State v. Lucero

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: _____________
Filing Date: January 6, 2022
No. A-1-CA-38468
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
FRANK A. LUCERO,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
Dustin K. Hunter, District Judge
Hector H. Balderas, Attorney General
Laurie Blevins, Assistant Attorney General
Santa Fe, NM
for Appellee
Frank A. Lucero
Roswell, NM
Pro Se Appellant
OPINION
YOHALEM, Judge.
{1} Defendant Frank Lucero was charged with four misdemeanor traffic offenses
in magistrate court. After a jury trial where Defendant was convicted on all counts,
Defendant appealed to the district court for a trial de novo. Defendant was tried in
the district court and again convicted on all counts.
{2} Defendant claims, for the first time on appeal to this Court, that the magistrate
court lost subject matter jurisdiction when it denied him access to the names and
addresses of jurors and potential jurors before trial. We conclude that Defendant’s
claim does not implicate the subject matter jurisdiction of the magistrate court, and,
therefore, may not be raised for the first time on appeal to this Court.
{3} Defendant next seeks review of the district court’s denial of his pretrial
motions alleging reversible legal error by the magistrate court, and seeking remand
to the magistrate court for a new trial. Defendant contends that the district court erred
in reviewing the magistrate court proceedings under an abuse of discretion standard,
rather than conducting an independent review on a reconstructed record as
Defendant claims is required by our Supreme Court’s decision in City of Farmington
v. Piñon-Garcia, 2013-NMSC-046, 311 P. 3d 446. While we agree that Piñon-
Garcia requires review of certain magistrate court orders by hearing de novo, we
read Piñon-Garcia as limiting such review to orders of the magistrate court
dismissing or refusing to dismiss the charges, or imposing or refusing to impose
sanctions, for violation of procedural protections or constitutional rights. See id.
¶¶ 2, 11, 13. Appellate review is otherwise by trial de novo. See id. ¶ 2. Defendant’s
pretrial motions, which claimed reversible legal error by the magistrate court and
sought remand to the magistrate court for a new trial, do not fall within Piñon-
Garcia’s limited exception, and the remedy sought by Defendant—remand for a new
trial in the magistrate court—is not a remedy available to the district court in an
appeal from magistrate court. Thus, Defendant’s only method of appeal from the
magistrate court rulings he challenges is by trial de novo in the district court, which
he received. We affirm Defendant’s convictions.
BACKGROUND
{4} Defendant was charged in the Chaves County magistrate court with one
misdemeanor traffic violation and three petty misdemeanor violations.1 Defendant
entered a plea of not guilty as to each charge and requested a jury trial.
{5} Two days before trial, Defendant requested copies of jury questionnaires from
the magistrate court clerk. The clerk informed Defendant that the magistrate court
required a copying fee, totaling $38.50, for copies of the jury questionnaires.
Defendant told the court clerk that he was indigent, and requested free copies. The
1
Driving while license suspended, NMSA 1978, § 66-5-39 (2013, amended
2019); no seat belts, NMSA 1978, § 66-7-372(A) (2001); no proof of insurance,
NMSA 1978, § 66-5-229 (C)-(E) (1998, amended 2019); no registration, NMSA
1978, § 66-3-1(A) (2013, amended 2018).
clerk informed Defendant that he would have to submit proof of indigency in order
to qualify for free copies. Defendant has not alleged that he was denied an
opportunity to review the questionnaires, only that he was denied free copies.
{6} The day before jury selection and trial, Defendant filed a completed “verified
application for free process (for indigency)” on a form provided by the magistrate
court, along with a motion to continue, asking to postpone his trial. The next
morning, with the jury panel already in the courtroom for jury selection, the
magistrate court orally denied Defendant’s motion to continue his trial. The case
then proceeded to jury selection and trial. Defendant, who appeared pro se, was
permitted to question the jury panel and participate in jury selection. Once the jury
was selected, Defendant was tried and convicted on all four counts.
{7} Defendant appealed his convictions to the Chaves County district court.
Defendant then filed a pretrial motion in district court requesting appellate review
of the magistrate court clerk’s refusal to provide him free copies of the jury
questionnaires and of the magistrate court’s denial of his motion to continue his trial.
Defendant also requested supplementation of the record on appeal in the district
court with copies of the jury questionnaires. Defendant claimed that he was entitled
to an independent review by the district court of the merits of the magistrate court’s
refusal to provide him free copies of jury questionnaires, and the ruling denying him
a trial continuance. He claimed error by the magistrate court in violation of NMSA
1978, Section 38-5-11(C) (2005) (addressing procedures for review of jury
questionnaires in the district court), as well as violation of his right to due process,
and sought reversal of his convictions, and remand to the magistrate court for retrial.
