State v. Santillanes

2001-NMSC-018

27 P.3d 456 Mexico, Plaintiff- New

STATE

Petitioner, SANTILLANES, Defendant-

Nathan

Respondent. 26,170.

No.

Supreme of New Mexico. Court

June Madrid, General, Attorney

Patricia A. Jac- Medina, queline Attorney R. Assistant Gen- eral, Fe, NM, for Santa Petitioner. Subin, Defender, Phyllis H. Chief Public Cassidy, Appellate Lisa N. Assistant Defend- Fe, NM, er, Respondent. Santa OPINION SERNA, Chief Justice. trial, Following jury Na Defendant

than was convicted of five counts Santillanes 1978, § see 66- NMSA 8-101(C) (1991), four counts of child abuse death, § see NMSA 30-6- 1(C) (1989, amendment), prior to 1997 one (DWI), count of while intoxicated offense, 1978, § fourth see 66-8- NMSA (G) 102(A), (1994, prior to 1997 & amendments), driving, one count of reckless (1987), see 66-8-113 and four NMSA other counts of various violations of the Mo - Code, 1978, § tor 66-1-1 to Vehicle (1978, through prior as amended amendment). appeal, to later On direct Appeals four convic Court reversed the resulting in tions of child abuse death based principle on double and the interpretation Court’s Santillanes, statute rule. State v. 2000 NMCA-017, ¶1, 128 N.M. denied, cert. 128 N.M. 997 P.2d 821 granted,

and cert. 997 P.2d 822 granted peti This Court the State’s tion for writ of certiorari the Court Appeals.1 We conclude that the Court of Appeals misapplied stat Therefore, now ute rule. reverse the Appeals, Court of reinstate the convictions death, for child abuse and re mand to the district court with instructions to vacate four counts of vehicular homicide. ap- petition Defendant raised in direct 1. We denied Defendant’s for writ of cer- other issues his Appeals respect peal. tiorari to the Court of State, Background P.2d Facts and Procedural I. (1991), underly which asks first whether the September Defendant On ing of the accused for violation conduct Highway down Socorro drove vehicle second, unitary if the both statutes children, girl- his County. three Defendant’s unitary, conduct is whether friend, passengers in niece were her separately punishable to establish attempted to As Defendant make

vehicle. 2000-NMCA-017, ¶4, Santillanes, offenses. intersection, at an his vehicle hand turn left empha As 998 P.2d 1203. we All oncoming with an truck. five collided on Swafford, sized sole limitation “the were passengers in Defendant’s vehicle killed punishments is intent.” a result the collision. Defendant had 13, 810 at 1233. The Court of .15 time of alcohol level at the blood con determined Defendant’s accident, po- and Defendant admitted resulting in and duct the vehicular homicide during that he six lice consumed beers resulting was child in death convictions abuse day. 2000-NMCA-017, Santillanes, unitary. deaths, In relation to the five Defen- {3} 5-6, 128 N.M. 998 P.2d 1203. Addi of was of counts dant convicted nine Appeals tionally, the Court of determined of which included five counts forms of crimes of that the elements of counts child of vehicular homicide four resulting in and child abuse death homicide resulting in death. district court abuse The and that “the two statutes stand are distinct eighteen years’ im- Defendant sentenced raising a independently,” thereby presump of child abuse prisonment for each count punish tion distinct of the statutes three death ordered these ¶ However, the Court conclud fenses. Id. 7. consecutively. to be served Be- sentences generally accepted notion that ed that “the prior cause Defendant had DWI con- three only in homicide one should result one death victions, district court sentenced Defen- presumption of conviction” overcomes imprisonment years’ dant twelve each punishment. “[I]t Id. ¶8. pursuant to count of vehicular homicide Sec- death of another that the intend 66-8-101(D). The court tion district ordered punish, manner which it was ed convictions, that all five vehicular homicide as result, Id. As a the convic accomplished.” as six counts for which Defendant well other homicide and child tions for both vehicular convicted, concurrently run with the was four resulting abuse for the same death consecutive sentences for three jeopardy viola victims constituted a double resulting Accounting for in death. consecu- agree multiple punish this tion. Id We sentencing, as well and concurrent tive analysis. Cooper, v. 1997- ment See State years’ of four habitual offender enhancement NMSC-058, 53, 124 P.2d 660. prior felony imprisonment for two convic- Having that the concluded convictions {6} tions, ultimately court the district sentenced violation, jeopardy in a double resulted years fifty-eight a total of im- Defendant to Appeals addressed which of Court of prisonment. Santillanes, vacated. convictions must be 2000-NMCA-017, 9,128 Appeals’ The II. Rationale Court general “the rule Court noted that The appealed his convictions to Defendant {4} requires offense vacated” that the lesser Appeals. the Court Defendant contended in this case is and that the lesser offense homi- that his convictions both vehicular However, the Court vehicular homicide. Id resulting in death for cide child abuse did not to the that this rule decided victims the double the same four violated in this case because two statutes at issue protection against multiple punish- rule. Id general/specifie statute same offense. ments general/specific The statute {7} v. reviewing statutory is a construction. State conten tool Defendant’s 1999-NMSC-017, 17, Cleve, tion, Appeals applied the two- the Court rule, if two statutes by this 980 P.2d 23. Under this part test set out v. Court Swafford conflict, subject review, dealing with the same On certiorari the State specific prevail statute will challenge more over the Appeals’ does not Court general expres- more statute absent clear determination that the convictions in this contrary. sion of intent to the Id. prohibition against case violated the double operates exception The statute as an jeopardy. only question presented Legisla- to the statute “because the our in this review case is which of the two presumed ture is not to have intended a crimes, vehicular homicide child abuse re conflict between two of its statutes and be- death, sulting in must be vacated. Our re Legislature’s par- cause the attention is more Cleve, 1999-NMSC-017, view is de novo. ticularly subject directed to the relevant mat- ¶ 7, answering 980 P.2d 23. In deliberating upon special ter law.” Id. question, we first address the Court punish If two criminal laws the same criminal Appeals’ application general/specific conduct, statute rule statute rule and the Court’s determination “ ‘eompel[s] prosecute state to under’ the compelled charge that the State was vehic special Blevins, (quoting law.” Id. ular homicide instead of child abuse (1936)). Concluding Ap death. that the Court of Applying peals application gener erred in its rule, rule, language al/specific Court relied on subsequently ad opinion from our Yarborough, State v. properly dress which of charged the two 1996-NMSC-068, 596, 122 N.M. 930 P.2d light crimes must be vacated in of in an 131, and that Legislature’s determined “[t]he fringement protection on jeopardy the double comprehensive enactment of Motor Vehicle against multiple punishments for the same legislative Code indicates to us ‘a intent to offense. ” 2000-NMCA-017, Santillanes, preempt the field.’ ¶ 11, 752, 128 N.M. 998 P.2d General/Specific III. The Rule Statute 1996-NMSC-068, (quoting Yarborough, 1203 Cleve, of reviewed the use ¶ 27, 596, 131) (citation 122 N.M. 930 P.2d general/specific statute rale in New Mexico omitted). Appeals The Court of thus con attempted clarify proper applica- to its homicide, cluded that of the crime ¶¶ 1999-NMSC-017, 16-36, tion. 127 N.M. being “the crime in described the Motor Ve 240, recently 980 explained P.2d 23. We Code[,] hicle is the offense and is the Guilez, 2000-NMSC-020, ¶7, State v. 129 compelled prosecute law that is the State 240, 1231, analysis 4 P.3d that our from support under.” Id As additional for its highlights Cleve two connected but distinct conclusion, the Court of relied on aspects general/specific of the statute rule. 1978, (1985), 66-8-101.1 pro which First, general/specific statute rule “as- injury pregnant

