CO Code § 18-3-414.5 (2021)
2021 Colorado Code|Title 18 - Criminal Code|Article 3 - Offenses Against the Person|Part 4 - Unlawful Sexual Behavior|§ 18-3-414.5. Sexually Violent Predators - Assessment - Annual Report - Definitions

  As used in this section, unless the context otherwise requires:   “Sexually violent predator” means an offender:   Who is eighteen years of age or older as of the date the offense is committed or who is less than eighteen years of age as of the date the offense is committed but is tried as an adult pursuant to section 19-2.5-801 or 19-2.5-802;    Who has been convicted on or after July 1, 1999, of one of the following offenses, or of an attempt, solicitation, or conspiracy to commit one of the following offenses, committed on or after July 1, 1997:   Sexual assault, in violation of section 18-3-402 or sexual assault in the first degree, in violation of section 18-3-402, as it existed prior to July 1, 2000;    Sexual assault in the second degree, in violation of section 18-3-403, as it existed prior to July 1, 2000;    Unlawful sexual contact, in violation of section 18-3-404 (1.5) or (2) or sexual assault in the third degree, in violation of section 18-3-404 (1.5) or (2), as it existed prior to July 1, 2000;    Sexual assault on a child, in violation of section 18-3-405; or    Sexual assault on a child by one in a position of trust, in violation of section 18-3-405.3;       Whose victim was a stranger to the offender or a person with whom the offender established or promoted a relationship primarily for the purpose of sexual victimization; and    Who, based upon the results of a risk assessment screening instrument developed by the division of criminal justice in consultation with and approved by the sex offender management board established pursuant to section 16-11.7-103 (1), C.R.S., is likely to subsequently commit one or more of the offenses specified in subparagraph (II) of this paragraph (a) under the circumstances described in subparagraph (III) of this paragraph (a).       “Convicted” includes having received a verdict of guilty by a judge or jury, having pleaded guilty or nolo contendere, or having received a deferred judgment and sentence.       When a defendant is convicted of one of the offenses specified in subparagraph (II) of paragraph   of subsection (1) of this section, the probation department shall, in coordination with the evaluator completing the mental health sex offense specific evaluation, complete the sexually violent predator risk assessment, unless the evaluation and assessment have been completed within the six months prior to the conviction or the defendant has been previously designated a sexually violent predator. Based on the results of the assessment, the court shall make specific findings of fact and enter an order concerning whether the defendant is a sexually violent predator. If the defendant is found to be a sexually violent predator, the defendant shall be required to register pursuant to the provisions of section 16-22-108, C.R.S., and shall be subject to community notification pursuant to part 9 of article 13 of title 16, C.R.S. If the department of corrections receives a mittimus that indicates that the court did not make a specific finding of fact or enter an order regarding whether the defendant is a sexually violent predator, the department shall immediately notify the court and, if necessary, return the defendant to the custody of the sheriff for delivery to the court, and the court shall make a finding or enter an order regarding whether the defendant is a sexually violent predator; except that this provision shall not apply if the court was not required to enter the order when imposing the original sentence in the case.       When considering release on parole or discharge for an offender who was convicted of one of the offenses specified in subparagraph (II) of paragraph   of subsection (1) of this section, if there has been no previous court order, the parole board shall make specific findings concerning whether the offender is a sexually violent predator, based on the results of a sexually violent predator assessment. If no previous assessment has been completed, the parole board shall order the department of corrections to complete a sexually violent predator assessment. If the parole board finds that the offender is a sexually violent predator, the offender shall be required to register pursuant to the provisions of section 16-22-108, C.R.S., and shall be subject to community notification pursuant to part 9 of article 13 of title 16, C.R.S.       