{ "id": 4243212, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Timothy SOLANO, Defendant-Appellant", "name_abbreviation": "State v. Solano", "decision_date": "2009-06-25", "docket_number": "No. 28,166", "first_page": "831", "last_page": "840", "citations": [ { "type": "official", "cite": "146 N.M. 831" }, { "type": "parallel", "cite": "215 P.3d 769" }, { "type": "parallel", "cite": "2009-NMCA-098" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "1996-NMSC-068", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 322338 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/122/0596-01" ] }, { "cite": "120 N.M. 669", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558862 ], "weight": 2, "pin_cites": [ { "page": "674" }, { "page": "214" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0669-01" ] }, { "cite": "18 U.S.C. \u00a7 924", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 4, "year": 2000, "pin_cites": [ { "page": "(e)(1)", "parenthetical": "amended 2005 and 2006" }, { "page": "(e)(1)" }, { "page": "(e)(2)(B)" }, { "page": "(e)(2)(B)" } ], "opinion_index": 0 }, { "cite": "553 U.S. 137", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3674072 ], "weight": 13, "year": 2008, "pin_cites": [ { "page": "1583" }, { "page": "1584" }, { "page": "1584-85" }, { "page": "1586-87" }, { "page": "1586", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "1587" }, { "page": "1587" } ], "opinion_index": 0, "case_paths": [ "/us/553/0137-01" ] }, { "cite": "2006-NMCA-142", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3671224 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/140/0705-01" ] }, { "cite": "2003-NMCA-108", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 77183 ], "weight": 9, "pin_cites": [ { "page": "\u00b6 37" }, { "page": "\u00b6 38" }, { "page": "\u00b6 38" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0262-01" ] }, { "cite": "2006-NMCA-035", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2543877 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0247-01" ] }, { "cite": "2008-NMSC-010", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3784610 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 53" } ], "opinion_index": 0, "case_paths": [ "/nm/143/0373-01" ] }, { "cite": "2003-NMCA-146", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 77155 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 21" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0710-01" ] }, { "cite": "2005-NMCA-076", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 929186 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 42" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0674-01" ] }, { "cite": "2005-NMSC-025", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2551187 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm/138/0271-01" ] }, { "cite": "2005-NMCA-078", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 929165 ], "weight": 12, "pin_cites": [ { "page": "\u00b6 8" }, { "page": "\u00b6 8" }, { "page": "\u00b6\u00b6 9-10" }, { "page": "\u00b6\u00b6 8-9" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0713-01" ] }, { "cite": "2007-NMCA-064", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3669781 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 4" }, { "page": "\u00b6 4" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0591-01" ] }, { "cite": "2008-NMSC-036", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4002169 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 37" }, { "page": "\u00b6 35" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0305-01" ] }, { "cite": "2002-NMCA-016", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 183129 ], "weight": 28, "year": 2001, "pin_cites": [ { "page": "\u00b6 16" }, { "page": "\u00b6 16" }, { "page": "\u00b6 15" }, { "page": "\u00b6 18" }, { "page": "\u00b614" }, { "page": "\u00b6 16" }, { "page": "\u00b6\u00b6 15, 16" }, { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0530-01" ] } ], "analysis": { "cardinality": 1063, "char_count": 31528, "ocr_confidence": 0.667, "pagerank": { "raw": 5.934816165272429e-08, "percentile": 0.37040827476814286 }, "sha256": "b87b06f63258812247e5effc1dc246825970d0fa2947c56ff05976eaaa8be3a9", "simhash": "1:9345e202639b274b", "word_count": 5056 }, "last_updated": "2023-07-14T18:28:31.770781+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: JONATHAN B. SUTIN and LINDA M. VANZI, Judges." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Timothy SOLANO, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nCASTILLO, Judge.