{ "id": 4240551, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. BILLY BACA, Defendant-Appellant", "name_abbreviation": "State v. Baca", "decision_date": "2014-08-01", "docket_number": "No. 34,769; Docket No. 32,553", "first_page": "498", "last_page": "503", "citations": [ { "type": "official", "cite": "2014-NMCA-087" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2004-NMSC-032", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1224669 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0372-01" ] }, { "cite": "259 So. 2d 739", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9801849, 9802226, 9801647 ], "year": 1972, "pin_cites": [ { "page": "745", "parenthetical": "McNulty, J. specially concurring" } ], "opinion_index": 0, "case_paths": [ "/so2d/259/0739-02", "/so2d/259/0739-03", "/so2d/259/0739-01" ] }, { "cite": "959 P.2d 183", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1998, "pin_cites": [ { "page": "212", "parenthetical": "\"The entry need not be a trespass to support a burglary conviction. Thus, a person who enters for a felonious purpose may be found guilty of burglary even if he enters with the owner's or occupant's consent.\"" } ], "opinion_index": 0 }, { "cite": "Cal. Penal Code \u00a7 459", "category": "laws:leg_statute", "reporter": "Cal. Code", "year": 2014, "pin_cites": [ { "parenthetical": "\"Every person who enters any . . . store . . . with intent to commit grand or petit larceny or any felony is guilty of burglary.\"" } ], "opinion_index": 0 }, { "cite": "105 N.M. 619", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1599073 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/105/0619-01" ] }, { "cite": "1987-NMCA-035", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6\u00b6 1, 2" } ], "opinion_index": 0 }, { "cite": "285 P.3d 622", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMSC-029", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4188995 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 1" }, { "page": "\u00b6\u00b6 50-54" }, { "page": "\u00b6 3" } ], "opinion_index": 0, "case_paths": [ "/nm-app/2/0433-01" ] }, { "cite": "2002-NMCA-109", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 15587 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 7" }, { "page": "\u00b6 2" }, { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0032-01" ] }, { "cite": "83 N.M. 676", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5333963 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0676-01" ] }, { "cite": "1972-NMCA-053", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0 }, { "cite": "102 N.M. 462", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580230 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/102/0462-01" ] }, { "cite": "1985-NMCA-012", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0 }, { "cite": "2004-NMCA-104", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1224649 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0240-01" ] }, { "cite": "2005-NMCA-133", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2550623 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/138/0580-01" ] }, { "cite": "2005-NMCA-120", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2549954 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/138/0466-01" ] }, { "cite": "92 N.M. 166", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557241 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/92/0166-01" ] }, { "cite": "1978-NMCA-074", "category": "reporters:neutral", "reporter": "NMCA", "weight": 2, "pin_cites": [ { "page": "\u00b6 15" }, { "page": "\u00b6 10" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 766, "char_count": 14721, "ocr_confidence": 0.759, "pagerank": { "raw": 7.121491057675486e-08, "percentile": 0.4276258963360412 }, "sha256": "3990ce576c239260790fda0681729eb62416839409f47a10d54b98e7ea0ac9b7", "simhash": "1:3cd75294c06fac99", "word_count": 2386 }, "last_updated": "2023-07-14T17:19:17.637489+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CYNTHIA A. FRY, Judge", "WE CONCUR:", "MICHAEL E. VIGIL, Judge", "M. MONICA ZAMORA, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. BILLY BACA, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nFRY, Judge.\n{1} Defendant was convicted of commercial burglary following his participation in a shoplifting incident inside a Costco. Defendant appeals his conviction, arguing, in part, that entry into a retail store with the intention to shoplift does not constitute the crime of burglary. We agree with Defendant and conclude that the entry in this case was not an unauthorized entry under our burglary statute. Accordingly, we reverse Defendant\u2019s conviction.