STATE V. LEYBA, 1969-NMCA-030, 80 N.M.
190, 453 P.2d 211 (Ct. App. 1969)
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
ORLANDO ENRIQUE LEYBA, Defendant-Appellant
COURT OF APPEALS OF NEW MEXICO
1969-NMCA-030, 80 N.M. 190, 453 P.2d 211
APPEAL FROM THE DISTRICT COURT OF SANTA
FE COUNTY, SCARBOROUGH, Judge
Petition for Writ of Certiorari Denied
April 7, 1969
JAMES A. MALONEY, Attorney General, LARRY
N. SMITH, Assistant Attorney General, Santa Fe, New Mexico, Attorneys for
Appellee.
JOSEPH A. ROBERTS, Esq. DOWNS &
ROBERTS, Santa Fe, New Mexico, Attorneys for Appellant.
WOOD, Judge, wrote the opinion.
Waldo Spiess, C.J., LaFel E. Oman, J.
{1} Appealing his conviction
of contributing to the delinquency of a minor, defendant asserts: (1) no crime
was charged by the information, (2) his proffered guilty plea to assault should
have been accepted, (3) he should have been permitted to plea in abatement, (4)
the District Attorney commented upon his failure to testify and, (5) the
verdicts on the contributing charge and the assault charge were inconsistent.
1. Whether a crime was charged.
{2} Section 40A-6-3, N.M.S.A.
1953 (Repl. Vol. 6) defines contributing to the delinquency of a minor in terms
of an act or
{*192} omission which
"* * * causes, or tends to cause or encourage the delinquency of any
person under the age of eighteen [18] years." Here we are concerned with
acts rather than omissions. Defendant's acts must have tended to cause or
encourage delinquency upon the part of the prosecuting witness. Defendant
contends "delinquency" must be determined by reference to our
statutes pertaining to the conduct of juveniles. According to defendant the applicable
statute is § 13-8-26, N.M.S.A. 1953 (Repl. Vol. 3). We assume these contentions
are correct. See State v. McKinley,
53 N.M. 106,
202 P.2d 964 (1949).
{3} Section 13-8-26, supra,
pertains to the jurisdiction of the juvenile court. It provides that the juvenile
court has exclusive original jurisdiction over a juvenile under eighteen years
when the juvenile is charged with conduct of the type specified in paragraph A
of § 13-8-26, supra. We are concerned here with two of the items so specified -
violation of the law of the state and conduct injurious to the juvenile's
morals. Thus defendant's acts must have tended to cause or encourage the
prosecuting witness to violate the law of the state or to conduct himself in a
manner injurious to his morals.
{4} Defendant was charged
with indecently touching the private parts of the minor and of talking to the
minor indecently. He was charged with doing this at about 7:30 p.m. "* * *
by the Guadalupe Church on Aqua Fria St. * * *" in Santa Fe.
{5} Defendant asserts that
this accusation did not state a crime and that the trial court erred in denying
his motion to quash. His contention has two parts.
{6} The first contention is
that the acts charged neither caused nor tended to cause the minor to violate
any of the sexual offenses listed in our Criminal Code at Chapter 40A, Article
9, N.M.S.A. 1953 (Repl. Vol. 6). This is not correct. The acts charged tended
to cause or encourage his victim to violate § 40A-9-8, N.M.S.A. 1953 (Repl.
Vol. 6). This section prohibits indecent exposure.
{7} Defendant's acts also
tended to cause or encourage the minor to conduct himself in a manner injurious
to his morals. See State v. Dodson,
67 N.M. 146,
353 P.2d 364 (1960); compare
State v. McKinley, supra; State v. Stone, 111 Ore. 227, 226 P. 430 (1924);
People v. Miller, 145 Cal. App.2d 473, 302 P.2d 603 (1956). His second
contention is that the tendency or encouragement must be toward
"habitual" conduct, and this is not charged. He bases this contention
on the reference in § 13-8-26, supra, to a juvenile who "* * * habitually
deports himself as to injure or endanger the morals, health or welfare of
himself or others."
