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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellant,

 4 v.                                                                    NO. 35,818

 5 ISAAC MARQUEZ,

 6          Defendant-Appellee.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Alisa A. Hadfield, District Judge

 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellant

12 L. Helen Bennett PC
13 L. Helen Bennett
14 Albuquerque, NM

15 for Appellee

16                                 MEMORANDUM OPINION

17 GARCIA, Judge.

18   {1}    The State has appealed from an order granting Defendant a new trial, based on
 1 his claim of ineffective assistance of counsel. We previously issued a notice of

 2 proposed summary disposition in which we proposed to reverse and remand for

 3 further proceedings. Defendant has filed a memorandum in opposition. After due

 4 consideration, we remain unpersuaded.

 5   {2}   At this stage in the appellate process we generally avoid reiteration of the

 6 background information and analysis previously set forth in the notice of proposed

 7 summary disposition. In this case, however, we believe a more comprehensive

 8 discussion may be of assistance on remand. We proceed accordingly.

 9   {3}   Initially, we proposed to hold that insofar as the State has claimed that the grant

10 of a new trial in this case was based on an erroneous conclusion that prejudicial legal

11 error occurred at trial, the appeal is properly before us. See State v. Acosta,

12 2016-NMCA-003, ¶ 9, 363 P.3d 1240 (articulating the applicable standard); and see

13 generally Churchman v. Dorsey, 1996-NMSC-033, ¶ 11, 122 N.M. 11, 919 P.2d 1076

14 (observing that the question whether the trial court applied the correct standard in

15 evaluating a claim of ineffective assistance of counsel is a question of law that is

16 reviewed de novo); State v. Griffin, 1994-NMSC-061, ¶ 14, 117 N.M. 745, 877 P.2d

17 551 (indicating that an order granting a new trial is “an immediately appealable order

18 [if] it presents a question of law easily reviewed by an appellate court”). In his

19 memorandum in opposition, Defendant does not take issue with this aspect of our


                                                2
 1 analysis. We therefore proceed to the merits.

 2   {4}   “To establish a claim of ineffective assistance, a defendant must show error on

 3 the part of counsel and prejudice resulting from that error.” State v. Schoonmaker,

 4 2008-NMSC-010, ¶ 32, 143 N.M. 373, 176 P.3d 1105, overruled on other grounds by

 5 State v. Consaul, 2014-NMSC-030, 332 P.3d 850. Error is found if the attorney’s

 6 conduct fell below that of a reasonably competent attorney. Id. “Prejudice is shown

 7 when there is a reasonable probability that, but for counsel’s unprofessional errors, the

 8 result of the proceeding would have been different.” Id. (internal quotation marks and

 9 citation omitted).

10   {5}   In this case, the district court’s determination that Defendant received

11 ineffective assistance of counsel is premised on the attorney’s failure to advise

12 Defendant about the possibility of requesting a lesser included offense instruction on

13 CSCM. [RP 255-56, 258] The district court found that there was some evidence

14 presented at trial that could have supported the submission of such an instruction to

15 the jury, that trial counsel should have consulted with Defendant about this, that his

16 failure to do so was not strategic, and that this failure rendered trial counsel’s

17 performance “deficient.” [RP 258-259]

18   {6}   In the notice of proposed summary disposition we acknowledged the apparent

19 unreasonableness of trial counsel’s failure to discuss the possibility of requesting a


                                               3
 1 lesser included offense instruction. See State v. Boeglin, 1987-NMSC-002, ¶ 8, 105

 2 N.M. 247, 731 P.2d 943 (“[T]he defendant, not defense counsel, ultimately must

 3 decide whether to seek submission of lesser included offenses to the jury.”); cf. State

 4 v. Paredez, 2004-NMSC-036, ¶ 19, 136 N.M. 533, 101 P.3d 799 (holding that a

 5 defense attorney’s failure to advise a client of the immigration consequences of

 6 pleading guilty renders that attorney’s performance deficient). However, this does not

 7 end our inquiry. In order to obtain relief based upon a claim of ineffective assistance

 8 of counsel, Defendant must make a showing of prejudice. See, e.g., State v. Favela,

 9 2015-NMSC-005, ¶ 12, 343 P.3d 178 (indicating that even where categorically

10 unreasonable conduct is established, it remains incumbent upon the defendant “to

11 prove that he was prejudiced by counsel’s deficient performance”).

