This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 28,725 9 DAVID M. P., JR., 10 Child-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY 12 Henry R. Quintero, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 Joel Jacobsen, Assistant Attorney General 16 Albuquerque, NM 17 for Appellee 18 Gary C. Mitchell, P.C. 19 Gary C. Mitchell 20 Ruidoso, NM 21 for Appellant 22

MEMORANDUM OPINION 23 CASTILLO, Chief Judge. 242 Child appeals his sentence challengi ng the constitutionality of NMSA 1978, 1 Section 32A-2-20 (2005) (ame nded 2009), and he argues thata jury, not the district 2 court, must determine the issue of his amenability to treatment as a juvenile. Child 3 also claims that the district court abused its discretion in determining that he was not 4 amenable to treatment or, in the alternativ e, that there was insufficient evidence for 5 that determination. We affirm. 6 BACKGROUND 7 In August 2007, Child, who was seventeenyears old at the time, attended a 8 party where he consumed a considerableamount of alcohol. In doing so, Child 9 violated the terms of his probation for a prior delinquent act. Several fights occurred 10 during the party; at one point, several individuals, including Child, attacked a young 11 man and struck him violently and repeatedly . The victim suffered fatal injuries and 12 died. As a result of his participation inthe attack, Child was charged with second 13 degree murder, conspiracy to commit sec ond degree murder, two counts of aggravated 14 battery, and aggravated assault. The State filed a notice to adjudicate Child as a 15 youthful offender and to seek an adult sentence. 16 Child accepted a plea and disposition agreement whereby he agreed to plead no 17 contest to aggravated battery and conspiracy to commit a ggravated battery in return 18 for dismissal of the other charges. The terms included a waiver of 193 any and all motions, defenses, objecti ons or requests which [Child] has 1 made or raised, or could assert hereaf ter, to the court’s entry of judgment 2 and imposition of a sentence consistentwith this agreement. [Child] 3 waives the right to appeal the conviction that results from the entry of 4 this plea agreement. 5 The agreement provided for two possible sentencing outcomes: (1) if Child was 6 sentenced as a juvenile, th e maximum sentence possible was commitment to the New 7 Mexico Children, Youth, and Families Department for up to two years with the 8 possibility of one-year extensions until Childreached the age of twenty-one; (2) if 9 sentenced as an adult, Child faced a maximum penalty of four and one-half years’ 10 incarceration with the New Mexico Department of Corrections. 11 Pursuant to Section 32A-2-20, the distri ct court held an amenability hearing to 12 determine whether Child should be sentenced as a juvenile or as an adult. The State’s 13 witnesses included the juven ile probation and parole officer assigned to Child as a 14 result of Child’s earlier delinquent conduct as well as a clinical psychologist. Both 15 witnesses proffered testimony supporting the conclusion that Child was not amenable 16 to treatment. Child called six witnesses. Two teachers, a long-time friend of Child’s 17 father, and Child’s youth pastor spoke to Child’s character and motivation to improve 18 himself. Child’s father briefly testif ied about the circumstances surrounding Child’s 19 noncompliance with his then existing probationary status. Child also called his own 20 clinical psychologist, and she offered te stimony supporting the conclusion that Child 214 was amenable to treatment. 1 The court concluded that Child was not amenable to treatment and sentenced 2 Child as an adult to a total of four and one-half years’ confinement: three years’ 3 incarceration for the aggravated battery ch arge and eighteen months’ incarceration for 4 the conspiracy charge. Child appeals his sentence. 5 DISCUSSION 6 We begin with Child’s argument regarding the constitutionality of Section 32A7 2-20. Child contends that Apprendi v. New Jersey , 530 U.S. 466 (2000) entitled him 8 to have a jury decide the issue of his amenability. We review this claim de novo. See 9 State v. DeGraff , 2006-NMSC-011, ¶ 6, 139 N.M. 211, 131 P.3d 61 (“[The 10 defendant’s] arguments primarily raise questions of constitutional law, which we 11 review de novo.”). 12 In the recently decided case of State v. Rudy B. , 2010-NMSC-045, ¶ 1, 149 13 N.M. 22, 243 P.3d 726, our Supreme Court examined Section 32A-2-20 and 14 considered Child’s issue: “whether the Si xth Amendment right to a jury trial requires 15 the amenability determination to be made by the jury or by the trial judge.” 16 Explaining that “the amenability determinati on historically has not been made by the 17 jury [and that] applying Apprendiwould interfere unnecessarily with New Mexico’s 18 traditional discretion in administering a system of juve nile justice[,]” Rudy B. , 2010- 195 NMSC-045, ¶ 59, our Supreme Court held that the Sixth Amendment does not require 1 that a jury perform the amenability determination and upheld “from constitutional 2 challenge New Mexico’s statutory preference for judge-made amenability decisions.” 3 Rudy B. , 2010-NMSC-045, ¶ 2. In light of Rudy B. , we reject Child’s constitutional 4 challenge to Section 32A-2- 20 and his assertion that th e amenability determination is 5 a matter exclusively for a jury. We proceedto Child’s remaining argument on appeal. 6 Child next claims that the district court abused its discreti on in determining that 7 Child was not amenable to treatment or, in the alternative, that there was insufficient 8 evidence for such a determination. Th e State counters that Child waived this 9 argument by entering into the plea agreemen t. We need not evaluate the waiver 10 argument because the State prevails on the sufficiency questions. 