentence for any
offense, but instead permits the trial court to reduce the sentence of a youthful offender,
based on his status as a juvenile. To use the aggravated battery charge as an example, Child
was charged using the same statute under which an adult would have been charged, and he
was sentenced as an adult to three years in prison for that charge. Under the Delinquency
Act, for the same crime, Child would have been committed to “a facility for the care and
rehabilitation of adjudicated delinquent children” until the age of twenty-one. Sections 32A-
2-19(B)(1)(a), -20(F). The State essentially argues that the sentence attaches to the elements
of the crime charged, that Child pled to the elements of the crime, and therefore he pled to
the facts necessary to impose the adult sentence, thus eliminating any Apprendi difficulty.
The availability of a juvenile sentence under the Delinquency Act, the State contends,

13
“simply confers a statutory benefit on juveniles found guilty beyond a reasonable doubt of
committing a crime.” We disagree.

{41} The purpose of the Delinquency Act is to

remove from children committing delinquent acts the adult consequences of
criminal behavior, but to still hold children committing delinquent acts
accountable for their actions to the extent of the child’s age, education,
mental and physical condition, background and all other relevant factors, and
to provide a program of supervision, care and rehabilitation, including
rehabilitative restitution by the child to the victims of the child's delinquent
act to the extent that the child is reasonably able to do so[.]

Section 32A-2-2(A). A “delinquent act” is defined as “an act committed by a child that
would be designated as a crime under the law if committed by an adult.” Section32A-2-
3(A). A “delinquent child” is “a child who has committed a delinquent act.” Section 32A-2-
3(B). And a youthful offender—subject to either adult or juvenile sanctions—maintains his
classification as a “delinquent child.” Section 32A-2-3(I).

{42} The Legislature has thus removed children from the basic criminal scheme, first by
expressing an intent not to impose adult consequences and second, by differentiating an act
committed by a child from a crime committed by an adult, even if it is the very same act.
It is apparent that although the Delinquency Act uses the same statutes to define crimes that
are used to convict adults, the Delinquency Act is a separate system designed to rehabilitate
juvenile offenders. See Gault, 387 U.S. at 15-16 (“The child was to be ‘treated’ and
‘rehabilitated’ and the procedures, from apprehension through institutionalization, were to
be ‘clinical’ rather than punitive.”); Kent, 383 U.S. at 560-61 (“[I]t is implicit in [a juvenile]
scheme that non-criminal treatment is to be the rule—and the adult criminal treatment, the
exception which must be governed by the particular factors of individual cases.” (first
alteration in original) (internal quotation marks and citation omitted)); see also § 32A-2-6(B)
(providing the trial court with exclusive jurisdiction under the Delinquency Act over a
defendant under the age of eighteen who is charged with a delinquent act).

{43} The State argues that we should define the basic sentence for Apprendi purposes as
that determined by the statute delineating the charged crime—in the criminal code. Youthful
offenders, however, are tried and sentenced entirely under the Delinquency Act. See § 32A-
2-6. Under Section 32A-2-20(B) and (C), the juvenile sentence is the baseline sentence
because the adult sentence is available only if the court makes the required factual findings.
See § 32A-2-20(B) (stating that “the court shall make the following findings in order to
invoke an adult sentence”). As a result of the language of the statute, the State’s argument
that the adult definition of a crime determines the basic sentence for a juvenile found guilty
of that crime must fail.

{44} The State also argues that because the adult sentence is not always greater than the
juvenile sentence, “the application of Apprendi becomes arbitrary and wholly unrelated to
the circumstances or facts of a juvenile’s crimes.” Specifically, the State again points to a

14
juvenile’s conviction for aggravated battery. Without the firearm enhancement, the adult
sentence for this crime is three years in prison. See § 30-3-5(C) (aggravated battery is a third
degree felony); NMSA 1978, § 31-18-15(A)(9) (2005) (amended 2007) (third degree
felonies are subject to three years’ imprisonment). Under the Delinquency Act, a juvenile
who was seventeen at the time of the battery would have been subject to a commitment of
more than three years, until he turned twenty-one. See § 32A-2-20(F). Under those
circumstances, an adult sentence for aggravated battery would have been less than the
juvenile sanction.

{45} We acknowledge that Apprendi is only concerned with sentences that exceed the
sentence authorized by a jury’s verdict or a plea agreement. Blakely, 542 U.S. at 303.
Nevertheless, the facts of the case before us now involve a three-and-one-half-year juvenile
sanction as opposed to a twenty-five-year adult sentence. We therefore do not consider the
case in which the length of the juvenile sanction exceeds the length of the adult sentence.

