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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                     No. 34,941

 5 MICHELLE GARNER,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
 8 Angie K. Schneider, District Judge

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   Elizabeth Ashton, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Bennett J. Baur, Chief Public Defender
15 Allison H. Jaramillo, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant

18                                 MEMORANDUM OPINION

19 SUTIN, Judge.
 1   {1}   Defendant Michelle Garner appeals her convictions for battery on a peace

 2 officer and resisting, evading, or obstructing an officer. On appeal, she contends that

 3 her convictions violate double jeopardy principles and that fundamental error occurred

 4 when the district court considered facts that transpired in the course of a different case

 5 when sentencing Defendant. For the reasons that follow, we reverse with respect to

 6 the first issue and affirm as to the second issue.

 7 BACKGROUND

 8   {2}   Defendant’s convictions arose out of an incident that occurred at Defendant’s

 9 daughter’s home on June 27, 2013. Detective Eliza Fernandez of the Alamogordo

10 Police Department was on patrol when she received an intake call from the Children,

11 Youth, and Families Department (CYFD) to assist in an investigation. Due to her

12 concerns about the investigation, Detective Fernandez called for a supervisor, and

13 Sergeant Adam Prudencio responded to the scene. The State and defense stipulated

14 at trial that the police were lawfully present at the home.

15   {3}   As Sergeant Prudencio spoke with Defendant’s daughter, Krystal Romero,

16 Detective Fernandez was photographing the residence as part of the investigation.

17 Detective Fernandez heard a female voice yell, “You’re not going to take my

18 grandchildren!” The voice belonged to Defendant. Detective Fernandez stopped what

19 she was doing and went into the living room area, where Sergeant Prudencio was


                                               2
 1 speaking with Defendant and trying to calm her down. Defendant calmed down, took

 2 one of her grandchildren, and went outside to smoke a cigarette.

 3   {4}   At that point, Detective Fernandez stepped out of the home to call the on-call

 4 assistant district attorney to seek advice regarding the situation; a decision was made

 5 to remove the children from the home and obtain medical treatment. While Defendant

 6 was on the porch, Detective Fernandez re-entered the home and informed Ms.

 7 Romero, who was on a couch just inside the front door, of this decision. Upon hearing

 8 this, Ms. Romero screamed out, and Defendant ran inside.

 9   {5}   Detective Fernandez testified at trial that as Defendant was coming through the

10 door, Sergeant Prudencio told her to “back off.” Defendant pushed the sergeant and

11 punched him in the chest with a closed fist. Sergeant Prudencio began trying to secure

12 Defendant by performing a wrist lock; to do so, he went out the front door onto the

13 porch, where there was a platform. Sergeant Prudencio was on the ground with

14 Defendant, telling her to stop resisting, and Detective Fernandez got on the ground as

15 well. When Detective Fernandez was asked, “How did they get on the ground[,]” she

16 testified, “I don’t know, it happened so quick.” Detective Fernandez saw that the

17 sergeant needed assistance, so she went to the ground, tried to grab Defendant’s other

18 arm, and told Defendant to stop resisting several times. Defendant was kicking quite

19 a bit at that time, and both officers were on the ground, trying to secure Defendant.


                                              3
 1 She further testified that she saw Defendant strike Sergeant Prudencio in his upper leg

 2 and above his groin. Detective Fernandez testified that she was kicked by Defendant

 3 in her right knee and was kicked multiple times because Defendant was kicking back

 4 and forth. She described Defendant’s kicks as “mule kicks,” where Defendant’s

 5 stomach was to the ground and Defendant was kicking her legs back. Detective

 6 Fernandez estimated that the entire event, from Defendant’s initial striking of Sergeant

 7 Prudencio to Defendant’s thrashing, took between one and a half to two minutes.

 8 Defendant ceased kicking once she was in handcuffs and up off of the ground.

 9   {6}   Sergeant Prudencio also testified at trial. He stated that he reached Ms.

10 Romero’s home prior to Defendant and that when Defendant arrived, about ten

11 minutes later, she was “angry” and was repeatedly yelling, “You’re not taking my

12 grandchildren.” He told Defendant to calm down, and she took one of her

13 grandchildren to the porch and began smoking a cigarette. Defendant was outside for

14 no more than five minutes when she heard that the decision had been made to take

15 custody of at least one of the children, and Defendant bolted through the front door.

16 The sergeant testified that Defendant “came charging inside,” he was standing about

17 three feet in front of the door, and Defendant shoved him and tried to push past him.

