 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellant,

 9 v.                                                           NO. 30,152

10 DEBRA VILLALOBOS,

11          Defendant-Appellee,

12 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
13 Sam B. Sanchez, District Judge

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

16 for Appellant

17 C. David Henderson
18 Santa Fe, NM

19 for Appellee


20                                 MEMORANDUM OPINION

21 FRY, Chief Judge.

22          The State appeals from an order dismissing the case against Defendant due to

23 prosecutorial misconduct. In this Court’s notice of proposed summary disposition, we

24 proposed to reverse. Defendant has filed a memorandum in opposition. We have
 1 considered Defendant’s arguments, and as we are not persuaded by them, we now

 2 reverse.

 3        In this Court’s notice of proposed summary disposition, we proposed to hold

 4 that the district court abused its discretion in dismissing the charges against

 5 Defendant. “The dismissal of criminal charges for prosecutorial misconduct is an

 6 extreme sanction that should be reserved for the most severe prosecutorial

 7 transgressions.” State v. Gonzales, 2002-NMCA-071, ¶ 14, 132 N.M. 420, 49 P.3d

 8 681. Generally, a defendant must demonstrate that she has been prejudiced by the

 9 State’s misconduct before a dismissal of the charges is warranted. See, e.g., id. ¶¶ 12-

10 17 (holding that prosecutorial misconduct of failing to disclose the fact that the state

11 had made a deal with a witness in exchange for his testimony and then standing

12 silently when the witness stated under oath that such a deal had not been made did not

13 warrant the extreme sanction of dismissal because the defendant’s trial was not

14 prejudiced by the misconduct).

15        The district court’s order dismissing the case relied on both the State’s improper

16 use of an invalid subpoena and on what the court perceived to be the prosecutor’s

17 inconsistent statements regarding when the State knew that Defendant’s child was

18 under eighteen years of age. [RP 272] However, there was no evidence that

19 Defendant’s right to a fair trial was prejudiced by either the State’s invalid subpoena

20 or by any alleged misrepresentations the State may have made about when it first

21 knew of Defendant’s daughter’s birth date. Neither was there any evidence that

22 nothing short of dismissal would cure any harm to Defendant. Accordingly, we

                                              2
 1 proposed to hold that the district court abused its discretion in dismissing the charges

 2 in this case. See State v. Eder, 103 N.M. 211, 214, 704 P.2d 465, 468 (Ct. App. 1985)

 3 (reversing the dismissal of charges based on the prosecutor’s misconduct of issuing

 4 invalid subpoenas when the defendant failed to demonstrate prejudice). To the degree

 5 that the district court found that the prosecutor had engaged in misconduct, we

 6 proposed to conclude that lesser sanctions should have been imposed. See id. (stating

 7 that where the defendant failed to prove he was prejudiced by the use of the invalid

 8 subpoenas, “[t]he appropriate remedy is ordering the illegally obtained evidence

 9 suppressed, rather than barring the prosecution altogether”).

10        In Defendant’s memorandum in opposition, she does not respond substantively

11 to this Court’s analysis regarding her failure to establish that she was prejudiced by

12 any prosecutorial misconduct. Therefore she has conceded that dismissal was an

13 inappropriate sanction for any general prosecutorial misconduct (as opposed to the

14 more specific misconduct of prosecutorial vindictiveness) that occurred with respect

15 to the invalid subpoena or the misrepresentations of fact. See State v. Johnson, 107

16 N.M. 356, 358, 758 P.2d 306, 308 (Ct. App. 1988) (stating that when a party’s

17 memorandum in opposition fails to respond to our proposed summary disposition of

18 an issue, the party abandons any argument as to that issue).

19        Despite this concession, Defendant argues that affirmance is appropriate.

20 Defendant contends that the basis of the dismissal was not the prosecutorial

21 misconduct of issuing an improper subpoena and making misrepresentations of fact



                                              3
 1 to the district court, but instead prosecutorial vindictiveness. [MIO 1, 5-10] We

 2 decline to affirm on this basis.

