United States District Court, D. New Mexico
C. Anderson United States Attorney Samuel A. Hurtado
Attorneys for the Plaintiff
Van Butcher Assistant Federal Public Defender Attorney for
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the Petition for Revocation
of Supervised Release, filed July 9, 2018 (Doc. 47). The
Court held an evidentiary revocation hearing on January 29,
2019. See Draft Transcript of Hearing, taken January
29, 2019 (“Tr.”). The primary issue is whether the
Court should revoke Defendant Jorge Hernandez' supervised
release, because he violated a condition of his supervised
release by committing a federal, state, or local crime by:
(i) striking Brianna Angulo; (ii) intentionally setting fire
to a kitchen; (iii) taking items without paying for them from
a Shell gas station; and (iv) driving rapidly while weaving
through traffic and crossing into oncoming traffic while
evading police in a manner that caused at least one vehicle
accident and nearly caused another accident with a police
vehicle. The Court concludes by a preponderance of the
evidence that Hernandez drove above the speed limit while
weaving through traffic, crossing into oncoming traffic,
evading police and nearly crashing into a police vehicle. The
Court, thus, concludes by a preponderance of the evidence
that Hernandez violated N.M. Stat. Ann. § 30-22-22,
Aggravated Assault upon a Peace Officer (Deadly Weapon); N.M.
Stat. Ann. § 30-22-1.1, Aggravated Fleeing a Law
Enforcement Officer; N.M. Stat. Ann. §66-8-113, Reckless
Driving; and multiple traffic laws, including driving through
a red light, traveling on the wrong side of the road, and
speeding. The Court concludes that the evidence is
insufficient to support determinations that Hernandez: (i)
struck Brianna Angulo; (ii) intentionally set fire to a
kitchen; (iii) took items without paying for them from a
Shell gas station; and (iv) caused an accident. Accordingly,
the Court will revoke Hernandez' supervised release.
November 22, 2016, Hernandez was sentenced to thirty months
imprisonment and three years of supervised release, subject
to several special conditions. See Clerk's
Minutes for Proceedings at 1, filed November 22, 2016 (Doc.
42). The Court entered Final Judgment, filed December 7, 2016
(Doc. 45). While Hernandez was on supervised release, the
Court issued an arrest warrant for Hernandez. See
Arrest Warrant, filed July 11, 2018 (Doc. 49).
Amended Petition for Warrant.
United States Probation Office (“USPO”) filed an
Amended Petition for Warrant on September 28, 2018 (Doc.
55)(“Amended Petition”). In the Amended Petition,
the USPO alleged that Hernandez had violated a condition of
his supervised release: “You must not commit another
federal, state, or local crime.” Amended Petition at 1.
The USPO listed the ways in which Hernandez had violated this
condition. First, Hernandez was arrested on July 4, 2018, for
Battery (Household Member.) See Amended Petition at
1. The Amended Petition alleges that he struck his
girlfriend's eye with a closed fist. Second, Hernandez
was arrested on July 4, 2018, for Criminal Damage to Property
(Household Member; over $1, 000). The USPO alleges that
Hernandez was “setting a fire on the stove top and was
using paper towels and other items” and that the
kitchen table was “flipped over and broken.”
Amended Petition at 2. Third, Hernandez was arrested on July
4, 2018, for Arson ($250 or Less in Damage). The USPO alleges
that Hernandez' girlfriend, Brianna Angulo told police
she saw smoke at the residence. See Amended Petition
at 2. Upon entering the residence, the officers smelled
smoke. See Amended Petition at 2. Upon entering the
residence's kitchen, the officers saw Hernandez using
paper towels and other items to set a fire on top of the
stove. See Amended Petition at 2. On a July 9, 2018,
telephone call with the USPO, Hernandez said that he started
the fire to commit suicide. See Amended Petition 2.
