SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR

SENATE PUBLIC AFFAIRS COMMITTEE SUBSTITUTE FOR

HOUSE BILL 65

52nd legislature - STATE OF NEW MEXICO - second session, 2016

AN ACT

RELATING TO CHILD EXPLOITATION; ESTABLISHING INCREASED PENALTIES FOR CHILD EXPLOITATION OFFENSES; CREATING A NEW BASIC SENTENCING STRUCTURE FOR SEXUAL EXPLOITATION OF CHILDREN; DECLARING AN EMERGENCY.

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

     SECTION 1. Section 30-6A-3 NMSA 1978 (being Laws 1984, Chapter 92, Section 3, as amended) is amended to read:

     "30-6A-3. SEXUAL EXPLOITATION OF CHILDREN.--

          A. It is unlawful for a person to intentionally possess any obscene visual or print medium depicting any prohibited sexual act or simulation of such an act if that person knows or has reason to know that the obscene medium depicts any prohibited sexual act or simulation of such act and if that person knows or has reason to know that one or more of the participants in that act is a child under eighteen years of age. A person who violates the provisions of this subsection is guilty of a fourth degree felony for sexual exploitation of children and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978. When a separate finding of fact made by a court or jury shows beyond a reasonable doubt that a child depicted in the visual or print medium is a child under the age of thirteen, the basic sentence shall be increased by one year, and the sentence imposed by this subsection shall be the first year served and shall not be suspended or deferred; provided that when the offender is a youthful offender, the sentence imposed by this subsection may be increased by one year.

          B. It is unlawful for a person to intentionally distribute any obscene visual or print medium depicting any prohibited sexual act or simulation of such an act if that person knows or has reason to know that the obscene medium depicts any prohibited sexual act or simulation of such act and if that person knows or has reason to know that one or more of the participants in that act is a child under eighteen years of age. A person who violates the provisions of this subsection is guilty of a third degree felony for sexual exploitation of children and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

          C. It is unlawful for a person to intentionally cause or permit a child under eighteen years of age to engage in any prohibited sexual act or simulation of such an act if that person knows, has reason to know or intends that the act may be recorded in any obscene visual or print medium or performed publicly. A person who violates the provisions of this subsection is guilty of a third degree felony for sexual exploitation of children and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978 unless the child is under the age of thirteen, in which event the person is guilty of a second degree felony for sexual exploitation of children and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

          D. It is unlawful for a person to intentionally manufacture any obscene visual or print medium depicting any prohibited sexual act or simulation of such an act if one or more of the participants in that act is a child under eighteen years of age. A person who violates the provisions of this subsection is guilty of a second degree felony for sexual exploitation of children and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

          E. It is unlawful for a person to intentionally manufacture any obscene visual or print medium depicting any prohibited sexual act or simulation of such an act if that person knows or has reason to know that the obscene medium depicts a prohibited sexual act or simulation of such an act and if that person knows or has reason to know that a real child under eighteen years of age, who is not a participant, is depicted as a participant in that act. A person who violates the provisions of this subsection is guilty of a fourth degree felony.

          F. It is unlawful for a person to intentionally distribute any obscene visual or print medium depicting any prohibited sexual act or simulation of such an act if that person knows or has reason to know that the obscene medium depicts a prohibited sexual act or simulation of such an act and if that person knows or has reason to know that a real child under eighteen years of age, who is not a participant, is depicted as a participant in that act. A person who violates the provisions of this subsection is guilty of a third degree felony.

          G. The penalties provided for in this section shall be in addition to those set out in Section 30-9-11 NMSA 1978."

     SECTION 2. Section 31-18-15 NMSA 1978 (being Laws 1977, Chapter 216, Section 4, as amended) is amended to read:

     "31-18-15. SENTENCING AUTHORITY--NONCAPITAL FELONIES--BASIC SENTENCES AND FINES--PAROLE AUTHORITY--MERITORIOUS DEDUCTIONS.--

          A. If a person is convicted of a noncapital felony, the basic sentence of imprisonment is as follows:

                (1) for a first degree felony resulting in the death of a child, life imprisonment;

                (2) for a first degree felony for aggravated criminal sexual penetration, life imprisonment;

                (3) for a first degree felony, eighteen years imprisonment;

                (4) for a second degree felony resulting in the death of a human being, fifteen years imprisonment;

                (5) for a second degree felony for a sexual offense against a child, fifteen years imprisonment;

                (6) for a second degree felony for sexual exploitation of children, twelve years imprisonment;

                [(6)] (7) for a second degree felony, nine years imprisonment;

                [(7)] (8) for a third degree felony resulting in the death of a human being, six years imprisonment;

                [(8)] (9) for a third degree felony for a sexual offense against a child, six years imprisonment;

                (10) for a third degree felony for sexual exploitation of children, eleven years imprisonment;

                [(9)] (11) for a third degree felony, three years imprisonment; [or]

                (12) for a fourth degree felony for sexual exploitation of children, ten years imprisonment; or

                [(10)] (13) for a fourth degree felony, eighteen months imprisonment.

