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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

v. NO. A-1-CA-36514 4 TIMOTHY T. ROMERO, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Angela J. Jewell, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Bennett J. Baur, Chief Public Defender 12 Allison H. Jaramillo, Assist ant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 VANZI, Chief Judge. 172 {1} Defendant appeals from an order revoking his probation. We issued a calendar 1 notice proposing to affirm. Defendanthas responded with a memorandum in 2 opposition. We affirm. 3 {2} Initially, we note that there are fourseparate records because the four 4 proceedings were initially filed separatelybut were consolidated for sentencing 5 purposes. All references will be to the record in D-202-CR-2013-00849. 6 Cross-Examination 7 {3} Defendant continues to claim that he wa s denied due process because the State 8 was allowed to cross-examine him about an alleged prior auto burglary; in that case 9 the same judge ruled that there was insuffi cient evidence to base probation revocation 10 on the allegation. [MIO 8] Defendant doe s not explain precisely how the cross11 examination violated one of the components of due process in the probation 12 revocation context, other than broadly a sserting that it violated basic notions of 13 fairness. [MIO 9-10] See generally State v. Guthrie , 2011-NMSC-014, ¶ 12, 150 N.M. 14 84, 275 P.3d 904 (setting forth the framework of due process in the context of 15 probation). Although Defendant re fers to this as “bad act” evidence [MIO 9], which 16 would have required admission under Ru le 11-404(B) NMRA if the Rules of 17 Evidence applied, the cross-examination was more akin to impeachment under Rule 18 11-608(B)(1) NMRA. Even if th e evidence of the earlier incident had not been found 19 sufficient to revoke probation in that case, the similarity of the conduct bore on the 203 truthfulness of Defendant’s testimony. In addition, we do not be lieve that Defendant 1 suffered any prejudice, since the presiding judge was not only aware of this prior 2 incident, but had ruled that it did not independently provide the basis for a revocation. 3 See State v. Fernandez , 1994-NMCA-056, ¶ 13, 117 N.M. 673, 875 P.2d 1104 (“In 4 the absence of prejudice, there is no reversible error.”). 5 {4} Defendant claims that the district court judge impermissibly took judicial notice 6 of the prior proceeding, specifically noting that Defendant’s credibility was 7 undermined by his pattern of behavior. [DS 6- 7, 9] Again, the judge did not need to 8 take judicial notice because she had actual notice of that case. If Defendant did not 9 want this judge to be the fact-finder in this case, he could have sought a recusal. 10 Employment as Condition of Probation 11 {5} Defendant continues to claim that the underlying judgment and sentence did not 12 require him to obtain and maintain employment and, therefore, it could not be a 13 condition of probation. [MIO 12] Defendant concedes that the judgment and sentence 14 authorized the standard conditions of probation. [MIO 2; RP 127] One of the standard 15 conditions was that Defendant “make every effort to obtain and hold a legitimate 16 job[.]” [RP 193] To the extent that the j udgment also contained an unchecked separate 17 box with respect to employment, checking this box would have been cumulative of 18 the “standard conditions” authorization. See State v. Leon , 2013-NMCA-011, ¶ 26, 19 292 P.3d 493 (“That the terms and conditions set by the probation office were not 204 spelled out in the order itself did not estab lish that those terms and conditions were not 1 imposed by the court.”). 2 Sufficiency of the Evidence 3 {6} Defendant challenges the sufficiency of the evid ence to support the revocation 4 of his probation based on the violation of the requirement to make every effort to 5 obtain and hold employment. [D S 10] “In a probation revocation proceeding, the State 6 bears the burden of establishing a probation violation with a reasonable certainty.” See 7 Leon , 2013-NMCA-011, ¶ 36. “To establish a vi olation of a probation agreement, the 8 obligation is on the State to prove willful conduct on the part of the probationer so as 9 to satisfy the applicable burden of proof.” In re Bruno R ., 2003-NMCA-057, ¶ 11, 133 10 N.M. 566, 66 P.3d 339; see also State v. Martinez , 1989-NMCA-036, ¶ 8, 108 N.M. 11 604, 775 P.2d 1321 (explaining that probation should not be revoked where the 12 violation is not willful, in that it resulte d from factors beyond a probationer’s control). 13 {7} Here, a probation officer testified that she helped Defendant secure employment 14 on January 25, 2017. [DS 8] On February 7, 2017, the officer contacted the employer 15 and was told that Defendant had only shown up for two or three days of work during 16 this period. [MIO 7; DS 8] Contrary to Defendant’s clai m [MIO 14] that the probation 17 violation had been based on a single day of missed work, this evidence supports the 18 conclusion that Defendant had missed many days of work and therefore had not made 19 every effort to hold onto employment during the two weeks in question. 205 {8} For the reasons set forth above, we affirm. 1 {9} IT IS SO ORDERED. 2

__________________________________ 3 LINDA M. VANZI, Chief Judge 4 WE CONCUR: 5

_________________________________ 6 J. MILES HANISEE, Judge 7

_________________________________ 8 JULIE J. VARGAS, Judge 9