{8} This second contention
misreads the statute and overlooks the applicable test. The habitual conduct
referred to in § 13-8-26, supra, is conduct on the part of the juvenile that
subjects him to the jurisdiction of the juvenile court. Defendant's acts are
sufficient to support the charge of contributing to the delinquency of a minor
if those acts tend to or encourage the juvenile to conduct himself in a manner
injurious to his morals. The end result of defendant's acts - whether they
result in habitual conduct on the part of the juvenile - is not a prerequisite
to the charge of contributing to the delinquency of a minor.
{9} The trial court properly
denied the motion to quash.
2. The proffered guilty plea.
{10} When arraigned,
defendant pled not guilty to contributing to the delinquency of a minor, and
guilty to the charge of assault. See § 40A-3-1, N.M.S.A. 1953 (Repl. Vol. 6).
The trial court refused to accept the guilty plea. The jury found defendant
guilty of the contributing charge and not guilty of the assault charge.
{11} Defendant contends the
trial court abused its discretion and denied him his right to a speedy trial in
refusing to accept the proffered plea of guilt on the assault charge.
{12} Considered apart from
the contributing charge, the contention doesn't make sense.
{*193}
Even though defendant offered to plead guilty to assault, the jury
acquitted him of that charge.
{13} Of necessity then,
defendant's claim must be an assertion that if the plea of guilt to the assault
charge had been accepted, the contributing charge would have been dropped. The
record does not support this view.
{14} A grand jury indicted
defendant on the contributing charge. The criminal information, which added the
assault charge, "* * was filed in accommodation to the Defendant in order
to state a lesser crime to which the Defendant had offered to plead
guilty." At arraignment, the trial court explained both of the charges to
defendant and the punishments imposable for guilt under each of the charges.
Defendant denied that anything had been done to get him to plead guilty, denied
that he had been abused, mistreated or threatened in any way, denied that he
had been promised anything if he pled guilty. Defendant denied that he had been
told that he would get a lighter sentence or that the Judge or the District
Attorney would "take it easier" on him if he pled guilty. Defendant
understood that he didn't have to plead guilty to either charge and that he had
a right to a jury trial.
{15} After this questioning
by the court, defendant pled not guilty to the contributing charge and stated
that he was guilty of the assault charge. The trial court then questioned
defendant concerning his understanding of the guilty plea. After defendant
stated that he did not remember the acts with which he was charged, the trial
court refused to accept the guilty plea, stating: "* * * He is offering to
plead guilty without confessing guilt." The court then questioned the
prosecuting witness concerning defendant's acts. After hearing the witness
detail defendant's acts, defendant unequivocally denied doing them. The trial
court then entered a plea of not guilty for defendant on the assault charge and
set the case for trial.
{16} The foregoing record
certainly does not indicate an agreement or understanding on the part of anyone
that the contributing charge would be dismissed if defendant pled guilty to
assault. Defendant does not claim otherwise. He asserts however that if the
guilty plea had been accepted, "* * clemency could be extended by the
District Attorney, * * *" Such a hope does not raise an issue as to
"plea bargaining". Compare State v. Ortiz,
77 N.M. 751,
427 P.2d 264
(1967).
{17} Accordingly, we fail to
see on what basis the trial court's action in refusing to accept the guilty
plea is before us for review. Assuming that it is, there is no merit to
defendant's claim. The trial court has discretionary power to refuse to accept
a guilty plea. Tremblay v. Overholser, 199 F. Supp. 569 (D.D.C. 1961). It
should not accept such a plea where defendant relates facts inconsistent with
his guilt. People v. Nealy, 48 Misc.2d 328, 264 N.Y.S.2d 710 (1965). That was the
situation here.
{18} The asserted denial of a
speedy trial is based on the claim that the trial court forced defendant to
defend the assault claim. Compare Tremblay v. Overholser, supra. It is not a
denial of a speedy trial to: (a) refuse to accept a guilty plea to a charge
when defendant denies the facts on which the charge is based and (b) try
defendant on that charge, as was done here, two days later. Compare State v.
