State v. Quintana

The slip opinion is the first version of an opinion released by the Chief Clerk of the
Supreme Court. Once an opinion is selected for publication by the Court, it is
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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: March 25, 2021

NO. S-1-SC-37570

STATE OF NEW MEXICO,

Plaintiff-Respondent,

v.

RICKY QUINTANA,

Defendant-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI
Gerald Baca, District Judge

Bennett J. Baur, Chief Public Defender
Nina Lalevic, Assistant Appellate Defender
Albuquerque, NM

for Petitioner

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

for Respondent
 OPINION

BACON, Justice.
{1} This appeal requires us to resolve whether the Legislature intended that the

determination of a maximum term of criminal commitment under Section 31-9-

1.5(D)(2) of the New Mexico Mental Illness and Competency Code (NMMIC),

NMSA 1978, §§ 31-9-1 to -1.6 (1988, as amended through 1999), may include

enhancement due to aggravating circumstances under Section 31-18-15.1 of the

Criminal Sentencing Act (CSA), NMSA 1978, §§ 31-18-12 to -26 (1977, as

amended through 2020). The Court of Appeals applied State v. Chorney, 2001-

NMCA-050, ¶¶ 11-12, 130 N.M. 638, 29 P.3d 538, in determining that the

enhancement in this case serves the legislative purposes underlying the NMMIC.

State v. Quintana, 2019-NMCA-030, ¶¶ 15-16, 446 P.3d 1168. The Court of Appeals

consequently affirmed the ruling of the district court that extended Defendant Ricky

Quintana’s term of commitment based on aggravating circumstances from fifteen

years to twenty years. Id. ¶ 2. We affirm and issue this opinion to clarify that a term

of commitment under Section 31-9-1.5 may be increased under Section 31-18-15.1

due to aggravating circumstances that bear a direct relation to a defendant’s

dangerousness and that are supported by clear and convincing evidence.

1
I. BACKGROUND
{2} In 2003, the decedent’s body was discovered lying on the living room floor of

Defendant’s residence. The decedent had been stabbed multiple times, and his body

had been subjected to mutilation, both before and after death. Defendant was charged

with an open count of murder and tampering with evidence.

{3} In 2006, the parties filed stipulations including that Defendant remained

incompetent to stand trial and remained dangerous, that clear and convincing

evidence supported the charge of second-degree murder against Defendant, and that

aggravating circumstances existed warranting the addition of three years to his

statutory fifteen-year term of commitment.

{4} In 2014, following his ensuing commitment to the New Mexico Behavioral

Health Institute (NMBHI) subject to attainment of competency, pursuant to Section

31-9-1.5, “[D]efendant was found competent to stand trial[,] . . . and criminal

proceedings resumed.” However, defense counsel raised competency concerns prior

to trial, and in 2016 “the parties again stipulated that . . . [D]efendant was

incompetent and dangerous as defined by Section 31-9-1.2.”

{5} An evidentiary hearing was held to determine the sufficiency of the evidence

for commitment pursuant to Section 31-9-1.5. Following the hearing, the district

court acquitted Defendant of tampering with evidence and “found that clear and

2
convincing evidence existed to show that . . . [D]efendant committed the crime of

second degree murder.” A subsequent evidentiary hearing was held pursuant to

Section 31-18-15.1, at which additional evidence was presented on both aggravating

and mitigating circumstances.

{6} Following the second evidentiary hearing, the district court entered an order

of commitment pursuant to Section 31-9-1.5 enhancing Defendant’s fifteen-year

term by five years, for a total commitment period at NMBHI of twenty years. This

term of commitment “represent[ed] the maximum time that . . . Defendant would

have been subject had . . . Defendant been convicted of the [charged] offense[].”

{7} The district court based its order of commitment on findings by clear and

convincing evidence from both hearings relating to two “valid aggravating

factor[s].” First, the district court found that the murder had been committed with

extreme viciousness and brutality, including “the near decapitation of the body, the

removal of the genitals, the stabbing of the anus, as well as the numerous wounds to

[the decedent’s] head and torso.” Second, the court found that Defendant represented

a threat to community safety because, “[i]f released without supervision, there [wa]s

a danger that Defendant would be medically non-compliant and his psychosis would

return[.]” Evidence had been presented at the hearings that Defendant had been in a

state of psychosis when committing the murder charged and when previously

3
attacking another victim in a separate incident, and that Defendant was not reliable

to take his antipsychotic medications without supervision.

