The appellate courts of this state consistently have upheld findings that an unlawful sexual touching (or penetration) supported a conviction for CDM. See State v. Favela, 91 N.M. 476, 478, 576 P.2d 282, 284 (1978) (upholding conviction for CDM when adult female had consensual intercourse with fifteen-year-old boy), overruled on other grounds by State v. Pitts, 103 N.M. 778, 780, 714 P.2d 582, 584 (1986) (holding defendant need not be adult to commit CDM); McKinley, 53 at 110-11, 202 P.2d at 967 (holding man's act of having sex with fourteen-year-old girl could constitute CDM); State v. Corbin, 111 N.M. 707, 711, 809 P.2d 57, 61 (Ct.App.) (evidence that defendant attempted to touch minor sexually, showed him a Playboy magazine, encouraged him to "get it hard," and told him to unbutton his pants was sufficient to support conviction for CDM), cert. denied, 111 N.M. 720, 809 P.2d 634 (1991); State v. Leyba, 80 N.M. 190, 192, 453 P.2d 211, 213 (Ct.App.) (upholding CDM conviction for touching the private parts of and talking indecently to a minor), cert. denied, 80 N.M. 198, 453 P.2d 219 (1969). The defendant in State v. Dodson, 67 N.M. 146, 353 P.2d 364 (1960), was charged with CDM for engaging in "certain illicit sex practices" with a minor.
Even if the verdicts are irreconcilable, this does not require the conviction to be set aside as a matter of law. State v. Leyba, 80 N.M. 190, 453 P.2d 211 (Ct.App. 1969). Defendant asserts that the Leyba decision was modified in State v. Tijerina, 519 P.2d 127, 1973.
Some courts, giving expression to the principle that "[o]ur law only authorizes a conviction where guilt is shown," Harris v. State, 76 Tex.Crim. 126, 131, 172 S.W. 975, 977 (1915), require that trial judges reject such pleas. See, e. g., Hulsey v. United States, 369 F.2d 284, 287 (CA5 1966); United States ex rel. Elksnis v. Gilligan, 256 F. Supp. 244, 255-257 (SDNY 1966); People v. Morrison, 348 Mich. 88, 81 N.W.2d 667 (1957); State v. Reali, 26 N.J. 222, 139 A.2d 300 (1958); State v. Leyba, 80 N.M. 190, 193, 453 P.2d 211, 214 (1969); State v. Stacy, 43 Wn.2d 358, 361-364, 261 P.2d 400, 402-403 (1953). But others have concluded that they should not "force any defense on a defendant in a criminal case," particularly when advancement of the defense might "end in disaster . . . ."
However, even if he could show a reasonable probability that he would have accepted that deal, Duran has also failed to demonstrate a reasonable probability that the trial court would have accepted a thirty-six-year plea agreement. As Judge Lynch observed, trial judges in New Mexico have complete discretion in accepting or rejecting plea agreements, see State v. Leyba, 453 P.2d 211, 214 (N.M. Ct. App. 1969), and the trial judge in Duran's case gave several indications that he would not have accepted a plea agreement here prior to trial. The judge openly criticized plea bargaining as "put[ting] dangerous people on the streets," and he noted his disappointment that Duran had previously benefited from a plea bargain before ending up free to commit further crimes.
Under New Mexico law, it is within the trial court's discretion to accept or reject a plea agreement. NMRA, Rule 5-304 (West 2012); State v. Leyba, 453 P.2d 211, 214 (N.M. Ct. App. 1969) (citation omitted). If the defendant and the prosecution bargain for a specific sentence, the court is required to either accept the specific sentence or reject it and give the defendant an opportunity to withdraw his guilty plea.
Further, we view the Powell approach as consistent with the approach taken by our lower courts over the past fifty years. See, e.g. , State v. Roper , 2001-NMCA-093, ¶ 24, 131 N.M. 189, 34 P.3d 133 ("We have frequently said that our business is to review the verdicts of conviction, and not concern ourselves with any alleged acquittals, and thus we do not entertain contentions alleging that the verdicts are irreconcilable."); State v. Leyba , 1969-NMCA-030, ¶¶ 36-37, 80 N.M. 190, 453 P.2d 211 ("The verdict of acquittal is beyond our control.
