A. The court has the discretion to invoke either an adult sentence or juvenile sanctions on a youthful offender. The children's court attorney shall file a notice of intent to invoke an adult sentence within ten working days of the filing of the petition, provided that the court may extend the time for filing of the notice of intent to invoke an adult sentence, for good cause shown, prior to the adjudicatory hearing. A preliminary hearing by the court or a hearing before a grand jury shall be held, within ten days after the filing of the intent to invoke an adult sentence, to determine whether probable cause exists to support the allegations contained in the petition.

B. If the children's court attorney has filed a notice of intent to invoke an adult sentence and the child is adjudicated as a youthful offender, the court shall make the following findings in order to invoke an adult sentence:

(1) the child is not amenable to treatment or rehabilitation as a child in available facilities; and

(2) the child is not eligible for commitment to an institution for children with developmental disabilities or mental disorders.

C. In making the findings set forth in Subsection B of this section, the judge shall consider the following factors:

(1) the seriousness of the alleged offense;

(2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner;

(3) whether a firearm was used to commit the alleged offense;

(4) whether the alleged offense was against persons or against property, greater weight being given to offenses against persons, especially if personal injury resulted;

(5) the maturity of the child as determined by consideration of the child's home, environmental situation, social and emotional health, pattern of living, brain development, trauma history and disability;

(6) the record and previous history of the child;

(7) the prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the child by the use of procedures, services and facilities currently available; and

(8) any other relevant factor, provided that factor is stated on the record.

D. If a child has previously been sentenced as an adult pursuant to the provisions of this section, there shall be a rebuttable presumption that the child is not amenable to treatment or rehabilitation as a child in available facilities.

E. If the court invokes an adult sentence, the court may sentence the child to less than, but shall not exceed, the mandatory adult sentence. A youthful offender given an adult sentence shall be treated as an adult offender and shall be transferred to the legal custody of an agency responsible for incarceration of persons sentenced to adult sentences. This transfer terminates the jurisdiction of the court over the child with respect to the delinquent acts alleged in the petition.

F. If a juvenile disposition is appropriate, the court shall follow the provisions set forth in Section 32A-2-19 NMSA 1978. A youthful offender may be subject to extended commitment in the care of the department until the age of twenty-one, pursuant to the provisions of Section 32A-2-23 NMSA 1978.

G. A child fourteen years of age or older, charged with first degree murder, but not convicted of first degree murder and found to have committed a youthful offender offense as set forth in Subsection I of Section 32A-2-3 NMSA 1978, is subject to the dispositions set forth in this section.

H. A child fourteen years of age or older charged with first degree murder, but found to have committed a delinquent act that is neither first degree murder nor a youthful offender offense as set forth in Subsection I of Section 32A-2-3 NMSA 1978, shall be adjudicated as a delinquent subject to the dispositions set forth in Section 32A-2-19 NMSA 1978.

History: 1978 Comp., § 32A-2-20, enacted by Laws 1993, ch. 77, § 49; 1995, ch. 206, § 14; 1996, ch. 85, § 5; 2003, ch. 225, § 11; 2005, ch. 189, § 17; 2009, ch. 239, § 21.

Cross references. — For escape from custody of the children, youth and families department, see 30-22-11.1 NMSA 1978.

For aggravated escape from the custody of the children, youth and families department, see 30-22-11.2 NMSA 1978.

The 2009 amendment, effective July 1, 2009, in Paragraph (5) of Subsection C, at the beginning of the sentence, before "maturity", deleted "sophistication and"; after "environmental situation", deleted "emotional attitude and" and added "social and emotional health"; and after "pattern of living", added "brain development, trauma history and disability".

Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released.

