STATE of New Mexico, Plaintiff-Appellee, v. Colin GONZALES, Defendant-Appellant.
No. 20,998.
Court of Appeals of New Mexico.
March 26, 2001.
Certiorari Granted, No. 26,902, May 9, 2001.
2001-NMCA-025 | 24 P.3d 776
{27} IT IS SO ORDERED.
WE CONCUR: JONATHAN B. SUTIN, Judge, RODERICK T. KENNEDY, Judge.
Phyllis H. Subin, Chief Public Defender, Carolyn R. Glick, Ass‘t Appellate Defender, Santa Fe, NM, for Appellant.
OPINION
PICKARD, Chief Judge.
{1} Defendant appeals his adult sentence as a consequence of the trial court‘s findings that he was not amenable to treatment as a juvenile or eligible for commitment to an institution for the mentally disordered or developmentally disabled pursuant to
I. FACTS AND PROCEDURAL HISTORY
{2} Defendant turned fourteen years old on December 14, 1996. On March 13, 1997, after breaking into and vandalizing several other houses, Defendant and an accomplice broke into and ransacked Victim‘s home while Victim and his wife were away. The two juveniles shot Victim‘s dog with a .22 caliber rifle, which they had stolen from another house. In addition, Defendant took a .30-30 rifle from a wall in Victim‘s home and fired several rounds into a wall.
{3} When Victim and his wife returned home with their neighbors, they were alarmed to find that their dog had been shot while tied up in the yard. Victim went inside the house to call the police. The phone was next to a window outside of which Defendant and his accomplice were hiding. Defendant saw Victim, and assuming that Victim had likewise seen him, shot Victim in the chest with the .30-30 rifle. The accomplice then shot Victim in the head “to put him out of his misery.”
{4} Around the time that Victim was killed, Victim‘s wife went inside the house. She saw her husband‘s body and begged the boys not to kill her. One of the boys told her to give them money and the keys to a truck or they would kill her as well. Wife told them that she did not have any money or the keys. The boys then searched Victim‘s body, and Wife left the house in search of the neighbors. The boys came out of the house and fired 18 to 22 shots toward Wife and the neighbors. One of the neighbors was hit either by bullet fragments or fragments from a nearby car. The shot that hit the neighbor was fired from the .30-30 rifle that Defendant had stolen from Victim‘s home. At the time of his arrest, Defendant told the arresting officer that he had shot at the neighbor from about one-half mile away and that it was “a hell of a good shot” but “nothing to be proud of.”
{5} Defendant pleaded guilty to second degree murder, aggravated burglary, aggravated battery, and two counts of aggravated assault. Pursuant to
II. DISCUSSION
A. Preservation
{6} In its answer brief, the State argues that Defendant failed to preserve his argument that the “beyond a reasonable doubt” standard applies to the findings required by
{7} To properly preserve an issue for appeal, a defendant must fairly invoke a ruling or decision by the trial court.
{8} On the first day of the amenability hearing, Defendant argued that the State was required to prove non-amenability and ineligibility for commitment beyond a reasonable doubt. Defendant then proffered proposed findings of fact and conclusions of law which advocated application of the “clear and convincing” standard of proof and argued to a like effect during closing arguments. After the trial court found Defendant non-amenable to rehabilitation and ineligible for commitment, Defendant filed a motion for identification of the standard of proof used by the court in its decision. In his motion, Defendant renewed his argument that the proper standard was beyond a reasonable doubt. Nonetheless, the trial court ruled that, as a matter of law, the proper standard was “clear and convincing” evidence:
I made my ruling based on the clear and convincing evidence argument that you [Defense counsel] made to me. I still think that‘s the appropriate standard. However, upon receiving your motion, I considered the proof beyond a reasonable doubt. . . . I‘m going to rule that the standard is the clear and convincing. But I‘m also going to state that even if it were the proof beyond a reasonable doubt, I‘ve reflected on that also and I‘m satisfied that it would meet that standard if that were the standard.
