inside this issue 2012 a m –b and bar conference h r ... · send a letter of interest and resume...

Bar Bulletin - August 1, 2012 - Volume 51, No. 31 1

Photo by Tony Horvat

2012 AnnuAl Meeting–Bench And BAr conference hyAtt regency tAMAyA resort & spA, pAge 6

Inside This Issue

August 1, 2012 • Volume 51, No. 31

Table of Contents ................................................4

NM Supreme Court Committee Vacancies ......................................5

Eleventh Judicial District Court Judicial Vacancy, New Application Period....................5

2012 State Bar Annual Meeting ...........................6

Corrections to 2012–2013 Bench & Bar Directory .................................................14

Opinions

From the New Mexico Supreme Court

2012-NMSC-018, No. 32,510: State v. Swick .................................................21

2012-NMSC-019, No. 32,789: Chatterjee v. King .........................................31

2 Bar Bulletin - August 1, 2012 - Volume 51, No. 31

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Sandi Pressley980-2999

Michelle Selby321-5521

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Winnie DeVore270-6300

Mark Puckett 269-6997

Michelle Smith417-1640

Sean & Christine Remington307-4006

Shirley Rich280-8811

Robin Riegor263-2903

Will Beecher918-5730

Phyllis & Robert Boverie710-2086

Jo Cook379-6099

Vicki Criel615-3333

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Notices ................................................................................................................................................................52012 State Bar Annual Meeting ..................................................................................................................6Corrections to 2012–2013 Bench & Bar Directory ................................................................................ 14Legal Education Calendar ......................................................................................................................... 15Writs of Certiorari ......................................................................................................................................... 16List of Court of Appeals’ Opinions ........................................................................................................... 18Recent Rule-Making Activity ..................................................................................................................... 19Opinions


2012-NMSC-018, No. 32,510: State v. Swick ............................................................................... 21

2012-NMSC-019, No. 32,789: Chatterjee v. King ....................................................................... 31

Advertising ...................................................................................................................................................... 43

Officers, Board of Bar Commissioners Hans Voss, President Andrew J. Cloutier, President-Elect Erika Anderson, Vice President Martha Chicoski, Secretary-Treasurer Jessica A. Pérez, Immediate Past President

Board of Editors Ian Bezpalko Danny W. Jarrett Cynthia A. Christ Maureen S. Moore Kristin J. Dalton Tiffany L. Sanchez Jocelyn C. Drennan Michael J. Thomas Jennifer C. Esquibel Joseph Patrick Turk

State Bar Staff Executive Director Joe Conte Membership and Communications Director Chris Morganti Editor Dorma Seago 505-797-6030•[email protected] Graphic Designer Julie Schwartz [email protected] Account Executive Marcia C. Ulibarri 505-797-6058•[email protected] Digital Print Center Manager Brian Sanchez Assistant Michael Rizzo ©2012, State Bar of New Mexico. No part of this publica-tion may be reprinted or otherwise reproduced without the publisher’s written permission. The Bar Bulletin has the authority to edit letters and materials submitted for publication. Publishing and editorial decisions are based on the quality of writing, the timeliness of the article, and the potential interest to readers. Appearance of an article, editorial, feature, column, advertisement or photograph in the Bar Bulletin does not constitute an endorsement by the Bar Bulletin or the State Bar of New Mexico. The views expressed are those of the authors, who are solely responsible for the accuracy of their citations and quotations. State Bar members receive the Bar Bulletin as part of their annual dues. The Bar Bulletin is available at the subscription rate of $125 per year and is available online at www.nmbar.org.

The Bar Bulletin (ISSN 1062-6611) is published weekly by the State Bar of New Mexico, 5121 Masthead NE, Albuquerque, NM 87109-4367. Periodicals postage paid at Albuquerque, NM. Postmaster: Send address changes to Bar Bulletin, PO Box 92860, Albuquerque, NM 87199-2860.

505-797-6000•800-876-6227•Fax:505-828-3765 E-mail:[email protected].•www.nmbar.org

August 1, 2012, Vol. 51, No. 31

stAte BAr Workshops

August

1 Divorce Options Workshop 6–8 p.m., State Bar Center, Albuquerque

8 Estate Planning/Probate Workshop 6 p.m., Heights Community Center, Albuquerque

22 Consumer Debt/Bankruptcy Workshop 6–8 p.m., State Bar Center, Albuquerque

23 Consumer Debt/Bankruptcy Workshop 5:30 p.m., Law Office of Kenneth Egan, Las Cruces

septeMBer

5 Divorce Options Workshop 6–8 p.m., State Bar Center, Albuquerque

6 Landlord/Tenant Workshop 5:30–7:30 p.m., State Bar Center, Albuquerque

26 Consumer Debt/Bankruptcy Workshop 6–8 p.m., State Bar Center, Albuquerque

29 Consumer Debt/Bankruptcy Workshop 9 a.m., Law Office of Kenneth Egan, Las Cruces

Meetings

August

1 Bankruptcy Law Section BOD noon, USBC

1 Employment and Labor Law Section BOD, noon, State Bar Center

2 Real Property, Trust and Estate Section BOD, 11 a.m., via teleconference

8 Children’s Law Section BOD, noon, Juvenile Justice Center

8 Paralegal Division CLE Series, noon, State Bar Center

9 Public Law Section BOD, noon, Montgomery and Andrews, Santa Fe

9 Business Law Section BOD, 4 p.m., via teleconference

10 Animal Law Section BOD, noon, State Bar Center

11 Ethics Advisory Committee, 10 a.m., State Bar Center

14 Lawyers Professional Liability Committee, noon, State Bar Center

tABle of contents




http://www.nmbar.org




www.nmbar.org

With respect to parties, lawyers, jurors and witnesses:

I will be open to constructive criticism and make such changes as are consistent with this creed and the Code of Judicial Conduct when appropriate.

professionAlisM tipcourt neWsNM Supreme CourtCommittee Vacancies One vacancy exists on each of the follow-ing New Mexico Supreme Court committees:

• Appellate Rules Committee• Board of Bar Examiners• Disciplinary Board• Domestic Relations Rules Committee• Rules of Professional Conduct

Committee• UFI-Criminal Committee

Send a letter of interest and resume to Joey D. Moya, Chief Clerk, PO Box 848, Santa Fe, NM 87504-0848. The letter of interest should describe the applicant’s quali-fications and may prioritize no more than three committees of interest. The deadline for applications is Aug. 22.

Second Judicial District CourtNominating Commission Five applications have been received in the Judicial Selection Office as of 5 p.m., July 20, for the judicial vacancy on the 2nd Judicial District Court due to the retirement of the Honorable Theresa Baca. The District Judicial Nominating Commission will meet at 9 a.m, Aug. 9, at the Bernalillo County Courthouse, 400 Lomas NW, Albuquerque, NM, to evaluate the applicants for this posi-tion. The meeting is open to the public, and those wishing to make public comment are requested to be present at the opening of the meeting. The names of the applicants in alphabetical order are:

Jonathan L. IbarraHonorable Cristina Jaramillo

Jeff ReinJennifer E. Romero

Sixth Judicial District CourtRight to Excuse Judges Governor Susana Martinez has an-nounced her appointment of Judge Jarod K. Hofacket to fill the vacancy in Division II of the 6th Judicial District Court. Effective July 5, all civil cases (CV, DM, DV, JQ, PB, PQ, SA, and SI) and juvenile cases (JR and YR) previously assigned to Judge Gary M. Jeffreys, Division II, will be assigned to Judge Jarod K. Hofacket. All criminal cases (CR, CS, LR, and SW) other than JR and YR cases previously assigned to Judge Gary M. Jeffreys, Division II, will be assigned to Judge Daniel Viramontes, Division IV. All Luna County civil cases (CV, DM, DV, JQ, PB, PQ, SA, and SI) and juvenile cases (JR and YR) previously assigned to Judge Daniel Viramontes, Division IV in Luna County, will be reassigned to Judge Jarod K. Hofacket. Parties who have not previ-ously exercised their right to excuse Judge Hofacket or Judge Viramontes may do so any time up to 10 days from Aug. 1 pursuant to Rules 1-088.1 and 5-106 NMRA.

Eleventh Judicial District CourtJudicial Reassignment – Excusals Effective immediately, all criminal cases previously assigned to Judge Thomas J. Hynes and/or Division VI will be assigned to Judge William C. Birdsall, Division I, at the Aztec district courthouse, 103 So. Oliver Dr. Pursuant to Rule 5-106 NMRA, parties to these reassigned criminal cases who have not previously exercised their right to excuse a judge may do so any time up to 10 business days after Aug. 22. Judicial VacancyNew Application Period In response to Governor Susana Martinez’ request for additional names to fill the va-cancy which exists in Aztec due to the resig-nation of Judge Thomas J. Hynes, the dean of the UNM School of Law, designated by the New Mexico Constitution to chair the 11th Judicial District Nominating Committee, is soliciting additional applications for this position from lawyers who meet the statutory qualifications in Article VI, Section 14 of the New Mexico Constitution. Applications, as

well as information related to qualifications for the position, may be obtained from the Judicial Selection website, http://lawschool.unm.edu/judsel/application.php, or via email by calling Sandra Bauman, at 505-277-4700. The deadline for applications is 5 p.m., Aug. 13. Applications received after that date will not be considered. Applications received by the initial June 15 deadline remain viable, and those individuals need not reapply at this time. Applicants seeking information regard-ing election or retention if appointed should contact the Bureau of Elections in the Office of the Secretary of State. The 11th Judicial Nominating Committee will reconvene Aug. 23 at the district courthouse in Aztec to evaluate the applicants for this position. The meeting will be open to the public and those wishing to speak about any of the candidates will have an opportunity to be heard.

US District CourtReappointment of Incumbent US Magistrate Judges The current term of office of part-time U.S. Magistrate Judge Kea W. Riggs is due to expire April 12, 2013. The Court is required by law to establish a panel of citizens to consider the reappointment of the magistrate judge to a new four-year term. The current term of office of U.S. Magis-trate Judge William P. Lynch is due to expire April 20. The Court is required by law to establish a panel of citizens to consider the reappointment of the magistrate judge to a new eight-year term. The duties of a magistrate judge in this court include the following: (1) conducting most preliminary proceedings in criminal cases, (2) trial and disposition of misde-meanor cases, (3) conducting various pretrial matters and evidentiary proceedings on del-egation from a district judge, and (4) trial and disposition of civil cases upon consent of the litigants. Comments are invited as to whether the incumbent magistrate judge should be recommended by the panel for reappointment by the court and should be addressed as follows: U.S. District Court, CONFIDENTIAL—ATTN: Magistrate Judge Merit Selection Panel, 333 Lomas Blvd. NE, Suite 270, Albuquerque, NM 87102. Comments must be received by September 11.

All New Mexico attorneys must notify both the Supreme Court and the State Bar of changes in contact information.

Supreme Court E-mail: [email protected] Fax: (505) 827-4837 Mail: PO Box 848

Santa Fe, NM 87504-0848

State BarE-mail: [email protected]: (505) 797-6019Mail: PO Box 92860 Albuquerque, NM 87199Online: www.nmbar.org

Address chAnges

continued on page 14


http://lawschool





State Bar President Hans Voss performs duties as the master of ceremonies for the annual meeting.

Hyatt Regency tamaya ResoRt & spa

July 12–14

2012 stAte BAr AnnuAl MeetingYour Practice, our Profession: touching the Lives of chiLdren and famiLies everY daY

Keynote Speakers Frederic S. Ury and Thomas W. Lyons, The Future of the Legal Profession: “There is a large surplus of lawyers. Baby boomers are not retiring. Legal education costs are ris-ing. It has become necessary to make structural changes in the practice of law. Unbundled legal services will become the wave of the future. It will also be to an attorney’s advantage to develop a niche practice,” said Ury.

Chief Justice Petra Jimenez Maes encourages attendees to participate in Access to Justice to assist the Court in protecting the rights of those who are our most vulnerable.

Criminal Update: Barbara Bergman discusses cases of interest on both the federal and state levels.

Matt Homann shares pricing strategies, market-ing techniques, ideas from other industries and professions and customer service principles.

Children and Family Issues in Court: “What you do as lawyers and judges makes a huge difference in furthering the legislative intent of victim safety, offender accountability and crime prevention,” said Sarah Buel.

speakeRs and cles

Photos by Dorma Seago


The Economics of Ethics and Professionalism: R. Thomas Dawe, Amy Sirignano, Kathleen Brandt, and Moderator William D. Slease discuss avoiding problems through sound office/client management, planning, and how the Mentorship Program can help. “I would like to put myself out of business through the generation of fewer disciplinary complaints on account of ethical and professional conduct violations,” said Slease.

Civ i l Update : Max Minzner cove r s jurisdiction, arbitration agreements, the divergence of state and federal law, and numer-ous civil topics.

2012 stAte BAr AnnuAl Meeting

Molly the Courthouse Dog was the center of attention for animal lovers. Celeste Walsen (top) puts Molly through some of her paces and dem-onstrates (above) how a dog might comfort a witness. “She will give her attention to whomever I hand the leash to,” said Walsen who, along with Ellen O’Neill-Stephens, gave a presentation on how dogs are being used to calm victims in the courtroom and comfort children who are being deposed.

courthouse dogs llc

speakeRs and cles

State Bar President Hans Voss and CLE Director Rob Koonce


Justice Pamela B. minzner Professionalism award

HenRy a. kelly

Justice seth d. montgomery distinguished Judicial service award

Justice patRicio m. seRna

roBert h. lafollette Pro Bono award

JaRed g. kallunki

distinguished Bar service award–non-lawyer

sandRa Bauman

distinguished Bar service award–lawyer

JoHn d. RoBB, JR.

outstanding young lawyer of the year award

RoBeRt l. luceRo, JR.

outstanding legal organization

united soutH BRoadway coRpoRation, FoReclosuRe deFense pRoJect

state BaR annual awaRds

2012 State Bar Annual Award Recipients: Jared Kallunki, Matthew Byers (Disciplinary Board Award), Sandra Bauman, Justice Patricio Serna, Angelica Anaya Allen (accepting for United South Broadway), Robert Lucero, Henry Kelly. State Bar President Hans Voss presented the awards.

exHiBits



luncH and FasHion sHowBeneFitting tHe new mexico state BaR Foundation

Jorge Jimenez and Martha Chicoski Brent and Mary Ann Moore with children Caroline, Virginia, and Jonathan

Jessica ViaErika Anderson and Jason Bousliman with his

son Collis and daughter Elle Michaela Chavez

David Chavez and son Calvin

Samantha Hults


Raynard Struck


Jessica Pérez with her daughters Ella and Emery and Ben Sherman

Patty Galindo and sons Logan and Dylan

Robert Lara and Keya Koul provided music and commentary for the fashion show.

Fashions provided by Robert R. Bailey, Articles, and Zap...oh!


past pResidents’ dinneR

Past Presidents: Front: Richard L. Kraft (98-99), Virginia R. Dugan (2006), Jessica A. Pérez (2011), Mary T. Torres (2002), Dennis E. Jontz (2007). Middle: Hans Voss (current), Daniel J. O’Brien (2004), Richard F. Rowley II (85-86), Arturo L. Jaramillo (93-94), Robert N. Hilgendorf (84-85), Hon. Alan C. Torgerson (92-93). Back: John F. McCarthy, Jr. (81-82), John R. Cooney (80-81), and William K. Stratvert (79-80).

Judge Elizabeth E. Whitefield (right) is recog-nized for her “dedication to the legal commu-nity.” Mary Torres presents her with an engraved crystal vase.

David Berlin (left) receives the 2012 President’s Award from Hans Voss.

Justice Patricio Serna, who will be retiring in August, listens to tributes from his colleagues.

Judge Henry Alaniz and Chief Justice Petra Jimenez Maes

luncH and FasHion sHow (continued)



“Stellar!”

“Very useful”

“Absolutely

excellent!”

“Very thorough and interesting”“Engaging”

“Well presented”

Meeting AdjournedMaterials were loaded, exhibits were packed up, and State Bar staff

began work on next year’s meeting.

Mark Your Calendars

2013 State Bar annual Meeting–Bench and Bar conference

June 27–29, 2013Santa fe convention center


notices

US Bankruptcy Court for the District of New MexicoRetirement Ceremony A retirement ceremony for Chief Bank-ruptcy Judge James S. Starzynski will be held at 4 p.m., Aug. 17, in the Ceremonial Courtroom, 6th Floor, Federal Building and United States Courthouse, 421 Gold Avenue SW, Albuquerque. A reception will follow at Hotel Albuquerque, 800 Rio Grande Boulevard, NW.Investiture Ceremony Judge David T. Th uma will take the oath of offi ce as U.S. bankruptcy judge at an investiture ceremony to be held at 4 p.m., Aug. 31, in the Ceremonial Courtroom, 6th Floor, Federal Building and United States Courthouse, 421 Gold Avenue SW, Albuquerque. A reception will follow at Hotel Andaluz, 125 Second Street NW.

stAte BAr neWsAttorney Support Group • Aug. 20, 7:30 a.m.

Morning groups meet on the third Monday of the month.

• Aug. 6, 5:30 p.m.Afternoon groups meet on the fi rst Monday of the month.

Both groups meet at the First United Methodist Church at Fourth and Lead SW, Albuquerque. For more information, contact Bill Stratvert, 505-242-6845.

Support Group for Legal Professionals • Aug. 8, 5:30 p.m. Th e group meets regularly on the second Wednesday of the month at the Unitarian Universalist Church, 107 West Barcelona Rd., Santa Fe. For information, call Diego Zamora, 505-629-7343.

other BArsNM Defense LawyersAssociationAward Nominations Th e New Mexico Defense Lawyers As-sociation is accepting nominations for the 2012 NMDLA Outstanding Civil Defense Lawyer and the 2012 NMDLA Your Lawyer of the Year awards to be presented at the NMDLA annual meeting Oct. 5 at the Andaluz Hotel, Albuquerque. Nomination forms are available at www.nmdla.org or by contacting NMDLA at [email protected] or 505-797-6021. Th e deadline for nominations is Aug. 8.Women in the Courtroom Seminar Women in the Courtroom IV: Empathy and Empowerment (5.0 general and 1.0 E/P CLE credits) will be held from 8 a.m.–6 p.m., Aug. 24. Th is dynamic seminar will enhance the skills of all female attorneys as they work together to represent their clients and advance in their fi rms, agencies, offi ces and beyond. Th e day-long seminar includes a power lunch with speaker Sara M. Bradley and ends with a wine-tasting reception. Registration information is available at www.nmdla.org or by calling NMDLA at 505-797-6021.

correctionS to the 2012–2013 BenCH and Bar dIreCTorYGregory A. Baca .....................(505) 659-1133 Baca,Findlay,&DziakLLC 121 Sun Ranch Loop SW Los Lunas, NM 87031 F505-652-1987 [email protected]

Henning, Vernon O.M. ............(575) 397-2471 5th Judicial District Attorney’s Offi ce 301 N Dalmont St Hobbs, NM 88240-8335 F(575)397-6484 [email protected]

Neelley, Jr., Charles E. ........... (575) 758-8871 NMChildrenYouthandFamiliesDepartment 1308 Gusdorf Rd Taos, NM 87571-6485 F(575)751-0719 [email protected]

Vargas, Julie J. ...................... (505) 881 3191 Hunt&DavisPC 2632 Mesilla St NE #2 Albuquerque NM 87110 3660 F(505)8814255 [email protected]

legal ServiceS and referral PrograMS

New Mexico Legal Aid SantaFeOffice ...........................1-866-416-1934

Women’s Bar AssociationHenrietta Pettijohn AwardCall for Nominations The Henrietta Pettijohn Award was established to honor an attorney (female or male) who has done an exemplary job this year of advancing the causes of women in the legal profession. Past recipients include the Hon. M. Christina Armijo, Tara Ford, Diane Denish, the Hon. Pamela B. Minzer, Nancy Hollander, and the Hon. Elizabeth Whitefi eld. Th e board of the New Mexico Women’s Bar Association is now accept-ing nominations from its members for this year’s recipient. Email nominations, including a brief description of the reason for the nomination, to [email protected]. Nominations will close on Aug. 8. Th e NMWBA board will choose the recipient during a special meeting.

other neWsNM Association of Legal AdministratorsBack to School Backpack Drive Th e NMALA is holding its 1st Annual “Pack the Backpack” School Supply Drive. All donated items will go to Albuquerque public school children in need of backpacks and school supplies (the usual assortment of non-descript backpacks, pencils, crayons, markers, scissors, notebooks, rulers, calcula-tors, etc.). Donations may be delivered to Jessica Via, 2201 San Pedro NE, Building 2, Suite 207, Albuquerque, NM 87110. To make a fi nancial contribution, make checks payable to NMALA and send to Via. Dona-tions will be collected through Aug. 8.

