SUMMARY

September 2, 2021

2021COA118

No. 18CA1847, People v. Pellegrin — Crimes — Posting a 

Private Image for Harassment — Stalking — Harassment; 

Criminal Law — Prosecution of Multiple Counts for Same Act —

Lesser Included Offenses

In this “revenge porn” case, a division of the court of appeals 

decides two novel issues. First, does the term “breast of a female,” 

in section 18-7-107, C.R.S. 2020 (posting a private image for 

harassment), require the image to display the whole breast or only a 

portion of the breast? The division holds that an image posted for 

harassment need only display a portion of the female breast. 

Second, is harassment, § 18-9-111(1)(e), C.R.S. 2020, a lesser 

included offense of stalking, § 18-3-602(1)(c), C.R.S. 2020, under 

section 18-1-408(5)(c), C.R.S. 2020? The division concludes that it 

is not because the harassment and stalking statutes fail the single 

distinction test required by section 18-1-408(5)(c). 

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
COLORADO COURT OF APPEALS 2021COA118

Court of Appeals No. 18CA1487

El Paso County District Court No. 17CR4220

Honorable William B. Bain, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Trevor A. Pellegrin,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I

Opinion by JUDGE FREYRE

Yun and Graham*, JJ., concur

Announced September 2, 2021

Philip J. Weiser, Attorney General, Brittany L. Limes, Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Emily C. Hessler, Deputy State 

Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
1

¶ 1 In this “revenge porn” case, we are asked to decide two novel 

issues. First, we are asked to interpret the term “breast of a female” 

under the posting a private image for harassment statute, § 18-7-

107, C.R.S. 2020. Section 18-7-107(1)(a) criminalizes the posting 

or distribution of an image displaying the private intimate parts of 

an identified or identifiable person on social media or any website. 

“Private intimate parts” is defined as “external genitalia or the 

perineum or the anus or the pubes of any person or the breast of a 

female.” § 18-7-107(6)(c). The statute, however, does not define 

“breast of a female.” 

¶ 2 We first conclude that “breast of a female” is ambiguous and 

can reasonably be interpreted to mean either the whole breast or 

simply a portion of the breast. We next conclude, consistent with 

the legislative history, that “breast of a female” means any portion 

of the female breast. Finally, we conclude that the statute is not 

unconstitutionally vague or overbroad.

¶ 3 We are also asked to decide whether harassment, § 18-9-

111(1)(e), C.R.S. 2020, is a lesser included offense of stalking, § 18-

3-602(1)(c), C.R.S. 2020, under section 18-1-408(5)(c), C.R.S. 2020. 

We conclude that the statutes fail the single distinction test set 
2

forth in section 18-1-408(5)(c) because they differ in more than one 

respect and, therefore, affirm the convictions for stalking, posting a 

private image for harassment, and harassment. 

I. Background

¶ 4 Defendant, Trevor A. Pellegrin, and the victim began dating in 

2016, and they moved in together shortly thereafter. They were 

later engaged. During their relationship, the victim allowed 

Pellegrin to take private, intimate photos of her in various stages of 

undress. The victim ended the relationship in April 2017 and 

moved into an apartment with her sister.

¶ 5 After the breakup, the victim had limited contact with Pellegrin 

until July 2017. Although the victim was in a new relationship with 

another man, she and Pellegrin spent time together between July 

16 and July 19, 2017. Unbeknownst to Pellegrin, the victim had 

plans to see the other man on the evening of July 19.

¶ 6 After learning the victim was seeing someone else, Pellegrin 

repeatedly called and texted the victim from July 19 into July 20. 

He called the victim lewd names and sent nude photos he had 

taken of her during their relationship. Pellegrin threatened to post 

the nude photos online and to send them to her twelve-year-old 
3

brother. Distraught by Pellegrin’s texts, the victim left work early 

on July 20 and reported the texts to the police. The police viewed 

the text messages, but they told the victim they could do nothing 

until Pellegrin posted the photos online. Pellegrin continued 

repeatedly texting the victim until July 23, 2017.

¶ 7 Between July 20 and July 23, 2017, multiple family members 

told the victim that her Facebook profile had been altered. She 

looked at her Facebook profile page and saw that her cover and 

profile photos had been changed to nude photos of her on a bed. 

The cover photo was of her nude buttocks, legs, and back, while her 

profile page displayed a nude photo of her lying on her stomach 

propped up by her elbows with the side of her right breast exposed. 

She recognized these as photos Pellegrin had taken while they were 

dating. Her profile biography had also been changed to say the 

victim was an “awful” person, a “cheater,” and a “slut.”

¶ 8 Additionally, on July 23, 2017, the victim received numerous 

text messages and photos from strangers responding to a Craigslist 

advertisement. They included messages saying unknown people 

were driving by her home and random, unknown photos of male 
4

genitalia. She learned that a Craigslist ad had been posted on the 

“casual encounters” board stating,

So my name’s [victim’s name] I live in the 

springs I’m looking for a few guys to come 

show me a good time I’ve never tried this but 

I’m willing to try it you can find me on 

Facebook just search my name [victim’s name] 

my phone number is [victim’s phone number] 

please call me with what your interested in 

and maybe we can get together tonight I stay 

off [directions to the victim’s home]. Surprise 

me [emojis] text me a nude photo of yourself to 

get mines [emoji][.]

The ad also showed four photos of her — the two photos posted on 

Facebook, a photo of her clothed lying on a bed, and an additional 

photo showing the side of her nude breast.

¶ 9 A second Craigslist advertisement was posted on the “free 

stuff” board titled “Free engagement ring.” The ad included the 

same photos as the “casual encounters” ad and it said, “Text or call 

for a free good time [the victim’s phone number].”

¶ 10 The victim again contacted the police and provided a 

statement and her cell phone. The police arrested Pellegrin at his 

home. He admitted to posting “some photos that he considered 

butt shots, and that he had posted them for approximately an hour 

and then they were pulled down.”
5

¶ 11 The State charged Pellegrin with one count of stalking, two 

counts of posting a private image for harassment (one for Facebook 

and one for Craigslist), and one count of harassment. At trial, 

defense counsel argued that the victim posted nude photos of 

herself and then blamed Pellegrin because she wanted to get him in 

trouble. A jury convicted Pellegrin of stalking, posting a private 

image for harassment (Craigslist), and harassment, but it acquitted 

him of the other charge of posting a private image for harassment 

(Facebook).

¶ 12 The court sentenced Pellegrin to three years of supervised 

probation and ninety days in jail. It also made a domestic violence 

finding and ordered Pellegrin to participate in a domestic violence 

evaluation and comply with its recommendations.

