State v. Jimenez

• Decision Date: 28 September 1976
• Docket Number: No. 2514,2514
• Citation: State v. Jimenez, 556 P.2d 60, 89 N.M. 652, 1976 NMCA 96 (N.M. App. 1976)
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Pat Lee JIMENEZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 60

556 P.2d 60

89 N.M. 652

STATE of New Mexico, Plaintiff-Appellee, v.Pat Lee JIMENEZ, Defendant-Appellant.

No. 2514.

Court of Appeals of New Mexico.

Sept. 28, 1976.

Rehearing Denied Oct. 8, 1976.

Certiorari Denied Nov. 12, 1976.

Theodore E. Lauer, Lauer & Lauer, Santa Fe, for appllant.

Toney Anaya, Atty. Gen., Don Montoya, Anthony Tupler, Asst. Attys. Gen., Santa Fe, for appellee.

OPINION

WOOD, Chief Judge.

Defendant was charged with four counts: Count 1, first degree CSP (criminal sexual penetration), § 40A--9--21,N.M.S.A.1953(2d Repl.Vol. 6, Supp.1975); Count 2, aggravated assault, § 40A--3--2,N.M.S.A.1953(2d Repl.Vol. 6); Count 3, aggravated battery, § 40A--3--5,N.M.S.A.1953(2d Repl.Vol. 6); and Count 4, assault with intent to commit a violent felony, § 40A--3--3,N.M.S.A.1953(2d Repl.Vol. 6).

Defendant was convicted of second degree CSP on the basis that he used force or coercion resulting in personal injury to the victim.See§ 40A--9--20(C),N.M.S.A.1953(2d Repl.Vol. 6, Supp.1975).Second degree CSP was submitted to the jury as a lesser included offense under Count 1.Defendant was also convicted of Count 3.

We discuss: (1) issues relating to first degree CSP; (2) issues relating to assault to commit a violent felony; (3) refusal of the trial court to accept a guilty plea; (4) instructions on second degree CSP; (5) refusal to instruct on third degree CSP and (6) alleged unconstitutional vagueness of the CSP statute.

Issues Relating to First Degree CSP

Defendant complains of the failure of the trial court to dismiss Count 1 of the indictment.He asserts the trial court's instruction number one is erroneous.These contentions are directed to first degree CSP.Defendant was not convicted of first degree CSP.These contentions, in effect, seek an advisory opinion on matters not pertinent to defendant's conviction.They will not be reviewed.State v. Bojorquez, 88 N.M. 154, 538 P.2d 796(Ct.App.1975);State v. Herrod, 84 N.M. 418, 504 P.2d 26(Ct.App.1972);State v. Ramirez, 84 N.M. 166, 500 P.2d 451(Ct.App.1972).

Issue Relating to Assault With Intent to Commit a Violent Felony

This assault charge was Count 4 of the indictment.Defendant complains of the trial court's refusal to dismiss this count.This count was not submitted to the jury; briefs of the parties inform us that this count was in fact dismissed.There is nothing to review under this issue.State v. Herrod, supra;State v. Ramirez, supra.

Refusal to Accept a Guilty Plea

Defendant asserts in his docketing statement that immediately prior to trial, and again after the close of the State's case, he sought to plead guilty to Counts 2 and 4.He asserts a record was made that the proffered plea was intelligent and voluntary.Defendant states that when asked whether he had in fact committed the offenses charged in Counts 2 and 4, he answered that he did not remember.The State does not challenge the factual correctness of defendant's assertions.Defendant claims the trial court erred in refusing to accept the proffered plea.The practical consequence of this contention to defendant is that an acceptance of the plea might have provided a basis for a double jeopardy claim as to Counts 1 and 3.SeeState v. Medina, 87 N.M. 394, 534 P.2d 486(Ct.App.1975).

The fact that defendant'did not remember' does not enter into our consideration of defendant's claim.SeeNorth Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162(1970).Nor is any constitutional right involved.Alford, supra, note 11 states: 'Our holding does not mean that a trial judge must accept every constitutionally valid guilty plea merely because a defendant wishes so to plead.A criminal defendant does not have an absolute right under the Constitution to have his guilty plea accepted by the court . . . although the States may be statute or otherwise confer such a right. . . .'

Defendant's contention is 'that he has a right to plead guilty to the charge against him, provided that it is shown that the plea is voluntarily and intelligently made, and that there is a factual basis for the plea.As a necessary corollary, where defendant is charged with several counts . . . he has a similar right to plead guilty to one or more of those counts.'Defendant states: '. . . the discretion which the trial court possesses to reject a proffered plea of guilty to the charge is limited to that discretion exercisable in ascertaining voluntariness, intelligence, and factual basis.'Defendant asserts that under the facts of this case, the trial court was required to accept the plea.We disagree.

