State v. Doe , 100 N.M. 649 ( 1983 )

OPINION

RIORDAN, Justice.

Respondent John Doe (Doe)' was charged in the children’s court division of the district court (children’s court), with committing the delinquent acts of aggravated battery, NMSA 1978, Section 30-3-5, criminal sexual penetration, NMSA 1978, Section 30-9-11, and attempted first degree murder, NMSA 1978, Section 30-2-1 (Cum. Supp.1983) and NMSA 1978, Section 30-28-1(A). The children’s court attorney filed a pre-trial motion, pursuant to NMSA 1978, Section 32-1-30 (Repl.Pamp.1981), for transfer of the case to district court for prosecution as an adult. The pre-trial motion was granted by the children’s court, and Doe appealed. The Court of Appeals reversed the children’s court and set aside the transfer order. We granted certiorari and reverse the Court of Appeals.

The issue presented for review is whether the children’s court may transfer a child to district court pursuant to Section 32-1-30, when there is evidence that the child may be amenable to treatment in available facilities.

We will not recite the testimony of the expert witnesses called at the hearing. The testimony as well as the existing case law is adequately discussed in the Court of Appeals opinion in this case. The parties agree that the only dispute in this appeal is whether there has been compliance with Subsection 32-l-30(A)(4). Subséction 32-1-30(A)(4) (emphasis added), provides that:

A. Notwithstanding the provisions of Section 32-1-29 NMSA 1978, after a petition has been filed alleging a delinquent act, the court may, before hearing the petition on its merits, transfer the matter for prosecution in the district court if:

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(4) the [children’s] court has considered whether the child is amenable to treats ment or rehabilitation as a child through available facilities.

Section 32-1-30 was enacted in 1975, some three years after the Children’s Code, NMSA 1978, Sections 32-1-1 through 32-1-45 (Repl.Pamp.1981 and Cum.Supp.1983), was first adopted. Prior to that time, there was no discretionary transfer to district court. The sole transfer provision was Section 32-1-29. One major difference between the two provisions is the paragraph in question because under Section 32-1-29, the children’s court must find that the child is not amenable to treatment or rehabilitation as a child through available facilities. Because of this legislative history, we can assume with a degree of certainty that the Legislature intended to allow the children’s court more judicial latitude in transferring a child to district court under the conditions set out in Section 32-1-30.¹

The State claims that the Court of Appeals opinion added two requirements to Section 32-1-30, that the Legislature did not intend, when they remanded the case to children’s court with instructions to make the following specific factual determinations: (1) whether the current facilities and treatment options are inadequate, considering Doe’s mental condition and his needs, and (2) whether the implementation of an adequate treatment program is not feasible within the time restraints placed upon juvenile authorities to accomplish the rehabilitation. Although these determinations may appropriately be made by the Children’s Court to show whether it “has considered” whether the child is amenable to treatment or rehabilitation as a child through available facilities, they are not mandatory nor exclusive under the statute. We therefore determine that these added two requirements are not required in a transfer hearing under Section 32-1-30 and the Children’s Court does not need to make specific findings on those subjects.

Section 32-1-30 is clear and unambiguous. It requires only the consideration by the children’s court of the child’s amenability to treatment before the children’s court makes its findings. State v. Doe, 99 N.M. 460, 659 P.2d 912 (Ct.App.1983). This consideration by the children’s court and its discretionary transfer under Section 32-1-30 will not be reversed on appellate review, absent an abuse of discretion. See State v. Doe, 93 N.M. 481, 601 P.2d 451 (Ct.App.1979). Furthermore, it is not an appellate court’s right or duty to re-try the case for a different or better result. Cf. State v. Garcia, 99 N.M. 771, 781, 664 P.2d 969, 979, cert. denied, — U.S. —, 103 S.Ct. 2464, 77 L.Ed.2d 1341 (1983). The fact that the Children’s Court heard evidence of the advantages and disadvantages of the two alternatives is indicative that it “has considered” the matter within the purview of the statute.

The evidence in this case, although from only two witnesses, points out the treatment problems with Doe, whether he is transferred to district court or handled in children’s court. The children’s court properly considered whether the transfer should take place and decided that it should. Having reviewed the record, we determine that the children’s court did not abuse its discretion.

The Court of Appeals is reversed. This case is remanded to the district court for trial, pursuant to the March 15, 1983 Order on the alleged delinquent acts.

IT IS SO ORDERED.

PAYNE, FEDERICI, and STOWERS, JJ., concur. DAN SOSA, Jr., Senior Justice, respectfully dissenting.

1 . Under Section 32-1-29, the child must be sixteen and the delinquent act must be a felony. Under Section 32-1-30, a child fifteen years or older who is charged with certain felonies may be transferred to district court.