State v. Valenzuela

• Decision Date: 07 March 2023
• Docket Number: A-1-CA-39199
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. BENNY ARTHUR VALENZUELA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

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STATE OF NEW MEXICO, Plaintiff-Appellee, v. BENNY ARTHUR VALENZUELA, Defendant-Appellant.

No. A-1-CA-39199

Court of Appeals of New Mexico

March 7, 2023

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY Cindy M. Mercer District Court Judge

Raul Torrez, Attorney General Santa Fe, NM Erica Schiff, Assistant Attorney General Albuquerque, NM for Appellee

Bennett J. Baur, Chief Public Defender Joelle N. Gonzales Assistant Appellate Defender Santa Fe, NM for Appellant

OPINION

KRISTINA BOGARDUS, JUDGE

{¶1} Defendant Benny Valenzuela appeals an order denying his motion to withdraw his no contest plea. Defendant argues the district court erred in denying his motion because the plea was not voluntarily and knowingly entered into based on the district court's failure to (1) determine that Defendant understood the nature of the charges to which he pleaded, and (2) ensure that Defendant understood the possible sentence range for these charges. We affirm.

BACKGROUND

{¶2} In September 2016, the State indicted Defendant for ten alleged offenses. The indictment included four counts of third degree criminal sexual contact of a minor (CSCM), pursuant to NMSA 1978, Section 30-9-13(C)(1) (2003)-two identical counts alleging touching of K.K. and two identical counts alleging touching of C.L. The indictment lists these CSCM charges as follows:

Count 2: Criminal Sexual Contact of a Minor in the Third Degree (Child Under 13) . . ., on or about June 21, 2016, in Valencia County, New Mexico, . . . [D]efendant did touch or apply force to the intimate parts of K. K., to wit: touched vaginal area over clothes, and she was twelve years of age or younger.

Count 3: Criminal Sexual Contact of a Minor in the Third Degree (Child Under 13) . . ., on or about June 21, 2016, in Valencia County, New Mexico, . . . [D]efendant did touch or apply force to the intimate parts of K. K., to wit: touched vaginal area over clothes, and she was twelve years of age or younger.

Count 6: Criminal Sexual Contact of a Minor in the Third Degree (Child Under 13) . . ., on or about June 21, 2016, in Valencia County, New Mexico, . . . [D]efendant did touch or apply force to the intimate parts of C. L., to wit: touched vaginal area over clothes, and she was twelve years of age or younger.

Count 7: Criminal Sexual Contact of a Minor in the Third Degree (Child Under 13) . . ., on or about June 21, 2016, in Valencia County, New Mexico, . . . [D]efendant did touch or apply force to the intimate parts of C. L., to wit: touched vaginal area over clothes, and she was twelve years of age or younger.

The indictment also charged Defendant with three counts of aggravated indecent exposure, pursuant to NMSA 1978, Section 30-9-14.3(A)(1) (1996), and two counts of contributing to the delinquency of a minor, pursuant to NMSA 1978, Section 306-3 (1990).

{¶3} In February 2019, Defendant and the State entered into a global plea agreement in which Defendant agreed to plead no contest to six of the ten counts in the indictment: the four counts of CSCM, one count of aggravated indecent exposure, and one count of contributing to the delinquency of a minor. The plea dismissed the remaining counts in the indictment as well as charges in four other pending cases, and the State agreed it would not pursue two additional charges for which Defendant had not yet been indicted.

{¶4} During the plea hearing, the district court asked Defendant if he had read and understood the plea agreement, if he had any questions about the agreement, if he had discussed the agreement with his counsel, and if the agreement contained everything he had agreed to. Defendant responded to each of these questions in the affirmative. The district court also asked, "What is the factual basis for the plea?" The State responded that "the parties would stipulate to a factual basis," and defense counsel agreed that there was a sufficient factual basis to support each of the charges to which Defendant was pleading. Finally, the district court asked defense counsel if the plea agreement contained "all the negotiations" that counsel had entered into on behalf of Defendant, and whether, in defense counsel's opinion, Defendant was "fully informed of the consequences" of the plea agreement. Defense counsel responded to each of these questions in the affirmative.

