March 31, 2020- State of New Mexico v. Alexander Alirez, No. A-1-CA-37387

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellant,	3
v. 	No. A-1-CA-37387	4
ALEXANDER ALIREZ,	5
Defendant-Appellee.	6
APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY	7
Albert J. Mitchell, Jr., District Judge	8
Hector H. Balderas, Attorney General	9
Maha Khoury, Assistant Attorney General	10
Santa Fe, NM	11
for Appellant	12
Bennett J. Baur, Chief Public Defender	13
Santa Fe, NM	14
Steven J. Forsberg, Assistant Appellate Defender	15
Albuquerque, NM	16
for Appellee	17
MEMORANDUM OPINION	18
IVES, Judge.	19
{1} 	The State appeals from the district court’s decision to dismiss Defendant	20
Alexander Alirez’s charge of extreme cruelty to animals in violation of NMSA 1978,	21
Section 30-18-1(E)-(F) (2007), and four charges of cruelty to animals in violation of	22
Court of Appeals of New Mexico
Filed 3/31/2020 8:56 AM

2
Section 30-18-1(B), (D), on double jeopardy grounds. The State argues that double	1
jeopardy does not preclude criminal prosecution for cruelty to animals where an	2
animal owner’s animals are seized and subsequently relinquished to the State	3
pursuant to NMSA 1978, Section 30-18-1.2 (2009), because of a defendant’s failure	4
to post security. We reverse the district court and remand for additional proceedings.	5
BACKGROUND	6
{2} 	On September 2, 2015, pursuant to a search warrant, five dogs were seized	7
from 302-A Union Street in Las Vegas, New Mexico—an address associated with	8
Defendant—based on a finding of probable cause that the dogs were suffering from	9
extreme malnourishment caused by “cruel treatment.” NMSA 1978, § 30-18-1.1(A),	10
(B) (1999). One of the dogs, “Hubble,” was admitted to the Petroglyph Animal	11
Hospital on September 3, 2015, and was ultimately euthanized. The other four dogs	12
were housed with the Animal Welfare Coalition Pet Center (AWC). On November	13
11, 2015, an additional dog, “Vanderbilt,” was seized at 415 Blanchard Street, Las	14
Vegas, New Mexico—another address associated with Defendant—and housed with	15
AWC.	16
{3} 	Around the time that Hubble was euthanized, the State filed a criminal	17
complaint that included one count of extreme cruelty to animals in violation of	18
Section 30-18-1(E) and four counts of cruelty to animals in violation of Section 30-	19
18-1(B). The State did not file any criminal charges related to Vanderbilt at that time	20

3
or thereafter. The charges were dismissed without prejudice due to a mistrial on	1
October 3, 2016, and refiled by the State on October 31.	2
{4} 	On March 14, 2016, AWC filed a civil action in magistrate court for	3
indemnification of the costs associated with caring for and housing five dogs	4
(Hubble was not included) or for surrender of the dogs. The total cost of feeding,	5
caring for, and housing the animals from the date each of the dogs arrived at AWC	6
until the hearing on March 28, 2016, was $14,660. Defendant was not present at the	7
hearing before the magistrate court, and the court issued a default judgment on April	8
1, 2016. The magistrate court ordered Defendant to pay a $10,000 security for the	9
costs associated with feeding, caring for, and housing the dogs.1 Defendant did not	10
pay the security within fifteen days, as required by the statute, and the animals were	11
deemed relinquished to the State. See § 30-18-1.2(E).	12
{5} 	Based on the security, involuntary relinquishment of his dogs, and the default	13
judgment from the magistrate court, Defendant filed a motion to dismiss the criminal	14
case on double jeopardy grounds. The district court granted Defendant’s motion.	15
The State filed a timely motion to reconsider, which included exhibits indicating that	16
the amount of the security was associated with the cost of housing the animals. The	17
1The State characterizes the $10,000 award by the magistrate court as limited
by 	jurisdictional 	requirements 	in 	NMSA 	1978, 	Section 	35-3-3(A) 	(2001)
(“Magistrate[ courts] have jurisdiction in civil actions in which the debt or sum
claimed does not exceed ten thousand dollars ($10,000), exclusive of interest and
costs.”).

