July 27, 2021- State of New Mexico v. Justin French, No. A-1-CA-37792

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: _____________	2
Filing Date: JULY 27, 2021	3
No. A-1-CA-37792	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
JUSTIN FRENCH,	8
Defendant-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY	10
Albert J. Mitchell, Jr., District Judge	11
Hector H. Balderas, Attorney General	12
Santa Fe, NM	13
John Kloss, Assistant Attorney General	14
Albuquerque, NM	15
for Appellee	16
Bennett J. Baur, Chief Public Defender	17
Caitlin C.M. Smith, Assistant Appellate Defender	18
Santa Fe, NM	19
for Appellant	20
Court of Appeals of New Mexico
Filed 7/27/2021 10:54 AM

OPINION	1
HENDERSON, Judge.	2
{1} 	Following a jury trial, Defendant Justin French was convicted of possession	3
of methamphetamine, aggravated fleeing of a law enforcement officer, and resisting,	4
evading or obstructing an officer. Defendant raises two issues on appeal. First, he	5
appeals the district court’s ruling on presentence confinement credit. Second, he	6
appeals his convictions for aggravated fleeing of a law enforcement officer and	7
resisting, evading or obstructing an officer on the grounds that these convictions	8
violate his protection against double jeopardy. We reverse the district court’s ruling	9
on presentence confinement credit and Defendant’s conviction for resisting, evading	10
or obstructing an officer. We remand the case to the district court with instructions	11
to enter an amended judgment and sentence and to vacate Defendant’s conviction	12
for resisting, evading or obstructing an officer.	13
BACKGROUND	14
{2} 	On September 8, 2017, Defendant led law enforcement officers on a vehicle	15
chase from Logan, New Mexico to Tucumcari, New Mexico. After stopping,	16
Defendant exited the vehicle and ran away from the officers. Following a foot chase,	17
an officer located Defendant in a shed. The officer detained Defendant, and upon	18
performing a pat down of Defendant’s person, found suspected methamphetamine	19
tucked in Defendant’s sock.	20

2
{3} 	Defendant 	was 	charged 	with, 	among 	other 	things, 	possession 	of	1
methamphetamine, aggravated fleeing of a law enforcement officer, and resisting,	2
evading or obstructing an officer. At the time of his arrest in the instant case,	3
Defendant was serving a term of probation in two separate criminal cases, D-1010-	4
CR-2016-000921 (PV-1) and D-1010-CR-2016-00094 (PV-2).	5
{4} 	On July 18, 2017, before Defendant engaged in the conduct that gave rise to	6
the charges against him in the instant case, the State petitioned the district court to	7
revoke Defendant’s probation in PV-1, alleging that he had violated the terms of his	8
probation by failing to report to probation and submit reports in the manner required,	9
and that he had absconded. The district court issued a bench warrant with a no bond	10
hold for alleged probation violations in that case. Defendant was booked into	11
custody on that warrant on September 8, 2017—the date of his arrest in the instant	12
case. 	Pursuant to a stipulated pretrial detention order entered that same day,	13
Defendant was held without bond for the charges in the instant case. On September	14
19, 2017, the State petitioned the district court to revoke Defendant’s probation in	15
PV-2, alleging that Defendant had violated the terms of his probation by engaging	16
1The State requests that we take judicial notice of the record proper in case
No. A-1-CA-37100, which is Defendant’s appeal from PV-1. Because that record is
relevant to the issue of the calculation of Defendant’s sentence in the instant case,
we take judicial notice of it where necessary for our disposition here. See State v.
Turner, 1970-NMCA-054, ¶ 25, 81 N.M. 571, 469 P.2d 720 (noting that we “take
judicial notice of the records on file in this [C]ourt”).