{¶5} Defendant then pleaded no contest to each of the six offenses in the plea agreement, including the four CSCM offenses. The district court accepted Defendant's plea, stating there was a "factual basis to believe that [Defendant is] guilty of the crime" and concluding that Defendant knowingly and voluntarily entered into the plea.

{¶6} In May 2019, Defendant moved to withdraw his no contest plea, arguing, in part, that the two counts of CSCM for each victim listed in the indictment were indistinguishable, and that there had been no indication that there was a "factual basis" supporting four counts of CSCM rather than two. The court denied Defendant's motion, citing his counsel's stipulation to a factual basis for the charges at the plea hearing. Defendant appeals.

DISCUSSION

I. Preservation Issues

{¶7} We must first address threshold questions of preservation. Defendant argues his no contest plea was not voluntarily and knowingly entered into because the district court failed to (1) determine that Defendant understood the nature of the charges to which he pleaded, and (2) ensure that Defendant understood the possible sentence range for these charges. The State responds that Defendant failed to preserve these arguments. We review whether Defendant preserved each argument in turn.

{¶8} "To preserve an issue for review, it must appear that a ruling or decision by the [district] court was fairly invoked." Rule 12-321(A) NMRA. Defendant first argues that the district court failed to determine that Defendant understood the nature of the CSCM, aggravated indecent exposure, and contributing to the delinquency of a minor charges to which he pleaded, and the factual basis supporting each of these charges, pursuant to Rule 5-303(F)(1) NMRA. We must therefore determine whether Defendant fairly invoked a ruling or decision that the district court failed to comply with Rule 5-303(F)(1)'s requirement that, before accepting a plea of no contest, "[t]he court shall . . . inform[] the defendant of and determin[e] that the defendant understands . . . the nature of the charge to which the plea is offered." "A related requirement directs the district court to make an inquiry as shall satisfy it that there is a factual basis for the plea." State v. Ramirez, 2011-NMSC-025, ¶ 9, 149 N.M. 698, 254 P.3d 649 (alteration, internal quotation marks, and citation omitted) (citing Rule 5-304(G) NMRA). We conclude that Defendant fairly invoked a decision by the district court only as to whether he understood the nature of the CSCM charges, and explain.

{¶9} Defendant pleaded no contest to three separate crimes: CSCM (four counts), aggravated indecent exposure (one count), and contributing to the delinquency of a minor (one count). At the hearing on Defendant's motion to withdraw his plea, defense counsel argued that the two counts of CSCM for each victim listed in the indictment were indistinguishable, and that there had been no indication that there was a "factual basis" supporting four counts of CSCM rather than two. The district court considered the argument, stating that defense counsel had stipulated at the plea hearing to a "factual basis" to support the charges but that Defendant had nonetheless chosen to plead no contest. Defendant thus fairly invoked a decision by the district court as to whether he understood the "factual basis"-and therefore the nature-of each CSCM charge to which he pleaded. See Ramirez, 2011-NMSC-025, ¶ 9; Rule 5-303(F)(1). Accordingly, Defendant preserved his argument that the district court failed to determine whether he understood the nature of the CSCM charges.

{¶10} As to the charges for aggravated indecent exposure and contributing to the delinquency of a minor, however, Defendant failed to fairly invoke a ruling or decision by the district court as to whether the court had failed to determine whether Defendant understood the nature of these charges. See Rule 5-303(F)(1). Although Defendant raised issues concerning the nature of the CSCM charges, he did not specifically apprise the district court of a claimed error based on Defendant's lack of understanding of the aggravated indecent exposure or contributing to the delinquency of a minor charges. See State v. Montoya, 2015-NMSC-010, ¶ 45, 345 P.3d 1056 ("In order to preserve an issue for appeal, a defendant must make a timely objection that specifically apprises the [district] court of the nature of the claimed error and invokes an intelligent ruling thereon." (internal quotation marks and citation omitted)). Accordingly, Defendant failed to preserve his appellate argument that the district court failed to determine whether he understood the nature or factual basis of the aggravated indecent exposure and contributing to the delinquency of a minor charges.

{¶11} Likewise, Defendant failed to preserve his appellate argument that his plea was not voluntarily and knowingly entered into based on the district court's failure to ensure that he understood the possible sentence range for the charges to which he pleaded. See Rule 5-303(F)(2) (requiring the district court to inform the defendant of and determine that the defendant understands ...