May 18, 2011 – State of New Mexico v. Carlos Loya, No. 29,343

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: __ May 18, 2011

NO. 29,343

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

CARLOS LOYA,
Defendant-A ppellant.

APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY
Stephen Bridgforth, District Judge

Gary K. King, Attomey General

Anita Carlson, Assistant Attomey General

Santa Fe, NM

for Appellee

Jacqueline L.. Cooper, Acting Chief Public Defender
Eleanor Brogan, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION
BUSTAMANTE, Judge.
{1} 	Defendant Carlos Loya appeals from his conviction of felony aggravated DWI
in violation of NMSA 1978, Section 66-8-102(D)(3) (2007, prior to amendments
through 2010). Defendant contends that it was error for the district court to try his
case after he moved for dismissal based upon a violation of the six-month rule set
forth in Rule 5-604 NMRA. As of March 23, 2011, a new rule applies to all pending
cases. After analyzing the case in light of the new rule, we affirm.
I. 	BACKGROUND
{2} 	On April 13, 2008, Defendant was pulled over for driving at night without
headlights. The responding officer immediately noted a strong odor of alcohol, that
Defendant had bloodshot, watery eyes and a flushed face, and that Defendant’s speech
was slurred. After Defendant failed the field sobriety tests, he was arrested for DWI.
Deputy Flores, who was fluent in Spanish, read and explained the implied consent act
to Defendant. Defendant then refused to provide a breath sample.
{3} 	Because Defendant argues that his case should have been dismissed under the
six-month rule, we must examine the timing of his case. Defendant was arraigned on
April 23, 2008. Subsequently, the State learned that Defendant had at least three prior
DWI convictions, making Defendant’s DWI charge a felony. Defendant was indicted

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for the felony DWI on June 12, 2008, and the case in magistrate court was dismissed.
On November 10, 2008, Defendant asked the district court to dismiss his case based
on a violation of Rule 5-604, the six-month rule. A hearing was held, and though the
court never entered a formal order, it did send counsel a letter ruling on the motion.
The matter proceeded to trial on January 8, 2009, and a jury found Defendant guilty
of aggravated driving while under the influence of intoxicating liquor (refusal).
{4} 	The State began its opening statement by saying
Ladies and gentlemen, [thirteen] is seen by some people as an unlucky
number. 	However, on April 13, 2008, it was a very good day for the
citizens of Doña Ana County, because [D]efendant in this case was seen
driving without his headlights and was pulled over before he could cause
any significant harm.
Defendant objected to this statement, and the district court sustained, instructing the
State to “restrict your opening statements to what you think the evidence will show.”
Prior to closing arguments, Defendant requested that the State not make similar
remarks during closing. However, despite the fact that this request occurred during
a discussion about jury instructions, Defendant did not request any curative
instructions for the initial comment. Defendant also did not move for a mistrial.

1At the time this case was tried, there were two relevant six-month rules: Rule
6-506 NMRA, which applied in the magistrate courts, and Rule 5-604, which applied
to the district courts. Although the header in Defendant's brief-in-chief states that the
district court incorrectly denied Defendant’s motion to dismiss “for violation of the
magistrate court six-month rule,” the motion he refers to [RP 56] is based on Rule
5-604, the district court’s six-month rule.
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II. 	DISCUSSION
{5} 	Defendant makes three arguments that he contends require reversal: (1) that his
case should have been dismissed pursuant to the six-month rule; 1 (2) that the district
court erred by not declaring a mistrial after the initial two sentences of the State’s
opening statement; and (3) that there was insufficient evidence to support his
conviction. We address each argument in turn.
A. 	Rule 5-604
{6} 	Defendant first argues that the district court erred in denying his motion to
dismiss for violation of the magistrate court’s six-month rule. Defendant asserts that
his situation is governed by the holding and rationale of State v. Carreon, 2006-
NMCA-145, 140 N.M. 779, 149 P.3d 95, abrogated by State v. Savedra, 2010-
NMSC-025, 148 N.M. 301, 236 P.3d 20 and State v. Yates, 2008-NMCA-129, 144
N.M. 859, 192 P.3d 1236 (both holding in essence that dismissal of a magistrate court
case does not stop the running of the magistrate court’s six-month rule when the
matter is refiled, unless the State overcomes the presumption that the refiled case is
a continuation of the original prosecution). The State counters that (1) Defendant has