11 “Whether [a d]efendant is amenable to treatment or rehabilitation as a child is 12 a determination ultimately left to the discretion of the district court.” State v. Todisco , 13 2000-NMCA-064, ¶ 36, 129 N.M. 310, 6 P. 3d 1032 (internal quotation marks and 14 citation omitted); see State v. Sosa , 1997-NMSC-032, ¶ 9, 123 N.M. 564, 943 P.2d 15 1017 (same). “We review non-amenability findi ngs for substantial evidence or abuse 16 of discretion.” State v. Trujillo , 2009-NMCA-128, ¶ 13, 147 N.M. 334, 222 P.3d 17 1040, cert. granted , 2009-NMCERT-011, 147 N.M. 464, 225 P.3d 794. “[A] district 18 court abuses its discretion when its decisi on is not supported by substantial evidence.” 196 State v. Solano , 2009-NMCA-098, ¶ 7, 146 N.M. 831, 215 P.3d 769 (internal 1 quotation marks and citation omitted), cert. denied , 2009-NMCERT-007, 147 N.M. 2 363, 223 P.3d 360. Similarly, “[i]n assessing a claim of ev identiary insufficiency, this 3 Court asks whether substantial evid ence supports the court’s decision.” State v. 4 Gonzales , 2001-NMCA-025, ¶ 40, 130 N.M. 341, 24 P.3d 776, overruled on other 5 grounds as recognized by Rudy B. , 2010-NMSC-045, ¶ 1. “Substantial evidence is 6 relevant evidence that a reasonable mind would accept as adequate to support a 7 conclusion.” Id. (internal quotation marks and c itation omitted). We view the 8 evidence in the light most favorable to th e decision below, resolve all conflicts and 9 indulge all permissible inferences to uphold that decision, and disregard all evidence 10 and inferences to the contrary. Id. “It is the factfinder’s prerogative to weigh the 11 evidence and to judge the credibility of the w itnesses. The court [i s] free to disregard 12 expert opinion.” Trujillo , 2009-NMCA-128, ¶ 18 (internal quotation marks and 13 citations omitted). 14 Child argues that there was no witness testimony that he was not amenable to 15 treatment. This claim is not borne outby the record. The following exchange 16 occurred during the State’s direct examination of Dr. Siegel, the State’s clinical 17 psychologist: 18 Q. Doctor, you stated earlier . . . that, basically, [Child] refused 19 to admit his involvement in the incident for which he had already 207 accepted criminal responsibility; is that correct? 1 A. Yes. That’s correct. 2 Q. Now, you’ve briefly touched on each of the amenability 3 factors, and you also—if I hear you correctly, you’re saying that without 4 this willingness to accept responsibility and to admit fault that he’s not 5 amenable to treatment; is that correct? 6 A. Yes. 7 During cross examination, Dr. Siegel di d indicate that Child was “amenable” to 8 treatment in the narrow sense that Childwould likely do well in an institutional 9 setting. However, Dr. Siegel clarified thatthis was, in his view, a matter apart from 10 whether Child was amenable to treatment for purposes of rehabilitation. Dr. Siegel 11 offered the following explanation: 12 Can he be rehabilitated within the facility? Yes. 13 Can he be rehabilitated well enough to take out in the real world 14 by age 21? I say no. That’s the problem I have with him. 15 He is immature already at 18, so he’s got longer to go to get 16 there. . . . 17 . . . The problem is, at 21, he walks out the door. So what’s the 18 prediction that he’s going to be ableto gain from the facility well enough 19 to walk out the door and behave well?His denial of what’s wrong with 20 him, that attitude he has, doesn’t bode well for him. That’s the bottom 21 line of what I’m saying. 22 Child appears to argue that Dr. Siegel ’s testimony cannot, as a matter of law, 23 support a determination that Child was not amenable to treatment in light of the fact 24 that Dr. Siegel conceded Child would respond positively to institutional treatment. 25 Child claims that “[o]nly a finding that [C hild] was not amenable to treatment without 26 any caveats or qualifications can subject him to adult sanctions.” The authority 278 Defendant cites for this proposition, Gonzales , does not so hold. Rather, Gonzales 1 instructs that “[t]he determination of a youthful offender’s amenability to treatment 2 within the juvenile system is a question of the prospects for rehabilitation of the 3 child.” 2001-NMCA-025, ¶ 25. The import of Dr. Siegel’s testimony is clear: Child 4 could not be rehabilitated if sentenced as a juvenile becau se such a sentence would be 5 insufficiently short, Child would have to bereleased at the age of twenty-one. The 6 district court could rely on this testimony in concluding that Child was not amenable 7 to treatment as a juvenile. See Sosa , 1997-NMSC-032, ¶ 10 (“The court noted that the 8 brief period of treatment available to [the defendant] was insufficient to accomplish 9 rehabilitation and protection of the public , providing further support for an adult 10 sentence.”). 11 Child’s arguments also ignore the non-witn ess evidence. In its findings of fact 12 and conclusions of law, the district court identified a variety of non-witness evidence 13 bearing on the factors in Section 32A-2-20(C) . The district court observed that the 14 incident for which Child was charged was violent, involved a person, and resulted in 15 a homicide; that Child has a history of i gnoring school rules and court orders; and that 16 Child has a general disregard for the rights of others. Consequen tly, we conclude that 17 there was substantial evidence to support the district court’s determination that Child 18 was not amenable to treatment. 199 CONCLUSION 1 For the foregoing reasons, the senten ce imposed by the district court is 2 affirmed. 3 IT IS SO ORDERED. 4

__________________________________ 5 CELIA FOY CASTILLO, Chief Judge 6 WE CONCUR: 7

________________________________ 8 JONATHAN B. SUTIN, Judge 9

________________________________ 10 CYNTHIA A. FRY, Judge 11