January 7, 2021- State of New Mexico v. Alejandro M., No. A-1-CA-39004

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: ________________	2
Filing Date: January 7, 2021	3
NO. A-1-CA-39004	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
ALEJANDRO M.,	8
Child-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY	10
Jeffrey A. Shannon, District Judge	11
Hector H. Balderas, Attorney General	12
Maris Veidemanis, Assistant Attorney General	13
Santa Fe, NM	14
for Appellee	15
Liane E. Kerr	16
Albuquerque, NM	17
for Appellant	18
Court of Appeals of New Mexico
Filed 1/7/2021 10:17 AM

OPINION	1
B. ZAMORA, Judge.	2
{1} 	In this interlocutory appeal, Alejandro M. (Child) contends that the district	3
court erred in denying his emergency motion to quash or dismiss the State’s notice	4
of intent to seek adult sanctions against him. The district court denied the motion,	5
finding that the COVID-19 pandemic constituted an “exceptional circumstance”	6
under Rule 10-213(D) NMRA, justifying an extension of the time limit for	7
determining probable cause at a preliminary hearing. We affirm.	8
BACKGROUND	9
{2} 	The State charged Child with shooting at or from a motor vehicle, contrary to	10
NMSA 1978, Section 30-3-8(B) (1993); aggravated battery with a deadly weapon,	11
contrary to NMSA 1978, Section 30-3-5 (A), (C) (1969); and two counts of	12
tampering with evidence, contrary to NMSA 1978, Section 30-22-5(A) (2003). On	13
March 26, 2020, the State filed a notice of intent to seek adjudication of Child as a	14
youthful offender and to invoke an adult sentence and a preliminary hearing was set	15
for April 6, 2020. Child was permitted to appear by remote means in accordance	16
with social-distancing best practices to avoid spreading the COVID-19 virus. Due to	17
technical difficulties, Child appeared by phone rather than by video during the	18
preliminary hearing, and because Child was not visible, the prosecution’s witness	19
was unable to identify him. There is no indication that Child ever notified the State	20

2
or the district court that he would be unable to appear by video. Defense counsel	1
raised identification as a contested issue for the first time during the preliminary	2
hearing. In response, the district court continued the hearing and required Child to	3
appear in person at the next hearing to provide the State with an opportunity to	4
identify Child. The State requested a one-week continuance, but defense counsel	5
asked for a two-week continuance. Accommodating Child’s request, the court	6
scheduled the hearing for April 28, 2020, thirty-three days after the State filed its	7
notice of intent to proceed against Child as a youthful offender.	8
{3} 	One day prior to the April 28, 2020 hearing, Child filed an emergency motion	9
to quash or dismiss the State’s notice of intent to seek adult sanctions because a	10
probable cause determination had not been made within thirty days after the State	11
filed the notice. On April 28, 2020, the district court denied Child’s motion. The	12
district court found that the COVID-19 pandemic constituted an exceptional	13
circumstance justifying extending the time limit under Rule 10-213(D). Child was	14
identified during the hearing that day, and the district court found that probable cause	15
existed. The district court then granted Child’s motion to certify the denial of Child’s	16
motion to quash to this Court as an interlocutory appeal.	17
DISCUSSION	18
{4} 	Resolution of this appeal turns upon whether the COVID-19 pandemic	19
constitutes an “exceptional circumstance[]” under Rule 10-213(D), such that the	20

