January 6, 2022- State of New Mexico v. Frank A. Lucero, No. A-1-CA-38468

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: _____________	2
Filing Date: January 6, 2022	3
No. A-1-CA-38468	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
FRANK A. LUCERO,	8
Defendant-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY	10
Dustin K. Hunter, District Judge	11
Hector H. Balderas, Attorney General	12
Laurie Blevins, Assistant Attorney General	13
Santa Fe, NM	14
for Appellee	15
Frank A. Lucero	16
Roswell, NM	17
Pro Se Appellant	18
Court of Appeals of New Mexico
Filed 1/6/2022 9:26 AM

OPINION	1
YOHALEM, Judge.	2
{1} 	Defendant Frank Lucero was charged with four misdemeanor traffic offenses	3
in magistrate court. After a jury trial where Defendant was convicted on all counts,	4
Defendant appealed to the district court for a trial de novo. Defendant was tried in	5
the district court and again convicted on all counts.	6
{2} 	Defendant claims, for the first time on appeal to this Court, that the magistrate	7
court lost subject matter jurisdiction when it denied him access to the names and	8
addresses of jurors and potential jurors before trial. We conclude that Defendant’s	9
claim does not implicate the subject matter jurisdiction of the magistrate court, and,	10
therefore, may not be raised for the first time on appeal to this Court.	11
{3} 	Defendant next seeks review of the district court’s denial of his pretrial	12
motions alleging reversible legal error by the magistrate court, and seeking remand	13
to the magistrate court for a new trial. Defendant contends that the district court erred	14
in reviewing the magistrate court proceedings under an abuse of discretion standard,	15
rather 	than 	conducting 	an 	independent 	review 	on 	a 	reconstructed 	record 	as	16
Defendant claims is required by our Supreme Court’s decision in City of Farmington	17
v. Piñon-Garcia, 2013-NMSC-046, 311 P. 3d 446. While we agree that Piñon-	18
Garcia requires review of certain magistrate court orders by hearing de novo, we	19
read 	Piñon-Garcia 	as limiting such review to orders of the magistrate court	20

2
dismissing or refusing to dismiss the charges, or imposing or refusing to impose	1
sanctions, for violation of procedural protections or constitutional rights. See id.	2
¶¶ 2, 11, 13. Appellate review is otherwise by trial de novo. See id. ¶ 2. Defendant’s	3
pretrial motions, which claimed reversible legal error by the magistrate court and	4
sought remand to the magistrate court for a new trial, do not fall within Piñon-	5
Garcia’s limited exception, and the remedy sought by Defendant—remand for a new	6
trial in the magistrate court—is not a remedy available to the district court in an	7
appeal from magistrate court. Thus, Defendant’s only method of appeal from the	8
magistrate court rulings he challenges is by trial de novo in the district court, which	9
he received. We affirm Defendant’s convictions.	10
BACKGROUND	11
{4} 	Defendant was charged in the Chaves County magistrate court with one	12
misdemeanor traffic violation and three petty misdemeanor violations.1 Defendant	13
entered a plea of not guilty as to each charge and requested a jury trial.	14
{5} 	Two days before trial, Defendant requested copies of jury questionnaires from	15
the magistrate court clerk. The clerk informed Defendant that the magistrate court	16
required a copying fee, totaling $38.50, for copies of the jury questionnaires.	17
1 Driving while license suspended, NMSA 1978, § 66-5-39 (2013, amended
2019); no seat belts, NMSA 1978, § 66-7-372(A) (2001); no proof of insurance,
NMSA 1978, § 66-5-229 (C)-(E) (1998, amended 2019); no registration, NMSA
1978, § 66-3-1(A) (2013, amended 2018).

