State v. A Misquez

Opinion

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. 29,098 5 ADAM MISQUEZ, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 8 Jerry H. Ritter, Jr., District Judge

9 Gary K. King, Attorney General, 10 Santa Fe, NM

11 for Appellee

12 The Rose Law Firm, P.C. 13 Timothy L. Rose 14 Ruidoso, NM

15 for Appellant

16 MEMORANDUM OPINION 17 KENNEDY, Judge. 18 Defendant appeals his convictions for aggravated fleeing a law enforcement 19 officer, concealing identity, and speeding. [RP 311 (vol. 2)] We proposed to affirm

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1 in a notice of proposed summary disposition, and Defendant has filed a timely 2 memorandum in opposition. Remaining unpersuaded by Defendant’s memorandum, 3 we affirm his convictions. 4 Plea Agreement 5 Defendant claims that the district court erred in refusing to enforce the 6 unwritten plea agreement that he allegedly entered with the prosecution. [MIO 2-5; 7 DS unnumbered page 4] In his docketing statement, Defendant contends that as part 8 of the agreement, the State agreed not to file a supplemental criminal information and 9 agreed to a probated sentence. [DS 2] In exchange, Defendant agreed to provide the 10 State with information relating to another pending criminal investigation. [DS 2] He 11 claims that after the State accepted the agreement, Defendant voluntarily cooperated 12 by providing information and insight into the other pending investigation. [DS 2, 4] 13 In general, a defendant is not entitled to enforcement of a plea agreement until 14 it is approved by the district court. See State v. Mares, 118 N.M. 217, 220, 880 P.2d 15 314, 317 (holding that due process requires enforcement of a plea agreement once it 16 is approved by the district court), rev'd on other grounds, 119 N.M. 48, 888 P.2d 930 17 (1994); cf. State v. Willis, 1997-NMSC-014, ¶¶ 12-13, 123 N.M. 55, 933 P.2d 854 18 (observing that “neither party should rely on a bargain not specifically approved by 19 the trial court”); Rule 5-304(B) NMRA (providing that, after the parties reach a plea

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1 agreement and the agreement has been reduced to writing, it must be disclosed in open 2 court and the trial court “may accept or reject the agreement, or may defer its decision 3 as to acceptance or rejection until there has been an opportunity to consider the 4 presentence report”). Moreover, a defendant is only entitled to enforce a plea 5 agreement if he can show that he relied on the agreement to his detriment; otherwise, 6 the State’s breach of the agreement only requires that the defendant be returned to his 7 original position by withdrawing the plea. See State v. Bourland, 116 N.M. 349, 8 350-51, 862 P.2d 457, 458-59 (Ct. App. 1993) (observing that “Defendants not 9 detrimentally relying on a plea bargain can be returned to their original position by 10 withdrawing their plea” and thus holding that, absent evidence of detrimental reliance 11 by the defendant or a showing that the prosecutor sought to take advantage, a 12 defendant is not prejudiced by the prosecutor’s decision to withdraw a plea and thus 13 force a defendant to go to trial). 14 In our notice of proposed summary disposition, we proposed to agree with the 15 district court that in this case any plea agreement need not be enforced because 16 Defendant failed to meet his burden of proving that he was prejudiced, that he relied 17 on any promise to his detriment, or that he performed any acts in furtherance of the 18 unwritten plea agreement. [RP 183] See id. at 350, 862 P.2d at 458 (allowing the 19 prosecutor to withdraw a plea offer after the defendant had accepted it because there

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1 was no evidence that the defendant detrimentally relied upon the offer). As discussed 2 more fully in our notice of proposed summary disposition, the record does not support 3 Defendant’s contentions that he provided agents with information in furtherance of 4 any plea agreement nor does it support his contention that his alleged performance of 5 the agreement placed his family in danger. [MIO 4-5; DS 2-3] There was evidence 6 in the record from which the district court could conclude that Defendant gave the 7 information to the agents before the parties allegedly agreed to the plea. [RP 189-190, 8 196] Moreover, there was evidence showing that Defendant only gave information 9 to agents about gang members after those members threatened Defendant and 10 threatened his family by coming to his house. [RP 187-190] 11 As to lack of demonstrated reliance, Defendant admits that investigators told 12 him they had no authority to offer a deal without the prosecutor’s approval. [MIO 3; 13 RP 176, 190] Despite this admission, Defendant claims that the agents never gave the 14 impression that they would be unable to gain the needed approval. [MIO 3] He then 15 argues that he gave them the information based on their apparent authority to broker 16 a deal. [MIO 3-4] We disagree that this apparent authority is sufficient to warrant 17 enforcement of the plea given the agent’s express statement of lack of authority and 18 given the evidence showing that Defendant supplied the information before any 19 alleged deal was made. [RP 187-190, 196] In addition, Defendant has failed to cite

