State v. Santillanes ( 2000 )

A. JOSEPH ALARID, Judge,

specially concurring.

{29} While the opinion’s discussion of the general/speciñc rule relies upon a fair reading of Yarborough, 1996-NMSC-068, ¶ 27, 122 N.M. 596, 930 P.2d 131, and moreover, is consistent with our recent decision in State v. Guilez, 1999-NMCA-127, ¶ 12, 128 N.M. 93, 990 P.2d 206 (reckless driving statute controls over child abuse statute where child injured through unlawful operation of a motor vehicle), I believe that were we presented with this issue as a matter of first impression it would be entirely supportable to hold that the vehicular homicide statute and the criminal child abuse statute are equally specific when applied under the facts of the present case. If one defines the relevant “subject matter” for the purposes of the general/specific rule to be the instrumentality by which a child’s life is taken, then under Yarborough, the vehicular homicide statute contained in the Motor Vehicle Code arguably would be the more specific statute for purposes of the instant homicide prosecutions; however, if one defines the relevant subject matter to be a class of victims — i.e., children, then as to the four minor victims in this ease the criminal child abuse statute, with its more severe penalties, arguably is the more specific statute.

{ 30} In the present case, I find the general/specific rule to be an uncertain guide for determining whether the Legislature intended to funnel prosecutions for child abuse resulting in death through the Motor Vehicle Code merely because the children’s deaths occurred as the result of the Defendant’s operation of a motor vehicle. While I concur in the opinion of the court, I would welcome clarification of this issue from the Supreme Court or the Legislature.