State v. Rodriguez ( 2023 )

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-37324
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
CHRISTOPHER RODRIGUEZ,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Brett Loveless, District Court Judge
Raúl Torrez, Attorney General
Laurie Blevins, Assistant Attorney General
Santa Fe, NM
Margaret Crabb, Assistant Attorney General
John J. Woykovsky, Assistant Attorney General
Albuquerque, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Gregory B. Dawkins, Assistant Appellate Defender
Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
MEDINA, Judge.
{1} This appeal is again before us on remand from our Supreme Court in State v.
Rodriguez (Rodriguez II), 2023-NMSC-004, 528 P.3d 614, where the Court instructed
us to reach the merits of Defendant Christopher Rodriguez’s appeal of the district
court’s determination that he was not amenable to treatment or rehabilitation under the
Delinquency Act, NMSA 1978, §§ 32A-2-1 to -33 (1993, as amended through 2021). For
the reasons that follow, we affirm.
BACKGROUND
{2} Below, Defendant pleaded guilty to one count of aggravated burglary (deadly
weapon), contrary to NMSA 1978, Section 30-16-4(A) (1963); two counts of conspiracy
to commit aggravated burglary (deadly weapon), contrary to NMSA 1978, Section 30-
28-2 (1979) and Section 30-16-4(A); three counts of residential burglary, contrary to
NMSA 1978, Section 30-16-3(A) (1971); two counts of auto burglary, contrary to Section
30-16-3(B); and one count of unauthorized use of the card of another, contrary to NMSA
1978, Section 58-16-16(B) (1990). The district court then held an amenability hearing
and determined Defendant was not amenable to treatment or rehabilitation under
Section 32A-2-20, and imposed an adult sentence. Defendant then appealed the district
court’s determination of nonamenability.
{3} We originally reviewed this matter in State v. Rodriguez (Rodriguez I), A-1-CA-
37324, mem. op. (N.M. Ct. App. Nov. 27, 2019) (nonprecedential), where we dismissed
the appeal by holding Defendant had waived his right to appeal under the terms of his
plea agreement. Id. ¶¶ 8, 10. Because we did not give an overview of the facts
presented at the amenability hearing in Rodriguez I, we begin with an overview of the
factual and procedural history of the case.
{4} Starting in 2015, Defendant and his friends drove up and down residential blocks
in the Northeast Heights neighborhoods of Albuquerque, checking for vehicles with
unlocked doors and easily accessible homes on “almost [a] nightly” basis. They referred
to their criminal conduct as “car and house mobbing.” Defendant explained that his
codefendant’s later identified him as the second-in- command because he and
Jeremiah King, another codefendant were known as the “crazy” ones in the group, the
ones likely “to take it to the max,” and that Defendant took things to “extremes because
he thought it was cooler.”
{5} On June 26, 2015, Defendant and approximately eight others engaged in “car
and house mobbing” that resulted in the death of Steven Gerecke. The group was
intoxicated with alcohol and drugs, and proceeded to break into and steal cars, and
burglarize homes, while moving “as a pack.” King was the leader of the group and
carried a gun. A codefendant reported that “[D]efendant . . . wanted to take the gun that
night,” whereas Defendant denied requesting the gun and stated he had no intention of
using it.
{6} Defendant and others in the pack entered a residence on Kelly Ann Rd., NE,
taking the homeowner’s television, cell phone, car keys, and a wallet with credit cards.
The homeowner tried to defend his property and King, armed with a 9 mm gun, fired
three rounds at the homeowner, not striking him. The pack fled the residence in a stolen
SUV, which they took turns driving.
{7} Undeterred by the shooting, the pack drove to another neighborhood where a
witness reported seeing seven to ten subjects “wearing black bandanas, hats, and
skinny jeans” enter his neighbor’s house through the garage. The pack left the garage
and moved onto another residence at the northwest corner of the street, at which point
the witness lost sight of the pack. Ten minutes later, the witness heard three gunshots.
{8} Before these shots were fired, the pack had made its way up to another
residence on Chihuahua, NE, where Defendant and two codefendants entered a
residence. Moments later, King shot and killed Steven Gerecke. Defendant and other
members of the pack fled the scene with stolen property and continued mobbing homes
and vehicles, stealing a Lexus SUV and Ford Explorer. Later that day, Defendant and a
codefendant were captured on surveillance cameras using Mrs. Gerecke’s stolen debit
card at a McDonald’s and attempting to purchase clothing and other merchandise at a
Walmart.
{9} Defendant continued mobbing until he was apprehended two weeks later.
Because he was sixteen years old at the time, Defendant was detained at the Bernalillo
County Youth Services Center (BCYSC). A mere month after his apprehension,
Defendant was implicated in an escape plan involving other detained juveniles.
