State v. Perez

• Decision Date: 19 February 2002
• Docket Number: No. 21,894.,21,894.
• Citation: 132 N.M. 84,44 P.3d 530,2002 NMCA 40
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Jaime PEREZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

44 P.3d 530

132 N.M. 84

2002 NMCA 40

STATE of New Mexico, Plaintiff-Appellee, v. Jaime PEREZ, Defendant-Appellant.

No. 21,894.

Court of Appeals of New Mexico.

February 19, 2002.

Certiorari Denied April 5, 2002.

Patricia A. Madrid, Attorney General, Santa Fe, NM, Steve Suttle, Assistant Attorney General, Albuquerque, NM, for Appellee.

Phyllis H. Subin, Chief Public Defender, Nancy M. Hewitt, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Certiorari Denied, No. 27,422, April 5, 2002.

OPINION

SUTIN, Judge.

{1} jury found Defendant Jaime Perez guilty of five counts of accessory to criminal sexual penetration (CSP), two counts of battery, and one count of intimidation of a witness. Defendant was sixteen at the time of the events for which he was convicted. The trial court found Defendant to be a youthful offender not amenable to treatment and sentenced him based on that status. Defendant appeals his accessory to CSP convictions and youthful offender status. We affirm in part, reverse in part, and remand for re-sentencing.

BACKGROUND

{2} We set forth the facts in accordance with the principle of resolving all conflicts and making all inferences in favor of the State as the prevailing party. State v. Coffin, 1999-NMSC-038, ¶ 73, 128 N.M. 192, 991 P.2d 477.

{3} Vernon and Jeremy, both juveniles, ran away from Jackson, Tennessee. They ended up in a juvenile detention center in New Mexico, assigned to the same cell. At first they got along fairly well with the other boys in the center, but the atmosphere changed. Defendant's co-defendant, Michael, and another center resident, Noel, began calling the runaways racist names such as "cracker" and "honky." Next, Michael and Noel told the runaways to either clean their cells for them or perform fellatio on them. The runaways refused, even though Noel slapped Vernon. Similar additional threats were made to the runaways later in the day.

{4} The next day Defendant was admitted to the center. Vernon was again told to clean cells or perform fellatio. Defendant joined in the intimidation, threatening that if Vernon did not perform fellatio on Noel and Michael he would have to "do everyone else in the jail." Vernon perceived the other residents "kinda acted like [Defendant] was the boss, in a way." Asked to explain, he said, "Well, they weren't mean to him, they were always around him, you know, and he was, like, sayin', tellin' `em all kinds of stuff, just talkin' to `em."

{5} Vernon testified that the more he refused, the angrier the others became. "When I went back into the hallway, [Defendant] like came and he pushed me. He said that I had to do it—I had to suck their penises. And if I—He said he's already killed somebody. It won't matter if he kills me." Michael also threatened to kill Vernon and Jeremy if they did not cooperate, or alternatively, threatened to either stab them thirteen times or "shove a broomstick up our butt."

{6} Vernon and Jeremy did not want to get killed so they complied with the demands. Vernon performed fellatio on Michael and Noel in Noel's cell while the cell door was covered with a sheet. (It was customary for the residents to cover their cell door when they wanted to use the toilet.)

{7} Jeremy testified Defendant and Michael told him "I was goin' to have to do the same thing [fellatio] to two [other] guys." He did so in one of the cells. A resident named Manuel was also in the cell. A sheet covered the door, but there was a hole in the sheet approximately six inches in diameter. Vernon looked through the hole "to see if they were going to make [Jeremy] do it." Vernon looked briefly and then "turned away, because I didn't want to look any more." Defendant was also watching. "He was like right beside me lookin' in the hole," reported Vernon. Defendant said something, but Vernon was not paying attention to what he said.

{8} Defendant went back to the sundeck area (the common area). He told Vernon that Vernon ought to perform fellatio on him, too, but that Vernon did not have to since he had done the other two boys. Michael and Defendant threatened the boys with violence if they told anyone about the fellatio. Vernon said the rest of the day was uneventful, until he was hit hard during a "slap game" after dinner. The next day after breakfast there was a nose-pinching "game," resulting in severe bruising. This was followed by attempts to strangle Vernon and Jeremy. Vernon passed out for a few moments. When a female officer came in for laundry he asked to speak to her and told her what had happened. The runaways were then put in a safer place. The boys told her they had been threatened that if they did not perform fellatio they would be stabbed thirteen times or killed. Two other center residents, Paul and Andrew, testified they committed fellatio with Jeremy. Paul testified it was Noel's idea, not Defendant's. Andrew testified "they" told the boys what to do, but he could not remember any of "their" names.

