SENATE BILL 735
48th legislature - STATE OF NEW MEXICO - first session, 2007
INTRODUCED BY
Linda M. Lopez
AN ACT
RELATING TO SEX OFFENDERS; CREATING A NEW CRIMINAL OFFENSE KNOWN AS CHILD SOLICITATION BY ELECTRONIC COMMUNICATION DEVICE; ADDING THE OFFENSE OF CHILD SOLICITATION BY ELECTRONIC COMMUNICATION DEVICE TO SEX OFFENDER REGISTRATION REQUIREMENTS; PROVIDING AN EXTENDED PERIOD OF PAROLE FOR THE OFFENSE OF CHILD SOLICITATION BY ELECTRONIC COMMUNICATION DEVICE; PROVIDING ADDITIONAL VIOLENT FELONIES IN THE CRIMINAL SENTENCING ACT FOR PURPOSES OF MANDATORY LIFE IMPRISONMENT FOR TWO VIOLENT SEXUAL OFFENSE CONVICTIONS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 29-11A-3 NMSA 1978 (being Laws 1995, Chapter 106, Section 3, as amended) is amended to read:
"29-11A-3. DEFINITIONS.--As used in the Sex Offender Registration and Notification Act:
A. "conviction" means a conviction in any court of competent jurisdiction and includes a deferred sentence, but does not include a conditional discharge;
B. "institution of higher education" means a:
(1) private or public post-secondary educational institution;
(2) trade school; or
(3) professional school;
C. "registration requirement" means any requirement set forth in Section 29-11A-4 NMSA 1978 that requires a sex offender to register, provide information, including a DNA sample, renew, revise or change [his] registration information or provide written notice or disclosure regarding [his] the sex offender's status as a sex offender;
D. "sex offender" means a person who:
(1) is a resident of New Mexico who is convicted of a sex offense in New Mexico;
(2) changes [his] residence to New Mexico, when that person has been convicted of a sex offense in another state pursuant to state, federal, tribal or military law;
(3) is a resident of New Mexico who is convicted of a sex offense pursuant to federal, tribal or military law;
(4) does not have an established residence in New Mexico, but lives in a shelter, halfway house or transitional living facility or stays in multiple locations in New Mexico and who has been convicted of a sex offense in New Mexico or any other state pursuant to state, federal, tribal or military law; or
(5) is a resident of another state and who has been convicted of a sex offense pursuant to state, federal, tribal or military law, but who is:
(a) employed full time or part time in New Mexico for a period of time exceeding fourteen days or for an aggregate period of time exceeding thirty days during any calendar year, including any employment or vocation, whether financially compensated, volunteered or for the purpose of government or educational benefit; or
(b) enrolled on a full-time or part-time basis in a private or public school or an institution of higher education in New Mexico; and
E. "sex offense" means:
(1) criminal sexual penetration in the first, second, third or fourth degree, as provided in Section 30-9-11 NMSA 1978;
(2) criminal sexual contact in the fourth degree, as provided in Section 30-9-12 NMSA 1978;
(3) criminal sexual contact of a minor in the second, third or fourth degree, as provided in Section
30-9-13 NMSA 1978;
(4) sexual exploitation of children, as provided in Section 30-6A-3 NMSA 1978;
(5) sexual exploitation of children by prostitution, as provided in Section 30-6A-4 NMSA 1978;
(6) kidnapping, as provided in Section
30-4-1 NMSA 1978, when the victim is less than eighteen years of age and the offender is not a parent of the victim;
(7) false imprisonment, as provided in Section 30-4-3 NMSA 1978, when the victim is less than eighteen years of age and the offender is not a parent of the victim;
(8) aggravated indecent exposure, as provided in Section 30-9-14.3 NMSA 1978;
(9) enticement of child, as provided in Section 30-9-1 NMSA 1978;
(10) incest, as provided in Section 30-10-3 NMSA 1978, when the victim is less than eighteen years of age;
(11) child solicitation by electronic communication device, as provided in Section 30-37-3.2 NMSA 1978;
[(11)] (12) solicitation to commit criminal sexual contact of a minor in the second, third or fourth degree, as provided in Sections 30-9-13 and 30-28-3 NMSA 1978; or
[(12)] (13) attempt to commit any of the sex offenses set forth in Paragraphs (1) through [(10)] (11) of this subsection, as provided in Section 30-28-1 NMSA 1978."