{10} A grand jury indictment charged Defendant with forty crimes, including an open
count of first degree murder. Defendant later pleaded guilty to multiple crimes as
previously detailed. In exchange for his guilty pleas, the State dismissed the remaining
charges of the indictment.
{11} Aggravated burglary is classified as a “youthful offender” offense, see § 32A-2-
3(J)(1)(k), and therefore the parties agreed that if the district court determined
Defendant was not amenable to treatment as a juvenile, Defendant’s sentences would
run consecutive for a period of up to thirty-one-and one-half years. The district court
ordered the Juvenile Probation and Parole Office (JPPO) to prepare a predisposition
report on Defendant’s amenability to treatment, as provided for under Section 32A-2-
17(A)(3).
Amenability Hearing
{12} Defendant was eighteen years old at the time of his May 12, 2017, amenability
hearing. The State presented the testimony of Albuquerque Police Department
Detective Jodi Gonterman, and Bernalillo County JPPO Officer Joan Castillo.1 Detective
Gonterman briefly described her involvement in the investigation of the events that led
to Defendant’s arrest. The key elements of Detective Gonterman’s testimony are
included above in the background summary of this opinion and will be discussed further
in the analysis section of this opinion.
{13} JPPO Officer Castillo testified that she was familiar with Defendant and met with
him every week for approximately two years while Defendant was detained at BCYSC
1JPPO Officer Castillo did not testify as an expert witness.
awaiting trial on this case and simultaneously serving probation in another. The purpose
of her visits with Defendant, as with other detained juveniles, was to ensure he was
“doing okay” and to answer any questions he might have regarding court hearings.
{14} JPPO Officer Castillo prepared Defendant’s baseline assessment and
amenability recommendation based on information from “all the professionals that had
been involved with [Defendant,]” including his history with the Children, Youth and
Families Department (CYFD), any treatment he may have received, how he interacted
with that care, his education, and upbringing. She also reviewed a forensic evaluation
report introduced into evidence during the hearing that was prepared by Dr. Christine
Johnson, Ph.D., a board certified clinical and forensic psychologist.
{15} While at BCYSC, Defendant participated in voluntary programs and therapies
designed to comfort juveniles, help them get a head start on services they would need
in the future, and to some extent address trauma and anger issues. Defendant also
engaged in ten to fifteen fights with other juveniles while at the BCYSC, four of which
resulted in separate delinquency referrals.
{16} As detailed in her written report, JPPO Officer Castillo reviewed Defendant’s
traumatic childhood with the court. She also testified Defendant told her he was
interested in completing counseling, and obtaining his GED or high school diploma.
{17} Consistent with her report, JPPO Officer Castillo testified that Defendant was
amenable to treatment in available CYFD facilities. However, in light of the fact that
Defendant’s participation in services in a CYFD facility would not be mandatory, JPPO
Officer Castillo conceded that Defendant would have to voluntarily engage in the
services in order to be rehabilitated. JPPO Officer Castillo’s report was reviewed and
approved by Jeanne Masterson, Associate Deputy Director for Field Services; Kelly Joe
Parker, Juvenile Probation Chief; Stephanie Kauffman, Juvenile Probation Supervisor;
and Elizabeth Hamilton, Behavioral Health Clinician Supervisor.
{18} The district court inquired, and JPPO Officer Castillo affirmed, that Defendant
had inconsistently sought voluntary counseling from a BCYSC licensed counselor,
CYFD received police reports regarding four of the fights Defendant engaged in while
detained at BCYSC, and that CYFD considered the four new referrals as new offenses,
three of them in violation of Defendant’s probation.
{19} Ten days after the amenability hearing, the district court issued its order
addressing the factors enumerated in Section 32A-2-20(C) and finding Defendant not to
be amenable to treatment as a juvenile in available facilities. We discuss the district
court’s relevant findings and conclusions in more detail below. The district court
sentenced Defendant to thirty-one years and six months, with seventeen years and six
months suspended.2
2This Court held in Rodriguez I—after raising the issue sua sponte—that Defendant waived his right to
appeal the district court’s determination of amenability under the stipulated waiver of defenses and appeal
DISCUSSION
{20} Defendant’s sole argument before us is his contention that the district court
abused its discretion when it found by clear and convincing evidence that he was not
amenable to treatment in available facilities. Specifically, Defendant contends the
district court “ignor[ed] the unanimous testimony” that he was amenable to treatment.
We disagree.
I. Standard of Review
{21} “We review the amenability determination for an abuse of discretion.” State v.
