STATE V. LARA, 1978-NMCA-112, 92 N.M.
274, 587 P.2d 52 (Ct. App. 1978)
STATE of New Mexico, Plaintiff-Appellee,
vs.
Daniel Donald LARA, Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
1978-NMCA-112, 92 N.M. 274, 587 P.2d 52
Motion for Rehearing Denied November
22, 1978
John B. Bigelow, Chief Public Defender,
Santa Fe, Mark H. Shapiro, Asst. Appellate Defender, Michael L. Danoff,
Albuquerque, for defendant-appellant.
Toney Anaya, Atty. Gen., Michael E.
Sanchez, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.
WOOD, C.J., wrote the opinion. HERNANDEZ
and LOPEZ, JJ., concur.
{1} Convicted of burglary and
larceny, defendant appeals. Two contentions are answered summarily. The
photographic identification procedure was not impermissibly suggestive under
the totality of the circumstances.
State v. Armstrong, 85 N.M. 234,
511
P.2d 560 (Ct. App.1973);
State v. Jones, 83 N.M. 600,
495 P.2d 380 (Ct.
App.1972). The refusal to give defendant's requested instruction on alibi was
not error. The Use Note to U.J.I. Crim. 41.30 states that no instruction on the
subject shall be given. See
State v. Scott, 90 N.M. 256,
561 P.2d 1349
(Ct. App.1977); compare
State v. Bell, 90 N.M. 134,
560 P.2d 925 (1977).
The issue to be discussed concerns the structure that defendant burglarized;
the specific issue is whether defendant burglarized a dwelling house.
{2} Defendant was convicted
of burglary of a dwelling house, a third degree felony. other burglary is a
fourth degree felony. Section 40A-16-3, N.M.S.A. 1953 (2d Repl. Vol. 6). U.J.I.
Crim. 16.21
{*275} defines a dwelling
house as "any structure, any part of which is customarily used as living
quarters." See
State v. Hudson, 78 N.M. 228,
430 P.2d 386 (1967).
{3} Defendant made an
unauthorized entry into the victim's garage and stole a power saw and some
wrenches. The garage is part of the structure in which the victim lived; one
wall of the garage is also a wall of one of the rooms of the residence. The
garage has a back door which opens onto the patio and an overhead door which
opens onto the driveway. However, there is no door between the garage and the
interior of the residence. To enter the residence from the garage, one must go
either onto the patio or the driveway.
{4} Defendant contends that
an attached garage, with no opening to the house, is not a part of a dwelling
house within the meaning of § 40A-16-3, supra. Because the garage "did not
communicate directly" he asserts it was as effectively separated from the
house as the garages in
People v. Picaroni, 131 Cal. App.2d 612, 281
P.2d 45 (1955) and
Bean v. Commonwealth, 229 Ky. 400, 17 S.W.2d 262
(1929). In
Picaroni, supra, the garage was a separate building, a cement
walk led from the garage to the house. The garage in
Bean, supra, was
also a separate building at the rear of the lot.
{5} We do not agree with
defendant. U.J.I. Crim. 16.21 defines dwelling house as
any structure,
any
part of which is customarily used as living quarters. Under this
definition, and the facts in the case, burglary of the garage was burglary of
the dwelling house because the garage was a part of the structure used as
living quarters. See
People v. Gargano, 10 Ill. App.3d 957, 295 N.E.2d 342
(1973).
{6} The fact that there was
no direct access to the interior of the house from the garage does not aid
defendant. The garage was a part of the habitation; it was "directly
contiguous to and a functioning part" of the residence.
Burgett v. State,
161 Ind. App. 157, 314 N.E.2d 799 (1974). See also
Bousman v. State,
Ind. App., 338 N.E.2d 723 (1975);
State v. Parker, 501 S.W.2d 3
(Mo.1973);
State v. Haas, 13 Or. App. 368, 510 P.2d 852 (1973), rev'd on
other grounds, 420 U.S. 714, 43 L. Ed. 2d 570, 95 S. Ct. 1215 (1975). Defendant
was properly convicted of burglary of a dwelling house.
{7} The judgment and
sentences are affirmed.
HERNANDEZ and LOPEZ, JJ., concur.