{46} Accordingly, we conclude that (1) the maximum sentence is determined by the facts
in the jury’s verdict or a plea agreement and not by the range of sentences available in the
statute, and (2) a youthful offender’s sentence is first determined by the Delinquency Act and
not the criminal code. Finally, it is reasonable for the trial court to determine whether the
adult sentence for a charged crime will be greater than the juvenile sentence in order to
assess who will make the findings under Section 32A-2-20(B)—a jury or the trial court.

b. Culpability

{47} The Gonzales Court also observed that an amenability determination is distinct from
findings of fact related to the elements of the crime. 2001-NMCA-025, ¶ 24. “[W]hile
findings of guilt are measures of the degree of an individual’s criminal culpability, the
finding that a child is or is not amenable to treatment is a measure of a child’s prospects for
rehabilitation.” Id. Thus, any due process concerns raised by Apprendi were satisfied by a
“jury’s finding beyond a reasonable doubt that a child committed the offenses that form the
foundation permitting the court to sentence the child as an adult.” Gonzales, 2001-NMCA-
025, ¶ 25. The State agrees with this reasoning. After considering Ring and Frawley, we
cannot.

{48} The Ring Court, considering the imposition of the death penalty based on aggravating
factors, concluded that “[i]f a [s]tate makes an increase in a defendant’s authorized
punishment contingent on the finding of a fact, that fact—no matter how the [s]tate labels
it—must be found by a jury beyond a reasonable doubt.” 536 U.S. at 588, 602. Our
Supreme Court came to a similar conclusion regarding aggravating factors in Frawley, 2007-
NMSC-057. There, the issue was whether a noncapital sentence had been unconstitutionally
altered upward without a jury determination of aggravating circumstances—circumstances
apart from the elements of the offense. Id. ¶¶ 1, 22. The Frawley Court observed that “[a]
sentencing judge may exercise discretion to increase the basic sentence only after the judge
finds aggravating circumstances.” Id. ¶ 22. Because it was undeniable that the “law forbids
a judge to increase a defendant’s sentence unless the judge finds facts that the jury did not
find (and the offender did not concede), Frawley concluded that “the Sixth Amendment is

15
violated any time a defendant is sentenced above what is authorized solely by the jury’s
verdict alone.” Id. ¶ 23. Looking to Section 32A-2-20(B), the Legislature has made the
imposition of an adult sentence on a youthful offender contingent on additional findings of
fact—findings that are apart from those necessary to adjudicate guilt. See Cunningham, 594
U.S. at 288 (explaining that an “[a]n element of the charged offense, essential to a jury’s
determination of guilt, or admitted in a defendant’s guilty plea” does not constitute an
aggravating factor and that aggravating factors cannot contribute to the statutory maximum).

{49} In order to invoke the adult sentence, the trial court “shall make the following
findings,” including whether an offender is amenable to treatment and whether the offender
is eligible for commitment to an institution. Section 32A-2-20(B). In order to make those
determinations, the trial court is directed to consider a number of factors, including the
circumstances of the incident, the offender’s level of intent, personal attributes and history
of the offender, as well as “any other relevant factor, provided that factor is stated on the
record.” Section 32A-2-20(C). Accordingly, an adult sentence cannot be invoked, and the
juvenile sanction automatically applies unless the trial court makes the requisite findings.
See NMSA 1978, § 12-2A-4(A) (1997) (“‘Shall’ and ‘must’ express a duty, obligation,
requirement or condition precedent.”). The fact that an amenability determination is apart
from the elements of the charged crime has no bearing on whether Apprendi applies because
the additional facts necessary to determine whether a youthful offender is amenable to
treatment have the potential to increase the offender’s sentence.

{50} Gonzales also noted that the Apprendi Court “distinguished its holding from cases
dealing with fact-finding in capital sentencing on the grounds that it is the jury’s verdict of
guilty of first degree murder that exposes a defendant to the possibility of a death sentence.”
Gonzales, 2001-NMCA-025, ¶ 29. The United States Supreme Court has since rejected this
interpretation of Apprendi and held that juries are required to determine the additional
facts—aggravating circumstances—that expose a defendant to the death penalty. See Ring,
536 U.S. at 588-89.

c. Predictive Determination

{51} The Gonzales Court further reasoned that “while findings of guilt are based on
historical facts susceptible of proof beyond a reasonable doubt, a finding that a child is not
amenable to rehabilitation requires a prediction of future conduct based on complex
considerations of the child, the child’s crime, and the child’s history and environment.”
2001-NMCA-025, ¶ 24. This Court compared amenability findings to the findings necessary
for civil commitment and determined that a trial court, rather than a jury, is in a better
position to determine the amenability of a particular child. Id. ¶¶ 27-28.