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legal education

1 Compatibility of Legal and Judicial Ethics

2.0 EP Teleconference TRT, Inc. 800-672-6253 www.trtcle.com

2 Estate Planning for Pets Teleseminar 1.0 G Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

6 Arbitration: Basics and Procedure 2.0 G Teleconference TRT, Inc. 800-672-6253 www.trtcle.com

7 Ethics in Employment Law and Practice

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10 Bankruptcy Jurisdiction in the Wake of Stern v. Marshall

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13 Admissible Evidence: Computer Forensics Investigation

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16 Bench and Bar Substance Abuse and Other Misjudgments


17 Mediation: Basics and Procedure 2.0 G Teleconference TRT, Inc. 800-672-6253 www.trtcle.com

22 Recusal: A Hot New Legal Ethics Topic 2.0 EP Teleconference TRT, Inc. 800-672-6253 www.trtcle.com

23 Compatibility of Legal and Judicial 2.0 EP Teleconference TRT, Inc. 800-672-6253 www.trtcle.com

30 Electronically Stored Information: What’s Under Lock and Key


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5 Bench and Bar Substance Abuse and Other Misjudgments


7 2012 Tax Symposium` 6.5 G Albuquerque Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

7 Arbitration: Basics and Procedure 2.0 G Teleconference TRT, Inc. 800-672-6253 www.trtcle.com

13 2012 Animal Law CLE 5.7 G Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

13 Admissible Evidence: Computer Forensics Investigation


14 23rd Annual Appellate Practice Institute

6.0 G, 1.0 EP Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

17 Compatibility of Legal and Judicial Ethics


20 2012 Probate Institute 7.5 G Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

21 Mediation: Basics and Procedure 2.0 G Teleconference TRT, Inc. 800-672-6253 www.trtcle.com

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Joey D. Moya, Chief Clerk New Mexico Supreme Court PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860

effective july 20, 2012

Writs of certiorarias updated By the clerk of the neW mexico supreme court

petitions for Writ of certiorari filed and pending:Date Petition Filed

NO. 33,720 State v. Keding COA 31,842 07/20/12NO. 33,718 Murray v. State 12-501 07/20/12NO. 33,717 State v. Gutierrez COA 30,439 07/18/12NO. 33,716 State v. Bonner COA 30,423 07/18/12NO. 33,715 Martinez v. Ellins COA 32,089 07/18/12NO. 33,712 State v. Aragon COA 31,976 07/13/12NO. 33,711 NM Tax & Rev Dept v. Tindall COA 31,194 07/13/12NO. 33,539 Contreras v. State 12-501 07/12/12NO. 33,709 Charter Bank v. Francoeur COA 30,551 07/11/12NO. 33,705 Village of Hatch v. Faught COA 30,265 07/10/12NO. 33,612 Marquez v. Nance 12-501 07/09/12NO. 33,703 State v. Martinez COA 30,182 07/06/12NO. 33,700 State v. Jamon COA 31,578 07/03/12NO. 33,701 Will Ferguson v. Gengler COA 30,855 07/02/12 Response filed 7/13/12NO. 33,699 State v. Anaya COA 30,675 07/02/12NO. 33,694 State v. Clarence S. COA 31,938 06/29/12NO. 33,692 State v. Molina COA 31,898 06/29/12NO. 33,691 State v. Billips COA 31,621 06/29/12NO. 33,687 Elane Photography v. Willock COA 30,203 06/27/12 Response filed 7/13/12NO. 33,678 State v. Trujillo COA 30,281 06/22/12 Response/Cond’l X-Petition filed 7/3/12NO. 33,634 Rio Grande Sun v. Jemez Mountain Pub.Sch. COA 30,698 06/22/12 Response filed 7/10/12NO. 33,677 State v. Orquiz COA 31,247 06/21/12NO. 33,676 Farmington v. Pinon-Garcia COA 30,888 06/14/12NO. 33,667 NM Taxation and Revenue Dept. v. Smith COA 32,079 06/14/12NO. 33,630 Utley v. State 12-501 06/07/12NO. 33,658 Serna v. NM Taxation and Revenue Dept. COA 32,022 06/05/12 Response filed 7/6/12NO. 33,650 Farmington v. Pinon-Garcia COA 30,888 05/31/12NO. 33,647 Moola v. Moolamalla COA 30,290 05/29/12 Response ordered; due 7/26/12NO. 33,646 State Engineer v. Mayorga COA 30,584 05/29/12 Response filed 6/7/12NO. 33,629 State v. Ross COA 31,735 05/21/12 Response ordered; due 7/23/12NO. 33,621 Jacobs v. Nance 12-501 05/10/12NO. 33,615 State v. Martinez COA 30,318 05/04/12NO. 33,587 State v. Hernandez 12-501 04/24/12 Response filed 6/19/12NO. 33,454 Holly v. State 12-501 03/23/12 Response filed 5/21/12

certiorari granted But not yet suBmitted to the court:(Parties preparing briefs) Date Writ IssuedNO. 32,804 State v. Servantez COA 30,414 02/07/11NO. 33,001 State v. Rudy B. COA 27,589 06/08/11NO. 33,014 State v. Crane COA 29,470 06/08/11NO. 33,046 State v. Munoz COA 30,837 07/21/11NO. 33,133 Spencer v. Barber COA 29,390 09/09/11NO. 33,143 State v. Owelicio COA 30,461 09/09/11NO. 33,139 State v. Polson COA 31,138 09/20/11NO. 33,134 Martinez v. Bustos 12-501 09/22/11NO. 33,203 State v. Davis COA 28,219 10/04/11NO. 33,217 State v. Ramos COA 29,514 10/25/11NO. 33,224 Bank of New York v. Romero COA 29,945 10/25/11NO. 33,226 State v. Olsson COA 29,713 10/27/11NO. 33,265 State v. Garcia COA 29,338 11/17/11NO. 33,332 Partida v. Motor Vehicle Division COA 31,460 01/06/12NO. 33,324 State v. Evans COA 31,331 01/06/12NO. 33,304 State v. Hardy COA 29,583 01/06/12NO. 33,182 Moongate Water Company v. City of Las Cruces COA 27,889 01/09/12NO. 33,296 State v. Gutierrez COA 29,997 01/25/12NO. 33,364 Nettles v. Ticonderoga COA 31,342 02/06/12NO. 33,380 City of Rio Rancho v. Palenick COA 30,136 02/06/12NO. 33,382 NM Human Serv. v. Starko, Inc. COA 29,016/27,922 02/13/12NO. 33,375 State v. Cobrera COA 29,591 02/14/12NO. 33,376 State v. Gonzales COA 29,843 02/16/12NO. 33,441 State v. Torres COA 28,234 03/02/12NO. 33,466 State v. Puliti COA 29,509 03/20/12NO. 33,483 State v. Consaul COA 29,559 03/23/12NO. 33,275 State ex rel. Solsbury Hill v. Liberty Mutual Ins. COA 30,068 03/23/12NO. 33,383 Presbyterian Health Plan v. Starko, Inc. COA 29,016/27,922 03/30/12NO. 33,384 Cimarron Health Plan v. Starko, Inc. COA 29,016/27,922 03/30/12NO. 33,487 State v. Martinez COA 30,580 04/13/12NO. 33,548 State v. Marquez COA 30,565 05/02/12NO. 33,565 State v. Ballard COA 30,187 05/02/12NO. 33,571 State v. Miller COA 29,244 05/11/12NO. 33,568 State v. Chung COA 30,384 05/11/12NO. 33,567 State v. Leticia T. COA 30,664 05/11/12NO. 33,566 State v. Leticia T. COA 30,664 05/11/12NO. 33,594 Fallick v. Montoya COA 30,172 05/23/12NO. 33,589 Zhao v. Montoya COA 30,172 05/23/12NO. 33,579 Avalos v. NM Counseling COA 30,611 05/23/12NO. 33,592 State v. Montoya COA 30,470 05/24/12NO. 33,611 Bank of America v. Quintana COA 30,354 06/05/12NO. 33,604 State v. Ramirez COA 30,205 06/05/12


Writs of certiorari http://nmsupremecourt.nmcourts.gov.

NO. 33,632 First Baptist Church of Roswell v. Yates Petroleum COA 30,359 06/13/12NO. 33,627 NM Tax & Rev Dept. v. BarnesandNoble.com COA 31,231 06/22/12NO. 33,653 Bustos v. Zia Park LLC COA 32,068 06/28/12NO. 33,693 State v. Pangaea Cinema COA 30,380 07/20/12NO. 33,674 State v. Davis COA 29,699 07/20/12NO. 33,670 Gonzales v. Bustos COA 31,872 07/20/12NO. 33,635 Baker v. Hedstrom COA 30,475/30,491/30,639 07/20/12

certiorari granted and suBmitted to the court:

(Submission Date = date of oral argumentor briefs-only submission) Submission DateNO. 32,690 Joey P. v. Alderman-Cave Milling & Grain Co. COA 29,120 05/11/11NO. 32,589 State v. Ordunez COA 28,297 08/31/11NO. 32,707 Smith L.L.C. v. Synergy Operating, L.L.C. COA 28,248/28,263 09/12/11NO. 32,696 Herbison v. Chase Bank COA 30,630 09/13/11NO. 32,483 State v. Jackson COA 28,657 09/28/11NO. 32,697 State v. Amaya COA 28,347 09/28/11NO. 32,868 Nunez v. Armstrong General Contractors COA 29,522 10/11/11NO. 32,844 Gonzalez v. Performance Paint, Inc. COA 29,629 10/11/11NO. 32,713 Bounds v. D’Antonio COA 28,860 10/13/11NO. 32,717 NM Farm and Livestock Bureau v. D’Antonio COA 28,860 10/13/11NO. 32,942 Schuster v. Taxation & Revenue Dept. COA 30,023 11/14/11NO. 32,704 Tri-State v. State Engineer COA 27,802 11/14/11NO. 32,915 State v. Collier COA 29,805 11/15/11NO. 32,430 State v. Muqqddin COA 28,474 11/16/11NO. 32,632 State v. Dominguez-Meraz COA 30,382 11/16/11NO. 32,941 Titus v. City of Albuquerque COA 29,461 11/16/11NO. 32,800 State v. Spearman COA 30,493 11/30/11NO. 33,011 Felts v. CLK Management, Inc. COA 29,702/30,142 12/12/11NO. 33,013 Felts v. CLK Management, Inc. COA 29,702/30,142 12/12/11NO. 32,968 Sunnyland Farms, Inc. v. Central NM Electric COA 28,807 12/12/11NO. 32,985 Helena Chemical Company v. Uribe COA 29,567 12/13/11NO. 32,987 Helena Chemical Company v. Uribe COA 29,567 12/13/11NO. 32,937 SF Pacific Trust v. City of Albuquerque COA 30,930 12/14/11NO. 32,876 Gonzales v. State 12-501 01/09/12NO. 32,860 State v. Stevens COA 29,357 01/10/12NO. 32,939 United Nuclear Corp. v. Allstate Insurance Co. COA 29,092 01/30/12NO. 33,070 Montoya v. City of Albuquerque COA 29,838 01/30/12NO. 33,023 State v. Gurule COA 29,734 01/30/12

NO. 33,135 Horne v. Los Alamos Nat’l Security COA 29,822 03/13/12NO. 32,943 State v. Hall COA 29,138 03/26/12NO. 32,605 State v. Franco COA 30,028 03/28/12NO. 33,083 Martinez v. Department of Transportation COA 28,661 04/09/12NO. 32,976 State v. Olson COA 29,010 04/09/12NO. 33,057 State v. Turrietta COA 29,561 04/30/12NO. 33,331 Strausberg v. Laurel Healthcare COA 29,238 05/14/12NO. 33,136 State v. Bent COA 29,227 05/16/12NO. 33,077 State v. Gonzales COA 28,700 05/16/11NO. 33,540 State v. Sanders COA 30,671 07/30/12NO. 33,257 State v. Boyse COA 30,656/30,657 07/30/12NO. 33,147 Prather v. Lyons COA 29,812 07/30/12NO. 33,322 Resource Lighting v. Rohde COA 30,013 08/13/12NO. 33,184 State v. Guthrie COA 29,863 08/13/12NO. 33,362 Convisser v. Ecoversity COA 30,100 08/13/12NO. 33,287 State v. Urioste COA 30,110 08/14/12NO. 33,353 Flemma v. Halliburton Energy COA 29,933 08/14/12NO. 33,372 Schultz v. Pojoaque Tribal Police Dep’t COA 28,508 08/15/12NO. 32,895 State v. Gonzales COA 30,541 08/27/12NO. 33,154 State v. Carillo COA 29,258 08/27/12

petition for Writ of certiorari denied:Date Order Filed

NO. 33,689 Fleming v. McDonald COA 31,600 07/19/12NO. 33,686 State v. Nakal COA 31,955 07/19/12NO. 33,685 State v. Barber COA 31,958 07/19/12NO. 33,682 State v. Gallegos COA 31,903 07/19/12NO. 33,679 State v. Scharff COA 30,498 07/19/12NO. 33,675 Castillo v. Caprock Pipe & Supply, Inc. COA 31,499 07/19/12NO. 33,673 Wellington v. Mortgage Elec. Reg. Sys., Inc. COA 31,927 07/19/12NO. 33,672 State v. Read COA 31,931 07/19/12NO. 33,669 State v. Senior COA 31,722 07/19/12NO. 33,668 State v. Godoy COA 30,407 07/19/12NO. 33,665 State v. Trujillo COA 30,281 07/19/12NO. 33,664 State v. Reza COA 31,799 07/19/12NO. 33,663 Cordova v. KSL-Union COA 30,870 07/19/12NO. 33,662 State v. Garcia COA 31,768 07/19/12NO. 33,595 Stromei v. Rayellen Resources, Inc. COA 30,499 07/19/12NO. 33,696 Derringer v. Derringer COA 32,113 07/18/12NO. 33,683 State v. Herrera COA 30,662 07/18/12NO. 33,681 Wilson v. Hatch 12-501 07/18/12NO. 33,680 State v. Ross COA 31,765 07/18/12

Writ of certiorari Quashed

Date Order FiledNO. 33,342 State v. Urquizo COA 30,337 07/16/12NO. 32,742 State v. Martinez COA 30,637 07/16/12

http://nmsupremecourt.nmcourts.gov

18 Bar Bulletin - Agust 2, 2012 - Volume 51, No. 31

puBlished opinions

Date Opinion Filed

No. 31310 1st Jud Dist Santa Fe CV-10-4012, B MARTINEZ v PERA (affirm) 7/17/2012

No. 31465 5th Jud Dist Lea CR-10-172, STATE v R ALVARADO (affirm) 7/18/2012

No. 31356 1st Jud Dist Santa Fe CV-10-2418, H CLAY v NM TITLE LOANS (affirm in part 7/19/2012

reverse in part and remand)

unpuBlished opinions

No. 30034 2nd Jud Dist Bernalillo CV-07-11068, A SHARFI v D SERRANO (affirm) 7/17/2012

No. 31513 3rd Jud Dist Dona Ana CR-97-1584, STATE v R PASILLAS (reverse and remand) 7/17/2012

No. 30471 3rd Jud Dist Dona Ana CR-00-590, STATE v T HALL (reverse and remand) 7/18/2012

No. 31671 11th Jud Dist San Juan CR-11-384, STATE v A UPCHURCH (affirm in part, reverse in part and remand) 7/18/2012

No. 31818 2nd Jud Dist Bernalillo CV-10-12719, C STANTON v LOVELACE HEALTH (affirm) 7/18/2012

No. 31923 WCA-08-390, P BACA v DAIRYLAND PACKING (reverse) 7/18/2012

No. 31930 2nd Jud Dist Bernalillo JQ-10-61, CYFD v ASHLEE G (affirm) 7/19/2012

No. 32001 3rd Jud Dist Dona Ana CR-11-728, STATE v J CARO (affirm) 7/19/2012

No. 32103 3rd Jud Dist Dona Ana CR-10-406, STATE v J RODRIGUEZ (affirm) 7/20/2012

opinionsas updated By the clerk of the neW mexico court of appeals

Wendy F. Jones, Chief Clerk New Mexico Court of Appeals PO Box 2008 • Santa Fe, NM 87504-2008 • (505) 827-4925

effective july 20, 2012

Slip Opinions for Published Opinions may be read on the Court’s website:

http://coa.nmcourts.gov/documents/index.htm

http://coa.nmcourts.gov/documents/index.htm

Bar Bulletin - August 1 2012 - Volume 51, No. 31 19

Joey D. Moya, Chief Clerk New Mexico Supreme Court PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860

recent rule-making activityas updated By the clerk of the neW mexico supreme court

effective August 1, 2012

pending proposed rule changes open for comment:

Comment Deadline1-042 Consolidation; separate trials 08/01/1212-302 Appearance; withdrawal or substitution

of attorneys; changes of address or telephone number 08/01/12

recently approved rule changes since release of 2012 nmra:

Effective Date

rules of civil procedure for the district courts

1-096 Challenge of nominating petition 03/01/121-030 Depositions pon oral argument 02/17/12 1-001 Scope of rules; definitions 02/06/121-004 Process 02/06/12

rules of criminal procedure for the district courts

5-826 Appeals from magistrate or municipal court 08/03/125-827 Appeals from metropolitan court 08/03/125-828 Appeals from magistrate, metropolitan or

municipal court; dismissals for failure to comply with rules or failure to appear 08/03/12

5-829 Audio recordings of proceedings; appeals on the record 08/03/12

5-830 Statement of appellate issues; appeals on the record 08/03/12

5-831 Scope of review by district court; appeals on the record 08/03/12

5-208 Issuance of warrant for arrest and summons 06/29/125-211 Search warrants 06/29/125-502 Disclosure by the defendant 02/06/12

rules of criminal procedure for the magistrate courts

6-702 Advising defendant of right to appeal 08/03/126-703 Appeal 08/03/126-705 Withdrawn-Appeals; dismissals for failure

to comply with rules or failure to appear 08/03/126-503 Disposition without hearing 01/31/12

rules of criminal procedure for the metropolitan courts

7-702 Advising defendant of right to appeal 08/03/127-703 Appeal 08/03/127-705 Withdrawn-Tape recordings of proceedings;

appeals on the record 08/03/127-706 Withdrawn-Statement of appellate issues;

appeals on the record 08/03/127-707 Withdrawn-Scope of review by district court;

appeals on the record 08/03/127-709 Withdrawn-Appeals; dismissals for failure

to comply with rules or failure to appear 08/03/12

7-503 Disposition without hearing 01/31/12

rules of procedure for the municipal courts

8-702 Advising defendant of right to appeal 08/03/128-703 Appeal 08/03/128-705 Withdrawn-Appeals; dismissals for failure

to comply with rules or failure to appear 08/03/128-503 Disposition without hearing 01/31/12

criminal forms

9-104B Appearance, plea and waiver 01/31/12

children’s court rules and forms

10-223A Physical restraints in the courtroom 04/09/12

rules of evidence

11-102 Purpose and construction 06/16/1211-103 Rulings on evidence 06/16/1211-104 Preliminary questions 06/16/1211-105 Limiting evidence that is not admissible

against other parties or for other purposes 06/16/1211-106 Reminder of or related writings or recorded

statements 06/16/1211-107 Comment by court 06/16/1211-201 Judicial notice of adjudicative facts 06/16/1211-301 Presumptions in civil cases generally 06/16/1211-302 Presumption in criminal cases 06/16/1211-401 Test for relevant evidence 06/16/1211-402 General admissibility of relevant evidence 06/16/1211-403 Excluding relevant evidence for prejudice,

confusion, waste of time, or other reasons 06/16/1211-404 Character evidence; crimes or other acts 06/16/1211-405 Methods of proving character 06/16/1211-406 Habit; routine practice 06/16/1211-407 Subsequent remedial measures 06/16/1211-408 Compromise offers and negotiations 06/16/1211-409 Offers to pay medical and similar expenses 06/16/1211-410 Pleas, plea discussions, and related

statements 06/16/1211-411 Liability insurance 06/16/1211-412 Sex crimes; testimony; limitations;

in camera hearing 06/16/1211-413 Use of evidence obtained under immunity

order precluded 06/16/1211-601 Competency to testify in general 06/16/1211-602 Need for personal knowledge 06/16/1211-603 Oath or affirmation to testify truthfully 06/16/1211-604 Interpreter 06/16/1211-605 Judge’s competency as a witness 06/16/1211-606 Juror’s competency as a witness 06/16/1211-607 Who may impeach a witness 06/16/1211-608 A witness’s character for truthfulness

or untruthfulness 06/16/1211-609 Impeachment by evidence of a

criminal conviction 06/16/1211-610 Religious beliefs or opinions 06/16/12 11-611 Mode or order of examining witnesses

and presenting evidence 06/16/1211-612 Writing used to refresh a witness’s memory 06/16/12


rule-making activity http://nmsupremecourt.nmcourts.gov.

11-613 Witness’s prior statement 06/16/1211-614 Court’s calling or examining a witness 06/16/1211-615 Excluding witnesses 06/16/1211-701 Opinion testimony by law witnesses 06/16/1211-702 Testimony by expert witnesses 06/16/1211-703 Bases of an expert’s opinion testimony 06/16/1211-704 Opinion on an ultimate issue 06/16/1211-705 Disclosing the facts or data underlying

an expert’s opinion 06/16/1211-706 Court-appointed expert witnesses 06/16/1211-707 Polygraph examinations 06/16/1211-801 Definitions that apply to this article;

exclusions from hearsay 06/16/1211-802 The rule against hearsay 06/16/1211-803 Exceptions to the rule against hearsay–

regardless of whether the declarant is available as a witness 06/16/12

11-804 Exceptions to the rule against hearsay– when the declarant is unavailable as a witness 06/16/12

11-805 Hearsay within hearsay 06/16/1211-806 Attacking and supporting the declarant’s

credibility 06/16/1211-807 Residual exception 06/16/1211-901 Requirement of authentication or

identification 06/16/1211-902 Evidence that is self-authenticating 06/16/1211-903 Subscribing witness’ testimony 06/16/1211-1001 Definitions that apply to this article 06/16/1211-1002 Requirement of the original 06/16/1211-1003 Admissibility of duplicates 06/16/1211-1004 Admissibility of other evidence of content 06/16/1211-1005 Copies of public records to prove content 06/16/1211-1006 Summaries to prove content 06/16/1211-1007 Testimony or statement of a party

to prove content 06/16/1211-1008 Functions of the court and jury 06/16/1211-1101 Applicability of the rules 06/16/1211-1102 Title 06/16/12

rules of appellate procedure

12-212 Exhibits and depositions; general calendar cases 08/03/1212-603 Appeals in actions challenging candidates

or nominating petitions; primary or general elections; school board recalls and recalls of elected county officials 03/05/12

12-405 Opinions 03/01/1212-309 Motions effective 04/20/12

uJi–civil

13-2304 Retaliatory discharge 05/26/1213-2006 All jurors to participate 05/19/1213-2320 Special verdict form for wrongful

discharge cases 05/19/1213-832 Good faith and fair dealing 05/12/12

rules governing admission to the Bar

15-301.2 Legal services provider limited law license 01/01/12

rules governing discipline

17-206 Types of discipline 03/05/1217-209 Resignation by attorneys under investigation 04/05/1217-210 Reciprocal discipline 04/05/1217-212 Resigned, disbarred or suspended attorneys 04/05/1217-213 Appointment of counsel 04/05/1217-214 Reinstatement 04/05/1217-306 Required presence of attorney;

subpoena power 04/05/1217-307 Investigation of complaints 04/05/1217-313 Hearings 04/05/12

rules governing the client protection fund

17A-005 Composition and officers of the commission 01/01/12

rules of legal specialization

19-101 Board of Legal Specialization; title 01/01/12

rules governing the recording of Judicial proceedings

22-101 Scope; definitions; title 01/27/1222-203 Application; qualifications;

renewal of certification 01/27/1222-501 Examination standards 01/27/12

rules for revieW of Jsc27-401 Disposition 03/05/12

To view all pending proposed rule changes (comment period open or closed), visit the New Mexico Supreme Court’s website at http://nmsupremecourt.nmcourts.gov.

To view recently approved rule changes, visit the New Mexico Compilation Commission’s website at http://www.nmcompcomm.us.



http://www.nmcompcomm.us


advance opinionsfrom the neW mexico supreme court and court of appeals

http://www.nmcompcomm.us/

opinion

edWard l. chávez, Justice

{1} On the morning of January 21, 2006, Michael Swick, along with his cousin, Benito Lopez, and the victim, Alex Ogle, began a day of cruising and drinking alcohol in a borrowed Jeep. The three rode around for most of the day getting the Jeep stuck. Late in the afternoon, Swick and his cousin also consumed cocaine. They decided to walk because the Jeep was stuck and it was get-ting dark. Shortly thereafter, Swick’s cousin returned to the Jeep to get warmer clothes.{2} After getting a jacket from the Jeep, Swick’s cousin walked back toward the place where he had left Swick and Ogle. When he arrived, he found Swick standing, holding a large 15-pound rock, with Ogle lying on the ground beneath him. Swick had stabbed

JACqUELINE COOPERChief Public Defender

KATHLEEN T. BALDRIDgEAssistant Appellate Defender

Santa Fe, New Mexicofor Petitioner

gARy K. KINgAttorney generalJOEL JACOBSEN

Assistant Attorney generalSanta Fe, New Mexico

for Respondent

Ogle and bludgeoned him on the head with the rock. Swick and his cousin walked from the crime scene and had agreed to steal a car as they approached the home of Carlos and Rita Atencio. Mrs. Atencio answered the door, and they told her that their Jeep was stuck. She let them in so that they could use the telephone. When they entered the house, Swick stabbed Mrs. Atencio, and both men continued to beat, stab, and slash her and her husband. Swick and his cousin left with $14.00 and a van owned by the Atencios.{3} Swick was indicted with first-degree murder for Ogle’s killing. The indictment also charged him with 25 additional counts for the offenses at the Atencio home, includ-ing conspiracies, attempted first-degree murders, aggravated batteries with a deadly weapon, aggravated burglaries with a deadly weapon, and aggravated burglaries based on the battery of Mr. and Mrs. Atencio.

