State v. Baca

• Decision Date: 04 February 2016
• Docket Number: No. 32,886,32,886
• Citation: State v. Baca, No. 32,886 (N.M. App. Feb 04, 2016)
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. BILLY BACA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee, v. BILLY BACA, Defendant-Appellant.

No. 32,886

COURT OF APPEALS OF THE STATE OF NEW MEXICO

February 4, 2016

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.Please seeRule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Kenneth H. Martinez, District Judge

Hector H. Balderas, Attorney General

Paula E. Ganz, Assistant Attorney General

Santa Fe, NM

for Appellee

Jorge A. Alvarado, Chief Public Defender

J.K. Theodosia Johnson, Assistant Appellate Defender

Santa Fe, NM

for Appellant

MEMORANDUM OPINION

VIGIL, Chief Judge.

{1}Defendant appeals from multiple convictions of criminal sexual penetration (CSP), false imprisonment, and contributing to the delinquency of a minor.This is a memorandum opinion, and because the parties are familiar with the facts and procedural history of the case, it is unnecessary for us to repeat them here, except as required for our analysis.

DISCUSSION

{2}Defendant raises three issues on appeal: (1) denial of his motion to suppress; (2) whether multiple convictions for CSP and one conviction for false imprisonment violate double jeopardy; and (3) whether evidence of Victim's past conduct was improperly excluded.We vacate four convictions of CSP and one count of false imprisonment, and remand for resentencing.

1.Motion to Suppress

{3}Defendant contends the district court erred in denying his motion to suppress statements made to the police on October 26, 2010.We affirm on the basis that Defendant's motion was not timely.

{4} The indictment was filed on December 6, 2010.On the first day of trial almost twenty-one months later, on September 10, 2012, the motion to suppress was filed.The State argued at trial that the motion should be denied as untimely because the statement was given shortly before the indictment was filed, the defense knew of thestatement, and no good cause was shown for filing it so late.In support of its position, the State cited to City of Santa Fe v. Marquez, 2012-NMSC-031, 285 P.3d 637.Defense counsel acknowledged he knew of the statement, but not until the previous Friday, (September 7, 2012).He asked Defendant why he made the statement and Defendant replied, because his probation officer told him he"had" to talk to the officer, and he felt that if he did not, his probation officer would remand him to jail.Counsel therefore felt the issue should be raised, and promptly filed the motion.The district court noted the "crushing" case load of the court, of the prosecutors, and of the public defenders—and declined to deny the motion because it was untimely.The State argued that because no reasons were provided amounting to good cause, Marquez required a timely motion to be filed, but the district court abided by its decision.However, after hearing Defendant's testimony, the district court denied the motion on the merits.

{5} When Defendant's case was pending, Rule 5-212(C) NMRA of the New Mexico Rules of Criminal Procedure directed that "[a]motion to suppress shall be made within twenty (20) days after entry of a plea, unless, upon good cause shown, the trial court waives the time requirement of this rule."Marquez, 2012-NMSC-031, ¶ 24(quotingRule 5-212(C) prior to the 2013amendment, approved by Supreme Court OrderNo. 13-8300-016, effective December 31, 2013).

{6} However, the language of the rule notwithstanding, the Committee Commentary to Rule 5-212(C) counter-stated that the rule did not require filing a motion to suppress for illegally seized evidence prior to trial.SeeState v. Katrina G., 2008-NMCA-069, ¶ 17, 144 N.M. 205, 185 P.3d 376(stating that a motion to suppress was not required to be made prior to trial), overruled on other grounds byMarquez, 2012-NMSC-031.In Marquez, the district court had therefore allowed a motion to suppress after trial commenced and jeopardy had attached, with the result that the prosecution was not able to appeal from the ruling.2012-NMSC-031, ¶¶ 1-2.To correct this anomaly, our Supreme Court overruled Katrina G. and "prospectively" held that, "Rule 5-212 (C) requires that motions to suppress be filed before trial and that the district courts must adjudicate suppression issues before trial, absent good cause."Marquez, 2012-NMSC-031, ¶ 28.