3
district court was justified in extending the deadline for making a probable cause	1
determination under Rule 10-213. 1 Child argues that the district court erred in	2
denying Child’s motion to quash because the COVID-19 pandemic was not an	3
“exceptional circumstance” justifying extension of time under Rule 10-213(D), and	4
further argues that the state had an affirmative obligation to request a hearing within	5
the thirty-day timeline. We disagree.	6
{5} 	We review a district court’s interpretation of rules of procedure de novo. State	7
v. Stephen F., 2006-NMSC-030, ¶ 7, 140 N.M. 24, 139 P.3d 184 (applying de novo	8
review to interpretation of children’s court rules). However, we review a district	9
court’s decision to deny or grant a continuance or extension under an abuse of	10
discretion standard. See State v. Anthony L., 2019-NMCA-003, ¶¶ 7-8, 16, 433 P.3d	11
347 (holding that the district court did not abuse its discretion in granting an	12
extension to commence a child’s adjudication under the Children’s Code); see also	13
Vigil v. Fogerson, 2006-NMCA-010, ¶ 56, 138 N.M. 822, 126 P.3d 1186 (noting	14
that we consider relief for exceptional circumstances to be an equitable remedy,	15
which we review for an abuse of discretion). An abuse of discretion occurs when the	16
ruling is “clearly untenable or not justified by reason.” State v. Candelaria, 2008-	17
1 Child 	does 	not 	contend 	that 	the 	requirement 	that 	a 	probable 	cause
determination be made within ten days was violated, see Rule 10-213(B)(1), but
instead argues only that the district court erred in extending the thirty-day timeline
under Rule 10-213(B)(2).

4
NMCA-120, ¶ 12, 144 N.M. 797, 192 P.3d 792 (internal quotation marks and	1
citation omitted). We review the evidence in the light most favorable to the district	2
court’s decision. Id.	3
{6} 	Rule 10-213(B) provides:	4
B. 	Probable cause determination	5
(1) 	Timing. Unless the child waives the right to a probable	6
cause determination, such a determination shall be made within ten (10)	7
days from the last to occur of the following:	8
(a) the filing of a notice of intent to seek adult sanctions;	9
or	10
(b) the filing of a peremptory election to excuse a judge	11
under Rule 10-162 NMRA.	12
(2) 	Extensions of time. The children’s court, for good cause	13
shown, may extend the time for a probable cause determination,	14
provided that such time shall not be extended to more than thirty (30)	15
days from the last to occur of Subparagraph (B)(1)(a) or (b) under this	16
rule.	17
Rule 10-213(D) provides, “Absent a showing of exceptional circumstances, a failure	18
to comply with the time limits set forth in this rule shall require proceeding under	19
these rules as they apply to delinquent children and shall preclude imposing adult	20
sanctions against the child.”	21
{7} 	No 	New 	Mexico 	court 	has 	interpreted 	the 	meaning 	of 	“exceptional	22
circumstances” under Rule 10-213(D). The State agrees with Child’s definition of	23
“exceptional circumstances” taken from Black’s Law Dictionary, which defines the	24

5
phrase as “conditions which are out of the ordinary course of events; unusual or	1
extraordinary.” Exceptional Circumstance, Black’s Law Dictionary 560 (6th ed.	2
1990). While we are not bound by parties’ stipulations or concessions, we view such	3
stipulations with favor. See Tucson Elec. Power Co. v. Tax’n & Revenue Dep’t,	4
2020-NMCA-011, ¶ 10, 456 P.3d 1085. Our own review indicates that New Mexico	5
courts 	have 	defined 	“exceptional 	circumstances” 	in 	other 	contexts 	as 	those	6
circumstances “beyond the control of the parties or court[,]” Duran v. Eichwald,	7
2009-NMSC-030, ¶¶ 7-8, 146 N.M. 341, 210 P.3d 238, and as “conditions that are	8
unusual or extraordinary, such as death or illness of the judge, prosecutor, or defense	9
attorney immediately preceding the commencement of trial; or other circumstances	10
that ordinary experience or prudence would not foresee, anticipate, or provide for[.]”	11
State v. Rangel-Vasquez, No. A-1-CA-35695, mem. op. ¶ 13 (N.M. Ct. App. Aug.	12
1, 2018) (non-precedential) (quoting Rule 7-506 NMRA comm. cmt.); accord	13
Trujillo v. Serrano, 1994-NMSC-024, ¶ 19, 117 N.M. 273, 871 P.2d 369 (holding	14
that “[o]nly the most unusual circumstances beyond the control of the parties—such	15
as error on the part of the court—will warrant overlooking procedural defects”). We	16
hold that “exceptional circumstances” for purposes of Rule 10-213(D) are those	17
circumstances out of the ordinary course of events, that ordinary experience or	18
prudence would not foresee, anticipate, or provide for, that are beyond the control	19
of the parties and the court.	20

