May 14, 2020- State of New Mexico v. Jorge Alberto Gastelum, No. A-1-CA-38007

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-38007	4
JORGE ALBERTO GASTELUM,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY	7
Michael H. Stone, District Judge	8
Hector H. Balderas, Attorney General	9
Benjamin Lammons, Assistant Attorney General	10
Santa Fe, NM	11
for Appellee	12
Templeman and Crutchfield	13
C. Barry Crutchfield	14
Lovington, NM	15
for Appellant	16
MEMORANDUM OPINION	17
ATTREP, Judge.	18
{1} 	The sole issue here is whether the doctrine of collateral estoppel embodied in	19
the constitutional guarantee against double jeopardy bars the State from prosecuting	20
the distribution of marijuana charge in this case after a probation violation for	21
possession of marijuana in another case was resolved in Defendant’s favor.	22
Court of Appeals of New Mexico
Filed 5/14/2020 11:02 AM

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Defendant Jorge Gastelum appeals the district court’s order denying his motion to	1
dismiss 	this 	matter.1 Concluding 	the 	probation 	violation 	proceeding 	did 	not	2
necessarily or actually determine the same issue presented in the distribution charge	3
in this case, we affirm.	4
BACKGROUND	5
{2} 	The charge in this case, as well as the alleged probation violation in	6
Defendant’s other case, arose from a traffic stop and subsequent search of a vehicle	7
in which Defendant was a passenger. During the search, police seized over one	8
pound of marijuana. Defendant was charged in this case with one count of	9
distribution of marijuana or synthetic cannabinoids (NMSA 1978, § 30-31-22	10
(2011)), and the State filed a petition to revoke his probation in the other case. The	11
petition alleged two violations of the terms of Defendant’s probation: (1) that he	12
violated the laws of the State of New Mexico (by distributing marijuana) and (2) that	13
he possessed a controlled substance without a lawful prescription (by possessing	14
marijuana in excess of eight ounces, the amount permitted by Defendant’s medical	15
marijuana card).2
16
1 Defendant filed an application for interlocutory appeal of the district court’s
order. Because “Defendant has a constitutional right to an immediate appeal from an
order denying a motion to dismiss on double jeopardy grounds[,]” we construed
Defendant’s application as a timely notice of appeal.
2 At the time, Defendant was enrolled in the New Mexico Medical Cannabis
Program, which allowed him to lawfully possess up to eight ounces of marijuana.

3
{3} 	At the probation revocation hearing, the State moved forward only with the	1
second alleged violation, seeking to prove that Defendant possessed more than eight	2
ounces of marijuana. Defendant’s probation officer was the sole witness for the	3
State. The probation officer testified that Defendant told her that he “had a pound of	4
marijuana.” 	On 	cross-examination, 	the 	probation 	officer 	acknowledged 	that	5
Defendant’s admission was material but that the admission did not appear in her	6
probation violation report. Defendant testified in his defense and denied ever	7
admitting to his probation officer that he had a pound of marijuana. Defendant	8
further denied possessing more than eight ounces of marijuana. The district court	9
took the matter under advisement and issued a written order dismissing the petition	10
to revoke probation. The district court made no findings of fact, concluding merely	11
“[t]hat the evidence presented by the State is insufficient to establish [a] violation of	12
probation conditions by Defendant.”	13
{4} 	Defendant subsequently filed a motion to dismiss the distribution of marijuana	14
charge in this case. He argued that the alleged violation in the probation revocation	15
proceeding was the same as the charge in the case at bar and that the favorable ruling	16
on the probation violation bars the State “from proceeding in the matter herein under	17
the doctrine of [c]ollateral [e]stoppel which is embodied in the [c]onstitutional	18
guarantee 	against 	[d]ouble 	jeopardy.” 	The 	district 	court 	denied 	the 	motion,	19
concluding that collateral estoppel does not bar prosecution in this case based largely	20

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on the fact that the burden of proof in a probation revocation hearing differs from	1
the burden of proof in a criminal trial. We affirm the district court, but on different	2
grounds.	3
DISCUSSION	4
{5} 	Collateral estoppel has long been held to be part of the guarantee against	5
double jeopardy. See State v. Tijerina, 1973-NMSC-105, ¶ 5, 86 N.M. 31, 519 P.2d	6
127 (citing Ashe v. Swenson, 397 U.S. 346 (1970)). Collateral estoppel “means	7
simply that when an issue of ultimate fact has once been determined by a valid and	8
final judgment, that issue cannot again be litigated between the same parties in any	9
future lawsuit.” Id. (internal quotation marks and citation omitted). In deciding the	10
applicability of collateral estoppel here, we must look at all relevant matters in the	11
first proceeding and seek to determine whether the fact-finder, in reaching its	12
decision, “necessarily or actually determined the same issues which the [s]tate	13
attempts to raise in the second [proceeding].” Id. ¶ 7; see also State v. Collier, 2013-	14
NMSC-015, ¶ 24, 301 P.3d 370 (summarizing collateral estoppel inquiry as	15
“determin[ing] whether [the d]efendant’s acquittal [at the first trial on the greater	16
offense] necessarily decided all of the issues of ultimate fact that the [s]tate would	17
have to prove in a retrial on the [lesser] offense”). Defendant bears the burden of	18
proving that the issue he claims was foreclosed by the prior proceeding was actually	19
decided adversely to the State. See State v. Abril, 2003-NMCA-111, ¶ 25, 134 N.M.	20

