SENATE BILL 7

49th legislature - STATE OF NEW MEXICO - first session, 2009

INTRODUCED BY

Cisco McSorley

FOR THE COURTS, CORRECTIONS AND JUSTICE COMMITTEE

AN ACT

RELATING TO JUVENILES; PROVIDING COURTS THE DISCRETION TO DETERMINE WHETHER AN ADULT SENTENCE OR JUVENILE SANCTIONS ARE APPROPRIATE FOR A SERIOUS YOUTHFUL OFFENDER.

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

     Section 1. Section 31-18-15.3 NMSA 1978 (being Laws 1993, Chapter 77, Section 3) is amended to read:

     "31-18-15.3. SERIOUS YOUTHFUL OFFENDER--DISPOSITION.--

          A. An alleged serious youthful offender may be detained in any of the following places, prior to arraignment in metropolitan, magistrate or district court:

                (1) a detention facility for delinquent children, licensed by the children, youth and families department;

                (2) any other suitable place, other than a facility for the care and rehabilitation of delinquent children, that meets standards for detention facilities, as set forth in the Children's Code and federal law; or

                (3) a county jail, if a facility described in Paragraph (1) or (2) of this subsection is not appropriate.

          B. When an alleged serious youthful offender is detained in a juvenile detention facility prior to trial, the time spent in the juvenile detention facility shall count [towards] toward completion of any sentence imposed.

          C. At arraignment, when a metropolitan or district court judge or a magistrate determines that an alleged serious youthful offender should remain in custody, the alleged serious youthful offender may be detained in an adult or juvenile detention facility, subject to the facility's accreditation and the provisions of applicable federal law.

          D. When an alleged serious youthful offender is found guilty of first degree murder and found not amenable to treatment, the court shall sentence the offender pursuant to the provisions of the Criminal Sentencing Act. The court may sentence the offender to less than, but not exceeding, the mandatory term for an adult. The determination of guilt becomes a conviction for purposes of the Criminal Sentencing Act.

          E. Prior to the sentencing of an alleged serious youthful offender who is convicted of first degree murder and found not amenable to treatment, adult probation services shall prepare a presentence report and submit the report to the court and the parties five days prior to the sentencing hearing.

          F. When the alleged serious youthful offender is convicted of a lesser offense than first degree murder, the court shall provide for disposition of the offender pursuant to the provisions of Section [32-2-19 or 32-2-20] 32A-2-19 or

32A-2-20 NMSA 1978. When an offender is adjudicated as a delinquent child, the conviction shall not be used as a conviction for purposes of the Criminal Sentencing Act."

     Section 2. Section 32A-2-3 NMSA 1978 (being Laws 1993, Chapter 77, Section 32, as amended) is amended to read:

     "32A-2-3. DEFINITIONS.--As used in the Delinquency Act:

          A. "delinquent act" means an act committed by a child that would be designated as a crime under the law if committed by an adult, including the following offenses:

                (1) an offense pursuant to municipal traffic codes or the Motor Vehicle Code:

                     (a) driving while under the influence of intoxicating liquor or drugs;

                     (b) failure to stop in the event of an accident causing death, personal injury or damage to property;

                     (c) unlawful taking of a vehicle or motor vehicle;

                     (d) receiving or transferring of a stolen vehicle or motor vehicle;

                     (e) homicide by vehicle;

                     (f) injuring or tampering with a vehicle;

                     (g) altering or changing of an engine number or other vehicle identification numbers;

                     (h) altering or forging of a driver's license or permit or any making of a fictitious license or permit;

                     (i) reckless driving;

                     (j) driving with a suspended or revoked license; or

                     (k) an offense punishable as a felony;

                (2) buying, attempting to buy, receiving, possessing or being served any alcoholic liquor or being present in a licensed liquor establishment, other than a restaurant or a licensed retail liquor establishment, except in the presence of the child's parent, guardian, custodian or adult spouse. As used in this paragraph, "restaurant" means an establishment where meals are prepared and served primarily for on-premises consumption and that has a dining room, a kitchen and the employees necessary for preparing, cooking and serving meals. "Restaurant" does not include an establishment, as defined in regulations promulgated by the director of the special investigations division of the department of public safety, that serves only hamburgers, sandwiches, salads and other fast foods;

                (3) a violation of Section 30-29-2 NMSA 1978, regarding the illegal use of a glue, aerosol spray product or other chemical substance;

                (4) a violation of the Controlled Substances Act;

                (5) escape from the custody of a law enforcement officer or a juvenile probation or parole officer or from any placement made by the department by a child who has been adjudicated a delinquent child;

                (6) a violation of Section 30-15-1.1 NMSA 1978 regarding unauthorized graffiti on personal or real property; or

                (7) a violation of an order of protection issued pursuant to the provisions of the Family Violence Protection Act;

          B. "delinquent child" means a child who has committed a delinquent act;

          C. "delinquent offender" means a delinquent child who is subject to juvenile sanctions only and who is not a youthful offender or a serious youthful offender;

          D. "detention facility" means a place where a child may be detained under the Children's Code pending court hearing and does not include a facility for the care and rehabilitation of an adjudicated delinquent child;