18 Sergeant Prudencio told Defendant to calm down and go back outside numerous

19 times. Defendant kept trying to get around the sergeant by pushing and shoving him,


                                              4
 1 until he had to start pushing her outside. When Defendant got to the doorway opening,

 2 she kicked him in the groin and punched him in the chest. Sergeant Prudencio

 3 observed that Defendant was preparing to punch him again, so he grabbed her wrist

 4 so she could not hit him again. To accomplish the wrist lock, the sergeant grabbed

 5 Defendant’s right wrist, turned it in a minor twist, which put pressure on Defendant

 6 to bring her to the floor. Defendant was trying to pull back away from him while he

 7 had her wrist, and Defendant continued kicking him in the knees, so he exerted more

 8 pressure on Defendant’s wrist. Defendant went to her knees and was trying to bite him

 9 on his legs. Sergeant Prudencio grabbed Defendant from behind her head and pushed

10 her head to the sidewalk. The sergeant held Defendant that way and instructed her to

11 put her other arm behind her back. Throughout this time, Defendant was yelling out

12 that Sergeant Prudencio was hurting her. Defendant did not become compliant until

13 she was in handcuffs.

14   {7}   Based on the foregoing events, Defendant was charged with two counts of

15 battery on a peace officer and resisting, evading, or obstructing an officer. At trial,

16 defense counsel requested a jury instruction on self-defense as it pertained to the

17 battery against Sergeant Prudencio, which was given. The jury convicted Defendant

18 of one count of battery upon a peace officer against Detective Fernandez, one count




                                              5
 1 of battery upon a peace officer against Sergeant Prudencio, and one count of resisting,

 2 evading, or obstructing an officer, with respect to the sergeant. This appeal followed.

 3 DISCUSSION

 4 Double Jeopardy

 5   {8}   Defendant contends that her convictions for resisting, evading, or obstructing

 6 an officer and battery on a peace officer against Sergeant Prudencio violate double

 7 jeopardy.

 8   {9}   Double jeopardy presents a question of law that we review de novo. State v.

 9 Bernal, 2006-NMSC-050, ¶ 6, 140 N.M. 644, 146 P.3d 289. Because Defendant was

10 charged with violation of multiple statutes, we are presented with a “double

11 description” issue. See State v. Ford, 2007-NMCA-052, ¶ 8, 141 N.M. 512, 157 P.3d

12 77 (classifying a double jeopardy challenge to separate convictions for resisting,

13 evading, or obstructing an officer and battery on a peace officer as a double

14 description issue). For double description cases, we apply the two-part test set forth

15 in Swafford v. State, 1991-NMSC-043, ¶¶ 9, 25, 112 N.M. 3, 810 P.2d 1223: (1)

16 whether the conduct is unitary, and (2) if so, whether the Legislature intended to

17 punish the offenses separately. See State v. Silvas, 2015-NMSC-006, ¶ 9, 343 P.3d

18 616. “Only if the first part of the test is answered in the affirmative, and the second




                                              6
 1 in the negative, will the double jeopardy clause prohibit multiple punishment in the

 2 same trial.” Id. (internal quotation marks and citation omitted).

 3   {10}   When determining whether Defendant’s conduct was unitary, we consider

 4 whether her actions were separated by sufficient indicia of distinctness. See State v.

 5 DeGraff, 2006-NMSC-011, ¶ 27, 139 N.M. 211, 131 P.3d 61. “Conduct is unitary

 6 when not sufficiently separated by time or place, and the object and result or quality

 7 and nature of the acts cannot be distinguished.” Silvas, 2015-NMSC-006, ¶ 10. “[W]e

 8 consider such factors as whether the acts were close in time and space, their similarity,

 9 the sequence in which they occurred, whether other events intervened, and [the]

10 defendant’s goals for and mental state during each act.” Ford, 2007-NMCA-052, ¶ 12.



11   {11}   Applying the foregoing factors, we observe that the entire incident appears to

12 have occurred within the short period of up to two minutes, and within the limited

13 space of a few feet just inside the front door and a small porch. Defendant’s

14 convictions for both battery and resisting were based on her opposition to the decision

15 to take her grandchild into custody, entailing acts of shoving, punching, and kicking,

16 which appear similar in character and quality. With respect to sequencing, the initial

17 pushing and punching of Sergeant Prudencio and the later resisting occurred within

18 a single overarching episode. No intervening event or break in the actions occurred.


