SUMMARY

May 16, 2019

2019COA74

No. 16CA2176, People v. Trujillo — Crimes — Offenses 

Involving Family Relations — Domestic Violence — Domestic 

Violence Treatment Programs

A division of the court of appeals addresses the issue whether 

a defendant sentenced to jail can also be required to complete a 

domestic violence treatment program under section 18-6-801(1)(a), 

C.R.S. 2018. The division first concludes that section 

18-6-801(1)(a) provides a general rule: a trial court must, in 

addition to any sentence that it may impose, order a defendant who 

has committed a crime of domestic violence to complete a domestic 

violence treatment program. But, second, section 18-6-801(2) 

provides an exception to the general rule: if the court sentences a 

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.
defendant to prison, it cannot order the defendant to complete a 

domestic violence treatment program. 

The division concludes that, because the trial court in this 

case sentenced defendant to jail, the exception in section 

18-6-801(2) does not apply. As a result, the trial court properly 

denied defendant’s Crim. P. 35(a) motion.
COLORADO COURT OF APPEALS 2019COA74

Court of Appeals No. 16CA2176

Pueblo County District Court No. 14CR2131

Honorable Larry C. Schwartz, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Mario Trujillo,

Defendant-Appellant.

ORDER AFFIRMED

Division V

Opinion by CHIEF JUDGE BERNARD

Pawar and Davidson*, JJ., concur

Announced May 16, 2019

Philip J. Weiser, Attorney General, Brock J. Swanson, Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Denver, Colorado, Alex San 

Filippo-Rosser, Deputy State Public Defender, Pueblo, 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. 2018.
1

¶ 1 This appeal calls on us to decide whether an express exception 

to a general statutory rule applies to an arguably related 

circumstance that is not mentioned in the exception. 

¶ 2 The general rule appears in section 18-6-801(1)(a), C.R.S. 

2018. This subsection (1)(a), which addresses crimes that include 

acts of domestic violence, requires a court to order a defendant who 

has committed such a crime to “complete a treatment program and 

a treatment evaluation that conform with the standards adopted by 

the domestic violence offender management board.” 

¶ 3 The exception appears in section 18-6-801(2). This subsection 

(2) states that the requirements of subsection (1) “shall not apply to 

persons sentenced to the department of corrections.” In other 

words, a court that has sentenced a defendant to prison for a 

domestic violence crime cannot order him to complete a treatment 

program as described in subsection (1).

¶ 4 The question we must answer in this appeal is: Does the 

exception in subsection (2) prevent a court from ordering a 

defendant to complete a treatment program if the court has 

sentenced the defendant to jail? We answer that question “no.” We 

conclude, because of the reasons that we explain below, that 
2

subsection (1)(a) applies to all sentences except for prison 

sentences. 

¶ 5 In this case, the trial court imposed a two-year jail sentence on 

defendant, Mario Trujillo, for a misdemeanor involving domestic 

violence. The court also ordered him to complete a certified 

domestic violence treatment program. He appeals. We affirm. 

I. Background 

¶ 6 The prosecution originally charged defendant with third degree 

assault, menacing, harassment, being a domestic violence habitual 

offender, and obstruction of telephone service. It also alleged that 

the facts of the case met the definition of domestic violence in 

section 18-6-800.3, C.R.S. 2018. 

¶ 7 Defendant agreed to plead guilty to third degree assault. 

Under the plea agreement, he stipulated that the crime involved an 

act of domestic violence, that the court would sentence him to two 

years in jail, and that he would complete “a court certified domestic 

violence treatment and/or education program.” 

¶ 8 The trial court accepted defendant’s plea. It then sentenced 

him to two years in jail, which was the maximum possible jail 

sentence; it ordered him to complete a domestic violence treatment 
3

program; and it set a review hearing for a year later to determine 

whether he had complied with the treatment order. 

¶ 9 Defendant then filed a Crim. P. 35(a) motion, which alleged 

that the treatment order was illegal and asked the trial court to 

vacate it. The court held a hearing on the motion. Relying, in part,

on section 18-6-801(1)(a), the court decided that it had the 

authority to enter the treatment order because the order was “in 

addition to,” not part of, defendant’s sentence. 

¶ 10 The court then offered to set a review hearing. Defendant 

objected, arguing that the court did not have the authority to set 

further review hearings because they would be “akin to some sort of 

probationary sentence.” He added that the prosecution could 

“initiate proceedings” for contempt, but the court did not have “the 

authority to order [him] to appear . . . when no contempt proceeding 

[was] ongoing.” The court agreed, and it set an internal review as a 

presumptive deadline for defendant to file some proof of his 

enrollment in a treatment program. The court then noted that it 

would be, at that point, “up to the [prosecution] to take any action” 

if he had not completed the program. 
4

II. Subsection (1)(a)’s Plain Language Requires the Trial Court to 

Order Domestic Violence Treatment

¶ 11 Defendant contends that the legislature did not intend for the 

general rule in subsection (1)(a) to apply to jail sentences. We 

disagree. 