Notwithstanding section 24-1-136 (11)(a)(I), on or before January 15, 2008, and on or before January 15 each year thereafter, the judicial department and the department of corrections shall jointly submit to the division of criminal justice in the department of public safety and to the governor a report specifying the following information:   The number of offenders evaluated pursuant to this section in the preceding twelve months;    The number of sexually violent predators identified pursuant to this section in the preceding twelve months;    The total number of sexually violent predators in the custody of the department of corrections at the time of the report, specifying those incarcerated, those housed in community corrections, and those on parole, including the level of supervision for each sexually violent predator on parole;    The length of the sentence imposed on each sexually violent predator in the custody of the department of corrections at the time of the report;    The number of sexually violent predators discharged from parole during the preceding twelve months;    The total number of sexually violent predators on probation at the time of the report and the level of supervision of each sexually violent predator on probation; and    The number of sexually violent predators discharged from probation during the preceding twelve months.        History. Source: L. 97: Entire section added, p. 1564, § 10, effective July 1. L. 98: Entire section amended, p. 397, § 2, effective April 21. L. 99: Entire section amended, p. 1148, § 9, effective July 1. L. 2000: (1)(a)(II)(A), (1)(a)(II)(B), and (1)(a)(II)(C) amended, p. 706, § 31, effective July 1. L. 2001: (2) amended, p. 657, § 4, effective May 30. L. 2002: (2) and (3) amended, p. 1186, § 22, effective July 1. L. 2006: IP(1)(a)(II), (1)(b), (2), and (3) amended, p. 1314, § 8, effective May 30. L. 2007: (4) added, p. 254, § 1, effective March 26. L. 2008: (2) amended, p. 214, § 1, effective March 26. L. 2017: IP(4) amended,(SB 17-241), ch. 171, p. 624, § 7, effective April 28; IP(4) amended,(SB 17-031), ch. 92, p. 282, § 10, effective August 9. L. 2021: (1)(a)(I) amended,(SB 21-059), ch. 136, p. 721, § 47, effective October 1.    Editor's note:   Amendments to subsection IP(4) by SB 17-031 and SB 17-241 were harmonized.   ANNOTATION   Law reviews. For article, “Constitutional Challenges to Sex Offender Registration and Community Notification Laws”, see 30 Colo. Law. 51 (Feb. 2001).   Trial court's adjudication of defendant as a sexually violent predator (SVP) under this section did not violate defendant's right to trial under Apprendi v. New Jersey. Lifetime duty to register as a sex offender and posting of defendant's personal information on internet were not additional punishments giving rise to right to trial by jury. People v. Stead, 66 P.3d 117 (Colo. App. 2002).   Trial court's adjudication of defendant as an SVP subjecting him to community notification did not violate defendant's right to trial under Apprendi v. New Jersey. Community notification is not additional punishment giving rise to right to trial by jury. People v. Rowland, 207 P.3d 890 (Colo. App. 2009).   SVP statute does not violate equal protection based on a slight difference between the arrest rate of a SVP versus a non-sexually violent predator for a sexual offense. People v. Mendoza, 313 P.3d 637 (Colo. App. 2011).   SVP statute does not violate procedural due process because some of the evaluation scoring is subjective. Sufficient safeguards are present to ensure that, when an evaluator makes a judgment, it is based on an equal application of the criteria. In addition, defendant had a hearing before the district court that ultimately made the decision. People v. Mendoza, 313 P.3d 637 (Colo. App. 2011).   There is no ex post facto violation when a current qualifying SVP offense was not a qualifying offense at the time it was committed. Since SVP status is not punishment, there is no constitutional violation. People v. Mendoza, 313 P.3d 637 (Colo. App. 2011).   The fifth amendment right to remain silent does not apply to the sexually violent predator evaluation procedures. People v. Bryant, 2013 COA 28 , 316 P.3d 18.   The sexually violent predator evaluation procedures do not violate equal protection when defendant chooses not to participate. A defendant who chooses to participate is not similarly situated to a defendant who does not participate. People v. Bryant, 2013 COA 28 , 316 P.3d 18.   Defendant's due process rights violated when the court determined his SVP status based upon a SVP risk assessment test without making specific findings of fact. People v. Tuffo, 209 P.3d 1226 (Colo. App. 2009).   Residency of sex offenders. A municipal ordinance that effectively bans all felony and many misdemeanor sex offenders from living within its boundaries, but draws no distinctions based upon the nature of the offense, the treatment the offender has received, the risk that he or she will reoffend against children, and the evaluation and recommendations of qualified state officials, is preempted by state law. Ryals v. City of Englewood, 962 F. Supp. 2d 1236 (D. Colo. 2013 ). But see Ryals v. City of Englewood, 2016 CO 8, 364 P.3d 900.   City ordinance that effectively bars certain sex offenders from residing within the city is not preempted by state law. Ryals v. City of Englewood, 2016 CO 8, 364 P.3d 900.   