{4} During the second day of trial, Swick had an outburst in court and had to be re-strained by court security officers. Some of the jurors witnessed the incident. The trial court attempted to remedy the situation by extensively polling the jurors and asking whether they could be fair after the incident, to which all of the jurors answered yes. Swick moved for a mistrial, which was denied by the trial court.{5} At the close of the State’s case, defense counsel tendered an instruction to the trial court for voluntary manslaughter as a result of sufficient provocation and, in the alter-native, an instruction for self-defense. The trial court declined to give an instruction for self-defense. The trial court did instruct the jury on voluntary manslaughter, concluding that it was for the jury to determine whether Swick acted with sufficient provocation. However, without objection, the trial court instructed the jury on second-degree murder, although it neglected to include “without sufficient provocation” as an element of the crime.{6} The jury found Swick guilty of second-degree murder of Ogle as a step-down from first-degree murder and guilty of all of the remaining charges against him related to the Atencios. Swick appealed to the New Mexico Court of Appeals, raising issues regarding double jeopardy, jury instructions, and chal-lenging the trial court’s denial of his motion for a mistrial. The Court of Appeals upheld all of his convictions, holding that (1) Swick’s convictions for two counts of attempted murder and two counts of aggravated bat-tery with a deadly weapon did not violate the double jeopardy prohibition pursuant to State v. Armendariz, 2006-NMSC-036, ¶¶ 24-25, 140 N.M. 182, 141 P.3d 526; see State v. Swick, 2010-NMCA-098, ¶¶ 20-21, 148 N.M. 895, 242 P.3d 462; (2) Swick’s convictions for one count of aggravated burglary (deadly weapon) and two counts of aggravated burglary (battery) did not violate the double jeopardy prohibition, Swick, 2010-NMCA-098, ¶¶ 28-29; (3) it was not fundamental error to issue an erroneous jury instruction on second-degree murder when subsequent proper instructions corrected the error, id. ¶¶ 7-8; (4) an instruction on self-defense was not warranted in this case, id. ¶¶ 17-18; and (5) the trial court did not abuse its discretion by denying Swick’s motion for a mistrial, id. ¶ 34. We granted Swick’s peti-tion for writ of certiorari, and we (1) vacate


Opinion Number: 2012-NMSC-018

Topic Index:Appeal and Error: Remand; and Standard of Review

Constitutional Law: Double JeopardyCriminal Law: Aggravating or Mitigating Circumstances; Attempt;

Battery; Elements of Offense; Homicide; Murder; Self-Defense; Voluntary Manslaughter; and Weapons Offences

Criminal Procedure: Conduct of Defendant; Double Jeopardy; Jury Instructions; Mistrial; New Trial; and Self-Defense

Jury Instructions: Criminal Jury Instructions; Failure to give or Request; and Improper Jury Instructions

STATE OF NEW MEXICO,Plaintiff-Respondent,

versusMICHAEL SWICK,

Defendant-Petitioner.No. 32,510 (filed June 1, 2012)

ORIGINAL PROCEEDING ON CERTIORARILOUIS P. MCDONALD, District Judge

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both of Swick’s convictions for aggravated battery with a deadly weapon and his two convictions for aggravated burglary based on battery because these convictions violate the constitutional prohibition against double jeopardy; (2) remand to the trial court for a new trial on the second-degree murder conviction because the instruction regard-ing second-degree murder was erroneous; (3) affirm the trial court’s rejection of the self-defense jury instruction; and (4) affirm the trial court’s denial of the motion for a mistrial. Accordingly, we affirm the Court of Appeals in part and reverse in part.I. DOUBLE JEOPARDY{7} After leaving the scene of Ogle’s killing, Swick and his cousin decided to steal a car and ended up at the home of the Atencios. When they arrived they found several ve-hicles in the Atencio yard, but none were operable. Swick’s cousin then knocked on the door, and Mrs. Atencio answered. They asked if they could come in and use the phone, to which Mrs. Atencio responded, “Yeah, come in.” As soon as she let them in the house, Swick rushed past his cousin and stabbed Mrs. Atencio in the back. Swick then went to Mr. Atencio, who was sitting on the couch, and began to beat and stab him. They left with $14.00 and a van owned by the Atencios.{8} Swick was convicted of eleven felony counts arising from his conduct at the Aten-cio residence and contends that four counts must be vacated. He contends that the prohi-bition against double jeopardy was violated when he was convicted of (1) two counts of first-degree attempted murder and two counts of third-degree aggravated battery arising out of unitary conduct, and (2) two counts of aggravated burglary (battery) and one count of aggravated burglary (deadly weapon) arising out of unitary conduct. Regarding the first claim, the Court of Ap-peals affirmed Swick’s convictions without reaching the merits, citing State v. Glascock, 2008-NMCA-006, ¶ 26, 143 N.M. 328, 176 P.3d 317, for the proposition that the Court of Appeals is bound by Supreme Court precedent established in Armendariz. Swick, 2010-NMCA-098, ¶ 21.{9} The Court of Appeals also rejected Swick’s second double jeopardy claim regarding the aggravated burglary convic-tions. The Court of Appeals assumed that the conduct underlying the two convictions

was unitary and therefore limited its analysis to whether the Legislature authorized mul-tiple punishments for aggravated burglary under different theories. Id. ¶¶ 25, 29. The Court of Appeals held that the Leg-islature authorized multiple punishments because NMSA 1978, Sections 30-16-4(B) (burglary involving a deadly weapon) and 30-16-4(C) (burglary involving battery) (1963) addressed different social evils that required separate punishments—to deter criminals from using deadly weapons in burglaries versus to address actual physical injury to persons during burglaries. Swick, 2010-NMCA-098, ¶¶ 26, 29. The Court of Appeals acknowledged that the same quantum of punishment is prescribed for each subsection, suggesting that separate punishments may be inappropriate.1 Id. ¶ 29. Despite this acknowledgment, the Court of Appeals concluded that the Leg-islature intended multiple punishments. Id. ¶¶ 28-29.{10} A double jeopardy challenge is a con-stitutional question of law which we review de novo. See State v. Gallegos, 2011-NMSC-027, ¶ 51, 149 N.M. 704, 254 P.3d 655. The Fifth Amendment of the United States Constitution prohibits double jeopardy and is made applicable to New Mexico by the Fourteenth Amendment. U.S. Const. amends. V & XIV, § 1; Benton v. Maryland, 395 U.S. 784, 787 (1969). It functions in part to protect a criminal defendant “against multiple punishments for the same offense.” State v. Gutierrez, 2011-NMSC-024, ¶ 49, 150 N.M. 232, 258 P.3d 1024 (internal quotation marks and citations omitted). There are two classifications of double jeopardy multiple-punishment cases. The first is the double-description case, where the same conduct results in multiple con-victions under different statutes. Gallegos, 2011-NMSC-027, ¶ 31. The second is the unit-of-prosecution case, where a defendant challenges multiple convictions under the same statute. Id. As will be explained below, Swick’s first double jeopardy challenge is a double-description case, while his second is a unit-of-prosecution case.A. SEPARATE CONVICTIONS FOR

ATTEMPTED MURDER AND AGGRAVATED BATTERY ARIS-ING FROM THE SAME CON-DUCT VIOLATE THE PROHIBI-TION AGAINST DOUBLE

JEOPARDY.{11} Double-description claims are subject to the two-part test set forth in Swafford v. State, 112 N.M. 3, 810 P.2d 1223 (1991). First we consider whether the conduct un-derlying the two convictions was unitary (the same conduct). If it is not, then there is no double jeopardy violation. If it is unitary, we consider whether it was the Legislature’s intent to punish the two crimes separately. Id. at 13, 810 P.2d at 1233. In analyzing legislative intent, we first look to the lan-guage of the statute itself. State v. Frazier, 2007-NMSC-032, ¶ 21, 142 N.M. 120, 164 P.3d 1. If the statute does not clearly prescribe multiple punishments, then the rule of statutory construction established in Blockburger v. United States, 284 U.S. 299 (1932) applies. Swafford, 112 N.M. at 14, 810 P.2d at 1234.{12} Under Blockburger, “the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” 284 U.S. at 304. If the statute is “vague and unspecific,” Gutierrez, 2011-NMSC-024, ¶ 59 (internal quotation marks omitted), or written in the alterna-tive, courts must consider the State’s legal theory in assessing whether each provision requires proof of a fact which the other does not. Id. ¶ 58.{13} If each statute requires proof of a fact that the other does not, it may be inferred that the Legislature intended to authorize separate punishments under each statute. Swafford, 112 N.M. at 9, 14, 810 P.2d at 1229, 1234. However, this is only an inference that leads to an examination of other indicia of legislative intent. Id. at 14, 810 P.2d at 1234. “Legislative intent may be gleaned from the statutory schemes by identifying the particular evil addressed by each statute; determining whether the statutes are usually violated together; com-paring the amount of punishment inflicted for a violation of each statute; and examin-ing other relevant factors.” State v. Pedro Gonzales, 113 N.M. 221, 225, 824 P.2d 1023, 1027 (1992). If after examining the relevant indicia the legislative intent remains ambiguous, the rule of lenity requires us to presume that the Legislature did not intend multiple punishments for the same conduct. Swafford, 112 N.M. at 15, 810 P.2d at 1235.{14} We previously held in Armendariz

1 This Court and the Court of Appeals have used the quantum of punishment to support the proposition that the Legislature did not intend to punish the two crimes separately, both when the amount of punishment is the same and when the amount differs. Compare Swick, 2010-NMCA-098, ¶ 29 (“The quantum of punishment under either subsection is the same, which might suggest that separate punishments are inappropriate.”), with Armendariz, 2006-NMSC-036, ¶ 25 (“In comparing the quantum of punishment for each offense, the difference in the amount of punishment is arguably an indication that the Legislature did not intend [the offenses] to be separately punishable.”).


that the Legislature authorized multiple punishments for attempted murder and aggravated battery,2 even when they arise from the same conduct. Armendariz, 2006-NMSC-036, ¶¶ 24-25. In Arm-endariz, as in this case, the defendant was convicted of attempted first-degree mur-der and aggravated battery arising from the same conduct. Id. ¶ 5. After a “chaotic altercation” between the two victims and the defendant outside a bar, the defendant left the scene. However, the defendant returned with a gun and shot both victims. One of the victims survived. Id. ¶ 4. The defendant challenged his convictions, arguing that the Legislature did not intend to punish each crime separately when the underlying conduct for both charges was unitary. See id. ¶ 23. The State did not dispute that the conduct underlying the offense was unitary, so the Armendariz Court proceeded to the second prong of the Swafford analysis. Ar-mendariz, 2006-NMSC-036, ¶ 23.{15} The Armendariz Court first applied the Blockburger test and found that each crime contained an element that the other did not. Armendariz, 2006-NMSC-036, ¶ 24. Attempted murder requires proof of an overt act, intent to commit murder, and failure to complete the crime, which are not elements required to prove aggravated bat-tery. Id. Aggravated battery requires an un-lawful application of force, which is not an element of attempted murder. Id. Therefore, the Court concluded that a presumption arose that the Legislature intended separate punishments under these two statutes. Id.{16} The Armendariz Court then looked to other indicia of legislative intent. Id. ¶ 25. First, the Court recognized that at-tempted murder and aggravated battery were enacted to address different social harms, punishing the state of mind in attempted murder and punishing actual harm in aggravated battery. Id. Second, the Court reasoned that there was no language in either statute which indicated an intent that these crimes were alternative ways of committing the same crime. Id. Third, the Court explained that the two crimes do not necessarily have to be violated at the same time. Id. In other words, a defendant can commit attempted murder without also committing battery. The Armendariz Court used these three indicia to find a presump-tion of legislative intent to allow separate punishments. Id. The Armendariz Court

also recognized that the Legislature may not have intended separate punishments because the punishment for attempted first-degree murder is triple the punishment for aggravated battery.3 Id. However, the Court held that this disparity in punishment was insufficient to overcome what it considered to be a presumption of legislative intent to punish both crimes separately. Id. Despite legislative intent remaining ambiguous, the Armendariz Court did not apply the rule of lenity, and therefore it upheld the defendant’s convictions for both attempted murder and aggravated battery arising from the same conduct. See id.{17} Swick has asked this Court to overrule our holding in Armendariz. The factors we consider before overruling a prior decision are:

1) whether the precedent is so unworkable as to be intolerable; 2) whether parties justifiably relied on the precedent so that reversing it would create an undue hardship; 3) whether the principles of law have developed to such an extent as to leave the old rule no more than a remnant of abandoned doctrine; and 4) whether the facts have changed in the interval from the old rule to reconsideration so as to have robbed the old rule of justification.

State v. Riley, 2010-NMSC-005, ¶ 34, 147 N.M. 557, 226 P.3d 656 (quoting State v. Pieri, 2009-NMSC-019, ¶ 21, 146 N.M. 155, 207 P.3d 1132). “[W]hen one of the aforementioned circumstances convincingly demonstrates that a past decision is wrong, the Court has not hesitated to overrule even recent precedent.” Pieri, 2009-NMSC-019, ¶ 21 (internal quotation marks and citations omitted).{18} Three of the Riley factors do not apply to this case. The second factor, justifiable reliance, which is most important in cases implicating property and contract rights, and least important in cases involving pro-cedural and evidentiary rules, is not present in this case. See Payne v. Tennessee, 501 U.S. 808, 828 (1991); see also Arizona v. Gant, 556 U.S. 332, 349-50 (2009) (rejecting the State’s argument in that case that police officers relied on the “Belton rule,” and therefore developed a cognizable reliance in-terest that justified upholding the rule). The State could not have relied on Armendariz

to its detriment because the double jeopardy prohibition is applied at the conclusion of a case to prevent multiple punishments. The third factor, which analyzes whether the rule is only a remnant of an abandoned doctrine, is likewise inapplicable. The test established in Swafford, 112 N.M. at 13, 810 P.2d at 1233, is hardly “a remnant of abandoned doctrine,” although the principles of double jeopardy have developed since Swafford and have been modified by Gutierrez, 2011-NMSC-024, ¶ 58. Subject to subsequent modifications, Swafford remains the test to be applied in every case challenging convic-tions on double jeopardy grounds. Finally, the fourth and final factor does not apply because the Legislature has not modified the statutes defining Swick’s crimes since Armendariz was decided.{19} However, the first Riley factor, which examines whether the rule is so unworkable so as to be intolerable, does apply. While the precedent established in Armendariz is efficient and predictable, stare decisis is neither an “inexorable command,” Law-rence v. Texas, 539 U.S. 558, 577 (2003), nor “a mechanical formula of adherence to the latest decision.” Helvering v. Hallock, 309 U.S. 106, 119 (1940). We conclude that the modifications to double jeopardy jurisprudence make this Court’s opinion in Armendariz so unworkable as to be intoler-able. We therefore overrule Armendariz. We will show how the modifications to our double jeopardy jurisprudence since decid-ing Armendariz lead us to conclude that the Legislature did not intend multiple punish-ments for attempted murder and aggravated battery arising from the same conduct be-cause the latter is subsumed by the former. See Gutierrez, 2011-NMSC-024, ¶ 56.{20} The parties in this case do not dispute that the underlying conduct supporting both convictions was unitary. Swick explic-itly asserted in his opening brief that the conduct underlying these two convictions was unitary. The State did not challenge this assertion in its answer brief. Thus, the question before this Court is whether the Legislature authorized multiple punish-ments under the statutes for attempted murder and aggravated battery with a deadly weapon for the same conduct. We conclude that it did not.{21} Since we decided Armendariz, this Court has modified the Blockburger analysis to be used in New Mexico. See Gutierrez,

2 NMSA 1978, § 30-2-1 (1963, as amended through 1994) (murder); NMSA 1978, § 30-28-1 (1963) (attempt to commit a felony); and aggravated bat-tery, NMSA 1978, § 30-3-5 (1969) (aggravated battery). 3Attempted first-degree murder is a second-degree felony punishable by imprisonment for nine years. See NMSA 1978, § 31-18-15(A)(6) (2007); § 30-28-1(A). Aggravated battery is a third-degree felony punishable by imprisonment forthree years. See § 31-18-15(A)(9).


2011-NMSC-024, ¶ 58. In Gutierrez, we rejected the approach used in Armendariz, which is a strict elements test, in order to be more in line with United States Supreme Court precedent. Gutierrez, 2011-NMSC-024, ¶ 58. We clarified that, in the abstract, the application of Blockburger should not be so mechanical that it is enough for two stat-utes to have different elements. Gutierrez, 2011-NMSC-024, ¶ 58. Instead, we held in Gutierrez that when a statute is “vague and unspecific,” id. ¶ 59 (internal quotation marks omitted), our courts must evaluate legislative intent by considering the State’s legal theory independent of the particular facts of the case, id. ¶ 58. Our courts may do this by examining the charging documents and the jury instructions given in the case. Id. ¶ 53.{22} According to Counts III and IV of the indictment in this case, to prove first-degree attempted murder, the State had to prove:

That on or about the 21st day of January, 2006, in Sandoval County, New Mexico, the above named defendant, did attempt to commit Murder, in that the defen-dant intended to commit Murder, and began to do an act which constituted a substantial part of Murder, but failed to commit the offense, contrary to §30-28-01, and §30-02-01, NMSA 1978, as amended.

Although the indictment, the jury instruc-tions, and the verdict forms are silent as to the identity of the attempted-murder victims, it is clear that the victims are Carlos and Rita Atencio.{23} Counts V and VI, which charge third-degree aggravated battery with a deadly weapon, read:

That on or about the 21st day of January, 2006, in Sandoval County, New Mexico, the above-named defendant, did touch or apply force to Carlos Atencio, [Count V or Rita Atencio, Count VI] with [a] knife, [a] cane, and a leg from a chair or table, which was a deadly weapon, intending to injure Carlos Atencio, [Count V or Rita Atencio, Count VI], or another, contrary to §30-3-5, NMSA 1978, as amended.4

{24} As this Court recognized in Arm-endariz, attempted murder and aggravated battery are not always committed together. 2006-NMSC-036, ¶ 25. However, under Gutierrez, when the two statutory crimes

are committed together, as they were in this case, the trial court must look to the State’s theory of the case and the elements of the crime charged if one of the statutes is a generic, multi-purpose statute that is “vague and unspecific.” 2011-NMSC-024, ¶ 59 (internal quotation marks omitted). The Legislature is always free to express its intent to punish the same conduct under more than one statute. However, if legisla-tive expression is absent and one statute is subsumed by the other, then convictions for both cannot stand. Swafford, 112 N.M. at 14, 810 P.2d at 1234.{25} Under the attempted murder stat-utes, §§ 30-28-1 & 30-2-1, many forms of conduct can support the “began to do an act which constituted a substantial part of Murder” element. Therefore, attempted murder is a generic, multipurpose statute that is “vague and unspecific,” and we must look to the State’s theory of the case to inform what “began to do an act which constituted a substantial part of Murder” means in this case. When doing so, we are persuaded that the State used the aggravated batteries to prove the element of “began to do an act which constituted a substantial part of Murder.” The State argues that, even after an examination of the charging docu-ment and the jury instructions, the elements of the attempt statute are still vague. It is true that one must infer what the “began to do an act” element is after reading the charging document or the jury instruc-tions. However, the State does not offer an alternative act that could have been the basis for this element. As Justice Bosson stated in his special concurrence in Gutierrez, “[a] prosecutor should not be allowed to defeat the constitutional protections afforded by the double jeopardy clause” by clever indictment drafting. 2011-NMSC-024, ¶ 79 (Bosson, J., specially concurring).{26} The State’s legal theory at the outset of trial was that after Swick entered the Atencios’ home, he “proceed[ed] to try [to] kill them.” Moreover, the State proffered the same testimony to prove the aggravated batteries as it did to prove the attempted murders, which was that Swick beat, stabbed, and slashed Mr. and Mrs. Atencio after entering their home. Finally, the State, in its closing argument, after giving the ele-ments of attempted murder, asked the jury, “[w]hy is this attempted murder and not just aggravated battery?” After a recitation of the same evidence that the State used to support the aggravated battery charge earlier in its closing, it concluded with “[t]

his kind of excessive violence is supportive of an intent to kill.”{27} The theory of the State’s case to sup-port the charges of aggravated battery with a deadly weapon and also the charges of attempted murder was that Swick beat, stabbed, and slashed the Atencios. In other words, considering the State’s theory of the case, the aggravated battery elements were subsumed within the attempted murder elements. When this occurs, the double jeopardy prohibition is violated, and “pun-ishment cannot be had for both.” Swafford, 112 N.M. at 14, 810 P.2d at 1234.{28} We find Brown v. Ohio, 432 U.S. 161, 167 (1977), instructive on this point. In Brown, the United States Supreme Court recognized that each state court has the “final authority” to interpret its state’s legis-lation. See id. Consistent with this principle, the Court in Brown upheld the Ohio Court of Appeals’ holding construing joyriding as a lesser-included offense of auto theft, where the statutory language left ambiguous whether the greater offense included all of the elements of the lesser offense. See id. at 162 & n.1, 163 & n.2. The Brown Court recognized that state courts may properly conclude that one offense subsumes an-other, despite ambiguous language, through statutory construction. See id. at 166-68. By looking to the legal theory of the case, that is precisely what we do here. See Davis v. State, 770 N.E.2d 319, 324 (Ind. 2002) (vacating a conviction for aggravated battery when there was a reasonable possibility that the jury relied on the same act by the defen-dant to convict the defendant of aggravated battery as it did to convict the defendant of attempted murder); People ex rel. Walker v. Pate, 292 N.E.2d 387, 390 (Ill. 1973) (ob-serving that it was error for a district court to impose sentences for both aggravated battery and attempted murder because the convictions arose from the same conduct and aggravated battery is a lesser-included offense of attempted murder).{29} Even if the elements of attempted murder do not subsume the elements of aggravated battery, an examination of these statutes leads us to conclude that Swick’s convictions violate the double jeopardy prohibition, contrary to the holding in Armendariz, for two reasons. First, the social harms addressed by each statute do not conclusively indicate an intent to pun-ish separately. Regarding social harms, the Armendariz Court concluded that “[t]he prohibition against attempted murder is directed at protecting a person’s life and the

4 The jury instructions substantially mirrored the language of the charging document for both crimes.


statute is directed at punishing a person’s state of mind, whereas the prohibition against aggravated battery is directed at protecting a person from bodily injury and the statute is directed at punishing actual harm.” 2006-NMSC-036, ¶ 25. Another reasonable assessment of the social harms is that both statutes address the social evil of harmful attacks on a person’s physical safety and integrity. Both statutes punish overt acts against a person’s safety but take different degrees into consideration. The aggravated battery statute concerns itself with the intent to harm and the attempted murder statute concerns itself with the intent to harm fa-tally. However, this is only one factor to con-sider in the analysis. Even if we accept as true that different social harms may be addressed by each statute, Swafford explained that “[i]f the punishment attached to an offense is enhanced to allow for kindred crimes, these related offenses may be presumed to be punished as a single offense.” 112 N.M. at 15, 810 P.2d at 1235. Aggravated battery committed with an intent to cause great bodily harm is punishable by three years in prison. NMSA 1978, §§ 31-18-15(A)(9) (2007), 30-3-5(C). However, when the ag-gravated battery is committed with an intent to kill (attempted murder), the Legislature has enhanced the punishment to nine years. See §§ 31-18-15(A)(6), 30-2-1, 30-28-1. In other words, the Legislature intended that Swick be punished more harshly when he stabbed the Atencios with the intent to kill them rather than with the intent merely to injure them.{30} Second, the rule of lenity should have been applied in Swick’s favor. The United States Supreme Court has held that when doubt regarding legislative intent remains, ambiguity “must be resolved in favor of len-ity.” Whalen v. United States, 445 U.S. 684, 694 (1980). We apply the rule of lenity in this case because reasonable minds can differ as to the Legislature’s intent in punishing these two crimes. Santillanes v. State, 115 N.M. 215, 221, 849 P.2d 358, 364 (1993). And when we apply the rule of lenity to con-victions under the attempted murder and aggravated battery with a deadly weapon statutes arising from unitary conduct, we must hold that multiple convictions cannot stand.{31} Because our application of Block-burger has been modified to bring it closer in line with United States Supreme Court precedent, we overrule Armendariz and vacate the convictions that carry the lesser punishment. See State v. Santillanes, 2001-NMSC-018, ¶¶ 28, 30, 130 N.M. 464, 27 P.3d 456 (“‘[T]he general rule requires that

the lesser offense be vacated’ in the event of impermissible multiple punishments. . . . We believe that the degree of felony . . . is an appropriate measure of legislative intent regarding which of two offenses is a greater offense.” (internal citation omitted)); see also Jones v. Thomas, 491 U.S. 376, 387 (1989) (“[W]here concurrent sentences are imposed, unlawful imposition of two sentences may be cured by vacating the shorter of the two sentences.”); People v. Fuentes, 258 P.3d 320, 326 (Colo. App. 2011) (“[W]e must maximize the effect of the jury’s verdict and retain the greatest number of convictions and longest sentence.”); State v. Polson, 145 S.W.3d 881, 897 (Mo. Ct. App. 2004) (“[W]e can cure the violation [of the double jeopardy prohibition] by ordering that the shorter of the [two] sentences be vacated.” (internal quotation marks and citation omit-ted)); State v. Valenzona, 2007-Ohio-6892, ¶ 36 (“Public policy suggests that where two charges are allied offenses of similar import, the offense with the longer sentence should be preferred over the offense with the shorter sentence.” (internal quotation marks and citation omitted)); State v. Scribner, 746 A.2d 145,147-48 (Vt. 1999) (“Vacating the shorter sentence fully vindicates defendant’s rights.”). Therefore, because the two convic-tions for third-degree aggravated battery and the two convictions for attempted murder violate the prohibition against double jeop-ardy, we remand this case to the trial court to vacate the two convictions for aggravated battery with a deadly weapon.B. TWO CONVICTIONS FOR

AGGRAVATED BURGLARY WHILE COMMITTING A BATTERY AND ONE CON-VICTION FOR AGGRAVATED BURGLARY WITH A DEADLY WEAPON ARISING FROM A SINGLE UNAUTHORIZED ENTRY VIOLATE THE PROHIBI-TION AGAINST DOUBLE JEOPARDY.