Nehemiah G., 2018-NMCA-034, ¶ 42, 417 P.3d 1175. We “will find an abuse of
discretion when the district court’s decision is clearly against the logic and effect of the
facts and circumstances of the case” or when the district court “exercises its discretion
based on a misunderstanding of the law.” Id. (text only) (citation omitted). “We view the
evidence in the light most favorable to the [district] court’s decision, resolve all conflicts
and indulge all permissible inferences to uphold that decision, and disregard all
evidence and inferences to the contrary.” State v. Trujillo, 2009-NMCA-128, ¶ 13, 147
N.M. 334, 222 P.3d 1040.
II. Amenability Determinations
{22} A district court imposing an adult sentence on a child under Section 32A-2-20(B)
must make two findings: “(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.” The court
shall consider the following eight factors in making its amenability determination:
(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;
of the plea and disposition agreement. See Rodriguez I, A-1-CA-37324, mem. op. ¶¶ 6, 8. Because the
district court’s sentence satisfied the terms of the waiver provision in the plea and disposition agreement,
this Court concluded that it was precluded from reviewing the merits of Defendant’s appeal, and
dismissed the case. See id. ¶¶ 9-10.
On certiorari review of Rodriguez I, our Supreme Court held “that a juvenile’s guilty plea may neither
waive the right to an amenability determination, nor can it waive the right to appeal the outcome of an
amenability determination,” thus reversing our holding. Rodriguez II, 2023-NMSC-004, ¶ 25 (citation
omitted). On remand, our Supreme Court instructed this Court to reach the original question presented in
Defendant’s appeal—whether the district court erred when determining that Defendant was not amenable
to treatment or rehabilitation. Id. ¶¶ 2, 26.
(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 maturity of the child as determined by consideration of
the child’s home, environmental situation, social and emotional health,
pattern of living, brain development, trauma history and disability;
(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). “To consider a factor, the court must think about this evidence
with a degree of care and caution. Further, the court must make findings as to each
factor.” Rodriguez II, 2023-NMSC-004, ¶ 11 (internal quotation marks and citation
omitted).
{23} Here, the district court entered extensive findings based on the testimony,
exhibits, and arguments of counsel prior to arriving at the conclusion that Defendant
should be sentenced as an adult. The district court considered Defendant’s baseline
assessment and chronological offense history, Dr. Johnson’s forensic evaluation report,
and the testimony of both JPPO Officer Castillo and Detective Gonterman when
determining that Defendant was not amenable to treatment or rehabilitation as a child in
available facilities. We briefly outline the district court’s consideration of the following
factors and the weight given to each.
{24} Seriousness of the alleged offense: The district court noted that the fact “a life
was lost during the course of the group’s activities on June 26, 2015,” demonstrated the
seriousness of the actions of the group. See § 32A-2-20(C)(1). Observing that the State
did not pursue murder or similar charges against Defendant for lack of evidence, the
court nonetheless determined that Defendant’s plea to aggravated burglary with a
deadly weapon was a serious offense.
{25} Whether the alleged offense was committed in an aggressive, violent,
premediated or willful manner: The district court expressly observed that the evidence
established that the group met and planned their mobbing activities, persisted in their
actions even after one person was shot at and another killed, and that the group
targeted homes at a time when people were likely to be home, thus increasing the
likelihood of confronting victims. See § 32A-2-20(C)(2).
{26} Whether a firearm was used to commit the offense: Under this third
consideration, the district court acknowledged that Defendant did not personally use a
firearm, but observed that Defendant knew King was armed with a gun, and knew the
gun was used previously the same night, yet continued in the mobbing, and entered a
guilty plea to aggravated burglary with a deadly weapon. See § 32A-2-20(C)(3).
{27} Whether the alleged offense was against persons or property: The district court
noted that although Defendant engaged in criminal activity that resulted in the killing of
Mr. Gerecke, Defendant’s convictions were for crimes against property and that
Defendant himself did not physically harm anyone. See § 32A-2-20(C)(4).
{28} The maturity of the child: The court extensively discussed the maturity of
Defendant as determined by his home, environmental situation, social and emotional
health, pattern of living, brain development, trauma history, and disability. See § 32A-2-
20(C)(5). In particular, it noted that both parents were in and out of prison, Defendant
witnessed domestic violence as well as his father’s death from a heroin overdose, and
the family moved frequently from one town or city to another. In addition, Defendant had
used drugs and alcohol since the sixth grade and was doing so daily by the time he was
sixteen.
{29} The record and previous history of the child: The district court considered that
Defendant’s actions resulted in eleven referrals to CYFD, including four while detained
in the present case. See § 32A-2-20(C)(6). Some of his referrals were handled
informally, though Defendant was given two years of probation for receiving/transferring
a stolen motor vehicle. The district court observed that three of Defendant’s newest
referrals violated the terms of his probation. The district court took note of Dr. Johnson’s
report that Defendant’s escalating intrusiveness while burgling had a high potential for
physical harm to others and that Defendant’s criminal history escalated from property
crimes to the more recent referrals for assault and battery while detained at BCYSC.
