State v. Salinas

Opinion

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Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. A-1-CA-35689

5 ARACELIA SALINAS, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 8 Mark T. Sanchez, District Judge

9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 Maha Khoury, Assistant Attorney General 12 Santa Fe, NM

13 for Appellee

14 Templeman and Crutchfield 15 C. Barry Crutchfield 16 Lovington, NM

17 for Appellant 18 MEMORANDUM OPINION 19 HANISEE, Judge.

1 {1} In December 2014 Defendant Aracelia Salinas pleaded guilty to one count of 2 distribution of marijuana or synthetic cannabinoids in violation of NMSA 1978, 3 Section 30-31-22(A)(1)(a) (2011), a fourth degree felony. After sentencing Defendant 4 to the maximum period of incarceration, the district court suspended Defendant’s 5 sentence and placed her on supervised probation. While Defendant was still on 6 probation, the State filed a petition to revoke Defendant’s probation based on an 7 alleged violation of the terms and conditions of her probation. Following a probation 8 revocation hearing, the district court found that Defendant had violated her conditions 9 of probation, revoked probation, and sentenced Defendant to the remainder of her 10 sentence plus one additional one year of incarceration as a habitual offender. 11 Defendant appeals from that decision, arguing that the district court abused its 12 discretion in finding that Defendant had violated the terms and conditions of her 13 probation. We affirm. 14 {2} Because this is a memorandum opinion and the parties are familiar with the 15 facts of this case, we reserve discussion of facts where pertinent to our analysis. 16 DISCUSSION 17 Standard of Review 18 {3} “We review a district court’s decision to revoke probation under an abuse of 19 discretion standard. To establish an abuse of discretion, it must appear [that] the

3

1 district court acted unfairly or arbitrarily, or committed manifest error.” State v. 2 Green, 2015-NMCA-007, ¶ 22, 341 P.3d 10 (alterations, internal quotation marks, and 3 citation omitted). In a probation revocation proceeding, the state bears the burden of 4 proving a probation violation “with a reasonable certainty,” meaning “such that a 5 reasonable and impartial mind would believe that the defendant violated the terms of 6 probation.” Id. “Proof of a probation violation need not be established beyond a 7 reasonable doubt.” Id. In reviewing a challenge to the sufficiency of the evidence 8 supporting revocation, we “view[] the evidence in a light most favorable to the [s]tate 9 and indulg[e] all reasonable inferences in favor of the [district] court’s judgment.” 10 State v. Erickson K., 2002-NMCA-058, ¶ 21, 132 N.M. 258, 46 P.3d 1258. 11 The Alleged Probation Violation and Proof Thereof 12 {4} The State petitioned to revoke Defendant’s probation based on a report of 13 probation violation by Defendant’s probation officer, Christopher Betsch, containing 14 an allegation that Defendant violated the special condition of probation prohibiting her 15 from possessing “synthetic cannabinoids or counterfeit synthetic cannabinoids.” 16 Betsch’s report explained that on January 8 and 19, 2016, the Lea County Drug Task 17 Force conducted an undercover investigation at Defendant’s place of business, 18 Smokers Outlet, and that on those dates, Defendant “was in possession of and

4

1 distributed counterfeit synthetic cannabinoids and rolling papers to an undercover 2 agent.” 3 {5} At Defendant’s probation revocation hearing, the undercover agent involved 4 testified that he purchased from Defendant four two-gram bags of “Dr. Feelgood 5 potpourri” and rolling papers for $122.50 on January 8, 2016, and two five-gram bags 6 of “Dr. Feelgood potpourri” and rolling papers for $131.07 on January 19, 2016. 7 Defendant’s prior probation officer, Yadira Serrano, testified regarding the 8 explanations she provided to Defendant at the time Defendant started her probation 9 about the specific types of substances Defendant was prohibited from possessing 10 under the terms and conditions of her probation. Finally, Samuel Titone, a forensic 11 analyst in drug identification with the New Mexico Department of Public Safety 12 Forensic Laboratory, provided expert testimony regarding the chemical composition 13 of the substance he extracted from the material contained in the “Dr. Feelgood 14 potpourri” bags, which he identified as “5-fluoro-ADB.” Specifically, Titone testified 15 that 5-fluoro-ADB has one of the known basic structures—known as an indozole—of 16 a synthetic cannabinoid and that he would consider 5-fluoro-ADB to be a synthetic 17 cannabinoid Based on the evidence presented at the hearing, the district court 18 concluded that Defendant had violated the special condition of her probation,