vides to a woman generally sists courts in determining more vehicle, operation unlawful causing a whether the intended to create miscarriage or stillbirth as a result of an exception general enacting statute injury, Santillanes, degree felony. is a third dealing another law with the in a matter 2000-NMCA-017, ¶12, 752, 128 N.M. Cleve, 1999-NMSC-017, specific way.” more Comparing P.2d 1203. Section 66-8-101.1 to ¶ 32, Guilez, 127 N.M. 23. degree felony the third of vehicular aspect we characterized this of the rule as Appeals rejected Court the notion 2000-NMSC-020, “preemption analysis.” “that the intended that the death ¶ 8, Second, 129 N.M. 4 P.3d 1231. years of a child eighteen between birth and law, particular gener- context of criminal age should result different and consider al/specific ably greater punishment determining rale assists courts in than the death of an adult, unborn child or an whether the intended to limit the when the conduct death, causing intoxicated, prosecutor charging discretion of while un- result, is the same.” Id As a der one statute the Court instead another for the Cleve, particular ordered that the four convictions of child commission of a offense. 1999-NMSC-017, ¶25, in death be vacated. Id 127 N.M. ¶ 13. aspect P.2d 23. We labeled this of the rule Guilez, analysis.” special criminal quasi-double-jeopardy “a determine whether stat- 2000-NMSC-020, ¶8, operates exception general 4 P.3d ute as an to the 1231. criminal As two criminal statute. between statutes, “exception” is the relevant We now believe that these general/specific focus rule statute is a purpose not serve labels do their legislative particular criminal con- intent clarifying general/specific statute rule. duct be under prosecuted one statute instead inaccurately believe these labels We Cleve, 1999-NMSC-017, of another. independent suggest there must be two ¶¶ 22-27, 127 N.M. P.2d 23. We analyses every undertaken in ease deter discourage on the therefore reliance labels the general/specific mine whether statute application established in Guilez for the applies; approach rule unwarranted general/specific rule. statute See, Cleve, prior e.g., our 1999— under cases. ¶¶ NMSC-017, 16-36, 127 N.M. 980 P.2d explained appropri- We detail the ¶¶ 26-29, Yarborough, general/specific analysis ate rule statute 131; 930 P.2d State v. Ibn Cleve, two criminal statutes 1999-NMSC- Omar-Mukammad, 274, 276-77, 22-28, (1985); Blevins, comparison We that a noted primary N.M. at 60 P.2d at 210. The general/specific statutes under the statute goal rule is aspect rule is connected to double legislative in the determine context relating multiple punishments Cleve, potentially conflicting laws. 1999- principles offense. Id. 22. Both same NMSC-017, 17, P.2d 23. statutory are rooted construction uti- provides lize similar factors determine to resolve an irreconcilable method otherwise intent, principles but these have different by treating spe conflict between statutes principle aim. courts use the “[W]hereas an exception cific statute as to the jeopardy propriety double ... to assess the applies statute. Id. This to both civil rule multiple punishments courts based on Blevins, 40 and criminal N.M. at statutes. multiple charged prosecutor, aby crimes 368-69, 60 P.2d For at 209-10. criminal general/specific courts to use the rule scruti- statutes, particular the rule has both a ana charge of propriety single nize the one lytical particular In framework and a result. a opposed crime as to crime.” Id. different analysis, gener the we determine whether ¶ 25. al/specifie applies statute to two criminal rule by comparing the elements of the statutes relationship Because of close the and, necessary, resorting if crimes to other general/specific between statute rule and the Cleve, legislative intent. 1999- indicia begin principle jeopardy, the of double NMSC-017, 26-27, 127 N.M. analysis under of two criminal statutes the result, if general/specific 23. In statute general/specific by ascertaining statute rule applies analysis, under this then the rule Legislature to whether the intended create prosecutor compelled proceed is under the multiple punishments two relevant for the specific precluded charging and is from law crimes, only if was the defendant even general law. Blev the defendant under the charged with or convicted of one ins, goal 60 P.2d at Blevins, N.M. at crimes at issue. See general/specific rule in statute (addressing 60 P.2d at 209 a conviction under is to context of criminal law determine single stating, ‘We start with statute to punish intends whether premise that both condemn the acts same particular specific under a conduct id.; A conviction one offense. under of a general statute instead statute. See against Cleve, 1999-NMSC-017, pleaded could former prosecution subsequent under the other goal P.2d 23. Because this mirrors statute.”); Cleve, also purpose general, is no see the rule there ques This separate, duplicative to undertake a 980 P.2d 23. need starting point inquiry preemption appropriate tion is an for a under label general/specific inquiry statute rule “because sion that there was “no apply need to legislative multiple punish- intent to create general/specific applies statute rule as it necessarily ments implies Legisla- multiple punishment.” Id. clainfy We now ture also prose- intended to intact leave that we should not applied have our conclu- Cleve, cutor’s charging discretion.” 1999— regarding unitary sion conduct to foreclose NMSC-017, 29, 980 P.2d 23. inquiry further a legislative into intent multiple punishments create purposes sense, this general/specific Instead, statute rule. punishment question general/spe under the premise consistent with the utilized Blev- cific statute is hypothetical somewhat ins, we should have on focused the conduct because it regardless must be conducted forming the basis for the conviction under presents separate whether a inquiry case statute, the child abuse the more concerning jeopardy. Additionally, double defendant, according to to deter- only multiple punishment because the ques mine whether the intended to tion under the statute rule is punish that conduct under the reckless driv- whether the intended to create statute, ing the more statute accord- separately punishable offenses for the same ing to Viewing the defendant. the facts conduct, Cleve, 1999-NMSC-017, ¶29, see lens, through Guilez we are reassured there is no need correctly that we gener- decided that apply first element of a true double al/speeifie statute rule did not in that jeopardy inquiry Swafford, under whether Guilez, case. we determined that “[t]he question the conduct in unitary. If a required act to commit child abuse was com- argues defendant that two convictions pleted, although continuing, before the act of proceeding same jeopardy, violate double driving began.” 2000-NMSC-020, reckless finding of non-unitary preclude conduct will ¶ 13,129 4 P.3d 1231. Because the impermissible determination of multiple pun charged conduct under child abuse would not ishments and will inquiry make further into have even met the elements of reckless driv- unnecessary. Swafford, 112 ing, Legislature certainly would not have at 810 P.2d at 1233-34. Howev require prosecution for this con- er, purposes stat duct under the reckless statute rath- rule, ute we do not ask whether the conduct er than the child abuse statute. used to convict a defendant of two crimes is instead, unitary; as demonstrated Blev If multiple punishment our ins, we ask forming whether the conduct the inquiry Legislature reveals that the not did basis for the conviction general under the to separately punishable intend create of prosecuted statute should have been under conduct, fenses for the proceed same then we specific reason, the statute. For this if a question to the narrower Leg whether the defendant is convicted of two crimes and islature charging intended to limit the discre raises claims of both double and the prosecutor. tion of the Both of ques these general/specific rale, important it is tions, Legislature whether the intended to analyze to independently. each claim separately punishable create offenses and Guilez, example, the defendant Legislature {15} whether the intended circum was convicted both child prosecutorial abuse and reck- charging discretion, scribe are ¶ 2000-NMSC-020, 1, driving. less First, 129 N.M. answered under the same framework. 240, 4 P.3d 1231. We addressed both the we provision requires assess “whether each jeopardy prohibition double against multiple proof of an additional fact that the other does punishments for the same offense and the not” accordance the test established ¶¶ general/specific statute rule. Id. Blockburger States, 12-15. in» United 284 U.S. jeopardy, 299, 303-04, Under double we concluded that 52 S.Ct. 76 L.Ed. 306 forming Cleve, the conduct the basis for both ¶19, con- 127 unitary victions was 23; not and that there was N.M. Swafford, 980 P.2d accord thus no jeopardy. 8-9, 14, violation of double Id. N.M. at 810 P.2d at 1234. ¶ 14. We then determined from this conclu- “If the elements of the two crimes are the should not same, ap- general/specific statute rule statute rule the charge ignores other prosecution applied must the a manner plies, and the special statutory the law absent or the overall under rules of construction defendant legislative intent to the expression statutory construction “to ascertain goal clear 1999-NMSC-017, ¶26, contrary.” Legisla Cleve give intent of the effect ¶ identity 8, 127 23. An in ele- Cleve, 1999-NMSC-017, ture.” Legislature did ments demonstrates P.2d 23. punish separately under intend involving the Most criminal cases conduct and in- two statutes for the same will be resolved general/specific statute rule discretion, prosecutorial to limit ab- tended inquiry de- through the elements-based contrary legislative intent. sent evidence Nonetheless, exceptional scribed above. Blevins, example, For analysis. For may require further ex- cases applied P.2d at we Cleve, gener- ample, in we concluded prosecutorial discre- statute rule and limited did not to the al/specific statute rule identity in If tion to an elements. due cruelty to hunting and crimes of unlawful differ, however, presump- there is a elements because, Leg- applying Swafford, the animals tion that intended create punish- separately islature intended create and, separately punishable concomi- offenses limit and thus did not intend to able offenses prosecutorial charg- tantly, intended to leave Cleve, 1999- prosecutorial discretion. intact; inquiry ing further is then discretion ¶ NMSC-017, 31, 240, 980 P.2d 23. pre- necessary to determine whether However, beyond argument in Clevewent Cleve, sumption 1999-NMSC- stands. See comparison of two statutes 017, 27, P.2d 23. At this question under the presented the additional indicia of stage, courts should resort other general/specific statute rule of whether determine, first, legislative intent to whether particular conduct one authorization of multiple punish- intended in an irreconcilable group of statutes resulted statutes, Swafford, 112 under the see ments apparent criminalization conflict with the second, 1234, and, N.M. at P.2d at Id. in another statute. the same conduct to limit “whether in Cleve 32-36. We determined prosecutorial discretion in the selection of hunting and Legislature’s authorization of conduct,” specific criminal charges for the exception an to the of- fishing operated as 1999-NMSC-017, ¶26, Cleve, cruelty to animals to the extent fense of legisla- indicia of These other to criminalize latter could be construed purpose, and language, include the tive intent hunting fishing. Id. activity of statutes, Cleve, 1999-NMSC- histories ¶¶ 33-36. well one statute will as “whether the violation of Guilez, argument we also faced normally in a violation of result the other.” beyond question of whether that went Id. 31. charged instead of should be crime addressed Guilez crime. We course, recognize that each Of that the Motor Vehicle Code contention unique questions statutory of presents ease all criminal offenses preempted the field for construction, gen- emphasize and we that the We do involving operation of vehicle. the ap- eral/specific statute rule should be “preempting of that this notion not believe in fashion. As with plied rigid, mechanistic of readily fits into the framework the field” construction, statutory of the other rules rule for determin- general/specific statute the merely a general/specific rule “is tool statute operates as an ex- ing one statute whether statutory interpretation and is not an end of this We believe ception to another statute. Safety Dep’t Pub. to itself.” State ex rel. of as properly understood 644, argument is more Pickup, 115 N.M. v. 1990 One Chevrolet statutory construc- invoking a related rule of 648, 44, (describing (Ct.App.1993) 857 P.2d Guilez, implication. repeal by See stating tion: and that the the last antecedent rule 240, 2000-NMSC-020, 15, 4 P.3d 129 N.M. merely interpretation, an aid to and “rule is “whether (stating question that is uniformly binding”). the is not inflexible and [Legislature repeal ing to holding Ap the the child that of of “[t]he the Court statute, applies as it to in peals abuse children contravenes the intent of the child vehicles, it Motor when enacted the Vehicle by decreasing protection abuse statute Code”); Quintana see also ex rel. v. State for children when the abuse suffered is a Schnedar, 573, 575-76, 115 N.M. 855 P.2d offenses”); result of Ibn Omar- cf. (“We 562, (1993) presume 564-65 ... that Muhammad, 277-78, 694 P.2d at legislature did not intend to enact a law (concluding 925-26 that the offense of de existing inconsistent with law. This rule of praved applied mind murder to conduct in statutory complements construction the no volving operation reject and vehicle judicial repeal legislation by that tion im ing argument that a crime contained in (citation omitted)). plication is disfavored.” Code, the Motor Vehicle construction, statutory Under operated exception an depraved as to mind “[rjepeal by implication is disfavored and two compelling prosecu murder to the extent seemingly contradictory acts which are Code). tion under the Motor Vehicle construed, possible, should be when so as to eases, give Lopez, effect to both.” Clothier v. These Cleve and Gui 593, 595, lez, 870, (1985); N.M. 711 P.2d illustrate that the 12-2A-10(A) (1997). 