State v. Leyba

• Decision Date: 21 March 1969
• Docket Number: No. 230,230
• Citation: 1969 NMCA 30,80 N.M. 190,453 P.2d 211
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Orlando Enrique LEYBA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 211

453 P.2d 211

80 N.M. 190

STATE of New Mexico, Plaintiff-Appellee, v. Orlando Enrique LEYBA, Defendant-Appellant.

No. 230.

Court of Appeals of New Mexico.

March 21, 1969.

Certiorari Denied April 7, 1969.

Joseph A. Roberts, Downs & Roberts, Santa Fe, for appellant.

James A. Maloney, Atty. Gen., Larry N. Smith, Asst. Atty. Gen., Santa Fe, for appellee.

OPINION

WOOD, Judge.

Appealing his conviction of contributing to the delinquency of a minor, defendant asserts: (1) no crime was charged by the information, (2) his proffered guilty plea to assault should have been accepted, (3) he should have been permitted to plea in abatement, (4) the District Attorney commented upon his failure to testify, and (5) the verdicts on the contributing charge and the assault charge were inconsistent.

1. Whether a crime was charged.

Section 40A--6--3, N.M.S.A.1953 (Repl.Vol. 6) defines contributing to the delinquency of a minor in terms of an act or omission which '* * * causes, or tends to cause or encourage the delinquency of any person under the age of eighteen (18) years.' Here we are concerned with acts rather than omissions. Defendant's acts must have tended to cause or encourage delinquency upon the part of the prosecuting witness. Defendant contends 'delinquency' must be determined by reference to our statutes pertaining to the conduct of juveniles. According to defendant the applicable statute is § 13--8--26, N.M.S.A.1953 (Repl.Vol. 3). We assume these contentions are correct. See State v. McKinley, 53 N.M. 106, 202 P.2d 964 (1949).

Section 13--8--26, supra, pertains to the jurisdiction of the juvenile court. It provides that the juvenile court has exclusive original jurisdiction over a juvenile under eighteen years when the juvenile is charged with conduct of the type specified in paragraph A of § 13--8--26, supra. We are concerned here with two of the items so specified--violation of the law of the state and conduct injurious to the juvenile's morals. Thus defendant's acts must have tended to cause or encourage the prosecuting witness to violate the law of the state or to conduct himself in a manner injurious to his morals.

Defendant was charged with indecently touching the private parts of the minor and of talking to the minor indecently. He was charged with doing this at about 7:30 p.m. '* * * by the Guadalupe Church on Aqua Fria St. * * *' in Santa Fe.

Defendant asserts that this accusation did not state a crime and that the trial court erred in denying his motion to quash. His contention has two parts.

The first contention is that the acts charged neither caused nor tended to cause the minor to violate any of the sexual offenses listed in our Criminal Code at Chapter 40A, Article 9, N.M.S.A.1953 (Repl.Vol. 6). This is not correct. The acts charged tended to cause or encourage his victim to violate § 40A--9--8, N.M.S.A.1953 (Repl.Vol. 6). This section prohibits indecent exposure.

Defendant's acts also tended to cause or encourage the minor to conduct himself in a manner injurious to his morals. See State v. Dodson, 67 N.M. 146, 353 P.2d 364 (1960); compare State v. McKinley, supra; State v. Stone, 111 Or. 227, 226 P. 430 (1924); People v. Miller, 145 Cal.App.2d 473, 302 P.2d 603 (1956). His second contention is that the tendency or encouragement must be toward 'habitual' conduct, and this is not charged. He bases this contention on the reference in § 13--8--26, supra, to a juvenile who '* * * habitually deports himself as to injure or endanger the morals, health or welfare of himself or others.'

This second contention misreads the the statute and overlooks the applicable test. The habitual conduct referred to in § 13--8--26, supra, is conduct on the part of the juvenile that subjects him to the jurisdiction of the juvenile court. Defendant's acts are sufficient to support the charge of contributing to the delinquency of a minor if those acts tend to or encourage the juvenile to conduct himself in a manner injurious to his morals. The end result of defendant's acts--whether they result in habitual conduct on the part of the juvenile--is not a prerequisite to the charge of contributing to the delinquency of a minor.

The trial court properly denied the motion to quash.

2. The proffered guilty plea.

When arraigned, defendant pled not guilty to contributing to the delinquency of a minor, and guilty to the charge of assault. See § 40A--3--1, N.M.S.A.1953 (Repl.Vol. 6). The trial court refused to accept the guilty plea. The jury found defendant guilty of the contributing charge and not guilty of the assault charge.

Defendant contends the trial court abused its discretion and denied him his right to a speedy trial in refusing to accept the proffered plea of guilt on the assault charge.

