State v. SoteloState v. Sotelo
BUSTAMANTE, Judge.
{1} Appellant‘s motion for rehearing is granted. The opinion filed in this case on October 24, 2012, is withdrawn and this Opinion is substituted in its place.
{3} We conclude that there is no reasonable view of the evidence such that false imprisonment was the greatest offense committed and, thus, the district court did not err in refusing the request for a lesser-included offense instruction. We determine also that the conduct underlying the kidnapping and battery charges was neither factually unitary nor unitary as a matter of law. Therefore, there was no violation of the prohibition against double jeopardy. Furthermore, the restraint and/or movement involved in this case was not incidental to the battery, and Defendant failed to establish a prima facie case of ineffective assistance based on failure to object to improper character evidence because, even if there were error, there is no evidence that Defendant was prejudiced by the error. We affirm Defendant‘s convictions. We remand for resentencing after consideration of mitigating circumstances.
BACKGROUND
{4} Defendant and Victim lived together at the time of the incident giving rise to the charges in this case. They have one child. Victim has two other children, one of whom was fifteen years old on July 13, 2009, the date of the incident. Victim testified that Victim and Defendant were at Victim‘s parents’ house on July 12 but left together late in the evening in Victim‘s car, with Victim driving because Defendant did not have a driver‘s license. They stopped to get gas, and Defendant got into the vehicle in the driver‘s seat. Defendant said he would drive the rest of the way to their home half a mile away. Instead, Defendant drove in the opposite direction. Victim asked where they were going, and Defendant responded that he was taking a drive. Defendant continued driving down the Hobbs Highway away from town and, after turning off the highway, drove ten to fifteen minutes to a deserted area. On the way, he told Victim that he wanted to take her to a place with “no cops [and] no phones.” Defendant pulled Victim out of the vehicle and started pulling her hair, kicking her, and throwing her into bushes. Victim testified that during this time, Defendant told her he was going to kill her or leave her there to die, and repeatedly stated that he “did not want to go back to jail.” She stated that when she refused to swear that she would not call the police, he continued beating her. Defendant held Victim‘s arm while driving to another location on Derrick Road, where he beat her some more. When Victim attempted to run away, Defendant chased her, put her back in the car, and drove to a third location on Hidalgo Road. Victim testified that Defendant beat her again and forced her to have intercourse with him. After driving around for an hour or two, Defendant drove to their home in the early morning of July 13. Victim‘s daughter opened the door and told Victim to call the police.
{5} At trial, Defendant moved for a jury instruction on false imprisonment on the ground that false imprisonment was a lesser-included charge of kidnapping. The judge denied this motion. Defendant was convicted of kidnapping, battery on a household member, and intimidation of a witness. He was acquitted of criminal sexual penetration. At the sentencing hearing, Defendant requested a continuation to prepare a motion for mitigation of the kidnapping sentence, which was granted. A second hearing on November 8, 2010, was also continued. Defendant was sentenced on November 29, 2010. A motion for mitigation was not filed.
{6} Defendant was sentenced to a total of twenty-one years: eighteen years for kidnapping, three years for intimidation of a witness, and 364 days for battery against a household member. The sentences for the latter charges were ordered to run concurrent to each other and consecutive to the kidnapping sentence.
DISCUSSION
{7} We address Defendant‘s arguments in the order presented.
A. Defendant Was Not Entitled to a Jury Instruction on a Lesser-Included Offense
{8} “The propriety of jury instructions given or denied is a mixed question of law and fact. Mixed questions of law and fact are reviewed de novo.” State v. Salazar, 1997-NMSC-044, ¶ 49, 123 N.M. 778, 945 P.2d 996. On appeal, the evidence is viewed “in the light most favorable to the giving of the requested instruction.” State v. Hill, 2001-NMCA-094, ¶ 5, 131 N.M. 195, 34 P.3d 139.
{9} There are two prerequisites for a lesser-included offense instruction. First, the district court should “grant the request when the statutory elements of the lesser crime are a subset of the statutory elements of the charged crime.” State v. Meadors, 121 N.M. 38, 44, 908 P.2d 731, 737 (1995). Second,
the trial court should grant . . . an instruction [on a lesser-included charge] if (1) the defendant could not have committed the greater offense in the manner described in the charging document without also committing the lesser offense . . . ; (2) the evidence adduced at trial is sufficient to sustain a conviction on the lesser offense; and (3) the elements that distinguish the lesser and greater offenses are sufficiently in dispute such that a jury rationally could acquit on the greater offense and convict on the lesser.
