April 15, 2019- State of New Mexico v. Joshua Pablo Gonzales, No. A-1-CA-37671

OCR transcription for search; preserved printed pages are authoritative

11
12
13
14
15
16
17
18

19

20

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico
STATE OF NEW MEXICO, “U4 8:31 AM
Plaintiff-Appellee, Mak ~
V. No. A-1-CA-37671
JOSHUA PABLO GONZALES,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY

Kea W. Riggs, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Gregory B. Dawkins, Assistant Appellate Defender
Santa Fe, NM

for Appellant

MEMORANDUM OPINION

VANZI, Judge.

{1}

Defendant appeals following his conviction for aggravated assault on a peace

officer. We previously issued a notice of proposed summary disposition in which we

proposed to affirm. Defendant has filed a memorandum in opposition. After due

10

11

12

13

14

15

16

17

18

19

consideration, we remain unpersuaded by Defendant’s assertion of error. We
therefore affirm.

23, Defendant has challenged the sufficiency of the evidence to support the
conviction. In his docketing statement Defendant focused specifically and exclusively
upon the sufficiency of the evidence to establish criminal intent. [DS 7] His
memorandum in opposition abandons that argument, shifting the focus to the
reasonableness of the officer’s fear of imminent battery; we limit the scope of
discussion accordingly. See generally State v. Dawson, 1999-NMCA-072, { 13, 127
N.M. 472, 983 P.2d 421(“We limit ourselves to those elements that Defendant claims
to have been insufficiently proved.”); State v. Billy M., 1987-NMCA-080, § 2, 106
N.M. 123, 739 P.2d 992 (“[An] issue, listed in the docketing statement but not
addressed in the memorandum in opposition, is deemed abandoned.”).

{3} In the calendar notice we observed that the State called two police officers,
who testified that they responded to a call relating to a disturbance. [CN 3; RP 364]
At the scene one of the officers encountered Defendant, standing in the driveway
holding one or more knives. [CN 3; RP 365-66] Defendant advanced in a threatening
manner, effectively preventing the officer from getting out of the patrol vehicle and
putting the officer in fear of imminent attack. [CN 3; RP 365-66, 369] It appears that

the officer repeatedly yelled at Defendant to drop the knife or knives. [CN 3; RP 370]

10

11

12

13

14

15

16

17

18

19

Ultimately, the knife or knives ended up on the roof, and Defendant was detained.
[RP 365, 370]

{43 In his memorandum in opposition Defendant does not dispute the foregoing
recitation. [MIO 3] However, he adds that Defendant’s girlfriend was also present,
and she ran to the far side of the patrol vehicle when the officer arrived on the scene.
[MIO 3] Defendant then ran toward the vehicle, screaming “Kill me! Kill me!” [MIO
3-4] The officer remained in the vehicle, with the doors locked and the windows up,
and ordered Defendant to move away from the vehicle. [MIO 4] Defendant then threw
the knife (or knives) onto the roof, at which point the officer got out of his vehicle
and made the arrest. [MIO 4]

{5} The additional evidence does not alter our assessment. As we observed in the
notice of proposed summary disposition, [CN 5-6] the evidence of Defendant’s
threatening advance upon the officer’s patrol unit while holding one or more knives,
together with the officer’s testimony of his own subjective perception of a threat, was
sufficient to support the conviction. See, e.g., State v. Diaz, 1995-NMCA-137, 4 3-
7, 16-23, 121 N.M. 28, 908 P.2d 258 (indicating that where officers responded to a
reported disturbance, they observed the defendant holding a knife and yelling, the
defendant disobeyed repeated commands to drop the knife, and the defendant

ultimately made a move toward the officers, the evidence was sufficient to support

10

Il

12

13

14

15

16

17

18

19

a conviction for aggravated assault on a peace officer). Although Defendant suggests
that the officer’s testimony was not truthful, [MIO 6] we cannot second-guess the
jury’s credibility determination. See generally State v. Garcia, 201 1-NMSC-003, $5,
149 N.M. 185, 246 P.3d 1057 (explaining that our appellate courts “will not invade
the jury’s province as fact-finder by second-guessing the jury’s decision concerning
the credibility of witnesses” (alterations, internal quotation marks, and citation
omitted)). And although Defendant contends that his conduct did not present a
genuine threat, [MIO 6-8] the jury was at liberty to conclude that Defendant’s conduct
was sufficiently menacing to support a reasonable apprehension on the part of the
officer, particularly given that the officer had no way of knowing whether Defendant
had access to additional weapons, or what Defendant might do once the officer
opened his door. See Diaz, 1995-NMCA-137, 9§ 16-23 (indicating that questions
whether the defendant actively threatened or menaced officers with a knife, whether
the officers had reason to fear the defendant, and whether the defendant did or did not
pose a threat to the officers were jury questions). See generally State v. Slade,
2014-NMCA-088, ¥ 13, 331 P.3d 930 (noting that “the weight and effect of the
evidence, including all reasonable inferences to be drawn from both the direct and
circumstantial evidence is a matter reserved for determination by the [jury]” and

recognizing that this Court should not substitute its judgment for that of the jury

1} (internal quotation marks and citation omitted)). We therefore reject Defendant’s
2||challenge to the sufficiency of the evidence.

3{6} Accordingly, for the reasons stated in the notice of proposed summary
4\ disposition and above, we affirm.

Si} = =ITISSO ORDERED.

ON

7 LINDA M. ANZL, Judge —

8|| WE CONCUR:

Hike

10|M. MONICA ZAMORA, Chief Judge

1 Gu. G Cf Magaa

12|| JULIE J. VARGAS, Judge