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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 fr om 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. 32,459 4 PETER ZAMORA, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 7 Michael E. Vigil, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Bennett J. Baur, Acting Chief Public Defender 12 Nicole Murray, Assistant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 VANZI, Judge. 17 Defendant appeals from the amended j udgment and sentence convicting him of 18 driving while under the influence of intoxicating liquor (DWI). [RP 97] This Court’s 192 first notice of proposed disposition proposedto affirm Defendant’s DWI conviction. 1 Defendant filed a memorandum in opposition to the proposed disposition. We are not 2 persuaded by Defendant’s arguments and affirm the judgment and sentence. 3 Requested Jury Instruction 4 Defendant continues to arguethat the district court erred in denying his request 5 for a jury instruction on “actual physical control,” pursuant to State v. Sims , 2010- 6 NMSC-027, 148 N.M. 330, 236 P.2d 642. Defe ndant argues that he was entitled to 7 such an instruction becausethe evidence supported a finding that he got into the car 8 only after it arrived at the m obile home park. [MIO 4] Defendant asserts that because 9 of the lapse in time when Public Safety Aide Brian Romero (Officer Romero) lost 10 sight of the car in motion, Sims requires that the State pr ove Defendant was in actual 11 physical control of the car. [MIO 5-6] 12 “The propriety of jury instructions give n or denied is a mixed question of law 13 and fact. Mixed questions of law and fact are revi ewed de novo.” State v. Salazar , 14 1997-NMSC-044, ¶ 49, 123 N.M. 778, 945 P. 2d 996. The DWI statute makes it 15 “unlawful for a person who is under the infl uence of intoxicating liquor to drive a 16 vehicle.” NMSA 1978, § 66-8-102(A) (2010). By statutory definition, “‘driver’ 17 means every person who drives or is in actual physical control of a motor vehicle . . . 18 upon a highway, who is exercising control over . . . a motor vehicle.” NMSA 1978, 19 § 66-1-4.4(K) (2007). The purpose of the jury instruction on actual physical control 203 “was to create a judicial mechanism fo r prosecuting intoxicated drivers who had 1 obviously been driving but no longer had the car in motion when in a police officer’s 2 presence.” Sims , 2010-NMSC-027, ¶ 17. The rationalewas that the Legislature did 3 not intend “to forbid intoxicated individuals from merely entering their vehicles as 4 passive occupants or using their vehicles for temporary shelter.” Id. ¶ 3. 5 In Sims , the defendant was found passed out or asleep behind the wheel of his 6 car parked in a commercial parking lot. Id. ¶ 1. The cases discussed in Sims similarly 7 involve factual situations where the vehicle was not observed in motion. See State v. 8 Rivera , 1997-NMCA-102, ¶ 2, 124 N.M. 211, 947 P.2d 168 (finding the defendant 9 either passed out or asleep behind the wheel of his car in the front yard of his home 10 with the engine running); State v. Harrison , 115 N.M. 73, 75, 846 P.2d 1082, 1084 11 (Ct. App. 1992) (finding the de fendant passed out behind the steering wheel of a car, 12 with the key in the ignition, the ignition on, the car in drive, and the defendant’s foot 13 on the brakes, and hands on the wheel); Boone v. State , 105 N.M. 223, 224, 731 P.2d 14 366, 367 (1986) (finding the defendant’s car stopped with the lights off and engine 15 running in the middle of the street). 