HOUSE BILL 741
49th legislature - STATE OF NEW MEXICO - first session, 2009
INTRODUCED BY
Bill B. O’Neill
AN ACT
RELATING TO CRIMINAL LAW; PROHIBITING PARTICIPATION IN CRIMINAL STREET GANGS; DECLARING A PLACE WHERE A STREET GANG COMMITS CRIMES A PUBLIC NUISANCE PER SE; PROVIDING FOR CLOSURE, LIABILITY AND ADDITIONAL REMEDIES; ENHANCING THE BASIC SENTENCE FOR CRIMES COMMITTED IN FURTHERANCE OF CRIMINAL STREET GANG ACTIVITY; PROVIDING PENALTIES; MAKING AN APPROPRIATION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. A new section of the Criminal Code is enacted to read:
"[NEW MATERIAL] PARTICIPATION IN CRIMINAL STREET GANGS--PENALTY.--
A. A person who knowingly and willfully promotes, furthers or assists in the commission of a felony by a criminal street gang is guilty of a misdemeanor and shall be sentenced in accordance with the provisions of Section 31-19-1 NMSA 1978.
B. A person who is convicted of a second or subsequent violation of Subsection A of this section is guilty of a fourth degree felony and shall be sentenced in accordance with the provisions of Section 31-18-15 NMSA 1978.
C. As used in this section:
(1) "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 felonies, having a common name or identifying sign or symbol and whose members individually or collectively engage in a pattern of criminal street gang activity, but 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; and
(2) "pattern of criminal street gang activity" means the commission of two or more felonies within three years of each other on separate occasions by two or more persons for the benefit of, at the direction of or in association with a criminal street gang."
Section 2. A new section of Chapter 30, Article 8 NMSA 1978 is enacted to read:
"[NEW MATERIAL] ABATEMENT OF CENTERS OF CRIMINAL STREET GANG ACTIVITY.--
A. When a civil action to abate a public nuisance is brought exclusively by the attorney general, a district attorney, a city attorney or a county attorney and the public nuisance sought to be abated under the provisions of Section 30-8-8 NMSA 1978 is a center of criminal street gang activity, as defined in Paragraph (1) of Subsection G of this section, in addition to injunctive relief and any other remedy provided by law, the remedies and presumptions provided in this section shall apply.
B. A center of criminal street gang activity is a public nuisance per se.
C. For the purposes of this section, two or more convictions or sentence enhancements resulting from a felony committed for the benefit of, at the direction of or in association with a criminal street gang, occurring at least one week apart within a period of three years arising out of conduct engaged in at the place described in an abatement action, creates a presumption that the place is a center of criminal street gang activity. However, this presumption shall not arise:
(1) unless the person against whom the abatement action is brought is shown to have had actual knowledge or to have received written notice from law enforcement officials, no more than thirty days after the date of the convictions, of the convictions upon which the presumption is based;
(2) against a nonprofit or charitable organization conducting its affairs with ordinary care; or
(3) against a governmental entity.
D. If, in an abatement action brought under Section 30-8-8 NMSA 1978, a court concludes that a center of criminal street gang activity exists at the location alleged, the court may, as part of its judgment:
(1) hold a member of the criminal street gang who created, maintained or contributed to the nuisance personally liable for payment of damages;
(2) direct the removal of all personal property used for the benefit of the criminal street gang from the center of criminal street gang activity and direct the sale of that property in the same manner as personal property is sold when seized under a writ of execution; (3) order the closing of the center of criminal street gang activity for a period of one year and prohibit any person entering it except under conditions specified in the order; and
(4) award money damages on behalf of the community or neighborhood injured by that nuisance to the credit of the local government community rehabilitation fund.
E. If a judgment entered under the provisions of Subsection D of this section includes the provisions of Paragraph (4) of that subsection, the court shall include in its judgment a provision to permit the owner to take possession of premises ordered closed if the owner files a bond approved by the court, in an amount equal to the full value of the property, conditioned upon the owner's promise to abate the nuisance immediately and prevent the reoccurrence of the nuisance for one year thereafter.
F. Nothing in this section shall be construed to preclude an aggrieved person from seeking any other remedy provided by law or prevent a local governing body from adopting and enforcing laws consistent with this section relating to criminal street gangs. Where local laws duplicate or supplement this section, this section shall be construed as providing alternative remedies and not as preempting the field.
G. As used in this section:
(1) "center of criminal street gang activity" means a building or place used by two or more members of a criminal street gang for the commission of felonies for the benefit of or at the direction of the criminal street gang;
(2) "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 felonies, having a common name or identifying sign or symbol and whose members individually or collectively engage in a pattern of criminal street gang activity, but 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;
(3) "date of the conviction" means the date upon which a plea of guilty or nolo contendere or a judgment of guilty entered in the case charging the crime is final and unappealable; and
(4) "pattern of criminal street gang activity" means the commission of two or more felonies within three years of each other on separate occasions by two or more persons for the benefit of, at the direction of or in association with a criminal street gang."
Section 3. [NEW MATERIAL] LOCAL GOVERNMENT COMMUNITY REHABILITATION FUND CREATED--ADMINISTRATION.--The "local government community rehabilitation fund" is created in the state treasury. The fund consists of money credited to the fund pursuant to Section 2 of this act. Money in the fund at the end of a fiscal year shall not revert to any other fund. The department of finance and administration shall administer the fund and money in the fund is appropriated to the department of finance and administration to administer the fund and to reimburse the governing body of a municipality or county in which a public nuisance has been abated as a center of criminal street gang activity for expenses by the county or municipality for the training of law enforcement officers and planning, construction, maintenance and rehabilitation of communities or neighborhoods that have been injured by criminal street gang activity. The governing body of a municipality or county shall be reimbursed solely for the amount of money damages credited to the fund pursuant to a court judgment and expended for the benefit of the community or neighborhood on whose behalf the money damages were awarded. Disbursements from the fund shall be made by warrant of the secretary of finance and administration pursuant to vouchers signed by the secretary or the secretary's authorized representative.
Section 4. A new section of the Criminal Sentencing Act is enacted to read:
"[NEW MATERIAL] ALTERATION OF BASIC SENTENCE--GANG-RELATED CRIMES.--
A. Except as otherwise provided in Subsection B or C of this section, when a person knowingly and willfully commits a felony enumerated in Subsection D of this section, for the benefit of, at the direction of or in association with a criminal street gang, 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 second degree felony, an additional four years; and
(4) for a first degree felony, an additional eight years.
B. When a person knowingly and willfully commits a violent felony or sexual offense enumerated in Subsection D of this section for the benefit of, at the direction of or in association with a criminal street gang, the basic sentence of imprisonment prescribed for the offense shall be increased by ten years.
C. When a person knowingly and willfully commits a felony enumerated in Subsection D of this section within one thousand feet of an elementary, middle, junior high, high or vocational school for the benefit of, at the direction of or in association with a criminal street gang, the basic sentence of imprisonment prescribed for the offense shall be increased by five years.
D. The following felonies are subject to the enhancements imposed pursuant to Subsections A, B and C 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.
E. The enhancements provided in Subsections A, B and C of this section shall run consecutive with the basic sentence and shall not be suspended or deferred.
F. If more than one enhancement is imposed, the enhancements provided in Subsections A, B and C of this section shall run concurrently.
G. 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 D 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.
H. As used in this section, "pattern of criminal street gang activity" means the commission of two or more of the felonies enumerated in Subsection D 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 5. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2009.
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