SENATE BILL 261

56th legislature - STATE OF NEW MEXICO - second session, 2024

INTRODUCED BY

Gregory A. Baca and Gregg Schmedes

 

 

 

 

 

AN ACT

RELATING TO THE DELINQUENCY ACT; ALLOWING FOR THE IMPOSITION OF A STAYED ADULT CRIMINAL SENTENCE UPON ADJUDICATION OF A YOUTHFUL OFFENDER.

 

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

     SECTION 1. Section 32A-2-3 NMSA 1978 (being Laws 1993, Chapter 77, Section 32, as amended) is amended to read:

     "32A-2-3. DEFINITIONS.--As used in the Delinquency Act:

          A. "amenable to treatment" means the ability of a child to be rehabilitated or treated sufficiently by the time the child reaches twenty-one years of age to protect the public's safety;

          [A.] B. "delinquent act" means an act committed by a child that would be designated as a crime under the law if committed by an adult, not including a violation of Section 30-9-2 NMSA 1978, including the following offenses:

                (1) any of the following offenses pursuant to municipal traffic codes or the Motor Vehicle Code:

                     (a) driving while under the influence of intoxicating liquor or drugs;

                     (b) failure to stop in the event of an accident causing death, personal injury or damage to property;

                     (c) unlawful taking of a vehicle or motor vehicle;

                     (d) receiving or transferring of a stolen vehicle or motor vehicle;

                     (e) homicide by vehicle;

                     (f) injuring or tampering with a vehicle;

                     (g) altering or changing of an engine number or other vehicle identification numbers;

                     (h) altering or forging of a driver's license or permit or any making of a fictitious license or permit;

                     (i) reckless driving;

                     (j) driving with a suspended or revoked license; or

                     (k) an offense punishable as a felony;

                (2) buying, attempting to buy, receiving, possessing or being served any alcoholic liquor or being present in a licensed liquor establishment, other than a restaurant or a licensed retail liquor establishment, except in the presence of the child's parent, guardian, custodian or adult spouse. As used in this paragraph, "restaurant" means an establishment where meals are prepared and served primarily for on-premises consumption and that has a dining room, a kitchen and the employees necessary for preparing, cooking and serving meals. "Restaurant" does not include an establishment, as defined in regulations promulgated by the director of the special investigations unit of the department of public safety, that serves only hamburgers, sandwiches, salads and other fast foods;

                (3) a violation of Section 30-29-2 NMSA 1978, regarding the illegal use of a glue, aerosol spray product or other chemical substance;

                (4) a violation of the Controlled Substances Act;

                (5) escape from the custody of a law enforcement officer or a juvenile probation or parole officer or from any placement made by the department by a child who has been adjudicated a delinquent child;

                (6) a violation of Section 30-15-1.1 NMSA 1978 regarding unauthorized graffiti on personal or real property; or

                (7) a violation of an order of protection issued pursuant to the provisions of the Family Violence Protection Act;

          [B.] C. "delinquent child" means a child who has committed a delinquent act;

          [C.] D. "delinquent offender" means a delinquent child who is subject to juvenile sanctions only and who is not a youthful offender or a serious youthful offender;

          [D.] E. "detention facility" means a place where a child may be detained under the Children's Code pending court hearing and does not include a facility for the care and rehabilitation of an adjudicated delinquent child;

          [E.] F. "felony" means an act that would be a felony if committed by an adult;

          [F.] G. "misdemeanor" means an act that would be a misdemeanor or petty misdemeanor if committed by an adult;

          [G.] H. "restitution" means financial reimbursement by the child to the victim or community service imposed by the court and is limited to easily ascertainable damages for injury to or loss of property, actual expenses incurred for medical, psychiatric and psychological treatment for injury to a person and lost wages resulting from physical injury, which are a direct and proximate result of a delinquent act. "Restitution" does not include reimbursement for damages for mental anguish, pain and suffering or other intangible losses. As used in this subsection, "victim" means a person who is injured or suffers damage of any kind by an act that is the subject of a complaint or referral to law enforcement officers or juvenile probation authorities. Nothing contained in this definition limits or replaces the provisions of Subsections A and B of Section 32A-2-27 NMSA 1978;

          [H.] I. "serious youthful offender" means an individual fifteen to eighteen years of age who is charged with and indicted or bound over for trial for first degree murder. A "serious youthful offender" is not a delinquent child as defined pursuant to the provisions of this section;

          [I.] J. "supervised release" means the release of a juvenile, whose term of commitment has not expired, from a facility for the care and rehabilitation of adjudicated delinquent children, with specified conditions to protect public safety and promote successful transition and reintegration into the community. A juvenile on supervised release is subject to monitoring by the department until the term of commitment has expired and may be returned to custody for violating conditions of release; and

