State v. Serrato

• Decision Date: 17 February 2020
• Docket Number: No. A-1-CA-36381,A-1-CA-36381
• Citation: 493 P.3d 383
• Court: Court of Appeals of New Mexico
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Juventino SERRATO, Defendant-Appellant.

493 P.3d 383

STATE of New Mexico, Plaintiff-Appellee,

v.Juventino SERRATO, Defendant-Appellant.

No. A-1-CA-36381

Court of Appeals of New Mexico.

Filing Date: February 17, 2020

Certiorari Denied, May 4, 2020, No. S-1-SC-38204

Hector H. Balderas, Attorney General, Santa Fe, NM, Charles J. Gutierrez, Assistant Attorney General, Albuquerque, NM, for Appellee

Bennett J. Baur, Chief Public, Defender Mary Barket, Assistant Appellate Defender, Santa Fe, NM, for Appellant

M. ZAMORA, Judge.

{1} Defendant Juventino Serrato appeals his convictions of kidnapping (first-degree), contrary to NMSA 1978, Section 30-4-1 (2003) ; criminal sexual contact of a minor (CSCM) (third-degree) (child under 13), contrary to NMSA 1978, Section 30-9-13(C)(1) (2003) ; and enticement of a child, contrary to NMSA 1978, Section 30-9-1 (1963). Defendant challenges the sufficiency of the evidence of his CSCM and first-degree kidnapping convictions. Defendant also argues that his right to be free from double jeopardy is violated by multiple punishments for (1) first-degree kidnapping and enticement of a child, and (2) first-degree kidnapping and CSCM. We conclude that Defendant's double jeopardy rights were violated because in this case, his convictions for enticement of a child and CSCM were subsumed in his first-degree kidnapping conviction. Therefore, we reverse and remand to the district court to vacate Defendant's convictions for enticement of child and CSCM conviction. Consequently, we need not reach Defendant's sufficiency arguments.

BACKGROUND

{2} Defendant's convictions arose from an incident whereby he kidnapped Victim, a ten-year-old girl, from her bedroom window and took her into his home where he asked her to have sex. Victim testified to the following facts at trial.

{3} Defendant lived across the street from Victim and her family. On the evening in question, Victim left her mother's bedroom where she was sleeping to use the restroom around 11:17 p.m. when she heard a noise coming from the kitchen. She looked in the kitchen but did not see anything. She then heard a whistling noise coming from her bedroom and went to look. She looked in her closet and under her bed and then heard another whistle near her window. Victim turned the lights on and opened the window to look outside. She did not see anything and was about to close the window when Defendant grabbed her hand. Victim moved her hand away but when she was turning around, Defendant grabbed her by the hood of her jacket and pulled her outside onto the windowsill. Victim was going to scream for her mother, but Defendant put his arm around her month.

{4} Defendant told her that he wanted to show her something. Victim was curious to see what he had to show her and asked what it was. She followed Defendant across the street to his residence as Defendant was holding her hand "really tight." They entered the residence and then went into what appeared to be Defendant's bedroom. Once they both entered the bedroom, Defendant propped a box spring over the entryway and blocked the exit with a "metal thing." Victim sat on the bed. Defendant asked her in Spanish if she "wanted sex," and Victim told him no.

{5} Defendant sat next to Victim on the bed and rubbed her back and asked if she was okay. Victim stood up and asked to leave but Defendant responded that Victim could not and that she would have to stay and live with him. Victim told him she wanted to go home. Defendant got up and grabbed Victim's hand and led her back toward the bed, and they both sat down.

{6} Defendant then started touching Victim. She testified that Defendant touched her on the legs by the knees and then ran his hand up to Victim's stomach. After he placed his hand on Victim's stomach, Defendant ran his hand from Victim's stomach, over Victim's chest, and up to her neck. Victim explained what she believed to be her "private parts," describing that "up here" she has "chests" and "once you hit puberty, they then start growing." Victim testified that Defendant "[l]ike with his hand, he went over my chest." Victim testified that the "whole" "front of his hand" went from her neck down to her belly.

{7} Eventually Defendant stopped touching Victim and began talking to her. Victim heard her mother calling for her, and Defendant told Victim to leave and she ran to her mother on the other side of the street.

{8} Defendant was convicted of first-degree kidnapping, third-degree CSCM, and enticement of a child. Defendant appeals.

DISCUSSION

{9} We begin with Defendant's double jeopardy arguments. Concluding that we must vacate his convictions for enticement of a child and CSCM, we need not reach his sufficiency arguments.

I. Double Jeopardy

{10} Defendant argues that his right to be free from double jeopardy was violated because his convictions for enticement of a child and CSCM were subsumed in his first-degree kidnapping conviction. We agree.