5

1 prohibiting her from possessing synthetic cannabinoids or counterfeit synthetic 2 cannabinoids. 3 {6} On appeal, Defendant does not dispute that she sold the identified substances 4 to the undercover agent, and therefore possessed “Dr. Feelgood potpourri” as alleged 5 in the revocation petition. She argues only that the State failed to meet its burden with 6 respect to proving (a) that “the substance involved was a synthetic cannabinoid[,]” and 7 (b) that Defendant “had any knowledge [that] the contents of the items sold . . . 8 contain[ed] any improper substance.” Ignoring that the State sought revocation based 9 not on an alleged violation of generally applicable law but on the special condition 10 against possession of “synthetic cannabinoids or counterfeit sfynthetic cannabinoids,” 11 Defendant focuses on the State’s stipulation that the “Dr. Feelgood potpourri” 12 contained no substance listed in the Controlled Substances Act (CSA), NMSA 1978, 13 §§ 30-31-1 to -41 (1972, as amended through 2015), as somehow establishing that the 14 State failed to meet its burden of proof required to establish a probation violation. 15 Specifically, Defendant argues that 5-fluoro-ADB was not one of the chemical 16 compounds listed in either Section 30-31-6(C)(19) (identifying specific chemical 17 designations of substances considered to be “synthetic cannabinoids”), or 18 16.19.20.65(C)(35) NMAC (supplementing the list of chemical compounds deemed

6

1 “synthetic cannabinoids”), at the time of Defendant’s alleged probation violation,1 2 meaning that Defendant was not on notice that possessing or distributing a substance 3 containing the chemical compound 5-fluoro-ADB was “unlawful.” In other words, 4 Defendant contends that in the absence of the State proving that she (1) possessed a 5 controlled substance—to wit, a “synthetic cannabinoid” as expressly identified in the 6 CSA—and (2) knew that she possessed a controlled substance, the State could not 7 establish that she violated a condition of probation. Defendant is wrong. 8 {7} Defendant fails to both appreciate the distinguishable nature of the instant 9 proceeding against her (i.e., revocation of probation as opposed to conviction for a 10 new offense) and address her arguments to the relevant legal issues in this case: 11 whether the State sufficiently established that Defendant (a) had fair warning that her 12 conduct constituted a violation of probation, and (b) violated not the law generally but 13 the particular condition of probation alleged by the State. See State v. Doe, 1986- 14 NMCA-019, ¶ 9, 104 N.M. 107, 717 P.2d 83 (“[I]t is an essential component of due 15 process that individuals be given fair warning of those acts which may lead to a loss 16 of liberty.” (internal quotation marks and citation omitted), abrogated on other 17 grounds by State v. Erickson K., 2002-NMCA-058, ¶¶ 19-20, 132 N.M. 258, 46 P.3d 18 1258); see also State v. Parsons, 1986-NMCA-027, ¶ 19, 104 N.M. 123, 717 P.2d 99

1 18 5-fluoro-ADB was, in fact, added to 16.19.20.65 NMAC in October 2016. See 19 16.19.20.65(C)(35)(ii) NMAC (10/16/16).

7

1 (“A defendant’s probation may be revoked if, after a hearing, it is established that he 2 has failed to comply with a condition of his probation.); Maes v. State, 1972-NMCA- 3 124, ¶ 7, 84 N.M. 251, 501 P.2d 695 (“Conviction of a subsequent offense is not a 4 prerequisite for revocation of probation.”). Initially complicating our review, the 5 State’s answer brief also fails to meaningfully address the narrow issues presented and 6 instead engages in unnecessary construction of the term “synthetic cannabinoid” as 7 used in the CSA—unnecessary because the State conceded at the revocation hearing 8 that it was not trying to prove that “Dr. Feelgood potpourri” was a controlled 9 substance (i.e., “synthetic cannabinoid”) under the CSA. 10 {8} We turn our attention to the dispositive questions in this case left unanswered 11 by the parties: first, did the State meet its burden of proving that Defendant had fair 12 warning that possession of “Dr. Feelgood potpourri” would constitute a probation 13 violation? And, if so, did the State also meet its burden of proving that Defendant 14 violated the special condition of her probation prohibiting her from possessing 15 “synthetic cannabinoids or counterfeit synthetic cannabinoids”? We answer “yes” to 16 both questions.