\nBACKGROUND\n{2} Defendant entered Costco with a group of people. No person in the group was a member of Costco, but one person showed the Costco greeter a Costco membership card that belonged to another person. It is not known how the person obtained the membership card. The greeter did not check the card and allowed the group to enter. Once inside, a member of the group began placing items into her purse, including items that members of the group pointed out. The group then proceeded to the checkout line, where they purchased bottled water and ice cream. Upon trying to exit the store, however, they were detained by a Costco loss-prevention employee for attempting to steal the items in the woman\u2019s purse.\n{3} At trial, the greeter and the loss-prevention employee gave somewhat conflicting accounts of Costco\u2019s policies regarding admittance to the store. For instance, the greeter initially testified .that members of the public are not allowed in the store without a membership. However, the greeter also testified that although the membership cards have photos on them, it is neither routine nor within her \u201cjob description\u201d to check the photos in order to ensure that the person presenting the card is, in fact, a member. The greeter further affirmed that a person presenting a \u201cten-year-old Costco card, a friend\u2019s card, [or] a card they found on the street\u201d would be allowed to enter the store simply by displaying the card. Similarly, the loss-prevention employee testified that Costco is a \u201cmembership warehouse\u201d and that in order to enter the store, one mustbe a member or a guest of a member. But, when asked specifically what Costco\u2019s policy was regarding \u201cnon-members coming into the store,\u201d the employee responded, \u201c[n]on-members cannot make purchases.\u201d Both agreed that the \u201c[m]embers only\u201d signs posted outside Costco serve as notice to the public that only members can enter.\n{4} Defendant was convicted of commercial burglary on the theory that presentation of the membership card constituted an unauthorized entry by fraud, deceit, or pretense. State v. Ortiz, 1978-NMCA-074, \u00b6 15, 92 N.M. 166, 584 P.2d 1306 (\u201cWhether entry by fraud, deceit or pretense is characterized as trespassory, without consent, or without authorized consent, such an entry is unauthorized.\u201d). Defendant appeals.\nDISCUSSION\nStandard of Review\n{5} The issue before us is whether entry into Costco by a non-member using a membership card that does not belong to that person constitutes an \u201cunauthorized entry\u201d for purposes of our burglary statute. Statutory construction is a question of law which we review de novo. State v. Duhon, 2005-NMCA-120, \u00b6 10, 138 N.M. 466, 122 P.3d 50. \u201cIf the language of the statute is clear and unambiguous, we must give effect to that language[,]\u201d State v. McWhorter, 2005-NMCA-133, \u00b6 5, 138 N.M. 580, 124 P.3d 215, unless doing so would lead to absurd, unreasonable, or unjust results. State v. Marshall, 2004-NMCA-104, \u00b6 7, 136 N.M. 240, 96 P.3d 801. \u201cDoubts about the construction of criminal statutes are resolved in favor of the rule of lenity.\u201d State v. Keith, 1985-NMCA-012, \u00b6 10, 102 N.M. 462, 697 P.2d 145.\nDefendant\u2019s Entry Into Costco Was Not an Unauthorized Entry Under Our Burglary Statute\n{6} Burglary is defined as the \u201cunauthorized entry of any vehicle, watercraft, aircraft, dwelling or other structure . .. with the intent to commit any felony or theft therein.\u201d NMSA 1978, \u00a7 30-16-3 (1971). Wepresume, however, that retail stores are open to the public during business hours and, therefore, an individual who enters a retail store with the intent to shoplift is not guilty of burglary. State v. Rogers, 1972-NMCA-053, \u00b6 7, 83 N.M. 676, 496 P.2d 169 (explaining that a business owner\u2019s permission to enter is implied when the business invites the public to enter); State v. Tower, 2002-NMCA-109, \u00b6 7, 133 N.M. 32, 59 P.3d 1264 (\u201c[T]he store was generally open to the public as a place of commerce. Thus, the shopping public was given authority to enter the store.\u201d). But this Court has also recognized that the revocation of an individual\u2019s permission to enter a retail store that is otherwise open to the public is sufficient to conclude that the individual\u2019s subsequent entry into the store was unauthorized. Id. \u00b6\u00b6 5, 7. Thus, we must determine whether Costco\u2019s membership policies are sufficient by themselves to negate the presumption that Costco, as a retail store, is generally open to the public such that entry by a non-member during business hours constitutes an unauthorized entry under our burglary statute. We conclude that Defendant\u2019s entry into Costco, even assuming he was aware that the woman presenting the card was a non-member, is not sufficient as a matter of law to establish an unauthorized entry and thus the crime of burglary.\n{7} Recently, our Supreme Court signaled a change in our state\u2019s burglary jurisprudence .following its recognition that this Court had \u201cexpanded significantly the reach of the burglary statute.