1997 -NMSC- 32, State v. Sosa

• Decision Date: 18 July 1997
• Docket Number: No. 23562,23562
• Citation: 1997 NMSC 32,943 P.2d 1017,123 N.M. 564
• Parties: , 1997 -NMSC- 32 STATE of New Mexico, Plaintiff-Appellee, v. Jesse SOSA, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 1017

943 P.2d 1017

123 N.M. 564, 1997 -NMSC- 32

STATE of New Mexico, Plaintiff-Appellee, v. Jesse SOSA, Defendant-Appellant.

No. 23562.

Supreme Court of New Mexico.

July 18, 1997.

[123 N.M. 567] Miller, Stratvert, Torgerson & Schlenker, P.A., Ruth O. Pregenzer, Albuquerque, for Defendant-Appellant.

Tom Udall, Attorney General, Marcia J. Milner, Max Shepherd, Assistant Attorneys General, Santa Fe, for Plaintiff-Appellee.

OPINION

BACA, Justice.

I.

¶1 Defendant, Jesse Sosa, appeals his conviction and sentencing for involuntary manslaughter, see NMSA 1978, § 30-2-3(B) (1994), shooting into an occupied vehicle causing great bodily harm, see NMSA 1978, § 30-3-8 (1993), and three counts of aggravated assault with a deadly weapon, see NMSA 1978, § 30-3-2(A) (1963). Sosa raises the following issues on appeal: whether the district court abused its discretion in sentencing Sosa as an adult rather than as a juvenile; whether the district court abused its discretion in restricting voir dire pertaining to juror bias against gangs; whether the district court abused its discretion in denying Sosa's motion for a new trial based on newly- discovered evidence; whether Sosa received ineffective assistance of counsel; whether the jury received ambiguous or erroneous jury instructions; and whether the sentencing court violated Sosa's right to be free from double jeopardy. We review this case pursuant to NMSA 1978, § 34-5-14(C) (1972) (matters appealed to court of appeals and certified to Supreme Court). We reverse Sosa's conviction for involuntary manslaughter, affirm the remaining convictions, and remand for resentencing and entry of an amended judgment.

II.

¶2 A drive-by shooting in Las Cruces, New Mexico left a high school student named Johnny Reyes dead. Seventeen year old Jesse Sosa was the driver of the car from which the fatal shot issued. Sosa and the shooter, Jesus Loera, were tried together. Jesse Saenz was charged with tampering with evidence and conspiracy to commit tampering with evidence for his involvement in the events following the shooting.

¶3 At trial Loera presented the following testimony to support his defense of imperfect self-defense. Loera had been the victim of two drive-by shootings, including an incident involving a gang member named Fernando, which caused him to be afraid for his life. On the night in question Sosa drove Loera and his friends to Las Cruces. Loera took a gun with him because he was afraid of being shot. The passengers of a truck driving near Sosa's car acted in a hostile manner towards the passengers of Sosa's car. Loera became afraid that Fernando was in the truck and, out of fear, pulled his gun and fired several random shots, killing Reyes.

¶4 Sosa also testified at trial. Apparently, while driving in Las Cruces, Sosa became fearful of the occupants of Reyes's truck because someone reached down for something under the seat. Sosa feared that the occupant of Reyes's truck was reaching for a gun. He also claimed that the shooting was committed in self-defense. Sosa falsely testified that he was not aware that Loera had a gun. During the sentencing hearing Sosa admitted that he knew Loera had a gun, but denied any knowledge that Loera intended to shoot at the occupants of the truck.

¶5 Sosa was acquitted of first degree murder and the lesser included offenses of second degree murder and voluntary manslaughter. He was convicted of involuntary manslaughter, shooting into an occupied vehicle causing great bodily harm, and three counts of aggravated assault with a deadly weapon. The district court sentenced Sosa as an adult to sixteen and a half years of incarceration.

III.