The 2005 amendment, effective June 17, 2005, in Subsection G, provided that a child fourteen years of age or older, charged with first degree murder, but not convicted of first degree murder and found to have committed a youthful offender offence is subject to the dispositions of this section; and added Subsection H, which provided that a child fourteen years of age or older charged with first degree murder, but found to have committed a delinquent act that is not first degree murder or a youthful offender offence shall be adjudicated as a delinquent subject to the dispositions of Section 32A-2-19 NMSA 1978.

The 2003 amendment, effective July 1, 2003, added present Subsection D and redesignated Subsections D to F as Subsections E to G.

The 1996 amendment, effective July 1, 1996, added Paragraph C(3) and redesignated the following paragraphs accordingly, and substituted "fourteen to eighteen" for "sixteen or seventeen" in Subsection F.

The 1995 amendment, effective July 1, 1995, in Subsection A, substituted "court" for "children's court judge", substituted "shall" for "must" preceding "file a notice", and deleted "children's" preceding "court" in the last sentence; in Paragraph (5) of Subsection C, substituted "child" for "juvenile"; in Subsection D, substituted "court" for "judge" and made a related change; and in Subsection E, substituted "court" for "judge" and "32A-2-19" for "32-2-19" in the first sentence and "32A-2-23" for "32-2-23" at the end.

Untimely preliminary hearing. — Where a preliminary hearing was held twenty-four days after the state filed notice of intent to charge the child as a youthful offender, the court did not commit reversible error in denying the child's motion to dismiss, because neither Rule 10-213 NMRA nor Section 32A-2-20 NMSA 1978 provides a remedy for a violation of the time limits for holding a preliminary hearing. State v. Leticia T., 2012-NMCA-050, 278 P.3d 553, rev'd, 2014-NMSC-020.

Jury determination not required. — Federal law does not require that a juvenile's amenability to treatment and eligibility for mental health commitment be determined by a jury. Gonzales v. Tafoya, 515 F.3d 1097 (10th Cir. 2008), cert. denied, 555 U.S. 890, 129 S. Ct. 211, 172 L. Ed . 2d 156 (2008).

Standard of proof of amenability. — Federal law does not clearly require the beyond-a-reasonable-doubt standard of proof at the amenability hearing, and the court may apply the less exacting (but still substantial) clear-and-convincing standard of proof in assessing the evidence of amenability to treatment or rehabilitation. Gonzales v. Tafoya, 515 F.3d 1097 (10th Cir. 2008), cert. denied, 555 U.S. 890, 129 S. Ct. 211, 172 L. Ed. 2d 156 (2008).

Accessory to criminal sexual penetration — The legislature intended that juveniles adjudicated to be accessories to criminal sexual penetration be punished in the same way as juveniles adjudicated to have committed CSP. Juveniles who are accessories to criminal sexual penetration are youthful offenders. Section 32A-2-20 NMSA 1978 gives the court discretion whether to impose a juvenile sanction or, if certain requirements are met, an adult sentence. State v. Perez, 2002-NMCA-040, 132 N.M. 84, 44 P.3d 530, cert. denied, 132 N.M. 83, 44 P.3d 529.

Amenability hearing is a condition precedent for exercising adult sentencing authority in youthful offender cases. — Only serious youthful offenders charged with first-degree murder can be tried in district court and automatically sentenced as adults if convicted. All others remain in the juvenile system until after adjudication and may be sentenced as adults only after an amenability hearing. State v. Jones, 2010-NMSC-012, 148 N.M. 1, 229 P.3d 474.

The right to an amenability hearing cannot be waived. State v. Jones, 2010-NMSC-012, 148 N.M. 1, 229 P.3d 474.

First-degree murder charges voluntarily dismissed by the state. — If the state voluntarily dismisses a first-degree murder charge against defendant and substitutes a youthful offender offense, then from the moment the state drops the first-degree murder charge, defendant is a child who is entitled to the full range of protections afforded by the Delinquency Act and the court lacks authority to sentence defendant as an adult without first determining defendant's amenability to treatment or rehabilitation as a juvenile. State v. Jones, 2010-NMSC-012, 148 N.M. 1, 229 P.3d 474.

