May 14, 2020- State of New Mexico v. Jacob Turrietta, No. A-1-CA-38329

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Odyssey.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. No. A-1-CA-38329
5 JACOB TURRIETTA,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Stan Whitaker, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Bennett J. Baur, Chief Public Defender
13 William A. O’Connell, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 VANZI, Judge.
18 {1} Defendant appeals from the district court’s judgment and sentence, convicting
19 him for three counts of aggravated assault with a deadly weapon (with a firearm
20 enhancement) and one count of simple battery. Unpersuaded by Defendant’s
Court of Appeals of New Mexico
Filed 5/14/2020 9:10 AM

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1 docketing statement, we issued a notice of proposed summary disposition, proposing
2 to affirm. Defendant has responded to our notice with a memorandum in opposition.
3 We remain unpersuaded and affirm.
4 {2} Defendant raises two issues on appeal: (1) he was denied the right to effective
5 assistance of counsel [DS unnumbered 5; MIO 2-4]; and (2) there was insufficient
6 evidence that Defendant used an actual firearm in the incident [DS unnumbered 5;
7 MIO 5-7].
8 {3} Defendant maintains that he was denied effective assistance of counsel when
9 his trial attorney failed to call Defendant’s wife as a defense witness because, he
10 claims, she would have substantiated other witnesses’ testimony that Defendant did
11 not brandish a firearm. [DS unnumbered 5; MIO 2-4] Our notice proposed to affirm
12 on grounds that the record was inadequate to either demonstrate the deficient
13 performance of counsel or to establish prejudice by that performance. See State v.
14 Astorga, 2015-NMSC-007, ¶ 17, 343 P.3d 1245 (setting forth the factors that must
15 be shown on the record to establish a prima facie claim of ineffective assistance of
16 counsel). Defendant’s response to our notice does not demonstrate that the record is
17 adequate to establish ineffective assistance of counsel. Therefore, we direct

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1 Defendant to habeas corpus proceedings so that he may develop the record to
2 establish his claim. See id.
3 {4} Lastly, Defendant contends that the evidence was insufficient to support his use
4 of a firearm because there was no physical evidence that he used a firearm and there
5 was no testimony that the device used could expel a projectile. [DS unnumbered 5;
6 MIO 5-7] Our notice explained that, assuming without deciding Defendant is correct
7 that the State had to present evidence that Defendant used a “weapon which will or
8 is designed to or may readily be converted to expel a projectile by the action of an
9 explosion[,]” [RP 86] it appeared to us that the testimony of the victims and other
10 witnesses as to their sensory observations about the weapon was sufficient to
11 establish that Defendant brandished a “real gun.” See State v. Duran, 1977-NMCA-
12 099, ¶ 5, 91 N.M. 38, 570 P.2d 39 (assuming without deciding that the defendant was
13 correct—that proof was required to establish the firearm was capable of discharging
14 a shot—the victim’s testimony was sufficient to prove it was a “‘real gun’” to submit
15 the issue to the jury to decide); see also Rule 11-701(A) NMRA (providing that a lay
16 witness may testify as to their opinion “that is . . . rationally based on the witness’s
17 perception”). We further noted that the special verdict forms show the jury believed
18 the observations of the victims and other witnesses that Defendant used an actual

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1 firearm, which it was free to do. [RP 106, 108] See State v. Rojo, 1999-NMSC-001,
2 ¶ 19, 126 N.M. 438, 971 P.2d 829 (“Contrary evidence supporting acquittal does not
3 provide a basis for reversal because the jury is free to reject [the d]efendant’s version
4 of the facts.”). Lastly, we noted Defendant was free to produce the toy gun he alleged
5 to have used in defense to the charges.
6 {5} Defendant’s response to our notice supplies no new factual or legal argument
7 that persuades us the evidence was insufficient. [MIO 5-7] Accordingly, we hold that
8 substantial evidence supports Defendant’s convictions for aggravated assault with a
9 deadly weapon.
10 {6} For the reasons set forth in our notice and in this opinion, we affirm the district
11 court’s judgment and sentence.
12 {7} IT IS SO ORDERED.
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14 LINDA M. VANZI, Judge
15 WE CONCUR:
16 ______________________________
17 JACQUELINE R. MEDINA, Judge
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19 ZACHARY A. IVES, Judge