January 31, 2022- State of New Mexico v. Clayton Thomas Benedict, No. A-1-CA-38523

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in Odyssey.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ________________
Filing Date: January 31, 2022
No. A-1-CA-38523
STATE OF NEW MEXICO,	5
Plaintiff-Appellant,	6
v.	7
CLAYTON THOMAS BENEDICT,	8
Defendant-Appellee.	9
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	10
Brett Loveless, District Judge	11
Hector H. Balderas, Attorney General	12
Benjamin L. Lammons, Assistant Attorney General	13
Santa Fe, NM	14
for Appellant	15
Bennett J. Baur, Chief Public Defender	16
Mary Barket, Assistant Appellate Defender	17
Santa Fe, NM	18
for Appellee	19
Court of Appeals of New Mexico
Filed 1/31/2022 10:36 AM

OPINION	1
YOHALEM, Judge.	2
{1} 	Defendant Clayton Thomas Benedict was charged by the State with second-	3
degree 	murder 	and 	the 	lesser 	included 	offense 	of 	voluntary 	manslaughter.	4
Defendant, an Uber driver, picked up two intoxicated passengers late afternoon on	5
Saint Patrick’s Day 2019. One of the passengers vomited in the backseat of	6
Defendant’s car. Minutes later, Defendant stopped along the shoulder of I-25 and	7
told the passengers to get out of the car. An argument about paying a clean-up fee	8
escalated into what Defendant saw as an attack sufficient to provoke him into fatally	9
shooting James Porter (Victim), one of his passengers.	10
{2} 	The State appeals pursuant to NMSA 1978, Section 39-3-3(B)(1) (1972), from	11
the district court’s decision that there was no probable cause to bind Defendant over	12
for trial on second-degree murder. The district court found probable cause solely on	13
the lesser included offense of voluntary manslaughter. We agree with the State that	14
the district court erred in failing to find probable cause to bind Defendant over for	15
trial 	on 	second-degree 	murder 	and 	remand 	for 	amendment 	of 	the 	criminal	16
information to include that charge.	17
BACKGROUND	18
{3} 	The State filed a criminal information charging Defendant with second-degree	19
murder, 	pursuant 	to 	NMSA 	1978, 	Section 	30-2-1(B) 	(1994), 	and 	voluntary	20
manslaughter, pursuant to NMSA 1978, Section 30-2-3(A) (1994). The case	21

2
proceeded to a preliminary hearing, as required by Article II, Section 14 of the New	1
Mexico Constitution when the State prosecutes a felony by criminal information,	2
rather than by grand jury indictment. The procedures in the district court for a	3
preliminary examination are set forth in Rule 5-302 NMRA.	4
{4} 	At the preliminary examination, the State introduced into evidence a video	5
recording of an hour-long interview of Defendant by law enforcement on the night	6
of the shooting. The entire record interview was played for the district court during	7
the preliminary hearing. Defendant’s interview was the only evidence of the events	8
leading up to the shooting of Victim that night.	9
{5} 	Defendant testified that he picked up Victim and Victim’s friend, Jonathan	10
Reyes, from a local bar. Reyes was so drunk he was on the ground, and Victim was	11
trying to get him on his feet. Once both passengers were in the vehicle, Defendant	12
noticed Reyes looked “woozy,” so he rolled down the window for him, and asked	13
both Victim and Reyes to let him know if Reyes needed to vomit, so he could pull	14
over. A minute or two later, as Defendant approached the entrance to I-25, Reyes	15
vomited all over the back seat of Defendant’s car.	16
{6} 	Defendant told his passengers that Uber would charge Victim (who had hailed	17
the ride) a clean-up fee, which angered Victim. It was undisputed that it was Uber’s	18
policy to charge a clean-up fee when a passenger vomited in a driver’s vehicle. When	19

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Reyes looked like he was about to vomit again, Defendant pulled over on the	1
shoulder of the highway and asked both passengers to get out.	2
{7} 	Both passengers got out of the vehicle through the passenger’s side back door,	3
and Victim slammed the door behind him. Defendant opened the door, partially	4
stepped out of the driver’s seat, and told Victim not to slam his door. Victim began	5
pulling off his hat, sunglasses, and necklaces throwing them on the ground, and	6
started walking toward Defendant, moving from the passenger’s side of the vehicle,	7
around the tail end, toward the driver’s door. Reyes told Victim it was “not worth it”	8
and that they should just leave.	9
{8} 	Defendant told Victim to listen to his friend and advised both of them to go to	10
the nearest stoplight, which was visible about a block away, sober up, and call	11
another ride. Victim then pushed his friend aside and started moving toward	12
Defendant again. Defendant pulled out a concealed handgun (which he was	13
authorized to carry) stepped completely out of the driver’s side of the vehicle, aimed	14
the gun at Victim, and told Victim to “stop, back up, get away from me,” and to “let	15
me get in my car and leave.” Victim stopped momentarily, but then began	16
approaching Defendant again, yelling, “You want to fucking shoot me, then fucking	17
shoot me, you fucking pussy.” Defendant described backing up behind the driver’s	18
open door.	19

4
{9} 	Victim veered away, walking a couple of feet into the traffic lane, and waving	1
his hands at passing vehicles. Defendant saw at least one truck swerve to avoid	2
hitting Victim. Defendant indicated that while Victim was in the road, he thought	3
that maybe he could get into his car, which was still running with the door open, and	4
leave. Defendant reported feeling alarmed and confused by the fact that Victim had	5
walked directly into traffic. Defendant was afraid that a car might veer to avoid	6
hitting Victim and hit Defendant or his car, which remained on the shoulder, just out	7
of the lane of traffic. Defendant stated that all these thoughts rushed through his	8
mind and he could not be sure exactly what he was thinking, but, in any event, he	9
did not get back into his car and drive away. Instead, Defendant stood in front of his	10
car, on the other side of the open driver’s side door, still holding his gun.	11
{10} 	Victim then turned back toward the car. Victim was close to the driver’s side	12
open door and continued his approach. Victim said something like, “You are too	13
fucking pussy to shoot me. I’ll just run you over with your car.” When Victim	14
reached the open driver’s door, he began to reach his head and hands into the vehicle.	15
Without giving a verbal warning, Defendant fired his gun. Defendant told police he	16
“focused in on the center of mass . . . through the window.” Defendant shot Victim	17
repeatedly, continuing to shoot until Victim stopped moving. The medical examiner	18
testified Victim had been shot five times, three times in the back, once in the side,	19
and once in the shoulder. When asked by the police what he thought would happen	20

