0001| HOUSE BILL 376
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0002| 42ND LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION,
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0003| 1996
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0004| INTRODUCED BY
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0005| JERRY LEE ALWIN
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0006|
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0007|
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0008|
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0009|
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0010|
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0011| AN ACT
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0012| RELATING TO JUVENILE JUSTICE; CHANGING THE AGE DESIGNATIONS FOR
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0013| SERIOUS YOUTHFUL OFFENDERS AND YOUTHFUL OFFENDERS; SPECIFYING
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0014| CONDITIONS OF PAROLE FOR ADJUDICATED YOUTHFUL OFFENDERS;
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0015| PROVIDING VICTIMS WITH NOTICE OF CHILDREN'S COURT PROCEEDINGS;
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0016| ESTABLISHING PROCEDURES FOR COLLECTING DAMAGE CLAIMS; EXPANDING
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0017| PARENTAL RESPONSIBILITY FOR CRIMES COMMITTED BY CHILDREN;
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0018| AMENDING SECTIONS OF THE NMSA 1978.
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0019|
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0020| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0021| Section 1. Section 31-18-15.2 NMSA 1978 (being Laws 1993,
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0022| Chapter 77, Section 1, as amended) is amended to read:
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0023| "31-18-15.2. DEFINITIONS.--As used in the Criminal
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0024| Sentencing Act:
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0025| A. "serious youthful offender" means an individual
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0001| fourteen, fifteen, sixteen or seventeen years of age who is
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0002| charged with and indicted or bound over for trial for first
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0003| degree murder; and
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0004| B. "youthful offender" means a delinquent child
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0005| subject to adult or juvenile sanctions who is:
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0006| (1) [fifteen to eighteen years of age at the
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time of the offense and who is] adjudicated for at least one of
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0008| the following offenses:
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0009| (a) second degree murder, as provided in
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0010| Section 30-2-1 NMSA 1978;
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0011| (b) assault with intent to commit a
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0012| violent felony, as provided in Section 30-3-3 NMSA 1978;
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0013| (c) kidnapping, as provided in Section
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0014| 30-4-1 NMSA 1978;
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0015| (d) aggravated battery, as provided in
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0016| Subsection C of Section 30-3-5 NMSA 1978;
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0017| (e) aggravated battery upon a peace
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0018| officer, as provided in Subsection C of Section 30-22-25 NMSA
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0019| 1978;
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0020| (f) shooting at a dwelling or occupied
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0021| building or shooting at or from a motor vehicle, which results
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0022| in great bodily harm to another person, as provided in Section
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0023| 30-3-8 NMSA 1978;
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0024| (g) dangerous use of explosives, as
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0025| provided in Section 30-7-5 NMSA 1978;
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0001| (h) criminal sexual penetration, as
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0002| provided in Section 30-9-11 NMSA 1978;
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0003| (i) robbery, as provided in Section
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0004| 30-16-2 NMSA 1978;
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0005| (j) aggravated burglary, as provided in
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0006| Section 30-16-4 NMSA 1978; or
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0007| (k) aggravated arson, as provided in
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0008| Section 30-17-6 NMSA 1978;
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0009| (2) [fifteen to eighteen years of age at the
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time of the offense and] adjudicated for any felony offense and
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0011| who has had three prior, separate felony adjudications within a
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0012| [two-year] three-year time period immediately preceding the
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0013| instant offense. The felony adjudications relied upon as prior
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0014| adjudications shall not have arisen out of the same transaction
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0015| or occurrence or series of events related in time and location.
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0016| Successful completion of consent decrees is not considered a
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0017| prior adjudication for the purposes of this paragraph; or
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0018| (3) [fifteen years of age] thirteen years of
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0019| age or younger and adjudicated for first degree murder, as
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0020| provided in Section 30-2-1 NMSA 1978."
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0021| Section 2. Section 32A-2-3 NMSA 1978 (being Laws 1993,
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0022| Chapter 77, Section 32, as amended by Laws 1995, Chapter 204,
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0023| Section 2 and by Laws 1995, Chapter 205, Section 2 and also by
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0024| Laws 1995, Chapter 206, Section 10) is amended to read:
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0025| "32A-2-3. DEFINITIONS.--As used in the Delinquency Act:
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0001| A. "delinquent act" means an act committed by a
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0002| child that would be designated as a crime under the law if
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0003| committed by an adult, including [but not limited to] the
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0004| following offenses:
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0005| (1) pursuant to municipal traffic codes or the
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0006| Motor Vehicle Code:
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0007| (a) any driving while under the influence
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0008| of intoxicating liquor or drugs;
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0009| (b) any failure to stop in the event of
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0010| an accident causing death, personal injury or damage to
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0011| property;
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0012| (c) any unlawful taking of a vehicle or
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0013| motor vehicle;
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0014| (d) any receiving or transferring of a
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0015| stolen vehicle or motor vehicle;
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0016| (e) any homicide by vehicle;
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0017| (f) any injuring or tampering with a
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0018| vehicle;
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0019| (g) any altering or changing of an engine
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0020| number or other vehicle identification numbers;
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0021| (h) any altering or forging of a driver's
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0022| license or permit or any making of a fictitious license or
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0023| permit;
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0024| (i) reckless driving;
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0025| (j) driving with a suspended or revoked
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0001| license; or
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0002| (k) any offense punishable as a felony;
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0003| (2) buying, attempting to buy, receiving,
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0004| possessing or being served any alcoholic liquor or being present
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0005| in a licensed liquor establishment, other than a restaurant or a
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0006| licensed retail liquor establishment, except in the presence of
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0007| the child's parent, guardian, custodian or adult spouse. As
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0008| used in this paragraph, "restaurant" means any establishment
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0009| where meals are prepared and served primarily for on-premises
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0010| consumption and that has a dining room, a kitchen and the
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0011| employees necessary for preparing, cooking and serving meals.