{8} The district court agreed to review Defendant’s pretrial motion to determine
if there was reversible error in the magistrate court. The district court conducted a
detailed review of the magistrate court proceedings, and heard argument on the
merits from both parties. With respect to the magistrate court clerk’s refusal to
provide free copies of the jury questionnaires, the district court concluded that,
although Section 38-5-11(C) requires that jury questionnaires be “made available for
inspection and copying by a party to a pending proceeding[,]” the magistrate court
correctly construed the statute to allow a fee to be assessed for copying, and to allow
the court to require compliance with its procedure for verifying indigency before
providing free copies. With respect to the magistrate court’s denial of Defendant’s
motion for a continuance of trial, the district court found that the magistrate court
“was well within its discretion” to deny the motion for a continuance.
{9} Having denied Defendant’s pretrial motion, the district court held a de novo
jury trial. Defendant was given free copies of the district court jury questionnaires
prior to voir dire. Defendant was again convicted on all four counts.
{10} On appeal to this Court, Defendant has not raised any claim of error in the de
novo trial leading to his conviction in the district court. He challenges only the
district court’s denial of his pretrial motions for reversal and remand to the
magistrate court for retrial.
DISCUSSION
I. Defendant’s Claim That He Was Tried by an Anonymous Jury in the
Magistrate Court Does Not Implicate Subject Matter Jurisdiction, and,
Therefore, May Not Be Raised For the First Time on Appeal
{11} We begin by addressing Defendant’s claim, raised for the first time on appeal
to this Court, that the magistrate court lost subject matter jurisdiction by proceeding
to trial with an “anonymous” jury. We do not agree with Defendant’s
characterization of the jury as “anonymous.” We understand Defendant’s claim as
simply a restatement of his claims that he was denied copies of the jury
questionnaires containing the jurors names and addresses prior to jury selection, and
was not able to supplement the record in the district court with the questionnaires
because they had been destroyed pursuant to court rule prior to his request. The
“question of whether a trial court has jurisdiction in a particular case is a question of
law that we review de novo.” Smith v. City of Santa Fe, 2007-NMSC-055, ¶ 10, 142
N.M. 786, 171 P.3d 300.
{12} Defendant is correct that an attack on subject matter jurisdiction may be made
at any time in the proceedings, even for the first time on appeal. See State ex rel.
Bevacqua-Young v. Steele, 2017-NMCA-081, ¶ 6, 406 P.3d 547. Further, a lack of
subject matter jurisdiction in the magistrate court would also remove jurisdiction
from the district court. See State v. Lynch, 1971-NMCA-049, ¶ 7, 82 N.M. 532, 484
P.2d 374. We thus review jurisdiction as a threshold question. See Bevacqua-Young,
2017-NMCA-081, ¶ 6 (“The question of jurisdiction is a controlling consideration
that must be resolved before going further in a proceeding.” (internal quotation
marks and citation omitted)).
{13} “Subject matter jurisdiction is the power to adjudicate the general questions
involved in the claim.” Williams v. Rio Rancho Pub. Schs., 2008-NMCA-150, ¶ 10,
145 N.M. 214, 195 P.3d 879 (internal quotation marks and citation omitted).
Jurisdiction is controlled by the Constitution and the Legislature. See State v.
Smallwood, 2007-NMSC-005, ¶ 6, 141 N.M. 178, 152 P.3d 821 (stating that “our
Constitution or Legislature must vest us with . . . jurisdiction”).
{14} The source of a magistrate court’s jurisdiction is Article VI, Section 26 of the
New Mexico Constitution, and the statutes implementing that section. Article VI,
Section 26 provides, in relevant part: “The [L]egislature shall establish a magistrate
court to exercise limited original jurisdiction as may be provided by law.” The
Legislature has provided by statute that “[m]agistrates have jurisdiction in all cases
of misdemeanors and petty misdemeanors[.]” NMSA 1978, § 35-3-4(A) (1985).
{15} Because the motor vehicle offenses with which Defendant was charged are
misdemeanors and petty misdemeanors, the magistrate court had subject matter
jurisdiction. See id. A violation of a constitutional or statutory right in the
proceedings before a court usually does not deprive that court of jurisdiction.