Rule of Criminal Procedure 21 refers to guilty pleas.Paragraph (e) of the rule requires certain advice to a defendant before a trial court accepts a plea of guilty.Paragraph (g) of the rule outlines the plea bargaining procedure.Defendant notes that the rule does not contain express language authorizing a trial court to refuse to accept a plea of guilty under the circumstances of this case.We agree.Paragraph (g)(4) indicates the trial court may reject a plea bargain, but no plea bargain is involved in this case.

The fact that Rule of Criminal Procedure 21 fails to specifically authorize a trial court to reject a guilty plea is not the issue.The issue is whether a trial court is required to accept a guilty plea.Alford, note 11, supra.Rule 21 does not require the trial court to accept a guilty plea; the rule simply is not applicable to the circumstances of this case.No claim is made that any statute requires the trial court to accept a guilty plea.

There being neither court rule nor statute requiring the trial court to accept a guilty plea, defendant's contention is governed by State v. Leyba, 80 N.M. 190, 453 P.2d 211(Ct.App.1969).Leyba holds: 'The trial court has discretionary power to refuse to accept a guilty plea.'SeeBailey v. Rose, 378 F.Supp. 227(E.D.Tenn.1974);Compare, Stafford v. State, 82 N.M. 365, 482 P.2d 68(Ct.App.1971).

The trial court did not err in refusing to accept the proffered guilty plea.

Instruction on Second Degree CSP

Defendant attacks the instruction defining second degree CSP on two grounds.

First, defendant asserts that an element of the crime is the absence of consent on the part of the victim.Defendant claims this is an inherently necessary element of the offense.Because the instruction did not require the State to prove that the sexual intercourse in this case was without the victim's consent, defendant asserts the instruction was defective in failing to state a material element of the crime.SeeState v. Walsh, 81 N.M. 65, 463 P.2d 41(Ct.App.1969).

Absence of consent was an element of the rape statute which has been repealed.See§ 40A--9--2,N.M.S.A.1953(2d Repl.Vol. 6) and Laws 1975, ch. 109, § 8.Section 40A--9--21, supra, defines CSP.Absence of consent is not an element of the crime as defined by the Legislature.Compare, State v. Borunda, 83 N.M. 563494 P.2d 976(Ct.App.1972).The power to define crimes is a legislative function.State v. Grijalva, 85 N.M. 127, 509 P.2d 894(Ct.App.1973).

The trial court set forth the elements of the crime of second degree CSP in the language of the statute.This was sufficient.There was no error in failing to instruct on absence of the victim's consent.State v. Gunzelman, 85 N.M. 295, 512 P.2d 55(1973);seeState v. Puga, 85 N.M. 204, 510 P.2d 1075(Ct.App.1973).

Second, defendant claims that 'personal injury' was inadequately defined.The trial court gave the statutory definition of personal injury appearing at § 40A--9--20(C), supra.It also gave the statutory definition of great bodily harm in the instruction on first degree CSP.See§ 40A--1--13(A),N.M.S.A.1953(2d Repl.Vol. 6).Even with these definitions, defendant asserts that the definition of 'personal injury' was vague and uncertain and did not provide the jury an adequate guideline.

If defendant desired that 'personal injury' be further defined, he should have submitted a requested instruction to that effect.He did not do so.He cannot complain of the lack of additional definition which he did not request.The lack of additional definition of personal injury was not error.State v. Gonzales, 86 N.M. 556, 525 P.2d 916(Ct.App.1974);State v. Bell, 84 N.M. 133, 500 P.2d 418(Ct.App.1972).

Refusal to Instruct on Third Degree CSP

The trial court refused defendant's request to instruct on third degree CSP as a lesser included offense.The difference between second and third degree CSP in this case was the presence or absence of personal injury resulting from the force or coercion used by defendant.Compare, Paragraph B(2)withParagraph C of § 40A--9--21, supra.

A defendant is entitled to an instruction on a lesser included offense if there is some evidence tending to esablish the lesser offense.State v. Wingate, 87 N.M. 397, 534 P.2d 776(Ct.App.1975).There is no evidence tending to establish that the crime was committed by force or coercion without resultant personal injury; the only evidence is that defendant used force which resulted in personal injury.The evidence is that defendant beat the victim with his fists, twisted her breasts and pulled her hair immediately prior to sexual intercourse.We do not consider defendant's beating of the victim with a blunt instrument subsequent to intercourse because this beating goes to the aggravated battery conviction.There was no evidence supporting an instruction on third degree CSP.SeeState v. Riggsbee, 85 N.M. 668, 515 P.2d 964(1973).There was no error in refusing the requested instruction.

CSP Statute--Void for Vagueness

Defendant moved that the indictment charging him with first degree CSP should be dismissed on the basis that § 40A--9--21, supra, and certain attendant definitions in § 40A--9--20, supra, and§ 40A--1--13(A), supra, violated due process because void for vagueness.He asserts that denial of this motion was error.We consider only...