4
district court held a hearing and ultimately denied the motion to reconsider. The State	1
timely appealed.	2
DISCUSSION	3
{6} 	The issue on appeal is whether the requirement in Section 30-18-1.2(E) that a	4
person charged with cruelty to animals either post a security to indemnify the animal	5
shelter for the care of the animals, or lose the animals by involuntary relinquishment,	6
is a punitive forfeiture under double jeopardy principles.	7
{7} 	We review double jeopardy claims de novo. State v. Swick, 2012-NMSC-018,	8
¶ 10, 279 P.3d 747. The Double Jeopardy Clause “protects against three distinct	9
abuses: a second prosecution for the same offense after acquittal; a second	10
prosecution for the same offense after conviction; and multiple punishments for the	11
same offense.” State ex rel. Schwartz v. Kennedy, 1995-NMSC-069, ¶ 14, 120 N.M.	12
619, 904 P.2d 1044 (internal quotation marks and citation omitted). In this case, we	13
are concerned with multiple punishments for the same offense. “The Double	14
Jeopardy Clause not only protects against the imposition of two punishments for the	15
same offense, but also protects criminal defendants against being twice placed in	16
jeopardy for such punishment.” Id.	17
{8} 	In New Mexico, we use a three-factor test, articulated in Schwartz, to	18
determine whether a forfeiture places a defendant in double jeopardy: “(1) whether	19
the [s]tate subjected the defendant to separate proceedings; (2) whether the conduct	20

5
precipitating the separate proceedings consisted of one offense or two offenses; and	1
(3) whether the penalties in each of the proceedings may be considered ‘punishment’	2
for the purposes of the Double Jeopardy Clause.” Id. ¶ 15.	3
{9} 	The parties do not contest the first two factors, focusing instead on the third	4
factor in their briefing. It is clear that Defendant was subjected to two separate	5
proceedings. See id. ¶ 16 (“The [United States] Supreme Court has made clear that	6
parallel actions, instituted at about the same time and involving the same criminal	7
conduct, constitute separate proceedings for double jeopardy purposes.” (internal	8
quotation marks and citation omitted)). We assume without deciding that “the same	9
conduct precipitated the separate proceedings and forms the basis” for both the	10
relinquishment of the dogs and the criminal charges against Defendant. State v.	11
Kirby, 2003-NMCA-074, ¶ 21, 133 N.M. 782, 70 P.3d 772. Thus, we move on to	12
the third factor: whether the relinquishment of Defendant’s dogs was remedial or	13
punitive in nature. See Schwartz, 1995-NMSC-069, ¶ 22 (“The Double Jeopardy	14
Clause bars multiple punishments for the same offense in separate proceedings.”).	15
The Security and Involuntary Relinquishment of Defendant’s Dogs Imposed	16
Under Section 30-18-1.2(E) Do Not Constitute Punishment Under the Double	17
Jeopardy Clause	18
{10} 	The Legislature “may impose both a criminal and a civil sanction in respect	19
to the same act or omission without violating the Double Jeopardy Clause.”	20
Schwartz, 1995-NMSC-069, ¶ 23 (internal quotation marks and citation omitted). If	21

6
the sanction “may be fairly characterized only as a deterrent or as retribution, then	1
the revocation is punishment; if the penalty may fairly be characterized as remedial,	2
then it is not punishment for the purposes of double jeopardy analysis.” Id. ¶ 28.	3
To determine whether a sanction is remedial or punitive, a reviewing	4
court begins by evaluating the government’s purpose in enacting the	5
legislation, rather than evaluating the effect of the sanction on the	6
defendant. Then the court must determine whether the sanction . . . was	7
sufficiently punitive in its effect that, on balance, the punitive effects	8
outweigh the remedial effect. Although a civil penalty may cause a	9
degree of punishment for the defendant, such a subjective effect cannot	10
override the legislation’s primarily remedial purpose.	11
City of Albuquerque v. One 1984 (1) White Chevy Ut., 2002-NMSC-014, ¶ 11, 132	12
N.M. 187, 46 P.3d 94 (internal quotation marks and citations omitted).	13
{11} 	The 	purpose 	of 	the 	security 	and 	relinquishment 	provisions 	is 	plainly	14
remedial. 2 Before a defendant may be ordered to post security for an animal under	15
2The district court, after noting that Defendant had been found to be indigent,
believed that there was “no reasonable rationale for [requiring] a $10,000 [security]
to be posted for the care of an animal” and therefore concluded that the security was
punitive. Although the amount of security is indeed substantial, see generally § 30-
18-1.2(D) (providing that a district court must consider “all of the circumstances of
the case[,] including the owner’s ability to pay,” in determining the amount of
security), we do not agree with the district court’s conclusion that the amount
imposed is determinative of whether the relinquishment of Defendant’s dogs was a
remedial or punitive sanction. Cf. White Chevy, 2002-NMSC-014, ¶ 11 (“Although
a civil penalty may cause a degree of punishment for the defendant, such a subjective
effect cannot override the legislation’s primarily remedial purpose.”). Because this
appeal involves only the double jeopardy implications of the statutory scheme
chosen by our Legislature to govern the seizure, care, and disposition of cruelly
treated animals, our opinion does not address the propriety of the proceedings in
Defendant’s civil case.