12   {7}   “With respect to the showing that counsel’s deficient performance prejudiced

13 the defense, the defendant must show that there is a reasonable probability that, but

14 for counsel’s unprofessional errors, the result of the proceeding would have been

15 different. A reasonable probability is a probability sufficient to undermine confidence

16 in the outcome.” Lytle v. Jordan, 2001-NMSC-016, ¶ 27, 130 N.M. 198, 22 P.3d 666

17 (emphasis added) (alteration, internal quotation marks, and citation omitted).

18   {8}   Below, the district court concluded that defense counsel’s failure to discuss the

19 possibility of an instruction on CSCM “den[ied] Defendant the opportunity to consult


                                               4
 1 with counsel on this matter” and that Defendant was prejudiced by this failure. [RP

 2 258-59] However, in so concluding, the district court did not indicate that there was

 3 a “reasonable probability that . . . the result of the proceeding would have been

 4 different” if counsel had consulted with Defendant on this matter. Id. Instead, the

 5 district court merely indicated that “submission of an instruction on the lesser offense

 6 . . . may have resulted in a different outcome at trial.” [RP 258 ¶ 21]

 7   {9}    In the notice of proposed summary disposition we explained that the

 8 discrepancy between the applicable standard and the district court’s ultimate

 9 determination, as stated, is problematic. As the New Mexico Supreme Court has

10 observed, the distinction between a ‘reasonable probability’ standard and a

11 ‘reasonable possibility’ standard is significant. See, e.g., State v. Tollardo,

12 2012-NMSC-008, ¶ 36, 275 P.3d 110 (describing this distinction in the context of

13 harmless error review).

14   {10}   In his memorandum in opposition Defendant contends that we have lost sight

15 of the deferential standard of review that is applicable in this context. [MIO 1-2]

16 Relatedly, he contends that the terminology utilized by the district court does not

17 connote a departure from the reasonable probability standard, but rather, reflects “the

18 impossibility of definitively predicting the outcome on retrial.” [MIO 2-3] We remain

19 unconvinced. As previously stated, we perceive a significant distinction between a


                                              5
 1 probability, which connotes likelihood, and a mere possibility, as the district court’s

 2 findings and conclusions reflect. And, to the extent that the applicable standard was

 3 misapprehended, we are confronted with an error of law which is subject to de novo

 4 review, notwithstanding the nominally discretionary nature of the district court’s

 5 decision. See State v. Martinez, 2008-NMSC-060, ¶ 10, 145 N.M. 220, 195 P.3d 1232

 6 (“A misapprehension of the law upon which a court bases an otherwise discretionary

 7 evidentiary ruling is subject to de novo review.”); State v. Barnett, 1998-NMCA-105,

 8 ¶ 13, 125 N.M. 739, 965 P.2d 323 (observing that “the abuse-of-discretion standard

 9 does not preclude an appellate court from correcting errors premised on the trial

10 court’s misapprehension of the law”).

11   {11}   As we explained in the notice of proposed summary disposition, our confidence

12 in the decision rendered below is further undermined by seemingly conflicting

13 indications within the findings. Notwithstanding the fact that Defendant told his

14 attorney to argue that he did not touch the victim, [RP 256 ¶ 11] notwithstanding

15 Defendant’s testimony that he would not have told his attorney to argue that the

16 touching had differed from the way alleged, [Id.] and notwithstanding the avowed trial

17 strategy of total denial, [Id.] the district court nevertheless found that trial counsel’s

18 failure to request a lesser-included offense instruction was “an oversight and not a part

19 of trial strategy.” [RP 258 ¶ 17] This is difficult to comprehend. See State v. Jensen,


                                               6
 1 2005-NMCA-113, ¶¶ 12-16, 138 N.M. 254, 118 P.3d 762 (rejecting a claim of

 2 ineffective assistance of counsel based on a failure to submit a lesser-included offense

 3 instruction, where the record contained “no indication that defendant’s counsel acted

 4 in derogation of his client’s wishes,” and where the defendant offered “no persuasive

 5 argument that eliminates any conceivable and viable strategy or tactic,” particularly

 6 in light of the fact that offering a lesser included offense could dilute the defense

 7 under the “all-or-nothing tactic”).

