Office of the
New Mexico
Director Compilation
Commission
2024.01.12
'00'07- 11:39:56
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2024-NMCA-015
Filing Date: June 30, 2023
No. A-1-CA-39367
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
JODIE JOHNSON, JR.,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Daniel Gallegos, District Court Judge
Raúl Torrez, Attorney General
Benjamin Lammons, Assistant Attorney General
Santa Fe, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Carrie Cochran, Assistant Appellate Defender
Santa Fe, NM
for Appellant
OPINION
YOHALEM, Judge.
{1} Following a jury trial, Defendant Jodie Johnson, Jr. appeals his convictions of
four counts of battery against a household member, contrary to NMSA 1978, Section
30-3-15 (2008); and one count of false imprisonment, contrary to NMSA 1978, Section
30-4-3 (1963), perpetrated against Defendant’s then-wife (Victim). Defendant contends
that the district court erred when it admitted evidence of uncharged bad acts under Rule
11-404(B) NMRA and Rule 11-403 NMRA. The evidence admitted involved prior acts of
domestic violence by Defendant against Victim and forced prostitution of Victim by
Defendant before and during their marriage. Defendant argues that this evidence is
propensity evidence that should have been excluded by the district court under Rule 11-
404(B) and, even if admissible under Rule 11-404(B)(2), the district court abused its
discretion by failing to exclude it under Rule 11-403 because its probative value is
substantially outweighed by unfair prejudice. We conclude that the district court did not
abuse its discretion in admitting this evidence. Defendant also appeals his sentence.
Concluding that the district court did not err either in enhancing Defendant’s sentence
based on his three prior California convictions or in imposing consecutive, rather than
concurrent sentences, we affirm.
BACKGROUND
{2} The charges in this case arose out of an incident that occurred on March 28,
2018, in a motel room in Albuquerque, New Mexico. Victim testified that Defendant
accused her of having a sexual encounter with an unidentified man while she was using
the restroom at an Albuquerque pharmacy. Defendant became suspicious when a man
happened to walk out of the outside door leading to both the men’s and women’s
restrooms just before Victim emerged.
{3} Victim testified that Defendant induced Victim to return with him to their motel
room. When they entered the motel room, Defendant locked, chained, and barricaded
the door with a table, turned up the volume on the television, and then sat on a chair
placed in front of the barricaded door. Defendant ordered Victim to take off her clothes
(which Victim did), wrapped the cord of a phone charger around his hand, and
interrogated Victim to get her to admit that she had sex with the man at the pharmacy.
When Victim denied Defendant’s accusation, Defendant whipped her naked back and
face with the phone charger cord; and then began punching her in the head and
choking her until she nearly passed out. When Defendant paused and allowed Victim to
breathe, he questioned Victim again about what happened in the pharmacy bathroom,
and when Victim denied that anything had happened, Defendant insisted that she was
lying and resumed hitting and choking her, and threatening to kill her and her unborn
baby (Victim was seven months pregnant). When Victim put her hands in front of her
face to ward off Defendant’s blows, Defendant tied her hands behind her back with a
string bag. Defendant continued questioning Victim between blows, trying to get her to
admit that she had sex with the man at the pharmacy.
{4} Victim testified that she believed she was going to die if she did not agree with
Defendant. When she falsely admitted Defendant was right, the beating stopped.
Defendant asked Victim if she had been paid by the man. She denied having received
any money. He then put his fingers in her vagina and smelled them, allegedly to see if
she was telling the truth. He then had intercourse with her and made her perform
fellatio. Victim testified she did not consent to any of the sexual acts but was too afraid
to tell Defendant no. Defendant then forced her to shower and dress and sent her into
the street to prostitute herself.
{5} The night of this incident, Victim made a plan to leave Defendant the next day.
Victim hoped to take a bus to her home in California. When she got to the bus station
and asked the fare, she realized she did not have enough money. A bus station
employee gave Victim a telephone number for a domestic violence shelter, where
Victim stayed for the next few days. Later that day, Victim went to a hospital for
treatment of her injuries and, on the fourth day after the incident, she filed a police
report. The evidence introduced at trial included photographs of Victim’s injuries taken
at the hospital and additional photographs taken during an examination by a sexual
assault nurse examiner (SANE) after she reported the incident to police.