Martinez,
79 N.M. 232,
441 P.2d 761 (1968); Raburn v. Nash,
78 N.M. 385,
431
P.2d 874 (1967); Dalrymple v. State,
78 N.M. 368,
431 P.2d 746 (1967); State v.
Rhodes,
77 N.M. 536,
425 P.2d 47 (1967); State v. McCroskey,
79 N.M. 502,
445
P.2d 105 (Ct. App. 1968).
3. Attempted plea in abatement.
{19} Contributing to the
delinquency of a minor is a felony. Section 40A-6-3, supra. Since defendant was
proceeded against by criminal information, he had a right to a preliminary
examination as to that felony. Section 41-3-8, N.M.S.A. 1953 (Repl. Vol. 6).
However, defendant specifically waived his right to a preliminary hearing
immediately prior to being arraigned. He also waived this right when, with
{*194} advice of counsel, he pled not guilty
to the charge. State v. Robinson,
78 N.M. 420,
432 P.2d 264 (1967); State v.
Sexton,
78 N.M. 694,
437 P.2d 155 (Ct. App. 1968).
{20} Immediately before his
trial began, defendant moved to withdraw his not guilty plea and be allowed to
"* * * enter a plea in abatement." Although no ground was stated,
compare Territory v. Torres,
16 N.M. 615,
121 P. 27 (1911), it is apparent that
defendant sought to abate the information on the ground no preliminary hearing
had been held. The trial court denied the motion.
{21} Defendant asserts the
trial court should have allowed him to plea in abatement. He claims the trial
court "* * * was fully aware of the reason and purpose of the filing of
the information * * *." He relies on State v. Ortiz, supra.
{22} In
Ortiz the
District Attorney agreed not to file an habitual offender charge against
defendant if he pled guilty. Defendant pled guilty, nevertheless an habitual
offender charge was filed. This was brought to the trial court's attention
before imposition of sentence.
Ortiz held that the guilty plea, in the
circumstances, was involuntary and that the trial court erred in not allowing
the guilty plea to be withdrawn.
{23} Ortiz is not in point
here because the circumstances are far different. As we have previously pointed
out, the record does not show any agreement or understanding that the
contributing charge was to be dismissed if defendant pled guilty to assault.
All we have here is defendant's hope for "clemency" on the
contributing charge if he pled guilty to assault. That hope was frustrated when
the trial court refused to accept the proffered guilty plea. It was only after
this hope was frustrated that defendant was concerned with a preliminary
hearing.
{24} A plea in abatement,
seeking a preliminary hearing, could not be successful unless the not guilty
plea was withdrawn. Thus, the issue is whether the trial court erred in
refusing to allow withdrawal of that plea. It is within the trial court's
discretion to allow a defendant to change a plea that has been accepted by the
trial court. See State v. Garcia,
47 N.M. 319,
142 P.2d 552, 149 A.L.R. 1394
(1943); State v. Brown,
33 N.M. 98,
263 P. 502 (1927); State v. Peel, 99 Ariz.
174, 407 P.2d 756 (1965); Lucero v. People, 434 P.2d 128 (Colo. 1967). The same
rule applies where defendant seeks to withdraw his plea. Specifically, after a
plea of not guilty has been entered, a motion to withdraw that plea in order to
seek abatement of the information, is addressed to the trial court's
discretion. State v. Colson, 262 N.C. 506, 138 S.E.2d 121 (1964).
{25} Under the circumstances
of this case, we cannot say the trial court abused its discretion in denying
the motion.
4. Comment upon defendant's failure to testify.
{26} In closing argument to
the jury, the District Attorney said: "The Defendant had a right to take
the stand if he had wanted to." Defendant promptly objected and moved for
a mistrial. The trial court denied the motion, but admonished the jury, at
length, to disregard the statement.
