State v. Lucero

• Court: New Mexico Court of Appeals
• Decided: January 6, 2022
• Status: Unpublished

Opinion

The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23- 112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: _____________

Filing Date: January 6, 2022

No. A-1-CA-38468

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

FRANK A. LUCERO,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY Dustin K. Hunter, District Judge

Hector H. Balderas, Attorney General Laurie Blevins, Assistant Attorney General Santa Fe, NM

for Appellee

Frank A. Lucero Roswell, NM

Pro Se Appellant

OPINION YOHALEM, Judge.

{1} Defendant Frank Lucero was charged with four misdemeanor traffic offenses

in magistrate court. After a jury trial where Defendant was convicted on all counts,

Defendant appealed to the district court for a trial de novo. Defendant was tried in

the district court and again convicted on all counts.

{2} Defendant claims, for the first time on appeal to this Court, that the magistrate

court lost subject matter jurisdiction when it denied him access to the names and

addresses of jurors and potential jurors before trial. We conclude that Defendant’s

claim does not implicate the subject matter jurisdiction of the magistrate court, and,

therefore, may not be raised for the first time on appeal to this Court.

{3} Defendant next seeks review of the district court’s denial of his pretrial

motions alleging reversible legal error by the magistrate court, and seeking remand

to the magistrate court for a new trial. Defendant contends that the district court erred

in reviewing the magistrate court proceedings under an abuse of discretion standard,

rather than conducting an independent review on a reconstructed record as

Defendant claims is required by our Supreme Court’s decision in City of Farmington

v. Piñon-Garcia, 2013-NMSC-046, 311 P. 3d 446. While we agree that Piñon-

Garcia requires review of certain magistrate court orders by hearing de novo, we

read Piñon-Garcia as limiting such review to orders of the magistrate court

dismissing or refusing to dismiss the charges, or imposing or refusing to impose sanctions, for violation of procedural protections or constitutional rights. See id.

¶¶ 2, 11, 13. Appellate review is otherwise by trial de novo. See id. ¶ 2. Defendant’s

pretrial motions, which claimed reversible legal error by the magistrate court and

sought remand to the magistrate court for a new trial, do not fall within Piñon-

Garcia’s limited exception, and the remedy sought by Defendant—remand for a new

trial in the magistrate court—is not a remedy available to the district court in an

appeal from magistrate court. Thus, Defendant’s only method of appeal from the

magistrate court rulings he challenges is by trial de novo in the district court, which

he received. We affirm Defendant’s convictions.

BACKGROUND

{4} Defendant was charged in the Chaves County magistrate court with one

misdemeanor traffic violation and three petty misdemeanor violations.1 Defendant

entered a plea of not guilty as to each charge and requested a jury trial.

{5} Two days before trial, Defendant requested copies of jury questionnaires from

the magistrate court clerk. The clerk informed Defendant that the magistrate court

required a copying fee, totaling $38.50, for copies of the jury questionnaires.

Defendant told the court clerk that he was indigent, and requested free copies. The

1 Driving while license suspended, NMSA 1978, § 66-5-39 (2013, amended 2019); no seat belts, NMSA 1978, § 66-7-372(A) (2001); no proof of insurance, NMSA 1978, § 66-5-229 (C)-(E) (1998, amended 2019); no registration, NMSA 1978, § 66-3-1(A) (2013, amended 2018). clerk informed Defendant that he would have to submit proof of indigency in order

to qualify for free copies. Defendant has not alleged that he was denied an

opportunity to review the questionnaires, only that he was denied free copies.

{6} The day before jury selection and trial, Defendant filed a completed “verified

application for free process (for indigency)” on a form provided by the magistrate

court, along with a motion to continue, asking to postpone his trial. The next

morning, with the jury panel already in the courtroom for jury selection, the

magistrate court orally denied Defendant’s motion to continue his trial. The case

then proceeded to jury selection and trial. Defendant, who appeared pro se, was

permitted to question the jury panel and participate in jury selection. Once the jury

was selected, Defendant was tried and convicted on all four counts.

{7} Defendant appealed his convictions to the Chaves County district court.

Defendant then filed a pretrial motion in district court requesting appellate review

of the magistrate court clerk’s refusal to provide him free copies of the jury

questionnaires and of the magistrate court’s denial of his motion to continue his trial.

Defendant also requested supplementation of the record on appeal in the district

court with copies of the jury questionnaires. Defendant claimed that he was entitled

to an independent review by the district court of the merits of the magistrate court’s

refusal to provide him free copies of jury questionnaires, and the ruling denying him

a trial continuance. He claimed error by the magistrate court in violation of NMSA 1978, Section 38-5-11(C) (2005) (addressing procedures for review of jury

questionnaires in the district court), as well as violation of his right to due process,

and sought reversal of his convictions, and remand to the magistrate court for retrial.

