May 26, 2020- State of New Mexico v. Joseph Allen Sanchez, No. A-1-CA-36618

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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-36618	4
JOSEPH ALLEN SANCHEZ,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY	7
Cindy M. Mercer, District Judge	8
Hector H. Balderas, Attorney General	9
Santa Fe, NM	10
John Kloss, Assistant Attorney General	11
Albuquerque, NM	12
for Appellee	13
Bennett J. Baur, Chief Public Defender	14
Santa Fe, NM	15
Steven J. Forsberg, Assistant Appellate Defender	16
Albuquerque, NM	17
for Appellant	18
MEMORANDUM OPINION	19
B. ZAMORA, Judge.	20
{1} 	Defendant Joseph Sanchez appeals his convictions for possession of a	21
controlled substance with intent to distribute, contrary to NMSA 1978, Section 30-	22
31-20 (2006), and possession of drug paraphernalia, contrary to NMSA 1978,	23
Court of Appeals of New Mexico
Filed 5/26/2020 9:57 AM

2
Section 30-31-25.1 (2001, amended 2019). Defendant raises two issues: (1) the	1
district court erred in removing a Spanish-speaking juror, and (2) the State failed to	2
present sufficient evidence to support Defendant’s conviction for possession of a	3
controlled substance with intent to distribute. We affirm.	4
BACKGROUND	5
{2} 	The police executed a search warrant on Defendant’s trailer in October 2014.	6
Lieutenant Joseph Portio testified that the morning the search warrant was executed,	7
he set up surveillance of Defendant’s trailer and briefed the other officers on the	8
property being searched. During the briefing, Portio identified Defendant as the	9
target of the investigation and advised the other officers to search for cocaine,	10
methamphetamine, heroin, and drug paraphernalia.	11
{3} 	When police arrived, they found a man outside working on a car that “was	12
registered to [Defendant].” The police then knocked on the front door, found it	13
unlocked, and entered the trailer. Four people were found inside the trailer including	14
Estavio 	Sanchez, 	Jacob 	Sanchez, 	Stephanie 	Gurule, 	and 	Defendant. 	Estavio	15
“admitted that [it was] his residence,” and that he resided in the “west bedroom.”	16
Portio testified that “Jacob Sanchez was found in the middle bedroom,” and that he	17
was allowed to “stay in the home” because Portio did not find drugs or paraphernalia	18
while searching Jacob’s bedroom. Defendant and Gurule were found in the east side	19

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of the trailer inside the master bedroom. Gurule was arrested because of an	1
outstanding warrant.	2
{4} 	Portio testified that Defendant was “advised of the search warrant” and that	3
Defendant indicated “the only thing [they] would find [in the master bedroom] was	4
the marijuana in a Budweiser box.” However, during the search of the master	5
bedroom, Detective Martin Benavidez also located a “pair of men’s athletic shorts”	6
on the bed with clear plastic baggies in the pockets, containing “crack cocaine.”	7
Additionally, Benavidez located “a couple of scales[,] and one or two crack pipes”	8
in the master bedroom. Defendant was ultimately arrested for the crack cocaine and	9
paraphernalia found in the master bedroom.	10
{5} 	Before voir dire, the district court informed counsel that an interpreter was not	11
available for the “two non-English speaking jurors.” One juror was moved to the	12
“next trial” without objection from either party. However, the second juror indicated	13
that he “[did] not need an interpreter” and was allowed to stay on the venire panel.	14
The State recommended that Defendant’s counsel inform Defendant that one of the	15
jurors was being excused, but the district court disagreed and stated that it was	16
defense counsel’s “decision to make at this point.” The trial then proceeded without	17
any objection from Defendant or his attorney.	18