17 A. Defendant Had Fair Warning That She Was Prohibited From Possessing 18 “Dr. Feelgood Potpourri” Under the Special Conditions of Her Probation

19 {9} “In determining whether there is a [probation] violation, we look to the [district] 20 court’s order [of probation].” State v. Martinez, 1972-NMCA-135, ¶ 4, 84 N.M. 295,

8

1 502 P.2d 320. The order of probation establishes what the terms and conditions of 2 probation are and, importantly, provides notice to the defendant of the conditions with 3 which he or she must comply in order to retain the privilege of clemency that the 4 district court has granted. See State v. Dinapoli, 2015-NMCA-066, ¶ 7, 350 P.3d 1259 5 (explaining that “[n]otice is an issue to the extent it bears upon whether it was 6 reasonable for [the d]efendant to have believed that he was not violating the terms of 7 his probation”); Doe, 1986-NMCA-019, ¶ 9 (“[I]t is an essential component of due 8 process that individuals be given fair warning of those acts which may lead to a loss 9 of liberty.” (internal quotation marks and citation omitted)); cf. State v. Baros, 1968- 10 NMSC-001, ¶ 13, 78 N.M. 623, 435 P.2d 1005 (explaining that where a sentence 11 “does not set out terms or conditions of probation, . . . [the defendant] could not 12 violate any of its terms”). Where, as here, Defendant contends that she did not have 13 sufficient notice that possession of a certain item would constitute a violation of the 14 terms of her probation, “we analyze the sufficiency of the notice [contained in the 15 relevant order and supporting documents] to ascertain whether it enables a reasonable 16 person to believe that [the d]efendant’s possession of the [item] would constitute a 17 violation of the” order of probation. Dinapoli, 2015-NMCA-066, ¶ 13; see State v. 18 Lynn C., 1987-NMCA-146, ¶ 5, 106 N.M. 681, 748 P.2d 978 (relying on an express 19 prohibition against smoking contained in the “home rules” of the group home where

9

1 the defendant resided as providing “sufficient prior notice that smoking could result 2 in revocation of [the defendant’s] probation”). 3 {10} Here, the district court’s order of probation, in pertinent part, provided that 4 Defendant (1) “will not violate any laws or ordinances of the State of N[ew] 5 M[exico]” and (2) “will not buy, sell, consume, possess or distribute any controlled 6 substances or illegal synthetic substances.” These conditions reasonably put 7 Defendant on notice that she was not to distribute and/or possess not only controlled 8 substances—including marijuana and synthetic cannabinoids as defined in the CSA, 9 see § 30-31-22, -23—but also any counterfeit controlled substances, controlled 10 substance analogs, and/or imitation controlled substances. See § 30-31-22(C) 11 (criminalizing the creation or delivery of, or the possession with the intent to deliver, 12 counterfeit substances); § 30-31-23(A) (criminalizing the possession of controlled 13 substance analogs); NMSA 1978, §§ 30-31A-1 to -15 (1983, as amended through 14 2015) (criminalizing under the Imitation Controlled Substances Act, conduct 15 respecting imitation controlled substances). As an additional, special condition of 16 probation, the district court provided in its judgment and sentence that “Defendant 17 shall not possess synthetic cannabinoids or counterfeit synthetic cannabinoids.” The 18 question, then, is whether these conditions, construed together, provided Defendant 19 with fair warning that her continued possession and sale of “Dr. Feelgood potpourri”

10

1 while on probation would constitute a violation of her conditions of probation. See 2 Dinapoli, 2015-NMCA-066, ¶¶ 12-14, 22 (relying on general principles of contract 3 construction—including that all parts “must be construed as a harmonious whole”—in 4 determining whether the defendant had sufficient notice of particular conditions of his 5 probation under the provisions of his sex offender contract (internal quotation marks 6 and citation omitted)). 7 {11} As discussed previously, Defendant effectively argues that she was only on 8 notice that she was prohibited from possessing substances containing the specific 9 chemical compounds designated as “synthetic cannabinoids” under the CSA. 10 Defendant ignores that the special condition contained in the judgment and sentence 11 imposed on Defendant an additional prohibition beyond those generally imposed 12 under the law. See State v. Baca, 2004-NMCA-049, ¶ 17, 135 N.M. 490, 90 P.3d 509 13 (“A court may impose reasonable conditions that deprive the offender of some 14 freedoms enjoyed by law-abiding citizens.” (alteration, omission, internal quotation 15 marks, and citation omitted)); cf. Doe, 1986-NMCA-019, ¶ 13 (concluding that the 16 state failed to prove that the defendant had fair warning that particular conduct would 17 violate the conditions of his probation where the formal probation agreement failed 18 to enumerate particular restrictions and the defendant’s conduct was not a criminal 19 offense, meaning notice could not be imputed). Particularly in light of the underlying