{8} Defendant appealed on the ground that enhancing a term of commitment

based on aggravating circumstances is not permitted under the NMMIC. Quintana,

2019-NMCA-030, ¶¶ 2, 9. The Court of Appeals held that a maximum term of

commitment under the NMMIC can include an enhancement that is invoked by

“‘specific marker[s] of dangerousness’” as determined and defined by the

Legislature. Id. ¶¶ 16-17 (alteration in original) (quoting Chorney, 2001-NMCA-

050, ¶ 21). The Court of Appeals concluded that the brutality of Defendant’s conduct

and his history of prior violent conduct were such markers of dangerousness, and the

Court affirmed the district court’s order of commitment. Id. ¶¶ 16, 18.

{9} Pursuant to Rule 12-502 NMRA, Defendant petitioned this Court for

certiorari, which we granted. The parties agree that the central issue before this Court

is the legislative intent underlying a maximum term of criminal commitment under

Section 31-9-1.5(D)(2).

{10} We affirm the Court of Appeals and hold that the Legislature intended for

Section 31-18-15.1 to be applicable in determining a maximum term of commitment

under Section 31-9-1.5 where aggravating and mitigating factors bear directly on a

defendant’s dangerousness. We further hold that the enhancement of a term of

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commitment imposed under the NMMIC must meet the same clear and convincing

evidentiary standard that is required for commitment under Section 31-9-1.5(D).

II. DISCUSSION

A. The Legislature Lawfully Intended for the CSA to Be Applied in
Determining a Maximum Term of Commitment Under the NMMIC

1. Standard of review
{11} “This case presents an issue of statutory construction, which we review de

novo.” State v. Barela, 2021-NMSC-001, ¶ 5, 478 P.3d 875.

{12} Our guiding principle when construing statutes is “to determine and give

effect to legislative intent.” Baker v. Hedstrom, 2013-NMSC-043, ¶ 11, 309 P.3d

1047 (internal quotation marks and citation omitted). A statute’s plain language is

“the primary indicator of legislative intent.” State v. Young, 2004-NMSC-015, ¶ 5,

135 N.M. 458, 90 P.3d 477 (internal quotation marks and citation omitted). “Under

the plain meaning rule of statutory construction, when a statute contains language

which is clear and unambiguous, we must give effect to that language and refrain

from further statutory interpretation.” State v. Rivera, 2004-NMSC-001, ¶ 10, 134

N.M. 768, 82 P.3d 939 (internal quotation marks, alteration, and citation omitted).

{13} “In addition to looking at the statutory language, we also consider the history

and background of the statute[, and w]e examine the overall structure of the statute

and its function in the comprehensive legislative scheme.” State v. Smith, 2004-

5
NMSC-032, ¶ 10, 136 N.M. 372, 98 P.3d 1022 (internal quotation marks and

citations omitted). “[A] statutory subsection may not be considered in a vacuum, but

must be considered in reference to the statute as a whole and in reference to statutes

dealing with the same general subject matter.” Id. (alteration in original) (internal

quotation marks and citation omitted). “In considering the statute’s function in

relation to related statutes passed by the Legislature, whenever possible . . . we must

read different legislative enactments as harmonious instead of as contradicting one

another.” Barela, 2021-NMSC-001, ¶ 6 (omission in original) (internal quotation

marks and citation omitted).

2. Section 31-9-1.5(D)(2) is unambiguous and lawfully allows application of
Section 31-18-15.1 to enhance a term of criminal commitment
{14} Defendant argues that Section 31-9-1.5 is unclear in not specifically defining

maximum sentence and in not specifically addressing aggravation. Defendant also

argues that aggravation of a criminal sentence is inherently punitive and related to

culpability and thus “not contemplated” to enhance a term of criminal commitment.