3
Defendant told the court clerk that he was indigent, and requested free copies. The	1
clerk informed Defendant that he would have to submit proof of indigency in order	2
to qualify for free copies. Defendant has not alleged that he was denied an	3
opportunity to review the questionnaires, only that he was denied free copies.	4
{6} 	The day before jury selection and trial, Defendant filed a completed “verified	5
application for free process (for indigency)” on a form provided by the magistrate	6
court, along with a motion to continue, asking to postpone his trial. The next	7
morning, with the jury panel already in the courtroom for jury selection, the	8
magistrate court orally denied Defendant’s motion to continue his trial. The case	9
then proceeded to jury selection and trial. Defendant, who appeared pro se, was	10
permitted to question the jury panel and participate in jury selection. Once the jury	11
was selected, Defendant was tried and convicted on all four counts.	12
{7} 	Defendant appealed his convictions to the Chaves County district court.	13
Defendant then filed a pretrial motion in district court requesting appellate review	14
of the magistrate court clerk’s refusal to provide him free copies of the jury	15
questionnaires and of the magistrate court’s denial of his motion to continue his trial.	16
Defendant also requested supplementation of the record on appeal in the district	17
court with copies of the jury questionnaires. Defendant claimed that he was entitled	18
to an independent review by the district court of the merits of the magistrate court’s	19
refusal to provide him free copies of jury questionnaires, and the ruling denying him	20

4
a trial continuance. He claimed error by the magistrate court in violation of NMSA	1
1978, 	Section 	38-5-11(C) 	(2005) 	(addressing 	procedures 	for 	review 	of 	jury	2
questionnaires in the district court), as well as violation of his right to due process,	3
and sought reversal of his convictions, and remand to the magistrate court for retrial.	4
{8} 	The district court agreed to review Defendant’s pretrial motion to determine	5
if there was reversible error in the magistrate court. The district court conducted a	6
detailed review of the magistrate court proceedings, and heard argument on the	7
merits from both parties. With respect to the magistrate court clerk’s refusal to	8
provide free copies of the jury questionnaires, the district court concluded that,	9
although Section 38-5-11(C) requires that jury questionnaires be “made available for	10
inspection and copying by a party to a pending proceeding[,]” the magistrate court	11
correctly construed the statute to allow a fee to be assessed for copying, and to allow	12
the court to require compliance with its procedure for verifying indigency before	13
providing free copies. With respect to the magistrate court’s denial of Defendant’s	14
motion for a continuance of trial, the district court found that the magistrate court	15
“was well within its discretion” to deny the motion for a continuance.	16
{9} 	Having denied Defendant’s pretrial motion, the district court held a de novo	17
jury trial. Defendant was given free copies of the district court jury questionnaires	18
prior to voir dire. Defendant was again convicted on all four counts.	19

5
{10} 	On appeal to this Court, Defendant has not raised any claim of error in the de	1
novo trial leading to his conviction in the district court. He challenges only the	2
district court’s denial of his pretrial motions for reversal and remand to the	3
magistrate court for retrial.	4
DISCUSSION	5
I. 	Defendant’s Claim That He Was Tried by an Anonymous Jury in the	6
Magistrate Court Does Not Implicate Subject Matter Jurisdiction, and,	7
Therefore, May Not Be Raised For the First Time on Appeal	8
{11} 	We begin by addressing Defendant’s claim, raised for the first time on appeal	9
to this Court, that the magistrate court lost subject matter jurisdiction by proceeding	10
to 	trial 	with 	an 	“anonymous” 	jury. 	We 	do 	not 	agree 	with 	Defendant’s	11
characterization of the jury as “anonymous.” We understand Defendant’s claim as	12
simply 	a 	restatement 	of 	his 	claims 	that 	he 	was 	denied 	copies 	of 	the 	jury	13
questionnaires containing the jurors names and addresses prior to jury selection, and	14
was not able to supplement the record in the district court with the questionnaires	15
because they had been destroyed pursuant to court rule prior to his request. The	16
“question of whether a trial court has jurisdiction in a particular case is a question of	17
law that we review de novo.” Smith v. City of Santa Fe, 2007-NMSC-055, ¶ 10, 142	18
N.M. 786, 171 P.3d 300.	19
{12} 	Defendant is correct that an attack on subject matter jurisdiction may be made	20
at any time in the proceedings, even for the first time on appeal. See State ex rel.	21

