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Date: 05-23-2021
Case Style:
State of New Mexico v. Johnathan Lujan-Sierra
Case Number: A-1-CA-37944
Judge: Kristina Bogardus
Court: IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Plaintiff's Attorney: Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
Defendant's Attorney:
Description:
Albuquerque, NM - Criminal defense attorney represented Johnathon Lujan-Sierra with a child solicitation by electronic communication device (child solicitation), and appearing for a meeting with a child under thirteen years of age charge.
13 {2} Given that the parties are familiar with the facts and details of this case, this
14 Court only briefly set forth pertinent facts and applicable law in this memorandum
15 opinion, reserving further discussion of specific facts where necessary to our
16 analysis. See Rule 12-405(B) NMRA (providing that appellate courts “may dispose
1
Although the child victim’s name was used at trial, we refer to her by initials.
See State v. Samora, 2016-NMSC-031, ¶ 3 n.1, 387 P.3d 230 (noting that although
a child victim’s name was used at trial, use of initials on appeal respects the victim’s
dignity and privacy).3
1 of a case by non-precedential order, decision or memorandum opinion” under certain
2 circumstances).
3 {3} The following evidence was presented at trial. In January 2015, L.G. met
4 Defendant while walking in her neighborhood. Defendant was twenty-two years old
5 at the time, but told L.G. that he was eighteen years old. L.G. was twelve years old
6 at the time, and testified that she told Defendant her age, but when asked if she had
7 told Defendant she was twelve years old, she testified that she could not remember.
8 L.G. gave Defendant her cell phone number and began exchanging text messages
9 with Defendant, who identified himself in the text messages as “[J]ohnathon,”
10 clarifying that he was the Johnathon “from down the street” who “just got” L.G.’s
11 number.
12 {4} In his text messages, Defendant repeatedly attempted to convince L.G. to
13 come to his house to “chill,” and to “smoke.” Defendant asked L.G. to come to see
14 him alone and told her “you can’t tell no one [sic] but [I] like [you.]” Defendant
15 asked L.G. multiple times if she would kiss him and repeatedly requested “cutie”
16 and “sexy” pictures of her. Ultimately, L.G. agreed to send Defendant a picture on
17 Snapchat, where pictures and messages disappear shortly after being opened by the
18 recipient. The two exchanged Snapchat user names; Defendant told L.G. that his
19 Snapchat user name was T-Mobile17. Text messages show that Defendant offered
20 to send L.G. a picture of his penis. L.G. subsequently received a picture of a penis 4
1 on Snapchat. The explicit pictures L.G. received on Snapchat did not show the
2 sender’s face.
3 {5} Eventually, L.G. went to Defendant’s house; when she arrived, Defendant was
4 smoking marijuana, which he offered to L.G., and she declined. Defendant kissed
5 L.G. in what she described as an “aggressive” and “forceful manner” that she did
6 not want. L.G. left Defendant’s house and told a friend about the incident, which led
7 to L.G.’s mother learning of the incident and a police investigation. During her
8 Safehouse interview, L.G. disclosed that in addition to kissing her, Defendant
9 touched her vulva.
10 {6} L.G. identified Defendant as the perpetrator of the above-described conduct
11 in a police interview. During the investigation, police learned that Defendant had a
12 medical marijuana card, that Defendant worked at T-Mobile, and that the phone
13 number used to send text messages to L.G. was registered to Defendant’s
14 grandmother. Police also learned that Defendant lived in his grandmother’s home,
15 which was located in L.G.’s neighborhood.
16 {7} Detective Jones spoke with Defendant, who denied knowing L.G. and stated
17 that he would not bring a girl to his grandmother’s house. Before Defendant was told
18 that the case involved explicit pictures, Defendant told Detective Jones that he does
19 not send explicit pictures. Defendant told Detective Jones that he paid for multiple
20 phone lines registered to his family members, and although the phone number that 5
1 L.G. exchanged messages with was registered to Defendant’s grandmother,
2 Defendant stated that his grandmother did not have a cell phone and had no use for
3 one. Defendant denied having a Snapchat account and told Detective Jones that in
4 the past, his family members had posed as Defendant on social media to “get with
5 girls.” Defendant specifically implicated his cousin, Adam Garcia, as the person
6 potentially responsible for the crimes against L.G.