{6} Defendant objected prior to trial to the admission of Victim’s testimony that from
the beginning of her relationship with Defendant, throughout their marriage, and while
she was pregnant, he forced her to prostitute herself and turn over her earnings to him.
Defendant also objected to Victim’s testimony about an incident of domestic violence by
Defendant against Victim in California, and two prior incidents in New Mexico. Victim
intended to testify that those incidents were precipitated, like the current incident, by
Defendant’s suspicion that Victim may have had a sexual encounter with another man,
which had not been authorized by Defendant for purposes of prostitution.
{7} The day before trial, the district court held a hearing to determine the
admissibility of this evidence pursuant to Rule 11-404(B) and Rule 11-403. The State
emphasized the necessity of the evidence to provide context, claiming that the events
described by Victim would not be understood by the jury without background on the
nature of the couple’s relationship and the degree of control Defendant exercised over
Victim. The State argued as well that the evidence was relevant to prove motive; to
prove intent as to kidnapping and aggravated battery charges; and to prove lack of
consent to sexual acts with Defendant as to the criminal sexual penetration charges.
{8} The defense argued that the evidence of incidents of domestic violence against
Victim in the past was “pure propensity evidence,” being introduced solely to show that
Defendant had acted consistently with his character. Even if the evidence was
admissible under Rule 11-404(B)(2), Defendant argued its probative value was
outweighed by the danger of unfair prejudice and should be excluded under Rule 11-
403. Defense counsel did not reveal to the State and the court any information about
Defendant’s planned defense during the motion hearing.
{9} The district court denied the defense’s motion in limine, concluding that the
evidence was admissible to establish the context and to show Defendant’s motive and
intent, as argued by the State, and to allow the jury to determine whether Victim had
consented to the sexual acts charged. The court noted that an understanding of
Defendant’s and Victim’s relationship was necessary so that the jury could understand
“‘why’ this may have occurred.”
{10} The next day at the start of the trial the defense outlined its arguments in its
opening statement. The defense appealed to the jury as “the voice of reason and
common sense,” arguing that Victim’s story “do[es] not add up.” Defense counsel
denied outright that any of the events of March 28, 2018, occurred, telling the jury that
“[Defendant] has never abused his wife . . . in any way.” The defense then focused on
Victim, arguing that Victim had “several motives to lie,” the most important being her
desire to go home to California. Relying on Victim’s anticipated testimony about having
no money for bus fare to California, defense counsel argued that Victim had decided
she wanted to leave Defendant and made up a story about domestic violence so she
could get the domestic violence shelter to pay for her bus fare to California. The
defense told the jury that they would hear about Victim’s history of substance abuse,
mental illness, and her prior work as a prostitute while a juvenile, and suggested that
this evidence showed that it was Victim’s choice to prostitute herself during her
marriage to Defendant. Finally, the defense emphasized the he-said, she-said nature of
Victim’s allegations, and pointed out that Victim waited four days to report to the police.
Counsel concluded by again stating that Defendant had done nothing and all he could
say was, “I did not do this.”
{11} In a conference with the district court following opening arguments, Defendant
again asked the court to keep the State from eliciting evidence of a pattern of
prostitution of Victim by Defendant, arguing that it is “extremely prejudicial to [Defendant
to]” raise prostitution. The State argued that, based on Defendant’s opening statement,
Victim’s prostitution was relevant to the defense as well as to the State’s case, and
having raised it, Defendant could not keep it out.
{12} The district court reiterated its Rule 11-404(B) ruling from the day before,
reaffirming that the court would allow the admission of evidence of a pattern of
prostitution of Victim, controlled by Defendant, and evidence of specific acts in the past
where Defendant exercised that control through physical violence and sexual abuse of
Victim motivated by her contact with a man, which was not controlled by Defendant. The
district court also allowed the State to admit text messages that corroborated Victim’s
testimony about Defendant’s role in her prostitution and showed him directing Victim to
certain locations, approving the amounts Victim charged, and collecting the money
Victim earned. The district court agreed there was some prejudice but found that it did
not substantially outweigh the probative value of the evidence. The district court
directed the State to avoid presenting too much detail about prior incidents, to avoid any
reference to the term “human trafficking,” and excluded from evidence any texts related
to soliciting other women to work as prostitutes for Defendant, finding these matters
more prejudicial than probative.