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0012| "Restaurant" does not include establishments, as defined in
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0013| regulations promulgated by the director of the special
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0014| investigations division of the department of public safety, that
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0015| serve only hamburgers, sandwiches, salads and other fast foods;
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0016| (3) any felony violation of the provisions of
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0017| Sections 17-1-1 through 17-5-9 NMSA 1978 or any regulations
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0018| adopted by the state game commission that relate to the time,
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0019| extent, means or manner that game animals, birds or fish may be
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0020| hunted, taken, captured, killed, possessed, sold, purchased or
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0021| shipped and for which a fine may be imposed or a civil damage
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0022| awarded;
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0023| (4) any violation of Section 30-29-2 NMSA 1978,
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0024| regarding the illegal use of a glue, aerosol spray product or
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0025| other chemical substance;
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0001| (5) any violation of the Controlled Substances
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0002| Act; [or]
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0003| (6) escape from the custody of a law
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0004| enforcement officer or a juvenile probation or parole officer or
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0005| from any placement made by the department by a child who has
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0006| been adjudicated a delinquent child; or
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0007| (7) any violation of Section 30-15-1.1 NMSA
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0008| 1978 regarding unauthorized graffiti on personal or real
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0009| property;
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0010| B. "delinquent child" means a child who has
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0011| committed a delinquent act;
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0012| C. "delinquent offender" means a delinquent child
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0013| who is subject to juvenile sanctions only and who is not a
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0014| youthful offender or a serious youthful offender;
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0015| D. "detention facility" means a place where a child
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0016| may be detained under the Children's Code pending court hearing
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0017| and does not include a facility for the care and rehabilitation
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0018| of an adjudicated delinquent child;
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0019| E. "felony" means an act that would be a felony if
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0020| committed by an adult;
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0021| F. "misdemeanor" means an act that would be a
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0022| misdemeanor or petty misdemeanor if committed by an adult;
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0023| G. "restitution" means financial reimbursement by
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0024| the child to the victim or community service imposed by the
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0025| court and is limited to easily ascertainable damages for injury
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0001| to or loss of property, actual expenses incurred for medical,
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0002| psychiatric and psychological treatment for injury to a person
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0003| and lost wages resulting from physical injury, which are a
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0004| direct and proximate result of a delinquent act. "Restitution"
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0005| does not include reimbursement for damages for mental anguish,
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0006| pain and suffering or other intangible losses. As used in this
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0007| subsection, "victim" means any person who is injured or suffers
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0008| damage of any kind by an act that is the subject of a complaint
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0009| or referral to law enforcement officers or juvenile probation
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0010| authorities. Nothing contained in this definition limits or
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0011| replaces the provisions of [Subsections A and B of] Section
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0012| 32A-2-27 NMSA 1978;
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0013| H. "serious youthful offender" means an individual
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0014| fourteen, fifteen sixteen or seventeen years of age who is
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0015| charged with and indicted or bound over for trial for first
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0016| degree murder. A "serious youthful offender" is not a
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0017| delinquent child as defined pursuant to the provisions of this
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0018| section; and
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0019| I. "youthful offender" means a delinquent child
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0020| subject to adult or juvenile sanctions who is:
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0021| (1) [fifteen to eighteen years of age at the
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time of the offense and who is] adjudicated for at least one of
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0023| the following offenses:
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0024| (a) second degree murder, as provided in
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0025| Section 30-2-1 NMSA 1978;
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0001| (b) assault with intent to commit a
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0002| violent felony, as provided in Section 30-3-3 NMSA 1978;
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0003| (c) kidnapping, as provided in Section
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0004| 30-4-1 NMSA 1978;
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0005| (d) aggravated battery, as provided in
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0006| Subsection C of Section 30-3-5 NMSA 1978;
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0007| (e) aggravated battery upon a peace
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0008| officer, as provided in Subsection C of Section 30-22-25 NMSA
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0009| 1978;
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0010| [(e)] (f) shooting at a dwelling or
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0011| occupied building or shooting at or from a motor vehicle, which
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0012| results in great bodily harm to another person, as provided in
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0013| Section 30-3-8 NMSA 1978;
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0014| [(f)] (g) dangerous use of
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0015| explosives, as provided in Section 30-7-5 NMSA 1978;
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0016| [(g)] (h) criminal sexual
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0017| penetration, as provided in Section 30-9-11 NMSA 1978;
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0018| [(h)] (i) robbery, as provided in
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0019| Section
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0020| 30-16-2 NMSA 1978;
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0021| [(i)] (j) aggravated burglary, as
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0022| provided in Section 30-16-4 NMSA 1978; or
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0023| [(j)] (k) aggravated arson, as
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0024| provided in Section 30-17-6 NMSA 1978;
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0025| (2) [fifteen to eighteen years of age at the
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time of the offense and] adjudicated for any felony offense and
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0002| who has had three prior, separate felony adjudications within a
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0003| three-year time period immediately preceding the instant
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0004| offense. The felony adjudications relied upon as prior
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0005| adjudications shall not have arisen out of the same transaction
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0006| or occurrence or series of events related in time and location.
