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 1         IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellant,

 4 v.                                                     No. 33,389

 5 THOMAS HOBBS,

 6          Defendant-Appellee,

 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 John A. Dean, Jr., 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 Santa Fe, NM

15 for Appellee

16                                 MEMORANDUM OPINION

17 ZAMORA, Judge.

18   {1}    The State appeals from the district court’s order granting Defendant’s motion

19 to dismiss the charge of commercial burglary. This Court issued a stay before

20 addressing the merits of the State’s appeal, pending our decision in State v. Archuleta,
 1 ___-NMCA-___, ___ P.3d ___ (No. 32,794, Oct. 27, 2014), cert. granted,

 2 2015-NMCERT-___ (No. 35,005, Jan. 26, 2015), the first of many cases raising the

 3 same issue relative to the charge of commercial burglary. Relying on our opinion in

 4 Archuleta, we lifted the stay and issued a notice of proposed summary disposition,

 5 proposing to affirm on November 18, 2014. The State has filed a response, objecting

 6 to our notice and requesting that we hold this appeal in abeyance or provide the State

 7 with a reasonable opportunity to seek guidance from the New Mexico Supreme Court

 8 on all pending appeals controlled by our opinion in Archuleta. [MIO 1-2] We have

 9 provided the State with such an opportunity, and the Supreme Court has denied the

10 State a stay or other remedy that would suspend the precedential value of Archuleta.

11 Thus, pursuant to Rule 12-405(C) NMRA, we apply Archuleta. See Rule 12-405(C)

12 (“A petition for a writ of certiorari filed pursuant to Rule 12-502 NMRA or a Supreme

13 Court order granting the petition does not affect the precedential value of an opinion

14 of the Court of Appeals, unless otherwise ordered by the Supreme Court.”).

15   {2}   In its response to our notice, the State simply objects to our proposed

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

17 material factual distinctions to remove this case from the control of our opinion in

18 Archuleta. For the reasons stated in our notice, we affirm the district court’s order

19 granting Defendant’s motion to dismiss the commercial burglary charge.



                                             2
1   {3}   IT IS SO ORDERED.


2
3                              M. MONICA ZAMORA, Judge

4 WE CONCUR:


5
6 CYNTHIA A. FRY, Judge


7
8 RODERICK T. KENNEDY, Judge




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