Instead, generally speaking, “[t]he only relevant inquiry in determining whether the
court has subject matter jurisdiction is to ask whether the matter before the court
falls within the general scope of authority conferred upon such court by the
constitution or statute.” State v. Chavarria, 2009-NMSC-020, ¶ 11, 146 N.M. 251,
208 P.3d 896 (alteration, internal quotation marks, and citation omitted). Defendant
has not identified any constitutional provision or statute granting the magistrate court
jurisdiction that was violated, ignored, or exceeded by that court. Defendant’s claim
of procedural violations does not implicate the magistrate court’s subject matter
jurisdiction. Because Defendant’s claim does not implicate subject matter
jurisdiction, it may not be raised for the first time on appeal, and we do not consider
it further.
II. With the Limited Exception Identified by Our Supreme Court in Piñon-
Garcia, the District Court’s Appellate Review of Defendant’s Claims of
Error in the Proceedings in Magistrate Court Is by Trial De Novo
{16} We turn next to Defendant’s appeal from the district court’s denial of his
pretrial motions.2 Defendant filed pretrial motions in the district court claiming error
by the magistrate court in failing to provide him free copies of jury questionnaires
and in denying his motion for a continuance of trial to allow him more time to obtain
2
This discussion focuses on Issues 2 and 3 in Defendant’s brief.
and review those questionnaires. For these errors, Defendant sought remand to the
magistrate court for a new trial.
{17} The parties disagree about whether the district court should have reviewed
Defendant’s claims that the magistrate court erred and, if so, the nature of that review
and the nature of the remedy, if error was identified. For the reasons that follow, we
conclude that Defendant was not entitled to review by hearing de novo in the district
court of his claims that the magistrate court committed reversible legal error;
appellate review was limited to a trial de novo, which he received.3 We affirm the
district court on this basis. See, e.g., State v. Gallegos, 2007-NMSC-007, ¶ 26, 141
N.M. 185, 152 P.3d 828 (holding that the appellate court will affirm the district
court’s decision if it is right for any reason, so long as it is not unfair to the appellant).
{18} “The right to appeal is . . . a matter of substantive law created by constitutional
or statutory provision.” State v. Armijo, 2016-NMSC-021, ¶ 19, 375 P.3d 415. We
review de novo the interpretation of constitutional and statutory provisions. Id. “The
proper interpretation of our [Supreme Court’s] Rules of Criminal Procedure is a
question of law that we review de novo[,]” as well. Allen v. LeMaster, 2012-NMSC-
001, ¶ 11, 267 P.3d 806.
3
We do not consider whether Defendant could have sought review of the
claims of error he contends the magistrate court committed via extraordinary writ.
See State v. Foster, 2003-NMCA-099, ¶ 10, 134 N.M. 224, 75 P.3d 824 (providing
one possible course of redress for an aggrieved defendant is by petition for an
extraordinary writ).
{19} With few exceptions, appeals from a magistrate court to the district court are
by trial de novo. See, e.g., Piñon-Garcia, 2013-NMSC-046, ¶ 9 (“In a de novo
appeal, the general rule is that a district court conducts a new trial as if the trial in
the lower court had not occurred.”). Article VI, Section 27 (1966), the constitutional
provision in effect at the time this case was brought, 4 granted district courts
exclusive jurisdiction on appeal from decisions of inferior courts, including from
magistrate courts. Article VI, Section 27 provided that “in all such appeals, trial shall
be had de novo unless otherwise provided by law.” The statutory provisions enacted
by the Legislature adopted the jurisdictional requirements of Article VI, Section 27.
See NMSA 1978, § 35-13-2(A) (1996) (providing that “[a]ppeals from the
magistrate courts shall be tried de novo in the district court”). NMSA 1978, Section
39-3-1 (1955) provides that magistrate court proceedings, and other inferior court
proceedings not of record, “shall be tried anew in said courts on their merits, as if no
trial had been had below.” Rule 5-826(J) NMRA provides that “[t]rials upon appeals
from the magistrate . . . court to the district court shall be de novo.” These
constitutional, statutory, and rule provisions were in effect when this case was filed.5
4
References to N.M. Const. art. VI § 27 in this opinion are to the 2016 version
applying the 1966 amendment (prior to the 2018 amendment), unless otherwise
noted.
