State v. SandovalState v. Sandoval
- Reporters:
- ,
- Before:
- J. Miles Hanisee, Megan P. Duffy, Katherine A. Wray
HANISEE, Judge.
{1} Defendant Paul Sandoval appeals his convictions of numerous offenses against the victim in this case, a minor named S.M. (Victim), including four counts of criminal sexual penetration (CSP), contrary to
BACKGROUND
{2} On April 25, 2014, Victim, then a fifteen-year-old girl, received a text message from Defendant at some point during the night inviting her to “hang out.” At that time, Victim was already acquainted with Defendant, then a nineteen-year-old male, the two having previously engaged in consensual sexual intercourse at least once. Victim accepted Defendant‘s invitation to hang out, and soon thereafter Defendant and another male, Stacy Walker, arrived at Victim‘s house in a vehicle to pick her up. Defendant and Walker, both of whom appeared to be intoxicated, then drove Victim to Defendant‘s residence.
{3} Once at Defendant‘s home, Victim noted that it looked as though a party had just ended, observing alcohol “everywhere” within the house and a table set up for drinking games. No one else was present in the home aside from Victim, Defendant, and Walker. Once the three arrived, Defendant and Walker continued to drink beer. Victim was initially reluctant to consume alcohol, but the two men backed her into a corner of the living room and told her she had to drink. Victim became scared and drank a cup of beer in an effort to get the men away from her. Victim then felt sick and went to the bathroom where she vomited. Upon returning from the bathroom, one of the men—which one is unknown—threw Victim over Walker‘s lap and
{4} Inside the bedroom, Defendant grabbed Victim from behind while she was facing Walker, who was seated on the bed in front of her. Defendant and Walker then took Victim‘s clothes off as well as their own while Victim asked them to stop. They did not. Defendant and Walker then proceeded to sexually assault Victim by penetrating her both vaginally and anally. Victim repeatedly told the men to stop, and Defendant responded by hitting Victim in the face while berating her. Also while committing the assault, Defendant touched Victim‘s vagina with his fingers and bit Victim‘s breasts with his mouth. After an unidentified amount of time, Victim persuaded Defendant and Walker to stop by asking them for “a break.” The men stopped, and Victim, noticing they were distracted, put on her pants, grabbed some of her remaining belongings, and ran out of the bedroom. Defendant and Walker chased Victim as she exited the house, but after a brief altercation in which Victim hit Defendant to escape his grasp, Victim was picked up by her grandmother at a nearby gas station.
{6} In the present indictment, Defendant is charged with eight offenses, five of which contain charges “in the alternative” to the primary count. In general terms, Count 1 of the indictment charges Defendant with the following: criminal sexual penetration of Victim‘s vagina, either through the use of force or coercion and when aided and abetted by another, or, alternatively, criminal sexual penetration of a minor through the use of force or coercion. See
{7} Count 5 alleges a further instance of criminal sexual contact of a minor for spanking Victim‘s clothed buttocks with the help or encouragement of another.2 See
DISCUSSION
I. Statutes of Limitations
{9} Defendant first argues that his convictions of five separate third- and fourth-degree felonies—Counts 3 (alternative), 5, 5 (alternative), 6, and 8—violate the statute of limitations barring prosecution for such offenses. See
{10} “When facts relevant to a statute of limitations issue are not in dispute, the standard of review is whether the district court correctly applied the law to the undisputed facts.” State v. Kerby, 2007-NMSC-014, ¶ 11, 141 N.M. 413, 156 P.3d 704 (internal quotation marks and citation omitted). “We review questions of law de novo.” Id. Defendant and the State agree for the purposes of this argument that Victim‘s interview with police on June 11, 2014, constitutes a “report” to law enforcement and began the limitation period of five years for prosecution of third- and fourth-degree felonies. See