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if he did not shoot Victim, Defendant said that he believed that Victim would have	1
either run him over or would have driven straight into traffic and injured others.	2
{11} 	The State called the medical examiner and a crime scene investigator who	3
testified that the physical evidence was consistent with Defendant’s story.	4
{12} 	At the conclusion of the preliminary examination, the district court ruled that	5
the State had failed to establish probable cause to believe that Defendant had	6
committed second-degree murder. The district court found probable cause for the	7
lesser included offense of voluntary manslaughter, concluding that because there	8
were both verbal threats and actions by Victim, there was sufficient provocation for	9
the fatal shooting. The district court asked the State to prepare a revised criminal	10
information charging only voluntary manslaughter and entered a written order	11
binding Defendant over for trial on voluntary manslaughter alone. The State appeals.	12
DISCUSSION	13
{13} 	Defendant argues, as a preliminary matter, that we lack jurisdiction to	14
consider the State’s appeal because the district court did not dismiss the charge of	15
second-degree murder, but merely “diminished” it to voluntary manslaughter. The	16
State contends that (1) in determining whether probable cause exists to bind over a	17
defendant for trial, the district court must view all evidence presented at the	18
preliminary hearing in the light most favorable to the State and draw all inferences	19
in the State’s favor; (2) whether there is sufficient provocation to reduce a charge of	20

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second-degree murder to voluntary manslaughter is exclusively within the province	1
of the jury, and should not be the basis for a finding of no probable cause; (3) this	2
Court should review the district court’s application of the law of probable cause to	3
the facts applying a de novo standard of review. We agree with the State as to the	4
last point it makes on appeal: that the district court’s application of the law to the	5
facts should be reviewed by this Court de novo. We reject the deferential abuse of	6
discretion or reasonable basis standard advocated by Defendant and by the dissent.	7
Finally, reviewing the application of the law to the undisputed facts de novo, we	8
reverse the district court’s determination that there was no probable cause to bind	9
Defendant over for trial on second-degree murder.	10
{14} 	We address each of the issues raised on appeal in turn, beginning with	11
Defendant’s threshold question of whether this Court has jurisdiction to consider this	12
appeal.	13
I. 	This Court Has Jurisdiction to Consider This Appeal	14
{15} 	Defendant contends that we lack jurisdiction to consider the State’s appeal	15
under Section 39-3-3(B)(1), which allows the State to appeal to this Court “within	16
thirty days from a decision, judgment or order dismissing a complaint, indictment or	17
information as to any one or more counts[.]” Defendant argues that the district court	18
did not “dismiss” the State’s second-degree murder count, but rather merely	19

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“diminished” the count to the lesser included offense of voluntary manslaughter. We	1
are not persuaded.	2
{16} 	When a jurisdictional issue is raised, this issue must be decided before this	3
Court reviews the other issues on appeal. Smith v. City of Santa Fe, 2007-NMSC-	4
055, ¶ 10, 142 N.M. 786, 171 P.3d 300. “We review jurisdictional issues de novo.”	5
State v. Lucero, 2017-NMCA-079, ¶ 10, 406 P.3d 530.	6
{17} 	Defendant’s claim that there was no appealable dismissal of the State’s	7
second-degree murder charge is based on the failure of the district court to issue an	8
order expressly stating that the second-degree murder charge is dismissed. Instead	9
of an order of dismissal, the district court directed the State to prepare an order,	10
which the court entered, binding Defendant over for trial solely on the offense of	11
voluntary manslaughter. The State’s original criminal information had charged both	12
second-degree murder and the lesser included offense of voluntary manslaughter as	13
an alternative.	14
{18} 	In determining whether an order or judgment is final, we look at the substance	15
and effect of the judgment or order, and not its form. State v. Ahasteen, 1998-	16
NMCA-158, ¶ 10, 126 N.M. 238, 968 P.2d 328, abrogated on other grounds by State	17
v. Savedra, 2010-NMSC-025, ¶ 9, 148 N.M. 301, 236 P.3d 20. The district court’s	18
order binding Defendant over only on the lesser included offense of voluntary	19
manslaughter, when both second-degree murder and involuntary manslaughter were	20

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charged in the State’s criminal information, was functionally equivalent to a	1
dismissal of the second-degree murder charge. See State v. McCrary, 1982-NMCA-	2
003, ¶ 26, 97 N.M. 306, 639 P.2d 593 (holding that where the bind-over order only	3
included the lesser included offense, the state could not charge the defendant on the	4
greater offense). We, therefore, are not persuaded that Defendant has shown that the	5
district court failed to follow Rule 5-302(D)(1)’s injunction to “dismiss without	6
prejudice all felony charges for which probable cause does not exist.” State v. Carlos	7
A., 1996-NMCA-082, ¶ 8, 122 N.M. 241, 923 P.2d 608 (“[T]here is a presumption	8
of correctness in the rulings or decisions of the trial court and the party claiming	9
error must clearly show error.”).	10
{19} 	Defendant also argues that we lack jurisdiction on appeal because the	11
dismissal is without prejudice. Although Defendant is correct that the dismissal is	12
without prejudice and allows the State to again present the matter to a grand jury or	13
to refile its criminal information, Section 39-3-3(B)(1) clearly expresses the intent	14
of our Legislature to allow the state to appeal, even though the order is not final. The	15
appellate jurisdiction of this Court is determined by our Constitution and our	16
Legislature. See State v. Armijo, 1994-NMCA-136, ¶ 7, 118 N.M. 802, 887 P.2d	17
1269. Unlike civil appeals, where a final order is required to appeal, the State is	18
authorized in a criminal case to appeal any order dismissing one or more counts of	19
a complaint, indictment or information, regardless of whether the dismissal is with	20

