State v. Murillo ( 2012 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 31,447
5 JUAN MURILLO,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
8 J. Richard Brown, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Jacqueline L. Cooper, Chief Public Defender
13 J.K. Theodosia Johnson, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 FRY, Judge.
18 Defendant appeals from the district court’s order denying his motion to dismiss
19 multiple counts of fraud by worthless check. On appeal, Defendant contends that the
20 State was collaterally estopped from prosecuting some of the charges contained in his
1 2009 information, because he had been required to pay restitution on some of those
2 charges as part of a plea agreement he entered in 2007. The district court concluded
3 that the checks charged in the 2009 information were not the same as the checks
4 referred to in Defendant’s 2007 judgment and sentence. This Court issued a calendar
5 notice proposing to affirm. Defendant has filed a memorandum in opposition, which
6 we have duly considered. Unpersuaded, we affirm.
7 In this Court’s calendar notice, we noted that we generally apply a de novo
8 standard of review to the constitutional question of whether there has been a double
9 jeopardy violation. [CN 3 (citing State v. Andazola, 2003-NMCA-146, ¶ 14, 134
10 N.M. 710, 82 P.3d 77)] We noted, however, that where factual issues are intertwined
11 with the double jeopardy analysis, the trial court’s fact determinations are subject to
12 a deferential substantial evidence standard of review. [Id. (citing State v. Rodriguez,
13 2006-NMSC-018, ¶ 3, 139 N.M. 450, 134 P.3d 737)] We went on to suggest that the
14 pivotal issue on appeal was whether the district court was correct in concluding that
15 the conduct charged in the 2009 criminal information was separate from the conduct
16 previously addressed in Defendant’s 2007 judgment and sentence. [Id.] We noted
17 that the State had produced twenty-one checks written to Allsup’s in response to
18 Defendant’s motion to dismiss. The State asserted that these twenty-one checks
19 accounted for the twelve counts Defendant pleaded guilty to in 2007, in addition to
2
1 the nine additional counts for which Defendant was required to pay restitution. The
2 information provided by the State indicates different check numbers, dates, and
3 amounts from the check numbers, dates, and amounts identified in the twenty-eight
4 counts charged in the 2009 information. We conclude that this is sufficient
5 information to support the district court’s factual determination. See State v. Salgado,
6 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661 (providing that substantial
7 evidence is “such relevant evidence as a reasonable mind might accept as adequate to
8 support a conclusion”).
9 Defendant contends that there is a discrepancy between the total restitution
10 amount he was ordered to pay Allsup’s of $1,064.41 and the checks submitted by the
11 State as proof of the charges disposed of in the 2007 judgment and sentence.
12 Defendant asserts a difference of $193.17. [MIO 4] The State’s response indicates
13 that part of the restitution amount included $25.00 in bank fees paid by Allsup’s on
14 the twelve counts that were charged. [RP 72] Based on the twelve checks submitted
15 by the State and the inclusion of bank fees paid by Allsup’s, we calculate the total
16 amount accounted for by the State as $995.44. [RP 72, 78-84] We recognize that,
17 based on the information currently before this Court, there appears to be a discrepancy
18 of $68.97. However, we note that to the extent Defendant is raising this discrepancy
19 in the amount in an attempt to establish that the district court’s factual determination
3
1 that the two prosecutions involved different checks was erroneous, contrary evidence
2 does not require reversal where we are reviewing for substantial evidence and there
3 is other evidence to support the district court’s factual determination. See State v.
4 Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829). Moreover, Defendant
5 points out that restitution may include “all damages which a victim could recover
6 against the defendant in a civil action arising out of the same facts.” [MIO 4 (citing
7 NMSA 1978, § 31-17-1 (2005)] The fact that the amount of restitution Defendant was
8 ordered to pay Allsup’s is not fully accounted for by the checks and fees identified by
9 the State, does not establish that Defendant’s 2007 judgment and sentence overlaps
10 with the charges contained in the 2009 information.
11 Accordingly, for the reasons stated above and in this Court’s notice of proposed
12 disposition, we affirm.
13 IT IS SO ORDERED.
14
15 CYNTHIA A. FRY, Judge
16 WE CONCUR:
17
18 JONATHAN B. SUTIN, Judge
4
1
2 J. MILES HANISEE, Judge
5