The effect of severing the definition of delinquency in CDM from other statutory definitions of the term was that the meaning was no longer limited to those other definitions. Id. at 109, 202 P.2d at 966 (holding encouragement of acts within the definition of juvenile delinquency "at the least" constitutes CDM); see also State v. Leyba, 80 N.M. 190, 192, 453 P.2d 211, 213 (Ct.App.) (holding charge of CDM is supported if defendant's acts encourage conduct injurious to the minor's morals), cert. denied, 80 N.M. 198, 453 P.2d 219 (1969). This Court later disavowed any nexus between "delinquency" as the term is used for CDM and as defined in the Children's Code. Favela, 91 N.M. at 477-78, 576 P.2d at 283-84 (1978) (holding CDM statute and Children's Code are separate in purpose and application).
(Citations omitted.) The State claims that the Court of Appeals' opinion conflicts with the holdings in State v. Roessler, 58 N.M. 102, 266 P.2d 351 (1954), State v. Ferguson, 77 N.M. 441, 423 P.2d 872 (1967), State v. Leyba, 80 N.M. 190, 453 P.2d 211 (Ct.App. 1969), cert. denied, 80 N.M. 198, 453 P.2d 219 (1969), and State v. Grove, 82 N.M. 679, 486 P.2d 615 (Ct.App. 1971). The State asserts that these cases implicitly hold that the crime of contributing to the delinquency of a minor may be a crime separate and apart from any underlying violation of the law.
Under the circumstances here, the guilty plea being proffered almost at the end of the State's case, and in light of the nature of the evidence presented, we are satisfied that the court did not abuse its discretion in refusing to accept the proffered plea. See State v. Leyba, 80 N.M. 190, 453 P.2d 211 (Ct.App. 1969). Concerning the trial court's refusal to suppress the defendant's statements, it is contended that they were the fruit of his illegal arrest.
. Pusser, Jr., Esq., of Chesterfield, for Appellant, cites: As to the Appellant's plea not representing a voluntaryand intelligent choice among the alternative courses of actionopen to him and error for the trial judge to accept the pleaunder the evidence in view of the absence of any factualbasis for the plea and the Appellant's claim of innocence: 378 U.S. 1, 84 S.Ct. 1489; 168 U.S. 532, 18 S.Ct. 183; 378 U.S. 368, 84 S.Ct. 1774; 348 U.S. 436, 86 S.Ct. 1602; 253 S.C. 513, 171 S.E.2d 699; 92 S.Ct. 759; 92 S.Ct. 431; 400 U.S. 25, 91 S.Ct. 160; 254 S.C. 444, 175 S.E. 796; 254 S.C. 61, 173 S.E.2d 374; 298 F. Supp. 1207; 397 U.S. 790, 90 S.Ct. 1458; 397 U.S. 759, 90 S.Ct. 1441; 397 U.S. 742, 90 S.Ct. 1463; 168 U.S. 532, 18 S.Ct. 183; 92 S.Ct. 495; 332 U.S. 596, at 606; 68 S.Ct. 302 at 307; 400 U.S. 25, 91 S.Ct. 160 at 169; 390 U.S. 570, 88 S.Ct. 1209; 76 Tex.Crim. R., 172 S.W. 975, 977; 369 F.2d 284, 287; 256 F. Supp. 244, 255-257; 348 Mich. 88, 81 N.W.2d 667; 26 N.J. 222, 139 A.2d 300; 80 N.M. 190, 193, 453 P.2d 211, 214; 43 Wn.2d 358, 361-364, 261 P.2d 400, 402-403; 397 U.S. at 805, 90 S.Ct., at 1458; 199 F. Supp. 569, 570. As to the sentence imposed upon the Appellantby the trial judge being the result of partiality, prejudice,oppression or corrupt motive: 220 S.C. 315, 67 S.E.2d 509; 244 S.C. 259, 136 S.E.2d 300; 222 S.C. 108, 71 S.E.2d 793; 92 S.Ct. 495; Code of Laws of South Carolina, (1962) 16-52; Code of Laws of South Carolina (1962) 16-55. Messrs Daniel R. McLeod, Atty. Gen., Emmet H. Clair, and Robert M. Ariail, Asst. Attys. Gen., of Columbia, forRespondents, cite: As to Appellant's decision to plead guilty,following a complete disclosure of the State's case being intelligentlyand voluntarily entered with the advice of competentcounsel: 395 U.S. 238, 23 L.Ed.2d 274, 89 S. Ct. 1709; 369 U.S. 506, 516; 8 L.Ed.2d 70, 77, 82 S.Ct. 884; 400 U.S. 25, 27 L.Ed.2d 162, 91 S.Ct. 160; 397 U.S. 742, 25 L.Ed.2d 747, 90 S.Ct. 1463. As to the Appellant's not being allowed to impeach, in collateralproceedin