STATE OF NEW MEXICO, Plaintiff-Appellee, v. NICHOLAS ORTIZ, Defendant-Appellant.
No. S-1-SC-38151
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
August 2, 2021
2021-NMSC-029
Released for Publication November 23, 2021. APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY, Francis J. Mathew, District Judge
Bennett J. Baur, Chief Public Defender
Kimberly M. Chavez Cook, Appellate Defender
B. Douglas Wood III, Assistant Appellate Defender
Santa Fe, NM
for Appellant
Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
Santa Fe, NM
for Appellee
THOMSON, Justice.
{1} Defendant Nicholas Ortiz was sixteen at the time he committed first-degree, felony murder. The New Mexico Legislature has established three categories of juvenile offenders that govern the sentencing of a “person who is less than eighteen years old.”
{2} Delinquent offenders and youthful offenders are sentenced under the Delinquency Act, which provides for a determination of whether a defendant is amenable to treatment or rehabilitation as a juvenile prior to sentencing. See
{3} Defendant appeals his criminal sentence on two grounds. First, he argues that his right to be free from cruel and unusual punishment under the
{4} We conclude that the sentencing procedure applied to Defendant that did not afford him an amenability hearing does not violate the prohibition against cruel and unusual punishment. We further conclude that a rational basis exists for the Legislature‘s decision to establish the separate categories that govern the procedure afforded to disparate offenders under the Delinquency Act. Because the facial constitutional challenge to the statutory scheme fails, our inquiry ends there. Reviewing juvenile sentencing procedures for consistency with our society‘s evolving standards of decency is a laudable endeavor. However, as in this case, such matters of public policy are best addressed by the Legislature. See State ex rel. Taylor v. Johnson, 1998-NMSC-015, ¶ 21, 125 N.M. 343, 961 P.2d 768 (“It is the particular domain of the [L]egislature, as the voice of the people, to make public policy.” (internal quotation marks and citation omitted)).
I. BACKGROUND
{5} On June 19, 2011, New Mexico State Police officers responded to a call from Cherie Rios stating that she had found her mother (Dixie), father (Lloyd), and brother (Steven) (collectively, “Ortiz family“) deceased in their home. All three were killed by blows from a pickaxe. Nearly four years later, Defendant was arrested and charged with three counts of first-degree murder, one count of aggravated burglary, one count of conspiracy to commit aggravated burglary, and one count of tampering with evidence related to the deaths of the Ortiz family.
{6} Cousins Ashley Roybal and Jose Roybal were with Defendant throughout the night and early morning when the murders took place. They provided most of the details of the events through a series of interviews with police and testimony at trial. Although their accounts of who came uр with the plan and who procured the weapon were sometimes inconsistent, both identify Defendant as the only one who entered the Ortiz home on the night in question.
{7} Jose testified that he, Ashley, and Defendant decided to burglarize the Ortiz home because they were “[t]rying to figure out how to get money,” and that Defendant, having spent time in the Ortiz home, “knew there was money there.” Ashley maintained that she was not involved in planning the burglary, while Jose identified Ashley as the one who urged him and Defendant to kill the Ortiz family. The plan was for Defendant to “enter the house [and] murder the family,”
{8} Jose testified that once they arrived at the home, he refused to go inside to assist with the murders and pleaded with Defendant not to go through with the plan. Defendant became frustrated with Jose, told him to wait, and proceeded towards the Ortiz home as Jose fled the scene on foot. Less than an hour later, Defendant called Ashley and told her that he needed to be picked up near the Ortiz home. When Ashley picked up Defendant, she described him as having a plastic bag around one of his feet and what appeared to be blood on his clothes. While driving back to her grandparents’ house, Ashley and Defendant passed Jose. Jose asked Defendant if he did it, and Defendant responded, “yea[h] and I fucked up. I didn‘t get the money.”
{9} The three met up again at Jose and Ashley‘s grandparents’ house where Jose described Defendant as “extremely shooken [sic] up,” “extremely terrified, scared,” and “[not] like I had seen him before.” On Ashley‘s suggestion, Defendant showered, where, according to testimony, he was heard crying. Ashley then gave Defendant a change of clothes and drove him home, and “[Defendant] cried the entire way.”