7 {8} Detective Jones interviewed Adam Garcia, a minor at the time, with his
8 parents present. Adam initially told the police that he met L.G. while posing as
9 Defendant on Snapchat and that when he met with L.G. in person, he smoked
10 marijuana resin with her, kissed her, and “grabbed her butt.” Based on
11 inconsistencies in Adam’s statements, Detective Jones believed that Adam was
12 being “deceptive[.]” Later in the interview, Adam changed his story and admitted to
13 Detective Jones that Defendant had contacted him, told him police would be in
14 touch, and asked him to confess to kissing L.G., smoking resin with her, and
15 grabbing her butt.
16 {9} At trial, Adam testified that he made up the story to “cover” for Defendant
17 because he was scared for his cousin. Adam admitted to communicating with L.G.
18 through Snapchat on a tablet at Defendant’s grandmother’s home but denied texting
19 with L.G., sending her explicit pictures, or meeting with her in person. Defendant
20 presented no evidence at trial.6
1 {10} Defendant was initially charged with criminal sexual contact of a minor
2 (CSCM) for touching L.G.’s vulva, based on L.G.’s disclosures in her Safehouse
3 interview. At trial, L.G. testified that Defendant put her hand on his penis, and did
4 not testify that Defendant touched her vulva. The district court denied the State’s
5 motion to amend the indictment to charge Defendant with CSCM for putting L.G.’s
6 hand on his penis, instead directing a verdict for Defendant as to the charge.
7 {11} The jury found Defendant guilty of child solicitation, appearing for a meeting
8 with a child under thirteen years of age; contributing to the delinquency of a minor;
9 and distribution of marijuana to a minor. The jury acquitted Defendant of criminal
10 sexual communication with a child, the charge based on the explicit pictures sent to
11 L.G. on Snapchat, the messaging platform that Adam Garcia admitted to having used
12 to communicate with L.G. while posing as Defendant.
13 {12} The district court originally sentenced Defendant to a term of ten years for all
14 charges, eight years of which were suspended, for a total sentence of two years of
15 incarceration followed by five years of probation and two years of parole. This
16 sentence included a habitual offender enhancement, pursuant to Section 31-18-17,
17 for Defendant’s 2009 felony conviction, when he was a minor, for attempted armed
18 robbery in Arizona. Less than thirty days after the entry of the judgment (but after
19 Defendant filed his notice of appeal), the district court filed an amended judgment 7
1 and sentence, altering Defendant’s parole term from two years to “an indeterminate
period of parole between five (5) years and twenty (20) years.”2 2
3 DISCUSSION
4 I. The Jury Instruction for Child Solicitation Did Not Constitute
5 Fundamental Error Because the Omitted Element Was Not at Issue
6 {13} Defendant contends that the district court committed fundamental error by
7 omitting the required element of Defendant’s knowledge of L.G.’s age from the jury
8 instruction for child solicitation. “The standard of review we apply to jury
9 instructions depends on whether the issue has been preserved. If the error has been
10 preserved[,] we review the instructions for reversible error. If not, we review for
11 fundamental error.” State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d
2
As in the original sentence, the amended sentence suspended eight years of
Defendant’s incarceration and ordered five years of probation. Separately, the
amended sentence included five to twenty years of parole. However, the amended
parole sentence cited to the sex offender probation statute, NMSA 1978, § 31-20-
5.2 (2003), rather than the sex offender parole statute, § 31-21-10.1. The Probation
and Parole Act defines probation as a defendant’s release by the court “under a
suspended or deferred sentence[,]” whereas parole is the release “of an inmate of an
institution by decision of the board or by operation of law subject to conditions
imposed by the board and to its supervision[.]” NMSA 1978, § 31-21-5(A)-(B)
(1991). While Defendant presents arguments on the inapplicability of both the sex
offender probation and parole statutes, the State presents no arguments regarding the
applicability of the sex offender probation statute and instead only presents
arguments on the applicability of the sex offender parole statute. Therefore, for the
purpose of our analysis, we assume that in the amended sentence, the district court
imposed a parole sentence as stated in the text of the amended sentence, despite
citing to the sex offender probation statute.8
1 1134 (internal citation omitted). Because Defendant did not object to the jury
2 instructions at trial, we review for fundamental error.