5
Article VI, Section 27, was amended by the voters in 2018 to remove from
the Constitution both the requirements that appeals from inferior courts always be
taken to the district court and that the appeal always be de novo. The amendments
{20} Although recognizing that “[i]n a de novo appeal, the general rule is that a
district court conducts a new trial as if the trial in the lower court had not occurred[,]”
Piñon-Garcia, 2013-NMSC-046, ¶ 9, our Supreme Court, in Piñon-Garcia,
construed Article VI, Section 27 of the New Mexico Constitution along with the
statutes and rules implementing that constitutional provision, to require district
courts to consider and decide pretrial motions seeking appellate review of a decision
of an inferior court not of record in certain circumstances. The defendant in Piñon-
Garcia claimed that the municipal court (in a proceeding not of record) had correctly
dismissed his criminal complaint as a sanction for the failure of the city’s key witness
to appear for trial. Id. ¶ 5. The defendant sought review by pretrial motion in the
district court, claiming that there had been no abuse of discretion by the municipal
court in dismissing the criminal complaint and that the dismissal should be honored
by the district court. Id. ¶¶ 3, 5, 6. The city contended that the only review available
on appeal was a trial de novo and that it was entitled to try the defendant again
without regard to the dismissal in municipal court. Id. ¶ 7. The district court agreed
with the city, rejecting the defendant’s motion to dismiss. Id. ¶ 3. The city’s witness
appeared and testified at trial in the district court, and the defendant was convicted.
Id. ¶ 6.
give the Legislature flexibility to modify these requirements by statute. There has
been no change in the statutes and rules governing appeals from magistrate courts,
and, therefore, no change in the relevant jurisdictional requirements.
{21} Our Supreme Court reversed, concluding that the district court must review,
by hearing de novo, the defendant’s pretrial motion seeking affirmance of the
municipal court’s dismissal. Id. ¶¶ 1, 12. Such review, the Court discussed, was
essential to protect the inferior courts’ authority to grant relief “when constitutional
safeguards and procedural rules, such as speedy trial, double jeopardy, or discovery
rules, are violated.” Id. ¶ 2. Piñon-Garcia construes the voters’ purpose in adopting
Article VI, Section 27 as both to provide for a new trial on appeal when inferior
court proceedings are not conducted on the record, and also to “give true meaning
to the power vested in [inferior] courts to enforce our procedural rules and the
protections of the United States and New Mexico Constitutions.” Piñon-Garcia,
2013-NMSC-046, ¶ 13. Our Supreme Court observed that if the government is
“guaranteed a new trial on appeal, regardless of its violation of procedural rules or
violations of the United States or New Mexico Constitutions,” the orders of an
inferior court enforcing those rules would be meaningless. Id. The Court held that
reading the requirement for a trial de novo in the district court to allow the
government to ignore the orders of an inferior court with impunity is an absurd
interpretation of the intent of the voters and the Legislature. Id. Where the inferior
court penalizes the government for speedy trial violations, discovery violations, or
double jeopardy violations with dismissal of the charges, the government is not
entitled to a trial de novo if the inferior court’s dismissal is well-founded.
{22} We read Piñon-Garcia’s exception to the general rule of trial de novo—
permitting instead appellate review by hearing de novo—as limited to those pretrial
motions seeking review of orders of the magistrate court dismissing or refusing to
dismiss the charges, or imposing or refusing to impose sanctions, for violation of
procedural protections or constitutional rights.6 See id. ¶¶ 2, 11, 13. Extensive New
Mexico precedent, including cases decided by this Court prior to Piñon-Garcia, and
cited with approval in Piñon-Garcia, and cases decided since Piñon-Garcia,
uniformly require the district court to consider and decide pretrial motions by de
novo review, which require the district court to determine whether the inferior court
properly dismissed the charges or properly excluded evidence as a sanction. See,
e.g., State v. Sharp, 2012-NMCA-042, 276 P.3d 969 (reviewing the magistrate
court’s dismissal for the state’s violation of the six-month rule); State v. Gallegos,
2007-NMCA-112, 142 N.M. 447, 166 P.3d 1101 (reviewing the validity of the
defendant’s no contest plea in magistrate court, to determine if the appeal should be
dismissed); State v. Foster, 2003-NMCA-099, 134 N.M. 224, 75 P.3d 8246
There, of course, is another category of pretrial motions that are subject to
review by hearing de novo in the district court—i.e., rulings by inferior courts
suppressing evidence for search and seizure violations. See State v. Heinsen, 2005-
NMSC-035, 138 N.M. 441, 121 P.3d 1040 (allowing the state to dismiss the
complaint in magistrate court and refile in district court to obtain review of a
magistrate court ruling suppressing evidence). Defendant, in this case, does not raise
any claims related to a ruling suppressing evidence by the magistrate court. We,
therefore, do not consider this exception to the general rule of trial de novo further
in this opinion.