16 Actual physical control is not an issue unde r the facts of this case. “It is only 17 when there are no witnesses to the vehicle’s motion that actual physical control is 18 essential to prove DWI at the time an accused is apprehended.” Sims , 2010-NMSC19 027, ¶ 3. Defendant was found in the driver’s seat of a car that an officer observed 204 driving erratically and began following a short time before. Defendant essentially 1 challenges his identity as the driver of th e car observed in motion. The fact that 2 Officer Romero lost sight of the car for a short time between the time it was observed 3 in motion and found parked in front of a tr ailer goes to the weight and credibility of 4 the evidence, which we address as a sufficiency of evidence issue. See State v. Salas , 5 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing that it is for the fact 6 finder to resolve any conflict in the testimony of witnesses and to determine where the 7 weight and credibility lay). Actual physical control is unnecessary in this case 8 because observing the vehicle in motion is all that is needed to violate the DWI 9 statute. There being no issue as to actual physical control, we conclude that the 10 evidence failed to support such an instruction. See State v. Brown , 1996-NMSC-073, 11 ¶ 34, 122 N.M. 724, 931 P.2d 69 (stating th at a defendant is entitled to jury 12 instructions on his theory of the case if th ere is evidence to support the instruction). 13 Sufficiency of the Evidence 14 Defendant argues that because the ju ry instructions omitted actual physical 15 control, a necessary element of the crime of DWI, the evidence should be weighed 16 against the applicable law, using the factors established in Sims for actual physical 17 control. [MIO 19] Furthermore, Defendant argues that because the evidence is 18 insufficient to establish that he had actual physical control over the vehicle, his 19 conviction must be vacated. [Id.] We have determined that the evidence did not 205 support a jury instruction on actual physical control. Where there is no reversible 1 error regarding the jury instructions, the “[ j]ury instructions become the law of the 2 case against which the sufficiency of the evidence is to be measured.” State v. Smith , 3 104 N.M. 729, 730, 726 P.2d 883, 884 (Ct. App. 1986). Therefore, we look at the 4 sufficiency of the evidence without regard to actual physical control. 5 There was evidence that a green Honda sedan was observed driving erratically. 6 [DS 3] Officer Romero intercepted a vehi cle matching the description provided and 7 observed the car driving erratically. [Id. ] Officer Romero followed the car into a 8 mobile home park and saw the car turn onto a property in front of a trailer. [Id.] He 9 continued driving on the roadway and lost si ght of the car. [Id. ] Officer Romero then 10 turned around and passed the mobile home lot a second time, again losing sight of the 11 car. [Id.] When he pulled up to the trailer, the car was parked, and Officer Martin 12 Vigil was at the scene. [I d.] Based on this evidence, a reasonable juror could infer 13 that the person observed driving the car erratically was the sameperson found in the 14 driver’s seat of the parked car. See In re Ernesto M., Jr. , 1996-NMCA-039, ¶ 15, 121 15 N.M. 562, 915 P.2d 318 (“The question is whether the [trial] court’s decision is 16 supported by substantial evidence, not wh ether the court could have reached a 17 different conclusion.”). 18 Defendant argues that approximately th irty minutes elapsed between the time 19 Officer Romero first observed the vehicle driving erratically and the time that Officer 206 Vigil arrived at the scene. [MIO 20] Defendant argues that someone else could have 1 driven the car to the mobilehome park, and that during th is lapse of time, the driver 2 could have left the car, and Defendant c ould have gotten into the car. [MIO 20] 3 However, the car did not go unobserved for thirty minutes as Defendant suggests. The 4 time the car was first observed driving erratically is irrelevant, as there is no evidence 5 how long the pursuit of the car lasted before it pulled into the mobile home park. 6 More important, is the time that elapsed whenOfficer Romero first lost sight of the 7 car and then came to find the car parked in front of the trailer for which there is no 8 evidence. Nevertheless, “[c]ontrary evidence supporting acquittal does not provide 9 a basis for reversal because the jury is free to reject Defendant’s version of the facts.” 