\u201d State v. Office of Pub. Defender ex rel. Muqqddin, 2012-NMSC-029, \u00b6 1, 285 P.3d 622. The Supreme Court stated that our historically broad construction of the burglary statute had \u201ctransformed [the crime] into an enhancement for any crime committed in any type of structure ... as opposed to a punishment for a harmful entry.\u201d Id. \u00b6 3. Along these lines, the Court also noted that it has become \u201ccommon to add a burglary charge [although] the entry itself did not create or add any potential of greater harm than the completed crime.\u201d Id. By these statements, the Supreme Court signaled that burglary charges should be viewed with a more critical eye, both by the courts and by prosecutors, to ensure that the conduct being prosecuted is the type the burglary statute is meant to deter. See id. \u00b6 59 (\u201cWhen deciding whether or not a burglary charge is appropriate, courts and [district [attorneys must consider whether or not this is the type of entry the Legislature intended Section 30-16-3 to deter.\u201d).\n{8} In clarifying the modern purpose of the burglary statute, our Supreme Court noted that the traditional understanding of the purpose of the burglary statute \u201cis to protect possessory rights with respect to structures and conveyances, and to define prohibited space.\u201d Id. \u00b6 40 (internal quotation marks and citations omitted). The Court further clarified that fundamental \u201camong the possessory interests that [the] burglary [statute] is designed to protect is the right to exclude.\u201d Id. \u00b6 41. Implied within the right to exclude is \u201csome notion of a privacy interest.\u201d Id. \u00b6 42. And it is that privacy interest, \u201cthe feeling of violation and vulnerability that occurs when a burglar invades\u201d a personal or prohibited space, that our burglary statute is meant to protect against. Id. \u00b6 43.\n{9} Notwithstanding Costco\u2019s membership policies, we discern no particular security or privacy interest at stake inside Costco that justifies recognizing a departure from the general rule that we presume retail stores to be open to the public. Costco shoppers pay a membership fee, or they accompany someone into the store who has paid a fee, for the opportunity to purchase goods in bulk and for any alleged pricing benefits that inhere in such purchases. Once inside, the store is similar to any other retail store in that merchandise is presented for the shopping public to purchase. Simply put, Defendant\u2019s entry into this shopping area does not implicate \u201cthe feeling of violation and vulnerability\u201d we associate with the crime of burglary. Id. Furthermore, there is no unique security interest served by Costco\u2019s membership policies. The burglary statute is not just designed to \u201cdeter trespass and theft, as those are prohibited by other laws.\u201d Id. \u00b6 40. It is instead an offense against the security of a building or habitation. Id. \u00b6\u00b6 34, 42. Defendant\u2019s entry into Costco during business hours, albeit deceptive, granted him access to an otherwise open shopping area, as opposed to an area \u201cwhere things are stored and personal items can be kept private.\u201d Id. \u00b6 61. Thus, as far as the privacy and security interests of the store itself are concerned, we see no heightened or unique security or privacy interest that distinguishes Costco from other retail stores that we generally consider open to the public.\n{10} Our decision is not intended to implicate this Court\u2019s decision in Tower because we do not equate Costco\u2019s \u201cmembers only\u201d sign with the individual notice in Tower that revoked the defendant\u2019s permission to be on the store\u2019s property and warned the defendant that a return to the store would result in criminal charges. 2002-NMCA-109, \u00b6 2.\n{11} However, following Muqqddin, we question the continuing validity of general statements in Tower indicating that a retail store\u2019s notice revoking a person\u2019s permission to be on the premises is sufficient by itself to make his or her presence unauthorized under our burglary statute. 2002-NMCA-109, \u00b6 8 (\u201c[W]here a defendant has notice that he is not authorized to enter a particular area and he, nevertheless, does so with the intent to commit a theft, he can be charged with burglary.\u201d). Similarly, we question the continuing validity of other burglary cases decided before Muqqddin that recognize a distinction between areas of a retail store that are considered open or closed to the public. See e.g., State v. Sanchez, 1987-NMCA-035, \u00b6\u00b6 1, 2, 105 N.M. 619, 735 P.2d 536 (affirming the defendant\u2019s conviction for burglary based on the unauthorized entry into the loading dock area of an auto parts store with the intent to steal). Certainly, there are areas of retail stores that may have privacy or security interests distinct from general shopping areas. See Office of Pub. Defender ex rel. Muqqddin, 2012-NMSG-029, \u00b6 42 (stating that the violation of privacy and security interests in certain structures is the evil that the modern burglary statute is intended to deter). But those cases and circumstances are not before us in the present case, and we therefore express no opinion as to their continuing precedential value.