FREDDIE BENJI MONTOYA v. HON. DOUGLAS R. DRIGGERS, Third Judicial District Court Judge, and STATE OF NEW MEXICO
Docket No. 33,789
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
February 27, 2014
Opinion Number: ____________
Douglas R. Driggers, District Judge
Jorge A. Alvarado, Chief Public Defender
Nina Lalevic, Assistant Appellate Defender
Santa Fe, NM
for Petitioner
Gary K. King, Attorney General
Margaret E. McLean, Assistant Attorney General
James W. Grayson, Assistant Attorney General
Nicole Beder, Assistant Attorney General
Santa Fe, NM
for Real Party in Interest
OPINION
{1} Freddie Montoya passed a vehicle whose only occupant was a female driver and positioned his truck across the roadway to block her path. State v. Montoya, 2011-NMCA-074, ¶ 2, 150 N.M. 415, 259 P.3d 820. He and his passenger got out of the truck, forcibly entered the victim‘s vehicle, and raped her. Id. Among other crimes, Montoya was convicted of first-degree kidnapping under
WHEN A CONVICTION REQUIRING SORNA REGISTRATION IS VACATED TO AVOID DOUBLE PUNISHMENT, IT REMAINS VALID FOR PURPOSES OF SORNA
{2} SORNA requires sex offenders to register in the counties where they reside, have lodging, work, or attend school.
{3} The key to what constitutes a conviction under SORNA is that there must be an adjudication of guilt. A “‘conviction‘” is a “conviction in any court of competent jurisdiction and includes a deferred sentence, but does not include a conditional discharge.”
{4} “Our main goal when interpreting a statute is to give effect to the Legislature‘s intent. Deciphering what was intended by the Legislature requires us to examine the object the [L]egislature sought to accomplish and the wrong it sought to remedy.” State v. Hall, 2013-NMSC-001, ¶ 9, 294 P.3d 1235 (internal quotation marks and citations omitted). We have interpreted remedial statutes broadly to give effect to the Legislature‘s intent. See In re Esther V., 2011-NMSC-005, ¶ 17, 149 N.M. 315, 248 P.3d 863. We recently explained why courts must interpret SORNA broadly.
In the [eighteen]-year history of SORNA, the Legislature has continually amended the law to make it more expansive—that is, to register more people for more offenses, to make information more accessible to the public, and to increase penalties for failing to comply. In this way, the Legislature has demonstrated its preference for a broad registry law that provides more, rather than less, protection for the community.
. . . Given the choice between a narrow, elements-based approach to the law and a broader approach that examines the offender‘s actual conduct, we find the broader approach more consonant with the Legislature‘s intent.
Hall, 2013-NMSC-001, ¶¶ 16-17.
{5} Under SORNA, a person who is convicted of criminal sexual penetration, whether it is first, second, third, or fourth degree, must register as a sex offender.
[O]ur Legislature‘s intent in enacting SORNA was to enact a civil, remedial, regulatory, nonpunitive law. . . . [T]he provisions of SORNA do not involve affirmative disability or restraint; have not historically been regarded as punishment; do not come into play only on a finding of scienter; only incidentally, if at all, promote traditional aims of retribution and deterrence; and have a rationally connected, nonpunitive purpose.
{6} Montoya appealed his convictions of first-degree kidnapping, aggravated burglary, and CSP II to the Court of Appeals, arguing that the convictions violated the constitutional prohibition of double jeopardy because he was subjected to multiple punishments for the same conduct. The Court of Appeals agreed with Montoya with respect to kidnapping and CSP II, but not with respect to aggravated burglary. Montoya, 2011-NMCA-074, ¶¶ 33-34, 43. The Court of Appeals was persuaded that the jury instructions in the case resulted in the jury finding Montoya guilty of both first-degree kidnapping and CSP II based upon the same conduct. Id. ¶¶ 42-43. In essence, the elements of kidnapping were subsumed in CSP II because CSP II required that Montoya raped his victim during the course of committing a felony, and that felony was kidnapping. Id. ¶ 42. In the alternative, citing State v. Armendariz, 2006-NMCA-152, ¶ 11, 140 N.M. 712, 148 P.3d 198, the Court of Appeals suggested that the first-degree kidnapping was supported by the elements of CSP II. Montoya, 2011-NMCA-074, ¶ 42.
{7} An analysis of the jury instructions illustrates the Court of Appeals’ rationale. The jury found Montoya guilty of kidnapping, which required the jury to find that Montoya restrained or confined his victim by force or intimidation, intending to inflict a sexual offense upon her.
{8} To remedy the double jeopardy violation, the Court of Appeals remanded the case to the district court to “vacate the conviction for the lesser offense.” Montoya, 2011-NMCA-074, ¶ 43. Vacating a conviction is the judicially created remedy to avoid multiple punishments in violation of the constitutional proscription against double jeopardy. See State v. Santillanes, 2001-NMSC-018, ¶ 28, 130 N.M. 464, 27 P.3d 456 (“‘[T]he general rule requires that the lesser offense be vacated’ in the event of impermissible multiple punishments.” (citation omitted)). Therefore, vacating a conviction is a means by which the courts give effect to the legislative intent not to punish a defendant twice for the same conduct. See Montoya, 2011-NMCA-074, ¶ 30 (acknowledging that double jeopardy protection against multiple punishments for unitary conduct is based on legislative intent). The double jeopardy proscription against multiple punishments is not based upon the
{9} On remand, the district court complied with the Court of Appeals’ mandate by vacating the CSP II conviction. CSP II is a second-degree felony carrying a basic sentence of imprisonment of nine years.
{10} As aptly noted by the district court, when the Court of Appeals found a double jeopardy violation and remanded the case for the district court to vacate the conviction for either first-degree kidnapping or CSP II, the Court of Appeals was not suggesting that Montoya was not guilty of CSP II. On the contrary, the Court of Appeals simply held that Montoya‘s conduct proved both first-degree kidnapping, because he kidnapped and raped his victim, and CSP II because he raped his victim while kidnapping her.
{11} Requiring Montoya to register as a sex offender because he was found guilty of CSP II is consistent with the legislative intent in enacting SORNA, even though the CSP II conviction was later vacated. Montoya was found guilty of raping his victim, and he does not challenge the sufficiency of the evidence to support his rape conviction. The Legislature intended that persons found guilty of rape must register under SORNA for the protection of the public. It would thwart the Legislature‘s intent to hold that a person who is found guilty of a sex offense does not have to register under SORNA if that conviction is vacated, not because the conviction lacked sufficient evidence, but because the conviction would result in double punishment. Therefore, Montoya must register.
CONCLUSION
{12} We affirm the district court. Montoya must register as a sex offender as required by SORNA.
EDWARD L. CHÁVEZ, Justice
WE CONCUR:
PETRA JIMENEZ MAES, Chief Justice
RICHARD C. BOSSON, Justice
CHARLES W. DANIELS, Justice
BARBARA J. VIGIL, Justice