                                                                 I attest to the accuracy and
                                                                  integrity of this document
                                                                    New Mexico Compilation
                                                                  Commission, Santa Fe, NM
                                                                 '00'04- 14:01:43 2017.05.02

           IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2017-NMSC-014

Filing Date: March 9, 2017

Docket No. S-1-SC-35407

STATE OF NEW MEXICO,

       Plaintiff-Appellant,

v.

DESIREE LINARES,

       Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
James Waylon Counts, District Judge

Hector H. Balderas, Attorney General
Martha Anne Kelly, Assistant Attorney General
Albuquerque, NM
for Appellant
Bennett Baur, Chief Public Defender
J.K. Theodosia Johnson, Assistant Public Defender
Santa Fe, NM
for Appellee

                                         OPINION

NAKAMURA, Justice.

{1}   A court-appointed psychologist evaluated Defendant, Desiree Linares, and
recommended that she be found incompetent to stand trial due to mental retardation.1 See


       1
        We are aware that it is no longer acceptable to describe individuals with
developmental disabilities as “mentally retarded.” This now-defunct phrase is part and
parcel of a rhetoric that dehumanized and delegitimized valuable members of our society.
Sadly, our statutes continue to utilize this troubling convention. As our duty in this case is
to determine whether or not the law as set out by statute was followed, we must use
descriptive phrases we find unsettling. We encourage our Legislature to amend the statutes

                                              1
NMSA 1978, § 31-9-1.6 (1999). The State doubted the court-appointed psychologist’s
testing methodology and conclusions and requested an opportunity to conduct an
independent evaluation utilizing its own expert. The district court granted this request, but
because Linares had filed a speedy-trial motion and the proceedings had been fraught with
needless and unexplained delay, the district court allowed the court-appointed psychologist
to attend and observe the State’s independent evaluation to ensure the issue of Linares’s
mental retardation was quickly resolved. The State insisted that this was unacceptable and
unlawful and declined to conduct the evaluation because the court-appointed psychologist
would be present. Ultimately, the district court accepted the court-appointed psychologist’s
recommendations and found Linares incompetent due to mental retardation. Linares was
civilly committed to the New Mexico Department of Health (DOH) and the criminal
proceedings against her were dismissed.

{2}     In this direct appeal, the State contends that the district court abused its discretion
and effectively denied it an opportunity for an “independent” evaluation by permitting the
court-appointed psychologist to attend the second, independent evaluation which ultimately
did not occur. The State also argues that the district court abused its discretion in concluding
that Linares is incompetent to stand trial. Lastly, the State asserts that the procedural
requirements of Section 31-9-1.6(B) and (C), which specify the procedures a district court
must follow when committing a defendant to involuntary civil confinement, were not
followed. We find no error in the proceedings below and affirm.

I.     BACKGROUND

{3}     Linares and Alexis Shields resided together as the foster children of Evelyn Miranda.
In June 2011, Linares and Shields devised a plan to run away from Miranda’s home. The
children intended to place a piece of cloth soaked in nail polish remover over Miranda’s
mouth and nose rendering her unconscious, tie her down with electrical cords, steal her
vehicle, and drive away. The children’s ill-conceived plan went dreadfully awry. Miranda
struggled with the children when they attempted to hold the cloth over her mouth. Linares
restrained Miranda as Shields smothered Miranda with a pillow and suffocated her. The
children fled in Miranda’s vehicle but were later apprehended by the authorities.

{4}     Linares was indicted in June 2011 in the Twelfth Judicial District Court and charged
as a serious youthful offender with first-degree (willful and deliberate) murder and
(alternatively) first-degree felony murder.2 Linares was also charged with a host of other




applicable to the developmentally disabled and replace any terms that have pejorative or
derogatory connotations with suitable and respectful alternatives.
       2
        The predicate offense underlying the felony-murder charge was unlawful taking of
a motor vehicle.

                                               2
lesser offenses.3 Shortly after the indictment was filed, Linares filed a demand for speedy
trial.

{5}    In the months following the indictment, Linares filed several unopposed motions to
continue trial, and trial was postponed and reset several times. At the end of May
2012—nearly a year after Linares was indicted—Linares again sought a continuance, this
time indicating that the parties required additional time to negotiate a plea. The court
granted the motion and set an August 24, 2012, plea deadline.