1978, § applied accord NMSA rule should be in a flexible manner Accordingly, we noted in Guilez that conjunction “there in should be used with other strong must legislative indication of statutory interpretation rules in order to intent” in order to conclude one statute goal discerning achieve the ultimate implicitly repeals or act another statute. Legislature. specific In the Guilez, 2000-NMSC-020, 24, 129 N.M. comparing statutes, context two criminal 4 P.3d 1231. “Absent irreconcilable con however, we caution that courts should flict, prevails gen over the guardedly statute rule only upon clearly expressed eral statute operates the extent it to restrict repeal.” intention to State ex rel. charging prosecutor. discretion We Co., Gurley Stratton v. Motor previously have said that “has State 1182 (Ct.App.1987). 737 P.2d charging.” broad discretion State v. Brooks, 751, 755, 877 P.2d We held Guilez that long prosecutor “[S]o has Legislature, by enacting the Motor Vehicle probable cause believe that the accused whole, repeal Code as a did not intend statute, committed an offense defined applies child abuse statute as it children decision prosecute, whether or not to Guilez, 2000-NMSC-020, vehicles. charge what bring grand to file or before (stating P.3d 1231 jury, generally entirely rests in his [or her] that “the Motor Vehicle as a Code whole Ogden, discretion.” appear preempt does not the child abuse (quota- response question statute” to the “whether omitted) quoted authority tion marks and [Legislature repeal intended to the child (alteration original) (stating “prosecu- statute, applies as it children broad”). charging quite torial vehicles, discretion when it enacted the Motor Vehicle Code, provides The New Mexico Constitution generally”). holding We reaffirm this judicial attorney the “district for each district reject from Guilez and therefore the Court of ... case, shall be the law officer of Appeals’ the state and present determination in the district,” Santulones, 2000-NMCA-017, within [or counties his her] see Const, VI, art. Legisla: comprehen prescribed ture has sive nature of as one of the duties of the Motor Vehicle Code evi attorney prosecution an the district preempt dences intent to the with the “for the field regard in involving operation to offenses state all courts of of the of record the counties of Guilez, 2000-NMSC-020, cases, a [or her] vehicle. See his district all [of] ¶ (“The 20, 240, civil, 129 N.M. 4 any county [Motor P.3d 1231 and in which or in the state generally provide may Vehicle] Code does not his party may [or her] ex district or be be (stat- children.”); 36-l-18(A) protection 1978, tra id. 24 § interested.” (1966). operation recognized the of vehicle” the Accordingly, have one involves we “ [Attorney compelled prosecute who is to under the ‘it the State is [District that Code; (2) by people of state to and as “additional this decide Motor Vehicle elected the intent,” charges bring to very question of what the creation of indicia of prosecute in felony injury pregnant to the best to a people degree and what third people of of operation the State New in unlawful interest woman another the ” Brule, v. Mexico.’ State in an of a vehicle Section 66-8-101.1 indicates 368, (quoting 981 P.2d 782 N.M. punish equally for the death of all intent to 1997-NMCA-073, Brule, ¶31, 123 v. State of Id. victims as a result vehicular homicide. (Bosson, J., 943 P.2d dissent disagree. 11-12. We (alteration original). ing)) generally See general/specific statute Reese, 430 P.2d “only applies when or more statutes two (1967) (discussing the relation conflicting provisions concerning the have ship prosecutorial powers the between Ins. same matter.” Fernandez v. Farmers Attorney attorneys). and district General Co., Therefore, applying the concluding that vehicular homi- rule, wary courts must not to con- prohibit cide and child abuse the same infringe unnecessarily charging on the broad duct, disregarded its Appeals of the Court authority attorneys, district and will of we jeopardy analysis. own double As we ex- require an intent the clear evidence of Cleve, starting point gen- plained in in a Legislature prosecutorial to limit discretion. eral/speeifie inquiry respect statute rule (“If 12-2A-10(A) appear to statutes comparison to two is a of criminal statutes conflict, construed, possible, if they must be of the crimes under the Block- elements each.”); give to see also State v. effect Cleve, 1999-NMSC-017, burger test. Chavez, 980 P.2d 23. its double (“The (Ct.App.1979) existence nonex jeopardy analysis, Appeals of de- the Court [on istence of such restraints the district inquiry that termined under elements attorney’s statutory power and constitutional of an- independently stand one “the statutes policy is a prosecutions] to initiate matter. other, be- and neither subsumes other violation, policy such Absent constitutional charge of cause the child decide.”). is for the ... of a requires death the death death requires vehicular homicide Homicide, Abuse, Vehicular Child IV. driving a occur as a result defendant General/Specific Statute Santillanes, intoxicated.” vehicle while Rule 2000-NMCA-017, ¶7, 128 N.M. analysis Consistent with the articulat- Appeals recognized P.2d 1203. The Court of above, Appeals initially de- ed the Court this difference elements creates case that did termined in this multiple punishment, in favor presumption punishable separately create intend to id.; presumption against also creates a it the two statutes at issue for offenses under application single predicate death. With this estab- Although presumption in favor rule. lished, Appeals determined the Court multiple punishment this case is overcome operates as an the vehicular homicide statute “by accepted notion that one generally exception child abuse statute to the to the only one death result homicide should prosecute compelling extent the State ¶ 8, conviction,” analogous is no id. there involving former for cases under the Appeals’ principle support Court Santillanes, operation 2000- of vehicles. conclusion ¶¶ 11-12, NMCA-017, charging prosecutor’s limit discretion. Appeals relied on two The Court agree with Court of separate We grounds this conclusion: ve- Blockburger test the hicular homicide and child abuse under the elements differ; thus, prohibit same death conduct “where crimes prohibit same conduct and factors outlined Cleve determine statutes the. Cleve, Legislature. the 1999— ual who caused the death of a in a child ¶ NMSC-017, 26, P.2d 23. manner that otherwise meets the elements of First, for in child abuse death and both with crimes the violation of either Sec- 30-6-1(0 as with two crimes in the tion or Section 66-8-101 when the Cleve, “the violation of one of these statutes during operation crime occurred commonly not in violation of would result vehicle. ¶ 31; Guilez, other.” Id 2000-NMSC- cf. do not We believe that 66-8- Section ¶ (stating 129 N.M. 4 P.3d 1231 101.1, proscribing injury pregnant to a in that “there are obvious instances which vehicle, supports woman contrary legis- a abuse”). driving would child reckless not be lative We believe punish- intent. this statute Additionally, recognized respect as we entirely es distinct harm an from 30- Section Guilez, driving reckless to and child abuse 6-l(C), and these statutes are not therefore 2000-NMSC-020, 17, 240, 4 comparison. for suitable Section 30-6- 1231, the crimes of vehicular homicide and 1(C)(1) requires that an individual intention- purposes. gen- child abuse have different ally, knowingly, negligently per- or cause or erally Singer, 2B Norman J. Sutherland “placed mit a to child be a situation that (6th 51.03, Statutory § Construction at 202 may endanger the child’s life or health.”2 2000) (“Characterization object or ed. stated, purpose As have stat- we of this purpose important is more than characteriza- provide heightened protection ute is to subject determining tion matter wheth- contrast, By children. Section 66-8-101.1 is closely enough different er statutes are relat- designed punish particular injury to to a justify light to interpreting ed one woman, pregnant “causing her to suffer other.”). prohibition Similar to reckless or miscarriage stillbirth as a result of 66-8-113, in Section the crime of injury,” particular aby instrumentality, a punishes vehicular homicide conduct These two simply vehicle. statutes are too places public risk of at serious scope divergent purpose and to infer harm, the result of which causes another’s design by Legislature; legisla- common Guilez, 2000-NMSC-020, ¶17, death. Cf protect against to tive decision contrast, By 1231. we injury pregnant to women vehicle does 30-6-l(C) Guilez, iri explained is Section “de- signal existing an intent to discard the give signed greater protection to to children heightened protections for children. than adults” because children “are more vul- Moreover, disagree with the fun- than nerable adults” and “are under the care premise damental of the Court of Guilez, responsibility of and adults.” 2000- provide did not NMSC-020, intend P.3d 1231. greater protection to children than an adult, justification, an without endan- ‘When unborn child or an adult. We believe this gers safety, culpa- a child’s is the adult more ignores proposition provisions in relevant safety than ble when the of another adult is Ogden, Criminal jeopardized.” Code. See Finally, history Id. (“[Statutes in pari materia[ P.2d at [L]eg- ] “clearly abuse statute shows the together legisla- should read ascertain protect islature’s intent children from intent.”). context, tive “compels abuse” and Outside the vehicle the conclusion that the [Legislature Legislature has expanded protection has created a that is crime analogous “Injury children.” Id. 18. to Section From all relevant indi- 66-8-101.1: intent, pregnant person cia it is clear that woman consists of a other injuring pregnant did not limit the than intend to discre- the woman woman prosecutor charging felony causing tion individ- commission of a her to Negligence statute, negligence refers to criminal and is amendment to the child abuse defined in UJI 14-602 NMRA as one who negligence person “means a who knew or should knows or should know or her that his conduct danger have known involved and acted creates a substantial and risk foreseeable disregard safety with a health reckless disregards wholly who the risk and indifferent (A)(3) of the child." NMSA (1997). 30-6-1 consequences of the conduct the wel- safety fare of the child. Under a 1997 inter with broad discretion reconcile these miscarriage or stillbirth as a result suffer a 1978, 30-3-7(A) decisions, § injury.” not charging in and we will of that NMSA ests its (1985). degree felony. This a third through applica crime is interfere this discretion 30-3-7(C). penal- In contrast this Section general/specific tion of statute rule unless causing crime of the death an adult ty, the Legislature’s prosecu intent limit the during felony child commission a or a Guilez, is clear. 2000- tor’s discretion Cf. 1978, felony. § capital a NMSA 30-2- is See ¶ 24, 240, NMSC-020, 4 P.3d 1231 1(A)(2)(1994) murder); (felony State v. Orte- strong legislative (requiring “a indication of 554, 560-66, ga, 112 N.M. applying intent” before (1991) requirements (describing the 1202-08 rule). v. generally See United States felony Section 30-2- murder under Batchelder, 442 U.S. 99 S.Ct. 1(A)(2)). addition, crime of child (“Whether (1979) prose L.Ed.2d resulting degree first in is a abuse death charge bring a to file or before cute what requirement, felony though is no even there grand jury generally rest are decisions 30-3-7(A), in that the death occur Section discretion.”). Thus, prosecutor’s we in the felony. during Finally, the commission of rule conclude that the felony degree child in contrast the first case, prosecu apply not in this and the does death, resulting causing crime of abuse charge tor the discretion to Defen retained of an a similar the death adult with level child dant vehicular homicide or with either negligence, culpability, criminal is a mental death, both, v. abuse see Ohio degree felony. fourth Johnson, 493, 500, 104 467 U.S. S.Ct. 30-2-3(B) (1994) (involuntary manslaugh- (“While the Double L.Ed.2d ter); 20,122 Yarborough, may protect Jeopardy a defendant Clause (holding that 930 P.2d 131 involun- punishments convic against cumulative tary manslaughter requires proof of criminal offense, does tions on same the Clause statutes, negligence). From these believe we prohibit prosecuting from re not the State plain intends to it in a spondent for sin such offenses heightened protection to provide children gle prosecution.”). women, comparison pregnant adults any do not there is and we believe contrary

