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 1       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                           A-1-CA-36368

 5 RICKY QUINTANA,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY
 8 Gerald E. Baca, District Judge

 9 Hector H. Balderas, Attorney General
10 Maha Khoury, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13   Bennett J. Baur, Chief Public Defender
14   Nina Lalevic, Assistant Public Defender
15   J.K. Theodosia, Assistant Public Defender
16   Santa Fe, NM

17 for Appellant

18                                 MEMORANDUM OPINION

19 VANZI, Chief Judge.
 1   {1}   Defendant Ricky Quintana appeals the district court’s order of commitment

 2 on the ground that the district court improperly extended the period of commitment

 3 based on aggravating circumstances from fifteen years to twenty years. We affirm.


 4 BACKGROUND

 5 The Facts Leading to Appeal

 6   {2}   Michael Grube (Decedent) was found dead on the floor of Defendant’s

 7 residence. The State and Defendant stipulated that “Defendant . . . took the life of

 8 Michael Grube on or about April 11, 2003, and amputated Mr. Grube’s penis,

 9 scrotum and testes.” Defendant was charged with an open count of murder and

10 tampering with evidence.

11   {3}   Roughly three years later, in June 2006, the parties stipulated that (1)

12 Defendant was incompetent to stand trial and dangerous; (2) there was not a

13 substantial probability that he would attain competency within a reasonable period

14 of time; (3) there was clear and convincing evidence that he committed second

15 degree murder; (4) aggravating circumstances existed; and (5) the court should

16 enter an order of commitment for a period not to exceed eighteen years—a term

17 based on the fifteen-year sentence for second-degree murder with an additional

18 three years for aggravated circumstances. Defendant has been housed at the New

19 Mexico Behavioral Health Institute from the date of arrest to the present.



                                             2
 1   {4}   Approximately eight years later, Defendant was found competent to proceed

 2 to trial. However, shortly before trial was to begin, questions about Defendant’s

 3 competency to stand trial were raised during a motion hearing. The district court

 4 vacated the trial setting and instead held an evidentiary hearing in April 2016

 5 pursuant to NMSA 1978, Section 31-9-1.5 (1999) to determine the sufficiency of

 6 the evidence for the two charges in this case: an open count of murder and

 7 tampering with evidence. After the hearing, the parties stipulated that the evidence

 8 was clear and convincing that Defendant had committed the crime of second-

 9 degree murder.

10   {5}   At a commitment hearing in February 2017, the district court took additional

11 evidence regarding mitigating and aggravating circumstances. Based on evidence

12 at the April 2016 and February 2017 hearings, the district court found that

13         4.    The Defendant committed the murder of [Decedent] with
14               extreme viciousness and brutality, as evidenced by testimony
15               presented at the evidentiary hearing on April 11th, 2016 and the
16               commitment hearing on February 24th, 2017; to include the
17         near decapitation of the body, the removal of the genitals, the
18         stabbing    of the anus, as well as the numerous wounds to
19         [Decedent]’s head and torso;

20         ....

21         6.   . . . Defendant committed the murder of [Decedent] while in a
22              state of psychosis as evidenced by expert testimony at the
23              evidentiary hearing on April 11th, 2016 and the commitment
24              hearing on February 24th, 2017. Based on evidence at those
25         same hearings, . . . Defendant had also previously attacked his
26              brother while in a state of psychosis. If released without
                                             3
 1              supervision, there is a danger that . . . Defendant would be
 2              medically non-compliant and his psychosis would return,
 3              thereby creating a threat of harm to the community[.]

 4 The district court also found that both “[t]he brutality and viciousness with which

 5 this crime was committed” and “[the] threat to community safety” were “valid

 6 aggravating factor[s] by which to increase Defendant’s commitment to the New

 7 Mexico Behavioral Health Institute (NMBHI)[.]” Based on these findings, the

 8 district court ordered Defendant to be committed to NMBHI for fifteen years (the

 9 basic sentence for second-degree murder) plus five years for aggravating

10 circumstances. See NMSA 1978, § 31-18-15(A)(4) (2016) (stating that the

11 sentence for a second-degree felony resulting in death is fifteen years); NMSA

12 1978, § 31-18-15.1(A) (2009) (permitting alteration of a basic sentence up to one-

13 third based on aggravating or mitigating circumstances).