{6}      The plea the parties negotiated required Linares to plead no-contest to first-degree
(willful and deliberate) murder and to the other lesser charges for which she was indicted and
to testify against Shields. In return, the State agreed to not seek adult sanctions against
Linares but to commit her to the care of the Children, Youth and Families Department until
the age of 21.

{7}    The parties agreed that a predisposition study and report addressing Linares’s
amenability to treatment would be beneficial and Linares asked the court, citing NMSA
1978, § 32A-2-17 (2005), to order the Children, Youth and Families Department to prepare
a pre-disposition report. In August 2012, the court ordered Linares to undergo a
predispositional diagnostic evaluation and Dr. Susan Cave was appointed by the court to
conduct that evaluation.

{8}     Dr. Cave completed her evaluation on December 5, 2012, and concluded that
Linares’s intelligence quotient (IQ) is 68 and that she is mildly mentally retarded. Despite
this conclusion, Dr. Cave determined that Linares was “minimally competent to proceed at
sentencing.”

{9}     The court held a change of plea hearing on December 13, 2012, to review the terms
of the plea agreement the parties reached and to confirm that Linares understood the terms
of the agreement and was entering into it voluntarily. At that hearing, the court asked both
counsel why the case had been delayed so long, noted that plea negotiations had been
ongoing for some time, and pointed out that trial had been set for the previous summer. No
adequate explanation for the delay was forthcoming from either party.

{10} On December 28, 2012, Linares withdrew her plea. Contrary to the parties’
agreement, the district court was required by law to impose adult sanctions. See generally
State v. Jones, 2010-NMSC-012, ¶ 17, 148 N.M. 1, 229 P.3d 474 (explaining that a serious
youthful offender convicted of first-degree murder “must receive an adult sentence.”). Trial


       3
        The lesser offenses charged included conspiracy to commit first-degree murder,
conspiracy to commit felony-murder, kidnapping, conspiracy to commit kidnapping,
unlawful taking of a motor vehicle, conspiracy to commit unlawful taking of a motor vehicle,
larceny, and tampering with evidence.

                                              3
was once more rescheduled, this time for March 2013.

{11} In late January 2013, Linares moved for a hearing on mental retardation. One day
after filing that motion, Linares moved to dismiss the case, which had been pending for
nineteen months, on speedy-trial grounds.

{12} An amended superseding grand jury indictment was filed in February 2013. The
first-degree (willful deliberate) murder charge was dropped. Linares was charged with two
alternative counts of felony murder4 and several lesser offenses.5

{13} At the end of February 2013, the district court entered a sua sponte order vacating
the March 2013 trial setting. The court determined that Linares’s possible incompetency
precluded any further proceedings.

{14} In June 2013, the State filed a motion to compel an independent evaluation of
Linares’s alleged mental retardation on the grounds that Dr. Cave’s December 5, 2012,
report contained problematic internal inconsistencies. The State emphasized that Dr. Cave’s
conclusion that Linares is mentally retarded, and thus, incompetent, could not be reconciled
with Dr. Cave’s conclusion that Linares was competent to enter into a plea. The State also
emphasized that Dr. Cave submitted an additional report on May 13, 2013, in which she
withdrew her initial conclusion that Linares was ever competent.6 This subsequent report,
the State argued, was further evidence that Dr. Cave’s conclusions were suspect.

{15} A hearing on the State’s motion for an independent evaluation was held on March
14, 2014. At that hearing, the State called Dr. Noah Kaufman, a neuropsychologist, as a
witness and elicited testimony from him that called into question both the methodology
underlying Dr. Cave’s assessment of Linares’s IQ and Dr. Cave’s determination that Linares
is mildly mentally retarded.

{16} At the end of the hearing, the court agreed that the State’s concerns about the
reliability of Dr. Cave’s evaluation were legitimate and further concluded that the State
should have an opportunity to perform an independent assessment of Linares’s mental
faculties. But growing concern about the delay that had plagued the proceedings prompted
the court to grant defense counsel’s request that Dr. Cave be permitted to attend the State’s
independent evaluation. The court made clear, however, that Dr. Cave could not participate
or interfere with the State’s evaluation in any way.