{13} The trial then continued the next morning with Victim’s testimony. Victim testified
about the history of her relationship with Defendant, including giving her account of how
Defendant, who is twenty years older than Victim, forced and manipulated her into
working as a prostitute, and giving accounts of three prior incidents of physical and
sexual abuse by Defendant, all motivated by Defendant’s suspicion that Victim was in
contact with another man without Defendant controlling and profiting from the
interaction. The text messages between Victim and Defendant prior to March 28, 2018,
were admitted through Victim’s testimony and showed Defendant managing Victim’s
work as a prostitute. The trial included the testimony of a SANE examiner about Victim’s
injuries, and photographs of Victim’s injuries. Defendant did not testify.
{14} The defense cross-examined Victim about her drug use and prostitution as a
juvenile, about the State paying for her hotel and food in New Mexico during trial, and
about her testimony that she did not tell Defendant she did not want to have intercourse.
In closing argument, the defense argued that Victim chose to prostitute herself for
money as she had done before as a juvenile, repeated its claim in opening argument
that Victim lied about the attack by Defendant in order to get bus fare to California and
hotel money from the State, and suggested that it was illogical to believe Defendant
would let Victim engage in prostitution if it was true that he was so jealous about any
contact she had with other men. Defendant also attacked Victim’s claim that she had
not consented to sex, pointing out that she admitted she never said, “No,” and therefore
did not communicate her refusal to Defendant.
{15} The jury was instructed on one count of kidnapping, NMSA 1978, § 30-4-1
(2003), and the lesser included offense of false imprisonment, § 30-4-3; three counts of
criminal sexual penetration, NMSA 1978, § 30-9-11 (A), (F) (2009); three counts of
aggravated battery against a household member (great bodily harm), NMSA 1978, § 30-
3-16(C)(1) (2018); and four counts of battery against a household member, § 30-3-15.
Defendant was convicted of one count of false imprisonment and four counts of battery
against a household member. He was acquitted of the three charged counts of criminal
sexual penetration, one count of kidnapping, and of four counts of aggravated battery.
{16} Additional facts relevant to the sentencing issues will be included in our analysis
of those issues.
DISCUSSION
I. The District Court Did Not Abuse Its Discretion in Admitting Evidence of
Defendant’s Prostitution of Victim and Prior Violence and Sexual Abuse
Against Victim in Service of That Prostitution
{17} We begin our discussion by addressing Defendant’s claim that the district court
abused its discretion in admitting the evidence of Defendant’s role in Victim’s
prostitution during their marriage, and in admitting three prior incidents of physical
violence and sexual abuse committed by Defendant for the purpose of controlling or
punishing Victim’s unauthorized contact with other men. Defendant argues on appeal
that this evidence was solely relevant to Defendant’s propensity to commit the crimes
charged, and, therefore, should have been excluded under Rule 11-404(B), or, if
admissible under Rule 11-404(B), its probative value was substantially outweighed by
the danger of unfair prejudice, and should have been excluded under Rule 11-403. We
agree with the district court that this evidence was relevant to explain Defendant’s
motive and to rebut Defendant’s contention that he had never abused Victim in any way.
We see no abuse of discretion in the district court’s conclusion that this evidence was
probative on contested issues the jury was required to consider in reaching its verdict
and, that its probative value was not substantially outweighed by the danger of unfair
prejudice. We explain.
{18} We review the decision of a trial court to admit evidence under Rule 11-404(B)
and Rule 11-403 for abuse of discretion. State v. Otto, 2007-NMSC-012, ¶¶ 9, 11,
141
N.M. 443,
157 P.3d 8. An abuse of discretion occurs when the district court’s ruling is
“clearly against the logic and effect of the facts and circumstances of the case.” State v.
