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 OR SEXUAL ORIENTATION OF THE PERSON--ALTERATION OF BASIC SENTENCE--SUSPENSION AND DEFERRAL LIMITED.--

A. 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 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. The sentence imposed pursuant to the provisions of this subsection shall be the first thirty days served and shall not be suspended or deferred, but may include an alternative sentence that requires community service, counseling or education.

B. When a separate finding of fact by the court or jury shows that an offender has committed a second or subsequent 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 or sexual orientation of that person, whether or not the offender's belief or perception was correct, 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. The sentence imposed pursuant to the provisions of this subsection shall be the first sixty days served and shall not be suspended or deferred, but may include an alternative sentence that requires community service, counseling or education.

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 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. The sentence imposed pursuant to the provisions of this subsection shall be the first ninety days served and shall not be suspended or deferred, but may include an alternative sentence that requires community service, counseling or education.

D. When a separate finding of fact by the court or jury shows that an offender has committed a second or subsequent 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 or sexual orientation of that person, whether or not the offender's belief or perception was correct, 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. The sentence imposed pursuant to the provisions of this subsection shall be the first one hundred eighty days served and shall not be suspended or deferred, but may include an alternative sentence that requires community service, counseling or education.

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 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. The sentence imposed pursuant to the provisions of this subsection shall be the first year served and shall not be suspended or deferred, but may include an alternative sentence that requires community service, counseling or education.

F. When a separate finding of fact by the court or jury shows that an offender has committed a second or subsequent 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 or sexual orientation of that person, whether or not the offender's belief or perception was correct, the basic sentence of imprisonment prescribed for the offense in Section 31-18-15 NMSA 1978 may be increased by three years. The sentence imposed pursuant to the provisions of this subsection shall be the first three years served and shall not be suspended or deferred, but may include an alternative sentence that requires community service, counseling or education.

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 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 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."

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

provisions of this act is July 1, 2003.