                                               7
 1 The episode began when Defendant heard that the decision had been made to take

 2 custody of one of her grandchildren, and her struggle continued when Sergeant

 3 Prudencio tried to put her wrist behind her back. Finally, a review of the relevant

 4 testimony at trial shows that Defendant’s overarching goal and purpose in committing

 5 both the battery and resisting offenses never changed; it was to prevent the officers

 6 from taking custody of one of her grandchildren. The foregoing considerations all

 7 support the conclusion that Defendant’s conduct was unitary.

 8   {12}   We note that the facts in this case bear similarity to the situation addressed by

 9 this Court in Ford. In Ford, the defendant’s convictions for resisting, evading, or

10 obstructing an officer and battery on a peace officer were based on his acts of

11 struggling while officers were trying to effectuate an arrest. Id. ¶¶ 13-14. The acts

12 occurred close in time, id. ¶ 14, and although the struggling and kicking occurred in

13 slightly different places, they were in close proximity. Id. ¶ 15. The defendant’s acts

14 of struggling and kicking were also similar in quality and nature. Id. ¶¶ 14-15.

15 Moreover, the kicking occurred at the conclusion of the larger, continuous episode of

16 struggling, during which no intervening event or break in the action was suggested.

17 Id. ¶¶ 13-14. Finally, the defendant’s acts occurred in response to the officers’

18 attempts to effectuate an arrest, thereby, having the same object of resistance. Id. ¶ 14.

19 Insofar as Defendant’s acts underlying the battery and resisting offenses in this case


                                                8
 1 all occurred in the course of Defendant’s attempts to prevent officers from taking

 2 custody of her grandchild, which was the single overarching purpose of her actions,

 3 we conclude that the facts of the instant case are analogous to those presented in Ford.

 4 We therefore conclude that the conduct is unitary for double jeopardy purposes. See

 5 id. ¶ 16 (concluding that the defendant’s conduct was unitary).

 6   {13}   The State’s answer brief “recognizes that the acts were not separated by

 7 sufficient time or physical distance.” However, the State argues that despite this

 8 temporal and physical proximity, there was a distinct change in Defendant’s conduct

 9 at the time when Sergeant Prudencio and Detective Fernandez attempted to detain her,

10 which the State argues was dispositive for the purpose of determining whether there

11 was unitary conduct. See State v. Bernard, 2015-NMCA-089, ¶ 26, 355 P.3d 831 (“If

12 a case cannot be resolved from time and space considerations, then resort must be had

13 to the quality and nature of the acts or to the objects and results involved.” (internal

14 quotation marks and citation omitted)).

15   {14}   The State contends that this case should be deemed more analogous to State v.

16 Lopez, 2008-NMCA-111, 144 N.M. 705, 191 P.3d 563. In Lopez, the defendant’s “act

17 of fleeing was punctuated by a distinct change in character and quality when he

18 stopped fleeing, turned toward the officer in an attack posture, came back to the

19 officer, and punched him twice in the face, drawing blood.” Id. ¶ 10. Moreover, “at


                                              9
 1 the time [the d]efendant stopped fleeing and physically attacked the officer, [the

 2 d]efendant’s purpose changed from simply trying to escape into physical violence

 3 directed at the officer.” Id. Accordingly, both “the quality and nature of the individual

 4 acts, and the objectives and results involved, changed significantly[,]” such that the

 5 conduct at issue was properly deemed non-unitary. Id. (internal quotation marks

 6 omitted). The State contends that Defendant’s purpose in this case morphed from

 7 physical violence directed at the officer, which was offensive in nature when she

 8 charged at Sergeant Prudencio, to merely trying to resist detention, which was

 9 defensive in nature when the sergeant began to restrain her as a result of her initial

10 attack on him.

11   {15}   We disagree with the State’s contention. As we discussed previously, the

12 quality and character of Defendant’s conduct did not significantly change in the

13 course of the episode. Unlike the facts presented in Lopez, Defendant neither

14 deliberately ceased striking at Sergeant Prudencio nor began to purposefully resist the

15 arrest. To the contrary, Defendant initially came into physical contact with the

16 sergeant by shoving and punching him as she tried to barge into the house after

17 hearing the decision to take custody of her grandchild. When he tried to restrain her

18 due to her physical aggression, she continued to struggle with him and resist the

19 restraint in an effort to go inside and prevent her grandchild from being removed from


                                              10
 1 the home. It appears, therefore, that Defendant’s initial acts of shoving and punching

 2 were similar in nature to her kicks as she tried to resist the officer’s restraint. See

 3 Ford, 2007-NMCA-052, ¶ 14 (characterizing a kick as similar to other acts of

 4 resistance occurring in the course of a struggle to resist arrest).