Woodward,
1995-NMSC-074, ¶ 6,
121 N.M. 1,
908 P.2d 231 (internal quotation marks
and citation omitted), abrogated on other grounds as recognized by State v. Montoya,
2014-NMSC-032,
333 P.3d 935. “We cannot say the trial court abused its discretion by
its ruling unless we can characterize [the ruling] as clearly untenable or not justified by
reason.” State v. Rojo,
1999-NMSC-001, ¶ 41,
126 N.M. 438,
971 P.2d 829 (internal
quotation marks and citation omitted).
{19} Under Rule 11-404(B)(1), “[e]vidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a particular occasion
the person acted in accordance with the character.” Rule 11-404(B)(2), however,
authorizes the admission of evidence of prior acts if it is relevant “for another purpose,
such as proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” “This list is not exhaustive and evidence of
other wrongs may be admissible on alternative relevant bases so long as it is not
admitted to prove conformity with character.” Otto, 2007-NMSC-012, ¶ 10 (internal
quotation marks and citation omitted). Importantly, “Rule 11-404(B) is a rule of inclusion,
not exclusion, providing for the admission of all evidence of other acts that are relevant
to an issue in trial, other than the general propensity to commit the crime charged.”
State v. Bailey,
2017-NMSC-001, ¶ 14,
386 P.3d 1007 (alteration, internal quotation
marks, and citation omitted).
{20} “If the evidence is probative of something other than propensity, then we balance
the prejudicial effect of the evidence against its probative value to determine if the
probative value is substantially outweighed by the danger of unfair prejudice, confusion
of the issues or misleading the jury,” as provided by Rule 11-403. State v. Ruiz, 2001-
NMCA-097, ¶ 15, 131 N.M. 241,
34 P.3d 630 (internal quotation marks and citation
omitted). “The purpose of Rule 11-403 is not to guard against any prejudice whatsoever,
but only against the danger of unfair prejudice.” Otto,
2007-NMSC-012, ¶ 16 (alteration,
internal quotation marks, and citation omitted). Thus, when “the tendered evidence
serves a legitimate purpose other than character or propensity . . . that legitimate
purpose should be balanced against the jury’s tendency to use the evidence
illegitimately.” State v. Ruiz,
1995-NMCA-007, ¶ 12,
119 N.M. 515,
892 P.2d 962.
{21} We must first determine whether the evidence of a pattern of prostitution of
Victim by Defendant, including prior incidents of physical and sexual violence
perpetrated against Victim, is probative of a contested material issue other than
Defendant’s character or propensity to commit the crimes charged. If we agree with the
district court that the evidence is probative of a contested material issue, we must then
determine whether the district court’s conclusion that the probative value of the
evidence was not substantially outweighed by the risk that its admission would be
unfairly prejudicial was a proper exercise of the court’s discretion. We agree with the
district court’s conclusion that Defendant’s motive was a contested material issue at
trial, and conclude that the district court did not abuse its discretion when it found that
the probative value of this evidence was not substantially outweighed by the danger that
its admission would be unfairly prejudicial to Defendant.
A. Relevance of the Evidence to a Material Issue in Dispute Other Than
Propensity, Under Rule 11-404(B)(2)
{22} The evidence of Defendant’s forcing Victim into prostitution during their marriage
and controlling her prostitution was relevant to provide a motive for what defense
counsel argued to the jury in his opening argument was inexplicable and unbelievable
behavior that the jury should exercise their common sense to find never happened.
Defense counsel in his opening statement argued to the jury that Defendant had “never
abused his wife . . . in any way,” suggesting that the jury should view the charges
against Defendant in the context of a loving marital relationship, where a husband would
have no motive to imprison and attack his wife. Defendant further put motive in issue by
pairing his argument that he had no motive to attack his wife and had never done so in
the past with an argument that it was Victim who had a motive to make up a story and
falsely report that he had battered her to get money for a bus ticket to California.
