0001| SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR | 0002| SENATE BILL 537 | 0003| 43rd legislature - STATE OF NEW MEXICO - first session, 1997 | 0004| | 0005| | 0006| | 0007| | 0008| | 0009| | 0010| | 0011| AN ACT | 0012| RELATING TO CRIMINAL LAW; ENACTING THE GANG ENFORCEMENT AND | 0013| PREVENTION ACT; PROVIDING CRIMINAL PENALTIES FOR INDUCING | 0014| MINORS TO PARTICIPATE IN A PATTERN OF CRIMINAL GANG ACTIVITY; | 0015| PROVIDING CRIMINAL PENALTIES FOR PARTICIPATING IN A PATTERN OF | 0016| CRIMINAL GANG ACTIVITY. | 0017| | 0018| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0019| Section 1. A new section of the Criminal Code is enacted | 0020| to read: | 0021| "[NEW MATERIAL] SHORT TITLE.--This act may be cited as | 0022| the | 0023| "Gang Enforcement and Prevention Act"." | 0024| Section 2. A new section of the Criminal Code is enacted | 0025| to read: | 0001| "[NEW MATERIAL] FINDINGS AND PURPOSE.-- | 0002| A. The legislature finds and declares that it is | 0003| the right of every person to be secure and protected from | 0004| intimidation and physical harm caused by the criminal | 0005| activities of violent groups and individuals. The legislature | 0006| also finds that the citizens of New Mexico are concerned about | 0007| the increase in criminal activity that can be attributed to | 0008| criminal gangs. This criminal activity presents a clear and | 0009| present danger to public safety and is not the type of activity | 0010| that is protected by the constitution of the United States or | 0011| the constitution of New Mexico. | 0012| B. The purpose of the Gang Enforcement and | 0013| Prevention Act is not to interfere with constitutionally | 0014| protected rights of freedom of speech and freedom of | 0015| association. Rather, the purpose of the Gang Enforcement and | 0016| Prevention is to deter and punish criminal activity engaged in | 0017| by criminal gangs." | 0018| Section 3. A new section of the Criminal Code is enacted | 0019| to read: | 0020| "[NEW MATERIAL] DEFINITIONS.--As used in the Gang | 0021| Enforcement and Prevention Act: | 0022| A. "criminal gang" means an organization, | 0023| association or group of three or more persons: | 0024| (1) that has a common name or a common | 0025| identifying sign or symbol; and | 0001| (2) whose members engage in a pattern of | 0002| criminal gang activity; and | 0003| B. "pattern of criminal gang activity" means | 0004| convictions for the commission of two or more of the following | 0005| criminal offenses; provided, that at least one of the convictions | 0006| occurs within three years of a prior conviction; and provided | 0007| further, that the convictions are obtained against two or more | 0008| members of the same criminal gang: | 0009| (1) murder in the first degree, as provided in | 0010| Subsection A of Section 30-2-1 NMSA 1978; | 0011| (2) murder in the second degree, as provided in | 0012| Subsection B of Section 30-2-1 NMSA 1978; | 0013| (3) kidnapping, as provided in Section 30-4-1 | 0014| NMSA 1978; | 0015| (4) shooting at a dwelling or occupied building | 0016| or shooting at or from a motor vehicle, as provided in Section | 0017| 30-3-8 NMSA 1978; | 0018| (5) dangerous use of explosives, as provided in | 0019| Section 30-7-5 NMSA 1978; | 0020| (6) criminal sexual penetration, as provided in | 0021| Section 30-9-11 NMSA 1978; | 0022| (7) robbery, as provided in Section 30-16-2 NMSA | 0023| 1978; | 0024| (8) larceny, as provided in Section 30-16-1 NMSA | 0025| 1978, when the value of the property stolen is more than two | 0001| hundred fifty dollars ($250); | 0002| (9) aggravated burglary, as provided in Section | 0003| 30-16-4 NMSA 1978; | 0004| (10) aggravated arson, as provided in Section | 0005| 30-17-6 NMSA 1978; | 0006| (11) any felony violation of the Controlled | 0007| Substances Act; | 0008| (12) voluntary manslaughter, as provided in | 0009| Subsection A of Section 30-2-3 NMSA 1978; | 0010| (13) graffiti to real or personal property, as | 0011| provided