31. People v. Salas , 405 P.3d 446 ( 2017 )

COLORADO COURT OF APPEALS 2017COA63
Court of Appeals No. 14CA1331
City and County of Denver District Court No. 13CR1748
Honorable Martin F. Egelhoff, Judge
Honorable John W. Madden, IV, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Leroy Salas,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART, VACATED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE TAUBMAN
Graham and Navarro, JJ., concur
Announced May 18, 2017
Cynthia H. Coffman, Attorney General, Brian M. Lanni, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Katherine Brien, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Leroy Salas, appeals his judgment of conviction
and sentence entered on jury verdicts finding him guilty of sexual
assault on a child by one in a position of trust and sexual assault
on a child, pattern of abuse. Salas also appeals the trial court’s
order finding him to be a sexually violent predator (SVP). We affirm
in part, vacate in part, and remand for findings.
I. Background
¶2 The victim was nine years old when her mother began dating
Salas in August 2011. At the time, the victim lived with her mother
in Loveland. In September 2011, the three moved in with the
victim’s grandmother, at her apartment in Denver. In November
2011, Salas and mother moved into a separate apartment together
in Denver, but the victim continued to live with grandmother. The
victim occasionally visited her mother’s apartment.
¶3 At trial, the victim testified that, during visits, she would
sometimes be alone with Salas in the apartment while mother
worked. She testified that on occasion, Salas told the victim to lie
down on his bed and touched her “stomach and legs” and her
“private parts” over her clothing. The prosecutor asked the victim
to indicate on a diagram where Salas touched her, and she
1
indicated the buttocks. On another occasion, Salas made the
victim touch his penis. The victim did not tell anyone about these
incidents because Salas told her not to, and she was scared.
¶4 In early 2012, mother and Salas broke up, and mother moved
to California; the victim followed once she finished school in
Denver. There, the victim told a family friend about the assaults.
The friend relayed the information to mother and mother called the
police. The victim spoke about the incidents with a sheriff and a
counselor in California.
¶5 In November 2012, the victim moved back in with
grandmother in Denver. The victim discussed the assaults with a
forensic interviewer at the Denver Children’s Advocacy Center.
¶6 At trial, the theory of defense was that the victim fabricated
the assaults in order to gain attention, and that Salas could not
have sexually assaulted her because he was never alone with her
for a sufficient period.
II. Mistrial
¶7 Salas first contends that the trial court abused its discretion
and violated his rights to due process, a fair trial, and an impartial
jury by denying his motion for a mistrial after grandmother testified
2
that Salas had “some type of court proceedings on an alcohol
problem,” a nonresponsive answer to a question which, he says,
impermissibly referred to prior criminality. We disagree.
¶8 Grandmother testified that mother and Salas lived with her for
a few months before they moved into their own apartment. The
court asked grandmother a question posed by the jury: “Was Salas
employed during the two- to three-month period and if so how
many hours per week?” Grandmother replied that he was
employed. Defense counsel questioned grandmother further on
whether Salas was employed full-time, to which grandmother
responded, “He had — no — how can I say this except to be honest.
There was some type of court proceedings on an alcohol problem.”
Defense counsel moved for a mistrial. The trial court denied the
motion and instructed the jury to disregard grandmother’s
response.
A. Standard of Review
¶9 A trial court has broad discretion to grant or deny a mistrial,
and its decision will not be disturbed on appeal absent an abuse of
discretion and prejudice to the defendant. People v. Santana, 255
P.3d 1126 (Colo. 2011); People v. Abbott, 690 P.2d 1263, 1269
3
(Colo. 1984). A court abuses its discretion only when inadmissible
evidence is likely to have substantially prejudiced the jurors despite
the use of any alternative remedies. People v. Lahr, 2013 COA 57,
¶ 23, 316 P.3d 74, 79. A mistrial is “the most drastic of remedies,”
and is “only warranted where the prejudice to the accused is too
substantial to be remedied by other means.” Abbott, 690 P.2d at
1269.
¶ 10 Relying on Santana and People v. Chastain, 733 P.2d 1206
(Colo. 1987), Salas asserts that he has presented a constitutional
claim because grandmother’s statement violated his rights to due
process and a fair trial by an impartial jury. However, neither of
these cases involved a motion for a mistrial based on a reference to
prior criminality. Further, an erroneous reference to a defendant’s
prior criminality is not an error of constitutional dimension, and we
therefore review such claims for nonconstitutional harmless error.
See, e.g., People v. Pernell, 2014 COA 157, ¶¶ 26, 42-52, __ P.3d __,
__, __; Lahr, ¶ 23, 316 P.3d at 79; see also People v. Yusem, 210
P.3d 458, 469 n.16 (Colo. 2009) (erroneous admission of prior bad
act evidence is not error of constitutional dimension). Therefore, we
review Salas’ claim for nonconstitutional harmless error.