6
Bevacqua-Young v. Steele, 2017-NMCA-081, ¶ 6, 406 P.3d 547. Further, a lack of	1
subject matter jurisdiction in the magistrate court would also remove jurisdiction	2
from the district court. See State v. Lynch, 1971-NMCA-049, ¶ 7, 82 N.M. 532, 484	3
P.2d 374. We thus review jurisdiction as a threshold question. See Bevacqua-Young,	4
2017-NMCA-081, ¶ 6 (“The question of jurisdiction is a controlling consideration	5
that must be resolved before going further in a proceeding.” (internal quotation	6
marks and citation omitted)).	7
{13} 	“Subject matter jurisdiction is the power to adjudicate the general questions	8
involved in the claim.” Williams v. Rio Rancho Pub. Schs., 2008-NMCA-150, ¶ 10,	9
145 N.M. 214, 195 P.3d 879 (internal quotation marks and citation omitted).	10
Jurisdiction is controlled by the Constitution and the Legislature. See State v.	11
Smallwood, 2007-NMSC-005, ¶ 6, 141 N.M. 178, 152 P.3d 821 (stating that “our	12
Constitution or Legislature must vest us with . . . jurisdiction”).	13
{14} 	The source of a magistrate court’s jurisdiction is Article VI, Section 26 of the	14
New Mexico Constitution, and the statutes implementing that section. Article VI,	15
Section 26 provides, in relevant part: “The [L]egislature shall establish a magistrate	16
court to exercise limited original jurisdiction as may be provided by law.” The	17
Legislature has provided by statute that “[m]agistrates have jurisdiction in all cases	18
of misdemeanors and petty misdemeanors[.]” NMSA 1978, § 35-3-4(A) (1985).	19

7
{15} 	Because the motor vehicle offenses with which Defendant was charged are	1
misdemeanors and petty misdemeanors, the magistrate court had subject matter	2
jurisdiction. 	See id. 	A violation of a constitutional or statutory right in the	3
proceedings before a court usually does not deprive that court of jurisdiction.	4
Instead, generally speaking, “[t]he only relevant inquiry in determining whether the	5
court has subject matter jurisdiction is to ask whether the matter before the court	6
falls within the general scope of authority conferred upon such court by the	7
constitution or statute.” State v. Chavarria, 2009-NMSC-020, ¶ 11, 146 N.M. 251,	8
208 P.3d 896 (alteration, internal quotation marks, and citation omitted). Defendant	9
has not identified any constitutional provision or statute granting the magistrate court	10
jurisdiction that was violated, ignored, or exceeded by that court. Defendant’s claim	11
of procedural violations does not implicate the magistrate court’s subject matter	12
jurisdiction. 	Because 	Defendant’s 	claim 	does 	not 	implicate 	subject 	matter	13
jurisdiction, it may not be raised for the first time on appeal, and we do not consider	14
it further.	15
II. 	With the Limited Exception Identified by Our Supreme Court in Piñon-	16
Garcia, the District Court’s Appellate Review of Defendant’s Claims of	17
Error in the Proceedings in Magistrate Court Is by Trial De Novo	18
{16} 	We turn next to Defendant’s appeal from the district court’s denial of his	19
pretrial motions.2 Defendant filed pretrial motions in the district court claiming error	20
2 This discussion focuses on Issues 2 and 3 in Defendant’s brief.

8
by the magistrate court in failing to provide him free copies of jury questionnaires	1
and in denying his motion for a continuance of trial to allow him more time to obtain	2
and review those questionnaires. For these errors, Defendant sought remand to the	3
magistrate court for a new trial.	4
{17} 	The parties disagree about whether the district court should have reviewed	5
Defendant’s claims that the magistrate court erred and, if so, the nature of that review	6
and the nature of the remedy, if error was identified. For the reasons that follow, we	7
conclude that Defendant was not entitled to review by hearing de novo in the district	8
court of his claims that the magistrate court committed reversible legal error;	9
appellate review was limited to a trial de novo, which he received.3 We affirm the	10
district court on this basis. See, e.g., State v. Gallegos, 2007-NMSC-007, ¶ 26, 141	11
N.M. 185, 152 P.3d 828 (holding that the appellate court will affirm the district	12
court’s decision if it is right for any reason, so long as it is not unfair to the appellant).	13
{18} 	“The right to appeal is . . . a matter of substantive law created by constitutional	14
or statutory provision.” State v. Armijo, 2016-NMSC-021, ¶ 19, 375 P.3d 415. We	15
review de novo the interpretation of constitutional and statutory provisions. Id. “The	16
proper interpretation of our [Supreme Court’s] Rules of Criminal Procedure is a	17
3 We do not consider whether Defendant could have sought review of the
claims of error he contends the magistrate court committed via extraordinary writ.
See State v. Foster, 2003-NMCA-099, ¶ 10, 134 N.M. 224, 75 P.3d 824 (providing
one possible course of redress for an aggrieved defendant is by petition for an
extraordinary writ).

