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I attest to the accuracy and integrity of this document New Mexico Compilation Commission, Santa Fe, NM '00'04- 16:44:29 2012.09.19

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO Opinion Number: 2012-NMSC-029 Filing Date: August 16, 2012 Docket No. 32,430 STATE OF NEW MEXICO, Plaintiff-Respondent, v. OFFICE OF THE PUBLIC DEFENDER ON BEHALF OF ABDUL MUQQDDIN, DECEASED, Defendant-Petitioner. and Docket No. 32,632 STATE OF NEW MEXICO, Plaintiff-Respondent, v. EDGAR DOMINGUEZ-MERAZ, Defendant-Petitioner. ORIGINAL PROCEEDINGS ON CERTIORARI Carl J. Butkus and Jacqueline D. Flores, District Judges Jacqueline L. Cooper, Chief Public Defender Adrianne R. Turner, Assistant Appellate Defender for Petitioners Gary K. King, Attorney General Margaret E. McLean, Assistant Attorney General Andrew S. Montgomery, Assistant Attorney General 1

Farhan A. Khan, Assistant Attorney General Santa Fe, NM for Respondent OPINION BOSSON, Justice. {1} These consolidated cases ask this court to address for the first time the outer limits of New Mexico's burglary statute, NMSA 1978, Section 30-16-3 (1971). In more than 40 years, this Court has issued only one burglary opinion and even then on a somewhat tangential issue. See State v. Gonzales, 78 N.M. 218, 430 P.2d 376 (1967). By contrast, over that same time our Court of Appeals has issued numerous opinions that, for the most part, have expanded significantly the reach of the burglary statute, an expansion that has occurred without any parallel change in the statute. The opinions before us now illustrate the unprecedented scope of that expansion, which presents this Court with an opportunity to undertake a review of our burglary jurisprudence. We begin with burglary's common-law origins and the principles that inspired the development of that crime both at common law and later by legislative enactment. We look behind the words of the burglary statute, searching for the thoughts that gave birth to the text. Ultimately, we conclude that our case law has gone astray, and that we must alter our course, beginning with the two opinions before us. Accordingly, we reverse. BACKGROUND {2} As burglary has evolved from its common law origins, it has become increasingly difficult to discern general principles that can be applied in all cases. What has been created appears to be more of a patchwork body of law that applies to the particular situation presented rather than guiding principles to be applied to all cases. This Court is not without its share of responsibility, as we have repeatedly declined to grant certiorari to address such issues as they arose. This does not mean, however, that we must continue down that path. {3} As the crime of burglary has continued to expand, it seems at times to have transformed into an enhancement for any crime committed in any type of structure or vehicle, as opposed to a punishment for a harmful entry. In the past, the typical burglary scenario involved a home invasion, and the crime was intended to protect occupants against the terror and violence that can occur as a result of such an entry. People v. Davis, 958 P.2d 1083, 1089 (Cal. 1998). Yet today it has become more common to add a burglary charge to other crimes where the entry itself did not create or add any potential of greater harm than the completed crime. Our Legislature has never expressed an intent that burglary be used as an enhancement, nor has it clearly authorized the steady progression of judicial expansion of burglary as seen over the past 40 years. After setting forth the undisputed facts underlying 2

each conviction, we proceed to examine the evolution of burglary in New Mexico to inform our analysis of whether these two cases and others like them truly fit within the statutory meaning of burglary. Facts {4} The facts of each case are largely undisputed, only the legal effects of those facts are at issue. Abdul Muqqddin {5} In the early morning hours of August 21, 2005, Albuquerque Police Officer John Friedfertig was responding in his squad car to a loud noise call. En route, Officer Friedfertig noticed some suspicious, loud banging coming from an alley. Officer Friedfertig stopped to investigate and found Defendant Abdul Muqqddin1 lying under a van. Officer Friedfertig saw a red gas can under the van with gasoline dripping from the van's gas tank into the gas can. After being placed into custody, Defendant Muqqddin admitted using a nail or a piece of metal to puncture the gas tank and take the gas. {6} Defendant Muqqddin was charged with five separate counts for his actions-auto burglary; criminal damage to property; possession of burglary tools; larceny; and concealing identity-and a jury trial was held. At the close of the State's case, Defendant Muqqddin moved for a directed verdict on all charges. The district court granted the motion in regard to the possession of burglary tools charge, but denied the motion in regard to the other charges. The jury returned a guilty verdict on all the remaining charges, including auto burglary. {7} Defendant Muqqddin appealed to the New Mexico Court of Appeals, "arguing that puncturing the [g]as tank did not constitute an `entry' under the burglary statute." The Court of Appeals analogized the facts presented to the facts of both State v. Rodriguez, 101 N.M. 192, 679 P.2d 1290 (Ct. App. 1984), and State v. Reynolds, 111 N.M. 263, 804 P.2d 1082 (Ct. App. 1990), involving an entry into the open bed of a pickup truck and the engine compartment of a vehicle respectively. State v. Muqqddin, 2010-NMCA-069,

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