State v. Garza
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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 34,072 5 RAUL RALPH GARZA, 6 Defendant-Appellee. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Charles W. Brown, 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 Sergio Viscoli, 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 granting Defendant’s motion 3 to dismiss the charge of commercial burglary. This Court issued a calendar notice 4 proposing to affirm based on 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 State 7 has filed a response, objecting to our notice and requesting that we hold this appeal 8 in abeyance or provide the State with a reasonable opportunity to seek guidance from 9 the New Mexico Supreme Court on all pending appeals controlled by our opinion in 10 Archuleta. [MIO 1-3] We have provided the State with such an opportunity, and the 11 Supreme Court has denied the State a stay or other remedy that would suspend the 12 precedential value of Archuleta. Thus, pursuant to Rule 12-405(C) NMRA, we apply 13 Archuleta. See Rule 12-405(C) (“A petition for a writ of certiorari filed pursuant to 14 Rule 12-502 NMRA or a Supreme Court order granting the petition does not affect the 15 precedential value of an opinion of the Court of Appeals, unless otherwise ordered by 16 the Supreme Court.”). 17 {2} In its response to our notice, the State simply objects to our proposed 18 disposition without elaboration. [MIO 1] We continue to believe that there are no 19 material factual distinctions to remove this case from the control of our opinion in 2 1 Archuleta. For the reasons stated in our notice, we affirm the district court’s order 2 granting Defendant’s motion to dismiss the commercial burglary charge. 3 {3} IT IS SO ORDERED. 4 5 ________________________________ JAMES J. WECHSLER, Judge 6 WE CONCUR: 7 ________________________________ 8 CYNTHIA A. FRY, Judge 9 ________________________________ 10 TIMOTHY L. GARCIA, Judge 3
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