\n{1} Defendant challenges the district court\u2019s designation of his conviction for third degree vehicular homicide as a serious violent offense for the purposes of the Earned Meritorious Deductions Act (the EMDA), NMSA 1978, \u00a7 33-2-34 (2004) (amended 2006). We conclude that the district court\u2019s designation was not an abuse of discretion because (1) the factual findings were legally sufficient to satisfy this Court\u2019s requirements in State v. Morales, 2002-NMCA-016, 131 N.M. 530, 39 P.3d 747 (filed 2001) and (2) substantial evidence supported those findings. Accordingly, we affirm the district court.\nI. BACKGROUND\n{2} On July 27, 2005, Defendant struck and killed the victim with his vehicle. Defendant\u2019s blood alcohol level tested at .23 and .24. On August 12, 2005, Defendant was charged in district court with one count of homicide by vehicle, contrary to NMSA 1978, Section 66-8-101 (2004). Defendant waived indictment, pled guilty, and judgment was entered on August 15, 2005. The district court committed Defendant to the corrections department for sixty days for the purposes of diagnosis and evaluation.\n{3} The sentencing hearing was held on November 23, 2005, during which the district court heard from the victim\u2019s family. The State recommended the maximum sentence. The district court imposed the maximum sentence and designated the conviction to be a serious violent offense, thus limiting the amount of good time credit that Defendant could earn. The district court commended Defendant for taking responsibility for his actions and suspended two years of the sentence based on this and Defendant\u2019s remorse.\n{4} Defendant appealed the serious violent offender designation to this Court. By memorandum opinion, this Court remanded the matter back to the district court because the findings supporting the serious violent offense designation were insufficient to satisfy the established legal standard. State v. Solano, No. 26,403, slip op. at 3-4 (N.M.Ct.App. July 24, 2007). On remand, the district court held a second sentencing hearing. The court made additional findings and imposed the same sentence, including the serious violent offense designation. Defendant again appeals his sentence.\nII. DISCUSSION\n{5} Defendant makes two arguments in the current appeal. First, Defendant contends that the district court\u2019s findings on remand were again insufficient to support a serious violent offense designation. Second, Defendant argues that the district court\u2019s serious violent offense designation was not supported by substantial evidence. In addition, Defendant and the State dispute the standard for our review. We begin with the standard of review and a brief overview of the EMDA, and then we turn to Defendant\u2019s arguments.\nA. Standard of Review\n{6} Defendant argues that we apply both a de novo and a substantial evidence standard. He states that we consider de novo whether the district court\u2019s findings are in compliance with the EMDA and then consider whether the designation was supported by substantial evidence. The State contends that we conduct our review for abuse of discretion. Although we agree with the State that the proper standard is abuse of discretion, we observe that Defendant\u2019s approach effects the same result.\n{7} Our Supreme Court has explained that the judiciary has no role in the administration of the EMDA apart from exercising \u201cdiscretion to determine whether the nature of the offense and the resulting harm in a particular factual context justify categorizing the offense as a serious violent offense.\u201d State v. Rudolfo, 2008-NMSC-036, \u00b6 37, 144 N.M. 305, 187 P.3d 170. Nevertheless, \u201c[although the determination that a crime that falls within the district court\u2019s discretionary authority under the EMDA as a serious violent offense is a discretionary act, the district court will abuse its discretion if it acts contrary to law.\u201d State v. Scurry, 2007-NMCA-064, \u00b6 4, 141 N.M. 591, 158 P.3d 1034. In addition, a district court abuses \u201cits discretion when its decision is not supported by substantial evidence.\u201d State v. Montoya, 2005-NMCA-078, \u00b6 8, 137 N.M. 713, 114 P.3d 393. Thus, we review the district court\u2019s findings and subsequent serious violent offender designation \u201cfor sufficient evidence, for legal error, as well as for an untenable choice between or among alternatives.\u201d State v. Gonzales, 2005-NMSC-025, \u00b6 25, 138 N.M. 271, 119 P.3d 151 (describing the scope of appellate review under the abuse of discretion standard).\n{8} We now turn to the relevant language of the EMDA and its accompanying case law.