{11} Defendant‘s argument requires us to determine whether the Legislature intended to abrogate nonstatutory tolling of a statute of limitations. This question presents an issue of statutory interpretation, which we consider de novo. See State v. Duhon, 2005-NMCA-120, ¶ 10, 138 N.M. 466, 122 P.3d 50. “Our primary goal when interpreting statutory language is to give effect to the intent of the
{12} Defendant argues, and the State concedes, that the primary tolling statute,
{13} In so arguing, the State relies on State v. Martinez, 1978-NMCA-095, 92 N.M. 291, 587 P.2d 438, to assert that nonstatutory tolling, sometimes called common law tolling, is a valid practice in New Mexico criminal cases. In Martinez, the defendant
{14} On appeal, this Court reversed the district court‘s order, stating that “the indictment was timely because the limitation period was tolled by the filing of the complaint.” Id. ¶¶ 12, 25. Our holding rested on the fact that the initial complaint was timely filed in magistrate court, which then had limited jurisdiction to conduct a preliminary hearing and determine if probable cause existed to bind the defendant over for felony trial in district court. See id. ¶ 6. We noted that if probable cause was so found, the proceedings in district court must then have proceeded “either on the
{15} Our holding in Martinez, therefore, rests on the operation of criminal procedure: the state filed a complaint in magistrate court alleging felony charges against the defendant; the state then opted to have the grand jury, rather than the magistrate, determine whether probable cause existed to support a felony indictment; and once that determination was made, the state issued a superseding felony indictment in district court, and the magistrate court was without jurisdiction to hear the felony charges. Id. ¶¶ 2, 6-9. Most importantly, there was no lapse between the criminal complaint, which was timely filed in magistrate court, and the subsequent proceedings in district court. See id. ¶¶ 5, 10. Thus, as indicated by the Martinez Court‘s consideration of the word “continuation” as a valid view in relation to “tolling,” the statute of limitations in that case was never violated, and no tolling provision, statutory or otherwise, was required to allow for further prosecution. See id. ¶ 10.
{16} In other words, Martinez merely recognizes various facets of criminal procedure related to the progression of a single case from magistrate to district court and the fact that, if the magistrate had determined probable cause existed, a new charging instrument must have nonetheless been filed in district court just as it had been, and such a procedural requirement should not operate as a bar to prosecution.
{17} The State points us to two additional cases in its argument that the first indictment here tolled the statute of limitations while it was pending. First, it cites State v. Collier, in which the defendant was timely charged with felony extreme cruelty to animals, but not its lesser included misdemeanor offense, within seven months of the alleged crime. 2013-NMSC-015, ¶ 4, 301 P.3d 370. The first proceeding resulted in a mistrial due to jury deadlock, and, at the second trial in January 2009, the state requested, for the first time, that the jury be instructed on the lesser included misdemeanor. Id. ¶¶ 5-6. The second trial resulted in acquittal on the felony charge, but the jury hung on the misdemeanor. Id. Thereafter, the district court dismissed the case, concluding the state did not “explicitly charge [the d]efendant with [the] misdemeanor . . . within the two-year statute of limitations period for that crime.” Id. ¶ 7.
{18} On appeal, our Supreme Court held that the case should not have been dismissed because the state filed its felony indictment “within the limitations period” for both the felony and its lesser included misdemeanor. See id. ¶ 31. The Supreme Court further stated, “A timely filed charging document stops the statute of limitations clock from running on any explicitly charged offenses and any lesser included offenses upon which the district court properly instructs the jury at trial.”