 5   {16}   The State also argues that Sergeant Prudencio’s act of trying to restrain

 6 Defendant and Defendant’s resisting that restraint should be regarded as an indication

 7 of changed purpose. Relevant to this, the State contends that Defendant’s self-defense

 8 theory at trial—which was submitted to but rejected by the jury, as they returned a

 9 battery conviction—supports a view of the facts that her demeanor changed from

10 offensive to defensive. We disagree. Sergeant Prudencio began to restrain Defendant

11 after she tried to physically move him out of the way in order to enter the house.

12 Although Defendant may have been reacting to pain from his attempts to restrain her,

13 and her immediate physical responses may have changed in an attempt to get away

14 from his grip, Defendant’s overarching objective throughout the episode appears to

15 have been to prevent the officers from taking custody of her grandchild. Stated

16 another way, the attempt to restrain and then arrest Defendant had no apparent effect

17 on Defendant’s larger purpose throughout her physical interaction with Sergeant

18 Prudencio.




                                              11
 1   {17}   Finally, the State suggests that Defendant’s convictions can be upheld on the

 2 theory that she completed the offense of battery when Sergeant Prudencio tried to

 3 restrain her, and then she effectuated the crime of resisting when she kicked and

 4 struggled to avoid being placed in handcuffs. See DeGraff, 2006-NMSC-011, ¶ 27

 5 (“In our consideration of whether conduct is unitary, we have looked for an

 6 identifiable point at which one of the charged crimes had been completed and the

 7 other not yet committed.”). We decline to divide the episode at hand in this manner.

 8 Double jeopardy concerns “cannot be avoided by the simple expedient of dividing

 9 conduct into a series of temporal and spatial units.” Lopez, 2008-NMCA-111, ¶ 10.

10 As Ford and Lopez both illustrate, we must consider the entire uninterrupted episode,

11 rather than artificially compartmentalizing the pertinent events. See State v. Padilla,

12 1983-NMCA-096, ¶¶ 4, 10, 101 N.M. 78, 678 P.2d 706 (stating that, in the context

13 where the defendant was pulled over for driving erratically, he briefly interacted with

14 the officer, got back into his car, drove off, a high speed chase ensued, the defendant

15 finally stopped, two officers struggled to handcuff him, and the defendant kicked one

16 of the officers, the events could not be broken down into discrete parts), rev’d in part

17 on other grounds, 1984-NMSC-026, 101 N.M. 58, 678 P.2d 686.

18   {18}   Because we have concluded that the conduct at issue in this case is unitary, we

19 must proceed to the second step of the double jeopardy analysis. Legislative intent


                                              12
 1 with respect to the offenses of resisting, evading, or obstructing an officer and battery

 2 on a peace officer was evaluated in Ford. Comparing the applicable statutory

 3 provisions, this Court observed that the elements of the former are subsumed within

 4 the elements of the latter. Ford, 2007-NMCA-052, ¶¶ 18-21.

 5   {19}   In this case, the offenses incorporate the same elements as those addressed in

 6 Ford. Insofar as the elements of resisting are subsumed within the elements of battery

 7 on a peace officer, our inquiry is at an end. See State v. Lee, 2009-NMCA-075, ¶ 9,

 8 146 N.M. 605, 213 P.3d 509 (observing that “[i]f . . . one statute is subsumed within

 9 the other, the inquiry is over and the statutes are the same for double jeopardy

10 purposes—punishment cannot be had for both” (internal quotation marks and citation

11 omitted)).

12   {20}   In sum, Defendant was convicted of two offenses arising out of unitary conduct.

13 Because the elements of one these offenses are subsumed within the elements of the

14 other, Defendant’s right to be free from double jeopardy was violated. See Ford,

15 2007-NMCA-052, ¶¶ 3, 23. Defendant’s conviction for resisting, the lesser-included

16 offense, must therefore be vacated. See id.

17 Sentencing




                                              13
 1   {21}   Defendant argues that fundamental error occurred when the district court relied

 2 on testimony presented during Ms. Romero’s sentencing hearing when sentencing Defendant.