{8} The district court agreed to review Defendant’s pretrial motion to determine

if there was reversible error in the magistrate court. The district court conducted a

detailed review of the magistrate court proceedings, and heard argument on the

merits from both parties. With respect to the magistrate court clerk’s refusal to

provide free copies of the jury questionnaires, the district court concluded that,

although Section 38-5-11(C) requires that jury questionnaires be “made available for

inspection and copying by a party to a pending proceeding[,]” the magistrate court

correctly construed the statute to allow a fee to be assessed for copying, and to allow

the court to require compliance with its procedure for verifying indigency before

providing free copies. With respect to the magistrate court’s denial of Defendant’s

motion for a continuance of trial, the district court found that the magistrate court

“was well within its discretion” to deny the motion for a continuance.

{9} Having denied Defendant’s pretrial motion, the district court held a de novo

jury trial. Defendant was given free copies of the district court jury questionnaires

prior to voir dire. Defendant was again convicted on all four counts.

{10} On appeal to this Court, Defendant has not raised any claim of error in the de

novo trial leading to his conviction in the district court. He challenges only the district court’s denial of his pretrial motions for reversal and remand to the

magistrate court for retrial.

DISCUSSION

I. Defendant’s Claim That He Was Tried by an Anonymous Jury in the Magistrate Court Does Not Implicate Subject Matter Jurisdiction, and, Therefore, May Not Be Raised For the First Time on Appeal {11} We begin by addressing Defendant’s claim, raised for the first time on appeal

to this Court, that the magistrate court lost subject matter jurisdiction by proceeding

to trial with an “anonymous” jury. We do not agree with Defendant’s

characterization of the jury as “anonymous.” We understand Defendant’s claim as

simply a restatement of his claims that he was denied copies of the jury

questionnaires containing the jurors names and addresses prior to jury selection, and

was not able to supplement the record in the district court with the questionnaires

because they had been destroyed pursuant to court rule prior to his request. The

“question of whether a trial court has jurisdiction in a particular case is a question of

law that we review de novo.” Smith v. City of Santa Fe, 2007-NMSC-055, ¶ 10, 142

N.M. 786, 171 P.3d 300.

{12} Defendant is correct that an attack on subject matter jurisdiction may be made

at any time in the proceedings, even for the first time on appeal. See State ex rel.

Bevacqua-Young v. Steele, 2017-NMCA-081, ¶ 6, 406 P.3d 547. Further, a lack of

subject matter jurisdiction in the magistrate court would also remove jurisdiction from the district court. See State v. Lynch, 1971-NMCA-049, ¶ 7, 82 N.M. 532, 484

P.2d 374. We thus review jurisdiction as a threshold question. See Bevacqua-Young,

2017-NMCA-081, ¶ 6 (“The question of jurisdiction is a controlling consideration

that must be resolved before going further in a proceeding.” (internal quotation

marks and citation omitted)).

{13} “Subject matter jurisdiction is the power to adjudicate the general questions

involved in the claim.” Williams v. Rio Rancho Pub. Schs., 2008-NMCA-150, ¶ 10,

145 N.M. 214, 195 P.3d 879 (internal quotation marks and citation omitted).

Jurisdiction is controlled by the Constitution and the Legislature. See State v.

Smallwood, 2007-NMSC-005, ¶ 6, 141 N.M. 178, 152 P.3d 821 (stating that “our

Constitution or Legislature must vest us with . . . jurisdiction”).

{14} The source of a magistrate court’s jurisdiction is Article VI, Section 26 of the

New Mexico Constitution, and the statutes implementing that section. Article VI,

Section 26 provides, in relevant part: “The [L]egislature shall establish a magistrate

court to exercise limited original jurisdiction as may be provided by law.” The

Legislature has provided by statute that “[m]agistrates have jurisdiction in all cases

of misdemeanors and petty misdemeanors[.]” NMSA 1978, § 35-3-4(A) (1985).

{15} Because the motor vehicle offenses with which Defendant was charged are

misdemeanors and petty misdemeanors, the magistrate court had subject matter

jurisdiction. See id. A violation of a constitutional or statutory right in the proceedings before a court usually does not deprive that court of jurisdiction.

