July 12, 2015 – State v. Daniel G. Aragon, No. 34,653

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: July 12, 2016
NO. 34,653
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
DANIEL G. ARAGON,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Mary L. Marlowe Sommer, District Judge
Hector H. Balderas, Attorney General
Santa Fe, NM
Tonya Noonan Herring, Assistant Attorney General
Albuquerque, NM
for Appellee
Gregory Gahan
Albuquerque, NM
for Appellant

OPINION
SUTIN, Judge.
{1} 	On appeal, Defendant Daniel G. Aragon attempts to have a misdemeanor
driving while intoxicated (DWI) conviction in a de novo bench trial in district court
dismissed because the DWI charge and a traffic citation were not joined under the
compulsory joinder rule, Rule 5-203(A) NMRA. We hold that the compulsory joinder
rule does not require joinder in this case, and therefore the district court did not err in
denying Defendant’s motion to dismiss.
BACKGROUND
{2} 	Defendant was stopped by Officer Adrian Diaz for driving 111 miles per hour
in a 55 miles-per-hour zone. During the traffic stop, Officer Diaz determined that
Defendant was impaired, and he placed Defendant under arrest for DWI.
{3} 	Defendant was arraigned on a third degree felony DWI charge in the Santa Fe
County Magistrate Court, but the charge was quickly dismissed without prejudice
pending the outcome of the prosecution’s investigation into whether the DWI was
Defendant’s sixth offense, which would be a third degree felony. See NMSA 1978,
§ 66-8-102(I) (2010). The speeding charge was filed in a separate magistrate court
cause two days after the dismissal without prejudice of the DWI felony charge, and

1 The applicable rule was magistrate court compulsory joinder Rule 6-306(A),
which is virtually identical to Rule 5-203(A).
2
Defendant pleaded no contest to the speeding charge and agreed to pay the fine and
fees.
{4} 	Approximately three months after Defendant’s plea to the speeding citation, the
State determined, based on its felony investigation, that the DWI should be charged
as a misdemeanor second offense and not a felony sixth offense. Thereafter, the State
filed a misdemeanor DWI (0.08) second offense charge against Defendant in the
original magistrate court DWI cause. Defendant filed and the magistrate court denied
a motion to dismiss based on Rule 5-203(A), which is a district court rule.1 Compare
Rule 5-203(A), with Rule 6-306(A) NMRA (Rules of Criminal Procedure for the
Magistrate Courts). Defendant was convicted by a jury of DWI (0.08) second offense,
and he appealed to the district court.
{5} 	In his district court appeal, Defendant filed a motion to dismiss under Rule 5-
203(A), again arguing that the misdemeanor charge should be dismissed because it
had not been joined with the speeding citation. The district court denied the motion,
and after a de novo bench trial, the court entered an order finding Defendant guilty
and remanding the matter to magistrate court for imposition of that court’s sentence.

3
{6} 	On appeal to this Court from the district court’s orders denying his motion to
dismiss and finding Defendant guilty and remanding the matter to the magistrate court
to impose sentence, Defendant argues that the prosecution of the DWI charge was
barred by Rule 5-203(A) (and perhaps, but not clearly, also by the magistrate court
compulsory joinder Rule 6-306(A)), as interpreted and applied in State v. Gonzales,
2013-NMSC-016, ¶¶ 25-33, 301 P.3d 380.
DISCUSSION
{7} 	Whether a criminal statute applies to particular conduct is a question of law to
be reviewed de novo. State v. Office of Pub. Defender ex rel. Muqqddin, 2012-NMSC-
029, ¶ 13, 285 P.3d 622.
{8} 	The critical issue is whether Rule 5-203(A) was violated when the DWI and
traffic offense were not joined. Rule 5-203(A), broadly states:
Two or more offenses shall be joined in one complaint, indictment[,] or
information with each offense stated in a separate count, if the offenses,
whether felonies or misdemeanors or both:
(1) 	are of the same or similar character, even if not part of a
single scheme or plan; or
(2) 	are based on the same conduct or on a series of acts either
connected together or constituting parts of a single scheme or plan.
Gonzales provides no limitations, but states the purpose of compulsory joinder.
The purpose of a compulsory joinder statute, viewed as a whole, is
twofold: (1) to protect a defendant from the governmental harassment of

2 In his special concurrence, Chief Judge Vigil concludes that Rule 5-203(A)
does not apply because the traffic offense was not pending concurrently with the DWI
charge in the district court. We did not adopt the Chief Judge’s interpretation because
the compulsory joinder rule focuses on the similarity in character or conduct of
offenses and does not state that compulsory joinder only applies to related offenses
that are concurrently pending. If the relevant inquiry was whether charges were
concurrently pending, prosecutors would be able to avoid the compulsory joinder rule
by making sure only one charge is pending at any given time. That sort of piecemeal
approach to prosecuting appears to be what the compulsory joinder rule seeks to
prevent.
4
being subjected to successive trials for offenses stemming from the same
criminal episode; and (2) to ensure finality without unduly burdening the
judicial process by repetitious litigation.
Gonzales, 2013-NMSC-016, ¶ 26 (alteration, internal quotation marks, and citation
omitted). We conclude that nothing in the language of Rule 5-203(A) required
compulsory joinder in this case. 2
{9} 	The uniform traffic citation for speeding containing a hearing notice is a
complaint. NMSA 1978, § 66-8-128 (2013); NMSA 1978, § 66-8-131 (1990); see also
NMSA 	1978, 	§ 	66-8-116(A)(7) 	(2011, 	amended 	2016) 	(setting 	the 	penalty
assessments for speeding more than 35 miles per hour over the speed limit at $200).
We see no reason why the State could not proceed with and resolve the traffic citation
in magistrate court with Defendant’s no contest plea. Nor do we see any reason why
later, after determining that the DWI should not be filed as a felony, the State could

