I would like to thank DA Martinez for his presentation at the Corrales Senior Center,

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1 THE 13TH JUDICIAL DISTRICT ATTORNEY S REPORTER Serving Cibola, Sandoval, and Valencia Counties Winter 2015 February 2016 Malpais Natural Arch, Cibola Lemuel L. Martinez District Attorney Cibola County 515 W. High Street PO Box 637 Grants, NM (505) Sandoval County 711 Camino Del Pueblo PO Box 1750 Bernalillo, NM (505) Valencia County Ron P. López Chief Deputy District Attorney 101 S. Main Street #201 PO Box 1919 Belen, NM (505) Contents: Offices: Martinez Message p 1-2 Legal Brief p 3-4 High Profiles p 5-6 District News p 7-11 Martinez Message I hope your holidays were filled with peace, hope and prosperity. During the last few months my offices have been busy not only prosecuting cases, but providing public awareness presentations, community service and helping law enforcement agencies. In December, I had the pleasure of speaking at several senior centers throughout the district. We discussed topics of Elder Abuse and Telemarketing Scams. Brochures were given to the participants informing them of safety tips and hotlines to call for further assistance. I want to thank all the senior centers for allowing me the opportunity to share this information with you. I enjoy the feedback that my office receives from seniors who call to thank me for the informative presentation. I would like to thank DA Martinez for his presentation at the Corrales Senior Center, I will continue my efforts in speaking I was targeted by a telemarketer scammer to community organizations who wish to and I was able to identify him as one because of the valuable information we re- the community. To make arrange- learn more about on going concerns in ceived from him. ments for me to speak at your organization please contact: Terrie Montoya Mr. Frank Pretto-Corrales, NM. at TMontoya@da.state.nm.us or please call In January, I spoke at many schools throughout the district. I discussed topics covering Active Shooter, Cyber Bullying and Sexting. These topics plague our schools. I would like to thank everyone who attended and shared their thoughts and ideas during the public awareness presentations. During the month of December, the Sandoval County PPD program administrator distributed coats donated by PPD clients to local communities for children of all ages. I m proud to say The 13 th Judicial District Attorney s Office has collected warm items of clothing for the community since We believe community service is another way of keeping our district safe. Also, please take a moment to read a letter to Congressman Ben Ray Lujan about the new encryption software installed on Apple and Android cell phones. This software, even with a valid search warrant, with the current encryption measures make it impossible to access evidence of a crime. Law enforcement are not able to collect evidence recovered from cell phones. (see page 2). Lemuel Martinez 13th Judicial District Attorney 1

2 Letter to Congressman Ben Ray Lujan 2

3 LegalBrief: Cibola County District Court- Sentencing and Probation Revocation Law Update On January 13, 2016, the New Mexico Court of Appeals released one of its latest opinions on criminal sentencing in State v. Trevor Begay. Begay addresses the proper application of a tolling exception to a criminal sentencing statute that requires courts to place a convicted defendant on probation when deferring or suspending a sentence of imprisonment. As a general rule, once a defendant s suspended sentence has expired, the defendant is relieved of any obligations of the sentence, and has satisfied his criminal liability for the crime. However, Section (C) of the Probation and Parole Act, provides for an exception to this rule. This exception tolls the suspended sentence when a defendant has violated his probation and cannot be located to answer for the violation. Prior to the Begay decision, this tolling exception had been applied in both magistrate and district courts. However, the Begay decision clarified that the exception only applies in district court cases. Consequently, when a magistrate court defendant violates his probation, and cannot be located to answer for the violation until after the term of his suspended sentence has expired, tolling does not apply, and he is relieved of his obligations without any consequence as soon as the sentence expires. Defendant Begay was convicted of Battery in the San Juan County Magistrate Court. He was sentenced to 182 days jail with credit for eleven days of time served. Begay s sentence was suspended and he was placed on 171 days supervised probation. Begay violated his probation and could not be located to answer for the violation until after his suspended sentence expired. When Begay was finally located and brought back before the magistrate court, the court determined that Section (C) permitted it to toll the running of his sentence. As a result, the court revoked his probation and ordered him to serve the remainder of his sentence in jail. Begay appealed to district court, which affirmed the magistrate court. Begay then appealed to the Court of Appeals, which reversed the district court, holding that the tolling statute did not apply to the magistrate court, and that Begay had satisfied his criminal liability for the crime as soon as his suspended sentence had expired. In its analysis, the court examined the plain language of the statute and its historical context to determine to the legislative intent of the statute. The Probation and Parole Act of 1963 as amended, defined the term probation as the procedure under which an adult defendant, found guilty of a crime [. ] is released by the court without imprisonment under a suspended or deferred sentence and subject to conditions [.] The amendment defined the term adult as any person convicted of a crime by a district court. These definitions as well as the tolling provision created by the 1963 amendment have remained unchanged. In reviewing the plain language of the Act. 3

