Las Cruces boy accused of rape will not go to trial

A Las Cruces teenager who police say admitted to raping a 5-year-old boy will not be convicted for the crime. Instead the 15-year-old pleaded no contest to aggravated battery.

When prosecutors first got the case in March 2012, they started the process to try then-14-year-old Roy Calderon as an adult. Prosecutors said as they learned more about the case, they changed their minds.

Third Judicial District Attorney Mark D’Antonio told ABC-7 the victim’s family wanted this plea deal.

“They insisted to us they did not want to bring this case to trial. They did not want to put this young child through the process of having to testify in open court,” D’Antonio said.

The deal dropped six felony sex crime charges against Calderon. He pleaded no contest to a misdemeanor.

“In this case we had a resolution that would bring the victim’s family what they wanted. Also get the other child, the child defendant, get the help he needs to go on with his life,” D’Antonio said.

According to court documents, Calderon told police he performed sexual acts with a 5-year-old boy. The documents show Calderon told police he was sorry for what he did and wanted help.

That’s one of the reasons why prosecutors decided not to ask for Calderon to be tried as an adult.

“The statutes and law requires they be treated as children and that they be given extra opportunity for rehabilitation,” said Daniel Sewell, the children’s court attorney in charge of this case.

Sewell said there are two criteria to try a minor as an adult. The first is a criminal history, which Calderon does not have. The second is proving treatment would not help the child change.

D’Antonio said the major difference in charges does not make a difference in sentencing within the juvenile justice system.

“It doesn’t matter whether it’s a small crime or a big crime. In juvenile cases they’re all handled the same. That is to protect the juvenile,” D’Antonio said.

The maximum penalty Calderon will face is two years of probation.

For a deeper explanation on sentencing in the juvenile justice system, the following is excerpted from the New Mexico Children Code:

As to sentencing, there have been changes in the juvenile justice system.
• Until the 1990s, the most incarceration a juvenile could receive for any offense was two years. NMSA 1978, Section 32A-2-19(B)(1)(B). A dramatic increase in juvenile violent crimes, however, led the state Legislature to create additional categories to provide the courts with more discretion in sentencing juvenile offenders.

• The three categories of juvenile offenders are:

1. serious youthful offenders,
2. youthful offenders, and
3. delinquent offenders

• A child will be placed into a given category based upon his or her age and the type of offense committed. Which category a child is in will determine the options available to the Judge for sentencing.

1. SERIOUS YOUTHFUL OFFENDER
An individual, ages 15 to 18, who has been indicted or bound over for first degree murder. NMSA 1978, Section 32A-2-3 (H).
A serious youthful offender is treated as an adult and sentenced as an adult. NMSA 1978, Section 31-18-15.3(D).

2. YOUTHFUL OFFENDER
A child, ages 14 to 18, who has been adjudicated for any number of violent offenses, including but not limited to: second-degree murder, kidnapping, shooting at an occupied dwelling, CSP, or a child age 14 who has been adjudicated for first degreemurder. The child is subject to adult or juvenile sanctions. NMSA 1978, Section 32A-2-3 (I).
A youthful offender who is not amenable to rehabilitation may be sentenced as an adult. NMSA 1978, Section 32A-2-20(A), (B).

3. DELINQUENT OFFENDER
A child who has committed a delinquent act but does not fit into either the youthful or serious youthful offender category. This child is subject to juvenile sanctions only. NMSA 1978, Section 32A-2-3-C. The Court can order one of the following commitments for a delinquent offender:
1. A short-term commitment of one year,
2. A long-term commitment for no more than two years,
3. For certain crimes a commitment to age 21.