1. 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. (1) a detention facility for delinquent children, licensed by the children, youth and families department;
   2. (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 [Chapter 32A NMSA 1978] and federal law; or
   3. (3) a county jail, if a facility described in Paragraph (1) or (2) of this subsection is not appropriate.
2. 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 toward completion of any sentence imposed.
3. 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.
4. 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; provided that a serious youthful offender given an adult sentence shall not be sentenced to life imprisonment without the possibility of release or parole. 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.
5. 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.
6. 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 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; 2023, ch. 24, § 1.

ANNOTATIONS

The 2023 amendment, effective June 16, 2023, prohibited the imposition of a sentence of life without the possibility of release or parole on a serious youthful offender given an adult sentence; in Subsection D, added "provided that a serious youthful offender given an adult sentence shall not be sentenced to life imprisonment without the possibility of release or parole"; and in Subsection F, after "Section", deleted "32-2-19 or 32-2-20" and added "32A-2-19 or 32A-2-20".

Applicability. — Laws 2023, ch. 24, § 5 provided that the provisions of Laws 2023, ch. 24 apply retroactively to all offenders currently serving an adult sentence for an offense committed as a child.

Constitutionality of excluding serious youthful offenders convicted of first-degree felony murder from receiving an amenability hearing. — Where defendant was charged and convicted of three counts of first-degree felony, murder and conspiracy to commit aggravated burglary, based on evidence that defendant, who was sixteen years old at the time, killed three members of a family with a pickaxe after he and two co-conspirators planned to burglarize the family in order to get money, and where, prior to sentencing, defendant filed a motion arguing that the constitutional prohibition against cruel and unusual punishment and the constitutional guarantee of equal protection require an amendability hearing in conjunction with the court's sentencing, defendant's constitutional rights were not violated by being sentenced without an amenability hearing, because cruel and unusual punishment jurisprudence does not guarantee an amenability hearing to juveniles simply because they are juveniles, and defendant failed to show that the legislature's statutory distinction is unsupported by a firm rationale or evidence in the record. State v. Ortiz, 2021-NMSC-029.

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).