The slip opinion is the first version of an opinion released by the Clerk of the Court 

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: _____________

Filing Date: June 20, 2024

No. A-1-CA-41362

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

MARCOS F. HERRERA a/k/a

MARCOS FLORENTINO HERRERA,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY

Karen L. Townsend, District Court Judge

Raúl Torrez, Attorney General

Lee Green, Assistant Solicitor General

Santa Fe, NM

for Appellee

Wadsworth Law, LLC

Mathew R. Wadsworth

Rio Rancho, NM

for Appellant
OPINION

BOGARDUS, Judge. 

{1} Defendant Marcos F. Herrera appeals from the district court’s order revoking

his probation. On appeal Defendant raises several issues: (1) Defendant argues for 

the first time that the action to revoke his probation was barred by NMSA 1978, 

Section 30-31-27.1(B)(3) (2007, amended 2019), providing for limited immunity in 

cases of alcohol and drug overdoses, “based on evidence obtained due to calling for 

medical assistance for a drug-related overdose” so he is entitled to limited immunity; 

(2) Defendant also argues that his previous counsel’s failure to move to dismiss,

pursuant to Section 30-31-27.1(B), constitutes ineffective assistance of counsel.1

Because we agree that the limited immunity provided for by Section 30-31-

27.1(B)(3) applies to both of Defendant’s probation violations, we reverse. 

BACKGROUND

{2} This case comes before us in a unique procedural posture.

2 Defendant

committed multiple offenses and was sentenced to multiple term-of-years sentences 

 

1Defendant raises a third argument that the State failed to prove his probation 

violations to a reasonable degree of certainty. We do not address this argument 

because we agree with Defendant that the action to revoke his probation was barred 

by Section 30-31-27.1(B).

2This appeal is from the order revoking probation and commitment to the 

department of corrections filed on March 20, 2023, in D-1116-CR-2018-00533-8, 

D-1116-CR-2018-00535-8, D-116-CR-2018-00536-8, and D-116-CR-2018-00540-

8.
2

in the district court, to be served consecutively. At the time Defendant was sentenced

for these offenses in district court, he was incarcerated in a federal penitentiary in 

Colorado. In light of the circumstances, the district court decided to run Defendant’s 

sentence concurrently to his “federal sentence in U.S. District Court (District of 

Colorado).” The district court then suspended his sentence and placed him on 

unsupervised probation for a period of five years “on the condition that [he] shall 

observe all federal, state, county and city laws and ordinances, so long as . . .

[D]efendant resides out of State.” The district court further ordered that 

[i]f at any time . . . [D]efendant is present in the State of New Mexico, 

[he] is ordered to be placed on supervised probation for a period of five 

(5) years, under the terms and conditions of the standard order of 

supervised probation in effect in this district and on the further 

condition that [he] obey all rules, regulations and orders of the 

Department of Corrections and Adult Parole and Probation authorities 

and observe all federal, state, county and city laws and ordinances.

{3} Some years after Defendant was placed on unsupervised probation, police 

officers were dispatched to a hotel room to respond to a possible overdose. The 

responding police officers found Defendant lying on his back in the corner of the 

hotel room, near a chair. According to the responding officers, it looked like 

Defendant had fallen out of that chair and onto the floor. One of the responding

officers testified at the probation revocation hearing that, at this point, the officers 

entered the room to assess the situation. The officer further testified that they tried

to ask Defendant what he had taken but Defendant was unresponsive. A woman in 
3

Defendant’s hotel room told the officers that Defendant had taken a substance called 

“White China,” which the officer testified that he understood to be slang for a 

narcotics containing Fentanyl. According to the officer, Defendant looked like he 

was overdosing based on his experience witnessing overdoses in the past.

{4} As emergency medical services arrived on scene and began rendering aid to 

Defendant, the responding officers spoke to the woman in Defendant’s hotel room.

At some point, the responding officers noticed a firearm along with a debit card 

under Defendant’s name on the table, near where they had initially found Defendant.

The officer testified that he observed “a torn grocery bag with a white, powdery, 

crystalline substance in it” that the officer thought appeared to be some combination 

of “Methamphetamine and Fentanyl.” “Due to the items found in the room . . . the 

room was sealed and secured for a search warrant.” Several items were seized from 

the room—including a firearm.