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not developed an adequate record; (2) Savedra, 2010-NMSC-025, does not apply
because the State brought different charges in district court than it had in magistrate
court; and (3) Carreon, 2006-NMCA-145, does not apply because of new evidence
that the crime charged was a fourth or subsequent DWI and, therefore, a felony that
required the State to refile.
{7} 	The law regarding the six-month rule has been in flux during the time this case
has been pending. As a result of these changes, the concepts Defendant relies on in
his briefing have been vitiated. On May 12, 2010, our Supreme Court issued Savedra,
which withdrew the six-month rule provisions set forth in Rule 5-604(B)-(E).
Savedra, 2010-NMSC-025, ¶ 9. Rather than apply a rigid six-month rule, Savedra
instructed the courts to use the speedy trial factors of Barker v. Wingo, 407 U.S. 514
(1972). See Savedra, 2010-NMSC-025, ¶ 8; see also State v. Martinez, 2011-NMSC-
010, ¶ 2, 	___ N.M. ___, 249 P.3d 82. 	On February 25, 2011, the Supreme Court
made it clear that the holding in Savedra applied to all cases pending in any court in
New Mexico. See Martinez, 2011-NMSC-010, ¶ 10.
{8} 	Subsequently, the Supreme Court rewrote Rule 5-604 to reflect the holding of
Savedra. See Supreme Court Order No. 11-8300-019 (May 1, 2011). The new Rule
5-604 is entitled “Time of commencement of trial for cases of concurrent trial
jurisdiction originally filed in the magistrate, metropolitan, or municipal court.” The

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relevant portions of the new rule, parts (B) and (C), became effective for all cases
pending in any court in New Mexico on March 23, 2011. See id. Because this case
was pending on or after March 23, 2011, we apply the new rule.
{9} 	However, by its own terms, the new rule does not apply to “cases within the
exclusive trial jurisdiction of the district court.” Rule 5-604(C)(3). The magistrate
court does not have jurisdiction to prosecute felonies. 	See NMSA 1978, § 35-3-4
(1985). Instead, when subsequent information of prior DWI convictions prompts the
State to file felony DWI charges in district court, the district court has exclusive
jurisdiction. See State v. Gardea, 1999-NMCA-116, ¶ 10, 128 N.M. 64, 989 P.2d 439.
That is what occurred here. Accordingly, Rule 5-604 does not apply to the instant
case.
{10} 	Although the speedy trial issue is no longer governed by court rule, this does
not mean that it may not be pursued. 	The Sixth Amendment provides that in all
criminal prosecutions, the accused shall enjoy the right to a speedy trial. U.S. Const.
amend. VI. The new rule is careful to emphasize that it does not prohibit defendants
from filing motions to dismiss for violations of the right to a speedy trial. See Rule
5-604(B). Such a motion would be based on the same factors set forth in the new rule.
Compare State v. Garza, 2009-NMSC-038, ¶ 13, 146 N.M. 499, 212 P.3d 387
(applying the Barker factors to evaluate a speedy trial claim), with Rule 5-604(B)

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(instructing courts to consider the four Barker factors, as well as the complexity of the
case, to determine whether a defendant’s speedy trial right has been violated).
Accordingly, we apply the test from Barker, which weighs four factors: 	“(1) the
length of delay, (2) the reasons for the delay, (3) the defendant’s assertion of his right,
and (4) the actual prejudice to the defendant.” 	Garza, 2009-NMSC-038, ¶ 13.
However, a court is only required to reach this balancing test if “the length of delay
is ‘presumptively prejudicial.’” Id. ¶ 21. 	For simple cases, a delay of one year is
presumptively prejudicial. Id. ¶ 48.
{11} 	Because less than a year passed between Defendant’s arraignment in magistrate
court and his conviction, we need not weigh the Barker factors in this case. Defendant
was arraigned on April 23, 2008, and tried less than nine months later on January 8,
2009. Since this is less than one year, the delay was not presumptively prejudicial,
and Defendant’s right to a speedy trial was not violated.
B. 	Prejudicial Statements
{12} 	Defendant next argues that the State “made prejudicial statements concerning
drunk drivers during his opening statement” that require this Court to remand for a
new trial. The State counters that Defendant’s failure to request a curative instruction
means that the issue is not preserved. The State also contends that the instruction to
the State to limit its opening to what the evidence would show cured any problem, that