          [J.] K. "youthful offender" means a delinquent child subject to adult or juvenile sanctions who is:

                (1) fourteen to eighteen years of age at the time of the offense and who is adjudicated for at least one of the following offenses:

                     (a) second degree murder, as provided in Section 30-2-1 NMSA 1978;

                     (b) assault with intent to commit a violent felony, as provided in Section 30-3-3 NMSA 1978;

                     (c) kidnapping, as provided in Section 30-4-1 NMSA 1978;

                     (d) aggravated battery, as provided in Subsection C of Section 30-3-5 NMSA 1978;

                     (e) aggravated battery against a household member, as provided in Subsection C of Section 30-3-16 NMSA 1978;

                     (f) aggravated battery upon a peace officer, as provided in Subsection C of Section 30-22-25 NMSA 1978;

                     (g) shooting at a dwelling or occupied building or shooting at or from a motor vehicle, as provided in Section 30-3-8 NMSA 1978;

                     (h) dangerous use of explosives, as provided in Section 30-7-5 NMSA 1978;

                     (i) criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978;

                     (j) robbery, as provided in Section

30-16-2 NMSA 1978;

                     (k) aggravated burglary, as provided in Section 30-16-4 NMSA 1978;

                     (l) aggravated arson, as provided in Section 30-17-6 NMSA 1978; or

                     (m) abuse of a child that results in great bodily harm or death to the child, as provided in Section 30-6-1 NMSA 1978;

                (2) fourteen to eighteen years of age at the time of the offense, who is adjudicated for any felony offense and who has had three prior, separate felony adjudications within a three-year time period immediately preceding the instant offense. The felony adjudications relied upon as prior adjudications shall not have arisen out of the same transaction or occurrence or series of events related in time and location. Successful completion of consent decrees is not considered a prior adjudication for the purposes of this paragraph; or

                (3) fourteen years of age and who is adjudicated for first degree murder, as provided in Section 30-2-1 NMSA 1978."

     SECTION 2. Section 32A-2-6 NMSA 1978 (being Laws 1993, Chapter 77, Section 35) is amended to read:

     "32A-2-6. TRANSFER OF JURISDICTION OVER CHILD FROM OTHER TRIBUNALS TO COURT.--

          A. If it appears to a tribunal in a criminal matter that the defendant was under the age of eighteen years at the time the offense charged was alleged to have been committed and the offense charged is a delinquent act pursuant to the provisions of the Delinquency Act, the tribunal shall promptly transfer jurisdiction of the matter and the defendant to the court, together with a copy of the accusatory pleading and other papers, documents and transcripts of testimony relating to the case. The tribunal shall not transfer a serious youthful offender.

          B. Upon transfer, the court shall have exclusive jurisdiction over the proceedings and the defendant. The transferring tribunal shall order that the defendant promptly be taken to the court or taken to a place of detention designated by the court or released to the custody of a parent, guardian, custodian or other person legally responsible for the defendant to be brought before the court at a time designated by the court. Upon transfer to the court, a petition shall be prepared and filed in the court in accordance with the provisions of the Delinquency Act. If the defendant is not a child at the time of transfer, the court retains jurisdiction over the matter only until disposition is made by the court, unless disposition is made pursuant to Paragraph (2) of Subsection A of Section 32A-2-20.1 NMSA 1978."

     SECTION 3. Section 32A-2-17 NMSA 1978 (being Laws 1993, Chapter 77, Section 46, as amended) is amended to read:

     "32A-2-17. PREDISPOSITION STUDIES--REPORTS AND EXAMINATIONS.--

          A. After a petition has been filed and either a finding with respect to the allegations of the petition has been made or a notice of intent to admit the allegations of the petition has been filed, the court may direct that a predisposition study and report to the court be made in writing by the department or an appropriate agency designated by the court concerning the child, the family of the child, the environment of the child and any other matters relevant to the need for treatment or to appropriate disposition of the case. The following predisposition reports shall be provided to the parties and the court five days before actual disposition or sentencing:

                (1) the adult probation and parole division of the corrections department shall prepare a predisposition report for a serious youthful offender;

                (2) the department shall prepare a predisposition report for a serious youthful offender who is convicted of an offense other than first degree murder;

                (3) the department shall prepare a predisposition report for a youthful offender concerning the youthful offender's amenability to treatment, and if:

                     (a) the court determines that a juvenile disposition is appropriate, the department shall prepare a subsequent predisposition report; or

                     (b) the court makes the findings necessary to impose an adult sentence pursuant to Section 32A-2-20 NMSA 1978, the adult probation and parole division of the corrections department shall prepare a subsequent predisposition report; provided that this subparagraph shall not apply to an adult sentence sought pursuant to Section 32A-2-20.1 NMSA 1978; and