New Mexico Statutes
Article 9 - Mental Illness and Competency
Section 31-9-1.5 - Determination of competency; evidentiary hearing.

A. As provided for in Subsection A of Section 31-9-1.4 NMSA 1978, a hearing to determine the sufficiency of the evidence shall be held if the case is not dismissed and if the defendant is charged with a felony that involves the infliction of great bodily harm on another person; a felony that involves the use of a firearm; aggravated arson, as provided in Section 30-17-6 NMSA 1978; criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978; or criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978. Such hearing shall be conducted by the district court without a jury. The state and the defendant may introduce evidence relevant to the question of the defendant's guilt of the crime charged. The district court may admit hearsay or affidavit evidence on secondary matters such as testimony to establish the chain of possession of physical evidence, laboratory reports, authentication of transcripts taken by official reporters, district court and business records and public documents.
B. If the evidence does not establish by clear and convincing evidence that the defendant committed a felony that involves the infliction of great bodily harm on another person; a felony that involves the use of a firearm; aggravated arson, as provided in Section 30-17-6 NMSA 1978; criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978; or criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978, the district court shall dismiss the criminal case with prejudice; however, nothing in this section shall prevent the state from initiating proceedings under the provisions of the Mental Health and Developmental Disabilities Code [43-1-2 NMSA 1978], and the court may order the defendant confined for a maximum of seven days to facilitate preparation and initiation of a petition pursuant to that code.
C. If the district court finds by clear and convincing evidence that the defendant committed a crime and has not made a finding of dangerousness, pursuant to Section 31-9-1.2 NMSA 1978, the district court shall dismiss the charges without prejudice. The state may initiate proceedings pursuant to the provisions of the Mental Health and Developmental Disabilities Code and the court may order the defendant confined for a maximum of seven days to facilitate preparation and initiation of a petition pursuant to that code.
D. If the district court finds by clear and convincing evidence that the defendant committed a felony that involves the infliction of great bodily harm on another person; a felony that involves the use of a firearm; aggravated arson, as provided in Section 30-17-6 NMSA 1978; criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978; or criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978 and enters a finding that the defendant remains incompetent to proceed and remains dangerous pursuant to Section 31-9-1.2 NMSA 1978:
(1) the defendant shall be detained by the department of health in a secure, locked facility;
(2) the defendant shall not be released from that secure facility except pursuant to an order of the district court which committed him or upon expiration of the period of time equal to the maximum sentence to which the defendant would have been subject had the defendant been convicted in a criminal proceeding;
(3) significant changes in the defendant's condition, including but not limited to trial competency and dangerousness, shall be reported in writing to the district court, state and defense; and
(4) at least every two years, the district court shall conduct a hearing upon notice to the parties and the department of health charged with detaining the defendant. At the hearing, the court shall enter findings on the issues of trial competency and dangerousness:
(a) upon a finding that the defendant is competent to proceed in a criminal case, the court shall continue with the criminal proceeding;
(b) if the defendant continues to be incompetent to proceed in a criminal case and dangerous pursuant to Section 31-9-1.2 NMSA 1978, the court shall review the defendant's competency and dangerousness every two years until expiration of the period of commitment equal to the maximum sentence to which the defendant would have been subject had he or she been convicted in a criminal proceeding; provided, that if the treatment supervisor recommends that the defendant be committed pursuant to the Mental Health and Developmental Disabilities Code, the court may at any time proceed pursuant to Subsection C of Section 31-9-1.4 NMSA 1978; and
(c) if the defendant is not committed pursuant to Sections 31-9-1 through 31-9-1.5 NMSA 1978 or if the court finds upon its two-year review hearing that the defendant is no longer dangerous, as defined in Section 31-9-1.2 NMSA 1978, the defendant shall be released.
History: 1978 Comp., § 31-9-1.5, enacted by Laws 1988, ch. 107, § 6 and by 1988, ch. 108, § 6; 1993, ch. 240, § 6; 1993, ch. 249, § 6; 1999, ch. 149, § 4.
Cross references. — For rule of criminal procedure governing defenses of insanity, incompetency, and lack of capacity, see Rule 5-602 NMRA.
The 1999 amendment, effective June 18, 1999, inserted "if the case is not dismissed and if the defendant is charged with a felony that involves the infliction of great bodily harm on another person; a felony that involves the use of a firearm; aggravated arson, as provided in Section 30-17-6 NMSA 1978; criminal sexual penetration, as provided in Section 30-19-11 NMSA 1978; or criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978" in Subsection A; in Subsections B and D substituted "a felony that involves the infliction of great bodily harm on another person; a felony that involves the use of a firearm; aggravated arson, as provided in Section 30-17-6 NMSA 1978; criminal sexual penetration, as provided in Section 30-19-11 NMSA 1978; or criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978" for "a crime"; inserted "and the court may order the defendant confined for a maximum of seven days to facilitate preparation and initiation of a petition pursuant to that code" in Subsections C and D; substituted "Section 31-9-1.2" for "Subsections B and C of Section 39-1-1.2" in Subsection C; substituted "enters" for "has previously made" and "remains incompetent to proceed and remains" for "is"; and deleted "Subsections B and C of" following "pursuant to" in Subsection D; inserted "and dangerous pursuant to Section 31-9-1.2 NMSA 1978", deleted "subject" following "convicted" and added the proviso in Subsection D(4)(b), and deleted "Subsection G of" following "defined in" in Subsection D(4)(c).
