HOUSE BILL 458

56th legislature - STATE OF NEW MEXICO - first session, 2023

INTRODUCED BY

William "Bill" R. Rehm and Luis M. Terrazas

 

 

 

 

 

AN ACT

RELATING TO CRIME; PROVIDING THAT THE PENALTY FOR A FELON IN POSSESSION OF A FIREARM OR DESTRUCTIVE DEVICE IS FIVE YEARS IMPRISONMENT; PROVIDING THAT THE PENALTY FOR A FELON IN POSSESSION OF A FIREARM DURING THE COMMISSION OF A CRIME IS SEVEN YEARS IMPRISONMENT; PROHIBITING THE TRANSFERRING OF POSSESSION OF A FIREARM OR DESTRUCTIVE DEVICE TO A FELON; PROVIDING PENALTIES.

 

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

     SECTION 1. Section 30-7-16 NMSA 1978 (being Laws 1981, Chapter 225, Section 1, as amended) is amended to read:

     "30-7-16. FIREARMS OR DESTRUCTIVE DEVICES--RECEIPT, TRANSPORTATION OR POSSESSION BY CERTAIN PERSONS--PENALTY.--

          A. It is unlawful for the following persons to receive, transport or possess a firearm or destructive device in this state:

                (1) a felon;

                (2) a person subject to an order of protection pursuant to Section 40-13-5 or 40-13A-5 NMSA 1978; or

                (3) a person convicted of any of the following crimes:

                     (a) battery against a household member pursuant to Section 30-3-15 NMSA 1978;

                     (b) criminal damage to property of a household member pursuant to Section 30-3-18 NMSA 1978;

                     (c) a first offense of stalking pursuant to Section 30-3A-3 NMSA 1978; or

                     (d) a crime listed in 18 U.S.C. 921.

          B. A felon found in possession of a firearm [shall be] or destructive device is guilty of a third degree felony and shall be sentenced in accordance with the provisions of the Criminal Sentencing Act.

          C. A [serious violent] felon [that is] found [to be] in possession of a firearm during the commission of a crime shall be guilty of a third degree felony and [notwithstanding the provisions of Section 31-18-15 NMSA 1978] shall be sentenced [to a basic term of six years imprisonment] in accordance with the provisions of the Criminal Sentencing Act.

          D. Any person subject to an order of protection pursuant to Section 40-13-5 or 40-13A-5 NMSA 1978 or convicted of a crime listed in Paragraph (3) of Subsection A of this section who receives, transports or possesses a firearm or destructive device is guilty of a misdemeanor.

          E. A person who sells, loans, gives or otherwise transfers possession of a firearm or destructive device to another whom the person knows or should have known to be prohibited from possession by this section is guilty of a fourth degree felony.

          [E.] F. As used in this section:

                (1) except as provided in Paragraph (2) of this subsection, "destructive device" means:

                     (a) any explosive, incendiary or poison gas: 1) bomb; 2) grenade; 3) rocket having a propellant charge of more than four ounces; 4) missile having an explosive or incendiary charge of more than one-fourth ounce; 5) mine; or 6) similar device;

                     (b) any type of weapon by whatever name known that will, or that may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell that is generally recognized as particularly suitable for sporting purposes; or

                     (c) any combination of parts either designed or intended for use in converting any device into a destructive device as defined in this paragraph and from which a destructive device may be readily assembled;

                (2) the term "destructive device" does not include any device that is neither designed nor redesigned for use as a weapon or any device, although originally designed for use as a weapon, that is redesigned for use as a signaling, pyrotechnic, line throwing, safety or similar device;

                (3) "felon" means a person convicted of a felony offense by a court of the United States or of any state or political subdivision thereof and:

                     (a) less than ten years have passed since the person completed serving a sentence or period of probation for the felony conviction, whichever is later;

                     (b) the person has not been pardoned for the felony conviction by the proper authority; and

                     (c) the person has not received a deferred sentence; and

                (4) "firearm" means any weapon that will or is designed to or may readily be converted to expel a projectile by the action of an explosion or the frame or receiver of any such weapon [and

                (5) "serious violent felon" means a person convicted of an offense enumerated in Subparagraphs (a) through (n) of Paragraph (4) of Subsection L of Section 33-2-34 NMSA 1978; provided that:

                     (a) less than ten years have passed since the person completed serving a sentence or a period of probation for the felony conviction, whichever is later;

                     (b) the person has not been pardoned for the felony conviction by the proper authority; and

                     (c) the person has not received a deferred sentence and completed the total term of deferment as provided in Section 31-20-9 NMSA 1978]."