II. Jury Poll

¶ 13 Pellegrin first contends that the trial court abused its 

discretion by not granting a mistrial after polling revealed that the 

verdicts were not unanimous. He asserts that the manner in which 

the court conducted the jury poll was coercive. We disagree.
6

A. Additional Facts

¶ 14 After deliberations, the jury returned guilty verdicts on all 

counts. The trial court polled the jury at defense counsel’s request, 

asking each juror “if these are indeed your verdicts.” Juror 8 

responded, “No”; and when the court asked, “These are not your 

verdicts,” Juror 8 said, “Nope.” The court ceased polling and 

provided the following instruction:

Well, members of the jury, I’m going to send 

you back for continuing deliberations. It is a 

requirement of the law that all verdicts be 

unanimous. And it sounds like . . . we have 

not reached unanimity. So it’s about 4:35. I’ll 

have you head back into the jury deliberation 

room. Again, I plan to let you go at 4:50. So 

we’ll come back and get you at 4:50. All right.

¶ 15 Defense counsel moved for a mistrial. He was concerned 

about potential juror misconduct or the “jury bullying with Juror 8” 

to return a guilty verdict. The prosecutor argued that these 

concerns were “purely speculative.” In the alternative, defense 

counsel asked the trial court to individually question Juror 8 about 

the nonunanimous verdict. The court denied the motion for a 

mistrial and denied the request to question Juror 8. It reasoned 

that there was 
7

no evidence on which to base a conclusion that 

the other jurors are back there right now 

improperly coercing Juror Number 8 to reach a 

guilty verdict. As I mentioned earlier when I 

asked Number 8 if these were her verdicts, she 

very assertively . . . said no, these are not her 

verdicts. So at least by appearances, she 

[does] not present as somebody [who] was 

meek and to be bullied into reaching a 

decision. I’ll add that she said these are not 

her verdicts almost with a tone of defiance. 

And the court found it lacked the authority to question Juror 8 

about deliberations under CRE 606(b).

¶ 16 Later, and immediately following the court’s evening recess 

instruction, Juror 8 stated, “[T]hey cleared it up for me what’s I was 

confused about, so now I agree.” The prosecutor asked the court to 

allow the jury to deliberate a “bit longer . . . because it sounds like 

they’re close.” The court declined the request and again instructed 

the jury to return the next day.

¶ 17 The following day, the jury deliberated two more hours before 

returning new verdict forms finding Pellegrin guilty of stalking, 

posting a private image for harassment (Craigslist), and 

harassment, and acquitting him of posting a private image for 

harassment (Facebook). Subsequent polling confirmed a 

unanimous verdict.
8

B. Standard of Review and Applicable Law

¶ 18 We review a trial court’s denial of a motion for a mistrial for an 

abuse of discretion. People v. Johnson, 2017 COA 11, ¶ 39. A trial 

court abuses its discretion when its decision is manifestly arbitrary, 

unreasonable, or unfair, or when it misapplies the law. Id. Under 

this standard, the test is not “whether we would have reached a 

different result but, rather, whether the trial court’s decision fell 

within a range of reasonable options.” People v. Salazar, 2012 CO 

20, ¶ 32 (Bender, C.J., dissenting) (quoting E-470 Pub. Highway 

Auth. v. Revenig, 140 P.3d 227, 230-31 (Colo. App. 2006)).

¶ 19 A trial court is responsible for ensuring that a conviction is the 

result of a unanimous verdict. People v. Rivera, 56 P.3d 1155, 

1160-61 (Colo. App. 2002); see also § 16-10-108, C.R.S. 2020; 

Crim. P. 23(a)(8), 31(a)(3). “Unanimity requires a deliberative 

process that expresses the conscientious conviction of each 

individual juror.” People v. Phillips, 91 P.3d 476, 479 (Colo. App. 

2004).

¶ 20 Under Crim. P. 31(d), 

[w]hen a verdict is returned and before it is 

recorded, the jury shall be polled at the 

request of any party or upon the court’s own 
9

motion. If upon the poll there is not 

unanimous concurrence, the jury may be 

directed to retire for further deliberations or 

may be discharged.

¶ 21 The right to a jury poll, however, is not absolute. Phillips, 91 

P.3d at 479. The manner of conducting a jury poll is within the

trial court’s discretion. Id.

C. Analysis

¶ 22 Relying on several factors considered in Harris v. United 

States, 622 A.2d 697, 705 (D.C. 1993), Pellegrin argues that after 

Juror 8 identified herself as a dissenting juror, the court should 

have inquired into whether the jury was deadlocked and provided 

further instructions to alleviate any coercive effect. However, we 

decline to adopt the Harris factors as the exclusive means of 

analyzing this issue and, instead, apply a general abuse of 

discretion standard consistent with our case law and the jury poll 

rule. See People v. Barnard, 12 P.3d 290, 295 (Colo. App. 2000) 

(“We review the court’s consideration of a juror’s doubt as to his or 

her verdict under an abuse of discretion standard.”); see also 

Phillips, 91 P.3d at 479. Under this standard, we conclude, for 

three reasons, that the trial court acted within its discretion by 
10

declining to declare a mistrial after instructing the jury to continue 

deliberations.

¶ 23 First, the trial court’s instruction to continue deliberations 

was not coercive. The court did not set a deadline to return 

verdicts. Nor did it tell the jury that unless its deliberations 

resulted in a unanimous verdict, a mistrial would be declared. Cf. 

Allen v. People, 660 P.2d 896, 898 (Colo. 1983) (“[T]he court’s 

arbitrary fifteen minute deadline [to return a verdict or a have a 

mistrial declared] may have prevented the jury from reaching a wellconsidered verdict.”). It told the jury to continue deliberations until 

4:50 p.m., the time at which the court had previously instructed the 

jury it would be excused. And, when the jury returned, the court 

declined to take a verdict, and instead told the jurors to “take a 

break from the case” for the evening and resume deliberations the 

following morning. Indeed, the jury deliberated for an additional 

two hours the following morning and returned a different verdict.

¶ 24 Second, though Pellegrin relies on People v. Black, 2020 COA 

136, for the proposition that the trial court should have inquired 

into whether the jury was deadlocked, that reliance is misplaced. 

In Black, a deliberating juror asked the court, “What happens if we 
11

can’t come to a unanimous decision on only one charge?” Id. at ¶ 

8. The court instructed the jury to continue deliberations without 

first determining whether it was deadlocked and, if so, how 

intractably. Id. The division found error in the trial court’s failure 

to inquire about whether the jury was deadlocked and thus, it could 

not determine whether the court’s instruction to continue 

deliberating was coercive. Id. at ¶¶ 24, 31. 