{9} The case at bar is distinguishable from the cases relied upon by the State in its answer brief. In State v. Campos, 122 N.M. 148, 921 P.2d 1266 (1996), for example, our Supreme Court held that the defendant had abandoned his claim because he voluntarily stopped questioning the witness he later claimed he wanted to question. See id. at 161, 921 P.2d at 1279. In this case, in contrast, Defendant renewed his argument for application of the “beyond a reasonable doubt” standard in the motion for reconsideration and the subsequent hearing. Although the trial court did earlier apply the “clear and convincing” standard at the request of Defendant, the court indicated that it considered the arguments for the higher standard and rejected them in favor of the “clear and convincing” standard.
{10} In addition, there is no suggestion in the record that either the court or the State were prejudiced by Defendant‘s reintroduction of the “beyond a reasonable doubt” argument after the court had made its ruling. The court was able to apply the higher standard to the facts and render a judgment without the need of further hearings. Finally, the State does not claim that it would have presented a different case had it known the court would apply the higher standard. Therefore, we hold that Defendant preserved his constitutional claims and will address the issues on the merits.
B. Constitutional Arguments
{11} Defendant argues that the federal constitution, as described in Apprendi, requires that the
1. Background
{12} Before addressing Defendant‘s constitutional arguments, it is necessary to put the issue before us in context. We therefore begin by briefly reviewing the history and purpose of New Mexico‘s Delinquency Act,
{13} The juvenile justice system is primarily concerned with the rehabilitation of children, although accountability, deterrence, and protection of the public are important goals. See
{14} Since the creation of the juvenile justice system, however, the Legislature has recognized that, given finite resources and the time constraints imposed by the limited jurisdiction of the children‘s court, the system cannot rehabilitate some children who commit serious crimes. See, e.g.,
{15} Prior to 1993, New Mexico maintained a system of transfer that was similar to systems developed within the federal and other state governments. However, the 1993 amendments to the Children‘s Code created a new system that is unique in this country. Whereas most jurisdictions have maintained provisions allowing a court to waive or transfer juvenile court jurisdiction, New Mexico has chosen to abolish the transfer system in favor of vesting the children‘s courts with the authority to sentence youthful offenders as adults. See Patricia Torbet, et al., Juveniles Facing Criminal Sanctions: Three States That Changed the Rules (2000) <http://ojjdp.ncjrs.org/pubs/court.html# 181203>. Although the form of the statute may be different, the purpose and effect remain the same.
{16} In 1993, the Legislature created three “classes” of juvenile offenders: serious youthful offenders, youthful offenders, and delinquent offenders. See
{17} The class of youthful offenders to which Defendant belongs includes children fourteen years or older who are adjudicated guilty of any one of twelve enumerated violent felonies or who have three prior felony adjudications in the previous three years in addition to their current felony offense, as well as children fourteen years of age who are adjudicated guilty of first degree murder. See
- the seriousness of the alleged offense;
- whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner;
- whether a firearm was used to commit the alleged offense;
- whether the alleged offense was against persons or against property, greater weight being given to offenses against persons, especially if personal injury resulted;
- the sophistication and maturity of the child as determined by consideration of the child‘s home, environmental situation, emotional attitude and pattern of living;
- the record and previous history of the child;
- the prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the child by the use of procedures, services and facilities currently available; and
- any other relevant factor, provided that factor is stated on the record.
{18} If the court finds that a child is neither amenable to treatment as a child nor eligible for commitment, the court may impose either a juvenile disposition or an adult sentence. See
{19} Although the consequences of the determination that a youthful offender is non-amenable to treatment and ineligible for
{20} With these considerations in mind, we now turn to Defendant‘s constitutional arguments. The issues presented by this case are whether the due process clause of the Fourteenth Amendment to the United States Constitution requires that the
2. Apprendi
{21} Defendant does not argue that federal law decided prior to Apprendi compels the application of the “beyond a reasonable doubt” standard to the
{22} In Apprendi, the Supreme Court held that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 120 S.Ct. at 2362-63. After the defendant there pleaded guilty to second degree possession of a firearm, the prosecutor filed a motion seeking to enhance the sentence under the New Jersey “hate crimes” law. See id. at 2351. The law provided for an extended term of imprisonment if the trial court found, by a preponderance of the evidence, that the defendant acted with the purpose to intimidate an individual or group because of an impermissible bias. The trial court found that the defendant had acted with racial bias and imposed a twelve-year sentence, which was two years longer than the maximum sentence allowed for a second degree felony. See id. at 2352. The Supreme Court reversed the sentence, holding that the hate crime statute defined an element of a criminal offense and, as such, due process required that a jury find beyond a reasonable doubt that the defendant acted with the purpose to intimidate. See id. at 2364-66.