Id. Although the Meadors test applied to a prosecution request for an instruction on a lesser-included charge and focused on protection of the defendant‘s due process rights, this Court
{10} In reviewing on appeal whether a reasonable jury could find that the lesser-included offense is the highest offense committed, “[w]e will not ‘fragment the testimony . . . to such a degree as to distort it’ in order to construct a view of the evidence which would support the giving of the instruction.” State v. Gaitan, 2002-NMSC-007, ¶ 24, 131 N.M. 758, 42 P.3d 1207 (second alteration in original) (citation omitted). In State v. Wilson, the Court held that a lesser-included offense instruction was properly denied where the defendant sought to show that the jury could have believed portions of testimony by both the victim and defendant and rejected other portions. 117 N.M. 11, 15, 868 P.2d 656, 660 (Ct. App. 1993). It held that “there must be some evidence other than that obtained by taking portions of the victim‘s and portions of the defendant‘s testimony to support the lesser-included offense instruction. . . . When there is other evidence [to support the lesser-included offense instruction], then the risk of impermissible distortion [of the testimony] is eliminated.” Id.
{11} Defendant argues that “[t]he jury was free to reject [Victim‘s] . . . testimony that [Defendant] expressed a kidnapping intent . . . , especially in light of the significant impeachment of her credibility which resulted in acquittal for the [criminal sexual penetration] charge” and, therefore, there was “some view of the evidence that [false imprisonment] was the most serious offense committed.” The State responds, in essence, that no reasonable juror could find that false imprisonment was the highest offense committed because to do so would “requir[e] an impermissible fragmentation of the evidence, picking and choosing among elements of a single witness‘s testimony.”
{12} It is clear that the first Meadors prerequisite is met because false imprisonment is a subset of kidnapping. False imprisonment is “intentionally confining or restraining another person without his consent and with knowledge that he has no lawful authority to do so.”
{13} The second Meadors prerequisite has three components. Two are satisfied readily: Defendant could not have committed kidnapping without committing false imprisonment since false imprisonment is a subset of kidnapping, and there is sufficient
{14} This part of the Meadors test requires that (1) “the elements that distinguish the lesser and greater offenses are sufficiently in dispute such that [(2)] a jury rationally could acquit on the greater offense and convict on the lesser.” Id. Defendant argues that the jury could have found that he did not intend to cause Victim harm. He points to Victim‘s testimony that Defendant “did not become angry or violent until after they had arrived in a secluded location” as an indication that Defendant “lacked the intent to injure [Victim] at the time he drove out there.” He argues that the fact he intentionally battered Victim does not prove that he transported her to the deserted area with the intent to do so because “false imprisonment can involve a resulting injury without constituting kidnapping.” The State counters that Victim‘s testimony that Defendant told her that he wanted to bring her to a place with “no cops [and] no phones” shows that “the only rational conclusion is that he took her there [to beat her].” These arguments focus on whether Defendant intended to batter Victim during the period starting at the gas station and ending when Defendant began beating Victim at the Hobbs Highway location. Essentially, the parties disagree as to when Defendant formed the intent to cause Victim physical injury. Victim‘s testimony, the only evidence presented on what happened during the drive, permits a legitimate dispute on this issue, thus satisfying the first component of this test.
{15} We are not limited to analysis of the dispute over this period, however, because this is not the only period relevant to the kidnapping charge. Even if the jury concluded that Defendant did not intend to harm Victim during the initial transport from the gas station to the Hobbs Highway location, there was restraint and movement to satisfy the requirements of kidnapping because, after beating Victim there, Defendant drove to two other locations where he continued to beat her. Victim testified as to the battery, and both the police officer to whom she reported the incident and her daughter testified as to the resultant bruising. The jury viewed photos of the bruising at trial. Based on this evidence, the jury convicted Defendant of battery against a household member. For the jury to believe that Defendant did not intend to batter Victim when he drove her from Hobbs Highway to Derrick Road and from there to Hidalgo Road would require substantial fragmentation of the evidence. In essence, such an interpretation would require the jury to believe that Defendant committed the battery but did not intend to do so while driving from place to place. This is not “a reasonable view of the evidence [that] could lead a fact[]finder to conclude that the lesser offense is the highest degree of crime committed.” State v. Neatherlin, 2007-NMCA-035, ¶ 22, 141 N.M. 328, 154 P.3d 703. Thus, the second component of this test fails.
