March 2, 2020- State of New Mexico v. Vicente Trejo, No. A-1-CA-37334

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico
STATE OF NEW MEXICO, Filed 3/2/2020 11:02 AM
Plaintiff-Appellee, - Ane E24
Mark Reyna’
Vv No A-1-CA-37334
VICENTE TREJO,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF DONA. ANA COUNTY
Douglas R Driggers, District Judge
Hector H. Balderas, Attorney General
Santa Fe, NM
for Appellee

Bennett J. Baur, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
VANZI, Judge
{1}. Defendant appeals from the district court’s order revoking his probation,

imposing judgment, partially suspending sentence, and unsatisfactorily discharging

him from probation. [RP 102; DS 1] In this Court’s notice of proposed disposition,

we proposed to affirm. Defendant filed a memorandum in opposition, which we have

duly considered. Remaining unpersuaded, we affirm.

2} As we stated in our calendar notice, proof of a probation violation “must be

established with a reasonable certainty, such _that_a reasonable and impartial mind

would believe that the defendant violated the terms of probation.” State v. Green,

2015-NMCA-007, 4 22, 341 P.3d 10. On appeal, we “view[] the evidence in a light

most favorable to the State and indulelel all reasonable inferences in favor of the

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[district] court’s judgment.” State v. Erickson K., 2002-NMCA-058, 4 21, 132 N.M.

258, 46 P.3d 1258.

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In our calendar notice, we suggested t

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Defendant failed to appear for his appointment with his probation officer and, as

such, that he violated his order of probation. [CN 5] In his memorandum in

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there was not a reasonable certainty that he had knowledge of his appointment with

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his probation officer and, as such, could not have knowingly violated the terms of his

robation [MIO 3-4] Defendants

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probation. [MI O

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officer testified that she left a voicemail, because of the “inconsistency with which

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different individuals review voicemails left on their private telephones, there can be

no constitutionally valid presumption under due process principles that once a voice

message 1s left then it therefore was received.” [MIO 4-5]

{4} “Because loss of probation is loss of only conditional liberty, the full panoply

of rights due_a defendant_in_a criminal trial do not apply. ” State v. Guthrie, 2011-

NMSC-014, § 10, 150 N.M. 84, 257 P.3d 904 (alterations, internal quotation marks,

and citation omitted). Although Defendant is entitled to due process in a probation

violation hearing, see id. { 12, “[w]e revi icw [ the district] court’s decision to revoke

probation under an abuse of discretion standard,” under which, “it must appear the

district court acted unfairly or arbitrarily, or committed manifest error.” Green,

2015-NMCA-007, 422 (al

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45} Although there does not appear to have been any evidence at the probation

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revocation hearing that Defendant in fact received the voicemail left by his probation

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was placed on supervised probation for three years and was ordered to comply with

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the standard conditions of probation, as well as the condition that he comply with any

other reasonable conditions

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Mexico Corrections Department. [RP 67] Implicit in such conditions is the

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expectation that Defendant, under the supervision of his probation officer, would

listen _to_his voicemails_and comply wit

probation officer, to the extent they are reasonable. His probation officer’s instruction

to meet with him for an appointment five days after she left the voicemail is

reasonable, and Defendant was reasonably expected to and required to comply.

Although it is certainly possible that Defendant chose to ignore his voicemails on his

phone for several days and, as such, did not hear the voicemail left by his probation

officer, we are unpersuaded that the district court’s implicit conclusion that Defendant

was given proper notice by his probation officer to comply with her reasonable

request that he appear for an appointment five days later is an abuse of discretion. See

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Green, 2015-NMCA-007, § 22 (stating that, under an abuse of discretion standard,

“it must appear the district court acted unfairly or arbitrarily, or committed manifest

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error’ (alteration, internal quotation marks, and citation omitted)); State v. Leon,

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2013-NMCA-011, § 36, 292 P.3d 493 (“Once the state offers proof of a breach of a

material condition of probation, the defendant must come forward with evidence to

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excuse non-compliance.” (internal quotation marks and citation omitted)); cf In re

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Martinez, 1988-NMSC-033, 7 17, 107 N.M. 171, 754 P.2d 842 (“While due process

does require adequate notice, our rules are clear that personal service and service by

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mail shall constitute such notice. We cannot find insufficient notice on the basis of

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an attorney’s own failure to open and read what is received by him.” (citation

omitted)). Indeed, Defendant’s failure to diligently listen to voicemails and read mail

to ensure he is aware of reasonable requests made by the probation office cannot

impute onto the probation officer a failure to properly notify him. Cf State v. Handa,

1995-NMCA-042, 4 35, 120 N.M. 38, 897 P.2d 225 (“To allow a defendant to invite

error and to subsequently complain about that very error would subvert the orderly

and equitable administration of justice.” (internal quotation marks and citation

omitted)).

(6; Accordingly, for the reasons stated in our notice of proposed disposition and

8} herein, we affirm the district court’s order revoking Defendant’s probation.
9}<7; ITISSO ORDERED.

10 co “Taeest i as

11 BINDAN. VANZL, Judge

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J. MILES HANISEE, Chief Judge

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MEG dN P. DUFENG Ju Judge