{32} Swick’s second double jeopardy argu-ment challenges his two convictions for aggravated burglary while committing a bat-tery, § 30-16-4(C), and one conviction for aggravated burglary with a deadly weapon, § 30-16-4(A). The Court of Appeals upheld Swick’s convictions, Swick, 2010-NMCA-098, ¶ 29, assuming without deciding that the convictions were based on the same conduct, id. ¶¶ 23-25. However, the Court of Appeals held that the convictions consti-tuted separate and distinct offenses because a separate underlying theory regarding the protected social interests supports each of the two offenses, and because Subsections

A and C have different elements and differ-ent purposes. Swick, 2010-NMCA-098, ¶¶ 24-29. We agree that these subsections have different elements. However, we conclude that the Legislature has clearly defined the unit of prosecution to be based on an un-authorized entry with the intent to commit a felony therein.{33} We apply a unit-of-prosecution analysis because we are examining multiple convictions under the same statute. See Gal-legos, 2011-NMSC-027, ¶ 31. This analysis requires courts to determine the unit of prosecution intended by the Legislature by employing a two-part test, both parts of which are concerned with legislative intent. Id. ¶¶ 31-32. First, courts must analyze the statute at issue to determine whether the Legislature has defined the unit of prosecution. If the unit of prosecution is clear from the language of the statute, the inquiry is complete. If the unit of prosecution is not clear from the statute at issue, including its wording, history, purpose, and the quantum of punishment that is prescribed, courts must determine whether a defendant’s acts are separated by sufficient “indicia of distinctness” to justify multiple punishments. Id. ¶ 31 (internal quotation marks and citation omitted). In this case, we do not reach the second part of the test because we conclude that the Legis-lature defined the unit of prosecution to be an unlawful entry with intent to commit a felony therein.{34} Section 30-16-4 defines the relevant elements for aggravated burglary as follows:

Aggravated burglary consists of the unauthorized entry of any . . . dwelling . . . , with intent to commit any felony or theft therein and the person either:

A. is armed with a deadly weapon;

B. after entering, arms himself with a deadly weapon;

C. commits a battery upon any person while in such place, or in entering or leaving such place.

{35} The State’s theory is that Swick com-mitted three aggravated burglaries, and that the first aggravated burglary occurred when he entered the Atencios’ home without au-thority and armed with a knife. The State argues that the crime of aggravated burglary under Section 30-16-4(A) was complete the instant Swick entered the dwelling with a deadly weapon. The State also contends that the second and third aggravated burglaries occurred when Swick used the knife to com-mit battery upon the Atencios while he was


inside the dwelling. However, these conten-tions are not supported or contemplated by the statute and we therefore decline to divide one offense into separate means used to accomplish the ultimate goal, which was the unlawful entry into the dwelling with the intent to commit a felony therein. State v. LeFebre, 2001-NMCA-009, ¶¶ 18, 23, 130 N.M. 130, 19 P.3d 825 (vacating one of the defendant’s convictions for resisting, evading, or obstructing an officer under several subsections of the same statute, NMSA 1978, § 30-22-1 (1981) (providing that evading could take place either on foot or in a vehicle, because it was all part of the unitary conduct to evade officers). See also Gallegos, 2011-NMSC-027, ¶ 55 (inferring that “the Legislature established what we will call a rebuttable presumption that multiple crimes are the object of only one, overarch-ing, conspiratorial agreement subject to one, severe punishment set at the highest crime conspired to be committed”). This is particularly true when the State concedes that the conduct underlying Swick’s three convictions for aggravated burglary was unitary because Swick “could not have com-mitted [the aggravated burglaries based on the batteries] without first arming himself with the knife.”{36} Nonetheless, the State argues that threatening a homeowner with a deadly weapon is one social evil that Section 30-16-4 addresses, and battering a homeowner during a burglary is another. Even assuming this to be an accurate characterization of the social evils to be addressed by the statute, it is clear from the structure of the statute alone that each aggravated burglary requires an unauthorized entry. When there is only one entry, only one of these aggravating factors is needed to support punishing the burglary as a second-degree felony instead of a third-degree felony. See NMSA 1978, §§ 30-16-3 (1971), 30-16-4. Therefore, we need not go on to the second step of the unit-of-prosecution analysis and hold that when there is only one unauthorized entry, there can only be one aggravated burglary. Section 30-16-4.{37} Courts in other jurisdictions with similar aggravated burglary statutes have also held that a defendant cannot be con-victed of more than one aggravated burglary when there is only one unauthorized entry. For example, in Fuentes, two men, including the defendant, forced their way into a house and assaulted two victims. 258 P.3d at 322. The defendant was found guilty of assault and two counts of first-degree burglary based upon the two assaults. Id. at 321. The defendant argued that the double jeopardy

clause precluded his conviction of the two counts of first-degree burglary because there was only one entry, although two people were assaulted. Id. at 322.{38} The Colorado Court of Appeals phrased the question as follows: “we must determine whether defendant’s assault on two people in the course of a single unlawful entry of an occupied structure constitutes the same offense or multiple offenses under the first degree burglary statute.” Id. at 323. Colorado’s first-degree burglary statute pro-vides:

A person commits first degree burglary if the person knowingly enters unlawfully, or remains un-lawfully after a lawful or unlawful entry, in a building or occupied structure with intent to commit therein a crime, other than trespass as defined in this article, against another person or property, and if in effecting entry or while in the building or occupied structure or in immediate flight therefrom, the person or another participant in the crime assaults or menaces any person, or the person or another participant is armed with explo-sives or a deadly weapon.

Id. (quoting Colo. Rev. Stat. § 18-4-202(1) (2010) (internal quotation marks omitted).{39} The court noted that the Colorado first-degree burglary statute encompassed the same elements as the second-degree burglary statute, which is violated when a person “knowingly breaks an entrance into, enters unlawfully in, or remains unlawfully after a lawful or unlawful entry in a building or occupied structure with intent to com-mit therein a crime against another person or property.” Id. (quoting Colo. Rev. Stat. § 18-4-203(1) (2010) (internal quotation marks omitted). The Colorado Court of Appeals noted that burglary is a form of trespass coupled with an intent to commit a crime in a building. Id.{40} The prosecution contended that even if the second-degree burglary statute is primarily concerned with property in-terests, the “first degree burglary [statute] is primarily intended to protect persons because the additional elements proscribe conduct that poses great danger to others.” Id. at 324. The Colorado Court of Appeals rejected this argument because although the additional elements address risk to persons, these elements only “modify and aggravate the principal crime of burglary; they do not change the gravamen of the crime.” Id. Thus, the court held that “a single entry can support only one conviction of first degree

burglary, even if multiple assaults occur.” Id. at 325.{41} The Fuentes Court also cited other state court opinions that were in accord with its holding and which had burglary statutes similar to the burglary statutes in Colorado. Id. at 325. See, e.g., State v. DeWitt, 101 P.3d 277, 285 (Mont. 2004) (holding that it was error for the district court not to dismiss one count of aggravated burglary because there was only one unauthorized entry); State v. Brooks, 53 P.3d 1048, 1050 (Wash. Ct. App. 2002) (recognizing that it was improper to analogize burglary to robbery, making the number of victims the focus of the analysis, because the focus should be on the number of entries). The Fuentes Court acknowledged that the state was free to charge a defendant with assaultive crimes if the evidence sup-ports such a charge, but that the state cannot do so under the aggravated burglary statute if there was only one unlawful entry. Fuentes, 258 P.3d at 325.{42} The approach taken in these cases is persuasive and consistent with New Mexico jurisprudence. To summarize, the simple burglary statute in New Mexico provides, in relevant part, that “[b]urglary consists of the unauthorized entry of any . . . dwelling . . . with the intent to commit any felony or theft therein.” Section § 30-16-3. The aggra-vated burglary statute encompasses the same elements as simple burglary but increases the punishment if the defendant “A. is armed with a deadly weapon; B. after entering, arms himself with a deadly weapon; [or] C. commits a battery upon any person while in such place . . . .” Section 30-16-4; see State v. DeGraff, 2006-NMSC-011, ¶ 28, 139 N.M. 211, 131 P.3d 61 (recognizing the implied “or” in the aggravated burglary statute, § 30-16-4). When there is only one entry into a dwelling, only one of these aggravating factors is needed to support punishing the burglary as a second-degree felony instead of a third-degree felony. See §§ 30-16-3, -4.{43} In this case, there was only one un-lawful entry with the intent to commit a felony therein, and thus there was only one burglary that could be enhanced to an aggravated burglary. Both Mr. and Mrs. Atencio testified that Swick entered their home only once. Swick’s cousin also testi-fied that he and Swick entered the home only once in order to steal a vehicle. The State attempted to justify the two charges of aggravated burglary based on battery by pointing to two victims and then attempted to justify the aggravated burglary because Swick “had a knife from the time he killed . . . Ogle.” Although the facts that Swick


battered the Atencios and that Swick was armed with a knife before the unauthor-ized entry support enhancing the burglary to an aggravated burglary, it is clear that the Legislature intended that only one subsection enhance the punishment for a single unauthorized entry. This approach is logical and consistent with the principles of double jeopardy because Swick was also convicted of two counts of armed robbery, NMSA 1978, § 30-16-2 (1973); two counts of aggravated battery with a deadly weapon, § 30-3-5(C); and two counts of attempted murder, §§ 30-2-1 & 30-28-1, for the same assaultive conduct that took place after the unlawful entry.{44} Because Swick’s convictions under three subsections of Section 30-16-4 violate the prohibition against double jeopardy, we remand to the trial court to vacate Swick’s two convictions for aggravated burglary based on battery.II. JURY INSTRUCTIONS{45} At the close of the State’s case, defense counsel tendered two different instructions to the trial court regarding Ogle’s death, one for voluntary manslaughter as a result of sufficient provocation, and, in the alterna-tive, a self-defense instruction. The defense maintained that Ogle stabbed Swick before Swick stabbed Ogle. Detective Traxler and Officer Wiese both testified during trial that Swick’s knife wound could have been defensive in nature. Defense counsel argued that this type of injury would cause fear in an ordinary person and that it made Swick fearful for his life. The State contended that Swick could not have been acting in self-defense resulting from fear and “be sufficiently provoked at the same time.” The trial court refused to give an instruction on self-defense, but it did instruct the jury on voluntary manslaughter. However, the trial court gave the jury the second-degree murder instruction that applies when vol-untary manslaughter is not a lesser-included offense, even though the trial court had determined that voluntary manslaughter was a lesser-included offense in this case. The instruction that was given to the jury, UJI 14-211 NMRA, omits the element of the statute that requires the State to prove beyond a reasonable doubt that the defen-dant did not act with sufficient provocation. Section 30-2-1(B). Compare UJI 14-210 NMRA with UJI 14-211. Neither party objected to this instruction.{46} Because this issue was not raised be-low, we will review for fundamental error, State v. Sosa, 1997-NMSC-032, ¶ 23, 123 N.M. 564, 943 P.2d 1017, “or if substantial justice has not been done.” State v. Osborne,

111 N.M. 654, 662, 808 P.2d 624, 632 (1991) (internal quotation marks and cita-tion omitted). The exacting standard of review for reversal for fundamental error requires “the question of guilt [be] so doubt-ful that it would shock the conscience [of the court] to permit the verdict to stand.” Sosa, 1997-NMSC-032, ¶ 24. With regard to jury instructions, fundamental error oc-curs when, because an erroneous instruction was given, a court has no way of knowing whether the conviction was or was not based on the lack of the essential element. Osborne, 111 N.M. at 662-63, 808 P.2d at 632-33.A. THE TRIAL COURT ERRED IN

ISSUING AN INSTRUCTION ON SECOND-DEGREE MURDER THAT OMITTED THE ESSEN-TIAL ELEMENT “WITHOUT SUFFICIENT PROVOCATION.”

{47} The trial court gave the following jury instruction, based on UJI 14-211, for second-degree murder:

For you to find the defendant, Michael Swick, guilty of second degree murder, the State must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:1. The defendant, Michael Swick, killed Alex Ogle;2. The defendant, Michael Swick knew that his acts created a strong probability of death or great bodily harm to Alex Ogle;3. This happened in New Mexico, on or about the 21st day of January, 2006.

See UJI 14-211.{48} The title of this jury instruction indi-cates that it is applicable when “voluntary manslaughter [is] not [a] lesser-included offense” of second-degree murder, id. (emphasis added), and its Use Note states that the instruction applies “only when second-degree murder is the lowest degree of homicide to be considered by the jury,” id. Use Note 1. When voluntary manslaughter is a lesser-included offense, an additional element is added to the instruction between elements 2 and 3 of UJI 14-211. Swick points out that UJI 14-210, the instruc-tion that should have been given to the jury, provides the following:

For you to find the defendant Mi-chael Swick guilty of second degree murder, the state must prove to your satisfaction beyond a reason-able doubt each of the following elements of the crime:1. The defendant, Michael Swick, killed Alex Ogle;

2. The defendant, Michael Swick, knew that his acts created a strong probability of death or great bodily harm to Alex Ogle;3. The defendant, Michael Swick, did not act as a result of sufficient provocation;4. This happened in New Mexico, on or about the 21st day of January, 2006.

See UJI 14-210.{49} Although the trial court incorrectly instructed the jury regarding second-degree murder, the trial court correctly instructed the jury regarding voluntary manslaugh-ter with UJI 14-220. Instruction 14-220 includes an explanation of the difference between second-degree murder and vol-untary manslaughter, which is sufficient provocation. The jury was also given UJI 14-222 NMRA, which defines “sufficient provocation.”{50} The State contends that because the jury was instructed to consider the instruc-tions as a whole, the voluntary manslaugh-ter instruction and the instruction defining “sufficient provocation” provided the jury with enough guidance to cure the defect in the second-degree murder instruction. Swick counters that notwithstanding the instructions regarding voluntary man-slaughter, it is not valid to presume the jury understood that an element, which the State had the burden of proving beyond a reasonable doubt, was missing from the second-degree murder instruction.{51} Swick also asserts that the trial court’s step-down instruction based on UJI 14-250 NMRA prevented the jury from moving on to voluntary manslaughter after reaching a unanimous guilty verdict on second-degree murder without considering the missing element. UJI 14-250 requires the jury to first address the highest degree of the crime charged, which in this case is first-degree murder. If the jury had found Swick guilty of first-degree murder, their deliberations regarding murder would have ended, and the jury would have returned a verdict of guilty of first-degree murder. However, under the step-down instruction, if unable to agree that Swick was guilty of first-degree murder, the jury was to consider second-degree murder next, and if unable to agree that Swick was guilty of second-degree murder, the jury was to consider voluntary manslaughter. Because the jury in this case agreed that Swick was guilty of second-degree murder, defense counsel argues that, under the step-down instruction, the jury never would have reached either the voluntary manslaughter instruction or the


instruction defining “sufficient provoca-tion.”{52} The State disagrees that the step-down instruction prevented the jury from properly considering voluntary manslaughter. The State asserts that the procedural, nonsub-stantive step-down instruction does not direct the jury to disregard any elements in the voluntary manslaughter instruction and concludes that “there is no reason to believe the jury did so.” Finally, the State argues that evidence to convict Swick of second-degree murder was not so doubtful that it would shock the conscience of this Court to al-low the second-degree murder conviction to stand. See State v. Cunningham, 2000-NMSC-009, ¶ 13, 128 N.M. 711, 998 P.2d 176 (“The doctrine of fundamental error is to be resorted to in criminal cases only for the protection of those whose innocence appears indisputabl[e], or open to such question that it would shock the conscience to permit the conviction to stand.”(internal quotation marks and citation omitted)).{53} The Court of Appeals agreed with the State, relying on Cunningham, in which this Court held that a failure to include an essential element in the elements section of an instruction is not fundamental er-ror if other instructions given to the jury adequately address the excluded element. Swick, 2010-NMCA-098, ¶¶ 7-10 (citing Cunningham, 2000-NMSC-009, ¶ 21). Among other claims, the defendant in Cunningham appealed his conviction of first-degree murder based on the trial court’s issuance of an instruction that was missing an essential element. 2000-NMSC-009, ¶¶ 1, 8. The defendant argued that when a trial court instructs the jury on self-defense, the trial court must add the language “[t]he defendant did not act in self defense” to the elements section of the instruction for the homicide crime being charged. Cun-ningham, 2000-NMSC-009, ¶ 9 (internal quotation marks omitted). In Cunningham, the trial court failed to add either that lan-guage or any reference to unlawfulness or self-defense in the essential elements section of the instruction. See id. ¶¶ 8-9.{54} However, the trial court in Cunning-ham did give a separate self-defense instruc-tion that included both the three elements of self-defense and the following language: “The burden is on the State to prove beyond a reasonable doubt that the defendant did not act in self defense. If you have a reason-able doubt as to whether the defendant acted in self defense you must find the defendant not guilty.” Id. ¶ 7 n.2 (internal quotation marks omitted). The Cunningham Court reviewed for fundamental error rather than

reversible error because the issue was not preserved below by the defendant. Id. ¶¶ 10-11. We distinguished Cunningham from State v. Parish, 118 N.M. 39, 878 P.2d 988 (1994), which found that it was reversible error when an elements instruction omits a reference to self-defense or unlawfulness. Cunningham, 2000-NMSC-009, ¶¶ 16-17; see also Parish, 118 N.M. at 42, 878 P.2d at 991 (explaining that reversible error review only asks whether “a reasonable juror would have been confused or misdirected”). Unlike the instruction given in Cunningham, the self-defense instruction given in Parish failed to properly place the burden on the State to prove that the defendant did not act in self-defense. Cunningham, 2000-NMSC-009, ¶ 17. After explaining the difference between fundamental error standard of review and reversible error standard of review, we af-firmed the defendant’s first-degree murder conviction, reasoning that the defendant failed to meet the high burden of proving fundamental error, and that the instruction adequately placed the burden of disproving self-defense on the State. Id. ¶¶ 17, 20-21, 24.{55} However, when the jury instructions have not informed the jury that the State had the burden to prove an essential ele-ment, such as unlawfulness or an absence of self-defense, convictions have been reversed for fundamental error. State v. Armijo, 1999-NMCA-087, ¶ 25, 127 N.M. 594, 985 P.2d 764. The controlling question, which we answer affirmatively in this case, is whether “without sufficient provocation” is an es-sential element of second-degree murder when the jury is instructed on voluntary manslaughter as a potential lesser-included offense.{56} “In determining what is or is not an es-sential element of an offense, we begin with the language of the statute itself, seeking of course to give effect to the intent of the legislature.” State v. Green, 116 N.M. 273, 276, 861 P.2d 954, 957 (1993) (internal quotation marks and citation omitted). The language of the second-degree murder statute provides, “Unless he is acting upon sufficient provocation, upon a sudden quar-rel or in the heat of passion, a person who kills another human being without lawful justification or excuse commits murder in the second degree . . . .” Section 30-2-1(B). A plain reading of the statute indicates that “without sufficient provocation” is an es-sential element of the crime. See Green, 116 N.M. at 276, 861 P.2d at 957. Therefore, the State must prove beyond a reasonable doubt that the defendant acted without sufficient provocation.

{57} Unlike the other instructions given in Cunningham that placed the burden on the State to prove that the defendant did not act in self-defense, the instruction defining “sufficient provocation” in this case did not specify that it was the State’s burden to prove that Swick acted without sufficient provoca-tion. The instruction only provided:

“Sufficient provocation” can be any action, conduct or cir-cumstances which arouse anger, rage, fear, sudden resentment, terror or other extreme emotions. The provocation must be such as would affect the ability to reason and to cause a temporary loss of self control in an ordinary per-son of average disposition. The “provocation” is not sufficient if an ordinary person would have cooled off before acting.

UJI 14-222. Like unlawfulness, “without sufficient provocation” is an essential ele-ment, and it should have been included in the instruction on second-degree murder. Because this element was missing from the instruction, there was no way for the jury to know that the State had the burden of proving beyond a reasonable doubt that Swick acted without sufficient provocation in order to prove that he committed second-degree murder.{58} Because we have no way of knowing whether the jury understood that it was the State’s burden to prove that Swick acted without sufficient provocation, allowing the conviction to stand would “shock the conscience of this Court and constitute a clear miscarriage of justice.” Osborne, 111 N.M. at 663, 808 P.2d at 633. Therefore, we reverse Swick’s conviction for second-degree murder, and this case is remanded to the trial court for a new trial consistent with this opinion.B. THE TRIAL COURT DID NOT

ERR IN DENYING SWICK’S PROPOSED SELF-DEFENSE INSTRUCTION.