\n{12} While we recognize that Costco\u2019s membership policies allow Costco to prohibit non-members from shopping or purchasing items in the store, we are unpersuaded that the membership policies are meant to deter the same types of entry our burglary statute protects against. Harmful entiles are the entries sought to be prevented by the burglary statute. Id. \u00b6 60. Arguably, a person\u2019s entry into any retail store with the intent to steal is always harmful. For example, California\u2019s burglary statute specifically penalizes such an entry. See Cal. Penal Code \u00a7 459 (West2014) (\u201cEvery person who enters any . . . store . . . with intent to commit grand or petit larceny or any felony is guilty of burglary.\u201d); People v. Frye, 959 P.2d 183, 212 (Cal. 1998) (\u201cThe entry need not be a trespass to support a burglary conviction. Thus, a person who enters for a felonious purpose may be found guilty of burglary even if he enters with the owner\u2019s or occupant\u2019s consent.\u201d).\n{13} ButNew Mexico\u2019s burglary statute is not so broad. If our Legislature intended to penalize as burglars all individuals who enter a retail store with the intent to shoplift, it could have structured our statute to reflect that intention. See State v. Ortiz, 1978-NMCA-074, \u00b6 10, 92 N.M. 166, 584 P.2d 1306 (\u201cNew Mexico requires more than an entry with the requisite criminal intent. The entry must be unauthorized.\u201d). In the absence of such legislative direction, we are hesitant to extend our burglary statute to cover conduct covered by statutes addressing other, lesser crimes. See Office of Pub. Defender ex rel. Muqqddin, 2012-NMSC-029, \u00b6\u00b6 50-54 (discussing the judicial expansion of burglary past legislative intent, as evidenced by statutes penalizing the same behavior as misdemeanors); Cf. Jackson v. State, 259 So. 2d 739, 745 (Fla. Dist. Ct. App. 1972) (McNulty, J. specially concurring) (\u201cLawful entry, although with sinister design, does not become unlawful retroactively merely because a planned offense is thereafter committed. A shoplifter, for example, is a thief},] not a burglar.\u201d). In this case, Defendant\u2019s bypassing of Costco\u2019s membership policies in order to gain entry into Costco \u201cdid not create or add any potential of greater harm than the completed crime.\u201d Office of Pub. Defender ex rel. Muqqddin, 2012-NMSC-029, \u00b6 3. Instead, it merely allowed him access to an otherwise open shopping area.\n{14} In sum, we do not believe it is our legal system\u2019s duty to police the boundaries of Costco\u2019s membership policies. Using the membership policies alone to punish misdemeanor behavior as a felony would be a return to the judicial expansion of the crime of burglary that our Supreme Court recently reined in. \u201cAs a felony, burglary is a serious offense with serious consequences. .. . [It] is no petty crime.\u201d Id. \u00b6 60. It would be an absurd application of our burglary statute to punish those who shoplift from Sam\u2019s Club more severely than those who shoplift from Walmart. See State v. Smith, 2004-NMSC-032, \u00b6 10, 136 N.M. 372, 98 P.3d 1022 (stating that we reject \u201cformalistic and mechanical statutory construction when the results would be absurd, unreasonable, or contrary to the spirit of the statute\u201d). We therefore conclude that Costco\u2019s membership policies do not negate the presumption that retail stores are open to the public. Thus, Defendant\u2019s entry into Costco, while likely impermissible as far as Costco is concerned, was not \u201cunauthorized\u201d in terms of our burglary statute.\nCONCLUSION\n{15} For the foregoing reasons, we reverse Defendant\u2019s conviction for commercial burglary.\n{16} IT IS SO ORDERED.\nCYNTHIA A. FRY, Judge\nWE CONCUR:\nMICHAEL E. VIGIL, Judge\nM. MONICA ZAMORA, Judge", "type": "majority", "author": "FRY, Judge." } ], "attorneys": [ "Gary K. King, Attorney General Santa Fe, NM Sri Mullis, Assistant Attorney General Albuquerque, NM", "for Appellee", "Jorge A. Alvarado, Chief Public Defender David Henderson, Assistant Appellate Defender Santa Fe, NM", "for Appellant" ], "corrections": "", "head_matter": "Certiorari Granted, August 1, 2014,\nNo. 34,769\nDocket No. 32,553\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2014-NMCA-087\nFiling Date: May 14, 2014\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. BILLY BACA, Defendant-Appellant.\nGary K. King, Attorney General Santa Fe, NM Sri Mullis, Assistant Attorney General Albuquerque, NM\nfor Appellee\nJorge A. Alvarado, Chief Public Defender David Henderson, Assistant Appellate Defender Santa Fe, NM\nfor Appellant" }, "file_name": "0498-01", "first_page_order": 514, "last_page_order": 519 }