{19} The third case the State references is State v. Padilla, 2023-NMCA-047, 534 P.3d 223, cert. granted (S-1-SC-39897, July 10, 2023). In Padilla, this Court recently considered whether a timely filed criminal complaint, later dismissed for improper venue, permitted the untimely filing of a subsequent indictment. Id. ¶ 1. We held that (1) the defendant‘s motion to dismiss for improper venue “fell within the category of circumstances governed by [the statute],” but (2) Section 30-1-9(B) did not toll the limitation period “because the [i]ndictment was not brought within five years of the last charged event.” Padilla, 2023-NMCA-047, ¶¶ 8, 10; see also
{20} Our holding in Padilla was narrow: while we noted that we do not read Martinez, discussed above, to permit nonstatutory tolling “when . . . Section
{21} The precise question presented by this case is whether the existence of Section 30-1-9 indicates a legislative intent to exclude other forms of tolling not contained therein, or whether its narrow language and applicability impliedly permits nonstatutory tolling, as the State here argues it does. This presents a question of statutory interpretation, which first requires us to turn to the plain language of the
{22} Section 30-1-9(B), the portion of the tolling statute relevant to this case, tolls the limitation period for commencing prosecution when
(1) an indictment, information or complaint is lost, mislaid or destroyed;
(2) the judgment is arrested;
(3) the indictment, information or complaint is quashed, for any defect or reason; or
(4) the prosecution is dismissed because of variance between the allegations of the indictment, information or complaint and the evidence; and a new indictment, information or complaint is thereafter presented, the time elapsing between the preferring4 of the first
indictment, information or complaint and the subsequent indictment, information or complaint shall not be included in computing the period limited for the prosecution of the crime last charged; provided that the crime last charged is based upon and grows out of the same transaction upon which the original indictment, information or complaint was founded, and the subsequent indictment, information or complaint is brought within five years from the date of the alleged commission of the original crime.
Notably, Section 30-1-9(B) does not provide for tolling in cases where, as here, the state voluntarily dismisses its own charges. See Martinez, 1978-NMCA-095, ¶ 16 (stating that the Legislature did not intend the statute to apply to voluntary dismissals). Neither party disputes this proposition. Nonetheless, whether this statute serves as well to eliminate application of nonstatutory tolling is determined by its language and history and is a question we are, unlike in Padilla, now required to answer.
{23} As indicated by the majority opinion and dissent in Padilla, the language of Section 30-1-9 does not lend itself to any clear conclusion of legislative intent regarding the applicability or abrogation of common law tolling principles. Compare Padilla, 2023-NMCA-047, ¶ 12 (holding that nonstatutory tolling does not apply when a case falls within the circumstances described in Section 30-1-9 but stopping short of commenting on whether it may be applicable in other circumstances), with Padilla, 2023-NMCA-047, ¶ 18 (Duffy, J., dissenting) (proposing affirmance by stating that Martinez opened the door to nonstatutory tolling and that Section 30-1-9 did not establish limitation of other tolling mechanisms outside of the statute).
{24} We adhere to this analysis and, to the extent Padilla left unresolved this question for another day, that day has arrived. We now hold that the Legislature has established the circumstances in which criminal statutes in New Mexico may be tolled and has thereby disallowed application of separate, nonstatutory tolling. As discussed below, Martinez and Collier present no barrier to this conclusion because neither case involved a circumstance in which the statute of limitations was tolled and then restarted. See Martinez, 1978-NMCA-095, ¶ 10; Collier, 2013-NMSC-015, ¶ 37. We are thus without any established precedent indicating that nonstatutory tolling has been recognized in New Mexico, and decline to adopt it here.
{26} Stated differently, to hold as the State suggests would empower it to orchestrate its own limitation period in any given case, undermining legislative autonomy and rendering indefinite the period of time in which an uncharged citizen must await prosecutive determination of whether the power of the state will or will
{27} Martinez and Collier do not require a different rule or acknowledgement of a limited exception. Those cases pertain to facts in which a timely complaint or indictment was filed, but the convictions ultimately obtained at trial were based on either a superseding charging document as required by criminal procedure or allegations not expressly charged but “necessarily” included lesser offenses associated with a timely charged felony crime. See Martinez, 1978-NMCA-095, ¶¶ 2, 9-12; Collier, 2013-NMSC-015, ¶¶ 4-7. In both cases, there was no lapse between the original charging document, the subsequent one, and the conviction ultimately challenged. Padilla, although analyzing a lapse of merely two months between the initial and subsequent charging document, 2023-NMCA-047, ¶¶ 2-3, involved a circumstance in which Section 30-1-9 applied—dismissal due to
{28} The facts of this case are altogether different from the above cases and illustrate why broader acceptance of nonstatutory tolling is incompatible with Section 30-1-8 and therefore unwarranted. Here, the State voluntarily dismissed the first indictment against Defendant primarily because, although over four years had passed since Defendant committed the crimes in question, the State discovered that it had never tested Victim‘s clothing for scientific evidence. Despite this realization, the State still issued its subsequent indictment over fifteen months after it dismissed the first one. These choices represent strategic decisions by the State and constitute the type of delayed, prolonged possibility of prosecution that Section 30-1-8 is specifically designed to guard against.
