{ "id": 1571012, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Julian BUSTAMANTE, Defendant-Appellant", "name_abbreviation": "State v. Bustamante", "decision_date": "1978-06-27", "docket_number": "No. 3243", "first_page": "772", "last_page": "776", "citations": [ { "type": "official", "cite": "91 N.M. 772" }, { "type": "parallel", "cite": "581 P.2d 460" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "511 F.2d 62", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 152930 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/f2d/511/0062-01" ] }, { "cite": "88 N.M. 560", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2838520 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/88/0560-01" ] }, { "cite": "86 N.M. 383", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2823043 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0383-01" ] }, { "cite": "90 N.M. 744", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2871724 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0744-01" ] }, { "cite": "89 N.M. 129", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2866485 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/89/0129-01" ] }, { "cite": "80 N.M. 663", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5361811 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0663-01" ] }, { "cite": "90 N.M. 87", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2872642 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/90/0087-01" ] }, { "cite": "90 N.M. 319", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2869816 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/90/0319-01" ] } ], "analysis": { "cardinality": 539, "char_count": 11259, "ocr_confidence": 0.811, "pagerank": { "raw": 7.00947562673404e-08, "percentile": 0.4233177301070449 }, "sha256": "dd55f4499829b914a9754dcc4c4cc3828116dbf29d35c24010bd8a4f59962142", "simhash": "1:f10bf4e0a00e9d76", "word_count": 1856 }, "last_updated": "2023-07-14T15:07:42.064818+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and LOPEZ, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Julian BUSTAMANTE, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nConvicted of two counts of trafficking in heroin (distribution) and one count of distribution of marijuana, defendant appeals. Issues listed in the docketing statement, but not briefed, are deemed abandoned. State v. Ortiz, 90 N.M. 319, 563 P.2d 113 (Ct.App. 1977). We (1) answer four issues summarily, discuss (2) the agency theory in a distribution charge, and (3) the sentence provision for distribution of a small amount of marijuana for no remuneration.\nIssues Answered Summarily\n(a) The indictment was not invalid because the heroin offenses were charged in the alternative. State v. Gurule, 90 N.M. 87, 559 P.2d 1214 (Ct.App.1977). Defendant sought, and obtained, a statement of facts and thus had notice of the crime charged. State v. Gurule, supra. The failure of the indictment to refer to \u00a7 54-11-20(B), N.M. S.A.1953 (Repl.Vol. 8, pt. 2, Supp.1975) did not render the indictment invalid. See State v. Ferris, 80 N.M. 663, 459 P.2d 462 (Ct.App.1969); see also State v. Nixon, 89 N.M. 129, 548 P.2d 91 (Ct.App.1976).\n(b) The jury was instructed as to the elements of the heroin offenses in substantial compliance with U.J.I.Crim. 36.10. Certain definitions, taken from the statute, were included in the instruction. Having adequately instructed on the elements of the heroin charge and the meaning of the terms used, refusal of defendant\u2019s requested instruction was not error. State v. Blakley, 90 N.M. 744, 568 P.2d 270 (Ct.App.1977).\n(c) Defendant sought production of a report. The report concerned a survey made to determine the feasibility of conducting a study which would review and evaluate crime laboratories across the nation. The state police laboratory participated in the survey to this extent\u2014it was sent ten samples for analysis and correctly analyzed those samples. Defendant sought to require the State to produce this report. Defendant was supplied the name and address of the organization which conducted the survey. The trial court instructed defendant to contact the organization and if a report existed, the trial court would require its production. Defendant\u2019s complaint is that the trial court did not require the State to produce the report. The showing to the trial court was that the State did not have the report. It was not error to refuse to require the State to produce a report which was not within the possession, custody or control of the State. Rule of Crim. Proc. 27(a)(5).