March 18, 2011 – State of New Mexico v. Alfred Lovato, No. 30,399

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: March 18, 2011

NO. 30,399

STATE OF NEW MEXICO,
Plaintiff-A ppellant,

V.

ALFRED LOVATO,
Defendant-A ppellee.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Michael E. Vigil, District Judge

Gary K. King, Attomey General

Santa Fe, NM

Ralph E. Trujillo, Assistant Attomey General
Albuquerque, NM

for Appellant

Bregman & Loman, P.C.

Sam Bregman
Enc Loman

Albuquerque, NM

for Appellant

OPINION
VANZI, Judge.
{1} 	The State appeals from the district court order dismissing with prejudice one
count of homicide by vehicle, NMSA 1978, Section 66-8-101(C) (2004), and one
count of accident involving death or personal injuries, NMSA 1978, Section 66-7-
201(C) (1989). Although Defendant was not the driver of the vehicle, Defendant was
charged pursuant to the parties to a crime provision of the Motor Vehicle Code. See
NMSA 1978, § 66-8-120 (1978). In dismissing the charges against Defendant, the
district court concluded that this Court’s decision in State v. Marquez, 2010-NMCA-
064, 148 N.M. 511, 238 P.3d 880, cert. quashed, 2010-NMCERT-006, 148 N.M. 584,
241 P.3d 182, was an unforseeable interpretation of Section 66-8-120, could not be
retroactively applied to Defendant, and passengers would not have had fair notice,
prior to Marquez, that the conduct Defendant engaged in exposed him to criminal
prosecution. On appeal, the State contends that Section 66-8-120 “provided a person
of ordinary intelligence fair notice that it was a crime to aid and abet vehicular
homicide[,]” and application of Section 66-8-120 to the facts of Defendant’s case
would not violate due process. Having considered the arguments raised by the State
on appeal, we reverse the district court and remand for the charges against Defendant
to be reinstated.

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BACKGROUND
{2} 	The State alleges that on the evening of November 25, 2008, and in the early
morning hours of November 26, 2008, Carlos Fierro and Defendant went out drinking.
According to the State, it was Defendant’s idea to go out and get a few drinks and
smoke a cigar. The two men first consumed alcohol at the Rio Chama Steakhouse,
and then Fierro drove the two of them to Willie’s Blues Bar at Defendant’s
encouragement. The two men consumed more alcohol at Willie’s Blues Bar—alcohol
purchased by Defendant. After leaving the bar, Fierro struck William Tenorio with
his vehicle as Tenorio was crossing the street outside of the bar. Witnesses testified
that Fierro and Defendant drove away from the scene of the accident. Fierro was later
identified as the driver, and Defendant was identified as the passenger of the vehicle
that struck Tenorio. After Fierro’s car was stopped by police, the police concluded
that Fierro was intoxicated. Tenorio later died from the injuries he sustained from
being hit by Fierro’s vehicle.
{3} 	On June 3, 2009, subsequent to this Court issuing its opinion in Marquez, the
State filed charges against Defendant on a theory of accomplice liability under Section
66-8-120. The district court dismissed the charges on the basis that Marquez could
not be retroactively applied to Defendant. The district court found that Defendant did
not have fair notice that his conduct, which occurred prior to Marquez being decided,
exposed him to the possibility of criminal prosecution.

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DISCUSSION
This Court’s Decision in Marquez
{4} 	We begin our analysis by first examining this Court’s decision in Marquez. In
Marquez, we were presented with the issue of whether there was “such a charge as
party to the crime of homicide by a vehicle and great bodily injury by a vehicle.”
Marquez, 2010-NMCA-064, ¶ 1. We looked to the statutory language of Section 66-
8-101(C) and Section 66-8-120, established case law regarding accessory liability
under the criminal code, and case law and commentary defining the requisite mens rea
for homicide by vehicle, and concluded that a defendant could aid and abet in the
crime of homicide by vehicle or great bodily injury by vehicle. 	Marquez, 2010-
NMCA-064, ¶¶ 8-15.
{5} 	Section 66-8-101(C) provides:
A person who commits homicide by vehicle or great bodily harm by
vehicle while under the influence of intoxicating liquor or while under
the influence of any drug or while violating [NMSA 1978, Section 66-8-
113 (1987)] is guilty of a third degree felony.
{6} 	Section 66-8-120 provides:
Every person who commits, attempts to commit, conspires to
commit or aids or abets in the commission of any act declared herein to
be a crime, whether individually or in connection with one or more other
persons or as a principal, agent or accessory, shall be guilty of such
offense, and every person who falsely, fraudulently, forcibly or willfully
induces, causes, coerces, requires, permits or directs another to violate
any provision of the Motor Vehicle Code [Section 66-1-1] or any other
law of this state pertaining to motor vehicles is likewise guilty of such