Instead, generally speaking, “[t]he only relevant inquiry in determining whether the

court has subject matter jurisdiction is to ask whether the matter before the court

falls within the general scope of authority conferred upon such court by the

constitution or statute.” State v. Chavarria, 2009-NMSC-020, ¶ 11, 146 N.M. 251,

208 P.3d 896 (alteration, internal quotation marks, and citation omitted). Defendant

has not identified any constitutional provision or statute granting the magistrate court

jurisdiction that was violated, ignored, or exceeded by that court. Defendant’s claim

of procedural violations does not implicate the magistrate court’s subject matter

jurisdiction. Because Defendant’s claim does not implicate subject matter

jurisdiction, it may not be raised for the first time on appeal, and we do not consider

it further.

II. With the Limited Exception Identified by Our Supreme Court in Piñon- Garcia, the District Court’s Appellate Review of Defendant’s Claims of Error in the Proceedings in Magistrate Court Is by Trial De Novo {16} We turn next to Defendant’s appeal from the district court’s denial of his

pretrial motions.2 Defendant filed pretrial motions in the district court claiming error

by the magistrate court in failing to provide him free copies of jury questionnaires

and in denying his motion for a continuance of trial to allow him more time to obtain

2 This discussion focuses on Issues 2 and 3 in Defendant’s brief. and review those questionnaires. For these errors, Defendant sought remand to the

magistrate court for a new trial.

{17} The parties disagree about whether the district court should have reviewed

Defendant’s claims that the magistrate court erred and, if so, the nature of that review

and the nature of the remedy, if error was identified. For the reasons that follow, we

conclude that Defendant was not entitled to review by hearing de novo in the district

court of his claims that the magistrate court committed reversible legal error;

appellate review was limited to a trial de novo, which he received.3 We affirm the

district court on this basis. See, e.g., State v. Gallegos, 2007-NMSC-007, ¶ 26, 141

N.M. 185, 152 P.3d 828 (holding that the appellate court will affirm the district

court’s decision if it is right for any reason, so long as it is not unfair to the appellant).

{18} “The right to appeal is . . . a matter of substantive law created by constitutional

or statutory provision.” State v. Armijo, 2016-NMSC-021, ¶ 19, 375 P.3d 415. We

review de novo the interpretation of constitutional and statutory provisions. Id. “The

proper interpretation of our [Supreme Court’s] Rules of Criminal Procedure is a

question of law that we review de novo[,]” as well. Allen v. LeMaster, 2012-NMSC-

001, ¶ 11, 267 P.3d 806.

3 We do not consider whether Defendant could have sought review of the claims of error he contends the magistrate court committed via extraordinary writ. See State v. Foster, 2003-NMCA-099, ¶ 10, 134 N.M. 224, 75 P.3d 824 (providing one possible course of redress for an aggrieved defendant is by petition for an extraordinary writ). {19} With few exceptions, appeals from a magistrate court to the district court are

by trial de novo. See, e.g., Piñon-Garcia, 2013-NMSC-046, ¶ 9 (“In a de novo

appeal, the general rule is that a district court conducts a new trial as if the trial in

the lower court had not occurred.”). Article VI, Section 27 (1966), the constitutional

provision in effect at the time this case was brought, 4 granted district courts

exclusive jurisdiction on appeal from decisions of inferior courts, including from

magistrate courts. Article VI, Section 27 provided that “in all such appeals, trial shall

be had de novo unless otherwise provided by law.” The statutory provisions enacted

by the Legislature adopted the jurisdictional requirements of Article VI, Section 27.

See NMSA 1978, § 35-13-2(A) (1996) (providing that “[a]ppeals from the

magistrate courts shall be tried de novo in the district court”). NMSA 1978, Section

39-3-1 (1955) provides that magistrate court proceedings, and other inferior court

proceedings not of record, “shall be tried anew in said courts on their merits, as if no

trial had been had below.” Rule 5-826(J) NMRA provides that “[t]rials upon appeals

from the magistrate . . . court to the district court shall be de novo.” These

constitutional, statutory, and rule provisions were in effect when this case was filed.5

4 References to N.M. Const. art. VI § 27 in this opinion are to the 2016 version applying the 1966 amendment (prior to the 2018 amendment), unless otherwise noted. 5 Article VI, Section 27, was amended by the voters in 2018 to remove from the Constitution both the requirements that appeals from inferior courts always be taken to the district court and that the appeal always be de novo. The amendments {20} Although recognizing that “[i]n a de novo appeal, the general rule is that a

district court conducts a new trial as if the trial in the lower court had not occurred[,]”

Piñon-Garcia, 2013-NMSC-046, ¶ 9, our Supreme Court, in Piñon-Garcia,

construed Article VI, Section 27 of the New Mexico Constitution along with the

statutes and rules implementing that constitutional provision, to require district

courts to consider and decide pretrial motions seeking appellate review of a decision

of an inferior court not of record in certain circumstances. The defendant in Piñon-