A. Standard of Review and Statutory Interpretation Principles

¶ 12 This appeal requires us to interpret statutes. We review such 

issues de novo. People v. Ortiz, 2016 COA 58, ¶ 15. 

¶ 13 When we interpret statutes, we must ascertain and give effect 

to the legislature’s intent. Colo. Dep’t of Revenue v. Creager 

Mercantile Co., 2017 CO 41M, ¶ 16. In doing so, “[w]e give effect to 

words and phrases according to their plain and ordinary 

meaning[s].” Denver Post Corp. v. Ritter, 255 P.3d 1083, 1089 (Colo. 

2011). And “we will not interpret a statute to mean that which it 

does not express.” Carruthers v. Carrier Access Corp., 251 P.3d 

1199, 1204 (Colo. App. 2010). 

¶ 14 If a statute’s language is clear, we apply it as the legislature 

wrote it. Denver Post Corp., 255 P.3d at 1089. We “must read and 

consider the statutory scheme as a whole to give consistent, 

harmonious and sensible effect to all its parts.” Charnes v. Boom, 
5

766 P.2d 665, 667 (Colo. 1988). “In interpreting a comprehensive 

legislative scheme, we must construe each provision to further the 

overall legislative intent behind the statutes.” Martin v. People, 27 

P.3d 846, 851-52 (Colo. 2001). And, “when interpreting more than 

one statute, we will favor a construction that avoids potential 

conflict between the relevant provisions.” People v. Smith, 971 P.2d 

1056, 1058 (Colo. 1999). 

B. Crim. P. 35(a) versus Crim. P. 35(c) 

¶ 15 The prosecution contends that defendant rode the wrong 

horse — Crim. P. 35(a) — to the courthouse; he should have relied 

on Crim. P. 35(c) instead. Crim. P. 35(a) provides that a “court may 

correct a sentence that was not authorized by law or that was 

imposed without jurisdiction at any time . . . .” Crim. P. 35(c) is 

“the proper postconviction route in which to challenge . . . 

sentences as unconstitutional.” People v. Collier, 151 P.3d 668, 670 

(Colo. App. 2006). And a defendant may assert that a court 

“rendering judgment was without jurisdiction over . . . the subject 

matter” in a Crim. P. 35(c) motion. Crim. P. 35(c)(2)(III).

¶ 16 The prosecution supports its contention by asserting that the 

treatment order was not part of defendant’s sentence. We agree. 
6

¶ 17 In subsection (1)(a), the legislature characterized a treatment 

order as something other than a sentence. Section 18-6-801(1)(a) 

states that, “[i]n addition to any sentence” imposed, the trial court 

“shall” order the defendant to “complete a treatment program.” 

(Emphasis added.) 

¶ 18 Plus, domestic violence treatment, as contemplated by 

subsection (1)(a), “is not a form of punishment,” and subsection 

(1)(a) “does not mandate a ‘penalty.’” People v. Heisler, 2017 COA 

58, ¶ 45; see Allen v. People, 2013 CO 44, ¶ 7 (“Unlike a criminal 

sentence, the [sexually violent predator] designation is not 

punishment. . . . [A] trial court’s decision to designate an offender 

as [a sexually violent predator] is legally and practically distinct 

from its sentencing function.”). 

¶ 19 We therefore conclude that the contentions defendant raises 

on appeal are cognizable under Crim. P. 35(c) instead of under 

Crim. P. 35(a). But, as the prosecution concedes, we must 

nonetheless address the merits of these contentions because 

defendant timely filed his motion. 
7

C. Analysis

¶ 20 Section 18-6-801(1)(a) provides that, “[i]n addition to any 

sentence” imposed, the trial court “shall” order the defendant to 

“complete a treatment program.” Subsection (2) provides that the 

provisions of subsection (1)(a) do “not apply to persons sentenced to 

the department of corrections.” When we read these two 

subsections together, we conclude that they are clear and 

unambiguous.