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offense.
{7} 	We pointed out in Marquez that Section 66-8-120 makes it a crime to aid or
abet in violation of any provision of the Motor Vehicle Code. 	Marquez, 2010-
NMCA-064, ¶ 8. Further, in defining how a person goes about aiding or abetting in
homicide by vehicle or great bodily injury by vehicle, our analysis relied on pre-
existing case law discussing accessory liability. We stated that we had previously
“interpreted the accessory provisions of the Criminal Code as requiring that the
accessory share the criminal intent of the principal and that there be a community of
purpose and partnership in the unlawful undertaking.” 	Id. ¶ 9 (internal quotation
marks and citation omitted). 	We further noted that in order to constitute a
“community of purpose and partnership” someone who aids and abets must do more
than merely be present; instead, that person’s “[p]resence must be accompanied by
some outward manifestation or expression of approval, or shared purpose.” Id. ¶¶ 11,
13. Finally, we acknowledged that prior case law identified the requisite criminal
intent for homicide by vehicle as conscious wrongdoing or the “purposeful doing of
an act that the law declares to be a crime.” 	Id. ¶ 12 (internal quotation marks and
citation omitted). Consequently, in Marquez, this Court concluded that based on the
defendant’s knowledge that the driver was intoxicated, evidenced by the fact that they
were refused service at two bars and by the defendant’s admissions after the accident
that he knew the driver was drunk, the defendant’s encouragement of the driver to

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drive his vehicle although intoxicated, and the defendant’s purchase of alcohol
consumed in the vehicle just prior to the accident, the defendant had aided and abetted
in the crime of homicide by vehicle or great bodily injury by vehicle. Id. ¶ 17.
The District Court Erred in Dismissing the Charges Against Defendant
{8} 	In the district court order granting Defendant’s motion to dismiss the charges
against him, the district court concluded:
[P]assengers simply could not have been on notice or had fair warning
of the standards set forth in Marquez. 	Assuming for purposes of this
[o]rder that Defendant’s actions were the same as those of the defendant
in Marquez, that he shared the driver’s criminal intent, and that all
factual issues were resolved in favor of the State, he could not have had
fair notice prior to Marquez of the criminal liability defined by the
standards set forth in that case.
In support of its ruling, the district court stated that, prior to Marquez, there were no
established standards as to the requisite mens rea for homicide by vehicle or as to
what level of participation would subject a passenger to criminal prosecution, and it
was only by means of this Court’s decision in Marquez that these standards were
established.
{9} 	“We have previously considered the due process implications of retroactively
applying the interpretation of a criminal statute to a defendant whose conduct, at the
time of the alleged offense, did not fall under the statute.” 	State v. Myers, 2010-
NMCA-007, ¶ 16, 147 N.M. 574, 226 P.3d 673, cert. granted, 2010-NMCERT-001,
147 N.M. 674, 227 P.3d 1056; see also State v. Alderette, 111 N.M. 297, 298, 804

