 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                           NO. 29,146

10 PETER DURAN,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
13 George P. Eichwald, District Judge

14 Gary K. King, Attorney General
15 Margaret McLean, Assistant Attorney General
16 Santa Fe, NM

17 for Appellee

18 Hugh W. Dangler, Chief Public Defender
19 J.K. Theodosia Johnson, Assistant Appellate Defender
20 Santa Fe, NM

21 for Appellant

22                                 MEMORANDUM OPINION

23 VIGIL, Judge.

24          Peter A. Duran (Defendant) appeals from the judgment, sentence and
 1 commitment entered in Sandoval County District Court case nos. D-1329-CR-

 2 2005-00587, D-1329-CR-2005-00572, and D-1329-CR-2006-00004. [RP 179]

 3 The State of New Mexico filed a nolle prosequi in D-1329-CR-2005-00587

 4 because Defendant pled guilty in the other two cases. [See RP CR-2005-00587 at

 5 80] All references to the record proper in this memorandum opinion are from the

 6 record proper volume for D-1329-CR-2006-00004. Defendant entered a

 7 conditional plea agreement as to D-1329-CR-2005-00572, and D-1329-CR-2006-

 8 00004, reserving the right to appeal the district court order determining that

 9 Defendant was competent to stand trial. [RP 172, 174, 177]

10        Defendant raises three issues on appeal: (1) the State failed to meet its

11 burden to prove competence beyond a reasonable doubt after the parties stipulated

12 that Defendant was incompetent and met the dangerousness standard; (2) the

13 district court abused its discretion and denied Defendant due process by rejecting

14 Defendant’s request for a separate jury to try the competency issue; and (3) the

15 prejudice of the district court judge against Defendant as a result of the charges

16 prohibited the court from finding Defendant incompetent. [DS 4] The calendar

17 notice proposed summary affirmance. Defendant has filed a memorandum in

18 opposition that we have duly considered. We affirm.

19 A.     The Applicable Burden of Proof and Whether the District Court Erred

                                              2
 1 in     Determining that Defendant was Competent to Stand Trial

 2        In the docketing statement, Defendant argued that the standard of proof

 3 applicable to the State for proving Defendant’s competence was beyond a

 4 reasonable doubt. As we discussed in the calendar notice, however, recently, our

 5 Supreme Court held that the applicable burden of proof is a preponderance of the

 6 evidence. State v. Chavez, 2008-NMSC-001, ¶ 21, 143 N.M. 205, 174 P.3d 988

 7 (holding that “the rule remains that the defendant initially bears the burden of

 8 proving by a preponderance of the evidence that he is incompetent to stand trial,

 9 whereupon the burden shifts to the State to prove by the same standard, a

10 preponderance of the evidence, that the defendant is competent to stand trial”).

11        Defendant does not continue to argue about the State’s burden of proof, but

12 Defendant contends that the district court erred in determining that Defendant had

13 regained competency when Defendant’s underlying disorder remained unchanged.

14 [MIO 3] Defendant now asks this Court to consider information on a website and

15 in law review article that may argue that persons suffering from delusions can

16 appear to be superficially normal. [MIO 4-5] Defendant also argues that his

17 delusional beliefs “colors all of his actions” [MIO 4] and that Defendant “clearly

18 did not have the ability to assist his attorney in a rational manner.” [MIO 6] As we

19 requested in the calendar notice, in the memorandum Defendant explains more

                                             3
 1 about his diagnosis and the conflicts in the expert evaluations. [MIO 1-2]

 2 Defendant has been diagnosed with a delusional disorder with “fixed hyper-

 3 religious and grandiose scheme.” [MIO 1] Defendant believes that he is “the

 4 vessel of God’s wrath” and the events in this case, including the multiple charges

 5 of criminal sexual penetration of a minor (CSPM), multiple charges of conspiracy

 6 to commit CSPM, multiple charges of sexual exploitation of a child, and multiple

 7 charges of possession and trafficking a controlled substance, relate to Defendant’s

 8 role in the apocalypse. [Id.] Defendant was determined to be incompetent to stand

 9 trial on January 18, 2008 [RP 112], he was sent to Las Vegas Behavioral Health

10 Unit for treatment to attain competency, and his competency was revisited at a

11 hearing on September 5, 2008. [MIO 3]

12        Both evaluators agreed that Defendant could recite the charges against him;

13 he knew they were felonies and that felonies were more serious crimes than

14 misdemeanors; he could properly identify the roles of the prosecutor, judge, jury

15 and defense attorney; and he could identify legal concepts such as “plea bargain.”

