(concurring in part and dissenting in part).
{36} I agree with the majority that the district court did not err in concluding that Defendant has mental retardation as defined by Section 31-9-1.6(E). I also agree that Section 43-1-1 provides authority enabling the district court to refer defendants such as this one to the district attorney for civil commitment. However, I dissent from the majority’s conclusion that Sections 31-9-1 to -1.5 do not apply to defendants who are incompetent to stand trial due to mental retardation.
{37} The ultimate question in construing statutes is legislative intent. State v. Baca, 2005-NMCA-001, ¶ 9, 136 N.M. 667, 104 P.3d 533. We view each statute in light of its history, the overall legislative scheme, and “the clear policy implications of its various constructions.” State v. Smith, 2004-NMSC-032, ¶ 10, 136 N.M. 372, 98 P.3d 1022. We presume that the legislature is aware of existing law and that it does not intend to enact statutes that are in conflict with existing law. State v. Herbstman, 1999-NMCA-014, ¶ 18, 126 N.M. 683, 974 P.2d 177.
{38} As the majority correctly notes, when Sections 31-9-1 to -1.5 were enacted, they applied to all incompetent defendants, including defendants with mental retardation. Sections 31-9-1 to -1.5 constitute a comprehensive legislative scheme addressing the substance and the procedure of transfer of cases to the district court, the means of determining competency, the temporary commitment of defendants determined to be incompetent, and the treatment of incompetent defendants. Until 1997, when Section 31-9-1.6 was enacted, all defendants who were potentially incompetent were subject to the same procedures and requirements.
{39} In 1997, the legislature enacted Section 31-9-1.6. Section 31-9-1.6 requires a hearing to determine whether a defendant has mental retardation on motion of the defense. Section 31-9-1.6(A). If the defendant does have mental retardation and is not likely to become competent, an evaluation is conducted to determine the degree of dangerousness of the defendant. Section 31-9-1.6(B). If the defendant is found to present a serious risk of harm and has committed one of several enumerated offenses, the department of health is required to begin civil commitment procedures. Section 31-9-1.6(C). Finally, Section 31-9-1.6(D) provides that the criminal charges be dismissed without prejudice after the hearing or fourteen months from the initial determination of incompetency.
{40} The majority concludes, in essence, that Section 31-9-1.6 is a comprehensive scheme dealing with defendants who are incompetent by reason of mental retardation and that it therefore replaces Sections 31-9-1 to -1.5 for these defendants. I disagree. I believe that Section 31-9-1.6 was intended merely to supplement the preexisting legislative scheme dealing with incompetent defendants. In reaching this conclusion, I rely on the plain language of the statute and a common-sense interpretation with the goal of determining legislative intent. See Smith, 2004-NMSC-032, ¶¶ 9-10, 136 N.M. 372, 98 P.3d 1022.
{41} First, I begin with the premise that the legislature knew of the existence of Sections 31-9-1 to -1.5 when it enacted Section 31-9-1.6. See Herbstman, 1999-NMCA-014, ¶ 18, 126 N.M. 683, 974 P.2d 177. If the legislature had intended to limit the application of Sections 31-9-1 to -1.5 to defendants who are incompetent by reason of mental illness, as distinguished from mental retardation, it could have amended these statutes to so reflect. See, e.g., State v. Muniz, 2003-NMSC-021, ¶ 11, 134 N.M. 152, 74 P.3d 86. I would not presume that the legislature intended to limit the application of these statutes in the absence of some indication that a limitation was intended.
{42} Second, as the majority’s conclusion illustrates, Section 31-9-1.6 is not a comprehensive legislative scheme. It cannot take the place of Sections 31-9-1 to -1.5 for all defendants with mental retardation because it does not address the procedures the district court should follow when dealing with all defendants with mental retardation. Where Section 31-9-1.6 is silent, I would presume that the legislature intended the previously applicable law, which has been neither amended nor repealed, to remain applicable. Sections 31-9-1 to -1.5 should therefore be fully applicable to defendants who have mental retardation, rendering them incompetent but treatable; to defendants who have mental retardation but whose counsel has not requested a ruling on that issue; to defendants who do not pose a serious risk of harm; and to defendants who do pose a serious risk of harm but who have not committed one of the enumerated crimes.
{43} Finally, I believe that Section 31-9-1.6 should not be construed as replacing Sections 31-9-1 to -1.5 for all defendants with mental retardation because such an interpretation is contrary to reason and contrary to public policy. See Gallegos, 111 N.M. at 114-15, 802 P.2d at 19-20 (listing the purposes underlying Sections 31-9-1 to -1.5). Under the majority’s interpretation, safeguards in Sections 31-9-1 to -1.5, such as the transfer of cases to the district court, a hearing to ensure that sufficient evidence of guilt exists, and periodic review of the defendant’s competency and dangerousness, no longer apply to defendants with mental retardation. Perhaps most importantly, because Section 31-9-1.6 does not address the treatment of defendants who have mental retardation but who may become competent, the district court is no longer able to order temporary commitment for the purpose of treatment. Instead, the majority’s interpretation of Section 31-9-1.6 leads to the conclusion that the legislature chose to eliminate these provisions and, instead, to be silent on the treatment of incompetent defendants with mental retardation and the procedures to be followed when an incompetent defendant is not dangerous, has not committed one of the enumerated offenses, or has not requested a hearing under Section 31-9-1.6. I would not interpret Section 31-9-1.6 to create such an unreasonable result, particularly when a reasonable interpretation is possible. See Herbstman, 1999-NMCA-014, ¶ 21, 126 N.M. 683, 974 P.2d 177.
{44} I believe that the legislature intended Section 31-9-1.6 to supplement Sections 31-9-1 to -1.5. Nowhere in Sections 31-9-1 to -1.5 does the legislature require the commencement of civil commitment proceedings. Section 31-9-1.6(0), to the contrary, requires the department of health to civilly commit dangerous defendants with untreatable mental retardation who have committed one of four listed felonies. Because Section 31-9-1.6(C) is a more specific statute, it should govern actions of the district court and the department of health when it is triggered on motion of the defense and when the defendant is found to be incompetent, untreatable, a risk of serious harm, and to have committed one of the listed felonies. When Section 31-9-1.6 is not applicable, however, the district court should proceed under the general statutes addressing all incompetent defendants.
{45} Defendant argued that a conflict existed because a defendant committed under Section 31-9-1.6 could only be confined for fourteen months, whereas a defendant committed under Section 31-9-1.5 could be confined for the extent of his or her maximum possible sentence if convicted. Defendant apparently construed Section 31-9-1.6(D) to contain this limitation. But Subsection D addresses circumstances when charges must be dismissed without prejudice; it does not address the length of commitment. I therefore see no practical conflict in applying Sections 31-9-1 to -1.5 to defendants who are not covered by Section 31-9-1.6.
{46} I therefore respectfully dissent from the majority’s conclusion that Sections 31-9-1 to -1.5 do not apply to Defendant. I would affirm the district court’s order finding Defendant to have mental retardation and concluding that Defendant could be committed under Sections 31-9-1 to -1.5.