Defendant as well argues that aggravating a term of commitment “intended for

[Defendant’s] treatment to competency” misapplies Chorney. Finally, Defendant

argues that the Legislature has failed to address whether a jury must “hear the

question of aggravating factors” before a judge may enhance an order of

6
commitment. This legislative silence, Defendant asserts, indicates a lack of

legislative intent to permit any aggravation of a term of commitment. We address

these arguments in turn.

a. Section 31-9-1.5(D)(2) is clear under plain language and context analysis
{15} The NMMIC has a legislative purpose “to protect an incompetent defendant

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

process of law and to protect society from dangerous criminals.” Chorney, 2001-

NMCA-050, ¶ 11. Section 31-9-1.5 of the NMMIC governs evidentiary hearings to

determine the sufficiency of the evidence for commitment of an incompetent

defendant who has been charged with a felony that involves infliction of great bodily

harm or with other enumerated felonies. Section 31-9-1.5(D) governs such hearings

in which the district court finds by clear and convincing evidence that the defendant

did commit the alleged felony and enters a finding that the defendant remains

incompetent to stand trial and remains dangerous. For a felony that involves

infliction of great bodily harm, “‘dangerous’ means that, if released, the defendant

presents a serious threat of inflicting great bodily harm on another.” Section 31-9-

1.2(D).

{16} Section 31-9-1.5(D)(2) mandates that the duration of a term of criminal

commitment shall be “the period of time equal to the maximum sentence to which

7
the defendant would have been subject had the defendant been convicted in a

criminal proceeding.” This plain language requires the court in a Section 31-9-1.5

hearing to determine the length of the maximum sentence that would have been

reached had the committed felony been adjudicated in a criminal proceeding. Such

a criminal sentence would necessarily be reached under the CSA, as the legislated

mechanism for determining sentences from criminal proceedings. See § 31-18-

13(A).

{17} The CSA encompasses all sentencing provisions for criminal convictions

under the laws of New Mexico, except where otherwise provided. See id. Section

31-18-15 specifies the basic sentence for each enumerated, noncapital felony.

Section 31-18-15.1 governs the alteration of a basic criminal sentence due to

mitigating or aggravating circumstances. Upon a determination that aggravating

circumstances exist, a judge may alter a basic sentence by increasing the length of

the sentence by up to one-third. Section 31-18-15.1(B), (G).

{18} Aggravation or mitigation of a basic criminal sentence is a normal and

appropriate component of the CSA when the district court finds qualifying

circumstances surrounding a criminal offense. See, e.g., State v. Fuentes, 1994-

NMCA-158, ¶¶ 19-21, 119 N.M. 104, 888 P.2d 986. As such, calculating the

hypothetical maximum sentence for a particular defendant under the CSA would

8
include an enhanced sentence where aggravating circumstances exist and where the

judge appropriately increases the basic sentence by up to one-third. See § 31-18-

15.1(B), (G).

{19} We presume that the Legislature was aware of the framework and terminology

of the CSA when it enacted the NMMIC. See State v. Marquez, 2008-NMSC-055, ¶

7, 145 N.M. 1, 193 P.3d 548 (“When the Legislature enacts a statute, we presume

that it is aware of existing statutes.”); accord. Inc. Cnty. of Los Alamos v. Johnson,

1989-NMSC-045, ¶ 4, 108 N.M. 633, 776 P.2d 1252 (“We presume that the

[L]egislature is well informed as to existing statutory and common law . . . when it

enacts a new statute.”). As such, we presume that the Legislature did not use the

term maximum sentence where it in fact meant basic sentence. See § 31-9-1.5(D)(2).

As noted by the Court of Appeals, the CSA plainly distinguishes between the

provisions describing basic sentences in Section 31-18-15 and those describing

“enhanced or maximum sentences” in Section 31-18-15.1. Quintana, 2019-NMCA-

030, ¶ 12. The fact that the Legislature is directing the use of a calculation of a

maximum criminal sentence to set a term of commitment does not change the

calculation itself. Thus, the language of Section 31-9-1.5(D)(2) clearly indicates that

determination of a term of criminal commitment should correspond to the maximum

9
sentence that would have been reached under the CSA, including potential

enhancement based on aggravating circumstances.

