State v. Serna

• Court: New Mexico Court of Appeals
• Decided: December 21, 2009
• Docket: 29,655
• Status: Unpublished

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date.

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

7 STATE OF NEW MEXICO,

8 Plaintiff-Appellee,

9 v. NO. 29,655

10 SANDRO SERNA,

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 13 Teddy L. Hartley, District Judge

14 Gary K. King, Attorney General 15 Santa Fe, NM

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender 18 Kathleen T. Baldridge, Assistant Appellate Defender 19 Santa Fe, NM

20 for Appellant

21 MEMORANDUM OPINION

22 WECHSLER, Judge. 1 Defendant appeals his conviction, pursuant to a conditional plea agreement [RP

2 56, 58], for escape from the custody of a peace officer, a fourth degree felony.

3 Defendant appeals specifically from the denial of his motion to dismiss [RP 26, 44,

4 53, 55], as reserved in his plea. [RP 58] Our notice proposed to affirm, and

5 Defendant filed a timely memorandum in opposition pursuant to a granted motion for

6 extension of time. We remain unpersuaded by Defendant’s arguments and therefore

7 affirm.

8 BACKGROUND

9 The parties stipulated to the underlying facts. [DS 2; MIO 1] An officer

10 stopped Defendant for failure to use his turn signal. [DS 2; MIO 1] Dispatch

11 subsequently advised the officer that there was a valid warrant for Defendant for a

12 probation violation. [DS 2; MIO 1-2] Based on this information, the officer

13 handcuffed Defendant and attempted to place him in his patrol car. [DS 2; MIO 2]

14 Defendant then broke off running and was, after a struggle, apprehended by the

15 officer. [DS 3; MIO 2] Defendant was subsequently convicted, pursuant to his

16 conditional plea, for escape or attempt to escape from the officer, in violation of

17 NMSA 1978, Section 30-22-10 (1963), which provides that “[e]scape from custody

18 of a peace officer consists of any person who shall have been placed under lawful

2 1 arrest for the commission or alleged commission of any felony.” [DS 4; MIO 3 ]

2 ISSUES (1) AND (2)

3 Defendant continues to argue that his conviction does not satisfy the elements

4 of Section 30-22-10. [DS 4; MIO 4] Defendant argues that his underlying probation

5 violation, upon which the warrant for his arrest was based, does not satisfy the

6 requirement in Section 30-22-10 that the arrest be based on the commission of a

7 felony. [DS 4; MIO 1]

8 We recognize Defendant’s contention that a probation violation is not a felony

9 [DS 4; MIO 4], but we do not consider this to be significant. The probation violation,

10 upon which the warrant was premised, was based on underlying felony offenses. A

11 common sense reading of Section 30-22-10 criminalizes an escape from an arrest for

12 a probation violation based on an underlying felony, thus satisfying the statutory

13 requirement that Defendant be “placed under lawful arrest for the commission or

14 alleged commission of any felony.” See generally State v. Torres, 2006-NMCA-106,

15 ¶ 8, 140 N.M. 230, 141 P.3d 1284 (stating that “[o]ur primary goal when interpreting

16 statutory language is to give effect to the intent of the [L]egislature”). Defendant

17 argues, however, that the Legislature “carefully chose and limited the language of the

18 statute to include only a lawful arrest for the commission or alleged commission of

3 1 any felony” [MIO 5] and did not include an arrest for the violation of probation on

2 a preexisting felony conviction. [MIO 5] We disagree with Defendant’s view of the

3 statute, under which a person could be convicted for violating Section 30-22-10 only

4 when escaping from an arrest for an alleged felony, but not when escaping from an

5 arrest for a probation violation on a pre-existing felony conviction. We find no basis

6 for concluding that the Legislature intended such a result, as Defendant’s construction

7 would lead to an absurd result. Instead, we hold that a common sense reading of

8 Section 30-22-10 prohibits any escape premised on an arrest for the commission of

9 an alleged felony, or an arrest for the violation of probation on a pre-existing felony

10 conviction. See State v. Marshall, 2004-NMCA-104, ¶ 7, 136 N.M. 240, 96 P.3d 801

11 (providing that we implement the intent of the Legislature by “giving effect to the

12 plain meaning of the words of statute, unless this leads to an absurd or unreasonable

13 result”).

14 We lastly decline to address Defendant’s argument that UJI 14-2223 NMRA,

15 which provides generally that a defendant be arrested “under authority of a warrant,”

16 is deficient because it does not specify that the warrant be for a felony, as required by

17 Section 30-22-10. [RP 27-28; DS 4, 6; MIO 7-8] Significantly, no UJI was given

18 in this case since Defendant entered a conditional plea. For this reason, we do not

4 1 address whether UJI 14-2223 correctly states the law relevant to this case. See State

2 v. Wyrostek, 117 N.M. 514, 523, 873 P.2d 260, 269 (1994) (recognizing that this

3 Court will not issue advisory opinions).

4 Based on the foregoing discussion, we affirm.

5 IT IS SO ORDERED.

6 ________________________________ 7 JAMES J. WECHSLER, Judge

8 WE CONCUR:

9 ________________________________ 10 CYNTHIA A. FRY, Chief Judge

11 ________________________________ 12 RODERICK T. KENNEDY, Judge