indication of crimes Multiple Punishment V. Effect of involving operation a motor vehicle. Violation reject Appeals’ We therefore the Court Although general/specif on 66-8-101.1 as evidence of reliance Section case, ic in this statute rule does charging intent to limit the dis- convictions, which of must still decide prosecutor in this case. cretion homicide or Legislature has The created death, as a must be vacated result protection through special for children jeopardy protection violation of the double wrongful heightened punishment for conduct against multiple punishments for the same protection causing death. To remove by our question is answered offense. This solely instrumentality causing on the based Pierce, 76, 86- opinion in does, death, analysis Appeals’ as the Court of P.2d Legislature’s would frustrate clear intent. merger precludes The an individu- charging pattern that best reconciles “The a crime al’s conviction and sentence for community’s proper enforce interest great- included (shared that is a lesser offense interest ment of laws and the which has also defendant) charge upon er defendant community and the fairness prop- Although been convicted. the state may charging to the defendant well be alternative, erly where may charge fitting pattern between the extremes.” or more of- Brooks, defendant is convicted one 117 N.M. at 877 P.2d at 561 merged greater have into the fenses which (quoting Altgilbers, 109 N.M. State v. may punished for (Ct.App.1989)). she] [or offense he only attorney Legislature has the district one. vested

Id, (citations omitted). Pierce, We later clarified 792 P.2d at 417 Swafford, merg- (“These is there no common-law merged greater offenses into the Mexico; instead, er doctrine in New murder.”). first-degree offense of “merger” to which we referred in Pierce The offenses at issue in this applies “only in the context of constitutional case cannot be characterized as includ lesser jeopardy.” Swafford, double 112 N.M. at greater because, ed inclusive crimes as Merger P.2d at 1233. New Mexico is previously, they noted each contain different response to a remedial measure violation independently elements stand in relation jeopardy protection against of the double Swafford, to one another. See 112 N.M. at offense; multiple punishments single for a it 11-12, 1231-32; 810 P.2d at separate see also v. determining not method of Meadors, 38, 42, impermissibly pun- whether two convictions 908 P.2d single that, ish a defendant twice for a (stating purposes offense. of a double Pierce, sentencing See id Under concurrent jeopardy inquiry, “a court would find an of adequately remedy imposition does not fense be lesser-included offense anoth impermissible multiple punishments for a only statutory if er elements the lesser offense; single jeopardy requires double statutory offense are a sub-set ele merge greater the lesser offense into the greater ments of the offense such that it offense such that the conviction of the lesser impossible would be ever to commit the offense, sentence, merely is vacated. greater committing offense without also Pierce, See at 792 P.2d at 419. added)). (emphasis lesser offense” Never Pierce, applied we this rule convictions theless, agree Appeals with the Court of resulting of child abuse in death and first- resulting great that child abuse in death is a degree murder, deliberate-intent even homicide, er offense than vehicular though technically these offenses did not therefore, given the violation of the double merger. meet the traditional test Id. at jeopardy protection against multiple punish Thus, 792 P.2d at recognized by 418.3 as offense, single ments for a the convictions for case, Appeals the Court of in this Pierce vehicular merge homicide must into the con proposition stands for the that “the victions for respect child abuse with to the requires rule that the lesser vacat- offense be death of the same victims.4 impermissible ed” in the event of Santillanes, punishments. 2000-NMCA- The has created in 1203; 998 P.2d system see Criminal Code a classification for fel- Pierce, gle only we relied on the articulation of the death with one homicide conviction. merger by Appeals Gonzales, doctrine the Court of in State generally State v. Sandoval, (Ct.App. 90 223-24, (1992) (noting Pierce, 1977). 792 P.2d at request briefing for additional on the issue of Sandoval, 417-18. As stated in the test for the Pierce, merger despite under the State’s initial application merger is whether one offense agreement position, with the defendant’s follow- other, necessarily involves the which is deter- ing jeopardy the clarification of double law in by "look[ing] mined to the definitions of the Swafford). crimes to see whether the elements are the same.” 90 N.M. at statutory 561 P.2d at 1356. The prac- 4. We note that in this case it makes little resulting definitions of child abuse tical difference which offense is vacated. The degree death and first murder reveal that these district court’s sentence indicates a determina- purposes offenses have different elements for fifty-eight years imprisonment tion that anwas Blockbnrger analysis, resulting and child abuse appropriate sentence for Defendant’s actions. properly death is not characterized aas lesser Although the court achieved this sentence degree included offense of first murder. See through application consecutive of three counts ("An Swafford, 112 N.M. at 810 P.2d at 1232 resulting of child abuse in death with a habitual offense true is a lesser included offense of anoth- offender enhancement and concurrent sentenc- completely by er if its elements are subsumed counts, ing another, remaining offense.”). on all greater it also could have Based on our clarifi- sentencing Swafford, done so with consecutive cation of double for the five law in Pierce counts applying principle can be of vehicular each of which viewed as the same was subject years applied present imprison- that the Court of to a sentence of in the twelve contrary 66-8-101(D) appears case: unless a statutes, indication ment under Section due to Defen- punish prior intends to a sin- three dant’s DWI convictions. desig- are must be construed as the lesser felony which offenses homicide under onies degree, capital, degree, second as first nated offense this case. degree degree, and felonies. fourth third his Within Legisla- 30-1-7 argument, Defendant contends applied classification scheme to has