{20} As the essential and default framework for criminal sentencing in New

Mexico, the CSA would only be inapplicable to such a determination as a matter of

statutory construction if the NMMIC indicated accordingly. For example, the

NMMIC would only need to further define “maximum sentence” in Section 31-9-

1.5(D)(2) or to address aggravation specifically if those were issues to be treated

differently under the NMMIC than under the CSA. As we discuss below, the

Chorney Court held that certain enhancements under the CSA would not apply in

determining a term of commitment under Section 31-9-1.5 if those enhancements

were not based on the defendant’s dangerousness. See 2001-NMCA-050, ¶ 20. In

that case, the Chorney Court concluded that the habitual offender enhancement could

not be used to increase a term of commitment because the purpose of the habitual

offender statute did not align with the purpose of Section 31-9-1.5(D). Id. ¶¶ 13-14,

20. To wit, the habitual offender statute was aimed at reducing recidivism, not

protecting society from dangerous conduct. Id. ¶¶ 13-14. For this reason, the

habitual offender statute was an exception to the general rule that Section 31-18-

15.1 may be applied under the NMMIC where the aggravating circumstances of the

incompetent defendant under Section 31-9-1.5(D) are based on dangerousness. Id.

10
{21} Even if the plain language of Section 31-9-1.5 were ambiguous, the statutory

language in question manifests clear policy underpinnings. “Maximum sentence,”

which contemplates aggravation, is consistent with legislative intent for the duration

of a term of commitment to be as long as constitutionally permissible. See § 31-9-

1.5(D)(2); State v. Rotherham, 1996-NMSC-048, ¶ 23, 122 N.M. 246, 923 P.2d 1131

(“[A]s long as [incompetent defendants] remain dangerous, the State has an interest

in committing them to protect the defendants and the public.”). Such legislative

intent serves the State’s compelling interests “to provide care to its citizens when

necessary” and “to provide its citizenry a safe community in which to live.” Id. ¶ 52.

These compelling interests arise, respectively, from the State’s parens patriae powers

and its police power. Id.

{22} As we next discuss, this Court concluded in Rotherham that the NMMIC is

constitutional in correlating the duration of a term of commitment with the duration

of a maximum criminal sentence when safeguards exist to protect against the

constitutional violations identified in Jackson v. Indiana, 406 U.S. 715 (1972). See

Rotherham, 1996-NMSC-048, ¶ 60 (holding it would be unconstitutional to commit

an incompetent defendant “for more than a ‘reasonable period of time’ . . . necessary

to determine whether [the defendant] will be rendered competent to stand trial in the

foreseeable future” (quoting Jackson, 406 U.S. at 733)). Such safeguards include

11
continued treatment to achieve competency, a hearing conducted at least every two

years regarding trial competency and dangerousness, and continuation of the

criminal process if at any point the defendant regains competency, consistent with

Section 31-9-1.5. See id. ¶ 34.

{23} For the foregoing reasons, Defendant’s argument as to the NMMIC’s lack of

clarity fails.

b. Enhancing a term of commitment under Section 31-9-1.5 comports with
Rotherham
{24} In Rotherham, in addition to the conclusion discussed above, this Court

established the constitutionality of the NMMIC as a comprehensive statutory

scheme. See id. ¶ 62. The Rotherham Court noted that the NMMIC was enacted

subsequent to Jackson, which had established greater constitutional protections for

incompetent defendants against indefinite and unreasonable commitment. See id. ¶¶

13-15. Whereas the Rotherham Court had no occasion to address enhancing a term

of commitment, the case stands for the proposition that the NMMIC satisfies

Jackson in its protections for incompetent defendants. See id. ¶¶ 15, 28, 40, 60;

accord, State v. Chavez, 2008-NMSC-001, ¶ 15, 143 N.M. 205, 174 P.3d 988.