{30} The prospects for adequate protection of the public and the likelihood of
rehabilitation: To this end, the court noted again that Defendant had several new
referrals while detained for this case, even though Defendant admitted to Dr. Johnson
that he knew he should stay out of trouble. See § 32A-2-20(C)(7). The district court
considered Dr. Johnson’s recommendations that Defendant receive ongoing
intervention to address the issues from his past, that both JPPO Officer Castillo and Dr.
Johnson reported Defendant did not consistently participate in voluntary counseling,
and that the programs and counseling available to Defendant if he was sentenced as a
child would be entirely voluntary. Dr. Johnson also recommended close supervision
when Defendant returns to the community for a substantial amount of time. The district
court considered Dr. Johnson’s assessment of Defendant’s risk of recidivism, noting
that Dr. Johnson categorized Defendant as having nineteen of twenty-four risk factors
for aggressive recidivism, thirteen of them in the high risk category, and almost half of
the factors being static and not subject to change. Dr. Johnson concluded Defendant
was at “high risk for further violence, particularly in the [next six to twelve] months” and
at an “elevated risk for violence in the community.” The district court also considered
JPPO Officer Castillo’s testimony that programs and counseling at CYFD facilities are
not mandatory.
{31} After weighing each of the above factors, the district court concluded Defendant
had a “lengthy criminal history which demonstrates an escalation in the serious[ness] of
his crimes and the increased likelihood of harm to others.” Moreover, the court was
persuaded by Dr. Johnson’s report that Defendant is at high risk of recidivism and future
violence, and that “many of the factors lending to his future risk of violence are fixed and
cannot be changed.” Because Defendant did not make consistent use of the counseling
available at BCYSC, the district court was not convinced by testimony that Defendant
would take advantage of voluntary counseling if committed to CYFD and concluded
Defendant failed to demonstrate a willingness or desire to reform his behavior, embrace
pro-social goals, or fully take advantage of the help available. The district court
concluded Defendant was not amenable to treatment as a juvenile in available facilities.
{32} Defendant relies on Nehemiah G. to argue the district court erroneously rejected
the unanimous expert opinion that Defendant would be amenable to treatment in the
juvenile system. To the contrary, the district court’s written decision indicates the court
considered JPPO Officer Castillo’s opinion that Defendant’s rehabilitation in a juvenile
facility would be dependent on his voluntary participation in services and reports that
Defendant did not consistently participate in counseling for the two years he was
detained at BCYSC. To the extent JPPO Officer Castillo opined Defendant would
voluntarily participate in rehabilitative counseling, the district court, as the ultimate fact-
finder, was not required to adopt her opinion, and the district court’s written order
provides a rational basis for not doing so. See Nehemiah G., 2018-NMCA-034, ¶ 56
(recognizing that “a district court conducting an amenability hearing may disregard”
evidence presented by either party, including the testimony of experts).
{33} The district court’s order similarly establishes that it considered Dr. Johnson’s
assessment regarding Defendant’s nineteen out of twenty-four risk factors for
aggressive recidivism, thirteen of them in the high risk category, almost half of the
factors being static and not subject to change, and Dr. Johnson’s opinion that
Defendant was at “high risk for further violence,” and “elevated risk for violence in the
community.” See Medler v. Henry, 1940-NMSC-028, ¶ 20, 44 N.M. 275, 101 P.2d 398(“[I]t cannot be said that the trier of facts has acted arbitrarily in disregarding such
testimony, although not directly contradicted,” when “legitimate inferences may be
drawn from the facts and circumstances of the case that contradict or cast reasonable
doubt upon the truth or accuracy of the oral testimony.”). Given the extensive findings in
the district court’s order, all supported by evidence at the hearing, we cannot say that
the district court’s finding of nonamenability was “against the logic and effect of the facts
and circumstances of the case” or “a misunderstanding of the law.” Nehemiah G., 2018-
NMCA-034, ¶ 42 (internal quotation marks and citation omitted). Therefore, we hold that
the district court did not abuse its discretion when finding by clear and convincing
evidence that Defendant was not amenable to treatment in the juvenile system.
CONCLUSION
{34} Based on the foregoing, we conclude the district court did not abuse its discretion
and affirm the finding of nonamenability.
{35} IT IS SO ORDERED.
JACQUELINE R. MEDINA, Judge
WE CONCUR:
JENNIFER L. ATTREP, Chief Judge
J. MILES HANISEE, Judge