     This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
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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. 32,797

 5 ELIZABETH CUFFEE,

 6          Defendant-Appellee.


 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Ross Sanchez, 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 Kimberly Chavez Cook, Assistant 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 dismissing the indictment

 3 against Defendant for the charge of commercial burglary. Originally, we issued a

 4 notice of proposed summary disposition, proposing to reverse. Defendant filed a

 5 memorandum in opposition to our notice. Thereafter, we issued a stay pending our

 6 decision in State v. Archuleta, ___-NMCA-___, ___ P.3d ___ (No. 32,794, Oct. 27,

 7 2014), cert.      granted, 2015-NMCERT-___ (No. 35,005,

 8 Jan. 26, 2015), the first of many cases raising the same issue relative to the

 9 charge of commercial burglary. Relying on our opinion in Archuleta, we lifted the stay

10 and issued a second notice, proposing to affirm. The State has filed a response,

11 objecting to our second notice and requesting that we hold this appeal in abeyance or

12 provide the State with a reasonable opportunity to seek guidance from the New

13 Mexico Supreme Court on all pending appeals controlled by our opinion in Archuleta.

14 [MIO 1-2] We have provided the State with such an opportunity, and the Supreme

15 Court has denied the State a stay or other remedy that would suspend the precedential

16 value of Archuleta. Thus, pursuant to Rule 12-405(C) NMRA, we apply Archuleta.

17 See Rule 12-405(C) (“A petition for a writ of certiorari filed pursuant to Rule 12-502

18 NMRA or a Supreme Court order granting the petition does not affect the precedential

19 value of an opinion of the Court of Appeals, unless otherwise ordered by the Supreme

                                             2
1 Court.”).

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

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

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

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

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

7   {3}   IT IS SO ORDERED.


8                                                ________________________________
9                                                JAMES J. WECHSLER, Judge


10 WE CONCUR:


11 ________________________________
12 TIMOTHY L. GARCIA, Judge


13 ________________________________
14 J. MILES HANISEE, Judge




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