¶ 21 The legislature’s use of the word “shall” requires the trial court 

to order a defendant convicted of a domestic violence crime to 

complete a treatment program. See People v. Dist. Court, 713 P.2d 

918, 921 (Colo. 1986)(“[T]he use of the word ‘shall’ in a statute is 

usually deemed to involve a mandatory connotation.”). The use of 

the word “any” means that the statute applies to all sentences. See 

Stamp v. Vail Corp., 172 P.3d 437, 447 (Colo. 2007)(“When used as 

an adjective in a statute, the word ‘any’ means ‘all.’”).

¶ 22 The legislature provided a single, explicit exception in 

subsection (2): if the trial court sentences a defendant to prison, it 

cannot also order him to complete a treatment program. See 

Partners in Change, L.L.C. v. Philp, 197 P.3d 232, 235-36 (Colo. 
8

App. 2008)(“[W]hen the General Assembly intended to exempt 

certain domestic violence offenders from treatment . . . it did so 

expressly” in subsection (2).); People v. Torres, 141 P.3d 931, 937 

(Colo. App. 2006)(noting that the trial court could not order 

treatment because it sentenced the defendant to prison). Generally, 

we interpret the legislature’s “inclusion of a single, specific, narrow 

exception to mean that the [legislature] intended that there be no 

other exceptions to the rule.” Cain v. People, 2014 CO 49, ¶ 13. 

¶ 23 The trial court sentenced defendant to jail, not to prison. Jail 

and prison are decidedly different. Prison “has long been 

recognized as the proper place for the incarceration of those 

convicted of the graver offenses[,] . . . while county jails have been 

utilized for the confinement of those convicted of minor offenses.” 

Brooks v. People, 14 Colo. 413, 414, 24 P. 553, 553 (1890).

¶ 24 Because the court sentenced defendant to jail instead of 

prison, we reject his assertion that subsection (1)(a) did not require 

the court to order him to complete a treatment program. To agree 

with him would be to “create an exception to a statute that the plain 

meaning does not suggest or demand.” A.C. v. People, 16 P.3d 240, 

243 (Colo. 2001).
9

¶ 25 When defendant pled guilty to third degree assault, he 

stipulated that (1) the offense involved domestic violence; (2) he 

would be incarcerated in a jail for two years; and (3) he would 

participate in a certified domestic violence treatment program. His 

plea and the three stipulations accompanying it triggered the 

requirements of subsection (1)(a). We therefore reject his assertion 

that subsection(1)(a) did not require the trial court to issue the 

treatment order. 

¶ 26 We are not otherwise persuaded by defendant’s contention

that section 16-11.8-103(4)(a)(II), C.R.S. 2018, modifies subsection 

(1)(a) to exclude jail sentences from the treatment requirement.

This assertion begins by pointing to additional language in section 

18-6-801(1)(a), which declares that a defendant must complete a 

treatment program that “conform[s] with the standards adopted by 

the domestic violence offender management board as required by 

section 16-11.8-103(4).” Section 16-11.8-103(4)(a)(II), defendant 

continues, decrees that the domestic violence treatment board shall 

adopt treatment programs for “offenders . . . who are placed on 

probation, placed on parole, or placed in community corrections or 

who receive a deferred judgment and sentence.” This statute does 
10

not, defendant wraps up, refer to offenders whom courts have 

sentenced to jail.

¶ 27 But “we must avoid statutory constructions that render 

statutory provisions a nullity,” People v. Morales, 2012 COA 2, ¶ 60, 

and constructions that would create “potential conflict between the 

relevant provisions” that does not necessarily exist, see Smith, 971 

P.2d at 1058. We conclude, for the following reasons, that 

defendant’s contention would render the general rule found in 

subsection (1)(a) a nullity and that it would create a conflict 

between subsection (1)(a) and section 16-11.8-103(4)(a)(II) that does 

not exist.

1. The language of section 16-11.8-103(4)(a)(II) on which 

defendant relies only addresses a duty of the domestic 

violence offender management board; it does not address 

the authority of courts.

2. Section 16-11.8-103(4)(a)(II) does not refer to the court’s 

obligation in section 18-6-801(1)(a) to order defendants to 

participate in treatment programs, and it does not 

incorporate or add to the exception to the general rule in 

section 18-6-801(2). 
11

3. Defendant’s contention omits additional language in 

section 16-11.8-103(4)(a)(II), which mandates that “the 

programs shall be developed in such a manner that, to 

the extent possible, [they] may be accessed by all

offenders in the criminal justice system.” (Emphasis 

added.) An offender whom a court has sentenced to jail 

falls within the broad class of all the offenders in the 

criminal justice system.

4. Section 18-6-801(1)(c) states that “[n]othing in this 

subsection (1) shall preclude the court from ordering 

domestic violence treatment in any appropriate case.” 

(Emphasis added.) This language reinforces the general 

rule in subsection (1)(a).

