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                                                             New Mexico Compilation
                                                           Commission, Santa Fe, NM
                                                          '00'04- 13:45:19 2012.11.01
Certiorari Granted, October 12, 2012, No. 33,808

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-109

Filing Date: August 17, 2012

Docket No. 30,788

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

ADRIAN NANCO,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Ross C. Sanchez, District Court Judge

Gary K. King, Attorney General
Margaret McLean, Assistant Attorney General
Santa Fe, NM

for Appellee

Jacqueline L. Cooper, Chief Public Defender
Adrianne R. Turner, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                        OPINION

VIGIL, Judge.

{1}     A child who is found guilty of being a serious youthful offender is subject to the
same sentence as an adult, including the statutory right to receive presentence confinement
credit. This case requires us to consider whether a child who is found not guilty of being a
serious youthful offender, but adjudicated as a delinquent offender on a lesser-included
offense, is likewise entitled to presentence confinement credit against his commitment to

                                             1
CYFD. We conclude that the applicable statutes intentionally omit and thereby preclude
granting such a credit. Because the district court ruling is consistent with our conclusion,
we affirm.

I.     BACKGROUND

{2}     The Delinquency Act, NMSA 1978, §§ 32A-2-1 to -33 (1993, as amended through
2005), “establishes three classes of juvenile offenders: serious youthful offenders, youthful
offenders, and delinquent offenders . . . [and the classification] determines (1) which rules
of procedure apply at trial, and (2) the potential post-adjudication consequences the child
will face if the State proves its case.” State v. Jones, 2010-NMSC-012, ¶ 10, 148 N.M. 1,
229 P.3d 474.

{3}     A “serious youthful offender” is “an individual fifteen to eighteen years of age who
is charged with and indicted or bound over for trial for first degree murder. A ‘serious
youthful offender’ is not a delinquent child[.]” Section 32A-2-3(H). “Once charged with
first-degree murder, a serious youthful offender is no longer a juvenile within the meaning
of the Delinquency Act, and therefore is no longer entitled to its protections. As a result,
serious youthful offenders are subject to the Rules of Criminal Procedure for the District
Courts applicable to adults and are automatically sentenced as adults if convicted.” Jones,
2010-NMSC-012, ¶ 11 (citation omitted). See Rule 10-101(A)(2)(a) NMRA (stating that the
Rules of Criminal Procedure for the District Courts govern the procedure in all proceedings
in the district court in which the child is alleged to be a serious youthful offender).

{4}     A “youthful offender” is a delinquent child subject to adult or juvenile sanctions who
is fourteen to eighteen years of age at the time of the offense and who is adjudicated for
specified felony offenses (such as second degree murder, assault with intent to commit a
violent felony, kidnapping, aggravated battery, shooting at a dwelling or occupied building,
criminal sexual penetration, and robbery), who has had three prior, separate felony
adjudications within the preceding three years, or who is fourteen years of age and
adjudicated for first degree murder. See § 32A-2-3(J). A youthful offender may potentially
receive either a juvenile or adult sanction, depending on the outcome of certain proceedings.
Jones, 2010-NMSC-012, ¶¶ 13-14. See § 32A-2-20 (setting forth the procedures for
imposing an adult sentence or a juvenile disposition upon a child who is alleged to be a
youthful offender); Rule 10-213 NMRA (providing that the state may give notice to invoke
an adult sentence within ten days after the filing of the petition, and that within fifteen days
of the state’s notice of intent to seek adult sanctions, the court will hold a preliminary
inquiry, unless the case has been presented to a grand jury or the child has waived his right
to same).

{5}     A “delinquent offender” is a child who commits a crime that is less serious than first
degree murder or one of the specified offenses, which qualifies for youthful offender status.
See § 32A-2-3(C) (stating that a “delinquent offender” means “a delinquent child who is
subject to juvenile sanctions only and who is not a youthful offender or a serious youthful

                                               2
offender”). Whether the child committed the crime is decided in the Children’s Court under
the Children’s Court Rules, and if it is determined that the child committed the act (called
an “adjudication”), the child receives a “disposition.” See Rule 10-101(A)(1)(a) (stating that
the Children’s Court Rules govern procedure in the children’s courts of New Mexico in all
matters involving children alleged to have committed a delinquent act as defined in the
Delinquency Act); § 32A-2-19(B) (stating that if the child is found to be delinquent, the
court enters a disposition for the supervision, care, and rehabilitation of the child); Jones,
2010-NMSC-012, ¶ 12 (stating that delinquent offenders are subject to the Children’s Court
Rules and can only receive a juvenile disposition).