9
question of law that we review de novo[,]” as well. Allen v. LeMaster, 2012-NMSC-	1
001, ¶ 11, 267 P.3d 806.	2
{19} 	With few exceptions, appeals from a magistrate court to the district court are	3
by trial de novo. See, e.g., Piñon-Garcia, 2013-NMSC-046, ¶ 9 (“In a de novo	4
appeal, the general rule is that a district court conducts a new trial as if the trial in	5
the lower court had not occurred.”). Article VI, Section 27 (1966), the constitutional	6
provision in effect at the time this case was brought, 4 granted district courts	7
exclusive jurisdiction on appeal from decisions of inferior courts, including from	8
magistrate courts. Article VI, Section 27 provided that “in all such appeals, trial shall	9
be had de novo unless otherwise provided by law.” The statutory provisions enacted	10
by the Legislature adopted the jurisdictional requirements of Article VI, Section 27.	11
See 	NMSA 	1978, 	§ 	35-13-2(A) 	(1996) 	(providing 	that 	“[a]ppeals 	from the	12
magistrate courts shall be tried de novo in the district court”). NMSA 1978, Section	13
39-3-1 (1955) provides that magistrate court proceedings, and other inferior court	14
proceedings not of record, “shall be tried anew in said courts on their merits, as if no	15
trial had been had below.” Rule 5-826(J) NMRA provides that “[t]rials upon appeals	16
4 References to N.M. Const. art. VI § 27 in this opinion are to the 2016 version
applying the 1966 amendment (prior to the 2018 amendment), unless otherwise
noted.

10
from the magistrate . . . court to the district court shall be de novo.” These	1
constitutional, statutory, and rule provisions were in effect when this case was filed.5
2
{20} 	Although recognizing that “[i]n a de novo appeal, the general rule is that a	3
district court conducts a new trial as if the trial in the lower court had not occurred[,]”	4
Piñon-Garcia, 	2013-NMSC-046, 	¶ 	9, 	our 	Supreme 	Court, 	in 	Piñon-Garcia,	5
construed Article VI, Section 27 of the New Mexico Constitution along with the	6
statutes and rules implementing that constitutional provision, to require district	7
courts to consider and decide pretrial motions seeking appellate review of a decision	8
of an inferior court not of record in certain circumstances. The defendant in Piñon-	9
Garcia claimed that the municipal court (in a proceeding not of record) had correctly	10
dismissed his criminal complaint as a sanction for the failure of the city’s key witness	11
to appear for trial. Id. ¶ 5. The defendant sought review by pretrial motion in the	12
district court, claiming that there had been no abuse of discretion by the municipal	13
court in dismissing the criminal complaint and that the dismissal should be honored	14
by the district court. Id. ¶¶ 3, 5, 6. The city contended that the only review available	15
on appeal was a trial de novo and that it was entitled to try the defendant again	16
5 Article VI, Section 27, was amended by the voters in 2018 to remove from
the Constitution both the requirements that appeals from inferior courts always be
taken to the district court and that the appeal always be de novo. The amendments
give the Legislature flexibility to modify these requirements by statute. There has
been no change in the statutes and rules governing appeals from magistrate courts,
and, therefore, no change in the relevant jurisdictional requirements.