14 The New Mexico Mental Illness and Competency Code (NMMIC)

15   {6}   The NMMIC has two purposes: “to protect an incompetent defendant from

16 indefinite and unjust commitment to a mental health institution without due

17 process of law and to protect society from dangerous criminals.” State v. Chorney,

18 2001-NMCA-050, ¶ 11, 130 N.M. 638, 29 P.3d 538. Upon a determination by the

19 district court “that there is not a substantial probability that the defendant will

20 become competent to proceed in a criminal case within a reasonable period of time

21 . . . , the district court may” conduct criminal commitment proceedings. Section


                                            4
 1 31-9-1.4. The process for criminal commitment under the NMMIC was described

 2 in State v. Rotherham, 1996-NMSC-048, ¶ 17, 122 N.M. 246, 923 P.2d 1131. “For

 3 criminal commitment, the State must establish by clear and convincing evidence

 4 that the defendant committed the criminal act charged.” Id. “If the State . . .

 5 prove[s] that the defendant committed the criminal act charged, the court is

 6 required to determine whether the defendant is dangerous.” Id.; see § 31-9-

 7 1.5(C)). Section 31-9-1.2(D) states that, in part, “ ‘dangerous’ means that, if

 8 released, the defendant presents a serious threat of inflicting great bodily harm on

 9 another.” “If the court determines by clear and convincing evidence that [the]

10 defendant committed the crime charged and [is] . . . dangerous, the defendant must

11 be detained in a ‘secure, locked facility,’ Section 31-9-1.5(D)(1), for a period not

12 to exceed the maximum sentence available had he been convicted in a criminal

13 proceeding, Section 31-9-1.5(D)(2).” Rotherham, 1996-NMSC-048, ¶ 17.

14   {7}   “The court is further required to conduct a hearing every two years on the

15 issues of competency and dangerousness” and to continue with criminal

16 proceedings if, at any point, the defendant is determined to be competent. Id.; see

17 § 31-9-1.5(D)(4).




                                            5
 1 DISCUSSION

 2   {8}    Defendant argues that the enhanced sentence based on aggravating

 3 circumstances is not permitted under the NMMIC. He does not argue that the

 4 commitment order is otherwise erroneous.

 5   {9}    Our review of this statutory construction question is de novo. See Chorney,

 6 2001-NMCA-050, ¶ 4. “Our task is to ascertain and effectuate the intent of the

 7 [L]egislature as to whether the [aggravated circumstances] enhancement can be

 8 invoked to enhance a Section 31-9-1.5 commitment.” Chorney, 2001-NMCA-505,

 9 ¶ 4 (internal quotation marks and citation omitted). We strictly construe criminal

10 statutes “providing for more than the basic punishment.” Id. (internal quotation

11 marks and citation omitted). When construing statutes, we “begin by looking at the

12 language of the statute itself[,]” although “[t]he plain meaning rule must yield on

13 occasion to an intention otherwise discerned in terms of equity, legislative history,

14 or other sources.” State v. Smith, 2004-NMSC-032, ¶ 9, 136 N.M. 372, 98 P.3d

15 1022 (internal quotation marks and citation omitted).

16   {10}   Section 31-9-1.5(D)(1), (2) provides that, upon the district court’s finding

17 that the defendant committed the crime, and is incompetent and dangerous,

18                 (1) the defendant shall be detained by the department of
19          health in a secure, locked facility; [and]
20                 (2) the defendant shall not be released from that secure
21          facility except pursuant to an order of the district court which
22          committed him or upon expiration of the period of time equal to the


                                              6
 1          maximum sentence to which the defendant would have been subject
 2          had the defendant been convicted in a criminal proceeding;

 3 (emphasis added). To the extent Defendant argues that the phrase “maximum

 4 sentence” in Section 31-9-1.5(D) refers only to the basic sentences set out in

 5 Section 31-18-15, we disagree.

 6   {11}   The Criminal Sentencing Act, NMSA 1978, §§ 31-18-1 to -26 (1977, as

 7 amended through 2016), plainly distinguishes between basic sentences and

 8 enhanced or maximum sentences. The Legislature made clear that a sentence may

 9 consist of a “basic” sentence plus additional terms of imprisonment to be imposed

10 after assessment of additional factors. For example, Section 31-18-15(A) defines

11 the “basic sentences” for felonies and Section 31-18-15(B) provides for alteration

12 of those basic sentences: “The appropriate basic sentence of imprisonment shall be

13 imposed upon a person convicted and sentenced pursuant to Subsection A of this

14 section, unless the court alters the sentence pursuant to the provisions of the

15 Criminal Sentencing Act.” See § 31-18-15.1 (“The judge may alter the basic

16 sentence as prescribed in Section 31-18-15” upon certain findings); § 31-18-17

17 (providing that a “basic sentence shall be increased” by given periods for habitual

18 offenders). Our cases similarly distinguish between “basic” and “maximum”

19 sentences. See, e.g., State v. Guerra, 2001-NMCA-031, ¶ 3, 130 N.M. 302, 24 P.3d

20 334 (“[T]he maximum sentence that may be imposed upon a youthful offender

21 convicted of a non-capital felony is the basic sentence prescribed by . . . Section
                                            7
 1 31-18-15 . . . plus any enhancements specifically made applicable to youthful

 2 offenders by the Legislature.” (emphasis added)); State v. Gonzales, 1981-NMCA-

 3 086, ¶ 15, 96 N.M. 556, 632 P.2d 1194 (discussing basic and maximum sentences).