The regulation of sex offender residency is, under the present pattern of state laws, a matter of mixed state and local concern. Ryals v. City of Englewood, 962 F. Supp. 2d 1236 (D. Colo. 2013 ); Ryals v. City of Englewood, 2016 CO 8, 364 P.3d 900.   The operational effect of the municipal ordinance impermissibly conflicts with the application and effectuation of the state interest in the uniform treatment, management, rehabilitation, and reintegration of sex offenders during and after state supervision. The ordinance not only undermines the underlying policy interests that envelop the existing state regulations, but it also operationally forbids what the state scheme allows. Ryals v. City of Englewood, 962 F. Supp. 2d 1236 (D. Colo. 2013 ). But see Ryals v. City of Englewood, 2016 CO 8, 364 P.3d 900, annotated above.   This section covers offense of misdemeanor sexual assault by including among its enumerated crimes “[s]exual assault, in violation of section 18-3-402 ”. Misdemeanor sexual assault is set forth in § 18-3-402 (1)(e). People v. Tuffo, 209 P.3d 1226 (Colo. App. 2009).   Individuals convicted of misdemeanor sexual assaults should not be excluded from designation as SVPs. Because this section plainly covers misdemeanor sexual assault, court need not consider any agency publications. People v. Tuffo, 209 P.3d 1226 (Colo. App. 2009).   The term “victim” means “intended victim” in the context of a conviction for attempted sexual assault. People v. Buerge, 240 P.3d 363 (Colo. App. 2009).   A fictional 14-year-old girl created by police officers conducting an Internet sting operation, therefore, can be a victim within the meaning of this section. People v. Buerge, 240 P.3d 363 (Colo. App. 2009).   The victim of an attempted sexual assault need not have actually been victimized and need not be an actual person. People v. Buerge, 240 P.3d 363 (Colo. App. 2009).   When perpetrator has been convicted of an attempted sexual assault, the definition of “victim” does not preclude a finding that defendant is an SVP. People v. Buerge, 240 P.3d 363 (Colo. App. 2009).   “Stranger” means either the victim is not known to the offender or the offender is not known to the victim at the time of the offense. Although defendant was a neighbor of the victims, the fact that defendant wore a mask during the assault and disoriented the victims to the point they could not identify defendant as the assailant made him a stranger for purposes of the sexually violent predator designation. People v. Hunter, 2013 CO 48, 307 P.3d 1083.   Offender “establishe[s] a relationship” when the offender creates, starts, or begins the relationship with the victim primarily for the purpose of sexual victimization. People v. Gallegos, 2013 CO 45, 307 P.3d 1096.   Offender “promoted a relationship” if, excluding the offender's behavior during the commission of the sexual assault that led to the conviction, the offender otherwise encouraged a person with whom the offender had a limited relationship to enter into a broader relationship primarily for the purpose of sexual victimization. People v. Gallegos, 2013 CO 45, 307 P.3d 1096; Uribe-Sanchez v. People, 2013 CO 46, 307 P.3d 1090.   There is no specific intent requirement for establishing or promoting a relationship with a victim primarily for the purpose of sexual victimization. Candelaria v. People, 2013 CO 47, 303 P.3d 1202.   The trial court makes the ultimate SVP designation but should give substantial deference to the scored screening instrument. A trial court should not rescore the screening instrument. Rather, if a trial court deviates from the results of the scored screening instrument, it must make specific findings on the record to demonstrate the necessity of the deviation. The record contained sufficient conduct by defendant to determine that defendant would likely reoffend. Allen v. People, 2013 CO 44, 307 P.3d 1102.   A court may find that a defendant is an SVP when the screening instrument and evaluator make a contrary recommendation as long as the court states specific reasons for doing so in the record. The screening instrument and evaluator's opinion are intended to assist the court in making a decision, but the court is not bound by the recommendation. People v. Allen, 310 P.3d 83 (Colo. App. 2010), aff'd, 2013 CO 44, 307 P.3d 1102.   When the evaluator's answers are internally inconsistent and the record does not resolve the discrepancy, the court cannot use the sexually violent predator assessment screening instrument (SVPASI) to conclude that the defendant is an SVP. Instead, the trial court is required to make specific findings on the record with respect to the issue with the internal inconsistency. People v. Lopez, 2020 COA 41 , 463 P.3d 345.   When the evaluator incorrectly scored one of the questions, giving the defendant a sex offender risk scale (SORS) score of 8, the court is required to make a specific factual finding on the issue rather than rely on the SORS score. People v. Lopez, 2020 COA 41 , 463 P.3d 345.   