HOUSE BILL 536

52nd legislature - STATE OF NEW MEXICO - first session, 2015

INTRODUCED BY

Sharon Clahchischilliage

AN ACT

RELATING TO CHILDREN; CLARIFYING PROVISIONS RELATED TO A COURT'S CONSIDERATIONS WITH RESPECT TO THE DISPOSITION OF A YOUTHFUL OFFENDER.

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

     SECTION 1. Section 32A-2-20 NMSA 1978 (being Laws 1993, Chapter 77, Section 49, as amended) is amended to read:

     "32A-2-20. DISPOSITION OF A YOUTHFUL OFFENDER.--

          A. The court has the discretion to invoke either an adult sentence or juvenile sanctions on a youthful offender. The children's court attorney shall file a notice of intent to invoke an adult sentence within ten working days of the filing of the petition; provided that the court may extend the time for filing of the notice of intent to invoke an adult sentence, for good cause shown, prior to the adjudicatory hearing. A preliminary hearing by the court or a hearing before a grand jury shall be held, within ten days after the filing of the intent to invoke an adult sentence, to determine whether probable cause exists to support the allegations contained in the petition.

           B. If the children's court attorney has filed a notice of intent to invoke an adult sentence and the child is adjudicated as a youthful offender, the court shall make the following findings in order to invoke an adult sentence:

                (1) the child is not amenable to treatment or rehabilitation as a child in available facilities; and

                (2) the child is not eligible for commitment to an institution for children with developmental disabilities or mental disorders.

          C. In making the findings set forth in Subsection B of this section, the judge shall consider the following factors:

                (1) the seriousness of the [alleged] offense;

                (2) whether the [alleged] offense was committed in an aggressive, violent, premeditated or willful manner;

                (3) whether a firearm was used to commit the [alleged] offense;

                (4) whether the [alleged] offense was against persons or against property, greater weight being given to offenses against persons, especially if personal injury resulted;

                (5) the maturity of the child as determined by consideration of the child's home, environmental situation, social and emotional health, pattern of living, brain development, trauma history and disability;

                (6) the record and previous history of the child;

                (7) the prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the child by the use of procedures, services and facilities currently available; and

                (8) any other relevant factor, provided that factor is stated on the record.

          D. If a child has previously been sentenced as an adult pursuant to the provisions of this section, there shall be a rebuttable presumption that the child is not amenable to treatment or rehabilitation as a child in available facilities.

          E. If the court invokes an adult sentence, the court may sentence the child to less than, but shall not exceed, the mandatory adult sentence. A youthful offender given an adult sentence shall be treated as an adult offender and shall be transferred to the legal custody of an agency responsible for incarceration of persons sentenced to adult sentences. This transfer terminates the jurisdiction of the court over the child with respect to the delinquent acts [alleged in the petition] for which the child is adjudicated as a youthful offender.

          F. If a juvenile disposition is appropriate, the court shall follow the provisions set forth in Section 32A-2-19 NMSA 1978. A youthful offender may be subject to extended commitment in the care of the department until the age of twenty-one, pursuant to the provisions of Section 32A-2-23 NMSA 1978.

          G. A child fourteen years of age or older, charged with first degree murder, but not convicted of first degree murder and found to have committed a youthful offender offense as set forth in Subsection [I] J of Section 32A-2-3 NMSA 1978, is subject to the dispositions set forth in this section.

          H. A child fourteen years of age or older charged with first degree murder, but found to have committed a delinquent act that is neither first degree murder nor a youthful offender offense as set forth in Subsection [I] J of Section 32A-2-3 NMSA 1978, shall be adjudicated as a delinquent subject to the dispositions set forth in Section 32A-2-19 NMSA 1978."

     SECTION 2. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2015.

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