September 17, 2009 – State of New Mexico v. Eloy Trujillo, No. 28,412

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: September 17, 2009
NO. 28,412
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
ELOY TRUJILLO,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY
Abigail Aragon, District Judge
Gary K. King, Attorney General
Santa Fe, NM
M. Victoria Wilson, Assistant Attorney General
Albuquerque, NM
for Appellee
Silva & Grano Law Firm
Marc A. Grano
Las Vegas, NM
for Appellant

1 Defendant did not raise in the district court and does not raise on appeal the
issue whether the State was constitutionally required to present the amenability
determinations to a jury. See State v. Rudy B., 2009-NMCA-___, ¶ 23, ___ N.M. ___,
___ P.3d ___ (No. 27,589, July 30, 2009). We therefore do not discuss that issue.
OPINION
SUTIN, Judge.
{1} 	After determining that Defendant Eloy Trujillo, a child offender under the
juvenile system, was not amenable to rehabilitation or treatment as a child, the court
sentenced him as an adult after he pleaded guilty to second degree murder. Defendant
moved for a new amenability and sentencing hearing on the ground that the court
should not conduct an amenability and sentencing hearing at the same time, see State
v. Jose S., 2007-NMCA-146, ¶ 17, 142 N.M. 829, 171 P.3d 768, and also moved to
recuse the judge because she had previously represented the victim murdered by
Defendant. The court denied Defendant’s motion for a new amenability hearing and
granted his motion for a new sentencing hearing. Defendant was sentenced to seven
and one-half years. A hearing was held on Defendant’s request to recuse the district
judge, and the court denied the motion. Defendant appeals, asserting that the court
erred in failing to recuse and that the court’s non-amenability determination was not
supported by substantial evidence.1 We affirm.

CORRECTION PAGE: Delete the word “serious” before “youthful” in line 2. State v. Trujillo, No. 28412, filed
9/17/09, S-R-Bu.
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BACKGROUND
{2} 	At age sixteen, Defendant was charged as a youthful offender in May 2006 with
second degree murder and tampering with evidence. 	See NMSA 1978, §§ 32A-2-
3(H), -20 (2005) (amended 2009). The charges were based on an incident in which
Defendant and his companions agreed to meet with Anthony M. (Victim) for a
confrontation near Robertson High School in Las Vegas, New Mexico. During the
confrontation, Defendant’s cousin, Theodore, and Victim engaged in a fight. 	The
fight ended when Victim released Theodore from a “head lock.” At that point, Victim
and Defendant exchanged words, then Defendant opened the trunk of his car and
retrieved and loaded a shotgun. It is disputed as to when Defendant shot Victim in the
chest. The next day at the hospital, Victim died from the gunshot wound inflicted by
Defendant.
{3} 	District Judge Abigail Aragon was assigned to Defendant’s case. 	After his
amenability hearing, the court’s determination on amenability, and the court’s
imposition of an adult sentence, Defendant filed a sealed request to recuse Judge
Aragon. 	In the request, defense counsel stated that after the hearing, he discovered
from records obtained from the Children, Youth and Families Department (CYFD)
that he had received before Defendant’s plea, before she was appointed to the bench,

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Judge Aragon had been appointed as a contract public defender to represent Victim
in a juvenile delinquency proceeding. Defendant’s motion alleged that Judge Aragon
had represented Victim in negotiating a plea to a felony charge against Victim of
aggravated assault with a deadly weapon. The motion also alleged that Judge Aragon
had “developed a confidential attorney/client relationship” with Victim that made
Judge Aragon “privy to extrajudicial background information and personal history
information pertaining to [Victim] unavailable to the defense in this case.” 	Citing
Rules 5-106(E), 21-200, and 21-400(A)(1) NMRA, Defendant argued that Judge
Aragon’s prior representation of Victim in a 2003 proceeding created an appearance
of impropriety and lack of impartiality that required her to recuse herself from
presiding in this case.
{4} 	At the hearing on this motion, Defendant repeated these claims and defense
counsel noted his own neglect in not having reviewed the CYFD records before
Defendant entered his plea. 	Judge Aragon noted for the record that she did not
personally represent Victim, engage in plea negotiations on his behalf, discuss a plea
with him or his parents, or appear before the court on behalf of Victim or his parents,
and she stated that she had no direct contact with Victim in the juvenile proceedings.
As a result, Judge Aragon denied Defendant’s request for recusal. 	The judge did,