\n(d) Defendant sought to have attorney Karelitz prohibited from prosecuting the case for the State. Karelitz and defense counsel Martinez had a discussion, in a coffee shop, about a \u201cdrug bust\u201d in Las Vegas. Defendant\u2019s claim is based on this discussion. This issue does not involve the situation discussed in State v. Chambers, 86 N.M. 383, 524 P.2d 999 (Ct.App.1974). Karelitz never represented defendant and never discussed the case with defendant. The discussion was between the attorneys; the discussion occurred, however, before Karelitz was employed by the district attorney.\nKarelitz and Martinez agree that certain possible legal defenses to drug charges were discussed and that Karelitz told Martinez where to find jury instructions in connection with the defenses. This discussion of legal concepts did not disqualify Karelitz from prosecuting the case.\nKarelitz informed the trial court that no facts of the case were discussed. Martinez did not assert the contrary. Martinez stated: \u201cI did tell Mr. Karelitz what the State Police and the agents and the informants had done in the Las Vegas area, generally the different types of activity, methods of operation that they had engaged in\u201d. Martinez argued to the trial court that with this knowledge, Karelitz could anticipate the defense. Defendant\u2019s brief asserts that Karelitz did in fact anticipate the defense at trial. The transcript references do not support this claim; rather, these references show no more than questioning one would expect from a prosecutor in this type of case.\nThe trial court did not conduct an evidentiary hearing and did not make a factual determination as to what was discussed by the attorneys. We point out that the trial court was not asked to do so. See State v. Mata, 88 N.M. 560, 543 P.2d 1188 (Ct.App. 1975). All we have is the assertions of counsel and these assertions are insufficient to show Karelitz acquired, from Martinez, any factual information concerning defendant\u2019s case.\nAgency Theory of Distribution\nDefendant contends the trial court erred in permitting the prosecution to proceed on a theory of \u201cdistribution\u201d rather than \u201csale\u201d. Both theories were included in the alternative charges for the two heroin offenses. The \u201cdistribution\u201d theory was included in the prosecutor\u2019s statement of facts, furnished to defendant several days in advance of trial. On the morning of trial, defendant requested the prosecution be required to elect its trafficking theory, and was told the theory was \u201cdistribution\u201d. \u201cTHE COURT: All right, that satisfies you, Mr. Martinez?\u201d \u201cMR. MARTINEZ: Yes, Your Honor, we are going to trial on the distribution charge.\u201d There was no error in going to trial on a distribution charge.\nDefendant complains of the refusal of four requested instructions directed to a \u201csale\u201d theory. One of the refused instructions defined \u201csale\u201d, another would have told the jury that if defendant acted as agent for the police officers in obtaining the heroin, he could not be convicted of selling heroin. Since defendant was not being tried for selling, refusal of these instructions was proper.\nA third refused instruction defined agency. A fourth refused instruction would have told the jury that if defendant acted as agent for the police officers in obtaining the heroin, he could not be convicted of distributing heroin. Refusal of these instructions was proper; agency is not a defense to the distribution charge. This is shown by the definitions in \u00a7 54\u201411\u20142, N.M.S.A.1953 (Repl.Vol. 8, pt. 2, Supp. 1975). Paragraph (J) defines \u201cdistribute\u201d in terms of \u201cdeliver\u201d.. Paragraph (G) defines deliver as follows:\nG. \u201cdeliver\u201d means the actual, constructive or attempted transfer from one person to another of a controlled substance whether or not there is an agency relationship [.]\n(Our emphasis.)\nSee United States v. Marquez, 511 F.2d 62 (10th Cir. 1975).\nSentence for Distributing a Small Amount of Marijuana for no Remuneration\nDefendant was charged with violation of \u00a7 54-11-22(A)(1), N.M.S.A.1953 (Repl.Vol. 8, pt. 2, Supp.1975). This statute reads:\nA. Except as authorized by the Controlled Substances Act [54-11-1 to 54-11-39], it is unlawful for any person to intentionally .distribute or possess with intent to distribute a controlled substance except a substance enumerated in Schedules I or II which is a narcotic drug. Any person who violates this subsection with respect to:\n(1) marijuana is:\n(a) for the first offense, guilty of a felony and shall be punished by a fine of not more than five thousand dollars ($5,000) or by imprisonment for not less than one [1] year nor more than five [5] years, or both; and\n(b) for the second and subsequent offenses, guilty of a felony and shall be punished by a fine of not more than five thousand dollars ($5,000) or by imprisonment for not less than two [2] years nor more than ten [10] years, or both[.]