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P.2d 1116, 1117 (Ct. App. 1990). In doing so, we have adhered to the basic principle
that “a criminal statute must give a person of ordinary intelligence fair notice of the
conduct that the statute criminalizes or it will violate the Due Process Clause of the
Fourteenth Amendment.” 	Myers, 2010-NMCA-007, ¶ 15. In Myers, we looked to
Bouie v. City of Columbia, 378 U.S. 347 (1964), for guidance in determining whether
a subsequent judicial interpretation applied retroactively can offend due process.
Myers, 2010-NMCA-007, ¶ 15. 	There, we stated, “an unforeseeable judicial
enlargement of a criminal statute, applied retroactively, operates precisely like an ex
post facto law, such as Art. I, § 10, of the Constitution forbids.” Myers, 2010-NMCA-
007, ¶ 15 (internal quotation marks and citation omitted). “An ex post facto law has
been defined . . . as one that makes an action done before the passing of the law, and
which was innocent when done, criminal; and punishes such action, or that aggravates
a crime, or makes it greater than it was, when committed.” 	Alderette, 111 N.M. at
300, 804 P.2d at 1119 (alteration in original) (internal quotation marks and citation
omitted). 	Thus, we stated in Myers that “[i]f a state legislature is forbidden from
passing such a law, it must follow that a [court] is barred by the Due Process Clause
from achieving precisely the same result by judicial construction.” 2010-NMCA-007,
¶ 15 (internal quotation marks and citation omitted). We further stated,
If a judicial construction of a criminal statute is unexpected and
indefensible by reference to the law which had been expressed prior to
the conduct in issue, it must not be given retroactive effect. Otherwise,

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a criminal defendant is deprived of due process of law in the sense of fair
warning that his contemplated conduct constitutes a crime.
Id. (internal quotation marks and citations omitted).
{10} 	In determining whether application of a new construction of a criminal statute
would violate due process, our task is to determine whether the new interpretation was
foreseeable. Id. ¶ 18; see State v. Johnson, 2001-NMSC-001, ¶ 14, n. 4, 130 N.M. 6,
15 P.3d 1233 (“The test in determining whether such an interpretation and retroactive
application of a statute offends due process is whether the construction actually given
the statute was foreseeable.”). If this Court’s interpretation of Section 66-8-120 in
Marquez was foreseeable, then Defendant was on notice that his conduct was arguably
in violation of the law and there is no due process violation. On the other hand, if our
interpretation was unforeseeable, the retroactive application of that interpretation to
Defendant’s conduct would violate his right to due process.
{11} 	The State argues that, unlike other cases in which a judicial interpretation has
been held to violate due process if retroactively applied, this Court’s decision in
Marquez 	neither 	overturned 	preexisting 	case 	law 	nor 	constituted 	a 	judicial
enlargement of a criminal statute. 	We find the State’s argument persuasive. 	In
Alderette, this Court overruled a previous judicial interpretation of the escape from jail
statute. 111 N.M. at 298, 804 P.2d at 1117. The earlier decision of this Court had
held that the escape from jail statute only applied to those persons committed on a

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criminal charge. 	Id. 	We subsequently overruled that decision and held that “[i]f a
person is committed to a jail by lawful authority and thereafter escapes from that jail,
he can be charged with escape from jail.” Id. at 299, 804 P.2d at 1118. Because this
Court’s interpretation of the escape from jail statute in Alderette created a new base
of conduct that fell within the statute, we held that its interpretation of the statute
could not be retroactively applied to the defendant. Id. at 300, 804 P.2d at 1119.
{12} 	Similarly, in Bouie, the United States Supreme Court held that the South
Carolina Supreme Court’s interpretation of a statute regarding criminal trespass could
not be retroactively applied to the defendants where the language of the statute did not
proscribe the petitioner’s conduct. 	378 U.S. at 362-63. 	The language prohibited
persons from entering the property of another after notice not to enter, but the South
Carolina court interpreted the statute as also criminalizing the act of remaining on the
premises after being asked to leave. 	Id. at 355, 360. 	There, the United States
Supreme Court held that “[t]he crime for which the[] petitioners stand convicted was
not enumerated in the statute at the time of their conduct.” 	Id. at 363 (internal
quotation marks omitted). 	Accordingly, the South Carolina Supreme Court’s
interpretation of its criminal trespass statute acted as a judicial enlargement of the
statute, criminalizing a new base of conduct, thus violating due process. Id. at 362-63.
{13} 	Such a judicial enlargement did not occur in the present case. Here, the plain
language of the statute indicates that it is a crime to aid and abet in a violation of the

