State v. Garcia

Opinion

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 33,193

5 GENEVA GARCIA,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Judith Nakamura, 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 MEMORANDUM OPINION

17 KENNEDY, Judge. 1 {1} Geneva Garcia (Defendant) appeals the district court’s order denying her

2 motion to dismiss the charge of commercial burglary. Defendant entered a conditional

3 plea, reserving for appeal the issues raised in her motion to dismiss. [RP 52] This

4 Court issued a stay before addressing the merits of the appeal, pending our decision

5 in State v. Archuleta, ____-NMCA-___, ___ P.3d ___ (No. 32,794, Oct. 27, 2014),

6 cert. granted, 2015-NMCERT-___ (No. 35,005, Jan.

7 26, 2015), the first of many cases raising the same issue relative to the charge of

8 commercial burglary. On the basis of that opinion, we lifted the stay and issued a

9 notice of proposed summary disposition, proposing to reverse on December 4, 2014.

10 The State has responded with an objection to our notice and a request to hold this

11 appeal in abeyance or provide the State with a reasonable opportunity to seek

12 guidance from the New Mexico Supreme Court on all pending appeals controlled by

13 our Opinion in Archuleta. [MIO 1-2] We have provided the State with such an

14 opportunity, and the Supreme Court has denied the State a stay or other remedy that

15 would suspend the precedential value of Archuleta. Thus, pursuant to Rule 12-405(C)

16 NMRA, we apply Archuleta. See Rule 12-405(C) (“A petition for a writ of certiorari

17 filed pursuant to Rule 12-502 NMRA or a Supreme Court order granting the petition

18 does not affect the precedential value of an opinion of the Court of Appeals, unless

19 otherwise ordered by the Supreme Court.”).

2 1 {2} In its response to our notice, the State simply objects to our proposed

2 disposition without elaboration. [MIO 1] We continue to believe that there are no

3 material factual distinctions to remove this case from the control of our Opinion in

4 Archuleta. For the reasons stated in our notice, we reverse Defendant’s conviction for

5 commercial burglary.

6 {3} IT IS SO ORDERED.

7 _______________________________ 8 RODERICK T. KENNEDY, Judge

9 WE CONCUR:

10 _________________________________ 11 MICHAEL D. BUSTAMANTE, Judge

12 _________________________________ 13 LINDA M. VANZI, Judge