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0007| Successful completion of consent decrees are not considered a
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0008| prior adjudication for the purposes of this paragraph; or
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0009| (3) [fifteen years of age] thirteen years of
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0010| age or younger and adjudicated for first degree murder, as
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0011| provided in Section 30-2-1 NMSA 1978."
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0012| Section 3. Section 32A-2-13 NMSA 1978 (being Laws 1993,
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0013| Chapter 77, Section 42) is amended to read:
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0014| "32A-2-13. DETENTION HEARING REQUIRED ON DETAINED
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0015| CHILDREN--PROBABLE CAUSE DETERMINATION--COURT DETERMINATION--DISPOSITION.--
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0016| A. When a child who has been taken into custody is
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0017| not released but is detained:
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0018| (1) a judicial determination of probable cause
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0019| shall be made by a judge or special master or magistrate within
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0020| [forty-eight] seventy-two hours, including Saturdays,
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0021| Sundays and legal holidays, except for children taken into
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0022| custody under an arrest warrant pursuant to the Children's Court
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0023| Rules and Forms. A statement by a law enforcement officer,
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0024| which shall include the charges, may be the basis of a probable
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0025| cause determination. The probable cause determination shall be
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0001| nonadversarial, may be held in the absence of the child and
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0002| counsel and may be conducted by telephone. If the court finds
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0003| no probable cause to believe the child committed an offense, the
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0004| child shall be released;
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0005| (2) a petition shall be filed within [forty-eight] seventy-two hours from the time the child is taken
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0006| into custody, excluding Saturdays, Sundays and legal holidays,
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0007| and if not filed within the stated time, the child shall be
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0008| released; and
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0009| (3) a detention hearing shall be held within
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0010| twenty-four hours, excluding Saturdays, Sundays and legal
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0011| holidays, from the time of filing the petition to determine
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0012| whether continued detention is required pursuant to the criteria
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0013| established by the Children's Code.
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0014| B. The judge may appoint one or more persons to
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0015| serve as special master on a full- or part-time basis for the
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0016| purpose of holding detention hearings. A juvenile probation and
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0017| parole officer shall not be appointed as a special master. The
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0018| judge shall approve all contracts with special masters and shall
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0019| fix their hourly compensation, subject to the approval of the
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0020| director of the administrative office of the courts.
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0021| C. Notice of the detention hearing, either oral or
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0022| written, stating the time, place and purpose of the hearing
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0023| shall be given by the person designated by the court to the
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0024| child's parents, guardian or custodian, if they can be found,
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0025| and to the child. The department shall be provided with
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0001| reasonable oral or written notification and an opportunity to be
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0002| heard. At any hearing held pursuant to this subsection, the
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0003| department may appear as a party.
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0004| D. At the commencement of the detention hearing, the
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0005| judge or special master shall advise the parties of their basic
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0006| rights provided in the Children's Code and shall appoint
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0007| counsel, guardians and custodians, if appropriate.
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0008| E. If the judge or special master finds that the
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0009| child's detention is appropriate under the criteria established
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0010| by the Children's Code, the judge or special master shall order
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0011| detention in an appropriate facility in accordance with the
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0012| Children's Code.
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0013| F. If the judge or special master finds that
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0014| detention of the child is not appropriate under the criteria
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0015| established by the Children's Code, the judge or special master
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0016| shall order the release of the child, but, in so doing, may
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0017| order one or more of the following conditions:
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0018| (1) place the child in the custody of a parent,
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0019| guardian or custodian or under the supervision of an agency
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0020| agreeing to supervise the child;
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0021| (2) place restrictions on the child's travel,
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0022| association with other persons or place of abode during the
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0023| period of the child's release; or
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0024| (3) impose any other condition deemed
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0025| reasonably necessary and consistent with the criteria for
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0001| detaining children established by the Children's Code, including
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0002| a condition requiring that the child return to custody as
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0003| required.
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0004| G. An order releasing a child on any conditions
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0005| specified in this section may at any time be amended to impose
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0006| additional or different conditions of release or to return the
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0007| child to custody or detention for failure to conform to the
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0008| conditions originally imposed.
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0009| H. At the detention hearing, all relevant and
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0010| material evidence helpful in determining the need for detention
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0011| may be admitted by the judge or special master even though it
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0012| would not be admissible in a hearing on the petition.
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0013| I. If the child is not released at the detention
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0014| hearing and a parent, guardian or custodian was not notified of
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0015| the hearing and did not appear or waive appearance at the
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0016| detention hearing, the judge or special master shall rehear the
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0017| detention matter without unnecessary delay upon the filing of an
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0018| affidavit stating the facts and a motion for rehearing."
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0019| Section 4. Section 32A-2-18 NMSA 1978 (being Laws 1993,
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0020| Chapter 77, Section 47) is amended to read:
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0021| "32A-2-18. JUDGMENT--NONCRIMINAL NATURE--[NONADMISSABILITY] NONADMISSIBILITY--CRIMINAL NATURE--ADMISSIBILITY.--
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0022| A. The court shall enter a judgment setting forth
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0023| the court's findings and disposition in the proceeding. A
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0024| judgment in proceedings on a petition under the Delinquency Act
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0025| resulting in a juvenile disposition shall not be deemed a
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0001| conviction of crime nor shall it impose any civil disabilities
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0002| ordinarily resulting from conviction of a crime nor shall it
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0003| operate to disqualify the child in any civil service application
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0004| or appointment. The juvenile disposition of a child and any
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0005| evidence given in a hearing in court shall not be admissible as
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0006| evidence against the child in any case or proceeding in any
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0007| other tribunal whether before or after reaching the age of
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0008| majority, except in sentencing proceedings after conviction of a
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0009| felony and then only for the purpose of a presentence study and
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0010| report.