16 [MIO 1, 2] According to Dr. Schwartz, however, when questioned about his

17 ability to formulate a defense strategy, Defendant “would revert to his delusional

18 rhetoric and would eventually become nonsensical.” [MIO 1] Dr. Burness agreed

19 with Dr. Schwartz’s delusional disorder diagnosis and its manifestations. [MIO 2]

                                             4
 1 Dr. Burness noted, however, that most perpetrators of sexual crimes against

 2 children “harbor a range of cognitive distortions and attempted rationalizations in

 3 order to minimize the harm they have inflicted[,]” and she opined that Defendant’s

 4 beliefs, that he is the vessel of God’s wrath and his incarceration affects the ending

 5 of the world, are extensions of rationalizations. [Id.] Dr. Burness concluded that

 6 Defendant’s delusions do not preclude Defendant “from being able to rationally

 7 and factually assist his lawyer in the preparation of his defense.” [Id.] Defendant’s

 8 bench brief below further indicates that “[t]he State’s doctors have raised issues of

 9 potential malingering by Defendant[,]” but that “these issues are close and hard to

10 call with respect to . . . Defendant’s delusions.” [RP 151]

11        At the September 5, 2008 hearing, the opinions of the different forensic

12 experts were reviewed, and the district court judge asked Defendant a series of

13 questions about the role of attorneys, judge, and jury. [DS 5, MIO 3] The district

14 court judge agreed with Dr. Burness’s findings [MIO 3] and entered an order

15 finding Defendant competent to stand trial. [RP 158] The district court

16 determined that Defendant “understands the nature and significance of these

17 proceedings and the criminal charges[,]” that Defendant “possesses the ability to

18 assist his attorney in the preparation of a defense[,]” and that Defendant “is

19 competent to stand trial.” [Id.]        We affirm the district court decision. The

                                              5
 1 standard of proof for the State’s evidence, a preponderance, is satisfied. Moreover,

 2 the district court decision finding Defendant to be competent is supported by

 3 substantial evidence, including Dr. Burness’s expert opinion and the responses

 4 Defendant made to the district court’s own questions to him. State v. Sandoval,

 5 2004-NMCA-046, ¶ 8, 135 N.M. 420, 89 P.3d 92 (stating that when we review for

 6 substantial evidence we give deference to the findings of the district court); State v.

 7 Alberico, 116 N.M. 156, 164, 861 P.2d 192, 200 (1993) (discussing that it is well-

 8 established that the fact finder is not required to accept expert opinions as

 9 conclusive and disregard all other evidence bearing on the issue); State v.

10 Casteneda, 97 N.M. 670, 678, 642 P.2d 1129, 1137 (Ct. App. 1982) (stating that it

11 is the role of the fact finder to resolve any conflicts in the evidence and to

12 determine the credibility and weight to afford the evidence).

13        Accordingly, we affirm the district court on this issue.

14 B.     Whether Defendant Was Entitled to a Separate Jury Hearing for the
15        Competency Hearing

16        As we discussed in the calendar notice, NMSA 1978, Section 31-9-1.3(A)

17 (1999) specifically provides that, after entering an order committing a defendant to

18 undergo treatment, the district court shall conduct a hearing, without a jury, in

19 order to determine whether a defendant is competent to proceed to trial, is making


                                               6
 1 progress under treatment, and remains “dangerous” as provided by the statute. In

 2 the memorandum, Defendant argues that Rule 5-602(B)(2)(b) NMRA, however,

 3 requires that if the issue of competency arises during trial and no jury has yet

 4 decided the issue, the jury shall be instructed on the issue. [MIO 6] We agree

 5 with this statement of the meaning of Rule 5-602(B)(2)(b), and a defendant’s right

 6 to a jury to consider the issue of competency when the issue arises during trial,

 7 notwithstanding the language of Section 31-9-1.3(A). The committee commentary

 8 of Rule 5-602 specifically states, however, that “[i]f the issue of present

 9 competency is raised prior to trial, the trial judge, in his discretion, may without a

10 jury determine whether the defendant is competent to stand trial or may submit the

11 issue to a jury other than a jury which is to determine the guilt or innocence of the

12 defendant.” See also Rule 5-602(B)(2)(a).