{23} Defendant argues that the Apprendi decision applies to the amenability determination, given the fact that the
{24} By way of introduction, we note that a determination that a child is not amenable to treatment within the juvenile system differs from findings related to the elements of crime in three significant ways. First, while findings of guilt are measures of the degree of an individual‘s criminal culpability, the finding that a child is or is not amenable to
{25} Whether ultimately given a juvenile disposition or an adult sentence, every youthful offender has the constitutional right to the State‘s proof of every element of a criminal offense beyond a reasonable doubt. See Apprendi, 120 S.Ct. at 2366; In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). By contrast, whatever right a child may have to be treated as a child within the juvenile justice system is a statutory, not a constitutional, right. See Kent v. United States, 383 U.S. 541, 547-48, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). The United States Supreme Court has drawn a clear line between the process due during an adjudication of delinquency or guilt and the lesser process due during an amenability hearing. Compare In re Winship, 397 U.S. at 365, 90 S.Ct. 1068 (“The same considerations that demand extreme caution in fact-finding to protect the innocent adult apply as well to the innocent child.“), with Kent, 383 U.S. at 562, 86 S.Ct. 1045 (holding that amenability hearings “must measure up to the essentials of due process and fair treatment“), and Breed v. Jones, 421 U.S. 519, 537, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975) (“The [Supreme] Court has never attempted to prescribe criteria for, or the nature and quantum of evidence that must support, a decision to transfer a juvenile for trial in adult court.“). The determination of a youthful offender‘s amenability to treatment within the juvenile system is a question of the prospects for rehabilitation of the child, not of the degree of a child‘s criminal culpability. The constitutional concerns expressed by the Supreme Court in Winship and Apprendi are satisfied by the jury‘s finding beyond a reasonable doubt that a child committed the offenses that form the foundation permitting the court to sentence the child as an adult.
{26} The second difference between the
{27} As such, a finding of non-amenability is different in nature from the type of findings discussed in Apprendi. Whether a defendant acts with the intention to intimidate another based on prejudice or bias is a fact susceptible to proof beyond a reasonable doubt. See Apprendi, 120 S.Ct. at 2355. On the other hand, amenability or eligibility for commitment are not as susceptible to proof by this high standard. As the Supreme Court noted in Addington v. Texas, 441 U.S. 418, 429, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979):
[T]he initial inquiry in a civil commitment proceeding is very different from the central issue in either a delinquency proceeding or a criminal prosecution. In the latter cases the basic issue is a straightforward factual question—did the accused commit the act alleged? There may be factual issues to resolve in a commitment proceeding, but the factual aspects represent only the beginning of the inquiry. Whether the individual is mentally ill and dangerous to either himself or others and is in need of confined therapy turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists. Given the lack of certainty and the fallibility of psychiatric diagnosis, there is a serious question as to whether a state could ever prove beyond a rea-
sonable doubt that an individual is both mentally ill and likely to be dangerous.
{28} Additionally, a court, which has regular exposure to both the criminal and juvenile systems, is in a much better position to determine an individual child‘s amenability to treatment within existing programs. In their day-to-day interactions with sentencing decisions, presentence reports, probation violations, and the whole range of criminal and juvenile justice issues, trial courts become knowledgeable about the basic considerations governing appropriate dispositions for offenders.
