State v. Trujillo

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 36,043 5 ADRIAN TRUJILLO, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY 8 Louis P. McDonald, District Judge 9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 for Appellee 12 Bennett J. Baur, Chief Public Defender 13 Kathleen T. Baldridge, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 ZAMORA, Judge. 18 {1} Defendant appeals from the district court’s order revoking his probation, 19 committing him to the Department of Corrections, and unsatisfactorily discharging 1 him from probation. This Court issued a notice of proposed disposition in which we 2 proposed to affirm. Defendant has filed a memorandum in opposition, which we have 3 duly considered. Unpersuaded, we affirm. 4 {2} Defendant’s singular challenge on appeal is whether the State sufficiently 5 proved that he violated the conditions of his probation. [DS 2] In our calendar notice, 6 we recognized that in a probation revocation proceeding, the State bears the burden 7 of establishing a violation with reasonable certainty. [CN 2] See State v. Sanchez, 8 2001-NMCA-060, ¶ 11, 130 N.M. 602, 28 P.3d 1143. To satisfy this burden, the State 9 is required to introduce proof which would incline “a reasonable and impartial mind 10 to the belief that a defendant has violated the terms of probation.” State v. Martinez, 11 1989-NMCA-036, ¶ 4, 108 N.M. 604, 775 P.2d 1321. On appeal, this Court reviews 12 the decision to revoke probation for an abuse of discretion. See id. ¶ 5. “To establish 13 an abuse of discretion, it must appear the [district] court acted unfairly or arbitrarily, 14 or committed manifest error.” Id. 15 {3} Based on the facts as laid out in Defendant’s docketing statement, we proposed 16 to conclude in our calendar notice that the district court did not abuse its discretion in 17 finding that Defendant violated a standard condition of his probation—by failing to 18 get permission from his probation officer before changing his residence—and we 2 1 proposed to affirm the district court’s revocation of Defendant’s probation on that 2 basis. [CN 2-3] 3 {4} In response to this Court’s notice of proposed disposition, Defendant argues 4 that the evidence was insufficient to establish that his violation was willful. [MIO 3-5] 5 See In re Bruno R., 2003-NMCA-057, ¶ 13, 133 N.M. 566, 66 P.3d 339 (stating that 6 “if violation of probation is not willful, but resulted from factors beyond a 7 probationer’s control, probation may not be revoked”). We acknowledge that willful 8 conduct is a requisite. However, as we have previously stated, “[o]nce the state offers 9 proof of a breach of a material condition of probation, the defendant must come 10 forward with evidence [to show that his] non-compliance . . . was not willful.” State 11 v. Parsons, 1986-NMCA-027, ¶ 25, 104 N.M. 123, 717 P.2d 99. “[I]f defendant fails 12 to carry his burden, then the [district] court is within its discretion in revoking 13 [Defendant’s probation].” Martinez, 1989-NMCA-036, ¶ 8. 14 {5} In the present case, there is no indication that Defendant came forward with 15 evidence to show that his non-compliance—failure to get permission from his 16 probation officer before changing his residence—was somehow not willful, aside from 17 the bare assertion in his memorandum in opposition that he “maintains that his failure 18 . . . was not willful and should not form the basis of a probation revocation.” [MIO 4- 19 5] Even in light of his assertion, we are not convinced that Defendant carried his 3 1 burden, and we conclude that the district court was within its discretion in revoking 2 his probation. 3 {6} Accordingly, we affirm the revocation of Defendant’s probation. 4 {7} IT IS SO ORDERED. 5 6 M. MONICA ZAMORA, Judge 7 WE CONCUR: 8 9 JAMES J. WECHSLER, Judge 10 11 J. MILES HANISEE, Judge 4