State v. Gonzales, 20,998.

• Citation: 2001 NMCA 25,130 N.M. 341,24 P.3d 776
• Decision Date: 26 March 2001
• Docket Number: No. 20,998.,20,998.
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Colin GONZALES, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

24 P.3d 776

130 N.M. 341

2001 NMCA 25

STATE of New Mexico, Plaintiff-Appellee, v. Colin GONZALES, Defendant-Appellant.

No. 20,998.

Court of Appeals of New Mexico.

March 26, 2001.

Certiorari Granted May 9, 2001.

Patricia A. Madrid, Attorney General, M. Victoria Wilson, Ass't Attorney General, Santa Fe, NM, for Appellee.

Phyllis H. Subin, Chief Public Defender, Carolyn R. Glick, Ass't Appellate Defender, Santa Fe, NM, for Appellant.

Certiorari Granted, No. 26,902, May 9, 2001.

OPINION

PICKARD, Chief Judge.

{1} Defendant appeals his adult sentence as a consequence of the trial court's findings that he was not amenable to treatment as a juvenile or eligible for commitment to an institution for the mentally disordered or developmentally disabled pursuant to NMSA 1978, § 32A-2-20 (1996). Defendant argues that the state and federal constitutions require the State to prove these findings to a jury beyond a reasonable doubt before a court may exercise its discretion to sentence a child as an adult. In support of his federal constitutional argument, Defendant relies on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in which the Supreme Court struck down a New Jersey law that allowed a court to increase a maximum criminal sentence based on facts not found by a jury beyond a reasonable doubt. In addition to his constitutional claims, Defendant argues that, whatever the applicable burden of proof, the evidence was insufficient to support the trial court's findings. We hold that (1) the Apprendi decision is inapplicable to the findings required by Section 32A-2-20(B), (2) the state constitution does not require the State to prove non-amenability or ineligibility for commitment by proof beyond a reasonable doubt, and (3) substantial evidence supported the trial court's findings that Defendant was not amenable to treatment as a child or eligible for commitment. We therefore affirm.

I. FACTS AND PROCEDURAL HISTORY

{2} Defendant turned fourteen years old on December 14, 1996. On March 13, 1997, after breaking into and vandalizing several other houses, Defendant and an accomplice broke into and ransacked Victim's home while Victim and his wife were away. The two juveniles shot Victim's dog with a .22 caliber rifle, which they had stolen from another house. In addition, Defendant took a.30-30 rifle from a wall in Victim's home and fired several rounds into a wall.

{3} When Victim and his wife returned home with their neighbors, they were alarmed to find that their dog had been shot while tied up in the yard. Victim went inside the house to call the police. The phone was next to a window outside of which Defendant and his accomplice were hiding. Defendant saw Victim, and assuming that Victim had likewise seen him, shot Victim in the chest with the .30-30 rifle. The accomplice then shot Victim in the head "to put him out of his misery."

{4} Around the time that Victim was killed, Victim's wife went inside the house. She saw her husband's body and begged the boys not to kill her. One of the boys told her to give them money and the keys to a truck or they would kill her as well. Wife told them that she did not have any money or the keys. The boys then searched Victim's body, and Wife left the house in search of the neighbors. The boys came out of the house and fired 18 to 22 shots toward Wife and the neighbors. One of the neighbors was hit either by bullet fragments or fragments from a nearby car. The shot that hit the neighbor was fired from the .30-30 rifle that Defendant had stolen from Victim's home. At the time of his arrest, Defendant told the arresting officer that he had shot at the neighbor from about one-half mile away and that it was "a hell of a good shot" but "nothing to be proud of."

{5} Defendant pleaded guilty to second degree murder, aggravated burglary, aggravated battery, and two counts of aggravated assault. Pursuant to Section 32A-2-20(A), the prosecutor had earlier filed a notice of intent to seek an adult sentence. At the amenability hearing, Defendant called eight witnesses, three of whom were experts. The expert witnesses agreed that, at the time of the murder, Defendant was suffering from a variety of mental disorders. These witnesses also testified that Defendant was amenable to psychiatric treatment. Nonetheless, the trial court found, by clear and convincing evidence, that Defendant was not amenable to treatment as a child and was ineligible for commitment to an institution, and exercised its discretion under Section 32A-2-20(A) to sentence Defendant to 22 years in an adult correctional facility. Defendant then moved for a reconsideration of the adult disposition based on recommendations made in a presentence report ordered by the court, arguing that the court's findings needed to be based on proof beyond a reasonable doubt. The court denied Defendant's motion for reconsideration, after stating that it was persuaded beyond a reasonable doubt.