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however, grant Defendant’s request to be allowed to submit the CYFD records on
which he based his motion as exhibits for the record.
{5} 	On November 26, 2007, Defendant supplemented the record in this case with
those records. The documents included a 2003 order appointing then private attorney
Abigail Aragon as the attorney for Victim, in the case styled, In the Matter of Anthony
[M.], No. 2003-05-JR. 	Also included is an affidavit by a private investigator
confirming that, upon his review of Victim’s case file, the judge’s former law partner,
Michael Aragon, actually appeared at all the hearings in Victim’s case. Defendant
also filed a motion to reconsider the order denying the motion to recuse.
{6} 	In his motion to reconsider, Defendant made the same arguments contained in
the first motion. 	Defendant also attached his own affidavit stating that he was
unaware of the judge’s prior representation of Victim and, upon learning about it, had
requested his attorney to seek the judge’s recusal. 	The affidavit was provided to
address the court’s finding, as perceived by Defendant, that Defendant or his attorney
knew of the judge’s prior representation of Victim at the time of the amenability and
sentencing hearings. The record of the hearing on Defendant’s initial motion reveals
no such finding by the district court. Rather, Judge Aragon found that Defendant’s
motion was based only on the unfavorable finding that Defendant was not amenable

5
to treatment as a juvenile.
{7} 	Also in his motion to reconsider, Defendant addressed the court’s finding that
recusal was unnecessary because Judge Aragon’s law partner and not Judge Aragon
herself had represented Victim. He argued that the actions of a lawyer are imputed
on his or her law partners. The district court did not rule on this second motion and,
therefore, it was denied after thirty days by operation of law.
{8} 	Defendant argues on appeal that the district court erred in denying his request
for recusal and that substantial evidence did not exist to support an adult sentence.
DISCUSSION
I. 	The District Judge Did Not Err in Failing to Recuse Herself
A. 	Standard of Review and Applicable Legal Standards
{9} 	We review the denial of a motion to recuse for an abuse of discretion. State v.
Ruiz, 2007-NMCA-014, ¶ 13, 141 N.M. 53, 150 P.3d 1003 (filed 2006); State v.
Cherryhomes, 114 N.M. 495, 500, 840 P.2d 1261, 1266 (Ct. App. 1992). “An abuse
of discretion occurs when the ruling is clearly against the logic and effect of the facts
and circumstances of the case. We cannot say the trial court abused its discretion by
its ruling unless we can characterize it as clearly untenable or not justified by reason.”
State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (filed 1998)

CORRECTION PAGE: Insert “to” before “not” in line 19. State v. Trujillo, No. 28412, filed 9/17/09, S-R-Bu.
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(internal quotation marks and citation omitted).
{10} 	“In determining whether an objective observer would conclude that a judge’s
impartiality was questionable, an appellate court should look to see how the judge
arrived at the decision not to recuse and then should review the judge’s actions for
bias.” 	State v. Riordan, 2009-NMSC-022, ¶ 11, 146 N.M. 281, 209 P.3d 773. 	In
Riordan, the fact that no objective evidence of bias on the part of the court was
presented indicated that there was no impropriety for the court to remain on the case.
Id. ¶ 12.
{11} 	“[R]ecusal is only required when a judge has become so embroiled in the
controversy that he [or she] cannot fairly and objectively hear the case.” 	Id. ¶ 14
(alteration omitted) (internal quotation marks and citation omitted). “[R]ecusal rests
within the discretion of the trial judge, and will only be reversed upon a showing of
an abuse of that discretion.” Id. ¶ 6. “In order to require recusal, bias must be of a
personal nature against the party seeking recusal.” 	Ruiz, 2007-NMCA-014, ¶ 15
(internal quotation marks and citation omitted). A claim of bias, including a claim of
an appearance of bias, cannot be based on mere speculation. 	See United Nuclear
Corp. v. Gen. Atomic Co., 96 N.M. 155, 246-48, n.156, 629 P.2d 231, 322-24, n.156
(1980) (rejecting speculative claims of bias as insufficient to warrant disqualification