13        In this case, Defendant’s motions to determine Defendant’s competency to

14 stand trial were filed before trial. [RP 58, 93] Prior to trial, on January 18, 2008,

15 the district court entered an order committing Defendant to the New Mexico

16 Behavioral Health Institute at Las Vegas for treatment to attain competency to

17 stand trial. [RP 112] Thereafter, on September 5, 2008, the district court held a

18 bench hearing on Defendant’s competency, finding Defendant competent to stand

19 trial. [RP 158] After Defendant was determined competent to stand trial,

                                              7
 1 Defendant entered a guilty plea reserving the competency issue for review on

 2 appeal. [RP 172] Defendant never proceeded to trial and the competency issue

 3 was not raised during trial.

 4        Rule 5-602(B)(2)(a) allows the district court to decide the issue, or in its

 5 discretion to submit the issue of competency to a jury other than the trial jury. The

 6 district court is not required to submit the issue to a jury. Defendant’s motion

 7 requesting a jury determine his competency recognizes the applicability of Rule 5-

 8 602(B)(2)(a), rather than Rule 5-602(B)(2)(b). [RP 143] In the motion, rather

 9 than assert his right to a jury, Defendant requests the district court exercise its

10 discretion to submit the issue to a jury. [Id.]

11        We affirm the district court decision to deny Defendant’s motion to hold his

12 competency hearing before a jury.

13 C.     Whether the Prejudice of the District Court Judge Against Defendant as
14        a Result of the Nature of the Criminal Charges Against Defendant
15        Prohibited the Court From Finding Defendant Incompetent

16        In the docketing statement, Defendant argued that because the district court

17 judge ruled against him on the competency issue, he was prejudiced against him.

18 The calendar notice proposed to affirm on this issue on the basis that alleged

19 personal bias cannot be inferred from an adverse ruling. See State v. Case, 100

20 N.M. 714, 717, 676 P.2d 241, 244 (1984). In addition, as discussed above, the

                                               8
 1 State met its burden of proof and the district court competency decision is

 2 supported by substantial evidence, including the testimony of a forensic expert.

 3 Further, Defendant did not indicate any particular facts that would support his

 4 assertion that the district court judge was prejudiced against Defendant based on

 5 the nature of the crimes he was alleged to have committed. See State v. Hoxsie,

 6 101 N.M. 7, 10, 677 P.2d 620, 623 (1984) (“An assertion of prejudice is not a

 7 showing of prejudice.”), overruled on other grounds, Gallegos v. Citizens Ins.

 8 Agency, 108 N.M. 722, 731, 779 P.2d 99, 108 (1989); see also State v. Hernandez,

 9 115 N.M. 6, 20, 846 P.2d 312, 326 (1993) (stating that adverse rulings or

10 enforcement of the rules does not establish judicial bias); and see State v.

11 Cherryhomes, 114 N.M. 495, 500, 840 P.2d 1261, 1266 (Ct. App. 1992)

12 (discussing that a party cannot establish bias merely by pointing to the judge’s

13 failure to accept his argument). Finally, Defendant did not further address this

14 issue in the memorandum. State v. Ibarra, 116 N.M. 486, 489, 864 P.2d 302, 305

15 (Ct. App. 1993) (“A party opposing summary disposition is required to come

16 forward and specifically point out errors in fact and/or law.”). Accordingly, we

17 affirm on this issue.

18        IT IS SO ORDERED.

19

                                              9
1   MICHAEL E. VIGIL, Judge




     10
1 WE CONCUR:


2
3 JONATHAN B. SUTIN, Judge


4
5 RODERICK T. KENNEDY, Judge




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