{16} Although we agree with Defendant that it is the intent to cause injury, not the injury itself, that distinguishes kidnapping from false imprisonment, evidence of injury may be used by the jury as circumstantial evidence of intent. See State v. Allen, 2000-NMSC-002, ¶ 65, 128 N.M. 482, 994 P.2d 728 (“[W]e [allow] a jury to ‘infer, from evidence of acts committed
B. Defendant‘s Convictions Do Not Violate Double Jeopardy
{17} “The constitutional prohibition against double jeopardy ‘protects against both successive prosecutions and multiple punishments for the same offense.‘” State v. Armijo, 2005-NMCA-010, ¶ 15, 136 N.M. 723, 104 P.3d 1114 (citation omitted); see
{18} Defendant need not have preserved this issue in order to raise it on appeal. See State v. Martinez, 2007-NMCA-160, ¶ 5, 143 N.M. 96, 173 P.3d 18. “Double jeopardy presents a question of law, which we review de novo.” State v. Saiz, 2008-NMSC-048, ¶ 22, 144 N.M. 663, 191 P.3d 521, abrogated on other grounds by State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783. “[T]he sole limitation on multiple punishments is legislative intent[.]” Swafford v. State, 112 N.M. 3, 13, 810 P.2d 1223, 1233 (1991). Under New Mexico‘s double jeopardy jurisprudence, our inquiry into legislative intent proceeds in two stages. Id.; State v. Frazier, 2007-NMSC-032, ¶¶ 18-19, 142 N.M. 120, 164 P.3d 1. “The first part of our inquiry [is] whether the conduct underlying the offenses is unitary, i.e., whether the same conduct violates both statutes. The second part [is] whether the [L]egislature intended to create separately punishable offenses.” Swafford, 112 N.M. at 13, 810 P.2d at 1233. If the evidence is such “that the jury reasonably could have inferred independent factual bases for the charged offenses[,]” the conduct is not unitary. Saiz, 2008-NMSC-048, ¶ 30 (internal quotation marks and citation omitted). Independent factual bases “may be established by determining whether the acts constituting the two offenses are sufficiently separated by time or space, looking to the quality and nature of the acts, the objects and results involved, and the defendant‘s mens rea and goals during each act.” Id.
1. Defendant‘s Conduct Was Not Factually Unitary
{20} With this background in mind, we turn back to the facts of this case. We address first whether Defendant‘s conduct was factually unitary, then whether it was unitary as a matter of law. Defendant argues that his conduct was factually unitary because “[t]he physical contact was constant” and “[Defendant‘s] mental state of anger was also constant[.]” We are unpersuaded. Here, Victim testified that at different times during the encounter, Defendant kicked her, punched her, pulled her hair, and pushed her into bushes. She testified that he transported her from place to place while holding her by the shirt and arm and that when she tried to run, he dragged her back to the car. To convict for kidnapping, the jury was instructed they must find that Defendant “took, restrained, confined, or transported [Victim] by force or intimidation . . . to inflict physical injury on her[.]” They were instructed that in order to convict for battery, they must find that Defendant “intentionally touched or applied force to [Victim] by hitting or kicking her[.]” (Emphasis added.) Thus, based on these instructions and Victim‘s testimony, the jury could have found independent factual bases for kidnapping and battery because the instructions limited the conduct constituting battery to hitting or kicking Victim, thereby precluding inclusion of the conduct by which Defendant restrained or transported Victim in the car from place to place. See State v. Pisio, 119 N.M. 252, 260, 889 P.2d 860, 868 (Ct. App. 1994) (“The key to the restraint element in kidnapping is the point at which [the v]ictim‘s physical association with [the d]efendant was no longer voluntary.“). The conduct was not factually unitary. State v. Urioste, 2011-NMCA-121, ¶ 28, 267 P.3d 820 (“[Where] the jury could reasonably have inferred an independent factual basis for . . . [d]efendant‘s convictions, . . . we do not second-guess the factual conclusions of a jury.“), cert. quashed, 2012-NMCERT-008, ___ P.3d ___ (No. 33,287, Aug. 17, 2012).
