This decision was not selected for publication inthe New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of non-precedential dispositions. Please also note that this electronic decision may contain computer-g enerated errors or other deviations from the official paper version filed by the Supreme Court. IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 1 Filing Date: May 4, 2015 2 NO. 34,279 3 STATE OF NEW MEXICO, 4 Plaintiff-Appellee, 5 6 v. 7 ARTHUR ANAYA, 8 Defendant-Appellant. 9

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 10 Stephen D. Pfeffer, District Judge 11 Law Works, LLC 12 John A. McCall 13 Albuquerque, NM 14 for Appellant 15 Hector H. Balderas, Attorney General 16 Nicole Beder, Assistant Attorney General 17 Santa Fe, NM 181 In Defendant’s briefing to this Court, he provides two fact scenarios, one 18 entitled “Condensed Version of Facts Pursuant to Defendant” and the other entitled 19 “Facts Adduced on the Record.” On appeal, weonly consider facts that are offered 20 through the record. See Rule 12-213(A)(3) NMRA. 21 for Appellee

1 DECISION 2 BOSSON, Justice. 3 INTRODUCTION 4 {1} Defendant Arthur Anaya shot and kill ed Theresa Vigil and Austin Urban on 5 January 23, 2012, then led officers on a fi ve-day manhunt until he was captured. A 6 jury convicted Defendant of two counts of first-degree murder. Because the district 7 court imposed life sentences for each of th e first-degree murders, we review his 8 convictions on direct appeal pursuant to Rule 12-102(A)(1) NMRA and affirm. 9 BACKGROUND 1 10 {2} Theresa Vigil, her daughter Natalie Vigil, and Natalie’s boyfriend Austin Urban 11 all lived in Santa Fe in a trailer they re nted from Defendant. Defendant lived in the 12 trailer next door. In October 2011 Defendant and Theresa entered into an oral lease 13 agreement for $300 per month to be paid on the twenty-third of each month. 14 Defendant kept a notebook titled “rental agreement,” in whic h he noted the dates and 15 payments he received from Theresa. The ledger reflected full payment for October, 16 $150 for November, and $140 for December. As of January 23, 2012, Theresa had not 172 paid any rent for January. 1 {3} The morning of January 23 Natalie woke up and went into the living room to 2 watch television with her mother. Theresa received a phone call from Defendant. 3 Natalie testified that she could not hear th e specifics of the conversation. After the 4 call, Defendant walked over to the trailer where Theresa met Defendant outside. 5 According to Natalie, the conversation wa s tense and confront ational. After the 6 confrontation, Theresa walked back into the trailer and started making breakfast. 7 Defendant went back to his trailer. 8 {4} After arming himself with a gun, Defendant returned to Theresa’s trailer and 9 forcefully entered without permission. He approached Theresa and Natalie with the 10 gun in hand, screaming and yelling about the rent. Theresa stood up to confront 11 Defendant, who hit her in the face with his gun. Natalie intervenedand Defendant hit 12 Natalie as well. Upon hearing the commotion, Austin rushed into the living room and 13 punched Defendant in the f ace. Defendant did not fall or stumble backward. 14 Defendant then raised his gun and shot Austin once in th e face, killing him instantly. 15 Immediately, Theresa grabbed her phone to call her son for help. When she stood up, 16 Defendant turned and shot her in the face. The call went to Theresa’s son’s voice mail 17 and the subsequent events were recorded . After realizing Theresa was still alive, 183 Natalie begged Defendant to let her take her mother to th e hospital. Defendant finally 1 agreed. Natalie drove Theresa to the hospital, where she di ed later that night from her 2 wounds. Javier Salcido, a friend of Austin Urban, was also present in the trailer during 3 these events and testified at trial along with Natalie. 