The 1993 amendment, effective June 18, 1993, rewrote the section to the extent that a detailed comparison is impracticable. This section was also amended by Laws 1993, ch. 240, § 6, effective June 18, 1993. The section was set out as amended by Laws 1993, ch. 249, § 6. See 12-1-8 NMSA 1978.
Felonies involving great bodily harm. — Subsection D of Section 31-9-1.5 NMSA 1978 allows the criminal commitment of a defendant who commits a felony in a manner that results in great bodily harm to another person and is not limited only to felonies that contain the infliction of great bodily harm as an element necessary for conviction. State v. Lopez, 2011-NMCA-071, 150 N.M. 14, 256 P.3d 977, cert. denied, 2011-NMCERT-005, 150 N.M. 666, 265 P.3d 717.
Robbery. — Where, at a commitment hearing, the parties stipulated that defendant approached an employee of a hotel in the hotel laundry room, struck the employee in the face with a closed fist, beat the employee over the head with a hard plastic tube, took the keys to the hotel office, and took money from the hotel cash drawer; and the court found that defendant had committed armed robbery that resulted in great bodily harm to the victim, the court did not err in ordering defendant's commitment. State v. Lopez, 2011-NMCA-071, 150 N.M. 14, 256 P.3d 977, cert. denied, 2011-NMCERT-005, 150 N.M. 666, 265 P.3d 717.
Standard of proof. — The appropriate standards of proof for the initial determination as well as the redetermination of competency is a preponderance of the evidence. State v. Chavez, 2008-NMSC-001, 143 N.M. 205, 174 P.3d 988.
Credit for presentence confinement. — Presentence confinement credit should be credited to criminal commitment under Subsection D of Section 31-9-1.5 NMSA 1978 to the same extent the confinement would have been credited against a sentence for a criminal conviction. State v. Lopez, 2011-NMCA-071, 150 N.M. 14, 256 P.3d 977, cert. denied, 2011-NMCERT-005, 150 N.M. 666, 265 P.3d 717.
Where, before trial, the court found that defendant was incompetent to proceed to trial and that defendant had committed robbery that resulted in great bodily harm to another person and the court committed defendant to twelve years, defendant was entitled to presentence confinement credit toward the commitment period. State v. Lopez, 2011-NMCA-071, 150 N.M. 14, 256 P.3d 977, cert. denied, 2011-NMCERT-005, 150 N.M. 666, 265 P.3d 717.
Credit for pre-conviction confinement. — To the extent that defendant's pre-conviction confinement would have been credited against defendant's sentence had defendant been convicted of a crime, defendant's pre-conviction confinement must be credited against the term of defendant's criminal commitment. State v. Lopez, 2009-NMCA-112, 147 N.M. 279, 219 P.3d 1288, cert. denied, 2009-NMCERT-009, 147 N.M. 421, 224 P.3d 648.
Where defendant was committed for treatment to attain competency to stand trial for a period of two years and two months before defendant was committed for a third-degree felony offense of aggravated battery against a household member, the period of defendant's pre-conviction confinement should have been credited to the term of defendant's criminal commitment. State v. Lopez, 2009-NMCA-112, 147 N.M. 279, 219 P.3d 1288, cert. denied, 2009-NMCERT-009, 147 N.M. 421, 224 P.3d 648.
This section does not violate any constitutional guarantee. State v. Adonis, 2008-NMSC-059, 145 N.M. 102, 194 P.3d 717.
Jurisdiction of an appeal of a lifetime criminal commitment lies with the supreme court. — Where defendant was charged with an open count of murder, and where the district court found by clear and convincing evidence that defendant committed first-degree murder, determined that defendant was dangerous and not competent to stand trial, and ordered that defendant be detained for life by the New Mexico department of health pursuant to 31-9-1.5(D) NMSA 1978, jurisdiction of defendant's appeal properly lied in the New Mexico supreme court, because commitment pursuant to 31-9-1.5 NMSA 1978 results in a loss of liberty, and the deprivation of liberty resulting from a lifetime criminal commitment is equivalent to the deprivation of liberty under a lifetime criminal sentence, and N.M. Const. Art. VI, § 2 confers jurisdiction on the New Mexico supreme court for cases imposing a sentence of life imprisonment. State v. Baca, 2019-NMSC-014.