 3        A claim of prosecutorial vindictiveness alleges a form of prosecutorial

 4 misconduct that “constitutes a particularly severe, prejudicial, and repugnant due

 5 process violation.” State v. Brule, 1999-NMSC-026, ¶ 5, 127 N.M. 368, 981 P.2d

 6 782. Prosecutorial vindictiveness occurs when a prosecutor does an act “that would

 7 not have occurred but for hostility or punitive animus toward the defendant because

 8 [the defendant] exercised a specific legal right.” Id. ¶ 10 (emphasis omitted) (internal

 9 quotation marks and citation omitted). Although Defendant’s motion to dismiss based

10 on prosecutorial misconduct did employ the term “prosecutorial vindictiveness” twice,

11 the substance of the motion was addressed to Defendant’s claim that the prosecutor

12 improperly made use of an invalid subpoena in an attempt to require Defendant’s

13 daughter to testify. [RP 157-62] The only legal authorities cited in the motion were

14 the Rules of Professional Conduct, and Defendant did not allege that the use of the

15 invalid subpoena was a punitive act by the prosecutor that would not have occurred

16 but for Defendant’s exercise of a specific legal right. [RP 157-62] Defendant’s sole

17 specific argument with regard to prosecutorial vindictiveness asked why the

18 prosecution was pursuing the case with “such vigor.” [RP 160] Nothing in the

19 motion would have put the State on notice that Defendant’s argument with respect to

20 the invalid subpoena—the primary focus of the motion—was in support of a claim of

21 prosecutorial vindictiveness.



                                              4
 1        In its response, the State conceded that the subpoena had no legal validity, but

 2 argued that dismissal based on prosecutorial misconduct was inappropriate because

 3 Defendant could not show that she was prejudiced by the State’s failure to subpoena

 4 her daughter. [RP 171-76] The State also argued that dismissal for prosecutorial

 5 vindictiveness was not warranted by the fact that the State was pursuing a felony

 6 charge against Defendant. [RP 176-78] The district court stated orally that it intended

 7 to grant the motion to dismiss. [RP 216] Prior to the entry of a written order, the

 8 State filed a motion to reconsider, in which it expressed concern that the district

 9 court’s reason for the dismissal may have been based on the State’s decision to charge

10 Defendant with felony child abuse. [RP 227-31] The State argued that the fact that

11 the arresting officer knew that Defendant’s daughter was seventeen at the time of the

12 incident did not demonstrate prosecutorial vindictiveness, since the State is not

13 required to bring the most severe charges as soon as it learns of the factual basis for

14 them. In Defendant’s response to the State’s motion to reconsider, she argued that the

15 issue before the district court was not the fact that the State brought the child abuse

16 charge, but rather the State’s use of improper and invalid procedures to subpoena

17 Defendant’s daughter, and that this was the sole basis for dismissal. [RP 255-60] The

18 district court issued an order dismissing the case for prosecutorial misconduct and an

19 order denying the State’s motion to reconsider. [RP 272-73, 274]

20 Where Defendant’s motion to dismiss made no substantive arguments with respect to

21 prosecutorial vindictiveness, where Defendant expressly denied that her motion was

22 based on the filing of the felony child abuse charge, and where the district court’s

                                              5
 1 order does not use the term prosecutorial vindictiveness, does not state that the

 2 prosecutor did anything as a result of Defendant’s exercise of a specific legal right,

 3 and instead expressly dismisses the case based on the prosecutorial misconduct of

 4 issuing an invalid subpoena and making factual misrepresentations in court, we

 5 decline to affirm under a theory of prosecutorial vindictiveness. To affirm on a basis

 6 not relied on by the district court is inappropriate where the alternative basis requires

 7 factual development. See State v. Wilson, 1998-NMCA-084, ¶ 17, 125 N.M. 390, 962

 8 P.2d 636. It was just such an affirmance that our Supreme Court rejected in a prior

 9 appeal in this case. [RP 119-21 (State v. Villalobos, No. 31,047, slip op. at 11-13

10 (N.M. Sup. Ct. June 25, 2009)]

11        Therefore, for the reasons stated in this opinion and in our notice of proposed

12 summary disposition, we reverse the dismissal of the charges against Defendant based

13 on prosecutorial misconduct.

14        IT IS SO ORDERED.




15
16                                          CYNTHIA A. FRY, Chief Judge




                                               6
1 WE CONCUR:



2
3 JONATHAN B. SUTIN, Judge



4
5 CELIA FOY CASTILLO, Judge




                              7