ture punish aspects of the Code. For ex- many Criminal death, over homicide applicable statute of limitations ample, the state, heightened mental evidenced is determined de- particular offenses intent,5 general required that is for criminal 1978, § gree felony. 30-1-8 of NMSA required but (1997). vehicular homicide is for importantly, Most the degrees resulting disagree. of child in the felonies abuse death. We has utilized different punishment the level of for vari- establish Legislature’s view of the of The seriousness 31-18-15(A) 1978, ous offenses. NMSA cannot determined these two offenses (1999). degree felony believe the of We that applicable Legislature’s mens rea. the The appropriate 30-1-7 is an mea- under Section require only negligence, decision to criminal legislative regarding which of of intent sure intent, showing general and no of a criminal greater a is offense. See offenses Swaf- obvious “[t]he child abuse stems from (“The ford, at P.2d at 810 1235 ... public prevention [in] of interest the quantum probative is punishment of also of Lucero, cruelty to children.” punish.”). intent (Ct.App. P.2d particularly appropri- This measure is 1975). {31} requir- [not “The usual rationale for present case. Unlike third ate the the ing showing intent] a of a criminal is felony degree of vehicular that is public interest the matter so the degree is a first abuse death potential harm compelling or that the is very are limited of felony. There a number great public so of must that the interests the desig- that crimes the Criminal Code are of interests the individual.” Id. override the felonies, degree first and these nated as protection at P.2d at of 1217. The subject a crimes are substantial sentence legitimate as a children “is as well laudable eighteen years imprisonment. of Section 31- police purpose power the of within the 18-15(A)(1). Legislature’s decision to Indeed, at 1218. State.” Id. at P.2d resulting in as designate child abuse death “[w]hen Court stated Guilez Legisla- indicates the one of these crimes adult, justification, endangers without offense, ture’s view seriousness safety, culpable child’s adult than the is more protection necessary to of the the level deter safety jeopar- when of adult is another offense, and the commission of level 17, 129 dized.” society’s punishment necessary to vindicate Thus, 240, 4 1231. mens rea P.3d the lesser act. in retribution for the criminal interest resulting in does not for child abuse death Moreover, signaled Legislature has its Legislature views the that the crime indicate those of a intent to ensure that convicted homicide; than lesser offense vehicular felony impris- degree the term first serve quite clearly opposite. it is 31-18-15(A)(1) prescribed in onment Section by making sentencing mandatory. contends Defendant also (excluding § 31-20-3 lenity rule we should discretionary sus- degree first felonies from resulting in death vacate child abuse sentencing). pended or deferred sentences However, unlike a determina convictions. respect Legislature’s We must decision tion of intended whether greater protection to children provide offense, single multiple punishments for a see as a classifying child death at Swafford, 112 N.M. at felony, degree therefore believe first and we lenity apply to a determi- felony of does not degree third 926; purposeful at UJI 14-141 NMRA criminal means "the accord 5. General doing an act the law declares to be a Omar-Muhammad, 102 Ibn N.M. at crime.” purposes nation of which conviction to sistent with vacate as the rule’s of “en impermissible multiple punishments. result of sur[ing] that criminal provide statutes will fail’ warning concerning il conduct rendered lenity “The rule counsels legal strik[ing] appropriate balance criminal interpreted statutes should be legislature, prosecutor, between the in the defendant’s favor when insurmounta Liparota defining liability.” the court criminal ambiguity persists regarding ble the intend States, . United 471 U.S. v scope Ogden, ed a criminal statute.” 105 S.Ct. L.Ed.2d 434 (discussing N.M. at at 853 rule in of determining the context contrast, By once it is determined meaning “peace phrase officer” that multiple punishments permitted, are not aggravating establishing circum question of which conviction to vacate purposes penalty). stances of the death scope does not involve intended It reserved for situations in “those which statute. In the event persists a reasonable doubt about a statute’s violation, punishment and assuming that the scope resort even to the lan after general/specific statute rule apply, does not structure, guage legislative history, and and Legislature expressed the has its intent that motivating policies of the statute.” Moslcal offenses, either of appli- the and the States, 103, 108, v. United 498 U.S. 111 punishment, apply cable to the defendant’s 461, 112 (quotation L.Ed.2d 449 S.Ct. action; scope the conduct falls within of the omitted), quoted authority marks and quot the statutes terms of the substantive defi- Anaya, ed in State v. crimes, nition of ambigui- the there is no ¶ 32, 14, P.2d (applying 933 223 ty concerning penalty imposed the for each lenity question the rule of to the of whether Legislature crime. What pro- the intends to apply the to habitual hibit application is the of both offenses DWI); felony sentencing offender to see punishments against their for the defendant Edmondson, 654, 658, v. N.M. State 112 818 unitary conduct. Because the defendant’s (“Nor 855, (Ct.App.1991) P.2d 859 have we unquestionably scope conduct falls within the judicial a authority deemed division of auto of Leg- the relevant statutes and because the matically trigger lenity.” (quot sufficient to clearly islature has penalties established the Moslcal, 108, 461)). ing 498 111 U.S. at S.Ct. statutes, for the violation of these it would deciding the whether intends not serve purposes lenity the the to rule offenses, separately punishable create apply it inquiry to the into which offense that, lenity if insurmounta dictates 427, Liparota, vacate. See 471 at 105 U.S. ambiguity applying ble after remains 2084; Mabry, S.Ct. v. Bloclcburger resorting test and after to tra (1981) (“It 273 long has been intent, legislative indicia of ditional “it is to recognized in solely this state that it is within presumed [Legislature did not in province to establish pyramiding punishments tend for the same penalties behavior.”); for criminal Bat- cf. Swafford, offense.” 112 at 810 chelder, 121-22, 442 at 99 2198 U.S. S.Ct. 1235; at at P.2d see id. 810 at P.2d (declining apply lenity the rule of because 1230; State, see also Herron “unquestionably the defendant violated” the (1991) (stating applicable penalty provision and the single-statute unit-of-prosecution “unquestionably years’ permits imprison- five that if legisla cases the rule ‘“means [the violation,” observing ment for such a body] punishment tive does not fix the for “provides the fact that another statute ... clearly and without ambigu [an] offense penalties essentially different for the same ity, against turning doubt will be resolved justification conduct taking is no liberties single multiple transaction into offenses.’” unequivocal statutory with language”). States, (quoting Bell v. United U.S. House, (1955))). 2001-NMCA-011, S.Ct. L.Ed. 905 State v. Thus, assessing legisla context cert. denied, multiple (2001), punishments, tive intent create P.3d 36 application lenity Appeals rejected rule of Court of argument is con- lenity requires vacating the rule of counts of VI. Conclusion on underlying homicide based gener We conclude that crime of DWI favor of counts of the same al/specific apply statute rule does not in this underlying offense based on the crime of case. The crime vehicular homicide does driving. Appeals reckless The Court of ob operate exception an the crime sentencing served that scheme within child abuse death to the extent Section 66-8-101 indicates a “in compelling prosecute the State to under the impose greater penalty tent to for DWI- involving vehicular homicide cases statute, violations related com when operation of a vehicle. is a When there recidivist-impaired mitted Id. driver.” jeopardy protection violation of the double 16. The Court of also noted that against multiple punishments, appropri argument remedy the defendant’s to retain con is to ate vacate the conviction for the result, lesser As a victions for vehicular on offense. we remand this homicide based reck case to district court with instructions to interpretation less reflected vacate the four counts of vehicular homicide Section 66-8-101 under which vehicular respect to the same victims as four greater homicide based on DWI is a offense. counts of child abuse in death. We House, recognized by Id. As the Court in affirm Defendant’s convictions of child abuse context, lenity the rule of in this resulting in death. court very question would have to resolve the determining established Pierce for IT IS SO ORDERED. appropriate remedy punish BACA, ment violation: which of offenses is WE CONCUR: F. JOSEPH Thus, Justice, MAES, Justice, greater. lesser and which is PETRA JIMENEZ nature, lenity, by very because the rule its FRANCHINI, GENE E. Justice uniformly would operate to vacate the lesser (dissenting). offense, application its in this context would directly conflict with Pierce and would effec MINZNER, PAMELA B. Justice tively allow a punish defendant to (dissenting). defeat the by Legislature.

