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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                            NO. 32,523

 5 JACQUITA BACA,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Stan Whitaker, District Judge

 9 Gary K. King, Attorney General
10 Margaret McLean, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 L. Helen Bennett PC
14 L. Helen Bennett
15 Albuquerque, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 ZAMORA, Judge.
 1   {1}   Jacquita Baca (Defendant) appeals her convictions for commercial burglary

 2 pursuant to NMSA 1978, Section 30-16-3(B) (1971), and conspiracy to commit

 3 commercial burglary pursuant to NMSA 1978, Section 30-28-2 (1979). Following

 4 State v. Baca, 2014-NMCA-___, ___ P.3d___ (No. 32,553, May 14, 2014), our recent

 5 decision arising from the same incident, we conclude that the entry in this case was

 6 not the type of entry our burglary statute was meant to deter, and reverse Defendant’s

 7 convictions on that basis.

 8 BACKGROUND

 9   {2}   On November 19, 2010, Defendant entered Costco with three other people. No

10 person in the group was a member of Costco, but one person showed the Costco

11 greeter a Costco membership card that belonged to another person. The greeter did not

12 check the card and allowed the group to enter. After entering the store, one member

13 of the group began placing items into her purse, including items that members of the

14 group pointed out. Defendant presented the membership card and purchased bottled

15 water and ice cream. When the group attempted to leave the store, they were detained

16 by a Costco loss-prevention employee.

17   {3}   Defendant’s trial in the district court was joined with the cases of two of the

18 other members of the group who were involved in the incident, including co-defendant

19 Billy Baca. At trial, Costco employees testified that while a Costco membership is


                                              2
 1 required in order to shop at the store, and customers must display a membership card

 2 to enter the store, greeters do not customarily check to ensure that the person

 3 presenting the card is, in fact, a member.

 4   {4}   Both Defendant and Mr. Baca were convicted of commercial burglary on the

 5 theory that entering Costco by displaying another person’s membership card

 6 constituted an unauthorized entry by fraud, deceit, or pretense. State v. Ortiz, 1978-

 7 NMCA-074, ¶ 15, 92 N.M. 166, 584 P.2d 1306 (“Whether entry by fraud, deceit[,] or

 8 pretense is characterized as trespassory, without consent, or without authorized

 9 consent, such an entry is unauthorized.”). Defendant was also convicted of conspiracy

10 to commit commercial burglary. Defendant and Mr. Baca appealed their respective

11 convictions. Baca, 2014-NMCA-___, ¶ 4. On appeal, their cases were not

12 consolidated. In Baca, we reversed Mr. Baca’s conviction for commercial burglary.

13 Id. ¶ 15.

14 DISCUSSION

15 Commercial Burglary

16   {5}   Here, Defendant argues that because her entry into Costco was not

17 unauthorized, her conduct did not constitute commercial burglary. We agree. In Mr.

18 Baca’s appeal, we addressed the identical question of law: “The issue before us is

19 whether entry into Costco by a non-member using a membership card that does not


                                                3
 1 belong to that person constitutes an ‘unauthorized entry’ for purposes of our burglary

 2 statute.” Id. ¶ 5. In that case, we determined that “Costco’s membership policies do

 3 not negate the presumption that retail stores are open to the public. Thus, [the

 4 d]efendant’s entry into Costco, while likely impermissible as far as Costco is

 5 concerned, was not ‘unauthorized’ in terms of our burglary statute.” Id. ¶ 14. We find

 6 Baca’s conclusion to be dispositive as to this issue and we need not repeat our

 7 analysis here. See Smoot v. Physicians Life Ins. Co., 2004-NMCA-027, ¶ 7, 135 N.M.

 8 265, 87 P.3d 545. In light of Baca, we conclude this Defendant’s entry into Costco

 9 was not an unauthorized entry under our burglary statute.

10 Conspiracy to Commit Commercial Burglary

11   {6}   “Conspiracy consists of knowingly combining with another for the purpose of

12 committing a felony.” Section 30-28-2(A). “The elements of conspiracy are: (1)

13 agreement to commit the underlying offense; and (2) the intent to commit the

14 offense.” State v. Villalobos, 1995-NMCA-105, ¶ 16, 120 N.M. 694, 905 P.2d 732.

15 Here, the underlying offense is commercial burglary, and we have held that

16 Defendant’s entry into Costco and commission of theft therein does not constitute

17 commercial burglary. By virtue of our holding, the question of whether Defendant’s

18 conduct constituted conspiracy to commit commercial burglary is eliminated.

19 CONCLUSION


                                             4
1   {7}   For the foregoing reasons, we reverse Defendant’s convictions for commercial

2 burglary and conspiracy to commit commercial burglary.

3   {8}   IT IS SO ORDERED.



4                                               _______________________________
5                                               M. MONICA ZAMORA, Judge

6 WE CONCUR:


7 ____________________________
8 CYNTHIA A. FRY, Judge


 9 ____________________________
10 MICHAEL E. VIGIL, Judge




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