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                                                              New Mexico Compilation
                                                            Commission, Santa Fe, NM
                                                           '00'04- 09:24:58 2014.04.10
Certiorari Denied, March 28, 2014, No. 34,569

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2014-NMCA-043

Filing Date: February 11, 2014

Docket No. 32,585

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

JOSEPH SALAS,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY
Abigail Aragon, District Judge

Gary K. King, Attorney General
Corinna Laszlo-Henry, Assistant Attorney General
Santa Fe, NM

for Appellee

Jorge A. Alvarado, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                        OPINION

SUTIN, Judge.

{1}     Police Officer Gene Gonzales, along with Officer Jonathan Wright, stopped
Defendant Joseph Salas after the officers observed Defendant driving erratically. Defendant
ultimately was arrested for driving while intoxicated (DWI). After losing motions to
suppress and to dismiss for violations of his speedy and jury trial rights, Defendant entered
a conditional plea of guilty to DWI. On appeal, he challenges the stop for lack of reasonable

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suspicion, and he also contends that he was denied his constitutional speedy and jury trial
rights.1 Determining that Defendant’s appellate points are meritless, we affirm Defendant’s
conviction.

BACKGROUND

{2}      The facts and the court’s findings are not contested. The facts involving the stop and
arrest derive from the suppression hearing testimony. The two officers observed Defendant
driving southbound on a highway consisting of two lanes in each direction with a median
in between. The officers were traveling behind Defendant’s vehicle in a New Mexico State
Police patrol car. Officer Gonzales testified that he observed Defendant’s vehicle cross over
the dashed lines on the road. Officer Gonzales then witnessed Defendant make a sudden left
turn from the far right lane into a driveway, without using his turn signal. Officer Gonzales
testified that while making this turn, Defendant’s vehicle crossed over the other southbound
lane, the median, and both northbound lanes. Officer Wright testified that he observed
Defendant’s vehicle fail to maintain its traffic lane and then make a left turn from the far
right lane. Officer Wright further testified that he did not see any apparent reason for
Defendant’s driving behavior. Based on the officers’ testimony and on an audio-visual
recording relating to the stop reviewed by the district court judge in chambers, the district
court made uncontroverted, verbal findings that Defendant’s vehicle “drifted approximately
one-half car length into the parallel lane, across the dash[ed] white line[,]” Defendant
“continued to travel back into his original right lane, and then abruptly made a left turn from
the far right lane without using his signal.” Defendant acknowledged his erratic driving
verbally to Officer Gonzales. Defendant received a warning citation for failing to maintain
his lane, contrary to NMSA 1978, Section 66-7-317(A) (1978), and he signed the warning
citation, agreeing that the traffic violation had occurred. Officer Gonzales believed that
Defendant violated traffic laws, and he also believed that Defendant’s driving was indicative
of possible impairment.

{3}       Defendant was charged with DWI in magistrate court on April 29, 2011. On the day
of trial, January 19, 2012, but before trial commenced, the State orally dismissed the charge.
On January 23, 2012, the State filed a notice of dismissal of the charge, and on January 31,
2012, it re-filed the charge in district court, claiming that the magistrate court, before trial,


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           Defendant asserts the protections of both the United States and New Mexico
Constitutions. Defendant does not engage in any argument or analysis as to whether he
should receive greater protection under the New Mexico Constitution than that available
under the United States Constitution. See State v. Gomez, 1997-NMSC-006, ¶¶ 20-23, 122
N.M. 777, 932 P.2d 1 (adopting and analyzing the interstitial approach to constitutional
interpretation). Nor does he show where such an argument was preserved in the district
court. See id. ¶ 23 (requiring a defendant to assert in the trial court that the state
constitutional provision at issue should be interpreted more expansively than the federal
counterpart). We therefore do not address the issue.

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had suppressed substantial proof in the State’s case—the dash-cam video related to the stop.

{4}      Defendant moved to dismiss in district court on March 12, 2012, arguing that,
pursuant to Magistrate Court Rule 6-506(B)(1) NMRA’s six-month requirement, the case
should be dismissed because the time had run. Defendant recognized that, barring improper
motive, the State could dismiss the magistrate court case and re-file in district court, see
State v. Heinsen, 2005-NMSC-035, ¶¶ 23, 25, 138 N.M. 441, 121 P.3d 1040, but argued that
the State failed to dismiss prior to trial and that the State’s motive in dismissing was
improper because it was done to circumvent Defendant’s due process rights based on the
182-day limit in Rule 6-506(B)(1) for trying the case in magistrate court. Defendant argued
that the State’s dismissal of the magistrate court DWI charge was done solely to give the
prosecution time to assure that Officer Gonzales, who was not present for the scheduled
magistrate court trial, could attend trial and testify and that the State simply wanted to get
“a second bite at the apple” after the State’s unpreparedness at trial in the magistrate court.
See State v. Ahasteen, 1998-NMCA-158, ¶ 22, 126 N.M. 238, 968 P.2d 328 (stating that a
prosecutor’s charging discretion is limited when based on improper motive), abrogated on
other grounds by State v. Savedra, 2010-NMSC-025, 148 N.M. 301, 236 P.3d 20.

