46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO CRIMINAL SENTENCING; PROVIDING INCREASES IN A BASIC SENTENCE OF IMPRISONMENT WHEN A CRIME IS INTENTIONALLY COMMITTED AGAINST CERTAIN PERSONS OR THEIR PROPERTY; ENACTING A NEW SECTION OF THE CRIMINAL SENTENCING ACT.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. A new section of the Criminal Sentencing Act is enacted to read:

"[NEW MATERIAL] NONCAPITAL FELONIES, MISDEMEANORS OR PETTY MISDEMEANORS COMMITTED AGAINST A PERSON OR A PERSON'S PROPERTY BECAUSE OF THE ACTUAL OR PERCEIVED RACE, RELIGION, COLOR, NATIONAL ORIGIN, ANCESTRY, GENDER, GENDER IDENTITY OR SEXUAL ORIENTATION OF THE PERSON--ALTERATION OF BASIC SENTENCE.--

A. When a separate finding of fact by the court shows that an offender intentionally injured a person or intentionally damaged a person's property because of the actual or perceived race, religion, color, national origin, ancestry, gender, gender identity or sexual orientation of that person, whether or not the offender's belief or perception was correct, and if the underlying crime is a petty misdemeanor, the basic sentence of imprisonment prescribed for the offense in Section 31-19-1 NMSA 1978 may be increased by thirty days; provided that the total sentence shall not exceed one hundred eighty days. A sentence imposed pursuant to the provisions of this subsection may include an alternative sentence that requires community service, counseling or education or any combination thereof and may be suspended or deferred.

B. When a separate finding of fact by the court shows that an offender has committed a petty misdemeanor in which a person was intentionally injured or a person's property was intentionally damaged because of the actual or perceived race, religion, color, national origin, ancestry, gender, gender identity or sexual orientation of that person, whether or not the offender's belief or perception was correct, and the offender has previously been sentenced pursuant to the provisions of this section, the basic sentence of imprisonment prescribed for the offense in Section 31-19-1 NMSA 1978 may be increased by sixty days; provided that the total sentence shall not exceed one hundred eighty days. A sentence imposed pursuant to the provisions of this subsection may include an alternative sentence that requires community service, counseling or education or any combination thereof and may be suspended or deferred.

C. When a separate finding of fact by the court or jury shows that an offender intentionally injured a person or intentionally damaged a person's property because of the actual or perceived race, religion, color, national origin, ancestry, gender, gender identity or sexual orientation of that person, whether or not the offender's belief or perception was correct, and if the underlying crime is a misdemeanor, the basic sentence of imprisonment prescribed for the offense in Section 31-19-1 NMSA 1978 may be increased by ninety days; provided that the total sentence shall not exceed three hundred sixty-four days. A sentence imposed pursuant to the provisions of this subsection may include an alternative sentence that requires community service, counseling or education or any combination thereof and may be suspended or deferred.

D. When a separate finding of fact by the court shows that an offender has committed a misdemeanor in which a person was intentionally injured or a person's property was intentionally damaged because of the actual or perceived race, religion, color, national origin, ancestry, gender, gender identity or sexual orientation of that person, whether or not the offender's belief or perception was correct, and the offender has previously been sentenced pursuant to the provisions of this section, the basic sentence of imprisonment prescribed for the offense in Section 31-19-1 NMSA 1978 may be increased by one hundred eighty days; provided that the total sentence shall not exceed three hundred sixty-four days. A sentence imposed pursuant to the provisions of this subsection may include an alternative sentence that requires community service, counseling or education or any combination thereof and may be suspended or deferred.

E. When a separate finding of fact by the court or jury shows that an offender intentionally injured a person or intentionally damaged a person's property because of the actual or perceived race, religion, color, national origin, ancestry, gender, gender identity or sexual orientation of that person, whether or not the offender's belief or perception was correct, and if the underlying crime is a noncapital felony, the basic sentence of imprisonment prescribed for the offense in Section 31-18-15 NMSA 1978 may be increased by one year. A sentence imposed pursuant to the provisions of this subsection may include an alternative sentence that requires community service, counseling or education or any combination thereof and may be suspended or deferred.

F. When a separate finding of fact by the court shows that an offender has committed a noncapital felony in which a person was intentionally injured or a person's property was intentionally damaged because of the actual or perceived race, religion, color, national origin, ancestry, gender, gender identity or sexual orientation of that person, whether or not the offender's belief or perception was correct, and the offender has previously been sentenced pursuant to the provisions of this section, the basic sentence of imprisonment prescribed for the offense in Section 31-18-15 NMSA 1978 may be increased by three years. A sentence imposed pursuant to the provisions of this subsection may include an alternative sentence that requires community service, counseling or education or any combination thereof and may be suspended or deferred.

G. If the case is tried before a jury and if a prima facie case has been established showing that in the commission of the offense a person was intentionally injured or a person's property was intentionally damaged because of the actual or perceived race, religion, color, national origin, ancestry, gender, gender identity or sexual orientation of that person, whether or not the offender's belief or perception was correct, the court shall submit the issue to the jury by special interrogatory. If the case is tried by the court and if a prima facie case has been established showing that in the commission of the offense a person was intentionally injured or a person's property was intentionally damaged because of the actual or perceived race, religion, color, national origin, ancestry, gender, gender identity or sexual orientation of that person, whether or not the offender's belief or perception was correct, the court shall decide the issue and shall make a separate finding of fact regarding the issue.

H. As used in this section:

(1) "gender identity" means a person's self-perception, or perception of that person by another, of the person's identity as a male or female based upon the person's appearance, behavior or physical characteristics that are in accord with or opposed to the person's physical anatomy, chromosomal sex or sex at birth; and

(2) "sexual orientation" means heterosexuality, homosexuality or bisexuality, whether actual or perceived."

Section 2. EFFECTIVE DATE.--The effective date of the

provisions of this act is July 1, 2003.