Because Defendant denied outright that anything had happened on March 28, 2018,
whether Defendant had a motive to engage in the alleged conduct was an important,
contested issue, as was the nature of the marital relationship, which Defendant argued
had never included any sort of abuse. See State v. Hnulik, 2018-NMCA-026, ¶ 29,
458
P.3d 475 (providing that, where the defendant denied outright that he had killed his wife,
evidence of a prior dispute between the defendant and his wife was properly admitted
under Rule 11-404(B)(2) to show that the defendant had a motive to kill his wife and “to
rebut [the d]efendant’s efforts to portray his relationship with [his wife] as a loving one”).
B. The Probative Value of the Evidence Admitted Was Not Substantially
Outweighed By Unfair Prejudice Under Rule 11-403
{23} After concluding that the evidence of Defendant’s prostitution of Victim and
Defendant’s prior physical and sexual violence against Victim was admissible under
Rule 11-404(B) to prove Defendant’s motive, 1 the district court considered Defendant’s
claim that, even if relevant to prove contested elements of the crimes charged and to
rebut Defendant’s claim that he and Victim had a loving relationship, the evidence
should be excluded because it is more prejudicial than probative. The district court
concluded that the evidence had strong probative value that was not substantially
outweighed by unfair prejudice to Defendant. Defendant has not persuaded us that the
district court abused its discretion.
{24} Although the evidence of Defendant’s role in Victim’s prostitution and the
commission by Defendant of offenses against Victim in the past that were motivated by
1We need not decide whether the prior bad acts evidence is admissible under Rule 11-404(B)(2) to
provide “context” for the charged incident or to prove Defendant’s intent to commit kidnapping or sexual
penetration because we have found it admissible to show Defendant’s motive, an item specifically listed
in Rule 11-404(B)(2) as a permissible use for prior bad act evidence.
his desire to control and profit from Victim’s prostitution is prejudicial—as Rule 11-403
recognizes, there is always a danger that the jury will rely on other-acts evidence as
evidence of propensity—its probative value is high. Defendant, in his opening statement
and then in cross-examination of Victim, suggested that their marriage was a loving
relationship where he had never abused his wife. Rebutting this defense required giving
the jury an understanding of the actual relationship between Defendant and Victim, and
of what might motivate Defendant to engage in conduct that would be inexplicable in
most marriages. The contested issues for trial here are much like the issues this Court
identified in Hnulik. In Hnulik, this Court held that the district court did not abuse its
discretion in admitting evidence of prior incidents between the defendant husband and
his wife, allegedly the victim of a murder, to both rebut the husband’s claim that he had
a loving relationship with his wife and to provide a motive for a murder that the
defendant vehemently denied, and which was otherwise inexplicable. 2018-NMCA-026,
¶ 29. This Court found in Hnulik that, under these circumstances, the district court had
not abused its discretion in admitting prior acts of abuse by the husband. Id. ¶ 31.
{25} As in Hnulik, Defendant in this case has not convinced us that the district court
abused its discretion in admitting this other-acts evidence. The district court carefully
considered the facts and the law, reasonably concluding that the probative value of the
evidence relating to the nature of Defendant’s and Victim’s relationship and Defendant’s
motive in exercising control over Victim was not outweighed by unfair prejudice. The
district court’s conclusion is supported by logic and reason. See N.M. Regul. &
Licensing Dep’t v. Lujan, 1999-NMCA-059, ¶ 8,
127 N.M. 233,
979 P.2d 744 (providing
that even if there is room for two opinions, if the district court’s decision is reasonable,
we will not find an abuse of discretion). We, therefore, affirm the district court’s
admission of the other-acts evidence at issue here.
II. Defendant Has Not Demonstrated That the District Court Erred by
Sentencing Him as a Habitual Offender
{26} Defendant was convicted of four counts of battery against a household member,
a misdemeanor, and one count of false imprisonment, a felony. The district court
sentenced Defendant consecutively for each conviction and enhanced Defendant’s
sentence for false imprisonment, the only felony conviction, by eight years under the
New Mexico habitual offender statute, NMSA 1978, Section 31-18-17(B) (2003).
Defendant argues that two of the three California convictions the district court relied on
to enhance his sentence—his 2006 conviction and his 2011 conviction—failed to meet
the definition of a “prior felony conviction” for purposes of our habitual offender statute.