3 {14} “The doctrine of fundamental error applies only under exceptional
4 circumstances and only to prevent a miscarriage of justice.” State v. Barber, 2004-
5 NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633. “Parties alleging fundamental error
6 must demonstrate the existence of circumstances that shock the conscience or
7 implicate a fundamental unfairness within the system that would undermine judicial
8 integrity if left unchecked.” State v. Cunningham, 2000-NMSC-009, ¶ 21, 128 N.M.
9 711, 998 P.2d 176 (internal quotation marks and citation omitted). We exercise our
10 power to review “guardedly,” finding fundamental error only when a “mistake in the
11 process makes a conviction fundamentally unfair notwithstanding the apparent guilt
12 of the accused.” Barber, 2004-NMSC-019, ¶¶ 8, 17 (internal quotation marks and
13 citations omitted).
14 {15} “The general rule is that fundamental error occurs when the trial court fails to
15 instruct the jury on an essential element.” State v. Sutphin, 2007-NMSC-045, ¶ 16,
16 142 N.M. 191, 164 P.3d 72. “However, fundamental error does not occur if the jury
17 was not instructed on an element not at issue in the case. Likewise, when there can
18 be no dispute that the omitted element was established, fundamental error has not
19 occurred and reversal of the conviction is not required.” Id. (internal citation
20 omitted).9
1 {16} Child solicitation consists of a person “knowingly and intentionally soliciting
2 a child under sixteen years of age, by means of an electronic communication device,
3 to engage in . . . sexual conduct when the perpetrator is at least four years older than
4 the child.” Section 30-37-3.2(A). The “knowingly” scienter element of the child
5 solicitation statute criminalizes these communications “only when knowingly made
6 to a child under the age of sixteen.” State v. Ebert, 2011-NMCA-098, ¶ 13, 150 N.M.
7 576, 263 P.3d 918. Defendant was convicted under Section 30-37-3.2(A) and (C)(2)
8 for “knowingly and intentionally soliciting a child under sixteen years of age, by
9 means of an electronic communication device, to engage in . . . sexual conduct” and
10 appearing at a meeting with a child under thirteen years of age. The jury instruction
11 required the jury only to find that L.G. was “under [thirteen] years of age,” and did
12 not require a finding that Defendant had the requisite knowledge that L.G. was under
13 sixteen years of age.
14 {17} Because the district court failed to instruct the jury on this essential element,
15 we review the entire record in order to place this erroneous instruction in the context
16 of the specific facts of the case to determine whether Defendant’s conviction
17 represents a plain miscarriage of justice. See Sutphin, 2007-NMSC-045, ¶ 19 (stating
18 that under the fundamental error analysis, an erroneous jury instruction results in full
19 record review for a miscarriage of justice). 10
1 {18} L.G. was twelve years old when she met Defendant, and when asked at trial
2 if she told Defendant “how old” she was, L.G. answered “yes.” Although L.G. could
3 not remember if she specifically told Defendant that she was twelve years old, we
4 note that L.G.’s memory lapse arose during her more generalized confusion at the
5 March 2018 trial regarding her age in January and February 2015 when the incidents
6 with Defendant occurred.
7 {19} Throughout trial, Defendant put forth the theory that Adam Garcia, not
8 Defendant, committed the charged acts, and argued to the jury that Adam recanted
9 his initial confession only after being “threatened” with the fact that he had confessed
10 to multiple felonies against a twelve-year-old. Defense counsel argued to the jury
11 that Defendant was “the only person that [sic] gave one consistent story in this case,”
12 and “never deviated” from his claims that he did not know anything about the
13 incidents with L.G.
14 {20} L.G.’s credibility, and not her age, was central to the defense in this case.
