 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
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 6   IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 7 STATE OF NEW MEXICO,

 8                  Plaintiff-Appellee,

 9     vs.                                                       No. 31,074
10                                                               Consolidated with 31,077
11 JORDAN S.,

12                  Child-Appellant.

13 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
14 John M. Paternoster, District Judge

15 Gary King, Attorney General
16 Santa Fe, NM

17 for Appellee

18 Jacqueline L. Cooper, Acting Chief Public Defender
19 Tania Shahani, Assistant Appellate Defender
20 Santa Fe, NM

21 for Appellant

22                                 MEMORANDUM OPINION

23 VIGIL, Judge.

24          Child appeals from two judgments of the district court; one judgment

25 adjudicated him as a delinquent child for having committed the act of aggravated
 1 assault with a deadly weapon (as an accessory) by admission, and the other judgment

 2 adjudicated him as a youthful offender for having committed the act of assault by a

 3 prisoner causing great bodily harm (as an accessory) and aggravated assault upon a

 4 peace officer causing great bodily harm (as an accessory). We issued two notices of

 5 proposed summary disposition, proposing to affirm each judgment of the district

 6 court. Child filed a motion to consolidate the appeals, which we granted under Case

 7 No. 31,074. After the consolidation, Child filed a single memorandum in opposition

 8 in response to our notices. We have considered Child’s response and remain

 9 unpersuaded that Child has demonstrated error. Therefore, we affirm.

10 Accessory Liability

11        On appeal, Child argues that the district court erred by ruling that his offenses

12 were among those enumerated in NMSA 1978, § 32A-2-3(J) (2009), because those

13 offenses were not listed as having been committed by an accessory. Child argues that,

14 as a result, he should not have been punished as a youthful offender or, alternatively,

15 the rule of lenity should resolve the ambiguity in the Children’s Code in his favor.

16 [MIO 5-9]

17        We are not persuaded that accessory liability has lesser consequences than

18 principal liability. In State v. Perez, 2002-NMCA-040, ¶¶ 18, 23, 132 N.M. 84, 44

19 P.3d 530, we addressed this question and held that a child adjudicated as a youthful



                                              2
 1 offender for having been an accessory to one of the enumerated offenses is to be

 2 punished in the same way as a juvenile adjudicated to have committed the offense as

 3 a principal. Aggravated assault with a deadly weapon is considered one of the

 4 offenses enumerated as Section 32A-2-3(J)(1)(b), assault with the intent to commit a

 5 violent felony. [DS 3] Also, assault by a prisoner causing great bodily harm and

 6 aggravated battery on a peace officer causing great bodily harm are considered

 7 offenses enumerated respectively as Section 32A-2-3(J)(1)(f). As a result, we are not

 8 persuaded that the district court erred by punishing Child as a youthful offender or that

 9 the rule of lenity should apply.

10 Extended Commitment

11        Child argues that the district court erred by imposing the extended commitment

12 in the care of CYFD until he reaches the age of twenty-one because (1) it was based

13 on the court’s erroneous belief that it did not have discretion to do otherwise, (2) Child

14 was only liable as an accessory, and (3) the court should have considered Child’s

15 psychological evaluation as mitigating evidence. [MIO 9-15] We are not persuaded.

16        Child represents that the district court did not believe that it had discretion to

17 impose less than the extended commitment. [MIO 9-12]                   To support this

18 representation, Child notes that the district court judge asked trial counsel if he was

19 “inviting the court to summarily alter the available sanctions as provided in the



                                               3
 1 Children’s Code because [the case involved] accessory liability rather than principal

 2 liability.” [MIO 10] Also, before issuing its final decision, the court stated that it

 3 would “not change the law from the bench” and imposed the extended commitment.

 4 [Id.] Child contends that these statements indicate that the court did not believe that

 5 a lesser punishment was possible.         [Id.]   We are not convinced by Child’s

 6 characterization of the court’s comments. It appears to us that the court was referring

 7 to its lack of discretion as to Child’s status as a youthful offender for having been

 8 adjudicated for an enumerated offense as an accessory, not its lack of discretion as to

 9 the extent of the punishment for his accessory liability.

10        We also note that the district court’s decision to impose the extended

11 commitment is not contrary to law. As we stated above, Child committed acts

12 enumerated in the statute, the State did not seek to sentence Child as an adult, and the

13 district court found that a juvenile disposition was appropriate; thus, Child could have

14 been “subject[ed] to extended commitment in the care of the department until the age

15 of twenty-one.” NMSA 1978, § 32A-2-20(F) (2009) (using permissive language to

16 allow the district court to subject a youthful offender to the extended commitment

17 where a juvenile disposition is appropriate). [RP 52] The district court had discretion

18 within the limits of the Delinquency Act to impose the extended commitment and,

19 therefore, had discretion to consider whether the psychological evaluation rendered



                                              4
 1 another consequence more appropriate. Cf. State v. Jones, 2010-NMSC-012, ¶¶ 35-

 2 38, 41, 45, 148 N.M. 1, 229 P.3d 474 (describing the purpose of an amenability

 3 hearing and the discretion of the district court under the Delinquency Act). We will

 4 not hold that the district court abused that discretion only because it did not impose

 5 the consequences Child would have preferred. [MIO 13-15]

 6 Amenability Hearing

 7        Lastly, Child argues that the district court abused its discretion by failing to

 8 conduct a hearing on Child’s amenability to treatment. [MIO 15-16] Child now

 9 pursues this argument under the demands of State v. Franklin, 78 N.M. 127, 129, 428

10 P.2d 982, 984 (1967); and State v. Boyer, 103 N.M. 655, 658-60, 712 P.2d 1, 4-6 (Ct.

11 App. 1985). [MIO 15] As we stated in our notices, we hold that Child was not entitled

12 to amenability-to-treatment hearing because the State did not give notice of its intent

13 to invoke an adult sentence and because Child was not subject to sentencing as an

14 adult. See § 32A-2-20(B)(1); Jones, 2010-NMSC-012, ¶¶ 36-38 (observing that a

15 child’s “commitment to a facility for the care and rehabilitation of adjudicated

16 delinquent children for a period of up to two years” is a possible consequence after an

17 amenability hearing where the child may face an adult sentence (internal quotation

18 marks and citation omitted)).




                                              5
1        For the reasons stated in our notices and in this opinion, we affirm the

2 judgments and dispositions of the district court.

3        IT IS SO ORDERED.



4                                               _______________________________
5                                               MICHAEL E. VIGIL, Judge


6 WE CONCUR:



7 _________________________________
8 MICHAEL D. BUSTAMANTE, Judge



 9 _________________________________
10 LINDA M. VANZI, Judge




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