Claiming fundamental error, Defendant also argues that the district court improperly
relied on uncharged conduct in sentencing him, in violation of his right to due process.
We address each of his arguments in turn.
A. Substantial Evidence Supported the District Court’s Finding That
Defendant’s Sentence for His 2006 Conviction Was Completed Within Ten
Years of His Conviction in This Case
{27} Defendant argues that his 2006 conviction in Santa Clara County, California,
Superior Court did not qualify as a “prior felony conviction” for purposes of the New
Mexico habitual offender statute because the State failed to prove that less than ten
years had passed since Defendant completed serving his sentence for that conviction.
The New Mexico habitual offender statute defines a “prior felony conviction” that can be
used to enhance a sentence for a subsequent felony offense, in relevant part, as
follows:
D. As used in this section, “prior felony conviction” means:
....
(2) a prior felony, when less than ten years have passed prior to the
instant felony conviction since the person completed serving his sentence
or period of probation or parole for the prior felony, whichever is later, for
which the person was convicted other than an offense triable by court
martial if:
(a) the conviction was rendered by a court of another
state . . . ;
(b) the offense was punishable, at the time of conviction, by
death or a maximum term of imprisonment of more than one year; or
(c) the offense would have been classified as a felony in this
state at the time of conviction.
Section 31-18-17(D).
{28} The State bears the burden of establishing by a preponderance of the evidence
that each element of the definition of a “prior felony conviction” is satisfied. State v.
Elliott, 2001-NMCA-108, ¶ 35,
131 N.M. 390,
37 P.3d 107. “We review the sufficiency of
the evidence presented in habitual offender proceedings under a substantial evidence
standard of review.” State v. Bailey,
2008-NMCA-084, ¶ 23,
144 N.M. 279,
186 P.3d
908. Substantial evidence is defined as “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” State v. Salgado,
1999-NMSC-008,
¶ 25,
126 N.M. 691,
974 P.2d 66 (internal quotation marks and citation omitted),
overruled on other grounds by State v. Martinez,
2021-NMSC-002,
478 P.3d 880. This
Court views the evidence in the light most favorable to the district court’s decision,
resolves all conflicts, indulges all permissible inferences to uphold the court’s decision,
and disregards all evidence and inferences to the contrary.
Id. We do not reweigh the
evidence and will not substitute our judgment for that of the trial court. In re Ernesto M.,
Jr.,
1996-NMCA-039, ¶ 15,
121 N.M. 562,
915 P.2d 318.
{29} The State established the fact of Defendant’s 2006 felony conviction and his
sentence for that conviction by introducing into evidence at the sentencing hearing a
certified copy of an information filed in California, in the Santa Clara County Superior
Court, charging Defendant with one count of felony possession of a controlled
substance on or about September 14, 2005, contrary to California Health and Safety
Code, Cal. Health & Safety Code § 11350(a) (West 2018); and two additional certified
documents from the Santa Clara County Superior Court showing that Defendant was
convicted of this offense on January 30, 2006, and sentenced on March 1, 2006, to four
years of imprisonment, followed by three years of parole. Defendant does not dispute
the sufficiency of the State’s proof that this offense qualifies as a felony under Section
31-18-17(D)(2) or the length of the sentence imposed. These Santa Clara County
Superior Court documents all show the case number assigned by that Court.
{30} The evidence challenged by Defendant is State’s Exhibit 5: a copy of the records
of the California Division of Adult Institutions (the Division) certified by the Division’s
custodian of the records. Defendant alleges that the Division’s records do not
sufficiently tie his completion of parole on December 2, 2012, to his 2006 felony
conviction. Specifically, Defendant objects to the absence of the case number assigned
by the Santa Clara County Superior Court on the document listing Defendant’s transfers
within the prison system by date, and paroles, returns, and release, from his admission
on March 14, 2006, until his parole ends on December 2, 2012. Defendant argues that
the parole, which ended on December 2, 2012, could have been imposed for some
other offense.