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0011| B. If a judgment resulting from a youthful offender
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0012| or serious youthful offender proceeding under the Delinquency
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0013| Act results in an adult sentence, any evidence given in a
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0014| hearing in court during the proceeding shall be admissible as
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0015| evidence against the youthful offender or serious youthful
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0016| offender in any case or proceeding in any other court whether
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0017| before or after reaching the age of majority, including habitual
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0018| offender proceedings as described in Sections 31-18-17 through
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0019| 31-18-20 NMSA 1978.
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0020| C. If a judgment on a proceeding under the
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0021| Delinquency Act results in an adult sentence, the determination
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0022| of guilt at trial becomes a conviction for purposes of the
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0023| Criminal Code."
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0024| Section 5. Section 32A-2-19 NMSA 1978 (being Laws 1993,
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0025| Chapter 77, Section 48, as amended by Laws 1995, Chapter 204,
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0001| Section 3 and also by Laws 1995, Chapter 206, Section 13) is
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0002| amended to read:
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0003| "32A-2-19. DISPOSITION OF AN ADJUDICATED DELINQUENT
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0004| OFFENDER.--
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0005| A. At the conclusion of the dispositional hearing,
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0006| the court may make and include in the dispositional judgment its
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0007| findings on the following:
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0008| (1) the interaction and interrelationship of
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0009| the child with the child's [parent] parents, siblings and
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0010| any other person who may significantly affect the child's best
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0011| interests;
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0012| (2) the child's adjustment to his home, school
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0013| and community;
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0014| (3) the mental and physical health of all
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0015| individuals involved;
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0016| (4) the wishes of the child as to his
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0017| custodian;
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0018| (5) the wishes of the child's [parent]
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0019| parents as to the child's custody;
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0020| (6) whether there exists a relative of the
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0021| child or other individual who, after study by the department, is
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0022| found to be qualified to receive and care for the child;
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0023| (7) the availability of services recommended in
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0024| the predisposition report; and
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0025| (8) the ability of the parents to care for the
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0001| child in the home.
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0002| B. If a child is found to be delinquent, the court
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0003| may impose a fine not to exceed the fine that could be imposed
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0004| if the child were an adult and may enter its judgment making any
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0005| of the following dispositions for the supervision, care and
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0006| rehabilitation of the child:
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0007| (1) any disposition that is authorized for the
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0008| disposition of a neglected or abused child, in accordance with
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0009| the Abuse and Neglect Act;
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0010| (2) transfer legal custody to the department
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0011| or an agency responsible for the care and rehabilitation of
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0012| delinquent children, which shall receive the child at a facility
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0013| designated by the secretary of the department as a juvenile
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0014| reception facility. The department shall thereafter determine
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0015| the appropriate placement, supervision and rehabilitation
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0016| program for the child. The judge may include recommendations
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0017| for placement of the child. Commitments are subject to
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0018| limitations and modifications set forth in Section 32A-2-23 NMSA
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0019| 1978. The types of commitments include:
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0020| (a) a short-term commitment of one year;
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0021| (b) a long-term commitment for no more
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0022| than two years in a long-term facility for the care and
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0023| rehabilitation of adjudicated delinquent children; or
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0024| (c) if the child is a youthful offender,
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0025| a commitment to age twenty-one, unless sooner discharged
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0001| pursuant to the provisions of Section 32A-2-23 NMSA 1978, to be
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0002| followed by a mandatory parole period of not less than one year
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0003| following discharge or release from a commitment. An additional
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0004| period of parole beyond the mandatory one-year period may be
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0005| assigned by the juvenile parole board, based upon the board's
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0006| consideration of the following factors: 1) the seriousness of
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0007| the offense; 2) whether the offense was committed in an
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0008| aggressive, violent, premeditated or willful manner; 3) whether
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0009| the offense was against persons or against property, greater
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0010| weight being given to offenses against persons, especially if
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0011| personal injury resulted; 4) the sophistication and maturity of
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0012| the child; 5) the record and previous history of the child; 6)
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0013| the prospects for adequate protection of the public and the
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0014| likelihood of rehabilitation of the child by the use of
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0015| procedures, services and facilities currently available; 7) the
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0016| child's prospects for successfully complying with the terms and
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0017| conditions of parole; 8) the child's behavior during the period
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0018| of his commitment; 9) the child's demeanor and attitude during
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0019| his juvenile parole board hearings; and 10) any other relevant
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0020| factor, provided that factor is stated on the record;
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0021| (3) place the child on probation under those
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0022| conditions and limitations as the court may prescribe;
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0023| (4) place the child in a local detention
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0024| facility that has been certified in accordance with the
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0025| provisions of Section 32A-2-4 NMSA 1978 for a period not to
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0001| exceed fifteen days within a three hundred sixty-five-day time
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0002| period;
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0003| (5) if a child is found to be delinquent solely
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0004| on the basis of Paragraph (3) of Subsection A of Section 32A-2-3
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0005| NMSA 1978, the court shall only enter a judgment placing the
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0006| child on probation or ordering restitution or imposing a fine
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0007| not to exceed the fine that could be imposed if the child were
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0008| an adult or any combination of these dispositions; or
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0009| (6) if a child is found to be delinquent solely
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0010| on the basis of Paragraph (2), (4) or (5) of Subsection A of
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0011| Section 32A-2-3 NMSA 1978, the court may make any disposition
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0012| provided by this section and may enter its judgment placing the
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0013| child on probation and, as a condition of probation, transfer
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0014| custody of the child to the department for a period not to
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0015| exceed six months without further order of the court; provided
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0016| that this transfer shall not be made unless the court first
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0017| determines that the department is able to provide or contract
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0018| for adequate and appropriate treatment for the child and that
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0019| the treatment is likely to be beneficial.