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of a judge under Article VI, Section 18 of the New Mexico Constitution and Rule 21-
300 NMRA (formerly Canon 3(C)(1) of the Code of Judicial Conduct)). “Voluntary
recusal is reserved for compelling constitutional, statutory, or ethical reasons because
a judge has a duty to sit where not disqualified which is equally as strong as the duty
to not sit where disqualified.” State v. Hernandez, 115 N.M. 6, 20, 846 P.2d 312, 326
(1993) (alteration omitted) (emphasis omitted) (internal quotation marks and citation
omitted); see also Rule 21-300(B)(1) (“A judge shall hear and decide matters assigned
to the judge except those in which disqualification is required.”).
B. 	The Circumstances Did Not Require Recusal
{12} 	We see no basis on which to conclude that Judge Aragon erred in failing to
recuse herself. She did not actually represent Victim, and she had no knowledge of
his case. Defendant has shown no interest or actual bias of Judge Aragon, nor has he
shown prejudice. 	To the extent that an appearance of impropriety might be
considered, nothing Defendant has shown indicates an appearance of impropriety, and
Judge Aragon sufficiently dispelled any such appearance. See Robertson v. State, 484
S.E.2d 18, 20 (Ga. Ct. App. 1997) (holding that the defendant was not denied a fair
trial for failing to recuse where the trial judge’s husband represented the victim in a
civil suit and the trial judge only had an indirect interest); Hunter v. State, 684 So. 2d

CORRECTION PAGE: Change “Non-Amendability” to “Non-Amenability” in line 3. State v. Trujillo, No. 28412,
filed 9/17/09, S-R-Bu.
8
625, 629-31 (Miss. 1996) (affirming the court’s denial of the defendant’s motion to
recuse where the judge’s firm had previously represented the victim but the case was
not discussed with the judge and where the defendant never alleged that he was
actually prejudiced and only argued that the trial judge’s relation gave an appearance
of impartiality); Flores v. State, 79 N.M. 47, 48-49, 439 P.2d 565, 566-67 (Ct. App.
1968) (holding that the defendant was not denied a fair and impartial trial where a trial
judge represented the defendant in the past).
II. 	The Court’s Non-Amenability Finding
Was Supported by Substantial Evidence
A. 	Standard of Review
{13} 	We review non-amenability findings for substantial evidence or abuse of
discretion. 	State v. Gonzales, 2001-NMCA-025, ¶¶ 33, 40, 130 N.M. 341, 24 P.3d
776, overruled on other grounds by Rudy B., 2009-NMCA-___, ¶¶ 1, 53. We do not
reweigh the evidence or substitute our judgment for that of the district court. Id. ¶ 40.
We view the evidence in the light most favorable to the lower court’s decision, resolve
all conflicts and indulge all permissible inferences to uphold that decision, and
disregard all evidence and inferences to the contrary. Id.
B. 	The Question of Amenability

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{14} 	Defendant presented expert opinions and certain evaluation reports. 	Those
opinions favored a finding of amenability. 	The defense specifically referred the
district court to a Juvenile Justice Services Diagnostic/Psychological Evaluation that
had been previously received by the court and which found that Defendant was
amenable to juvenile sanctions. The defense also specifically referred the court to the
CYFD Baseline Assessment prepared for the court in relation to sentencing, which
also indicated that Defendant was amenable to juvenile sanctions. 	The defense
discussed a Department of Corrections Sixty-Day Diagnostic Evaluation on Defendant
prepared in connection with Defendant’s prior referral to juvenile probation and
parole. 	The defense further presented the testimony of Dr. Susan Cave, a clinical
psychologist. Dr. Cave testified that Defendant was amenable to juvenile sanctions,
and she recommended that juvenile sanctions be imposed.
{15} 	The State did not present expert opinion. 	The prosecution cross-examined
Defendant’s expert witness and relied on the circumstances of the offense admitted
by Defendant in entering his plea as factors indicating non-amenability. See § 32A-2-
20(C) (2005).
{16} 	The facts that Defendant admitted, and on which he based his plea, were as
follows. Victim was a student at Robertson High School. On the day of the shooting,