Sufficient evidence of willful and deliberate murder. — Where defendant was charged with an open count of murder for killing his father with a pickaxe, and where the district court found by clear and convincing evidence that defendant committed first-degree murder, determined that defendant was dangerous and not competent to stand trial, and ordered that defendant be detained for life by the New Mexico department of health pursuant to 31-9-1.5(D) NMSA 1978, and where defendant conceded that he killed his father, evidence that the killing involved a prolonged, sustained attack and defendant's statements and actions before, during, and after the killing, including arming himself with the pickaxe, was sufficient to establish that the murder was willful, deliberate, and premeditated. State v. Baca, 2019-NMSC-014.
The basic sentences for misdemeanor crimes cannot be used to calculate the term of commitment under Subsection D of this section. State v. Demongey, 2008-NMCA-066, 144 N.M. 333, 187 P.3d 679, cert. quashed, 2011-NMCERT-001, 150 N.M. 560, 263 P.3d 902.
Redetermination of competency. — The proper standard of proof for a redetermination of the competency of a defendant to stand trial, following a prior determination that the defendant is incompetent to stand trial, is a preponderance of the evidence. State v. Chavez, 2008-NMSC-001, 143 N.M. 205, 174 P.3d 988.
Generally. — Commitment pursuant to this section is not punishment. State v. Spriggs-Gore, 2003-NMCA-046, 133 N.M. 479, 64 P.3d 506, cert. denied, 133 N.M. 539, 65 P.3d 1094.
Constitutionality. — This section does not unconstitutionally deprive defendants of due process. State v. Spriggs-Gore, 2003-NMCA-046, 133 N.M. 479, 64 P.3d 506, cert. denied, 133 N.M. 539, 65 P.3d 1094.
This section does not abrogate a defendant's constitutional rights. State v. Spriggs-Gore, 2003-NMCA-046, 133 N.M. 479, 64 P.3d 506, cert. denied, 133 N.M. 539, 65 P.3d 1094.
Competency determinations implicate due process. — Competency determinations implicate due process rights. A court violates a defendant's due process rights when it fails to inquire into competency after the defendant presents enough evidence to entitle him to a hearing on the issue. A hearing on the defendant's competency requires adequate notice, an adversarial hearing before an independent decision-maker, and a written statement from the fact finder clarifying the evidence relied upon and reasons for the decision. State v. Gutierrez, 2015-NMCA-082, cert. denied, 2015-NMCERT-008.
Where defendant was charged with numerous counts of attempted first-degree murder and other serious charges related to an incident where he trapped four adults and two children in a trailer and threatened them with firearms over several hours, the initial district judge, following a competency hearing, found that defendant was not competent to stand trial, that he was dangerous, and that he was not likely to become competent; defendant was then provided a hearing before a different district court judge for the sole purpose of determining whether defendant had mental retardation; the second district court judge found, on her own motion, without notice, and without any argument from the state, that defendant had been proved competent beyond a reasonable doubt; defendant was denied his procedural right to effective and timely notice and the opportunity to present arguments and evidence before having a decision rendered against him as to competency; moreover the district judge, in failing to examine the factors for determining competency, never provided defendant with any justification for the decision and subsequent actions. State v. Gutierrez, 2015-NMCA-082, cert. denied, 2015-NMCERT-008.
The prosecution of a defendant who is incompetent to stand trial violates due process. — Where defendant was tried and convicted of numerous counts of attempted first-degree murder and other serious charges related to an incident where he trapped four adults and two children in a trailer and threatened them with firearms over several hours, the initial district judge found, following a competency hearing prior to trial, that defendant was not competent to stand trial, that he was dangerous, and that he was not likely to become competent; defendant was later provided a hearing before a different district judge for the sole purpose of determining whether defendant had mental retardation; the second district court judge found that defendant had been proved competent beyond a reasonable doubt without making any findings as to whether defendant understood the nature and significance of the proceedings, whether defendant had a factual understanding of the charges or whether defendant was able to assist in his own defense, and, without any evidence presented regarding whether defendant had made or could make progress toward competency, disregarded the prior ruling made by the initial district judge that it was unlikely defendant would attain competency in the future; the evidence presented at the mental retardation hearing was insufficient to rebut the existing presumption that defendant was incompetent to stand trial. Defendant's trial violated due process. State v. Gutierrez, 2015-NMCA-082, cert. denied, 2015-NMCERT-008.
Suppression. — Suppression hearing is not a legal impossibility at a hearing pursuant to this section; the statute does not preclude a defendant's attorney from putting on a complete defense at such a hearing. State v. Spriggs-Gore, 2003-NMCA-046, 133 N.M. 479, 64 P.3d 506, cert. denied, 133 N.M. 539, 65 P.3d 1094.
