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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. 34,540

 5 OMAR ALANAZI,

 6          Defendant-Appellant,

 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
 8 Fernando R. Macias, District Judge

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

11 for Appellee

12 Jorge A. Alvarado, Chief Public Defender
13 Kimberly Chavez Cook, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 ZAMORA, Judge.

18   {1}    Defendant appeals his convictions for two counts of assault, with a firearm

19 enhancement on each count. We issued a notice of proposed disposition proposing to

20 affirm, and Defendant has responded with a memorandum in opposition. Having
 1 carefully considered the arguments raised in the memorandum in opposition, we

 2 continue to believe that affirmance is appropriate. Therefore, for the reasons stated

 3 below and in our notice of proposed disposition, we affirm.

 4   {2}   The only issue raised and argued in Defendant’s docketing statement concerned

 5 the enhancement of the two counts of assault based on his use of a firearm during each

 6 offense. Defendant challenged the fact that the issue of firearm enhancements did not

 7 arise until after the jury was sworn, when the State moved to amend the indictment.

 8 Defendant contended that the amendment should not have been allowed. As we

 9 pointed out in the notice of proposed disposition, however, it was not necessary for

10 the State to amend the indictment in order to have the enhancements considered by the

11 jury. Instead, it was sufficient if Defendant had been adequately put on notice of the

12 State’s allegation that the charged offenses were committed with the use of a firearm.

13 See State v. Badoni, 2003-NMCA-009, ¶¶ 10-19, 133 N.M. 257, 62 P.3d 348.

14   {3}   In our notice we proposed to determine that such adequate notice was present

15 here, where the indictment alleged that Defendant “did assault or strike at [the victim]

16 with a .40 caliber handgun.” Defendant’s memorandum in opposition does not

17 challenge this proposed determination. Instead, Defendant argues in effect that Badoni

18 was wrongly decided, because it failed to account for the fact that the firearm-

19 enhancement provision is contained in a separate statute, imposes a mandatory one-



                                              2
 1 year enhancement of a sentence, and therefore constitutes a separate statutory offense

 2 that must be indicted by the grand jury. [MIO 6] He also contends that Badoni “fails

 3 to account for the constitutional notice concerns at issue.” [MIO 7]

 4   {4}   We do not agree with the assertion that Badoni should be overruled. Contrary

 5 to Defendant’s assertion, the analysis in Badoni is predicated on the fact that notice

 6 concerns are met where a defendant has actual notice that he is being accused of using

 7 a firearm to commit a crime; Badoni simply holds that where such actual notice is

 8 present, there is no need to formally indict a defendant before imposing the firearm

 9 enhancement. See Badoni, 2003-NMCA-009 at ¶¶ 17-19. We are therefore not

10 convinced that Badoni was wrongly decided. Since Defendant had ample notice in this

11 case that he was charged with using a firearm to commit the assaults in question, his

12 firearm enhancements were imposed in conformance with the law and will be

13 affirmed.

14   {5}   Based on the foregoing discussion and on the analysis set out in the notice of

15 proposed disposition, we affirm.

16   {6}   IT IS SO ORDERED.



17
18                                         M. MONICA ZAMORA, Judge

19 WE CONCUR:

                                              3
1
2 MICHAEL E. VIGIL, Chief Judge


3
4 MICHAEL D. BUSTAMANTE, Judge




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