State v. Davidson
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This memorandum opinion was not selected for publication 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellant, 4 v. NO. 32,795 5 TYJUAN DAVIDSON, 6 Defendant-Appellee. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Michael Martinez, District Judge 9 Hector H. Balderas, Attorney General 10 Margaret McLean, Assistant Attorney General 11 Santa Fe, NM 12 for Appellant 13 Jorge A. Alvarado, Chief Public Defender 14 Kimberly Chavez Cook, Assistant Appellate Defender 15 Santa Fe, NM 16 for Appellee 17 MEMORANDUM OPINION 1 WECHSLER, Judge. 2 {1} The State appeals from the district court’s order dismissing the charge of 3 commercial burglary brought against Defendant. After first proposing to reverse, this 4 Court issued a stay pending our decision in State v. Archuleta, ___-NMCA-___, ___ 5 P.3d ___ (No. 32,794, Oct. 27, 2014), cert. granted , 6 2015-NMCERT-___ (No. 35,005, Jan. 26, 2015), the first 7 of many cases raising the same issue relative to the charge of commercial burglary. 8 Once the opinion in Archuleta was issued, we relied on that opinion, lifted the stay, 9 and issued a second notice of proposed summary disposition, this time proposing to 10 affirm. [Ct. App. file] 11 {2} The State has filed a response objecting to the second notice and requesting 12 that we hold this appeal in abeyance or provide the State with a reasonable 13 opportunity to seek guidance from the New Mexico Supreme Court regarding all 14 pending appeals controlled by our opinion in Archuleta. [MIO 1-2] We have provided 15 the State with such an opportunity, and the Supreme Court has denied the State’s 16 request for a stay or another remedy that would suspend the precedential value of 17 Archuleta. Thus, pursuant to Rule 12-405(C) NMRA, we apply Archuleta. See Rule 18 12-405(C) (“A petition for a writ of certiorari filed pursuant to Rule 12-502 NMRA 19 or a Supreme Court order granting the petition does not affect the precedential value 2 1 of an opinion of the Court of Appeals, unless otherwise ordered by the Supreme 2 Court.”). 3 {3} In its response to our notice, the State simply objects to our proposed 4 disposition and indicates it is unable to provide any additional facts or legal argument 5 in response to the proposed disposition. [MIO 1, 3] We continue to believe there are 6 no material factual or legal distinctions between this case and our opinion in 7 Archuleta. Therefore, for the reasons stated in our second notice of proposed 8 disposition, we affirm the district court’s order granting Defendant’s motion to 9 dismiss the charge of commercial burglary. 10 {4} IT IS SO ORDERED. 11 12 ________________________________ JAMES J. WECHSLER, Judge 13 WE CONCUR: 14 ________________________________ 15 JONATHAN B. SUTIN, Judge 16 ________________________________ 17 M. MONICA ZAMORA, Judge 3
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