{5}      The State filed its response on March 23, 2012, to Defendant’s motion to dismiss,
indicating that the controlling rule was District Court Rule 5-604(B) NMRA and that
Defendant’s motion was governed by the five factors set out in that rule derived from Barker
v. Wingo, 407 U.S. 514 (1972), Savedra, 2010-NMSC-025, and State v. Garza, 2009-
NMSC-038, 146 N.M. 499, 212 P.3d 387. The motion to dismiss then turned into a question
whether Defendant was denied a speedy trial under the factors stated in Rule 5-604(B). The
motion to dismiss was heard on May 14, 2012. Afterward, in a letter to the parties dated
May 30, 2012, citing Barker, Garza, and State v. Sharp, 2012-NMCA-042, 276 P.3d 969,
the court determined that “the State had a reasonable basis to file a Nolle Prosequi in the
[magistrate court],” and further, based on its analysis of the speedy trial factors in the
controlling cases, the court found that, although the case was a simple one, Defendant was
responsible for the delay of which he complained, he failed to assert a demand for speedy
trial, and he failed to show prejudice.

{6}      On June 8, 2012, Defendant filed a motion to reconsider the court’s May 30, 2012,
decision, arguing that Sharp was not applicable and that the case involved instead “the
determination of whether the State’s dismissal in the [m]agistrate [c]ourt and re-filing in the
[d]istrict [c]ourt were properly motivated.” Simultaneously, Defendant filed requested
findings of fact and conclusions of law related to his motion to dismiss, in which he
reiterated the applicability of Rule 6-506(B)(1) and his argument in regard to the
prosecution’s improper motive. On June 11, 2012, the court entered an order denying
Defendant’s motion to dismiss.

{7}      During the pendency of Defendant’s motion to dismiss based on his purported speedy
trial right, Defendant, on April 25, 2012, filed a demand for jury trial. The State moved to
strike the demand on June 1, 2012. The court never ruled on the motion.

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{8}      On June 12, 2012, Defendant moved to suppress all evidence arising from the traffic
stop. Defendant did not testify at the suppression hearing, which occurred on July 10, 2012.
Officers Gonzales and Wright testified. At the close of the hearing, based on the totality of
the circumstances and State v. Hubble, 2009-NMSC-014, 146 N.M. 70, 206 P.3d 579, the
district court denied Defendant’s motion to suppress.

{9}     Defendant and the State entered into a conditional plea and disposition agreement
dated and signed October 9, and filed October 10, 2012. At Defendant’s sentencing hearing
on October 9, 2012, the prosecutor discussed the conditions of the plea and specifically
noted that the agreement reserved for appeal the issue of “the court’s denial of the motion
to suppress.” The court received assurances from Defendant that he understood the
agreement, he was advised of his rights, and he had not been promised anything other than
what was contained in the agreement. The agreement stated that Defendant, by pleading
guilty to the DWI charge, understood that he was giving up the right to trial by jury. In
addition, Defendant expressly waived his right to appeal the DWI conviction that resulted
from entry of the agreement. Defendant reserved only his right to appeal the court’s denial
of his motion to suppress, at the same time expressly giving up all motions and defenses that
he had made or raised or could assert.

{10} On October 26, 2012, the court entered a judgment and sentence that referred to the
conditional plea and disposition agreement as having been “accepted and recorded by the
[c]ourt[,]” yet stated that “Defendant reserves the right to appeal the [c]ourt’s decision
regarding the denial of the [m]otion to [s]uppress filed by . . . Defendant, as stated in the
conditional plea agreement entered into on October 9, 2012, and the right[s] to any other
issues arising and/or pertaining to this case.” The parties do not indicate, and nothing in the
record before us indicates, how or why the court added language to the parties’ plea and
disposition agreement purporting to broaden the agreement to permit a carte blanche appeal.
Nor is there anything in the record indicating why the prosecutor did not at any time after
the judgment and sentence was entered bring this apparent broadening of Defendant’s appeal
right to the court’s attention as inappropriate or unauthorized action by the court.