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1 to any cases supporting his contention that a prosecutor should be required to conform 2 to an agreement merely because a defendant was under the impression the prosecution 3 would agree even though agents told the defendant that they could not guarantee the 4 prosecutor’s approval. Cf. In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 5 1330 (1984) (stating that an appellate court will not consider an issue if no authority 6 is cited in support of the issue). 7 Finally, in our notice, we observed that it did not appear that the State agreed 8 with Defendant’s request to postpone his jury trial in light of the alleged agreement. 9 [DS 2-3] Defendant disputes this observation contending that the parties agreed to the 10 postponement and jointly requested a change of plea hearing. [MIO 2] Although this 11 may be true, we are unpersuaded that this requires enforcement of the plea given that 12 Defendant did not perform any significant acts in furtherance of the plea. To the 13 extent Defendant argues that this continuance constitutes detrimental reliance 14 requiring enforcement of the plea, we disagree. Defendant claims that this 15 continuance was detrimental because it is the only time he agreed to a continuance 16 when he was incarcerated. [MIO 3] However, that contention is belied by the record 17 which indicates he was incarcerated at the time of some of his other motions to 18 continue. [RP 61, 108] 19 Given the district court’s findings of lack of prejudice or reliance which are

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1 supported by the evidence showing that Defendant gave the information before he 2 talked to agents, Defendant was threatened before he gave the information, and the 3 investigating agents told Defendant that they were not authorized to make an 4 agreement, we affirm on this issue. 5 Aggravated Fleeing 6 The jury was instructed that to convict Defendant of aggravated fleeing a law 7 enforcement officer, it had to find that Defendant wilfully and carelessly drove his 8 vehicle in a manner that endangered the life of another person after being given a 9 visual or audible signal to stop by a uniformed law enforcement officer in an 10 appropriately marked law enforcement vehicle in pursuit. [RP 211] NMSA 1978, § 11 30-22-1.1 (2003). Defendant claims that the district court erred by failing to require 12 the State to prove that an actual person’s life was endangered by Defendant’s actions 13 in order to convict Defendant of aggravated fleeing. [MIO 5-6; DS 7-8] 14 As discussed at greater length in our notice of proposed summary disposition, 15 evidence showed that Defendant attempted to evade the officers by driving away and 16 that officers gave chase. [DS 2] Defendant does not dispute our observation that 17 there was testimony that: Defendant did not come to a complete stop at the stop signs 18 as he traveled through a residential area, sparks were seen under Defendant’s vehicle 19 as he went through stop signs, and Defendant was driving in the wrong lane at some

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1 point. [RP 262, 264; MIO 5-6] Furthermore, he does not dispute that testimony at 2 trial suggested that people were in the general area where Defendant drove because 3 a group of people pointed officers in the direction that Defendant went. [RP 262; 4 MIO 5-6] 5 Defendant contends that this evidence is insufficient to support the conviction 6 for aggravated fleeing because the State was required to prove that Defendant wilfully 7 endangered the life of another by driving carelessly and that an actual person’s life 8 was in fact endangered. [MIO 5-6; DS 3, 8] He argues that the lack of pedestrians or 9 occupied vehicles in the vicinity of Defendant’s vehicle during the chase precluded 10 the conviction for aggravated fleeing. [MIO 6; DS 3] We disagree because even if 11 no actual person was placed in danger, Defendant could be convicted of aggravated 12 fleeing on the evidence showing that he was in a residential area and that other people 13 could have been walking in the street or driving. Cf. State v. Padilla, 14 2008-NMSC-006, ¶ 17, 143 N.M. 310, 176 P.3d 299 (stating that “Defendant's 15 criminal liability arises from his knowledge that he was fleeing from a law 16 enforcement officer, and his reckless conduct during the ensuing pursuit”); State v. 17 Platter, 66 N.M. 273, 276, 347 P.2d 166 (1959) (holding that there was sufficient 18 evidence to support a conviction for reckless driving based on evidence that the 19 defendant turned left on a sharp curve on the wrong side of the road and then

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1 wandered back and forth “across an ordinarily heavily traveled highway approaching 2 another sharp curve in such a manner as to likely endanger the safety and lives of 3 persons who might be on the highway” (emphasis added)). 4 Defendant further contends that allowing a conviction in the absence of any 5 proof that someone was actually endangered would allow a conviction when a 6 defendant was merely driving in a careless manner, thus rendering the statutory 7 language “endanger[ing] the life of another” meaningless. [MIO 6] We again 8 disagree because Defendant’s actions in intentionally running stop signs and driving 9 in the wrong lane in an attempt to elude the officers present a reasonable probability 10 that someone’s life could be endangered even if there is no identifiable person that 11 was at risk. Cf. Padilla, 2008-NMSC-006, ¶ 14 (construing misdemeanor fleeing, as 12 opposed to aggravated fleeing, as “[w]hen a person resists, evades, or obstructs an 13 officer by fleeing without willful and careless driving”); State v. Richerson, 87 N.M. 14 437, 443, 535 P.2d 644, 650 (Ct. App. 1975) (holding that there was sufficient 15 evidence that the defendant committed reckless driving, not mere negligence, based 16 upon the defendant’s actions of driving 70 mph in a 25-35 mph zone in a residential 17 neighborhood, and on the wrong side of the highway). 18 We also disagree with Defendant’s contention that the aggravated fleeing 19 statute is intended to apply only to high speed chases. [MIO 6; DS 9] The crime is