5. Although section 16-11.8-103(4)(a)(II) requires the board 

to adopt guidelines and standards for use in treatment 

programs, it does not declare that such programs are 

only available to defendants whom courts have “placed 

on probation, placed on parole, or placed in community 

corrections or who receive a deferred judgment and 

sentence.” Rather, the guidelines and standards “shall” 
12

apply to those individuals, but they need not only apply 

to them. 

III. Defendant’s Other Contentions

¶ 28 Defendant raises three other attacks on the treatment order. 

We review these contentions de novo. See People v. Davis, 2012 

COA 14, ¶ 6. 

A. Court Probation

¶ 29 Defendant submits that the trial court placed him on 

something called “court probation” when it entered the treatment 

order because he would have to complete his treatment after his jail 

term. “Court probation” is a form of probation “in which the 

offender . . . reports only to the sentencing judge rather than [to] a 

probation officer.” Black’s Law Dictionary 1396 (10th ed. 2014). 

We conclude that this contention mischaracterizes what the court 

did. 

¶ 30 Generally, a court cannot sentence a defendant to both jail 

and to probation because probation is considered an alternative to 

imprisonment. See Faulkner v. Dist. Court, 826 P.2d 1277, 1279 

(Colo. 1992). A court can order a defendant to serve jail time as a 

condition of probation, but, in such a case, a defendant convicted of 
13

a misdemeanor can spend no more than sixty days in jail. 

§ 18-1.3-202(1)(a), C.R.S. 2018.

¶ 31 Probation is a “form of sentence.” People v. Turner, 644 P.2d 

951, 953 (Colo. 1982); accord People v. Anderson, 2015 COA 12, 

¶ 14 (“Probation is one of the sentencing alternatives available to a 

court when entering a judgment of conviction.”). But, as we have 

already concluded, an order requiring a defendant to complete 

domestic violence treatment is not a sentence because it is neither 

punishment nor penalty. § 18-6-801(1)(a) (a court orders domestic 

violence treatment “[i]n addition to” the sentence); Allen, ¶ 7;

Heisler, ¶ 45. 

¶ 32 And the trial court did not require defendant to “report” back 

to it after the Crim. P. 35(a) hearing. Recall that the court intended 

to set a review hearing after denying defendant’s motion. But, after 

defendant objected, the court decided that it would not set such a 

hearing, which meant that it did not have a supervisory role in 

ensuring that defendant completed domestic violence treatment. 
14

B. Jurisdiction

¶ 33 Defendant next contends that the court could not enter the 

treatment order because it lost jurisdiction over him after he had 

finished his jail sentence. We disagree. 

¶ 34 “A trial court loses jurisdiction upon imposition of a valid 

sentence except under the circumstances specified in Crim. P. 35.” 

People v. Wiedemer, 692 P.2d 327, 329 (Colo. App. 1984). But the 

court issued the order during the sentencing hearing, when it 

clearly had jurisdiction over defendant. The law clearly authorized 

this process. 

C. Contempt Proceeding

¶ 35 Defendant asserts that the trial court could not enforce the 

treatment order through a contempt proceeding because, by doing 

so, any additional jail time that the court might impose would result 

in a sentence exceeding the maximum penalty for third degree 

assault. The prosecution counters by maintaining that this issue is 

not ripe. We agree with the prosecution.

¶ 36 “Ripeness tests whether the issue is real, immediate, and fit 

for adjudication.” Bd. of Dirs., Metro Wastewater Reclamation Dist. 

v. Nat’l Union Fire Ins. Co., 105 P.3d 653, 656 (Colo. 2005). “Courts
15

should refuse to consider uncertain or contingent future matters 

that suppose speculative injury that may never occur.” Id.

¶ 37 The record does not contain any information indicating that 

defendant has refused to comply with the treatment order, that the 

prosecution has asked the trial court to issue a contempt citation, 

that the court has held a contempt hearing, or that the court 

punished defendant’s putative contempt by imposing a jail 

sentence. As a result, (1) the issue whether contempt is an 

appropriate enforcement mechanism has not been presented in this 

case in the context of an existing contempt proceeding; (2) the 

question whether the court will hold a contempt hearing is 

presently uncertain; (3) such a hearing would be contingent on an 

unknown, which is whether defendant has complied with the

treatment order; and (4) the putative injury to which defendant 

points — incarceration for contempt — is, as of now, speculative

and may never occur. 

¶ 38 We therefore conclude that this issue is not ripe, see id., so we 

will not address it. 

¶ 39 The order is affirmed.

JUDGE PAWAR and JUDGE DAVIDSON concur.