          E. "felony" means an act that would be a felony if committed by an adult;

          F. "misdemeanor" means an act that would be a misdemeanor or petty misdemeanor if committed by an adult;

          G. "restitution" means financial reimbursement by the child to the victim or community service imposed by the court and is limited to easily ascertainable damages for injury to or loss of property, actual expenses incurred for medical, psychiatric and psychological treatment for injury to a person and lost wages resulting from physical injury, which are a direct and proximate result of a delinquent act. "Restitution" does not include reimbursement for damages for mental anguish, pain and suffering or other intangible losses. As used in this subsection, "victim" means a person who is injured or suffers damage of any kind by an act that is the subject of a complaint or referral to law enforcement officers or juvenile probation authorities. Nothing contained in this definition limits or replaces the provisions of Subsections A and B of Section 32A-2-27 NMSA 1978;

          H. "serious youthful offender" means an individual fifteen to eighteen years of age who is charged with and indicted or bound over for trial for first degree murder [A "serious youthful offender" is not a delinquent child as defined pursuant to the provisions of this section]; and

          I. "youthful offender" means a delinquent child subject to adult or juvenile sanctions who is:

                (1) fourteen to eighteen years of age at the time of the offense and who is adjudicated for at least one of the following offenses:

                     (a) second degree murder, as provided in Section 30-2-1 NMSA 1978;

                     (b) assault with intent to commit a violent felony, as provided in Section 30-3-3 NMSA 1978;

                     (c) kidnapping, as provided in

Section 30-4-1 NMSA 1978;

                     (d) aggravated battery, as provided in Subsection C of Section 30-3-5 NMSA 1978;

                     (e) aggravated battery against a household member, as provided in Subsection C of Section 30-3-16 NMSA 1978;

                     (f) aggravated battery upon a peace officer, as provided in Subsection C of Section 30-22-25 NMSA 1978;

                     (g) shooting at a dwelling or occupied building or shooting at or from a motor vehicle, as provided in Section 30-3-8 NMSA 1978;

                     (h) dangerous use of explosives, as provided in Section 30-7-5 NMSA 1978;

                     (i) criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978;

                     (j) robbery, as provided in Section

30-16-2 NMSA 1978;

                     (k) aggravated burglary, as provided in Section 30-16-4 NMSA 1978;

                     (l) aggravated arson, as provided in Section 30-17-6 NMSA 1978; or

                     (m) abuse of a child that results in great bodily harm or death to the child, as provided in Section 30-6-1 NMSA 1978;

                (2) fourteen to eighteen years of age at the time of the offense, [and] who is adjudicated for any felony offense and who has had three prior, separate felony adjudications within a three-year time period immediately preceding the instant offense. The felony adjudications relied upon as prior adjudications shall not have arisen out of the same transaction or occurrence or series of events related in time and location. Successful completion of consent decrees are not considered a prior adjudication for the purposes of this paragraph; or

                (3) fourteen years of age and who is adjudicated for first degree murder, as provided in Section

30-2-1 NMSA 1978."

     Section 3. Section 32A-2-6 NMSA 1978 (being Laws 1993, Chapter 77, Section 35) is amended to read:

     "32A-2-6. TRANSFER OF JURISDICTION OVER CHILD FROM OTHER TRIBUNALS TO COURT.--

          A. If it appears to a tribunal in a criminal matter that the defendant was under the age of eighteen years at the time the offense charged was alleged to have been committed and the offense charged is a delinquent act pursuant to the provisions of the Delinquency Act, the tribunal shall promptly transfer jurisdiction of the matter and the defendant to the court, together with a copy of the accusatory pleading and other papers, documents and transcripts of testimony relating to the case. [The tribunal shall not transfer a serious youthful offender.]

          B. Upon transfer, the court shall have exclusive jurisdiction over the proceedings and the defendant. The transferring tribunal shall order that the defendant promptly be taken to the court or taken to a place of detention designated by the court or released to the custody of a parent, guardian, custodian or other person legally responsible for the defendant to be brought before the court at a time designated by the court. Upon transfer to the court, a petition shall be prepared and filed in the court in accordance with the provisions of the Delinquency Act. If the defendant is not a child at the time of transfer, the court retains jurisdiction over the matter only until disposition is made by the court."

     Section 4. Section 32A-2-17 NMSA 1978 (being Laws 1993, Chapter 77, Section 46, as amended) is amended to read:

     "32A-2-17. PREDISPOSITION STUDIES--REPORTS AND EXAMINATIONS.--

          A. After a petition has been filed and either a finding with respect to the allegations of the petition has been made or a notice of intent to admit the allegations of the petition has been filed, the court may direct that a predisposition study and report to the court be made in writing by the department or an appropriate agency designated by the court concerning the child, the family of the child, the environment of the child and any other matters relevant to the need for treatment or to appropriate disposition of the case. The following predisposition reports shall be provided to the parties and the court five days before actual disposition or sentencing:

                [(1) the adult probation and parole division of the corrections department shall prepare a predisposition report for a serious youthful offender;

                (2) the department shall prepare a predisposition report for a serious youthful offender who is convicted of an offense other than first degree murder;

                (3)] (1) the department shall prepare a predisposition report for a youthful offender or a serious youthful offender concerning the [youthful] offender's amenability to treatment and if:

                     (a) the court determines that a juvenile disposition is appropriate, the department shall prepare a subsequent predisposition report; or

                     (b) the court makes the findings necessary to impose an adult sentence pursuant to Section 32A-2-20 NMSA 1978, the adult probation and parole division of the corrections department shall prepare a subsequent predisposition report; and

                [(4)] (2) the department shall prepare a predisposition report for a delinquent offender, upon the court's request.