2. Defendant‘s Conduct Was Not Unitary as a Matter of Law
{22} Frazier‘s analysis of the felony murder statute relies on the legislative intent behind the statute. 2007-NMSC-032, ¶ 26; see
{23} Here, there is no such legislative intent indicated in the kidnapping statute. Unlike the felony murder statute, the kidnapping statute does not include as an element “in the commission of [a] felony.” Compare
{24} Defendant argues that, in spite of the difference in wording, the kidnapping statute functions like the felony murder statute. We disagree for two reasons. First, the kidnapping statute does not require that the jury find there was a crime that caused physical injury. In the felony murder context, the uniform jury instructions require the jury to find that the
{25} To convict for first degree kidnapping, the jury must find that the defendant inflicted physical injury on or committed a sexual offense against the victim, or that the victim was not voluntarily released in a safe place. See
{26} Second, Frazier is inapposite because the problem in that case does not exist here. Critical to Frazier‘s analysis is the fact that the underlying felony increases punishment for a killing to the same level as an intentional killing even when there is no “premeditation or a depraved mind.” Id. ¶ 26. In the felony murder context, “the killer‘s mental state is consistent with second[]degree murder.” Id. ¶ 9. Thus, if punished for both felony murder and the underlying felony, the “defendant will receive a greater punishment than a defendant who is shown to have killed with a more culpable mental state such as deliberate intent murder.” Id. ¶ 10. The key to this analysis is the recognition that different mental states determine the level of culpability for murder. See
{27} We conclude that the kidnapping statute is not analogous to the felony murder statute and the battery and kidnapping in this case were not unitary as a matter of law. Since we determine that Defendant‘s conduct was neither factually unitary nor unitary as a matter of law, there is no reason to proceed to the second prong of the Swafford analysis. See Swafford, 112 N.M. at 14, 810 P.2d at 1234 (“If it reasonably can be said that the conduct is unitary, then one must move to the second part of the inquiry. Otherwise, if the conduct is separate and distinct, inquiry is at an end.“). Defendant‘s convictions for first degree kidnapping and battery against a household member do not violate the constitutional prohibitions against double jeopardy.
C. Kidnapping Was Not Incidental to Battery
{28} Defendant next argues that the Legislature did not intend to punish restraint that is incidental to another crime as kidnapping and cites to other jurisdictions that have interpreted kidnapping statutes to apply only when the restraint or movement has significance independent from the underlying crime. See, e.g., State v. Salamon, 949 A.2d 1092, 1121 (Conn. 2008); State v. Buggs, 547 P.2d 720, 723 (Kan. 1976); People v. Daniels, 459 P.2d 225, 238 (Cal. 1969) (in bank). He argues further that since “[t]he restraint involved here was done for the sole purpose of effectuating [Defendant‘s] contact with [Victim] . . . and did not involve more restraint than was necessary to commit the battery as alleged,” the kidnapping conviction should be vacated. The State argues that Defendant failed to preserve these issues and that, even if they were preserved, “driving a person across miles of desert is [not] necessary to commit battery . . . , given the number of people who have succeeded in committing battery without driving at all.” (internal quotation marks omitted).
