46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO DELINQUENCY; CHANGING THE DEFINITION FOR YOUTHFUL OFFENDER; ALLOWING THE COURT TO HEAR AND CONSIDER HEARSAY EVIDENCE IN A PROBATION REVOCATION PROCEEDING REGARDING THE DISPOSITION OF A CHILD FOUND TO BE INCOMPETENT TO STAND TRIAL.

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

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

"[NEW MATERIAL] DISPOSITION OF AN INCOMPETENT CHILD IN A DELINQUENCY PROCEEDING.--

A. A child's competency to stand trial or participate in his own defense may be raised by a party at any time during a proceeding and:

(1) if the child's competency is questioned, the court shall stay further proceedings until the issue is determined. The time limitation for commencing an adjudicatory proceeding shall be stayed for the period of time the proceedings are stayed pursuant to this section; and

(2) the child's competency shall be professionally evaluated by a psychologist or psychiatrist or other qualified professional recognized by the court as an expert, and a report shall be submitted as ordered by the court. A hearing on the issue of the competency of a child in detention shall be held by the court within a reasonable time, but in no event later than thirty days after notification to the court of completion of the diagnostic evaluation.

B. If the court determines after the hearing that the child is incompetent to proceed and determines that the child presents a serious threat of inflicting great bodily harm on another or of violating Section 30-9-11 or 30-9-13 NMSA 1978, the court shall order treatment to attain competency and may:

(1) impose reasonable conditions of release during the period of treatment; or

(2) order the child detained and initiate proceedings for the involuntary commitment of the child pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act. If the child is placed for residential treatment or habilitation pursuant to the provisions of that act, the department shall retain legal custody during the period of involuntary placement or until further order of the court.

C. If the court determines after the hearing that the child is incompetent to proceed, and the court does not find that the child presents a serious threat of inflicting great bodily harm on another or of violating Section 30-9-11 or 30-9-13 NMSA 1978, the court may order treatment to attain competency or dismiss the delinquency petition without prejudice. Upon dismissal, the court shall advise the district attorney to consider initiation of proceedings pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act and order the child confined for a maximum of seven days to facilitate preparation and initiation of a petition pursuant to that act.

D. If the court determines after the hearing that the child is competent to proceed, the court shall lift the stay and proceed with the delinquency petition.

E. Within sixty days of the entry of an order for treatment to attain competency, the court, sitting without a jury, shall conduct a hearing, unless waived by the child. The court shall determine whether the child is competent to proceed, and, if not, whether the child is making progress toward competency and whether the child continues to present a serious threat of inflicting great bodily harm on another or of violating Section 30-9-11 or 30-9-13 NMSA 1978. If the court finds that:

(1) the child is competent, the court shall proceed on the charges; provided that if the child needs continued care or treatment and the supervisor of the child's treatment agrees to continue to provide it, the court may enter an order it deems appropriate for the continued care or treatment of the child by the facility or program pending the conclusion of the delinquency proceedings;

(2) the child is incompetent to proceed and that the child is making progress toward the attainment of competency, the court shall continue its original treatment order; provided that the question of the child's competency shall be reviewed again not later than six months from the original determination of incompetency;

(3) the child is incompetent, that the child is not making progress toward attaining competency and that the child continues to present a serious threat of inflicting great bodily harm on another or of violating Section 30-9-11 or 30-9-13 NMSA 1978, the court shall continue its original treatment order; provided that the question of the child's competency shall be reviewed again not later than six months from the original determination of incompetency; or

(4) the child is incompetent, that the child is not making progress toward attaining competency and that the child no longer presents a serious threat of inflicting great bodily harm on another or of violating Section 30-9-11 or 30-9-13 NMSA 1978, the court shall dismiss the delinquency petition without prejudice and initiate proceedings for commitment pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act.

F. Unless the petition is dismissed pursuant to this section, the court shall conduct a hearing, without a jury, within six months of the entry of an order for treatment to attain competency and for conditions of release or detention and commitment pursuant to this section. The court shall determine whether the child continues to be incompetent to proceed and continues to present a serious threat of inflicting great bodily harm on another or of violating Section 30-9-11 or 30-9-13 NMSA 1978. If the child is:

(1) found competent to proceed by the court, the court shall proceed on the delinquency petition; provided that if the child is in need of continued care or treatment and the supervisor of the child's treatment agrees to continue to provide it, the court may enter any order it deems appropriate for the continued care or treatment of the child by the facility or program pending the conclusion of the delinquency proceedings;

(2) an alleged delinquent offender, and if the court finds that the child is still incompetent to proceed on the delinquency petition, the court shall dismiss the petition without prejudice and refer the child to the district attorney for commitment proceedings pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act; or

(3) alleged youthful offender or serious youthful offender, and if the court finds that the child is still incompetent and that the child continues to present a serious threat of inflicting great bodily harm on another or of violating Section 30-9-11 or 30-9-13 NMSA 1978, the court shall determine whether there is clear and convincing evidence that the child committed the offense charged. The children's court attorney and the child may introduce evidence relevant to the question of the child's commission of the offense or offenses charged. The court may consider hearsay or affidavit evidence on secondary matters, such as testimony to establish the chain of possession of physical evidence, laboratory reports, authentication of transcripts taken by official reporters, district court and business records and public documents. If the court finds there is:

(a) clear and convincing evidence that the child committed the offense charged, the court shall continue its original treatment order; provided that the order shall remain in effect no longer than a period of time equal to the maximum sentence the child could have received if adjudicated as a youthful offender or serious youthful offender. As provided in Section 32A-2-20 NMSA 1978, the maximum sentence a youthful offender may receive is the mandatory adult sentence for the offense or offenses committed. At least every two years, the court shall conduct a hearing to determine whether the child continues to be incompetent and continues to present a serious threat of inflicting great bodily harm on another or of violating Section 30-9-11 or 30-9-13 NMSA 1978. The order for treatment and for conditions of release or detention and commitment shall continue only if the child continues to be incompetent and continues to present a serious threat of inflicting great bodily harm on another or of violating Section 30-9-11 or 30-9-13 NMSA 1978; otherwise, the delinquency petition shall be dismissed without prejudice and the court shall refer the child to the district attorney for commitment proceedings pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act; or

(b) not clear and convincing evidence that the child committed the offense charged, the court shall dismiss the petition without prejudice and refer the child to the district attorney for commitment proceedings pursuant to the Children's Mental Health and Developmental Disabilities Act."

Section 2. Section 32A-2-3 NMSA 1978 (being Laws 1993, Chapter 77, Section 32, as amended) is amended to read:

"32A-2-3. DEFINITIONS.--As used in the Delinquency Act:

A. "delinquent act" means an act committed by a child that would be designated as a crime under the law if committed by an adult, including the following offenses:

(1) pursuant to municipal traffic codes or the Motor Vehicle Code:

(a) any driving while under the influence of intoxicating liquor or drugs;

(b) any failure to stop in the event of an accident causing death, personal injury or damage to property;

(c) any unlawful taking of a vehicle or motor vehicle;

(d) any receiving or transferring of a stolen vehicle or motor vehicle;

(e) any homicide by vehicle;

(f) any injuring or tampering with a vehicle;

(g) any altering or changing of an engine number or other vehicle identification numbers;

(h) any altering or forging of a driver's license or permit or any making of a fictitious license or permit;

(i) reckless driving;

(j) driving with a suspended or revoked license; or

(k) any offense punishable as a felony;

(2) buying, attempting to buy, receiving, possessing or being served any alcoholic liquor or being present in a licensed liquor establishment, other than a restaurant or a licensed retail liquor establishment, except in the presence of the child's parent, guardian, custodian or adult spouse. As used in this paragraph, "restaurant" means any establishment where meals are prepared and served primarily for on-premises consumption and that has a dining room, a kitchen and the employees necessary for preparing, cooking and serving meals. "Restaurant" does not include [establishments] an establishment, as defined in regulations promulgated by the director of the special investigations division of the department of public safety, that [serve] serves only hamburgers, sandwiches, salads and other fast foods;

(3) any felony violation of the provisions of Sections 17-1-1 through 17-5-9 NMSA 1978 or any regulations adopted by the state game commission that relate to the time, extent, means or manner that game animals, birds or fish may be hunted, taken, captured, killed, possessed, sold, purchased or shipped and for which a fine may be imposed or a civil damage awarded;

(4) any violation of Section 30-29-2 NMSA 1978, regarding the illegal use of a glue, aerosol spray product or other chemical substance;

(5) any violation of the Controlled Substances Act;

(6) escape from the custody of a law enforcement officer or a juvenile probation or parole officer or from any placement made by the department by a child who has been adjudicated a delinquent child; or

(7) any violation of Section 30-15-1.1 NMSA 1978 regarding unauthorized graffiti on personal or real property;

B. "delinquent child" means a child who has committed a delinquent act;

C. "delinquent offender" means a delinquent child who is subject to juvenile sanctions only and who is not a youthful offender or a serious youthful offender;

D. "detention facility" means a place where a child may be detained under the Children's Code pending court hearing and does not include a facility for the care and rehabilitation of an adjudicated delinquent child;

E. "felony" means an act that would be a felony if committed by an adult;

F. "misdemeanor" means an act that would be a misdemeanor or petty misdemeanor if committed by an adult;

G. "restitution" means financial reimbursement by the child to the victim or community service imposed by the court and is limited to easily ascertainable damages for injury to or loss of property, actual expenses incurred for medical, psychiatric and psychological treatment for injury to a person and lost wages resulting from physical injury, which are a direct and proximate result of a delinquent act. "Restitution" does not include reimbursement for damages for mental anguish, pain and suffering or other intangible losses. As used in this subsection, "victim" means any person who is injured or suffers damage of any kind by an act that is the subject of a complaint or referral to law enforcement officers or juvenile probation authorities. Nothing contained in this definition limits or replaces the provisions of Subsections A and B of Section 32A-2-27 NMSA 1978;