The USPO told Hernandez to report to the USPO within an hour,
which Hernandez did not do. See Amended Petition at
on July 16, 2018, Hernandez was arrested for Aggravated
Assault Upon a Peace Officer (Deadly Weapon). See
Amended Petition at 2. The USPO alleges that Rio Rancho
police officers responded to a dispatch that stated that a
male, Hernandez, had shoplifted items from a Shell gas
station. See Amended Petition at 2. One of those
officers parked on the side of the road to await the
shoplifter, and Hernandez' car nearly crashed into the
officer's car. See Amended Petition at 2.
Hernandez then fled from the officer and was arrested three
days later. See Amended Petition at 2. Next,
Hernandez was arrested on July 16, 2018, for Aggravated
Fleeing a Law Enforcement Officer on July 13, 2018.
See Amended Petition at 2. The USPO alleges that
Hernandez fled a police officer while driving at “a
high rate of speed, swerving in and out of both lanes of
travel crossing the double yellow lines in the
roadway.” Amended Petition at 2. Next, Hernandez was
arrested on July 16, 2018, for Shoplifting (over $250 but not
more than $500) on July 13, 2018, at a Shell gas station.
See Amended Petition at 2. Next, Hernandez was
arrested on July 16, 2018, for Reckless Driving; Leaving the
Scene of an Accident; and several traffic violations on July
13, 2018. See Amended Petition at 2.
USPO advises that, because Hernandez' underlying crime is
a Class C felony, the maximum statutory penalty is two years
imprisonment and three years supervised release. See
Amended Petition at 3. The USPO states that, because
Hernandez has a Criminal History Category of VI and committed
Grade B violations of his supervised release condition, the
revocation range of imprisonment is between twenty-one and
twenty-seven months. See Amended Petition at 3.
Court held an evidentiary hearing on January 28, 2019.
See Tr. at 1:22 (Butcher). The United States
introduced Jacob Hopkins, a Rio Rancho police officer, and
stated that Hopkins would be acting “as a case agent of
sorts today.” See Tr. 2:5-10 (Hurtado). The
USPO told the Court that the violations of supervised release
at issue did not make revocation mandatory. See Tr.
at 5:24-6:2 (Court, Villalobos). Hernandez pled not guilty to
all charges. See Tr. 9:5-7 (Butcher). The United
States first called Katrina Villalobos, a United States
Probation Officer, to testify as a witness. See Tr.
9:22-10:18 (Hurtado, Court, Villalobos). The United States
next called Hopkins, who was at the scene of the alleged
arson and battery, to testify as a witness. See Tr.
18:14-18:22 (Hurtado, Court, Hopkins). The United States next
called Ingram, a Rio Rancho Police patrol officer who
was at the scene of the alleged reckless driving and
shoplifting, to testify as a witness. See Tr.
35:16-37:5 (Hurtado, Court, Ingram). The United States next
called Hickerson,  a Rio Rancho police officer who was at the
scene of the alleged reckless driving, aggravated assault of
a peace officer, and aggravated fleeing from a peace officer,
to testify as a witness. Tr. at 48:21-50:16 (Hurtado, Court,
Hickerson). Neither party called any further witnesses.
See Tr. at 59:3-8 (Hurtado, Court, Butcher). The
Court concluded that Hernandez had “violated
supervision, ” Tr. at 68:11 (Court), and gave a
sentence, in accordance with the “guideline range,
” of twenty-one months imprisonment and twelve months
supervised release, Tr. 74:23 (Court). See Tr.
Court held an evidentiary hearing on the revocation of
supervised release. The Court makes the following findings of
fact related to the issues. Rule 12(d) of the Federal Rules
of Criminal Procedure requires the Court to state its
essential findings on the record when deciding a motion that
involves factual issues. See Fed. R. Crim. P. 12(d)
(“When factual issues are involved in deciding a
motion, the court must state its essential findings on the
record.”). The findings of fact in this Memorandum
Opinion and Order shall serve as the Court's essential
findings for rule 12(d) purposes. In making its findings, the
Court does not consider any evidence or testimony from the
hearing that violates the United States v. Jones
test. See United States v. Jones, 818 F.3d 1091,
1099 (10th Cir. 2016).