{6}      Child was arrested on May 14, 2008, based upon suspicion of his involvement with
a fatal shooting that had occurred that same day. He was indicted on May 28, 2008, on one
count of first degree murder and two counts of tampering with evidence related to the
shooting. Because Child was fifteen years old and charged with first degree murder, Child
was statutorily classified as a serious youthful offender. Thus, he was tried as an adult in
district court, pursuant to the Rules of Criminal Procedure for the District Courts. See §
32A-2-3(H). On May 27, 2010, the jury acquitted Child of first degree murder and one of
the two tampering with evidence charges, but found him guilty of the lesser-included offense
of voluntary manslaughter and the other tampering count. Child was therefore no longer
subject to treatment as an adult because voluntary manslaughter and tampering with
evidence are not charges which qualify for either serious youthful offender or youthful
offender classifications. Accordingly, on June 29, 2010, the district court judge adjudicated
Child a delinquent offender, and entered a disposition for Child, transferring Child “to the
legal custody of the New Mexico Children Youth and Families Department (CYFD) . . . [to]
determine the appropriate placement, supervision and rehabilitation program for [Child] . .
. for an indeterminate period not exceeding TWO (2) years.”

{7}    Child had been detained in a juvenile detention facility for twenty-five months before
his adjudication as a delinquent offender and commitment to CYFD custody. Child
requested presentence confinement credit for those twenty-five months against his
commitment to CYFD. The district court ruled that because Child was adjudicated a
delinquent offender and not subject to an adult sentence, he was not entitled to presentence
confinement credit. Child appeals.

II.    ANALYSIS

{8}     The Children’s Code states that “[a] child subject to the provisions of the
Delinquency Act is entitled to the same basic rights as an adult, except as otherwise
provided” therein. Section 32A-2-14(A). Therefore, Child argues, he is entitled to have
presentence confinement credit applied to his disposition because it is explicitly granted to
adults, and the Children’s Code does not address presentence confinement credit for
delinquent offenders. Secondly, Child argues that he is entitled to presentence confinement
credit on his disposition as a delinquent offender because he was initially charged as a
serious youthful offender, and serious youthful offenders are entitled to presentence

                                              3
confinement credit under NMSA 1978, Section 31-18-15.3 (1993). Finally, Child argues
that not allowing presentence confinement credit denies him due process of the law. We
employ a de novo standard of review to these legal questions of statutory construction and
constitutional interpretation. See State v. Lucero, 2007-NMSC-041, ¶ 8, 142 N.M. 102, 163
P.3d 489. For the reasons that follow, we reject Child’s arguments.

A.     Child is Not Entitled to Presentence Confinement Credit Because He Was
       Adjudicated as a Delinquent Offender

{9}    Herein, we address Child’s first two arguments. NMSA 1978, Section 31-20-12
(1977) states:

               A person held in official confinement on suspicion or charges of the
       commission of a felony shall, upon conviction of that or a lesser included
       offense, be given credit for the period spent in presentence confinement
       against any sentence finally imposed for that offense.

(Emphasis added.) Contending that no statute explicitly addresses a right to presentence
confinement credit by delinquent offenders, Child asserts that he is entitled to presentence
confinement credit pursuant to Section 32A-2-14(A).

{10}   Child also points us to Section 31-18-15.3(B), which provides:

       When an alleged serious youthful offender is detained in a juvenile detention
       facility prior to trial, the time spent in the juvenile detention facility shall
       count towards completion of any sentence imposed.

(Emphasis added.)

{11} The plain language of both Sections 31-20-12 and 31-18-15.3(B), states that
presentence confinement credit applies only against a sentence that is imposed for an
offense. However, a delinquent offender is not “convicted,” nor is he “sentenced.” He is
“adjudicated” a delinquent offender and given a “disposition[] for the supervision, care and
rehabilitation of the child.” Section 32A-2-19(B). See § 32A-2-19(A) (providing that for
a delinquent offender, the court enters a “dispositional judgment”); see also § 32A-2-3(C)
(defining a “delinquent offender” as “a delinquent child who is subject to juvenile sanctions
only and who is not a youthful offender or a serious youthful offender”). In State v. Adam
M., 2000-NMCA-049, ¶ 8, 129 N.M. 146, 2 P.3d 883, we explained:

       Under the [Children’s] Code, when a child is adjudicated a delinquent, the
       children’s court enters a judgment making ‘a juvenile disposition.’ Indeed,
       the [Children’s] Code uses the word ‘sentence’ only when referring to an
       ‘adult sentence’ which, under the [Children’s] Code, may only be imposed
       upon a youthful offender or a serious youthful offender. . . . The distinct and

                                              4
       deliberate use of these terms in the [Children’s] Code indicates the Code’s
       intent to treat juvenile offenders differently from adult criminals.

