April 23, 2020- State of New Mexico v. Joseph J. Gallegos, No. A-1-CA-38238

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-38238	4
JOSEPH J. GALLEGOS,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY	7
Angie K. Schneider, District Judge	8
Hector H. Balderas, Attorney General	9
Maris Veidemanis, Assistant Attorney General	10
Santa Fe, NM	11
for Appellee	12
Bennett J. Baur, Chief Public Defender	13
B. Douglas Wood III, Assistant Appellate Defender	14
Santa Fe, NM	15
for Appellant	16
MEMORANDUM OPINION	17
VANZI, Judge.	18
{1} 	Defendant appeals from his bench trial conviction for aggravated driving	19
while under the influence, following a de novo appeal from magistrate court.	20
Defendant 	asserts 	that 	the 	magistrate 	court 	erred 	in 	finding 	exceptional	21
circumstances to extend the date by which trial had to commence, see Rule 6-	22
Court of Appeals of New Mexico
Filed 4/23/2020 10:33 AM

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506(C)(5) NMRA, and the district court erred in its review of the magistrate court’s	1
determination. 	Defendant 	additionally 	asserts 	that 	defense 	counsel’s 	closing	2
argument was improperly limited, thereby denying Defendant a fair trial. We issued	3
a notice of proposed summary disposition proposing to reverse, in part, and affirm,	4
in part. Defendant filed a memorandum in support of our proposed summary reversal	5
and in opposition of our proposed summary affirmance, which we have duly	6
considered. In response to our proposed disposition, the State filed a notice that it	7
did not intend to file a memorandum in opposition.	8
{2} 	For the reasons outlined in our notice of proposed disposition, and in the	9
absence of opposition from either party, we conclude that the district court	10
improperly engaged in appellate, rather than a de novo, review of the magistrate	11
court’s Rule 6-506(C) extension of time for exceptional circumstances. Accordingly,	12
we reverse and remand for de novo proceedings. See State v. Sharp, 2012-NMCA-	13
042, ¶ 13, 276 P.3d 969 (reversing and remanding for de novo proceeding where the	14
district court improperly engaged in appellate, rather than de novo review of a Rule	15
6-506 appeal).	16
{3} 	In the event the district court on remand denies Defendant’s motion to dismiss	17
for violation of Rule 6-506, Defendant has asserted that the district court denied him	18
a fair trial by limiting defense counsel’s closing argument. Our notice proposed to	19
affirm on the basis that the district court rendered its decision after hearing all the	20

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evidence and that limiting defense counsel’s closing argument during a bench trial	1
did not demonstrate impartiality, particularly where Defendant did not indicate what	2
additional arguments defense counsel intended to assert. [CN 8-10] In response,	3
Defendant’s memorandum in opposition asserts that while trial counsel might not be	4
able to precisely account for what additional arguments he would have made,	5
Defendant maintains that where the district court is unwilling to wait and see what	6
more 	the 	defense 	may 	argue 	before 	convicting 	a 	defendant, 	it 	amounts 	to	7
prejudgment of the case and the defendant. [MIO 3, 4-5] By acknowledging that	8
there were no points of argument defense counsel was precluded from asserting,	9
Defendant has not demonstrated error in the proposed disposition. See Hennessy v.	10
Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have	11
repeatedly held that, in summary calendar cases, the burden is on the party opposing	12
the proposed disposition to clearly point out errors in fact or law.”). Defendant	13
therefore fails to persuade us that this issue should not be affirmed on the grounds	14
stated in our notice of proposed disposition.	15
{4} 	Accordingly, we affirm in part as to Defendant’s claimed denial of his right	16
to a fair trial and we reverse and remand for de novo proceedings in accordance with	17
this opinion.	18

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{5} 	IT IS SO ORDERED.	1
______________________________	2
LINDA M. VANZI, Judge	3
WE CONCUR:	4
_____________________________	5
JENNIFER L. ATTREP, Judge	6
_____________________________	7
MEGAN P. DUFFY, Judge	8