\nB. The EMDA\n{9} Under Section 33-2-34, a prisoner may earn meritorious deductions under certain circumstances. If the offense is a nonviolent offense, the defendant may earn up to thirty days per month of time served. Section 33-2-34(A)(2). If the offense of conviction is designated as a serious violent offense, however, the sentence reduction is limited to no more than four days per month of time served. Section 33-2-34(A)(l). A \u201cnonviolent offense\u201d is defined as \u201cany offense other than a serious violent offense.\u201d Section 33-2-34(L)(3). A \u201cserious violent offense\u201d is defined in two ways. Section 33-2-34(L)(4)(a) through (n) enumerates specific crimes that are per se serious violent offenses \u2014 crimes that are designated serious violent offenses regardless of the circumstances. Section 33-2-34(L)(4)(o) lists several other specific crimes that may be considered serious violent offenses \u201cwhen the nature of the offense and the resulting harm are such that the court judges the crime to be a serious violent offense for the purpose of this section.\u201d Included among these discretionary serious violent offenses is Defendant\u2019s crime \u2014 third degree homicide by vehicle, as prohibited by Section 66-8-101. See \u00a7 33-2-34(L)(4)(o)(14).\n{10} This Court has previously addressed the differences between the per se serious violent offenses under Section 33-2-34(L)(4)(a) through (n) and the discretionary designations under Section 33-2-34(L)(4)(o). In order to designate the conduct of a particular defendant as a serious violent offense under the discretionary category, the district court must determine that the crime was \u201ccommitted in a physically violent manner either with an intent to do serious harm or with recklessness in the face of knowledge that one\u2019s acts are reasonably likely to result in serious harm.\u201d Morales, 2002-NMCA-016, \u00b6 16, 131 N.M. 530, 39 P.3d 747. This factual basis for designation of a serious violent offense must be reflected in findings made by the district court. Id. \u00b6\u00b6 17-18. This Court has since clarified the requirement for such findings and has explained that a district court \u201cneed not express its findings in the Morales language as long as the findings are consistent with the Morales standard.\u201d Montoya, 2005-NMCA-078, \u00b6 8, 137 N.M. 713, 114 P.3d 393. Turning to the facts of the present case, we consider the sufficiency of the district court\u2019s findings.\nC. The District Court\u2019s Findings\n{11} The district court made two findings relevant to the Morales criteria:\nThis sentence finds that the offense was committed in a physically violent manner with recklessness in the face of knowledge that his acts were reasonably likely to result in serious harm.\nTh[is ejourt [has] considered] [Defendant\u2019s] prior history of alcohol abuse along with prior criminal history involving alcohol related offenses not used to enhance his sentence. The [e]ourt makes the specific finding [that Defendant\u2019s] actions amount to an offense committed in a physical violent manner in that he crossed the center and struck the victim, who was on a bicycle and propelled her through the air and into the bed of his truck.\nDefendant first argues that the district court\u2019s factual findings in the post-remand order do not indicate \u201cwhy this particular instance of vehicular homicide was, based on the uncontested facts, more egregious than any other vehicular homicide case.\u201d As we have stated, the serious violent offense inquiry rests on two factors: (1) the physically violent manner in which the crime was committed and (2) the level of intent demonstrated by the defendant\u2019s actions. See Morales, 2002-NMCA-016, \u00b6 16, 131 N.M. 530, 39 P.3d 747. Defendant cites no authority to suggest that the district court is further required to find that the particular offense was \u201cmore egregious\u201d than other similarly categorized offenses, and we therefore assume that no such authority exists. See State v. Vaughn, 2005-NMCA-076, \u00b6 42, 137 N.M. 674, 114 P.3d 354.\n{12} Defendant next argues that the facts recited by the district court do not establish the Morales criteria. Specifically, Defendant contends that the district court\u2019s reliance on his history of alcoholism and previous alcohol-related convictions do not support an inference of the requisite intent and that the district court\u2019s recitation of the facts surrounding the manner of the victim\u2019s death do not establish that this vehicular homicide was committed in a physically violent manner. We disagree.