H. "serious youthful offender" means an individual fifteen to eighteen years of age who is charged with and indicted or bound over for trial for first degree murder. A "serious youthful offender" is not a delinquent child as defined pursuant to the provisions of this section; and

I. "youthful offender" means a delinquent child subject to adult or juvenile sanctions who is:

(1) fourteen to eighteen years of age at the time of the offense and who is adjudicated for at least one of the following offenses:

(a) second degree murder, as provided in Section 30-2-1 NMSA 1978;

(b) assault with intent to commit a violent felony, as provided in Section 30-3-3 NMSA 1978;

(c) kidnapping, as provided in Section

30-4-1 NMSA 1978;

(d) aggravated battery, as provided in Subsection C of Section 30-3-5 NMSA 1978;

(e) aggravated battery upon a peace officer, as provided in Subsection C of Section 30-22-25 NMSA 1978;

(f) shooting at a dwelling or occupied building or shooting at or from a motor vehicle, as provided in Section 30-3-8 NMSA 1978;

(g) dangerous use of explosives, as provided in Section 30-7-5 NMSA 1978;

(h) criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978;

(i) criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978;

[(i)] (j) robbery, as provided in Section 30-16-2 NMSA 1978;

[(j)] (k) aggravated burglary, as provided in Section 30-16-4 NMSA 1978;

[(k)] (l) aggravated arson, as provided in Section 30-17-6 NMSA 1978; [or

(l)] (m) abuse of a child that results in great bodily harm or death to the child, as provided in Section 30-6-1 NMSA 1978; or

(n) attempt to commit first degree murder or attempt to commit any offense listed in this subsection;

(2) fourteen to eighteen years of age at the time of the offense and adjudicated for any felony offense and who has had three prior, separate felony adjudications within a three-year time period immediately preceding the instant offense. The felony adjudications relied upon as prior adjudications shall not have arisen out of the same transaction or occurrence or series of events related in time and location. Successful completion of consent decrees are not considered a prior adjudication for the purposes of this paragraph; or

(3) fourteen years of age and adjudicated for first degree murder, as provided in Section 30-2-1 NMSA 1978."

Section 3. Section 32A-2-21 NMSA 1978 (being Laws 1993, Chapter 77, Section 50, as amended) is amended to read:

"32A-2-21. DISPOSITION OF A MENTALLY DISORDERED OR DEVELOPMENTALLY DISABLED CHILD IN A DELINQUENCY PROCEEDING.--

A. If in a hearing at any stage of a proceeding on a delinquency petition the evidence indicates that the child is or may be developmentally disabled or mentally disordered, the court may:

(1) order the child detained if appropriate under the criteria established pursuant to the provisions of the Delinquency Act; and

(2) initiate proceedings for the involuntary placement of the child as a mentally disordered or developmentally disabled minor pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act.

B. If the child is placed for residential treatment or habilitation pursuant to the Children's Mental Health and Developmental Disabilities Act, the department shall retain legal custody during the period of involuntary placement or until further order of the court.

C. If a child is committed to a psychiatric hospital for treatment or habilitation and in the event that the department should be required to pay more than four hundred dollars ($400) per day because of the individualized treatment plan, the annual costs over four hundred dollars ($400) per child per day will be reported annually by the department to the legislative finance committee.

D. The child may remain in the residential treatment or habilitation facility pending the disposition of the delinquency petition.

E. When a child in departmental custody needs involuntary placement for residential mental health or developmental disability services as a result of a mental disorder or developmental disability, the department shall request the children's court attorney to petition for that child's placement pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act.

F. A child subject to the provisions of the Delinquency Act who receives treatment in a residential treatment or habilitation program shall enjoy all the substantive and procedural rights set forth in the Children's Mental Health and Developmental Disabilities Act.

[G. A child's competency to stand trial or participate in his own defense may be raised by any party at any time during a proceeding. If the court determines that a child is incompetent to stand trial or participate in his own defense, the court may dismiss the petition without prejudice and initiate proceedings pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act.]"

Section 4. Section 32A-2-24 NMSA 1978 (being Laws 1993, Chapter 77, Section 53) is amended to read:

"32A-2-24. PROBATION REVOCATION--DISPOSITION.--

A. A child on probation incident to an adjudication as a delinquent child who violates a term of the probation may be proceeded against in a probation revocation proceeding. A proceeding to revoke probation shall be begun by filing in the original proceeding a petition styled as a "petition to revoke probation". Petitions to revoke probation shall be screened, reviewed and prepared in the same manner and shall contain the same information as petitions alleging delinquency. Procedures of the Delinquency Act regarding taking into custody and detention shall apply. The petition shall state the terms of probation alleged to have been violated and the factual basis for these allegations.

B. The standard of proof in probation revocation proceedings shall be evidence beyond a reasonable doubt and the hearings shall be before the court without a jury. The court may hear and consider heresay evidence in a probation revocation proceeding. In all other respects, proceedings to revoke probation shall be governed by the procedures, rights and duties applicable to proceedings on a delinquency petition. If a child is found to have violated a term of his probation, the court may extend the period of probation or make any other judgment or disposition that would have been appropriate in the original disposition of the case."