     SECTION 2. Section 31-18-15 NMSA 1978 (being Laws 1977, Chapter 216, Section 4, as amended) is amended to read:

     "31-18-15. SENTENCING AUTHORITY--NONCAPITAL FELONIES--BASIC SENTENCES AND FINES--PAROLE AUTHORITY--MERITORIOUS DEDUCTIONS.--

          A. As used in a statute that establishes a noncapital felony, the following defined felony classifications and associated basic sentences of imprisonment are as follows:

FELONY CLASSIFICATION           BASIC SENTENCE

first degree felony

resulting in the death 

of a child                      life imprisonment

first degree felony for

aggravated criminal sexual

penetration                     life imprisonment

first degree felony             eighteen years imprisonment

second degree felony

resulting in the death of

a human being                   fifteen years imprisonment

second degree felony for a

sexual offense against a

child                           fifteen years imprisonment

second degree felony for

sexual exploitation of

children                        twelve years imprisonment

second degree felony            nine years imprisonment

third degree felony resulting

in the death of a human being   six years imprisonment

third degree felony for a

sexual offense against a

child                           six years imprisonment

third degree felony for sexual

exploitation of children        eleven years imprisonment

third degree felony for

possession of a firearm or

destructive device by a felon

pursuant to Subsection B of

Section 30-7-16 NMSA 1978       five years imprisonment

third degree felony for

possession of a firearm by a

felon during the commission

of a crime pursuant to

Subsection C of Section

30-7-16 NMSA 1978               seven years imprisonment

third degree felony             three years imprisonment

fourth degree felony for

sexual exploitation of

children                        ten years imprisonment

fourth degree felony            eighteen months imprisonment.

          B. The appropriate basic sentence of imprisonment shall be imposed upon a person convicted and sentenced pursuant to Subsection A of this section, unless the court alters the sentence pursuant to the provisions of the Criminal Sentencing Act.

          C. A period of parole shall be imposed only for felony convictions wherein a person is sentenced to imprisonment of more than one year, unless the parties to a proceeding agree that a period of parole should be imposed. If a period of parole is imposed, the court shall include in the judgment and sentence of each person convicted and sentenced to imprisonment in a corrections facility designated by the corrections department authority for a period of parole to be served in accordance with the provisions of Section 31-21-10 NMSA 1978 after the completion of any actual time of imprisonment and authority to require, as a condition of parole, the payment of the costs of parole services and reimbursement to a law enforcement agency or local crime stopper program in accordance with the provisions of that section. If imposed, the period of parole shall be deemed to be part of the sentence of the convicted person in addition to the basic sentence imposed pursuant to Subsection A of this section together with alterations, if any, pursuant to the provisions of the Criminal Sentencing Act.

          D. When a court imposes a sentence of imprisonment pursuant to the provisions of Section 31-18-15.1, 31-18-16 or 31-18-17 NMSA 1978 and suspends or defers the basic sentence of imprisonment provided pursuant to the provisions of Subsection A of this section, the period of parole shall be served in accordance with the provisions of Section 31-21-10 NMSA 1978 for the degree of felony for the basic sentence for which the inmate was convicted. For the purpose of designating a period of parole, a court shall not consider that the basic sentence of imprisonment was suspended or deferred and that the inmate served a period of imprisonment pursuant to the provisions of the Criminal Sentencing Act.

          E. The court may, in addition to the imposition of a basic sentence of imprisonment, impose a fine not to exceed:

                (1) for a first degree felony resulting in the death of a child, seventeen thousand five hundred dollars ($17,500);

                (2) for a first degree felony for aggravated criminal sexual penetration, seventeen thousand five hundred dollars ($17,500);

                (3) for a first degree felony, fifteen thousand dollars ($15,000);

                (4) for a second degree felony resulting in the death of a human being, twelve thousand five hundred dollars ($12,500);

                (5) for a second degree felony for a sexual offense against a child, twelve thousand five hundred dollars ($12,500);

                (6) for a second degree felony for sexual exploitation of children, five thousand dollars ($5,000);

                (7) for a second degree felony, ten thousand dollars ($10,000);

                (8) for a third degree felony resulting in the death of a human being, five thousand dollars ($5,000);

                (9) for a third degree felony for a sexual offense against a child, five thousand dollars ($5,000);

                (10) for a third degree felony for sexual exploitation of children, five thousand dollars ($5,000);

                (11) for a third or fourth degree felony, five thousand dollars ($5,000); or

                (12) for a fourth degree felony for sexual exploitation of children, five thousand dollars ($5,000).

          F. When the court imposes a sentence of imprisonment for a felony offense, the court shall indicate whether or not the offense is a serious violent offense as defined in Section 33-2-34 NMSA 1978. The court shall inform an offender that the offender's sentence of imprisonment is subject to the provisions of Sections 33-2-34, 33-2-36, 33-2-37 and 33-2-38 NMSA 1978. If the court fails to inform an offender that the offender's sentence is subject to those provisions or if the court provides the offender with erroneous information regarding those provisions, the failure to inform or the error shall not provide a basis for a writ of habeas corpus.

          G. No later than October 31 of each year, the New Mexico sentencing commission shall provide a written report to the secretary of corrections, all New Mexico criminal court judges, the administrative office of the district attorneys and the chief public defender. The report shall specify the average reduction in the sentence of imprisonment for serious violent offenses and nonviolent offenses, as defined in Section 33-2-34 NMSA 1978, due to meritorious deductions earned by prisoners during the previous fiscal year pursuant to the provisions of Sections 33-2-34, 33-2-36, 33-2-37 and 33-2-38 NMSA 1978. The corrections department shall allow the commission access to documents used by the department to determine earned meritorious deductions for prisoners."

     SECTION 3. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2023.