{5} On February 22, 2022, the State filed a motion to revoke Defendant’s 

probation and to commit him to the New Mexico Corrections Department (NMCD)

for the remainder of his sentence. The State moved to revoke Defendant’s probations 

on grounds that he violated (1) state or federal law, (2) failed to report to probation,

(3) possessed a controlled substance, and (4) failed to report an arrest. An evidentiary 

hearing was held on the State’s motion. Following the hearing, the district court 

found that Defendant “had violated the terms and conditions of his probation . . . by 
4

violating [s]tate [l]aws (picking up new charges) and by failing to report to NMCD 

Probation and Parole.” In its oral ruling, the district court stated, “There has been a 

willful violation proven, and I’m going to find it on two bases, (1) the violation of 

state laws for having a firearm; and (2) . . . for failing to report when he arrive[d] 

back in the State.” 

{6} After allowing for presentence confinement and other applicable credit, the 

district court sentenced Defendant to the custody of the NMCD for a period of 

nineteen years, four months, and twenty-one days. Defendant now appeals.

DISCUSSION

{7} Defendant argues that the action to revoke his probation was statutorily barred 

by Section 30-31-27.1(B)(3). As such, we begin by interpreting Section 30-31-

27.1(B)(3). As Defendant acknowledges, he failed to preserve this argument below,

so we review for fundamental error. We then address the State’s contention that we 

ought to go beyond the plain language of the statute to discern legislative intent.

Because we conclude that the district court’s revocation of Defendant’s probation 

constitutes fundamental error, we reverse. 

I. The Revocation of Defendant’s Probation Constitutes Fundamental 

Error

{8} Defendant argues that the district court’s revocation of his probation 

constitutes fundamental error because the action to revoke his probation in the first 

place was barred by Section 30-31-27.1(B)(3). According to Defendant, the plain 
5

language of Section 30-31-27.1(B)(3) is “explicit and unambiguous regarding 

probation violations” because it states that evidence obtained as a result of an 

overdose cannot be used to revoke probation. Therefore, according to Defendant, the 

district court erred in finding that he violated the conditions of his probation based 

on the evidence arising from his overdose. Moreover, Defendant asserts that this 

error is fundamental because he was denied substantial justice as “the entire 

prosecution of [his] probation violation was explicitly and unambiguously statutorily 

barred.” The State responds that despite its plain language, Section 30-31-27.1(B)(3) 

should not be interpreted so broadly as to reach nondrug related probation violations. 

We agree with Defendant.

{9} Ordinarily we review the district court’s decision to revoke probation under 

an abuse of discretion standard. State v. Leon, 2013-NMCA-011, ¶ 36, 292 P.3d 493. 

However, as Defendant concedes, he failed to raise this issue to the district court so 

he requests that we review for fundamental error. The State agrees that this issue is, 

in fact, unpreserved and that fundamental error review is normally appropriate under 

these circumstances. Accordingly, we review for fundamental error. See State v. 

Salas, 2017-NMCA-057, ¶ 42, 400 P.3d 251 (stating appellate courts review 

unpreserved questions for fundamental error); see also Rule 12-321(B)(2)(c), (d) 

NMRA (providing that appellate courts have discretion to review unpreserved 

questions involving fundamental error or fundamental rights). 
6

{10} When engaging in fundamental error analysis we begin by asking whether an 

error occurred—if we determine that it has, we then ask whether the error was 

fundamental. See State v. Ocon, 2021-NMCA-032, ¶¶ 7-8, 493 P.3d 448. We apply 

the fundamental error doctrine “only under exceptional circumstances and only to 

prevent a miscarriage of justice.” State v. Barber, 2004-NMSC-019, ¶ 8, 135 N.M. 

621, 92 P.3d 633. “The error must shock the conscience or implicate a fundamental 

unfairness within the system that would undermine judicial integrity if left 

unchecked.” State v. Castillo, 2011-NMCA-046, ¶ 29, 149 N.M. 536, 252 P.3d 760

(internal quotation marks and citation omitted). To the extent that our review 

involves statutory interpretation, we review de novo. See State v. Rivera, 2004-

NMSC-001, ¶ 9, 134 N.M. 768, 82 P.3d 939.