Where defendant, who was age 17, was originally charged as a serious youthful offender with first-degree murder of an infant child; the state subsequently voluntarily dismissed the first-degree murder charge against defendant after recognizing that the state lacked the evidence to prove the crime and substituted the charge of child abuse resulting in death; defendant pled guilty to child abuse resulting in death, agreed to an adult disposition, and received an adult sentence of 18 years imprisonment; and in sentencing defendant, the district court did not first determine whether defendant was amenable to treatment or rehabilitation as a juvenile, defendant was a youthful offender when defendant entered into the plea agreement and the court erred in sentencing defendant as a adult without first determining defendant's amenability to treatment or rehabilitation as a juvenile. State v. Jones, 2010-NMSC-012, 148 N.M. 1, 229 P.3d 474.

Right to jury trial does not apply to amenability determinations. — A determination of amenability to treatment or rehabilitation of a youthful offender pursuant to Section 32A-2-20 NMSA 1978 is not within the scope of the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed.2d 435 (2000), and the sixth amendment's guarantee of a jury trial does not apply to amenability proceedings. State v. Rudy B., 2010-NMSC-045, 149 N.M. 22, 243 P.3d 726, overruling 2009-NMCA-104, 147 N.M. 45, 216 P.3d 810.

Subsections B and C of Section 32A-2-20 NMSA 1978 are facially unconstitutional under the due process clause of the fourteenth amendment, because they require the trial court, not a jury, to find the additional facts necessary to impose an adult sentence. State v. Rudy B., 2009-NMCA-104, 147 N.M. 45, 216 P.3d 810, cert. granted, 2009-NMCERT-009, overruling State v. Gonzales, 2001-NMCA-025, 130 N.M. 341, 24 P.3d 776, overruled by State v. Rudy B., 2010-NMSC-045, 149 N.M. 22, 243 P.3d 726.

Amenability to treatment. — Where defendant, who was a child offender under the juvenile system, pled guilty to second degree murder; defendant admitted that after a fight between the victim and defendant's cousin had ended, defendant went to defendant's car, opened the trunk, removed a sawed-off shotgun, loaded the shotgun and fired the shotgun at the victim; at the time the victim was shot, the victim was facing defendant with the victim's hands in the air; defendant's prior criminal history involved a firearm; defendant was married subsequent to the shooting; and defendant suffered from post-traumatic stress disorder because of the incident, the evidence was sufficient to support the court's determination that defendant was not amenable to treatment. State v. Trujillo, 2009-NMCA-128, 147 N.M. 334, 222 P.3d 1040, cert. quashed, 2010-NMCERT-011, 150 N.M. 490, 262 P.3d 1143.

Amenability determination not supported by substantial evidence. — Where child pleaded guilty to two counts of second-degree murder and three counts of intentional child abuse resulting in death for shooting and killing his father, mother, and three younger siblings, and where the district court found that the state failed to prove by clear and convincing evidence that child is not amenable to treatment or rehabilitation as a child in available facilities, the district court abused its discretion in committing child to the custody of the New Mexico children, youth and families department until child's twenty-first birthday, because the district court failed to consider and make findings on all the statutorily required factors of 32A-2-20(C) NMSA 1978, based its findings in the amendability order on a misapprehension of the law, and misunderstood, and then arbitrarily disregarded, the uncontradicted testimony of the experts who testified specifically about child's prospects for rehabilitation by the age of twenty-one. State v. Nehemiah G., 2018-NMCA-034, cert. denied.

Amenability to treatment is a jury question. — The due process clause of the fourteenth amendment requires that the determination of whether an offender is amenable to treatment or rehabilitation or is eligible for commitment to an institution as a condition to imposing an adult sentence be made by a jury beyond a reasonable doubt. State v. Rudy B., 2009-NMCA-104, 147 N.M. 45, 216 P.3d 810, cert. granted, 2009-NMCERT-009, overruling State v. Gonzales, 2001-NMCA-025, 130 N.M. 341, 24 P.3d 776, overruled by State v. Rudy B., 2010-NMSC-045, 149 N.M. 22, 243 P.3d 726.