{59} Swick also argues that the jury should have been instructed on self-defense be-cause enough evidence was presented at trial to allow reasonable minds to differ on the issue of self-defense. Swick maintains that his trial attorney detailed all of the evidence that supported instructing the jury on self-defense. The State responds that, given the extent and severity of Ogle’s injuries, reasonable minds could not differ regarding all of the elements of self-defense. The Court of Appeals held that Swick’s response, which ultimately caused Ogle’s death, “cannot be regarded as objectively


reasonable” and affirmed the decision of the trial court not to give the instruction. Swick, 2010-NMCA-098, ¶ 18.{60} “The propriety of denying a jury instruction is a mixed question of law and fact that we review de novo.” State v. Gaines, 2001-NMSC-036, ¶ 4, 131 N.M. 347, 36 P.3d 438. In order to warrant jury instruc-tions on self-defense, evidence must be suf-ficient to allow reasonable minds to differ regarding all elements of the defense. See State v. Jacob Gonzales, 2007-NMSC-059, ¶ 19, 143 N.M. 25, 172 P.3d 162. “If any reasonable minds could differ, the instruc-tion should be given.” State v. Rudolfo, 2008-NMSC-036, ¶ 27, 144 N.M. 305, 187 P.3d 170. An instruction on self-defense requires that “(1) the defendant was put in fear by an apparent danger of immediate death or great bodily harm, (2) the killing resulted from that fear, and (3) the defendant acted reasonably when he or she killed.” Id. ¶ 17 (internal quotation marks and citations omitted). “When considering a defendant’s requested instructions, we view the evidence in the light most favorable to the giving of the requested instruction[s].” State v. Boyett, 2008-NMSC-030, ¶ 12, 144 N.M. 184, 185 P.3d 355 (alteration in original) (inter-nal quotation marks and citations omitted).{61} The State asserts that Swick did not offer enough evidence to support a self-defense instruction, analogizing this case to State v. Lopez, 2000-NMSC-003, 128 N.M. 410, 993 P.2d 727. In Lopez, the defendant appealed his conviction for first-degree murder, claiming that the trial court erred in not giving the jury an instruction on self-defense. Id. ¶ 22. After a night of drinking and taking drugs with the victim, Lopez stabbed the victim multiple times and crushed his skull with a rock. Id. ¶ 3. Lopez claimed that he murdered the victim after the victim drew a knife. Id. Lopez’s story was corroborated by several witnesses, including one who testified that she saw Lopez after the murder and he had what could have been a stab wound on his cheek. Id. ¶ 24. Another witness testified that he also saw Lopez after the murder and he had a cut and a scar on his face. Id. We held that this was enough evidence to meet the first require-ment because evidence of an appearance of immediate danger supports an inference of a defendant’s fear. Id. ¶ 25.{62} However, we went on to hold that there was not enough evidence of the second and third requirements to allow reason-able minds to differ when the defendant responded to the alleged attack by stabbing the victim fifty-four times. Id. ¶¶ 25-26. We concluded that this type of killing was more

consistent with rage or hatred than with fear and that there was not sufficient evidence to support a finding that it was reasonable for Lopez to respond in such a manner. Id. ¶ 26.{63} In this case, there is enough evidence to support the first element of self-defense. Like the defendant in Lopez, Swick sup-ported the first requirement with evidence that he sustained a “serious, defensive-type stab wound to his hand that required medical attention.” Moreover, Swick also offered the testimony of Officer Wiese and Detective Traxler that Swick told them Ogle was the person who stabbed him and that the wound on Swick’s hand could possibly be defensive, as opposed to self-inflicted. Swick’s cousin also testified that Swick told him Ogle stabbed him. Under Lopez, such evidence would be enough to support the first element of self-defense.{64} However, Swick does not point to any evidence in the record that his fear motivated the killing, other than a request to draw such an inference. On the other hand, the State introduced evidence that would make such an inference appear to be unreasonable. Dr. Michelle Berry, who performed the autopsy on Ogle, testified that there were at least seven distinct stab wounds in the upper left area of the chest with the possibility of additional over-lapping stab wounds in this area, a stab wound in the middle of the chest, one on the face, and one on the back. She also testified that there were multiple injuries to Ogle’s face consistent with blunt force trauma that could have been caused by the 15-pound rock that was in evidence. This evidence, like the evidence of the victim’s injuries in Lopez, does not support a rea-sonable inference that fear caused Swick to kill Ogle.{65} Even assuming that Swick initially attacked Ogle out of fear, the evidence could not support a finding that Swick acted reasonably. Several cases hold that a defendant is not entitled to a self-defense instruction when the defendant’s response to the threat was unreasonable. For example, in State v. Martinez, 95 N.M. 421, 423, 622 P.2d 1041, 1043 (1981), holding limited on other grounds by Sells v. State, 98 N.M. 786, 788, 653 P.2d 162, 164 (1982), we held that “if the defendant was in fact acting in self-defense, it would not have been neces-sary for him to shoot the victim through the arm and chest, wrap a cord around the victim’s neck, and beat the victim [in] the head” until his skull was smashed. In contrast, in State v. Branchal, 101 N.M. 498, 503-04, 684 P.2d 1163, 1168-69 (Ct.

App. 1984), the Court of Appeals held that a self-defense jury instruction was warranted when the defendant testified that she shot the victim once because she was afraid he would shoot her or one of her children. Id. at 501-02, 684 P.2d at 1166-67. Because we do not find evidence on which reasonable minds can differ as to the second and third elements of self-defense in Swick’s case, we agree with the Court of Appeals that the trial court did not err in rejecting Swick’s self-defense instruction.III. THE TRIAL COURT DID NOT

ERR IN DENYING THE MOTION FOR MISTRIAL.

{66} During the second day of trial, Swick had an outburst in court where he abruptly stood up and stated, “I’m going to have to go somewhere, man. I can’t handle this.” This outburst occurred just as the trial court was recessing the trial. Court security officers had to restrain Swick in order to control him. Some jurors witnessed this incident.{67} The next morning the trial court polled the jurors individually to determine what they saw and heard, and then asked them whether what they witnessed, if anything, would impact their ability to be fair and impartial. More than half of the fifteen jurors saw Swick’s outburst or the security guards restraining him or both. Each juror indicated in turn that neither the outburst incident nor shackling Swick in the courtroom during the remainder of the trial would affect the juror’s fairness and impartiality in deciding the case based on the evidence presented. The trial court proceeded with the trial and also ordered that Swick be bound and shackled for the remainder of the trial. Defense counsel moved for a mistrial, explaining that be-cause many of the jurors had witnessed the outburst incident on the previous day and would now see Swick bound and shackled, Swick would be unfairly prejudiced. The trial court denied the motion without ex-planation. Swick’s final argument is that the trial court erred in denying his motion for a mistrial following this incident.{68} “A denial of a motion for mistrial is reviewed under an abuse of discretion standard.” State v. Johnson, 2010-NMSC-016, ¶ 49, 148 N.M. 50, 229 P.3d 523. “An abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case.” State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal quotation marks and citations omitted).{69} Swick contends that, notwithstanding the voir dire conducted by the trial court, he was prejudiced because the jurors could


not forget the incident and might have improperly used it as proof of a propen-sity for violence. The State responds that the trial court did not abuse its discretion because the trial court promptly dealt with the outburst to ensure that the jurors could be impartial after witnessing the incident. The State also emphasizes that a defendant should not be able to benefit from his or her own misbehavior. To support its position, the State cites State v. Paul, 83 N.M. 527, 529, 494 P.2d 189, 191 (Ct. App. 1972), in which the Court of Appeals held that a defendant should “not . . . be permitted to gain from his outbursts.”{70} The trial court decided to have Swick bound and shackled because it concluded

that it would be the best way to handle the situation consistent with the trial court’s firmly held belief in having the criminal defendant present at trial. The trial court’s precautions themselves, emphasizing that restraining Swick during the trial did not indicate his guilt or innocence and asking each juror whether Swick’s appearance in shackles during the trial would affect that juror’s ability to remain impartial, reflected the court’s impartiality in this case. The trial court did not abuse its discretion in denying the motion for mistrial, and thus we affirm the Court of Appeals’ holding.IV. CONCLUSION{71} Consistent with this opinion, we (1) remand to the trial court to vacate Swick’s

two convictions for aggravated battery and his two convictions for aggravated burglary based on battery; (2) affirm the rulings of the trial court regarding the self-defense jury instruction and the motion for a mistrial; and (3) remand to the trial court for a new trial on the second-degree murder convic-tion.{72} IT IS SO ORDERED. EDWARD L. CHÁVEZ,

Justice

WE CONCUR:PETRA JIMENEZ MAES, Chief JusticePATRICIO M. SERNA, JusticeRICHARD C. BOSSON, JusticeCHARLES W. DANIELS, Justice



Opinion Number: 2012-NMSC-019

Topic Index:Appeal and Error: Standard of Review

Children: Custody; and Uniform Parentage ActCivil Procedure: Standing

Civil Rights: Sex DiscriminationDomestic Relations: Adoption; Child Custody; Child Custody

Jurisdiction; and Visitation RightsStatutes: Interpretation; and Legislative Intent

BANI CHATTERJEE,Petitioner-Petitioner,

versusTAyA KINg,

Respondent-Respondent.No. 32,789 (filed June 1, 2012)

ORIGINAL PROCEEDING ON CERTIORARIDANIEL A. SANCHEz, District Judge

opinion

edWard l. chávez, Justice

{1} Bani Chatterjee (Chatterjee) and Taya King (King) are two women who were in a committed, long-term domestic relation-ship when they agreed to bring a child into their relationship. Chatterjee pleaded in the district court that during the course of their relationship, and with Chatterjee’s active participation, King adopted a child (Child) from Russia. Chatterjee supported King and Child financially, lived in the family home, and co-parented Child for a number of years before their commitment to each other foundered and they dissolved their relationship. Chatterjee never adopted Child. After they ended their relationship, King moved to Colorado and sought to prevent Chatterjee from having any contact with Child.{2} Chatterjee filed a petition in the district court to establish parentage and determine custody and timesharing (Petition). Chatter-jee alleged that she was a presumed natural parent under the former codification of the New Mexico Uniform Parentage Act,1 NMSA 1978, Section 40-11-3 (1986), Section 40-11-5 (1997), and Section 40-11-21 (1986). She further claimed to be the equitable or de facto parent of Child, and as such, was entitled to relief.2 In response to Chatterjee’s Petition, King filed a motion to dismiss pursuant to Rule 1-012(B) NMRA. In the motion to dismiss, King neither ad-mitted nor denied any of the facts that Chat-terjee claimed in her Petition. King instead argued that Chatterjee was a third party who was seeking custody and visitation of Child and that NMSA 1978, Section 40-4-9.1(K) (1999) of the Dissolution of Marriage Act, NMSA 1978, §§ 40-4-1 to -20 (1973, as amended through 2011), prohibits a third party from receiving custody rights absent a showing of unfitness of the natural or adoptive parent. The district court dismissed the Petition for failure to state a claim upon which relief could be granted.{3} Chatterjee then appealed to the Court of Appeals, which affirmed in part, reversed in part, and remanded to the district court. Chatterjee v. King, 2011-NMCA-012, ¶ 40, 149 N.M. 625, 253 P.3d 915, cert. granted, 2011-NMCERT-001, 150 N.M. 560, 263 P.3d 902. The Court of Appeals held that Chatterjee did not have standing

CAREN I. FRIEDMANSanta Fe, New Mexico

N. LyNN PERLSAlbuquerque, New Mexico

SHANNON P. MINTERCATHERINE P. SAKIMURA

NATIONAL CENTER FOR LESBIAN RIgHTS

San Francisco, Californiafor Petitioner

KERRI ALLENSWORTHAlbuquerque, New Mexico

PATRICK L. MCDANIELATKINSON & KELSEy, P.A.

Albuquerque, New Mexicofor Respondent

DORENE A. KUFFERKyLE M. STOCK

SOUTHWEST WOMEN’S LAW CENTER

Albuquerque, New Mexicofor Amici

National Association of Social Workers, New Mexico Chapter

of National Association of Social Workers, and Southwest Women’s

Law Center

SARAH E. BENNETTROTHSTEIN, DONATELLI, HUgHES,

DAHLSTROM, SCHOENBURg & BIENVENU, L.L.P.

Santa Fe, New MexicoDAVID g. CRUM

EMMA L. WHITLEyJESSICA C. ROTH

MARTHA J. KASERNEW MEXICO LEgAL gROUP, P.C.

Albuquerque, New MexicoSANDRA MORgAN LITTLE

JAN B. gILMAN-TEPPERROBERTA S. BATLEy

TIFFANy O. LEIgHLITTLE, gILMAN-TEPPER

& BATLEy, P.A.Albuquerque, New Mexico

DAVID L. WALTHERgRETCHEN M. WALTHER

KATHRyN E. TERRyJENNIFER R. RODgERSWALTHER FAMILy LAW

Albuquerque, New Mexicofor Amici

Hollinger, Joslin, and Other Family Law Professors

1Uniform Parentage Act, NMSA 1978, §§ 40-11-1 to -23 (1986, as amended through 2004; repealed by Laws 2009, ch. 215, § 19, effective January 1, 2010; recodified as New Mexico Uniform Parentage Act, NMSA 1978, §§ 40-11A-101 to -903 (2010)). This opinion refers to the version of the UPA that was in effect at the time of the original lawsuit. The “hold out provision” discussed at length in this opinion has been limited by the Legislature in the new enactments. See § 40-11A-204. The disposition in this case, however, would not be impacted by the limitations. 2Because we find that a plain reading of the Uniform Parentage Act gives Chatterjee standing to seek custody, we do not reach her arguments on


to seek joint custody absent a showing of King’s unfitness because she is neither the biological nor the adoptive mother of Child. Id. ¶ 29. The Court further held that pre-sumptions establishing a father and child relationship cannot be applied to women, and a mother and child relationship can only be established through biology or adoption. Id. ¶¶ 27-29. Judge Vigil, who dissented in the Court of Appeals opinion, believed that Chatterjee had standing to pursue joint cus-tody under the extraordinary circumstances doctrine. Id. ¶ 49 (Vigil, J., dissenting). The Court of Appeals reversed the district court’s dismissal concerning the opportunity for Chatterjee to seek standing for visita-tion and remanded to the district court, instructing the district court to determine whether visitation with Chatterjee would be in Child’s best interests. Id. ¶¶ 39-40. On remand, the district court appointed a guardian ad litem for Child and accepted the guardian ad litem’s recommendation that contact and visitation with Chatterjee would be in Child’s best interests.{4} The question in this case is whether Chatterjee has pleaded sufficient facts in her Petition to give her standing to pursue joint custody of Child under the Dissolution of Marriage Act. Whether Chatterjee has standing to pursue joint custody depends on whether Chatterjee has pleaded facts suf-ficient to establish that she is an interested party under Section 40-11-21 of the New Mexico Uniform Parentage Act (UPA). Her pleading sets forth facts, which, if true, establish that she has a personal, financial, and custodial relationship with Child and has openly held Child out as her daughter, although she is neither Child’s biological nor adoptive mother.{5} We hold that a natural mother is an interested party who has standing to pursue joint custody of a child. We conclude, based on the facts and circumstances of this case, that the facts pleaded by Chatterjee are suf-ficient to confer standing on her as a natural mother because (1) the plain language of the UPA instructs courts to apply Section 40-11-5(A)(4), which specifies criteria for establishing a presumption that a man is a natural parent, to women because it is prac-ticable for a woman to hold a child out as her own by, among other things, providing full-time emotional and financial support for the child; (2) commentary by the draft-ers of the UPA supports application of the provisions related to determining paternity to the determination of maternity;3 (3) the

approach in this opinion is consistent with how courts in other jurisdictions have inter-preted their UPAs, which contain language similar to the New Mexico UPA; and (4) New Mexico’s public policy is to encour-age the support of children, financial and otherwise, by providers willing and able to care for the child.I. SECTION 40-11-21 ESTABLISHES

A BASIS FOR STANDING FOR “ANY INTERESTED PARTY.”

{6} Chatterjee argues that she has stand-ing to establish parentage as an interested party under Section 40-11-21 of the UPA because she has held Child out as her child pursuant to Section 40-11-5(A)(4). Section 40-11-21 provides that “[a]ny interested party may bring an action to determine the existence or nonexistence of a mother and child relationship. Insofar as practicable, the provisions of the Uniform Parentage Act [40-11-1 NMSA 1978] applicable to the father and child relationship apply.”{7} While there is no case law in New Mex-ico holding that a person alleging a natural parent relationship under the UPA is per se an interested party, our courts have recog-nized that the Legislature “clearly intended” that the UPA have broad application. In In re Estate of DeLara, 2002-NMCA-004, ¶ 13, 131 N.M. 430, 38 P.3d 198, the Court of Appeals concluded that the use of the term “any interested party” in Sections 40-11-7 and 40-11-21, coupled with the extraordi-nary twenty-one year statute of limitations, Section 40-11-23, indicates the Legislature’s intent to apply the UPA broadly. The Court recognized that this reading was in line with New Mexico’s strong public policy favoring child support, which is important to both the child and the state. DeLara, 2002-NMCA-004, ¶ 13.{8} Moreover, the Court of Appeals has treated the “interested party” standard under the UPA as a fact-sensitive inquiry, considering the particular facts of each case. See, e.g., Sisneroz v. Polanco, 1999-NMCA-039, ¶¶ 18, 20, 22, 126 N.M. 779, 975 P.2d 392 (holding that, under the facts of the case, a mother had standing to bring a suit for retroactive child support under the UPA); State ex rel. Salazar v. Roybal, 1998-NMCA-093, ¶¶ 3-4, 125 N.M. 471, 963 P.2d 548 (holding that a twenty-year-old adult was an interested party and, until the age of twenty-one, eligible to seek support and a determination of paternity); Tedford v. Gregory, 1998-NMCA-067, ¶ 13, 125 N.M. 206, 959 P.2d 540 (same).

{9} We agree that a case-by-case analysis is the best way to determine whether an action is appropriate under the UPA. Chatterjee claims that she openly held out Child as her natural child from the moment that she and King brought Child to New Mexico from Russia and therefore that she should be able to establish a parent and child relationship under Section 40-11-5(A)(4), which creates a presumption of paternity. Section 40-11-5(A)(4), which we refer to as the “hold out provision,” provides that “[a] man is presumed to be the natural father of a child if . . . he openly holds out the child as his natural child and has established a personal, financial or custodial relationship with the child.” Any person who is able to establish presumed natural parenthood under Sec-tion 40-11-5(A)(4) would qualify as an interested party. Therefore, we must now determine whether Chatterjee, as a woman, can establish a presumed natural parent and child relationship under Section 40-11-5(A)(4).II. THE UPA REQUIRES COURTS TO

APPLY PROVISIONS RELATING TO THE FATHER AND CHILD RELATIONSHIP TO WOMEN WHEN IT IS PRACTICABLE TO DO SO.

{10} Chatterjee argues that the Court of Appeals erred in holding that none of the UPA provisions relating to the father and child relationship may be applied to women. She claims that this holding directly contra-dicts the plain language of Section 40-11-21. King responds that the UPA provisions establishing paternity should not be applied to women because the UPA expressly pro-vides the ways in which maternity can be established. We agree with Chatterjee. We find support for Chatterjee’s argument not only in the plain language of the statute itself, but also in the purpose of the UPA, the application of paternity provisions to women in jurisdictions with similar UPA provisions, and in public policy that encour-ages the love and support of children from able and willing parents.{11} “Statutory interpretation is an issue of law, which we review de novo.” N.M. Indus. Energy Consumers v. Pub. Regulation Comm’n, 2007-NMSC-053, ¶ 19, 142 N.M. 533, 168 P.3d 105. When reviewing a statute, our courts aim to effectuate the Legislature’s intent in passing the statute. See id. ¶ 20. When attempting to determine the Legislature’s intent, “[w]e look first to the plain language of the statute, giving the

extraordinary circumstances or constitutionality. 3“Paternity,” see, e.g., Section 40-11-5, and “maternity” refer to legal determinations of parenthood.


words their ordinary meaning, unless the Legislature indicates a different one was intended.” Id.{12} In addition to looking at the statute’s plain language, we will consider its history and background and how the specific statute fits within the broader statutory scheme. State v. Rivera, 2004-NMSC-001, ¶ 13, 134 N.M. 768, 82 P.3d 939. When a statute is ambiguous, this may include an assessment of how its construction implicates public policy. See State v. Smith, 2004-NMSC-032, ¶ 10, 136 N.M. 372, 98 P.3d 1022. Because we consider statutes in the context of the broader act in which they are situated, we read them in conjunction with statutes ad-dressing the same subject matter, ensuring a harmonious, common-sense reading. State v. Muniz, 2003-NMSC-021, ¶ 14, 134 N.M. 152, 74 P.3d 86, superseded by statute on other grounds as recognized in State v. Tafoya, 2010-NMSC-019, ¶ 10, 148 N.M. 391, 237 P.3d 693 and State v. Jones, 2010-NMSC-012, ¶ 19, 148 N.M. 1, 229 P.3d 474.A. THE PLAIN LANGUAGE OF

SECTIONS 40-11-4(A) AND 40-11-21, READ TOGETHER, RE-QUIRES THIS COURT TO APPLY THE HOLD OUT PROVISION IN SECTION 40-11-5(A)(4) TO ALLEGED MOTHERS.

{13} We begin our analysis with Section 40-11-2 of the UPA, which states that a “‘parent and child relationship’ means the legal relationship existing between a child and his natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties and obligations. It includes the mother and child relationship and the father and child relationship.” For a mother, Section 40-11-4(A) provides that “the natural mother may be established by proof of her having given birth to the child, or as provided by Section [40-11-21 NMSA 1978].” (Em-phasis added.) Section 40-11-21 states that “[a]ny interested party may bring an action to determine the existence or nonexistence of a mother and child relationship. Insofar as practicable, the provisions of the Uniform Parentage Act applicable to the father and child relationship apply.”{14} The Court of Appeals held that read-ing Section 40-11-21 to allow Chatterjee to establish parentage through Section 40-11-5(A)(4) was impracticable. Chatterjee, 2011-NMCA-012, ¶ 27. The Court also held that reading Section 40-11-5 to apply to women would render Section 40-11-4(A), which pro-vides for how a woman may establish natural motherhood, “‘surplusage or meaningless.’” Chatterjee, 2011-NMCA-012, ¶ 27 (quoting Int’l Ass’n of Firefighters v. City of Carlsbad,

2009-NMCA-097, ¶ 11, 147 N.M. 6, 216 P.3d 256 (“We seek to give meaning to all parts of the statute, such that no portion is rendered surplusage or meaningless.”)). It reasoned that the Legislature, in enacting Section 40-11-4(A), created separate sections for how a woman as opposed to a man can prove natural parenthood, implying that it intended each sex to have different means available for proving parenthood. See Chat-terjee, 2011-NMCA-012, ¶ 27. The Court therefore concluded that applying the means for proving paternity to proving maternity would contravene the Legislature’s intent. See id. ¶¶ 10, 27. We disagree.{15} It is practicable to apply Section 40-11-5 to determine maternity in certain circumstances. “Practicable” is defined as “reasonably capable of being accomplished; feasible.” Black’s Law Dictionary 1291 (9th ed. 2009). Section 40-11-5(A)(4), which establishes a parental presumption, is rea-sonably capable of being accomplished by either a man or a woman. Section 40-11-5(A)(4) provides, in relevant part, that “[a] man is presumed to be the natural father of a child if . . . while the child is under the age of majority, he openly holds out the child as his natural child and has established a personal, financial or custodial relation-ship with the child.” Because the presump-tion is based on a person’s conduct, not a biological connection, a woman is capable of holding out a child as her natural child and establishing a personal, financial, or custodial relationship with that child. This is particularly true when, as is alleged in this case, the relationship between the child and both the presumptive and the adoptive parent occurred simultaneously.{16} In addition, by limiting proof of natural motherhood to biology under Section 40-11-4(A), the Court of Appeals renders meaningless the clear instruction in Section 40-11-4(A) that a “natural mother may [also] be established . . . as provided by Section 21 [40-11-21 NMSA 1978].” See Int’l Ass’n of Firefighters, 2009-NMCA-097, ¶ 11. A straightforward reading of Section 40-11-4(A) is that motherhood may be es-tablished by giving birth, by adoption, and in any other way in which a father and child relationship may be established when it is practicable to do so. Because it is practicable for a woman to hold a child out as her own, the plain language instructs us to recognize that Section 40-11-5(A)(4) relating to the father and child relationship also applies to the mother and child relationship.{17} This interpretation is not only express-ly required; it is consistent with our obliga-tion to read related statutes in harmony. See

Smith, 2004-NMSC-032, ¶ 10. If Section 40-11-4(A) is interpreted as narrowly as the Court of Appeals suggests, all other forms of parentage allowed under the language “or as provided by Section 21 of the Uniform Parentage Act” would not be recognized in New Mexico as valid parent-child relation-ships. We simply cannot read this language out of the statute.{18} Moreover, we seek to avoid an inter-pretation of a statute that would raise con-stitutional concerns. Lovelace Med. Ctr. v. Mendez, 111 N.M. 336, 340, 805 P.2d 603, 607 (1991), reaff’d in State ex rel. Regents of E. N.M. Univ. v. Baca, 2008-NMSC-047, ¶ 10, 144 N.M. 530, 189 P.3d 663 (“It is, of course, a well-established principle of statutory construction that statutes should be construed, if possible, to avoid constitu-tional questions.” (internal quotation marks and citation omitted)). In New Mexico Right to Choose/NARAL v. Johnson, 1999-NMSC-005, ¶ 36, 126 N.M. 788, 975 P.2d 841, we held that classifications based on gender are presumptively unconstitutional. In this case, the Court of Appeals’ reading would yield different results for a man than for a woman in precisely the same situation. If this Court interpreted Section 40-11-5(A)(4) as applying only to males, then a man in a same-sex relationship claiming to be a natural parent because he held out a child as his own would have standing simply by virtue of his gender, while a woman in the same position would not. In other words, if two men were in Chatterjee’s and King’s exact situation, Chatterjee’s male counter-part would have standing under Section 40-11-5(A)(4) of the UPA to establish parentage, while Chatterjee would not. We avoid this disparate treatment, giving effect to the Legislature’s intent, with a plain and simple application of Section 40-11-5(A)(4) to both men and women under Section 40-11-21.B. THE DRAFTERS OF THE

ORIGINAL UPA INTENDED THAT PROVISIONS RELATING TO THE FATHER AND CHILD RELATIONSHIP APPLY TO WOMEN IN APPROPRIATE SITUATIONS.