15 Defense counsel argued to the jury that L.G. was not a credible witness, emphasizing
16 the changing details in L.G.’s account of where Defendant touched her and arguing
17 that L.G. did not “remember exactly what happened . . . because none of it
18 happened.” Defense counsel additionally challenged L.G.’s identification of
19 Defendant, noting that she provided specific identifying details about Defendant’s
20 chest tattoo only after she was shown a photograph of Defendant in which his chest 11
1 tattoo was visible. When the jury convicted Defendant of child solicitation,
2 appearing for a meeting with a child under age thirteen, the jury necessarily found
3 L.G.’s testimony credible and rejected the defense theory that it was Adam Garcia,
4 rather than Defendant, who communicated with and assaulted L.G.
5 {21} Simply put, Defendant’s knowledge of L.G.’s age was not at issue in this
case.3 6 Because it is not fundamental error to omit an element not at issue in a case,
7 see Sutphin, 2007-NMSC-045, ¶ 16, and because Defendant’s knowledge of L.G.’s
8 age was not at issue, we conclude that no fundamental error resulted from the
9 omission of the scienter element from the jury instruction for child solicitation.
10 {22} To the extent that Defendant attempts to recharacterize the evidence presented
11 at trial to imply that his knowledge of L.G.’s age was at issue, we remain
12 unpersuaded. First, Defendant argues that his knowledge of L.G.’s age was at issue
13 because of L.G.’s allegedly “mature activities,” citing to her text messages that
14 reference smoking marijuana, participating in cheerleading, and being in after-
3
Under the Dissent’s approach, nearly any instructional error regarding an
element of an offense is reversible, despite a lack of objection, based on wholly new
theories of the facts of the case presented on appeal. Besides requiring that precedent
be overruled, see Sutphin, 2007-NMSC-045, ¶ 16 (“[F]undamental error does not
occur if the jury was not instructed on an element not at issue in the case.”), we are
concerned that such an approach encourages litigating issues on appeal that a
defendant fails to litigate at trial. The Dissent’s approach would allow Defendant to
garner reversal on appeal without demonstrating the “miscarriage of justice,”
Barber, 2004-NMSC-019, ¶ 8, “circumstances that shock the conscience,” or
“fundamental unfairness” Cunningham, 2000-NMSC-009, ¶ 21, that fundamental
error requires (internal quotation marks and citation omitted).12
1 school detention. While Defendant certainly could have argued to the jury that these
2 texts raised an inference of a mature age, no such argument was made. Notably, any
3 argument that these messages created a mistaken belief about L.G.’s age would have
4 been wholly incompatible with Defendant’s claims that he did not know L.G. and
5 never met with her. Second, Defendant argues that his knowledge of L.G.’s age was
6 at issue at trial because Adam Garcia testified that L.G. told him she was sixteen
7 years old. However, we fail to see how Adam Garcia’s alleged mistaken belief
8 regarding L.G.’s age is relevant to the issue of Defendant’s knowledge of L.G.’s age.
9 Additionally, we note that Defendant failed to offer the jury any arguments about
10 the significance of Adam Garcia’s mistaken belief regarding L.G.’s age as it might
11 pertain to his own knowledge of L.G.’s age.
12 {23} Finally, Defendant argues that because the child solicitation statute was not
13 meant to punish those who “unknowingly or accidentally” communicate with a child
14 under sixteen years of age, omission of the scienter element caused the jury to
15 convict beyond the intent of the statute. While we recognize the importance of the
16 scienter element in maintaining the constitutionality of the child solicitation statute,
17 see Ebert, 2011-NMCA-098, ¶¶ 7, 8, 13 (noting that constitutional tailoring of the
18 child solicitation statute is “primarily accomplished through the ‘knowingly’
19 scienter requirement”), omission of a necessary element does not amount to
20 fundamental error if the missing element was “not at issue in the case.” Sutphin, 13
1 2007-NMSC-045, ¶ 16. Here, Defendant’s knowledge of L.G.’s age was simply not
2 contested at trial. Because the element was not at issue in the district court, it cannot
3 become one for the first time on appeal. We hold that omission of the scienter
4 element from the jury instruction was not fundamental error.