3
in the conduct that resulted in the charges in the instant case. That same day, the	1
State similarly amended its petition to revoke Defendant’s probation in PV-1,	2
alleging, in addition to the allegations outlined above, that Defendant violated the	3
terms of his probation by engaging in the conduct that resulted in the charges in the	4
instant case.	5
{5} 	The district court arraigned Defendant on the charges in the instant case on	6
October 	10, 	2017, 	and 	entered 	an 	order 	releasing 	Defendant 	on 	his 	own	7
recognizance. However, the order also specified that Defendant was to be held in	8
custody without bond for his alleged probation violations in PV-1 and PV-2. The	9
district court stated that the effect of the order would deny Defendant presentence	10
confinement in the instant case beginning that day.	11
{6} 	On December 15, 2017, after a final revocation hearing, the district court	12
revoked Defendant’s probation in both PV-1 and PV-2. In PV-1, the violations	13
tracked the allegations in the original petition to revoke probation filed on July 18,	14
2017. Notably, the district court did not find a violation based on the September 8,	15
2017 conduct that gave rise to the charges in the instant case. However, in PV-2, the	16
district court did find violations based on the September 8, 2017 conduct. Defendant	17
remained in custody until he was convicted of the charges in the instant case on July	18
31, 2018. At that time, the district court amended Defendant’s conditions of release	19

4
to a no-bond hold so that Defendant would begin earning presentence confinement	1
credit.	2
{7} 	The instant case proceeded to sentencing on September 25, 2018. At that time,	3
the district court sentenced Defendant to eleven years, eleven months, and twenty-	4
nine days of imprisonment, followed by one year of parole. The district court	5
suspended three years, eleven months, and twenty-nine days of the sentence. Upon	6
completion of imprisonment, Defendant was further sentenced to three years, eleven	7
months, and twenty-nine days of probation, to run concurrently with his term of	8
parole. 	The 	district 	court 	awarded 	Defendant 	ninety 	days 	of 	presentence	9
confinement credit, which reflected the time he spent in custody between his arrest	10
and arraignment in the instant case, and the time he spent in custody between the	11
conclusion of his trial and his sentencing hearing in the instant case. He appeals.	12
DISCUSSION	13
{8} 	Defendant advances two arguments on appeal: (1) that the district court	14
erroneously calculated his sentence in the instant case by denying him presentence	15
confinement credit for the time spent in custody due to his probation violations; and	16
(2) that his convictions for aggravated fleeing of a law enforcement officer and	17
resisting, evading or obstructing an officer violate his protection against double	18
jeopardy. We address each argument in turn.	19

5
I. 	The 	District 	Court 	Erred 	in 	Its 	Presentence 	Confinement 	Credit	1
Calculation	2
{9} 	The statute that governs awards of presentence confinement credit is NMSA	3
1978, 	Section 	31-20-12 	(1977), 	which 	provides, 	“A 	person 	held 	in 	official	4
confinement on suspicion or charges of the commission of a felony shall, upon	5
conviction of that or a lesser included offense, be given credit for the period spent in	6
presentence confinement against any sentence finally imposed for that offense.” We	7
review the district court’s application of Section 31-20-12 de novo to determine	8
whether Defendant “had a right to presentence credit.” State v. Romero, 2002-	9
NMCA-106, ¶ 6, 132 N.M. 745, 55 P.3d 441. Section 31-20-12 does not afford the	10
district court discretion in awarding presentence confinement credit.2 See Romero,	11
2002-NMCA-106, ¶¶ 6-7 (noting that the statute “requires the district court to grant	12
presentence confinement credit against a final sentence” and expressly rejecting an	13
argument that such action is discretionary (emphasis added)); State v. Miranda,	14
1989-NMCA-068, ¶ 7, 108 N.M. 789, 779 P.2d 976 (noting that the district court is	15
“required” to grant presentence confinement credit “as long as the presentence	16
confinement is related to the charge on which the conviction is based”).	17
2 We take this opportunity to expressly disavow all language from State v.
Irvin, 1992-NMCA-121, ¶¶ 8, 14, 15, 114 N.M. 597, 844 P.2d 847, which may be
taken to suggest that, in cases where Section 31-20-12 governs, the district court
possesses discretion in awarding presentence confinement credit.