Defendant, who was found incompetent to stand trial for first degree murder, was incompetent to knowingly and intelligently waive her constitutional rights; thus all of defendant's statements made after the first administration of her Miranda rights had to be suppressed. State v. Spriggs-Gore, 2003-NMCA-046, 133 N.M. 479, 64 P.3d 506, cert. denied, 133 N.M. 539, 65 P.3d 1094.
Proof of state of mind required. — In a case of first degree murder, the state has to prove a deliberate intention to kill, which "may be inferred from all of the facts and circumstances of the killing." At a hearing under this section, the defendant is equally entitled to marshal a factual case that disproves either direct or inferential evidence that he had formed, or had the opportunity to form, a deliberate intent to kill. State v. Taylor, 2000-NMCA-072, 129 N.M. 376, 8 P.3d 863, cert. quashed, 131 N.M. 64, 33 P.3d 284.
Defenses not available at Subsection A hearing. — The defenses of insanity and inability to form a specific intent are not available at a hearing conducted pursuant to Subsection A. State v. Werner, 1990-NMCA-019, 110 N.M. 389, 796 P.2d 610, cert. denied, 109 N.M. 704, 789 P.2d 1271.
Trial court may draw inference as to dangerousness. — When the trial court has found that a defendant has cruelly treated a two-year-old child by holding her foot in hot water for half a minute and has injured his brother with a knife in the course of a family argument, the trial court may properly draw an inference that defendant is dangerous. State v. Gallegos, 1990-NMCA-104, 111 N.M. 110, 802 P.2d 15, cert. denied, 111 N.M. 77, 801 P.2d 659.
Finding of dangerousness as prerequisite to detention. — In the context of the competency statutes, the finding of dangerousness is a prerequisite to the applicability of the portions of the statute allowing defendant to be detained for a longer period of time. Thus, the court must make a finding of dangerousness prior to the detention authorized by this section, but it need not have made such a finding at a prior hearing. State v. Gallegos, 1990-NMCA-104, 111 N.M. 110, 802 P.2d 15, cert. denied, 111 N.M. 77, 801 P.2d 659.
Enhancement of commitment term must relate to dangerousness. — A defendant cannot be criminally committed under a sentence enhancement unless the conduct invoking the enhancement is a specific marker of dangerousness as defined by statute. State v. Chorney, 2001-NMCA-050, 130 N.M. 638, 29 P.3d 538.
A term of criminal commitment may be increased due to aggravating circumstances that relate to a defendant's dangerousness. — A term of commitment under this section may be increased under NMSA 1978, § 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. State v. Quintana, 2021-NMSC-013, aff'g 2019-NMCA-030.
District court did not err in enhancing defendant's term of criminal commitment. — Where, following a criminal commitment hearing, the district court found that clear and convincing evidence existed to show that defendant committed the crime of second degree murder, and further found, following a subsequent evidentiary hearing, 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, and that defendant represented a threat to community safety because if released without supervision, there was a danger that defendant would be medically non-compliant and that his psychosis would return, the district court did not err in enhancing defendant's sentence by five years for a total commitment of twenty years, representing the maximum time to which defendant would have been subject had defendant been convicted of the charged offense, because this section clearly indicates that determination of a term of criminal commitment should correspond to the maximum sentence that would have been reached under the Criminal Sentencing Act, including potential enhancement based on aggravating circumstances. State v. Quintana, 2021-NMSC-013, aff'g 2019-NMCA-030.
Commitment period may be enhanced based on aggravating circumstances. — Where defendant was charged with an open count of murder, and where after a hearing on defendant's competency to proceed to trial, the parties stipulated that the evidence was clear and convincing that defendant had committed the crime of second-degree murder, the district court did not err in ordering defendant to be committed to the New Mexico Behavioral Health Institute for fifteen years plus five years for aggravating circumstances based in part on the extreme viciousness and brutality of defendant's conduct, because this section permits a commitment equal to the maximum sentence to which the defendant would have been subject had the defendant been convicted in a criminal proceeding, and the legislature has made clear that a sentence may consist of a basic sentence plus additional terms of imprisonment to be imposed after assessment of additional factors. State v. Quintana, 2019-NMCA-030, cert. granted.
Habitual offender enhancement does not apply. — The habitual offender enhancement (Section 31-18-17 NMSA 1978) does not apply to extend a defendant's criminal incompetency commitment. State v. Chorney, 2001-NMCA-050, 130 N.M. 638, 29 P.3d 538.
Defendant's attorney may act as advocate. — There is nothing in the statute on its face that precludes defendant's attorney from acting as an advocate at a hearing under this section. State v. Gallegos, 1990-NMCA-104, 111 N.M. 110, 802 P.2d 15, cert. denied, 111 N.M. 77, 801 P.2d 659.