{52} Since Gonzales, the United States Supreme Court has made clear that the right to a
jury trial is not tied to the proficiency of the fact finder. The right

does not turn on the relative rationality, fairness, or efficiency of potential
factfinders. Entrusting to a judge the finding of facts necessary to support a
death sentence might be an admirably fair and efficient scheme of criminal

16
 justice designed for a society that is prepared to leave criminal justice to the
[s]tate. . . . The founders of the American Republic were not prepared to
leave it to the [s]tate, which is why the jury-trial guarantee was one of the
least controversial provisions of the Bill of Rights. It has never been
efficient; but it has always been free.

Ring, 536 U.S. at 607 (alterations in original) (internal quotation marks and citation omitted).
Further, we are hesitant to compare amenability determinations to civil commitment
proceedings. Although both proceedings are prospective and consider the subject’s future
actions and abilities, a civil commitment proceeding does not have an effect on a criminal
sentence. Compare Black’s Law Dictionary, supra, at 1393 (defining “sentence” as “[t]he
judgment that a court formally pronounces after finding a criminal defendant guilty”), with
id. at 262 (defining a “civil commitment” proceeding as the “commitment of a person who
is ill, incompetent, drug-addicted, or the like, as contrasted with a criminal sentence”). Civil
commitment proceedings are unrelated to criminal prosecutions for existing charges and
therefore, do not implicate the same constitutional rights.

d. Viability of Gonzales

{53} Having reviewed Gonzales, we can no longer rely on its underpinnings to support the
holding that Apprendi does not apply to amenability hearings conducted under Section 32A-
2-20(B). When the adult sentence for a charged crime is greater than the basic juvenile
sanction for a youthful offender, amenability determinations have the effect of increasing the
offender’s sentence based on facts other than those necessary for the verdict. Section 32A-2-
20(B) and (C) dictate that the trial court is responsible for finding those additional facts and
according to the Apprendi line of cases, such a determination must be made by a jury.
Because the statute requires the trial court to find these additional facts, we must conclude
that Section 32A-2-20(B) and (C) are facially unconstitutional. See Frawley, 2007-NMSC-
057, ¶ 29. We further hold that our holding is a new rule, id. ¶ 35 (defining a “new rule” as
a decision that is an “explicit overruling of an earlier holding” (internal quotation marks and
citation omitted)), and that the rule should only be applied prospectively. See id. ¶¶ 38-44
(explaining that because a new rule affecting only sentencing, and not conviction, is a
procedural rule and because judicial factfinding does not seriously diminish accuracy, the
Frawley rule would apply only prospectively). As such, the rule will apply only to new
cases and those that are on direct review where the Apprendi issue has been preserved for
appeal. See id. ¶ 34.

{54} We remand the matter for Child to be resentenced. See id. ¶¶ 33, 45 (declining to
construct a remedy for the statute that the appellate court held to be unconstitutional under
Apprendi because “[t]he issue has not been adequately briefed and the question of how to
ultimately fix the constitutional problem lies with the Legislature”). We observe that
Frawley was decided on October 25, 2007, and in 2009, the Legislature amended Section
31-18-15.1 to require a jury determination of whether aggravating circumstances exist unless
a defendant has waived this right. Section 31-18-15.1, as amended by 2009 N.M. Laws ch.
163, § 1 (effective July 1, 2009).

17
B. Evidence Supporting the Amenability Determination

{55} Because we have remanded the matter for resentencing, we do not reach Child’s
argument regarding the sufficiency of the evidence to support the amenability determination.

C. Double Jeopardy

{56} Child also argues that his convictions for shooting at a motor vehicle resulting in
great bodily harm and aggravated battery resulting in great bodily harm are a violation of the
prohibition against double jeopardy. The State cites State v. Dominguez, 2005-NMSC-001,
137 N.M. 1, 106 P.3d 563, arguing that our Supreme Court has already concluded that
convictions under these statutes do not violate double jeopardy. We agree with the State.