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Motor Vehicle Code. This Court in Marquez neither changed a previous interpretation
of Section 66-8-120 nor enlarged the scope of the conduct criminalized by our
Legislature’s enactment of Section 66-8-120. 	Instead, this Court relied on pre-
existing case law to define common terminology contained in the statute. 	Our
interpretation of Section 66-8-120 was neither “unexpected” nor “indefensible by
reference to the law which had been expressed prior to the conduct in issue[.]” Myers,
2010-NMCA-007, ¶ 15 (internal quotation marks and citation omitted). 	Thus, we
conclude that this Court’s interpretation of Section 66-8-120 as set forth in Marquez
was foreseeable. See Johnson, 2001-NMSC-001, ¶ 14, n.4 (“The Court engages in an
impermissible interpretation of a statute when the interpretation is so unexpected, and
so outlandish, that no reasonable person could have expected it.” (alteration, internal
quotation marks, and citation omitted)).
{14} 	To the extent the district court concluded that, prior to Marquez, passengers
were not on “notice that they would be subject to criminal liability as a party to the
crime of homicide by vehicle while under the influence of intoxicating liquor,” we
construe 	the 	district 	court’s 	order 	as 	concluding 	that 	Section 	66-8-120 	was
unconstitutionally vague. Similar to our analysis above of whether Marquez was a
foreseeable interpretation of Section 66-8-120, “[t]he vagueness doctrine is based on
the principle of fair notice in that no one may be held criminally responsible and
subject to criminal sanctions for conduct without fair warning as to the nature of the

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proscribed activity.” Santillanes v. State, 115 N.M. 215, 221 n.5, 849 P.2d 358, 364
n.5 (1993). “[A] statute denies constitutional due process if it is so vague that persons
of common intelligence must necessarily guess at its meaning.” State v. Rogers, 94
N.M. 527, 529, 612 P.2d 1338, 1340 (Ct. App. 1980) (internal quotation marks and
citation omitted).
{15} 	Section 66-8-120 clearly sets out that it is a crime for a person to aid and abet
in a violation of the Motor Vehicle Code. Section 66-8-101(C), which provides that
it is a third degree felony to commit homicide by vehicle or great bodily injury by
vehicle while under the influence of intoxicating liquor or drug, is contained in the
Motor Vehicle Code. To the extent Marquez set forth standards for applying Section
66-8-120 by examining how we have interpreted accessory provisions under the
Criminal Code, the Legislature’s failure to define these standards within Section 66-8-
120 does not render the statute unconstitutionally vague. 	To the contrary, “[t]he
[L]egislature is not required to write statutes for the understanding of persons who
cannot or will not apply ordinary meanings to plain words[.]” 	Rogers, 94 N.M. at
529, 612 P.2d at 1340. “If the language used makes the statute understandable and
sensible, that is all that is necessary to uphold it as valid.” Id. We therefore conclude
that Section 66-8-120 provided fair notice that the conduct Defendant engaged in
could expose him to criminal prosecution.
{16} 	Finally, the fact that Marquez was the first time Section 66-8-120 had been

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interpreted by an appellate court in this state is of little consequence to our decision.
“A judicial construction of a statute is an authoritative statement of what the statute
meant before as well as after the decision of the case giving rise to that construction.”
Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-13 (1994). 	When this Court
engages in the judicial construction of a statute “it is explaining its understanding of
what the statute has meant continuously since the date when it became law.” 	Id. at
313, n.12. Because we conclude that this Court’s interpretation of Section 66-8-120
in Marquez was foreseeable, we reverse the district court order dismissing the charges
against Defendant with prejudice.
CONCLUSION
{17} 	For the foregoing reasons, we reverse and remand to the district court for the
charges against Defendant to be reinstated.
{18} 	IT IS SO ORDERED.
_______________________________
LINDA M. VANZI, Judge
WE CONCUR:
_________________________________
CELIA FOY CASTILLO, Chief Judge

JAMES J. WECHSLER, Judge
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