{29} With the foregoing as background, the important point is that the reasoning of the Apprendi decision itself supports our result. In reaching its holding, the Court distinguished and upheld trial courts’ traditional discretion to consider factors relating both to the offense and the offender in imposing a sentence within the range set by statute. See id. at 2358. The Court also distinguished its holding from cases dealing with fact-finding in capital sentencing on the grounds that it is the jury‘s verdict of guilty of first degree murder that exposes a defendant to the possibility of a death sentence. See id. at 2366. The Court adopted the position that
“[o]nce a jury has found the defendant guilty of all the elements of an offense which carries as its maximum penalty the sentence of death, it may be left to the judge to decide whether that maximum penalty, rather than a lesser one, ought to be imposed. . . . The person who is charged with actions that expose him to the death penalty has an absolute entitlement to jury trial on all the elements of the charge.”
Id. (quoting Almendarez-Torres v. United States, 523 U.S. 224, 257 n. 2, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (Scalia, J., dissenting)).
{30} The test for determining whether a particular fact is a sentencing factor or an element of the crime “is one not of form, but effect—does the required finding expose the defendant to a greater punishment than that authorized by the jury‘s guilty verdict?” Apprendi, 120 S.Ct. at 2365. This test is not merely whether a particular finding may result in a greater sentence than would have occurred without the finding, but whether the finding sets the maximum sentence to which a defendant may be subjected.
{31} While a finding of non-amenability and ineligibility for commitment may expose a youthful offender to a longer period of deprivation of liberty than is possible under the Children‘s Code, only two factual findings are required to expose a child to the possibility of adult sentencing: (1) the child‘s age at the time of the offense and (2) the jury‘s verdict or a plea of guilty to a specifically enumerated felony or to any felony, provided it is in fact the child‘s fourth felony in three years. Under
{32} In conclusion, we hold that Apprendi is inapplicable to the
3. State Constitution
{33} New Mexico cases have never articulated the standard of proof pursuant to which the findings required by
{34} Defendant argues that two provisions in the current Delinquency Act suggest the Legislature‘s intent to apply the beyond a reasonable doubt standard to the
{35} We note that New Mexico courts have consistently held that the lack of a standard of proof for the amenability findings does not violate due process under the federal constitution. See State v. Doyal, 59 N.M. 454, 461-62, 286 P.2d 306, 311-12 (1955) (upholding law allowing any child charged with a felony to be prosecuted in district court); State v. Jimenez, 84 N.M. 335, 336, 503 P.2d 315, 316 (1972) (holding transfer statute constitutional and noting that revised statute gave greater guidance to trial courts in determining whether juvenile should be tried in adult court than statute upheld in Doyal); State v. Doe, 91 N.M. 506, 509–10, 576 P.2d 1137, 1140-41 (Ct.App. 1978) (holding that treatment as a child is not a constitutional right, but a right granted by the Legislature and statute met basic due process requirements); State v. Doe, 100 N.M. 649, 651, 674 P.2d 1109, 1111 (1983) (holding statute which required consideration, rather than a finding, of amenability was constitutional); In re Ernesto M., Jr., 121 N.M. 562, 915 P.2d 318, 1996-NMCA-039, ¶¶ 5-8 (holding that current statute meets due process requirements and that federal constitution does not require a particular standard of proof); Sosa, 123 N.M. 564, 943 P.2d 1017, 1997-NMSC-032, ¶ 9 (holding that decision to sentence juvenile as an adult subject to abuse of discretion review).
{36} Finally, when compared with the laws of other states, the lack of a discernible standard in
{37} Based on the legislative history of the code, New Mexico case law, and statutes from other jurisdictions, we find no reason to hold that the New Mexico Constitution requires a “beyond a reasonable doubt” standard. We need not decide in this case whether to adopt the preponderance standard advocated by the State in view of the trial court‘s use of the “clear and convincing” standard and our upholding of its decision based on it in the next section of this opinion.
