HOUSE BILL 427

49th legislature - STATE OF NEW MEXICO - first session, 2009

INTRODUCED BY

Joseph Cervantes

AN ACT

RELATING TO CRIMINAL SENTENCING; ENHANCING THE BASIC SENTENCE FOR CRIMES COMMITTED IN FURTHERANCE OF CRIMINAL STREET GANG ACTIVITY.

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] ALTERATION OF BASIC SENTENCE--GANG-RELATED CRIMES.--

          A. When, in a hearing separate from the trial or guilty plea proceeding, it is proven beyond a reasonable doubt to a jury or to the judge if the defendant's right to a jury trial has been waived that a felony enumerated in Subsection B of this section was knowingly committed for the benefit of, at the direction of or in association with a criminal street gang with the intent to promote, further or assist in criminal conduct by gang members, the basic sentence of imprisonment prescribed for the offense shall be increased as follows:

                (1) for a fourth degree felony, an additional one year;

                (2) for a third degree felony, an additional two years;

                (3) for a third degree felony resulting in death, an additional three years;

                (4) for a second degree felony, an additional four years;

                (5) for a second degree felony resulting in death, an additional six years; and

                (6) for a first degree felony, an additional eight years.

          B. The following felonies are subject to the enhancements imposed pursuant to Subsection A of this section:

                (1) murder, pursuant to Section 30-2-1 NMSA 1978;

                (2) voluntary manslaughter, pursuant to Subsection A of Section 30-2-3 NMSA 1978;

                (3) aggravated assault, pursuant to Section 30-3-2 NMSA 1978;

                (4) assault with intent to commit a violent felony, pursuant to Section 30-3-3 NMSA 1978;

                (5) aggravated battery, pursuant to Subsection C of Section 30-3-5 NMSA 1978;

                (6) shooting at a dwelling or occupied building or shooting at or from a motor vehicle, pursuant to Section 30-3-8 NMSA 1978;

                (7) aggravated stalking, pursuant to Section 30-3A-3.1 NMSA 1978;

                (8) kidnapping, pursuant to Section 30-4-1 NMSA 1978;

                (9) sexual exploitation of children by prostitution, pursuant to Section 30-6A-4 NMSA 1978;

                (10) dangerous use of explosives, pursuant to Section 30-7-5 NMSA 1978;

                (11) possession of explosives, explosive devices or incendiary devices, pursuant to Sections 30-7-19 and 30-7-19.1 NMSA 1978;

                (12) criminal sexual penetration in the first, second or third degree, pursuant to Section 30-9-11 NMSA 1978;

                (13) criminal sexual contact of a minor, pursuant to Section 30-9-13 NMSA 1978;

                (14) felony criminal damage to property, pursuant to Section 30-15-1 NMSA 1978;

                (15) felony graffiti, pursuant to Section 30-15-1.1 NMSA 1978; 

                (16) robbery, pursuant to Section 30-16-2 NMSA 1978;

                (17) burglary, pursuant to Section 30-16-3 NMSA 1978;

                (18) aggravated burglary, pursuant to Section 30-16-4 NMSA 1978;

                (19) extortion, pursuant to Section 30-16-9 NMSA 1978;

                (20) aggravated fleeing a law enforcement officer, pursuant to Section 30-22-1.1 NMSA 1978;

                (21) harboring or aiding a felon, pursuant to Section 30-22-4 NMSA 1978;

                (22) aggravated assault upon a peace officer, pursuant to Section 30-22-22 NMSA 1978;

                (23) assault with intent to commit a violent felony upon a peace officer, pursuant to Section 30-22-23 NMSA 1978;

                (24) aggravated battery upon a peace officer, pursuant to Section 30-22-25 NMSA 1978;

                (25) bribery or intimidation of a witness or retaliation against a witness, pursuant to Section 30-24-3 NMSA 1978;

                (26) trafficking in a controlled substance, pursuant to Section 30-31-20 NMSA 1978;

                (27) unlawful taking of a motor vehicle, pursuant to Section 66-3-504 NMSA 1978;

                (28) money laundering, pursuant to the Money Laundering Act; and

                (29) an attempt to commit any of the felonies listed in this subsection, pursuant to Section 30-28-1 NMSA 1978.

          C. The enhancements provided in Subsection A of this section shall run consecutive with the basic sentence and shall not be suspended or deferred.

          D. If more than one enhancement is imposed, the enhancements provided in Subsection A of this section shall run concurrently.

          E. As used in this section, "criminal street gang" means an ongoing organization, association or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the felonies enumerated in Subsection B of this section, having a common name or identifying sign or symbol and whose members individually or collectively engage in or have engaged in a pattern of criminal street gang activity. "Criminal street gang" does not include a fraternal organization, union, corporation, association or similar group or entity, unless organized for the primary purpose of engaging in criminal activity.

          F. As used in this section, "pattern of criminal street gang activity" means the commission of two or more of the felonies enumerated in Subsection B of this section; provided that the offenses occurred within three years of each other and were committed on separate occasions by two or more persons."

     Section 2. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2009.

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