 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
 2   Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
 3   also note that this electronic memorandum opinion may contain computer-generated errors or other
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 5   filing date.

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

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                           NO. 29,965

10 LEROY ARAGON,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Denise Barela Shepherd, District Judge

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

16 for Appellee

17 Sigmund L. Bloom
18 Albuquerque, NM

19 for Appellant

20                                 MEMORANDUM OPINION

21 FRY, Chief Judge.

22          Defendant appeals from the district court’s order affirming the judgment in the

23 on record metropolitan court appeal. This Court’s first notice was filed on January 26,
 1 2010, and proposed summary affirmance.            Defendant filed a memorandum in

 2 opposition to the proposed disposition. We were not persuaded by Defendant’s

 3 arguments and affirm.

 4        This Court proposed to hold that Defendant’s fair trial claim due to

 5 prosecutorial misconduct was preserved, but nevertheless proposed to affirm the

 6 district court’s decision that there was no prosecutorial misconduct. Defendant now

 7 argues that the case should be remanded to the district court for application of the

 8 proper standard of review. Defendant relies on Johnson v. California, 543 U.S. 499

 9 (2005), for the contention that when an improper standard of review is applied, a court

10 should remand for consideration of the claim under the proper standard. However,

11 Johnson is distinguishable because it involved the proper level of constitutional

12 scrutiny, not standard of review, that should be applied to a particular due process

13 claim. Id. at 500.

14        Because this was an appeal from the metropolitan court, the district court

15 reviewed the case in its appellate capacity for legal error. See State v. Trujillo,

16 1999-NMCA-003, ¶ 4, 126 N.M. 603, 973 P.2d 855 (“For on-record appeals the

17 district court acts as a typical appellate court, with the district judge simply reviewing

18 the record of the metropolitan court trial for legal error.”). We apply the same review

19 on appeal, determining whether there was legal error in the district court’s

20 determination. See id. We determine that pursuant to the undisputed facts, the


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 1 prosecutorial misconduct claim was preserved. We further conclude that for the

 2 reasons stated in this Court’s first notice, the prosecutor’s comment did not constitute

 3 prosecutorial misconduct as a matter of law. Because this is a legal determination this

 4 Court can make in its appellate capacity, we need not remand to the district court. See

 5 Duncan v. Kerby, 115 N.M. 344, 347-48, 851 P.2d 466, 469-70 (1993) (stating that

 6 review of questions of law is de novo).

 7        For these reasons, and those stated in the first notice of proposed disposition,

 8 we affirm the district court.

 9        IT IS SO ORDERED.



10
11                                         CYNTHIA A. FRY, Chief Judge

12 WE CONCUR:



13
14 RODERICK T. KENNEDY, Judge


15
16 LINDA M. VANZI, Judge




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