(reviewing the defendant’s claim that his trial in the magistrate court violated double
jeopardy, requiring dismissal of the charges); State v. Hicks, 1986-NMCA-129, 105
N.M. 286, 731 P.2d 982 (reviewing the magistrate court’s decision that the state’s
late filing of the criminal complaint was not jurisdictional error, requiring dismissal
of the charges); State v. Baca, 2015-NMSC-021, 352 P.3d 1151 (reviewing whether
the defendant had been acquitted in the magistrate court, requiring dismissal of the
charges, and precluding a trial de novo in the district court); State v. Vanderdussen,
2018 NMCA-041, 420 P.3d 609 (reviewing a magistrate court’s declaration of a
mistrial to determine if a trial de novo was barred on double jeopardy grounds); State
v. Verrett, 2019-NMCA-010, 458 P.3d 529 (reviewing a magistrate court’s order
excluding evidence as a sanction against the state for a discovery violation). In all
but one of these cases, the pretrial motion determined whether the case would be
dismissed, without a trial de novo. In Verrett, the pretrial motion determined whether
evidence would be excluded in the trial de novo. Id. ¶ 3.
{23} In contrast, Defendant’s pretrial motion sought review of what Defendant
claimed was reversible legal error in the magistrate court. Defendant sought remand
to the magistrate court for a new trial, the remedy available in traditional on the
record appeals where reversible legal error is identified by the appellate court. See
Foster, 2003-NMCA-099, ¶ 9 (providing that when “the district court acts as a
typical appellate court[,]” the court “review[s] the record of the lower court’s trial
for legal error”); Lockhart v. Nelson, 488 U.S. 33, 38 (1988) (providing that retrial
is permitted after a conviction has been set aside on direct appeal for a defect
constituting reversible error).
{24} Defendant did not allege that any violation of his constitutional rights by the
State required dismissal of the charges against him or that sanctions imposed by the
magistrate court should apply in his trial de novo. Defendant sought remand for a
new trial in the magistrate court (and continues to seek that remedy on appeal to this
Court), but fails to point to any authority permitting this type of review and remedy
in this context. See, e.g., Curry v. Great Nw. Ins. Co., 2014-NMCA-031, ¶ 28, 320
P.3d 482 (“Where a party cites no authority to support an argument, we may assume
no such authority exists.”). Nor are we aware of any.
{25} Indeed, there is authority prohibiting such a remand. See State v. Begay, 2010-
NMCA-089, ¶ 14, 148 N.M. 685, 241 P.3d 1125 (holding that when a defendant is
entitled to a de novo hearing in district court “then the order remanding for a new
hearing [in magistrate court] is in error”). Although there are rules of procedure that
allow transfer of cases between district court and magistrate court, the circumstances
when this is allowed are strictly limited. See State v. Ahasteen, 1998-NMCA-158,
¶ 16, 126 N.M. 238, 968 P.2d 328 (“Transfers of jurisdiction from one court to
another . . . are provided for by the rules of criminal procedure for each court.”),
abrogated on other grounds by State v. Savedra, 2010-NMSC-025, 148 N.M. 301,
236 P.3d 20. For example, the district court can remand to the magistrate court for a
finding of probable cause to prosecute, see Rule 5-302(E) NMRA, or remand to
enforce or vacate a judgment following the completion of an appeal by trial de novo
in the district court, see Rule 5-826(L). Transfer from magistrate court to district
court is permitted for the district court to make a competency determination. See
Rule 6-507.1(G) NMRA. After such determination, the district court then remands
back to the magistrate court. See Rule 6-507.1(H). No rule, however, permits the
district court to remand or otherwise transfer jurisdiction back to the magistrate court
for a retrial. Further, as this Court has previously explained, a defendant “has no
right to be tried in magistrate court rather than in district court” and a district court’s
remand to a magistrate court for trial amounted to “refusing to exercise jurisdiction.”
Ahasteen, 1998-NMCA-158, ¶¶ 27, 29.
{26} The district court’s review in an appeal from the magistrate court is not for
legal error, see Foster, 2003-NMCA-099, ¶ 9; instead, as our Supreme Court
recently stated, “[A]n appeal to the district court begins the trial process anew[.]”
State v. Cruz, 2021-NMSC-015, ¶ 48, 486 P.3d 1. We, therefore, conclude that
Defendant’s pretrial motion, seeking review of legal errors committed by the
magistrate court and remand for a new trial in magistrate court, can only be remedied
by a trial de novo in the district court.
CONCLUSION
{27} For the foregoing reasons, Defendant’s claims of error relating to the district
court’s review of the magistrate court rulings are without merit. Further, because
Defendant has raised no claim of error relating to his district court trial de novo, we
affirm his convictions.
{28} IT IS SO ORDERED.
__________________________________
JANE B. YOHALEM, Judge
WE CONCUR:
_________________________________
JENNIFER L. ATTREP, Judge
_________________________________
SHAMMARA H. HENDERSON, Judge