\n1. History of Alcohol Abuse\n{13} Defendant provides several bases for the argument that his history does not demonstrate the requisite intent. He first argues that to rely on past convictions to support a serious violent offense designation is inappropriate because he was already punished for those offenses. He then asserts that the Legislature was undoubtedly aware that it is not uncommon for perpetrators of vehicular homicide to have prior convictions and had it intended for the district court to consider past offenses, it would have included vehicular homicide as a per se serious violent offense. Next, Defendant points to Section 66-8-101(D) and argues that because the Legislature does not permit a sentence enhancement to be based on a vehicular homicide conviction that is more than ten years old, the Legislature also did not intend for convictions that are greater than ten years old \u201cto form the basis for the imposition of further punishment.\u201d Finally, Defendant relies on a United States Department of Transportation report \u2014 referred to for the first time on appeal \u2014 to contend that \u201cit is quite unlikely that a given drunk driving episode will result in great bodily harm.\u201d During this appeal, the State filed a motion to strike references to the study from Defendant\u2019s brief in chief because the report was not offered as evidence during the district court proceedings or made a part of the record. Although we denied the State\u2019s motion to strike the references to the report, we did so with the proviso that we would not consider the report on appeal. Because Defendant\u2019s argument is otherwise unsupported, we do not address it.\n{14} We initially observe that Defendant\u2019s first three arguments fail to explain why a defendant\u2019s extensive history of abusing alcohol would not permit an inference of knowledge or recklessness. The first and third arguments relating to past convictions and additional punishment have been addressed by this Court and our Supreme Court in the past. \u201c[T]he EMDA does not change the maximum penalty for a defendant\u2019s crime or impose an additional penalty. Rather, the statute affects the amount of time by which [a] defendant through his own good conduct could decrease his sentence.\u201d State v. Andazola, 2003-NMCA-146, \u00b6 21, 134 N.M. 710, 82 P.3d 77 (internal quotation marks and citation omitted); see also State v. Schoonmaker, 2008-NMSC-010, \u00b6 53, 143 N.M. 373, 176 P.3d 1105 (\u201cLimiting a defendant\u2019s ability to earn meritorious deductions does not result in punishment beyond that which has been statutorily established for the offense.\u201d). Thus, considering a defendant\u2019s history \u2014 criminal or otherwise \u2014 does not lead to impermissible further punishment.\n{15} Defendant\u2019s second argument appears to be that because so many vehicular homicides are caused by repeat offenders and vehicular homicides are not classified as per se offenses, the Legislature intended for the courts to ignore evidence of past transgressions. Defendant maintains that any other interpretation of the Legislature\u2019s intent transforms all vehicular homicides into serious violent offenses. This Court explained in Morales, however, that discretionary serious violent offenses \u201care characterized by multiple ways of committing the offense, some intentional and some not, and some utilizing physical force and some not.\u201d 2002-NMCA-016, \u00b6 15, 131 N.M. 530, 39 P.3d 747. Thus, some incidents of vehicular homicide qualify as serious violent offenses and some do not. It is only the evidence of a particular incident that qualifies a defendant\u2019s crime as a discretionary serious violent offense. We conclude that the particular circumstances of Defendant\u2019s history with alcohol and the law was relevant to the Morales inquiry into intent, and we are satisfied that this conclusion does not generally elevate vehicular homicide to a per se violent offense. See State v. Worrick, 2006-NMCA-035, \u00b6 9, 139 N.M. 247, 131 P.3d 97 (considering the defendant\u2019s extremely high blood alcohol content at the time of the accident as well as that the defendant \u201chabitually drank to the point of intoxication two times a week\u201d); see also Montoya, 2005-NMCA-078, \u00b6\u00b6 9-10, 137 N.M. 713, 114 P.3d 393 (\u201cThe knowledge aspect is shown by the long, prior history of a drinking problem.\u201d); State v. Wildgrube, 2003-NMCA-108, \u00b6 37, 134 N.M. 262, 75 P.3d 862 (evaluating, for the purposes of the EMDA, the defendant\u2019s previous four arrests for alcohol-related offenses and two convictions for driving while intoxicated).