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326, 76 P.3d 644, overruled on other grounds by State v. Torres, 2012-NMCA-026,	1
272 P.3d 689, ¶ 38. The State argues, and we agree, that Defendant has failed to	2
meet this burden.3
3
{6} 	In support of the application of collateral estoppel, Defendant argues that the	4
State cannot now prosecute him for distribution of marijuana because the issue of	5
possession—a necessary predicate to distribution—was decided in the probation	6
revocation proceeding. Our review of the record reveals that Defendant’s argument	7
is overly broad and does not accurately characterize the issue that the district court	8
3 For purposes of our analysis today, we assume, without deciding, that under
appropriate circumstances, a probation revocation dismissal can be given collateral
estoppel effect in a later criminal prosecution. Cf. State v. Bishop, 1992-NMCA-034,
¶ 7, 113 N.M. 732, 832 P.2d 793 (“assum[ing], without deciding, that under the
appropriate circumstances, administrative decisions can be given collateral estoppel
effect in a later criminal action” but stating that “the traditional requirements for
collateral estoppel must still be satisfied”). We nevertheless express reservation
about the applicability of collateral estoppel in this case. First, the collateral estoppel
doctrine on which Defendant relies is grounded in the guarantee against double
jeopardy, and we previously have determined that double jeopardy is not implicated
by a probation revocation proceeding based on the same conduct giving rise to a
subsequent criminal prosecution. See In re Lucio F.T., 1994-NMCA-144, ¶¶ 4-5,
119 N.M. 76, 888 P.2d 958. Second, even if a defendant establishes the factual
predicate for collateral estoppel, application of that doctrine under the circumstances
here raises policy and fairness concerns. Cf. Bishop, 1992-NMCA-034, ¶ 10 (noting
that the summary nature of license revocation hearings and the lack of incentive on
the part 	of the 	state 	to 	fully litigate 	revocation 	issues 	make 	such 	hearings
“inappropriate for the application of collateral estoppel” to subsequent criminal
proceedings). We, however, need not decide whether a probation revocation
dismissal may ever be given collateral estoppel effect in a later criminal action
because, even if available to Defendant in this context, the requirements of collateral
estoppel have not been met in this case.

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decided at the probation hearing. Based on the limited evidence presented at the	1
probation hearing, as well as the distinct elements between the probation violation	2
and the charge in this case, the district court could not have necessarily decided	3
issues of ultimate fact material to the current distribution charge. We explain.	4
{7} 	As stated, during the probation hearing, the State argued only its second	5
alleged violation. To establish this violation, the State had to prove that Defendant	6
possessed a controlled substance without a lawful prescription. It was uncontested	7
that Defendant was permitted to lawfully possess up to eight ounces of marijuana.	8
Thus, if Defendant were found to possess eight ounces or less of marijuana, such a	9
finding could not have formed the basis for the probation violation. The sole ultimate	10
fact at issue in the probation revocation proceeding, therefore, was whether	11
Defendant possessed more than eight ounces of marijuana. This is the only fact	12
argued and the only fact that could have been resolved by the district court’s	13
conclusion that there was insufficient evidence “to establish [a] violation of	14
probation conditions by Defendant.” Simply put, the district court’s dismissal of the	15
petition to revoke probation amounted, at most, to a finding that Defendant did not	16
possess more than eight ounces of marijuana—it did not determine, as Defendant	17
suggests, that Defendant possessed no marijuana. See Tijerina, 1973-NMSC-105,	18
¶¶ 9-12, 18 (reviewing the evidence to determine what the fact-finder in the first	19
proceeding necessarily or actually determined).	20

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{8} 	Comparing the sole finding by the district court with the elements of	1
distribution of marijuana, we determine no preclusive effect on the current case. See	2
Collier, 2013-NMSC-015, ¶ 25 (comparing elements between offenses to determine	3
applicability of collateral estoppel); Tijerina, 1973-NMSC-105, ¶ 8 (same). In the	4
current case, the State’s criminal information charges that “[D]efendant knowingly	5
transferred, caused the transfer, attempted to transfer or possessed with the intent to	6
transfer marijuana or synthetic cannabinoids,” in violation of Section 30-31-22. As	7
the State argues, and we agree, even a small amount of marijuana may form the basis	8
of a distribution charge. See § 30-31-22(A), (E) (providing that the first offense for	9
distribution of even a small amount of marijuana for remuneration is a fourth-degree	10
felony). Thus, the district court’s prior determination that there was insufficient	11
evidence to conclude Defendant possessed more than eight ounces of marijuana did	12
not necessarily or actually determine the possession element of the distribution	13
charge, let alone the transfer or intent to transfer element. Defendant having failed	14
to meet his burden of proving that the issue he claims was foreclosed by the prior	15
proceeding was actually decided adversely to the State, we conclude that the	16
collateral estoppel aspect of double jeopardy does not preclude the State from	17
prosecuting Defendant in this case.	18
CONCLUSION	19
{9} 	We affirm the district court’s denial of Defendant’s motion to dismiss.	20

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{10} 	IT IS SO ORDERED.	1
_________________________________	2
JENNIFER L. ATTREP, Judge	3
WE CONCUR:	4
_________________________________	5
JULIE J. VARGAS, Judge	6
_________________________________	7
KRISTINA BOGARDUS, Judge	8