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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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. 29,782
10 ROBERT ORTIZ SOTO,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 13 Jerry H. Ritter, District Judge
14 Gary K. King, Attorney General 15 Santa Fe, NM
16 for Appellee
17 Hugh W. Dangler, Chief Public Defender 18 Nina Lalevic, Assistant Appellate Defender 19 Santa Fe, NM
20 for Appellant
21 MEMORANDUM OPINION
22 WECHSLER, Judge.
23 INTRODUCTION 1 Defendant Robert Ortiz Soto appeals the district court’s ruling that his homicide
2 by vehicle (driving while under the influence of intoxicating liquor) conviction was
3 a serious violent offense for purposes of the Earned Meritorious Deductions Act
4 (EMDA), NMSA 1978, § 33-2-34 (2006). This Court filed a second calendar notice
5 on December 9, 2009, proposing to affirm. Defendant filed a memorandum in
6 opposition on March 1, 2010, which we have given due consideration. We affirm the
7 district court.
8 STANDARD OF REVIEW
9 We review for abuse of discretion. State v. Solano, 2009-NMCA-098, ¶ 6, 146
10 N.M. 831, 215 P.3d 769, cert. denied, 2009-NMCERT-007, 147 N.M. 363, 223 P.3d
11 360. “[T]he district court will abuse its discretion if it acts contrary to law.” Id. ¶ 7
12 (internal quotation marks and citation omitted).
13 DISCUSSION
14 EMDA specifies circumstances in which an offender may or may not receive
15 a meritorious deduction from his or her sentence. Where the defendant is guilty of a
16 serious violent offense, the deduction is limited to four days per month. Section 33-2-
17 34(A)(1). Where a defendant is convicted of homicide by vehicle in violation of
18 NMSA 1978, Section 66-8-101 (2004), the district court may find that the offense was
19 a serious violent one “when the nature of the offense and the resulting harm are such
2 1 that the court judges the crime to be a serious violent offense for the purpose of this
2 section.” Section 33-2-34(L)(4)(o). This Court has held that a serious violent offense
3 for purposes of this section is one “committed in a physically violent manner either
4 with an intent to do serious harm or with recklessness in the face of knowledge that
5 one’s acts are reasonably likely to result in serious harm.” State v. Morales, 2002-
6 NMCA-016, ¶ 16, 131 N.M. 530, 39 P.3d 747 (filed 2001).
7 In State v. Scurry, 2007-NMCA-064, 141 N.M. 591, 158 P.3d 1034, this Court
8 addressed the nature of the findings a district court must make to support a finding of
9 a serious violent offense. In that case, “[t]he district court found only that the offenses
10 resulted in death, [the d]efendant had a prior [driving while under the influence
11 (DWI)] conviction, and [the d]efendant’s breath alcohol level was four times the legal
12 limit.” Id. ¶ 12. We stated, “[a]lthough these facts state the resulting harm required
13 for vehicular homicide and may bear on the nature of the offense, we cannot ascertain
14 from them [the d]efendant’s intent or degree of recklessness without considerable
15 inference.” Id.
16 In the present case, the district court found as follows:
17 The [c]ourt finds that due to the nature of this offense and the resulting 18 harm this crime is a serious violent offense pursuant to [Section] 33-2-34 19 . . . . The grounds in support of this finding are: a) The resulting harm 20 was death; and b) [t]he offense was committed with recklessness in the 21 face of knowledge that one’s acts are reasonably likely to result in 22 serious harm, in that . . . Defendant had two (2) prior arrests for DWI
3 1 with one (1) conviction.
2 [RP 179]
3 The State’s memorandum in opposition to our first calendar notice informed us
4 that the district court had noted that Defendant’s blood alcohol content (BAC) at the
5 time of the accident was .20. [State’s MIO 3-4 (unnumbered)] The judge had also
6 noted that Defendant’s BAC in a 2006 DWI arrest that did not result in a conviction
7 was .18, and that in the 2000 incident for which he was convicted of DWI it was
8 “above .16.” [Id. at 4] All three BACs are at least twice the legal limit and grew
9 worse over the approximately eight-year period between 2000 and 2008. See NMSA
10 1978, § 66-8-102(C)(1) (2008).
11 New Mexico cases have considered high BACs and the number of incidents
12 over time as factors in the EMDA serious violent offense determination. The repeat
13 arrests or convictions and high BACs tend to show that the defendants had or should
14 have had the “knowledge” necessary to find “recklessness in the face of knowledge
15 that one’s acts are reasonably likely to result in serious harm.” Morales,
16 2002-NMCA-016, ¶ 16; see, e.g., State v. Worrick, 2006-NMCA-035, ¶ 9, 139 N.M.