{11} Defendant saw the breadth given to him by the judgment and sentence and he
appealed not only the court’s denial of his motion to suppress, but also the State’s alleged
inappropriate dismissal and re-filing of the charges and the related violation of his speedy
trial right, and the violation of his right to a jury trial.

DISCUSSION

The Suppression Issue

{12} “In reviewing a trial court’s denial of a motion to suppress, we observe the
distinction between factual determinations which are subject to a substantial evidence
standard of review and application of law to the facts, which is subject to de novo review.
We view the facts in the manner most favorable to the prevailing party and defer to the

                                              4
district court’s findings of fact if substantial evidence exists to support those findings.
Questions of reasonable suspicion are reviewed de novo by looking at the totality of the
circumstances to determine whether the detention was justified.” Hubble, 2009-NMSC-014,
¶ 5 (alteration, internal quotation marks, and citations omitted).

{13} Section 66-7-317(A), the violated traffic law for which Defendant received and
signed a warning citation, requires that “a vehicle shall be driven as nearly as practicable
entirely within a single lane and shall not be moved from such lane until the driver has first
ascertained that such movement can be made with safety[.]” Defendant contends that the
officers did not have reasonable suspicion to stop him based on his driving conduct because
“no hazard or peril was created by his actions.”

{14} Under the totality of circumstances, the district court did not err in denying
Defendant’s motion to suppress. The officers’ observations gave rise to reasonable
inferences and thus reasonable suspicion that one or more traffic offenses had occurred. See
State v. Anaya, 2008-NMCA-020, ¶¶ 13-15, 143 N.M. 431, 176 P.3d 1163 (indicating that
where there exist facts to support the inference that a law has been violated, a stop is
objectively reasonable, even in instances in which the facts articulated by the officer support
reasonable suspicion as to violation of an offense other than that for which the motorist was
stopped). While there may not have been other traffic at the particular instance of
Defendant’s erratic driving, Officer Wright recalled seeing vehicles traveling in the
northbound lanes (but recalling no safety issue at the time of Defendant’s turn), and the
officers’ police car was traveling southbound some distance behind Defendant. Officer
Gonzales identified himself as other traffic on the roadway that was affected by the
movements of Defendant’s vehicle. Officer Gonzales also suggested that any overcorrecting
might cause a rollover accident. Further, Officer Gonzales believed that Defendant’s erratic
driving indicated possible impairment, and Officer Wright could not think of a justification
for Defendant’s driving activity.

{15} Also significant in the mix, erratic driving, such as that in this case, can well present
a concern in the judgment of an experienced police officer about safety and danger to
northbound or southbound traffic were Defendant to have been permitted to continue his
travels. Nothing in the record indicates that Defendant ascertained that his movements could
be made with safety, that he was conscious of or focused on safety or risk, or that his
condition was such that he would not continue to drive erratically. A reasonable inference
could be drawn that Defendant drove in a manner that would indicate that he was not
concerned about possible vehicular travel coming from behind or northbound. The officers
had legitimate and reasonable suspicion that lane and illegal turn-related traffic offenses
occurred. Officer Gonzales had legitimate and reasonable suspicion of impairment due to
Defendant’s erratic driving. And nothing in the record indicates that the officers had any
reason to believe that Defendant’s behavior could be justified by any existing circumstance.
The officers certainly would have justified concern about Defendant continuing to drive. We
are persuaded that, in the balance, and under the totality of circumstances, the stop advanced
the public interest well over the minimal intrusion into Defendant’s liberty interest. See

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State v. Contreras, 2003-NMCA-129, ¶¶ 13-16, 134 N.M. 503, 79 P.3d 1111 (discussing the
balancing test for determining the reasonableness of a traffic stop based on an anonymous
caller’s information regarding the defendant’s erratic driving). We hold that under the
totality of circumstances, after observing his erratic driving, the officers lawfully stopped
Defendant based on the traffic offenses they observed and to investigate whether he was
impaired and a danger on the road.