(Citations omitted).

{12} We conclude that the distinction made by the Legislature between a sentence on the
one hand, and a disposition on the other hand, is both meaningful and intentional. Careful
scrutiny of Section 31-18-15.3(B), which must be read in conjunction with Section 31-18-
15.3(D) and (F), reinforces our conclusion. Under Subsection (D), if the alleged serious
youthful offender is found guilty of first degree murder, as charged, “the court shall sentence
the offender pursuant to the provisions of the Criminal Sentencing Act.” (Emphasis added.)
On the other hand, if the alleged serious offender is convicted of a lesser offense than first
degree murder, “the court shall provide for disposition of the offender pursuant to the
provisions of [Section 32A-2-19, providing for the disposition of an adjudicated delinquent
offender] or [Section 32A-2-20, providing for disposition of a youthful offender].” Section
31-18-15.3(F). The specific statute granting presentence confinement credit exclusively for
serious youthful offenders, who receive a “sentence,” coupled with use of the word
“sentence” in Section 31-20-12, demonstrates that the Legislature did not intend presentence
confinement credit under Section 31-20-12 to apply to juvenile dispositions. See State v.
Martinez, 1998-NMSC-023, ¶ 9, 126 N.M. 39, 966 P.2d 747 (“[W]e will interpret statutes
as a whole and look at other statutes in pari materia in order to determine legislative
intent.”); Adam M., 2000-NMCA-049, ¶ 5 (stating that in construing the Children’s Code,
“we examine the [Children’s] Code in its entirety and construe each part to achieve a
harmonious result” (internal quotation marks and citation omitted)).

{13} Child nevertheless asserts that our reasoning in State v. Lopez, 2009-NMCA-112, ¶
7, 147 N.M. 279, 219 P.3d 1288, establishes that a commitment to CYFD is the functional
equivalent of a sentence. In Lopez, we concluded that the Legislature intended presentence
confinement credit be applied against an adult defendant’s criminal commitment, pursuant
to NMSA 1978, Section 31-9-1.5(D) (1999) (providing that when a defendant remains
incompetent to stand trial, and is dangerous, and the court has found by clear and convincing
evidence that the defendant committed one of the felonies enumerated, the defendant must
be criminally detained in a secure, locked facility and not released except upon order of the
court or upon expiration of the period of time equal to the maximum sentence to which the
defendant would have been subject had he been convicted). See Lopez, 2009-NMCA-112,
¶¶ 9-12. We decline to apply the reasoning of Lopez to the case before us, because it
involves a different statutory scheme, policy considerations, and language. We therefore
conclude that the presentence confinement credit provided for in Sections 31-20-12 and 31-
18-15.3(B) applies only to serious youthful offenders sentenced as adults, and not to a child
adjudicated as a delinquent offender for a lesser-included offense.

{14} Our conclusion also finds support in public policy, as expressed by the Legislature.
The Legislature has declared that it intends the Delinquency Act to accomplish eleven
specific purposes. Section 32A-2-2. The main purpose is:

                                              5
       [C]onsistent with the protection of the public interest, to remove from
       children committing delinquent acts the adult consequences of criminal
       behavior, but to still hold children committing delinquent acts accountable
       for their actions to the extent of the child’s age, education, mental and
       physical condition, background and all other relevant factors, and to provide
       a program of supervision, care and rehabilitation, including rehabilitative
       restitution by the child to the victims of the child’s delinquent act to the
       extent that the child is reasonably able to do so[.]

Id. “Thus, unlike the adult criminal justice system, with its focus on punishment and
deterrence, the juvenile justice system reflects a policy favoring the rehabilitation and
treatment of children.” Jones, 2010-NMSC-012, ¶ 35 (internal quotation marks and citation
omitted).

{15} To achieve the statutory purposes of supervision, care, and rehabilitation, the
Delinquency Act intentionally treats children differently from adults. For example, as we
have already noted, a child who commits a delinquent act is not “convicted” and “sentenced”
like an adult, he or she is “adjudicated” and receives a “disposition.” Further, the
dispositional judgment:

       [S]hall not be deemed a conviction of crime nor shall it impose any civil
       disabilities ordinarily resulting from conviction of a crime nor shall it operate
       to disqualify the child in any civil service application or appointment. The
       juvenile disposition of a child and any evidence given in a hearing in court
       shall not be admissible as evidence against the child in any case or
       proceeding in any other tribunal whether before or after reaching the age of
       majority, except in sentencing proceedings after conviction of a felony and
       then only for the purpose of a presentence study and report.

