Special Action Proceeding Pima County Cause No. CR20184269001
Feinman, Pima County Public Defender By Lisa M. Surhio,
Assistant Public Defender, Tucson Counsel for Petitioner.
Barbara LaWall, Pima County Attorney By Jacob R. Lines,
Deputy County Attorney, Tucson Counsel for Real Party in
Espinosa authored the opinion of the Court, in which
Presiding Judge Eppich concurred and Judge Eckerstrom
In this special action, Anthony Garcia seeks relief from the
respondent judge's order granting the state's request
under A.R.S. § 13-4518(A) that he undergo psychological
screening to determine whether he may be a sexually violent
person (SVP). We previously stayed the respondent's order
and now accept special-action jurisdiction because Garcia has
no equally plain, speedy, or adequate remedy by appeal and
because this case presents a legal question of first
impression. See Duff v. Lee, 246 Ariz. 418, ¶ 2
(App. 2019); see also Ariz. R. P. Spec. Act. 1(a).
However, because § 13-4518 does not allow a trial court
to deny a screening request when, as here, the statutory
requirements have been met, we deny relief.
In October 2018, Garcia was charged with sexual conduct with
a minor under the age of fifteen. After competency
proceedings held pursuant to Rule 11, Ariz. R. Crim. P., the
respondent judge determined Garcia was incompetent to stand
trial and could not be restored to competency "within
timelines required by Arizona law."
The state moved to have Garcia undergo SVP screening under
§ 13-4518(A), which authorizes such screening when an
incompetent defendant who is unlikely to be restored to
competency has been charged with a sexually violent offense.
Although Garcia conceded these requirements had been met, he
nonetheless objected to the state's request, asserting,
"[w]hether or not to order such an evaluation is within
the Court's discretion." He argued that, despite
having undergone competency evaluations, there was "no
evidence" he suffered from a mental disorder qualifying
him as an SVP, specifically "a paraphilia, a conduct
disorder, or a personality disorder." The respondent
granted the state's screening request, concluding that
"if the two prongs [of the statute] are met, . . . the
evaluation should occur." This petition for special
On review, Garcia repeats his argument that a trial court has
discretion to deny a screening request even when the
requirements of § 13-4518(A) have been
He further argues the respondent here failed to exercise that
discretion in granting the state's request. And he
contends that, because there is "no evidence" he
suffers from a disorder that could qualify him as an SVP,
such screening is inappropriate.
We review de novo the interpretation of a statute and, in
doing so, seek "to 'effectuate the legislature's
intent,' the best indicator of which 'is the
statute's plain language.'" Pinal County v.
Fuller, 245 Ariz. 337, ¶ 8 (App. 2018) (quoting
SolarCity Corp. v. Ariz. Dep't of Revenue, 243
Ariz. 477, ¶ 8 (2018)). And we read that language
"in context with other statutes relating to the same
subject or having the same general purpose."
Id. (quoting SolarCity Corp., 243 Ariz.
477, ¶ 8).
An SVP is a person who "[h]as ever been convicted of or
found guilty but insane of a sexually violent offense or was
charged with a sexually violent offense and was determined
incompetent to stand trial" and "[h]as a mental
disorder that makes the person likely to engage in acts of
sexual violence." A.R.S. § 36-3701(7). If those
elements are established at a trial, the person is subject to
civil commitment. See A.R.S. §§ 36-3701 to
36-3717. In this context, a mental disorder "means a
paraphilia, personality disorder or conduct disorder or any
combination of paraphilia, personality disorder and conduct
disorder that predisposes a person to commit sexual acts to
such a degree as to render the person a danger to the health
and safety of others." § 36-3701(5). Sexually
violent offenses are enumerated in § 36-3701(6) and
include sexual conduct with a minor, the crime for which
Garcia has been charged.
As noted above, § 13-4518(A) provides that the state
"may request" SVP screening for a defendant found
incompetent to stand trial if two conditions are met. First,
the competency report must conclude that "there is no
substantial probability that the defendant will regain
competency within twenty-one months" of the incompetency
finding. § 13-4518(A)(1). Second, the defendant must
have been "charged with or . . . convicted of or found
guilty except insane for a sexually violent offense."
§ 13-4518(A)(2). Section 13-4518(B) states: "If the
court orders a screening to determine if the defendant may be
a sexually violent person," it shall appoint a competent
professional to conduct a screening and is not permitted to
dismiss the underlying criminal case until a decision has
been made about filing an SVP petition.
Garcia maintains a trial court has discretion to deny a
screening request made under § 13-4518(A) even if the
statutory requirements are met. He first asserts: "Had
the legislature intended to make the screening mandatory, it
would have used the word 'shall.'" Garcia is
correct that the word "shall" frequently indicates
a provision is mandatory. See, e.g., State ex rel.
Brnovich v. City of Tucson, 242 Ariz. 588, ¶ 31
(2017); Lewis v. Ariz. State Pers. Bd., 240 Ariz.