{11} The United States and New Mexico Constitutions guard against double jeopardy violations, guaranteeing that no person shall be "twice put in jeopardy" for the same offense. U.S. Const. amend. V ; N.M. Const. art. II, § 15. "[D]ouble jeopardy protects against both successive prosecutions and multiple punishments for the same offense." State v. Contreras , 2007-NMCA-045, ¶ 19, 141 N.M. 434, 156 P.3d 725 (internal quotation marks and citation omitted). Defendant's case involves the latter type—multiple punishments for the same offense. Appellate courts classify multiple punishment cases in two ways, double-description, a single act results in multiple charges under different criminal statutes; and unit of prosecution, conviction for multiple violations of the same criminal statute. See State v. Gallegos , 2011-NMSC-027, ¶ 31, 149 N.M. 704, 254 P.3d 655 (providing overview of multiple punishment cases). In this case, Defendant alleges the same conduct resulted in multiple convictions under two different statutes, thus we apply a double-description analysis. Defendant's double jeopardy challenges present a constitutional question of law, which we review de novo. State v. Swick , 2012-NMSC-018, ¶ 10, 279 P.3d 747.

{12} For double-description claims, this Court follows the two-part test identified in Swafford v. State , 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223. First, we determine whether the conduct underlying the offenses is unitary, that is, whether the same conduct violates both statutes. Id. Second, we determine whether the Legislature intended to create separately punishable offenses. Id. "Only if the first part of the test is answered in the affirmative, and the second in the negative, will the double jeopardy clause prohibit multiple punishment in the same trial." Id . We address each double jeopardy argument in turn.

A. Kidnapping and Enticement of a Child

1. Unitary Conduct

{13} The State does not dispute the first prong and concedes that the conduct underlying both convictions was unitary because the evidence supporting Defendant's kidnapping by deception and enticement of a child were the same. While we do not need to accept the State's concession, State v. Tapia , 2015-NMCA-048, ¶ 31, 347 P.3d 738, we agree that Defendant's convictions for kidnapping and enticement of a child were premised upon unitary conduct: Defendant telling Victim that he wanted to show her something. See, e.g. , State v. Gonzales , 2019-NMCA-036, ¶¶ 20-21, 444 P.3d 1064 (presuming unitary conduct because the state in closing explicitly directed the jury to consider the same conduct to support the defendant's convictions for both charges), cert. denied , 2019-NMCERT-–––– (No. S-1-SC-37707, Jul. 1, 2019). We must next examine whether the Legislature intended multiple punishments.

2. Legislative Intent

{14} While we acknowledge that this Court has previously addressed the double jeopardy implications for kidnapping and enticement of a child, see State v. Laguna , 1999-NMCA-152, ¶ 37, 128 N.M. 345, 992 P.2d 896, and State v. Garcia , 1983-NMCA-069, ¶ 21, 100 N.M. 120, 666 P.2d 1267, neither opinion fully analyzed this issue under New Mexico's double jeopardy jurisprudence. We therefore take this opportunity to conduct a full double jeopardy analysis of these two crimes.

{15} "The sole limitation on multiple punishments is legislative intent[.]" State v. Franco , 2005-NMSC-013, ¶ 12, 137 N.M. 447, 112 P.3d 1104 (alteration, internal quotation marks, and citation omitted); see also State v. Gutierrez , 2011-NMSC-024, ¶ 50, 150 N.M. 232, 258 P.3d 1024 (explaining that "legislative intent must be the touchstone of our inquiry" in multiple punishment analysis (internal quotation marks and citation omitted)). In assessing legislative intent, our Supreme Court has directed that "we first look to the language of the statute itself. If the statute does not clearly prescribe multiple punishments, then the rule of statutory construction established in Blockburger v. United States , 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 ... (1932), applies." Swick , 2012-NMSC-018, ¶ 11, 279 P.3d 747 (citation omitted). Here, the statutes do not expressly permit multiple convictions, see §§ 30-4-1, 30-9-1, so we turn to the Blockburger test.

{16} "Under Blockburger , the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Swick , 2012-NMSC-018, ¶ 12, 279 P.3d 747 (internal quotation marks and citation omitted). "If each statute requires proof of a fact that the other does not, it may be inferred that the Legislature intended to authorize separate punishments under each statute." Id. ¶ 13. However, when a statute is "vague and unspecific" or "written with many alternatives[,]" we apply a modified version of the Blockburger test. Gutierrez , 2011-NMSC-024, ¶ 48, 150 N.M. 232, 258 P.3d 1024 (internal quotation marks and citation omitted). Under the modified Blockburger analysis, "we no longer apply a strict elements test in the abstract; rather, w...