¶ 25 In contrast, the court here learned only that the verdict was 

not unanimous, not that the jury was deadlocked. Cf. People v. 

Martinez, 987 P.2d 884, 888 (Colo. App. 1999) (holding that if a 

juror gives an equivocal response to a jury poll, a trial court may 

make additional inquiries to determine if the verdict is unanimous). 

Without some indication that the jury could not reach a unanimous 

verdict, any extensive questioning about the deliberative process or 

about why the verdict was not unanimous would have been

improper. Gibbons v. People, 2014 CO 67, ¶ 32 (“Absent some 

affirmative indication from the jury that it harbors this concern, the 

trial court should not interfere with the jury’s deliberative 

process.”); see also People v. Juarez, 271 P.3d 537, 544 (Colo. App. 

2011); Martinez, 987 P.2d at 888.
12

¶ 26 Third, the trial court did not abuse its discretion by finding, 

based on her response to the poll and her demeanor, that Juror 8 

was unlikely to be bullied into a guilty verdict. See Barnard, 12 

P.3d at 295. And Pellegrin’s counsel presented no evidence, beyond 

mere speculation, that the remaining jurors bullied Juror 8 into 

finding him guilty. Indeed, the jury returned a different and more 

favorable (to Pellegrin) verdict after further deliberations.

¶ 27 Accordingly, we discern no error.

III. Constitutionality of Stalking Statute

¶ 28 Pellegrin next contends that the stalking statute, § 18-3-602, 

is unconstitutional on its face because the statute is overbroad. 

Because we are bound by the supreme court’s contrary holding in 

People v. Cross, 127 P.3d 71 (Colo. 2006), we reject his assertion 

and conclude the statute is facially constitutional.

A. Standard of Review and Applicable Law

¶ 29 We review the constitutionality of a statute de novo, but 

presume that statute is constitutional. People v. Folsom, 2017 COA 

146M, ¶ 70. 

¶ 30 Section 18-3-602(1)(c) provides as follows:
13

(1) A person commits stalking if directly, or 

indirectly through another person, the person 

knowingly:

. . . . 

(c) Repeatedly follows, approaches, contacts, 

places under surveillance, or makes any form 

of communication with another person, a 

member of that person’s immediate family, or 

someone with whom that person has or has 

had a continuing relationship in a manner that 

would cause a reasonable person to suffer 

serious emotional distress and does cause that 

person, a member of that person’s immediate 

family, or someone with whom that person has 

or has had a continuing relationship to suffer 

serious emotional distress. For purposes of 

this paragraph (c), a victim need not show that 

he or she received professional treatment or 

counseling to show that he or she suffered 

serious emotional distress.

¶ 31 In Cross, our supreme court concluded that a substantially 

similar stalking statute is not unconstitutionally overbroad. The 

court noted that the statute criminalizes only conduct that involves 

a “severe intrusion upon the victim’s personal privacy and 

autonomy, with an immediate and long-lasting impact on quality of 

life as well as risks to security and safety of the victim and persons 

close to the victim.” Cross, 127 P.3d at 79 (quoting former § 18-9-

111(4)(a), C.R.S. 2005, repealed, amended, and relocated, §§ 18-3-
14

601 to -602, C.R.S. 2011 (effective Aug. 11, 2010)). It held that the 

sweep of the statute does not include a substantial amount of 

constitutionally protected speech because the statute criminalizes

only acts of a particular nature — acts involving inappropriate 

intensity, persistence, and possessiveness, and severe intrusions on 

a victim’s personal privacy and autonomy — and that had a 

particular effect — objectively and subjectively causing serious 

emotional distress. Id.

B. Analysis

¶ 32 We reject Pellegrin’s contention that the stalking statute is 

unconstitutionally overbroad and reject his reliance on the Illinois 

Supreme Court’s decision in People v. Relerford, 104 N.E.3d 341 (Ill. 

2017). In doing so, we follow our supreme court’s desicion in Cross,

127 P.3d at 78-79, as we must. People v. Richardson, 181 P.3d 

340, 343-45 (Colo. App. 2007); see also People v. Smith, 183 P.3d 

726, 729 (Colo. App. 2008) (rejecting defendant’s argument that 

supreme court precedent was wrongly decided because we are 

bound by Colorado Supreme Court decisions).

¶ 33 We also reject Pellegrin’s contention that Reed v. Town of 

Gilbert, 576 U.S. 155 (2015), compels a different result. In Reed, 
15

the Supreme Court held that the Town of Gilbert’s exemption of 

categories of signs including “ideological” and “political” signs from 

its prohibition on the display of outdoor signs without a permit was 

unconstitutional. Id. at 159-60. The Court reasoned that contentbased laws — those that target speech based on the “topic 

discussed or the idea or message expressed” — are presumptively 

unconstitutional. Id. at 163. Content-based laws include laws that 

appear facially neutral but cannot be justified without reference to 

the content of the regulated speech or were adopted because of a 

disagreement with the message that the speech conveys. Id. at 

163-64. The Court went on to conclude that the laws in that case 

imposed content-based restrictions because the laws applied more 

stringent restrictions on various types of signs, which compelled an 

analysis of the content of the signs. Id. at 159, 171-72.

¶ 34 Colorado’s stalking statute, on the other hand, targets

repeated conduct that would “cause a reasonable person to suffer 

serious emotional distress.” § 18-3-602(1)(c). Thus, whether 

speech is permitted under the stalking statute is not based on the 

content of that speech but, rather, on whether that speech is part of 

a series of conduct in which a defendant “[r]epeatedly follows, 
16

approaches, contacts, places under surveillance, or makes any form 

of communication with another person . . . .” Id. Indeed, “the 

statute does not criminalize innocuous behavior,” but criminalizes a 

series of conduct without a significant impact on constitutionally 

protected speech. Cross, 127 P.3d at 78-79; see also Dugan v. 

State, 2019 WY 112, ¶ 22, 451 P.3d 731, 739 (The fact that the 

criminal stalking statute “identifies ‘lewd or obscene statements’ in 

the definition of harass does not make it a content-based regulation 

on speech rather than a regulation of conduct without a significant 

impact on protected speech.”).

IV. Sufficiency of the Evidence

¶ 35 Pellegrin next contends that the photos posted in the 

Craigslist ads insufficiently established the element of “private 

intimate parts” required for his conviction of posting a private image 

for harassment. He asserts that the photo showing the side of the 

victim’s exposed breast is not a photo depicting the “breast of a 

female” under the definition of “private intimate parts” because the 

“entire breast” was not displayed. See § 18-7-107(1)(a), (6)(c). 