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{6} 	The jury convicted Defendant of possession of a controlled substance with	1
intent to distribute and possession of drug paraphernalia. Defendant appeals his	2
convictions.	3
DISCUSSION	4
I. 	Excusal of Spanish-Speaking Juror	5
{7} 	Defendant challenges the district court’s dismissal of a “non-English speaking	6
juror” from the venire panel, arguing the dismissal was a violation of Article VII,	7
Section 3 of the New Mexico Constitution. The State contends that the juror’s	8
removal was not unconstitutional and even if it was error, Defendant failed to object	9
to the error below. Acknowledging his failure to object, Defendant argues the district	10
court’s dismissal of the juror is nonetheless reviewable for structural error. For the	11
reasons below, we decline to address the merits of Defendant’s constitutional claim.	12
{8} 	The New Mexico Constitution gives each citizen the right to sit upon a jury	13
and such right “shall never be restricted, abridged or impaired on account of [the]	14
inability to speak, read or write the English . . . language[.]” N.M. Const. art. VII,	15
§ 3. “We review constitutional claims de novo.” State v. Samora, 2013-NMSC-038,	16
¶ 6, 307 P.3d 328. When a defendant’s objection under Article VII, Section 3 is	17
properly preserved, we review whether the constitutional provision is violated and,	18
if so, “reverse what would have been an otherwise valid conviction.” Samora, 2013-	19
NMSC-038, ¶ 15. However, when a defendant fails to preserve an Article VII,	20

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Section 3 issue, we can nevertheless review for fundamental error. Samora, 2013-	1
NMSC-038, ¶ 16. Although 	Defendant’s 	failure to 	preserve the issue would	2
ordinarily trigger a fundamental error analysis, Defendant makes no argument that	3
the purported error in the district court amounted to fundamental error. See State v.	4
Dickert, 2012-NMCA-004, ¶ 35, 268 P.3d 515 (declining to review for fundamental	5
error where the defendant fails to develop the argument). Rather, Defendant argues	6
we should review the district court’s dismissal of the juror for structural error.	7
{9} 	“A structural error is a defect affecting the framework within which the trial	8
proceeds, rather than simply an error in the trial process itself.” State v. Nguyen,	9
2008-NMCA-073, ¶ 9, 144 N.M. 197, 185 P.3d 368 (internal quotation marks and	10
citation omitted). Notably, “[s]tructural error has been found only in a very limited	11
class of cases.” Id. (internal quotation marks and citation omitted). “Such errors	12
infect the entire trial process, and necessarily render a trial fundamentally unfair.”	13
State v. Rivera, 2012-NMSC-003, ¶ 20, 268 P.3d 40 (internal quotation marks and	14
citation omitted). “We review [a defendant’s] claim that there was structural . . .	15
error . . . de novo.” Nguyen, 2008-NMCA-073, ¶ 8. However, before we analyze for	16
structural error we must first determine if there was waiver because “a structural	17
defect may be waived.” State v. Singleton, 2001-NMCA-054, ¶ 17, 130 N.M. 583,	18
28 P.3d 1124.	19

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{10} 	Our Supreme Court has held “that a criminal defendant who does not object	1
to an exclusion of a juror in violation of Article VII, Section 3 has waived his or her	2
ability to do so on appeal.” State v. Rico, 2002-NMSC-022, ¶ 8, 132 N.M. 570, 52	3
P.3d 	942; 	see 	Singleton, 	2001-NMCA-054, 	¶¶ 	12-16 	(recognizing 	that 	the	4
constitutional right of a non-English speaking juror to serve on a jury can be waived).	5
Accordingly, a defendant’s assertion of the constitutional right for a Spanish-	6
speaking juror to serve on the jury may be waived without an “express, on-the-record	7
waiver.” Singleton, 2001-NMCA-054, ¶ 16.	8
{11} 	By failing to object to the district court’s dismissal of the Spanish-speaking	9
juror under Article VII, Section 3, Defendant waived any structural defect that may	10
have resulted therefrom. The district court informed both Defendant’s attorney and	11
the State about the Spanish-speaking jurors and asked both parties directly about	12
their position on moving “those jurors to the next trial” so that they could “proceed	13
this morning.” The State indicated that it “would be comfortable with that, provided	14
that the defense waives any right to object to it after the trial is over,” and defense	15
counsel replied, “Defense has no objection.” When the State suggested that defense	16
counsel talk to Defendant about the dismissal of the juror, defense counsel replied,	17
“I get to speak for my client,” and insisted that he “[spoke] for him a hundred times.”	18
Defendant’s attorney concluded that he would ultimately “make hundreds of	19

