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

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
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

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
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

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
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

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.
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

{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,
6

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,
7

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.
8

{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

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

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
10

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.
11

{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
12

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.

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JUDITH K. NAKAMURA, Justice

WE CONCUR:

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CHARLES W. DANIELS, Chief Justice

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PETRA JIMENEZ MAES, Justice

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EDWARD L. CHÁVEZ, Justice

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BARBARA J. VIGIL, Justice