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prejudice or without. See id. ¶ 6 (holding that Section 39-3-3(B)(1) recognizes the	1
state’s constitutional right to appeal even though the matter is not final). We decline	2
to hold differently in this case. We accordingly conclude that this Court has	3
jurisdiction to decide this appeal.	4
II. 	The District Court at Preliminary Examination Serves as an Impartial	5
Fact-Finder	6
{20} 	Having determined that we have jurisdiction over the State’s appeal, we next	7
address the State’s argument that the court conducting the preliminary examination	8
must “view all evidence and draw all inferences in favor of the prosecution.” We	9
disagree.	10
{21} 	Article II, Section 14 of the New Mexico Constitution requires that before a	11
person “shall be held to answer for a capital, felonious or infamous crime,” the	12
prosecutor must either obtain an indictment by a grand jury or must file an	13
information, which then must be followed by a preliminary examination before a	14
magistrate or judge: “No person shall be so held on information without having had	15
a preliminary examination before an examining magistrate, or having waived such	16
preliminary examination.” 1 N.M. Const. art. II, § 14.	17
1Initially, under Article II, Section 14 of the New Mexico Constitution, only
magistrates could hold a preliminary examination. However, Article VI, Section 21
of the New Mexico Constitution, as amended in 1966, provides that “[d]istrict judges
and 	other 	judges 	or 	magistrates 	designated 	by 	law 	may 	hold 	preliminary
examinations in criminal cases.” Preliminary examinations held by the magistrate or

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{22} 	The procedures required for a preliminary hearing in New Mexico do not	1
command sole reliance on the evidence offered by the state. Rather, the rules of	2
procedure adopted by our Supreme Court allow the defendant to subpoena and call	3
witnesses on the defendant’s behalf, Rule 5-302(B)(3); to cross-examine the state’s	4
witnesses, Rule 5-302(B)(4); and to raise objections based on the Rules of Evidence,	5
Rule 5-302(B)(5). These provisions require the district court to hear both the state’s	6
evidence and the evidence submitted by the defendant and “determine probable	7
cause from all the evidence.” State ex rel. Hanagan v. Armijo, 1963-NMSC-057,	8
¶ 11, 72 N.M. 50, 380 P.2d 196.	9
{23} 	Drawing all inferences from the evidence in the state’s favor would conflict	10
with the defendant’s right to present evidence and to have disputes of fact and	11
questions of credibility resolved by an impartial judge. See State v. Perez, 2014-	12
NMCA-023, ¶ 11, 318 P.3d 195 (criticizing a magistrate’s failure at a preliminary	13
hearing to apply “more rigorous evidentiary requirements and [to engage in] careful	14
fact-finding” (alteration, internal quotation marks, and citation omitted)).	15
{24} 	We, therefore, reject the State’s claim that the district court must draw all	16
inferences from the evidence in favor of the State.	17
metropolitan court are governed by Rules 6-202 and 7-202 NMRA respectively,
which are substantially identical to Rule 5-302.

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III. 	In a Preliminary Hearing, the District Court Must Determine Whether	1
Probable Cause Exists as to Every Element of the Charged Crime	2
{25} 	The State next argues that the district court should not have considered the	3
sufficiency of the provocation in determining whether there was probable cause to	4
bind Defendant over for trial on second-degree murder. The State claims that,	5
because it involves “a specific determination or finding,” which is an element of the	6
offense, only the jury can determine the sufficiency of the provocation.	7
{26} 	The cases relied on by the State on appeal address the question of whether the	8
jury at trial should be instructed on the element of sufficient provocation. See, e.g.,	9
Sells v. State, 1982-NMSC-125, ¶ 8, 98 N.M. 786, 653 P.2d 162. While the State is	10
correct that the jury, rather than the judge, is responsible for determining at trial	11
whether the defendant is guilty of each element of the charged crime beyond a	12
reasonable doubt, these cases do not address the role of the judge in determining	13
probable cause at a preliminary hearing, the matter at issue in this appeal.	14
{27} 	The State having presented no authority for its claim that it need not show	15
probable cause to believe the accused committed each element of the crime charged,	16
we do not address this issue further. See State v. Casares, 2014-NMCA-024, ¶ 18,	17
318 P.3d 200 (“We will not consider an issue if no authority is cited in support of	18
the issue, because absent cited authority to support an argument, we assume no such	19
authority exists.”).	20

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IV. 	Our Review of the Application of the Law of Probable Cause to the Facts	1
Is De Novo	2
{28} 	We next turn to the standard of review applied by this Court to a lower court’s	3
decision applying the law of probable cause. The standard of review has not been	4
previously addressed and is, therefore, an issue of first impression.	5
{29} 	The State argues that because a probable cause determination is a mixed	6
question of law and fact, and because application of the probable cause standard	7
requires the exercise of judgment about the values that animate legal principles, our	8
review should be de novo. Defendant, in contrast, contends that our review should	9
defer to the district court’s decision and suggests either an abuse of discretion, or	10
“substantial basis” 2 standard. We agree with the State that our review of the	11
application of the law to the facts found by the district court should be de novo.	12
{30} 	Determining whether a prosecution is grounded in probable cause to believe	13
that a crime was committed, and the defendant likely committed it, involves the	14
weighing of important legal values: the state has a strong interest in enforcing its	15
statutes and in being able to exercise its charging discretion in good faith, State v.	16
Heinsen, 2005-NMSC-035, ¶ 10, 138 N.M. 441, 121 P.3d 1040, and the accused has	17
2 “Substantial basis” is the deferential standard of review, described as
somewhere between substantial evidence and de novo review, adopted by our
Supreme Court for review on appeal of a finding of probable cause to issue a search
warrant. See State v. Williamson, 2009-NMSC-039, ¶ 30, 146 N.M. 488, 212 P.3d
376.