{19} The authors of the Uniform Parentage Act of 1973 (the original UPA), anticipating situations such as this case, provided in a comment that masculine terminology was used for the sake of simplicity and not to limit application of its provisions to males. Indeed, the commentary relating to Section 21 of the original UPA, which was adopted by New Mexico in 1986, instructs courts on how to apply Section 21:


This Section permits the declara-tion of the mother and child rela-tionship where that is in dispute. Since it is not believed that cases of this nature will arise frequently, Sections 4 to 20 are written princi-pally in terms of the ascertainment of paternity. While it is obvious that certain provisions in these Sections would not apply in an action to establish the mother and child relationship, the Committee decided not to burden these—al-ready complex—provisions with references to the ascertainment of maternity. In any given case, a judge facing a claim for the deter-mination of the mother and child relationship should have little dif-ficulty deciding which portions of Sections 4 to 20 should be applied.

Unif. Parentage Act § 21 cmt. (1973), available at http://www.law.upenn.edu/bll/archives/ulc/fnact99/1990s/upa7390.htm.{20} There is no indication that our Leg-islature intended a different reading of this statute in New Mexico when it adopted the original UPA in its entirety, with only minor revisions, in 1986. Wallis v. Smith, 2001-NMCA-017, ¶ 9, 130 N.M. 214, 22 P.3d 682. The commentary from the original UPA, together with the explicit instruction given in Section 40-11-21, which provides that the paternity provisions may apply as far as practicable to establish natural motherhood, indicate that the Legislature intended Section 40-11-5(A)(4) to apply to both men and women. Because Section 40-11-21 instructs courts to apply provisions relating to the father and child relationship to mother and child relationships, then Sec-tion 40-11-5(A)(4) must also be applied to women.C. OTHER JURISDICTIONS WITH

STATUTES VIRTUALLY IDENTI-CAL TO THE NEW MEXICO UPA HAVE APPLIED PROVISIONS RE-LATING TO THE FATHER AND CHILD RELATIONSHIP TO MOTHER AND CHILD RELATIONSHIPS.

{21} In Elisa B. v. Superior Court, 117 P.3d 660, 666-67 (Cal. 2005), the California Su-preme Court held that it is practicable to ap-ply the hold out provision of the California UPA—equivalent to the provision at issue in this case—to women. The district court

found that the petitioner was obligated to pay child support under the equitable estoppel theory. Id. at 664. The California Court of Appeal reversed the district court, reasoning that California case law, Johnson v. Calvert, 851 P.2d 776, 781 (Cal. 1993), which held that a child could not have three natural parents (one father and two mothers), prevented it from recognizing the petitioner as a second parent. Elisa B., 117 P.3d at 665-66. The California Supreme Court reversed the Court of Appeal, hold-ing that the petitioner, the “woman who agreed to raise children with her [same-sex] partner, supported her partner’s artificial insemination . . . and received the resulting twin children into her home and held them out as her own, is the children’s parent under the Uniform Parentage Act and has an obliga-tion to support them.” Id. at 662 (emphasis added).{22} In coming to this conclusion, the Cali-fornia Supreme Court relied solely on the language of the California UPA,4 explaining that the Court of Appeal’s reliance on John-son was misplaced because that holding had been abrogated by the California domestic partnership statutes. Elisa B., 117 P.3d at 666. The Elisa B. court distinguished the matter it declined to support in Johnson, recognition of three natural parents in a surrogacy arrangement, from the issue in Elisa B., which was whether a child could have two natural parents, both of whom are women. See Elisa B., 117 P.3d at 666.{23} The Elisa B. court did not rely on California’s domestic partnership statutes to reach its conclusion. The two women neither registered as domestic partners nor adopted each other’s children. Id. at 663. The Elisa B. court also went to great lengths to explain that, prior to the effective date of the domestic partnership statutes, it had held that a child could have two mothers in a second parent adoption case. Id. at 666. Elisa B. also recognized that the California Court of Appeal had, prior to the enactment of the domestic partnership statutes, applied the hold out provision of the California UPA to women who were not the biological mothers of the children they held out as their own. See id. at 667; see also In re Salvador M., 4 Cal. Rptr. 3d 705, 708 (Cal. Ct. App. 2003) (applying the hold out provision to the child’s half-sister because “[t]he paternity presumptions are driven, not by biological paternity, but by

the state’s interest in the welfare of the child and the integrity of the family”); In re Karen C., 124 Cal. Rptr. 2d 677, 681-82 (Cal. Ct. App. 2002) (finding that a woman with no biological connection to a child could be a presumed mother under the hold out provi-sion traditionally applied to fathers).{24} Since Elisa B. was decided, California has applied the hold out provision to women in varying factual situations. With a fact pattern similar to the case before us, in S.Y. v. S.B., 134 Cal. Rptr. 3d 1, 7-8 (Cal. Ct. App. 2011), the California Court of Ap-peal applied the hold out provision of the California UPA in analyzing whether an alleged second mother was a natural par-ent. The court held that she could establish she was a natural parent because (1) she received the children into her home and held them out as her natural children, (2) she and the adoptive mother were in a com-mitted relationship when the children were adopted, (3) the two women verbally agreed that the second mother would provide for the adoptive mother and their children, and (4) the second mother took time off from work to be present for the birth of one of the children. S.Y., 134 Cal. Rptr. 3d at 8-11. The Court has also applied the hold out provision of the California UPA to a grandmother seeking a determination of parentage, but held that she was not a presumed parent because she had openly held the child out as her grandson, not her son. In re Bryan D., 130 Cal. Rptr. 3d 821, 830-31 (Cal. Ct. App. 2011).{25} The Colorado Court of Appeals has also interpreted the Colorado UPA clause, “[i]nsofar as practicable, the provisions of [the Colorado UPA] applicable to the father and child relationship apply,” as enabling language applicable to the paternity provi-sions relating to women. In re S.N.V., ___ P.3d ___, 2011 WL 6425562 at *2 (Colo. App. 2011) (second alteration in original) (internal quotation marks and citation omit-ted). A dispute arose between the biological mother and the wife of the biological father as to who was the legal mother of the child. Id., ___ P.3d at ___, 2011 WL 6425562 at *1. The biological mother claimed that the child was conceived in a consensual relation-ship with the biological father. Id. The wife claimed that she and her husband had a surrogacy arrangement with the biological mother. Id. The wife filed an action under the Colorado UPA to establish the parent-

4King incorrectly interprets the holding of Elisa B., claiming that the court’s application of the California UPA paternity provision to a woman in that case was “only possible under a recently enacted version of the [California] domestic partnership statutes.” Contrary to King’s claim, however, the Elisa B. court explained that “[a]lthough . . . the UPA contains separate provisions defining who is a mother and who is a father, it expressly provides that in determining the existence of a mother and child relationship, ‘[i]nsofar as practicable, the provisions of this part applicable to the father and child relationship apply.’” 117 P.3d at 665 (citation omitted).

http://www.law.upenn.edu/bll/


age of the child. Id. The court held that an action to determine legal maternity “may be brought by any woman who is presumed to be the child’s mother under [Colo. Rev. Stat.] Section 19-4-105 [(2008)]”—the equivalent of Section 40-11-5 of the New Mexico UPA—which provides paternity presumptions. See In re S.N.V., ___ P.3d at ___, 2011 WL 6425562 at *2.{26} The In re S.N.V. court based its hold-ing on three provisions of the Colorado UPA, including Colo. Rev. Stat. Section 19-4-122 (1987)—the identical equivalent of Section 40-11-21 of the New Mexico UPA—which states that “[a]ny interested party may bring an action to determine the existence . . . of a mother and child relation-ship. Insofar as practicable, the provisions of this article [of the Colorado UPA] applicable to the father and child relationship apply.” ___ P.3d at ___, 2011 WL 6425562 at *2. Using this language, the court held that, in that situation, the wife could establish a presumption of maternity based on marriage or on holding out the child as her natural child,5 and bolstered its holding with Colo. Rev. Stat. Section 19-4-125 (1987), which provides that, when appropriate, “the word ‘father’ shall mean ‘mother.’” In re S.N.V., ___ P.3d at ___, 2011 WL 6425562 at *2.{27} The Oregon Court of Appeals has also applied statutes establishing parent-age presumptions based on marital status to women. Shineovich & Kemp, 214 P.3d 29, 39-40 (Or. Ct. App. 2009). Although this case dealt with a parentage presump-tion arising from artificial insemination, it presented essentially the same issue facing this Court: whether a statute creating a presumption of parentage written in terms of paternity should be applied to similarly situated women.{28} In Shineovich, the Oregon Court of Appeals held that a statute recognizing a husband’s parentage based on his consent to assisted reproduction was unconstitutional unless it was equally applied to women in same-sex relationships who consent to their partners’ inseminations. Id. at 39-40. The court in Shineovich analyzed two statutes that were being challenged on the grounds that applying parentage

presumptions simply on the basis of mar-riage was discriminatory. Id. at 33-34. The challenger was a woman who could not be in a legally-recognized marriage with her former same-sex partner because Oregon did not recognize same-sex marriage. Id. at 32-33. However, the challenger functioned as the child’s co-parent from birth until the couple’s relationship ended. Id. at 32. The biological mother, who was the challenger’s former partner, argued that even given this alleged parent and child relationship, the statutes could not provide relief because the challenger had not consented in writing to the insemination. Id. at 37.{29} The court held that the statute was unconstitutional because it did not require that there be at least the possibility of a biological relationship with the child. Id. at 39. In other words, all it required was conduct that indicated an intent to parent. The statute simply creates a presumption that the consenting husband of an artificially inseminated woman is the child’s legal par-ent, regardless of biological connection. See id. The court held that the Oregon statute that provided standing was unconstitutional as applied because there was no compelling justification to deny same-sex couples the right to enjoy that presumption. Id. at 40. Therefore, the court extended the presump-tion to similarly situated women.6 Id.D. PUBLIC POLICY STRONGLY

SUPPORTS APPLYING SECTION 40-11-5(A)(4) TO WOMEN.

{30} The New Jersey Superior Court reached the same conclusion that the Shi-neovich court reached in a case involving similar facts, In re Parentage of Robinson, 890 A.2d 1036 (N.J. Super. Ct. Ch. Div. 2005), abrogated by In re T.J.S., 16 A.3d 386, 396 (N.J. Super. Ct. 2011) (distinguishing Rob-inson on the facts, but opining, in dicta, that Robinson was in error for “relying upon the [child’s] ‘best interest’ standard in deciding the issue of parentage”). However, the ratio-nale for that holding was more policy-based. In Robinson, a same-sex couple that was still together wanted an adjudication of parent-age from the court for the non-biological mother. Id. at 1037. The couple raised their petition in the context of challenging

the presumption of parentage afforded to husbands of artificially-inseminated wives. Id.{31} In finding that the presumption of parentage should be extended to a same-sex partner who consents to a biological mother’s artificial insemination, the court made certain observations that we find persuasive. First, the court recognized that parents have an obligation to support their children “in any possible combination and permutation of marriage . . . , method for conception of the child, and arrangements that intended parents make to have children. Otherwise we have children for whom nobody has responsibility. . . . It is necessary law for the new century.” Id. at 1039-40 (internal quota-tion marks and citation omitted). Next, the court provided information from the 2000 United States Census, which revealed that “[t]he average American family (generally thought to be mom, dad and two chil-dren) applies, in fact, to only 23.5% of the American population, a decrease from 45% in 1960.” Id. at 1040. Therefore, the court reasoned, “[i]t is in the State’s best interest to insure that parents are identifiable” because the responsibility of caring for the children falls directly to citizenry of the state if the parents do not bear financial responsibility. Id. at 1039 (internal quotation marks and citation omitted); see id. at 1042.{32} As the New Jersey Superior Court recognized in Robinson, the state has a strong interest in ensuring that a child will be cared for, financially and otherwise, by two parents. Id. at 1039, 1042. If that care is lacking, the state will ultimately assume the responsibility of caring for the child. This is one of the primary reasons that the original UPA was created, and it makes little sense to read the statute without keeping this overarching legislative goal in mind. See Unif. Parentage Act Prefatory Note (1973) (“[I]t is expected that this Act will fulfill an important social need in terms of improving the states’ systems of support enforcement.”).{33} The original UPA was also written to address the interest that children have in their own support. The rationale underlying the original UPA is that every child should

5Colorado’s statutes creating those presumptions are virtually identical to New Mexico’s. See § 40-11-5(A)(1), (4) (“A man is presumed to be the natural father of a child if: (1) he and the child’s natural mother are or have been married to each other and the child is born during the marriage . . .; [or] (4) while the child is under the age of majority, he openly holds out the child as his natural child and has established a personal, financial or custodial relationship with the child.”). 6King contends that Shineovich is inapposite, arguing that the statute that gave the challenger standing was not found in the Oregon UPA but under the Oregon Family Fairness Act, which provides domestic partners with the same rights as married couples. However, the statute is not a provision in the Oregon Family Fairness Act but rather is found in Oregon’s domestic relations statutes, and uses language substantially similar to the artificial insemination provision of the New Mexico UPA. The Oregon statute that provided standing in Shineovich is found in Title 11 (Domestic Relations) of Chapter 109 (Parent and Child Rights and Relationships), at Section 109.243 (Artificial Insemination). The Oregon Family Fairness Act, in contrast, is found in Or. Rev. Stat. 106.300 to 106.340.


be treated equally, regardless of the marital status of the child’s parents. See Unif. Parent-age Act § 2, § 2 cmt. (1973). In deciding il-legitimacy cases, the United States Supreme Court recognized that it is “illogical and unjust” for a state to deny a child’s essential right to be supported by two parents simply because the child’s parents are not married. Gomez v. Perez, 409 U.S. 535, 538 (1973) (internal quotation marks and citation omitted). The Court also noted, regarding irresponsible parenthood, that “no child is responsible for his [or her] birth and penal-izing the illegitimate child is an ineffectual . . . way of deterring the parent.” Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175 (1972). With this in mind, we see no reason for children to be penalized because of the decisions that their parents make, legal or otherwise. See Plyler v. Doe, 457 U.S. 202, 220, 223-24, 230 (1982) (holding that it is improper to create an underclass of children who are held responsible for the illegal ac-tions of their parents because the children could “affect neither their parents’ conduct nor their own status” (internal quotation marks and citation omitted)).{34} Consistent with the underlying policy-based rationale of the New Mexico UPA that equality in child welfare requires laws that achieve equality in parentage, Child’s need for love and support is no less critical simply because her second parent also happens to be a woman. Experts in child psychology recognize that sometimes the law is too limiting when it comes to actually addressing what is in the child’s best interests. The attachment bonds that form between a child and a parent are formed regardless of a biological or legal connection. See Joseph Goldstein et al., Beyond the Best Interests of the Child 27 (rev. ed. 1979). These bonds are formed as a result of “provision of physical and emotional care, continuity or consistency in the child’s life, and emotional investment in the child.” Nat’l Research Council & Inst. of Med., From Neurons to Neighborhoods: The Science of Early Child-hood Development 234-35 (Jack P. Shonkoff & Deborah A. Phillips eds., 2000). The law needs to address traditional expectations in light of current realities to keep up with the changing demographic of American families and to protect the children born into them.{35} Indeed, New Mexico courts have long recognized that children may form parent-child bonds with persons other than their legal parents. This Court has previously recognized that a grandfather

could be awarded custody over a biological father’s objections. See Cook v. Brownlee, 54 N.M. 227, 228-29, 220 P.2d 378, 378-79 (1950). We have also held that a trial court had the power to award custody to an uncle with whom a child had bonded over the biological mother’s objection, even absent the mother’s unfitness. See Ex parte Pra, 34 N.M. 587, 588, 590-91, 286 P. 828, 828, 829-30 (1930).{36} Additionally, the New Mexico Court of Appeals has already embraced the idea of a child having two mothers in appropriate situations. In A.C. v. C.B., 113 N.M. 581, 585, 829 P.2d 660, 664 (Ct. App. 1992), the Court of Appeals held that a “[p]etitioner’s sexual orientation, standing alone, is not a permissible basis for the denial of shared custody or visitation.”7 In Barnae v. Barnae, 1997-NMCA-077, ¶ 10, 123 N.M. 583, 943 P.2d 1036, the Court of Appeals again recognized a lesbian partner’s standing to assert a legal right to a continuing relation-ship with a child. As such, Chatterjee should not be disqualified from being a presumed parent simply because she is a woman.{37} It is inappropriate to deny Chatterjee the opportunity to establish parentage, when denying Chatterjee this opportunity would only serve to harm both Child and the state. In our view, it is against public policy to deny parental rights and respon-sibilities based solely on the sex of either or both of the parents. The better view is to recognize that the child’s best interests are served when intending parents physically, emotionally, and financially support the child from the time the child comes into their lives. This is especially true when both parents are able and willing to care for the child. Therefore, we hold that the Legisla-ture intended that Section 40-11-5(A)(4) be applied to a woman who is seeking to establish a natural parent and child relation-ship with a child whom she has held out as her natural child from the moment the child came into the lives of both the adoptive mother and the presumptive mother.III. THIS IS NOT AN APPROPRIATE

ACTION IN WHICH TO REBUT THE PRESUMPTION OF NATURAL PARENTHOOD BECAUSE “NATURAL” AND “BIOLOGICAL” ARE NOT SYNONYMOUS TERMS AS USED IN THE NEW MEXICO UPA.

{38} It is undisputed in this case that Chat-terjee is neither the biological mother nor

the adoptive mother of Child. Regardless of the parties’ agreement to co-parent Child, the Court of Appeals considered this issue and concluded that only biological and adoptive mothers have standing to seek custody. See Chatterjee, 2011-NMCA-012, ¶¶ 27-29. The Court of Appeals relied on Black’s Law Dictionary to interpret the term “natural mother” in Section 40-11-4(A) of the New Mexico UPA as synonymous with both “birth mother” and “biological mother.” Chatterjee, 2011-NMCA-012, ¶ 29. However, resorting to the dictionary is unnecessary when the Legislature itself has set forth the criteria for determining whether a woman is a natural mother. The Legislature did not limit the analysis to the simple question of whether the woman is the “birth mother.” Had the Legislature intended to do so, Section 40-11-4(A) would read only “the natural mother may be established by proof of her having given birth to the child.” Instead, the Legislature provided an alternative for establishing the existence of a “natural mother”—referring to Section 40-11-21, which leads to testing the presumptions given in Section 40-11-5 against the facts.{39} Had the Legislature intended to equate “natural mother” with “birth moth-er” or “biological mother,” it would have said so. In other related contexts, the Leg-islature has defined a parent as the “biologi-cal or adoptive parent.” For example, the Legislature defines a “parent,” in relevant part, as “a biological or adoptive parent” in the Children’s Code. NMSA 1978, § 32A-1-4(P) (2009). The history of Section 32A-1-4(P) is additional proof that the Legislature distinguishes between a “natu-ral” and a “biological” parent. In 1994 the word “parent” was defined to “include[] a natural or adoptive parent.” (Emphasis added.) In 1995 the Legislature replaced the word “natural” with the word “biologi-cal.” Compare § 32A-1-4(P) (2009), with § 32A-1-4(O) (2005). If, as posited by the Court of Appeals, the Legislature equates the word “natural” with “biological,” there would have been no need for the Legislature to amend the definition of “parent” in 1995. Thus, if the Legislature, for purposes of the UPA, intended that “natural” motherhood could only be proved through a biological connection, then it would have used the term “biological” as it did in the Children’s Code.{40} The mischief that is created when a court resorts to a dictionary to define a

7Because the second mother in A.C. claimed to have a custody agreement with the other legal mother, the Court of Appeals analyzed the case under the parties’ agreement and not under the UPA. Id. at 583-84, 829 P.2d at 662-63.


term that is already defined in a statute is illustrated when we define “natural father” by referring to Black’s Law Dictionary.8 At “natural father,” Black’s instructs the reader to “[s]ee biological father.” Black’s Law Dictionary, supra, at 1126. Black’s defines “biological father” as “[t]he man whose sperm impregnated the child’s biological mother.” Id. at 682. Although impregnating a woman with sperm is one way for a man to be presumed to be the child’s “natural father” under the UPA, Section 40-11-5 of the UPA lists several alternative criteria by which a man can be presumed to be the child’s “natural father.”9

{41} We recognize that presumptions under Section 40-11-5 may be rebutted by clear and convincing evidence. See § 40-11-5(C); see also Lane v. Lane, 1996-NMCA-023, ¶ 10, 121 N.M. 414, 912 P.2d 290 (concluding that any presumption in that case was automatically rebutted by a show-ing of a husband’s sterility but ultimately recognizing the non-biological father as the natural father). However, the presumption of parentage should only be rebutted in an appropriate action. See § 40-11-5(C).{42} Our Legislature has not defined “ap-propriate action,” but sister jurisdictions with similar UPA provisions are instruc-tive. In In re Nicholas H., 46 P.3d 932 (Cal. 2002), the California Supreme Court held that a presumed father’s admission that he was not the child’s biological father did not necessarily rebut the presumption of fatherhood that arose by receiving the child into his home and openly holding out the child as his own. Id. at 937, 941. The court held that it was inappropriate to rebut the presumption when there was no other man claiming parental rights and because deny-ing the presumed father’s claim would leave the child fatherless. Id. at 941. However, the court was careful not to suggest that every man who begins living with a woman who is pregnant or who has a child or children automatically becomes a presumed father simply by virtue of those facts, even against his wishes. Elisa B., 117 P.3d at 670; see Nicholas H., 46 P.3d at 940. The California Supreme Court has since opined that “[t]he Legislature surely did not intend to pun-ish a man like the one in Nicholas H. who voluntarily provides support for a child who

was conceived before he met the mother, by transforming that act of kindness into a legal obligation.” Elisa B., 117 P.3d at 670. Nonetheless, we agree with the California Supreme Court that the legislature, by us-ing the phrase “in an appropriate action,” limited the circumstances for rebuttal of the parentage presumption. Nicholas H., 46 P.3d at 936 (internal quotation marks and citation omitted).{43} The California Supreme Court also considered the appropriateness of rebutting the presumption of parenthood in Elisa B., 117 P.3d at 669. The court upheld the presumption, despite clear and convincing evidence that the petitioner was not the biological mother of the children, for three reasons. First, the court concluded that this was not an appropriate action in which to rebut the presumption “because she actively participated in causing the children to be conceived with the understanding that she would raise the children as her own together with the birth mother.” Id. at 670. Second, the petitioner voluntarily expressed an inten-tion to accept the responsibilities and enjoy the benefits of parenthood together with her partner from before the children were con-ceived through the first years of the children’s lives. Id. Finally, there was no competition from any other person claiming to be the children’s second parent. Id. Allowing rebut-tal of the presumption in that case would have left the children without the support of a second parent, and that responsibility would ultimately fall to the county if the petitioner did not assume it. Id.{44} Colorado also considers the appro-priateness of the action before allowing an action rebutting a presumption to move forward. In In re A.D., 240 P.3d 488 (Colo. App. 2010), the Colorado Court of Appeals held that the case was not an appropriate action in which to rebut the presumption because the presumptive father and the child “shared a preexisting bond of love and affection” and “the child would face possible trauma if she lost all contact with him.” Id. at 490. The mother argued that the statutory definition of a “parent and child relationship” automatically precluded the man from presumptive father status because he was neither the biological nor the adop-tive father. Id. at 491. The mother did not

challenge the sufficiency of the evidence that the presumed father and her child had established a parent and child relationship, but contended that he was precluded by the words of the statute alone. Id. In rejecting the mother’s argument, the Colorado Court of Appeals concluded that the Colorado UPA “does not elevate the presumption of biology over the presumption of legitimacy” and “nothing in the statutory provisions . . . provides that an admission by a man . . . that he is not the child’s biological father conclusively rebuts [a parentage] presump-tion.” Id.{45} The Washington Supreme Court similarly considers the appropriateness of the rebuttal action, focusing on the best interests of the child. See McDaniels v. Carlson, 738 P.2d 254, 262 (Wash. 1987) (en banc) (announcing a four-factor, best-interests-of-the-child test to apply when the court is faced with a paternity challenge from “outside the present family”).{46} Likewise in New Mexico, biology does not exclusively determine who is a “natural parent,” whether that person is male or fe-male, under the New Mexico UPA. Indeed, in Tedford, 1998-NMCA-067, ¶ 15, the Court of Appeals recognized the importance of considering the child’s best interests when making a paternity determination. The Court articulated the best-interests-of-the-child standard as follows:

[T]he trial court does not auto-matically assume that a [biological] paternity determination is in the best interest of the child. Where a child is young and has already established a close emotional bond with the presumed father, and where the trial court determines that it would be detrimental to the child’s welfare to compromise the continuity of that established relationship, the court will not determine paternity solely on the basis of a biological relationship between the child and the puta-tive father.