\n2. Physically Violent Manner\n{16} Defendant next argues that the \u201cfact that [Defendant] crossed the center and hit a bicyclist, while ostensibly going to the manner in which the crime was committed, does not sufficiently establish that [Defendant\u2019s] act was committed in a particularly violent manner.\u201d Defendant also contends that nearly all vehicular homicides cause a particularly violent death for the victim and that the district court impermissibly relied on an element of vehicular homicide in order to designate the crime a serious violent offense.\n{17} This Court has not previously been required to define \u201cphysically violent manner.\u201d The Morales Court, however, acknowledged that even though the record in that case was sparse, there might have been a factual basis for the findings necessary to establish a serious violent offense. 2002-NMCA-016, \u00b6 18, 131 N.M. 530, 39 P.3d 747. Although Morales ultimately remanded the issue to the district court to make the findings on the record, this Court observed that the defendant \u201cused physical force with his daughter in a manner that indicated an intent to do so\u201d and that the victim suffered some harm. Id. Thus, the term \u201cphysically violent manner\u201d includes the intentional use of force that results in some harm. In the present case, the district court\u2019s findings\u2014 findings that were missing in Morales \u2014 directly address the use of physical force, intent, and harm to the victim. See id. \u00b6 16 (\u201c[T]he [Legislature wanted to reserve the serious violent offenses for those found by the trial judge to be committed in a physically violent manner either with an intent to do serious harm or with recklessness in the face of knowledge that one\u2019s acts are reasonably likely to result in serious harm. Of course, the statutory factor of actual resulting harm may be considered in determining a defendant\u2019s intent.\u201d (internal quotation marks omitted)). Defendant recklessly veered across the center line and struck the victim with sufficient force to propel her into the bed of Defendant\u2019s truck. These facts directly relate to whether force was used in a violent manner. See id. \u00b6 18.\n{18} Defendant additionally insists that the district court is required to consider the physically violent manner in which the offense was committed and not the physically violent death of the victim. In State v. Loretto, 2006-NMCA-142, 140 N.M. 705, 147 P.3d 1138, this Court explained that \u201c[something more than the mere elements in the definition of [the crime] need to be shown to designate the crime as a serious violent offense.\u201d Id. \u00b6 18. One of the elements of vehicular homicide is that the defendant commit homicide by using a motor vehicle. See \u00a7 66-8-101(A). The facts set out in the preceding paragraphs demonstrate that the district court considered more than the mere use of a vehicle to commit the homicide: Defendant recklessly operated the truck at a high rate of speed that caused the victim, once struck, to be \u201cpropelled ... through the air and into the bed of Defendant\u2019s truck.\u201d We are thus satisfied that the findings sufficiently detail the violent manner in which the crime was committed and not merely the elements of the crime or the violent nature of the victim\u2019s death.\n{19} We now turn to consider whether these findings are supported by sufficient evidence.\nD. Sufficiency of the Evidence\n1. Begay v. United States\n{20} The focus of Defendant\u2019s sufficiency argument is that this Court should reconsider the application of a serious violent offense designation to the crime of vehicular homicide in light of the recent holdings and analysis of Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). In Begay, the Supreme Court of the United States was concerned with whether the crime of driving under the influence of alcohol should be considered a violent felony as described by 18 U.S.C. \u00a7 924(e)(1) (2000) (amended 2005 and 2006) of the Armed Career Criminal Act (ACCA). Begay, 553 U.S. at -, 128 S.Ct. at 1583. 18 U.S.C. \u00a7 924(e)(1) provides that\n[i]n the case of a person who violates [18 U.S.C. \u00a7 ] 922(g) [(2002) ] of this title and has three previous convictions by any court referred to in [18 U.S.C. \u00a7 ] 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person[.]