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a right to an independent evaluation of whether the state has met its burden of	1
demonstrating that a prosecution is neither hasty nor ill-considered, but is supported	2
by probable cause. See State ex rel. Whitehead v. Vescovi-Dial, 1997-NMCA-126,	3
¶¶ 5-6, 124 N.M. 375, 950 P.2d 818.	4
{31} 	In addition to requiring the weighing of competing values, a determination of	5
probable cause is not susceptible to “bright-line, hard-and-fast rules.” State v. Evans,	6
2009-NMSC-027, ¶ 11, 146 N.M. 319, 210 P.3d 216. The parameters of probable	7
cause are developed on a case-by-case basis, each case requiring the court to weigh,	8
under the totality of the unique circumstances of that case, whether the prosecution	9
has established reasonable grounds to believe that the accused likely committed the	10
crime charged. See Hanagan, 1963-NMSC-057, ¶ 11.	11
{32} 	The factors relied upon by our Supreme Court in Williamson, 2009-NMSC-	12
039, ¶ 28, to support the adoption of a deferential standard of review for a	13
magistrate’s decision to issue a search warrant do not apply to the probable cause	14
determination at preliminary hearing. The less demanding standard of review in	15
Williamson was adopted in recognition of the often pressing demand for a quick	16
decision on a warrant request in the lower court and to effectuate this state’s strong	17
preference in favor of the warrant process. Id. (noting that searches conducted	18
pursuant to a search warrant are reviewed under a less demanding standard “because	19

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deference to the warrant process encourages police officers to procure a search	1
warrant”).	2
{33} 	Neither of these factors apply here. The decision as to probable cause to bind	3
a defendant over for trial is made well after the arrest, the filing of the information,	4
and the appointment of counsel, and follows an on-the-record evidentiary hearing.	5
See Rules 5-302, 6-202, 7-202 (setting the procedures for a preliminary hearing in	6
district court, magistrate court, and metropolitan court, respectively). Our review of	7
the district court’s determination of probable cause at a preliminary hearing is similar	8
to review on appeal of a district court’s pretrial determination of probable cause to	9
conduct a warrantless search. That decision, like the decision reviewed here, is made	10
after the fact, following full hearing by the district court. Our Supreme Court in	11
Williamson approved the continued use of a de novo standard of review for the	12
application of the law to the district court’s findings of fact when reviewing a pretrial	13
decision involving probable cause to conduct a warrantless search. 2009-NMSC-	14
039, ¶ 27.	15
{34} 	We therefore conclude that a de novo standard should be applied to our review	16
of the application of the law of probable cause to the district court’s findings of fact,	17
or to undisputed facts in the record.	18

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V. 	The Application of the Law to the Undisputed Facts in This Case	1
{35} 	At 	a 	preliminary 	hearing, 	the 	state 	is 	required 	to 	establish 	only 	two	2
components: (1) a crime has been committed; and (2) probable cause exists to	3
believe the person charged committed it. State v. Vallejos, 1979-NMCA-089, ¶ 7, 93	4
N.M. 387, 600 P.2d 839. The district court at preliminary hearing is not deciding the	5
case; it is merely deciding whether the case should be tried. “The test at a preliminary	6
hearing is not whether guilt is established beyond a reasonable doubt, but whether	7
there is that degree of evidence to bring within reasonable probabilities the fact that	8
a crime was committed by the accused.” State v. Garcia, 1968-NMSC-119, ¶ 6, 79	9
N.M. 367, 443 P.2d 860. Reasonable grounds are “more than suspicion but less than	10
certainty.” State v. Goss, 1991-NMCA-003, ¶ 17, 111 N.M. 530, 807 P.2d 228.	11
“When 	ruling 	on 	probable 	cause, 	we 	deal 	only 	in 	the 	realm of 	reasonable	12
probabilities, and look to the totality of the circumstances to determine if probable	13
cause is present.” State v. Nyce, 2006-NMSC-026, ¶ 10, 139 N.M. 647, 137 P.3d	14
587, overruled on other grounds by Williamson, 2009-NMSC-039, ¶ 29 & n.1. If	15
probable cause is found, the defendant’s guilt or innocence remains a question for a	16
jury to decide following a criminal trial where the defendant is provided full due	17
process. See Garcia, 1968-NMSC-119, ¶ 5 (“The preliminary hearing and the trial	18
are separate and distinct.”).	19

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{36} 	With these principles in mind, we are asked to determine whether the district	1
court erred in concluding that there is no probable cause to believe that Defendant	2
committed the crime of second-degree murder. The elements of the crime of second-	3
degree murder are (1) the defendant killed the victim; (2) the defendant knew that	4
his acts created a strong probability of death or great bodily harm, and (3) there was	5
not “sufficient provocation.” See UJI 14-210 NMRA. “ ‘Sufficient provocation’ can	6
be any action, conduct or circumstances which arouse anger, rage, fear, sudden	7
resentment, terror or other extreme emotions. The provocation must be such as	8
would affect the ability to reason and to cause a temporary loss of self control in an	9
ordinary person of average disposition.” UJI 14-222 NMRA.	10
{37} 	Defendant argued below, and contends on appeal, that the district court	11
correctly 	concluded 	that 	the 	evidence 	established 	that 	there 	was 	sufficient	12
provocation, ruling out the charge of second-degree murder and requiring that	13
Defendant be charged only with voluntary manslaughter. The State contends that the	14
undisputed facts are sufficient to establish a reasonable basis to believe that	15
Defendant likely committed second-degree murder, and that, therefore, the district	16
court erred in dismissing the second-degree murder charge and binding Defendant	17
over for trial only on voluntary manslaughter.	18
{38} 	The State points to undisputed evidence that it claims is sufficient to establish	19
probable cause. It was undisputed that Defendant pointed a gun at the unarmed	20