330, ¶ 30 (App. 2016); Arrett v. Bower, 237
Ariz. 74, ¶ 24 (App. 2015). But he cites no authority,
and we find none, concluding the legislature must use the
term "shall" or a similar term for a provision to
be mandatory. Indeed, the statute also lacks expressly
permissive language. Thus, Garcia's argument that the
statute is devoid of directive language cuts against his
position. "We presume the legislature says what it
means." Chavez v. Ariz. Sch. Risk Retention Tr.,
Inc., 227 Ariz. 327, ¶ 9 (App. 2011). Had the
legislature intended to allow a trial court to impose
additional, non-statutory requirements on a state's
screening request, it would have said so.
Garcia further argues the respondent had discretion to reject
the state's request because "if," as used in
§ 13-4518(B), is a conditional term. But there is
nothing about a conditional term that suggests discretion. It
means only that an event may occur only when certain
conditions exist. See if, The American Heritage
Dictionary (5th ed. 2011) (definitions of "if"
include "[i]n the event that" and "[o]n the
condition that"). The most sensible reading of the
statute is that the term "if" in § 13-4518(B)
refers to whether the prerequisites listed in §
13-4518(A) have been met, thus warranting a screening, not
whether some other, unspecified, showing has been made.
Garcia additionally asserts that the use of the word
"if" in other statutes supports his argument that
the term means the trial court has discretion. But he
misapprehends the source of the court's discretion in
those statutes. Garcia cites A.R.S. § 13-4505(A), which
states a court must appoint two or more experts to evaluate a
defendant's competency "[i]f [it] determines . . .
that reasonable grounds exist." The discretionary aspect
of the statute is not rooted in the conditional
"if," but in the court's determination whether
reasonable grounds exist. Section 13-4518, in contrast, does
not require the court to determine whether the state's
request has reasonable grounds-it clearly identifies two
unambiguous prerequisites, and nothing more. Garcia also
cites A.R.S. § 13-4517(A), which provides that
"[i]f the court finds that a defendant is incompetent to
stand trial," any party may request one (or more) of
three options: remanding the defendant to an evaluating
agency; appointing a guardian; or releasing the defendant and
dismissing the charges without prejudice. Again, the
discretionary aspect of the statute is unrelated to the use
of the term "if." Instead, the discretionary
components are related to the required finding of
incompetence and the court's choice of three available
Were Garcia's argument correct, a trial court could
impose any requirement it believed appropriate under the
circumstances before ordering screening under § 13-4518.
But this court has already rejected the argument that a court
generally has discretion to add to clearly enumerated
requirements. In Haroutunian v. Valueoptions, Inc.,
218 Ariz. 541 (App. 2008), we addressed then-Rule 9(a), Ariz.
R. Civ. App. P., now Rule 9(f), which stated that, if certain
prerequisites are met, a court "may upon motion"
extend the time to file a notice of appeal. The trial court
in that case had declined to extend the time to appeal
despite finding the prerequisites had been met, citing the
party's failure to show "good cause" related to
its failure to receive notice of the judgment. Id.
¶ 9. Concluding the court had thus applied "an
incorrect legal standard" by grafting a good cause
requirement onto Rule 9, we reversed. Id.
¶¶ 13, 29. Here, like in Haroutunian, the
governing provision expressly provides the showing the state
is required to make. A court is not permitted to add to the
statute by requiring the state to show something more, for
example, as Garcia argues, evidence of a qualifying disorder.
Contrary to our dissenting colleague's view, nothing in
the legislative materials suggests the legislature intended
that the state would be required to make any showing beyond
the requirements listed in § 13-4518(A). And Garcia has
not identified on review any public policy reason to require
an additional showing in these circumstances. Screening is
required only when there is probable cause to believe the
person has committed a sexually violent offense or has
previously been found guilty or guilty except insane of such
an offense. § 13-4518(A)(2); see also §
36-3701(7). The SVP statutes make no distinction between the
two qualifying statuses. §§ 36-3701 through
36-3707. Nor has any Arizona case. And allowing trial courts
to require an additional showing is not consistent with the
statute's purpose: to create procedures for the court and
prosecuting agency to better supervise those transitioning
from criminal proceedings to potential civil commitment.
See S. Fact Sheet for H.B. 2239, 53d Leg., 1st Reg.
Sess. (Ariz. Apr. 10, 2017). Were we to adopt Garcia's
argument, we would instead create a non-statutory barrier not
contemplated by our legislature-that could vary from case to
case-to ensuring that a potential SVP is properly evaluated.
Court-ordered SVP screening upon the state's compliance
with § 13-4518(A) is consistent with the remainder of
the statutory scheme. The governing statutes have long
included pre-petition SVP screening for persons in custody.
An agency with jurisdiction over the person may screen any
potential SVP before release, § 36-3702(A), including by
obtaining and providing the county attorney or attorney
general with "[a] report of the person's condition
that was completed within the preceding one hundred twenty
days and that includes an opinion expressing to a reasonable
degree of psychiatric, psychological or professional
certainty that the person has a mental disorder and that, as
a result of that mental disorder, the person is likely to
engage in a sexually violent offense," §
36-3702(D)(9)(a); see also In re Commitment of Conn,207 Ariz. 257, ¶ 4 (App. 2004) ...