{29} Defendant‘s first contention was resolved in State v. Trujillo, 2012-NMCA-___, ¶ 39, ___ P.3d ___ (No. 30,563, Aug. 27, 2012). In that case, the defendant was convicted of kidnapping for holding the victim during a fight in which he and an accomplice beat the victim with a bar. Id. ¶¶ 2-3. This Court examined the history and purpose of the kidnapping statute and concluded that “the Legislature did not intend to punish as kidnapping restraints that are merely incidental to another crime.” Id. ¶ 39. We examined three tests used by other states to determine whether restraint or movement is incidental to another crime. Id. ¶¶ 32-38. Although we did not adopt a specific test, we vacated the kidnapping conviction, stating that the restraint was incidental under any of the tests because
{30} We apply this analysis to Defendant‘s second contention: that any restraint of Victim was incidental to battery. Defendant need not have preserved this argument because it rests on whether the evidence was sufficient to convict him of kidnapping. State v. Stein, 1999-NMCA-065, ¶ 9, 127 N.M. 362, 981 P.2d 295 (“[T]he question of sufficiency of the evidence to support a conviction may be raised for the first time on appeal.“). Under this standard, “an appellate court reviews the evidence in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict.” Riley, 2010-NMSC-005, ¶ 12 (alteration, internal quotation marks, and citation omitted). In essence, Defendant argues that there was insufficient evidence that Defendant‘s restraint of Victim was not “merely in furtherance of the ongoing battery and [that it had a significance of its own.” We are unpersuaded. Kidnapping may occur once the “[v]ictim‘s physical association with [the d]efendant [is] no longer voluntary.” Pisio, 119 N.M. at 260, 889 P.2d at 868. As discussed above, the jury was instructed that a battery conviction required finding that Defendant hit or kicked Victim. In addition, they heard evidence that Defendant drove Victim from one location to another while restraining her in the car. There was sufficient evidence for the jury to conclude that this conduct was not merely incidental to hitting or kicking her. See Trujillo, 2012-NMCA-___, ¶¶ 37-38.
D. Appellant Has Not Established a Prima Facie Case of Ineffective Assistance Based on Defense Counsel‘s Failure to Object
{31} Defendant maintains that his counsel was ineffective because he did not object to character evidence presented at trial and because he failed to file a motion or argue for mitigation at the sentencing hearing. Claims of ineffective assistance of counsel are reviewed de novo. State v. Quiñones, 2011-NMCA-018, ¶ 28, 149 N.M. 294, 248 P.3d 336, cert. denied, 2011-NMCERT-001, 150 N.M. 559, 263 P.3d 901. The two prongs of the test for ineffective assistance claims were stated concisely in State v. Hernandez:
To prevail on his claim of ineffective assistance of counsel, . . . [the d]efendant bears the burden of showing both that his attorney‘s performance fell below that of a reasonably competent attorney, and that, as a result of his attorney‘s incompetence, he suffered prejudice. Absent a showing of both incompetence and prejudice, counsel is presumed competent.
115 N.M. 6, 16, 846 P.2d 312, 322 (1993) (citation omitted); see Strickland v. Washington, 466 U.S. 668, 687 (1984). The range of conduct that is reasonable is broad; “[i]f we can conceive of a reasonable trial tactic which would explain the counsel‘s performance, we should not find ineffective assistance.” Quiñones, 2011-NMCA-018, ¶ 29 (alteration, internal quotation marks, and citation omitted). Prejudice is present when there is a “reasonable probability that ‘but for’ counsel‘s unprofessional error, the result of the proceeding would have been different.” Hernandez, 115 N.M. at 17, 846 P.2d at 323 (internal quotation marks and citation omitted). A showing of prejudice presents a high barrier because “[c]ounsel‘s deficient performance must represent so serious a failure of the adversarial process that it undermines judicial confidence in the accuracy and reliability of the outcome.” Quiñones, 2011-NMCA-018, ¶ 30 (internal quotation marks and citation omitted).
{32} Defendant argues that defense counsel was ineffective because he failed to object to testimony referring to prior bad acts which was “clearly intended to prove conformity therewith” in violation of Rule 11-404(B)(1) NMRA (“Evidence of a crime, wrong, or other act is not admissible to prove a person‘s character in order to show that on a particular occasion the person acted in accordance with the character.“). Specifically, he argues that references in the testimony to his impending court date, prior jail time, and previous altercations were objectionable. During the trial, Victim stated three times that Defendant had a court date the day following the incident. In the course of her testimony, she stated six times that Defendant had said that he did not want to go “back to jail.” At one point, Victim made reference to an incident that allegedly occurred several days earlier. Finally, Victim‘s daughter testified that she advised her mother to call the police because “why would you want to deal with stuff like this, like someone hitting you all the time?” (Emphasis added). She also stated that she had “seen bruises on [Victim]” in the past. Both the State and defense counsel made reference to Defendant‘s court date during closing arguments. Defense counsel also mentioned in closing arguments Defendant‘s alleged statement that he did not want to go back to jail. Defense counsel did not object to any of these statements, nor did he file any motions in limine to exclude this evidence or request a curative instruction for the jury.
