State v. Aldaco
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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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-Appellee, 4 v. No. 33,811 5 MICHAEL ALDACO, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 8 Jane Shuler Gray, District Judge 9 Hector H. Balderas, Attorney General 10 Margaret McLean, Assistant Attorney General 11 Santa Fe, NM 12 for Appellee 13 Jorge A. Alvarado, Chief Public Defender 14 Santa Fe, NM 15 for Appellant 16 17 SUTIN, Judge. MEMORANDUM OPINION 1 {1} Defendant appeals from the district court’s judgment and sentence, convicting 2 him of commercial burglary. [RP 112] The judgment and sentence were entered after 3 a non-jury trial and following the district court’s decision to deny Defendant’s motion 4 to strike the commercial burglary charge. [DS] 5 {2} On the basis of this Court’s opinion in State v. Archuleta, ____-NMCA-___, 6 ___ P.3d ___ (No. 32,794, Oct. 27, 2014), cert. granted, 2015-NMCERT-__, ___ P.3d 7 ___ (No. 35,005, Jan. 26, 2015), we issued a notice of proposed summary disposition, 8 proposing to reverse. The State has responded with an objection to our notice and a 9 request to hold this appeal in abeyance or provide the State with a reasonable 10 opportunity to seek guidance from the New Mexico Supreme Court on all pending 11 appeals controlled by our opinion in Archuleta. [MIO 1-2] We have provided the 12 State with such an opportunity, and the Supreme Court has denied the State a stay or 13 other remedy that would suspend the precedential value of Archuleta. Thus, pursuant 14 to Rule 12-405(C) NMRA, we apply Archuleta. See Rule 12-405(C) (“A petition for 15 a writ of certiorari filed pursuant to Rule 12-502 NMRA or a Supreme Court order 16 granting the petition does not affect the precedential value of an opinion of the Court 17 of Appeals, unless otherwise ordered by the Supreme Court.”). 18 {3} In its response to our notice, the State simply objects to our proposed 19 disposition without elaboration. [MIO 1] We continue to believe that there are no 2 1 material factual distinctions to remove this case from the control of our opinion in 2 Archuleta. For the reasons stated in our notice, we reverse Defendant’s conviction for 3 commercial burglary. 4 {4} IT IS SO ORDERED. 5 6 __________________________________ JONATHAN B. SUTIN, Judge 7 WE CONCUR: 8 _______________________________ 9 LINDA M. VANZI, Judge 10 _______________________________ 11 J. MILES HANISEE, Judge 3
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