SENATE BILL 120

55th legislature - STATE OF NEW MEXICO - second session, 2022

INTRODUCED BY

Martin Hickey

AN ACT

RELATING TO CRIMINAL SENTENCING; ENHANCING THE SENTENCES FOR SECOND AND SUBSEQUENT INSTANCES OF BRANDISHING A FIREARM DURING THE COMMISSION OF A NONCAPITAL FELONY.

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

     SECTION 1. Section 31-18-16 NMSA 1978 (being Laws 1977, Chapter 216, Section 5, as amended) is amended to read:

     "31-18-16. BRANDISHING OF FIREARM--ALTERATION OF BASIC SENTENCE--SUSPENSION AND DEFERRAL LIMITED.--

          A. When a separate finding of fact by the court or jury shows that a firearm was brandished in the commission of a noncapital felony, the basic sentence of imprisonment prescribed for the offense in Section 31-18-15 NMSA 1978 shall be increased by [three] five years, except that when the offender is a serious youthful offender or a youthful offender, the sentence imposed by this subsection may be increased by one year.

          B. For a second [or subsequent] noncapital felony in which a firearm is brandished, the basic sentence of imprisonment prescribed in Section 31-18-15 NMSA 1978 shall be increased by [five] seven years, except that when the offender is a serious youthful offender or a youthful offender, the sentence imposed by this subsection may be increased by three years.

          C. For a third or subsequent noncapital felony in which a firearm is brandished, the basic sentence of imprisonment prescribed in Section 31-18-15 NMSA 1978 shall be increased by nine years, except that when the offender is a serious youthful offender or a youthful offender, the sentence imposed by this subsection may be increased by five years.

          [C.] D. If the case is tried before a jury and if a prima facie case has been established showing that a firearm was brandished in the commission of the offense, 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 a firearm was brandished in the commission of the offense, the court shall decide the issue and shall make a separate finding of fact thereon.

          [D.] E. As used in this section, "brandished" means displaying or making a firearm known to another person while the firearm is present on the person of the offending party with intent to intimidate or injure a person."

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