 1      IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 2 STATE OF NEW MEXICO,

 3       Plaintiff-Appellee,

 4 v.                                                                    NO. 29,181

 5 ALEJANDRA SALAS,

 6       Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
 8 Gary L. Clingman, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Templeman and Crutchfield, P.A.
13 Barry Crutchfield
14 Lovington, NM

15 for Appellant


16                             MEMORANDUM OPINION

17 KENNEDY, Judge.

18       Defendant appeals her sentence for abandonment of a child resulting in death,

19 contrary to NMSA 1978, § 30-6-1(B) (2005). We issued a calendar notice proposing

20 to summarily affirm. Defendant filed a timely memorandum in opposition, which we
 1 have duly considered. Remaining unpersuaded, we affirm.

 2 DISCUSSION

 3        Defendant continues to argue that she received an illegal sentence for

 4 abandonment of a child. [DS 7; MIO 2-6] Defendant contends that the jury did not

 5 make a finding that Defendant’s abandonment of her child resulted in the child’s

 6 death, which Defendant argues was required to increase her sentence from a

 7 misdemeanor to a second-degree felony. [Id.] Thus, Defendant argues that the

 8 maximum penalty she can receive based on the jury verdict is a misdemeanor. [Id.]

 9        We review the legality of a sentence under the de novo standard of review. See

10 State v. Brown, 1999-NMSC-004, ¶ 8, 126 N.M. 642, 974 P.2d 136. According to the

11 statutory definition,

12              Abandonment of a child consists of the parent, guardian or
13        custodian of a child intentionally leaving or abandoning the child under
14        circumstances whereby the child may or does suffer neglect. Whoever
15        commits abandonment of a child is guilty of a misdemeanor, unless the
16        abandonment results in the child’s death or great bodily harm, in which
17        case he is guilty of a second degree felony.

18 Section 30-6-1(B) (emphasis added). We understand Defendant to argue that the jury

19 convicted her simply of abandonment of a child, and not abandonment of a child

20 resulting in death, and that imposing a second-degree felony penalty is a sentence

21 enhancement of the maximum statutory penalty of a misdemeanor. [MIO 4] We

22 continue to disagree.

                                             2
 1        As discussed in our calendar notice, [CN 3-4] the jury was not instructed on the

 2 misdemeanor offense of abandonment of a child. Cf. UJI 14-607 NMRA. Instead, the

 3 jury was given the instructions for abandonment of a child resulting in death. See UJI

 4 14-606 NMRA. The instructions were as follows:

 5               For you to find [Defendant] guilty of child abuse resulting in death
 6        the State must prove to your satisfaction beyond a reasonable doubt each
 7        of the following elements of the crime:
 8               1. [Defendant] was a parent of [Child];
 9               2. [Defendant] intentionally left or abandoned [Child];
10               3. As a result of [Defendant] leaving or abandoning [Child], was
11        without proper parental care and control necessary for [Child’s] well
12        being;
13               4. [Defendant] had the ability to provide proper parental care and
14        control necessary for [Child’s] well being;
15               5. [Defendant’s] failure to provide proper parental care and control
16        necessary for [Child’s] well being resulted in the death of [Child];
17               6. [Child] was under the age of eighteen;
18               7. This happened in New Mexico on or about the 8th day of
19        December, 2004.

20 [RP 154] These jury instructions comport with the jury instructions for abandonment

21 of a child resulting in death. See UJI 14-606. The jury instructions for abandonment

22 of a child without great bodily harm or death do not include an element requiring the

23 jury to find that the abandonment resulted in the death of the child. See UJI 14-607.

24        Contrary to Defendant’s assertions, we remain persuaded that the jury was

25 required to find beyond a reasonable doubt that Defendant’s abandonment of her child

26 resulted in the child’s death. The finding that abandonment resulted in the death of


                                              3
 1 the child is an element of the crime. According to the statute, the sentence for child

 2 abandonment resulting in death is a second-degree felony. See § 30-6-1(B). Thus,

 3 although we acknowledge the validity of the cases cited by Defendant, [MIO 2-4] we

 4 are not persuaded that the sentence imposed in this case violates Defendant’s

 5 constitutional right to have all facts essential to her sentence determined by a jury

 6 beyond a reasonable doubt.

 7        As we also discussed previously, [CN 4] we are not persuaded that, in addition

 8 to receiving the proper jury instructions, the jury was required to enter a special

 9 verdict form making a finding that Defendant’s abandonment resulted in the death of

10 the child. [DS 6, 8] Defendant’s argument would carry more weight if there was any

11 chance that the jury could have convicted her of abandonment of a child without great

12 bodily harm or death. However, the jury was not given that choice, and we have no

13 reason to conclude that the jury was confused by the instructions into making a

14 finding that was not supported by the evidence. Thus, we remain persuaded that the

15 jury made all the necessary findings beyond a reasonable doubt on all the elements

16 required to convict Defendant of abandonment of a child resulting in death.

17 Accordingly, we hold that the district court properly imposed a second-degree felony

18 sentence as required by the statute.

19 CONCLUSION


                                             4
1       For these reasons, and those in the calendar notice, we affirm Defendant’s

2 sentence.

3       IT IS SO ORDERED.



4                                     ___________________________________
5                                     RODERICK T. KENNEDY, Judge

6 WE CONCUR:



7 ___________________________
8 ROBERT E. ROBLES, Judge


 9 ___________________________
10 TIMOTHY L. GARCIA, Judge




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