11
without regard to the dismissal in municipal court. Id. ¶ 7. The district court agreed	1
with the city, rejecting the defendant’s motion to dismiss. Id. ¶ 3. The city’s witness	2
appeared and testified at trial in the district court, and the defendant was convicted.	3
Id. ¶ 6.	4
{21} 	Our Supreme Court reversed, concluding that the district court must review,	5
by hearing de novo, the defendant’s pretrial motion seeking affirmance of the	6
municipal court’s dismissal. Id. ¶¶ 1, 12. Such review, the Court discussed, was	7
essential to protect the inferior courts’ authority to grant relief “when constitutional	8
safeguards and procedural rules, such as speedy trial, double jeopardy, or discovery	9
rules, are violated.” Id. ¶ 2. Piñon-Garcia construes the voters’ purpose in adopting	10
Article VI, Section 27 as both to provide for a new trial on appeal when inferior	11
court proceedings are not conducted on the record, and also to “give true meaning	12
to the power vested in [inferior] courts to enforce our procedural rules and the	13
protections of the United States and New Mexico Constitutions.” Piñon-Garcia,	14
2013-NMSC-046, ¶ 13. Our Supreme Court observed that if the government is	15
“guaranteed a new trial on appeal, regardless of its violation of procedural rules or	16
violations of the United States or New Mexico Constitutions,” the orders of an	17
inferior court enforcing those rules would be meaningless. Id. The Court held that	18
reading the requirement for a trial de novo in the district court to allow the	19
government to ignore the orders of an inferior court with impunity is an absurd	20

12
interpretation of the intent of the voters and the Legislature. Id. Where the inferior	1
court penalizes the government for speedy trial violations, discovery violations, or	2
double jeopardy violations with dismissal of the charges, the government is not	3
entitled to a trial de novo if the inferior court’s dismissal is well-founded.	4
{22} 	We read Piñon-Garcia’s exception to the general rule of trial de novo—	5
permitting instead appellate review by hearing de novo—as limited to those pretrial	6
motions seeking review of orders of the magistrate court dismissing or refusing to	7
dismiss the charges, or imposing or refusing to impose sanctions, for violation of	8
procedural protections or constitutional rights.6 See id. ¶¶ 2, 11, 13. Extensive New	9
Mexico precedent, including cases decided by this Court prior to Piñon-Garcia, and	10
cited with approval in 	Piñon-Garcia, and cases decided since 	Piñon-Garcia,	11
uniformly require the district court to consider and decide pretrial motions by de	12
novo review, which require the district court to determine whether the inferior court	13
properly dismissed the charges or properly excluded evidence as a sanction. See,	14
e.g., State v. Sharp, 2012-NMCA-042, 276 P.3d 969 (reviewing the magistrate	15
6 There, of course, is another category of pretrial motions that are subject to
review by hearing de novo in the district court—i.e., rulings by inferior courts
suppressing evidence for search and seizure violations. See State v. Heinsen, 2005-
NMSC-035, 138 N.M. 441, 121 P.3d 1040 (allowing the state to dismiss the
complaint in magistrate court and refile in district court to obtain review of a
magistrate court ruling suppressing evidence). Defendant, in this case, does not raise
any claims related to a ruling suppressing evidence by the magistrate court. We,
therefore, do not consider this exception to the general rule of trial de novo further
in this opinion.

13
court’s dismissal for the state’s violation of the six-month rule); State v. Gallegos,	1
2007-NMCA-112, 142 N.M. 447, 166 P.3d 1101 (reviewing the validity of the	2
defendant’s no contest plea in magistrate court, to determine if the appeal should be	3
dismissed); 	State 	v. 	Foster, 	2003-NMCA-099, 	134 	N.M. 	224, 	75 	P.3d 	824	4
(reviewing the defendant’s claim that his trial in the magistrate court violated double	5
jeopardy, requiring dismissal of the charges); State v. Hicks, 1986-NMCA-129, 105	6
N.M. 286, 731 P.2d 982 (reviewing the magistrate court’s decision that the state’s	7
late filing of the criminal complaint was not jurisdictional error, requiring dismissal	8
of the charges); State v. Baca, 2015-NMSC-021, 352 P.3d 1151 (reviewing whether	9
the defendant had been acquitted in the magistrate court, requiring dismissal of the	10
charges, and precluding a trial de novo in the district court); State v. Vanderdussen,	11
2018 NMCA-041, 420 P.3d 609 (reviewing a magistrate court’s declaration of a	12
mistrial to determine if a trial de novo was barred on double jeopardy grounds); State	13
v. Verrett, 2019-NMCA-010, 458 P.3d 529 (reviewing a magistrate court’s order	14
excluding evidence as a sanction against the state for a discovery violation). In all	15
but one of these cases, the pretrial motion determined whether the case would be	16
dismissed, without a trial de novo. In Verrett, the pretrial motion determined whether	17
evidence would be excluded in the trial de novo. Id. ¶ 3.	18
{23} 	In contrast, Defendant’s pretrial motion sought review of what Defendant	19
claimed was reversible legal error in the magistrate court. Defendant sought remand	20

