State v. Garcia
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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. A-1-CA-37018 5 LORENZO GARCIA, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Michael Martinez, District Judge 9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 for Appellee 12 Bennett J. Baur, Chief Public Defender 13 J.K. Theodosia Johnson, Assistant Public Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 VANZI, Chief Judge. 18 {1} Defendant Lorenzo Garcia appeals from the district court’s order revoking 19 probation. This Court’s calendar notice proposed to summarily affirm. Defendant filed 1 a memorandum in opposition to the proposed disposition. Not persuaded by 2 Defendant’s arguments, we affirm. 3 {2} The calendar notice proposed to conclude that the State’s circumstantial 4 evidence proved Defendant was the driver of the Thunderbird on the date in question 5 with reasonable certainty, on the basis that proof of a probation violation need not be 6 established beyond a reasonable doubt. See State v. Galaz, 2003-NMCA-076, ¶ 8, 133 7 N.M. 794, 70 P.3d 784. [CN 3] Defendant does not point to any error with regard to 8 this proposal, but argues that the calendar notice did not address the evidence 9 regarding possession of a firearm. [MIO 2] See State v. Mondragon, 1988-NMCA10 027, ¶ 10, 107 N.M. 421, 759 P.2d 1003 (stating a party responding to a summary 11 calendar notice must come forward and specifically point out errors of law and fact), 12 superceded by statute as stated in State v. Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 13 374. Defendant argues that there was insufficient evidence to support the finding that 14 he violated his probation by possessing a firearm because there was a passenger in his 15 car and he therefore did not have exclusive control over the car. [MIO 3] We affirm 16 the district court’s order on the basis that there was sufficient evidence to support the 17 single violation prohibiting Defendant from violating state laws. See State v. Leon, 18 2013-NMCA-011, ¶ 37, 292 P.3d 493 (“[A]lthough Defendant challenges the 19 sufficiency of the evidence supporting each of his probation violations, if there is 2 1 sufficient evidence to support just one violation, we will find the district court’s order 2 was proper.”). 3 {3} Defendant continues to argue that the district court impermissibly shifted the 4 burden of proof from the State by considering his failure to rebut the evidence against 5 him. [MIO 4] The calendar notice proposed to affirm on the basis that “[t]he burden 6 of proving a violation with reasonable certainty lies with the State,” State v. Green, 7 2015-NMCA-007, ¶ 22, 341 P.3d 10, and it is only after the State meets its burden of 8 proving the breach of a material condition that Defendant must present evidence to 9 excuse non-compliance. See Leon, 2013-NMCA-011, ¶ 36. Defendant does not point 10 to any error in fact or law with the proposed disposition, but continues to maintain that 11 the district court impermissibly shifted the burden to him to rebut the State’s evidence. 12 [MIO 4] See Mondragon, 1988-NMCA-027, ¶ 10 (stating that the repetition of earlier 13 arguments does not fulfill the requirement of a defendant to respond to a proposed 14 disposition). We disagree. 15 {4} The State must first meet its burden of proving the violation of a material 16 condition of probation before a defendant is given an opportunity to present evidence 17 excusing non-compliance. See State v. Martinez, 1989-NMCA-036, ¶ 8, 108 N.M. 18 604, 775 P.2d 1321 (“Once the state offers proof of a breach of a material condition 19 of probation, the defendant must come forward with evidence to excuse 3 1 non-compliance.”). “[D]efendant is entitled to present evidence and witnesses . . . in 2 an effort to convince the trial court that his failure to comply with conditions was 3 through no fault of his own.” Id. (citations omitted). We conclude that allowing 4 Defendant such an opportunity only after the State has met its initial burden of proof 5 is not an impermissible shifting of burdens. 6 {5} For all of these reasons, and those stated in the calendar notice, we affirm. 7 {6} IT IS SO ORDERED. 8 9 ______________________________ LINDA M. VANZI, Chief Judge 10 WE CONCUR: 11 ___________________________ 12 STEPHEN G. FRENCH, Judge 13 ___________________________ 14 EMIL J. KIEHNE, Judge 4
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