 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                           NO. 28,894

10 JUAN VENEGAS,

11          Defendant-Appellant.


12 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
13 Thomas Rutledge, District Judge


14   Gary K. King, Attorney General
15   Santa Fe, NM
16   Ralph E. Trujillo, Assistant Attorney General
17   Albuquerque, NM

18 for Appellee

19 Hugh W. Dangler, Chief Public Defender
20 Nancy M. Hewitt, Assistant Appellant Defender
21 Santa Fe, NM

22 for Appellant


23                                 MEMORANDUM OPINION

24 ROBLES, Judge.
 1        Defendant appeals an order revoking his probation and imposing the remainder

 2 of his prison sentence. The issue raised by Defendant has two parts. First, he

 3 contends that the district court erred in revoking his probation because of his stated

 4 intention not to comply with probation department requirements relating to a prior sex

 5 offense. Second, he contends that the probation department had no authority to

 6 mandate such requirements in this case. We affirm.

 7 I.     BACKGROUND

 8        Defendant was convicted in 2002 of six counts of forgery. Prior to sentencing,

 9 the State filed a supplemental information, indicating that Defendant had eight prior

10 felony convictions. One of those prior convictions was for criminal sexual penetration

11 in the fourth degree. The district court suspended the sentence for the forgery

12 convictions with the exception of one day, and Defendant was placed on supervised

13 probation for the remainder of the sentence followed by two years on parole.

14 Defendant was given an eight-year enhancement on the basis of the supplemental

15 information. Defendant was released from prison and began serving his probation in

16 April of 2006.

17        A year later, the State moved to revoke Defendant’s probation based on a

18 number of violations of the conditions of his probation. At a hearing on the motion

19 to revoke, Defendant admitted to the violations. The district court accepted the

                                             2
 1 admission and continued the hearing for sentencing. At the sentencing hearing, the

 2 parole and probation officer recommended against placing Defendant on probation

 3 again. In so doing, she stated that because Defendant had a prior sex offense, it was

 4 the department’s policy to require him to comply with monitoring by ankle bracelet

 5 and other reporting. Defendant had indicated to the officer that he was not going to

 6 comply with such requirements. Thus, she stated she could not recommend placing

 7 him on probation again as she would be setting him up for failure because he would

 8 not comply with the bracelet and reporting requirements.

 9        Defendant was strongly opposed to the conditions as he argued that he is not

10 a sex offender. He contended that the crime was committed when he was eighteen,

11 and his girlfriend was fifteen. He stated the he had been given probation and was told

12 by the judge that the charges would be dismissed if he complied with probation. He

13 argued that he was not a sexual predator and should not have to comply with sex

14 offender registration requirements.

15        At the conclusion of the hearing, the district court asked if Defendant wanted

16 a continuance to resolve the issue with the prior sex offense. The State requested the

17 continuance, and Defendant agreed to it. The sentencing hearing was continued.

18        At the continuation of the sentencing hearing, there was no discussion regarding

19 resolution of the prior sex offense.      Again, the parole and probation officer



                                              3
 1 recommended against Defendant remaining on probation as he was not willing to

 2 comply with requirements of the department. She stated that if he would agree to

 3 those requirements, she would recommend that he remain on probation. Defendant

 4 again stated that he would not go on the monitor, that he was not a sex offender, and

 5 he simply would not do it.

 6        The district court revoked Defendant’s probation and remanded him to serve

 7 the remainder of his sentence. On the record, the district court stated that it was

 8 specifically finding that one of the violations was Defendant’s stated refusal to follow

 9 any requirements established by the probation department for monitoring past sex

10 offenders. The district court stated that it was not going to place Defendant on

11 probation if he was going to violate in a week because of his failure to comply with

12 department requirements. Defendant appeals.

13 II.    DISCUSSION

14        Standard of Review

15        We review a district court’s probation revocation decision under an abuse of

16 discretion standard. State v. Martinez, 108 N.M. 604, 606, 775 P.2d 1321, 1323 (Ct.

17 App. 1989). “To establish an abuse of discretion, it must appear the [district] court

18 acted unfairly or arbitrarily, or committed manifest error.” Id.

19        A.     Propriety of Revocation



                                              4
 1        Once a violation of probation is established, the district court “may continue the

 2 original probation, revoke the probation[,] and either order a new probation with any

 3 condition provided for in [NMSA 1978, Sections 31-20-5 or 31-20-6], or require the

 4 probationer to serve the balance of the sentence imposed or any lesser sentence.”