5 II. The District Court Erred by Sentencing Defendant to Sex Offender
6 Parole
7 {24} Defendant contends that his amended parole sentence amounts to an illegal
8 sentence because he is not a sex offender as defined by the sex offender parole
9 statute. Specifically, Defendant argues that the competing 2007 amendments from
10 Senate Bill (SB) 735 and SB 528 to the sex offender parole statute are irreconcilable,
11 rendering ineffective the earlier SB 735 amendment to include child solicitation in
12 the sex offender parole statute. Defendant asserts that because the SB 735
13 amendment adding child solicitation to the sex offender parole statute was
14 ineffective, the district court erred by sentencing Defendant to an indeterminate
15 parole period of five to twenty years, in accordance with the terms of the sex offender
16 parole statute. See § 31-21-10.1(A)(1).
17 {25} We recently addressed this same issue in State v. Sena, 2021-NMCA___, ¶ 1,
18 ___P.3d___ (No. A-1-CA-38071, Feb. 4, 2021). In Sena, we reversed the district
19 court’s order sentencing a defendant to sex offender parole after pleading guilty to
20 child solicitation. Id. To reach this conclusion, we analyzed “(1) two bills . . . enacted
21 [during] the 2007 legislative session that both amended the sex offender parole 14
1 statute and the list of registrable sex offenses under SORNA; (2) the compilation
2 history of these statutes; and (3) our previous interpretation of conflicting portions
3 of these 2007 bills in State v. Ho, 2014-NMCA-038, 321 P.3d 147.” Sena, 2021-
4 NMCA-___, ¶ 2. In relevant part, the “competing [2007] amendments to the sex
5 offender parole statute made multiple amendments addressing the interrelated issues
6 of who is subject to sex offender parole and what such a sentence requires.” Id. ¶ 25.
7 Specifically, “SB 735 added child solicitation to the sex offender parole statute
8 without consideration of enhanced parole terms such as GPS monitoring, and
9 likewise, GPS monitoring was added as a term of sex offender parole without
10 consideration of whether that term should apply to the crime of child solicitation.”
11 Sena, 2021-NMCA-___, ¶ 31. Facing ambiguity regarding our Legislature’s
12 intention stemming from the interrelated nature of the amendments, the unique
13 compilation history of the amendments, and our decision in Ho, we applied the rule
14 of lenity and resolved the ambiguity in favor of the defendant, holding that a
15 conviction for child solicitation is not subject to sex offender parole. Sena, 2021-
16 NMCA-___, ¶¶ 31, 33.
17 {26} Based on our reasoning in Sena, we reach the same conclusion in this case
18 and hold that the district court erred by sentencing Defendant in accordance with the
19 terms of the sex offender parole statute, § 31-21-10.1(A)(1), rather than under the
20 applicable general parole statute, NMSA 1978, § 31-21-10(D) (2009). 15
1 {27} Additionally, Defendant argues that the district court lacked jurisdiction to
2 modify his original sentence following his notice of appeal and that imposition of
3 sex offender parole in this case would violate due process because the sex offender
4 parole statute was not compiled to include child solicitation in the language of the
5 statute itself at the time of Defendant’s offense. In light of our holding that Defendant
6 is not subject to a sentence to sex offender parole for his conviction of child
7 solicitation, we decline to address these remaining arguments. See Allen v. LeMaster,
8 2012-NMSC-001, ¶ 28, 267 P.3d 806 (observing that “courts exercise judicial
9 restraint by deciding cases on the narrowest possible grounds and avoid reaching
10 unnecessary constitutional issues”).
11 III. Defendant’s Sentence Was Properly Enhanced Under the Habitual
12 Offender Statute
13 {28} The district court enhanced Defendant’s sentence by one year under the
14 habitual offender statute, § 31-18-17, based on his 2009 Arizona felony conviction
15 for attempted armed robbery. Although Defendant was a minor at the time of the
16 attempted armed robbery, Defendant was charged and sentenced as an adult under
17 Arizona law, Ariz. Rev. Stat. Ann. § 13-501(A)(4) (2008, amended 2015).
18 Defendant argues that the district court erred by enhancing his sentence in the instant
19 case based on his Arizona felony conviction because under Arizona law, his charge
20 of attempted armed robbery automatically resulted in an adult sentence, whereas
21 under New Mexico law, he would have received additional procedural protections.16
1 The State argues that Defendant’s sentence was properly enhanced because neither
2 the habitual offender statute nor our case law contain an exception for felony
3 convictions where a juvenile is automatically sentenced as an adult.