July 13, 2016, Hernandez entered a plea agreement in which he
pled guilty to possessing a firearm as a convicted felon in
violation of 18 U.S.C. § 922(g)(1). See Plea
Agreement, filed July 13, 2016 (Doc. 34).
Court sentenced Hernandez to thirty months imprisonment with
three years of supervised release and with the mandatory
condition that Hernandez “must not commit another
federal, state, or local crime” on supervised release.
Judgment in a Criminal Case at 2-3, filed December 7, 2016
July 4, 2018, Domestic Events.
Hopkins has worked as a police officer with the Rio Rancho
Police Department for around four years, and he previously
had served as a police officer with the Sandoval County
Sheriff's Office for around three years. See Tr.
at 18:24-19:4 (Hopkins).
Around 3:45 a.m., on July 4, 2018, Hopkins was on duty in the
City of Rio Rancho. See Tr. at 19:8-10 (Hopkins,
Hopkins received a call about a domestic disturbance at 146
Prado Verde Court, Rio Rancho. See Tr. at 19:12-14
(Hopkins); id. at 20:7-11 (Hopkins).
Maria Hernandez, Hernandez' sister, had also been at the
residence at the time. See Tr. at 32:20-21
Angulo's face displayed bruises and swelling on the left
side. See Tr. at 22:23-25 (Hopkins); Picture of
Angulo at 1 (sent November 21, 2018).
Hopkins arrived at the house, Angulo was standing outside the
house, appeared distressed, see Tr. at 22:2-5
(Hopkins), and urged Hopkins and the officer accompanying him
to enter the house, because Hernandez was “attempting
to set [the] house on fire, ” Tr. at 22:7 (Hopkins).
See id. at 22:6-7 (Hopkins).
Hopkins approached and then entered the home with Officer
Anthony Tortorici. See Tr. at 25:13-14 (Hopkins).
Hopkins and Tortorici stopped at the front door to inform
whoever was inside that the officers were Rio Rancho police
officers and to ask the location of any individual inside.
See Tr. at 25:15-21 (Hopkins).
Hopkins and Tortorici received no response. See Tr.
at 25:21-22 (Hopkins).
When at the “threshold of the front door, ” Tr.
at 25:23 (Hopkins), Hopkins smelled “a strong odor of .
. . natural gas” and heard a smoke detector sounding,
Tr. at 25:24 (Hopkins). See Tr. at 25:21-26:2
Hernandez was “attempting to light the stove on fire
with paper towels and chemical agents on top of the gas
stove.” Tr. at 14-16 (Hopkins).
stove's natural gas, the residence's back wall, paper
towels, and other objects were burning. See Tr. at
33:16-23 (Hopkins, Hurtado).
When Hopkins and Tortorici approached Hernandez, Hernandez
appeared agitated. See Tr. at 26:19-20 (Hopkins).
Hernandez kept one hand behind his back throughout his
confrontation with Hopkins and Tortorici. See Tr. at
Hernandez continued to move the stove's knobs and to add
additional chemical agents to the stove after Hopkins and
Tortorici reached the kitchen. See Tr. at 2 7:1-3
Hernandez threatened, in a “hostile and
aggressive” manner, to kill Hopkins and Tortorici. Tr.
at 27:12 (Hopkins). See id. at 27:5-12 (Hopkins,
Hopkins and Tortorici eventually subdued Hernandez and
removed him from the house in handcuffs. See Tr. at
28:17-18 (Hopkins); id. at 28:21-24 (Hopkins).
Hernandez damaged the kitchen table and other objects within
the house when he threw items from the home's kitchen
table and counters. See Tr. at 31:14-18 (Hopkins).
July 9, 2018, USPO Interaction.
July 9, 2018, Hernandez notified probation that the Rio
Rancho Police Department had arrested him on July 4, ...