Alternatively, he argues that the statute is vague and overbroad if 
17

“breast of a female” is interpreted to include less than the entire 

breast. We address each argument in turn.

A. Standard of Review and Applicable Law

¶ 36 In assessing the sufficiency of the evidence to support a 

conviction, we review the record de novo to determine whether the 

evidence, viewed in the light most favorable to the prosecution, was 

substantial and sufficient to support a conclusion by a reasonable 

mind that the defendant was guilty beyond a reasonable doubt. 

People v. Perez, 2016 CO 12, ¶ 8. 

¶ 37 We also review questions of statutory interpretation de novo. 

Id. When construing a statute, our primary task is to ascertain and 

give effect to the General Assembly’s intent. Turbyne v. People, 151 

P.3d 563, 567 (Colo. 2007). We begin with the statute’s plain 

language. People v. Huckabay, 2020 CO 42, ¶ 13. “If the language 

is clear and unambiguous on its face, we simply apply it as written 

and will not resort to other interpretive aids.” Id. We “respect the 

legislature’s choice of language,” and we “do not add words to the 

statute or subtract words from it.” Turbyne, 151 P.3d at 567-68.

¶ 38 If, however, the language is susceptible of more than one 

reasonable meaning, it is ambiguous. Marquez v. People, 2013 CO 
18

58, ¶ 7. “In that event, a number of intrinsic and extrinsic aids to 

construction have [been] developed to assist in resolving the 

ambiguity and determining which of the various reasonable 

interpretations is the appropriate one.” Id.

¶ 39 As relevant here, a person who is eighteen years or older 

commits the offense of posting a private image for harassment if

he or she posts or distributes through the use 

of social media or any website any photograph, 

video, or other image displaying the private 

intimate parts of an identified or identifiable 

person eighteen years of age or older or an 

image displaying sexual acts of an identified or 

identifiable person:

(I) With the intent to harass, intimidate, or 

coerce the depicted person;

(II)(A) Without the depicted person’s consent; 

or

(B) When the actor knew or should have 

known that the depicted person had a 

reasonable expectation that the image would 

remain private; and

(III) The conduct results in serious emotional 

distress of the depicted person.

§ 18-7-107(1)(a). The term “‘[p]rivate intimate parts’ means external 

genitalia or the perineum or the anus or the pubes of any person or 

the breast of a female.” § 18-7-107(6)(c) (emphasis added).
19

B. Breast of a Female

¶ 40 The General Assembly did not define “breast of a female” when 

defining “private intimate parts.” Pellegrin argues that the term 

“breast of a female” is unambiguous and plainly means the “entire 

breast.” He reasons that because the photo here depicted only the 

right side of the victim’s exposed breast, not her entire breast or the 

nipple, insufficient evidence supports the jury’s verdict. We are not 

convinced and conclude instead that the term “breast of a female” is 

susceptible of more than one reasonable interpretation (i.e., the 

entire female breast, any portion of the female breast from the top 

of the areola down, the female nipple, etc.) and is therefore 

ambiguous as applied to this case. Accordingly, we turn to 

interpretative aids to resolve the ambiguity.

¶ 41 In People v. Gagnon, 997 P.2d 1278 (Colo. App. 1999), a 

division of this court considered whether a photo depicting a 

portion of a child’s breast was sufficient to support a conviction of 

sexual exploitation of a child, § 18-6-403, C.R.S. 2020. We find the 

Gagnon division’s analysis of the statutory definition of “erotic 

nudity” analogous here. 
20

¶ 42 A person commits sexual exploitation of a child by knowingly 

causing a child to engage in the making of any “sexually exploitative 

material.” § 18-6-403(3)(a). “Sexually exploitative material” 

includes “erotic nudity.” § 18-6-403(2)(e), (j). Similar to the 

inclusion of “breast of a female” in the definition of “private intimate 

parts” under section 18-7-107(6)(c), the definition of “erotic nudity” 

includes the display of “the human breasts, or the undeveloped or 

developing breast area of the human child.” § 18-6-403(2)(d). The 

division rejected the defendant’s contention that the statute did not 

apply to his conduct because the photos did not display the child’s 

whole breast or include the nipple. Gagnon, 997 P.2d at 1281. It 

reasoned that this argument ignored the requirement that “erotic 

nudity” — a display or picture of the human breasts or undeveloped 

or developing breast area of a child — “must be for the purpose of 

real or simulated overt sexual gratification or stimulation of one or 

more of the persons involved.” Id. at 1281-82. In doing so, the 

defendant had not considered the harm the statute was intended to 

address. Id. at 1282.

¶ 43 Similarly, Pellegrin’s argument emphasizes the term “breast of 

a female” in the definition of “private intimate parts” to the 
21

exclusion of the statute’s purpose and the harm it was intended to 

address. 

¶ 44 The General Assembly sought to protect victims of “revenge 

porn” by enacting the posting of a private image for harassment 

statute. H.B. 14-1378, 69th Gen. Assemb., 2d Reg. Sess. (Colo. 

2014). Testimony leading to the statute’s enactment focused on the 

harm caused to victims by posting images displaying “private 

intimate parts” on social media or any website — including job loss, 

humiliation with family and friends, unwanted sexual requests and 

comments, stalking, threats by intimate partners and strangers, 

and even suicide — and the inadequate protections for them. See

Hearings on H.B. 14-1378 before the H. Judiciary Comm., 69th 

Gen. Assemb., 2d Reg. Sess. (Apr. 24, 2014); Hearings on H.B. 14-

1378 before the S. Judiciary Comm., 69th Gen. Assemb., 2d Reg. 

Sess. (Apr. 30, 2014); 2d Reading on H.B. 14-1378 before the S., 

69th Gen. Assemb., 2d Reg. Sess. (May 2, 2014). 

¶ 45 In 2018, the statute was amended in multiple ways, most 

notably to include the posting of “an image displaying sexual acts of 

an identified or identifiable person.” Ch. 192, sec. 1, § 18-7-107, 

2018 Colo. Sess. Laws 1276-77. “Displaying sexual acts” is defined 
22

as “any display of sexual acts even if the private intimate parts are 

not visible in the image.” Id. (emphasis added). This amendment 

closed a loophole that had allowed persons to avoid liability by 

posting images of sexual acts that did not depict private intimate 

parts. See Hearings on H.B. 18-1264 before the H. Judiciary 

Comm., 71st Gen. Assemb., 2d Reg. Sess. (Mar. 20, 2018). The 

testimony supporting this amendment focused on the trauma and 

psychological harm victims suffered even when their private parts 

were not shown in the image displaying a sexual act and described 

the need to strengthen safeguards for victims. Id. 