{16} Defendant’s attempt to negate reasonable suspicion by arguing that the officers acted
under a mistake of law in regard to the traffic offenses for which he was stopped is of no
avail. See Hubble, 2009-NMSC-014, ¶ 22 (clarifying the distinction between a mistake of
law and a mistake of fact). First, this argument ignores that Officer Gonzales stopped
Defendant for reasons in addition to drifting over lane markers. The officer believed that
Defendant may have been impaired. And the officer had concerns about Defendant’s illegal
turn. Second, we see no mistake of fact or law. It is reasonably likely that had Defendant
been cited for violating both lane-change and turn-related traffic offenses, he could have
been convicted of the offenses. Third, any mistake could only have been one of fact, not
law. See id. (characterizing a mistake of fact as a “mistake about a fact that is material to
the transaction[,]” distinguishing that from a mistake of law, characterized as a “mistake
about the legal effect of a known fact or situation” (internal quotation marks and citation
omitted)). Any possible mistake was only as to whether Defendant “first ascertained”
whether his drifting and then turning could be made safely. Under the totality of
circumstances here, this would not amount to a mistake of law. Mistakes of fact such as this
do not negate reasonable suspicion. Id. ¶¶ 31-32 (holding that the officer did not make any
mistake, but even if he did, the mistake was one of fact—determining whether the relative
positions of vehicles and their direction of travel constituted a scenario where he may have
been affected by the defendant’s movement—and that “any mistakes regarding these factual
judgments would be classified as mistakes of fact and not mistakes of law”).

Speedy Trial and Jury Trial Issues

{17} “A plea agreement is a unique form of contract the terms of which must be
interpreted, understood, and approved by the trial court.” State v. Mares, 1994-NMSC-123,
¶ 12, 119 N.M. 48, 888 P.2d 930. A plea of guilty made voluntarily, “after advice of counsel
and with full understanding of the consequences, waives objections to prior defects in the
proceedings and also operates as a waiver of statutory or constitutional rights, including the
right to appeal.” State v. Hodge, 1994-NMSC-087, ¶ 14, 118 N.M. 410, 882 P.2d 1. “Entry
of a conditional plea is contingent upon approval of the court and consent of the
prosecution.” Id. ¶ 20. While this Court might pardon some informalities of a conditional
plea, we still require the defendant to “express[] an intention to preserve a particular pretrial
issue for appeal that neither the government nor the district court opposed[.]” Id. ¶¶ 21, 27
(internal quotation marks and citation omitted).

{18} The conditional plea and disposition agreement Defendant signed reserved one
particular pretrial issue only for appeal, namely, the denial of his motion to suppress. Yet

                                               6
the court, apparently sua sponte, broadened the issues that Defendant could raise on appeal
to an extent equaling what Defendant could raise on appeal after a jury trial and conviction.
With no explanation in the record, we can only assume that the district court added the carte
blanche conditional appeal right language to the judgment and sentence without any
discussion with or agreement of the State. We can only assume that the district court
inadvertently added the carte blanche appeal language. We fault the prosecution for not
catching this addition after the sentence was entered. In its answer brief, the State does not
say head-on that it did not agree to any change in the conditional plea agreement. The State
appears to suggest that it did not agree to any expansion of the conditional plea and right to
appeal in its unsupported representation to this Court that “[t]he prosecution and the district
court were not allowed the opportunity to reject [the] material change in the conditions of
the conditional plea.” We could remand for further proceedings in regard to the district
court’s intent and authority to change the plea agreement language in an attempt to uncover
why the prosecution did not catch and seek to have the addition corrected. We choose not
to go that route.

{19} Defendant very clearly did not reserve in his conditional plea agreement a right to
appeal based on speedy or jury trial right violations. He expressly waived any jury trial
right. He expressly gave up any relief that he had attempted or could have attempted through
motion. This covered his motion for a jury trial and his motion to dismiss based on the
conduct of the prosecution leading to an asserted speedy trial violation. We agree with the
State that Defendant should not be permitted to raise the additional issues on appeal. We
therefore reject those appellate contentions.

CONCLUSION

{20} We affirm Defendant’s conviction. The court did not err in denying Defendant’s
motion to suppress. Defendant’s speedy and jury trial arguments are neither viable nor
meritorious, and there existed no error as to those claims.

{21}   IT IS SO ORDERED.

                                               ____________________________________
                                               JONATHAN B. SUTIN, Judge

WE CONCUR:

____________________________________
CYNTHIA A. FRY, Judge


____________________________________
LINDA M. VANZI, Judge


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Topic Index for State v. Salas, No. 32,585

APPEAL AND ERROR
Standard of Review

CONSTITUTIONAL LAW
Suppression of Evidence

CRIMINAL LAW
Driving While Intoxicated

CRIMINAL PROCEDURE
Motion to Suppress
Reasonable Suspicion
Right to Speedy Trial
Right to Trial by Jury

EVIDENCE
Suppression of Evidence




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