4 {5} Natalie gave a statement to the poli ce at the hospital and the police were 5 immediately dispatched to Defendant’s tr ailer, but Defendant had already fled. 6 According to the State, “[a] massive manhunt was launched in search of [D]efendant 7 with many requests for information disseminate d to the public.” Fivedays later, police 8 were called to a trailer on Agua Fria Ro ad where Defendant was hiding. After a 9 standoff, police arrested Defe ndant. At trial, a jury convi cted Defendant of two counts 10 of first-degree murder, one count of aggravated burglary, and two counts of 11 intimidating a witness. 12 DISCUSSION 13 {6} Defendant raises five issues on appeal: (1) the trial court erred in denying 14 Defendant’s exercise of a peremptory excu sal of the trial judge ; (2) defense counsel’s 15 failure to timely excuse the trial judge c onstituted ineffective assistance of counsel; 16 (3) there was insufficient evidence to sust ain Defendant’s conviction for aggravated 17 burglary; (4) the trial court improperly denied Defendant’s self-defense jury 184 instruction; and (5) cumulative error. Defe ndant does not challenge the sufficiency of 1 the evidence to support his two murder convic tions. We consider the issues raised in 2 turn. 3 Peremptory Excusal 4 {7} Defendant argues that he was denied his right to peremptorily excuse the trial 5 judge under NMSA 1978, Section 38-3-9 (1985), and Rule 5-106 NMRA. “A trial 6 judge’s ruling on a party’s peremptory elec tion to excuse presents a mixed question 7 of law and fact. We review the judge’s findings of historical fact using the deferential 8 substantial evidence standard, while we revi ew the application of the law to those 9 facts de novo.” State v. Devine , 2007-NMCA-097, ¶ 7, 142 N.M. 310, 164 P.3d 1009 10 (citations omitted). Rule 5-106(D) states the procedure for a peremptory excusal: 11 The statutory right to excuse the j udge before whom the case is pending 12 must be exercised by a party filing a peremptory election to excuse with 13 the clerk of the district court within ten (10) days after the later of: (1) 14 arraignment or the filing of a waiver of arraignment; (2) service by the 15 clerk of notice of assignment or rea ssignment of the case to a judge; (3) 16 completion of publication of notice of reassignment in the case of a mass 17 reassignment; or (4) filing of a notice of appeal from a lower court. 18 The rule also states that “[a] party may not excuse a judge after the party has requested 19 that judge to perform any discretionary act.” Rule 5-106(A). 20 {8} For clarity, we provide a brief timelin e of the initial stages of Defendant’s 215 criminal case. The State filed the criminal information on March 6, 2012, then 1 amended that criminal information the next day. The case was assigned to Judge 2 Stephen Pfeffer. Defendant was arraigned on March 9, 2012, where he pleaded not 3 guilty to all charges. After the entry of the plea, his counsel raised the issue of 4 competency. 5 {9} Defendant made two pro se motions to excuse the judge, first on April 16, 2012, 6 and then on April 18, 2012, we ll beyond ten days after his March 9 arraignment. The 7 district court did not act on these untimely motions. The district court found 8 Defendant competent to stand trial on May 16, 2012. The preliminary hearing 9 commenced on May 29, 2012, and Judge Pfeffer found probable cause as to all 10 charges on June 21, 2012. Also on June 21, the State again amended the criminal 11 information but did not add any new charge s. Defendant was arraigned for a second 12 time that same day. 13 {10} On June 28, 2012, within ten days of the second arraignment, defense counsel 14 filed the third motion for peremptory excusal of Judge Pfe ffer. The case was 15 automatically transferred to First Judicial District Judge Michael Vigil that same day. 16 On July 11, 2012, both Judge Pfeffer and Judge Vigil signed an order striking the 17 peremptory excusal for two reasons: (1 ) it was untimely, and (2) by then, Judge 186 Pfeffer had already exercised his judici al discretion when he conducted the 1 preliminary hearing and found probable cause to proceed. See Devine , 2007-NMCA2 097, ¶ 18. 3 {11} Rule 5-106(D)(1) states that a party has ten days after an arraignment or filing 4 of a waiver of arraignment to peremptorily excuse the trial judge. In this case, 5 Defendant was arraigned on March 9, 2012, and pleaded not guilty to all charges. The 6 district court accepted this plea. The time for exercising Defendant’s peremptory right 7 to excuse began with his arraignment and extinguished ten days thereafter. 