Considered apart from the contributing charge, the contention doesn't make sense. Even though defendant offered to plead guilty to assault, the jury acquitted him of that charge.

Of necessity then, defendant's claim must be an assertion that if the plea of guilt to the assault charge had been accepted, the contributing charge would have been dropped. The record does not support this view.

A grand jury indicted defendant on the contributing charge. The criminal information, which added the assault charge, '* * * was filed in accommodation to the Defendant in order to state a lesser crime to which the Defendant had offered to plead guilty.' At arraignment, the trial court explained both of the charges to defendant and the punishments imposable for guilt under each of the charges. Defendant denied that anything had been done to get him to plead guilty, denied that he had been abused, mistreated or threatened in any way, denied that he had been promised anything if he pled guilty. Defendant denied that he had been told that he would get a lighter sentence or that the Judge or the District Attorney would 'take it easier' on him if he pled guilty. Defendant understood that he didn't have to plead guilty to either charge and that he had a right to a jury trial.

After this questioning by the court, defendant pled not guilty to the contributing charge and stated that he was guilty of the assault charge. The trial court then questioned defendant concerning his understanding of the guilty plea. After defendant stated that he did not remember the acts with which he was charged, the trial court refused to accept the guilty plea, stating: '* * * He is offering to plead guilty without confessing guilt.' The court then questioned the prosecuting witness concerning defendant's acts. After hearing the witness detail defendant's acts, defendant unequivocably denied doing them. The trial court then entered a plea of not guilty for defendant on the assault charge and set the case for trial.

The foregoing record certainly does not indicate an agreement or understanding on the part of anyone that the contributing charge would be dismissed if defendant pled guilty to assault. Defendant does not claim otherwise. He asserts however that if the guilty plea had been accepted, '* * * clemency could be extended by the District Attorney, * * *' Such a hope does not raise an issue as to 'plea bargaining'. Compare State v. Ortiz, 77 N.M. 751, 427 P.2d 264 (1967).

Accordingly, we fail to see on what basis the trial court's action in refusing to accept the guilty plea is before us for review. Assuming that it is, there is no merit to defendant's claim. The trial court has discretionary power to refuse to accept a guilty plea. Tremblay v. Overholser, 199 F.Supp. 569 (D.D.C.1961). It should not accept such a plea where defendant relates facts inconsistent with his guilt. People v. Nealy, 48 Misc.2d 328, 264 N.Y.S.2d 710 (1965). That was the situation here.

The asserted denial of a speedy trial is based on the claim that the trial court forced defendant to defend the assault claim. Compare Tremblay v. Overholser, supra. It is not a denial of a speedy trial to: (a) refuse to accept a guilty plea to a charge when defendant denies the facts on which the charge is based and (b) try defendant on the charge, as was done here, two days later. Compare State v. Martinez, 79 N.M. 232, 441 P.2d 761 (1968); Raburn v. Nash, 78 N.M. 385, 431 P.2d 874 (1967); Dalrymple v. State, 78 N.M. 368, 431 P.2d 746 (1967); State v. Rhodes, 77 N.M. 536, 425 P.2d 47 (1967); State v. McCroskey, 79 N.M. 502, 445 P.2d 105 (Ct.App.1968).

3. Attempted plea in abatement.

Contributing to the delinquency of a minor is a felony. Section 40A--6--3, supra. Since defendant was proceeded against by criminal information, he had a right to a preliminary examination as to that felony. Section 41--3--8, N.M.S.A.1953 (Repl.Vol. 6). However, defendant specifically waived his right to a preliminary hearing immediately prior to being arraigned. He also waived this right when, with advice of counsel, he pled not guilty to the charge. State v. Robinson, 78 N.M. 420, 432 P.2d 264 (1967); State v. Sexton, 78 N.M. 694, 437 P.2d 155 (Ct.App.1968).

Immediately before his trial began, defendant moved to withdraw his not guilty plea and be allowed to '* * * enter a plea in abatement.' Although no ground was stated, compare Territory v. Torres, 16 N.M. 615, 121 P. 27 (1911), it is apparent that defendant sought to abate the information on the ground no preliminary hearing had been held. The trial court denied the motion.

Defendant asserts the trial court should have allowed him to plea in abatement. He claims the trial court '* * * was fully aware of the reason and purpose of the filing of the information * * *.' He relies on State v. Ortiz, supra.

In Ortiz the District Attorney agreed not to file an habitual offender charge against defendant if he pled guilty. Defendant pled guilty, nevertheless an habitual offender charge was filed. This was brought to the trial court's attention before imposition of sentence. Ortiz held that the guilty plea, in the circumstances, was involuntary and that the...