State v Lucero

                                                                        Office of the
                                                                            Director        New Mexico
                                                                                            Compilation
                                                                13:21:33 2022.04.29         Commission
                                                                              '00'06-
          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

Certiorari Denied, March 25, 2022, No. S-1-SC-39262. Released for Publication May
10, 2022.

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, 

, 

. 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 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


1Driving 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).
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,

, 

, 

.

{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, 

, ¶ 6, 

. Further, a lack of
subject matter jurisdiction in the magistrate court would also remove jurisdiction from
the district court. See State v. Lynch, 

, ¶ 7, 

, 

.
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., 

, 

, 

 (internal quotation marks and citation omitted). Jurisdiction is
controlled by the Constitution and the Legislature. See State v. Smallwood, 2007-
NMSC-005, ¶ 6, 

, 

 (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, 

, 

, 

 (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 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, 

, 

, 

 (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, 

, 

. We review
de novo the interpretation of constitutional and statutory provisions. 

 “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, 

, 

.

{19} With few exceptions, appeals from a magistrate court to the district court are by
trial de novo. See, e.g., Piñon-Garcia, 

, ¶ 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

2This discussion focuses on Issues 2 and 3 in Defendant’s brief.
3We 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, 

, 

, 

 (providing one possible course of redress for an aggrieved defendant is by petition for
an extraordinary writ).
4References 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.
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

{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, 

, ¶ 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.

{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, 

, ¶ 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.


5Article 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 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.
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, 

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

, 

, 

(reviewing the validity of the defendant’s no contest plea in magistrate court, to
determine if the appeal should be dismissed); State v. Foster, 

, 

, 

 (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, 

, 

 (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, 

, 

 (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, 

 (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,

, 

 (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


6There, 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, 

, 

, 

 (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.
v. Nelson, 

 (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., 

, 

(“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, 

, 

 (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, 

,

, 

 (“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, 

, 

, 

. 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, 

.

{26} The district court’s review in an appeal from the magistrate court is not for legal
error, see Foster, 

; 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, 

. 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