Section 32A-2-18(A); see Jones, 2010-NMSC-012, ¶ 36 (noting these provisions). This
advances the Legislature’s “intent to protect children, if at all possible, from the adult
consequences of criminal behavior [and] reflect[s] the Legislature’s intent to insulate
delinquent children from the potentially life-long consequences under the adult criminal
justice system that may flow from a bad decision.” Id. ¶¶ 36-37.

{16} Further, juvenile offenders are given the benefit of having a flexible scheme of
consequences for their actions, including a fine, restitution, probation, and a maximum two-
year initial sentence or until the child is twenty-one in certain circumstances, which can be
cut short or extended based on the needs of the child and the public. See § 32A-2-23 (setting
forth the alternatives and limits for the disposition of a delinquent offender); Adam M., 2000-
NMCA-049, ¶ 10 (“[I]f CYFD’s rehabilitative effort is incomplete, the [Children’s] Code
provides a mechanism to continue the child’s commitment.”). An award of presentence
confinement recognizes that a party has already served a portion of his sentence. See
Martinez, 1998-NMSC-023, ¶ 14 (“Presentence confinement credit represents a court’s

                                              6
recognition that a defendant, in fact, has satisfied a portion of the penalty mandated by the
Legislature.”). However, the same policies do not apply to a child adjudicated as a
delinquent and therefore subject to supervision, care, and rehabilitation in the juvenile
system.

{17} In addition, contrary to the policies of the Children’s Code, awarding presentence
confinement credit to a juvenile offender could result in prematurely terminating the ability
of an agency entrusted with the child’s care from providing for the child’s necessary
supervision, care, and rehabilitation. This would disrupt the process established by our
Legislature to provide for children adjudicated to be delinquent. See Jones, 2010-NMSC-
012, ¶¶ 25-32 (stating the legislative history of the Children’s Code is evidence “of an
evolving concern that children be treated as children so long as they can benefit from the
treatment and rehabilitation provided for in the Delinquency Act”); Adam M., 2000-NMCA-
049, ¶¶ 6-11 (concluding that it would undermine the purpose of the Legislature in enacting
the Delinquency Act to impose consecutive commitments against delinquent offenders
because of the structure of the Act in providing flexibility in a juvenile’s disposition to
accomplish the rehabilitative purposes of the Act and remove delinquent offenders from the
adult consequences of criminal behavior); State v. Dennis F., 104 N.M. 619, 620-21, 725
P.2d 595, 596-97 (Ct. App. 1986) (decided under former law) (rejecting the child’s argument
that he should receive credit for time on probation against a disposition imposed because
adults have a statutory right to probation credit, because of the absence of a statute granting
the credit to juveniles and the resulting inconsistency with the statutory scheme).

{18} In this case, Child was fifteen years old and charged with committing first degree
murder and tampering with evidence (two counts). However, the jury determined that Child
had committed the delinquent acts of voluntary manslaughter and tampering with evidence
(one count). The Delinquency Act therefore directs:

       A child fourteen years of age or older charged with first degree murder, but
       found to have committed a delinquent act that is neither first degree murder
       nor a youthful offender offense . . . shall be adjudicated as a delinquent
       subject to the dispositions set forth in Section 32A-2-19.

Section 32A-2-20(H). That is what occurred in this case. Our statutes providing for the
disposition of an adjudicated delinquent offender do not expressly allow predisposition
confinement credit, and for the reasons stated herein, we conclude that this omission was
intentional on the part of the Legislature, and consistent with the Children’s Code. We
therefore hold that the district court did not err in denying Child’s predisposition
confinement credit in its dispositional judgment.

B.     Due Process Violation

{19} Child argues that the district court’s denial of presentence confinement credit violates
his right to due process of law. The State points out that this argument was not preserved

                                              7
in the district court, and Child fails to refute this point in his reply brief or otherwise request
this Court to consider it. Accordingly, we decline to address this issue.

III.    CONCLUSION

{20}    The dispositional judgment of the district court is affirmed.

{21}    IT IS SO ORDERED.

                                                 ____________________________________
                                                 MICHAEL E. VIGIL, Judge

WE CONCUR:

____________________________________
MICHAEL D. BUSTAMANTE, Judge

____________________________________
J. MILES HANISEE, Judge

Topic Index for State v. Nanco, No. 30,788

APPEAL AND ERROR
Preservation of Issues for Appeal
Standard of Review

CHILDREN
Children’s Court
Children’s Court Rules
Transfer to District Court

CONSTITUTIONAL LAW
Due Process

CRIMINAL PROCEDURE
Credit for Time Served
Sentencing

STATUTES
Interpretation
Legislative Intent




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