14
to the magistrate court for a new trial, the remedy available in traditional on the	1
record appeals where reversible legal error is identified by the appellate court. See	2
Foster, 2003-NMCA-099, ¶ 9 (providing that when “the district court acts as a	3
typical appellate court[,]” the court “review[s] the record of the lower court’s trial	4
for legal error”); Lockhart v. Nelson, 488 U.S. 33, 38 (1988) (providing that retrial	5
is permitted after a conviction has been set aside on direct appeal for a defect	6
constituting reversible error).	7
{24} 	Defendant did not allege that any violation of his constitutional rights by the	8
State required dismissal of the charges against him or that sanctions imposed by the	9
magistrate court should apply in his trial de novo. Defendant sought remand for a	10
new trial in the magistrate court (and continues to seek that remedy on appeal to this	11
Court), but fails to point to any authority permitting this type of review and remedy	12
in this context. See, e.g., Curry v. Great Nw. Ins. Co., 2014-NMCA-031, ¶ 28, 320	13
P.3d 482 (“Where a party cites no authority to support an argument, we may assume	14
no such authority exists.”). Nor are we aware of any.	15
{25} 	Indeed, there is authority prohibiting such a remand. See State v. Begay, 2010-	16
NMCA-089, ¶ 14, 148 N.M. 685, 241 P.3d 1125 (holding that when a defendant is	17
entitled to a de novo hearing in district court “then the order remanding for a new	18
hearing [in magistrate court] is in error”). Although there are rules of procedure that	19
allow transfer of cases between district court and magistrate court, the circumstances	20

15
when this is allowed are strictly limited. See State v. Ahasteen, 1998-NMCA-158,	1
¶ 16, 126 N.M. 238, 968 P.2d 328 (“Transfers of jurisdiction from one court to	2
another . . . are provided for by the rules of criminal procedure for each court.”),	3
abrogated on other grounds by State v. Savedra, 2010-NMSC-025, 148 N.M. 301,	4
236 P.3d 20. For example, the district court can remand to the magistrate court for a	5
finding of probable cause to prosecute, see Rule 5-302(E) NMRA, or remand to	6
enforce or vacate a judgment following the completion of an appeal by trial de novo	7
in the district court, see Rule 5-826(L). Transfer from magistrate court to district	8
court is permitted for the district court to make a competency determination. See	9
Rule 6-507.1(G) NMRA. After such determination, the district court then remands	10
back to the magistrate court. See Rule 6-507.1(H). No rule, however, permits the	11
district court to remand or otherwise transfer jurisdiction back to the magistrate court	12
for a retrial. Further, as this Court has previously explained, a defendant “has no	13
right to be tried in magistrate court rather than in district court” and a district court’s	14
remand to a magistrate court for trial amounted to “refusing to exercise jurisdiction.”	15
Ahasteen, 1998-NMCA-158, ¶¶ 27, 29.	16
{26} 	The district court’s review in an appeal from the magistrate court is not for	17
legal error, see Foster, 2003-NMCA-099, ¶ 9; instead, as our Supreme Court	18
recently stated, “[A]n appeal to the district court begins the trial process anew[.]”	19
State v. Cruz, 2021-NMSC-015, ¶ 48, 486 P.3d 1. We, therefore, conclude that	20

16
Defendant’s pretrial motion, seeking review of legal errors committed by the	1
magistrate court and remand for a new trial in magistrate court, can only be remedied	2
by a trial de novo in the district court.	3
CONCLUSION	4
{27} 	For the foregoing reasons, Defendant’s claims of error relating to the district	5
court’s review of the magistrate court rulings are without merit. Further, because	6
Defendant has raised no claim of error relating to his district court trial de novo, we	7
affirm his convictions.	8
{28} 	IT IS SO ORDERED.	9
__________________________________	10
JANE B. YOHALEM, Judge	11
WE CONCUR:	12
_________________________________	13
JENNIFER L. ATTREP, Judge	14
_________________________________	15
SHAMMARA H. HENDERSON, Judge	16