\nDefendant .requested jury instructions under \u00a7 54-11-22(C), supra, and \u00a7 54\u201411\u201423(B)(1), (2) and (3), N.M.S.A.1953 (Repl.Vol. 8, pt. 2, Supp.1975).\nSection 54-11-22(C), supra, reads: .\nC. Notwithstanding subsection A of this section, distribution of a small amount of marijuana for no remuneration shall be treated as provided in paragraph (3) of subsection B of section 54-11-23 N.M.S.A.1953. .\nSection 54-11-23(B)(1), (2) and (3), supra, read:\nB. Any person who violates this section with respect to:\n(1) one [1] ounce or less of marijuana is, for the first offense, guilty of a petty misdemeanor and shall be punished by a fine of not less than fifty dollars ($50.00) nor more than one hundred dollars ($100) and by imprisonment for not more than fifteen [15] days and, for the second and subsequent offenses, guilty of a misdemeanor and shall be punished by a fine of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) or by imprisonment for a definite term less than one [1] year, or both;\n(2) more than one [1] ounce and less than eight [8] ounces of marijuana is guilty of a misdemeanor and shall be punished by a fine of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) or by imprisonment for a definite term less than one [1] year, or both;\n(3) eight [8] ounces or more of marijuana is guilty of a felony and shall be punished by a fine of not more than five thousand dollars ($5,000) or by imprisonment for not less than one [1] year nor more than five [5] years, or both[.]\nDefendant contends there was a factual issue for the jury as to whether he distributed a \u201csmall amount of marijuana for no remuneration\u201d, and that refusal of his requested instructions directed to this issue was error.\nA violation of \u00a7 54-11-22(0), supra, is to be treated as a violation of \u00a7 54-11-23(B)(3), supra. The penalty stated in \u00a7 54-11-23(B)(3), supra, is the same as the penalty stated in \u00a7 54-11-22(A)(1)(a), supra. Recognizing this identity of penalties, defendant asserts the lesser penalties stated in \u00a7 54-11-23(B)(1) and (2), supra, are applicable. The statute does not make these lesser penalties applicable.\nDefendant\u2019s argument is necessarily based on the view that the Legislature intended that the lesser penalties stated in \u00a7 54-11-23(B)(1) and (2), supra, should apply to violations of \u00a7 54-11-22(C), supra. We disagree.\nThe reference in \u00a7 54-11-22(0), supra, to \u00a7 54-11-23(B)(3), supra, was part of the original enactment. Laws 1972, ch. 84, \u00a7\u00a7 22 and 23. The amendments in 1974 continued this reference. Laws 1974, ch. 9, \u00a7\u00a7 3 and 4. The \u201cnotwithstanding\u201d provision of \u00a7 54-11-22(0), supra, does not provide for a lesser penalty for the first marijuana distribution offense. The \u201cnotwithstanding\u201d provision applies only to second and subsequent marijuana distribution offenses. For second and subsequent marijuana distribution offenses that factually come within \u00a7 54-11-22(0), supra, the penalty of \u00a7 54-ll-23(B)(3), supra, applies and a defendant avoids the higher penalty stated in \u00a7 54-11-22(A)(1)(b), supra.\nThe trial court did not err in refusing the requested instructions based on \u00a7 54-11-23(B)(1) and (2), supra, because these provisions do not apply to distribution of marijuana. The only showing is that this was defendant\u2019s first marijuana offense. Defendant was properly sentenced for a first offense. Accordingly, we do not reach the question of the appropriate instruction when there is a second or subsequent marijuana distribution offense.\nThe judgment and sentences are affirmed.\nIT IS SO ORDERED.\nHENDLEY and LOPEZ, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Donaldo A. Martinez, Las Vegas, for defendant-appellant.", "Toney Anaya, Atty. Gen., Don D. Montoya, Asst. Atty. Gen., Santa Fe, for plaintiffappellee." ], "corrections": "", "head_matter": "581 P.2d 460\nSTATE of New Mexico, Plaintiff-Appellee, v. Julian BUSTAMANTE, Defendant-Appellant.\nNo. 3243.\nCourt of Appeals of New Mexico.\nJune 27, 1978.\nDonaldo A. Martinez, Las Vegas, for defendant-appellant.\nToney Anaya, Atty. Gen., Don D. Montoya, Asst. Atty. Gen., Santa Fe, for plaintiffappellee." }, "file_name": "0772-01", "first_page_order": 808, "last_page_order": 812 }