       4
        Kidnapping and robbery served as the alternative predicate felonies.
       5
        The lesser charges included kidnapping, conspiracy to commit kidnapping, robbery,
conspiracy to commit robbery, and tampering with evidence.
       6
        Dr. Cave’s May 13, 2013, report was not made part of the record proper.

                                             4
{17} At the end of March 2014, the State filed a motion to prohibit Dr. Cave from
attending its independent evaluation. At the motion hearing, Dr. Kaufman insisted that the
rules of professional conduct governing psychologists precluded him from conducting a
neuropsychological examination where a third-party observer would be present. The district
court was unpersuaded and affirmed its earlier ruling that Dr. Cave could attend and observe
the independent evaluation. The court made clear that its decision to permit Dr. Cave to
attend was motivated by the court’s desire to avoid any further delay in the proceedings and
to ensure that the issue of Linares’s mental retardation was resolved as efficiently and as
quickly as possible. The State stood firm and indicated that it would not conduct the
evaluation if Dr. Cave would be present. The court also stood firm and entered an order
quashing its previous order permitting the independent evaluation.

{18} A final hearing to decide whether or not Linares is mentally retarded was held on
September 11, 2014. Dr. Cave was present and testified, consistent with her reports, that
Linares’s IQ is 68 and that she is mentally retarded as that term is defined in Section 31-9-
1.6(E). The State called yet another psychologist, Dr. Edward Siegel, as a witness. Like Dr.
Kaufman, Dr. Siegel attempted to discredit and undermine Dr. Cave’s conclusions by
highlighting the alleged inadequacies of her evaluation methods and by pointing out several
inconsistencies throughout her reports. At the conclusion of the hearing, the court advised
the parties that it would pronounce its ruling by written order.

{19} In an order dated October 2, 2014, the court found that Linares’s IQ is 68 and
concluded that Linares is mentally retarded as defined by Section 31-9-1.6(E). The court
also found that there was not a substantial probability that Linares would become competent
to proceed in a criminal or youthful-offender case within a reasonable time and that, because
Linares was accused of first-degree murder,7 she poses a likelihood of harm to others.
Finally, the court ordered that Linares was to remain in the custody of the Lincoln County
Detention Center pending commencement of civil commitment proceedings.

{20} The civil commitment proceedings were conducted in the Thirteenth Judicial District
Court. In the petition initiating those proceedings filed by the DOH on January 27, 2015,
the DOH averred that Linares is a danger to herself and others and recommended that the
court commit Linares to the DOH for a period of habilitation. The Thirteenth Judicial
District Court agreed with the DOH’s findings and accepted the recommendation to civilly
commit Linares to the DOH.

{21}   On June 11, 2015, the State filed a direct appeal with this Court under NMSA 1978,


       7
         The district court’s order states that Linares “is charged with First Degree Murder
(Willful and Deliberate) or, in the alternative, Felony Murder . . . .” The amended
superseding grand jury indictment did not charge Linares with first-degree willful and
deliberate murder. As noted, the amended grand jury indictment included only two
alternative counts of first-degree felony murder.

                                             5
Section 39-3-3(B) (1972), and State v. Smallwood, 2007-NMSC-005, 141 N.M. 178, 152
P.3d 821. Our jurisdiction over this matter is not contested.

II.    DISCUSSION

{22} As previously noted, the State makes three arguments on appeal. We review each
argument in turn.

A.     The District Court’s Decision to Permit Dr. Cave to Attend the State’s
       Independent Evaluation Was Not an Abuse of Discretion and Did Not
       “Effectively Deny” the State an Opportunity for an Independent Evaluation

{23} The State first argues that the district court abused its discretion in permitting Dr.
Cave to attend the State’s independent evaluation. As the ensuing discussion makes clear,
this argument requires us to review the district court’s discretionary determination. See State
v. Garcia, 2000-NMCA-014, ¶ 28, 128 N.M. 721, 998 P.2d 186 (reviewing the district
court’s denial of the state’s request for a second competency evaluation for abuse of
discretion); State v. Lopez, 1978-NMSC-060, ¶ 3, 91 N.M. 779, 581 P.2d 872 (observing that
we review the district court’s ruling as to a defendant’s competency to stand trial for abuse
of discretion).