4 {29} Under the habitual offender statute, the sentence for a person with a “prior
5 felony conviction” must be increased by one additional year. Section 31-18-17(A).
6 A prior felony conviction is a conviction, in New Mexico or another jurisdiction of
7 the United States, in which the sentence was completed within ten years of the instant
8 felony conviction. Section 31-18-17(D). Sentence enhancement based on an out-of9 state felony conviction requires in relevant part that:
10 (a) the conviction was rendered by a court of another state . . .;
11 (b) the offense was punishable, at the time of conviction, by
12 death or a maximum term of imprisonment of more than one year; or
13 (c) the offense would have been classified as a felony in this
14 state at the time of conviction.
15 Section 31-18-17(D). This Court previously held that the habitual offender statute
16 should be read “as though the word ‘and’ was inserted between [sub-sections] (a)
17 and (b).” State v. Smith, 2000-NMCA-101, ¶ 6, 129 N.M. 738, 13 P.3d 470. Thus,
18 the habitual offender statute requires a sentence enhancement for out-of-state
19 convictions when the sentence for the prior conviction was completed within ten
20 years of the instant felony and the offense either was punishable by a maximum 17
1 sentence of more than one year under the law of the other state, or would have been
2 a felony under New Mexico law. Section 31-18-17(A), (D).
3 {30} Defendant concedes on appeal that the State presented sufficient evidence to
4 establish his Arizona felony conviction for attempted armed robbery, and the record
5 shows that his conviction resulted in a three-year adult sentence, notwithstanding
6 Defendant’s status as a juvenile. Thus, Defendant’s Arizona conviction meets the
7 above-described requirements for a prior felony conviction under the habitual
8 offender statute.
9 {31} Nonetheless, Defendant argues that the district court erred by enhancing his
10 sentence because Arizona automatically imposed an adult sentence for Defendant’s
11 juvenile conviction for attempted armed robbery, whereas under New Mexico law,
12 similarly situated juveniles would be ineligible for an adult sentence for attempted
13 armed robbery or, in the alternative, would receive an amenability hearing prior to
14 the imposition of an adult sentence. For the reasons that follow, we disagree with
15 Defendant’s contention that differences between New Mexico and Arizona law
16 prohibit the imposition of a sentence enhancement based on Defendant’s prior
17 Arizona conviction.
18 {32} Whether a prior felony conviction can be used for the purposes of sentence
19 enhancement under the habitual offender statute is a question of law that we review
20 de novo. State v. Leon, 2013-NMCA-011, ¶ 43, 292 P.3d 493. “In interpreting a 18
1 statute, our primary objective is to give effect to the Legislature’s intent.” State v.
2 Trujillo, 2009-NMSC-012, ¶ 11, 146 N.M. 14, 206 P.3d 125. “We do this by giving
3 effect to the plain meaning of the words of [the] statute, unless this leads to an absurd
4 or unreasonable result.” State v. Marshall, 2004-NMCA-104, ¶ 7, 136 N.M. 240, 96
5 P.3d 801. “If the language of the statute is clear and unambiguous, we must give
6 effect to that language and refrain from further statutory interpretation.” State v.
7 McWhorter, 2005-NMCA-133, ¶ 5, 138 N.M. 580, 124 P.3d 215. “[I]n applying the
8 plain meaning rule, this Court must exercise caution because its beguiling simplicity
9 may mask a host of reasons why a statute, apparently clear and unambiguous on its
10 face, may for one reason or another give rise to legitimate . . . differences of opinion
11 concerning the statute’s meaning.” State v. Martinez, 2006-NMCA-068, ¶ 5, 139
12 N.M. 741, 137 P.3d 1195 (alteration, internal quotation marks, and citation omitted).
13 {33} The habitual offender statute mandates sentence enhancement for prior felony
14 convictions “rendered by a court of another state” that were either “punishable, at
15 the time of conviction, by death or a maximum term of imprisonment of more than
16 one year” or would have been classified as a felony in New Mexico at the time of
17 the offense. Section 31-18-17(A), (D)(2). By requiring sentence enhancement for
18 convictions that meet either of these two criteria, the statute in effect treats all
19 felonies alike, despite differences between the laws of various jurisdictions, and
20 without inquiry into the nature of those differences. Because the plain language of 19
1 the statute is “clear and unambiguous,” we “refrain from further statutory
2 interpretation.” McWhorter, 2005-NMCA-133, ¶ 5.