{29} Neither existing precedent nor statutory law permits tolling of the statute of limitations when the State voluntarily dismisses its own charges to obtain more evidence in support of its case. Here, the State filed its second indictment alleging third- and fourth-degree felonies against Defendant five years and seven months
II. Defendant‘s Convictions of CSCM Violate Double Jeopardy
{30} Defendant next argues that his two remaining convictions of CSCM—Counts 3 and 4 for touching Victim‘s unclothed vagina and breasts—violate double jeopardy because the underlying acts constitute conduct unitary with CSP (Counts 1 and 2). We agree and conclude that Defendant‘s convictions of Counts 3 and 4 must be vacated.
{31} “Appellate review of a claim that multiple punishments have been imposed for the same offense in violation of the Fifth Amendment prohibition against double jeopardy presents a question of law which we review de novo.” State v. Sena, 2020-NMSC-011, ¶ 43, 470 P.3d 227. “One of the protections of the Fifth Amendment is the prohibition of multiple punishments for the same offense.” Id. ¶ 44 (internal quotation marks and citation omitted). Such duplicative punishment may arise either through charges alleging multiple violations of an individual statute for a single course of conduct or from instances “in which a defendant is charged with violating different statutes in a single course of conduct.” Id. The latter of these, and the form of double jeopardy violation Defendant argues is present here, is called “double
{32} Only if the conduct at issue is unitary do we proceed to the second step in our analysis which asks whether the Legislature “intended to create separately punishable offenses.” Id. ¶ 25. Here, however, both Defendant and the State agree that under the facts of the present case, the Legislature did not intend to separately punish unitary conduct underlying convictions for both CSP and CSCM. See State v. Porter, 2020-NMSC-020, ¶ 8, 476 P.3d 1201 (requiring comparison of the elements of the offense by “looking at the [s]tate‘s legal theory of how the statutes were violated“); State v. Mora, 2003-NMCA-072, ¶¶ 2, 19, 133 N.M. 746, 69 P.3d 256 (stating that based on the elements of the offense, the “[L]egislature has not clearly expressed an intention for multiple punishments for unitary conduct that violates [the CSP and CSCM statutes]“). Thus, the only question is whether Defendant‘s touching of Victim‘s breasts and vagina was unitary with his penetrative assaults.
{33} “A defendant‘s conduct is unitary if the acts are not separated by sufficient indicia of distinctness.” State v. Phillips, 2024-NMSC-009, ¶ 38, 548 P.3d 51
{34} Despite continued use of the Herron factors, albeit with varying emphases on different facts in each case, see Bernal, 2006-NMSC-050, ¶ 17, New Mexico appellate courts have identified several other guiding principles applicable when determining whether a defendant‘s conduct is unitary. See, e.g., State v. Begaye, 2023-NMSC-015, ¶ 14, 533 P.3d 1057 (identifying several cases in which the
{35} With the above principles in mind, we turn to the instant case. Defendant asserts that the acts underlying the two counts related to touching Victim‘s breast and vagina happened at the same time as the acts underlying the two counts related to separate penetrations. We observe that all of the conduct at issue, Defendant‘s penetration of both Victim‘s anus and vagina as well as his touching of her breasts and genitals, occurred in Defendant‘s bedroom without any identifiable temporal breaks in the overall assault. Defendant and Walker maneuvered Victim into
{36} The State relies on Sena to argue that Defendant‘s contact with Victim‘s genitals is sufficiently discrete from the penetration that the acts are not unitary conduct. See 2020-NMSC-011, ¶ 56 (concluding that the conduct underlying the defendant‘s convictions of criminal sexual contact (CSC) and CSP were not unitary). Sena, however, involved a circumstance in which the defendant sexually assaulted the victim by penetrating her anus and vagina with his penis then, once finished with that act, fondled the victim‘s breasts and penetrated her vagina with his finger. Id. ¶¶ 52, 55. Our Supreme Court concluded that the conduct was not unitary principally because the crimes were separated by time and intervening events and “the battery [the defendant] used to commit the CSP was separate and distinct from the battery he used to commit CSC.” Id. ¶ 56.
{38} Mora further illustrates our conclusion. See 2003-NMCA-072, ¶ 18 (concluding that the conduct underlying the defendant‘s convictions of CSCM and attempted CSPM was unitary). In Mora, the defendant was convicted of CSCM for laying on top of the victim and attempted CSPM for the act of “humping” her. Id. ¶¶ 3, 18. On appeal, this Court held that the conduct was unitary, reasoning that the “contact and attempted penetration all took place within the same short space of time, with no physical separation between the illegal acts.” Id. ¶ 18. The same is true in this case. Defendant touched Victim‘s breasts and genitals while he was penetrating her without any separation between these events. Contrary to the State‘s argument, if such was not unitary conduct, the State could potentially charge future defendants with numerous counts of battery for every time they touched a victim
III. Convictions “In the Alternative”
{39} Given our analysis and conclusions thus far in this opinion, Defendant‘s only remaining convictions are for Count 1, the alternative to Count 1, Count 2, and the alternative to Count 2. Defendant argues, and the State agrees, that the convictions of both charges in each count violate his constitutional protections against double jeopardy. Although we are not bound by the State‘s concession, we agree and conclude that Defendant cannot be punished for both the primary and alternate charges alleged in Counts 1 and 2. See, e.g., State v. Comitz, 2019-NMSC-011, ¶ 31, 443 P.3d 1130 (concluding that duplicative convictions for the same criminal acts advanced under different theories violate double jeopardy). Generally, under such circumstances the remedy is to “vacate the conviction carrying the shorter sentence.” State v. Montoya, 2013-NMSC-020, ¶ 55, 306 P.3d 426. Here, however, all of the charges in Counts 1 and 2 allege CSPM, a second-degree felony, and the district
IV. Juror-Related Claims
{40} Defendant lastly advances two arguments related to jury selection and instruction that he claims amount to reversible error either individually or cumulatively. First, Defendant argues that the district court improperly granted the State‘s motion to strike a potential juror for cause who did not, in Defendant‘s view, demonstrate sufficient bias or partiality to justify granting the State‘s motion. Second, Defendant asserts that the district court erred in refusing to issue a curative instruction to the jury after the State made a comment that, according to Defendant, implied that his prior, consensual sex with Victim was unlawful purely because Victim was a minor at the time. Defendant urges that without the curative instruction
A. Jury Selection
{41} During voir dire, the prosecutor asked, “Does anyone feel that they would not be able to return a conviction if they only heard testimony alone from somebody who was sexually assaulted?” Several prospective jurors responded in the affirmative, variously indicating that they would need more than the testimony of an alleged victim to convict a defendant charged with sexual assault. One such prospective juror (Juror) who Defendant now argues was improperly struck for cause, responded by stating, “When [it‘s] just ‘he said, she said,’ it‘s very hard to determine the facts and I think those are very important in determining whether guilt is present.” Juror then stated that she could be fair and impartial as it relates to crimes against children—a circumstance about which she had previously expressed potential bias—but her concerns about convicting a defendant based on an alleged victim‘s testimony alone were never revisited.
{42} The State later moved to strike Juror for cause, arguing that she—along with several others—stated that she “would need more than just testimony.” Defendant responded to the State‘s motions by arguing that Jurors’ statements were not “a clear enough indication” that she could not be fair and impartial and that the question itself
{43} “We review the trial court‘s rulings regarding the selection of jurors for an abuse of discretion because the trial court is in the best position to assess a juror‘s state of mind, based upon the juror‘s demeanor and credibility.” State v. Holtsoi, 2024-NMCA-042, ¶ 5, 547 P.3d 770 (internal quotation marks and citation omitted). “An abuse of discretion exists when the [district] court acted in an obviously erroneous, arbitrary, or unwarranted manner.” Id. (internal quotation marks and citation omitted). “The [district] court, who is listening first hand to counsel‘s questions and the panel members’ responses, is in the best position to determine whether voir dire has sufficiently exposed any biases that may preclude jurors from acting fairly and impartially.” State v. Johnson, 2010-NMSC-016, ¶ 34, 148 N.M. 50, 229 P.3d 523 (internal quotation marks and citation omitted). “We will reverse only if a clear abuse of discretion by the district court in the conduct of voir dire resulted in prejudice to [the] defendant.” Id.