{11} In order to determine whether the district court erred in revoking Defendant’s 

probation we must determine whether, as Defendant argues, Section 30-31-

27.1(B)(3) barred the probation revocation action in the first place. Both parties 

acknowledge that there is an absence of case law interpreting Section 30-31-

27.1(B)(3). Thus, we must engage in statutory interpretation. “Interpretation of a 

statute is a matter of law, as is the determination of whether the language of a statute 

is ambiguous.” State v. Rael, 2024-NMSC-010, ¶ 38, 548 P.3d 66 (internal quotation 

marks and citation omitted). “Our primary goal when interpreting statutory language 

is to give effect to the intent of the Legislature.” State v. Warford, 2022-NMCA-034, 
7

¶ 22, 514 P.3d 31 (alteration, internal quotation marks, and citation omitted). “The 

plain language of the statute is the primary indicator of legislative intent, so we look 

first to the words the Legislature used and their ordinary meaning.” State v. 

Gutierrez, 2007-NMSC-033, ¶ 30, 142 N.M. 1, 162 P.3d 156. “Under the plain 

meaning rule, when a statute’s language is clear and unambiguous, we will give 

effect to the language and refrain from further interpretation.” State v. Hubble, 2009-

NMSC-014, ¶ 10, 146 N.M. 70, 206 P.3d 579 (internal quotation marks and citation 

omitted). In applying the plain meaning rule, we also consider the “context 

surrounding a particular statute, such as its history, its apparent object, and other 

[related] statutes.” See State v. Cleve, 1999-NMSC-017, ¶ 8, 127 N.M. 240, 980 P.2d 

23. As our Supreme Court recently acknowledged, “[W]e presume that a 

[L]egislature says in a statute what it means and means in a statute what it says.” 

Rael, 2024-NMSC-010, ¶ 40 (internal quotation marks and citation omitted). 

{12} We therefore look to the plain language of Section 30-31-27.1(B)(3). See 

Rivera, 2004-NMSC-001, ¶ 10 (stating “[t]he starting point in every case involving 

the construction of a statute is an examination of the language utilized by the 

Legislature in drafting the pertinent statutory provisions.” (alteration, internal 

quotation marks, and citation omitted)). According to the statute, “[a] person who 

experiences an alcohol- or drug-related overdose and is in need of medical assistance 

shall not be arrested, charged, prosecuted or otherwise penalized . . . for violating
8

. . . the conditions of probation or parole” “if the evidence for the alleged violation 

was obtained as a result of the overdose and the need for seeking medical assistance.” 

Section 30-31-27.1(B)(3). The State agrees with Defendant that the plain language 

of Section 30-31-27.1(B)(3) “appears to provide immunity for any probation 

violation—whether drug related or not.” We agree. The language of Section 30-31-

27.1 clearly and unambiguously states that persons who overdose shall not be 

penalized for probation or parole violations so long as two conditions are met—the 

evidence for the alleged probation or parole violation must have arisen from both 

the overdose and the need to seek medical assistance. See § 30-31-27.1(B)(3). There 

is simply no language within Section 30-31-27.1(B)(3) to indicate that the 

Legislature intended for the immunity provided by the statute to be confined to

probation or parole violations involving only drugs or alcohol. See Rivera, 2004-

NMSC-001, ¶ 10 (stating where “a statute contains language which is clear and 

unambiguous, we must give effect to that language and refrain from further statutory 

interpretation” (internal quotation marks and citation omitted)); see also Rael, 2024-

NMSC-010, ¶ 41 (stating where statutory language is unambiguous the “judicial 

inquiry is complete” (internal quotation marks and citation omitted)). The State does 

not argue that the statutory language is either unclear or ambiguous. We see no 

ambiguity in the plain language of Section 30-31-27.1(B)(3) regarding limited 

immunity for probation and parole violations in cases of drug and alcohol overdoses. 
9

Thus, our “analysis need go no further.” See State v. Vest, 2021-NMSC-020, ¶ 20, 

488 P.3d 626.

{13} “However, as a matter of thoroughness, we review the purpose, background, 

and history of the statute to ensure that our plain language interpretation” neither 

conflicts with the legislative history of the statute nor leads to absurd results as the 

State suggests it might. See id. Specifically, the State argues that both the legislative 

history and the possibility of absurd results arising from a plain language 

interpretation of Section 30-31-27.1(B)(3) are grounds for rejecting the 

interpretation supported by the plain meaning of the statutory language—we

disagree.