7
the cruelty to animals statutes, a court must find that there is “probable cause that	1
the animal is being cruelly treated” and issue a warrant for the seizure of the animal.	2
Section 30-18-1.1(B). Between the time of seizure and the resolution of criminal	3
charges brought against the animal’s owner, a seized animal remains under the care	4
of an animal care organization in a kind of “protective custody” in which the animal	5
receives necessary “rehabilitation and maintenance” while protected from any	6
potential further abuse. Fiscal Impact Report, S.B. 127, Custody & Care of	7
Mistreated Animals, 49th Leg., 1st. Sess. (N.M. 2009), at 3, available at	8
https://nmlegis.gov/Sessions/09%20Regular/firs/SB0127.pdf; 	see 	§ 30-18-1.2(C)	9
(providing that an animal care organization with custody of a cruelly treated animal	10
may petition the court for indemnification of “costs incurred to care and provide for	11
the seized animal pending the disposition of any criminal charges”). The security	12
provisions are intended to ensure that the animal care organization has recourse to	13
avoid shouldering the full financial burden of providing housing, sustenance, and	14
medical care—which, as this case demonstrates, “can reach into the tens of	15
thousands of dollars,” Fiscal Impact Report, supra, at 3—to the animal during this	16
period, subject to the qualification that a court must take the defendant’s ability to	17
pay these costs into consideration in setting the security amount. Cf. State ex rel. Foy	18
v. Austin Capital Mgmt., Ltd., 2015-NMSC-025, ¶ 46, 355 P.3d 1 (“[A] monetary	19
sanction has a deterrent or retributive purpose if it is not designed to compensate the	20

8
government for its losses.” (internal quotation marks and citation omitted)). And,	1
because a defendant becomes liable for the full cost of this care upon conviction for	2
cruelty to animals, NMSA 1978, § 30-18-1.3(A) (2009), the security provides the	3
animal care organization some assurance that a portion of this cost will be	4
recoverable in that event.	5
{12} 	The relinquishment provision under which Defendant was deprived of his	6
ownership interest in the dogs serves a similarly remedial purpose. Under Section	7
30-18-1.2(E), “[i]f the owner of [a seized] animal does not post security within	8
fifteen days after the issuance of the [security] order . . .[,] the animal may be deemed	9
abandoned and relinquished to the animal control agency, animal shelter or animal	10
welfare organization for adoption or humane destruction[.]” When an animal owner	11
declines or is unable to post the security ordered by the district court, the full cost of	12
caring for seized animals is borne by the animal care organization during the	13
pendency of criminal proceedings. Beyond this direct cost, caring for seized animals	14
burdens animal care organizations by decreasing their ability to provide services to	15
other animals in need of care. See Fiscal Impact Report, supra, at 3 (“Seized animals	16
that are in protective custody are occupying precious shelter kennel space for months	17
and sometimes years at a time. These animals reduce the space available to house	18
homeless animals in local animal shelters[.]”). And the experience of confinement	19
in an animal care facility also exacts a significant toll on the seized animals	20

9
themselves. See id. (“Long-term holding times for animals in shelters can result in	1
mental and physical suffering for the animals, who have limited access to exercise	2
and interaction.”). The relinquishment provision is aimed at remedying these effects:	3
when invoked, it frees animal care facilities to begin the search for appropriate	4
placement for cruelly treated animals or, if necessary, to euthanize an animal that is	5
beyond rehabilitation.	6
{13} 	Although 	their 	purposes 	are 	remedial, 	the 	security 	and 	relinquishment	7
provisions would nonetheless impose punishment if they were “sufficiently punitive	8
in [their] effect that, on balance, the punitive effects outweigh the remedial effect.”	9
White 	Chevy, 	2002-NMSC-014, 	¶ 	11. 	To 	determine 	whether 	a 	sanction 	is	10
functionally punitive we examine:	11
(1) whether the sanction involves an affirmative disability or restraint;	12
(2) whether it has historically been regarded as a punishment; (3)	13
whether it comes into play only on a finding of scienter; (4) whether its	14
operation will promote the traditional aims of punishment-retribution	15
and deterrence; (5) whether the behavior to which it applies is already	16
a crime; (6) whether an alternative purpose to which it may rationally	17
be connected is assignable for it; and (7) whether it appears excessive	18
in relation to the alternative purpose assigned.	19
Kirby, 2003-NMCA-074, ¶ 28 (alteration, internal quotation marks, and citation	20
omitted). “While these factors may provide useful guideposts, they are neither	21
exhaustive nor dispositive[.]” Austin Capital Mgmt., Ltd., 2015-NMSC-025, ¶ 34	22
(internal quotation marks and citations omitted). Under this framework, we conclude	23
that the sanction is not functionally punitive.	24

