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State v. Galvan

Court of Appeals of New Mexico

November 6, 2017

STATE OF NEW MEXICO, Plaintiff-Appellee,
DAVID C. GALVAN, Defendant-Appellant.


          Hector H. Balderas, Attorney General Laura E. Horton, Assistant Attorney General Santa Fe, NM for Appellee

          Robert E. Tangora, L.L.C. Robert E. Tangora Santa Fe, NM for Appellant



         {1} Defendant David Galvan appeals from the district court's order revoking his probation. Defendant challenges his probation revocation on due process grounds, and argues that his confrontation rights were violated by the district court's reliance on hearsay evidence of unverified facts to revoke his probation. Defendant argues that without the inadmissible hearsay testimony, there was insufficient evidence to support the revocation of his probation. Having considered Defendant's arguments and reviewed the recording of the probation revocation hearing, we affirm.


         {2} Defendant entered into a plea agreement with the State, which consolidated his sentence in two separate district court cases, and provided for supervised probation in lieu of incarceration. The State moved to revoke Defendant's probation based on allegations asserted in the probation revocation report (PVR). The State's motion alleged that Defendant failed to comply with the standard conditions requiring him to report as required, and to report a change of status, which required Defendant to provide notice to the probation office if he left the county, moved residences, or changed jobs. The State then filed an amended motion to revoke, based on the first addendum to the PVR, which alleged a violation of the standard condition requiring the obeyance of state law. The allegation was based on subsequently lodged charges of resisting, evading, or obstructing an officer; failure to yield; and no proof of insurance. The State also filed a second amended motion to revoke probation based on the allegations in the second addendum to the PVR, alleging an additional violation for failure to report as required. In total, the State asserted factual allegations to support four violations of three of the conditions of probation. After hearing the State's evidence, the district court ruled that Defendant violated all three conditions, and revoked probation. Defendant appeals and challenges the district court's consideration of hearsay evidence to support the decision to revoke probation.



         {3} Defendant contends that the district court failed to provide him minimum due process by revoking his probation without giving him an opportunity to confront the witnesses and without a finding of good cause for not allowing confrontation. Defendant relies on State v. Guthrie, 2011-NMSC-014, ¶¶ 3-5, 150 N.M. 84, 257 P.3d 904, and State v. Phillips, 2006-NMCA-001, ¶ 10, 138 N.M. 730, 126 P.3d 546 overruled on other grounds by Guthrie, 2011-NMSC-014. Defendant argues that like Phillips, the State only presented hearsay testimony from a supervising probation officer summarizing the contents of a PVR not admitted into evidence. As a result, Defendant contends that the district court had no means of testing the accuracy or reliability of the facts recited in the PVR.

         {4} The State argues that insofar as Defendant asserts he was unable to confront his former probation officer regarding the alleged failure to report, there was another allegation supported by testimony from his new probation officer, who did testify, and to whom he also failed to report. In addition, the State argues that the violation for failing to obey the law was supported by the district court taking judicial notice of a judgment and sentence for new convictions. The State asserts that because this Court will uphold the district court's revocation of probation if just one violation is proven, it is unnecessary to reach Defendant's due process claims related to the remaining allegations. See State v. Leon, 2013-NMCA-011, ¶ 37, 292 P.3d 493 (stating that where a defendant challenges the sufficiency of the evidence supporting multiple probation violations, "if there is sufficient evidence to support just one violation, we will find the district court's order was proper"). We nevertheless review the evidence presented in support of each of the alleged probation violations in order to ascertain whether remand is warranted. See State v. Marquart, 1997-NMCA-090, ¶¶ 20-21, 123 N.M. 809, 945 P.2d 1027 (indicating that where the district court applies an improper legal standard when adjudicating an alleged violation of a condition of probation, remand is necessary for the district court to make factual findings under the proper standard, and to determine if revocation of probation is still warranted on the remaining violation alone).

         Standard of Review

         {5} Whether Defendant's due process right to confrontation was violated is a question of law which we review de novo, while deferring to the district court's factual findings. See State v. Castillo, 2012-NMCA-116, ¶ 9, 290 P.3d 727. We review the district court's revocation of Defendant's probation for an abuse of discretion. See Leon, 2013-NMCA-011, ¶ 36. It is the state's burden to establish with a reasonable certainty that a defendant violated probation, see id., "such that a reasonable and impartial mind would believe that the defendant violated the terms of probation." State v. Green, 2015-NMCA-007, ¶ 22, 341 P.3d 10. However, once the state offers evidence that a condition of probation was violated, the defendant must present some evidence to either excuse the non-compliance, see State v. Martinez, 1989-NMCA-036, ¶ 8, 108 N.M. 604, 775 P.2d 1321, or contest relevant facts. See Guthrie, 2011-NMSC-014, ¶ 35.

         Good ...

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