6
A. 	Defendant’s Confinement is Related to the Charges in the Instant Case	1
{10} 	Defendant asserts that his presentence confinement in both PV-1 and PV-2	2
“was related to this case, and therefore he is entitled to credit for that confinement.”	3
Meanwhile, the State argues that Defendant “is not entitled to credit against the	4
sentence in this case for confinement after arrest on the charges in this case that	5
coincided with the unexpired term of the sentence(s) in his previous case(s).”	6
{11} 	In deciding whether Defendant is entitled to the credit he seeks, “[t]he	7
determinative issue is whether the basis for [the] defendant’s confinement is actually	8
related to the charge upon which his conviction is based[,]” State v. Page, 1984-	9
NMCA-012, ¶ 26, 100 N.M. 788, 676 P.2d 1353, although the “confinement [need	10
not] be related exclusively to the charges in question.” Miranda, 1989-NMCA-068,	11
¶ 7. To determine if confinement is actually related to the charge, we apply the	12
following three-factor test derived from State v. Facteau, 1990-NMSC-040, ¶ 7, 109	13
N.M. 748, 790 P.2d 1029 and State v. Orona, 1982-NMCA-143, ¶¶ 5-6, 98 N.M.	14
668, 651 P.2d 1312: “(1) whether [the] defendant was originally confined, (2)	15
whether the charges related to the sentence triggered the confinement, and (3)	16
whether bond was set in the case related to the sentence.” Romero, 2002-NMCA-	17
106, ¶ 11.	18
{12} 	While decided before Facteau and Orona, the analysis employed in State v.	19
Ramzy, 1982-NMCA-113, 98 N.M. 436, 649 P.2d 504, is synonymous with the test	20

7
derived from those cases and informs our analysis here. In Ramzy, the defendant was	1
released on an appeal bond for his first case when he acquired charges in a second	2
case. Id. ¶ 4. These subsequent charges led to revocation of the defendant’s appeal	3
bond in his first case, which resulted in his confinement. Id. ¶ 5. This Court held that	4
the subsequent charges that led to the defendant’s parole to be revoked in the first	5
case provided a “sufficient connection” between the defendant’s second case and his	6
confinement to warrant presentence confinement credit. Id. ¶ 11. We reasoned that	7
“[the d]efendant’s incarceration and confinement for the period in question was	8
undoubtedly partly, if not totally, caused by [the] charges” in the second case despite	9
the defendant being held in custody “due to the revocation of the appeal bond in”	10
the first case. Id.	11
{13} 	Like the defendant in Ramzy, Defendant was not originally confined when he	12
acquired the charges in the instant case. The charges in the instant case triggered	13
Defendant’s confinement. Defendant was on probation for PV-2 when he acquired	14
the charges in the instant case. The State petitioned the district court to revoke	15
Defendant’s probation in PV-2 in response to the charges in this case. Finally,	16
Defendant was held without bond for his probation violations in PV-2. We therefore	17