{10} The next day, Defendant told Ashley that he killed “them” with a pickaxe, but did not specify to whom he was refеrring. He also stated that Jose was supposed to help but “punked out,” so he went into the house by himself. He threatened Ashley, telling her to not say anything, and she believed that he would kill her if she came forward.
Defendant eventually was arrested for the murders and convicted of three counts of felony murder and conspiracy to commit aggravated burglary.1
{11} Prior to sentencing, Defendant filed a motion arguing that the constitutional prohibition against cruel and unusual punishment and the constitutional guarantee of equal protection require “an amenability hearing in conjunction with this Court‘s sentencing.” The district court held a hearing on the motion. However, due to a weather-related flight dеlay, Defendant‘s primary expert in support of his motion was unable to appear in person and was not allowed to appear by telephone. The hearing went on without the expert. Defendant filed an additional request for a hearing on the motion, which the district court denied.
{12} The district court entered its Judgment and Order of Commitment, sentencing Defendant to three counts of first-degree, felony murder and one count of conspiracy. The stand-alone charge for aggravated burglary was vacated. In his sentencing memorandum, Defendant requested that the district court “utilize its sentencing authority under [Section] 31-18-15.3 [and NMSA 1978, Section] 31-18-15.1(G) [(2009)] to sentence him as a serious youthful offendеr to less than the mandatory sentence,” which the court did. While the district court could have sentenced Defendant to a maximum sentence of life imprisonment, it instead ran all of his sentences concurrently for a total of twenty-five years. See
II. DISCUSSION
A. Categories of Child Offenders
{13} Determining how juvenile offenders are treated for purposes of sentencing requires an analysis of the interplay between the Delinquency Act and the Criminal Sentencing Act. The State‘s sentencing structure provides varying degrees of procedural proteсtions for three categories of juvenile offenders: delinquent offenders,2 youthful offenders,
{14} Under the Delinquency Act, a “youthful offender” is a delinquent child who is fourteen to eighteen years old and who commits a felony other than first-degree murder or is fourteen years old and who is adjudicated for first-degree murder. See
{15} Because he was sixteen at the time he сommitted the crimes resulting in the first-degree murder convictions, Defendant is considered a serious youthful offender. Section
{16} The Criminal Sentencing Act also provides a different sentencing procedure for serious youthful offenders convicted of first-degree murder and those convicted of lesser crimes. Alleged serious youthful offenders convicted of a crime other than first-degree murder receive amenability hearings pursuant to Delinquency Act provisions that govern delinquent offenders and youthful offenders. See
B. Issues on Appeal
{17} On appeal, Defendant argues that excluding serious youthful offenders convicted of first-degree, felony murder from the opportunity for an amenability hearing before being sentenced as an adult violates the constitutional prohibition against cruel and unusual punishment. Defendant seeks to expand the constitutional protections against unlawful sentencing outlined in Ira v. Janecka, 2018-NMSC-027, 419 P.3d 161, to require
1. Cruel and Unusual Punishment
{18} Defendant maintains that his sentence under the Criminal Sentencing Act constitutes cruel and unusual punishment under the
a. Standard of review
{19} Whether a “sentence is cruel and unusual punishment in violation of the
b. Defendant‘s sentence does not constitute cruel and unusual punishment
{20} Ira continues to define our
{21} The Ira Court noted that these cases, taken in aggregate, “reveal . . . three themes regarding the constitutionality of juvenile sentencing.” Id. ¶ 20. “First, juveniles’ developmental immaturity makes them less culpable than adults.” Id. ¶ 21 (reasoning that “juveniles’ violations are likely to be a product of ‘transient rashness’ rather than ‘evidence
{22} Defendant urges an expansion of these themes to require an amenability hearing before his sentencing as an adult, arguing that, “[a]bsent an amenability hearing, [his] age and maturity could not be given necessary consideration.” Defendant argues that the themes оutlined in Ira suggest that “[t]he imposition of the statutorily mandated adult sentence without consideration of amenability to rehabilitation fails to reflect the evolving standards of society.” See Trop v. Dulles, 356 U.S. 86, 101 (1958) (“The [
{23} We agree with Defendant that “[m]ajor developments have taken place in juvenile sentencing jurisprudence within the last fifteen years” and that this Court recognized these developments in Ira. Certainly, our societal standards of decency regarding juvenile sentencing have and should continue to evolve as we gain a clearer understanding of the psychology and brain development of young criminal offenders. “Adolescents as a group . . . are more impulsive than adults. They underestimate risks and overvalue short-term benefits. They are more susceptible to stress, more emotionally volatile, and less capable of controlling their own emotions.” Eileen Hirsch & Martha Askins, Juvenile Lifers: Reforming Extreme Sentences, 2021 Wis. L. Rev. 12, 14 (2019) (internal quotation marks and citation omitted). As the Supreme Court stated in Graham, “[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” 560 U.S. at 73.
