 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
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 6   IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                                    NO. 30,525

10 RAQUEL LUCERO,

11          Defendant-Appellant.


12 APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY
13 Drew D. Tatum, District Judge

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender
18 Kathleen T. Baldridge, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant



21                                 MEMORANDUM OPINION

22 CASTILLO, Judge.
 1        Defendant appeals from the district court’s judgment and sentence entered in

 2 a de novo jury trial following her conviction in magistrate court. Defendant moved

 3 to dismiss the amended criminal complaint against her, the district court denied the

 4 motion and convicted Defendant for aggravated DWI (third offense), driving without

 5 insurance, and driving with defective equipment. We issued a notice of proposed

 6 summary disposition, proposing to affirm. Defendant responded to our notice with

 7 a memorandum in opposition. We have given Defendant’s response due consideration

 8 and remain unpersuaded that the district court erred. We, therefore, affirm.

 9        On appeal, Defendant asks whether the State should have been allowed to

10 prosecute Defendant in district court for aggravated DWI (third offense), where the

11 criminal complaints filed were deficient. [DS 3] Defendant states that the first two

12 criminal complaints filed charged her with third offense DWI in addition to four other

13 traffic offenses. [Id.] The third criminal complaint lists only the charge of aggravated

14 DWI (third offense) and Defendant complains that it is not a sworn statement. [DS 3-

15 4] Defendant argues that she should not have been prosecuted for aggravated DWI on

16 the basis of this Court’s decision in State v. Raley, 86 N.M. 190, 521 P.2d 1031 (Ct.

17 App. 1974).

18        In our notice, we stated that Defendant’s citation to Raley was not persuasive,

19 and observed many problems with Defendant’s argument. It appeared to us that

                                              2
 1 Defendant should have raised this matter in magistrate court, where she was first

 2 prosecuted for aggravated DWI. [RP 71] Regardless, however, we noted that she

 3 raised the matter in the de novo trial in district court, and the district court applies its

 4 own rules of criminal procedure. Rule 5-204(A) NMRA of the Rules of Criminal

 5 Procedure for the district courts addresses defects in the criminal complaint, and states

 6 the following.

 7        A complaint, indictment or information shall not be deemed invalid, nor
 8        shall the trial, judgment or other proceedings thereon be stayed, arrested
 9        or in any manner affected, because of any defect, error, omission,
10        imperfection or repugnancy therein which does not prejudice the
11        substantial rights of the defendant upon the merits.

12 Where there are variances in the criminal complaint, Rule 5-204(C) also requires

13 prejudice to the defense.

14        No variance between those allegations of a complaint, indictment,
15        information or any supplemental pleading which state the particulars of
16        the offense, whether amended or not, and the evidence offered in support
17        thereof shall be grounds for the acquittal of the defendant unless such
18        variance prejudices substantial rights of the defendant. The court may
19        at any time allow the indictment or information to be amended in respect
20        to any variance to conform to the evidence. If the court finds that the
21        defendant has been prejudiced by an amendment, the court may postpone
22        the trial or grant such other relief as may be proper under the
23        circumstances.

24 The rule precludes relief from an “appeal, or motion made after verdict, based on any

25 such defect, error, omission, repugnancy, imperfection, [or] variance . . . unless it is

26 affirmatively shown that the defendant was in fact prejudiced in the defendant’s

                                                3
 1 defense on the merits.” Rule 5-204(D).

 2        In the present case, Defendant has given this Court no indication that she was

 3 prejudiced by the inconsistent criminal complaints. In fact, Defendant was prosecuted

 4 in magistrate court for the same charges based on the same criminal complaints before

 5 she raised any problems about those complaints in district court. [RP 71-72] Under

 6 these circumstances, we fail to see how Defendant could establish any prejudice to her

 7 defense or other substantial rights.

 8        In response to this discussion, Defendant acknowledges that she received

 9 adequate notice of the charges against her, but argues that her equal protection rights

10 were violated because any similarly situated defendant would have been entitled to a

11 sworn statement of facts. [MIO 6] Pursuant to the demands of State v. Franklin, 78

12 N.M. 127, 129, 428 P.2d 982, 984 (1967), and State v. Boyer, 103 N.M. 655, 658-60,

13 712 P.2d 1, 4-6 (Ct. App. 1985), Defendant contends that this alleged violation of her

14 equal protection rights is a sufficient showing of prejudice. [Id.]

15        We disagree. Under Rule 5-204, all defendants must establish prejudice, and

16 Defendant’s contentions are insufficient to establish prejudice. Therefore, for the

17 reasons stated in this opinion and in our notice, we affirm the district court’s judgment

18 and sentence.




                                               4
1      IT IS SO ORDERED.



2                               ___________________________________
3                               CELIA FOY CASTILLO, Judge

4 WE CONCUR:




5 __________________________________
6 ROBERT E. ROBLES, Judge




7 __________________________________
8 TIMOTHY L. GARCIA, Judge




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