State v. Hernandez

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
opinions. Please also note that this electronic memorandum opinion may contain
computer-generated errors or other deviations from the official paper version filed by the Court of
Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. A-1-CA-37555
5 GERALD HERNANDEZ,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Brett Loveless, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Bennett J. Baur, Chief Public Defender
13 Gregory B. Dawkins, Assistant Appellate
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 VANZI, Judge.
18 {1} Defendant appeals his convictions for causing great bodily harm by vehicle
19 (reckless driving). We issued a notice of proposed summary disposition, proposing to
1 uphold the convictions. Defendant has filed a memorandum in opposition. After due
2 consideration, we remain unpersuaded. We therefore affirm.
3 {2} The relevant background information has previously been set forth. We will
4 avoid undue reiteration here and focus instead on the memorandum in opposition.
5 {3} First, Defendant renews his challenge to the sufficiency of the evidence,
6 specifically contending that the chain reaction that he precipitated should not be
7 regarded as the direct cause of the injuries to the victims. [MIO 3] However, as we
8 previously explained, [CN 4] New Mexico has adopted the rule of proximate cause
9 in criminal cases, as opposed to the rule of direct causation, see State v. Fields, 1964-
10 NMSC-230, ¶ 17, 74 N.M. 559, 395 P.2d 908; State v. Chavez, 1971-NMCA-030,
11 ¶¶ 9, 13, 82 N.M. 569, 484 P.2d 1279, and the evidence clearly demonstrated that
12 Defendant’s conduct proximately caused the victims’ injuries. Defendant also
13 continues to argue that his culpability was diminished by one of the victims’ failure
14 to wear her seat belt. [MIO 3] However, the evidence was conflicting on this matter,
15 see generally State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 82916 (holding that contrary evidence does not warrant reversal because the jury is free to
17 reject the defendant’s version of events), and in any event, this is not a relevant or
18 mitigating consideration. See State v. Myers, 1975-NMCA-055, ¶ 28, 88 N.M. 16, 536
19 P.2d 280 (rejecting an argument in a vehicular homicide case that the victim’s failure
20 to wear a seat belt could be considered in determining the proximate cause of death):
2
1 cf. NMSA 1978, § 66-7-373(A) (2001) (providing that failure to use a safety belt
2 “shall not in any instance constitute fault or negligence”). We therefore reject
3 Defendant’s challenges to the sufficiency of the evidence.
4 {4} Defendant also renews his argument that the district court erred in classifying
5 his crimes as serious violent offenses. [MIO 3-4] However, as we previously
6 observed, [CN 6] the district court duly found that Defendant’s actions were
7 committed in a physically violent manner with recklessness in the face of knowledge
8 that his acts were reasonably likely to result in serious harm, [RP 240] and the
9 evidence was clearly sufficient to support those findings. This satisfies the requisites.
10 See generally State v. Loretto, 2006-NMCA-142, ¶ 11, 140 N.M. 705, 147 P.3d 1138.
11 We therefore uphold the designations as well within the district court’s discretion.
12 {5} Accordingly, for the reasons stated above and in our notice of proposed
13 summary disposition, we affirm.
14 {6} IT IS SO ORDERED.
15 __________________________________
16 LINDA M. VANZI, Judge
17 WE CONCUR:
18 _________________________________
19 JULIE J. VARGAS, Judge
20 _________________________________
3
1 KRISTINA BOGARDUS, Judge
4