3 Defendant has at no time suggested that the State was required to dismiss the
citation without prejudice along with the DWI charge and to then bring both charges
in one proceeding.
5
not then file a misdemeanor DWI charge in magistrate court. 3 Further, the speeding
offense played no part in the per se 0.08 charge and conviction. Thus, the offenses are
not of the same or similar character, nor are the offenses based on the same conduct.
See Rule 5-203(A). In addition, to hold that joinder here was compulsory would, in
our view, not be a rational disposition. American Bar Association (ABA) Standards
for Criminal Justice Section 13-2.3(d) (2d ed. 1980) and Model Penal Code
Section 1.11(2) (Am. Law Inst. 2015), each side with the view that a defendant’s entry
of a no contest plea to a lesser offense such as the traffic citation here does not bar a
subsequent prosecution of an additional, greater offense even if the two offenses occur
during one episode. See ABA Standards § 13-2.3(d) (“Entry of a plea of guilty or nolo
contendere to one offense does not bar the subsequent prosecution of any additional
offense based upon the same conduct or the same criminal episode.”); Model Penal
Code § 1.11(2) (stating that a prosecution is not barred where the “former prosecution
was procured by the defendant without the knowledge of the appropriate prosecuting
officer and with the purpose of avoiding the sentence that might otherwise be

4 An analysis of Gonzales and of the compulsory joinder rule’s breadth and lack
of reasonable limitations, as well as related expectations and concerns about the
consequences, and case-by-case court imposed limitations on the rule, is contained in
Ryan C. Schotter, State v. Gonzales: Reinvigorating Criminal Joinder in New Mexico,
44 N.M. L. Rev. 467 (2014). Schotter makes good points in his article and brings to
light the breadth of Rule 5-203(A) with its lack of reasonable limitations, requiring
case-by-case considerations of reasonable limitations. Schotter, supra, at 500.
6
imposed”). A defendant should not be allowed to bar his later prosecution simply by
rushing to plead to a considerably lesser traffic offense. 4
CONCLUSION
{10} 	The district court did not err in denying Defendant’s motion to dismiss the DWI
charge based on the compulsory joinder rule. We affirm the district court’s
sentencing-related order.
{11} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge
I CONCUR:
_______________________________
LINDA M. VANZI, Judge
MICHAEL E. VIGIL, Chief Judge (specially concurring).

7
VIGIL, Chief Judge (specially concurring).
{12} 	The majority states that the “critical issue is whether Rule 5-203(A) was
violated when the DWI and traffic offense were not joined.” Majority Op. ¶ 8. I
disagree with this characterization of the issue because I conclude there was no traffic
offense to join with the DWI charge in the district court. For this reason I conclude
that Rule 5-203(A) did not apply and therefore specially concur.
{13} 	We do not have copies of all the pleadings filed in the magistrate court. See
Rule 5-826(F)(2) NMRA (requiring the magistrate court clerk to file with the district
court clerk a copy of all papers and pleadings filed in the magistrate court in appeals
from the magistrate court to the district court). For the factual background, we are
therefore required to rely on Defendant’s motion to dismiss and the State’s response.
According to these pleadings, Defendant was issued a citation for speeding and
arrested and charged with felony DWI (sixth offense) in the Santa Fe County
Magistrate Court on November 24, 2012. Defendant was arraigned in the magistrate
court on the felony DWI charge on November 26, 2012, and on December 5, 2012,
the felony DWI charge was dismissed without prejudice so that the State could
investigate how many prior DWI convictions Defendant actually had. There is no
allegation that this was done for any improper purpose. On March 25, 2013,
Defendant pleaded no contest to the speeding charge. The DWI charge was re-filed

8
in the magistrate court on July 10, 2013, as a misdemeanor DWI (second offense), and
trial on the re-filed DWI case was held in the magistrate court on April 18, 2014.
{14} 	When Defendant pleaded no contest to the speeding charge on March 25, 2013,
that was the only charge pending because the separately filed felony DWI had been
dismissed. When the misdemeanor DWI charge was re-filed on July 10, 2013, that
was the only charge pending because the speeding case was already resolved. Thus,
the joinder requirement of the magistrate court, Rule 6-306(A), was not applicable.
There never were two or more offenses to join.
{15} 	But that does not end the matter. Defendant was found guilty of the
misdemeanor DWI charge in the magistrate court on April 18, 2014. He was found
guilty of the only charge pending against him, and he appealed that conviction to the
district court for a de novo trial. This meant that the case was to be tried in the district
court anew as if no trial had been held in the magistrate court. State v. Armijo, No.
34,400, 2016 WL 3266595, 2016-NMSC-___, ¶ 28, ___ P.3d ___ (June 13, 2016).
Defendant moved the district court to dismiss the DWI with prejudice “based on [Rule
5-203(A),] the compulsory joinder rule[.]” When Defendant filed his motion to
dismiss in the district court, there was only one charge—the DWI—and there was no
other crime that could be joined with the DWI under Rule 5-203(A). The district court
therefore properly denied Defendant’s motion.

9
{16} 	The majority does not explain how mandatory joinder under Rule 5-203(A)
should be considered under these circumstances. I conclude it does not and that there
was no error in denying Defendant’s motion to dismiss. Even if mandatory joinder
could somehow be invoked, Defendant would not be entitled to relief under the
harmless error rule set forth in Rule 6-303(A) NMRA and Rule 6-704 NMRA.
Moreover, I respectfully submit that the majority’s discussion of ABA Standards
Section 13-2.3(d) and Model Penal Code Section 1.11(2) is purely advisory under the
circumstances.
______________________________
MICHAEL E. VIGIL, Chief Judge