           B. Where there are indications that the child may have a mental disorder or developmental disability, the court, on motion by the children's court attorney or that of counsel for the child, may order the child to be examined at a suitable place by a physician, a licensed psychologist or a licensed independent social worker prior to a hearing on the merits of the petition. An examination made prior to the hearing or as a part of the predisposition study and report shall be conducted on an outpatient basis, unless the court finds that placement in a hospital or other appropriate facility is necessary.

           C. The court, after a hearing, may order examination by a physician, a licensed psychologist or a licensed independent social worker of a parent or custodian whose ability to care for or supervise a child is an issue before the court.

           D. The court may order that a child adjudicated as a delinquent child be transferred to the facility designated by the secretary of the department for a period of not more than fifteen days within a three-hundred-sixty-five-day time period for purposes of diagnosis, with direction that the court be given a report indicating what disposition appears most suitable when the interests of the child and the public are considered.

           E. Once the child is committed, the department shall determine when the child is released. The release shall be any time after commitment, but not more than fifteen days after commitment. Upon petition by the department to the court, the judge may extend the commitment for an additional fifteen days upon good cause shown."

     Section 5. Section 32A-2-20 NMSA 1978 (being Laws 1993, Chapter 77, Section 49, as amended) is amended to read:

     "32A-2-20. DISPOSITION OF A YOUTHFUL OFFENDER AND SERIOUS YOUTHFUL OFFENDER.--

          A. The court has the discretion to invoke either an adult sentence or juvenile sanctions on a youthful offender or a serious youthful offender. The children's court attorney shall file a notice of intent to invoke an adult sentence within ten working days of the filing of the petition, provided that the court may extend the time for filing of the notice of intent to invoke an adult sentence, for good cause shown, prior to the adjudicatory hearing. A preliminary hearing by the court or a hearing before a grand jury shall be held, within ten days after the filing of the intent to invoke an adult sentence, to determine whether probable cause exists to support the allegations contained in the petition.

           B. If the children's court attorney has filed a notice of intent to invoke an adult sentence and the child is adjudicated as a youthful offender or a serious youthful offender, the court shall make the following findings in order to invoke an adult sentence:

                (1) the child is not amenable to treatment or rehabilitation as a child in available facilities; and

                (2) the child is not eligible for commitment to an institution for children with developmental disabilities or mental disorders.

          C. In making the findings set forth in Subsection B of this section, the judge shall consider the following factors:

                (1) the seriousness of the alleged offense;

                (2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner;

                (3) whether a firearm was used to commit the alleged offense;

                (4) whether the alleged offense was against persons or against property, greater weight being given to offenses against persons, especially if personal injury resulted;

                (5) the sophistication and maturity of the child as determined by consideration of the child's home, environmental situation, emotional attitude and pattern of living;

                (6) the record and previous history of the child;

                (7) the prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the child by the use of procedures, services and facilities currently available; and

                (8) any other relevant factor, provided that factor is stated on the record.

          D. If a child has previously been sentenced as an adult pursuant to the provisions of this section, there shall be a rebuttable presumption that the child is not amenable to treatment or rehabilitation as a child in available facilities.

          E. If the court invokes an adult sentence, the court may sentence the child to less than, but shall not exceed, the mandatory adult sentence. A youthful offender or a serious youthful offender given an adult sentence shall be treated as an adult offender and, once the child attains the age of eighteen, shall be transferred to the legal custody of an agency responsible for incarceration of persons sentenced to adult sentences. This transfer terminates the jurisdiction of the court over the child with respect to the delinquent acts alleged in the petition.

          F. If a juvenile disposition is appropriate, the court shall follow the provisions set forth in Section

32A-2-19 NMSA 1978. A youthful offender or a serious youthful offender may be subject to extended commitment in the care of the department until the age of twenty-one, pursuant to the provisions of Section 32A-2-23 NMSA 1978.

          [G. A child fourteen years of age or older, charged with first degree murder, but not convicted of first degree murder and found to have committed a youthful offender offense as set forth in Subsection I of Section 32A-2-3 NMSA 1978, is subject to the dispositions set forth in this section.

          H.] G. A child fourteen years of age or older [charged with first degree murder, but] found to have committed a delinquent act that is neither first degree murder nor a youthful offender offense as set forth in Subsection I of Section 32A-2-3 NMSA 1978, shall be adjudicated as a delinquent offender subject to the dispositions set forth in Section

32A-2-19 NMSA 1978."

     Section 6. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2009.

- 15 -