4 LegalBrief Continued: Mt. Taylor In reviewing the plain language of the Act and its historical context, the Court of Appeals concluded that the Legislature intended for the tolling provision to apply only to adult defendants convicted in district courts, not magistrate courts, even though magistrate courts have concurrent jurisdiction over misdemeanors. In reaching its decision, the court reasoned that it was not interpreting the legislative intent to be unreasonable, absurd, or unjust. In support of this conclusion, the court stated that the Legislature may have chosen to limit the tolling provision because magistrate court convictions involve less serious crimes with less severe punishment. According to the court, the Legislature may have also determined that a rise in the number of inmates from the magistrate court system resulting from probation violations involving minor offenses did not outweigh the benefits to the public by having the tolling provision apply to magistrate courts. The court also reasoned that if the Legislature had intended for the tolling provision to apply to magistrate courts, it would have simply amended the Probation and Parole Act to provide that the term probation also apply to adult defendants convicted in magistrate courts. The court therefore held that the tolling statute did not apply to the magistrate court, and that Begay had satisfied his criminal liability for the crime as soon as his suspended sentence had expired. The Begay decision is significant with respect to plea agreements and sentencing hearings in magistrate court cases. As a result, prosecutors should examine each case carefully before agreeing to place a defendant on probation in lieu of jail, especially if the defendant has a history of absconding from probation. Mandana Shoushtari, Assistant District Attorney Cibola Office 4

5 High Profile New Cibola County Complex Cibola County: State v. David Gonzales: (Jury Trial Verdict): Guilty of Involuntary Manslaughter with a Firearm on February 26, (Pending Sentencing) Prosecutors: Robert Blanch and R. David Pederson. State v. Eli Calahan: (currently has two cases pending in which a statement of joinder was filed) Case #1: (Grand Jury Indictment): Criminal Sexual Penetration in the Second Degree Resulting in Personal Injury; Aggravated Battery Against a Household Member (Great Bodily Harm); Assault with Intent to Commit a Violent Felony Against a Household Member; False Imprisonment. Case #2: (Criminal Information charges): Aggravated Battery Against a Household Member (Deadly Weapon); Knowingly Leaving the Scene of an Accident (Great Bodily Harm or Death); Reckless Driving; Depravation of the Property of a Household Member. Pre-Trial hearing is scheduled for May 5, 2016 at 2:30 p.m. and Jury Trial is scheduled for May 23, 2016 at 9:00 a.m. Finishing PTIs and this case is moving forward to trial. Prosecutor: Robert Blanch. State v. Amy Fernandez: (Grand Jury Indictment): Aggravated Assault (Deadly Weapon) (2 Counts); Negligent Use of a Deadly Weapon (Unsafe Handling). Pre-Trial hearing took place on February 4, 2016 and Jury Trial on February 22, 2016 at 9:00 a.m. At this time the State is ready for trial, which will commence on March 2, Prosecutor: Brandon Vigil. State v. Ruben Romero: (Grand Jury Indictment): First Degree Murder (Willful and Deliberate) State v. Delilah Baca: (Grand Jury Indictment): Tampering with Evidence State v. Rudy Valencia: (Grand Jury Indictment): First Degree Murder (Willful and Deliberate); Tamper ing with Evidence Pre-Trial Interviews and Depositions are currently taking place. Trials are expected to begin the summer of Prosecutors: R. David Pederson, Brandon Vigil and Stephen O'Brien. State v. William Allen Crisp: (Grand Jury Indictment): Attempt to Commit a Felony, to: First Degree Mur der (Willful and Deliberate); Aggravated Battery against a Household Member (Great Bodily Harm) or in the Alternative: Aggravated Battery against a Household Member (Deadly Weapon); Tampering with Evidence. Pre-Trial Conference is scheduled for August 4, 2016 and Jury Trial is scheduled for August 22, Prosecutor: Robert Blanch State v. Damon Perry: (Criminal Information Charges): Second Degree Murder; Aggravated Assault (Deadly Weapon); Abuse of a Child (Does Not Result in Death or Great Bodily Harm); Aggravated Assault (Deadly Weapon) Motion to Review Conditions of Release Hearing is scheduled for April 12, 2016 in front of Judge James Lawrence Sanchez. Prosecutor: R. David Pederson. 5