3 {34} Defendant argues that we should limit sentence enhancement to out-of-state
4 felony convictions where juvenile defendants received the same procedural
5 safeguards as those in New Mexico. This argument, in essence, asks us to add
6 requirements to the habitual offender statute beyond those written by our Legislature
7 and disregards the plain language of the statute, which recognizes differences
8 between the laws of jurisdictions and treats all felony convictions the same for the
9 purpose of sentence enhancement. See State v. Moya, 2007-NMSC-027, ¶ 9, 141
10 N.M. 817, 161 P.3d 862 (requiring interpretation of a statute “in its entirety, so that
11 each part of the statute is given meaning and no part is superfluous”); see also
12 GandyDancer, LLC v. Rock House CGM, LLC, 2019-NMSC-021, ¶ 22, 453 P.3d
13 434 (“This Court applies the principles of statutory construction to give effect to
14 every phrase unless there is an obvious mistake or error.”). If the Legislature
15 intended to limit sentence enhancements to only out-of-state convictions with the
16 same procedural safeguards for juveniles as those in New Mexico, it presumably
17 would have done so. Because Defendant’s Arizona felony conviction meets the
18 requirements laid out in the habitual offender statute, and because the statute plainly
19 does not exempt enhancement for prior convictions rendered under procedural 20
1 protections different from those in New Mexico, we hold that Defendant’s sentence
2 was properly enhanced.
3 {35} We note that our holding is consistent with Leon, in which this Court
4 addressed the applicability of the habitual offender statute to in-state juvenile
5 convictions. 2013-NMCA-011, ¶¶ 42-45. In Leon, we examined the language of the
6 habitual offender statute, which “applies to persons convicted of felonies whether
7 they are convicted under the Criminal Code, Controlled Substances Act, ‘or not[,]’ ”
8 Id. ¶ 44 (citing Section 31-18-17(A)), as well as the Children’s Code, which provides
9 that “ ‘if a judgment on a proceeding under the Delinquency Act results in an adult
10 sentence, the determination of guilt at trial becomes a conviction for the purposes of
11 the Criminal Code.’ ” Id. ¶ 43 (quoting NMSA 1978, § 32A-2-18(C)) (alteration
12 omitted). Relying on the plain language of these two statutes, we held that where a
13 juvenile defendant “was sentenced as an adult, . . . and was convicted of a felony for
14 the purposes of the Criminal Code, the habitual offender statute is applicable.” Id.
15 ¶¶ 44-45. Significantly, the analysis in Leon neither discussed nor relied on the
16 procedural protections for juveniles for its decision that adult sentences imposed on
17 juveniles in New Mexico are subject to the habitual offender statute. See id. ¶¶ 42-
18 45.
19 {36} Defendant argues that this case is distinguishable from Leon, and, in the
20 alternative, argues that Leon should be overturned. However, as described above, 21
1 although our decision is consistent with Leon, it rests on the plain language of the
2 habitual offender statute. Because our analysis does not rely on Leon, we do not
3 reach Defendant’s now hypothetical arguments regarding the applicability and
4 propriety of Leon. See State v. Ordunez, 2012-NMSC-024, ¶ 22, 283 P.3d 282 (“It
5 is not within the province of an appellate court to decide abstract, hypothetical or
6 moot questions in cases wherein no actual relief can be afforded.” (alteration,
7 internal quotation marks, and citation omitted)).
Outcome: For the foregoing reasons, we reverse Defendant’s parole sentence and
remand to the district for resentencing consistent with this opinion. We otherwise
affirm.
Plaintiff's Experts:
Defendant's Experts:
Comments: