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, 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 include an alternative sentence that requires community service, treatment, education or any combination thereof. The court may 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, 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, 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 include an alternative sentence that requires community service, treatment, education or any combination thereof. The court may 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 suspend or defer any or all of the sentence or grant a conditional discharge, unless otherwise provided by law.

History: Laws 2003, ch. 384, § 3; 2007, ch. 46, § 38.

The 2007 amendment, effective June 15, 2007, made non-substantive language changes.

Decisions under former 31-18-16.1 NMSA 1978. — In light of the similarity of this section and former Section 31-18-16.1 NMSA 1978, annotations decided under former Section 31-18-16.1 NMSA 1978 have been included in the annotations in this section.

It is solely within province of legislature to establish penalties for criminal behavior. State v. Lack, 1982-NMCA-111, 98 N.M. 500, 650 P.2d 22, cert. denied, 98 N.M. 478, 649 P.2d 1391.

Failure to give defendant notice of enhancement. — Robbery defendant was entitled to notice of the state's intent to seek enhancement under this section, and failure to give him such notice was reversible error. State v. Smith, 1990-NMCA-082, 110 N.M. 534, 797 P.2d 984, cert. denied, 110 N.M. 533, 797 P.2d 983.

Where a robbery defendant was not properly notified that the state would seek old-age enhancement of his sentence under this section before he pled and was adjudicated guilty, the state was not precluded from seeking enhancement upon remand of his case for further proceedings. State v. Smith, 1990-NMCA-082, 110 N.M. 534, 797 P.2d 984, cert. denied, 110 N.M. 533, 797 P.2d 983.