in Subsection C of Section 30-15-1.1 NMSA 1978; | 0012| (14) criminal damage to property, as provided in | 0013| Section 30-15-1 NMSA 1978, when the damage to the property amounts | 0014| to more than one thousand dollars ($1,000); | 0015| (15) bribery or intimidation of a witness or | 0016| retaliation against a witness, as provided in Section 30-24-3 NMSA | 0017| 1978; | 0018| (16) aggravated battery, as provided in | 0019| Subsection C of Section 30-3-5 NMSA 1978; | 0020| (17) aggravated battery upon a peace officer, as | 0021| provided in Subsection C of Section 30-22-25 NMSA 1978; | 0022| (18) assault with intent to commit a violent | 0023| felony, as provided in Section 30-3-3 NMSA 1978; | 0024| (19) aggravated assault, as provided in Section | 0025| 30-3-2 NMSA 1978; | 0001| (20) aggravated assault upon a peace officer, as | 0002| provided in Section 30-22-22 NMSA 1978; | 0003| (21) attempt to commit one of the first, second | 0004| or third degree felonies set forth in Paragraphs (1) through (11) | 0005| of this subsection, as provided in Section 30-28-1 NMSA 1978; | 0006| (22) conspiracy to commit one of the felonies | 0007| set forth in Paragraphs (1) through (20) of this subsection, as | 0008| provided in Section 30-28-2 NMSA 1978; or | 0009| (23) criminal solicitation of another person to | 0010| commit one of the felonies set forth in Paragraphs (1) through | 0011| (20) of this subsection, as provided in Section 30-28-3 NMSA | 0012| 1978." | 0013| Section 4. A new section of the Criminal Code is enacted to | 0014| read: | 0015| "[NEW MATERIAL] INDUCEMENT OF MINORS TO PARTICIPATE IN A | 0016| PATTERN OF CRIMINAL GANG ACTIVITY--PENALTY.--A person who uses | 0017| threats, intimidation or persuasion to induce another person less | 0018| than eighteen years of age to participate in a pattern of criminal | 0019| gang activity is guilty of a third degree felony." | 0020| Section 5. A new section of the Criminal Code is enacted to | 0021| read: | 0022| "[NEW MATERIAL] PARTICIPATION IN A CRIMINAL GANG-- | 0023| ALTERATION OF BASIC SENTENCE--SUSPENSION AND DEFERRAL LIMITED.-- | 0024| A. When a felony, as described in Paragraphs (2) | 0025| through (23) of Subsection B of Section 3 of the Gang Enforcement | 0001| and Prevention Act, is committed with the intent to aid and abet a | 0002| criminal gang with a pattern of criminal gang activity, the basic | 0003| sentence of imprisonment prescribed for the offense in Section | 0004| 31-18-15 NMSA 1978 shall be increased by two years. The sentence | 0005| imposed pursuant to this subsection shall be the first two years | 0006| served and shall not be suspended or deferred. | 0007| B. When a second or subsequent felony, as described in | 0008| Paragraphs (2) through (23) of Subsection B of Section 3 of the | 0009| Gang Enforcement and Prevention Act, is committed with the intent | 0010| to aid and abet a criminal gang with a pattern of criminal gang | 0011| activity, the basic sentence of imprisonment prescribed for the | 0012| offense in Section 31-18-15 NMSA 1978 shall be increased by four | 0013| years. The sentence imposed pursuant to this subsection shall be | 0014| the first four years served and shall not be suspended or | 0015| deferred. | 0016| C. If the case is tried before a jury and if a prima | 0017| facie case is established showing that the felony was committed | 0018| with the intent to aid and abet a criminal gang with a pattern of | 0019| criminal gang activity, the court shall submit the issue to the | 0020| jury by special interrogatory. | 0021| D. If the case is tried by the court and if a prima | 0022| facie case is established showing that the felony was committed | 0023| with the intent to aid and abet a criminal gang with a pattern of | 0024| criminal gang activity, the court shall decide the issue and shall | 0025| make a separate finding of fact thereon." | 0001| Section 6. EFFECTIVE DATE.--The effective date of the | 0002| provisions of this act is July 1, 1997. | 0003|  |