6
{8} 	We now turn to the facts relied on by the district court to determine whether	1
the district court’s decision to extend the deadline under Rule 10-213(B) was an	2
abuse of its discretion. We conclude that it was not. COVID-19 is a rapidly evolving	3
public health crisis of an extraordinary magnitude. See United States v. Stephens,	4
447 F. Supp. 3d 63, 65 (S.D.N.Y. 2020) (“[T]he unprecedented and extraordinarily	5
dangerous 	nature 	of 	the 	COVID-19 	pandemic 	has 	become 	apparent.”). The	6
pandemic was recognized as a public health emergency in New Mexico on March	7
11, 2020, when an executive order was issued declaring a public health emergency	8
due to the spread of COVID-19. See State of N.M., Executive Order 2020-004	9
(March 11, 2020), https://www.governor.state.nm.us/wp-content/uploads/2020/03/	10
Executive-Order-2020-004.pdf. Six days later, on March 17, 2020, our Supreme	11
Court issued Order No. 20-8500-002 suspending “all criminal jury trials arising	12
under the Rules of Criminal Procedure for the District, Metropolitan, and Magistrate	13
Courts that have not yet commenced[.]” See Supreme Court Order No. 20-8500-002,	14
at 3 (March 17, 2020), https://www.nmcourts.gov/uploads/files/COVID-19/Order	15
%20No_%2020-8500-002%20(Precautionary%20Measures%20for%20NM%20	16
Court%20Operations%20During%20COVID-19%20Public%20Health%20Emer	17
gency%203-17-20)%20(1).pdf. On April 6, 2020, the day of the preliminary hearing,	18
the March 11, 2020 executive order was extended proclaiming a “public health	19
emergency[.]” See State of N.M., Executive Order 2020-022 (April 6, 2020),	20

7
https://www.governor.state.nm.us/wp-content/uploads/2020/04/EO_2020_022.pdf.	1
Finally, four days after the first preliminary hearing that was continued, the Supreme	2
Court issued Order No. 20-8500-012, outlining procedures to be utilized when issues	3
regarding identification of a defendant arise. See Supreme Court Order No. 20-8500-	4
012, 	at 	2 	(April 	10, 	2020), 	https://www.nmcourts.gov/uploads/files/COVID-	5
19/Order%20No_%2020-8500-012%20Amendments%20to%20Certain%20Proc	6
edrual%20Requirements%20for%20all%20Proceedings%20and%20Case%20Type	7
s%20During%20COVID-19%20PHE%204-10-20.pdf. In relevant part, this order	8
required a party “challenging the identification of a defendant . . . [to] notify the	9
court and opposing counsel at least forty-eight (48) hours before the hearing so that	10
the 	court 	and 	opposing 	counsel 	have 	adequate 	time 	to 	prepare 	and 	make	11
arrangements for conducting the hearing in a manner conducive to addressing and	12
resolving a challenge to the identity of the defendant.”2 Id. Based on these orders,	13
the district court found that the COVID-19 pandemic was a public health emergency	14
constituting an “exceptional circumstance.” 3 The district court found that “the	15
hearing would have occurred within the . . . deadline but for the COVID-19	16
2While it is axiomatic that Child was not required to adhere to the procedure
outlined in Supreme Court Order No. 20-8500-002 for the preliminary hearing
because the order was issued only after the hearing had already been held, we do
agree that the adoption of this order evidences the seriousness of the COVID-19
pandemic.
3In addition, defense counsel specifically acknowledged that the COVID-19
pandemic “is an unprecedented public health crisis.”