 5 NMSA 1978, § 31-21-15(B) (1989). Here, the probation officer recommended

 6 revoking the probation because Defendant had indicated that he would not comply

 7 with additional requirements that the probation department intended to impose. The

 8 district court determined that returning Defendant to probation under such

 9 circumstances would not make any sense.

10        We conclude that the district court did not abuse its discretion in determining

11 that the appropriate result under the circumstances here was to require Defendant to

12 serve the remainder of his sentence. “Probation assumes . . . that the offender can be

13 rehabilitated without serving the suspended jail sentence.” State v. Lopez, 2007-

14 NMSC-011, ¶ 7, 141 N.M. 293, 154 P.3d 668 (internal quotation marks and citation

15 omitted). Here, Defendant insisted and specifically stated on the record that he was

16 not going to comply with the probation department’s conditions relating to prior sex

17 offenders. Under those circumstances, the district court could reasonably decide that

18 returning Defendant to any probation would be pointless.




                                              5
 1        Our cases universally state that the district court has broad discretion to ensure

 2 that the goals of rehabilitation are being achieved. Id. ¶ 12. This includes monitoring

 3 and revoking probation where a defendant shows that he is not willing or able to be

 4 rehabilitated. It can occur any time prior to the expiration of the sentence. Thus,

 5 under circumstances such as those here where Defendant has indicated his

 6 unwillingness to comply with probation conditions, the district court was within its

 7 discretion to revoke probation and order Defendant to serve the remainder of his

 8 sentence in jail.

 9        B.     Authority to Mandate Conditions

10        Defendant argues that the decision was an abuse of discretion because the

11 probation department had no authority to require him to comply with additional

12 conditions as a prior sex offender. On appeal, Defendant argues that the department

13 could not include those conditions as they related to sex offenders, and he was on

14 probation for forgery offenses. He argues that the department’s conditions had no

15 reasonable relationship to the offense for which Defendant was convicted. See State

16 v. Williams, 2006-NMCA-092, ¶ 3, 140 N.M. 194, 141 P.3d 538 (setting out the

17 factors for determining the propriety of terms and conditions of probation). Defendant

18 did not, however, make this argument below. Rather, he argued that he was not a sex

19 offender and should not have to comply with the department’s conditions.



                                              6
 1        We do not believe that the argument made below is sufficient to meet

 2 Defendant’s burden upon a claim that the conditions of probation are an abuse of

 3 discretion. See State v. Baca, 2004-NMCA-049, ¶ 13, 135 N.M. 490, 90 P.3d 509

 4 (stating standard of review for propriety of probation conditions). Our cases have set

 5 out three factors that we must consider in reviewing the propriety of conditions of

 6 probation. Williams, 2006-NMCA-092, ¶ 3. Those factors are that the conditions “(1)

 7 have no reasonable relationship to the offense for which [the] defendant was

 8 convicted, (2) relate to activity which is not itself criminal in nature, and (3) require

 9 or forbid conduct which is not reasonably related to deterring future criminality.” Id.

10 (alteration in original) (internal quotation marks and citation omitted).           It is

11 Defendant’s burden to come forward with evidence sufficient to raise a prima facie

12 showing on his claim that the probation conditions were improper. Baca, 2004-

13 NMCA-049, ¶ 16. Defendant failed to do so here. In fact, there was no evidence

14 presented at the sentencing hearing bearing on the relationship between his

15 convictions and the additional probation conditions relating to monitoring. Therefore,

16 Defendant’s claim must fail for lack of proof.

17        As a result, we conclude that the district court did not abuse its discretion in

18 permitting the department to require conditions relating to Defendant’s prior sex

19 offense. See id.



                                               7
8
1 III.   CONCLUSION

2        For the reasons stated herein, we conclude that the district court did not abuse

3 its discretion in revoking Defendant’s probation and in ordering him to serve the

4 remainder of his sentence in jail.

5        IT IS SO ORDERED.


6                                                ____________________________
7                                                ROBERT E. ROBLES, Judge


8 WE CONCUR:



 9 ______________________________
10 JAMES J. WECHSLER, Judge



11 ______________________________
12 RODERICK T. KENNEDY, Judge




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