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1 defined as fleeing from an officer by driving in a careless manner that endangers the 2 life of another; there is nothing in the statute indicating that it only applies to high 3 speed chases, and we decline to hold that any such limit should be included by 4 implication. See § 30-22-1.1; State v. McWhorter, 2005-NMCA-133, ¶ 5, 138 N.M. 5 580, 124 P.3d 215 (noting that we will give effect to the language of a statute that is 6 clear and unambiguous and refrain from further statutory interpretation); cf. Padilla, 7 2008-NMSC-006, ¶¶ 14-15 (stating that the elements of aggravated fleeing are met 8 when a person knows that an officer is trying to stop him and “the person flees in a 9 manner that endangers the lives of others”). 10 In sum, the evidence shows that Defendant ran through stop signs and drove 11 in the wrong lane while traveling in a residential area and attempting to flee from 12 officers. [RP 262, 264] We are of the opinion that this is sufficient to convict 13 Defendant of aggravated fleeing. Cf. Padilla, 2008-NMSC-006, ¶ 17. 14 Speeding 15 Defendant challenges the sufficiency of the evidence to support his conviction 16 for speeding. [MIO 7; DS 9-10] A sufficiency of the evidence review requires us to 17 view the evidence in the light most favorable to the State, resolving all conflicts 18 therein and indulging all permissible inferences therefrom in favor of the verdict. 19 State v. Romero, 111 N.M. 99, 101, 801 P.2d 681, 683 (Ct. App. 1990).

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1 The evidence shows that the officer saw Defendant’s vehicle traveling at a rate 2 that appeared to exceed the speed limit. [DS 9] The officer pushed a button on his 3 radar unit, and the machine read that Defendant was driving at 40 mph. [RP 261; DS 4 9] There was testimony that the speed limit was 30 mph. [RP 261] 5 Defendant claims that this evidence is insufficient to convict him of speeding 6 because there was no testimony as to the calibration or reliability of the radar machine. 7 [MIO 7; DS 10] In the absence of this testimony, he claims that the State failed to 8 prove that Defendant was speeding beyond a reasonable doubt. [MIO 7; DS 10] We 9 disagree. 10 In our notice of proposed summary disposition, we proposed to reject 11 Defendant’s challenge based on the State’s failure to prove the reliability of the radar 12 machine because it did not appear that Defendant adequately preserved this issue by 13 objecting to the testimony regarding the use of radar. [RP 261-262] See Rule 12- 14 216(A) NMRA; State v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280 15 (stating that to preserve an issue for appeal, the defendant must make a timely 16 objection that specifically informs the trial court of the nature of the claimed error and 17 invokes an intelligent ruling thereon). Defendant concedes that he failed to object to 18 the radar evidence. [MIO 7] However, he claims that the evidence was still 19 insufficient because the accuracy of the radar reading was only as accurate as the

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1 machine itself. [MIO 7] We are unpersuaded. 2 Defendant admits that he made no objection when the officer testified that he 3 was driving at an excessive rate of speed and that the radar clocked him as going 40 4 mph. [RP 261; MIO 7] Therefore, Defendant failed to preserve his challenge that the 5 radar readings were unreliable because the trial court did not have an opportunity to 6 rule on Defendant’s contention and the prosecution did not have an opportunity to 7 explain why the radar results were indeed reliable. See State v. Onsurez, 8 2002-NMCA-082, ¶ 14, 132 N.M. 485, 51 P.3d 528 (stating that “[w]e do not reach 9 issues on which the [trial] court had insufficient opportunity to rule”); cf. State v. 10 Granillo-Macias, 2008-NMCA-021, ¶ 11, 143 N.M. 455, 176 P.3d 1187 (holding that 11 the defendant’s general objection as to relevancy and admissibility of the officer’s 12 testimony regarding field sobriety tests was insufficient to alert the trial court to the 13 argument on appeal regarding deficiencies in the administration and interpretation of 14 those tests and thus rejecting the defendant’s challenge for lack of preservation). 15 Therefore, we conclude that there was sufficient evidence to support Defendant’s 16 conviction for speeding. 17 CONCLUSION 18 For the foregoing reasons as well as those set forth in our notice of proposed 19 disposition, we affirm Defendant’s convictions.

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1 IT IS SO ORDERED.

2 ___________________________________ 3 RODERICK T. KENNEDY, Judge

4 WE CONCUR:

5 ___________________________ 6 JAMES J. WECHSLER, Judge

7 ___________________________ 8 LINDA M. VANZI, Judge