C. Sufficiency of the Evidence
{38} Defendant argues that whatever standard of proof is applicable, the State failed to prove that Defendant was not amenable to treatment as a juvenile or eligible for commitment to an institution for the developmentally disabled or mentally disordered. See
1. Standard of Review
{39} Defendant argues that this Court should review the entire record in a de novo type of manner to determine whether the evidence supported a finding that Defendant was not amenable to treatment as a juvenile or eligible for commitment. Defendant argues that State v. Sheets, 96 N.M. 75, 78, 628 P.2d 320, 323 (Ct.App. 1981), and Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), require us to consider all the evidence presented to the trial court. We do not read either case as supportive of Defendant‘s claim. Sheets and Jackson stand for the unremarkable proposition, long accepted by New Mexico courts, that in reviewing the sufficiency of the evidence supporting a conviction, whatever evidence is reviewed by this Court must be viewed in the light most favorable to the prosecution. Jackson, 443 U.S. at 319, 99 S.Ct. 2781 (“Once a defendant has been found guilty of the crime charged, the factfinder‘s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.” (emphasis in original)).
{40} In assessing a claim of evidentiary insufficiency, this Court asks whether substantial evidence supports the court‘s decision. In re Ernesto M., Jr., 121 N.M. 562, 915 P.2d 318, 1996-NMCA-039, ¶ 15. Neither the basic formulation of the question nor the language we use in describing the trial courts’ function changes depending on the standard of review. “Substantial evidence is relevant evidence that a reasonable mind would accept as adequate to support a conclusion.” State v. Laguna, 1999-NMCA-152, ¶ 7, 128 N.M. 345, 992 P.2d 896. This Court views the evidence in the light most favorable to the trial court‘s decision, resolves all conflicts and indulges all permissible inferences to uphold the court‘s decision, and disregards all evidence and inferences to the contrary. Id. We do not reweigh the evidence and will not substitute our judgment for that of the trial court. In re Ernesto M., Jr., 121 N.M. 562, 915 P.2d 318, 1996-NMCA-039, ¶ 15. We recognize that the factfinder is entitled to disregard evidence presented by either party, State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988), and to disregard the testimony of experts, see In re Ernesto M., Jr., 121 N.M. 562, 915 P.2d 318, 1996-NMCA-039, ¶ 14. Our role is to review the evidence to determine whether any rational fact-finder could conclude that the proof requirement below was met. See Jackson, 443 U.S. at 319, 99 S.Ct. 2781 (“the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt“); In re Termination of Parental Rights of Eventyr J., 120 N.M. 463, 466, 902 P.2d 1066, 1069 (Ct.App. 1995) (“Our standard of review is therefore whether, viewing the evidence in the light most favorable to the prevailing party, the fact finder could properly determine that the clear and convincing standard was met.“). In this case, because the trial court used the clear and convincing standard, we will evaluate whether, viewing the evidence in the light most favorable to the State, the trial court could have found
2. Amenability to Treatment
{41} Defendant challenges the trial court‘s finding of non-amenability on three grounds: (1) the court ignored the uncontradicted expert testimony that Defendant was amenable to treatment, (2) the court misunderstood or mischaracterized the expert testimony in its finding, and (3) the court misapplied the
{42} The evidence regarding Defendant‘s amenability to treatment or rehabilitation was not uncontradicted as Defendant suggests. Although the experts testified that Defendant had made some progress in therapy, the testimony indicated that he carried the risk of violence with him and that it was impossible to predict whether he would reoffend given that, at the time of the hearing, he was sheltered from his peers. At least one of the defense witnesses who had observed Defendant‘s progress while in treatment testified that Defendant‘s progress had been sporadic: some days Defendant seemed to work at getting better, other days he appeared to be just “playing the game.” Furthermore, several expert witnesses expressed concern over Defendant‘s lack of remorse for the murder. Finally, most experts expressed an understanding that amenability to treatment or rehabilitation under
{43} As stated above, “[i]t is well settled in New Mexico that a factfinder may disregard the opinions of experts.” In re Ernesto M., Jr., 121 N.M. 562, 915 P.2d 318, 1996-NMCA-039, ¶ 14. The trial court chose to disregard the testimony of most experts because their opinions of Defendant‘s prospects for rehabilitation were formed without knowledge of Defendant‘s history of destructive and aggressive behavior. In the case of Sonde Harley Grano, the expert witness whom the court did find credible and upon whose testimony the court relied in making its findings, the court was entitled to disregard her ultimate conclusions as to Defendant‘s amenability. As the court said, “[Ms.] Grano felt that he was amenable to treat-
{44} Furthermore, although the trial court did appear to misunderstand or misremember some of Ms. Grano‘s testimony, other evidence supported the court‘s conclusions. For example, although the court seemed to misunderstand Ms. Grano‘s testimony regarding Defendant‘s appearance of passivity at the time of the hearing, Ms. Grano later testified that it was impossible to predict whether Defendant‘s passivity was a permanent change given that Defendant was sheltered from his peers at the time of the hearing.