8 Defendant’s pro se motions were well outside this time frame as was the motion filed 9 by defense counsel. 10 {12} The State’s amended criminal information and Defendant’s second arraignment 11 did not revive the peremptory excusal time line. New Mexico law recognizes the 12 distinction between an amendment to an information and an amended information. See 13 Devine , 2007-NMCA-097, ¶ 9 (“We note[] . . . th e distinction between an ‘amendment 14 to an information,’ which is ‘a supplemen t to an otherwise effective and sufficient 15 information,’ and an ‘amended informati on,’ which ‘constitutes the filing of a new 16 instrument which supersedes its predecessor.’” (citation omitted)). 17 {13} Devineprovides an instructive exampl e of this distinction. In Devine , the State 187 charged the defendant with voluntary manslaughter. Id. ¶ 2. This charge resulted in 1 a mistrial. Id. The State then filed an amended criminal information to change the 2 charge from voluntary manslaughter to second-degree murder. Id. ¶ 3. The State 3 argued that the second trial was a continuation of the first trial and that the amendment 4 to the criminal information simply conformed to the evidence. Id. ¶¶ 10, 12. 5 {14} Our Court of Appeals rejected that argument, citing the distinction between an 6 amendment to an informati on and an amended informati on. The Court concluded that 7 “the amended information in the present case, which added the charge of second8 degree murder in place of the voluntary manslaughter charge, was a new instrument 9 that superseded its predecessor.” Devine , 2007-NMCA-097, ¶ 14. With that “new 10 instrument” based upon an entirely new criminal charge, came a renewed opportunity 11 to exercise a timely peremptory excusal of the trial judge. Id. ¶ 14. 12 {15} Here, by contrast, the State merely s upplemented what it had already charged. 13 The criminal information on which Defendant was initially arraigned (March 9, 2012) 14 charged Defendant with two open counts of murder and tampering with evidence. The 15 amended criminal information filed on June 21, 2012, changed the two open counts 16 of murder to two counts of first-degree murder and dropped the tampering with 17 evidence charge. This changeconstitutes a “supplement to an otherwise effective and 188 sufficient information,” Devine , 2007-NMCA-097, ¶ 9 (internal quotation marks and 1 citation omitted), that merely conforms to th e anticipated evidence; it simply clarified 2 that the original open count of murder wa s one of first-degree murder. We also note 3 that when Defendant was firs t arraigned, the district court informed him that the 4 possible sentence for the two open counts of murder was a life sentence as to each 5 count, which under New Mexico law could only have meant first-degree murder. See 6 NMSA §§ 30-2-1 (1994) and 31-18-14 (2009). 7 {16} Defendant’s opportunity to peremptorily excuse the trial j udge needed to be 8 exercised within ten days of the initial arraignment, March 9, 2012. Failing to timely 9 file such an excusal, Defendant cannot complain of any error on appeal. 10 Ineffective Assistance of Counsel 11 {17} Defendant argues in the alternative thatif the motion to excuse was untimely, 12 then he received ineffective assistance of counsel. As this Court has stated, an 13 ineffective assistance of counsel claim is best handled through a habeas corpus 14 proceeding where a proper eviden tiary hearing can take place. See State v. Baca , 15 1997-NMSC-059, ¶ 25, 124 N.M. 333, 950 P.2d 776 (“A record on appeal that 16 provides a basis for remanding to the trial court for an evidentiary hearing on 17 ineffective assistance of counsel is rare. Ordinarily, such claims are heard on petition 189 for writ of habeas corpus . . . .”); see also State v. Telles , 1999-NMCA-013, ¶ 25, 126 1 N.M. 593, 973 P.2d 845 (“Defendant’s proper avenue of relief [from ineffective 2 assistance of counsel] is a post-convicti on proceeding that can develop a proper 3 record.”). Defense counsel may have had sound reasons not to excuse Judge Pfeffer 4 at the beginning of the district court proceedings. Only an evidentiary hearing on 5 habeas can supply the necessary information. Nothing on this record suggests that 6 defense counsel was ineffective for not pursuing a peremptory excusal. 