State v. Realivasquez

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 36,200 5 LANCIE REALIVASQUEZ, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 8 Briana H. Zamora, District Judge 9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 for Appellee 12 The Law Office of Ramsey & Hoon, LLC 13 Twila A. Hoon 14 Albuquerque, NM 15 for Appellant 16 MEMORANDUM OPINION 17 GARCIA, Judge. 1 {1} Defendant appeals from the district court’s judgment in an on-record appeal, 2 affirming the metropolitan court’s sentencing order that convicted Defendant for his 3 first offense DWI pursuant to a conditional plea. Unpersuaded that Defendant 4 demonstrated error, we issued a notice of proposed summary disposition, proposing 5 to affirm. Defendant filed a memorandum in opposition to our notice. We remain 6 unpersuaded and therefore affirm. 7 {2} On appeal, Defendant challenges the lawfulness of his arrest, as he did in both 8 the metropolitan and district courts, contending that the officer lacked probable cause 9 to support the seizure and de facto arrest. [RP 84-85; DS 10; MIO 3-4] This appeal has 10 been pursued under the demands of State v. Franklin, 1967-NMSC-151 , ¶ 9, 78 N.M. 11 127 , 428 P.2d 982 ; and State v. Boyer, 1985-NMCA-029 , ¶ 24, 103 N.M. 655 , 712 12 P.2d 1 . [DS 10; MIO 4] To the extent Defendant maintains that the seizure should be 13 reviewed as a “felony stop,” Defendant does not explain how it would change the 14 analysis or result. Our notice proposed to hold that the officer had probable cause to 15 arrest Defendant based on his refusal to obey the officer’s lawful and reasonable 16 commands. [CN 3] Thus, there is no need to engage in a dispute over the precise 17 nature of the seizure. 18 {3} In response to our notice, Defendant contends that the officer’s testimony 19 amounted to a hunch and did not support the officer’s concern for his safety, which — 2 — 1 lead to the more intrusive seizure. [MIO 6-7] We are not persuaded. The record shows 2 that Defendant engaged in dangerous and erratic conduct: Defendant drove too fast 3 through a parking lot, peeled out during a U-turn taken too fast, ran two stop signs, 4 accelerated when the officer turned on his siren and lights, and then came to an abrupt 5 stop. [RP 109-10] After stopping, Defendant did not follow the officer’s repeated 6 instructions to drop the car keys on the ground and keep both hands outside the 7 driver’s window; and the officer could not see inside the car, due to the tinted 8 windows at nighttime. [RP 110-11] After the twelfth command, the officer drew his 9 gun at the car. [Id.] A few minutes later, Defendant exited the car and walked to the 10 back of it, as instructed. [RP 111] The officer (with back-up officers) handcuffed 11 Defendant and placed him in the back of the one of the patrol cars. [Id.] We are 12 persuaded that the officer’s actions amounted to reasonable, precautionary measures 13 in response to reasonable fears that simply permitted the officer to conduct a safer 14 investigatory detention. [RP 113-15] See, e.g., State v. Lovato, 1991-NMCA-083 , 15 ¶ 26, 112 N.M. 517 , 817 P.2d 251 (“Even in routine traffic stops, police may adopt 16 precautionary measures addressed to reasonable fears[,]”) We will not require 17 probable cause to justify those precautionary measures when “the level of intrusion” 18 is reasonable and appropriate for the level of danger posed, in conducting an 19 investigatory detention. see id. ¶ 27. — 3 — 1 {4} As we further explained in our notice, we believe the officer not only acted 2 reasonably with respect to the heightened level of self-protection used, but that the 3 officer also had probable cause to arrest Defendant for refusing to obey the officer’s 4 lawful and reasonable commands. [RP 115-17] See State v. Maez, 2009-NMCA-108 , 5 ¶ 24, 147 N.M. 91 , 217 P.3d 104 (holding that officer had probable cause to arrest the 6 defendant based on his refusal obey or comply with the orders of a police officer in 7 violation of NMSA 1978, Section 30-22-1(B) (1981)). Defendant distinguishes Maez 8 on the basis that the officer in the current case did not conclude, and the facts do not 9 establish, that Defendant had committed the crime of failure to obey, and nor was he 10 charged with that offense. [MIO 9-10] We are not persuaded. In Maez, the defendant 11 spontaneously and without provocation ran away from his vehicle during an attempted 12 traffic stop; the officer chased the defendant and repeatedly shouted, “Police, stop,” 13 and the defendant kept running. Id. ¶¶ 2-6, 24. We held that the officer had probable 14 cause to arrest the defendant for evading or resisting. Id. ¶ 25. Although the facts of 15 Maez may support a violation of a different form of resisting an officer; namely, 16 fleeing, the facts are sufficiently analogous. Further, as we observed in Maez, 17 “[p]robable cause does not require that an officer’s belief be correct or more likely 18 true than false.” Id. ¶ 24 (internal quotation marks and citation omitted). Also, our 19 probable cause analysis is not affected by what an officer subjectively believed or — 4 — 1 whether a defendant was charged with an offense that justified the arrest. See, e.g., 2 State v. Ochoa, 2004-NMSC-023, ¶ 9 , 135 N.M. 781 , 93 P.3d 1286 (“[P]robable cause 3 must be evaluated in relation to the circumstances as they would have appeared to a 4 prudent, cautious and trained police officer.” (internal quotation marks and citation 5 omitted)). We remain persuaded that the officer had probable cause based on 6 Defendant’s refusal to comply with the officer’s lawful commands. 7 {5} Lastly, we address Defendant’s statements regarding his right to appellate 8 review. [MIO 3] Defendant’s comments seem to imply that he has not or will not be 9 afforded the appropriate scrutiny of our three-panel appellate review where we base 10 the disposition of appeals on reasons given in the district court’s memorandum 11 opinions. We remind Defendant that a single judge authors all calendar notices, and 12 then the appellants have an opportunity to respond. Thereafter a three-judge panel 13 reviews the appeals and participates in considering and drafting the opinions. This 14 Court dutifully reviews all appeals and issues before it and reaches its own 15 conclusions, regardless of the procedural mechanisms by which appeals come to this 16 Court. As we routinely explain in the cases that come before us from on-record 17 appeals, we avoid the duplication of efforts where there is no reason to expend judicial 18 resources to restate a thorough opinion of a court sitting as we do in an appellate 19 capacity that reaches a result with which we agree for the same reasons we would — 5 — 1 state. This Court will deviate from district court opinions where we see fit. We 2 encourage counsel for future docketing statements to focus on pointing out errors in 3 both metropolitan court decisions and in the consistently thorough district court 4 memorandum opinions that come before us from on-record appeals, in order to take 5 full advantage of our responsive calendaring process. 6 {6} For the reasons stated in our notice and in this opinion, we affirm Defendant’s 7 conviction 8 {7} IT IS SO ORDERED. 9 ________________________________ 10 TIMOTHY L. GARCIA, Judge 11 WE CONCUR: 12 _______________________________ 13 MICHAEL E. VIGIL, Judge 14 _______________________________ 15 M. MONICA ZAMORA, Judge — 6 —