{24} “Where an abuse of discretion is claimed by appellant, appellant bears a heavy
burden, in view of the long-standing rule that the reviewing court will not overturn the action
of the trial court absent a patent abuse of manifest error in the exercise of discretion.”
Spingola v. Spingola, 1978-NMSC-045, ¶ 19, 91 N.M. 737, 580 P.2d 958. “An abuse of
discretion occurs when a ruling is against logic and is clearly untenable or not justified by
reason.” State v. Sarracino, 1998-NMSC-022, ¶ 20, 125 N.M. 511, 964 P.2d 72 (internal
quotation marks and citation omitted). We view the evidence in the light most favorable to
the district court’s decision, resolve all conflicts and indulge all permissible inferences to
uphold that decision, and disregard all evidence and inferences to the contrary. See Lopez,
1978-NMSC-060, ¶¶ 6-7.

{25} “Section 31-9-1.6 articulates the procedure for determining whether a defendant is
incompetent to stand trial as a result of mental retardation . . . .” State v. Flores,
2004-NMSC-021, ¶ 10, 135 N.M. 759, 93 P.3d 1264. Section 31-9-1.6(A) provides that
“[u]pon motion of the defense requesting a ruling, the court shall hold a hearing to determine
whether the defendant has mental retardation as defined in Subsection E of this section.”
Section 31-9-1.6(E) and our case law make clear that an “intelligence quotient of seventy
or below establishes a presumption of mental retardation.” Flores, 2004-NMSC-021, ¶ 10
(citing Section 31-9-1.6(E)).

{26} The varying provisions within Section 31-9-1.6 do not give the district court any
specific procedural guidance as to how it is to resolve issues related to a defendant’s mental
condition. The statute is silent as to when the defendant may move for such an evaluation,

                                              6
whether the court might independently arrange for an evaluation during the proceedings if
it develops concerns about a defendant’s mental condition, who must pay for the evaluation,
or the time frame that governs once it is determined that an evaluation of the defendant’s
mental condition is necessary. The procedural rules that govern these issues are found in
NMSA 1978, Section 43-1-1 (1999) and Rule 5-602 NMRA. The State points to Rule 5-
602(C) and case law construing this provision as support for its claim that permitting Dr.
Cave to attend the independent evaluation was an abuse of discretion.

{27} Rule 5-602(C) provides that “[u]pon motion and upon good cause shown, the court
shall order a mental examination of the defendant before making any determination of
competency under this rule.” Looking to the plain text of Rule 5-602(C), the Court of
Appeals has observed that it “provides an appropriate procedure for any request, be it initial
or subsequent, for court-ordered mental evaluations of a criminal defendant.” Garcia,
2000-NMCA-014, ¶ 26. The Court noted, however, that the rule neither permits nor
prohibits additional evaluations. Id. Accordingly, the Court concluded that a district court’s
decision to order a second evaluation is entirely discretionary. Id. ¶ 28. We agree with this
conclusion.

{28} The unexplained delay that plagued Linares’s case as well as the specter of Linares’s
speedy-trial motion weighed heavily on the district court’s assessment of the arguments
presented at the March 14, 2014, hearing, the hearing at which the court determined that the
State would be allowed an independent evaluation and that Dr. Cave could attend that
evaluation. Defense counsel initially suggested, at that hearing, that the issue of Linares’s
mental retardation would be most expeditiously resolved if the State’s independent
evaluation was limited only to an assessment of Linares’s IQ. The court disagreed,
expressed concern that any half-measures would only give rise to the possibility for further
delays, and concluded that it was most prudent to give the State a full opportunity to
completely address and resolve the issue of Linares’s retardation. Defense counsel then
inquired whether Dr. Cave could attend the State’s evaluation and suggested that this
alternative would also do much to ensure that the proceedings were expedited. Counsel
explained that, if Dr. Cave was satisfied with the procedures used during the independent
evaluation, there would be no need for any further evaluations and no further delays. The
court emphasized that its interest was to ensure a speedy resolution of the issue and asked
the State whether it had any opinion on the matter. The State responded that it was not
amenable to defense counsel’s suggestion.

{29} In the end, the court permitted Dr. Cave to attend the evaluation because the efficient
administration of justice demanded this result. The court made it abundantly clear that its
decision to permit Dr. Cave to attend was predicated on the fact that there had been
unnecessary delay and the attorneys had not been diligent in seeing the case brought to a
timely resolution. The court informed the State that, if Dr. Kaufman felt he could not
conduct the evaluation with Dr. Cave present, the court was inclined to quash the order
granting the independent evaluation. The State declined to conduct the evaluation and the
court quashed its previous order.