{24} However, in this case, Defendant does not challenge his ultimate sentence. Instеad, his
{25} While we recognize that evolving standards of decency may impose additional procedural protections for juveniles in the future,
2. Equal Protection
{26} Defendant next argues that he was dеnied equal protection under the law pursuant to the
a. Defendant‘s argument is subject to rational basis review
{27} Under either the
{28} Strict scrutiny is reserved for review based on limited suspect classifications of individuals by race, immigration status, or constitutionally protected rights. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985) (noting that laws that classify “by race, alienage, or national origin” as well as those that “impinge on personal rights protected by the Constitution” are “subjected to strict scrutiny“); accord Griego v. Oliver, 2014-NMSC-003, ¶ 44, 316 P.3d 865 (“Race, national origin, and alienage are considered suspect classifications.“). Intermediate scrutiny is “used to assess legislative classifications infringing important but not fundamental rights, and involving sensitive but not suspect classes.” Trujillo v. City of Albuquerque, 1998-NMSC-031, ¶ 15, 125 N.M. 721, 965 P.2d 305 (internal quotation marks and citation omitted) (“[C]lassifications based on gender and illegitimacy traditionally have been measured under intermediate scrutiny.“); see Craig v. Boren, 429 U.S. 190, 197, 210 (1976) (establishing intermediate scrutiny for gender classifications). All other challenges are analyzed pursuant to a rational basis review. See Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (“[U]nless a classification warrants some form of heightened review because it jeopardizes exercise of a fundamental right or categorizes on the basis of an inherently susрect characteristic, the Equal Protection Clause requires only that the classification rationally further a legitimate state interest.“).
{29} Defendant‘s premise is that his sentence constitutes cruel and unusual punishment and that freedom from cruel and
{30} Because we have determined that Defendant‘s sentence does not violate the
b. The sentencing procedure for serious youthful offenders does not violate Defendant‘s constitutional right to equal protection
{31} In our review of claims under the
{32} For claims under the
{34} Under New Mexico‘s modified test, Defendant must show that the distinction created by the Legislature “is not supported by a firm legal rationale or evidence in the record.” Wagner, 2005-NMSC-016, ¶ 24 (internal quotation marks and citation omitted). Under the federal test, Defendant must show that there is no conceivable rational basis for such a distinction. See Rodriguez, 2016-NMSC-029, ¶ 26. As an initial matter, we do not agree that serious youthful offenders convicted of second-degree murder and serious youthful offenders convicted of first-degree, felony murder belong to the same cognizable class simply because both crimes require that a defendant commit them with general, rather than specifiс, criminal intent. As we explain below, this Court has previously recognized the Legislature‘s reasoning for statutorily distinguishing second-degree murder from first-degree, felony murder. See State v. Ortega, 1991-NMSC-084, ¶ 26, 112 N.M. 554, 817 P.2d 1196 (“[T]he purpose of elevating what would otherwise be second degree murders to first degree murders is to single out those especially serious killings that warrant the law‘s most serious forms of punishment.“), abrogated on other grounds by Kersey v. Hatch, 2010-NMSC-020, ¶ 17, 148 N.M. 381, 237 P.3d 683. We nevertheless proceed with our rational basis analysis based on the proposed classification.