8
conclude 	that 	Defendant 	satisfies 	the 	Facteau/Orona 	test 	and 	is 	entitled 	to	1
presentence confinement credit.3
2
B. 	Defendant is Entitled to Presentence Confinement Credit Once Against	3
the Aggregate of His Sentences	4
{14} 	The State argues that Facteau prohibits granting Defendant presentence	5
confinement credit concurrent with his time in confinement for PV-2 because	6
Defendant’s sentences must run consecutively. See 1990-NMSC-040, ¶ 3. We	7
disagree and explain.	8
{15} 	Although 	the 	State 	is 	correct 	that 	Defendant’s 	sentences 	must 	run	9
consecutively pursuant to NMSA 1978, Section 31-18-21(B) (1977) because the	10
district court did not indicate whether the sentences would run consecutively or	11
3We limit our analysis here to the issue of presentence confinement triggered
by Defendant’s alleged probation violations in PV-2, and not PV-1, as this limitation
will not affect the amount of presentence confinement that Defendant is entitled to
receive; Defendant was incarcerated for the same time period for both PV-1 and
PV-2, and, as we explain below, he can only receive credit once for that time period.
We also note that our precedent is not clear as to whether the Facteau/Orona
test involves weighing the factors or if the three factors are requirements, all of which
must be satisfied for a defendant to receive credit. See, e.g., Orona, 1982-NMCA-
143, ¶ 6. However, the parties have not briefed the question, and we need not answer
it to dispose of this appeal, as Defendant meets all three factors. Therefore, we do
not address it. See Crist v. Town of Gallup, 1947-NMSC-012, ¶ 14, 51 N.M. 286,
183 P.2d 156 (stating that appellate courts need not address questions unnecessary
for the resolution of the case), superseded by statute on other grounds as stated in
Hoover v. City of Albuquerque, 1954-NMSC-043, ¶ 5, 58 N.M. 250, 270 P.2d 386.

9
concurrently, the State is incorrect about the ramifications of the sentences running	1
consecutively.4
2
{16} 	In Miranda, we adopted the rule that “an offender who receives consecutive	3
sentences is entitled to presentence incarceration credit only once against the	4
aggregate of all the sentences, while an offender sentenced to concurrent terms in	5
effect receives credit against each sentence.” 1989-NMCA-068, ¶ 11. Likewise, we	6
noted in Romero that	7
[t]he issue [is] not whether to ‘double count’ days of presentence	8
confinement credit, but rather whether the defendant would be given	9
credit for both time that was part of the regular sentence in the prior	10
case and time for the presentence credit in the subsequent case. . . . Our	11
law requires presentence credit when the credit was acquired while	12
serving a prior sentence under certain circumstances; it does not require	13
a multiplication of days of presentence credit.	14
4 We note that in 	Irvin, this Court interpreted Section 31-18-21(A) “as
removing discretion from the sentencing judge, such that when a person commits a
crime while serving time in a penal institution, the sentencing judge must impose the
sentence on the new crime consecutive to the sentence that was being served when
the crime was committed.” 1992-NMCA-121, ¶ 11. This is consistent with Facteau,
where the defendant was serving a sentence for burglary in a penal institution when
he escaped. 1990-NMSC-040, ¶ 1. Our Supreme Court held that “confinement [was]
not ‘presentence’ because [the] defendant had been previously sentenced and was
serving time for burglary.” Id. ¶ 3. On the other hand, the codefendant’s award of
presentence confinement was appropriate because the codefendant was out on parole
and not serving time in a penal institution. Id. ¶ 4. Thus, our Supreme Court reasoned
that “[the d]efendant was treated differently because his legal status was different
than [the] co[-]defendant.” Id. Here, Defendant was on probation in PV-2; therefore,
the mandatory language of Section 31-18-21(A) does not apply.

10
2002-NMCA-106, ¶ 13 (citations omitted). Since Defendant’s sentences must run	1
consecutively, he is entitled to credit only once against the aggregate of his sentences	2
in PV-2 and the instant case.5
3
II. 	Defendant’s Convictions for Aggravated Fleeing of a Law Enforcement	4
Officer and Resisting, Evading or Obstructing an Officer Violate His	5
Protection Against Double Jeopardy	6
{17} 	“No person shall be twice put in jeopardy for the same crime. The defense of	7
double jeopardy may not be waived and may be raised by the accused at any stage	8
of a criminal prosecution, either before or after judgment.” NMSA 1978, § 30-1-10	9
(1963). Generally, double jeopardy claims present a question of law requiring de	10
novo review. State v. Bernal, 2006-NMSC-050, ¶ 6, 140 N.M. 644, 146 P.3d 289.	11
In this case, however, the State concedes Defendant’s position that his convictions	12
for aggravated fleeing of a law enforcement officer and resisting, evading or	13
obstructing an officer violate double jeopardy. While we are not required to accept	14
the State’s concession, we accept it under the facts of this case as supported by our	15
precedent and offer a brief analysis. See, e.g., State v. Alvarez, 2018-NMCA-006,	16
5Defendant also argues that “[t]he New Mexico Constitution did not require
[him] to be ordered ‘released’ or denied presentence confinement when he was in
fact held in custody.” The State did not contest this issue. However, Defendant fails
to adequately brief this constitutional issue. “This Court will not rule on an
inadequately-briefed issue where doing so would require this Court to develop the
arguments itself, effectively performing the parties’ work for them.” State v. Flores,
2015-NMCA-002, ¶ 17, 340 P.3d 622 (internal quotation marks and citation
omitted). Considering an analysis of this issue does not impact the result of this
Court’s holding, we decline to address this issue further.

