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FROM THE DISTRICT COURT OF SAN JUAN COUNTY Daylene A. Marsh,
H. Balderas, Attorney General Santa Fe, NM for Appellee.
Bennett J. Baur, Chief Public Defender Will O'Connell,
Assistant Appellate Defender Santa Fe, NM for Appellant.
MICHAEL E. VIGIL, JUDGE
Defendant has appealed from a conviction for disorderly
conduct, challenging her sentence. We previously issued a
second notice of proposed summary disposition in which we
proposed to affirm. Defendant has filed a memorandum in
opposition. After due consideration, we affirm.
Defendant has argued that the portion of her sentence which
requires her to participate in a misdemeanor compliance
program is invalid. [DS 3; MIO 1-5] She continues to assert
that the statute authorizing counties to create misdemeanor
compliance programs, NMSA 1978, Section 31-20-5.1(A) (2013),
limits participation to "persons who have been convicted
of a misdemeanor criminal offense specified in the Criminal
Code, " and insofar as she was convicted of a petty
misdemeanor, her situation does not fall within the ambit of
that provision. [MIO 1-5] We remain unpersuaded.
As we observed in the notice of proposed summary disposition,
the term "misdemeanor" has long been recognized as
a general classification, which includes petty misdemeanors
as a sub-class. See Cty of Los Alamos v. Tapia,
1990-NMSC-038, ¶ 29, 109 N.M. 736, 790 P.2d 1017
(construing the term "misdemeanor" as including
"petty misdemeanors"), overruled on other
grounds by City of Santa Fe v. Marquez, 2012-NMSC 031,
285 P.3d 637; Inc. Cty. of Los Alamos v. Johnson,
1989-NMSC-045, ¶ 13, 108 N.M. 633, 776 P.2d 1252 (Baca,
J., specially concurring) (tracing the common-law history of
criminal offense designations, and ultimately observing that
the "generic term 'misdemeanor'" includes
petty misdemeanors as a sub-group); State v.
Trevizo, 2011-NMCA-069, ¶ 14, 150 N.M. 158, 257
P.3d 978 (observing that a "misdemeanor" as
commonly defined "would encompass any crime that was not
a felony, including petty misdemeanors"). As such, the
reference to "misdemeanor" offenses in Section
31-20-5.1(A) includes petty misdemeanors.
In her memorandum in opposition Defendant contends that
Tapia, Johnson, and Trevizo "do not
stand for the general proposition that the Court cites them
for." [MIO 2] We disagree.
In Trevizo this Court recognized that offenses
denominated "misdemeanors" under the Motor Vehicle
Code actually be petty misdemeanors, in light of the
authorized punishment. 2011-NMCA-069, ¶¶ 14-16. In
so holding, the Court did not depart from the general rule by
which petty misdemeanors are included as a sub-class of
misdemeanors. Id. ¶ 14. To the contrary, the
Court read the Legislature's use of the term
"misdemeanor" as merely making the
historically-recognized distinction between felonies and
misdemeanors, "and not as precluding treatment of
violations of the Motor Vehicle Code as petty misdemeanors,
" notwithstanding the Legislature's failure to
mention petty misdemeanors with specificity. Id.
Accordingly, the Court concluded that the statutory reference
to misdemeanors accommodated petty misdemeanors as well.
Id. This is in keeping with the
previously-articulated general principle.
We acknowledge that in Tapia and Johnson
the Fresh Pursuit Act was specifically at issue, and the
Court engaged in policy analysis. [MIO 3-4] However, these
circumstances do not diminish the Court's recognition
that petty misdemeanors are generally included as a subclass
of the term "misdemeanor." Tapia,
1990-NMSC-038, ¶ 29; Johnson, 1989-NMSC-045,
¶ 13. To the extent that Defendant invites the Court to
limit this general principle to the Fresh Pursuit Act, no
policy or theory has been advanced in support of the
suggested limitation. We therefore decline the invitation.
Finally, we understand Defendant to contend that the
Legislature's failure to expressly state that individuals
convicted of petty misdemeanors may be required to
participate in probation compliance programs should be
regarded as a deliberate omission, particularly insofar as
the Legislature has demonstrated in other contexts that it is
aware of the distinction. [MIO 2, 4-5] Once again, we
disagree. "This Court presumes that the Legislature is
aware of existing case law and acts with knowledge of
it." State v. Chavez, 2008-NMSC-001, ¶ 21,
143 N.M. 205, 174 P.3d 988. We therefore presume that the
Legislature was aware of the general principle recognized in
the foregoing authorities when Section 31-20-5.1 was enacted.
See Johnson, 1989-NMSC-045, ¶ 4, (presuming
that the legislature is well informed as to existing law). As
such, specific reference to petty misdemeanors would only
have been necessary if the Legislature had intended to
exclude individuals convicted of petty misdemeanors
from participation in compliance programs. The absence of
such language reflects the opposite intent.
In summary, we conclude that participation in misdemeanor
compliance programs authorized by Section 31-20-5.1(A)
extends to persons who have been convicted of misdemeanors
and, as a sub-class, petty misdemeanors as well. Accordingly,
the portion of Defendant's sentence which requires her to
participate in the county's misdemeanor compliance
programs is permissible.
For the reasons stated above and in the notice of proposed