 4   {12}   Further, our Court in Chorney recognized that the use of “maximum

 5 sentence” in the NMMIC encompassed not just the basic sentence set forth in

 6 Section 31-18-15(A) but also could include enhancements based on a defendant’s

 7 dangerousness. See Chorney, 2001-NMCA-050, ¶¶ 12, 14. In particular, this Court

 8 held that “[t]he ‘maximum sentence’ . . . addresses the possible dangerousness of

 9 an incompetent defendant and provides the outer limits for commitment for the

10 purpose of protecting society[,]” id. ¶ 12, and that “it is reasonable to conclude

11 that the ‘maximum sentence’ . . . can consist . . . of basic sentences for the crimes

12 that trigger commitment, and any enhancements of those basic sentences that are

13 expressly based on inherently dangerous criminal conduct as set out in Section 31-

14 9-1.5(D) or defined in Section 31-9-1.2.” Chorney, 2001-NMCA-050, ¶ 14

15 (emphasis added).

16   {13}   In Chorney, the specific question before this Court was “whether the

17 Legislature intended the habitual offender enhancement to be employed even

18 where its application bears no reasonable relationship with dangerousness as

19 defined in the [NMMIC].” 2001-NMCA-050, ¶ 13. The district court had enhanced

20 the defendant’s term of commitment beyond the basic sentence because the


                                             8
 1 defendant was a “three-felony habitual offender.” Id. ¶¶ 2, 13; Section 31-18-17

 2 (providing for enhancement of a basic sentence where the defendant has prior

 3 felony convictions). The district court had also enhanced the defendant’s term by

 4 one year for use of a firearm; on appeal, the defendant did not object to the firearm

 5 enhancement and this Court did not comment on the propriety of that

 6 enhancement. Id. ¶ 10; see § 31-18-16(A) (“When a separate finding of fact by the

 7 court or jury shows that a firearm was used in the commission of a noncapital

 8 felony, the basic sentence . . . shall be increased by one year[.]”). As to the habitual

 9 offender enhancement, this Court observed that “[t]he eight-year enhancement in

10 this case has a more punitive than treatment purpose” and held that the Legislature

11 did not intend that a habitual offender enhancement apply where it did not relate to

12 the NMMIC’s treatment or protective purposes. Id. ¶¶ 14-16. Because the

13 enhancement there was not related to conduct that was “a specific marker of

14 dangerousness,” this Court vacated the enhancement of the defendant’s

15 commitment. Id. ¶¶ 21-22; cf. State v. Lopez, 2009-NMCA-112, ¶ 8, 147 N.M.

16 279, 219 P.3d 1288 (stating that Chorney held that “application of a habitual

17 offender     enhancement      to   extend   the   duration    of   commitment      was

18 improper because it did not relate to provisions of the NMMIC”).

19   {14}   Here, the district court increased the commitment term by five years based in

20 part on the “extreme viciousness and brutality” of Defendant’s conduct. Generally,


                                               9
 1 a district court may properly consider the brutality of a defendant’s conduct in

 2 assessing aggravating circumstances. See State v. Kurley, 1992-NMCA-105, ¶ 7,

 3 114 N.M. 514, 841 P.2d 562 (“[T]he brutality of the crime was . . . a circumstance

 4 surrounding the crime that could be considered by the trial court in aggravating

 5 [the] defendant’s sentence.”). “The manner in which a crime is committed can bear

 6 on a number of factors relevant to sentencing, including [the] defendant’s

 7 propensity to repeat the crime, the potential for harm resulting from the crime, and

 8 [the] defendant’s potential for rehabilitation.” Id. These considerations are also

 9 highly relevant to the commitment of an incompetent defendant under the

10 NMMIC, one purpose of which is “to protect society from dangerous

11 [defendants].” Chorney, 2001-NMCA-050, ¶ 11; see Rotherham, 1996-NMSC-

12 048, ¶ 53 (noting that “the [s]tate cannot release into society an incompetent

13 defendant who has demonstrated a capacity for serious, violent conduct”).

14 Moreover, in the context of commitment proceedings, the circumstances

15 surrounding the alleged criminal conduct, and prior violent conduct may

16 demonstrate dangerousness. See State v. Gallegos, 1990-NMCA-104, ¶¶ 12-13,

17 111 N.M. 110, 802 P.2d 15 (“[T]he fact of guilt under the circumstances of a

18 particular case may permit the trial court to find dangerousness.”); cf. State v.