{44} Defendant contends that in the circumstance present here—where the district court grants a state‘s motion to strike a potential juror who, according to Defendant,
{45} Defendant‘s argument, however, misconstrues the nature of the prejudice at issue in both impartial jury cases, as here, and cases involving a potential juror‘s right to serve, as in Rico. See id. In cases such as this, where a defendant alleges that his right to an impartial jury was violated, our inquiry is whether the jury selection process prejudiced the defendant or whether the jury ultimately empaneled was somehow partial. See Johnson, 2010-NMSC-016, ¶ 34 (“We will reverse only if a clear abuse of discretion by the district court in the conduct of voir dire resulted in prejudice to [the] defendant.“); State v. Gardner, 2003-NMCA-107, ¶ 16, 134 N.M. 294, 76 P.3d 47 (“[The d]efendant cannot prevail on appeal unless he demonstrates that the jurors finally selected were biased or prejudiced.“).
{46} In cases concerning a potential juror‘s right to serve on a jury, on the other hand, the prejudice is to the potential juror impermissibly excused, not to the
{47} The record before us indicates that the district court did not abuse its discretion in granting the State‘s motion to strike. The State‘s question was reasonably directed at identifying jurors who would have difficulty rendering a guilty verdict based on a victim‘s testimony alone, which is contrary to established law. See
{48} Not only was the question proper, but the district court had adequate reason to strike Juror based on her answer. Juror responded affirmatively to the State‘s question regarding whether she would have a difficult time convicting Defendant based on Victim‘s testimony alone, which is more than what the law requires. See
{49} Defendant next argues that the district court erred when it refused to instruct the jury that Defendant‘s prior, consensual sex with Victim was lawful. During trial, Victim testified that she had consensual sex with Defendant three days prior to the incident in question. Defendant admitted this during his testimony as well and the State, in closing argument, stated, “[Defendant] admitted he previously had sex with [Victim], who was a minor.” Defendant objected, arguing that the statement Victim “was a minor . . . gives the implication that [Defendant] committed an . . . illegal act.” Defendant then asked for a curative jury instruction because the prior sex was not illegal and expressed concern that the jury could consider the prior conduct as unlawful during deliberation. The district court denied Defendant‘s request, finding that the statement was an accurate reflection of Defendant‘s testimony and nothing prevented defense counsel from arguing the prior sex was not illegal during his closing statement. Defendant argues that the district court‘s decision not give a curative instruction was error. We disagree.
{50} A trial court‘s decisions regarding statements made during closing argument are reviewed for an abuse of discretion. See State v. Sosa, 2009-NMSC-056, ¶ 25, 147 N.M. 351, 223 P.3d 348 (“Because trial judges are in the best position to assess the impact of any questionable comment, we afford them broad discretion in managing closing argument.“). As stated above, “[w]e will find that a district court
C. Cumulative Error
{51} Defendant argues that the above, jury-related claims amount to cumulative error requiring reversal. As we have already concluded that the district court did not commit error, we reject this argument. See State v. Samora, 2013-NMSC-038, ¶ 28, 307 P3d 328 (“Where there is no error to accumulate, there can be no cumulative error.” (alteration, internal quotation marks, and citation omitted)).
{52} For the reasons set forth above, we remand to the district court to vacate Defendant‘s convictions for the following counts as charged in the indictment: Count 3, the alternative to Count 3, Count 4, Count 5, the alternative to Count 5, Count 6, and Count 8. We further remand to the district court to vacate, within its discretion, either the primary charge or the alternate in each of Counts 1 and 2,5 and to resentence Defendant consistent therewith.
{53} IT IS SO ORDERED.
J. MILES HANISEE, Judge
WE CONCUR:
MEGAN P. DUFFY, Judge
KATHERINE A. WRAY, Judge