A. An alleged serious youthful offender may be detained in any of the following places, prior to arraignment in metropolitan, magistrate or district court:

(1) a detention facility for delinquent children, licensed by the children, youth and families department;

(2) any other suitable place, other than a facility for the care and rehabilitation of delinquent children, that meets standards for detention facilities, as set forth in the Children's Code [32A-1-1 NMSA 1978] and federal law; or

(3) a county jail, if a facility described in Paragraph (1) or (2) of this subsection is not appropriate.

B. When an alleged serious youthful offender is detained in a juvenile detention facility prior to trial, the time spent in the juvenile detention facility shall count towards completion of any sentence imposed.

C. At arraignment, when a metropolitan or district court judge or a magistrate determines that an alleged serious youthful offender should remain in custody, the alleged serious youthful offender may be detained in an adult or juvenile detention facility, subject to the facility's accreditation and the provisions of applicable federal law.

D. When an alleged serious youthful offender is found guilty of first degree murder, the court shall sentence the offender pursuant to the provisions of the Criminal Sentencing Act. The court may sentence the offender to less than, but not exceeding, the mandatory term for an adult. The determination of guilt becomes a conviction for purposes of the Criminal Sentencing Act.

E. Prior to the sentencing of an alleged serious youthful offender who is convicted of first degree murder, adult probation services shall prepare a presentence report and submit the report to the court and the parties five days prior to the sentencing hearing.

F. When the alleged serious youthful offender is convicted of a lesser offense than first degree murder, the court shall provide for disposition of the offender pursuant to the provisions of Section 32-2-19 or 32-2-20 NMSA 1978 [32A-2-19 or 32A-2-20 NMSA 1978]. When an offender is adjudicated as a delinquent child, the conviction shall not be used as a conviction for purposes of the Criminal Sentencing Act.

History: Laws 1993, ch. 77, § 3.

Compiler's notes. — Sections 32-2-19 and 32-2-20 NMSA 1978, referred to in the first sentence in Subsection F, were recompiled as 32A-2-19 and 32A-2-20 NMSA 1978 in 1993. See Article 2 of Chapter 32A NMSA 1978 and notes thereto.

Pre-sentence report is mandatory. — The district court does not have jurisdiction to sentence a youthful offender who has been convicted of first degree murder until a pre-sentence report has been prepared by adult probation services and the report has been submitted to the district court and the parties five days prior to the sentencing hearing. State v. Gutierrez, 2011-NMSC-024, 150 N.M. 232, 258 P.3d 1024.

Amenability to treatment. — Subsection F of this section gives the district court the discretion to impose an adult sentence as indicated in Section 32A-2-20 NMSA 1978 based on a finding that a child is not amenable to treatment. If the district court finds the child is amenable to treatment, then the district court should impose a juvenile disposition in accordance with 32A-2-19 NMSA 1978. State v. Muniz, 2003-NMSC-021, 134 N.M. 152, 74 P.3d 86, superceded by statute, State v. Jones, 2010-NMSC-012, 148 N.M. 1, 229 P.3d 474.

Children initially charged with first degree murder, but found guilty of lesser crimes, may be sentenced as adults under Subsection F of this section if the district court finds that circumstances warrant such a sentence, even when those children are found guilty of crimes that would otherwise warrant only a juvenile disposition. State v. Muniz, 2003-NMSC-021, 134 N.M. 152, 74 P.3d 86, superceded by statute, State v. Jones, 2010-NMSC-012, 148 N.M. 1, 229 P.3d 474.

Application to delinquent offenders. — The presentence confinement credit provided for in Sections 31-18-15.3 and 31-20-12 NMSA 1978 applies only to serious youthful offenders sentenced as adults, and not to a child adjudicated as a delinquent offender for a lesser-included offense. State v. Nanco, 2012-NMCA-109, 288 P.3d 527, cert. granted, 2012-NMCERT-010.

Presentence confinement credit does not apply to delinquent offenders. — Where the child, who was fifteen years old, was charged with committing first degree murder and two counts of tampering with evidence, and the jury determined that the child had committed the delinquent acts of voluntary manslaughter and one count with tampering with evidence, the child was not entitled to presentence confinement credit for the twenty-five months the child was detained in a juvenile detention facility before the district court adjudicated the child a delinquent offender. State v. Nanco, 2012-NMCA-109, 288 P.3d 527, cert. granted, 2012-NMCERT-010.

Law reviews. — For note, "State v. Muniz: Authorizing Adult Sentencing of Juveniles Absent a Conviction that Authorizes an Adult Sentence", see 35 N.M.L. Rev. 229 (2005).