{45} Finally, Defendant argues that the court erred by using the seven factors set forth in
{46} Defendant pleaded guilty to second degree murder, aggravated battery, two counts of aggravated assault, and aggravated burglary. Any one of these offenses alone was sufficient to subject Defendant to the possibility of adult sentencing. See
3. Eligibility for Commitment
{47} Defendant appears to argue that if any expert deems a child eligible for commitment under
{48} Furthermore, one expert witness testified that Defendant‘s mental status would need to decline significantly before Defendant could be committed under
III. CONCLUSION
{49} We affirm.
{50} IT IS SO ORDERED.
I CONCUR: RICHARD C. BOSSON, Chief Judge.
BUSTAMANTE, Judge (specially concurs).
BUSTAMANTE, Judge (specially concurring).
{51} I agree with the majority that affirmance is appropriate. However, I would take the opportunity to finally determine the standard of proof required to establish that a youthful offender is not amenable to treatment or rehabilitation. I concur in the result the majority has reached as to the Apprendi issue, though I cannot agree with most of the analysis which produces it.
STANDARD OF PROOF
{52} The majority declines to decide which standard of proof is appropriate for the amenability finding. I agree that the two provisions Defendant relies upon in the juvenile code do not support his argument, and I recognize that the majority accurately cites New Mexico case law on this issue, but I believe it is time to settle the issue.
{53} In our last pronouncement on the issue—In re Ernesto M., Jr.—we rejected a constitutional challenge to
{55} A standard of proof has at least two functions: It serves to guide the fact finder as to the level of confidence it should have in its decision and it serves as a means of allocating the risk of error between the litigants. In re Winship, 397 U.S. at 370–71, 90 S.Ct. 1068; Santosky v. Kramer, 455 U.S. 745, 755, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).
{56} By way of illustration, the Supreme Court in Santosky contrasted the bases for the preponderance of the evidence and beyond reasonable doubts standard as follows:
Thus, while private parties may be interested intensely in a civil dispute over money damages, application of a “fair preponderance of the evidence” standard indicates both society‘s “minimal concern with the outcome,” and a conclusion that the litigants should “share the risk of error in roughly equal fashion.” [Addington, 441 U.S. at 423, 99 S.Ct. 1804.] When the State brings a criminal action to deny a defendant liberty or life, however, “the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment.” Id. The stringency of the “beyond a reasonable doubt” standard bespeaks the “weight and gravity” of the private interest affected, id., at 427, 99 S.Ct. 1804, society‘s interest in avoiding erroneous convictions, and a judgment that those interests together require that “society impos[e] almost the entire risk of error upon itself.” Id., at 424, 99 S.Ct. 1804.
Santosky, 455 U.S. at 755, 102 S.Ct. 1388.
{57} I appreciate the concern the majority expresses concerning the propriety of imposing the criminal beyond a reasonable doubt standard to this particular finding. Amenability is more predictive than historical. It is an attempt to predict the future conduct of the juvenile defendant. Moreover, the statute makes it clear that it is not simply a medical or psychological question. It is a mixed bag of history, potential for treatment, and a straightforward need to protect the public. In addition, by the time the trial court is making the amenability assessment, the juvenile has already been convicted or has pled to criminal conduct making the sentencing necessary. The conviction must occur under the normal beyond a reasonable doubt standard. Thus, by the time of sentencing, the criminal policy objectives noted above have, for the most part, been fulfilled.