                                              7
{30} It is apparent that the court was willing to permit Dr. Cave to attend the State’s
evaluation because Linares’s speedy-trial claim loomed, there had been unnecessary delay,
and allowing Dr. Cave to attend would put her in the best position to testify and comment
about the tests conducted at the independent evaluation and how those tests were scored.
Putting Dr. Cave in this position ensured that, if there was any future disagreement between
the parties about the merits of the State’s testing methodology, those issues could be
addressed and resolved quickly. We recognize that permitting observers to attend
psychological evaluations is undesirable, but this does not outweigh the district court’s
reasonable concerns about delay.

{31} The district court permitted Dr. Cave to attend the State’s independent evaluation so
as to ensure the swift administration of justice and balance the competing interests of the
parties. The court’s decision was not, as the State contends, arbitrary, illogical, or without
justification. The court’s determination was an acceptable and understandable exercise of
its discretionary authority in light of the unique difficulties presented in this case.

B.      The Trial Court Did Not Abuse Its Discretion in Finding Linares Incompetent
        to Stand Trial

{32} The State next argues that the district court abused its discretion in concluding that
Linares is incompetent to stand trial due to mental retardation. The State points out that Dr.
Cave initially reported that Linares was competent to enter into a plea and proceed at
sentencing and further notes that some portions of Dr. Cave’s reports and testimony support
the conclusion that Linares is competent to stand trial. The standard of review applied to this
argument is the same as that applied to the arguments in the immediately preceding section
of discussion.

{33} A defendant may be incompetent to stand trial due to mental retardation; however,
mental retardation, in and of itself, is not conclusive evidence that a defendant is
incompetent. See 21 Am. Jur. 2d Criminal Law § 86 (2016) (footnote omitted) (“Although
mental retardation in and of itself is generally insufficient to give rise to a finding of
incompetence to stand trial, a defendant may be incompetent based on retardation if the
condition is so severe as to render him or her incapable of functioning in critical areas.”); see
also 27 Am. Jur. Trials 1 (Originally published in 1980) (footnotes omitted) (“[N]ot all
forms of . . . mental retardation . . . make one incompetent to stand trial. In all cases, the
pivotal question to be answered is to what degree does the . . . disability affect the
defendant’s memory and intellectual abilities, which are crucial to the construction and
presentation of his defense.”) (internal quotation marks omitted); ABA Standards for
Criminal Justice 7-4.1(c) Mental Incompetence to Stand Trial; Rules and Definitions (Am.
Bar Ass’n 1989) (“A finding of mental incompetence to stand trial may arise from . . . mental
retardation or other developmental disability . . . so long as it results in a defendant’s
inability to consult with defense counsel or to understand the proceedings.”).

{34}    A person is competent to stand trial when he or she has “sufficient present ability to

                                               8
consult with his lawyer with a reasonable degree of rational understanding[,]” “a rational as
well as factual understanding of the proceedings against him[,]” and “the capacity to assist
in his own defense and to comprehend the reasons for punishment.”8 State v. Rotherham,
1996-NMSC-048, ¶ 13, 122 N.M. 246, 923 P.2d 1131 (internal quotation marks and citations
omitted). Linares’s mental retardation may factor into this analysis—and may factor
heavily—but the mere fact that she is mentally retarded does not, in and of itself, resolve the
question of her competency.

{35} The district court concluded that Linares’s IQ is 68, that she has mental retardation,
that the State did not overcome the presumption that an accused with an IQ below 70 has
mental retardation, and, therefore, that Linares is “not competent to stand trial due to mental
retardation.” At first blush, the court appears to have done precisely what is impermissible:
conclude that Linares is incompetent solely because she is mentally retarded. Careful review
of the testimony proffered at Linares’s September 11, 2014, hearing on mental retardation
reveals that this is not so. The court also heard evidence bearing directly on the faculties,
identified in Rotherham, a defendant must possess to be deemed competent and the extent
to which Linares possessed these faculties.