6 High Profile Sandoval Couny Courthouse Sandoval County: State v. Mark Romero: (Jury Trial Verdict): Guilty of 1st degree murder, in January, convicted on all counts. Prosecutors: Sean Fitting and Sonya Duke. State v. Sergio Aguirre-Chavez: (Grand Jury Indictment): Kidnapping, multiple counts of AGG Battery on HH Member, and Child Abuse; case was due to go to trial February 15th, but was postponed to June due to issues with Spanish interpreter availability. Prosecutor: Jessica Martinez. State v. Francisco Astorga-Chariz: (Grand Jury Indictment): 1st degree CSP; defendant gave a STD to a 6 year old. Jury trial set for April. Prosecutor: Jessica Martinez. State v. Andrew Romero: (Pending Jury Trial): murder of Officer Gregg Benner; Change of Venue to Valencia County; defense attorney (Todd Farkas) withdrew due to a conflict of interest. New attorney appointed is Tom Clark, who asked for a continuance of the June trial date. Court moved trial to September 3, Prosecutors: Ron P. Lopez, Barbara Romo and Sonya Duke. State v. Tabitha Littles: co-defendant, (Pending Jury Trial): charged with murder of Officer Gregg Benner; case was severed from Romero; trial date has not been set, Change of Venue Motion filed by defense will not be decided until closer to her trial date. Prosecutors: Ron P. Lopez, Barbara Romo and Sonya Duke. Valencia County District Courthouse Valencia County: State v. Apryl Ortega: (Jury Trial Verdict): Guilty of 3 cts of Battery upon Peace Officer, Possession of Drug Paraphernalia & Resisting Arrest. Pending Sentencing. Prosecutor: Julia Downs State v. Charles Keller: (Jury Trial Verdict): Guilty of Receiving & Transferring a Stolen Motor Vehicle. Pending Sentencing. Prosecutor: Julia Downs State v. Ricardo Garica: (Pending Jury Trial): Cold case trial on 1 st Degree Murder. Trial scheduled March 21, Prosecutors: Mark Drebing & Ron P. Lopez State v. Andrew Romero: (Pending Jury Trial): Charges-1 st Degree Murder, Conspiracy, etc.; Trial scheduled September Prosecutors: Barbara Romo, Ron P. Lopez & Sonya Duke 6

7 District News: Covering Cibola, Sandoval & Valencia Counties 13th Judicial DA s Office recognizes Kylie Cook Sandoval County Associate Trial Attorney Kylie Cook, former ADA with the Sandoval Office, was called to active duty on January 4, She has a four-year commitment to serve our country as a JAG Officer in the United States Army. Kylie joined our office in August 2014, shortly after graduating with honors from UNM Law School. She quickly established herself as an outstanding prosecutor, demonstrating skills far beyond her experience. During her time with our office, she participated in several first degree felony jury trials, including, CSPM, Child Abuse, and Murder trials. She also proved to be instrumentally important in assisting on the high-profile cases of State v. Andrew Romero and State v. Tabitha Littles. Our nation is fortunate to have someone of Kylie s caliber serving as a JAG Officer, and our State is fortunate to have had such a dedicated prosecutor. We wish her a safe and memorable four-year tour of duty, and look forward to her return to her Sandoval DA Family! 7

8 District News: Covering Cibola, Sandoval & Valencia Counties The Leadership Sandoval County program brings community leaders together to learn and share ideas about economic growth, awareness in criminal justice, building community partnerships, and state and local government. Lemuel Martinez, 13 th Judicial District Attorney encourages his offices to get involved in community projects. DA Martinez said The Leadership Sandoval County Program is an opportunity for his office to be positive member in the community. He is pleased that a member of his administrative staff was selected to participant in Leadership Sandoval County. Participants within the program are assigned a team. Sandoval Trail Blazers is one of the teams with Leadership Sandoval County. The members of the Sandoval Trail Blazers are Yvette Gurule, 13 th Judicial DA Office, Beth Pendergrass, Rio Rancho Public Schools, Angela Guimond, Brooksdale Senior Living, Anthony Lujan, Gas Company of NM, Chris Malneritch, St. Felix Pantry, Melissa Romine, UNM Sandoval Regional Medical Center and Yolanda Lucero, City of Rio Rancho. Each team chooses a community project that is project driven. The funding for the chosen project must be raised by the participants. The Sandoval Trail Blazers have chosen to work with Haven House, a domestic violence shelter, as their community project. The project is Helping Hands children s playground. Many thanks to those businesses and individuals who have donated to allow us to use our Helping Hands to rebuild a safe and happy playground. If you are interested in helping or learning more about this project please contact Yvette Gurule at YGurule@da.state.nm.us or call Helping Hands Children's Playground project Haven House is very excited about the Helping Hands Children's Playground project. Our playground has definitely seen better days. The coordinators of the project, especially Yvette Gurule, have been fabulous to work with to put this plan in action. The project will provide a more child friendly environment for our clients, to allow them to heal from the Trauma of Domestic Violence. I just want to send out a big shout out for the Leadership Sandoval Helping Hands group!!! Roberta Radosevich, Executive Director Haven House Inc. Ph: (505) Fax: (505) roberta@havenhouseinc.org 8

