February 7, 2019- State of New Mexico v. Gerald Hernandez, No. A-1-CA-37555

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATE OF NEW MEXICO,
3 	Plaintiff-Appellee,
4 	v. 	NO. A-1-CA-37555
5 	GERALD HERNANDEZ,
6 	Defendant-Appellant.
7 	APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Brett Loveless, District Judge
9 	Hector H . Balderas, Attorney General
10 	Santa Fe , NM
11 	for Appellee
12 Bennett J. Baur , Chief Public Defender
13 	Gregory B . Dawkins , Assistant Appellate
14 	Santa Fe , NM
15 	for Appellant
16 	MEMORANDUM OPINION
17 V ANZI, Judge.
18 	{1} 	Defendant appeals his convictions for causing great bodily harm by vehicle
19 	(reckless driving). We issued a notice of proposed summary disposition, proposing
20 	to uphold the convictions. Defendant has filed a memorandum in opposition. After
21 	due consideration , we remain unpersuaded. We therefore affirm.
Court of Appeals of New Mexico
Filed 2/7/2019 8:30 AM
Mark Reynolds

1 {2} 	The relevant background information has previously been set forth. We will
2 avoid undue reiteration here and focus instead on the memorandum in opposition.
3 	{3} 	First, Defendant renews his challenge to the sufficiency of the evidence,
4 specifically contending that the chain reaction that he precipitated should not be
5 regarded as the direct cause of the injuries to the victims. [MIO 3] However, as we
6 previously explained, [CN 4] New Mexico has adopted the rule of proximate cause
7 in criminal cases, as opposed to the rule of direct causation, see State v. Fields, 1964-
8 NMSC-230, ,I 17 , 74 N.M. 559, 395 P.2d 908; State v. Chavez, 1971-NMCA-030,
9 ,r,r 9, 13, 82 N.M. 569, 484 P.2d 1279, and the evidence clearly demonstrated that
10 Defendant's conduct proximately caused the victims' 	injuries. Defendant also
11 	continues to argue that his culpability was diminished by one of the victims' failure
12 	to wear her seat belt. [MIO 3] However, the evidence was conflicting on this matter,
13 	see generally State v. Rojo, 1999-NMSC-001, ,r 19, 126 N.M. 438, 971 P.2d 829
14 (holding that contrary evidence does not warrant reversal because the jury is free to
15 	reject the defendant's version of events), and in any event, this is not a relevant or
16 mitigating consideration. See State v. Myers, 1975-NMCA-055, ,r 28, 88 N.M. 16,
17 	536 P.2d 280 (rejecting an argument in a vehicular homicide case that the victim's
18 	failure to wear a seat belt could be considered in determining the proximate cause of
19 death): cf NMSA 1978, § 66-7-373(A) (2001) (providing that failure to use a safety
2

1 belt "shall not in any instance constitute fault or negligence"). We therefore reject
2 Defendant's challenges to the sufficiency of the evidence.
3 	{4} 	Defendant also renews his argument that the district court erred in classifying
4 his crimes as serious violent offenses. 	[MIO 3-4] However, as we previously
5 observed, 	[CN 6] 	the district court duly found that Defendant's actions were
6 committed in a physically violent manner with recklessness in the face of knowledge
7 that his acts were reasonably likely to result in serious harm, [RP 240] and the
8 evidence was clearly sufficient to support those findings. This satisfies the requisites.
9 SeegenerallyStatev. Loretto, 2006-NMCA-142, 111 , 140 N.M. 705, 147 P.3d 1138.
10 	We therefore uphold the designations as well within the district court's discretion.
11 	{5} 	Accordingly, for the reasons stated above and in our notice of proposed
12 	summary disposition, we affirm.
13 	{6}
14
15
IT IS SO ORDERED.
16 	WE CONCUR:
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19 J: f,,¥.- 	~
20STINA B~RDUS, Judge
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