¶ 46 Pellegrin does not argue that a female victim somehow suffers 

less harm when only a portion of her breast is exposed, as opposed 

to the entire breast. Instead, he argues that the limited discussion 

about “private intimate parts” during the legislative hearings favors 

his argument that “breast of a female” is limited to the display of 

the entire breast. And he contends that if the General Assembly 

had intended to include any portion of the female breast within the 

definition, it could have done so. See, e.g., § 18-7-501(7), C.R.S. 

2020 (“‘Sexually explicit nudity’ means . . . the showing of the 

female breast with less than a fully opaque covering of any portion 
23

thereof below the top of the areola . . . .”); § 13-21-1402(7)(a), C.R.S. 

2020 (“‘Intimate image’ means a photograph, film, video recording, 

or other similar medium that shows . . . female postpubescent 

nipple of a depicted individual . . . .”).

¶ 47 In our view, however, the General Assembly did not 

communicate a clear intent to limit the term “breast of a female” to 

the entire female breast. Rather, the legislative history reveals a 

clear purpose to protect victims from the harm caused by the 

posting of private intimate parts images online and to strengthen 

protections from those harms. It does not follow that the harm is 

avoided or even lessened by posting a photo of only a portion of an 

identifiable person’s exposed breast. If the General Assembly had 

intended to limit the term “breast of a female” to the entire breast, it 

could have done so, and we may not add words to or subtract words 

from the statute. See Turbyne, 151 P.3d at 567.

¶ 48 Construing the statute as a whole, we conclude that the term 

“breast of a female” includes any display of an identifiable female’s 

exposed breast. To conclude otherwise would frustrate the statute’s 

purpose. See AviComm, Inc. v. Colo. Pub. Utils. Comm’n, 955 P.2d 

1023, 1031 (Colo. 1998) (“[T]he intention of the legislature will 
24

prevail over a literal interpretation of the statute that leads to an 

absurd result.”); State v. Nieto, 993 P.2d 493, 501 (Colo. 2000) (“In 

any event, the ultimate goal is to determine and give effect to the 

intent of the General Assembly; in doing so, a reviewing court must 

follow the statutory construction that best effectuates the intent of 

the General Assembly and the purposes of the legislative scheme.”).

C. Constitutionality

¶ 49 Pellegrin next contends that interpreting “breast of a female” to 

include any portion of the breast renders the statute 

unconstitutionally vague and overbroad on its face. We disagree. 

¶ 50 Under the posting a private image for harassment statute, 

§ 18-7-107(1)(a), the prosecution must prove beyond a reasonable 

doubt that the defendant intended to harass, intimidate, or coerce 

the victim when the defendant posted or distributed an image 

displaying the identifiable victim’s private intimate parts online 

without the victim’s consent, or if the defendant knew or should 

have known the victim had a reasonable expectation that the image 

would remain private. And the victim must suffer serious emotional 

distress. Id.
25

¶ 51 The vagueness doctrine is rooted in principles of due process. 

People v. Shell, 148 P.3d 162, 172 (Colo. 2006). Due process 

requires that a law give fair warning of the prohibited conduct. Id. 

A law offends due process if “it does not provide fair warning of the 

conduct prohibited or if its standards are so ill-defined as to create 

a danger of arbitrary and capricious enforcement.” Id. (quoting 

Parrish v. Lamm, 758 P.2d 1356, 1367 (Colo. 1988)). Thus, a 

statute “is not void for vagueness if it fairly describes the conduct 

forbidden, and persons of common intelligence can readily 

understand its meaning and application.” Parrish, 758 P.2d at 

1367. To prevail on a facial challenge for vagueness, the challenger 

must show that the statute is incomprehensible in all its 

applications. People v. McCoy, 2015 COA 76M, ¶ 65, aff’d on other 

grounds, 2019 CO 44.1

¶ 52 Pellegrin argues that interpreting “breast of a female” to mean 

any portion of the female breast is unconstitutionally vague 

because it fails to give notice of how much of the breast must be 

1 Whether this principle remains valid “in all its applications” is 

questionable. See People v. Graves, 2016 CO 15, ¶ 25 n. 8; People 

v. Plemmons, 2021 COA 10, ¶¶ 18-19.
26

depicted and what conduct the statute criminalizes. However, 

Pellegrin focuses on one portion of the statute without considering 

the other elements of the offense.

¶ 53 In the context of the statute as a whole, our interpretation of 

“breast of a female” is specific enough to provide a person of 

common intelligence with notice that posting an image of any 

portion of the exposed female breast online is prohibited if such 

person posts the image with the requisite intent and without the 

victim’s consent, or with knowledge that the victim had a 

reasonable expectation that the image would remain private. Thus, 

Pellegrin has not established that the statute is incomprehensible in 

all of its applications. See Shell, 148 P.3d at 172.

¶ 54 Regarding overbreadth, a statute is not unconstitutionally 

overbroad simply because it could possibly be applied in some 

unconstitutional manner. People v. Baer, 973 P.2d 1225, 1231 

(Colo. 1999). “A statute is overbroad if it sweeps so 

comprehensively as to include within its proscriptions a substantial 

amount of constitutionally protected speech.” Id.

¶ 55 Pellegrin does not argue that the statute sweeps so 

comprehensively as to include a substantial amount of 
27

constitutionally protected speech. Indeed, the posting a private 

image for harassment statute requires proof of (1) an identifiable 

victim; (2) intent; (3) lack of consent (or knowledge that the victim 

had a reasonable expectation that the image would remain private); 

and (4) serious emotional distress of the victim. These elements, in 

addition to displaying the private intimate parts, narrow the 

statute’s potential reach so as not to criminalize harmless behavior. 

See Cross, 127 P.3d at 78-79.

¶ 56 In this case, without the victim’s consent, Pellegrin posted on 

Craigslist a private photo showing the side of the victim’s exposed 

breast. The Craigslist ad invited strangers to contact the victim for 

a “good time” and included the victim’s name, photos showing her 

face, her phone number, and directions to her home. The victim 

then received numerous text messages requesting sexual 

encounters and photos of male genitalia. As a result, the victim 

contacted the police, moved from her home, and quit her job. She 

testified that seeing private photos of herself online made her feel 

“violated” and “humiliated.” This is precisely the type of harm 

section 18-7-107(1)(a) was intended to address.
28

¶ 57 Viewing this evidence in the light most favorable to the 

prosecution, we conclude there was sufficient evidence to convict 

Pellegrin of posting a private image for harassment on Craigslist. 

See People v. Harrison, 2020 CO 57, ¶ 32 (“Under Bennett’s

substantial evidence test, we inquire whether the evidence, ‘viewed 

as a whole and in the light most favorable to the prosecution, is 

substantial and sufficient to support a conclusion by a reasonable 

mind that the defendant is guilty of the charge beyond a reasonable 

doubt.’” (quoting People v. Bennett, 183 Colo. 125, 130, 515 P.2d 

466, 469 (1973))).