Constitutionality. — This section is not arbitrary or discriminatory and adequately provides for the elemental due process rights of a child under the constitution. State v. Ernesto M., 1996-NMCA-039, 121 N.M. 562, 915 P.2d 318, cert denied, 121 N.M. 444, 913 P.2d 251.

Entitlement to dispositional hearing. — No matter what kind of youthful offender category a child falls under, that child is entitled to a dispositional hearing to determine whether he or she will be subject to juvenile sanctions or an adult sentence. State v. Stephen F., 2005-NMCA-048, 137 N.M. 409, 112 P.3d 270, aff'd in part, rev'd in part, 2006-NMSC-030, 140 N.M. 24, 139 P.3d 184.

Meaning of "offense less than first-degree murder." — Had the legislature intended to limit the scope of Subsection G of this section to lesser-included offenses of first-degree murder, it could have expressed that intent by using the phrase "lesser-included offense". Instead, the legislature meant Subsection G to apply to all crimes other than first-degree murder, which are "lesser crimes" in the sense that they carry lesser penalties than life imprisonment or death. State v. Muniz, 2003-NMSC-021, 134 N.M. 152, 74 P.3d 86, superseded by statute, State v. Jones, 2010-NMSC-012, 148 N.M. 1, 229 P.3d 474.

Sentencing as adult for unlisted crime. — A juvenile who is adjudicated for any of the offenses listed under Section 32A-2-3I NMSA 1978 (now Section 32A-2-3J NMSA) may be subject to adult sanctions under this section for any other offense in the same case. State v. Montano, 1995-NMCA-065, 120 N.M. 218, 900 P.2d 967, cert. denied, 120 N.M. 68, 898 P.2d 120.

District court had authority to impose an adult sentence on a juvenile who was originally charged as a serious youthful offender, but who subsequently pled guilty only to offenses that would not qualify for an adult sentence if brought independently. State v. Muniz, 2003-NMSC-021, 134 N.M. 152, 74 P.3d 86, superseded by statute, State v. Jones, 2010-NMSC-012, 148 N.M. 1, 229 P.3d 474.

Serious youthful offender not to be treated as delinquent child. — A serious youthful offender, upon conviction for a lesser crime than first-degree murder, should always be treated as a youthful offender, even when convicted of a crime that would otherwise categorize the child as a delinquent child. State v. Muniz, 2003-NMSC-021, 134 N.M. 152, 74 P.3d 86, superseded by statute, State v. Jones, 2010-NMSC-012, 148 N.M. 1, 229 P.3d 474.

Disposition of a youthful offender. — Children who are not convicted of first-degree murder and who appear to be amenable to rehabilitation have a basic and essential right not to be sentenced as adults unless the trial court fulfills the requirements of Subsections B and C of this section. State v. Hunter, 2001-NMCA-078, 131 N.M. 76, 33 P.3d 296.

Sentencing for non-capital felonies. — The basic sentences prescribed by Section 31-18-15 NMSA 1978 are "mandatory" within the meaning of Subsection D of this section, while the alterations in the basic sentences allowed by Section 31-18-15.1 NMSA 1978 are discretionary and, therefore, circumscribed by the Children's Code (Section 32A-1-1 NMSA 1978 et seq.); thus, the maximum sentence that may be imposed upon a youthful offender convicted of a non-capital felony is the basic sentence, plus, if applicable, the enhancements prescribed by Sections 31-18-16 and 31-18-16.1 NMSA 1978 (now repealed). State v. Guerra, 2001-NMCA-031, 130 N.M. 302, 24 P.3d 334, cert. denied, sub nom. State v. Ruby G., 130 N.M. 459, 26 P.3d 103.