ment intended Bat Cf. MINZNER, (dissenting) Justice chelder, (“Just 442 at U.S. S.Ct. respectfully I dissent. I would affirm {40} right as a defendant has no constitutional Appeals, the Court but for different rea applicable elect which of two federal statutes opinion sons than those in its articulated shall be the basis of [the] indictment and Santillanes, 2000-NMCA-017, prosecution, [or she] neither he entitled to denied, N.M. P.2d cert. penalty choose the which scheme under he granted, 997 P.2d 821 and cert. sentenced.”). [or she] will be (2000). I believe that matter, language, purpose, subject We conclude that vehicular homicide {37} history of the relevant statutes all indicate is a resulting lesser offense than child abuse that Defendant’s convictions for child abuse Legislature in death. Because the did not death, resulting contrary to NMSA separately punishable intend to create of- 6—1(C)(1)(1989, § prior to 1997 amend 30-6-l(C) 30— fenses Section and Section ment), should be vacated. death, 66-8-101 for one the district court must vacate the four counts of the lesser panel Appeals The the Court merge offense of vehicular that homicide into that decided Santillanes and the members of resulting four counts of child abuse agree Legislature this Court all did death.6 punishments not intend on these Appeals 6. We note that the Court of also vacated Defendant’s vehicular homicide convictions Defendant’s conviction of DWI because that ruling by based on double obviates this crime was a lesser included offense of vehicular Appeals, the Court of and the district court need Santillanes, 2000-NMCA-017, homicide. not vacate the DWI conviction. 998 P.2d 1203. The reversal of question appeal is which to me that that the on lar homicide demonstrates facts and the convic- convictions should be vacated: on the conduct focused death, con- tions for child abuse has it which Defendant convicted when been 6—1(C)(1),or convic- trary to Section the vehicular homicide statute. We enacted 30— homicide, contrary to indication, tions for vehicular language of no on the have based 1978, 66-8-101(0) § We also statute, NMSA child abuse that the should agree Legislature’s that the all on that it focused conduct when enacted is, Legislature would control. That if the statute. child abuse punished be have intended Defendant language Examination of more death, resulting then those for child its com- of the vehicular homicide statute and convictions should and Defendant’s stand statute, panion 66-8-101.1 homicide should be convictions vehicular (1985), supports my further belief If, however, would vacated. Legislature would considered Defen- have punished have intended Defendant dant’s conduct vehicular homicide. Section then those convictions vehicular felony punishes third-degree 66-8-101.1 as a convictions for should stand Defendant’s it the act while intoxicated when be va- child abuse in death should injury pregnant to a woman such results con- We have not able to reach cated. been miscarriage that a or occurs. Sec- stillbirth Court, however, appro- on this on the sensus 66-8-101(A) tion homicide vehicle defines starting point analyzing this case priate killing being. Viewed as the human proper application nor on the of the double compre- together, the two statutes create jeopardy clause. punishes a third- hensive scheme point starting It seems me that the child, felony degree the death an adult or analysis jeopar- for our should be the double miscarriage resulting from or a stillbirth Const, clause, V, XIV, dy see U.S. amends. Construing homicide. the child Const, II, § art. the State because con- abuse statute to Defendant’s at that a double has conceded the outset upset by making duct would scheme exists, jeopardy violation and because the a child a first- death of vehicular homicide Appeals question only Court reached degree felony. “[did] Court of statute of whether vehicular homicide Legislature that the intended that not believe following preempted the child abuse statute eigh- of a child birth and the death between jeopardy that double its determination years age in different teen should result required vehicular homi- clause Defendant’s considerably greater punishment and than Majority convictions to cide be vacated. See adult, of an or an the death unborn child ¶ 2000-NMCA-017, 9; Santillanes, Opinion, death, driving causing when the conduct 752, 9, 128 N.M. P.2d 1203. It further Santillanes, intoxicated, is while the same.” starting point to me that for our seems 2000-NMCA-017, 752, 12, 128 N.M. analysis under the clause is double I, too, that P.2d 1203. do not believe language of homicide and the vehicular Legislature intended such a result. statutes, particularly abuse the core child fact, In of more of the examination language that Sec- creates the offenses. language of the child statute leads me 66-8-101(0 punishes tion the commission of Legislature that the has created an believe ... while under the “homicide vehicle 30-6-l(C) overlap it did not foresee. Section intoxicating liquor.” 30- influence Section three that consti- 1(C)(1) articulates circumstances punishes placing of children “in 6— (1) in a placing child abuse: child may tute endanger child’s life a situation may or terms, endanger situation that the child’s life If compare or health.” these (2) health; torture or confinement or cruel specific to homicide statute is more child; punishment exposure cruel and child abuse Defendant’s conduct than the Leg- of a child to inclement If the four homi- weather. statute. Defendant committed cides, “placing phrase had intended killing by driving four his car islature for the children intoxicating may endanger li- a child in a situation that while under influence construed, broadly greater vehicu- or health” to quor. specificity The child’s life be punish specifically Lastly, history would no there need of the vehicular torture, confinement, punishment, cruel cruel homicide and child abuse statutes reveals one weather, exposure or of a child to inclement relatively has remained constant place these acts a child in a situation because coverage expanded and another has may endanger the child’s life or health. slowly steadily. recently, but Until there words, very other broad construction of overlap. was no A vehicular stat- homicide endangerment language the stat- ute was first enacted in 1953. See State v. superfluous would ute render 28, Yarborough, (C)(2) enumerations contained subsections 596, time, 930 P.2d 131. At that (C)(3). We do not construe in a statutes precursor of our current child abuse statute parts manner that renders other of the same abandonment, specifically punished rather superfluous. Katz v. New See Mexi- abuse, enhancing than child penalty if Servs., Dep’t co Human 95 N.M. abandonment caused death. See 1925 N.M. (1981) (“A statute must be Laws, (codified §§ ch. as NMSA part construed so that no of the statute is -2). 40-2-1, § comparison A of these surplusage superfluous.”). rendered statutes indicates that the 1953 New Mexico Therefore, it seems to con- sensible me Legislature would have considered Defen- (C)(1) clude subsection was not intended dant’s actions to be vehicular homicide. The capture might all conduct that fit its statu- repealed vehicular homicide statute was definition, tory but was rather worded broad- 1957 and reenacted in 1969. See Yarbor- ly attempt prosecutors in an to leave in a 1996-NMSC-068, ¶28, ough, abuse, position punish acts of child similar time, 930 P.2d 131. At that our statutes (C)(2) those enumerated subsections punish specifical- continued to abandonment (C)(3), upon which the did ly, rather than child abuse. See not focus at the time of enactment. (codified Laws, §§ eh. -2 as NMSA parts Examination of other -2). (1964), 40A-6-1, Repl.Vol. § A Leg- code further indicates that the comparison of these statutes indicates that in contemplate islature did not that Section 30- the New Mexico would 6-l(C)(l) encompass would the entire uni- have considered Defendant’s actions to con- involving verse of conduct harm or risk of Leg- stitute vehicular homicide. harm to children. New Mexico’s criminal punish islature amended Section 40A-6-1 to statute, sexual-penetration NMSA generally. child abuse more 30-9-11(0,(D) (1995), § example, specifi- Laws, (originally § ch. codified as cally punishes penetration criminal sexual (1964), Repl.Vol. § 2d. 40A- years age children under thirteen 30-6-1). (Supp.1973), then codified penetration criminal sexual of children be- change did not the vehicular ages tween the of and thirteen sixteen under or no homicide statute. We have little basis Further, certain circumstances. New Mexi- determining Legislature that modi- statute, sexual-exploitation-of-children co’s by impli- fied crime of vehicular homicide 1978, (1993), § 30-6A-3 NMSA and sexual- likely cation in I think 1973. it more that exploitation-of-ehildren-by-prostitution stat- Legislature 1973 the broadened the child ute, (1989), specifi- 30-6A-4 considering without abuse statute ever cally punish exploitation acts of sexual com- possibility resulting that the death of a child against mitted children. Section 30-6- from a offense could constitute child 1(C)(1) might broadly have been construed resulting abuse in death. enough superfluous, to make these offenses The Court of did not conduct provisions punish {47} because the crimes these inquiry language, history, into may endanger also detailed child’s life health. In purpose enacting provisions, of these statutes under the dou- these jeopardy seems to me to have that it ble clause because it believed that indicated was Pierce, providing protection, opinion more and thus that it our State v. 30-6-1(0(1) 86-87, (1990), protect

