June 23, 2009 – State of New Mexico v. Jose Javier Lopez, No. 27,862

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	June 23, 2009
NO. 27,862
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
JOSE JAVIER LOPEZ,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Mark Macaron, District Judge
Gary K. King, Attorney General
Farhan Khan, Assistant Attorney General
Santa Fe, NM
for Appellee
Hugh W. Dangler, Chief Public Defender
Corey J. Thompson, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
BUSTAMANTE, Judge.
{1} 	Defendant Jose Javier Lopez appeals the terms of his criminal commitment
imposed pursuant to NMSA 1978, Section 31-9-1.5 (1999) of the New Mexico Mental
Illness and Competency Code (NMMIC). 	Lopez argues that his pre-commitment
confinement time should have been taken into account in determining the actual
duration of his criminal commitment. 	The ultimate question is one of statutory
interpretation. 	Specifically, whether in enacting Section 31-9-1.5 the Legislature
intended for a criminally committed offender to face longer confinement than had he
been actually convicted of the underlying crime. We conclude that the Legislature did
not intend such an outcome and we reverse.
BACKGROUND
{2} 	In August 2004 Lopez allegedly attacked his mother with a knife, stabbing her
in the throat area and on her wrists. This incident resulted in Lopez’s indictment by
a grand jury on the charges of attempted murder in the first degree, aggravated battery
on a household member, and tampering with evidence. Proceedings on these charges
were suspended pending a determination of Lopez’s competence to stand trial
pursuant to NMSA 1978, Section 31-9-1 (1993). 	In October 2005 the parties
stipulated that Lopez was incompetent to stand trial and “dangerous,” which resulted

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in his commitment to the New Mexico Behavioral Health Institute (NMBHI) for
treatment to attain competency. Lopez was confined at NMBHI for a full year, after
which time he remained incompetent to stand trial.
{3} 	In October 2006 the court scheduled an evidentiary hearing pursuant to Section
31-9-1.5. The parties stipulated that evidence supported a conviction of aggravated
battery of a household member and tampering with evidence but not attempted
murder. 	Based on these stipulations and pursuant to Section 31-9-1.5, the court
committed Lopez to NMBHI for the maximum duration of three years for the third-
degree felony offense of aggravated battery against a household member (great bodily
harm).
{4} 	The parties agreed that pursuant to State v. Chorney, 2001-NMCA-050, ¶ 13,
130 N.M. 638, 29 P.3d 538, the tampering with evidence stipulation would not result
in an enhancement of Lopez’s commitment period. However, the parties disagree on
the effect of NMSA 1978, Section 31-20-12 (1977), “[c]redit for time prior to
conviction.” Specifically, the parties dispute whether the approximately two years and
two months that Lopez was confined at NMBHI prior to the Section 31-9-1.5 hearing
should be credited against his three-year commitment. Lopez argues that the district
court misapplied the statutes and ultimately violated his rights to equal protection and
due process. We reverse on the statutory interpretation issue and do not reach Lopez’s

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constitutional claims.
STANDARD OF REVIEW
{5} 	“Because we interpret the language of Section 31-9-1.5, our review is de novo.”
Chorney, 2001-NMCA-050, ¶ 4. In interpreting the NMMIC, our primary objective
is to give effect to the Legislature’s intent. State v. Trujillo, 2009-NMSC-012, ¶ 11,
__ N.M. __, 206 P.3d 125. “[I]n determining intent we look to the language used and
consider the statute’s history and background.” Key v. Chrysler Motors Corp., 121
N.M. 764, 768-69, 918 P.2d 350, 354-55 (1996).
DISCUSSION
{6} 	Section 31-9-1.5(D)(1) requires that, if a court determines by clear and
convincing evidence that a “dangerous” defendant committed the crime charged, the
defendant must be detained in a secure “locked facility.” 	State v. Rotherham, 122
N.M. 246, 253, 923 P.2d 1131, 1138 (1996). Section 31-9-1.5(D)(2) requires that the
period of detention not exceed the maximum sentence available had the defendant
been convicted in a criminal proceeding. Id. In the event of a criminal conviction,
“[a] person held in official confinement on suspicion or charges of the commission of
a felony shall, upon conviction of that or a lesser included offense, be given credit for
the period spent in presentence confinement against any sentence finally imposed for
that offense.” Section 31-20-12.