II. DISCUSSION

A. Preservation

{6} In its answer brief, the State argues that Defendant failed to preserve his argument that the "beyond a reasonable doubt" standard applies to the findings required by Section 32A-2-20(B). In support of its claim, the State argues that by submitting proposed findings of fact and conclusions of law that presented "clear and convincing" as the applicable standard, Defendant abandoned his argument for the higher standard and invited the error. We disagree.

{7} To properly preserve an issue for appeal, a defendant must fairly invoke a ruling or decision by the trial court. Rule 12-216(A) NMRA 2001; State v. Aragon, 1997-NMSC-062, ¶ 7, 124 N.M. 399, 951 P.2d 616. The purpose of the preservation rule is to insure that the trial judge is alerted to the issue and has an opportunity to address it. See State v. Coffin, 1999-NMSC-038, ¶ 23, 128 N.M. 192, 991 P.2d 477. After reviewing the record, we conclude that the trial court was alerted to Defendant's argument for application of the "beyond a reasonable doubt" standard and had an opportunity to address it.

{8} On the first day of the amenability hearing, Defendant argued that the State was required to prove non-amenability and ineligibility for commitment beyond a reasonable doubt. Defendant then proffered proposed findings of fact and conclusions of law which advocated application of the "clear and convincing" standard of proof and argued to a like effect during closing arguments. After the trial court found Defendant non-amenable to rehabilitation and ineligible for commitment, Defendant filed a motion for identification of the standard of proof used by the court in its decision. In his motion, Defendant renewed his argument that the proper standard was beyond a reasonable doubt. Nonetheless, the trial court ruled that, as a matter of law, the proper standard was "clear and convincing" evidence:

I made my ruling based on the clear and convincing evidence argument that you [Defense counsel] made to me. I still think that's the appropriate standard. However, upon receiving your motion, I considered the proof beyond a reasonable doubt.... I'm going to rule that the standard is the clear and convincing. But I'm also going to state that even if it were the proof beyond a reasonable doubt, I've reflected on that also and I'm satisfied that it would meet that standard if that were the standard.

{9} The case at bar is distinguishable from the cases relied upon by the State in its answer brief. In State v. Campos, 122 N.M. 148, 921 P.2d 1266 (1996), for example, our Supreme Court held that the defendant had abandoned his claim because he voluntarily stopped questioning the witness he later claimed he wanted to question. See id. at 161, 921 P.2d at 1279. In this case, in contrast, Defendant renewed his argument for application of the "beyond a reasonable doubt" standard in the motion for reconsideration and the subsequent hearing. Although the trial court did earlier apply the "clear and convincing" standard at the request of Defendant, the court indicated that it considered the arguments for the higher standard and rejected them in favor of the "clear and convincing" standard.

{10} In addition, there is no suggestion in the record that either the court or the State were prejudiced by Defendant's reintroduction of the "beyond a reasonable doubt" argument after the court had made its ruling. The court was able to apply the higher standard to the facts and render a judgment without the need of further hearings. Finally, the State does not claim that it would have presented a different case had it known the court would apply the higher standard. Therefore, we hold that Defendant preserved his constitutional claims and will address the issues on the merits.

B. Constitutional Arguments

{11} Defendant argues that the federal constitution, as described in Apprendi, requires that the Section 32A-2-20(B) findings be made by a jury beyond a reasonable doubt. In addition, Defendant argues that the state constitution requires the application of the beyond a reasonable doubt standard, based on a comparison with other provisions of the Delinquency Act. In analyzing Defendant's claims, this Court applies the interstitial approach outlined in State v. Gomez, 1997-NMSC-006, 122 N.M. 777, 932 P.2d 1. We first ask whether the right being asserted is protected under the federal constitution. Id. ¶ 19. If it is, the state constitutional claim is not reached. If the right is not protected under the federal constitution, we must then analyze whether the State constitution provides broader protection. See id. We may diverge from federal precedent for three reasons: (1) the federal analysis of the issue is flawed, (2) distinctive state characteristics require a different result, or (3) the federal analogs are undeveloped. See id.

1. Background

{12} Before addressing Defendant's constitutional arguments, it is necessary to put the issue before us in context. We...