Garcia claimed that the municipal court (in a proceeding not of record) had correctly

dismissed his criminal complaint as a sanction for the failure of the city’s key witness

to appear for trial. Id. ¶ 5. The defendant sought review by pretrial motion in the

district court, claiming that there had been no abuse of discretion by the municipal

court in dismissing the criminal complaint and that the dismissal should be honored

by the district court. Id. ¶¶ 3, 5, 6. The city contended that the only review available

on appeal was a trial de novo and that it was entitled to try the defendant again

without regard to the dismissal in municipal court. Id. ¶ 7. The district court agreed

with the city, rejecting the defendant’s motion to dismiss. Id. ¶ 3. The city’s witness

appeared and testified at trial in the district court, and the defendant was convicted.

Id. ¶ 6.

give the Legislature flexibility to modify these requirements by statute. There has been no change in the statutes and rules governing appeals from magistrate courts, and, therefore, no change in the relevant jurisdictional requirements. {21} Our Supreme Court reversed, concluding that the district court must review,

by hearing de novo, the defendant’s pretrial motion seeking affirmance of the

municipal court’s dismissal. Id. ¶¶ 1, 12. Such review, the Court discussed, was

essential to protect the inferior courts’ authority to grant relief “when constitutional

safeguards and procedural rules, such as speedy trial, double jeopardy, or discovery

rules, are violated.” Id. ¶ 2. Piñon-Garcia construes the voters’ purpose in adopting

Article VI, Section 27 as both to provide for a new trial on appeal when inferior

court proceedings are not conducted on the record, and also to “give true meaning

to the power vested in [inferior] courts to enforce our procedural rules and the

protections of the United States and New Mexico Constitutions.” Piñon-Garcia,

2013-NMSC-046, ¶ 13. Our Supreme Court observed that if the government is

“guaranteed a new trial on appeal, regardless of its violation of procedural rules or

violations of the United States or New Mexico Constitutions,” the orders of an

inferior court enforcing those rules would be meaningless. Id. The Court held that

reading the requirement for a trial de novo in the district court to allow the

government to ignore the orders of an inferior court with impunity is an absurd

interpretation of the intent of the voters and the Legislature. Id. Where the inferior

court penalizes the government for speedy trial violations, discovery violations, or

double jeopardy violations with dismissal of the charges, the government is not

entitled to a trial de novo if the inferior court’s dismissal is well-founded. {22} We read Piñon-Garcia’s exception to the general rule of trial de novo—

permitting instead appellate review by hearing de novo—as limited to those pretrial

motions seeking review of orders of the magistrate court dismissing or refusing to

dismiss the charges, or imposing or refusing to impose sanctions, for violation of

procedural protections or constitutional rights.6 See id. ¶¶ 2, 11, 13. Extensive New

Mexico precedent, including cases decided by this Court prior to Piñon-Garcia, and

cited with approval in Piñon-Garcia, and cases decided since Piñon-Garcia,

uniformly require the district court to consider and decide pretrial motions by de

novo review, which require the district court to determine whether the inferior court

properly dismissed the charges or properly excluded evidence as a sanction. See,

e.g., State v. Sharp, 2012-NMCA-042, 276 P.3d 969 (reviewing the magistrate

court’s dismissal for the state’s violation of the six-month rule); State v. Gallegos,

2007-NMCA-112, 142 N.M. 447, 166 P.3d 1101 (reviewing the validity of the

defendant’s no contest plea in magistrate court, to determine if the appeal should be

dismissed); State v. Foster, 2003-NMCA-099, 134 N.M. 224, 75 P.3d 824

6 There, of course, is another category of pretrial motions that are subject to review by hearing de novo in the district court—i.e., rulings by inferior courts suppressing evidence for search and seizure violations. See State v. Heinsen, 2005- NMSC-035, 138 N.M. 441, 121 P.3d 1040 (allowing the state to dismiss the complaint in magistrate court and refile in district court to obtain review of a magistrate court ruling suppressing evidence). Defendant, in this case, does not raise any claims related to a ruling suppressing evidence by the magistrate court. We, therefore, do not consider this exception to the general rule of trial de novo further in this opinion. (reviewing the defendant’s claim that his trial in the magistrate court violated double

jeopardy, requiring dismissal of the charges); State v. Hicks, 1986-NMCA-129, 105