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0020| C. When the child is an Indian child, the Indian
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0021| child's cultural needs shall be considered in the dispositional
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0022| judgment and reasonable access to cultural practices and
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0023| traditional treatment shall be provided.
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0024| D. No child found to be delinquent shall be
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0025| committed or transferred to a penal institution or other
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0001| facility used for the execution of sentences of persons
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0002| convicted of crimes.
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0003| E. Whenever the court vests legal custody in an
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0004| agency, institution or department, it shall transmit with the
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0005| dispositional judgment copies of the clinical reports,
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0006| predisposition study and report and other information it has
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0007| pertinent to the care and treatment of the child.
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0008| F. Prior to any child being placed in the custody of
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0009| the department, the department shall be provided with reasonable
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0010| oral or written notification and an opportunity to be heard.
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0011| G. In addition to any other disposition pursuant to
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0012| this section or any other penalty provided by law, if a child
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0013| fifteen years of age or older is adjudicated delinquent on the
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0014| basis of Paragraph (2), (4) or (5) of Subsection A of Section
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0015| 32A-2-3 NMSA 1978, the child's driving privileges may be denied
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0016| or the child's driver's license may be revoked for a period of
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0017| ninety days. For a second or a subsequent adjudication, the
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0018| child's driving privileges may be denied or the child's driver's
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0019| license revoked for a period of one year. Within twenty-four
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0020| hours of the dispositional judgment, the court may send to the
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0021| motor vehicle division of the taxation and revenue department
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0022| the order adjudicating delinquency. Upon receipt of an order
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0023| from the court adjudicating delinquency, the director of the
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0024| motor vehicle division of the taxation and revenue department
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0025| may revoke or deny the delinquent's driver's license or driving
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0001| privileges. Nothing in this section may prohibit the delinquent
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0002| from applying for a limited driving privilege pursuant to
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0003| Section 66-5-35 NMSA 1978, and nothing in this section precludes
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0004| the delinquent's participation in an appropriate educational,
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0005| counseling or rehabilitation program.
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0006| H. In addition to any other disposition pursuant to
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0007| this section or any other penalty provided by law, when a child
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0008| is adjudicated delinquent on the basis of Paragraph (7) of
|
0009| Subsection A of Section 32A-2-3 NMSA 1978, the child shall
|
0010| perform the mandatory community service set forth in Section
|
0011| 30-15-1.1 NMSA 1978. When a child fails to completely perform
|
0012| the mandatory community service, the name and address of the
|
0013| child's parent or legal guardian shall be published in a
|
0014| newspaper of general circulation, accompanied by a notice that
|
0015| he is the parent or legal guardian of a child adjudicated
|
0016| delinquent for committing graffiti."
|
0017| Section 6. Section 32A-2-20 NMSA 1978 (being Laws 1993,
|
0018| Chapter 77, Section 49, as amended) is amended to read:
|
0019| "32A-2-20. DISPOSITION OF A YOUTHFUL OFFENDER.--
|
0020| A. The court has the discretion to invoke either an
|
0021| adult sentence or juvenile sanctions on a youthful offender.
|
0022| The children's court attorney shall file a notice of intent to
|
0023| invoke an adult sentence within ten working days of the filing
|
0024| of the petition, provided that the court may extend the time for
|
0025| filing of the notice of intent to invoke an adult sentence, for
|
0001| good cause shown, prior to the adjudicatory hearing. A
|
0002| preliminary hearing by the court or a hearing before a grand
|
0003| jury shall be held, within ten days after the filing of the
|
0004| intent to invoke an adult sentence, to determine whether
|
0005| probable cause exists to support the allegations contained in
|
0006| the petition.
|
0007| B. If the children's court attorney has filed a
|
0008| notice of intent to invoke an adult sentence and the child is
|
0009| adjudicated as a 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)] find that the child is not eligible for
|
0014| commitment to an institution for the developmentally disabled or
|
0015| mentally disordered in order to invoke an adult sentence.
|
0016| C. In [making the findings set forth in Subsection
|
B of this section] determining whether to invoke an adult
|
0018| sentence, the judge shall consider the following factors:
|
0019| (1) the seriousness of the alleged offense;
|
0020| (2) whether the alleged offense was committed
|
0021| in an aggressive, violent, premeditated or willful manner;
|
0022| (3) whether the alleged offense was against
|
0023| persons or against property, greater weight being given to
|
0024| offenses against persons, especially if personal injury
|
0025| resulted;
|
0001| (4) the sophistication and maturity of the
|
0002| child [as determined by consideration of the child's home,
|
environmental situation, emotional attitude and pattern of
|
living];
|
0005| (5) the record and previous history of the
|
0006| child;
|
0007| (6) the prospects for adequate protection of
|
0008| the public; [and]
|
0009| (7) the likelihood of [reasonable]
|
0010| rehabilitation of the child by the use of procedures, services
|
0011| and facilities currently available; and
|
0012| [(7)] (8) any other relevant factor,
|
0013| provided that factor is stated on the record.