{35} Defendant argues that “[s]entencing [him] as an adult without the potential benefit of rehabilitation, whether as a function of retribution, deterrence, or incapacitation, does nоt serve an important governmental interest.” Defendant directs the Court to consider the purpose of the Children‘s Code: “first to provide for the care, protection and wholesome mental and physical development of children coming within the provisions of the . . . Code.”
{36} On several occasions, this Court has examined the Legislature‘s purpose in enacting the Delinquency Act. The Jones Court observed that the Legislature elected to make “it easier to prosecute a child charged with first-degree murder as an adult” while also “extend[ing] the protections of the juvenile system to all other alleged juvenile offenders by treating them as children throughout the adjudication process.” Id. ¶ 32. The Jones Court further stated,
Once charged with first-degree murder, a serious youthful offender is no longer a juvenile within the meaning of the Delinquency Act, and therefore is no longer entitled to its protections. [See
§ 32A-2-3(H) (2009).] As a result, serious youthful offenders are subject to the Rules of CriminalProcedure for the District Courts applicable to adults and are automatically sentenced as adults if convicted. See id.; Rule 10-101(A)(2)(a) NMRA [(2009)].
Jones, 2010-NMSC-012, ¶ 11. We have also stated that the goals of the Delinquency Act are “rehabilitation of the child, accountability, deterrence, protection of the public, and punishment for the crime committed.” State v. Tafoya, 2010-NMSC-019, ¶ 18, 148 N.M. 391, 237 P.3d 693. Notably, the Legislature specifically omitted serious youthful offenders who commit first-degree murder from the protections of the Delinquency Act. See
{37} Further, the Legislature has legitimate reasons for distinguishing a serious youthful offender who commits first-degree, felony murder from one who commits second-degree murder because first-degree, felony murder is not equivalent to second-degree murder. The rational basis for the Legislature‘s policy choice to distinguish between second-degree murder and first-degree, felony murder and for enacting greater punishment for the latter has long been acknоwledged. “Second degree murder . . . may be elevated to first degree murder when it occurs in circumstances that the [L]egislature has determined are so serious as to merit increased punishment . . . .” Ortega, 1991-NMSC-084, ¶ 25. The Ortega Court stated,
[O]ur felony-murder statute, requiring as it does both causation attributable to the defendant (who may be acting through an accomplice) and an intent to kill (or to do an act greatly dangerous to the lives of others or with knowledge that the act creates a strong probability of death or great bodily harm), is a valid exercise of the [L]egislature‘s authority to prescribe serious punishment for killings committed with the requisite criminal intent and that occur during the commission or attempted commission оf a first degree or other inherently dangerous felony.
{38} Here, Defendant was charged with aggravated burglary, an “inherently dangerous felony,” during the commission of which three victims were killed. See Campos v. Bravo, 2007-NMSC-021, ¶ 15, 141 N.M. 801, 161 P.3d 846 (“[A]ggravated burglary was correctly used as a predicate to felony murder.“); see also State v. Groves, 2021-NMSC-003, ¶ 7, 478 P.3d 915 (noting that “this Court, through a number of cases, has attempted to discern what the Legislature meant by ‘any felony‘” in New Mexico‘s murder statute,
{39} Defendant‘s argument fails New Mexico‘s modified rational basis test because Defendant has not shown that the Legislature‘s statutory distinction is unsupported by a firm rationale or evidence in the record. Defendant‘s argument then necessarily fails the federal rational basis tеst because there is a conceivable reason supporting the Legislature‘s decision to grant an amenability hearing to a serious youthful offender convicted of second-degree murder and not to a serious youthful offender convicted of first-degree, felony murder. We therefore conclude that Defendant‘s sentence did not violate his right to equal protection under either the
III. CONCLUSION
{40} Based on the foregoing, we hold that Defendant‘s constitutional rights were not violated by being sentenced without an amenability hearing. Absent a constitutional violation, Defendant‘s juvenile sentencing requirements remain within the purview of the Legislature. We therefore affirm Defendant‘s cоnvictions.
{41} IT IS SO ORDERED.
DAVID K. THOMSON, Justice
WE CONCUR:
MICHAEL E. VIGIL, Chief Justice
C. SHANNON BACON, Justice