11

1 charge to which Defendant pleaded guilty—distribution of marijuana or synthetic 2 cannabinoids—and the fact that the district court had already imposed the 3 aforementioned general conditions against unlawful conduct, we conclude that a 4 reasonable person would understand the special condition against possession of 5 “synthetic cannabinoids and counterfeit synthetic cannabinoids” to expand upon the 6 general prohibition against controlled substances—including synthetic 7 cannabinoids—contained in the district court’s order of probation. See Dinapoli, 8 2015-NMCA-066, ¶ 13. In other words, a reasonable person would have known that 9 the conditions of probation imposed in this case were intended to prohibit possession 10 of “synthetic cannabinoids” beyond those expressly identified by statute and/or 11 regulation. We thus reject Defendant’s argument that the State was restricted to 12 proving that the substance she possessed is a controlled substance under the CSA in 13 order to establish the alleged probation violation. 14 {12} To determine whether the special condition prohibiting Defendant from 15 possessing “synthetic cannabinoids or counterfeit synthetic cannabinoids” provided 16 Defendant fair warning that her continued sale of “Dr. Feelgood potpourri,” in 17 particular, could be considered a probation violation, we turn to other evidence 18 adduced at the revocation hearing. Specifically, we consider probation officer 19 Serrano’s testimony regarding the explanation she provided to Defendant regarding

12

1 the prohibitions contained in Defendant’s conditions of probation in determining 2 whether Defendant had sufficient notice of the prohibitions. See Green, 2015-NMCA- 3 007, ¶¶ 23, 26. 4 {13} Serrano testified that when she went over the terms and conditions of 5 Defendant’s probation with Defendant—including those contained in the district 6 court’s judgment and sentence—she explained to Defendant that Defendant “was not 7 to possess . . . marijuana or spice of any blend, whether it be legal or illegal.” 8 (Emphasis added.) Serrano testified that she explained it that way because “there’s too 9 many blends” and “the formulas change every day.” Serrano also explained that when 10 she learned that Defendant owned a smoke shop, she additionally informed Defendant 11 that Defendant would “not be[] able to sell what she was [selling] before.” The record 12 establishes that “Dr. Feelgood potpourri” was one of the items seized from Defendant 13 and specifically identified in the criminal complaint against Defendant that led to 14 Defendant’s guilty plea and, subsequently, the probation order at issue in this case. 15 Finally, Serrano testified that she explained to Defendant that she could not have 16 “anything, any sort of synthetic, whether it be . . . potpourri, . . . spice, . . . K-9” and 17 that Defendant “seemed to understand it’s all basically the same thing, they just go by 18 different names.” Notably, Defendant did not dispute that she received these 19 explanations from Serrano. Cf. State v. Martinez, 1989-NMCA-036, ¶ 8, 108 N.M.

13

1 604, 775 P.2d 1321 (“Once the state offers proof of a breach of a material condition 2 of probation, the defendant must come forward with evidence to excuse non- 3 compliance.”). 4 {14} In light of all this, Defendant’s contention that she was not afforded sufficient 5 notice of what she was prohibited from possessing is simply unavailing. See Green, 6 2015-NMCA-007, ¶¶ 21-26 (rejecting the defendant’s argument that a condition 7 prohibiting “possession of sexual images” was “overly vague” and relying, in part, on 8 the testimony of the defendant’s probation officer regarding what he told the 9 defendant he was prohibited from possessing to conclude that sufficient evidence 10 supported revocation of the defendant’s probation). We hold that Defendant had fair 11 warning, under the applicable reasonable person standard, that she was not to possess 12 “Dr. Feelgood potpourri” under the terms and conditions of her probation and that 13 here possession thereof would constitute a violation of probation.

14 B. The State Presented Sufficient Evidence to Establish That Defendant 15 Violated a Condition of Her Probation

16 {15} Having concluded that a reasonable person would have known that possessing 17 “Dr. Feelgood potpourri” was a violation of the special condition of probation, we 18 need only determine whether the State produced evidence “sufficient for a reasonable 19 mind to conclude that Defendant violated this condition of [her] probation” in order 20 to affirm the district court’s revocation of her probation. State v. Leon, 2013-NMCA-

14

1 011, ¶ 39, 292 P.3d 493. We conclude that the State did so with the testimony of the 2 undercover agent who testified that he purchased “Dr. Feelgood potpourri” from 3 Defendant on two occasions in January 2016, which testimony Defendant has never 4 challenged. 5 CONCLUSION 6 {16} For the foregoing reasons, we affirm the revocation of Defendant’s probation. 7 {17} IT IS SO ORDERED.

8 _________________________________ 9 J. MILES HANISEE, Judge

10 WE CONCUR:

11 _________________________________ 12 M. MONICA ZAMORA, Judge

13 _________________________________ 14 HENRY M. BOHNHOFF, Judge