{25} Defendant’s argument suggests that a court applying Section 31-9-1.5 cannot

consider aggravating circumstances, much less apply them to enhance a term of

12
commitment, without the proceeding unconstitutionally prosecuting an incompetent

defendant. Defendant cites Rotherham’s reminder that “[t]he law has long

recognized that it is a violation of due process to prosecute a defendant who is

incompetent to stand trial.” 1996-NMSC-048, ¶ 13. While Defendant does not argue

such a constitutional violation where a basic sentence under Section 31-9-1.5 is used

to set a term of commitment, he alleges that the corresponding use of an enhanced

sentence based on aggravating circumstances represents such a violative prosecution

because enhancement is inherently punitive. Defendant also quotes our observation

in Rotherham that a Section 31-9-1.5 “hearing is not a trial to establish criminal

culpability.” Id. ¶ 58. Defendant asserts that “culpability is at the heart of

aggravation,” but presents no authority from cases involving an incompetent

defendant.

{26} We find this line of argument misconstrues and misapplies Rotherham. First,

the Rotherham Court was clear that commitment under Section 31-9-1.5 “serves a

regulatory rather than a punitive function” because the state “seeks to treat an

incompetent [defendant] and to protect the community from danger.” Id. ¶ 53 (citing

United States v. Salerno, 481 U.S. 739, 746, 747 (1987) (“[P]reventing danger to the

community is a legitimate regulatory goal.”)). Second, the Court found that the

NMMIC’s requirement of a finding of dangerousness satisfies Jackson’s

13
requirement that “‘the nature and duration of commitment bear some reasonable

relation to the purpose for which the individual is committed.’” Id. ¶¶ 41-42 (quoting

Jackson, 406 U.S. at 738). While, as discussed hereinabove, enhancement was not

an issue before the Court, our analysis in Rotherham of Section 31-9-1.5 indicates

that a term of commitment is neither punitive nor about culpability where it directly

serves the proper regulatory purposes. See id. ¶ 53 (“[T]he State cannot release into

society an incompetent defendant who has demonstrated a capacity for serious,

violent conduct.”).

{27} Thus, analysis of circumstances surrounding a criminal offense under Section

31-18-15.1 should bear a direct relation to determining dangerousness when applied

to commitment under Section 31-9-1.5. See id. ¶ 58 (citing State v. Werner, 1990-

NMCA-019, ¶ 8, 110 N.M. 389, 796 P.2d 610 (advising reading Section 31-9-1.5 in

view of “the object sought to be accomplished and the wrong to be remedied”)).

Where aggravating circumstances bear a direct relation to dangerousness,

enhancement of a term of commitment is unrelated to culpability and comports with

Jackson and Rotherham. See id. ¶ 53 (stating that a term of commitment “does not

inexorably mean the State has imposed punishment”).

14
c. Enhancing a term of commitment under Section 31-9-1.5 comports with
Chorney
{28} The Court of Appeals in Chorney directly addressed a district court’s statutory

authority to enhance a term of criminal commitment based on habitual offender

aggravating circumstances. See 2001-NMCA-050, ¶¶ 1-3. The Court held that the

habitual offender statute could not be applied under Section 31-9-1.5 as it does not

bear a reasonable relation to dangerousness and thus does not serve the legislative

purposes underlying the NMMIC. Id. ¶¶ 12-13. The Court explained those purposes

as being “to protect an incompetent defendant from indefinite and unjust

commitment to a mental health institution without due process of law and to protect

society from dangerous criminals.” Id. ¶ 11. In analyzing dangerousness as the “sole

reason” for the maximum sentence requirement under the NMMIC, the Court

reasoned that a term of commitment “can consist only of basic sentences for the

crimes that trigger commitment, and any enhancements of those basic sentences that

are expressly based on inherently dangerous criminal conduct as set out in Section

31-9-1.5(D) or defined in Section 31-9-1.2.” Id. ¶ 14 (emphasis added).

{29} Defendant argues that the conclusion in Chorney regarding enhancements

based on dangerousness was dicta, as only the habitual offender enhancement was

before the Court. Thus, Defendant alleges, the Court of Appeals in the instant case

erred by relying on that reasoning. See Quintana, 2019-NMCA-030, ¶¶ 13-14.

15
Defendant also argues that dangerousness cannot be applied both as a predicate

finding to criminal commitment and as a basis to increase that commitment.

Alternatively, Defendant argues that aggravating circumstances may, as with prior

offenses under the habitual offender statute, bear no reasonable relation to

dangerousness, and thus aggravating circumstances generally cannot be applied to

criminal commitments.