 8   {12}   The absence of findings concerning the relative strength of the State’s case is

 9 similarly disconcerting. “In order to establish a claim of ineffective assistance of

10 counsel, defendant’s trial [counsel] must be shown to have been unreliable and as a

11 result, the fact[-]finder must have reached an unjust result.” State v. Newman,

12 1989-NMCA-086, ¶ 22, 109 N.M. 263, 784 P.2d 1006. As we explained in the notice

13 of proposed summary disposition, on the record before us we perceive no basis for

14 such a conclusion in this case. The victim appears to have testified that Defendant

15 engaged in a course of nightly abuse which unquestionably entailed penetration. [DS

16 3] See NMSA 1978, § 30-9-11(A) (2009) (defining “criminal sexual penetration” as

17 “the unlawful and intentional . . . causing of penetration, to any extent and with any

18 object, of the genital or anal openings of another” (emphasis added)); State v. Tapia,

19 2015-NMCA-048, ¶¶ 5-9, 347 P.3d 738 (observing that “the statutory language


                                               7
 1 clearly instructs that CSPM occurs if the [d]efendant engaged in an act of penetration

 2 to any extent” and ultimately holding that the testimony of the victims describing

 3 “physical interaction that was skin to skin, and during which [d]efendant rubbed or

 4 repetitiously slid his fingers upon [the] child’s unclothed genital openings” supported

 5 convictions for CSPM (alteration, internal quotation marks, and citation omitted)).

 6 Although there may have been some view of the evidence which might support a

 7 determination that CSCM was the highest level of offense committed, this appears to

 8 have been a remote possibility, premised upon something elicited on cross-

 9 examination from an investigator who took a statement from the victim indicating that

10 Defendant “played with her clit” but did not touch “the inside of her vagina.” [RP 183

11 ¶¶ 81-82, 258] Of course, touching inside the vagina is not required to support a

12 conviction of CSPM. See id. ¶ 8 (observing that “the CSPM statute was meant to be

13 inclusive of the broader sense of the female genitalia as opposed to just the vaginal

14 canal” (internal quotation marks and citation omitted)). In light of the clear and

15 explicit nature of the victim’s testimony at trial, as well as the position taken by the

16 defense, it seems abundantly clear that the verdict rendered in this case is

17 fundamentally reflective of a credibility determination. Under the circumstances, we

18 question how “the lack of the lesser included offense instruction that [d]efendant

19 claims he should have had rises to the level of prejudice or unjust result required for


                                              8
 1 reversal.” Jensen, 2005-NMCA-113, ¶ 15.

 2   {13}   In his memorandum in opposition Defendant argues that our stated concerns fail

 3 to take into account the fact that the district court is in a far better position to assess

 4 witness credibility. [MIO 4-5] However, in the notice of proposed summary

 5 disposition we explicitly acknowledged that the district court may have insight that

 6 we lack, and that it is possible that the district court’s ultimate determination is

 7 supportable. For that reason we proposed to remand, leaving the door open for any

 8 further proceedings that the district court might reasonably elect to undertake. After

 9 due consideration, we remain unpersuaded that this proposed course of action fails to

10 strike a prudent balance.

11   {14}   Accordingly, for the reasons stated in our notice of proposed summary

12 disposition and above, we reverse and remand for further proceedings consistent

13 herewith.

14   {15}   IT IS SO ORDERED.

15                                                  ________________________________
16                                                  TIMOTHY L. GARCIA, Judge

17 WE CONCUR:


18 _______________________________
19 LINDA M. VANZI, Chief Judge



                                                9
1 _______________________________
2 STEPHEN G. FRENCH, Judge




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