45th legislature - STATE OF NEW MEXICO - first session, 2001

RELATING TO CRIMINAL SENTENCING; PROVIDING INCREASES IN BASIC SENTENCES OF IMPRISONMENT WHEN A CRIME IS INTENTIONALLY COMMITTED AGAINST CERTAIN PERSONS OR THEIR PROPERTY; ENACTING A NEW SECTION OF THE CRIMINAL SENTENCING ACT.

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

Section 1. A new section of the Criminal Sentencing Act is enacted to read:

"[NEW MATERIAL] NONCAPITAL FELONIES, MISDEMEANORS OR PETTY MISDEMEANORS AGAINST A PERSON OR PROPERTY BECAUSE OF BIAS OR PREJUDICE--ALTERATION OF BASIC SENTENCE--SUSPENSION AND DEFERRAL LIMITED.--

A. When a separate finding of fact by a court or jury shows beyond a reasonable doubt that an offender committed an offense in which a person was intentionally assaulted or battered or his property was intentionally damaged primarily because of the offender's bias or prejudice against a group to which that person belongs, whether or not the offender's belief or perception that the person is a member of that group is correct, the basic sentence of imprisonment prescribed for the offense in Section 31-19-1 or 31-18-15 NMSA 1978 may be increased by:

(1) thirty days for an offender's first petty misdemeanor and, in addition without limitation, may include an alternative sentence, including community service, counseling or education. The sentence imposed pursuant to the provisions of this subsection shall be the first thirty days served and may not be suspended or deferred;

(2) sixty days for an offender's second or subsequent petty misdemeanor and, in addition without limitation, may include an alternative sentence, including community service, counseling or education. The sentence imposed pursuant to the provisions of this subsection shall be the first sixty days served and may not be suspended or deferred;

(3) ninety days for an offender's first misdemeanor and, in addition without limitation, may include an alternative sentence, including community service, counseling or education. The sentence imposed pursuant to the provisions of this subsection shall be the first ninety days served and may not be suspended or deferred;

(4) one hundred eighty days for an offender's second or subsequent misdemeanor and, in addition without limitation, may include an alternative sentence, including community service, counseling or education. The sentence imposed pursuant to the provisions of this subsection shall be the first one hundred eighty days served and may not be suspended or deferred;

(5) one year for an offender's first noncapital felony. The sentence imposed pursuant to the provisions of this subsection shall be the first year served and may not be suspended or deferred. When the offender is a serious youthful offender or a youthful offender, the sentence imposed pursuant to the provisions of this subsection may be increased by one year; and

(6) three years for an offender's second or subsequent noncapital felony. The sentence imposed pursuant to the provisions of this subsection shall be the first three years served and may not be suspended or deferred. When the offender is a serious youthful offender or a youthful offender, the sentence imposed pursuant to the provisions of this subsection may be increased by three years.

B. 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 a person was intentionally assaulted or battered or his property was intentionally damaged because of the person's actual or perceived membership in a group, whether or not the offender's belief or perception was correct, 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 a person was intentionally assaulted or battered or his property was intentionally damaged because of the person's actual or perceived membership in a group, whether or not the offender's belief or perception was correct, the court shall decide the issue and shall make a separate finding of fact regarding the issue."

Section 2. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2001.