Id.{47} Because we do not reach the merits of this case, we do not decide whether the district court action in which Chatterjee would seek to establish parentage would be

8We interpret “identical words used in different parts of the same act [as having] the same meaning.” State v. Jade G., 2007-NMSC-010, ¶ 28, 141 N.M. 284, 154 P.3d 659 (alteration in original) (internal quotation marks and citation omitted). 9Section 40-11-6(A) also provides that the husband of his artificially-inseminated wife is the natural father of the child thereby conceived, regardless of the fact that there is no possibility that the husband is the biological father.


an appropriate court proceeding in which to rebut her presumption of parentage, if indeed she is able to establish the presump-tion. We do, however, find persuasive the factors considered by courts in California, Colorado, and Washington. IV. CHATTERJEE IS AN “INTER-

ESTED PARTY” AS DEFINED BY THE NEW MEXICO UPA, AND THEREFORE SHE HAS STAND-ING TO ESTABLISH A PARENT AND CHILD RELATIONSHIP.

{48} When considering whether a com-plaint states a cause of action, we “accept as true all facts well pleaded.” C & H Constr. & Paving, Inc. v. Found. Reserve Ins. Co., 85 N.M. 374, 376, 512 P.2d 947, 949 (1973) (internal quotation marks and citation omitted). Chatterjee asserted facts below sufficient to establish that she is an interested party because her allegations satisfy the hold out provision of Section 40-11-5(A)(4). In her complaint, Chatterjee alleged that she and King were in a committed relationship from 1993 to 2008; she traveled with King to Russia to adopt Child during that rela-tionship in 2000; she has openly held Child out to the world as her daughter ever since Child arrived in New Mexico from Russia; Child believes that Chatterjee is her parent; Child lived with both Chatterjee and King in the same house from May 2000 through August 2008; and Chatterjee provided fi-nancial and emotional support to both King and Child throughout this time period. These allegations satisfy a presumption of natural motherhood by applying Section 40-11-5(A)(4), and neither party disputes that a presumptive natural mother qualifies as an “interested party” under Section 40-11-21.{49} The fact that Chatterjee did not adopt Child does not impact our decision. Section 40-11-5 of the New Mexico UPA delineates the ways in which parentage can be pre-sumed. Thus, our Legislature has recognized that there will be many situations in which someone is caring for a child but has not taken any steps to legalize that relationship. While taking legal action is the best way to ensure that both the alleged parent and the child have rights arising from that relation-ship, both our Legislature and this Court have indicated a willingness to confer rights to relationships that have not been legally established. This is so because parental rights are not automatically conferred when there is a biological relationship, but rather when an alleged parent has taken the responsibil-ity of caring for a child. See Helen G. v. Mark J.H. (In re Adoption Petition of Bobby Antonio R.), 2008-NMSC-002, ¶ 44, 143

N.M. 246, 175 P.3d 914. Considering the specific facts of this case, we hold that Chat-terjee has alleged sufficient facts to attempt to establish that she is an interested party, and therefore she has standing to establish parentage under Section 40-11-21 of the New Mexico UPA.V. NATURAL PARENTS HAVE

STANDING TO SEEK CUSTODY UNDER THE DISSOLUTION OF MARRIAGE ACT, REGARDLESS OF THE FITNESS OF ANOTHER PARENT.

{50} Regarding joint custody, the Court of Appeals held that, since Chatterjee could not establish a natural mother and child relationship under the New Mexico UPA, she therefore could not seek custody under the Dissolution of Marriage Act absent a showing of King’s unfitness. See Chatterjee, 2011-NMCA-012, ¶¶ 13-15, 22, 24; see also § 40-4-9.1(K) (“When any person other than a natural or adoptive parent seeks custody of a child, no such person shall be awarded custody absent a showing of unfitness of the natural or adoptive par-ent.”). However, as discussed above, Sec-tion 40-11-5(A)(4) is applicable to women attempting to establish a parent and child relationship because it is practicable to do so. Therefore, if Chatterjee is able to estab-lish a parent and child relationship under the New Mexico UPA, she will then have standing as a natural parent to seek joint custody of Child under the Dissolution of Marriage Act. See Roth v. Bookert (In re Adoption of J.J.B.), 119 N.M. 638, 652, 894 P.2d 994, 1008 (1995) (the public policy of New Mexico regarding custody matters is secured in Section 40-4-9.1(K) and should be applied “when a family breaks up”); see also Grant v. Cumiford, 2005-NMCA-058, ¶¶ 2, 13, 137 N.M. 485, 112 P.3d 1142 (applying Section 40-4-9.1 in determining a custody dispute, even though the parties were never married).{51} Our courts have recognized a parental preference doctrine when determining cus-tody as against the government and third parties. Shorty v. Scott, 87 N.M. 490, 493, 535 P.2d 1341, 1344 (1975); see also Brito v. Brito, 110 N.M. 276, 279, 794 P.2d 1205, 1208 (Ct. App. 1990) (“[I]n a custody contest between a parent and a non-parent who has no legal right to custody, the natural parent has preference over a non-parent.”). However, the parental preference doctrine does not apply between two parents in a custody dispute. See Shorty, 87 N.M. at 493, 535 P.2d at 1344; Brito, 110 N.M. at 279, 794 P.2d at 1208. As we have explained in detail, our holding gives Chatterjee the op-

portunity to seek joint custody as a natural parent, assuming that her allegations of the parent and child relationship she has with Child are true. Therefore, the parental preference doctrine would not apply in this case.VI. CONCLUSION.{52} Chatterjee has standing to bring an action to establish a parent and child re-lationship with Child pursuant to Section 40-11-21 because she has alleged sufficient facts to establish that she is a presumed natural parent under Section 40-11-5(A)(4). Assuming that all of her allegations are true, Chatterjee would then have standing to seek joint custody as a natural parent under Section 40-4-9.1 of the Dissolution of Marriage Act. We reverse the Court of Appeals and remand this case to the district court for further proceedings consistent with this opinion.{53} IT IS SO ORDERED. EDWARD L. CHÁVEZ,

Justice

WE CONCUR:PETRA JIMENEZ MAES, Chief JusticePATRICIO M. SERNA, JusticeCHARLES W. DANIELS, JusticeRICHARD C. BOSSON, Justice, specially concurring

BOSSON, Justice (specially concurring).{54} I agree with the outcome reached by the majority, but on narrower grounds. I write out of concern that this Opinion might be interpreted to expand the popula-tion of presumed parents in a manner that would shake settled expectations of custody rights and child support responsibilities. If interpreted narrowly, the majority Opinion applies existing law to evolving, contempo-rary fact patterns, which is a good thing. If interpreted broadly, however, the majority Opinion could be read to impose seismic changes in custody and child support re-lationships that neither the New Mexico Uniform Parentage Act (UPA), NMSA 1978, §§ 40-11-1 to -23 (1986, as amended through 2004), nor sound policy authorizes, at least not in my judgment.{55} The majority Opinion holds that Chatterjee has standing to pursue shared custody of Child because the presumptions of paternity listed in Section 40-11-5 of the applicable UPA apply equally to women as presumptions of maternity when practi-cable. See supra ¶¶ 5-6, 10-37. In order to reach this conclusion, I believe we need to address other questions that do not hinge upon Chatterjee’s gender. First, when is a nonadoptive, nonbiological individual a


presumed parent under the holding-out provi-sion of the UPA? Then, when does biology (the lack of a biological relationship) rebut such a presumption of parentage?{56} Without answering these questions, the majority Opinion concludes that Chatterjee has standing to pursue custody because “[h]er pleading sets forth facts, which, if true, establish that she has a per-sonal, financial, and custodial relationship with Child and has openly held Child out as her daughter, although she is neither Child’s biological nor adoptive mother.” See supra ¶ 4. But is concluding that Chatterjee has openly held out Child as her daughter the end of the inquiry? Not in my opinion.{57} Let me explain my concerns through a hypothetical. Suppose a hypothetical Mother has two children with men who are no longer involved in their lives for what-ever reason, including death. Eventually, Mother begins a serious relationship with a hypothetical Man who moves in and lives happily with Mother and her two young children. Man assists in financial aspects of the household, which almost automatically includes expenses that support the children. At times he refers to himself as the children’s father, for example in conversations with neighbors, perhaps on school documents and so forth, either for convenience pur-poses or perhaps because he truly does wish to become the children’s father. Mother may or may not know that Man refers to himself in this way, but we will assume she does. Mother actively considers the possibility of marriage and that some day Man might adopt her two children.{58} After a few years, however, the rela-tionship sours, and Mother asks Man to leave. It is over. But Man decides he does not want it to end entirely; he wants to share legal custody over the two children. Perhaps his motives are pure; perhaps he is just vindictive and extortionate. Whatever the motive, he alleges standing as a presumed father who has held out the children as his “own” and has established a financial, personal, and custodial relationship with them. He files in court and, as a presumed father, demands a full-blown custody hear-ing to prove his merits. The best interests of the children, he argues, require his presence

in their lives, and Mother, whether out of spite or sincerity, is not acting in a manner consistent with those best interests. Mother finds herself in a custody battle to retain control over her own children.{59} A claim of presumed parenthood can be equally abused in the other direction. Per-haps Man chooses to end the relationship, never really interested in custody over the children. But it is the Mother who demands permanent child support from him, alleging that Man has become, however reluctantly, a presumed father by virtue of his holding out.{60} Neither of these scenarios strikes me as desirable from a policy point of view. They appear to run counter to conventional expectations among both professionals and the public at large. After all, the Mother in my hypothetical, completely fit as a parent, has never agreed to surrender her custodial rights to anyone. Should my hypothetical Man even have standing to pursue his claim? According to my reading of the UPA, such claims veer far outside the essential intent and structure of the statute. Yet we need to be careful, lest the majority Opinion be read to lay a legal basis for such claims.{61} The majority Opinion is not clear what facts Chatterjee has alleged sufficient to establish that she openly held out Child as her own. Therefore, it is also not clear whether hypothetical Man, like Chatterjee, would have standing to pursue custody as a “presumed parent” under the holding-out provision. I believe Chatterjee’s situation is distinct, and I write to explain why. Without this clarification and resulting narrowing of the Opinion, I fear the consequences of my hypothetical. As explained earlier, I fear that Man could force Mother to defend her sole custody rights in court, leaving the ultimate determination to a best-interests analysis by a judge, and only after prolonged, highly expensive, and totally unnecessary litiga-tion. And, to make matters worse, if Man has deeper pockets than Mother, he might well win.{62} The majority states that “New Mexico courts have long recognized that children may form parent-child bonds with persons other than their legal parents.”10 Supra ¶ 35. While I do not disagree, the point seems ir-

relevant, unless everything boils down to a “best interests” determination. For most of this Court’s history, “the primary purpose of paternity suits [was] to insure the putative father meets his obligation to help support the child.” Aldridge ex rel. Aldridge v. Mims, 118 N.M. 661, 665, 884 P.2d 817, 821 (Ct. App. 1994) (citing State ex rel. Human Servs. v. Aguirre, 110 N.M. 528, 530, 797 P.2d 317, 319 (Ct. App. 1990)); see also In re Estate of DeLara, 2002-NMCA-004, ¶ 10,131 N.M. 430, 38 P.3d 198 (“The primary purpose of a paternity proceeding is to compel the father to support his child. Our Supreme Court has characterized child support as a parent’s most important single obligation. . . . . The state also has an interest in children being supported by their father. Our law reflects a strong public policy in favor of support. We interpret the UPA against this backdrop.” (internal quotation marks and citations omitted)).{63} In fact, there is only one prior New Mexico case in which a litigant cited the UPA as the basis for establishing parentage and thus, for standing to gain custody rights for a presumed father as opposed to child support from one. See Lane v. Lane, 1996-NMCA-023, ¶ 10, 121 N.M. 414, 912 P.2d 290. All other New Mexico cases apply the UPA to establish paternity in the child support context or in the context of paternal grandparents seeking visitation rights. And, as we shall see, the putative father in Lane was not successful under the holding-out provisions of the UPA. Id. ¶ 11. Given this limited history, this case poses questions of first impression regarding the UPA for which we truly do not have precedent. While it is self-evident that Chatterjee should have the same rights as a similarly-situated male, the more basic question asks whether and under what circumstances should such a male have standing to be considered a presumed natural parent under the Act.{64} We have certain traditional legal avenues for asserting parental rights over nonbiological children, primarily through adoption. Adoption can be complicated but, at the very least, it has a set legal protocol. It alerts everyone concerned, just like execut-ing a will, of the solemnity of the occasion

10The majority’s assertion that this Court “held that a trial court had the power to award custody to an uncle with whom a child had bonded over the biological mother’s objection, even absent the mother’s unfitness” is not supported by our precedent. See supra ¶ 35 (citing Ex parte Pra, 34 N.M. 587, 588, 590-91, 286 P. 828, 828, 829-30 (1930)). The mother in Ex parte Pra was unfit; she had abandoned her one-month-old child, leaving him with the uncle, and then she neglected the child for nine years. Ex Parte Pra, 34 N.M. at 588-89, 286 P. at 829. We clarified that narrow holding in Shorty v. Scott. In Scott we recognized that the mother in Ex Parte Pra “was impliedly found unfit in the overall sense since she had effectively abandoned her child when he was but one month old and totally neglected him for nine years.” 87 N.M. 490, 494 n.8, 535 P.2d 1341, 1345 n.8 (1975). The majority also cites Cook v. Brownlee, 54 N.M. 227, 228-29, 220 P.2d 378, 378-79 (1950) as an example of this Court favoring parent-child bonds over biological relationships. See supra ¶ 35. In that case, we awarded custody to a grandfather over a biological father’s objections, but only because the biological father had abandoned his child. Cook, 54 N.M. at 228-29, 220 P.2d at 378-79.


and its permanent consequences. “[T]here are advantages to the formality of court-approved adoption pursuant to statute. The formality of the occasion impresses upon those involved the importance of making a considered decision. To predicate an adop-tion on simply the existence of a loving relationship may often produce results con-trary to the intent of those involved.” Otero v. City of Albuquerque, 1998-NMCA-137, ¶ 15, 125 N.M. 770, 965 P.2d 354 (citations omitted)). {65} We should be wary of interpreting statutes in a way that would dilute the need for such formality, relying instead upon the more ambiguous standard of “best interests.” Thus, legal parenthood by holding out should generally track the requirements for legal descendance by holding out, also known as “equitable adoption,” which is construed narrowly, see Poncho v. Bowdoin, 2006-NMCA-013, ¶¶ 19-36, 138 N.M. 857, 126 P.3d 1221 (rejecting a biological father’s argument that another man had equitably adopted his son, made in order to avoid paying child support). The least needed for an equitable adoption is that “‘acts or omissions induced the child to believe that [the child] was the foster par-ent’s biological or formally adopted child.’” Otero, 1998-NMCA-137, ¶ 6 (quoting Jan Ellen Rein, Relatives by Blood, Adoption, and Association: Who Should Get What and Why, 37 Vand. L. Rev. 711, 767 (1984)).Presumed Parenthood Under the “Openly Holds Out” Presumption{66} Section 40-11-5 of the UPA lists circumstances under which a man should be presumed to be the “natural father” of a child, including the “openly holds out” provision. While I believe that the term “natural” generally means biological, the “presumptions of paternity” are just pre-sumptions. Thus, to be a presumed natural father, one need not be an actual biological father. The UPA anticipates that there may be multiple presumed fathers, foreclosing the possibility that all presumed natural fathers are biologically related to a child. See § 40-11-5(B) (“If two or more men are presumed under this section to be the child’s father, an acknowledgment by one of them may be effective only with the written consent of the other or pursuant to Subsec-tion C of this section.”). Thus, I agree with the majority that we are not precluded from considering Chatterjee a presumed parent on the basis of biology alone. Unfortunately though, biology would also not preclude my hypothetical Man from asserting a “presumed father” status—which I submit most observers would agree is not a good

thing—unless we examine more closely what it takes to qualify as a “holding out” parent. I now turn to that question. {67} The holding out provision under Sec-tion 40-11-5(A)(4) requires that “[a man] openly holds out the child as his natural child and has established a personal, finan-cial or custodial relationship with the child.” Although,“natural” in the context of “natu-ral child,” again, likely means biological in most cases, the provision does not require an assertion of, or an actual, biological relation-ship. It just requires that a presumed parent hold a child out as a natural child, meaning treating the child in the same way that a person would treat his or her biological child. Whether Chatterjee can allege that she has established a personal, financial, or custodial relationship with Child is not yet at issue. Whether Chatterjee “openly held out [Child] as [her] natural child,” and exactly what that means, definitely is at issue. So too, is what my hypothetical Man should be required to allege by way of holding out before he could gain “presumed natural parent” status under the UPA and force hypothetical Mother to defend her sole custody status in court.{68} Cases from our own Court of Appeals as well as from California jurisprudence il-lustrate at least three common themes that define holding out a child as one’s natural child. In each, the presumed parent (1) acted as a parent from the time the child was born or adopted; (2) assumed ongoing responsibilities to the child through legal and financial declarations; and (3) was recognized by the child’s family, including another parent or the child, as the child’s parent. This strikes me as a narrower class of presumed parents and significantly so, one that might just deter hypothetical Man from pursuit of custody.{69} “[T]he purpose behind the presumed parent designation . . . ‘is to distinguish between those fathers who have entered into some familial relationship with the mother and child and those who have not.’” S.Y. v. S.B., 134 Cal. Rptr. 3d 1, 11-12 (Dist. Ct. App. 2011) (quoting In re Sabrina H., 217 Cal. App. 3d 702, 708 ( Dist. Ct. App. 1990)). A party acts as a parent from birth or adoption when, for example, he “enjoy[s] regular visitation with each child since birth,” Mintz v. Zoernig, 2008-NMCA-162, ¶ 11, 145 N.M. 362, 198 P.3d 861, he treats the child as his own from the child’s birth until years later when the mother no longer permits it, Lane, 1996-NMCA-023, ¶¶ 5-7, or he lives with the child from the child’s birth until the baby is 22 months old and supports the child and mother financially

with earnings until the mother no longer permits it, Librers v. Black, 28 Cal. Rptr. 3d 188, 190 (Dist. Ct. App. 2005).{70} A party assumes ongoing responsibili-ties through legal or financial declarations, for example, when he asserts his visitation rights in court, acknowledges that he is the natural father of children in a stipulated order, and is registered as the father with the vital statistics bureau. See Mintz, 2008-NMCA-162, ¶ 11. Or, he does so when he appears on a child’s birth certificate and lists the child as a child of the marriage in divorce document. See Lane, 1996-NMCA-023, ¶ 6. Or, he does so when he signs a voluntary declaration of paternity so that he could provide the child with medical and other benefits. See Librers, 28 Cal. Rptr. 3d at 190. A party is recognized as a parent by another parent and by the child when, for example, he along with his wife tells family and friends that a child is his and his wife encouraged him to be an ac-tive parent, Lane, 1996-NMCA-023, ¶ 5, when the child calls him “Da Da,” Librers, 28 Cal. Rptr. 3d at 190, when the child believes he is her biological father due to both her parents’ behavior and assertions, Lane, 1996-NMCA-023, ¶ 3, or when he is asked, and agrees, to be the male role model in the children’s lives and is the only other parent the children have known, see Mintz, 2008-NMCA-162.{71} In S.Y., the California case with facts most similar to Chatterjee’s allegations, a host of factors led to the reviewing court’s conclusion that a woman held two adopted children out as her natural children under the UPA holding-out provision. 134 Cal. Rptr. 3d at 11. The woman acted as a parent from the time the children were adopted until her partner refused to allow her to do so. Id. She acted as a parent by telling her partner, with whom she had a committed relationship, that she would support the partner and co-parent a child when her partner sought to conceive and then adopt; she then assisted with the children’s care, finances and activities, and allowed her partner to use her middle name as part of one of the children’s names. Id. The woman assumed ongoing financial obligations by naming the children as beneficiaries on “everything.” Id. The children and the woman’s partner recognized the woman as the children’s mother by giving her Mother’s Day cards year-after- year, and by participat-ing in a ceremony typically only attended by family members. Id. In addition, the woman’s parents considered and treated the children as their grandchildren in terms of shared time and financial savings. Id.