\nThe district court in Begay determined that the defendant\u2019s three prior convictions for driving under the influence of alcohol constituted violent felonies and imposed the resulting mandatory fifteen-year prison term. 553 U.S. at -, 128 S.Ct. at 1584. The Supreme Court of the United States disagreed and held that Congress did not intend \u201cto bring within the statute\u2019s scope these kinds of crimes, far removed as they are from the deliberate kind of behavior associated with violent criminal use of firearms.\u201d Id. at 1587. Defendant argues that the Begay construction of the term \u201cviolent felony\u201d leads to a conclusion that the EMDA has been improperly construed by New Mexico courts to include overly general and common occurrences of vehicular homicide. We are unpersuaded that Begay requires us to reconsider our previous constructions of the EMDA.\n{21} We first observe that under the ACCA, driving under the influence is not an offense specifically listed as a violent felony. The ACCA, 18 U.S.C. \u00a7 924(e)(2)(B)\u00ae, provides a list of examples of crimes that are violent felonies such as burglary, arson, extortion, or crimes involving explosives. This list is clearly not exhaustive, see 18 U.S.C. \u00a7 924(e)(2)(B) and, therefore, the Begay Court was required to analogize the crime of driving under the influence to the other exemplar crimes that are listed in the ACCA. 553 U.S. at-, 128 S.Ct. at 1584-85 (\u201cIn our view, the provision\u2019s listed examples-burglary, arson, extortion, or crimes involving the use of explosives \u2014 illustrate the kinds of crimes that fall within the statute\u2019s scope. Their presence indicates that the statute covers only similar crimes, rather than every crime that presents a serious potential risk of physical injury to another.\u201d (internal quotation marks and citation omitted)). Such analogy is not required in the present case because third degree vehicular homicide is an offense listed in the EMDA as a discretionary serious violent offense. See \u00a7 33-2-34(L)(4)(o)(14). There is thus no need to compare Defendant\u2019s crime with the other listed crimes because the Legislature clearly intended to include vehicular homicide within the scope of the EMDA when the district court \u201cjudges the crime to be a serious violent offense.\u201d Id.\n{22} The Begay Court was also concerned that statutes prohibiting driving under the influence \u201ctypically do not insist on purposeful, violent, and aggressive conduct; rather, they are, or are most nearly comparable to, crimes that impose strict liability, criminalizing conduct in respect to which the offender need not have had any criminal intent at all.\u201d 553 U.S. at-, 128 S.Ct. at 1586-87. The examples of violent felonies in the ACCA, however, \u201call typically involve purposeful, violent, and aggressive conduct.\u201d Id. at-, 128 S.Ct. at 1586 (internal quotation marks and citation omitted). Defendant makes a similar point that \u201c[b]y including third[ ]degree homicide in a statute where the intent requirement is otherwise specific, the [Legislature evidently intended for there to be a somewhat heightened intent requirement for a particular vehicular homicide case to constitute a serious violent offense.\u201d The concerns of the Begay Court and Defendant were addressed by this Court\u2019s holding in Morales.\n{23} In Morales, this Court compared the list of per se offenses from Section 33-2-34(L)(4)(a) through (n) with the discretionary offenses described in Section 33-2-34(L)(4)(o). We observed that the per se offenses \u201call involve an intent to do the harm prohibited by the statute, or a specific intent to kill or injure, or knowledge that one\u2019s acts are reasonably likely to cause serious harm.\u201d Morales, 2002-NMCA-016, \u00b614, 131 N.M. 530, 39 P.3d 747. The discretionary offenses, however, \u201care characterized by multiple ways of committing the offense, some intentional and some not, and some utilizing physical force and some not.\u201d Id. \u00b6 15. We concluded that\nthe [Legislature wanted to reserve the serious violent offenses for those found by the trial judge to be committed in a physically violent manner either with an intent to do serious harm or with recklessness in the face of knowledge that one\u2019s acts are reasonably likely to result in serious harm.\nId. \u00b6 16. Thus, in order for one of the discretionary crimes to be designated as a serious violent offense, the district court must find that it was committed with \u201can intent to do serious harm\u201d or \u201cwith recklessness.\u201d Id.\n{24} Defendant argues that recklessness is an insufficient level of intent to support a serious violent offense designation. For support, Defendant again cites Begay, in which the Supreme Court of the United States rejected the application of a recklessness standard because unlike the other crimes listed in the ACCA, the act of driving drunk \u201cneed not be purposeful or deliberate.