17
Victim early in the encounter, based on little provocation other than an argument	1
about the charge for cleaning up the vomit in the back seat of Defendant’s car.	2
Defendant opened his car door to reprimand Victim for slamming the door and got	3
out of his car to pull out his gun and point it at Victim, who was walking around the	4
car from the rear passenger’s side door at the time, and was unarmed. Defendant	5
admitted that he briefly considered driving away when Victim wandered into traffic	6
a few moments later, and that he failed to take advantage of the opportunity.	7
Defendant kept his gun in his hand, lowering it, but never returning it to its holster,	8
even when Victim turned away. It was only when Victim turned back toward the car	9
and saw Defendant still with his gun in his hand that Victim threatened to run	10
Defendant over, and started moving toward the open driver’s side door of the car.	11
And although Victim approached Defendant’s car and began to reach inside, he had	12
not yet stepped into the car and assumed control over it when Defendant, without a	13
verbal warning, opened fire. Victim was just beginning to stoop with his head and	14
hands reaching into the car when Defendant fired five shots into Victim’s side and	15
back through the open window of the driver’s side door, killing him.	16
{39} 	We conclude that the district court failed to correctly apply the probable cause	17
standard to these undisputed facts. This undisputed evidence supports a reasonable	18
belief that an ordinary person of average disposition in Defendant’s position would	19
not have been provoked to the point of utilizing lethal force, but would instead have	20

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taken available opportunities to attain a position of safety from an unarmed man in	1
no immediate position to pose a threat to Defendant’s safety. The undisputed	2
evidence also supports a 	reasonable belief 	that Victim acted in response to	3
Defendant’s drawing a gun early in the encounter. If so, Victim’s subsequent	4
response in attempting to threaten Defendant with his own car cannot be relied upon	5
as sufficient provocation under the law. See State v. Gaitan, 2002-NMSC-007, ¶ 13,	6
131 N.M. 758, 42 P.3d 1207.	7
{40} 	The district court’s decision that there was no probable cause to charge	8
second-degree murder appears to be based on the district court’s conclusion that the	9
proof provided by the prosecution was not sufficient to convict Defendant of second-	10
degree murder, but only sufficient to convict of voluntary manslaughter. As this	11
Court held in Vallejos, however, a finding of no probable cause should not be based	12
on the absence of proof sufficient to convict. See 1979-NMCA-089, ¶ 12. Where the	13
evidence is sufficient to support a reasonable belief that Defendant committed the	14
crime charged, conclusive proof of each element of the offense can await trial. The	15
undisputed facts establish a triable issue as to whether an ordinary person of average	16
disposition would have been sufficiently provoked to temporarily lose self-control.	17
This decision should be made by a jury. The district court having found otherwise,	18
we reverse.	19

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CONCLUSION	1
{41} 	For these above reasons, we reverse the district court’s dismissal of the State’s	2
information charging Defendant with second-degree murder. We remand to the	3
district court for reinstatement of the second-degree murder charge.	4
{42} 	IT IS SO ORDERED.	5
_________________________________	6
JANE B. YOHALEM, Judge	7
I CONCUR:	8
_________________________________	9
J. MILES HANISEE, Chief Judge	10
GERALD E. BACA, Judge (dissenting in part).	11

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BACA, Judge (dissenting in part).	1
{43} 	I respectfully dissent from the majority’s conclusion that a de novo standard	2
of review is the correct standard of review to be applied when an appellate court	3
reviews a trial court’s determination of probable cause at a preliminary hearing. The	4
correct standard of review in that instance is abuse of discretion.	5
{44} 	I also respectfully dissent from the majority’s conclusion that the district	6
court’s finding of no probable cause was incorrect. Instead, I would affirm the	7
district court’s finding that the State failed to establish probable cause as to the	8
charge of second-degree murder.	9
{45} 	Before proceeding further, let’s consider, for a moment, the requirement,	10
purpose, and procedure of and for a preliminary hearing. A preliminary hearing is	11
required by our Constitution when the filing of a complaint or information	12
commences a criminal prosecution. N.M. Const. art. II, § 14. This provision of our	13
Constitution is to insure that no person is deprived of his liberty without due process	14
of law. “Thus, a defendant cannot be held for trial unless a preliminary hearing has	15
been held at which time the accused is informed of the crime charged against him	16
and a magistrate has determined that probable cause exists to hold him.” State v.	17
Coates, 1985-NMSC-091, ¶ 7, 103 N.M. 353, 707 P.2d 1163 (emphasis added),	18
abrogated on other grounds, State v. Brule, 1999-NMSC-026, ¶ 3, 127 N.M. 368,	19
981 P.2d 782.	20

21
{46} 	The preliminary hearing is a critical stage of the criminal prosecution. State v.	1
Vaughn, 1964-NMSC-158, ¶ 3, 74 N.M. 365, 393 P.2d 711. The preliminary hearing	2
can be held in a magistrate or district court. Rules 5-302, Rule 6-202. If the	3
prosecution is commenced in the district court by information, the district judge is	4
permitted to remand the case to the magistrate court for a preliminary hearing. Rule	5
5-302(E).	6
{47} 	The preliminary hearing “operates as a screening device to prevent hasty and	7
unwise prosecutions and to save an innocent accused from the humiliation and	8
anxiety of a public prosecution.” 	Whitehead, 	1997-NMCA-126, ¶ 6. “At the	9
preliminary hearing, the state is required to establish, to the satisfaction of the	10
examining judge, two components: (1) that a crime has been committed; and (2)	11
probable cause exists to believe that the person charged committed it.” State v.	12
White, 2010-NMCA-043, ¶ 11, 148 N.M. 214, 232 P.3d 450 (emphases added)	13
(citing Vallejos, 1979-NMCA-089, ¶ 7). If at the conclusion of the preliminary	14
hearing, the court finds probable cause, the case, if in the magistrate court, is bound	15
over for trial in the district court. Rule 6-202(D)(3). If, on the other hand, at the	16
conclusion of the preliminary hearing, the court does not find probable cause, the	17
charge is dismissed without prejudice and the defendant is discharged. Rule 6-	18
202(D)(1).	19