10 State v. Rojo , 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. Instead, this 11 Court views the evidence in the light most favorable to the verdict, resolving all 12 conflicts and indulging all reasonable inferences in favor of the verdict. State v. 13 Apodaca , 118 N.M. 762, 765-66, 887 P.2d 756, 759-60 (1994). Therefore, we 14 conclude that there was sufficient evid ence to support Defendant’s conviction for 15 DWI. 16 Peremptory Challenge 17 Finally, Defendant continues to argue that the districtcourt erred in denying his 18 challenge to the State’s exercise of a peremptory challenge against juror Victoria 19 Rubio, thereby denying Defendant ’s right to a jury of his peers and to equal protection 207 of the law under Batson v. Kentucky , 476 U.S. 79, 87 (1986). Weagree that, because 1 the district court judge made no findings on whether Defendant satisfied the first step 2 of the Batson analysis by establishing a prima faci e case of discrimination, the issue 3 is moot. See State v. Gerald B. , 2006-NMCA-022, ¶ 32, 139 N.M. 113, 129 P.3d 149. 4 [MIO 9] 5 Consequently, the first notice proposed to conclude that after the trial judge 6 accepted the prosecutor’s reason as race-neut ral, defense counsel failed to challenge 7 the factual basis for the prosecutor’s expl anation or attempt to show that the 8 prosecutor intentionally discriminated against Ms. Rubio based on her race. See State 9 v. Guzman , 119 N.M. 190, 194, 889 P.2d 225, 229 (C t. App. 1994) (recognizing that 10 race-neutral explanations should not be accepted when facts show same factors used 11 to strike Hispanics were not applied to Anglos). Defendant’s memorandum in 12 opposition does not point to any error in law or fact with the proposed disposition. 13 See State v. Mondragon , 107 N.M. 421, 423, 759 P.2d 1003, 1005 (Ct. App. 1988) 14 (stating that a party responding to a summary calendar notice must come forward and 15 specifically point out errors of law and fact, and the repetition of earlier arguments 16 does not fulfill this requirement), superseded by statute on other grounds as stated in 17 State v. Harris , 2013-NMCA-031, ___ P.3d ___. 18 Once the trial court accepted the State’s race-neutral reason, the burden shifted 19 and it was Defendant’s responsib ility to show that the proffered reason was in fact a 208 pretext for a discriminatory motive. See State v. Martinez , 2002-NMCA-036, ¶ 10, 1 131 N.M. 746, 42 P.3d 851. Defense counsel made no further inquiry, challenge or 2 argument concerning whether there were other young prospective jurors, whether they 3 were of the same race, or whether they were kept on the jury. See State v. Begay , 4 1998-NMSC-029, ¶ 14, 125 N.M . 541, 964 P.2d 102 (“A pere mptory challenge that 5 is found to be valid on its face stands unless the defendant comes forward with a 6 refutation of the stated reason—e.g., by challenging its factual basis—or proof of 7 purposeful discrimination by the prosecutor.”). Therefore, we conc lude that the trial 8 court did not abuse its discretion. See State v. Jones , 1997-NMSC-016, ¶¶ 5, 12, 123 9 N.M. 73, 934 P.2d 267 (affirming trial court’ s ruling that prosecutor’s peremptory 10 challenge was proper where defense counsel failed to challenge the prosecutor’s race11 neutral reason for striking juror); see also State v. Landgraf , 1996-NMCA-024, ¶ 11, 12 121 N.M. 445, 913 P.2d 252 (reviewing district court’s finding of purposeful 13 discrimination for an abuse of discretion). 14 Illegal Sentence 15 Lastly, Defendant does not challenge the proposed disposition concerning the 16 illegal sentence issue raised in the docketing st atement. [DS 7] Therefore, we affirm. 17 See State v. Johnson , 107 N.M. 356, 358, 758 P.2d 306, 308 (Ct. App. 1988) (stating 18 that when a case is decided on the summary calendar, an issue is deemed abandoned 19 where a party fails to respond to the proposed disposition of the issue). 209 For these reasons and those stated in th e first notice of proposed disposition, we 1 affirm the judgment and sentence. 2 IT IS SO ORDERED. 3

__________________________________ 4 LINDA M. VANZI, Judge 5 WE CONCUR: 6

_________________________________ 7 TIMOTHY L. GARCIA, Judge 8

_________________________________ 9 M. MONICA ZAMORA, Judge 10