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{7} 	The district court declined to apply Section 31-20-12 to Lopez’s term of
confinement, concluding that it was inapplicable for several reasons. First, the court
concluded that Section 31-20-12 applies only where there has been a criminal
conviction, and that Defendant’s criminal commitment was not a conviction. Further,
the court concluded that it was otherwise inapplicable because commitment was not
equivalent to a sentence in that it was not punishment. And finally, the court reasoned
that commitment did not constitute a “sentence finally imposed” because Lopez could
still be subject to a final sentencing, assuming that at some point he became competent
to stand trial.
{8} 	We disagree with the approach taken by the district court and its result. The
district court’s approach was to analyze the language of Section 31-20-12 and then
determine its applicability to Lopez. 	This approach cannot be reconciled with the
language of Section 31-9-1.5 or the reasons for its enactment. 	When a question as
to a defendant’s competency is raised, all other proceedings outside of those
prescribed by the NMMIC must be suspended until the issue of competency is
resolved. 	Rotherham, 122 N.M. at 253, 923 P.2d 1138. 	Thus, the district court’s
application of a criminal statute to Lopez outside the context and provisions of the
NMMIC was improper. 	See Chorney, 2001-NMCA-050, ¶¶ 13-14 (holding that
application of a habitual offender enhancement to extend the duration of commitment

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was improper because it did not relate to provisions of the NMMIC).
{9} 	Applying the plain language of the NMMIC, the maximum duration of a
criminal commitment is determined by the following analysis. First, the district court
must presume that there has been a conviction; second, based on this presumption, the
court must determine the maximum sentence that could be imposed for such a
conviction. 	See Rotherham, 122 N.M. at 253, 923 P.2d at 1138 (stating that
commitment under Section 31-9-1.5(D)(2) cannot exceed the maximum sentence
available had there been a conviction).
{10} 	Here, presuming Lopez was convicted, his pre-conviction confinement at
NMBHI would have been credited against his post conviction sentence in accordance
with Section 31-20-12. State v. La Badie, 87 N.M. 391, 392, 534 P.2d 483, 484 (Ct.
App. 1975). Thus, to the extent that Lopez’s pre-conviction confinement would have
been credited against his sentence, so too must it be credited against the term of his
criminal commitment. Any contrary conclusion would effectively treat Lopez more
severely than if he had actually been convicted, which is inconsistent with the purpose
of the NMMIC.
{11} 	In a comprehensive analysis of Section 31-9-1.5, our Supreme Court recognized
that the NMMIC was adopted in the wake of the United States Supreme Court’s
decision in Jackson v. Indiana, 406 U.S. 715 (1972); Rotherham, 122 N.M. at 252-53,

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923 P.3d at 1137-38. In Jackson, the Court held that subjecting incompetent offenders
to “a more lenient commitment standard and to a more stringent standard of release
than those generally applicable” constituted a deprivation of equal protection.
Rotherham, 122 N.M. at 256, 923 P.3d at 1141 (internal quotation marks and citation
omitted). Section 31-9-1.5 imposes a more lenient commitment standard by lowering
the burden of proof to clear and convincing evidence. 	To apply a more stringent
standard argued for by the State would be to create the exact problem that the
Legislature was trying to avoid. 	Thus, such an interpretation is contrary to the
Legislature’s intent.
{12} 	The State argues that the district court’s approach was proper because the
purpose of commitment is rehabilitative rather than punitive and, therefore, it is not
analogous to a conviction as required by Section 31-20-12. We disagree because the
argument relies on the flawed approach of applying Section 31-20-12 outside the
context and requirements of Section 31-9-1.5(D)(2). Criminal commitment is based
not only on the need for treatment, but also on an offender’s past dangerous conduct.
Rotherham, 122 N.M. at 258, 923 P.2d at 1143. 	Furthermore, while the State
correctly points out that we have previously stated that “[c]ommitment pursuant to
Section 31-9-1.5 is not punishment,” we have also stated that it undeniably results in
a loss of liberty. State v. Spriggs-Gore, 2003-NMCA-046, ¶¶ 21-22, 133 N.M. 479,

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64 P.3d 506. The involuntary nature of commitment and the associated loss of liberty
is the key aspect of commitment constituting “official confinement” equivalent to a
sentence based on a conviction within the meaning of Section 31-20-12. La Badie,
87 N.M. at 392, 534 P.2d at 484.
CONCLUSION
{13} 	For the foregoing reasons, we reverse the district court’s denial of pre-
commitment credit and remand to the district court for proceedings consistent with
this opinion.
{14} 	IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
CELIA FOY CASTILLO, Judge
ROBERT E. ROBLES, Judge