Opinion
NO. A-1-CA-37359
12-13-2018
STATE OF NEW MEXICO, Plaintiff-Appellee, v. FABIAN J. MONDRAGON, Defendant-Appellant.
Hector H. Balderas, Attorney General Santa Fe, NM for Appellee Bennett J. Baur, Chief Public Defender Brian Parrish, Assistant Appellate Defender Santa Fe, NM for Appellant
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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Drew D. Tatum, District Judge Hector H. Balderas, Attorney General
Santa Fe, NM for Appellee Bennett J. Baur, Chief Public Defender
Brian Parrish, Assistant Appellate Defender
Santa Fe, NM for Appellant
MEMORANDUM OPINION
VANZI, Chief Judge. {1} Defendant Fabian J. Mondragon has filed a consolidated appeal from three separate orders that revoked his probation in three criminal cases based on the same conduct. We issued a calendar notice proposing to affirm. Defendant has responded with a memorandum in opposition. We affirm.
Sufficiency
{2} Defendant challenges the sufficiency of the evidence to support the revocations. [MIO 9] "In a probation revocation proceeding, the State bears the burden of establishing a probation violation with a reasonable certainty." See State v. Leon, 2013-NMCA-011, ¶ 36, 292 P.3d 493. "To establish a violation of a probation agreement, the obligation is on the State to prove willful conduct on the part of the probationer so as to satisfy the applicable burden of proof." In Re Bruno R., 2003-NMCA-057, ¶ 11, 133 N.M. 566, 66 P.3d 339; see also State v. Martinez, 1989-NMCA-036, ¶ 8, 108 N.M. 604, 775 P.2d 1321 (explaining that probation should not be revoked where the violation is not willful, in that it resulted from factors beyond a probationer's control). {3} Here, the district court found that Defendant violated probation number 8, which prohibited selling, owning, or having in his possession firearms. [RP 214 at 65; RP 215 at 54; RP 265 at 44] Defendant arranged for the sale of firearms to an undercover officer. [MIO 2-4] Defendant contacted other individuals to bring the weapons, and he was arrested after they arrived and showed the officer the weapons in Defendant's presence. [MIO 2-4] This supports revocation based on the selling prohibition. In addition, the district court could have independently based revocation on possession. Defendant claims that he was not in possession of the firearms because he never touched or handled them. [MIO 10] A person is in actual possession of a firearm when, "on the occasion in question, he knows what [the firearm] is, he knows it is on his person or in his presence[,] and he exercises control over it." UJI 14-130 NMRA. Here, Defendant was knowingly in the presence of the firearms and he exercised control by coordinating with others to bring the weapons to him and the undercover officer. At a minimum, Defendant was in constructive possession. See State v. Montoya, 1979-NMCA-044, ¶ 11, 92 N.M. 734, 594 P.2d 1190 (stating that constructive possession includes the power to produce or dispose of an item).
Reconsideration
{4} Defendant continues to claim that the district court erred in denying his motion for reconsideration, which asked for continued probation instead of incarceration. [MIO 13] The district court's decision not to continue probation was within its discretion. See State v. Sosa, 1996-NMSC-057, ¶ 8, 122 N.M. 446, 926 P.2d 299 (explaining that "[i]t is settled law in this jurisdiction that a suspended sentence is a matter of judicial clemency to which a defendant may never claim entitlement."). {5} For the reasons set forth above, we affirm.
{6} IT IS SO ORDERED.
/s/ _________
LINDA M. VANZI, Chief Judge
WE CONCUR:
/s/ _________
J. MILES HANISEE, Judge /s/ _________
DANIEL J. GALLEGOS, Judge