¶ 58 Accordingly, we discern no error.

V. Merger

¶ 59 Pellegrin next contends that harassment, § 18-9-111(1)(e), is a 

lesser included offense of stalking, § 18-3-602(1)(c), under section 

18-1-408(5)(c) and, thus, the convictions must merge. For the 

reasons explained below, we disagree. 

A. Standard of Review and Applicable Law

¶ 60 “Whether an offense is a lesser included offense of another 

requires statutory interpretation and therefore poses a legal 

question that we review de novo.” People v. Zweygardt, 2012 COA 
29

119, ¶ 10. As well, we review de novo double jeopardy contentions. 

People v. Frye, 2014 COA 141, ¶ 30. But because this issue was 

not preserved, we review it for plain error. Reyna-Abarca v. People, 

2017 CO 15, ¶ 47. 

¶ 61 As set forth above in Part IV, we review questions of statutory 

interpretation de novo, and when construing a statute, our primary 

task is to ascertain and give effect to the General Assembly’s intent. 

See Turbyne, 151 P.3d at 567.

¶ 62 The Double Jeopardy Clauses of the United States and 

Colorado Constitutions protect criminal defendants from multiple 

punishments for the same offense. U.S. Const. amends. V, XIV; 

Colo. Const. art. II, § 18; see also Reyna-Abarca, ¶ 49. Double 

jeopardy principles preclude the imposition of multiple 

punishments for the same offense unless the legislature has 

specifically authorized multiple punishments. Reyna-Abarca, ¶ 50. 

¶ 63 Under section 18-1-408(1)(a), a court may not enter 

convictions for two offenses arising from the same conduct if “[o]ne 

offense is included in the other.” An offense is included in another,

under section 18-1-408(1)(a), if “the elements of the lesser offense 

are a subset of the elements of the greater offense, such that the 
30

lesser contains only elements that are also included in the elements 

of the greater offense.” Reyna-Abarca, ¶ 64. 

¶ 64 Section 18-1-408(5) defines when an offense is included in a 

charged offense, and that definition is “substantially broader” that 

that in section 18-1-408(5)(a). People v. Raymer, 662 P.2d 1066, 

1069 (Colo. 1983). Under section 18-1-408(5)(c), an offense is an 

included one if “[i]t differs from the offense charged only in the 

respect that a less serious injury or risk of injury to the same 

person, property, or public interest or a lesser kind of culpability 

suffices to establish its commission.” (Emphasis added.) In other 

words, a lesser offense is included in the greater offense “if proof of 

the facts required to prove the statutory elements of the greater 

offense necessarily establishes all of the elements of the lesser 

offense except that the offenses require proof of a different mens rea

element or degree of injury or risk of injury.” People v. Leske, 957 

P.2d 1030, 1040 (Colo. 1998) (emphasis added).

¶ 65 As relevant here, a person commits harassment if, 

with intent to harass, annoy, or alarm another 

person, he or she:

. . . .
31

(e) Directly or indirectly initiates 

communication with a person or directs 

language toward another person, anonymously 

or otherwise, by telephone, telephone network, 

data network, text message, instant message, 

computer, computer network, computer 

system, or other interactive electronic medium 

in a manner intended to harass or threaten 

bodily injury or property damage, or makes 

any comment, request, suggestion, or proposal 

by telephone, computer, computer network, 

computer system, or other interactive 

electronic medium that is obscene.

§ 18-9-111(1)(e).

¶ 66 A person commits stalking if

directly, or indirectly through another person, 

the person knowingly:

. . . .

(c) Repeatedly follows, approaches, contacts, 

places under surveillance, or makes any form 

of communication with another person, a 

member of that person’s immediate family, or 

someone with whom that person has or has 

had a continuing relationship in a manner that 

would cause a reasonable person to suffer 

serious emotional distress and does cause that 

person, a member of that person’s immediate 

family, or someone with whom that person has 

or has had a continuing relationship to suffer 

serious emotional distress.

§ 18-3-602(1)(c).
32

B. Analysis

¶ 67 Pellegrin does not argue that harassment is a lesser included 

offense of stalking under the strict elements test set forth in section 

18-1-408(5)(a). Instead, he argues that harassment is a lesser 

included offense under the broader test in section 18-1-408(5)(c). 

¶ 68 The parties agree that harassment differs from stalking both in 

the degree of injury or risk of injury and the kind of culpability 

required. Indeed, harassment requires proof of intentional conduct 

while stalking requires proof of knowing conduct. As well, 

harassment is accomplished “in a manner intended to harass or 

threaten bodily injury,” § 18-9-111(1)(e), while stalking is 

accomplished “in a manner that would cause a reasonable person 

to suffer serious emotional distress and does cause . . . serious 

emotional distress,” § 18-3-602(1)(c). But the parties disagree 

about the meaning of the word “or” separating the mens rea 

language from the risk of harm language in section 18-1-408(5)(c). 

Pellegrin contends that “or” is not exclusive and means “and/or.” 

See In re Estate of Dodge, 685 P.2d 260, 265-66 (Colo. App. 1984) 

(explaining the difference between the “inclusive ‘or,’” “meaning A or 

B, or both,” and the “exclusive ‘or,’” “meaning A or B, but not both”). 
33

The People, on the other hand, argue that “or” is limited by the 

word only and that only one distinction between the two offenses 

may exist for them to merge — either the mens rea or the risk of 

harm. They reason that because the statutes reflect two 

distinctions, they do not satisfy the single distinction test and 

cannot merge under section 18-1-408(5)(c). We agree with the 

People and conclude, for two reasons, that the word “or” in 

subsection (5)(c) is exclusive and that an offense is a lesser included 

one only where the lesser offense differs in the degree of injury or 

risk of injury or in the kind of culpability, but not both.

¶ 69 First, “when the word ‘or’ is used in a statute, it is presumed 

to be used in the disjunctive sense, unless legislative intent is 

clearly to the contrary.” Armintrout v. People, 864 P.2d 576, 581 

(Colo. 1993); see also People v. Valenzuela, 216 P.3d 588, 592 (Colo. 

2009) (“Use of the word ‘or’ is ordinarily ‘assumed to demarcate 

different categories.’” (quoting Garcia v. United States, 469 U.S. 70, 

73 (1984))); 1A Norman J. Singer & Shambie Singer, Sutherland 

Statutory Construction § 21:14, Westlaw (7th ed. database updated 

Nov. 2020) (“The literal meaning of [‘and’ and ‘or’] should be 

followed unless it renders the statute inoperable or the meaning 
34

becomes questionable.”). A reviewing court may substitute the 

word “or” for “and” to avoid an absurd or unreasonable result. See 

Smith v. Colo. Dep’t of Hum. Servs., 916 P.2d 1199, 1201 (Colo. App. 