{27} Without objection, the
jury had been instructed:
"The Court instructs the jury that the defendant may, if
he sees fit, become a witness in his own behalf; but the law imposes no
obligation upon him to testify in his own behalf, or as to any material fact in
the case, and the fact that the defendant did not take the stand and testify as
a witness in his own behalf or as to any material fact is not to be taken or
considered by you in arriving at your verdict, and no presumption whatever is
to be raised against him on account of not testifying in his own behalf."
{28} The trial court
correctly pointed out, in his admonition, that the District Attorney's comment
was "* * * pretty close to a part of what the Court told you in the
Court's instructions. * * *"
{29} Some of the court's
comments are:
"* * * The Defendant has every right in the world not to
take the witness {*195} stand. If you
are ever a Defendant in a criminal case or I am, we will have that same right.
That creates no presumption or inference whatsoever that he is guilty. * * *
Don't attach any significance in the world to the fact that Mr. Leyba did not
take the witness stand. That doesn't prove he is guilty. It doesn't help prove
he is guilty. That doesn't prove anything in this case."
{30} The jury indicated it
would not attach any significance to the District Attorney's remark.
{31} Defendant, relying on
State v. Miller,
76 N.M. 62,
412 P.2d 240 (1966), says that any comment
concerning the defendant's failure to testify is forbidden. The state agrees
that this is true generally, but contends that the situation here is similar to
State v. Gutierrez,
78 N.M. 529,
433 P.2d 508 (Ct. App. 1967).
{32} While the instruction is
not included in the
Gutierrez opinion, the jury was instructed that
defendant was not required to testify. Defense counsel commented on the right
of defendant not to testify. The prosecution's comments were in response to
defense counsel's comments. We held the prosecution's comments were not error
requiring a reversal.
{33} We reach the same result
here. Defendant did not object to the quoted instruction. The District
Attorney's remark closely followed the initial clause of the instruction. The
trial court firmly admonished the jury to attach no significance to the
District Attorney's remark and the jury stated that it would not do so. Under
these circumstances we hold that if the District Attorney's comment was error,
it did not amount to a violation of defendant's constitutional rights and does
not require a reversal. Compare State v. Paris,
76 N.M. 291,
414 P.2d 512
(1966); State v. Buchanan,
76 N.M. 141,
412 P.2d 565 (1966).
5. The asserted inconsistent verdicts.
{34} Defendant contends that
it was impossible for him to have indecently touched the private parts of the
minor without committing assault as defined in § 40A-3-1, supra. He asserts
that the verdict of guilty on the contributing charge is inconsistent with the
acquittal on the assault charge. Asserting the jury failed to find he committed
the assault, defendant claims that as a matter of law he could not be guilty of
contributing to the delinquency of the minor.
{35} The facts, as developed
at the trial, are not included in the record. The only facts before us are
those charged in the information and the Bill of Particulars. Nevertheless, we
assume the facts in evidence that establish the contributing offense also show
an assault. On this assumption, the verdicts are inconsistent.
{36} Contrary to defendant's
contention, however, we can only speculate that the jury found defendant did
not commit an assault under § 40A-3-1, supra. The jury acquitted him on that
charge. They may have done so for any number of reasons. They may have decided
that one punishment would meet the ends of justice. Defendant's guilt of
assault may have been plain and the jury may have refused to convict in
defiance of reason. For its acquittal on the assault charge, the jury is
answerable only to conscience. The verdict of acquittal is beyond our control.
Our business is to review the verdict of conviction. State v. Armijo,
35 N.M. 533,
2 P.2d 1075 (1931).
{37} Since we may only
speculate as to why the jury acquitted defendant of assault, that acquittal,
even though irreconcilable with conviction for contributing to the delinquency
of a minor, does not require the conviction to be set aside as a matter of law.
State v. Armijo, supra; Apodaca v. United States, 188 F.2d 932 (10th Cir.
1951).
{38} The judgment and
sentence are affirmed.
Waldo Spiess, C.J., LaFel E. Oman, J.