{36} Dr. Cave repeatedly emphasized that she had concerns about Linares proceeding to
trial in light of her low IQ and limited intellectual functioning. Dr. Cave reported that
Linares performed very poorly on a portion of one test that focuses on “understanding case
events.” When asked what function a jury serves, Linares replied that the jury was there to
“give answers for the other side.” When asked what role the prosecutor played at trial,
Linares replied that the prosecutor was there to tell her (Linares’s) side of the story. Dr.
Cave also expressed doubt that Linares would be able to assist defense counsel as Linares
could not recall critical events associated with her case. Crucially, Dr. Cave stated that
Linares exhibited no signs of malingering.

{37} Dr. Cave also testified that her determination that Linares is incompetent was in part
premised on the fact that Linares was facing first-degree murder charges. Dr. Cave did not


       8
         The Court of Appeals in State v. Gutierrez, 2015-NMCA-082, ¶ 9, 355 P.3d 93 and
the uniform jury instructions district courts must issue when the evidence raises a reasonable
doubt as to the defendant’s competency, UJI 14-5104 NMRA, utilize a different formulation
of the conditions necessary for a defendant to be deemed competent. It is unclear where this
divergent standard originated or why it originated, and it is equally unclear whether this
divergent standard (though worded differently) is substantively distinct from the standard
articulated in Rotherham. It is clear, however, that the existence of this divergent standard
gives rise to the possibility for needless confusion. For instance, the State cites the Court
of Appeals formulation in Gutierrez while Linares cites to this Court’s formulation in
Rotherham. The parties do not, however, make any arguments for one or the other standard;
they simply state the divergent standards as if both are correct. We adhere to the formulation
articulated in Rotherham as that case remains controlling precedent.

                                              9
expound upon why the nature and severity of the charges against Linares factored into her
competency assessment, but it seems apparent that Dr. Cave was concerned that a young
woman of very limited intellectual functioning with a fundamentally flawed conception of
basic legal concepts would not and could not understand the full possible consequences of
a first-degree murder conviction nor why, if convicted, she might be required to spend the
rest of her foreseeable life in prison.

{38} The evidence adduced at the mental retardation hearing supports the conclusion that
Linares is incapable of consulting with her attorney with a reasonable degree of rational
understanding, that she holds a fundamentally incoherent view of the nature of the
proceedings that were to be brought against her, and that she would not comprehend the
reasons for punishment if she were convicted. Accordingly, substantial evidence supports
the district court’s determination that Linares is incompetent. The court did not abuse its
discretion in so concluding.

{39} While it is true, as the State points out, that the record reflects that Dr. Cave initially
concluded that Linares was competent and that there is evidence in the record that Linares
did understand the nature of the charges against her, we cannot say that the court abused its
discretion when it ultimately rejected the conclusion that Linares is competent. Our inquiry
is limited only to whether substantial evidence supports the conclusion the court reached.
See State v. Nelson, 1981-NMSC-100, ¶ 15, 96 N.M. 654, 634 P.2d 676 (“The evidence
presented to the court was conflicting, and we cannot hold as a matter of law that the trial
judge abused his discretion in finding that the defendant was competent.”).

C.     The DOH Did Conduct a Dangerousness Evaluation Prior to the
       Commencement of Civil Commitment Proceedings

{40} The State’s final argument concerns the procedural requirements mandated by
Section 31-9-1.6(B) and (C). The State contends that these provisions required the “trial
court” to obtain a dangerousness evaluation of Linares from the DOH before civil
commitment proceedings commenced. The State claims that this was not done. As a
preliminary matter, we note that the State’s argument that the “trial court” failed in some
capacity presents us with a difficulty as this claim ignores the fact that while the competency
proceedings were conducted in the Twelfth Judicial District Court the civil commitment
proceedings were conducted in the Thirteenth Judicial District Court. The State’s reference
to a “trial court” does not adequately identify which of the two courts involved in the
proceedings below allegedly erred. In any case, and as we explain in the discussion that
follows, our review of the statutes and the proceedings below convince us that the State’s
argument fails.

{41} The State’s argument requires us to construe Section 31-9-1.6(B) and (C) and to
determine whether the proceedings in district court conformed to the requirements of these
provisions. To the extent we engage in statutory construction, our review is de novo. State
v. Trujillo, 2009-NMSC-012, ¶ 9, 146 N.M. 14, 206 P.3d 125.