Standard of proof applied to findings. — Neither the due process clause of the fourteenth amendment to the United States Constitution nor N.M. const. art. 11, § 4 require that findings under Subsection B be made by a jury beyond a reasonable doubt. State v. Gonzales, 2001-NMCA-025, 130 N.M. 341, 24 P.3d 776, overruled by State v. Rudy B., 2009-NMCA-104, 147 N.M. 45, 216 P.3d 810.

Weighing of factors. — Determination of the children's court judge that the order of enumeration of the factors set forth in this section were to be read in descending order of importance, and the application by the court of such methodology in his findings, did not prejudice the defendant child. State v. Ernesto M., 1996-NMCA-039, 121 N.M. 562, 915 P.2d 318, cert. denied, 121 N.M. 444, 913 P.2d 251.

Amenability to treatment. — Even though the testimony of the experts was conflicting, the decision of the children's court judge that the defendant child was not amenable to treatment was supported by substantial evidence. State v. Ernesto M., 1996-NMCA-039, 121 N.M. 562, 915 P.2d 318, cert. denied, 121 N.M. 444, 913 P.2d 251.

Every factor listed in Subsection C provides important information about the child and the child's prospects for rehabilitation. State v. Gonzales, 2001-NMCA-025, 130 N.M. 341, 24 P.3d 776, overruled by State v. Rudy B., 2009-NMCA-104, 147 N.M. 45, 216 P.3d 810.

Section 31-18-15.3(F) NMSA 1978 gives the district court the discretion to impose an adult sentence as indicated in this section 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 Section 32A-2-19 NMSA 1978. State v. Muniz, 2003-NMSC-021, 134 N.M. 152, 74 P.3d 86, superseded by statute as stated in State v. Jones, 2010-NMSC-012, 148 N.M. 1, 229 P.3d 474..

Eligibility for commitment. — In deciding whether defendant was eligible for commitment, the trial court was required to consider the seven factors listed in Subsection C. The court was not required to find eligibility based on facts that an expert deemed the child eligible for commitment under Section 32A-6-13I NMSA 1978, or that a treatment facility was willing and able to accept the child. State v. Gonzales, 2001-NMCA-025, 130 N.M. 341, 24 P.3d 776, overruled by State v. Rudy B., 2009-NMCA-104, 147 N.M. 45, 216 P.3d 810.

The district court did not abuse its discretion in finding that defendant "is not amenable to treatment or rehabilitation as a child in available facilities," and that he is not likely to be rehabilitated in "facilities currently available." State v. Todisco, 2000-NMCA-064, 129 N.M. 310, 6 P.3d 1032, cert. quashed, 132 N.M. 484, 51 P.3d 527 (2002).

Offense against person or property. — Sentencing of 17-year-old defendant as an adult upon conviction for shooting into a vehicle causing great bodily harm and aggravated assault with a deadly weapon was warranted based on consideration of the factors listed in this section. State v. Sosa, 1997-NMSC-032, 123 N.M. 564, 943 P.2d 1017.

Sentence not cruel and unusual punishment. — Sentencing a 17-year-old child as an adult to a 30-year term for rape and other crimes he admitted to committing was not cruel and unusual punishment. State v. Ernesto M., 1996-NMCA-039, 121 N.M. 562, 915 P.2d 318, cert. denied, 121 N.M. 444, 913 P.2d 251.

Standard of review. — Because the trial court used the clear and convincing standard in its finding that defendant was not amenable to treatment as a juvenile or eligible for commitment, the court of appeals evaluated whether, viewing the evidence in the light most favorable to the state, the trial court could have found that the clear and convincing standard was met. State v. Gonzales, 2001-NMCA-025, 130 N.M. 341, 24 P.3d 776, overruled by State v. Rudy B., 2009-NMCA-104, 147 N.M. 45, 216 P.3d 810.

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).