{33} We agree with the State that even if defense counsel‘s failure to object was unreasonable, Defendant has not demonstrated that the outcome of the trial would have been different but for this failure. See Hernandez, 115 N.M. at 16-17, 846 P.2d at 322-23 (“On review, we need not consider the two prongs of the test in any particular order.“). “Although the statement[s] may have had some prejudicial effect, Defendant has not demonstrated that had th[ese] statement[s] not come in, the result of the proceeding would have been different.”
{34} Similarly, here the State presented testimony by Victim, the officer to whom Victim reported the incident, and Victim‘s daughter. The State also presented photographs of Victim‘s injuries. Defense counsel‘s strategy was to attack Victim‘s credibility; he did not call any witnesses nor did he present other evidence. “The cumulative effect of these . . . items of evidence, even considering Defendant‘s efforts to discredit them, are simply too strong for us to conclude” that the trial would have been “any different absent [defense] counsel‘s error.” Id. ¶ 29. Defendant has failed to establish a prima facie case of ineffective assistance based on failure to object.
E. The District Court Failed to Consider Mitigating Circumstances in Sentencing
{35} In his second claim of ineffective assistance, Defendant argues that defense counsel failed to argue for mitigating circumstances because he misunderstood the difference between the judge‘s power to defer or suspend under
{36} In order to make a fully informed decision on whether the district court erred by not considering mitigating circumstances, we requested supplemental briefing. See State v. Clemonts, 2006-NMCA-031, ¶ 10, 139 N.M. 147, 130 P.3d 208; see State v. Nozie, 2009-NMSC-018, ¶ 15, 146 N.M. 142, 207 P.3d 1119 (stating that “an appellate court may decline to address [a claim not fully briefed by the parties], [but] it is not required to do so if the transcripts and briefs are sufficient to present the essential question for review on the merits,” and that “NMRA 12-213 does not require th[e] Court to disregard an issue when an appellant fails to comply with its provisions“) (alterations, internal quotation marks, and citations omitted)). The supplemental briefs addressed the interplay, if any, between Sections 31-18-15.1 and 31-20-3, whether the district court considered mitigating
{37} “We review the trial court‘s sentencing for an abuse of discretion.” State v. Jensen, 1998-NMCA-034, ¶ 19, 124 N.M. 726, 955 P.2d 195. A trial court abuses its discretion when it exercises its discretion based on a misunderstanding of the law. See State v. Elinski, 1997-NMCA-117, ¶ 8, 124 N.M. 261, 948 P.2d 1209, overruled on other grounds by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110. We remand for resentencing because the district court did not consider mitigating circumstances in sentencing. Because our holding renders it unnecessary, we do not address Defendant‘s arguments regarding ineffective assistance of counsel based on a failure to move for mitigation.
{38} At the first sentencing hearing, defense counsel argued that the judge had discretion to suspend a portion of the eighteen-year sentence. He also argued that, although “some time is not inappropriate,” eighteen years is “extravagant.” At that point, the judge asked for the reference to the governing statute and was referred to
{39} Defense counsel did not file the motion and stated at the next hearing on the matter, “after an extensive review[,] I would have to . . . agree with the court and [the prosecutor] that this is not one, the two lesser offenses would be available for mitigation, but not the first degree kidnapping.” (Emphasis added.) The judge responded, “what I recall reacting to was whether or not I had any discretion in suspending any portion of that eighteen-year sentence, which I don‘t. But mitigation, I didn‘t even really look at the mitigation statutes, haven‘t seen a formal request for mitigation.” He proceeded to hear argument from counsel on sentencing. Defense counsel stated that “as to count one, I think we are basically dealing with something that the court doesn‘t have a lot of discretion with . . . in a situation like this, you‘re looking at basically having to hand down an eighteen-year sentence.” He also stated that “like I said, there‘s not much we can do with [the kidnapping sentence], there‘s not much argument I can make to that.” After hearing from Defendant, the judge said, “I don‘t have any discretion in count one, it‘s an eighteen-year mandatory sentence, I don‘t have any discretion in that count at all.”
{40} This understanding of the scope of his authority is partially correct. The judge determined correctly that
{41} The State argues that the district court has no obligation to consider mitigating evidence “sua sponte, in the absence of a request from the defense” and that, therefore, this issue is not relevant to this appeal. We disagree. The plain language of the statute imposes a duty on the court.
