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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. 33,075

 5 RODNEY MONDRAGON,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Kenneth H. Martinez, District Judge


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

12 for Appellee

13 Jorge A. Alvarado, Chief Public Defender
14 Vicki W. Zelle, Assistant Appellate Defender
15 Albuquerque, NM

16 for Appellant


17                                 MEMORANDUM OPINION
 1 KENNEDY, Chief Judge.

 2   {1}   Rodney Mondragon (Defendant) appeals from the district court’s judgment

 3 affirming his bench trial conviction for DWI following an on-record appeal. He

 4 contends that the metropolitan court erred in denying his motion to suppress because

 5 the stop of his vehicle was not supported by reasonable suspicion. This Court issued

 6 a calendar notice proposing summary affirmance. Defendant filed a memorandum in

 7 opposition to this Court’s notice of proposed disposition, which we have duly

 8 considered. Unpersuaded, we affirm.

 9   {2}   In our calendar notice, we proposed to hold that the metropolitan court did not

10 err in denying Defendant’s motion to suppress. [CN 6] Defendant’s memorandum

11 in opposition does not point to any specific errors in fact or in law in our calendar

12 notice. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683

13 (“Our courts have repeatedly held that, in summary calendar cases, the burden is on

14 the party opposing the proposed disposition to clearly point out errors in fact or law.”).

15 Instead, Defendant, in his memorandum in opposition, continues to argue that the

16 district court erred in finding a reasonable suspicion for the initial stop because it was

17 based on “the deputy’s mistaken subjective belief that there was a headlight

18 violation.” [MIO 7]

19   {3}   The metropolitan court’s factual finding that Deputy Rael believed he saw

20 Defendant traveling without lights was based on the deputy’s testimony during the

                                               2
 1 bench trial that, while working the graveyard shift, he observed Defendant’s vehicle

 2 driving down the road with its headlights off. [DS 2; RP 63] The deputy “was

 3 emphatic that he observed at least [that] the left headlight was not illuminated[.]”

 4 [MIO 2] The deputy saw Defendant’s vehicle turn and, at that point, saw the vehicle’s

 5 taillights illuminate. [DS 2-3; RP 63; MIO 4] Despite the testimony of Defendant’s

 6 friend, a passenger in the vehicle, that Defendant picked him up prior to the traffic

 7 stop and that the vehicle’s headlights were on, [DS 5; RP 65; MIO 2] the metropolitan

 8 court found that “the deputy was absolutely convinced [Defendant] didn’t have the

 9 light[s] on.” [MIO 4] Defendant has not challenged this factual finding.

10   {4}   While a finding that the deputy believed the lights were not on is not finding

11 that they were not, Deputy Rael testified to objective facts, namely, that he did not see

12 the left headlight illuminated, and he observed the taillights illuminate while the

13 vehicle was driving down the street. These articulable facts provided the deputy with

14 a reasonable suspicion to believe that Defendant was driving without illuminated

15 headlights, and the deputy was justified in making a traffic stop for violation of

16 NMSA 1978, Section 66-3-802 (1953). See State v. Vandenberg, 2002-NMCA-066,

17 ¶ 17, 132 N.M. 354, 48 P.3d 92 (“A police officer may stop a vehicle if he has an

18 objectively reasonable suspicion that the motorist has violated a traffic law.”), rev’d

19 on other grounds, 2003-NMSC-030, 134 N.M. 566, 81 P.3d 19. Even if the deputy

20 was mistaken about what he observed, our Supreme Court has recognized that a

                                               3
1 mistake of fact may provide the objective grounds for reasonable suspicion. See State

2 v. Hubble, 2009-NMSC-014, ¶ 22, 146 N.M. 70, 206 P.3d 579.                  Therefore,

3 Defendant’s memorandum in opposition has failed to demonstrate that this Court’s

4 proposed disposition is incorrect.

5   {5}   For these reasons, and those stated in our calendar notice, we affirm.

6   {6}   IT IS SO ORDERED.



7                                         ____________________________________
8                                         RODERICK T. KENNEDY, Chief Judge


9 WE CONCUR:



10 ___________________________
11 CYNTHIA A. FRY, Judge



12 ___________________________
13 M. MONICA ZAMORA, Judge




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