17 247, 131 P.3d 97 (the defendant’s BAC was .25/.24, and he admitted to drinking to
18 the point of intoxication twice a week, but denied needing alcohol abuse treatment);
19 State v. Montoya, 2005-NMCA-078, ¶ 9, 137 N.M. 713, 114 P.3d 393 (.10 BAC four
4 1 hours after the accident, five DWI arrests with three convictions over fifteen-year
2 period); State v. Wildgrube, 2003-NMCA-108, ¶¶ 37-38, 134 N.M. 262, 75 P.3d 862
3 (three previous arrests with two DWI convictions). But see Scurry, 2007-NMCA-064,
4 ¶¶ 1, 3 (one prior conviction and BAC four times the limit, but remanded due to
5 district court’s failure to connect facts with EMDA requirements). In our first
6 calendar notice, we noted the similarity between Scurry and the present case in both
7 the factual settings and the written rulings of the district courts’ orders. [CN 2-3] As
8 discussed above, the State now informs us that the district court, in connection with
9 the EMDA analysis, discussed Defendant’s prior conviction and arrest, the BACs
10 found for those incidents, and the manner in which the victim’s death occurred. In the
11 absence of findings, this Court may look to the district court’s oral remarks, and we
12 may construe those remarks to uphold the order. Lopez v. LeMaster,
13 2003-NMSC-003, ¶ 31, 133 N.M. 59, 61 P.3d 185 (filed 2002). In Scurry, we
14 declined to make the “considerable inference” that would have been necessary to
15 connect the facts to the defendant’s intent or degree of recklessness.
16 2007-NMCA-064, ¶ 12. Where it is apparent, however, what led the district court to
17 conclude that the offense was a serious violent one, we may make the necessary
18 inference. In Worrick, we stated:
19 Here, the district court did not specifically state that [the d]efendant 20 acted with recklessness in the face of knowledge that his acts were
5 1 reasonably likely to result in serious harm. However, the record supports 2 this finding, and it is clear from the second and third numbered factors 3 that the district court believed that [the d]efendant's actions were reckless 4 in the face of knowledge that his acts were reasonably likely to result in 5 serious harm.
6 2006-NMCA-035, ¶ 8 (citation omitted).
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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. 29,782
10 ROBERT ORTIZ SOTO,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 13 Jerry H. Ritter, District Judge
14 Gary K. King, Attorney General 15 Santa Fe, NM
16 for Appellee
17 Hugh W. Dangler, Chief Public Defender 18 Nina Lalevic, Assistant Appellate Defender 19 Santa Fe, NM
20 for Appellant
21 MEMORANDUM OPINION
22 WECHSLER, Judge.
23 INTRODUCTION 1 Defendant Robert Ortiz Soto appeals the district court’s ruling that his homicide
2 by vehicle (driving while under the influence of intoxicating liquor) conviction was
3 a serious violent offense for purposes of the Earned Meritorious Deductions Act
4 (EMDA), NMSA 1978, § 33-2-34 (2006). This Court filed a second calendar notice
5 on December 9, 2009, proposing to affirm. Defendant filed a memorandum in
6 opposition on March 1, 2010, which we have given due consideration. We affirm the
7 district court.
8 STANDARD OF REVIEW
9 We review for abuse of discretion. State v. Solano, 2009-NMCA-098, ¶ 6, 146
10 N.M. 831, 215 P.3d 769, cert. denied, 2009-NMCERT-007, 147 N.M. 363, 223 P.3d
11 360. “[T]he district court will abuse its discretion if it acts contrary to law.” Id. ¶ 7
12 (internal quotation marks and citation omitted).
13 DISCUSSION
14 EMDA specifies circumstances in which an offender may or may not receive
15 a meritorious deduction from his or her sentence. Where the defendant is guilty of a
16 serious violent offense, the deduction is limited to four days per month. Section 33-2-
17 34(A)(1). Where a defendant is convicted of homicide by vehicle in violation of
18 NMSA 1978, Section 66-8-101 (2004), the district court may find that the offense was
19 a serious violent one “when the nature of the offense and the resulting harm are such
2 1 that the court judges the crime to be a serious violent offense for the purpose of this
2 section.” Section 33-2-34(L)(4)(o). This Court has held that a serious violent offense
3 for purposes of this section is one “committed in a physically violent manner either
4 with an intent to do serious harm or with recklessness in the face of knowledge that
5 one’s acts are reasonably likely to result in serious harm.” State v. Morales, 2002-
6 NMCA-016, ¶ 16, 131 N.M. 530, 39 P.3d 747 (filed 2001).
7 In State v. Scurry, 2007-NMCA-064, 141 N.M. 591, 158 P.3d 1034, this Court
8 addressed the nature of the findings a district court must make to support a finding of
9 a serious violent offense. In that case, “[t]he district court found only that the offenses
10 resulted in death, [the d]efendant had a prior [driving while under the influence
11 (DWI)] conviction, and [the d]efendant’s breath alcohol level was four times the legal
12 limit.” Id. ¶ 12. We stated, “[a]lthough these facts state the resulting harm required
13 for vehicular homicide and may bear on the nature of the offense, we cannot ascertain
14 from them [the d]efendant’s intent or degree of recklessness without considerable
15 inference.” Id.
16 In the present case, the district court found as follows:
17 The [c]ourt finds that due to the nature of this offense and the resulting 18 harm this crime is a serious violent offense pursuant to [Section] 33-2-34 19 . . . . The grounds in support of this finding are: a) The resulting harm 20 was death; and b) [t]he offense was committed with recklessness in the 21 face of knowledge that one’s acts are reasonably likely to result in 22 serious harm, in that . . . Defendant had two (2) prior arrests for DWI
3 1 with one (1) conviction.