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the single comment was at most an isolated, minor impropriety insufficient to warrant
reversal, and that Defendant has not shown he was prejudiced by the statement.
{13} 	Our Supreme Court has explained the standard that we apply to prosecutorial
misconduct as follows:
The trial court has broad discretion in controlling the conduct and
remedying the errors of counsel during trial. Moreover, the trial court is
in 	the 	best 	position 	to 	evaluate 	the 	significance 	of 	any 	alleged
prosecutorial 	errors. 	Thus, 	in 	reviewing 	claims 	of 	prosecutorial
misconduct, we determine whether the trial court abused its discretion by
denying a motion for a new trial based upon the prosecutor’s conduct, by
overruling the defendant’s objection to the challenged conduct, or by
otherwise failing to control the conduct of counsel during trial. The trial
court’s determination of these questions will not be disturbed unless its
ruling 	is 	arbitrary, 	capricious, 	or 	beyond 	reason. 	Our 	ultimate
determination 	of 	this 	issue 	rests 	on 	whether 	the 	prosecutor’s
improprieties had such a persuasive and prejudicial effect on the jury’s
verdict that the defendant was deprived of a fair trial.
State v. Duffy, 1998-NMSC-014, ¶ 46, 126 N.M. 132, 967 P.2d 807 (citations
omitted). 	Ordinarily, an isolated, minor statement will not provide grounds for
reversal. 	See State v. Allen, 2000-NMSC-002, ¶ 95, 128 N.M. 482, 994 P.2d 728.
However, a single statement will require reversal if it is so egregious as to deprive the
defendant of a fair trial. 	See Duffy, 1998-NMSC-014, ¶ 47. 	Additionally,
“prosecutorial misconduct will be deemed harmless only if we find that the evidence
of guilt is so overwhelming that there can be no reasonable probability that the
conviction was swayed by the misconduct.” Id. ¶ 59.

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{14} 	We have previously held that a district court did not abuse its discretion when
it denied a motion for mistrial after questionable comments. See State v. Reynolds,
111 N.M. 263, 804 P.2d 1082 (Ct. App. 1990). In the opening arguments of Reynolds,
the prosecutor asserted that the defendant had given the police a “cock-and-bull
story.” Id. at 266, 804 P.2d at 1085. The defendant moved for a mistrial. The district
court denied the motion, but instructed the jury that opening statements are not
evidence and should not include argument. 	See id. 	In concluding that the district
court had not abused its discretion, this Court noted that declaring a mistrial was only
appropriate if the State’s comments were “substantially likely to cause a miscarriage
of justice.” Id. This Court also noted that, since the evidence supported the statement
that the defendant’s story was a “cock-and-bull” story, it would have been proper in
closing arguments, and therefore could not have denied the defendant a fair trial. Id.
{15} 	We find Reynolds analogous to the instant case. As in Reynolds, the State here
made an ill-advised comment in his opening statement. However, the district court
sustained Defendant’s timely objection before it became egregious. The State was
only allowed to say that the people of the county were fortunate that Defendant was
pulled over before he could cause any significant harm. The State did not get a chance
to turn this into a prejudicial statement about drunk drivers. 	The district court’s
decision to let the State proceed subject to the requirement that he restrict his