{7} Under Marquez, Defendant's motion could only be considered upon a finding of "good cause" for not timely filing as required by Rule 5-212(C).State v. Helker, 1975-NMCA-141, 88 N.M.650, 545 P.2d 1028 instructs us to conclude there was no "good cause" in this case.In Helker, defense counsel had known of the defendant's confession several months before trial, but a motion to suppress was not filed within twenty days after the plea was entered, as required, and the district court denied the motion because it was not timely.Id.¶ 2.We affirmed.Id.¶ 7.In this case, as inHelker, when evidence material to guilt or innocence is known to exist, and has been in counsel's possession for a substantial period of time, failing to consider whether it is admissible until the eve of trial does not constitute "good cause" to excuse an untimely filing.The Committee Commentary to our current version of Rule 5-212 states, "[e]xamples of good cause may include, but are not limited to, failure of the prosecution to disclose evidence relevant to the motion to suppress to the defense prior to trial, failure of either party to provide discovery, or the discovery of allegedly suppressable [sic] evidence during the course of trial."None of these circumstances are present here.

{8}We acknowledge that when "good cause" is demonstrated, a trial court has discretion to grant relief and allow a late motion to be filed.However, when "good cause" is absent as a matter of law, there is no room to exercise discretion.We therefore affirm the order denying Defendant's motion to suppress on the alternative ground that it was not timely.

2.Double Jeopardy

{9}Defendant's double jeopardy argument is raised for the first time on appeal.Nevertheless, we are required to resolve it.NMSA 1978, § 30-1-10(1963)("The defense of double jeopardy may not be waived and may be raised by the accused at any stage of a criminal prosecution, either before or after judgment.");State v.Crain,1997-NMCA-101, ¶ 15, 124 N.M. 84, 946 P.2d 1095(stating that under Section 30-110 double jeopardy claims are not waivable).

{10}Defendant raises two specific arguments.First, Defendant asserts that he was convicted and sentenced for six separate acts of criminal sexual penetration (CSP) under Counts 1 and 3 of the indictment in violation of his constitutional right to be free from double jeopardy.Second, Defendant contends that under the evidence, double jeopardy prohibits convictions for both CSP and false imprisonment.We agree with both arguments.

{11} Count 1 of the indictment alleges that Defendant committed CSP by intercourse by the use of force or coercion on a child of thirteen, but less than eighteen years of age; or in the alternative, by the use of force or coercion when aided or abetted by one or more persons; or in the alternative, in the commission of another felony.Each count, and its alternative is a second degree felony.NMSA 1978, § 30-9-11(E)(1), (4), and (5)(2009).Count 3 alleges CSP by fellatio, but in all other respects, including the alternative charges, it is identical to Count 1.Defendant was convicted and sentenced for committing each charge of CSP and its two alternatives, for a total of six crimes.

A.Alternative Counts

{12}Defendant contends, and the State agrees, that in the circumstances of this case, the convictions for the alternative counts must be set aside.Although we are notbound by the State's concession, we agree.SeeState v. Foster, 1999-NMSC-007, ¶ 25, 126 N.M. 646, 974 P.2d 140(stating that our Supreme Court was not bound by state's concession that double jeopardy was violated), abrogated on other grounds byState v. Frazier, 2007-NMSC-032, ¶¶ 31, 35, 142 N.M. 120, 164 P.3d 1.

{13} This is a "double description" case in that it involves the same conduct violating multiple statutes.Swafford v. State, 1991-NMSC-043, ¶ 9, 112 N.M. 3, 810 P.2d 1223.We therefore first determine whether the "conduct underlying the offenses is unitary, i.e., whether the same conduct violates both statues."Id.¶ 25.Second, we determine "whether the [L]egislature intended to create separately punishable offenses."Id.When the first part of the test is answered in the affirmative, and the second in the negative, double jeopardy prohibits multiple punishments.Id.On appeal, we review de novo whether Defendant's convictions constitute multiple punishments for the same offense.SeeFrazier, 2007-NMSC-032, ¶ 15.

{14}The parties do not dispute that the same conduct violated each count and its alternatives.The convictions for Count 1 and each alternative to Count 1 all involve a single act of CSP (sexual intercourse) that was accomplished by the same force.Similarly, the convictions for Count 3 and each alternative to Count 3 all involve a single act of CSP (fellatio) that was accomplished by the same force.We agree that the same conduct violated each count and the respective alternative counts.

{15}We next proceed to determine whether the legislature intended separate punishments for each count and its alternatives.In Crain, the defendant was convicted of two counts of CSP (personal injury and in the commission of a felony) and kidnapping.1997-NMCA-101, ¶ 15.All three convictions stemmed from the same act of sexual intercourse, and the same conduct violated all three statutory provisions.Id.¶ 17.In determining whether the Legislature...