 3   {22}   At sentencing, the district court referenced Defendant’s forensic mental health

 4 evaluation, and the district court emphasized Defendant’s need for mental health

 5 services based on Defendant’s behavior in the present case and the information in the

 6 evaluation. The State made clear that it did not intend to request additional jail time,

 7 but asked that the district court run the counts consecutively and place Defendant on

 8 supervised probation. Additionally, the State requested that Defendant have no contact

 9 with Mr. and Mrs. Webber, the foster parents of Defendant’s grandchild who was

10 taken into CYFD custody as a result of the investigation underlying the instant case,

11 unless the contact was arranged through CYFD. Relevant to this, the State mentioned

12 the holding up of signs around a vehicle and said that it did not want Defendant to use

13 “shame tactics” of that nature, although no further details were provided.

14   {23}   The district court agreed that Defendant should have no contact with the

15 Webbers outside of the CYFD system and sentenced her to four years minus one day,

16 all of which was suspended in favor of supervised probation. Subsequently, defense

17 counsel asked if the court would consider a deferred sentence, which the district court

18 declined to do and explained that it would not be appropriate in light of the facts of




                                              14
 1 the case. The district court ordered Defendant to write a letter of apology to Mr.

 2 Webber.

 3   {24}   At that juncture, defense counsel, noting that while he thought the discussion

 4 about what happened at Ms. Romero’s sentencing hearing and the letter for the

 5 Webbers were “appropriate” and “great,” stated that he had “no knowledge of these

 6 things.” The district court explained to defense counsel that the Webbers were the

 7 foster family who took Defendant’s grandchild into their home. The district court

 8 further explained that “when this baby came into [the Webbers’] care, he wasn’t even

 9 responsive,” the court had no words to describe the “level of neglect,” and highlighted

10 Defendant’s harassment of the Webbers, as well as her disrespect for them. Defense

11 counsel thanked the court for explaining.

12   {25}   Defendant argues that her due process rights were violated when the district

13 court relied on information presented at Ms. Romero’s sentencing hearing. Defendant

14 characterizes this as a notice problem; specifically, “that she did not have the requisite

15 advanced notice in this case that this information which the [court] learned at a

16 previous sentencing of another defendant would be used against her in her own

17 sentencing.” Defendant further asserts that “[a]lthough she may have been aware of

18 these facts, that does not equate to fair notice that they would be used against her at

19 sentencing.” Defendant claims that this prejudiced her because she did not receive a


                                               15
 1 deferred sentence. Defendant raises this issue as a matter of fundamental error

 2 because, although defense counsel mentioned this at sentencing, he failed to object.

 3   {26}   In the context of an unpreserved sentencing error, the appellate courts apply the

 4 fundamental error doctrine “only under exceptional circumstances and only to prevent

 5 a miscarriage of justice.” State v. Castillo, 2011-NMCA-046, ¶¶ 28-29, 149 N.M. 536,

 6 252 P.3d 760 (internal quotation marks and citation omitted). “The error must shock

 7 the conscience or implicate a fundamental unfairness within the system that would

 8 undermine judicial integrity if left unchecked.” Id. ¶ 29 (internal quotation marks and

 9 citation omitted).

10   {27}   We disagree with Defendant’s claim of fundamental error. As an initial matter,

11 with respect to the fact that the district court discussed its recollection of statements

12 made at Ms. Romero’s sentencing proceeding, we note that the district court is

13 “permit[ted] . . . to take judicial notice of its own records.” Lopez v. LeMaster,

14 2003-NMSC-003, ¶ 32, 133 N.M. 59, 61 P.3d 185. To the extent Defendant argues

15 that her due process rights were violated by this, our case law has explained that in the

16 context of disruptive conduct in open court that the judge personally observed, which

17 we perceive to be analogous to the present circumstances, due process requirements

18 are diminished. See Concha v. Sanchez, 2011-NMSC-031, ¶ 27, 150 N.M. 268, 258

19 P.3d 1060 (“A person who commits disruptive or defiant conduct in the midst of an


                                               16
 1 ongoing court proceeding within the personal perception of the judge has committed

 2 an act of direct criminal contempt and may be punished summarily without further

 3 evidentiary proceedings.”).

 4   {28}   Additionally, the State did not rely on the information from Ms. Romero’s

 5 sentencing hearing to seek an enhancement of Defendant’s sentence, but merely asked

 6 that Defendant not have contact with the foster family outside of the CYFD-

 7 established structure. Cf. Caristo v. Sullivan, 1991-NMSC-088, ¶ 45, 112 N.M. 623,

 8 818 P.2d 401 (“[A] defendant must be given notice of the state’s intention to seek

 9 aggravation and of the aggravating circumstances on which it intends to rely, unless

10 the circumstance was itself an element of the underlying offense or a fact used to

11 establish such an element.”). In sum, because the prior hearing occurred before the

12 same district court, Defendant was responsible for the conduct, and the State did not

13 seek an aggravation, we do not perceive there to be any due process concerns.

