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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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. 30,525 9 RAQUEL LUCERO, 10 Defendant-Appellant. 11

APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY 12 Drew D. Tatum, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Hugh W. Dangler, Chief Public Defender 17 Kathleen T. Baldridge, Assistant Appellate Defender 18 Santa Fe, NM 19 for Appellant 20

MEMORANDUM OPINION 21 CASTILLO, Judge. 222 Defendant appeals from the district c ourt’s judgment and sentence entered in 1 a de novo jury trial following her conviction in magistrate court. Defendant moved 2 to dismiss the amended criminal complaint ag ainst her, the district court denied the 3 motion and convicted Defendant for aggravated DWI (third offense), driving without 4 insurance, and driving with defective e quipment. We issued a notice of proposed 5 summary disposition, proposing to affirm. Defendant responded to our notice with 6 a memorandum in opposition. We have given Defendant’s response due consideration 7 and remain unpersuaded that the district court erred. We, therefore, affirm. 8 On appeal, Defendant asks whether th e State should have been allowed to 9 prosecute Defendant in district court for aggravated DWI (third offense), where the 10 criminal complaints filed were deficient. [DS 3] Defendant states that the first two 11 criminal complaints filed charged her with third offense DWI in addition to four other 12 traffic offenses. [Id.] The third criminal complaint lists only the charge of aggravated 13 DWI (third offense) and Defendant complain s that it is not a sw orn statement. [DS 3- 14 4] Defendant argues that she should not have been prosecuted for aggravated DWI on 15 the basis of this Court’s decision in State v. Raley , 86 N.M. 190, 521 P.2d 1031 (Ct. 16 App. 1974). 17 In our notice, we stated that Defendant’s citation to Raleywas not persuasive, 18 and observed many problems with Defendant’s argument. It appeared to us that 193 Defendant should have raised this matter inmagistrate court, where she was first 1 prosecuted for aggravated DWI. [RP 71] Regardless, however, we noted that she 2 raised the matter in the de novo trial in distri ct court, and the district court applies its 3 own rules of criminal procedure. Rule5-204(A) NMRA of the Rules of Criminal 4 Procedure for the district courts addresses de fects in the criminal complaint, and states 5 the following. 6 A complaint, indictment or information shall not be deemed invalid, nor 7 shall the trial, judgment or other pr oceedings thereon be stayed, arrested 8 or in any manner affected, becauseof any defect, error, omission, 9 imperfection or repugnancy therei n which does not prejudice the 10 substantial rights of the defendant upon the merits. 11 Where there are variances inthe criminal complaint, Rule 5-204(C) also requires 12 prejudice to the defense. 13 No variance between those allegati ons of a complaint, indictment, 14 information or any supplemental plead ing which state the particulars of 15 the offense, whether amended or not , and the evidence offered in support 16 thereof shall be grounds for the ac quittal of the defendant unless such 17 variance prejudices substantial rights of the defendant. The court may 18 at any time allow the indictment or information to be amended in respect 19 to any variance to conform to the ev idence. If the court finds that the 20 defendant has been prejudiced by an amendment, the court may postpone 21 the trial or grant such other relief as may be proper under the 22 circumstances. 23 The rule precludes relief from an “appeal, ormotion made after verdict, based on any 24 such defect, error, omission, repugnancy, imperfection, [or] variance . . . unless it is 25 affirmatively shown that the defendant wa s in fact prejudiced in the defendant’s 264 defense on the merits.” Rule 5-204(D). 1 In the present case, Defendant has give n this Court no indication that she was 2 prejudiced by the inconsistent criminal complaints. In f act, Defendant was prosecuted 3 in magistrate court for the same charges based on the samecriminal complaints before 4 she raised any problems about those complaints in district court. [RP 71-72] Under 5 these circumstances, we fail to see how Defe ndant could establish any prejudice to her 6 defense or other substantial rights. 7 In response to this discussion, De fendant acknowledges that she received 8 adequate notice of the charges against her, but argues that her equal protection rights 9 were violated because any similarly situat ed defendant would have been entitled to a 10 sworn statement of facts. [MIO 6] Pursuant to the demands of State v. Franklin , 78 11 N.M. 127, 129, 428 P.2d 982, 984 (1967), and State v. Boyer , 103 N.M. 655, 658-60, 12 712 P.2d 1, 4-6 (Ct. App. 1985), Defendant contends that this alleged violation of her 13 equal protection rights is a sufficient showing of prejudice. [Id.] 14 We disagree. Under Rule 5-204, all de fendants must establish prejudice, and 15 Defendant’s contentions are insufficient to establish prejudice. Therefore, for the 16 reasons stated in this opinion and in our notice, we affirm the district court’s judgment 17 and sentence. 185 IT IS SO ORDERED. 1

___________________________________ 2 CELIA FOY CASTILLO, Judge 3 WE CONCUR: 4

__________________________________ 5 ROBERT E. ROBLES, Judge 6

__________________________________ 7 TIMOTHY L. GARCIA, Judge 8