State v. Lydia A.
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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 5 6 7 LYDIA A., 8 Nos. 32,877 & 32,884 (Consolidated) Defendant-Appellee. 9 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 10 Marcie E. Beyer, District Judge 11 Hector H. Balderas, Attorney General 12 Margaret McLean, Assistant Attorney General 13 Santa Fe, NM 14 for Appellant 15 Jorge A. Alvarado, Chief Public Defender 16 Sergio Viscoli, Assistant Appellate Defender 17 Santa Fe, NM 18 for Appellee 19 20 BUSTAMANTE, Judge. MEMORANDUM OPINION 1 {1} The State appeals from the district court’s order dismissing the charge of 2 burglary brought against the Child. This Court issued a stay before addressing the 3 merits of the State’s appeal, pending our decision in State v. Archuleta, ___-NMCA4 ___, ___ P.3d ___ (No. 32,794, Oct. 27, 2014), cert. granted, 5 2015-NMCERT-___ (No. 35,005, Jan. 26, 2015), the first 6 of many cases raising the same issue relative to the charge of burglary. Once the 7 opinion in Archuleta was issued, we relied on that opinion, lifted the stay, and issued 8 a notice of proposed summary disposition, proposing to affirm. [Ct. App. file] 9 {2} The State has filed a response objecting to the notice and requesting that we 10 hold this appeal in abeyance or provide the State with a reasonable opportunity to seek 11 guidance from the New Mexico Supreme Court regarding all pending appeals 12 controlled by our opinion in Archuleta. [MIO 1-2] We have provided the State with 13 such an opportunity, and the Supreme Court has denied the State’s request for a stay 14 or another remedy that would suspend the precedential value of Archuleta. Thus, 15 pursuant to Rule 12-405(C) NMRA, we apply Archuleta. See Rule 12-405(C) (“A 16 petition for a writ of certiorari filed pursuant to Rule 12-502 NMRA or a Supreme 17 Court order granting the petition does not affect the precedential value of an opinion 18 of the Court of Appeals, unless otherwise ordered by the Supreme Court.”). 2 1 {3} In its response to our notice, the State simply objects to our proposed 2 disposition and indicates it is unable to provide any additional facts or legal argument 3 in response to the proposed disposition. [MIO 1, 3] We continue to believe there are 4 no material factual or legal distinctions between this case and our opinion in 5 Archuleta. Therefore, for the reasons stated in our notice of proposed disposition, we 6 affirm the district court’s order granting the Child’s motion to dismiss the charge of 7 burglary. 8 {4} IT IS SO ORDERED. 9 10 11 _______________________________________ MICHAEL D. BUSTAMANTE, Judge 12 WE CONCUR: 13 14 MICHAEL E. VIGIL, Chief Judge 15 16 JONATHAN B. SUTIN, Judge 3
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