14   {29}   We turn next to Defendant’s argument that she was prejudiced by any lack of

15 notice of the district court’s reliance on statements made at Ms. Romero’s sentencing

16 hearing because Defendant should have received a deferred sentence, as opposed to

17 a suspended sentence. See NMSA 1978, § 31-20-3 (1985) (explaining orders deferring

18 or suspending sentence). Again, we disagree with Defendant’s contentions. In State




                                             17
 1 v. Gardner, 2003-NMCA-107, ¶ 43, 134 N.M. 294, 76 P.3d 47, this Court recognized

 2 the types of evidence that may be relevant at sentencing.

 3        Our case law allows the court discretion to consider almost any relevant
 4        factor or evidence in determining the appropriate sentence. Where the
 5        trial court relies on certain information that, in turn, affects a defendant’s
 6        sentence, then due process may require advance notice to the defendant
 7        so that the defendant has the opportunity to challenge the accuracy of the
 8        information.

 9 Id. (alteration, internal quotation marks, and citation omitted). In Gardner, the

10 defendant argued that his due process rights were violated when the prosecution

11 presented testimony about crimes for which he was not charged or convicted, without

12 providing advance notice of such testimony, even though the prosecution did not seek

13 an increase of the basic sentence. Id. ¶ 39. This Court noted that there was no

14 indication to suggest that the defendant had been prejudiced by any lack of notice, as

15 the district court did not indicate that it had considered testimony presented by the

16 prosecution at the sentencing hearing when it determined what sentence to impose. Id.

17 ¶ 42. Additionally, the Court explained that because the district court did not deviate

18 from the basic sentence, which it was not required to do, irrespective of any mitigating

19 evidence presented by the defendant, there were no due process concerns of the nature

20 addressed by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S.

21 466 (2000), and examined by this Court in State v. Wilson, 2001-NMCA-032, 130

22 N.M. 319, 24 P.3d 351. Gardner, 2003-NMCA-107, ¶ 42.

                                               18
 1   {30}   In the present case, the district court noted that, in light of the forensic mental

 2 health evaluation submitted by defense counsel, efforts must be made to ensure

 3 Defendant receives mental health services. The district court elected to suspend the

 4 entirety of Defendant’s sentence in favor of supervised probation, gave instructions

 5 to Defendant to set up an appointment with a mental health provider, and included the

 6 requirement that Defendant’s probation officer be allowed to monitor Defendant’s

 7 compliance with her appointments and medications. The decision to suspend

 8 Defendant’s sentence was an act of judicial clemency, and the district court’s decision

 9 not to grant a deferred sentence was simply a refusal to grant further clemency—it

10 was not an aggravation or enhancement of any sort. See State v. Sosa,

11 1996-NMSC-057, ¶ 8, 122 N.M. 446, 926 P.2d 299 (explaining that “[i]t is settled law

12 in this jurisdiction that a suspended sentence is a matter of judicial clemency to which

13 a defendant may never claim entitlement” and holding that a court’s decision not to

14 suspend a defendant’s sentence “did not constitute an increase, enhancement, or

15 aggravation of the sentence imposed”). Accordingly, because Defendant was not

16 entitled to a deferred sentence and the district court exercised clemency in suspending

17 the entirety of Defendant’s sentence, we perceive no prejudice. We therefore reject

18 Defendant’s claim of fundamental error.

19 CONCLUSION


                                                19
1   {31}   For the foregoing reasons, we conclude that Defendant’s convictions for battery

2 on a peace officer and resisting, evading, or obstructing an officer violate double

3 jeopardy. We further conclude that no fundamental error occurred during sentencing.

4 We therefore remand to the district court to vacate Defendant’s conviction for

5 resisting, evading, or obstructing an officer, and to resentence Defendant accordingly.

6   {32}   IT IS SO ORDERED.



7                                          __________________________________
8                                          JONATHAN B. SUTIN, Judge


9 WE CONCUR:


10 _______________________________
11 MICHAEL E. VIGIL, Judge


12 _______________________________
13 M. MONICA ZAMORA, Judge




                                             20