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decisions [for Defendant] during the course of a trial” without conferring “each and	1
every time,” and did not raise any objection to the dismissal of the juror.	2
{12} 	Similar to the defendant in Singleton, Defendant argues his counsel’s actions	3
did not amount to waiver because Defendant was “kept in the dark.” See 2001-	4
NMCA-054, ¶ 11. Defendant attempts to distinguish his case from Singleton by	5
arguing that the defendant in Singleton was present and remained silent, whereas	6
here, Defendant was never informed of the juror’s dismissal. See id. ¶¶ 14-15.	7
However, Defendant’s presence was not required for the waiver to be valid. Some	8
of a defendant’s rights are personal and “necessitate inquiry into the individual	9
defendant’s decision making process,” while other “rights generally pertaining to	10
the conduct of [the] trial may be waived through counsel and without an inquiry on	11
the record into the validity of the waiver.” State v. Hobbs, 2016-NMCA-006, ¶ 14,	12
363 P.3d 1259 (internal quotation marks and citation omitted). We have held that	13
“[t]he right to excuse or retain a juror is a right tied closely to a tactical decision”	14
and “decisions concerning the conduct of the trial and trial tactics lie with the	15
lawyer.” Singleton, 2001-NMCA-054, ¶ 13. Thus, we have made clear that “when a	16
defense attorney decides for reasoned strategic purposes not to make a constitutional	17
or statutory objection to the composition of a petit jury, the defendant is bound even	18
if the attorney fails to consult him or her about the choice.” Id. ¶ 15 (alteration,	19
internal quotation marks, and citation omitted). Therefore, we conclude that any	20

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structural defect that may have resulted from the district court’s dismissal of the	1
Spanish-speaking juror was waived by Defendant, and we need not address the issue	2
further. See id. ¶ 17.	3
II. 	Sufficiency of the Evidence	4
{13} 	Defendant challenges the sufficiency of the evidence to sustain his conviction	5
for possession with intent to distribute because the State failed to prove that he had	6
knowledge and control of the cocaine. The State argues that the circumstantial	7
evidence of Defendant’s knowledge and control of the contents in the master	8
bedroom sufficiently established that Defendant had constructive possession of the	9
cocaine. We agree with the State.	10
{14} 	“In reviewing the sufficiency of the evidence, the reviewing court views the	11
evidence in the light most favorable to the guilty verdict, indulging all reasonable	12
inferences and resolving all conflicts in the evidence in favor of the verdict.” State	13
v. Comitz, 2019-NMSC-011, ¶ 16, 443 P.3d 1130 (internal quotation marks and	14
citation omitted). “We do not reweigh the evidence and may not substitute our	15
judgment for that of the fact[-]finder, so long as there is sufficient evidence to	16
support the verdict.” State v. Brietag, 1989-NMCA-019, ¶ 9, 108 N.M. 368, 772	17
P.2d 898. Instead, we “determine whether a rational jury could have found beyond	18
a reasonable doubt the essential facts required for a conviction.” State v. Romero,	19

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2009-NMCA-012, ¶ 10, 145 N.M. 594, 203 P.3d 125 (emphasis, internal quotation	1
marks, and citation omitted).	2
{15} 	For 	the 	State 	to 	prove 	possession 	of 	a 	controlled 	substance, 	it 	must	3
demonstrate that Defendant knew what the controlled substance was, knew it was in	4
his presence, and exercised control over it. See UJI 14-130 NMRA (stating that “[a]	5
person is in possession . . . when . . . he knows what it is, he knows it is on his person	6
or in his presence and he exercises control over it”). Defendant did not actually	7
possess 	the 	crack 	cocaine 	and 	thus, 	the 	State 	had 	to 	show 	that 	Defendant	8
constructively possessed the drugs. “Two or more people can have possession of	9
[the drugs] at the same time.” Id. However, “[a] person’s presence in the vicinity of	10
the [drugs] or his knowledge of the existence or the location of the [drugs] is not, by	11
itself, possession.” Id. Instead, constructive possession is shown by a “rational	12
connection 	between 	the location 	of 	the 	drugs 	[and 	paraphernalia] and 	[the]	13
defendant’s probable knowledge and control of them.” Brietag, 1989-NMCA-019,	14
¶ 14.	15
{16} 	We look to our decision in State v. Muniz for guidance. 1990-NMCA-105,	16
110 N.M. 799, 800 P.2d 734. In Muniz, we held there was sufficient evidence that	17
the defendant constructively possessed drugs found in a home where police believed	18
the defendant resided, even though an entire family appeared to be occupying the	19
home when police arrived. Id. ¶¶ 5, 15. The defendant was not present in the home	20