1996). 

¶ 70 The word “only” is restrictive and is synonymous with 

exclusively. Webster’s Third New International Dictionary 1577 

(2002); see also Pauma Band of Luiseno Mission Indians of Pauma 

& Yuima Rsrv. v. California, 813 F.3d 1155, 1175 (9th Cir. 2015)

(“The use of the word ‘only’ is routinely defined to mean alone, 

solely or exclusively.”). Here, the General Assembly’s inclusion of 

the word “only” before the disjunctive “or” evidences its intent to 

limit “or” to a single distinction between the offenses, rather than 

the “and/or” meaning Pellegrin suggests. See 3 Shambie Singer, 

Sutherland Statutory Construction § 57:8, Westlaw (8th ed. database 

updated Nov. 2020) (“Legislatures may signal such an intent by 

using the word “only,” or by including a limiting clause after an 

affirmative direction.”) (footnote omitted); Bryan A. Garner, Garner’s 

Dictionary of Legal Usage 635 (3d ed. 2011) (the best placement for 

the word “only” is “before the words intended to be limited”); see 

also Stanley v. Cottrell, Inc., 784 F.3d 454, 466 (8th Cir. 2015) 
35

(finding the use of limiting words or phrases helpful in a disjunctive 

reading of the word “or”); People in Interest of J.O., 2015 COA 119, 

¶ 14 (“[T]he General Assembly’s use of ‘or’ is limited by the word 

‘either.’”), overruled on other grounds by People in Interest of T.B., 

2021 CO 59. 

¶ 71 Second, our supreme court’s holdings in Leske and Raymer

further counsel that the word “or” cannot be substituted with 

“and/or.” In Raymer, the court held that aggravated robbery is a 

lesser included offense of felony murder (based on robbery) by 

concluding, under 18-1-408(5)(c), that the only difference between 

aggravated robbery and felony murder is the victim’s death (risk of 

harm). Raymer, 662 P.2d at 1070 (“Where . . . the robbery victim is 

actually killed during the course of a robbery, then the crime of 

aggravated robbery differs from the charge of felony murder only in 

the sense contemplated by section 18-1-408(5)(c), namely, that an 

injury less serious than death suffices to establish its commission.”) 

(emphasis added).

¶ 72 Similarly, in Leske, the supreme court held that sexual assault 

on a child is not a lesser included offense of sexual assault on a 

child by one in a position of trust, under 18-1-408(5)(c). Leske, 957 
36

P.2d at 1041. It noted that the two offenses do not differ in 

culpability or risk of injury but, instead, differed in several other 

respects. Id. It concluded that “[b]ecause the offenses differ in 

ways other than those contemplated by subsection (5)(c), that 

subsection is inapplicable.” Id.; see also People v. Chapman, 192 

Colo. 322, 325, 557 P.2d 1211, 1213-14 (1977) (holding that “one 

who commits reckless driving necessarily has been guilty of careless 

driving” because the offenses differ only in the degree of negligence); 

Gatrell v. Kurtz, 207 P.3d 916, 918 (Colo. App. 2009) (“[T]he 

commas, which separate several distinct actions, the last of which 

is preceded by the disjunctive ‘or,’ demarcate different categories.”). 

¶ 73 As well, most of the divisions of this court that have applied 

subsection (5)(c) have applied a single distinction test. See People v. 

Oliver, 2020 COA 97, ¶ 63 (holding that second degree possession of 

contraband is a lesser included offense of first degree possession of 

contraband under section 18-1-408(5)(c) because the offenses differ 

“only as to the severity or risk of injury posed by the type of 

contraband each proscribe”) (emphasis added); People v. Hoggard, 

2017 COA 88, ¶¶ 32-33 (concluding second degree forgery is a 

lesser included offense of felony forgery because the “offenses differ 
37

only with the respect to the type of document involved in the crime”) 

(emphasis added), aff’d on other grounds, 2020 CO 54; People v. 

Duran, 272 P.3d 1084, 1096 (Colo. App. 2011) (“[R]eckless 

manslaughter is a lesser included offense of first degree extreme 

indifference murder because the offenses differ only as to degree of 

culpability.”) (emphasis added); People v. Horton, 683 P.2d 358, 361 

(Colo. App. 1984) (holding that, where a first degree sexual assault 

victim is killed during the assault, first degree sexual assault is a 

lesser included offense of felony murder under section 18-1-

408(5)(c) because the offenses differ only in the degree of injury); 

see also People v. Palmer, 944 P.2d 634, 639 (Colo. App. 1997)

(“[B]ecause the offenses differ with respect to both the culpability 

required and the injury or risk of injury required, we conclude that, 

even under the provisions of [section] 18-1-408(5)(c), menacing is 

not a lesser included offense of second degree assault.”), rev’d on 

other grounds, 964 P.2d 524 (Colo. 1998).

¶ 74 Nevertheless, even if we accepted Pellegrin’s interpretation, the 

outcome would not change. Not only do stalking and harrassment 

differ in the degree of injury or risk of injury and the degree of 

culpability, but they also differ in the class of victims to which they 
38

apply. The class of victims under the stalking statute includes not 

only another person but “a member of that person’s immediate 

family[] or someone with whom that person has or has had a 

continuing relationship.” § 18-3-602(1)(c); see Leske, 957 P.2d at 

1040 (holding that because the offenses addressed different classes 

of victims, section 18-1-408(5)(c) was inapplicable); see also 

Zweygardt, ¶ 26 (“Because this distinction is not one of the two 

ways that a lesser included offense can differ from the greater 

offense under section 18-1-408(5)(c), careless driving is not a lesser 

included offense of vehicular assault (reckless) under that 

subsection.”).

¶ 75 Accordingly, we conclude harassment is not a lesser included 

offense of stalking under section 18-1-408(5)(c).

VI. Domestic Violence Finding

¶ 76 Pellegrin last contends that under Apprendi v. New Jersey, 

530 U.S. 466 (2000), he had a Sixth Amendment right to have a 

jury, not the trial court, determine whether the crime for which he 

was convicted included an act of domestic violence. We disagree 

and conclude a domestic violence finding under section 18-6-
39

801(1)(a), C.R.S. 2020, does not impose a “penalty” as contemplated 

by Apprendi. 

A. Standard of Review and Applicable Law

¶ 77 Trial courts have broad discretion over sentencing decisions. 