10
{14} 	First, neither the security nor the involuntary relinquishment of Defendant’s	1
dogs imposed an “affirmative disability or restraint.” Kirby, 2003-NMCA-074, ¶ 30	2
(internal quotation marks and citation omitted). The involuntary relinquishment does	3
not “carry the stigma of a criminal conviction,” id., and imposes no restrictions on	4
Defendant’s future conduct whatsoever, except to the extent his conduct will be	5
affected by the extinguishment of his ownership interest in the relinquished dogs.	6
Cf. State v. Block, 2011-NMCA-101, ¶ 38, 150 N.M. 598, 263 P.3d 940 (holding	7
that a civil penalty of $10,000 per violation under the New Mexico Voter Action	8
Act, NMSA 1978, §§ 1-19A-1 to -17 (2003, as amended through 2019), does not	9
constitute an affirmative disability or restraint because the penalty does not bar a	10
fined “candidate’s ability to run for public office, . . . bar a fined candidate from	11
continuing his or her current campaign[,] or from running for public office in the	12
future”). Even granting that the relinquishment of Defendant’s dogs operates as a	13
forfeiture, recognized as a severe penalty under New Mexico law, see State v. Nunez,	14
2000-NMSC-013, ¶ 75, 129 N.M. 63, 2 P.3d 264, the present loss of Defendant’s	15
animals does not “approach[] the infamous punishment of imprisonment[,]” which	16
would definitively impose an affirmative disability or restraint. Hudson v. United	17
States, 522 U.S. 93, 104 (1997) (internal quotation marks and citation omitted).	18
{15} 	Second, we assume without deciding that the relinquishment of an animal	19
resulting from the failure to post a monetary security has traditionally been	20

11
considered a form of punishment in New Mexico. Cf. Nunez, 2000-NMSC-013, ¶ 74	1
(observing that the “quasi criminal” characterization of civil forfeitures “has become	2
a fixture of [New Mexico’s] jurisprudence”); but cf. Kirby, 2003-NMCA-074, ¶ 31	3
(“[M]onetary assessments are traditionally a form of civil remedy.” (internal	4
quotation marks and citation omitted)).	5
{16} 	With regard to the third factor, we assume without deciding that a finding of	6
scienter is necessary for the court to require the posting of security, and thus is a	7
prerequisite for the deemed relinquishment of an animal. See § 30-18-1.1(B)	8
(providing that a court may issue a warrant for seizure of an animal only upon a	9
finding of “probable cause that the animal is being cruelly treated”).	10
{17} 	Fourth, although the security and relinquishment might have deterrent and	11
punitive effects, those effects are incidental to and outweighed by the remedial	12
purposes served by the pertinent provisions. Cf. Kirby, 2003-NMCA-074, ¶ 34	13
(finding that “while the civil penalty [in the Securities Act] may by its nature have	14
effects of deterrence and punishment, those effects are incidental to and do not	15
override the Act’s and the civil penalty’s primarily remedial purpose”). The	16
provisions enable animal care organizations to obtain financial assistance for the	17
care of cruelly treated animals while the animals are in their protective custody;	18
enable courts to permit these organizations to immediately place an animal in an	19
adequate living situation when the animal’s owner elects not to contribute to the	20

12
animal’s upkeep; and ensure that the government does not shoulder the costs of care	1
if the defendant’s conduct is ultimately found to be criminal.	2
{18} 	Fifth, in this case, the same conduct formed the basis for the relinquishment	3
and Defendant’s criminal charges. See id. ¶ 35. Although the impetus for the deemed	4
relinquishment of Defendant’s dogs was Defendant’s failure to post security, the	5
conduct underlying the order requiring security and Defendant’s criminal charges is	6
the same: Defendant’s alleged criminally cruel treatment of the dogs.	7
{19} 	Sixth, “there exists an alternative, remedial[] purpose to which the [security	8
and relinquishment] may rationally be connected.” Id. ¶ 36. The purpose of the	9
security, as we have explained, is to indemnify the animal shelter for housing	10
Defendant’s animals. The purpose of the deemed relinquishment is to enable the	11
relevant animal care organization to avoid bearing the full cost of care during the	12
pendency of criminal proceedings by immediately seeking placement for an animal	13
when its owner declines or is unable to contribute to its care—which, at that point,	14
is care for the owner’s own property.	15
{20} 	Finally, we do not find that the imposition of the security and involuntary	16
relinquishment are excessive in relation to the remedial purposes of the animal	17
cruelty statutes. The amount of security contemplated by the statute is not “out of	18
proportion or excessive,” id. ¶ 37; it is to be based on “the costs incurred to care and	19
provide for [a] seized animal,” § 30-18-1.2(D), a requirement followed here since	20