¶6 On appeal, we address the following issues: whether the district court abused its discretion in sentencing Sosa as an adult; whether the district court abused its discretion by prohibiting certain voir dire questions concerning jurors' attitudes towards gangs; whether the district court abused its discretion in denying Sosa's motion for a new trial based on newly-discovered evidence; whether Sosa received ineffective assistance of counsel; whether the jury instructions were fatally ambiguous or erroneous; and whether the trial court violated Sosa's right to be free from double jeopardy at the sentencing stage of the proceeding. The district court did not abuse its discretion in sentencing Sosa as an adult, in restricting the scope of voir dire on bias against gangs, or in denying Sosa a new trial. Sosa failed to establish that he received ineffective assistance of counsel. The majority of jury instructions were not so erroneous or ambiguous as to rise to the level of fundamental error. However, submission of the instruction on involuntary manslaughter constituted a fundamental and harmful error requiring reversal of the involuntary manslaughter conviction. Finally, Sosa was not subject to double jeopardy when he was sentenced for both shooting into an occupied vehicle and aggravated assault. We therefore reverse Sosa's conviction for involuntary manslaughter, affirm the remaining convictions, and remand this case to the district court for resentencing and entry of an amended judgment.

A.

¶7 Sosa contends that the district court abused its discretion on three occasions during the trial proceedings. This Court will find an abuse of discretion when the lower court's decision " 'is clearly against the logic and effect of the facts and circumstances of the case.' " State v. Apodaca, 1994 NMSC 121 p 23, 118 N.M. 762, 770, 887 P.2d 756, 764 (quoting State v. Simonson, 100 N.M. 297, 301, 669 P.2d 1092, 1096 (1983)). Furthermore, we will not find an abuse of discretion " 'unless we can characterize [the district court's determination] as clearly untenable or not justified by reason.' " 1994 NMSC 121 p 23, 887 P.2d 756 (quoting State v. Litteral, 110 N.M. 138, 141, 793 P.2d 268, 271 (1990)). The moving party bears the burden of establishing an abuse of discretion. See State v. Wiberg, 107 N.M. 152, 156-57, 754 P.2d 529, 533-34 (Ct.App.1988).

¶8 We begin with Sosa's claim that the district court abused its discretion by sentencing him as an adult. Under NMSA 1978, § 31-18-15.2(A) (1994) (defining serious youthful offender as used within Criminal Sentencing Act), Sosa is a serious youthful offender. Where a serious youthful offender is convicted of a lesser offense than first degree murder, the offender will be sentenced pursuant to the provisions of the Children's Code. See NMSA 1978, § 31-18-15.3(F) (1993) (serious youthful offender; disposition). However, the Children's Code, NMSA 1978, § 32A-2-20(B) (1995), allows the sentencing judge to invoke an adult sentence if certain findings in the record support the judge's determination that the offender is not amenable to treatment or rehabilitation as a child in available facilities. The court must make findings on the following seven statutory factors in making that 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 the alleged offense was against persons or against property, greater weight being given to offenses against persons, especially if personal injury resulted;

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

5) the record and previous history of the child;

6) 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

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

Section 32A-2-20(C).

¶9 The purpose of these findings is to show that the district court gave proper consideration to the issue of amenability to treatment or rehabilitation. See, e.g., State v. Doe, 97 N.M. 598, 600, 642 P.2d 201, 203 (Ct.App.1982) (evaluating similar provision of Children's Code and noting that findings demonstrate that consideration was given to amenability question). This determination is ultimately left to the discretion of the district court. See § 32A-2-20(A).

¶10 Sosa claims that the record reflects uncontradicted evidence that he is amenable to treatment as a child in available facilities. We disagree. The district court considered reports and testimony from the New Mexico Department of Corrections, a forensic psychologist, and the director of the Department of Psychological Services at the New Mexico Boys School in determining that Sosa was not amenable to treatment or rehabilitation as a child in available facilities. As required by statute, the court weighed several additional factors in arriving at the conclusion that Sosa should be sentenced as an adult. The serious nature of Sosa's offense, which resulted in the death of a young man, weighed in favor of sentencing Sosa as an adult. The judge expressly acknowledged that premeditation was established at trial based on: the testimony of the man who provided Sosa and Loera with the gun used in the shooting; the testimony of one of Sosa's passengers that Sosa uttered the following words just prior to the shooting, "Get ready. Do it now, do it now."; and Sosa's positioning of his car behind Reyes's truck in such a manner that Loera could easily shoot at the truck. The premeditated and violent nature of the shooting also weighed in favor of sentencing Sosa as an adult. The offense was against a person and resulted in a fatal personal injury, also lending support to an adult sentence. The judge found that only a mature person would be allowed to drop out of school, own a vehicle, father a child, maintain employment, and be out on the streets late at night, as Sosa had. Maturity also lends support for sentencing as an adult. Sosa's previous history, which included evidence of gang activity and use of firearms,...