11
¶ 24, 409 P.3d 950 (agreeing with the state’s concession that the defendant’s	1
conviction should be vacated but noting that such concessions are not binding on	2
appellate courts). “Where we conclude that double jeopardy has been violated, we	3
vacate the lesser offense and retain the conviction for the greater offense.” State v.	4
Padilla, 2006-NMCA-107, ¶ 36, 140 N.M. 333, 142 P.3d 921, rev’d on other	5
grounds, 2008-NMSC-006, ¶¶ 1, 34, 143 N.M. 310, 170 P.3d 299.	6
{18} 	The parties direct us to our opinion in Padilla as requiring vacation of	7
Defendant’s conviction for resisting, evading or obstructing an officer. There, the	8
defendant led an officer on a vehicle chase until he reached an obstruction in his	9
path, at which point he left the vehicle “and crawled under a nearby mobile home”	10
before he was arrested. Id. ¶ 5. The defendant was charged with and convicted of	11
aggravated fleeing of a law enforcement officer and resisting, evading or obstructing	12
an officer. Id. ¶¶ 1, 5-6. Employing a double-description, double jeopardy analysis,	13
we held the defendant’s actions were “one distinct course of conduct” and that the	14
Legislature did not intend multiple punishments in such situations. Id. ¶¶ 30, 35.	15
Accordingly, this Court concluded that resisting, evading or obstructing an officer is	16
a lesser included offense of aggravated fleeing a law enforcement officer, and that	17
the defendant could not be convicted of both because his conduct was unitary. Id.	18
¶ 35. Such is the case here.	19

12
{19} 	Defendant’s conduct is nearly identical to that of the defendant in Padilla.	1
Here, Defendant led officers on a vehicle chase until he stopped and exited the	2
vehicle and ran away from officers. Defendant was then found in a shed. As was true	3
in Padilla, the evidence did not show “a separation in time or space between acts or	4
changes in the nature, intent, or objective of the conduct” at issue here. Id. ¶ 30. As	5
such, Defendant’s convictions for both aggravated fleeing of a law enforcement	6
officer and resisting, evading or obstructing an officer violate his protection against	7
double jeopardy. We therefore hold that because Defendant’s conduct was unitary,	8
Defendant’s conviction for resisting, evading or obstructing an officer must be	9
vacated, as it is a lesser included offense of Defendant’s conviction for aggravated	10
fleeing of a law enforcement officer.	11
CONCLUSION	12
{20} 	For the foregoing reasons, we reverse the district court’s ruling on presentence	13
confinement credit and Defendant’s conviction for resisting, evading or obstructing	14
an officer. We remand this case to the district court with instructions to enter an	15
amended judgment and sentence granting Defendant an additional 293 days of	16
presentence 	confinement 	credit, 	and 	to 	vacate 	the 	above-named 	conviction	17
consistent with this opinion.	18

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{21} 	IT IS SO ORDERED.	1
2
SHAMMARA H. HENDERSON, Judge	3
WE CONCUR:	4
5
JACQUELINE R. MEDINA, Judge	6
7
ZACHARY A. IVES, Judge	8