{9} The jury found Defendant guilty on five counts of accessory to CSP. The court found Defendant was not amenable to treatment as a juvenile and sentenced him as an adult to forty-seven and one-half years in the New Mexico Department of Corrections.

DISCUSSION

Defendant's Status as a Youthful Offender

{10} Defendant contends he was not a youthful offender under NMSA 1978, § 32A-2-3(I) (1996), because accessory to CSP is not one of the listed offenses that qualifies one as a youthful offender. Therefore, Defendant reasons, he could not be sentenced as an adult. Answering this question requires us to construe the statute that defines juvenile youthful offenders. We review this issue of statutory interpretation de novo. State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995).

{11} Initially we note this issue was not raised in the trial court. Generally we do not consider questions on which the trial court had no opportunity to rule. See Rule 12-216(A) NMRA 2002; see also State v. Varela, 1999-NMSC-045, ¶ 26, 128 N.M. 454, 993 P.2d 1280 (explaining that in order to preserve an issue for appeal, the defendant must alert the court to claimed error and invoke intelligent ruling). However, a trial court lacks jurisdiction to impose an illegal sentence. State v. Martinez, 1998-NMSC-023, ¶ 12, 126 N.M. 39, 966 P.2d 747 ("A trial court's power to sentence is derived exclusively from statute."). If Defendant was wrongfully determined to be a youthful offender, his sentence would be illegal. The issue is one of subject matter jurisdiction, which cannot be waived and can be raised at any time. State v. Davis, 1998-NMCA-148, ¶ 9, 126 N.M. 297, 968 P.2d 808. We therefore address the issue.

{12} Section 32A-2-3(I) defines a "youthful offender" as:

a delinquent child subject to adult or juvenile sanctions who is:

(1) fourteen to eighteen years of age at the time of the offense and who is adjudicated for at least one of the following offenses:

(a) second degree murder, as provided in Section 30-2-1-NMSA 1978;

(b) assault with intent to commit a violent felony, as provided in Section 30-3-3 NMSA 1978;

(c) kidnapping, as provided in Section 30-4-1 NMSA 1978;

(d) aggravated battery, as provided in Subsection C of Section 30-3-5 NMSA 1978;

(e) aggravated battery upon a peace officer, as provided in Subsection C of Section 30-22-25 NMSA 1978;

(f) shooting at a dwelling or occupied building or shooting at or from a motor vehicle, as provided in Section 30-3-8 NMSA 1978;

(g) dangerous use of explosives, as provided in Section 30-7-5 NMSA 1978;

(h) criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978;

(i) robbery, as provided in Section 30-16-2 NMSA 1978;

(j) aggravated burglary, as provided in Section 30-16-4 NMSA 1978;

(k) aggravated arson, as provided in Section 30-17-6 NMSA 1978; or

(l) abuse of a child that results in great bodily harm or death to the child, as provided in Section 30-6-1 NMSA 1978;

(2) fourteen to eighteen years of age at the time of the offense and adjudicated for any felony offense and who has had three prior, separate felony adjudications within a three-year time period immediately preceding the instant offense. The felony adjudications relied upon as prior adjudications shall not have arisen out of the same transaction or occurrence or series of events related in time and location. Successful completion of consent decrees are not considered a prior adjudication for the purposes of this paragraph; or

(3) fourteen years of age and adjudicated for first degree murder, as provided in Section 30-2-1 NMSA 1978.

{13} It is not clear whether the trial court determined Defendant was a youthful offender because of the nature of his crime (Section 32A-2-3(I)(1)) or because of his violent history (Section 32A-2-3(I)(2)) or both. At the hearing on the motion for reconsideration of the sentence, the court said,

Yes. Forty-seven and one-half years is a long time. But the crimes that he committed and the length of his record is long also and it involves violence. It involves death. It involves violating people's bodies. I cannot see how I could do anything else, and that's why I entered the sentence.

Although the court's comments indicate Defendant has a lengthy history of trouble with the law, the record does not reveal whether Defendant had "three prior, separate felony adjudications within a three-year time period immediately preceding the instant offense" so as to qualify him as a youthful offender under Section 32A-2-3(I)(2). We therefore consider whether Defendant was a youthful offender because of the nature of his crime under Section 32A-2-3(I)(1).

{14} Section 32A-2-3(I)(1) lists specific crimes which confer youthful offender status. CSP is listed. § 32A-2-3(I)(1)(h). Defendant points out that the statute is silent as to whether accessories to the listed offenses are also youthful offenders. He argues the statute unambiguously excludes accessories, relying on State v. Jonathan M., 109 N.M....