SENATE BILL 202

52nd legislature - STATE OF NEW MEXICO - second session, 2016

INTRODUCED BY

Bill B. O’Neill and Sharon Clahchischilliage

AN ACT

RELATING TO CRIMINAL LAW; PROVIDING FOR THE ALTERATION OF A BASIC SENTENCE WHEN A CRIME IS MOTIVATED BY HATE AGAINST A HOMELESS PERSON; AMENDING THE HATE CRIMES ACT.

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

     SECTION 1. Section 31-18B-1 NMSA 1978 (being Laws 2003, Chapter 384, Section 1) is amended to read:

     "31-18B-1. SHORT TITLE.--[This act] Chapter 31, Article 18B NMSA 1978 may be cited as the "Hate Crimes Act"."

     SECTION 2. Section 31-18B-2 NMSA 1978 (being Laws 2003, Chapter 384, Section 2, as amended) is amended to read:

     "31-18B-2. DEFINITIONS.--As used in the Hate Crimes Act:

          A. "age" means sixty years of age or older;

          B. "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 or opposed to the person's physical anatomy, chromosomal sex or sex at birth;

          C. "disability" means that the person has a physical or mental disability that substantially limits one or more of that person's functions, such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working;

          D. "homelessness" means that a person lacks a fixed, regular and adequate nighttime residence or has a primary nighttime residence that is:

                (1) a place not designated for or ordinarily used as a regular sleeping accommodation for human beings; or

                (2) a publicly or privately operated shelter designed to provide temporary living accommodations;

          [D.] E. "motivated by hate" means the commission of a crime with the intent to commit the crime because of the actual or perceived race, religion, color, national origin, ancestry, age, [handicapped status] disability, homelessness, gender, sexual orientation or gender identity of the victim, whether or not the offender's belief or perception was correct; and

          [E.] F. "sexual orientation" means heterosexuality, homosexuality or bisexuality, whether actual or perceived."

     SECTION 3. Section 31-18B-3 NMSA 1978 (being Laws 2003, Chapter 384, Section 3, as amended) is amended to read:

     "31-18B-3. HATE CRIMES--NONCAPITAL FELONIES, MISDEMEANORS OR PETTY MISDEMEANORS [COMMITTED BECAUSE OF THE VICTIM'S ACTUAL OR PERCEIVED RACE, RELIGION, COLOR, NATIONAL ORIGIN, ANCESTRY, AGE, DISABILITY, GENDER, SEXUAL ORIENTATION OR GENDER IDENTITY]--ALTERATION OF BASIC SENTENCE.--

          A. When a separate finding of fact by the court or jury shows beyond a reasonable doubt that an offender committed a noncapital felony motivated by hate, the basic sentence of imprisonment prescribed for the offense in Section 31-18-15 NMSA 1978 may be increased by one year. An increase in the basic sentence of imprisonment pursuant to the provisions of this subsection shall be in addition to an increase in a basic sentence prescribed for the offense in Section 31-18-17 NMSA 1978. A sentence imposed pursuant to the provisions of this subsection may include an alternative sentence that requires community service, treatment, education or any combination thereof. The court may suspend or defer any or all of the sentence or grant a conditional discharge, unless otherwise provided by law.

          B. If a finding was entered in a previous case that the offender was convicted for committing a crime that was motivated by hate, and if a separate finding of fact by the court or jury shows beyond a reasonable doubt that in the instant case the offender committed a noncapital felony that was motivated by hate, the basic sentence of imprisonment prescribed for the offense in Section 31-18-15 NMSA 1978 may be increased by two years. An increase in the basic sentence of imprisonment pursuant to the provisions of this subsection shall be in addition to an increase in a basic sentence prescribed for the offense in Section 31-18-17 NMSA 1978. A sentence imposed pursuant to the provisions of this subsection may include an alternative sentence that requires community service, treatment, education or any combination thereof. The court may suspend or defer any or all of the sentence, or grant a conditional discharge unless otherwise provided by law.

          C. 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 the offender was motivated by hate, 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 the offender was motivated by hate, the court shall decide the issue and shall make a separate finding of fact regarding the issue. If the court or jury determines that the offender is guilty of the crime and finds beyond a reasonable doubt that the offender was motivated by hate, the court shall include that determination in the judgment and sentence.

          D. When a petty misdemeanor or a misdemeanor is motivated by hate, the basic sentence of imprisonment prescribed for the offense in Section 31-19-1 NMSA 1978 may include an alternative sentence that requires community service, treatment, education or any combination thereof. The court may suspend or defer any or all of the sentence or grant a conditional discharge, unless otherwise provided by law."

     SECTION 4. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2016.

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