State v. Brito

• Court: New Mexico Court of Appeals
• Decided: May 5, 2011
• Docket: 30,718
• Status: Unpublished

Opinion

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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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