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statements was not arbitrary, capricious, or beyond reason. As we discuss below, the
State went on to put forth evidence sufficient to support Defendant’s conviction for
aggravated DWI. 	Accordingly, as in Reynolds, the statements could have been
considered and addressed in some manner without denying Defendant a fair trial, as
the district court had the discretion to consider allowing some version of these
statements if they had been made during the State’s closing argument. 	Finally,
although no instructions were issued to the jury regarding the objectionable
statements, we note that Defendant did not at any point request such instructions.
Under these circumstances, we hold that the district court did not abuse its discretion
in allowing the trial to proceed after sustaining Defendant’s objection. However, we
note that the statements came close to improperly appealing to the “passions and
prejudices of the jury,” and we may have reached a different result had the State been
allowed to continue. State v. Ashley, 1997-NMSC-049, ¶¶ 15, 21, 124 N.M. 1, 946
P.2d 205.
C. 	Sufficiency of the Evidence
{16} 	Finally, Defendant argues that his conviction was not supported by substantial
evidence. In particular, Defendant contends that “there was no testimony indicating
that the officers had probable cause to believe that he was impaired.” “[T]he test to
determine the sufficiency of evidence in New Mexico . . . is whether substantial

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evidence of either a direct or circumstantial nature exists to support a verdict of guilt
beyond a reasonable doubt with respect to every element essential to a conviction.”
State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). “In reviewing the
sufficiency of the evidence, we must view the evidence in the light most favorable to
the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the
evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128
N.M. 711, 998 P.2d 176.
{17} 	In the instant case, the jury found Defendant guilty of aggravated DWI. 	In
order to do so, the jury was required to find
1. 	[D]efendant operated a motor vehicle;
2. 	At that time, [D]efendant was under the influence of intoxicating
liquor; that is, as a result of drinking liquor [D]efendant was less
able to the slightest degree, either mentally or physically, or both,
to exercise the clear judgment and steady hand necessary to
handle a vehicle with safety to the person and the public;
3. 	[D]efendant refused to submit to chemical testing;
4. 	This happened in New Mexico on or about the 13th day of April,
2008.
The jury was further instructed that Defendant refused to submit to chemical testing
if
1. 	[D]efendant was arrested on reasonable grounds to believe that
[D]efendant was driving while under the influence of intoxicating
liquor or drugs;

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2. 	[D]efendant was advised by a law enforcement officer that failure
to submit to the test could result in the revocation of [D]efendant’s
privilege to drive;
3. 	A law enforcement officer requested [D]efendant to submit to a
chemical breath or blood test;
4. 	[D]efendant was conscious and otherwise capable of submitting
to a chemical test; and
5. 	[D]efendant willfully refused to submit to a breath or blood test.
Defendant concedes all elements of the DWI instruction except for the third: refusal
to submit to chemical testing. 	Regarding refusal to submit to testing, Defendant
argues only that “there was no testimony indicating that the officers had probable
cause to believe that he was impaired.”
{18} 	Contrary to Defendant’s position, the record provides ample evidence that
Defendant “was arrested on reasonable grounds to believe that [he] was driving while
under the influence.” Officer Ballard testified that he originally pulled Defendant over
for driving at night without headlights. 	When he made contact with the driver, he
immediately noticed a strong odor of alcohol and that Defendant had bloodshot,
watery eyes, a “very flushed” face, and slurred speech. 	He also testified that
Defendant had admitted to having three beers earlier in the evening. 	The officer
administered field sobriety tests, which Defendant failed. At that point, the officer
arrested Defendant.

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{19} 	The record also contains evidence supporting the other elements of refusal to
submit to chemical testing. Deputy Flores testified that he read the implied consent
act to Defendant in Spanish. 	Deputy Flores testified that Defendant said that he
understood, but that Defendant repeatedly refused to provide a breath sample. Deputy
Flores testified that he then explained to Defendant that refusal to provide a sample
could result in loss of driving privileges and increased penalties if convicted of DWI.
Deputy Flores then testified that Defendant again said that he understood but
continued to refuse to take the chemical test. Viewing this evidence in the light most
favorable to the verdict, the jury could reasonably have concluded that the elements
of the jury instruction regarding refusal to submit to chemical testing had been proven
beyond a reasonable doubt.
III. 	CONCLUSION
{20} 	For the foregoing reasons, we affirm the district court and remand for further
proceedings consistent with this opinion.
{21} 	IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:

RODERICK T. KENNEDY, J udge

TIMOTHY L. GARCIA, Judge

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