19 Landgraf, 1996-NMCA-024, ¶ 23, 121 N.M. 445, 913 P.2d 252 (“A sentence may

20 be properly aggravated based on events surrounding the crimes and the nature of a


                                            10
 1 defendant’s threat to society.”). In Gallegos, where “the [district] court . . . found

 2 that a defendant ha[d] cruelly treated a two-year-old child by holding her foot in

 3 hot water for half a minute and ha[d] injured his brother with a knife in the course

 4 of a family argument,” the Court concluded that “the [district] court [could]

 5 properly draw an inference that [the] defendant [wa]s dangerous.” 1990-NMCA-

 6 104, ¶ 13. In that case, the same evidence supported both the district court’s

 7 finding that the defendant committed child abuse and aggravated battery and its

 8 finding that the defendant was dangerous. Id. ¶¶ 5, 6, 12.

 9   {15}   Defendant contends that his enhanced sentence cannot be justified on the

10 ground that the circumstances surrounding the crime demonstrated that Defendant

11 is dangerous because “dangerousness is a separate—and predicate finding—

12 required before the incompetent defendant may be committed for treatment.”

13 Defendant provides no support for the idea that, having determined that a

14 defendant is dangerous as a predicate to commitment, the district court may not

15 also consider the circumstances of the defendant’s conduct, and their bearing on

16 defendant’s future dangerousness, in determining the term of commitment.

17 Contrary to Defendant’s argument, Chorney held that a defendant’s dangerousness

18 relates directly to the term of commitment, stating, “The ‘maximum

19 sentence’ . . . addresses the possible dangerousness of an incompetent defendant

20 and provides the outer limits for commitment for the purpose of protecting


                                             11
 1 society.” 2001-NMCA-050, ¶ 12. We conclude that the enhancement here was

 2 congruent with the NMMIC because the brutality of the conduct and prior violent

 3 conduct by Defendant are “specific marker[s] of dangerousness.” Id. ¶ 21.

 4   {16}   Defendant makes one final argument: he argues that aggravating

 5 circumstances relate to a defendant’s culpability and that a commitment term

 6 enhancement based on such culpability is inappropriately punitive and violates due

 7 process. The problem with this argument is that it fails to recognize that, in the

 8 criminal sentencing context, all sentences are based on the defendant’s culpability.

 9 In other words, “as applied to sane defendants, all sentences of imprisonment,

10 whether measured by an extended term or not, have as their goals punishment and

11 deterrence.” People v. Pastewski, 647 N.E.2d 278, 283 (Ill. 1995). “If the punitive

12 character of the [enhancement] precludes its use in determining the maximum

13 commitment period for an [incompetent defendant],” as Defendant argues, “then

14 one must also question whether the regular, nonextended sentencing statutes may

15 be used for that purpose.” Id. However, Defendant rightly does not argue that

16 commitment for the period of the basic sentence is improperly punitive, as our

17 Supreme Court has stated that “commitment pursuant to Section 31-9-1.5 is not

18 punishment[.]” State v. Adonis, 2008-NMSC-059, ¶ 9, 145 N.M. 102, 194 P.3d 717

19 (alteration, internal quotation marks, and citation omitted)). Hence, so long as the

20 enhancement is consistent with the NMMIC under Chorney, the enhancement of a


                                            12
 1 sentence under Section 31-18-15.1 also is not punitive in the commitment context.

 2 See Rotherham, 1996-NMSC-048, ¶ 53 (“The fact that a criminal defendant is

 3 detained for a period of time does not inexorably mean the State has imposed

 4 punishment. Rather, because the State seeks to treat an incompetent and to protect

 5 the community from danger, detention serves a regulatory rather than a punitive

 6 function.” (citation omitted)); cf. Pastewski, 647 N.E.2d at 282 (stating that the

 7 district court’s application of an enhancement “in determining an [incompetent

 8 defendant’s] maximum period of commitment [does not] impermissibly alter[] the

 9 nature of his confinement, or introduce[] into the commitment an invalid punitive

10 purpose”). We are also not persuaded by Defendant’s due process argument which

11 is not developed and lacks merit. See Headley v. Morgan Mgmt. Corp., 2005-

12 NMCA-045, ¶15, 137 N.M. 339, 110 P.3d 1076 (stating that we will not develop

13 an unclear argument on behalf of a party).

14 CONCLUSION

15   {17}   For the foregoing reasons, we affirm the district court’s order of

16 commitment.

17   {18}   IT IS SO ORDERED.


18                                              ______________________________
19                                              LINDA M. VANZI, Chief Judge

20 WE CONCUR:


                                           13
1 _____________________________
2 JULIE J. VARGAS, Judge


3 ______________________________________
4 JENNIFER L. ATTREP, Judge




                                           14