                                              10
{42}   Section 31-9-1.6(B) provides as follows:

       If the court finds by a preponderance of the evidence that the defendant has
       mental retardation and that there is not a substantial probability that the
       defendant will become competent to proceed in a criminal case within a
       reasonable period of time not to exceed nine months from the date of the
       original finding of incompetency, then no later than sixty days from
       notification to the secretary of health or his designee of the court’s findings
       the [DOH] shall perform an evaluation to determine whether the defendant
       presents a likelihood of serious harm to himself or a likelihood of serious
       harm to others.

Section 31-9-1.6(C) then provides that:

       If the [DOH] evaluation results in a finding that the defendant presents a
       likelihood of serious harm to himself or a likelihood of serious harm to
       others, within sixty days of the [DOH’s] evaluation the [DOH] shall
       commence proceedings pursuant to Chapter 43, Article 1 NMSA 1978 if the
       defendant was charged with murder in the first degree . . . in the initial
       proceedings, and the court presiding over the initial proceedings shall enter
       a finding that the respondent presents a likelihood of harm to others.

We shall not attempt to fully explicate the procedural requirements of these provisions and
focus instead only on the requirements germane to the State’s argument. We agree with the
State that these provisions require the DOH to perform a dangerousness evaluation before
civil commitment proceedings are commenced. See State v. Gutierrez, 2015-NMCA-082,
¶ 47, 355 P.3d 93 (“Once a defendant is found to have mental retardation, the statute requires
a [DOH] evaluation regarding whether the defendant poses a serious threat of harm to
himself or others. If the [DOH] finds that the defendant is dangerous, then Section 43-1-1
civil commitment proceedings must be commenced.”). We disagree, however, that this
requirement was not met in this case.

{43} On October 2, 2014, the Twelfth Judicial District Court entered an order finding that
Linares is incompetent due to mental retardation, that there was not a substantial probability
that Linares would become competent within a reasonable period of time not to exceed nine
months, and that Linares is a danger to others. In that same order, the court directed the
DOH to commence civil commitment proceedings under Section 43-1-1, but the court made
clear that until the DOH commenced those proceedings, Linares would remain in the custody
of the Lincoln County Detention Center.

{44} On January 27, 2015, the DOH filed a petition with the Thirteenth Judicial District
Court for the involuntary commitment of Linares under Section 43-1-1. The DOH’s petition
states that Linares’s “developmental disability creates an imminent likelihood of serious
harm to herself or others.” The petition further indicates that Dr. John Gatling was prepared

                                             11
to testify on behalf of the DOH at the anticipated hearing on civil commitment.

{45} On February 12, 2015, the Thirteenth Judicial District Court held a hearing and
determined that Linares “presents an imminent likelihood of serious harm to herself or
others[,]” and that civil commitment was in Linares’s best interests and constituted the “least
drastic means.” See § 43-1-13(G). Accordingly, the Thirteenth Judicial District Court
committed Linares to the DOH under Section 43-1-13 for a period of habilitation not to
exceed six months.

{46} The State’s contention that the “trial court” erred in some respect by initiating civil
commitment proceedings without first obtaining the requisite dangerousness evaluation from
the DOH is unavailing. When the Thirteenth Judicial District Court committed Linares to
the DOH on February 12, 2015, it did so only after the DOH evaluated Linares and
concluded that she was a danger to herself and others and after the court presiding over the
initial proceedings—the Twelfth Judicial District Court—found that Linares was a danger
to others. To the extent Section 31-9-1.6(B) and (C) require dangerousness determinations,
these proceedings complied with the mandates of these provisions. As the State presents no
other challenge to the procedure or merits of the civil commitment proceedings, we dedicate
no further scrutiny to the subject. See In re Doe, 1982-NMSC-099, ¶¶ 2-3, 98 N.M. 540, 650
P.2d 824 (observing that we do not address arguments not raised on appeal).

III.   CONCLUSION

{47}   For the foregoing reasons, we reject the State’s arguments and affirm.

{48}    IT IS SO ORDERED.

                                               ____________________________________
                                               JUDITH K. NAKAMURA, Justice

WE CONCUR:

____________________________________
CHARLES W. DANIELS, Chief Justice

____________________________________
PETRA JIMENEZ MAES, Justice


______________________________________
EDWARD L. CHÁVEZ, Justice

______________________________________
BARBARA J. VIGIL, Justice

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