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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. 33,994

 5 AUDREY MARTINEZ,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY
 8 Mary Marlowe-Sommer, 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 Sergio Viscoli, Appellate Defender
15 Santa Fe, NM

16 for Appellant


17                                 MEMORANDUM OPINION
 1 WECHSLER, Judge.

 2   {1}   Defendant appeals from the district court’s order denying her motion to dismiss

 3 the charge of commercial burglary. This appeal arises from two separate district court

 4 cases that were addressed in a single plea agreement. Defendant entered a conditional

 5 plea reserving for appeal the issues raised in her motion to dismiss. [DS 2; RP 64

 6 (00265), RP 70 (00366)] This Court issued a calendar notice proposing to reverse

 7 based on our decision in State v. Archuleta, ___-NMCA-___, ___ P.3d ___ (No.

 8 32,794, Oct. 27, 2014), cert. granted, 2015-NMCERT-___ (No.

 9 35,005, Jan. 26, 2015). The State has filed a response, objecting to our

10 notice and requesting that we hold this appeal in abeyance or provide the State with

11 a reasonable opportunity to seek guidance from the New Mexico Supreme Court on

12 all pending appeals controlled by our opinion in Archuleta. [MIO 1-3] We have

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

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

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

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

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

18 of the Court of Appeals, unless 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, 3] 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                                               JAMES J. WECHSLER, Judge


9 WE CONCUR:


10 ________________________________
11 MICHAEL E. VIGIL, Chief Judge


12 ________________________________
13 LINDA M. VANZI, Judge




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