{58} Employing the three-part test enunciated by the United States Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), I suggest that the
{59} Applying Mathews points to the need for at least an intermediate standard of clear and convincing evidence. The weight or value of the private interest at stake is clear and significant. Personal liberty and freedom of movement have consistently been treated as surpassing values in the United States, and state initiated proceedings curtailing freedom have consistently called for heightened standards of proof. The criminal standard is the benchmark, but there are other types of actions involving curtailment of personal freedom which invoke an intermediate standard, i.e., civil commitments (Addington, 441 U.S. at 478, 99 S.Ct. 1831), deportation (Woodby v. INS, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966)), denaturalization (Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943)).
{60} Of course, by the time a juvenile defendant faces an amenability hearing, he or she has already forfeited the right to be free as such. The choice at this point is between the juvenile and adult systems. With the former, the juvenile likely faces a shorter time of incarceration and the potential for treatment and rehabilitation. With the latter sentence, the juvenile faces significantly longer incarceration in a harsher environment and the prospects of little or no treatment and rehabilitation. Thus, while the individual interest at the time of the amenability hearing is muted, it is still significant.
{61} The risk of error is unquestionably heightened by the absence of a specific standard of proof which the trial courts know to apply. This is not to disparage the work, quality, or good faith of trial judges. It is simply a reflection of the difficulty of the task and a common sense observation that the lack of a specific standard makes the task that much harder. Faith in the quality of the children‘s court bench is simply not an entirely satisfactory substitute for appropriate due process standards.
{62} The interests of the State are complex. Any adverse monetary impact created by meeting a higher standard of proof can be expected to be de minimis and should be discounted. The State‘s interest in the outcome of the amenability hearing are conflicting. On the one hand the State is dealing with a convicted juvenile. The societal policy preferring freeing the guilty to convicting the innocent which drives the criminal standard is no longer applicable in full force. The stronger societal interest is now self-protection and, frankly, punishment. On the other hand, the State has a continuing interest in attempting to salvage its youth from the sad consequences of their actions. Abandoning the goal of rehabilitation should not be made too easy through the mechanism of a too-low standard of proof. On balance, the Mathews
{64} Breed, 421 U.S. 519, 95 S.Ct. 1779 is not to the contrary. In Breed, the United States Supreme Court held that double jeopardy applied to juvenile transfer proceedings if a determination that the juvenile had violated the law was made prior to or at the transfer hearing. Since jeopardy attached at that point, the Court held that the juvenile could not then be retried in adult court. In exploring the procedural consequences of its ruling, the Court observed that complying with its decision should not in and of itself change the nature of transfer hearings. The court noted that it had “. . . never attempted to prescribe criteria for, or the nature and quantum of evidence that must support, a decision to transfer a juvenile for trial in adult court.” Breed, 421 U.S. at 537, 95 S.Ct. 1779. That statement in Breed is a little more than a descriptive statement of the then state of the law. The Court up to that time had not addressed the standard of proof required in what were then termed transfer hearings, and it still has not to this date. The Court‘s observation should not be read as a holding or acknowledgment by the court that no standard of proof is required. Rather, it is more appropriate to read it as assurance by the Court that no change of procedure—such as a showing of probable cause that the juvenile committed an offense—was required to comply with its double jeopardy ruling.
{65} In sum, adopting a clear and convincing standard of proof would provide a welcome guide to the trial bench as they make these difficult decisions. It would also make the process more consistent and predictable for the state and defendants alike.
APPRENDI ISSUES
{66} I am simply not as confident as the majority that the rule of Apprendi is inapplicable to our juvenile sentencing system.
{67} The differences between the juvenile and adult justice systems are not in my view so dramatic or fundamental that Apprendi of
{68} Despite my reservations about the route taken by the majority, I must agree with the result. As the majority notes, juveniles have no constitutional right to be treated as a child within the juvenile system.2 Given that limitation, the legislature can set sentencing essentially as it pleases for juveniles. New Mexico‘s unique system has given the trial judge two sentencing options. The amenability determination helps guide which option a judge may employ, but it does not increase the maximum sentence allowed by the legislature. In this way, our system most closely resembles in operation the capital sentencing procedures approved by the Supreme Court in Apprendi, 120 S.Ct. at 2389.