HOUSE BILL 174
49th legislature - STATE OF NEW MEXICO - second session, 2010
INTRODUCED BY
Jack E. Thomas
AN ACT
RELATING TO CRIMINAL LAW; PROHIBITING PARTICIPATION IN AND RECRUITING FOR CRIMINAL STREET GANGS; ENHANCING THE BASIC SENTENCE FOR CRIMES COMMITTED IN FURTHERANCE OF CRIMINAL STREET GANG ACTIVITY; PROVIDING PENALTIES; CREATING A FUND; 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 AND RECRUITMENT FOR 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. A person who commits gang recruitment is guilty of a misdemeanor and shall be sentenced in accordance with the provisions of Section 31-19-1 NMSA 1978.
D. A person who commits gang recruitment of a minor is guilty of a fourth degree felony and shall be sentenced in accordance with the provisions of Section 31-18-15 NMSA 1978.
E. A person who commits gang recruitment by threat or violence is guilty of a fourth degree felony and shall be sentenced in accordance with the provisions of Section 31-18-15 NMSA 1978.
F. A person who commits gang recruitment of a minor by threat or violence is guilty of a third degree felony and shall be sentenced in accordance with the provisions of Section 31-18-15 NMSA 1978.
G. 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;
(2) "gang recruitment" means soliciting or recruiting a person into a criminal street gang with the intent of having the solicited or recruited person:
(a) knowingly participate in a pattern of criminal street gang activity; or
(b) promote, further or assist in the commission of a felony by a criminal street gang;
(3) "gang recruitment by threat or violence" means soliciting or recruiting a person into a criminal street gang by using physical violence on one or more separate occasions or threatening that person with the use of physical violence on two or more separate occasions within a thirty-day period, with the intent of having the solicited or recruited person:
(a) knowingly participate in a pattern of criminal street gang activity; or
(b) promote, further or assist in the commission of a felony by a criminal street gang; 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 2. [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 appropriations, gifts, grants and donations. 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 provide revitalization grants to governing bodies of municipalities or counties for 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 may be awarded a grant solely for the amount of money expended for the benefit of the community or neighborhood injured by criminal street gang activity. 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 3. 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 six to eighteen months;
(2) for a third degree felony, an additional eighteen to twenty-four months;
(3) for a second degree felony, an additional three to four years; and
(4) for a first degree felony, an additional six to 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 an additional six to 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 an additional three to 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 30-16D-1 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 4. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2010.
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