Villanueva v. People, 199 P.3d 1228, 1231 (Colo. 2008). “However, 

we review constitutional challenges to sentencing determinations de 

novo.” People v. Jaso, 2014 COA 131, ¶ 8. Where an error of 

constitutional dimension occurs, “the sentence must be vacated 

unless the error was harmless beyond a reasonable doubt.” Id. at 

¶ 9 (quoting Villanueva, 199 P.3d at 1231).

¶ 78 The Sixth Amendment requires that any fact, other than the 

fact of a prior conviction, that increases the prescribed statutory 

maximum penalty must be submitted to a jury and be proved 

beyond a reasonable doubt. Apprendi, 530 U.S. at 490; see also 

Alleyne v. Unites States, 570 U.S. 99, 102 (2013) (extending 

Apprendi by holding that any fact that increases a defendant’s 

mandatory minimum sentence must also be found by a jury under 

the Sixth and Fourteenth Amendments); Blakely v. Washington, 542 

U.S. 296, 303 (2004). But, “an essential prerequisite to the Sixth 

Amendment inquiry under Apprendi and Alleyne is that the 
40

sentence must be punitive in nature.” People v. Heisler, 2017 COA 

58, ¶ 46; see also People v. Rowland, 207 P.3d 890, 895 (Colo. App. 

2009) (concluding that where a sentence is not punitive, Apprendi is 

inapplicable).

¶ 79 Section 18-6-801(1)(a) authorizes a trial court to make a 

factual determination that the crime for which a defendant was 

convicted included an act of domestic violence, as defined by 

section 18-6-800.3(1), C.R.S. 2020. If the court makes such a 

finding, domestic violence treatment is mandated in addition to any 

sentence imposed on the person. § 18-6-801(1)(a).

¶ 80 In Heisler, ¶¶ 44-45, a division of this court held that section 

18-6-801(1)(a) “does not run afoul of the Sixth Amendment” under 

Alleyne because “court-ordered domestic violence treatment . . . is 

not a form of punishment and, therefore, the statute does not 

mandate a ‘penalty’ as contemplated by Apprendi.” Applying the 

seven-factor test set forth in Kennedy v. Mendoza-Martinez, 372 

U.S. 144, 168-69 (1963), the division concluded that domestic 

violence treatment was not “punishment” because it (1) imposes no 

affirmative disability or restraint; (2) was not historically regarded 

as punishment; (3) requires no finding of scienter; (4) is 
41

rehabilitative, not retributive, in nature; (5) has no alternative, 

punitive purpose that undercuts its rehabilitative purpose; and (6) 

does not impose excessive burdens on a defendant. Heisler, ¶¶ 49-

64.

B. Analysis

¶ 81 We find the reasoning in Heisler persuasive and apply it here. 

In doing so, we reject Pellegrin’s contention that Heisler was 

wrongly decided. Specifically, he argues the division in Heisler

applied the seven-factor test in Mendoza-Martinez without first 

determining whether a domestic violence finding is a criminal or 

civil punishment. See People in Interest of T.B., 2019 COA 89, ¶ 21 

(“To decide whether a statute creates a punishment, a court must 

first ‘ascertain whether the legislature meant the statute to 

establish ‘civil’ proceedings.’”) (citations omitted), aff’d in part and 

rev’d in part, 2021 CO 59. The Supreme Court, however, 

established the seven-factor test to assist in determining the 

punitive nature of a sanction. Mendoza-Martinez, 372 U.S. at 168; 

see also United States v. Ward, 448 U.S. 242, 249 (1980) (noting 

that the seven factors in Mendoza-Martinez are helpful 

considerations in determining whether Congress provided for 
42

sanctions so punitive as to transform a civil remedy into a criminal 

penalty); People in Interest of T.B., ¶¶ 31-47 (applying the MendozaMartinez factors in its analysis of whether a statute created a 

punishment). And we agree that the Mendoza-Martinez factors were 

the appropriate analytical framework to determine whether a 

domestic violence finding is a penalty.

¶ 82 In addition, we reject Pellegrin’s reliance on People v. Jaso, 

2014 COA 131. In Jaso, the trial court’s domestic violence finding 

was used not only to mandate domestic violence treatment, but also 

as part of a larger habitual domestic violence offender 

determination. Id. at ¶ 1. Because the prosecution sought to 

increase the defendant’s misdemeanor to a felony under the 

habitual domestic violence statute, thereby increasing the penalty 

for the crime, the defendant was entitled to have the jury make the 

domestic violence finding. Id. at ¶ 23. 

¶ 83 In contrast, the domestic violence finding here did not increase 

the maximum or minimum punishment for the crime. Instead, the 

finding added a condition to Pellegrin’s sentence — a domestic 

violence evaluation and any recommended treatment. See § 18-6-

801(1)(a) (“In addition to any sentence that is imposed upon a 
43

person for violation of any criminal law . . . .”) (emphasis added); 

see, e.g., Christensen v. People, 869 P.2d 1256, 1259 (Colo. 1994) 

(“[I]f the parole board determines an [incarcerated person] is in need 

of further treatment, it can condition parole upon participation in a 

sex offender treatment program.”).

¶ 84 Still, Pellegrin maintains that the court’s domestic violence 

finding is a penalty because it restricted his access to firearms 

pursuant to section 18-6-801(8)(a) and it could subject him to a 

felony domestic violence conviction in the future. We do not agree. 

First, when adding section 18-6-801(8), the General Assembly did 

not intend for the firearm restrictions to be punitive. Rather, the 

purpose of prohibiting domestic violence offenders from possessing 

firearms is to protect the community. See S.B. 13-197, 69th Gen. 

Assemb., 1st Reg. Sess. (Colo. 2013); see also Mayo v. People, 181 

P.3d 1207, 1212 (Colo. App. 2008) (concluding that the sex offender 

registration requirement is not punitive in nature, but, rather, is 

designed to aid law enforcement officials and protect public safety); 

People v. Milton, 732 P.2d 1199, 1203-04 (Colo. 1987) (holding that 

a forfeiture sanction is not punitive, but remedial, in nature). 

Second, any future conviction and sentence based on the court’s 
44

domestic violence finding here is speculative and is therefore not 

ripe for our review. See Stell v. Boulder Cnty. Dep’t of Soc. Servs., 92 

P.3d 910, 914 (Colo. 2004) (“In the interest of judicial efficiency, 

courts will not consider ‘uncertain or contingent future matters’ 

because the injury is speculative and may never occur.”) (citation 

omitted).

VII. Conclusion

¶ 85 The judgment is affirmed.

JUDGE YUN and JUDGE GRAHAM concur.