{31} We have carefully reviewed the evidence. The Division’s records tie Defendant’s
admission to prison on March 14, 2006, to his sentence for his 2006 conviction,
identifying both the offense committed and, on the FBI intake form on the day
Defendant turned himself in to begin serving his sentence, the Superior Court case
number associated with his conviction. The list of Defendant’s transfers in the prison
system, including his parole and several recommitments and releases, until his parole
ended on December 2, 2012, do not identify any intervening case or sentence, and
appear, on their face, to describe each step as Defendant served his four-year sentence
and three years of parole for the original 2006 conviction. Importantly, Defendant
presented no evidence of any other conviction or sentence that he was serving that
could have been confused with his sentence for the 2006 felony conviction at issue. See
State v. Simmons, 2006-NMSC-044, ¶ 13,
140 N.M. 311,
142 P.3d 899 (explaining that
“the [s]tate must make its prima facie showing, including all of the required elements for
a prior felony conviction as defined by the habitual offender statute, and then the burden
of proof shifts to the defendant” to present proof of the invalidity of the state’s evidence).
Defendant having presented no evidence supporting his claimed invalidity of the State’s
evidence, we conclude that substantial unrebutted evidence in the record supports the
district court’s finding that Defendant completed his parole for his 2006 conviction on
December 2, 2012, less than ten years prior to the instant conviction.
B. Defendant’s 2011 California Conviction Was a “Prior Felony Conviction”
Under Our Habitual Offender Statute
{32} Defendant next contends that because his 2011 felony conviction was
discharged under California Penal Code Section 1203.4(a)(1) (West 2009) upon his
completion of court-ordered treatment, it is not a “prior felony conviction” for purposes of
our habitual offender statute. Defendant argues that whether the 2011 conviction is a
“prior felony conviction” for purposes of our habitual offender statute depends on
whether California “intended to permit dismissed crimes to be used for the purposes of
New Mexico’s habitual offender statute.” We do not agree.
{33} Defendant’s argument misstates the relevant New Mexico law: New Mexico
applies the terms of our habitual offender statute and the policy adopted by our
Legislature in enacting that statute to determine whether a defendant has been
convicted of an offense under either our own criminal statutes or those of another state
for purposes of our habitual offender statute. See State v. Edmondson, 1991-NMCA-
069, ¶ 11, 112 N.M. 654,
818 P.2d 855 (“[T]he language of the New Mexico habitual-offender statute does not suggest that when considering a conviction from another
state, New Mexico will defer to the other state’s determination that the conviction should
not be used for habitual-offender purposes.”). The other state need not have a habitual
offender law and it need not treat the offense at issue as a basis for enhancing a
sentence, if it has such a law.
Id.
{34} The sole question before us, under these principles of New Mexico law, is
whether a conviction, which has been discharged under California Penal Code Section
1203.4(a)(1), is a “prior felony conviction” that can be used to enhance Defendant’s
sentence under our habitual offender statute. A “conviction” under longstanding New
Mexico precedent, “refers to the finding of guilt by plea or by verdict.” Benns v. N.M.
Dep’t of Pub. Safety, 2022-NMCA-050, ¶ 10,
517 P.3d 273. Our Supreme Court in
Padilla v. State applied this definition to the term “conviction” in our habitual offender
statute. See
1977-NMSC-063, ¶ 9,
90 N.M. 664,
568 P.2d 190. Construing New
Mexico’s deferred sentencing statute, which provides for dismissal of the criminal
charges following successful completion of a deferred sentence, our Supreme Court
held in Padilla that the term “conviction” “refers to a finding of guilt and does not include
the imposition of a sentence.” Id. (emphasis added). Concluding that the “conviction”—
the finding of guilt—remains even after the criminal charges are dismissed, our
Supreme Court affirmed the imposition of a habitual offender enhancement despite the
dismissal of the charges. Id. ¶ 11.