{72} Chatterjee’s allegations are likewise sufficient to establish that she held Child out as her natural child. Chatterjee acted as a co-parent to Child for many years and until King refused to allow her to do so. Like the woman in S.Y., Chatterjee was in a committed relationship with King when, together, they brought Child into their home. Chatterjee and King brought Child to the United States from Russia, with the intention Child would have two mothers. The only reason King’s, and not Chatterjee’s, name appeared on the adoption papers was their mutual agreement not to risk complications from Russian law and custom in regard to same-sex adoption and Chatterjee’s ethnic origin. Child went by a combined surname, including Chatterjee’s last name. Chatterjee assumed ongoing obligations by naming Child as a dependent on her health insurance plan and retirement plan. Child and King referred to Chatterjee as Child’s mother. Chatterjee and King told others that Chatterjee was Child’s mother. Comparatively, Chatterjee alleges more facts than the woman in S.Y.; Chatterjee held out Child as her own in the same way that King held out Child as her own from the time Child came into their lives and until King terminated Chatterjee’s visits with Child.{73} Under this high standard for “hold[ing] out,” my hypothetical Man rightfully would have a difficult case to allege, much less prove, that he was a “pre-sumed natural parent.” In the hypothetical, Man was not involved in bringing Mother’s children into the household, unlike Chatter-jee who helped create the essential familial relationship. The children would not use or have Man’s name. Man may or may not have listed the children formally on any legal documents as his own or as dependents in any formalized manner. It is not clear what role the children or the children’s Mother would have considered hypothetical Man to have. To even come close to presumed par-ent status, Man must not just prove, but he must initially allege such facts. Hypothetical Man would have to make clear whether the children or Mother represented Man to others as the children’s father, and in what context, or whether anyone else in the chil-dren’s family would have believed Man to be the children’s father. There would have to be evidence and allegations that hypothetical Man had assumed ongoing financial or legal obligations for the children.{74} Absent most of the foregoing, I do not believe that hypothetical Man could even allege that he has held himself out as a presumed natural parent. Thus, unlike Chatterjee, he would not have standing

under the UPA, thereby avoiding the seis-mic shift in settled legal expectations that I outlined at the beginning of this discussion. Similarly, hypothetical Mother could not seek child support from hypothetical Man under the holding-out provision. All this follows, and justly so, as long as we take a disciplined view of what it really takes to become a presumed natural parent.{75} My narrow view of what it means to be a presumed natural parent by holding out draws support from subsequent modifica-tions to the UPA. The modern UPA drafters had similar concerns. They addressed those concerns explicitly when they amended the model UPA in 2002, although it does not provide for situations in which a child is adopted. The new model UPA, adopted in 2002, and the present-day UPA, adopted in 2009, amend the presumption of fa-therhood so that it applies only to persons who, for “the first two years of the child’s life, reside[s] . . . in the same household with the child and openly h[olds] out the child as [his or her] own.” UPA § 704 (1973); accord NMSA 1978, § 40-11A-704 (2009) (em-phasis added). The comments explaining this change state that

[b]ecause there was no time frame specified in the 1973 act, the lan-guage fostered uncertainty about whether the presumption could arise if the receipt of the child into the man’s home occurred for a short time or took place long af-ter the child’s birth. To more fully serve the goal of treating nonmari-tal and marital children equally, the “holding out” presumption is restored, subject to an express durational requirement that the man reside with the child for the first two years of the child’s life.

UPA § 704.{76} While we cannot rely solely on statu-tory amendments to the New Mexico UPA that occurred after the events of this case, the amendment does afford some indication of the correct policy envisioned by our Leg-islature. I believe our Legislature intended from the beginning that the holding-out provision should apply narrowly to the very creation of the family unit and not loosely to a subsequent relationship formed years later.Rebutting the Presumption of Parenthood{77} When should a court rebut a pre-sumption of parentage based on holding out? We have never addressed this question, but several years ago our Court of Appeals did, perhaps precipitously, in Lane, 1996-

NMCA-023. In Lane, evidence that the presumed father was not the biological father was held to rebut a presumption of natural parentage based on holding out. Id. ¶ 10. The UPA directs, however, that a presump-tion of natural parenthood “may” be rebut-ted in an “appropriate action,” suggesting a less mechanical approach. See § 40-11-5(C).{78} Long before the UPA, courts grappled with when to allow evidence of biology to interfere with established familial units.

The presumption of legitimacy was a fundamental principle of the common law. Traditionally, that presumption could be rebutted only by proof that a husband was incapable of procreation or had had no access to his wife during the relevant period. As explained by Blackstone, nonaccess could only be proved “if the husband be out of the kingdom of England (or, as the law somewhat loosely phrases it, extra quatuor maria [beyond the four seas]) for above nine months . . . .” And, under the common law both in England and here, “neither hus-band nor wife [could] be a witness to prove access or nonaccess.” The primary policy rationale underlying the common law’s severe restrictions on rebuttal of the presumption appears to have been an aversion to declaring children illegitimate, thereby depriving them of rights of inheritance and succession, and likely making them wards of the state. A secondary policy concern was the interest in promoting the “peace and tranquillity of States and families,” a goal that is obviously impaired by facilitating suits against husband and wife asserting that their children are illegitimate. Even though, as bastardy laws became less harsh, “[j]udges in both [England and the United States] gradually widened the acceptable range of evidence that could be offered by spouses, and placed restraints on the ‘four seas rule’ . . . [,] the law retained a strong bias against rul-ing the children of married women illegitimate.

Michael H. v. Gerald D., 491 U.S. 110, 124-25 (1989), rehearing denied, 492 U.S. 937, and superseded by statute as stated in Jones v. Trojak, 586 A.2d 397 (Pa. Super. Ct. 1990) (citations omitted).{79} The majority asserts that “the Court of Appeals recognized the importance of considering the child’s best interest when


making a paternity determination” in Tedford v. Gregory, 1998-NMCA-067, 125 N.M. 206, 959 P.2d 540. See supra ¶ 46. To clarify, Tedford recognized that a child’s best interests is a factor in determining whether to rebut a presumption of natural parentage in some jurisdictions, once a presumption of paternity is established. 1998-NMCA-067, ¶ 15. This means that, before best interests becomes part of the paternity analysis, a parent must establish presumed parenthood, such as through the holding-out provision of the UPA. For example, if a biological father challenges another presumed parent’s relationship after a child has established a father-child relationship with the presumed father, then a court would be justified in not permitting biology to rebut the presump-tion. See Tedford, 1998-NMCA-067, ¶ 15. This is because “when the child involved in such proceeding is a minor and has devel-oped a close emotional attachment to the presumed parents . . . court recognition of another parent would be emotionally or otherwise damaging to the child.” Id. ¶ 17. Tedford recognized that a best interests of the child theory should apply to protect a child from losing a parent, rather than to protect a parent from payment of child support. Id. ¶ 18.{80} This Tedford dicta closely tracks the reasoning employed in California cases, such as In re Raphael P., 118 Cal. Rptr. 2d 610 (Dist. Ct. App. 2002). In re Raphael P. held that when there are “competing claims of would-be parents who wished to raise the child,” then “[f ]ollowing the biological tie did not deprive the child of a parent.” Id. at 623. As such, a biological determination of parenthood was appropriate. Conversely, determining parenthood through biology would be inappropriate if a finding of a biological tie would override an existing familial relationship. Id. at 624. The court noted that the UPA provisions describing genetic and blood tests refer to testing “alleged” fathers, not “presumed fathers,” suggesting that biology should not generally rebut presumed parenthood. Id. at 625.{81} The California Supreme Court ap-plied this reasoning most famously in In re Nicholas H., when an admittedly nonbio-logical, presumed father sought custody of a boy whose mother was not able or willing to care for him and no other man claimed fatherhood. 46 P.3d 932, 934 (Cal. 2002). The California Supreme Court reasoned that the case was not the “appropriate ac-

tion” for rebuttal of a parental presumption: “the Legislature is unlikely to have had in mind an action like this—an action in which no other man claims parental rights to the child, an action in which rebuttal of the [statutory] presumption will render the child fatherless.” Id. at 941.{82} California courts have continued to apply this logic, not permitting biology to rebut a parental presumption based on holding out, in diverse scenarios. See, e.g., Elisa B. v. Superior Ct., 117 P.3d 660 (Cal. 2005); Librers, 28 Cal. Rptr. 3d 188. In Librers, the trial court rebutted a boyfriend’s presumption of fatherhood because he was not biologically related to a child. Librers, 28 Cal. Rptr. 3d at 194. The trial judge had worried that recognizing boyfriend as a presumed father would mean that any custodial male of a child could make a claim of presumed fatherhood. Id. at 193. In overturning the trial court’s position, the appellate court agreed that, if a custodial male truly held the child out as his own, such situations were possible: “a boyfriend, uncle or housemate who . . . holds the child out as his own is not disqualified from asserting parental rights and responsibilities to the child by virtue of his lack of a biological attachment.” Id. Significantly, in Librers the boyfriend alleged that he had acted as the father in every way since the child’s birth until the mother refused to let him do so. Id. Likewise, in Elisa B., a woman could not use biology to rebut the presumption that she was a natural mother of her former partner’s children who were conceived by invitro-fertilization once facts established the presumption under the UPA’s holding out provision. 117 P.3d at 670.{83} The bottom line is that a presumption of parentage based on holding out, once properly asserted, is a strong presumption only rebutted in limited circumstances. The new model UPA and modern UPA resolve the issue of rebuttal explicitly, in a way that I believe reflects this case law and the policy behind it. A court may deny genetic testing if “(1) the conduct of the mother or the presumed or acknowledged father estops that party from denying parentage; and (2) it would be inequitable to disprove the father-child relationship between the child and the presumed or acknowledged father.” NMSA 1978, § 40-11A-608(A)(1) and (2) (2009). Then, nine factors provide guidance as to whether to grant a motion for genetic testing:

(1) the length of time between the proceeding to adjudicate parentage and the time that the presumed or acknowledged father was placed on notice that he might not be the genetic father;

(2) the length of time during which the presumed or acknowl-edged father has assumed the role of father of the child;

(3) the facts surrounding the presumed or acknowledged fa-ther’s discovery of his possible nonpaternity;

(4) the nature of the relation-ship between the child and the presumed or acknowledged father;

(5) the age of the child; (6) the harm that may result to

the child if presumed or acknowl-edged paternity is successfully disproved;

(7) the nature of the relation-ship between the child and any alleged father;

(8) the extent to which the passage of time reduces the chances of establishing the paternity of an-other man and a child-support ob-ligation in favor of the child; and

(9) other factors that may affect the equities arising from the disruption of the father-child relationship between the child and the presumed or acknowledged father or the chance of other harm to the child.

Section 40-11A-608(B)(1) to (9). Many factors would apply in a future case like Chatterjee’s and would weigh against re-butting her presumption of parentage with genetic testing. See § 40-11A-608(B)(2), (4), (5), (6) & (9).{84} Given the foregoing reasoning, biological evidence should not rebut Chat-terjee’s presumption of parentage because doing so would deprive Child of a parent. Hypothetical Man or hypothetical Mother, on the other hand, cannot establish the pa-rental presumption in relation to hypotheti-cal Man, and therefore, he would have no presumptive parental status to rebut. Thus, while Chatterjee should have standing to pursue custody of Child, hypothetical Man would not, nor could hypothetical Mother force him to pay child support. RICHARD C. BOSSON,

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Attorney-Associate (At-Will Unclassified) The Twelfth Judicial District Court in Al-amogordo, NM, is seeking a Full-time, At-Will Unclassified ATTORNEY - ASSOCIATE. Qualifications include: J.D. from an accred-ited law school; licensed to practice law in NM; minimum of 3 years experience in the practice of law or as a law clerk. Pay range of $26.38-$32.98 hourly. For an application and job description, visit Jobs on the NM Judiciary Web Site at www.nm.courts.gov. Submit proof of education and NM Bar Certificate with application or resume supplemental form to Human Resources, 1000 New York Avenue, Room 108, Alamogordo, NM 88310 by 5:00pm Friday, August 10, 2012. EOE

Ninth Judicial District Attorney’s OfficeThe Ninth Judicial District Attorney’s Office, located in Curry and Roosevelt Counties, is now accepting resumes for the following positions: Assistant District Attorney, Victim Advocate and Administrative Assistant to the District Attorney. Salary will be commensu-rate with experience and budget availability. Excellent benefits available. Please send a cover letter, resume and references to Kevin Spears, Chief Financial Officer, 417 Gidding, Ste 200 Clovis, NM 88101.

Enforcement Bureau ChiefLawyer SupervisorNM Workers’ Compensation AdministrationThe NM Workers’ Compensation Adminis-tration is seeking applications for a Lawyer – Supervisor to serve as Enforcement Bureau Chief. The Bureau Chief ’s primary duties are to direct the activities and functions of the Enforcement Bureau, including supervision of at least two full time investigators, the prosecu-tion of criminal fraud cases and of the agency’s enforcement and insurance compliance docket, public outreach and education, and other as-signments as required by the agency’s General Counsel and Director. Qualifications include a Juris Doctor from an accredited school of law and five (5) years of experience in the practice of law, one (1) year of which must be supervisory. Must be a New Mexico licensed at-torney. Experience in criminal and/or workers’ compensation laws preferable, but not required. Salary range: $48,963 to $87,048 annually. For more information and to apply, please go to the NM State Personnel Office’s Job Opportunities website at http://www.spo.state.nm.us/. All applications must be submitted through on-line NEOGOV system. Please contact WCA General Counsel at (505) 841-6085 or [email protected] for further information. Closing date: August 3, 2012.

Staff AttorneyThe Southwest Women’s Law Center is hiring a Staff Attorney. Submit cover letter, resume and brief writing sample to [email protected]. Please see our website: www.swwomenslaw.org for full job description.

Junior Assistant County AttorneyLos Alamos CountyLos Alamos County is accepting applica-tions for Junior Assistant County Attorney. Minimum requirements include: Juris Doc-torate Degree from an accredited law school. Membership in the State Bar of New Mexico. Salary range is $67,151 to $103,934. Preferred qualification is experience working in a public setting. Benefits include health, vision and dental insurance; life and long-term disability insurance; PERA and LA County pension plans; optional 457 plan; a flexible spending plan; generous leave and holidays; tuition as-sistance and an employee wellness program. Los Alamos County is an incorporated County with an adopted charter and operates as both a home rule municipality and a County. It also owns and operates electrical, natural gas, water and wastewater utilities. Applications and full information are available at www.losalamosnm.us or by calling 505-662-8041. Application deadline is August 15, 2012 at 5:00 PM. (E0E)

Immigration AttorneyAV-Rated firm is seeking an immigration attor-ney to work in a busy law office handling mul-tiple cases. Candidate will work on immigrant, non-immigrant, family, employment, VAWA, U visa, Asylum, removal, and waiver cases. Must be a hard working individual, capable of handling multiple cases, deadlines, and client issues. Must have strong writing skills, and a history of interest in immigration law. Must have a true drive and love of immigration work. Must also be fluent in Spanish, and taken a bar exam, or be admitted in any state. Salary dependent of experience. Full time position with full benefits. Submit letter of intent and resume to [email protected]

County Manager- Taos CountyThe County Manager is responsible for the overall management and administration of county business, including duties as chief personnel officer, fiscal director, budget officer, property custodian and policy advisor to the duly elected Board of County Commissioners. Performs a variety of professional executive and managerial duties related to planning, directing, organizing, and controlling the efficient and fiscally responsible operation of Taos County. Master’s degree in public administration, political science, business ad-ministration, finance, or a closely related field; persons holding a juris doctorate with relevant government experience are also encouraged to apply. Eight (8) years of progressively respon-sible experience in state or local government is preferred. An equivalent combination of educa-tion and experience may be considered by the Taos County Board of Commissioners. Work history should demonstrate a high level of success in establishing open communications and productive working relationships with subordinate employees, government officials and agencies and the general public. Qualified candidate must be able to appropriately handle media inquiries and be willing to participate in public speaking engagements. An ability to speak Spanish is desirable. Applicants applying for this position must complete a Taos County Employment Application form and submit a cover letter describing their qualifications for the position. Applicants are also encouraged to submit a minimum of three (3) letters of reference with their application. For copy of application and complete job description see www.taoscounty.org or contact Taos County Human Resources Department at 105 Albright Street, Taos, NM 87571; or 575-737-6308.

Contract Attorney - 2nd Chair or Appellate WorkNot ready to hire full-time, but need help with a big case? I am a licensed NM attorney with over 20 years experience. I’ve been a success-ful independent contractor since 1997. Let me draft your discovery, analyze and organize discovery responses, draft substantive mo-tions or appellate briefs. I can be your ‘2nd chair’ without the commitment and overhead of a long- term hire. Reasonable hourly rates. References and writing samples available upon request. Contact D. Donaghy - [email protected] or (505)281-3514.

Assistant Attorney GeneralThe Consumer Protection Division of the Attorney General’s Office, an EEO employer, is accepting resumes for an “exempt” (not classified) Assistant Attorney General posi-tion located in Albuquerque. This position is funded by settlement funds and will be a limited term position. The majority of work will focus on mortgage and consumer fraud enforcement actions, compliance oversight by banks/servicers with the National Mortgage Settlement Consent Decree and other activi-ties of the Attorney General’s Homeownership Preservation Program. Five (5) years of civil litigation experience is required. NM bar ad-mission required. Salary is commensurate with experience. Resume, writing sample and mini-mum of three professional references must be received at the Office of the Attorney General. Send all information to: Roberta Lujan, HR Administrator, PO Drawer 1508, Santa Fe, NM 87504-1508. Recruitment for this position will remain open until the position is filled.

http://www.losalamosnm.us

http://www.losalamosnm.us

http://www.nm.courts.gov

http://www.spo.state.nm.us/



http://www.swwomenslaw.org


http://www.taoscounty.org


ParalegalThe Santa Fe office of Hinkle, Hensley, Shanor & Martin, L.L.P. is seeking a litigation paralegal. Experience is preferred in general civil practice, including employment, insurance defense, profes-sional malpractice defense, administrative law, environmental, water and natural resources law, and real property and commercial law. Candi-dates should have excellent writing and research skills, and the ability to work independently. A paralegal certificate or degree is necessary. Competitive salary and benefits. All inquiries kept confidential. Resume can be faxed to Office Manager, 505-982-8623 or mailed to P.O. Box 2068, Santa Fe, NM 87504-2068.

Paralegal/Legal AssistantRequires prior litigation experience, includ-ing case document control/management with proficient working knowledge of computerized data bases and related software. Seeking highly skilled, professional, thoughtful, organized, and motivated individual with attention to detail. Excellent computer and technical skills required. All inquiries confidential. Salary DOE. Competitive benefits. Office Manager, Atkinson, Thal, & Baker, P.C. 201 Third Street NW, Suite 1850, Albuquerque, NM 87102 or Fax to 505-764-8374.

Consumer AdvocateThe Consumer Protection Division of the At-torney General’s Office is accepting resumes for an “exempt” (not classified) Consumer Advo-cate position in Santa Fe. The position’s respon-sibilities will include investigation of consumer complaints, dispute resolution services regard-ing complaints by consumers against business for trade practices, education and outreach to the public, research and analysis of consumer complaints, maintain case files, prepare cor-respondence and case summaries, maintain consumer database, support to attorneys in the division and related duties. Excellent writing skills required. Fluency in Spanish, reading, writing and speaking preferred. Financial background is helpful. An Associate’s degree in an appropriate field is preferred; certificate of completion from a recognized paralegal training program may be substituted. Experi-ence working with the public, as an advocate or mediator, will be considered. Resume with cover letter, three professional references and writing sample must be received at the Attorney General’s Office. Send information to: Roberta Lujan, HR Administrator, P.O. Drawer 1508, Santa Fe, NM 87504-1508. Position will re-main open until filled.

Trial AssociateTrial Associate for Plaintiff’s Law Firm. Must have 1-4 years litigation experience. Strong research, verbal and writing skills required. Applicants must have New Mexico Bar Mem-bership. Please submit resume and salary requirements to [email protected]. No telephone calls please.

Assistant City AttorneyThe City of Alamogordo is seeking an Assistant City Attorney. Duties will include prosecuting violations of City ordinances; reviewing and drafting contracts, ordinances, resolutions and other documents; representing the City in civil matters; and performing other legal and administrative work as directed by City Attorney. Qualifications: Graduation from an accredited law school with a Juris Doctor degree in law; license to practice in the State of New Mexico; good standing with the New Mexico Bar Association; and at least one (1) year of experience practicing law. Prosecu-tion experience beneficial. Annual Salary: $48,769.136 - $74,579.648. To Apply: Call 575-439-4399 or visit ci.alamogordo.nm.us. Position Closes: 5:00 P.M. on Friday, August 17, 2012.

One Full Time and One Part Time AttorneyThe offices of Lightning Legal Group, PC is seeking one full time and one part time attorney to represent clients at our Santa Fe and Albuquerque Offices. Candidates must be licensed and in good standing with over 10 years’ experience in Family Law, Bankruptcy, and/or Civil Litigation. Strong organizational, problem solving, writing, research, computer and litigation experience required. All replies will be maintained as confidential. Send re-sume and references to [email protected].

ParalegalParalegal needed to assist with Domestic Relations, Bankruptcy and Civil litigation at our Albuquerque offices. Strong typing, organizational, filing, initiative, and problem solving skills needed. All replies maintained as confidential. Send resume and references to [email protected].

AttorneyThe Advantage Group is accepting application for the Metro Albuquerque / Cibola /Santa Fe counties. The position is for an experi-enced litigation attorney. We are a 3rd party collection agency, please email resumes to [email protected]. We are also seek-ing representation for the Advantage Group for our Grand Junction CO. site, legations in the Four Corners, Tribal knowledge a plus, please contact Arlene Romeo at [email protected].

All advertising must be submitted via e-mail by 4:00 p.m. Wednesday, two weeks prior to publication (Bulletin publishes every Wednesday). Advertising will be accepted for publication in the Bar Bulletin in accordance with standards and ad rates set by the publisher and subject to the availability of space. No guarantees can be given as to advertising publication dates or placement although every effort will be made to comply with publication request. The publisher reserves the right to review and edit ads, to request that an ad be revised prior to publication or to reject any ad. Cancellations must be received by 10 a.m. on Thursday, 13 days prior to publication.

For more advertising information, contact: Marcia C. Ulibarri at 505.797.6058

or e-mail [email protected]

SUBMiSSioN DeADliNeS

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services

Briefs, Research, Appeals--Leave the writing to me. Experienced, effec-tive, reasonable. [email protected] (505) 281 6797

office spAce

Nob Hill Executive CenterFIRST MONTH FREE! Modern facility located in the heart of historic Nob Hill business district. Conference rooms and visitors offices, receptionist, mail and package acceptance, paid utilities and janito-rial services. Executive Offices starting at $495 mo. and Virtual Office packages starting at $135 mo. www.nobhillexecutivecenter.com Call (505) 314-1300.

Need Help In Your Office?25+ years experience - Legal Asst/Paralegal duties. Meet In-Person or request Resume/Portfolio packet. Short/long-term. Call Hope: 505/850-9040

Sound ProofGated Parking LotBeautiful office condo unit. Includes reception area, four private offices, conference room, storage/copy room, kitchen and restroom. Located on Washington SE (between Central and Zuni) 1250 sqf, $1,200/month. First three months free. Call 573-5556 Alex.

Single Attorney SpaceShared office space available. One-third of 1263RSF (approx. 400SF). Shared conferenceroom, reception area, coffee bar, etc. with building owners. $600 per month. One (1) year lease. Call Ron Nelson 883-9662 Uptown Square.

Historic Adobe Office for RentDowntown Las Cruces South Mesquite District. 0.52 mile (approx. 1/2 mile) from United States Federal Courthouse. 0.97 mile from Third Judicial District Court. Six (6) offices; two (2) conference rooms; large recep-tion area; full kitchen; 2 bathrooms; water fountain; common area for copying or files. Fenced back yard. Patio shaded by trees. Tile and wood floors, skylights, 2 fireplaces, wood viga and latilla ceilings. Ample parking. Call Susie Widner 505-681-1163.

To reserve your ad spaceplease contact: Marcia Ulibarri

505.797.6058 | [email protected]

Animal Law coming

August 22, 2012

Features:• 12 page supplement to the Bar Bulletin • Full color publication• Published 4 times a year

• Falls centerfold in Bar Bulletin• Cover notification

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New members will be sworn in September 25, 2012.

For more information on signing up to receive one year of freeCLE credit in exchange for a one-year mentorship, contact

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