State v. Stevens

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

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. No. 35,547

5 JERI STEVENS,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 8 Daylene A. Marsh, District Judge

9 Hector H. Balderas, Attorney General 10 Santa Fe, NM

11 for Appellee

12 Bennett J. Baur, Chief Public Defender 13 Will O’Connell, Assistant Appellate Defender 14 Santa Fe, NM

15 for Appellant

16 MEMORANDUM OPINION

17 VIGIL, Judge.

18 {1} Defendant has appealed from a conviction for disorderly conduct, challenging

19 her sentence. We previously issued a second notice of proposed summary disposition  1 in which we proposed to affirm. Defendant has filed a memorandum in opposition.

2 After due consideration, we affirm.

3 {2} Defendant has argued that the portion of her sentence which requires her to

4 participate in a misdemeanor compliance program is invalid. [DS 3; MIO 1-5] She

5 continues to assert that the statute authorizing counties to create misdemeanor

6 compliance programs, NMSA 1978, Section 31-20-5.1(A) (2013), limits participation

7 to “persons who have been convicted of a misdemeanor criminal offense specified in

8 the Criminal Code,” and insofar as she was convicted of a petty misdemeanor, her

9 situation does not fall within the ambit of that provision. [MIO 1-5] We remain

10 unpersuaded.

11 {3} As we observed in the notice of proposed summary disposition, the term

12 “misdemeanor” has long been recognized as a general classification, which includes

13 petty misdemeanors as a sub-class. See Cty of Los Alamos v. Tapia, 1990-NMSC-038,

14 29, 109 N.M. 736, 790 P.2d 1017 (construing the term “misdemeanor" as including

15 “petty misdemeanors”), overruled on other grounds by City of Santa Fe v. Marquez,

16 2012-NMSC 031, 285 P.3d 637; Inc. Cty. of Los Alamos v. Johnson,

17 1989-NMSC-045, 13, 108 N.M. 633, 776 P.2d 1252 (Baca, J., specially concurring)

18 (tracing the common-law history of criminal offense designations, and ultimately

19 observing that the “generic term ‘misdemeanor’” includes petty misdemeanors as a

2  1 sub-group); State v. Trevizo, 2011-NMCA-069, 14, 150 N.M. 158, 257 P.3d 978

2 (observing that a “misdemeanor” as commonly defined “would encompass any crime

3 that was not a felony, including petty misdemeanors”). As such, the reference to

4 “misdemeanor” offenses in Section 31-20-5.1(A) includes petty misdemeanors.

5 {4} In her memorandum in opposition Defendant contends that Tapia, Johnson, and

6 Trevizo “do not stand for the general proposition that the Court cites them for.” [MIO

7 2] We disagree.

8 {5} In Trevizo this Court recognized that offenses denominated “misdemeanors”

9 under the Motor Vehicle Code actually be petty misdemeanors, in light of the

10 authorized punishment. 2011-NMCA-069, 14-16. In so holding, the Court did not

11 depart from the general rule by which petty misdemeanors are included as a sub-class

12 of misdemeanors. Id. 14. To the contrary, the Court read the Legislature’s use of the

13 term “misdemeanor” as merely making the historically-recognized distinction between

14 felonies and misdemeanors, “and not as precluding treatment of violations of the

15 Motor Vehicle Code as petty misdemeanors,” notwithstanding the Legislature’s

16 failure to mention petty misdemeanors with specificity. Id. Accordingly, the Court

17 concluded that the statutory reference to misdemeanors accommodated petty

18 misdemeanors as well. Id. This is in keeping with the previously-articulated general

19 principle.

3  1 {6} We acknowledge that in Tapia and Johnson the Fresh Pursuit Act was

2 specifically at issue, and the Court engaged in policy analysis. [MIO 3-4] However,

3 these circumstances do not diminish the Court’s recognition that petty misdemeanors

4 are generally included as a subclass of the term “misdemeanor.” Tapia, 1990-NMSC-

5 038, 29; Johnson, 1989-NMSC-045, 13. To the extent that Defendant invites the

6 Court to limit this general principle to the Fresh Pursuit Act, no policy or theory has

7 been advanced in support of the suggested limitation. We therefore decline the

8 invitation.

9 {7} Finally, we understand Defendant to contend that the Legislature’s failure to

10 expressly state that individuals convicted of petty misdemeanors may be required to

11 participate in probation compliance programs should be regarded as a deliberate

12 omission, particularly insofar as the Legislature has demonstrated in other contexts

13 that it is aware of the distinction. [MIO 2, 4-5] Once again, we disagree. “This Court

14 presumes that the Legislature is aware of existing case law and acts with knowledge

15 of it.” State v. Chavez, 2008-NMSC-001, 21, 143 N.M. 205, 174 P.3d 988. We

16 therefore presume that the Legislature was aware of the general principle recognized

17 in the foregoing authorities when Section 31-20-5.1 was enacted. See Johnson,

18 1989-NMSC-045, 4, (presuming that the legislature is well informed as to existing

19 law). As such, specific reference to petty misdemeanors would only have been

4  1 necessary if the Legislature had intended to exclude individuals convicted of petty

2 misdemeanors from participation in compliance programs. The absence of such

3 language reflects the opposite intent.

4 {8} In summary, we conclude that participation in misdemeanor compliance

5 programs authorized by Section 31-20-5.1(A) extends to persons who have been

6 convicted of misdemeanors and, as a sub-class, petty misdemeanors as well.

7 Accordingly, the portion of Defendant’s sentence which requires her to participate in

8 the county’s misdemeanor compliance programs is permissible.

9 {9} For the reasons stated above and in the notice of proposed summary disposition,

10 we affirm.

11 {10} IT IS SO ORDERED.

12 __________________________________ 13 MICHAEL E. VIGIL, Judge

14 WE CONCUR:

15 ___________________________ 16 TIMOTHY L. GARCIA, Judge

17 ___________________________ 18 J. MILES HANISEE, Judge

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