{42} Furthermore, our cases have recognized the importance of mitigating circumstances in sentencing. In Tomlinson v. State, 98 N.M. 213, 215, 647 P.2d 415, 417 (1982), the Court held that failure to allow a defendant to allocute before sentence is imposed “renders the sentence invalid.” Allocution by the defendant is a form of mitigation evidence. Id. Indeed, the New Mexico Supreme Court defined allocution as “the formal inquiry or demand made by the court . . . to accused at the time for pronouncing sentence as to whether accused has anything to say why sentence should not be pronounced on him.” State v. Setser, 1997-NMSC-004, ¶ 20, 122 N.M. 794, 932 P.2d 484 (internal quotation marks and citation omitted). Similarly, Black‘s Law Dictionary defines allocution as “[a] trial judge‘s formal address to a convicted defendant, asking him or her to speak in mitigation of the sentence to be imposed,” or “[a]n unsworn statement from a convicted defendant to the sentencing judge or jury in which the defendant can ask for mercy . . . or say anything else in an effort to lessen the impending sentence.” Black‘s Law Dictionary 88 (9th ed. 2009). In Tomlinson, the fact that the district court allowed the defendant to allocate after sentence was imposed was “no more than an empty gesture” because of the potential impact of the defendant‘s statement on the sentence. 98 N.M. at 215, 647 P.2d at 417 (“There is no substitute for the impact on sentencing which a defendant‘s own words might have if he chooses to make a statement.” (alteration, internal quotation marks, and citation omitted)). Implicit in the Tomlinson holding is the recognition that if a defendant chooses to speak, the sentencing court must consider his statement before imposing a sentence. See id.
{43} In Juan, the district court reasoned that, because one-third of a life sentence could not be calculated, a life sentence could not be altered under
{44} Here, the district court‘s statements at the hearings suggest that he did not consider mitigating evidence. See State v. Bonilla, 2000-NMSC-037, ¶ 11, 130 N.M. 1, 15 P.3d 491 (rejecting the State‘s argument that, because the defendant received a sentence within the statutory guidelines, the sentence was “per se non-violative of a defendant‘s rights” and considering the judge‘s statements at the hearing). Specifically, his statements that he “didn‘t even really look at the mitigation statutes, haven‘t seen a formal request for mitigation[,]” and “I don‘t have any discretion in count one, it‘s an eighteen-year mandatory sentence, I don‘t have any discretion in that count at all[,]” suggest that either he believed a formal motion was required to trigger exercise of that authority or he did not believe he had statutory authority to reduce the sentence. As the State points out, the district court judge granted a continuance of the sentencing hearing to allow defense counsel to file a motion and it is unlikely that he would have done so “if he believed he lacked authority to act on the motion.” When considered in light of the district court‘s later statements, however, this circumstance indicates that the judge felt that a motion by defense counsel was required.
{45} The district court has an obligation to consider mitigating factors in sentencing. Failure to do so, whether based on a misapprehension of the authority given by statute or a belief that a formal motion is required, is an abuse of discretion. We conclude that the district court here did not consider mitigating circumstances and, therefore, remand for resentencing. To be clear, our holding is not a comment on the length of the sentence. “Defendant is entitled to no more than a sentence prescribed by law,” State v. Cumpton, 2000-NMCA-033, ¶ 12, 129 N.M. 47, 1 P.3d 429, and there is no abuse of discretion when mitigating circumstances are considered and rejected. Our holding is limited to Section 31-18-15.1‘s requirement that the district court consider mitigating circumstances in sentencing.
CONCLUSION
{46} We affirm Defendant‘s convictions and remand for resentencing consistent with this Opinion.
{47} IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
JAMES J. WECHSLER, Judge
LINDA M. VANZI, Judge
APPEAL AND ERROR
Harmless Error
Remand
Standard of Review
CONSTITUTIONAL LAW
Double Jeopardy
CRIMINAL LAW
Aggravating or Mitigating Circumstances
Battery
Domestic Violence
Kidnaping
False Imprisonment
Unitary Conduct
Witness Intimidation
CRIMINAL PROCEDURE
Double Jeopardy
Effective Assistance of Counsel
Lesser Included Offense
STATUTES
Legislative Intent
TORTS
Immunity
Tort Claims Act