1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
4 errors or other deviations from the official paper version filed by the Court of Appeals and does
5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 30,718
10 STEPHANIE BRITO,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Stan Whitaker, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 for Appellee
17 Jacqueline L. Cooper, Acting Chief Public Defender
18 J.K. Theodosia Johnson, Assistant Appellate Defender
19 Santa Fe, NM
20 for Appellant
21 MEMORANDUM OPINION
22 KENNEDY, Judge.
1 Stephanie Brito (Defendant) appeals from the judgment and sentence,
2 convicting her of possession of a stolen credit card and two counts of fraudulent use
3 of a credit card less than $250 in any six-month period. [RP 197-201] This Court has
4 issued two calendar notices proposing summary affirmance. [Ct. App. File, CN1,
5 CN2] Defendant’s second memorandum in opposition continues to contend that her
6 double jeopardy rights were violated and relies on her first memorandum with regard
7 to her contentions on all other issues. [MIO1, MIO2] We have duly considered
8 Defendant’s first and second memoranda. Unpersuaded, however, we affirm
9 Defendant’s convictions.
10 I. DISCUSSION
11 A. Double Jeopardy
12 In her second memorandum, Defendant continues to argue that her conviction
13 for two counts of fraudulent use of a credit card less than $250 in any six-month
14 period violates double jeopardy. [MIO2 1-5] Defendant contends that this Court
15 erred in relying on State v. Salazar, 98 N.M. 70, 71, 644 P.2d 1059, 1060 (Ct. App.
16 1982) because that case interpreted the statute prior to its amendment in 2006, and it
17 relied on a different crime, fraudulent signing of credit cards. [MIO 2 1] We are not
18 persuaded.
2
1 As we discussed in the second calendar notice, we generally apply a de novo
2 standard of review to the constitutional question of whether there has been a double
3 jeopardy violation. State v. Andazola, 2003-NMCA-146, ¶ 14, 134 N.M. 710, 82 P.3d
4 77. However, where factual issues are intertwined with the double jeopardy analysis,
5 the trial court’s fact determinations are subject to a deferential substantial evidence
6 standard of review. State v. Rodriguez, 2006-NMSC-018, ¶ 3, 139 N.M. 450, 134
7 P.3d 737.
8 Defendant analyzes this issue as a “unit of prosecution” double jeopardy
9 question. [MIO 5] For “unit of prosecution” cases, “[t]he relevant inquiry is whether
10 the [L]egislature intended punishment for the entire course of conduct or for each
11 discrete act.” Swafford v. State, 112 N.M. 3, 8, 810 P.2d 1223, 1228 (1991). To
12 address legislative intent, for the first step “[i[f the statutory language spells out the
13 unit of prosecution, then we follow the language, and the unit of prosecution inquiry
14 is complete. State v. Bernal, 2006-NMSC-050, ¶ 14, 140 N.M. 644, 146 P.3d 289.
15 “If the language is not clear, then we move to the second step, in which we determine
16 whether a defendant’s acts are separated by sufficient ‘indicia of distinctiveness’ to
17 justify multiple punishments under the same statute.” Id. ¶ 14.
18 Defendant contends the language of the statute clearly sets out the entire course
19 of conduct as the unit of prosecution rather than each discrete act. [MIO 6] She
3
1 argues that since she used the credit card twice in one day, she is entitled to have one
2 of her two convictions for the fraudulent use of a credit card be vacated. [Id.] We
3 disagree.
4 In Salazar, we stated that “each use of another’s credit card is punishable as a
5 separate offense.” 98 N.M. at 71, 644 P.2d at 1060. As Defendant notes, in Salazar,
6 we were construing NMSA 1978, Section 30-16-33(A) holding that each use was
7 punishable because “[t]he preceding statute, [NMSA 1978, Section 30-16-32],
8 punishes each fraudulent signature[,]” and “[t]his indicates that the Legislature
9 intended to punish each use of a credit card.” Salazar, 98 N.M. at 71, 644 P.2d at
10 1060. We believe that this language in Salazar remains viable despite the recent
11 amendment to Section 30-16-33(B). Indeed, the recent amendments to that section
12 bring it in line with our statement about legislative intent in Salazar.
13 Prior to its amendment in 2006, Section 30-16-33(B) stated as follows:
14 If the value of all things of value obtained by any person from one
15 or more merchants, an issuer or a participating party, in violation of this
16 section, exceeds three hundred dollars ($300) in any consecutive six[-
17 ]month[] period, then the offense of the violator is a third[-]degree
18 felony.
19 Salazar, 98 N.M. at 70, 644 P.2d at 1059 (emphasis added) (internal quotation marks
20 and citation omitted). The defendant in Salazar argued that he was unfairly exposed
21 to a greater sentence under Section 30-16-33(A) than he could receive if he had
4
1 charged more items and been convicted under Section 30-16-33(B) as it stated at that
2 time. Salazar, 98 N.M. at 70, 644 P.2d at 1059. Section 30-16-33(B) was
3 substantially amended in 2006. Section 30-16-33(B) now states:
4 Whoever commits fraudulent use of a credit card when the value
5 of the property or service obtained is two hundred fifty dollars ($250) or
6 less in any consecutive six-month period is guilty of a petty
7 misdemeanor.
8 The prior language of Section 30-16-33(B) aggregated fraudulent credit card usage
9 was that “[i]f the value of all things of value obtained by any person from one or more
10 merchants . . . exceeds three hundred dollars ($300) in any consecutive six[-]month[]
11 period,” one penalty applies. In 2006, this language was deleted. The new language
12 refers to “the property or service” in the singular, meaning each fraudulent use under
13 $250 in any consecutive six-month period is a crime. Id. This is also in keeping with
14 Salazar’s holding with regard to Section 30-16-33(A) that “each use of another’s
15 credit card is punishable as a separate offense.” 98 N.M. at 71, 644 P.2d at 1060.
16 Here, Defendant used the credit card twice in one day, each time to purchase
17 property or services less than $250. [MIO 6] We hold that Defendant was
18 appropriately charged and convicted of two counts of fraudulent use of a credit card.
19 B. Other Issues on Appeal
5
1 Defendant’s second memorandum does not point out errors in the facts or legal
2 authority relied upon by this Court in the second calendar notice with regard to the
3 other issues raised on appeal.
6
1 III. CONCLUSION
2 We affirm the district court on these issues for the reasons set forth in the
3 second calendar notice.
4 IT IS SO ORDERED.
5 _______________________________
6 RODERICK T. KENNEDY, Judge
7 WE CONCUR:
8 ___________________________
9 JAMES J. WECHSLER, Judge
10 ___________________________
11 TIMOTHY L. GARCIA, Judge
7