9 District News: Covering Cibola, Sandoval & Valencia Counties Welcome to the 13th! Iris Garcia Clerk Alyssa Mercado Intern Eric Sanderlin Clerk Pre-Prosecution Diversion Program: The 13 th Judicial District Attorney is proud to announce that our annual Coat Drive for Children was a success! We are honored to say that well over 300 new jackets and over 100 used jackets were distributed to children in need across Sandoval, Valencia, and Cibola Counties. Thanks to our PPD clientele, these jackets were donated and helped to make the past few cold winter months a little bit warmer for these children in need. It has always been a goal of Mr. Martinez to strive and give back to our community in any way possible and this is one way we were capable of doing so every year. Although the Coat Drive for Children has come to an end, we will continue to run the drive throughout this year to accumulate even more coats to pass out during the year. Thank you, Desiree Lovato, Program Assistant Counselor Chapter from Counselor, NM 9

10 December 2015 January 2016 Clothing Drive The Good Guys Reyna Lemuel Desiree Cuba Bernalillo Ann Parish School Los Lunas Belen Library 10

11 New Mexico Coali on of Sexual Assault Programs, Inc. presents: Strategies to Prosecute Sexual Assault Cases in New Mexico Wednesday & Thursday, March 2-3, :00am- 5:00pm State Bar of New Mexico - Albuquerque, NM PRESENTERS: Timothy Johnson, JD Deputy District A orney-boulder County District A orney's Office Dr. Christopher Wilson, PSY.D. Psychologist and Na onal Trainer from Portland Oregon David Adams, JD Assist U.S. A orney-u.s. A orney's Office-District of New Mexico Sharon Pino, JD Deputy A orney General-Criminal Affairs NM A orney General's Office TOPICS: Sexual Assault on College Campuses: Innova ve Ini a ves Aggressive Mo ons Prac ce: Building the Founda on for a Strong Case Electronic Evidence and Technology I Electronic Evidence and Technology II The Goldmine and Pi alls: Character Evidence and the Necessity of Other Acts Evidence SANE and Prosecu on Working Together for a Common Goal Enhanced Jurisdic on The Neurobiology of Trauma Vicarious Trauma Sex Trafficking Plus Much More. Free registra on Hotel reimbursement if 50 miles outside of Albuquerque Mileage reimbursement (for personal vehicles ONLY) A orney Law Enforcement Credits Applied for Eligible Par cipants: New Mexico Prosecutors and Court Inves gators Forensic Experimental Trauma Interview and Neurobiology Trauma: Strategies for Inves ga on of Sexual Assault Cases Wednesday & Thursday, April 27-28, :00am-5:00pm State Bar of New Mexico - Albuquerque, NM PRESENTER: Dr. Christopher Wilson, PSY.D. Psychologist and Na onal Trainer from Portland Oregon Dr. Wilson has 22 years experience as a trainer and speaker. He provides dynamic and interac ve trainings. For New Mexico he will address FETI, the neurobiology of trauma, and understanding seemingly counterintui ve vic m behavior. These tools will greatly enhance law enforcement inves ga ons TOPICS: Introduc on to Forensic Experien al Trauma Interview (FETI) and an extension to Russell Strand's January 2015 training Neurobiology of trauma specifically related to sexual assault Neurobiology of trauma and effec ve interviewing of vic ms for law enforcement Free registra on Two night hotel reimbursement if 50 miles outside of Albuquerque Mileage reimbursement (for personal vehicles ONLY) Law Enforcement Credits Applied for Agenda and registra on forms available mid-march Eligible Par cipants: New Mexico Law Enforcement Officers (state, federal, campus, tribal, city, county, military, and correc ons) New Mexico Coali on of Sexual Assault Programs, Inc Juan Tabo Blvd NE, Suite 6 Albuquerque, NM Toll-free Contact: Carla Gallegos-Ortega, carlago@swcp.com 11