deemed Section 792 P.2d estab- offense, against something proposition else. lished the that a lesser degree felony, by application must by the reach the same result as measured greater States, vacated in favor of the offense. Sant lenity. Liparota rule of v. United illanes, 2000-NMCA-017, 9,128 471 U.S. S.Ct. 85 L.Ed.2d persuaded not that 998 P.2d 1203. I am (1985) (stating lenity the rule of proposition. Pierce establishes “provides interpretive guide- a time-honored Pierce, had been convicted of the defendant [legislative] purpose line when the is un- child first-degree murder and abuse clear”); Anaya, see also State v. 1997- vacating on one homicide. death based NMSC-010, 32, 933 P.2d 223 child Defendant’s conviction for abuse result (applying lenity the rule where the Court (1) death, ing in we reasoned that: legislative apply concluded resulting in death was lesser-inelud felony habitual offender statute to DWI con- first-degree murder based on ed offense notwithstanding victions was unclear the lan- case, long-standing the facts of the statutes); guage Begay, State v. 2001- jeopardy jurisprudence principle of double ¶ 9, NMSC-002, P.3d 434 requires that a conviction for lesser-includ (same). greater, vacated in favor of a ed offense be Pierce, inclusive offense. persuaded I grounds am on these {50} principle P.2d at 418. The latter exists that Defendant’s convictions for child abuse jurisprudence our because the existence A death should be vacated. ma- greater-inclusive/lesser-included offenses view, jority being of this Court different gives insight Legislature’s into us intent. respectfully I dissent.1 all Where one statute includes elements of from another statute differs the lesser by ineluded statute virtue of an additional FRANCHINI, (dissenting) Justice element, can infer by I share the concerns raised Justice {51}