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on school grounds, there was verbal confrontation between Victim and Defendant’s
brother, 	with 	another 	person 	present, 	possibly 	Defendant. 	After 	the 	verbal
confrontation, Victim left the school grounds with several companions. Later, Victim
and his companions, who were in one vehicle, met up with Defendant and Defendant’s
brother and cousin, who were in another vehicle. The parties agreed to meet in an
alley near the school where Victim would fight with Defendant’s cousin. The fight
took place as planned and ended when Victim released Defendant’s cousin from a
head lock. 	At that point, words were exchanged and Defendant went to his car,
opened the trunk, removed a sawed-off shotgun and loaded it. After comments were
made that Defendant would not use the gun, Defendant fired the gun at Victim. At the
time he was shot, Victim was facing Defendant with his hands in the air, as indicated
by gunshot wounds on the palms of Victim’s hands. 	Victim died of the gunshot
wounds the next day.
{17} 	The district court considered each of the factors in Section 32A-2-20(C) by
reviewing the facts and circumstances of the offense to which Defendant pleaded
guilty. In so doing, the court discussed the facts relevant to each factor and concluded
that each factor weighed against a finding of amenability to treatment as a juvenile.
The court found that (1) the offense of second degree murder was a serious offense;

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(2) Defendant’s actions in opening the trunk of his car, retrieving an unloaded
shotgun, and then loading the gun indicated a degree of premeditation in the
commission of the second degree murder; (3) Defendant used a firearm in the
commission of the second degree murder; (4) the offense was committed against a
person and resulted in personal injury; (5) Defendant exhibited an adult level of
sophistication and maturity by getting married; (6) Defendant’s prior criminal history,
although minimal, involved a firearm; and (7) with regard to the prospects for
adequate protection of the public and the likely prospects of rehabilitation, the court
noted that Defendant suffers from post-traumatic stress disorder because of this
incident and that he did not suffer from the disorder prior to this incident. As a result
of weighing each factor in Section 32A-2-20(C) against a finding of amenability, the
court found Defendant non-amenable to treatment and ineligible for commitment for
a developmental disability or mental disorder and imposed the maximum adult
sentence under the plea agreement—seven and one-half years incarceration. Each of
the district court’s determinations under the statutory factors is supported by the
record. Moreover, most of these determinations were based on the undisputed facts
presented by the prosecutor as the factual basis for Defendant’s plea.
{18} 	We are aware that the court cannot focus entirely on criminal culpability, but

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must consider the prospects of amenability to treatment within the juvenile system.
Gonzales, 2001-NMCA-025, ¶ 25. This case essentially sets expert opinion against
facts and inference drawn by the court from facts surrounding the crime and
Defendant’s prior criminal history. 	“It is the factfinder’s prerogative to weigh the
evidence and to judge the credibility of the witnesses.” State v. Ryan, 2006-NMCA-
044, ¶ 20, 139 N.M. 354, 132 P.3d 1040. 	The court was free to disregard expert
opinion. State v. Alberico, 116 N.M. 156, 164, 861 P.2d 192, 200 (1993); Gonzales,
2001-NMCA-025, ¶ 40; In re Ernesto M., 1996-NMCA-039, ¶ 14, 121 N.M. 562, 915
P.2d 318. It appears to us that the court adequately and appropriately addressed all
concerns.
{19} 	The question for this Court is not what it would have decided based on the
testimony presented below, but whether “any rational fact-finder” could have
determined Defendant was not amenable to treatment as a juvenile. Gonzales, 2001-
NMCA-025, ¶ 40. Based on the evidence, viewed in the light most favorable to the
district court’s decision and disregarding evidence and inference contrary to that
decision, we conclude that any rational factfinder could have determined that
Defendant was not amenable to treatment as a juvenile. We hold that the evidence
was sufficient to support the court’s findings and ultimate determination of non-

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amenability. 	Furthermore, there is no basis on which to conclude that the court
abused its discretion. We also hold that the court did not err in denying Defendant’s
motion to recuse.
CONCLUSION
{20} 	We affirm the district court.
{21} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
_________________________________
MICHAEL D. BUSTAMANTE, Judge
_________________________________
ROBERT E. ROBLES, Judge