State v. Jimenez
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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 33,158 5 COTY E. JIMENEZ, 6 Defendant-Appellee. 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 8 Darren M. Kugler, District Judge 9 Hector H, Balderas, Attorney General 10 Margaret E. McLean, Assistant Attorney General 11 Santa Fe, NM 12 for Appellant 13 Jorge A. Alvarado, Chief Public Defender 14 Sergio Viscoli, Assistant Appellate Defender 15 Santa Fe, NM 16 for Appellee 17 18 VIGIL, Judge. MEMORANDUM OPINION 1 {1} The State appeals from the district court’s order dismissing the charge of non- 2 residential burglary brought against Defendant. This Court issued a stay before 3 addressing the merits of the State’s appeal, pending our decision in State v. Archuleta, 4 ___-NMCA-___, ___ 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 commercial or non7 residential burglary. Once the opinion in Archuleta was issued, we relied on that 8 opinion, lifted the stay, and issued a notice of proposed summary disposition, 9 proposing to affirm. [Ct. App. file] 10 {2} The State has filed a response objecting to the notice and requesting that we 11 hold this appeal in abeyance or provide the State with a reasonable opportunity to seek 12 guidance from the New Mexico Supreme Court regarding all pending appeals 13 controlled by our opinion in Archuleta. [MIO 1-2] We have provided the State with 14 such an opportunity, and the Supreme Court has denied the State’s request for a stay 15 or other remedy that would suspend the precedential value of Archuleta. Thus, 16 pursuant to Rule 12-405(C) NMRA, we apply Archuleta. See Rule 12-405(C) (“A 17 petition for a writ of certiorari filed pursuant to Rule 12-502 NMRA or a Supreme 18 Court order granting the petition does not affect the precedential value of an opinion 19 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 Defendant’s motion to dismiss the charge of 7 non-residential burglary. 8 {4} IT IS SO ORDERED. 9 10 __________________________________ MICHAEL E. VIGIL, Chief Judge 11 WE CONCUR: 12 ___________________________________ 13 CYNTHIA A. FRY, Judge 14 ___________________________________ 15 J. MILES HANISEE, Judge 3
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