|
0014| D. If the court invokes an adult sentence, the court
|
0015| may sentence the child to less than, but shall not exceed, the
|
0016| mandatory adult sentence. A youthful offender given an adult
|
0017| sentence shall be treated as an adult offender and shall be
|
0018| transferred to the legal custody of an agency responsible for
|
0019| incarceration of persons sentenced to adult sentences. This
|
0020| transfer terminates the jurisdiction of the court over the child
|
0021| with respect to the delinquent acts alleged in the petition.
|
0022| E. If a juvenile disposition is appropriate, the
|
0023| court shall follow the provisions set forth in Section
|
0024| 32A-2-19 NMSA 1978. A youthful offender may be subject to
|
0025| extended commitment in the care of the department until the age
|
0001| of twenty-one, pursuant to the provisions of Section 32A-2-23
|
0002| NMSA 1978.
|
0003| F. A fourteen, fifteen, sixteen or seventeen year
|
0004| old child charged with first degree murder, but convicted of an
|
0005| offense less than first degree murder, is subject to the
|
0006| dispositions set forth in this section."
|
0007| Section 7. Section 32A-2-23 NMSA 1978 (being Laws 1993,
|
0008| Chapter 77, Section 52, as amended) is amended to read: "32A-2-23. LIMITATIONS ON DISPOSITIONAL JUDGMENTS--MODIFICATION--TERMINATION OR EXTENSION OF COURT ORDERS.--
|
0009| A. A judgment transferring legal custody of an
|
0010| adjudicated delinquent child to an agency responsible for the
|
0011| care and rehabilitation of delinquent children divests the court
|
0012| of jurisdiction at the time of transfer of custody, unless the
|
0013| transfer of legal custody is for a commitment not exceeding
|
0014| fifteen days pursuant to the provisions of Section 32A-2-19 NMSA
|
0015| 1978, in which case the court retains jurisdiction, and:
|
0016| (1) the juvenile parole board pursuant to the
|
0017| Juvenile Parole Board Act has the exclusive power to parole or
|
0018| release the child;
|
0019| (2) the supervision of a child after release
|
0020| under Paragraph (1) of this subsection may be conducted by the
|
0021| juvenile parole board in conjunction with the department or any
|
0022| other suitable state agency or under any contractual
|
0023| arrangements the juvenile parole board deems appropriate; and (3) the period of time a child absconds from
|
0024| parole or probation supervision shall toll all time limits for
|
0025| the requirement of filing a petition to revoke probation or
|
0001| parole and shall toll the computation of the period of probation
|
0002| or parole supervision pursuant to the provisions of the
|
0003| Delinquency Act.
|
0004| B. A judgment of probation or protective supervision
|
0005| shall remain in force for an indeterminate period not to exceed
|
0006| the term of commitment from the date entered.
|
0007| C. A [child] delinquent offender shall be
|
0008| released by an agency and probation or supervision shall be
|
0009| terminated by juvenile probation and parole services or the
|
0010| agency providing supervision when it appears that the purpose of
|
0011| the order has been achieved before the expiration of the period
|
0012| of the judgment. A youthful offender may be released from
|
0013| department custody only by the juvenile parole board. A
|
0014| release or termination and the reasons therefor shall be
|
0015| reported promptly to the court in writing by the releasing
|
0016| authority.
|
0017| D. Prior to the expiration of a long-term
|
0018| commitment, as provided for in Section 32A-2-19 NMSA 1978, the
|
0019| court may extend the judgment for additional periods of one year
|
0020| until the child reaches the age of twenty-one if the court finds
|
0021| that the extension is necessary to safeguard the welfare of the
|
0022| child or the public interest.
|
0023| E. Prior to the expiration of a judgment of
|
0024| probation, the court may extend the judgment for an additional
|
0025| period of one year until the child reaches the age of twenty-one
|
0001| if the court finds that the extension is necessary to protect
|
0002| the community or to safeguard the welfare of the child.
|
0003| F. The court may dismiss a motion if it finds after
|
0004| preliminary investigation that the motion is without substance.
|
0005| If the court is of the opinion that the matter should be
|
0006| reviewed, it may, upon notice to all necessary parties,
|
0007| including a victim of an offense for which a child was
|
0008| adjudicated as a delinquent offender or a youthful offender,
|
0009| proceed to a hearing in the manner provided for hearings on
|
0010| petitions alleging delinquency. The court may terminate a
|
0011| judgment if it finds that the child is no longer in need of
|
0012| care, supervision or rehabilitation or it may enter a judgment
|
0013| extending or modifying the original judgment if it finds that
|
0014| action necessary to safeguard the child or the public interest.
|
0015| G. A child may make a motion to modify a children's
|
0016| court or adult disposition within thirty days of the judge's
|
0017| decision. If the court is of the opinion that the matter should
|
0018| be reviewed, it may, upon notice to all necessary parties,
|
0019| including a victim of an offense for which a child was
|
0020| adjudicated as a delinquent offender or a youthful offender,
|
0021| proceed to a hearing in the manner provided for hearings on
|
0022| petitions alleging delinquency."