          B. The appropriate basic sentence of imprisonment shall be imposed upon a person convicted and sentenced pursuant to Subsection A of this section, unless the court alters the sentence pursuant to the provisions of the Criminal Sentencing Act.

          C. The court shall include in the judgment and sentence of each person convicted and sentenced to imprisonment in a corrections facility designated by the corrections department authority for a period of parole to be served in accordance with the provisions of Section 31-21-10 NMSA 1978 after the completion of any actual time of imprisonment and authority to require, as a condition of parole, the payment of the costs of parole services and reimbursement to a law enforcement agency or local crime stopper program in accordance with the provisions of that section. The period of parole shall be deemed to be part of the sentence of the convicted person in addition to the basic sentence imposed pursuant to Subsection A of this section together with alterations, if any, pursuant to the provisions of the Criminal Sentencing Act.

          D. When a court imposes a sentence of imprisonment pursuant to the provisions of Section 31-18-15.1, 31-18-16 [31-18-16.1] or 31-18-17 NMSA 1978 and suspends or defers the basic sentence of imprisonment provided pursuant to the provisions of Subsection A of this section, the period of parole shall be served in accordance with the provisions of Section 31-21-10 NMSA 1978 for the degree of felony for the basic sentence for which the inmate was convicted. For the purpose of designating a period of parole, a court shall not consider that the basic sentence of imprisonment was suspended or deferred and that the inmate served a period of imprisonment pursuant to the provisions of the Criminal Sentencing Act.

          E. The court may, in addition to the imposition of a basic sentence of imprisonment, impose a fine not to exceed:

                (1) for a first degree felony resulting in the death of a child, seventeen thousand five hundred dollars ($17,500);

                (2) for a first degree felony for aggravated criminal sexual penetration, seventeen thousand five hundred dollars ($17,500);

                (3) for a first degree felony, fifteen thousand dollars ($15,000);

                (4) for a second degree felony resulting in the death of a human being, twelve thousand five hundred dollars ($12,500);

                (5) for a second degree felony for a sexual offense against a child, twelve thousand five hundred dollars ($12,500);

                (6) for a second degree felony for sexual exploitation of children, five thousand dollars ($5,000);

                [(6)] (7) for a second degree felony, ten thousand dollars ($10,000);

                [(7)] (8) for a third degree felony resulting in the death of a human being, five thousand dollars ($5,000);

                [(8)] (9) for a third degree felony for a sexual offense against a child, five thousand dollars ($5,000); [or]

                (10) for a third degree felony for sexual exploitation of children, five thousand dollars ($5,000);

                [(9)] (11) for a third or fourth degree felony, five thousand dollars ($5,000); or

                (12) for a fourth degree felony for sexual exploitation of children, five thousand dollars ($5,000).

          F. When the court imposes a sentence of imprisonment for a felony offense, the court shall indicate whether or not the offense is a serious violent offense, as defined in Section 33-2-34 NMSA 1978. The court shall inform an offender that the offender's sentence of imprisonment is subject to the provisions of Sections 33-2-34, 33-2-36, 33-2-37 and 33-2-38 NMSA 1978. If the court fails to inform an offender that the offender's sentence is subject to those provisions or if the court provides the offender with erroneous information regarding those provisions, the failure to inform or the error shall not provide a basis for a writ of habeas corpus.

          G. No later than October 31 of each year, the

New Mexico sentencing commission shall provide a written report to the secretary of corrections, all New Mexico criminal court judges, the administrative office of the district attorneys and the chief public defender. The report shall specify the average reduction in the sentence of imprisonment for serious violent offenses and nonviolent offenses, as defined in Section 33-2-34 NMSA 1978, due to meritorious deductions earned by prisoners during the previous fiscal year pursuant to the provisions of Sections 33-2-34, 33-2-36, 33-2-37 and 33-2-38 NMSA 1978. The corrections department shall allow the commission access to documents used by the department to determine earned meritorious deductions for prisoners."

     SECTION 3. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.

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