{57} The United States Constitution prohibits the states from twice exposing a citizen to
punishment for the same offense. See id. ¶ 5. Double jeopardy protects against both
multiple prosecutions for the same offense and multiple punishments for the same course of
conduct. See id. Child contends that his convictions amount to multiple punishments for a
single act—shooting at the victims’ car. In order to determine whether the convictions
violate double jeopardy, we evaluate two factors: (1) whether the conduct was unitary and
(2) whether the Legislature intended to create separately punishable offenses. Id.

{58} In Dominguez, the defendant was convicted of aggravated battery and shooting at or
from a motor vehicle. Id. ¶ 17. There was no dispute that the involved conduct—shooting
from a vehicle—was unitary, and the Dominguez Court focused on the Legislature’s intent.
See id. ¶¶ 17-18. The Court first concluded that each of the crimes included an element that
the other crime did not: aggravated battery required the intent to injure and shooting at or
from a motor vehicle required the discharge of a firearm at or from a vehicle. Id. ¶ 18.
Based on this, the Court acknowledged a presumption that the Legislature intended for these
two crimes to be separately punishable. Id.

{59} Next, the Court considered the different social goals of the two crimes and concluded
that the aggravated battery statute was designed to protect against bodily injury, while the
shooting at or from a motor vehicle statute is meant to protect the public from “reckless
shooting at or from a vehicle.” Id. ¶ 19. Further, the Court noted that it was possible to
commit one of the crimes without committing the other. Id. ¶ 20. Firing a gun at or from
a vehicle could be accomplished absent the intent to injure another person, even if the
discharge of the weapon ultimately causes great bodily harm. Id. And, “of course, [there
are] a multitude of ways to commit aggravated battery without the involvement of a motor
vehicle.” Id.

{60} Child characterizes his convictions as aggravated battery resulting in great bodily
harm and shooting at or from a vehicle resulting in great bodily harm and argues that “it
would be impossible for [Child] to commit the shooting at a motor vehicle resulting in great
bodily harm without also committing an aggravated battery resulting in great bodily harm.”
We disagree. Child’s convictions were for shooting at a motor vehicle resulting in great
bodily harm and aggravated battery with a deadly weapon. Nothing about these charges

18
changes the analysis conducted by our Supreme Court in Dominguez: each crime includes
at least one different element, the social goals of the two crimes are different, and it is
possible to commit one crime without committing the other. Even though Child’s firing of
the weapon at or from the vehicle resulted in great bodily harm, the State was not required
to prove that Child had the intent to injure the victim. It was also possible to commit the
aggravated battery, even with a deadly weapon, without the use of a vehicle. We therefore
conclude that Dominguez controls, and Child’s convictions do not violate double jeopardy.
III. CONCLUSION

{61} We reverse the trial court’s amenability findings and remand for Child to be
resentenced. We affirm Child’s convictions for aggravated battery with a deadly weapon
and shooting at or from a motor vehicle resulting in great bodily harm.

{62} IT IS SO ORDERED.

____________________________________
CELIA FOY CASTILLO, Judge

I CONCUR:

____________________________________
CYNTHIA A. FRY, Chief Judge

JONATHAN B. SUTIN, Judge (specially concurring)

SUTIN, Judge (specially concurring).

{63} I concur in the result. I write separately because I do not agree with the rationale
employed by the majority in applying Apprendi, 530 U.S. 466, and its progeny as controlling
precedent. I think that the case should be remanded for further development of acceptable
rationales for requiring jury consideration of the amenability factors or, barring remand,
should be certified to our Supreme Court for consideration of rationales I discuss in this
separate opinion.

{64} The majority relies on Apprendi as applicable and controlling precedent. Apprendi
is grounded in the Sixth and Fourteenth Amendments. The majority is therefore holding that
the Sixth Amendment, together with the Fourteenth Amendment, requires the amenability
factors to be determined by a jury beyond a reasonable doubt (1) upon adjudication of a
juvenile as a youthful offender by the children’s court under the Children’s Code, and
(2) upon the children’s court’s decision as permitted under the Children’s Code to invoke
an adult sentence on the youthful offender. This process from beginning to end is a
children’s court adjudicatory process that is separate and distinct from the adult criminal
process. See NMSA 1978, § 32A-1-1 (1995) (naming Chapter 32A NMSA as the
“Children’s Code”); NMSA 1978, § 32A-1-4(C) (2003) (amended 2005 and 2009) (defining
the children’s court); NMSA 1978, § 32A-1-5 (1993) (establishing the children’s court);
§§ 32A-2-19, -20 (relating to adjudication of delinquent offenders as youthful offenders and

19
to disposition of youthful offenders). Yet, as the majority opinion acknowledges, McKeiver,
403 U.S. at 545, says that the Sixth Amendment right to a jury trial does not extend to such
juvenile adjudicatory processes. Therefore, in my view, Apprendi is not controlling based
on the rationale set out in the majority opinion. The majority applies Apprendi specifically
to adjudications of youthful offenders in separate and distinct juvenile proceedings based on
Apprendi’s Sixth Amendment foundation, even though under McKeiver, the Sixth
Amendment right to a jury trial does not extend to those very youthful offender, juvenile
proceedings.

