State v. Zamora

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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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. 30,634

10 DAVID ZAMORA,

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Jacqueline D. Flores, District Judge

14 Gary K. King, Attorney General 15 Santa Fe, NM

16 for Appellee

17 Jacqueline L. Cooper, Acting Chief Public Defender 18 Kimberly Chavez Cook, Assistant Appellate Defender 19 Santa Fe, NM

20 for Appellant

21 MEMORANDUM OPINION

22 VIGIL, Judge.

23 Defendant appeals the judgment and sentence filed after he entered a

24 conditional guilty plea to aggravated DWI. We issued a calendar notice proposing to

25 affirm. Defendant has responded with a memorandum in opposition. We affirm. 1 Issue 1

2 Defendant continues to argue that the district court erred in denying his motion

3 to suppress based on alleged lack of reasonable suspicion to make the stop. [MIO 6]

4 We review the grant or denial of a motion to suppress as a mixed question of fact and

5 law. State v. Gutierrez, 2004-NMCA-081, ¶ 4, 136 N.M. 18, 94 P.3d 18. We

6 determine whether the law was correctly applied to the facts and view “the facts in the

7 light most favorable to the prevailing party.” State v. Cline, 1998-NMCA-154, ¶ 6,

8 126 N.M. 77, 966 P.2d 785; see State v. Jason L., 2000-NMSC-018, ¶ 10, 129 N.M.

9 119, 2 P.3d 856. Furthermore, we employ all reasonable presumptions in support of

10 the district court’s ruling. See id. ¶ 11.

11 Here, Officer Kathleen Lucero of the Isleta Police Department responded to a

12 dispatch concerning a vehicle that was failing to maintain its lane. [MIO 3] Officer

13 Lucero observed a vehicle matching this description turn into the casino parking lot

14 without using its turn signal. [MIO 3] Defendant continues to claim that the

15 subsequent stop was invalid because the failure to signal did not affect other traffic.

16 See NMSA 1978, § 66-7-325(A) (1978) (making it illegal to fail to signal “in the

17 event any other traffic may be affected by such movement”).

18 In our calendar notice, we observed that this issue is controlled by State v.

19 Hubble, 2009-NMSC-014, 146 N.M. 70, 206 P.3d 579, a case with similar facts where

2 1 Section 66-7-325(A) was broadly construed to permit a stop even where there is no

2 traffic in the immediate vicinity. The fact that the officer in Hubble was approaching

3 the location of the failed turn signal was sufficient to make the stop. 2009-NMSC-

4 014, ¶ 17. As such, we proposed to hold that Officer Lucero was entitled to stop

5 Defendant’s vehicle based on her observations.

6 In his memorandum in opposition, Defendant argues that it was necessary for

7 Officer Lucero to testify that she was affected by the failure to use the turn signal.

8 [MIO 8-9] We do not construe Hubble to require this testimony. In any event, even

9 if Officer Lucero had provided this testimony, and it was factually incorrect based on

10 the circumstances, it would merely amount to a mistake of fact that would not require

11 suppression. Id. ¶ 32. Given the absence of any indication that Officer Lucero made

12 a mistake of law by interpreting any non-use of a signal to constitute a per se

13 violation, we affirm the ruling of the district court. See id. ¶¶ 24-25.

14 Issue 2

15 Defendant continues to claim that Officer Lucero lacked authority to enforce

16 the New Mexico Traffic Code because she was not commissioned by the Chief of the

17 New Mexico State Police, as required by NMSA 1978, Section 29-1-11 (2005). [MIO

18 10] We disagree with Defendant’s statutory analysis that the state police commission

19 was mandatory. [MIO 12-13] Section 29-1-11(G) expressly states that the authority

20 to enforce state law may also come from a county sheriff notwithstanding lack of a

21 commission from the state police. Defendant’s statutory analysis ignores the plain

22 meaning of this language. See Nearburg v. Yates Petroleum Corp., 1997-NMCA-069,

3 1 ¶ 12, 123 N.M. 526, 943 P.2d 560 (declining to adopt a party’s “strained

2 interpretation” of a provision of an oil and gas lease). As Defendant notes, Officer

3 Lucero was commissioned by the sheriff of Bernalillo County. [MIO 4] As such, she

4 was entitled to enforce state law. See NMSA 1978, § 4-41-9 (1953).

5 For the reasons set forth above, we affirm.

6 IT IS SO ORDERED.

7 _______________________________ 8 MICHAEL E. VIGIL, Judge 9 WE CONCUR:

10 _________________________________ 11 MICHAEL D. BUSTAMANTE, Judge

12 _________________________________ 13 RODERICK T. KENNEDY, Judge