2 [RP 179]
3 The State’s memorandum in opposition to our first calendar notice informed us
4 that the district court had noted that Defendant’s blood alcohol content (BAC) at the
5 time of the accident was .20. [State’s MIO 3-4 (unnumbered)] The judge had also
6 noted that Defendant’s BAC in a 2006 DWI arrest that did not result in a conviction
7 was .18, and that in the 2000 incident for which he was convicted of DWI it was
8 “above .16.” [Id. at 4] All three BACs are at least twice the legal limit and grew
9 worse over the approximately eight-year period between 2000 and 2008. See NMSA
10 1978, § 66-8-102(C)(1) (2008).
11 New Mexico cases have considered high BACs and the number of incidents
12 over time as factors in the EMDA serious violent offense determination. The repeat
13 arrests or convictions and high BACs tend to show that the defendants had or should
14 have had the “knowledge” necessary to find “recklessness in the face of knowledge
15 that one’s acts are reasonably likely to result in serious harm.” Morales,
16 2002-NMCA-016, ¶ 16; see, e.g., State v. Worrick, 2006-NMCA-035, ¶ 9, 139 N.M.
17 247, 131 P.3d 97 (the defendant’s BAC was .25/.24, and he admitted to drinking to
18 the point of intoxication twice a week, but denied needing alcohol abuse treatment);
19 State v. Montoya, 2005-NMCA-078, ¶ 9, 137 N.M. 713, 114 P.3d 393 (.10 BAC four
4 1 hours after the accident, five DWI arrests with three convictions over fifteen-year
2 period); State v. Wildgrube, 2003-NMCA-108, ¶¶ 37-38, 134 N.M. 262, 75 P.3d 862
3 (three previous arrests with two DWI convictions). But see Scurry, 2007-NMCA-064,
4 ¶¶ 1, 3 (one prior conviction and BAC four times the limit, but remanded due to
5 district court’s failure to connect facts with EMDA requirements). In our first
6 calendar notice, we noted the similarity between Scurry and the present case in both
7 the factual settings and the written rulings of the district courts’ orders. [CN 2-3] As
8 discussed above, the State now informs us that the district court, in connection with
9 the EMDA analysis, discussed Defendant’s prior conviction and arrest, the BACs
10 found for those incidents, and the manner in which the victim’s death occurred. In the
11 absence of findings, this Court may look to the district court’s oral remarks, and we
12 may construe those remarks to uphold the order. Lopez v. LeMaster,
13 2003-NMSC-003, ¶ 31, 133 N.M. 59, 61 P.3d 185 (filed 2002). In Scurry, we
14 declined to make the “considerable inference” that would have been necessary to
15 connect the facts to the defendant’s intent or degree of recklessness.
16 2007-NMCA-064, ¶ 12. Where it is apparent, however, what led the district court to
17 conclude that the offense was a serious violent one, we may make the necessary
18 inference. In Worrick, we stated:
19 Here, the district court did not specifically state that [the d]efendant 20 acted with recklessness in the face of knowledge that his acts were
5 1 reasonably likely to result in serious harm. However, the record supports 2 this finding, and it is clear from the second and third numbered factors 3 that the district court believed that [the d]efendant's actions were reckless 4 in the face of knowledge that his acts were reasonably likely to result in 5 serious harm.
6 2006-NMCA-035, ¶ 8 (citation omitted). Accordingly, we conclude that the district
7 court’s discussion of Defendant’s previous DWI arrest and conviction and the BACs
8 from those incidents and the present one sufficiently indicates that the court reasoned
9 that Defendant should have known from those previous experiences that serious harm
10 could result if he repeated such actions.
11 We conclude that a similar analysis applies to the requisite finding that the
12 offense was committed in a physically violent manner. The State’s memorandum in
13 opposition informed us that the district court found that the victim died as a result of
14 head trauma when Defendant made a left turn in front of the victim’s motorcycle.
15 [State’s MIO 3-4 (unnumbered); DS 2] Cf. Solano, 2009-NMCA-098, ¶ 30 (finding
16 offense was committed in a physically violent manner where the victim, riding a
17 bicycle, was thrown over the top of a pickup truck and into its bed). Thus, although
18 the judgment and sentence did not recite either a specific finding that the offense was
19 committed in a physically violent manner or the specific details of the incident that led
20 to this conclusion, the district court in fact discussed these matters at the hearing and,
21 as we observed in our first calendar notice, may have believed the physically violent
6 1 manner in which the incident happened was self-evident.
2 CONCLUSION
3 For the reasons set forth above, we affirm the district court’s ruling that the
4 offense was a serious violent one for purposes of EMDA.
5 IT IS SO ORDERED.
6 _________________________________ 7 JAMES J. WECHSLER, Judge
8 WE CONCUR:
9 __________________________________ 10 MICHAEL D. BUSTAMANTE, Judge
11 __________________________________ 12 LINDA M. VANZI, Judge