{14} First, regarding legislative history—contrary to the State’s assertion, the 

legislative history of Section 30-31-27.1(B)(3) supports Defendant’s contention that 

the Legislature intended to extend limited immunity to all probation and parole 

violations arising from an alcohol or drug overdose. In ascertaining legislative intent 

we rely not on fiscal impact reports—as the State does in its briefing or even on “the 

language of bills that died in committee and never became law or bills that were 

vetoed by the Governor.” Vest, 2021-NMSC-020, ¶ 34. Rather, “[w]e instead rely 

on the language of the statute as passed and the history of the statute insofar as any 

amendments may have been made.” Id. We therefore “consider the history and 

background of” Section 30-31-27.1(B)(3). See Vest, 2021-NMSC-020, ¶ 51 
10

(Thomson, J. dissenting) (internal quotation marks and citation omitted); see also

Unite N.M. v. Oliver, 2019-NMSC-009, ¶ 26, 438 P.3d 343 (analyzing the history of 

a statute by considering the various enacted versions of that statute and similar 

statutes through time). In 2019, the Legislature amended Section 30-31-27.1(B)—

the previous version of Section 30-31-27.1(B)(3) (2007)—in part, to expand limited 

immunity for persons who seek medical assistance and are experiencing an alcohol 

or drug-related overdose. See § 30-31-27.1(B)(3). Previously, the statute read,

[a] person who experiences a drug-related overdose and is in need of 

medical assistance shall not be charged or prosecuted for possession of 

a controlled substance pursuant to the provisions of [NMSA 1978,] 

Section 30-31-23 [(2005)] if the evidence for the charge of possession 

of a controlled substance was gained as a result of the overdose and the 

need for medical assistance.

Section 30-31-27.1(B) (2007). As evident by the plain language, the Legislature 

initially limited immunity to apply only to charges and prosecutions for possession 

of a controlled substance, pursuant to Section 30-31-23 (2007). However, as the 

State acknowledges, the current version adds specific language providing immunity 

for all probation and parole violations—so long as such violations meet the two 

criteria mentioned above. If the current version of the statute was intended to 

continue to restrict limited immunity to only drug and alcohol related violations, the 

Legislature would not have broadened the scope of the statute in this way. See State 

v. Nick R., 2009-NMSC-050, ¶ 28, 147 N.M. 182, 218 P.3d 868 (stating we have 

“long held that we must avoid constructions of statutory amendments that would 
11

render the change unnecessary and meaningless” (internal quotation marks and 

citation omitted)). Moreover, the Legislature could have easily clarified, in the 

amended version of the statute, that limited immunity applied only to drug and 

alcohol related probation violations—the Legislature did not do so. See Rael, 2024-

NMSC-010, ¶ 41 (stating “a legislature is presumed to say what it means and mean 

what it says”). Therefore, we conclude that a plain language interpretation of Section 

30-31-27.1(B)(3) is consistent with its legislative history. See State ex rel. Stratton 

v. Serna, 1989-NMSC-062, ¶ 6, 109 N.M. 1, 780 P.2d 1148 (stating that when a 

statute is amended “[t]he amended language must be read within the context of the 

previously existing statute”). 

{15} Because the relevant statute does not expressly state its purpose, we next 

consider whether there is reason to depart from the plain meaning of Section 30-31-

27.1(B)(3) based on the goals or purpose of the act itself. See, e.g., Gurule v. 

Dicaperl Mins. Corp., 2006-NMCA-054, ¶ 7, 139 N.M. 521, 134 P.3d 808 

(examining the legislative goals and purposes of an act after discerning its clear 

meaning from the plain language). Here, the statutory section is aimed at those who 

may be particularly hesitant to seek medical attention for fear of violating conditions 

of probation or parole. Section 30-31-27.1(B)(3) is not intended to provide blanket

immunity for all probation and parole violations—it is specifically circumscribed to 

apply only where “evidence for the alleged violation was obtained as a result of the 
12

overdose and the need for seeking medical assistance.” We discern that the purpose 

of Section 30-31-27.1(B)(3) is clearly to encourage those experiencing an overdose, 

as well as those witnessing another person overdose, to seek medical attention

without fear of a probation or parole revocation action. Therefore, we cannot say 

that this perceived purpose of the statute is contrary to our plain language 

interpretation. 