22
{48} 	With this in mind, let’s turn to the case before us to determine what should be	1
the correct standard of review when an appellate court is asked to review the	2
probable cause determination of a trial court at the conclusion of a preliminary	3
hearing.	4
VI. 	A De Novo Standard of Review Is Incorrect	5
{49} 	The appropriate standard of review to apply in this case is an issue of first	6
impression. Given the import of our decision, one would expect a complete and	7
robust discussion and analysis of the issues leading to the majority’s conclusion.	8
Such is not the case. Based on an incomplete analysis of the issue, the majority	9
concluded that a de novo standard of review is the appropriate standard of review in	10
cases such as this. See Maj. Op. ¶¶ 28-34. I respectfully disagree and believe because	11
the majority applied the incorrect standard of review, they also reached the wrong	12
result.	13
{50} 	First, the majority compares a review of a lower court’s determination of	14
probable cause at preliminary hearing to a review of an appeal involving probable	15
cause to conduct a warrantless search. Maj. Op. ¶ 33. The majority, with minimal	16
analysis, concludes that the standard of review applied in the latter instance is the	17
correct standard to be applied in this case. Maj. Op. ¶¶ 33-34. They state that this is	18
the correct standard of review because the decision is made after the fact, following	19

23
a full hearing. In support of their conclusion, the majority cites Williamson, 2009-	1
NMSC-039, ¶ 27, stating:	2
Our Supreme Court in Williamson approved the continued use of a de	3
novo standard of review for the application of the law to the district	4
court’s findings of fact when reviewing a decision involving probable	5
cause to conduct a warrantless search.	6
We therefore conclude that a de novo standard should be applied	7
to our review of the application of the law of probable cause to the	8
district court’s findings of fact, or to undisputed facts in the record.	9
Maj. Op. ¶¶ 33-34 (citation omitted).	10
{51} 	The majority’s comparison of a review of a warrantless search to a preliminary	11
hearing is misplaced. The two are wholly dissimilar, except that each deals with the	12
existence/nonexistence of probable cause. The similarities end there. An example of	13
the 	stark 	difference 	between 	the 	two 	is 	that 	warrantless 	searches 	include 	a	14
presumption 	of 	unreasonableness. 	In 	contrast, 	preliminary 	hearings 	have 	no	15
presumptions for or against a party or issue. See State v. Rowell, 2008-NMSC-041,	16
¶ 10, 144 N.M. 371, 188 P.3d 95 (“Warrantless seizures are presumed to be	17
unreasonable and the [s]tate bears the burden of proving reasonableness.” (internal	18
quotation marks and citation omitted)); c.f. Whitehead, 1997-NMCA-126, ¶ 5 (“The	19
primary purpose of the preliminary examination is to provide an independent	20
evaluation of whether the state has met its burden of demonstrating probable cause.”	21
(emphasis added)).	22

24
{52} 	Second, the majority agrees with the State’s argument that this Court should	1
adopt a de novo standard of review because “provocation” in relation to second-	2
degree murder is a mixed question of law and fact. In support of this proposition, the	3
State relies upon State v. Attaway, 1994-NMSC-011, ¶ 6, 117 N.M. 141, 870 P.2d	4
103, and State v. Salazar, 1997-NMSC-044, ¶ 49, 123 N.M. 778, 945 P.2d 996.	5
These cases are easily distinguished and do not guide us in resolving the issues here.	6
Yet, the majority seems to accept the State’s argument without question.	7
{53} 	A review of these cases reveals that they do not support the majority’s	8
position. They are inapposite. In clarifying its holding in Attaway, our Supreme	9
Court said that it “did not hold that all mixed questions of law and fact must be	10
reviewed de novo. [It] simply held that, to determine the appropriate standard of	11
review, the reviewing court must balance interests of judicial administration and	12
public 	policy.” 	Williamson, 	2009-NMSC-039, 	¶ 	25. 	Specifically, 	concerning	13
probable cause determinations, the Court said, “Accordingly, despite our broad	14
language 	in 	Attaway, 	none 	of 	the 	principles 	articulated 	therein 	support 	the	15
application of a de novo standard of review to an issuing court’s determination of	16
probable cause.” Williamson, 2009-NMSC-039, ¶ 25. Thus, Attaway does not	17
support a de novo review in this case.	18
{54} 	Salazar is even farther removed from the circumstances before us in this case.	19
Salazar had nothing to do with a trial court’s determination of probable cause.	20

25
Rather, Salazar is a case in which the issue was the propriety of jury instructions. In	1
Salazar, our Supreme Court held that where there is a question concerning the	2
appropriateness of jury instructions, the standard of review was de novo. It said,	3
“The propriety of jury instructions given or denied is a mixed question of law and	4
fact. Mixed questions of law and fact are reviewed de novo.” Salazar, 1997-NMSC-	5
044, ¶ 49. Consequently, because Salazar discusses review of jury instructions,	6
given or not given, an issue far different than the question before us in this case,	7
Salazar does not provide any guidance in resolving the issues presented in this case.	8
{55} 	Third, the majority, relying upon Williamson, 2009-NMSC-039, ¶ 28, chose	9
not to adopt a deferential standard of review in this instance stating that “the adoption	10
of a deferential standard of review for a magistrate’s decision to issue a search	11
warrant [does] not apply to the probable cause determination at preliminary	12
hearing,” because the standard in Williamson was adopted “in recognition of the	13
often pressing demand for a quick decision on a warrant request in the lower court	14
and to effectuate the state’s strong preference in favor of the warrant process.” Maj.	15
Op. ¶ 32.	16
{56} 	While 	I 	understand 	that 	the 	majority 	is 	seeking 	guidance 	from 	other	17
procedures or situations like that before us, I do not agree that cases such as	18
Williamson and the others cited by the majority are a sound basis for resolution of	19
this case. Much like Attaway, Williamson is a case involving the review of the	20