13
the security in Defendant’s civil case was based on the cost of housing and caring	1
for the dogs during the time period in question. And, even granting that a deemed	2
relinquishment 	constitutes 	a 	forfeiture—“the 	most 	extreme 	[property-based]	3
sanction the state can bring against [a] property owner[,]” Nunez, 2000-NMSC-013,	4
¶ 75—this punitive effect is not excessive in relation to the remedial purpose for	5
which the relinquishment provision was enacted: encouraging animal owners to	6
contribute to their own property’s care while criminal charges are pending and	7
alleviating 	the 	burdens, 	financial 	and 	otherwise, 	incurred 	by 	animal 	care	8
organizations in caring for seized animals.	9
{21} 	Weighing all of the factors in accordance with governing precedent, we	10
conclude that the remedial aspects of the security and involuntary relinquishment	11
significantly outweigh the punitive effects. Cf. White Chevy, 2002-NMSC-014, ¶ 11	12
(requiring courts to “determine whether the sanction established by the legislation	13
was sufficiently punitive in its effect that, on balance, the punitive effects outweigh	14
the remedial effect” and stating that “[a]lthough a civil penalty may cause a degree	15
of punishment for the defendant, such a subjective effect cannot override the	16
legislation’s primarily remedial purpose”).	17
The Legislature Did Not Intend to Only Allow Criminal Prosecution of People	18
Who Voluntarily Relinquish Their Animals	19
{22} 	Defendant also argues that Section 30-18-1.2 indicates that the Legislature	20
intended to allow for criminal prosecutions only of people who voluntarily relinquish	21

14
their animals, see § 30-18-1.2(F), and intended to prohibit prosecution of people who	1
involuntarily relinquish their animals, see § 30-18-1.2(E). We disagree with this	2
interpretation of Section 30-18-1.2(E) because it would lead to absurd and unjust	3
results. See State v. Salazar, 2018-NMCA-030, ¶ 32, 458 P.3d 485 (stating that we	4
will “giv[e] effect to the plain meaning of the words of the statute, unless this leads	5
to an absurd or unreasonable result” (alteration, internal quotation marks, and	6
citation omitted)). Defendant’s proposed holding would allow people to escape	7
prosecution for cruelty to animals, including extreme cruelty to animals, by not	8
posting the security, thereby triggering involuntary relinquishment. This would	9
undermine the purpose of the statute, which is to protect animals from abuse and	10
impose criminal liability on those who abuse them. See State v. Ordunez, 2010-	11
NMCA-095, ¶ 5, 148 N.M. 620, 241 P.3d 621 (“We read statutes harmoniously with	12
each other whenever possible, and we interpret statutes to facilitate and promote the	13
Legislature’s accomplishment of its purpose.” (alteration, internal quotation marks,	14
and citations omitted)), aff’d in part, disapproved in part, 2012-NMSC-024, 283	15
P.3d 282. We will not construe the statute in a manner that delegates to the very	16
person who stands accused of a crime the authority to determine whether he or she	17
may be prosecuted.	18
{23} 	Defendant’s interpretation is also untenable because Section 30-18-1.3(A)	19
contemplates indemnification of the animal care facility upon a conviction for	20

15
cruelty to animals, while Section 30-18-1.3(B) states that, in the absence of a	1
conviction, the animals—“if not previously relinquished”—and security will be	2
returned to the owner. Section 30-18-1.3(A) states that “[u]nexpended security funds	3
shall be returned to the defendant” upon conviction, which indicates that the	4
Legislature anticipated that a person whose animals were involuntarily relinquished	5
could be convicted of animal cruelty.	6
{24} 	For these reasons, we conclude that double jeopardy does not preclude	7
criminal prosecution for Defendant’s extreme and misdemeanor cruelty to animals	8
charges.	9
CONCLUSION	10
{25} 	We reverse the order of dismissal and remand for further proceedings	11
consistent with this opinion.	12
{26} 	IT IS SO ORDERED.	13
_________________________________	14
ZACHARY A. IVES, Judge	15
WE CONCUR:	16
_________________________________	17
J. MILES HANISEE, Chief Judge	18
_________________________________	19
MEGAN P. DUFFY, Judge	20