{16} Finally, the State has not convinced us that the plain language interpretation 

of Section 30-31-27.1(B)(3) leads to absurd results. The State argues “the most 

extreme example of the absurdity of providing blanket immunity from all probation 

violation prosecution[s] in the manner advanced by Defendant is if a dead body with 

a gunshot wound were discovered at the scene when EMT personnel showed up to 

revive an overdosing probationer who had a smoking gun in his hand.” According 

to the State, “[f]ailing to prosecute the appropriate probation violation connected to 

the dead body would violate judicial policy, leave the public open to additional risk, 

and fail to deter the probation’s future misconduct.” We disagree. As the State 

acknowledges, probation violations are separate and distinct from the prosecution 

for original offenses. See State v. Katrina G., 2007-NMCA-048, ¶ 11, 141 N.M. 501, 

157 P.3d 66 (stating “a probation revocation proceeding does not implicate double 

jeopardy because it is not a new criminal trial to impose new punishment, but instead 

is a hearing to determine whether, during the probationary period, the defendant has 
13

conformed to or breached the course of conduct outline in the probation order” 

(omissions, internal quotation marks, and citation omitted)). There is no indication 

that a plain language interpretation of Section 30-31-27.1(B)(3) would result in 

either a lack of punishment to those who violate the conditions of their probation 

while also committing new violations of law nor an increased risk to the public. See 

Chan v. Montoya, 2011-NMCA-072, ¶ 9, 150 N.M. 44, 256 P.3d 987 (“It is not our 

practice to rely on assertions of counsel unaccompanied by support in the record. 

The mere assertions and arguments of counsel are not evidence.” (internal quotation 

marks and citation omitted)). We decline to depart from our plain language 

interpretation of Section 30-31-27.1(B)(3). See State v. Anaya, 1997-NMSC-010, 

¶ 30, 123 N.M. 14, 933 P.3d 223 (“Statutes that define criminal conduct should be 

strictly construed and doubts regarding their interpretation or construction should be 

resolved in favor of lenity.”). 

{17} Here, it is undisputed that the two probation violations supporting the district 

court’s revocation of Defendant’s probation were discovered as a result of 

Defendant’s overdose and the need to seek medical assistance. Specifically, the State 

does not dispute that Defendant’s violation of state law (picking up new charges) 

nor his failing to report to NMCD Probation and Parole were discovered as a result 

of the responding officers being called to the hotel room on the day of the overdose. 

In other words, there is no indication that either of these violations were discovered 
14

due to evidence not resulting from Defendant’s overdose. Thus, it is clear that both 

of Defendant’s probation violations fall within the umbrella of limited immunity 

provided by Section 30-31-27.1(B)(3).

{18} In light of our plain language interpretation of Section 30-31-27.1(B)(3) and 

the undisputed underlying facts, we conclude that the district court erred in revoking 

Defendant’s probation. Moreover, because the action to revoke Defendant’s 

probation was statutorily barred, we conclude that such error is fundamental. See 

State v. Cabezuela, 2011-NMSC-041, ¶ 49, 150 N.M. 654, 265 P.3d 705 (stating 

“fundamental error occurs where there has been a miscarriage of justice, the 

conviction shocks the conscience, or substantial justice has been denied” (internal 

quotation marks and citation omitted)). Thus the action to revoke Defendant’s 

probation was barred in the first place. Because this issue is dispositive, we need not 

reach Defendant’s claim of ineffective assistance of counsel. State v. Mascareñas, 

2000-NMSC-017, ¶ 1, 129 N.M. 230, 4 P.3d 1221 (declining to reach other issues 

brought before the Court when the first issue supports reversal and remand).

CONCLUSION

{19} For the foregoing reasons, we reverse the revocation of Defendant’s 

probation. 

{20} IT IS SO ORDERED. 

______________________________
15

KRISTINA BOGARDUS, Judge

WE CONCUR:

__________________________

MEGAN P. DUFFY, Judge

__________________________

ZACHARY A. IVES, Judge