\u201d 553 U.S. at-, 128 S.Ct. at 1587. Taking our cue from the Begay Court and comparing vehicular homicide to the other enumerated discretionary serious violent offenses, we conclude that recklessness is an acceptable level of intent. Other discretionary crimes listed under Section 33 \u2014 2\u201434(L)(4)(o) incorporate the recklessness standard or in some circumstances, the lesser negligence standard. See State v. Yarborough, 120 N.M. 669, 674, 905 P.2d 209, 214 (Ct.App.1995) (requiring conduct that is \u201creckless, wanton, or willful\u201d in order to establish involuntary manslaughter (internal quotation marks and citation omitted)), aff'd, 1996-NMSC-068, 122 N.M. 596, 930 P.2d 131; see also NMSA 1978, \u00a7 30-6-1 (D), (E) (2005) (amended 2009) (identifying the intent for child abuse as \u201cknowingly, intentionally or negligently, and without justifiable cause\u201d). Indeed, recklessness is even sufficient for at least one of the per se offenses under Section 33-2-34(L)(4)(a) through (n). See NMSA 1978, \u00a7 30-3-8(B) (1993) (\u201cShooting at or from a motor vehicle consists of willfully discharging a firearm at or from a motor vehicle with reckless disregard for the person of another.\u201d).\n{25} Begay also focused on the unique purpose of the ACCA: \u201cthe [ACCA] focuses upon the special danger created when a particular type of offender \u2014 a violent criminal or drug trafficker \u2014 possesses a gun.\u201d 553 U.S. at -, 128 S.Ct. at 1587. Because the ACCA focuses on preventing certain types of offenders from owning guns, the Begay Court had \u201cno reason to believe that Congress intended to bring within the statute\u2019s scope these kinds of crimes, far removed as they are from the deliberate kind of behavior associated with violent criminal use of firearms.\u201d Id. The purpose of the EMDA is entirely different: \u201cIn the EMDA, the Legislature has established a detailed set of guidelines for both the courts and the corrections department to administer in the ultimate determination of a prisoner\u2019s eligibility for good time reductions from his period of confinement.\u201d Rudolfo, 2008-NMSC-036, \u00b6 35, 144 N.M. 305, 187 P.3d 170. The purpose of the EMDA is not to prevent certain types of offenders from obtaining weapons. Instead, the EMDA is designed to reduce the period of confinement by a designated number of days each month of time served for the perpetrators of certain offenses that have been specifically delineated by the Legislature. We therefore see every reason to believe that the Legislature intended to bring certain instances of vehicular homicide within the scope of the EMDA and are not persuaded that Begay requires a different result.\n2. Evidence at Sentencing\n{26} In addition to relying on Begay, Defendant also argues that the evidence was simply insufficient to establish that his conduct constituted a serious violent offense. This argument is distinct from Defendant\u2019s earlier argument regarding the adequacy of the district court\u2019s findings. See Scurry, 2007-NMCA-064, \u00b6 4, 141 N.M. 591, 158 P.3d 1034 (declining to address the sufficiency of the evidence after concluding that the findings were insufficient as a matter of law). Having determined that the district court\u2019s findings are legally adequate, we review the record to ascertain whether the facts support the findings and hence, the serious violent offense designation.\n{27} As we have stated, in order to designate a particular crime as a serious violent offense, the district court must find that it was \u201ccommitted in a physically violent manner either with an intent to do serious harm or with recklessness in the face of knowledge that one\u2019s acts are reasonably likely to result in serious harm.\u201d Morales, 2002-NMCA-016, \u00b6 16, 131 N.M. 530, 39 P.3d 747. Defendant argues that in addition to the Morales criteria, the State must also demonstrate that this particular vehicular homicide differs from other homicides caused by intoxicated or otherwise impaired drivers. We are satisfied that the Morales criteria adequately separate the average vehicular homicide from a properly designated serious violent offense and, thus, we decline to consider whether Defendant\u2019s acts were \u201cnotably worse than any other such case.