26
legality of a search. But unlike Attaway, the review was as to the propriety of the	1
issuance of search warrants and not a warrantless search. Here, too, and for the same	2
reasons I articulated above as to Attaway, I find the majority’s reliance on this case	3
is misplaced.	4
{57} 	In fact, in Williamson, our Supreme Court rejected this Court’s decision to	5
apply a de novo standard of review to the issuance of a lower court’s determination	6
of probable cause in a search warrant. 2009-NMSC-039, ¶¶ 1, 18. In Williamson, the	7
district court issued a search warrant based on probable cause that the defendant was	8
shipping narcotics via mail. Id. ¶¶ 2-6. Before trial, the defendant moved to suppress	9
the evidence gained from the search warrant because “the affidavit submitted in	10
support of the first search warrant failed to set forth sufficient facts to establish	11
probable cause.” Id. ¶ 7. The district court granted the defendant’s motion, and this	12
Court affirmed that decision. Id. ¶¶ 7-8. The Supreme Court rejected this Court’s	13
application of a de novo standard of review and adopted the more deferential	14
substantial basis standard of review. Id. ¶¶ 18, 29.	15
{58} 	Cases such as Attaway and Williamson involving challenges to searches,	16
warrantless or via search warrant, are most often appeals from a district court’s	17
granting or denial of a motion to suppress. Notably, in those cases, the reviewing	18
court gives deference to the prevailing party. “On appeal from the denial of a motion	19
to suppress, we determine under de novo review whether the district court correctly	20

27
applied the law to the facts.” State v. Garcia, 2009-NMSC-046, ¶ 9, 147 N.M. 134,	1
217 P.3d 1032. Viewing the facts “in a manner most favorable to the prevailing	2
party” and deferring to the district court’s “findings of historical fact so long as they	3
are supported by substantial evidence.” State v. Jason L., 2000-NMSC-018, ¶ 10,	4
129 N.M. 119, 2 P.3d 856 (internal quotation marks and citation omitted). Where	5
there are no findings of fact, we “indulge in all reasonable presumptions in support	6
of the district court’s ruling.” Id. ¶ 11 (internal quotation marks and citation omitted).	7
Absent a contrary indication in the record, “we presume the court believed all	8
uncontradicted evidence.” Id. Consequently, the majority’s reliance upon cases	9
reviewing warrantless searches and searches pursuant to a search warrant is	10
misplaced as these cases support applying a deferential standard of review rather	11
than a de novo standard of review.	12
{59} 	Lastly—and most importantly—I am concerned that the majority’s opinion is	13
contrary to the principles laid out by this Court in White, 2010-NMCA-043. In White,	14
the state, following a preliminary hearing before a magistrate judge, who found that	15
the state failed to establish probable cause for various felony offenses, filed identical	16
charges in district court. Id. ¶ 1. The district court remanded the matter to the	17
magistrate court for a preliminary hearing. Id. The same magistrate judge who	18
originally heard the case was assigned the case. The state peremptorily excused that	19
magistrate judge, and the case was assigned to another magistrate judge. Id. The case	20

28
proceeded to preliminary hearing before the new magistrate judge. Id. The state	1
presented the same evidence to the new magistrate judge at the second preliminary	2
hearing as it had to the original magistrate judge. Id. However, unlike the original	3
magistrate judge, the new magistrate judge found probable cause as to the charges	4
and bound the case over to the district court for trial. Id. On appeal, this Court held	5
that the state’s obtaining a probable cause determination on the same evidence with	6
two different lower court judges was improper. Id. ¶ 18. “The result of the procedure	7
employed by the [s]tate was to allow one magistrate to overrule another magistrate	8
on the issue of probable cause after a review of the same evidence. This is not	9
proper.” Id. ¶ 16.	10
{60} 	With White in mind, the majority’s decision to review de novo a lower court’s	11
decision regarding the determination of probable cause at a preliminary hearing	12
would have the practical effect of this Court playing the role of the second magistrate	13
judge in White. Essentially, in this case, because the State is dissatisfied with the	14
district court’s decision, the State is asking this Court to review the same evidence	15
previously ruled upon by a neutral and detached magistrate or district judge, which	16
White held to be improper.3 “It is axiomatic that a party may not do indirectly that	17
which the law does not permit directly.” Id.	18
3Bear in mind that although the State is crying “foul” here due to the finding
of no probable cause by the district court, the prosecution of Defendant upon the
charge of second-degree murder is not precluded. The State, if it chooses, could

29
{61} 	This Court recently held in State v. Ayon, 2021-NMCA-___, ___ P.3d ___	1
(No. A-1-CA-38812, July 27, 2021), that district courts do not have the authority to	2
determine if “evidence was illegally obtained at a preliminary hearing.” Id. ¶¶ 1, 17.	3
In making that holding, we highlighted the common purposes between grand jury	4
proceedings and preliminary hearings. Id. ¶ 11. Notably, we stated, “[d]ifferent rules	5
regarding the district court’s authority to review illegally obtained evidence based	6
solely on the choice of proceedings—grand jury proceedings as opposed to	7
preliminary 	hearings—may 	encourage 	favoring 	one 	proceeding 	over 	another,	8
undercutting efficient judicial administration and causing confusion.” Id. The same	9
reasoning applies to this case. Giving the State the option to appeal an unsuccessful	10
preliminary hearing to this Court, and as the majority would have it—with a de novo	11
nondeferential review, would be tantamount to encouraging “one proceeding over	12
another, undercutting efficient judicial administration and causing confusion.” Id. In	13
summary, for the reasons stated above, I am unpersuaded that the correct standard	14
of review is de novo.	15
readily proceed against Defendant by grand jury indictment or represent the case to
the metropolitan or district court at a preliminary hearing upon new and additional
evidence. See State v. Chavez, 1979-NMCA-075, ¶ 20, 93 N.M. 270, 599 P.2d 1067;
see also State v. Peavler, 1975-NMSC-035, ¶ 8, 88 N.M. 125, 537 P.2d 1387; State
v. Burk, 1971-NMCA-018, ¶¶ 2-3, 82 N.M. 466, 483 P.2d 940.