Section 2. Section 30-37-3.2 NMSA 1978 (being Laws 1998, Chapter 64, Section 1, as amended) is amended to read:
"30-37-3.2. CHILD SOLICITATION BY [COMPUTER] ELECTRONIC COMMUNICATION DEVICE.--
A. Child solicitation by [computer] electronic communication device consists of a person knowingly and intentionally soliciting a child under sixteen years of age, by means of [computer] an electronic communication device, to engage in sexual intercourse, sexual contact or in a sexual or obscene performance, or to engage in any other sexual conduct when the perpetrator is at least three years older than the child.
B. Whoever commits child solicitation by [computer] electronic communication device is guilty of a [fourth] third degree felony, except the person is guilty of a second degree felony if the person attends or is present at a meeting that the person arranged pursuant to the solicitation.
C. Child solicitation by electronic communication device in the fourth degree consists of a person knowingly and intentionally communicating with a child under sixteen years of age by sending the child images of the person's intimate parts by means of an electronic communication device. Whoever commits child solicitation by electronic communication device in the fourth degree is guilty of a fourth degree felony.
[B.] D. In a prosecution for child solicitation by [computer] electronic communication device, it is not a defense that the intended victim of the defendant was a peace officer posing as a child under sixteen years of age.
[C.] E. For purposes of determining jurisdiction, child solicitation by [computer] electronic communication device is committed in this state if [a computer] an electronic communication device transmission either originates or is received in this state.
F. As used in this section:
(1) "electronic communication device" means a computer, video recorder, digital camera, fax machine, telephone, pager, audio equipment or any other device that can produce an electronically generated image, message or signal; and
(2) "intimate parts" means the primary genital area, groin, buttocks, anus or breast."
Section 3. Section 31-18-25 NMSA 1978 (being Laws 1996, Chapter 79, Section 1, as amended) is amended to read:
"31-18-25. TWO VIOLENT SEXUAL OFFENSE CONVICTIONS--MANDATORY LIFE IMPRISONMENT--EXCEPTION.--
A. When a defendant is convicted of a second violent sexual offense, and each violent sexual offense conviction is part of a separate transaction or occurrence, and at least the second violent sexual offense conviction is in New Mexico, the defendant shall, in addition to the punishment imposed for the second violent sexual offense conviction, be punished by a sentence of life imprisonment. The life imprisonment sentence shall be subject to parole pursuant to the provisions of Section 31-21-10 NMSA 1978.
B. Notwithstanding the provisions of Subsection A of this section, when a defendant is convicted of a second violent sexual offense, and each violent sexual offense conviction is part of a separate transaction or occurrence, and the victim of each violent sexual offense was less than thirteen years of age at the time of the offense, and at least the second violent sexual offense conviction is in New Mexico, the defendant shall be punished by a sentence of life imprisonment without the possibility of parole.
C. The sentence of life imprisonment shall be imposed after a sentencing hearing, separate from the trial or guilty plea proceeding resulting in the second violent sexual offense conviction, pursuant to the provisions of Section 31-18-26 NMSA 1978.
D. For the purposes of this section, a violent sexual offense conviction incurred by a defendant before [he] the defendant reaches the age of eighteen shall not count as a violent sexual offense conviction.
E. When a defendant has a felony conviction from another state, the felony conviction shall be considered a violent sexual offense for the purposes of the Criminal Sentencing Act if the crime would be considered a violent sexual offense in New Mexico.