\u201d\n{28} Morales explained how vehicular homicide can be committed with and without the requisite intent:\n[H]omicide by vehicle always results in death, but it can be committed by one who had only one drink but is thereby less able to drive safely, or it can be committed by one who intentionally and habitually gets drunk to the point of being several times over the legal limit, knowing that he or she must drive in a crowded area and is in no shape to do so, but does so nevertheless.\nId. \u00b6 15. In the present ease, the district court based the serious violent offense designation in part on Defendant\u2019s history of alcoholism and alcohol-related offenses. This history is supported by the facts revealed at the sentencing hearings. See Montoya, 2005-NMCA-078, \u00b6\u00b6 8-9, 137 N.M. 713, 114 P.3d 393 (reviewing the facts and circumstances before the district court to determine if substantial evidence supported the serious violent offense designation).\n{29} Apart from the two convictions for driving under the influence that were used to enhance the sentence, Defendant also had earlier alcohol-related accidents and encounters with the police, ranging back at least as far as 1993. One of these accidents resulted in bodily injury to a victim. The district court additionally noted that Defendant had many opportunities for treatment but failed to embrace them. After remand by this Court, the district court explained that the serious violent offense designation was based on Defendant\u2019s history with alcohol, his refusal to address the problem, and his insistence on continuing to drive while drunk. The district court further referred to evidence that other people had tried to prevent Defendant from driving on the day of the accident. To summarize, Defendant had a long history of alcohol abuse, previous experience with injuring a person because of alcohol impairment, and he disregarded advice to refrain from driving while under the influence. We are satisfied that this evidence is sufficient to establish that Defendant acted with recklessness in the face of knowledge that his acts were reasonably likely to result in serious harm. See Wildgrube, 2003-NMCA-108, \u00b6 38, 134 N.M. 262, 75 P.3d 862; Morales, 2002-NMCA-016, \u00b6\u00b6 15, 16, 131 N.M. 530, 39 P.3d 747.\n{30} We further hold that the evidence supported the district court\u2019s finding that Defendant used physical force and that actual harm resulted. See Morales, 2002-NMCA-016, \u00b6 18, 131 N.M. 530, 39 P.3d 747. Although we acknowledge that any vehicular homicide employs some level of physical force, the district court made findings that are specific to the force used in and the harm caused by this particular vehicular homicide: Defendant drove recklessly while intoxicated, crossed the center line, and struck the victim on a bicycle at such a rate of speed that she was thrown over the truck and into Defendant\u2019s truck bed. In addition, the district court considered the \u201cresulting harm\u201d by accepting the statements of the victim\u2019s family regarding the emotional impact of the victim\u2019s death. See id. \u00b6 13 (\u201c[Resulting harm must be considered along with the nature of the offense to determine if a listed offense qualifies.\u201d). The district court did not abuse its discretion by relying on these facts to establish that the Defendant acted in a physically violent manner. See Wildgrube, 2003-NMCA-108, \u00b6 38, 134 N.M. 262, 75 P.3d 862 (concluding that the evidence supported a serious violent offense designation when the defendant recklessly drove while intoxicated, looked away from the road, and hit and killed a pedestrian).\n{31} Review of the record demonstrates that the facts supported the district court\u2019s findings and the designation of Defendant\u2019s conduct as a serious violent offense.\nIII. CONCLUSION\n{32} We affirm the district court.\n{33} IT IS SO ORDERED.\nWE CONCUR: JONATHAN B. SUTIN and LINDA M. VANZI, Judges.", "type": "majority", "author": "CASTILLO, Judge." } ], "attorneys": [ "Gary K. King, Attorney General, Santa Fe, NM, Steven S. Suttle, Special Counsel Albuquerque, NM, for Appellee.", "Hugh W. Dangler, Chief Public Defender, Mary A. Barket, Assistant Appellate Defender, Santa Fe, NM, for Appellant." ], "corrections": "", "head_matter": "2009-NMCA-098\n215 P.3d 769\nSTATE of New Mexico, Plaintiff-Appellee, v. Timothy SOLANO, Defendant-Appellant.\nNo. 28,166.\nCourt of Appeals of New Mexico.\nJune 25, 2009.\nCertiorari Denied, No. 31,841, July 30, 2009.\nGary K. King, Attorney General, Santa Fe, NM, Steven S. Suttle, Special Counsel Albuquerque, NM, for Appellee.\nHugh W. Dangler, Chief Public Defender, Mary A. Barket, Assistant Appellate Defender, Santa Fe, NM, for Appellant." }, "file_name": "0831-01", "first_page_order": 861, "last_page_order": 870 }