SENATE HEALTH AND PUBLIC AFFAIRS COMMITTEE SUBSTITUTE FOR

SENATE BILL 443

55th legislature - STATE OF NEW MEXICO - first session, 2021

AN ACT

RELATING TO CRIME; ENUMERATING THE UNDERLYING CRIMINAL OFFENSES FOR WHICH SENTENCING MAY BE INCREASED IF THE CRIME IS PROVEN TO BE A HATE CRIME.

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

     SECTION 1. Section 31-18B-3 NMSA 1978 (being Laws 2003, Chapter 384, Section 3, as amended) is amended to read:

     "31-18B-3. HATE CRIMES--NONCAPITAL FELONIES, MISDEMEANORS OR PETTY MISDEMEANORS COMMITTED BECAUSE OF THE VICTIM'S ACTUAL OR PERCEIVED RACE, RELIGION, COLOR, NATIONAL ORIGIN, ANCESTRY, AGE, DISABILITY, GENDER, SEXUAL ORIENTATION OR GENDER IDENTITY--ALTERATION OF BASIC SENTENCE.--

          A. When a separate finding of fact by the court or jury shows beyond a reasonable doubt that an offender committed a noncapital felony motivated by hate, including dangerous use of explosives; breaking and entering; criminal damage to property; unauthorized graffiti on personal or real property; desecration of a church; larceny; arson; negligent arson; aggravated arson; use of telephone to terrify, intimidate, harass, annoy or offend; and bomb scares, the basic sentence of imprisonment prescribed for the offense in Section 31-18-15 NMSA 1978 may be increased by one year. An increase in the basic sentence of imprisonment pursuant to the provisions of this subsection shall be in addition to an increase in a basic sentence prescribed for the offense in Section 31-18-17 NMSA 1978. A sentence imposed pursuant to the provisions of this subsection [may] shall include an alternative sentence that requires community service, treatment, education or any combination thereof that relates to the impact, intention or nature of the original hate crime. The court [may] shall suspend or defer any or all of the sentence or grant a conditional discharge, unless otherwise provided by law.

          B. If a finding was entered in a previous case that the offender was convicted for committing a crime that was motivated by hate, including dangerous use of explosives; breaking and entering; criminal damage to property; unauthorized graffiti on personal or real property; desecration of a church; larceny; arson; negligent arson; aggravated arson; use of telephone to terrify, intimidate, harass, annoy or offend; and bomb scares, and if a separate finding of fact by the court or jury shows beyond a reasonable doubt that in the instant case the offender committed a noncapital felony that was motivated by hate, including dangerous use of explosives; breaking and entering; criminal damage to property; unauthorized graffiti on personal or real property; desecration of a church; larceny; arson; negligent arson; aggravated arson; use of telephone to terrify, intimidate, harass, annoy or offend; and bomb scares, the basic sentence of imprisonment prescribed for the offense in Section 31-18-15 NMSA 1978 may be increased by two years. An increase in the basic sentence of imprisonment pursuant to the provisions of this subsection shall be in addition to an increase in a basic sentence prescribed for the offense in Section 31-18-17 NMSA 1978. A sentence imposed pursuant to the provisions of this subsection [may] shall include an alternative sentence that requires community service, treatment, education or any combination thereof that relates to the impact, intention or nature of the original hate crime. The court [may] shall suspend or defer any or all of the sentence, or grant a conditional discharge unless otherwise provided by law.

          C. If the case is tried before a jury and if a prima facie case has been established showing that in the commission of the offense the offender was motivated by hate, the court shall submit the issue to the jury by special interrogatory. If the case is tried by the court and if a prima facie case has been established showing that in the commission of the offense the offender was motivated by hate, the court shall decide the issue and shall make a separate finding of fact regarding the issue. If the court or jury determines that the offender is guilty of the crime and finds beyond a reasonable doubt that the offender was motivated by hate, the court shall include that determination in the judgment and sentence.

          D. When a petty misdemeanor or a misdemeanor is motivated by hate, the basic sentence of imprisonment prescribed for the offense in Section 31-19-1 NMSA 1978 may include an alternative sentence that requires community service, treatment, education or any combination thereof. The court [may] shall suspend or defer any or all of the sentence or grant a conditional discharge, unless otherwise provided by law."

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