The sex offender risk scale meets the statutory requirements for a “risk assessment screening instrument”. The sex offender management board satisfied the objectives and criteria set forth in § 16-11.7-103 for developing the screening instrument. People v. Brosh, 251 P.3d 456 (Colo. App. 2010).   Court improperly found defendant to be an SVP under this section when there was no evidence in the record to establish that the victim was a stranger or that the defendant established or promoted a relationship for the purpose of sexual victimization. People v. Woellhaf, 87 P.3d 142 (Colo. App. 2003), rev'd on other grounds, 105 P.3d 209 (Colo. 2005).   Trial court's determination that defendant was an SVP within the meaning of subsection (1)(a)(III) based on the results of a risk assessment screening instrument must be set aside. The trial court addressed the “promoted a relationship” criterion but did not address the “established a relationship” criterion. Because this section does not grant the sex offender management board the authority to define the phrases “established a relationship” or “promoted a relationship”, the two-step inquiry and underlying criteria identified in the screening instrument must be disregarded. People v. Tunis, 2013 COA 161 , 318 P.3d 524.   Trial court erred in concluding defendant satisfied the third element of the SVP requirement and, thus, in designating him an SVP, since there was no evidence that he had previously promoted a relationship with the victim to facilitate that assault. People v. Valencia, 257 P.3d 1203 (Colo. App. 2011).   In case of stepfather who sexually assaulted adolescent stepdaughter, court properly interpreted phrase “promoted a relationship” to include failed attempts to establish a relationship with a stranger or known victim, as well as efforts to encourage a victim with whom the offender has a limited relationship, such as stepfather, to enter into a broader relationship primarily for the purpose of sexual victimization. People v. Tixier, 207 P.3d 844 (Colo. App. 2008).   In case of offender who sexually abused the daughter of his girlfriend, trial court erred in its interpretation of “establishing a relationship”. That statutory criterion of “establishing a relationship” applies only when an offender, from the outset, seeks out a victim with whom he or she has no definable relationship for the primary purpose of sexual victimization. Where the offender already has a relationship with the victim independent of the sexual victimization, the offender cannot be considered to have established the relationship for that purpose. People v. Gallegos, 240 P.3d 882 (Colo. App. 2009), aff'd, 2013 CO 45, 307 P.3d 1096.   A trial court can only designate an offender with a potential developmental disability as an SVP based on a sex offender specific evaluation (SOSE) and SVPASI if either (1) the offender does not have a developmental disability, or (2) the offender was evaluated by a professional qualified to evaluate adults with developmental disabilities. When the evaluator does not definitively establish whether the offender has an “impairment of general intellectual functioning” under the sex offender management board standards, a trial court must make findings on that point before determining that the offender qualifies as an SVP. People v. Lopez, 2020 COA 41 , 463 P.3d 345.   Evidence supports court's designation of defendant as an SVP. The fact that defendant used alcohol to drug the victim during the sexual assaults supports the fact that defendant promoted the relationship with the victim for the purpose of sexual victimization. Next, the court determined that the public is at-risk for defendant to repeat the crimes and that defendant is unable to abstain from alcohol. Those findings supported the court's conclusion that defendant was likely to reoffend. People v. Brosh, 251 P.3d 456 (Colo. App. 2010).   Court did not err in designating defendant an SVP. The court found that defendant fostered the relationship to sexually victimize the child. People v. Mendoza, 313 P.3d 637 (Colo. App. 2011).   This section does not mandate an evidentiary hearing on whether an offender is an SVP. People v. Rowland, 207 P.3d 890 (Colo. App. 2009).   The court's findings were sufficient to conclude that defendant was an SVP. People v. Loyas, 259 P.3d 505 (Colo. App. 2010).   Ample evidence supported court's finding that defendant was highly likely to reoffend, and that finding supported a conclusion that defendant is an SVP. People v. Torrez, 2013 COA 37 M, 316 P.3d 25.   An unpreserved challenge to an SVP designation may be brought as part of the direct appeal in the criminal case. Although the SVP designation is not a criminal punishment, it is only imposed in conjunction with a criminal conviction and should not be separated from the appeal of criminal trial issues. People v. Salas, 2017 COA 63 , 405 P.3d 416.