30
VII. 	Abuse of Discretion Is the Correct Standard of Review	1
{62} 	The correct standard of review to be applied to the review of a court’s probable	2
cause determination at a preliminary hearing should be abuse of discretion.	3
{63} 	The majority failed to address Defendant’s argument that our case law	4
suggests that this Court has been deferential in the past and should continue to do so	5
on this issue.	6
{64} 	In Garcia, after a successful preliminary hearing that charged the defendant	7
with possession of marijuana, the defendant, on appeal, contended that the state	8
failed to produce sufficient evidence that the substance involved was marijuana	9
during the preliminary hearing. 1968-NMSC-119, ¶¶ 1-3. Although not stated	10
outright, it appears our Supreme Court reviewed the appeal under a sufficiency of	11
the evidence standard. Id. ¶ 7 (“The determinative question on appeal is whether the	12
evidence offered at the preliminary hearing was sufficient to meet the above tests	13
and to establish reasonable ground to satisfy the magistrate’s judgment. In this case,	14
we hold there was sufficient evidence.” (citation omitted)). Our Supreme Court held	15
that, for the purposes of the preliminary hearing, officer testimony that the substance	16
was marijuana, absent any chemical testing, was sufficient to bind over the charge	17
of possession of marijuana. Id.	18
{65} 	Although no standard of review was pronounced in Vallejos, this Court gave	19
considerable deference to the magistrate’s ruling at the preliminary hearing and,	20

31
without analyzing the evidence, held that the evidence presented at the preliminary	1
hearing was sufficient to bind the defendant over for murder. 1979-NMCA-089,	2
¶¶ 6-13. In Vallejos, after it was determined that the deceased was in the hospital for	3
two weeks before he died, the defendant argued that the state failed to prove that the	4
death resulted from the criminal agency and not from other natural causes. Id. ¶¶ 4,	5
6. There, we reasoned that “[t]he [s]tate is only required to produce evidence	6
sufficient 	to 	establish 	reasonable 	grounds 	for 	the 	[m]agistrate’s 	exercise 	of	7
judgment[,]” and concluded, “[t]he [m]agistrate had probable cause to believe [the]	8
defendant committed the crime of murder.” Id. ¶¶ 12-13.	9
{66} 	My reading of Vallejos and Garcia convinces me that this Court has at the	10
very least implicitly applied a deferential standard for preliminary hearing decisions	11
and that we should continue to do so. The application of a deferential standard for	12
reviewing a lower court’s preliminary hearing decision seems to make the most	13
sense, especially at this early stage of the prosecution. This is because even in cases	14
such as the one before us, where the presiding judicial officer found no probable	15
cause, the State could still proceed with the prosecution by grand jury indictment or	16
by means of a second preliminary hearing upon new or additional evidence. See	17
White, 2010-NMCA-043, ¶ 12. As well, this standard of review will safeguard	18
against the State shopping for a forum that will agree with its view of the evidence	19
despite a previous decision against it. Most importantly, this standard of review will	20

32
ensure that the citizens of our state will only be held to answer for criminal charges	1
that are supported by probable cause thereby “sav[ing] an innocent accused from the	2
humiliation and anxiety of a public prosecution.” Whitehead, 1997-NMCA-126, ¶ 6.	3
Consistent with Williamson and Attaway, judicial administration and public policy	4
weigh in favor of a deferential abuse of discretion standard of review. 	See	5
Williamson, 2009-NMSC-039, ¶ 25 (“[T]he reviewing court must balance interests	6
of judicial administration and public policy.”). “It is not the function of [the] court	7
to sit as a second preliminary hearing court to review the evidence of probable	8
cause.” People v. Ayala, 770 P.2d 1265, 1266 (Colo. 1989) (en banc). “When [the]	9
court is asked to make a case-by-case review of the trial court’s determination of the	10
sufficiency of the evidence, the time expended by the court serves little purpose and	11
is rarely productive of any precedential value.” Id. (internal quotation marks and	12
citation omitted).	13
{67} 	When reviewing a preliminary hearing decision from a lower court, we should	14
apply an abuse of discretion standard similar to other jurisdictions. “It is well-settled	15
that the standard to be observed in reviewing a magistrate’s determination at	16
preliminary 	examination 	is 	that 	the 	reviewing 	court 	should 	not 	disturb 	the	17
determination of the magistrate unless a clear abuse of discretion is demonstrated.”	18
People v. Doss, 276 N.W.2d 9, 13 (Mich. 1979). “The magistrate’s determination	19
regarding the existence of probable cause shall not be disturbed upon review unless	20

33
a clear abuse of discretion is demonstrated.” State v. Olsen, 462 N.W.2d 474, 476	1
(S.D. 1990). To do otherwise would permit the State a second-look at the same	2
evidence, without deferring to the trial courts who are in a better position to weigh	3
the evidence.	4
{68} 	Therefore, the correct standard of review should be abuse of discretion.	5
VIII. The District Did Not Abuse Its Discretion	6
{69} 	I would affirm the district court’s decision in this case.	7
{70} 	“An abuse of discretion occurs when the ruling is clearly against the logic and	8
effect of the facts and circumstances of the case. We cannot say the trial court abused	9
its discretion by its ruling unless we can characterize [the ruling] as clearly untenable	10
or not justified by reason.” State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971	11
P.2d 829 (internal quotation marks and citation omitted).	12
{71} 	The State failed to argue that the district court abused its discretion. Instead,	13
the State made three arguments on appeal. The State contends that (1) in determining	14
whether probable cause exists to bind over a defendant for trial, the district court	15
must view all evidence presented at the preliminary hearing in the light most	16
favorable to the State and draw all inferences in the State’s favor; (2) whether there	17
is sufficient provocation to reduce a charge of second-degree murder to voluntary	18
manslaughter is exclusively within the province of the jury, and should not be the	19
basis for a finding of no probable cause; (3) this Court should review the district	20

34
court’s application of the law of probable cause to the facts applying a de novo	1
standard of review.	2
{72} 	The majority rejected the State’s first two contentions for some very sound	3
reasons, and I agree with them. As to the third issue, I have to disagree with the	4
majority’s opinion for the reasons stated above.	5
{73} 	Therefore, without sufficient argument to the contrary, and upon reviewing	6
the record, I find that the district court did not abuse its discretion in determining	7
that the State failed to establish probable cause as to second-degree murder. I would	8
therefore affirm.	9
_____________________________	10
GERALD E. BACA, Judge	11