State v. Nevarez ( 2011 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
4 errors or other deviations from the official paper version filed by the Court of Appeals and does
5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 29,175
10 MARTIN NEVAREZ,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
13 Fernando Macias, District Judge
14 Gary K. King, Attorney General
15 Albuquerque, NM
16 for Appellee
17 Chief Public Defender
18 J.K. Theodosia Johnson, Assistant Appellate Defender
19 Santa Fe, NM
20 for Appellant
21 MEMORANDUM OPINION
22 KENNEDY, Judge.
1 Defendant, a youthful offender sentenced as an adult, has appealed from his
2 convictions for second degree murder, shooting at or from a motor vehicle causing no
3 great bodily harm, and tampering with evidence. In his docketing statement,
4 Defendant argued that the district court erred by denying his pretrial request for a jury
5 determination of his amenability to treatment as a juvenile and to require that the State
6 prove his non-amenability beyond a reasonable doubt. [DS 4] We assigned this case
7 to the general calendar. Before briefing began, this Court issued an opinion in State
8 v. Rudy B., 2009-NMCA-104, ¶¶ 1, 53, 147 N.M. 45, 216 P.3d 810, in which we
9 decided that Apprendi v. New Jersey, 530 U.S. 466 (2000), applies to amenability
10 hearings of youthful offenders and, therefore, requires a jury to determine the facts
11 necessary to impose an adult sentence. The New Mexico Supreme Court granted
12 certiorari review of Rudy B. Upon this Court’s own motion, we issued an order that
13 stayed briefing in the current case, pending a decision by the Supreme Court in Rudy
14 B. The Supreme Court has issued its decision and reversed this Court. See State v.
15 Rudy B., 2010-NMSC-045, 149 N.M. 22, 243 P.3d 726. Applying the opinion of the
16 Supreme Court in Rudy B., we lifted the stay, reassigned this case to the summary
17 calendar, and proposed to affirm in a second notice.
18 Defendant filed a memorandum in opposition to our second notice, and a
19 motion to amend the docketing statement to add the issue of whether the district court
2
1 improperly denied Defendant’s notice of peremptory excusal. We issued a third
2 notice, continuing to propose summary affirmance of the district court’s determination
3 on Defendant’s amenability to treatment under Rudy B. and granted Defendant’s
4 motion to amend the docketing statement. Unpersuaded by Defendant’s arguments
5 for a mistrial for the district court judge’s denial of the peremptory excusal, however,
6 we proposed to affirm. Defendant has filed a second memorandum in opposition to
7 our third notice. We have considered Defendant’s arguments and remain
8 unpersuaded. We affirm.
9 Defendant’s second memorandum in opposition continues to argue that the
10 Sixth Amendment right to a jury trial extends to amenability determinations in
11 youthful offender proceedings in an effort to preserve his objection, mindful that the
12 United States Supreme Court may reverse the New Mexico Supreme Court’s decision
13 in Rudy B. [2nd MIO 1] This is duly noted. Without any new factual or legal
14 argument that would preclude the application of Rudy B., for the reasons stated in our
15 second notice, we affirm the district court’s order denying his pretrial request for a
16 jury determination of his amenability to treatment as a juvenile and to require that the
17 State prove his non-amenability beyond a reasonable doubt.
18 Defendant also continues to argue that for a youthful offender, the time limits
19 for the peremptory excusal of a judge are governed by the district court rules of
3
1 criminal procedure and, therefore, he should have been given another opportunity to
2 excuse Judge Macias after the State filed a grand jury indictment alleging the same
3 offenses as the delinquency petition. [2nd MIO 1-2] Under the circumstances,
4 Defendant does not persuade us that the denial of his late excusal of Judge Macias was
5 sufficient to warrant a mistrial.
6 This Court has held that “two separate criminal cases [before the same judge],
7 charging identical offenses against the same defendant, will be considered the same
8 case for peremptory challenge purposes.” State v. White, 2010-NMCA-043, ¶ 15, 148
9 N.M. 214, 232 P.3d 450 (looking at form over substance and concluding that the cases
10 were the same). Also, the purpose of a grand jury indictment in district court and a
11 preliminary hearing in children’s court is the same—“to determine whether probable
12 cause exists to support the allegations contained in the petition.” NMSA 1978, § 32A-
13 2-20(A) (2009); NMSA 1978, § 31-6-10 (1979) (stating that in order to indict a
14 defendant and charge him or her with offenses, the grand jury must find probable
15 cause). Defendant points out that the consequences of a finding of no probable cause
16 differ in district court as compared with children’s court. [2nd MIO 2] Defendant
17 states that where no probable cause is found in district court, there are no further
18 proceedings; whereas, in children’s court, no probable cause results in release from
19 detention, not a dismissal of the petition. [Id.]
4
1 Defendant’s previous arguments seemed to suggest that his objection to the
2 same judge presiding over the adult proceedings and the children’s proceedings was
3 that the penalty increases in district court. [1st MIO 6-7] Now, Defendant seems to
4 rely on a distinction between the children’s court and district court rules that provide
5 more leniency in district court upon a finding of no probable cause. We are not
6 persuaded that this is a showing of prejudice or is otherwise sufficient to warrant a
7 mistrial.
8 Also, Defendant continues to offer no explanation for why he did not excuse
9 Judge Macias when the delinquency petition was filed if the judge was so
10 objectionable to him. The indictment alleged the same facts as the delinquency
11 petition. There is no question that with allegations in children’s court of second
12 degree murder, shooting at a motor vehicle, and tampering with evidence, Defendant
13 was aware of the possibility that the case could easily be converted into an adult
14 criminal case. Instead of addressing why he did not excuse Judge Macias, who
15 presided over the serious allegations against him in children’s court, Defendant has
16 simply argued there are many reasons a judge may be acceptable when the only
17 sanctions available are juvenile, but not when the sanctions are a criminal conviction
18 and an adult sentence. [1st MIO 6-7]
5
1 Defendant’s argument, however, would require that criminal defendants and
2 juveniles accused of delinquent acts be given multiple opportunities to exercise
3 peremptory excusals of judges, and the rules do not reflect such an intent. See Rule
4 10-162(B); Rule 5-106(D) NMRA (stating the events that permit a peremptory
5 challenge within ten days of their occurrence). Several events subsequent to
6 indictment and arraignment could increase the penalty for an offense because
7 indictments are not required to reflect all possible aggravating circumstances or the
8 number of DWI offenses committed, for example. See State v. Coffin, 1999-NMSC-
9 038, ¶ 65, 128 N.M. 192, 991 P.2d 477 (“In New Mexico, aggravating circumstances
10 are not required to be formally charged in an indictment or ruled on by the grand jury
11 for the existence of probable cause.” (internal quotation marks and citation omitted));
12 State v. Anaya, 1997-NMSC-010, ¶ 25, 123 N.M. 14, 933 P.2d 223 (stating that
13 “because proof of three such convictions does not constitute an element of felony
14 DWI, a probable cause showing regarding the existence of three prior convictions was
15 not required in order to support jurisdiction in the district court”).
16 For these reasons and those stated in our third notice, we affirm the district
17 court’s denial of Defendant’s motion for a jury determination on his amenability to
18 treatment and the denial of Defendant’s peremptory excusal.
19 IT IS SO ORDERED.
6
1 _______________________________
2 RODERICK T. KENNEDY, Judge
7
1 WE CONCUR:
2 _________________________
3 MICHAEL E. VIGIL, Judge
4 _________________________
5 LINDA M. VANZI, Judge
8