This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 29,237 9 AGUSTIN VIGIL, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 12 Stephen D. Pfeffer, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 James W. Grayson, Assistant Attorney General 16 Albuquerque, NM 17 for Appellee 18 Robert E. Tangora, L.L.C. 19 Robert E. Tangora 20 Santa Fe, NM 21 for Appellant 22 MEMORANDUM OPINION 23 VANZI, Judge. 242 Defendant appeals the sentence imposed by the magistrate court for his third 1 conviction for driving while under the influe nce of intoxicating liquor or drugs (DWI) 2 and for a conviction for driving on a revoke d or suspended license, arguing that he 3 was denied equal protection when the magistrate court refused to grant presentence 4 confinement credit for 39 days that he sp ent on electronic monitoring prior to his 5 guilty plea. Because he has failed to establis h a record to support his claim, we affirm 6 Defendant’s sentence. 7 BACKGROUND 8 Defendant was charged withhis third DWI in violation of NMSA 1978, Section 9 66-8-102(F) (2008) (amended 2010), and driv ing on a revoked or suspended license 10 in violation of NMSA 1978, Section 66-5- 39 (1993). He pled guilty to both counts. 11 He was sentenced to 364 days on each c ount, for a total of 728 days, but the 12 magistrate court suspended all but 30 days for DWI and all but 7 days for driving on 13 a revoked or suspended license. The magi strate court awarded 5 days’ credit for 14 presentence confinement for the 5 days th at Defendant spent in jail following his 15 arraignment. The magistratecourt did not award any presentence confinement credit 16 for the 39 days that Defendant allegedly spent on electronic monitoring before his 17 plea. 183 Defendant filed a motion in district court to correct his illegal sentence, arguing 1 that even if the magistrate court had di scretion to deny him presentence confinement 2 credit under Section 66-8-102(F) as interpreted by State v. Martinez , 1998-NMSC3 023, ¶¶ 7-15, 126 N.M. 39, 966 P. 2d 747, the exercise of th at discretion was a denial 4 of his right to equal protection when he wa s unable to bail himsel f out of jail and was 5 therefore forced to serve an effective se ntence of 76 days rather than the given 6 sentence of 37 days. The district court denied Defendant’s motion. 7 Defendant Failed to Establish a Factual Basis for His Equal Protection Argument 8 Defendant does not dispute that as a matter of statutory law, an award of 9 presentence confinement credit is discretionary. See id. ¶¶ 14-15 (“[T]he judiciary 10 possesses inherent discretionary authority togrant presentence c onfinement credit.”). 11 Defendant’s only argument on appeal is that his sentence is unconstitutional. 12 He contends that he was denied equal protection when the magistrate court exercised 13 its discretion in denying him presentence c onfinement credit for the 39 days he spent 14 on electronic monitoring. Defendant argues that he was required to serve more than 15 double the sentence of an individual who would have been able to bail himself out of 16 jail and who would have been free of electronic monitoring. 17 Here, the magistrate court granted Defendant credit for the 5 days spent in jail 18 but denied credit for the 39 days he argue s that he spent on electronic monitoring. 194 Defendant appealed to the district court. The district court reviewed Defendant’s 1 motion de novo because “[t]he magistrate c ourt is not a court of record.” NMSA 2 1978, § 35-1-1 (1968); State v. Foster , 2003-NMCA-099, ¶ 9, 134 N.M. 224, 75 P.3d 3 824 (“[A]ppeals from magistrate courts are de novo.”). Because the record on an 4 appeal from a magistrate court to a district court is limited, a district court can hear 5 evidence in an appeal fro m the magistrate court. See State v. Gallegos , 2007-NMCA6 112, ¶ 16, 142 N.M. 447, 166 P.3d 1101 (concluding that it was permissible for the 7 district court to hold an ev identiary hearing on an appealfrom magistrate court). In 8 this case, the district court conducted a h earing on Defendant’s motion to correct his 9 illegal sentence, but no evidence was pres ented that Defendant was unable to post 10 bond or that he was actually on electronic monitoring for 39 days. Even though 11 defense counsel argued that Defendant was unable to bail himself out of jail and that 12 he was placed on electronic monitoring, those arguments do not establish a factual 13 basis on which Defendant c ould have based his equal protection claim because 14 “arguments of counsel are not evidence.” See Muse v. Muse , 2009-NMCA-003, ¶ 51, 15 145 N.M. 451, 200 P.3d 104; see also State v. Gomez , 1997-NMSC-006, ¶ 22, 122 16 N.M. 777, 932 P.2d 1 (holding that to establis h a state or federal constitutional claim 17 a defendant must establish a factual basis inorder for the court to rule on the issue). 185 On appeal to this Court, Defendant acknowledges that the record contains no 1 further evidence of whether he posted bond or was placed on electronic monitoring. 2 The record only establishes that on May 19, 2008, Defend ant’s bond was set at 3 $10,000, and on May 23, 2008, a note was hand written on the arraignment sheet 4 expressing that the bond was “$10,000 suretyor 10% cash.” We have no way of 5 knowing either who wrote the clarification because the signature is not legible or 6 whether Defendant met the bond requirements. Furthermore, we can only presume 7 that Defendant was released from jail on May 23, 2008, and that he was placed on 8 electronic monitoring at that time. Defendant has failed to establish a record which 9 would create a sufficient factual basis on wh ich we could review his equal protection 10 claim. See Pharm. Mfrs. Ass’n v. N.M. Bd. of Pharmacy , 86 N.M. 571, 575-76, 525 11 P.2d 931, 935-36 (Ct. App. 1974) (dismissing an equal protection claim where there 12 was no factual basis to support it). 13 CONCLUSION 14 For the foregoing reasons, we affirm Defendant’s sentence. 15 IT IS SO ORDERED. 16

__________________________________ 17 LINDA M. VANZI, Judge 18 WE CONCUR: 196 _________________________________ 1 CELIA FOY CASTILLO, Chief Judge 2

_________________________________ 3 JAMES J. WECHSLER, Judge 4