intended the more inclusive statute to cover instances in which the additional element was Minzner and concur her dissent. I write present. jeopardy principle This double does separately my opinion, expressed to reiterate not when each offense includes ele Guilez, my dissent in ment that the other does not. 1231, 2000-NMSC-020, preempts that the Motor Vehicle Code Any general concepts use of the Yarborough, child abuse statute under 1996- “greater” and “lesser” offenses seems to me ¶¶ 26-29, helpful, misleading, rather than in the double NMSC-068 greater- context. The existence of offenses is deter- inclusive/lesser-included majority opin- I also believe offenses, not mined the elements misapplies general/specifie ion I rule. degree felony. general I think a use agree majority that “if two statutes concepts “greater” and “lesser” of- .the subject conflict, dealing with the same then ought replace inquiry fenses detailed prevail the more statute will over the analyzing into intent in a double Majority Opinion more statute----” jeopardy issue. view, my application In7. of that rule ne- reasons, For I these believe cessitates the dismissal of the child abuse person in intended that a Defen- convictions rather than vehicular homicide punished dant’s situation be for vehicular convictions, majority as the holds. The ve- Although persuaded I am homicide. prohibits killing hicular homicide statute “the intent, interpret Legislature’s should so I being operation of a human in the unlawful acknowledge also that reasonable minds can 66-8-101(A). § a motor vehicle.” NMSA determining Legisla- and do differ in this I would The relevant section of the child abuse stat- ture’s intent ease. therefore vacated, question I conclude that the Court of have been I do not reach the Because analyzing preempts erred in our double cases and whether the vehicular homicide statute determining Defen- die child under the that under those cases abuse statute dant’s vehicular homicide convictions would rule. “causing permitting a than convictions or statute rather ute criminalizes may placed in a situation that on child abuse child to be based the less statute. endanger the child’s life health.” NMSA 30-6-l(C). I Because believe the ve-

hicular homicide statute addresses Defen- greater specifici-

dant’s criminal conduct with

ty, uphold I would the convictions based on

Case Details

Case Name: State v. Santillanes

Court Name: New Mexico Supreme Court

Date Published: Jun 29, 2001

Citation: 27 P.3d 456

Docket Number: 26,170

Court Abbreviation: N.M.