{35} Although we have not previously addressed a dismissal of a conviction under
California Penal Code Section 1203.4(a)(1), we have held that a conviction discharged
under a nearly identical Texas statute met the standards for a “conviction” under our
habitual offender statute as construed in Padilla. See Edmondson, 1991-NMCA-069, ¶
5. Both the Texas statute at issue in Edmondson, Tex. Code Crim. Proc. Ann. art.
42.12, § 3d(a) (West 1979, repealed 2017), and the California statute at issue in this
case,
Cal. Pen. Code § 1203.4(a)(1), allow for probationers to have their convictions set
aside and the charges against them dismissed after completion of court-ordered
treatment and provide that, with specified exceptions, the defendant “shall thereafter be
released from all penalties and disabilities resulting from the offense of which he or she
has been convicted.” People v. Vasquez,
25 P.3d 1090, 1091-92 (Cal. 2001); see
id. at
1092 (describing as “closely analogous” the provisions of Tex. Code Crim. Proc. Ann.
art. 42.12, sect. 3d(a) at issue in Edmondson, and California Penal Code Section
1203.4(a)(1), at issue in this case). The California Supreme Court in Vasquez
conducted an extensive comparison of the California statute at issue in this case and
the Texas statute at issue in Edmondson, and concluded that both statutes mitigate
punishment but do not “affect the fact that [the defendant’s] guilt has been finally
determined according to law.” Vasquez,
25 P.3d at 1093 (internal quotation marks and
citation omitted). The determination of guilt being the defining factor under our habitual
offender statute, see Padilla,
1977-NMSC-063, ¶ 9, we rely on our decision in
Edmondson to conclude that Defendant’s conviction qualifies as a “prior felony
conviction,” despite the discharge granted by the California court under California Penal
Code Section 1203.4(a)(1). 2
III. Defendant’s Sentence Did Not Constitute Fundamental Error
{36} Lastly, Defendant claims that the district court relied on uncharged conduct in
sentencing him in violation of his due process rights under Article II, Section 18 of the
New Mexico Constitution. Defendant points specifically to what he alleges is the district
court’s reliance on the evidence presented at trial that Victim was pregnant and
Defendant sent her out on the street to prostitute herself after battering her on the night
of March 28, 2018. Defendant admits that this issue was not preserved in the district
court and asks that we review his claim under the doctrine of fundamental error.
{37} Defendant’s argument consists of a list of dissenting opinions in federal courts in
which the dissenting judge or justice objects to the majority’s approval of the trial court’s
reliance on charges on which the jury acquitted the defendant in making a sentencing
decision. Defendant offers no argument as to why he believes the evidence relied on by
the district court here—Defendant sending Victim out onto the street after battering her
on the night of March 28, 2018—is evidence of an acquitted offense. He does not cite or
distinguish State v. Gardner, 2003-NMCA-107, ¶ 43,
134 N.M. 294,
76 P.3d 47, a case
in which this Court held that a sentencing court does not violate due process or abuse
its discretion when the sentencing court relies on evidence presented at trial.
{38} In a brief on appeal, “it is the appellant’s burden to demonstrate, by providing
well-supported and clear arguments[] that the district court has erred.” Premier Tr. of
Nev., Inc. v. City of Albuquerque, 2021-NMCA-004, ¶ 10,
482 P.3d 1261. Absent any
argument applying the relevant law to the particular facts and circumstances and
2We note that we do not find it necessary to rely on our Legislature’s 1993 expansion of the term
“conviction” in our habitual offender statute to include a “conditional discharge” under NMSA 1978,
Section 31-20-13(A) (1993). See § 31-18-17(A). A discharge under California Penal Code Section
1203.4(a)(1), unlike a conditional discharge under our Section 30-20-13, is granted after an adjudication
of guilt and, therefore, fits the definition of a “conviction” in Edmondson and Padilla. We, therefore, do not
address Defendant’s argument about whether our conditional discharge statute would apply to a
California conditional discharge.
explaining why the district court erred, we apply our presumption of correctness and
affirm. See State v. Aragon,
1999-NMCA-060, ¶ 10,
127 N.M. 393,
981 P.2d 1211.
CONCLUSION
{39} For the reasons stated above, we affirm the district court’s admission of the prior
bad acts evidence and the sentence imposed by the district court.
{40} IT IS SO ORDERED.
JANE B. YOHALEM, Judge
WE CONCUR:
JENNIFER L. ATTREP, Chief Judge
ZACHARY A. IVES, Judge