|
0023| Section 8. Section 32A-2-26 NMSA 1978 (being Laws 1993,
|
0024| Chapter 77, Section 55) is amended to read:
|
0025| "32A-2-26. SEALING OF RECORDS.--
|
0001| A. On motion by or on behalf of an individual who
|
0002| has been the subject of a delinquency petition or on the court's
|
0003| own motion, the court shall vacate its findings, orders and
|
0004| judgments on the petition and order the legal and social files
|
0005| and records of the court, probation services and any other
|
0006| agency in the case sealed [and]. If requested in the motion,
|
0007| the court shall also order law enforcement files and records
|
0008| sealed. An individual adjudicated as a serious youthful
|
0009| offender or a youthful offender may not file a motion with the
|
0010| court for the purpose of sealing records or files. An order
|
0011| sealing records and files shall be entered if the court finds
|
0012| that:
|
0013| (1) two years have elapsed since the final
|
0014| release of the individual from legal custody and supervision or
|
0015| two years have elapsed since the entry of any other judgment not
|
0016| involving legal custody or supervision; and
|
0017| (2) the individual has not, within the two
|
0018| years immediately prior to filing the motion, been convicted of
|
0019| a felony or of a misdemeanor involving moral turpitude or been
|
0020| found delinquent by a court and no proceeding is pending seeking
|
0021| such a conviction or finding.
|
0022| B. Reasonable notice of the motion shall be given
|
0023| to:
|
0024| (1) the children's court attorney;
|
0025| (2) the authority granting the release;
|
0001| (3) the law enforcement officer, department and
|
0002| central depository having custody of the law enforcement files
|
0003| and records if those records are included in the motion; [and]
|
0004| (4) any other agency having custody of records
|
0005| or files subject to the sealing order; and
|
0006| (5) a victim of an offense for which a child
|
0007| was adjudicated as a delinquent offender.
|
0008| C. Upon the entry of the sealing order, the
|
0009| proceedings in the case shall be treated as if they never
|
0010| occurred and all index references shall be deleted [and]. The
|
0011| court, law enforcement officers and departments and agencies
|
0012| shall reply, and the individual may reply, to an inquiry that no
|
0013| record exists with respect to such person. Copies of the
|
0014| sealing order shall be sent to each agency or official named in
|
0015| the order.
|
0016| D. Inspection of the files and records or the
|
0017| release of information in the records included in the sealing
|
0018| order may thereafter be permitted by the court only:
|
0019| (1) upon motion by the individual who is the
|
0020| subject of the records and only to those persons named in the
|
0021| motion; and
|
0022| (2) in its discretion, in an individual case,
|
0023| to any clinic, hospital or agency that has the individual under
|
0024| care or treatment or to persons engaged in fact finding or
|
0025| research.
|
0001| E. Any finding of delinquency or need of services or
|
0002| conviction of a crime subsequent to the sealing order may at the
|
0003| court's discretion be used by the court as a basis to set aside
|
0004| the sealing order.
|
0005| F. A person who has been the subject of a petition
|
0006| filed pursuant to the provisions of the Delinquency Act shall be
|
0007| notified in writing by the juvenile probation and parole officer
|
0008| of the right to have records sealed at the expiration of the
|
0009| disposition."
|
0010| Section 9. Section 32A-2-27 NMSA 1978 (being Laws 1993,
|
0011| Chapter 77, Section 56) is amended to read:
|
0012| "32A-2-27. INJURY TO PERSON OR DESTRUCTION OF PROPERTY--LIABILITY--COSTS AND ATTORNEYS' FEES--RESTITUTION.--
|
0013| A. Any person may recover damages [not to exceed
|
four thousand dollars ($4,000) in a civil action in a court or
|
tribunal of competent jurisdiction] from the parent, guardian
|
0016| or custodian having custody and control of a child when the
|
0017| child has maliciously or willfully injured a person or damaged,
|
0018| destroyed or deprived use of property, real or personal,
|
0019| belonging to the person bringing the action.
|
0020| B. A person's damage claim may be filed as a civil
|
0021| action in a court of competent jurisdiction or may be filed in
|
0022| the court that has jurisdiction over the disposition of the
|
0023| child who allegedly caused the damages. When a person's damage
|
0024| claim is filed in the court that has jurisdiction over the
|
0025| disposition of the child who allegedly caused the damages, the
|
0001| court may award damages to the person regardless of whether the
|
0002| child is adjudicated as a delinquent offender or a youthful
|
0003| offender. A judgment for damages, issued by the court that has
|
0004| disposition over the child who allegedly caused the damages,
|
0005| shall be enforced in the same manner as a judgment for damages
|
0006| resulting from a civil action in a court of competent
|
0007| jurisdiction.
|
0008| [B.] C. Recovery of damages under this section
|
0009| is limited to the actual damages proved in the action, [not to
|
exceed four thousand dollars ($4,000)] taxable court costs and,
|
0011| in the discretion of the court, reasonable attorneys' fees to be
|
0012| fixed by the court or tribunal.
|
0013| [C.] D. Nothing contained in this section limits
|
0014| the discretion of the court to issue an order requiring damages
|
0015| or restitution to be paid by the child when the child has been
|
0016| found to be within the provisions of the Delinquency Act.