7 Aggravated Burglary 8 {18} Defendant maintains that his aggravated burglary conviction was not supported 9 by sufficient evidence because he had the lawfulright to enter the trailer. “The test to 10 determine the sufficiency of evidence in New Mexico . . . is whether substantial 11 evidence of either a direct or circumstantial nature exists to support a verdict of guilt 12 beyond a reasonable doubt with respect to ev ery element essential to a conviction.” 13 State v. Sosa , 2000-NMSC-036, ¶ 6, 129 N.M. 767, 14 P.3d 32 (alteration in original) 14 (internal quotation marks and citation omitte d). “A reviewing court must view the 15 evidence in the light most favorable to the state, resolving all conflicts therein and 16 indulging all permissible inferences th erefrom in favor of the verdict.” Id . (internal 17 quotation marks and citation omitted). 1810 {19} In New Mexico, “[a]ggravated burglary consists of the unauthorized entryof 1 any . . . dwelling or other structure . . . with intent to commit any felony or theft 2 therein and the person . . . is armed w ith a deadly weapon.” NMSA 1978, § 30-16- 3 4(A) (1963) (emphasis added). Defendant advances two arguments as to why his entry 4 was not “unauthorized.” 5 {20} First, Defendant asserts the lack of any landlord/tenant relationship with 6 Theresa Vigil. Defendant argues that he had “dominion and control over his father’s 7 trailer and possessed a right of entry to the premises” at any time. Neither the law nor 8 the evidence supports such a theory. 9 {21} Historically, New Mexico required all rental agreements to be in writing. See 10 NMSA 1978, § 47-8-3(O) (1997, amended 1999) (“‘[R]ental agreement’ means all 11 writtenagreements between an owner and resi dent.” (emphasis added)). However, in 12 1999 the Legislature amended this sec tion to delete the word “written.” See NMSA 13 1978, §47-8-3(P) (1999) (“‘[R]ental agreement’ means all agreements between an 14 owner and resident.” (emphasis added)). Accordingly, anenforceable rental agreement 15 need not be in writing and can be made orally by the parties. Once an owner and 16 resident enter into a rentalagreement, the resident ac quires certain possessory rights 17 to the property. See NMSA 1978, § 47-8-26(A) (1999); see also NMSA 1978, § 47-8- 182 Defendant did file a motion to dismiss pursuant to State v. Foulenfont , 1995- 17 NMCA-028, 119 N.M. 788, 895 P.2d 1329, on this issue before trial, but during 18 closing argument defense c ounsel stated “[h]e came in to do what he thought he 19 needed to do as a landlord, it would appear.” 20 11 25 (1975); NMSA 1978, § 47-8-22 (1995). Therefore, by statute a landlord can no 1 longer enter at will under most circumstances. See NMSA 1978, § 47-8-24 (1995). 2 {22} The evidence at trial showedthat Theresa and Defendant entered an oral rental 3 agreement beginning in October 2011. Ev idence of Defendant’s conduct confirms 4 this. Every time Defendant went to collectrent he carried a notebook titled “rental 5 agreement” and noted the date and the payment. The evidence also showed that 6 Defendant talked with a local bartender about his “tenants” and how to handle the rent 7 payments. Moreover, in closing argument, defense counsel conf irmed that Defendant 8 was acting as a landlord. 2 9 {23} Based on the foregoing, we conclude th ere was sufficient evidence for the jury 10 to find an “unauthorized entry” by virtueof a landlord/tenant relationship between 11 Defendant and Theresa. Theres a and her family had a possesso ry interest in the trailer 12 and Defendant did not have “dominion and control” over the trailer and could not 13 interfere with Theresa’s possessory rights without taking the proper steps provided by 14 statute. See NMSA 1978, § 47-8-33 (1999). 