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at the time police executed the search warrant; however, the police located envelopes	1
with the defendant’s name in the room where the drugs were found. Id. ¶ 11.	2
Somewhere in the home police located a “black book” that the defendant admitted	3
belonged to him, which contained names and “coded numbers,” along with other	4
evidence suggesting that the defendant trafficked drugs. Id. ¶¶ 3, 16. In Muniz, we	5
concluded that viewing the evidence in the light most favorable to the state, there	6
was sufficient evidence to support the defendant’s conviction for possession of	7
marijuana with intent to distribute. Id. ¶ 17.	8
{17} 	In this case, viewing the evidence in the light most favorable to the verdict,	9
we conclude there was circumstantial evidence of constructive possession sufficient	10
to support Defendant’s conviction. See Brietag, 1989-NMCA-019, ¶ 12 (noting that	11
“to sustain [a] defendant’s convictions, we must determine whether there were	12
incriminating statements or circumstances tending to support an inference that he	13
constructively possessed the drugs”). Here, like in Muniz, there were several people	14
that resided in the trailer. However, not only was Defendant found inside the	15
bedroom where the drugs were located, he admitted he lived in the trailer, police	16
“found mail that showed [Defendant] received mail there,” and police identified the	17
master bedroom as the room Defendant “occupied.” Moreover, like in Muniz where	18
the defendant admitted to knowledge of a belonging inside his residence, Defendant	19
admitted he knew the location of marijuana inside his bedroom. Specifically,	20

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Defendant identified where in his bedroom officers could locate a “[Budweiser] box	1
with marijuana,” which officers found in the closet of the master bedroom precisely	2
where Defendant “pointed out” the box with drugs would be located. See State v.	3
Phillips, 2000-NMCA-028, ¶ 12, 128 N.M. 777, 999 P.2d 421 (explaining that the	4
“[d]efendant’s own incriminating statements” can be relied upon by a rational jury	5
to conclude that constructive possession existed); Brietag, 1989-NMCA-019, ¶ 14	6
(stating that when drugs are found “in close proximity to [the defendant’s] personal	7
belongings,” sufficient circumstances may exist “to link him with the possession of	8
those drugs [and paraphernalia]”). Furthermore, “large men’s size style shorts”	9
containing cocaine in the pockets were found on the bed in Defendant’s bedroom.	10
The district court admitted the shorts into evidence, which the jury had an	11
opportunity to view during trial and deliberations. According to Portio, the shorts	12
could have belonged to either a male or female but attributed them to Defendant	13
because they were found in his residence in “the room he occupied.” Because the	14
men’s shorts were admitted into evidence, the jury had the opportunity to view	15
Defendant’s size and stature as well as examine the men’s shorts during trial and	16
deliberations and therefore, may have considered this circumstantial evidence that	17
the men’s shorts in which the cocaine was found belonged to Defendant. See	18
Phillips, 2000-NMCA-028, ¶ 7 (stating that “[c]ircumstantial evidence may be	19
sufficient to support a verdict for constructive possession, as long as a rational jury	20

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has necessarily found the hypotheses of guilt more reasonable than any of the	1
theories of innocence advanced by the defendant” (internal quotation marks and	2
citation omitted)).	3
{18} 	Defendant also argues that since more than one person occupied the room,	4
there was insufficient evidence that Defendant possessed the crack cocaine. If more	5
than one person occupies the room where the drugs were found, the “defendant could	6
also have had sufficient knowledge and control to be in constructive possession” if	7
the State demonstrates a “link establishing [the] defendant’s knowledge and	8
control.” Muniz, 1990-NMCA-105, ¶ 15. We note that the evidence only established	9
Gurule was “found” in the master bedroom; there was no testimony or evidence	10
indicating that she lived there or that any of her belongings were located in the	11
bedroom. 	Nonetheless, 	as 	discussed 	above, 	there 	was 	sufficient 	evidence of	12
knowledge and control to show Defendant constructively possessed the crack	13
cocaine. 	Therefore, 	we 	hold 	that 	there 	was 	sufficient 	evidence 	to 	support	14
Defendant’s conviction for possession of a controlled substance, with intent to	15
distribute.	16
CONCLUSION	17
{19} 	For the foregoing reasons, we affirm.	18

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{20} 	IT IS SO ORDERED.	1
_____________________________	2
BRIANA H. ZAMORA, Judge	3
WE CONCUR:	4
________________________________	5
J. MILES HANISEE, Chief Judge	6
________________________________	7
JACQUELINE R. MEDINA, Judge	8