{30} We agree with the Court of Appeals that the holding in Chorney extends to

the applicability of enhancements based on inherently dangerous criminal conduct

under Section 31-9-1.5. See id. ¶ 13 (citing Chorney, 2001-NMCA-050, ¶¶ 12, 14).

In order to reach its holding regarding the habitual offender enhancement, the

Chorney Court had to determine first what types of enhancements could be applied

to serve the purposes of the NMMIC. See 2001-NMCA-050, ¶ 14. This analysis was

necessary in order for the Court to determine that the inapplicable enhancement was

an exception to the legislative purposes of the statute. See id. ¶¶ 18, 20. Because this

analysis was essential to the court’s determination, Chorney’s conclusion regarding

enhancement based on dangerousness was not dicta, and the Court of Appeals did

not err in relying on it. See Ruggles v. Ruggles, 1993-NMSC-043, ¶ 22 n.8, 116 N.M.

52, 860 P.2d 182 (citing Black's Law Dictionary 454 (6th ed. 1990) (defining dicta

in an opinion as language “not essential to determination of the case in hand”)).

16
{31} Defendant provides no authority for his claim that dangerousness cannot be

used both as a predicate qualification for commitment under Section 31-9-1.5 and as

a basis for enhancement of the term of commitment. For this reason, “we presume

that no such authority exists” and decline to address this argument. See State v. King,

2013-NMSC-014, ¶ 10, 300 P.3d 732; see also State v. Paul T., 1999-NMSC-037, ¶

27, 128 N.M. 360, 993 P.2d 74 (acknowledging that “arguments not supported by

authority need not be addressed”).

{32} We also find unavailing Defendant’s argument that Chorney’s exclusion of

the habitual offender enhancement precludes enhancement based on aggravating

circumstances. The Chorney Court specifically considered whether the Legislature

intended the habitual offender statute to be applied under Section 31-9-1.5 “even

where its application bears no reasonable relationship with dangerousness as defined

in the [NMMIC].” 2001-NMCA-050, ¶ 13. While holding against broad application

of the habitual offender statute “in all cases,” the Court did not categorically dismiss

the use of prior criminal acts to enhance a term of commitment. Id. ¶¶ 15-16.

{33} To the contrary, the Chorney Court concluded that enhancement of a term of

criminal commitment is proper under the NMMIC where “the conduct invoking the

enhancement is a specific marker of dangerousness as determined and defined by

the Legislature.” Id. ¶ 21; see § 31-9-1.2(D) (defining dangerousness under the

17
NMMIC). Specific prior criminal acts that would satisfy the habitual offender statute

in a criminal proceeding would be applicable under Section 31-9-1.5 if they bore a

direct relation to dangerousness; equally, specific aggravating circumstances that

would satisfy Section 31-18-15.1 in a criminal proceeding would be applicable under

Section 31-9-1.5 if they bore a direct relation to dangerousness.

d. Jury findings of aggravation
{34} Defendant relies on legislative silence in the NMMIC regarding the jury

requirement addressed in State v. Frawley to argue that the Legislature did not intend

for aggravation to be applied under the NMMIC. 2007-NMSC-057, ¶¶ 20, 25, 143

N.M. 7, 172 P.3d 144 (following Cunningham v. California, 549 U.S. 270, 274

(2007) (holding that placing sentence-elevating factfinding within the judge’s

province violates the Sixth Amendment right to trial by jury)), superseded by statute

on other grounds as recognized by State ex rel. Sugg v. Oliver, 2020-NMSC-002, ¶

19, 456 P.3d 1065; see State v. Rudy B., 2010-NMSC-045, ¶ 23, 149 N.M. 22, 243

P.3d 726 (recognizing that “[t]he result in Frawley was, as a practical matter,

dictated by the Supreme Court’s decision in Cunningham”). After Frawley held

Section 31-18-15.1 to be facially unconstitutional, 2007-NMSC-057, ¶ 1, the

Legislature revised the aggravation statute in 2009 to clarify a defendant’s right to

jury determination of aggravating circumstances. See § 31-18-15.1(B); see also State

18
v. Radosevich, 2018-NMSC-028, ¶ 16, 419 P.3d 176 (recognizing the “Sixth

Amendment . . . guarantee[] that all facts essential to a defendant’s sentence must be

determined by a jury” (internal quotation marks and citation omitted)). Defendant

argues that the lack of similar revision to the NMMIC regarding the right to jury

findings of aggravating circumstances reflects a lack of legislative intent for

enhanced sentencing to apply to the NMMIC at all.