15 {24} Defendant’s second argument is that ev en if Theresa initially had a possessory 1612 interest in the trailer, she was divested of that interest when she failed to pay the 1 required rent in full, not onl y on the due date in question, but also for the months of 2 November and December. De fendant argues that since October was the only month 3 when Theresa paid the full am ount of rent, thereafter Defendant had the right to enter 4 the property. 5 {25} It is not clear from the record that Theresa actually was behind on the rent. It 6 is undisputed that the rent was $300 a month. It is also undisputed that the ledger 7 reflected full payment for October, $150 for November, and $140 for December. 8 However, the reduction of the rent may have been due to the condition of the trailer. 9 Natalie testified at trial that at times th ere was no heat or running water. We need not 10 decide, however, whether Theresa properly withheld rent under these circumstances 11 because Defendant’s actions cannot be justified under any circumstance. 12 {26} Even if Theresa was behind on her rent , Defendant had to go through the proper 13 channels and take the appropriate legal steps to regain exclusive possession of the 14 trailer and evict his tenant. Pursuant to Section 47-8-33(D): 15 If rent is unpaid when due and the resident fails to pay rent within three 16 days after written notice from the owne r of nonpayment and his intention 17 to terminate the rental agreement , the owner may terminate the rental 18 agreement and the resident shall i mmediately deliver possession of the 19 dwelling unit; provided that tender of the full amount due, in the manner 20 stated in the notice, prior to the e xpiration of the three-day notice shall 2113 bar any action for nonpayment of rent. 1 (Emphasis added). This section specifically requires the landlord to give proper notice 2 of the rent due and his intention to terminate the rental agreement if rent is not paid. 3 After the three-day period, if the landl ord has complied with these steps he can 4 exercise his right to possession. If the resi dent denies the landlord possession of the 5 premises, the landlord can then get a court order to regain possession. See § 47-8- 6 24(D), (E). 7 {27} New Mexico law does not permit a landlord to forcefully evict a tenant by 8 unilateral action outside the legal system. Even if Theresa wa s behind on the rent, 9 Defendant needed to give proper notice of th e arrearage and his intention to terminate 10 the rental agreement. Defendant chose not to follow statutory procedures, but instead 11 forcefully entered the premises with a gun. Given these facts, Defendant cannot claim 12 that his entry was authorized by law. We c onclude that there was sufficient evidence 13 for the jury to convict Defendant of an unauthorized entry for purposes of the 14 aggravated burglary statute. 15 Self-Defense 16 {28} Defendant next argues that the districtcourt erroneously determined that the 17 evidence was insufficient to in struct the jury on self-defen se. “The propriety of jury 1814 instructions given or denied is a mixed question of law and f act. Mixed questions of 1 law and fact are reviewed de novo.” State v. Salazar , 1997-NMSC-044, ¶ 49, 123 2 N.M. 778, 945 P.2d 996. “When considering a defendant’s requested instructions, we 3 view the evidence in the light most favorable to the giving of the requested 4 instruction[s].” State v. Boyett , 2008-NMSC-030, ¶ 12, 144 N.M. 184, 185 P.3d 355 5 (alteration in original) (internal quotation marks and citation omitted). “For a 6 defendant to be entitled to a self-defense instruction . . . there need be only enough 7 evidence to raise a reasonable doubt in th e mind of a juror about whether the 8 defendant lawfully acted in self-defense.” State v. Rudolfo , 2008-NMSC-036, ¶ 27, 9 144 N.M. 305, 187 P.3d 170. 10 {29} The elements of self-defen se are that “the defendant was put in fear by an 11 apparent danger of immediate death or great bodily harm, that the killing resulted 12 from that fear, and that the defendant acted as a reasonable person would act under 13 those circumstances.” State v. Lopez , 2000-NMSC-003, ¶ 23, 128 N.M. 410, 993 P.2d 14 727 (internal quotation marks and citation omitted). See UJI 14-5183 NMRA. “A 15 defendant is not entitled to a self-defense in struction unless it is justified by sufficient 16 evidence on every element of self-defense.” Rudolfo , 2008-NMSC-036, ¶ 17 17 (emphasis added). 