8
pandemic precautions and identification issue raised by Child during the first	1
hearing” and that “the COVID-19 pandemic and the precautionary measures that are	2
being followed because of it are exceptional circumstances that justify extending the	3
[thirty-]day deadline by three days under Rule 10-213(D)[.]”	4
{9} 	The district court’s finding is consistent with the holdings of courts in other	5
jurisdictions 	that 	have 	held 	that 	the 	COVID-19 	pandemic 	and 	its 	attendant	6
precautionary social-distancing requirements constitute exceptional circumstances	7
warranting the extension of deadlines. See, e.g., United States v. Carrilllo-Villa, 451	8
F. Supp. 3d 257, 260 (S.D.N.Y. 2020) (holding that the outbreak of COVID-19 and	9
responses to it presented extraordinary circumstances, and thus, justice required	10
delay in the deadline for holding preliminary hearing); People ex rel. Arogyaswamy	11
v. Brann, 68 Misc. 3d 738, 744, 126 N.Y.S.3d 341, 346 (N.Y. Sup. Ct. 2020) (“The	12
delay beyond the 144 hours for a preliminary hearing specified in the statute is	13
justified and falls under the rubric of ‘good cause.’ ”); Baldree v. Vallen Distrib.,	14
Inc., 2020 WL 6875156, at *5 (W.D.N.C. Nov. 23, 2020) (non-precedential)	15
(granting equitable tolling in light of ongoing “extraordinary circumstances” created	16
by the COVID-19 pandemic); Dale v. Williams, 2020 WL 4904624, at *1 (D. Nev.	17
Aug. 20, 2020) (non-precedential) (“[T]he COVID-19 pandemic is an extraordinary	18
circumstance that is preventing parties from meeting deadlines established both by	19
rules and by statutes.”). Similarly, we hold that the district court acted within its	20

9
discretion in finding that the COVID-19 pandemic and the resulting precautionary	1
measures were exceptional circumstances warranting an extension of time to make	2
a probable cause determination under Rule 10-213(B).	3
{10} 	We briefly address Child’s argument that it was the State’s obligation to	4
establish identity and that the State should have accordingly filed a motion requiring	5
Child to appear at an earlier court date within the thirty-day timeline set by Rule 10-	6
213(B)(2). We are not persuaded that it was incumbent upon the State to reschedule	7
the preliminary hearing within the thirty-day timeline after technical difficulties	8
prevented Child from appearing by video during the April 6, 2020 hearing. First,	9
there is no indication that the State could or should have anticipated that Child would	10
be unable to appear by video during the first preliminary hearing. Second, it was	11
Child, and not the State, who asked for a two-week extension, placing the second	12
hearing outside of the thirty-day timeline. Thus, the second preliminary hearing was	13
scheduled on day thirty-three of the Rule 10-213(B) timeline as a result of defense	14
counsel’s request, and not as a result of inadvertence on the part of the State. In other	15
words, the rescheduling of the otherwise timely initial hearing due to unforeseen	16
complications arising from judicial responses and safeguards responsive to the	17
COVID-19 pandemic was a circumstance out of the ordinary course of events that	18
was unforeseeable and beyond the control of the parties and the district court.	19

10
{11} 	Having concluded that COVID-19 constitutes an exceptional circumstance,	1
we do not believe the district court abused its discretion in granting a continuance in	2
this case. 4
3
CONCLUSION	4
{12} 	We affirm.	5
{13} 	IT IS SO ORDERED.	6
_________________________________	7
BRIANA H. ZAMORA, Judge	8
WE CONCUR:	9
_________________________________	10
J. MILES HANISEE, Chief Judge	11
_________________________________	12
JACQUELINE R. MEDINA, Judge	13
4Given our opinion today, we need not address Child’s argument that the State
attempted to circumvent the rule by filing an amended petition on the morning of the
continued hearing, nor do we address Child’s arguments citing to Rule 5-604
NMRA, a rule unrelated to the issue we resolve today.