{35} This argument is obviated by our foregoing discussion. First, because the

Legislature intended for the potential application of the CSA under the NMMIC,

post-Frawley revision of Section 31-18-15.1 satisfied that issue and no revision to

the NMMIC itself was necessary. Second, since commitment determinations are

inherently different from criminal proceedings to render punishment, the Sixth

Amendment reasoning in Cunningham and Frawley does not apply equally to

commitment proceedings. Cf. Rotherham, 1996-NMSC-048, ¶¶ 53-55. Although

here we do not reach the issue of the jury requirement in Frawley applying to the

NMMIC, we note that Defendant explicitly waived his right to jury determination of

aggravation and mitigation.

19
B. Application of Section 31-18-15.1 Under Section 31-9-1.5 Requires Clear
and Convincing Evidence That Bears Directly on Dangerousness
{36} Under Section 31-9-1.5, evidence of aggravating and mitigating

circumstances must meet the standard of “clear and convincing evidence” and, as

discussed above, must bear directly on “dangerousness.” These requirements serve

the regulatory goals and legislative purposes of commitment proceedings under the

NMMIC. See Rotherham, 1996-NMSC-048, ¶¶ 55-56; Chorney, 2001-NMCA-050,

¶ 21.

{37} The “clear and convincing evidence [standard] strikes a fair balance between

the defendant’s interest in avoiding an erroneous deprivation of liberty and the

State’s interest in treating the defendant, protecting the defendant from himself [or

herself], and protecting society in general.” Rotherham, 1996-NMSC-048, ¶ 56

(emphasis added). The risk of erroneous deprivation of liberty combined with

“purposes of rendering punishment” and “the concern of possible risk of error” in a

criminal proceeding justifies the heavier standard of beyond a reasonable doubt. Id.

¶¶ 54-56 (citing Addington v. Texas, 441 U.S. 418, 428-29 (1979)); see § 31-18-

15.1(A)(2), (B). However, we have recognized that the full force of the concern of

erroneous deprivation of liberty is not present where the NMMIC provides

additional safeguards and sufficient means by which an error may be corrected.

Rotherham, 1996-NMSC-048, ¶ 55. “Thus, the concern of possible risk of error that

20
warrants a higher standard of proof for criminal prosecution does not apply here.”

Id.

{38} The instant case offers a useful model for the proper application of Section

31-18-15.1 to enhance a term of commitment under Section 31-9-1.5. The district

court’s order of commitment identifies that clear and convincing evidence supports

all requisite findings for the corresponding term of commitment. The order’s

findings include those meeting the requirements for commitment under Section 31-

9-1.5(D): (1) Defendant committed the underlying felony offense of murder in the

second degree, (2) Defendant remained incompetent to proceed to trial, and (3)

Defendant remained dangerous as defined by Section 31-9-1.2(D). The order’s

findings also include those meeting the requirements for aggravation when Section

31-18-15.1 is applied under Section 31-9-1.5: aggravating circumstances that relate

to the dangerousness of Defendant, including clear and convincing evidence of

brutality, viciousness, and threat to community safety.

III. CONCLUSION
{39} We conclude that a term of commitment under Section 31-9-1.5(D) may

include an enhancement due to aggravating circumstances which relate to a

defendant’s dangerousness and that the application of Section 31-18-15.1 requires

21
clear and convincing evidence. Accordingly, we affirm Defendant’s enhanced term

of commitment.

{40} IT IS SO ORDERED.

C. SHANNON BACON, Justice

WE CONCUR:

MICHAEL E. VIGIL, Chief Justice

BARBARA J. VIGIL, Justice

DAVID K. THOMSON, Justice

22