183 Defendant claims Austin’s punch was “without provocation.” We agree with 17 the State’s response: “[D]efendant appare ntly fails to appreciate the provocative 18 nature of hitting one’s girlfriend in the side with a gun and hitting that girlfriend’s 19 mother in the face with a gun.” 20 15 {30} Defendant claims he was entitled to the se lf-defense instruction because he was 1 confronted by “three hostile individuals” and he “was in fear for his safety.” 2 Defendant argues that he acted reasonably in shooting Austin and Theresa under the 3 circumstances. More importantly, Defendant cl aims that it was up to the jury to decide 4 the reasonableness of his apprehensi on and corresponding conduct. We are not 5 persuaded. 6 {31} The record shows that after the initial argument with Theresa, Defendant went 7 back to his trailer, armed hims elf, returned to Theresa’s tr ailer, forcefully entered the 8 trailer, and resumed arguing with Theresa about the rent. He a ssaulted both Theresa 9 and her daughter Natalie. On ly then did Austin intervene, unarmed, and punch 10 Defendant with his fist. 3 Defendant than raised his gun and shot Austin in the face. 11 Theresa stood up again, and Defendant turnedthe gun on her and shot her once in the 12 head. 13 {32} For a self-defense instruction, Defendant needed to point to evidence that he 14 was confronted by an apparent danger of immediate death or great bodily harm. In 15 New Mexico: 1616 Self defense is not available to the de fendant if he [started the fight] . . . 1 unless . . . 1. [t]he defendant was us ing force which would not ordinarily 2 create a substantial risk of death or great bodily harm; and 2. [the victim] 3 responded with force which would ordi narily create a substantial risk of 4 death or great bodily harm. 5 UJI 14-5191 NMRA (first alteration in original). This Court has stated that “a 6 defendant who provokes an encounter, as a resu lt of which he finds it necessary to use 7 deadly force to defend himself, is guiltyof an unlawful homicide and cannot avail 8 himself of the claim that he was acting in self-defense.” State v. Chavez , 1983-NMSC9 037, ¶ 6, 99 N.M. 609, 661 P.2d 887. 10 {33} Here, Defendant killed Austin when Aus tin attempted to defend his girlfriend 11 and her mother. Austin was unarmed, and though he punched Defendant, this act 12 alone would not reasonably create a threat of great bodily harm or death to Defendant. 13 Austin used non-lethal force attempting to defuse a lethal situation that Defendant 14 created. Defendant then responded with lethalforce without justification against both 15 Austin and Theresa. Under these facts in the record, Defendant was not confronted by 16 an apparent danger of death or great bodily harm. No reasonable juror could have 17 found that Defendant acted in self-defense, and therefore, no self-defense instruction 18 was warranted. “The purpose of recognizing se lf-defense as a complete justification 19 to homicide is the reasonable belief in the necessity for the use of deadly force to 2017 repel an attack in order tosave oneself or another fro m death or great bodily harm.” 1 Rudolfo , 2008-NMSC-036, ¶20 (emphasis adde d) (internal quotation marks and 2 citation omitted). 3 Cumulative Error 4 {34} Finally, Defendant raises the issue of cumulative error. Cumulative error occurs 5 “when the cumulative impact of the errors [that] occurred at trial was so prejudicial 6 that the defendant was deprived of a fair trial.” State v. Baca , 1995-NMSC-045, ¶ 39, 7 120 N.M. 383, 902 P.2d 65 (alteration in original) (internal quotation marks and 8 citation omitted). Since Defendant has failed to show thatany error occurred at his 9 trial, there is no cumulative error. 10 CONCLUSION 11 {35} We affirm Defendant’s convictions. 12 {36} IT IS SO ORDERED. 13

______________________________ 14 RICHARD C. BOSSON, Justice 15

WE CONCUR: 1618 ___________________________________ 1 PETRA JIMENEZ MAES, Justice 2

___________________________________ 3 EDWARD L. CHÁVEZ, Justice 4

___________________________________ 5 CHARLES W. DANIELS, Justice 6