{65} I have no problem applying Apprendi under a different rationale. Namely, as here,
when a juvenile is placed at risk of being treated as an adult who has been convicted of a
felony subject to adult punishment, the Sixth Amendment is applicable because, in reality,
the juvenile is treated as though he is an adult who is protected under the Sixth Amendment.
Nor do I have a problem applying Apprendi’s due process analyses in favor of jury
consideration of the factors even if the Sixth Amendment is not applicable under any
rationale, because New Mexico constitutionally and statutorily grants juveniles the right to
a jury trial, and also constitutionally grants juveniles due process of law. See N.M. Const.
art. II, §§ 12, 18; Peyton, 78 N.M. at 723, 437 P.2d at 722 (stating that juveniles charged
with a felony are guaranteed a jury trial in New Mexico under the New Mexico
Constitution). Thus, based on reasoning parallel to Apprendi’s federal constitutional law
analysis, and under our state constitutional and statutory right to a jury trial and our state due
process protections, the State is required to abide by the view that “any fact that increases
the penalty for a crime beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 489-90; Evitts v. Lucey,
469 U.S. 387, 400-02 (1985) (indicating that where the right to effective assistance of
counsel is granted by the state, procedures used and decisions made on the issue must accord
with due process); cf. In re L.M., 186 P.3d 164, 170 (Kan. 2008) (determining that McKeiver
was no longer applicable to the Kansas juvenile system, concluding “that the Kansas juvenile
justice system has become more akin to an adult criminal prosecution,” and holding “that
juveniles have a constitutional right to a jury trial under the Sixth and Fourteenth
Amendments”); Commonwealth v. Quincy Q., 753 N.E.2d 781, 788-90 (Mass. 2001)
(holding that juveniles have a right to a jury determination of the facts supporting the
imposition of an adult sentence), overruled on other grounds by Commonwealth v. King, 834
N.E.2d 1175 (Mass. 2005).

{66} The parties did not raise these rationales below or in this Court. These rationales
should be aired, given the fact that Apprendi, which indisputedly relies on a Sixth
Amendment right to a jury trial, cannot in the face of McKeiver be rationally applied to
youthful-offender adjudications in Children’s Code adjudicatory proceedings unless it is
applied under a rationale that the Sixth Amendment protects a juvenile who is placed at risk
of being treated as an adult who has been convicted of a felony subject to adult punishment.
I would prefer that the case be remanded for development of these issues or certified to the
Supreme Court for its consideration either under that Court’s apparent inherent discretion
to consider argument and authority not presented in the district court or in this Court, or after
receiving additional briefing.

20
{67} One final matter: I agree that the decisions in the transfer cases discussed in the
majority opinion at pages 19-20 should not be instructive or followed. I would not, however,
attempt to distinguish them as does the majority on the basis of any concept of jurisdiction
or for that matter on any rationale other than that the cases were not correctly decided. See
Jenny E. Carroll, Rethinking the Constitutional Criminal Procedure of Juvenile Transfer
Hearings: Apprendi, Adult Punishment and Adult Process, 61 Hastings L.J. (forthcoming
2009); Vannella, supra, at 755-70. The correct disposition is that when, as in New Mexico,
the juvenile adjudicatory process places a juvenile at risk of being treated as an adult
convicted of a felony and subject to adult punishment, the Sixth Amendment should be
applicable. This, in turn, brings Apprendi back into play.

____________________________________
JONATHAN B. SUTIN, Judge

Topical Index for State v. Rudy B., No. 27,589

CD CHILDREN
CD-CC Children’s Code
CD-CR Children’s Court
CD-ST Sentencing

CA CRIMINAL PROCEDURE
CA-JS Judgment and Sentence
CA-RJ Right to Trial by Jury

CL CRIMINAL LAW
CL-AG Aggravating or Mitigating Circumstances
CL-BA Battery
CL-ST Shooting Offences
CL-WO Weapons Offences

CT CONSTITUTIONAL LAW
CT-DJ Double Jeopardy
CT-TJ Trial by Jury

21