HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR
HOUSE BILLS 174, 194 & 195
49th legislature - STATE OF NEW MEXICO - second session, 2010
AN ACT
RELATING TO CRIMINAL LAW; CREATING NEW CRIMES OF GANG RECRUITMENT AND GANG RECRUITMENT BY THREAT OR VIOLENCE; PROVIDING INCREASED PENALTIES FOR RECRUITMENT OF MINORS; ENHANCING THE BASIC SENTENCE FOR CRIMES COMMITTED IN FURTHERANCE OF CRIMINAL STREET GANG ACTIVITY; CREATING A FUND.
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] GANG RECRUITMENT.--
A. Gang recruitment consists of the solicitation or recruitment of another with the intent that the person solicited or recruited:
(1) knowingly participate in a pattern of criminal street gang activity; or
(2) promote, further or assist in felonious conduct by members of a criminal street gang.
B. Whoever commits gang recruitment is guilty of a misdemeanor. Whoever commits gang recruitment of a minor is guilty of a fourth degree felony.
C. Gang recruitment by threat or violence consists of threatening another with physical violence on two or more separate occasions within a thirty-day period, or using physical violence, with the intent to coerce, induce or solicit another to:
(1) knowingly participate in a pattern of criminal street gang activity; or
(2) promote, further or assist in felonious conduct by members of a criminal street gang.
D. Whoever commits gang recruitment by threat or violence is guilty of a fourth degree felony. Whoever commits gang recruitment of a minor by threat or violence is guilty of a third degree felony.
E. Prosecution pursuant to this section shall not prevent prosecution pursuant to any other provision of law when the conduct also constitutes a violation of that other provision.
F. 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 a common name or identifying sign or symbol, whose members individually or collectively engage in or have engaged in a pattern of criminal street gang activity and having as one of its primary activities the commission of one or more of the felonies enumerated in Subsection B of Section 2 of this 2010 act.
(2) "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; and
(3) "pattern of criminal street gang activity" means the commission of two or more of the felonies enumerated in Subsection B of Section 2 of this 2010 act; provided that the offenses occurred within three years of each other and were committed on separate occasions by two or more persons."
Section 2. 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 six to eighteen months;
(2) for a third degree felony, an additional eighteen months to two years;
(3) for a third degree felony resulting in death, an additional three years;
(4) for a second degree felony, an additional four to six 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 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.
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 3. [NEW MATERIAL] LOCAL GOVERNMENT COMMUNITY REHABILITATION FUND--CREATED--PURPOSE.--
A. The "local government community rehabilitation fund" is created in the state treasury to provide revitalization grants to local governments for gang intervention and prevention programs and for the planning, construction, maintenance or rehabilitation of communities or neighborhoods that have been negatively impacted by criminal street gang activity.
B. The department of finance and administration shall administer the fund and develop criteria for grant applications by local governments. Money in the fund is subject to appropriation to the department and consists of any appropriations, gifts, grants and donations. Balances in the fund shall not revert at the end of any fiscal year.
Section 4. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2010.
- 8 -