N.M. 286, 731 P.2d 982 (reviewing the magistrate court’s decision that the state’s

late filing of the criminal complaint was not jurisdictional error, requiring dismissal

of the charges); State v. Baca, 2015-NMSC-021, 352 P.3d 1151 (reviewing whether

the defendant had been acquitted in the magistrate court, requiring dismissal of the

charges, and precluding a trial de novo in the district court); State v. Vanderdussen,

2018 NMCA-041, 420 P.3d 609 (reviewing a magistrate court’s declaration of a

mistrial to determine if a trial de novo was barred on double jeopardy grounds); State

v. Verrett, 2019-NMCA-010, 458 P.3d 529 (reviewing a magistrate court’s order

excluding evidence as a sanction against the state for a discovery violation). In all

but one of these cases, the pretrial motion determined whether the case would be

dismissed, without a trial de novo. In Verrett, the pretrial motion determined whether

evidence would be excluded in the trial de novo. Id. ¶ 3.

{23} In contrast, Defendant’s pretrial motion sought review of what Defendant

claimed was reversible legal error in the magistrate court. Defendant sought remand

to the magistrate court for a new trial, the remedy available in traditional on the

record appeals where reversible legal error is identified by the appellate court. See

Foster, 2003-NMCA-099, ¶ 9 (providing that when “the district court acts as a

typical appellate court[,]” the court “review[s] the record of the lower court’s trial for legal error”); Lockhart v. Nelson, 488 U.S. 33, 38 (1988) (providing that retrial

is permitted after a conviction has been set aside on direct appeal for a defect

constituting reversible error).

{24} Defendant did not allege that any violation of his constitutional rights by the

State required dismissal of the charges against him or that sanctions imposed by the

magistrate court should apply in his trial de novo. Defendant sought remand for a

new trial in the magistrate court (and continues to seek that remedy on appeal to this

Court), but fails to point to any authority permitting this type of review and remedy

in this context. See, e.g., Curry v. Great Nw. Ins. Co., 2014-NMCA-031, ¶ 28, 320

P.3d 482 (“Where a party cites no authority to support an argument, we may assume

no such authority exists.”). Nor are we aware of any.

{25} Indeed, there is authority prohibiting such a remand. See State v. Begay, 2010-

NMCA-089, ¶ 14, 148 N.M. 685, 241 P.3d 1125 (holding that when a defendant is

entitled to a de novo hearing in district court “then the order remanding for a new

hearing [in magistrate court] is in error”). Although there are rules of procedure that

allow transfer of cases between district court and magistrate court, the circumstances

when this is allowed are strictly limited. See State v. Ahasteen, 1998-NMCA-158,

¶ 16, 126 N.M. 238, 968 P.2d 328 (“Transfers of jurisdiction from one court to

another . . . are provided for by the rules of criminal procedure for each court.”),

abrogated on other grounds by State v. Savedra, 2010-NMSC-025, 148 N.M. 301, 236 P.3d 20. For example, the district court can remand to the magistrate court for a

finding of probable cause to prosecute, see Rule 5-302(E) NMRA, or remand to

enforce or vacate a judgment following the completion of an appeal by trial de novo

in the district court, see Rule 5-826(L). Transfer from magistrate court to district

court is permitted for the district court to make a competency determination. See

Rule 6-507.1(G) NMRA. After such determination, the district court then remands

back to the magistrate court. See Rule 6-507.1(H). No rule, however, permits the

district court to remand or otherwise transfer jurisdiction back to the magistrate court

for a retrial. Further, as this Court has previously explained, a defendant “has no

right to be tried in magistrate court rather than in district court” and a district court’s

remand to a magistrate court for trial amounted to “refusing to exercise jurisdiction.”

Ahasteen, 1998-NMCA-158, ¶¶ 27, 29.

{26} The district court’s review in an appeal from the magistrate court is not for

legal error, see Foster, 2003-NMCA-099, ¶ 9; instead, as our Supreme Court

recently stated, “[A]n appeal to the district court begins the trial process anew[.]”

State v. Cruz, 2021-NMSC-015, ¶ 48, 486 P.3d 1. We, therefore, conclude that

Defendant’s pretrial motion, seeking review of legal errors committed by the

magistrate court and remand for a new trial in magistrate court, can only be remedied

by a trial de novo in the district court.

CONCLUSION {27} For the foregoing reasons, Defendant’s claims of error relating to the district

court’s review of the magistrate court rulings are without merit. Further, because

Defendant has raised no claim of error relating to his district court trial de novo, we

affirm his convictions.

{28} IT IS SO ORDERED.

__________________________________ JANE B. YOHALEM, Judge

WE CONCUR:

_________________________________ JENNIFER L. ATTREP, Judge

_________________________________ SHAMMARA H. HENDERSON, Judge