|
0017| [D.] E. Nothing contained in this section shall
|
0018| be construed so as to impute liability to any foster parent."
|
0019| Section 10. Section 32A-2-28 NMSA 1978 (being Laws 1993,
|
0020| Chapter 77, Section 57) is amended to read:
|
0021| "32A-2-28. PARENTAL RESPONSIBILITY.--
|
0022| A. In any complaint alleging delinquency or any
|
0023| petition seeking a youthful offender disposition, a parent of
|
0024| the child alleged to be delinquent [may] or a youthful
|
0025| offender shall be made a party in the complaint or petition,
|
0001| unless the court finds that making a parent a party in the
|
0002| petition would be detrimental to the child's rehabilitation
|
0003| program. If a parent is made a party and if a child is
|
0004| adjudicated a delinquent or youthful offender, the court may
|
0005| order the parent or parents to submit to counseling, participate
|
0006| in any probation, [or other] treatment program,
|
0007| rehabilitation program or other program ordered by the court
|
0008| and, if the child is committed for institutionalization,
|
0009| participate in any institutional treatment or counseling
|
0010| program, including attendance at the site of the institution.
|
0011| The court shall order the [parent] parents to support the
|
0012| child committed for institutionalization, placed on supervised
|
0013| probation or parole or placed in a rehabilitation or treatment
|
0014| program by paying the reasonable costs of support, maintenance,
|
0015| [and] treatment or supervised probation or parole of the
|
0016| child that the parent is financially able to pay. The court may
|
0017| use the child support guidelines set forth in Section 40-4-11.1
|
0018| NMSA 1978 to calculate a reasonable payment.
|
0019| B. A child shall be responsible for payments that
|
0020| defray the reasonable costs of his support, maintenance,
|
0021| treatment or supervised probation or parole, following the date
|
0022| that he is emancipated or reaches eighteen years of age. The
|
0023| court may order such payments by the child.
|
0024| C. Payments by a child or his parent that defray the
|
0025| reasonable costs of the child's support, maintenance, treatment
|
0001| or supervised probation or parole shall be made to the juvenile
|
0002| justice division of the department. The department is
|
0003| responsible for collection of the payments.
|
0004| [B.] D. If a fine is imposed against a child by
|
0005| a court of this state, the [parent] parents of the child
|
0006| [is not] are liable to pay the fine unless the court finds
|
0007| that the parents adequately supervised the child.
|
0008| [C.] E. The court may enforce any of its orders
|
0009| issued pursuant to this section by use of its contempt power."
|
0010| Section 11. Section 32A-2-32 NMSA 1978 (being Laws 1993,
|
0011| Chapter 77, Section 61) is amended to read:
|
0012| "32A-2-32. CONFIDENTIALITY--RECORDS.--
|
0013| A. All social records, including diagnostic
|
0014| evaluation, psychiatric reports, medical reports, social studies
|
0015| reports, pre-parole reports and supervision histories obtained
|
0016| by the juvenile probation office, parole officers and juvenile
|
0017| parole board or in possession of the department, are privileged
|
0018| and shall not be disclosed directly or indirectly to the public.
|
0019| For the purposes of this section, names and referral histories
|
0020| are not privileged and may be disclosed to the public.
|
0021| B. The records described in Subsection A of this
|
0022| section shall be open to inspection only by:
|
0023| (1) court personnel;
|
0024| (2) court-appointed special advocates;
|
0025| (3) the child's guardian ad litem;
|
0001| (4) department personnel;
|
0002| (5) any local substitute care review board or
|
0003| any agency contracted to implement local substitute care review
|
0004| boards;
|
0005| (6) corrections department personnel;
|
0006| (7) law enforcement officials;
|
0007| (8) district attorneys;
|
0008| (9) any state government social services agency
|
0009| in any state;
|
0010| (10) those persons or entities of a child's
|
0011| Indian tribe specifically authorized to inspect such records
|
0012| pursuant to the federal Indian Child Welfare Act of 1978 or any
|
0013| regulations promulgated thereunder;
|
0014| (11) tribal juvenile justice system and social
|
0015| service representatives;
|
0016| (12) a foster parent, if the records are those
|
0017| of a child currently placed with that foster parent or of a
|
0018| child being considered for placement with that foster parent
|
0019| when the records concern the social, medical, psychological or
|
0020| educational needs of the child;
|
0021| (13) school personnel involved with the child
|
0022| if the records concern the child's social or educational needs;
|
0023| (14) health care or mental health professionals
|
0024| involved in the evaluation or treatment of the child, the
|
0025| child's parents, guardians or custodian or other family
|
0001| members; (15) representatives of the protection
|
0002| and advocacy system, pursuant to the provisions of the federal
|
0003| Developmental Disabilities Assistance and Bill of Rights Act and
|
0004| the federal Protection and Advocacy for Mentally Ill Individuals
|
0005| Amendments Act of 1991; and
|
0006| (16) any other person or entity, by order of
|
0007| the court, having a legitimate interest in the case or the work
|
0008| of the court.
|
0009| C. Whoever intentionally and unlawfully releases any
|
0010| information or records closed to the public pursuant to this
|
0011| section or releases or makes other unlawful use of records in
|
0012| violation of this section is guilty of a petty misdemeanor."
|
0013| Section 12. EFFECTIVE DATE.--The effective date of the
|
0014| provisions of this act is July 1, 1996.
|
0015|
|