F. As used in the Criminal Sentencing Act, "violent sexual offense" means:
(1) criminal sexual penetration in the first or second degree, as provided in [Subsection C of] Section 30-9-11 NMSA 1978; or
[(2) criminal sexual penetration in the second degree, as provided in Subsection D of Section 30-9-11 NMSA 1978]
(2) criminal sexual contact of a minor in the second or third degree, as provided in Section 30-9-13 NMSA 1978."
Section 4. Section 31-21-10.1 NMSA 1978 (being Laws 2003 (1st S.S.), Chapter 1, Section 9) is amended to read:
"31-21-10.1. SEX OFFENDERS--PERIOD OF PAROLE--TERMS AND CONDITIONS OF PAROLE.--
A. If the district court sentences a sex offender to a term of incarceration in a facility designated by the corrections department, the district court shall include a provision in the judgment and sentence that specifically requires the sex offender to serve an indeterminate period of supervised parole for a period of not less than five years and not in excess of twenty years. A sex offender's period of supervised parole may be for a period of less than twenty years if, at a review hearing provided for in Subsection B of this section, the state is unable to prove that the sex offender should remain on parole. Prior to placing a sex offender on parole, the board shall conduct a hearing to determine the terms and conditions of supervised parole for the sex offender. The board may consider any relevant factors, including:
(1) the nature and circumstances of the offense for which the sex offender was incarcerated;
(2) the nature and circumstances of a prior sex offense committed by the sex offender;
(3) rehabilitation efforts engaged in by the sex offender, including participation in treatment programs while incarcerated or elsewhere;
(4) the danger to the community posed by the sex offender; and
(5) a risk and needs assessment regarding the sex offender, developed by the sex offender management board of the New Mexico sentencing commission or another appropriate entity, to be used by appropriate parole board personnel.
B. The board shall review the terms and conditions of a sex offender's supervised parole at two and one-half year intervals. When a sex offender has served the initial five years of supervised parole, the board shall also review the duration of the sex offender's supervised parole at two and one-half year intervals. When a sex offender has served the initial five years of supervised parole, at each review hearing the state shall bear the burden of proving to a reasonable certainty that the sex offender should remain on parole.
C. The board may order a sex offender released on parole to abide by reasonable terms and conditions of parole, including:
(1) being subject to intensive supervision by a parole officer of the corrections department;
(2) participating in an outpatient or inpatient sex offender treatment program;
(3) a parole agreement by the sex offender not to use alcohol or drugs;
(4) a parole agreement by the sex offender not to have contact with certain persons or classes of persons; and
(5) being subject to alcohol testing, drug testing or polygraph examinations used to determine if the sex offender is in compliance with the terms and conditions of [his] the sex offender's parole.
D. The board shall notify the chief public defender of an upcoming parole hearing for a sex offender, and the chief public defender shall make representation available to the sex offender at the parole hearing.
E. If the board finds that a sex offender has violated the terms and conditions of [his] the sex offender's parole, the board may revoke [his] the sex offender's parole or may order additional terms and conditions of parole.
F. The provisions of this section shall apply to all sex offenders, except geriatric, permanently incapacitated and terminally ill inmates eligible for the medical and geriatric parole program as provided by the Parole Board Act.
G. As used in this section, "sex offender" means a person who is convicted of, pleads guilty to or pleads nolo contendere to any one of the following offenses:
(1) kidnapping, as provided in Section 30-4-1 NMSA 1978, when committed with intent to inflict a sexual offense upon the victim;
(2) criminal sexual penetration in the first, second or third degree, as provided in Section 30-9-11 NMSA 1978;
(3) criminal sexual contact of a minor in the second or third degree, as provided in Section 30-9-13 NMSA 1978;
(4) sexual exploitation of children in the second degree, as provided in Section 30-6A-3 NMSA 1978; [or]
(5) sexual exploitation of children by prostitution in the first or second degree, as provided in Section 30-6A-4 NMSA 1978; or
(6) child solicitation by electronic communication device, as provided in Section 30-37-3.2 NMSA 1978."
Section 5. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2007.
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