4
B. Applicable Law
¶ 11 Salas relies on Goldsberry to assert that “[i]n a criminal trial to
a jury, evidence of a defendant’s criminal activity, which is
unrelated to the offense charged, is inadmissible.” People v.
Goldsberry, 181 Colo. 406, 409, 509 P.2d 801, 803 (1973).
However, Goldsberry also notes that “exceptions to this rule are
limited to well defined and special situations where proof of similar
offenses will show the defendant’s intent, motive, plan, scheme, or
design with respect to the crime charged.” Id. The supreme court
in Goldsberry held that in such situations, the court is required to
give instructions limiting the purpose of such evidence, id., and that
when reference is made in the presence of the jury to a defendant’s
unrelated criminal activity, “a mistrial is normally required,” id.
¶ 12 However, subsequent cases have limited the holding in
Goldsberry: “[A]n ambiguous reference to evidence of a defendant’s
criminality does not necessitate a new trial.” Lahr, ¶ 24, 316 P.3d
at 79 (citations omitted); see also People v. Vigil, 718 P.2d 496,
505-06 (Colo. 1986) (police officer’s reference to contraband found
in defendant’s home did not warrant mistrial). In addition, fleeting
references to a defendant’s alleged criminal history have even less
5
prejudicial impact. Lahr, ¶ 24, 316 P.3d at 79-80; see also Abbott,
690 P.2d at 1269 (A mistrial was unwarranted in part because “the
reference to past criminal acts was a single unelicited remark.”).
The circumstances of each case must be reviewed to determine
whether the defendant was prejudiced. Abbott, 690 P.2d at 1269;
People v. Moore, 226 P.3d 1076, 1087-88 (Colo. App. 2009).
¶ 13 Further, Goldsberry was announced prior to the promulgation
of the Colorado Rules of Evidence. While the rules state that
evidence of other crimes, wrongs, or acts is not admissible to prove
the defendant’s character in order to show that he or she acted in
conformity therewith, see CRE 404(b); Kaufman v. People, 202 P.3d
542, 552 (Colo. 2009), such evidence can be admissible for the
same purposes and under the same conditions enumerated in
Goldsberry, see Kaufman, 202 P.3d at 552 (citing CRE 404(b));
People v. Beasley, 43 Colo. App. 488, 492, 608 P.2d 835, 838 (1979)
(citing Goldsberry and CRE 404(b)).
¶ 14 Generally, the erroneous admission of evidence is remedied by
instructing the jurors to disregard it. Vigil v. People, 731 P.2d 713,
716 (Colo. 1987); Lahr, ¶ 25, 316 P.3d at 80. Absent evidence to
the contrary, we presume jurors follow such an instruction. Lahr,
6
¶ 25, 316 P.3d at 80. The supreme court noted in Goldsberry that
where the prosecution has intentionally elicited the prejudicial
information, evidence of a defendant’s guilt is “thin,” and if the
proof of at least one of the essential elements of the crime charged
is entirely circumstantial, a trial court’s cautionary instruction will
not suffice. Goldsberry, 181 Colo. at 409, 509 P.2d at 803.
However, the supreme court has since clarified that “[t]he
circumstances are . . . rare where we . . . will depart from the
presumption that a jury follows a court’s curative instructions.”
Qwest Servs. Corp. v. Blood, 252 P.3d 1071, 1091 (Colo. 2011); see
also People v. Ellis, 30 P.3d 774, 778 (Colo. App. 2001)
(acknowledging Goldsberry but concluding that court’s instruction
was sufficient to cure prejudice); People v. Gillispie, 767 P.2d 778,
780 (Colo. App. 1988) (“[A]n instruction is inadequate only when
evidence is so prejudicial that, but for its exposure, the jury might
not have found the defendant guilty.”).
C. Analysis
¶ 15 Here, grandmother’s comment regarding “court proceedings on
an alcohol problem” referred ambiguously to possible past
criminality. It was a single, fleeting, nonresponsive comment. It
7
did not necessarily reference any criminal behavior on the part of
Salas, since “court proceedings” on an “alcohol problem” could also
refer to civil and administrative proceedings involving alcohol
consumption. See, e.g., § 27-81-112, C.R.S. 2016 (governing
involuntary civil commitment of alcoholics); § 42-2-126, C.R.S.
2016 (governing license revocation proceedings based on an
administrative determination).
¶ 16 The possibility that a reasonable juror inferred Salas’ guilt
based on grandmother’s reference to an “alcohol problem” is highly
attenuated. If such a comment had an impact on the jury, it was
not “so prejudicial that, but for its exposure, the jury might not
have found against the defendant.” People v. McNeely, 68 P.3d 540,
542 (Colo. App. 2002) (citation omitted); see also People v. Ned, 923
P.2d 271, 275 (Colo. App. 1996) (“Speculation of prejudice is
insufficient to warrant reversal of a trial court’s denial of a motion
for mistrial.”).
¶ 17 Further, the trial court immediately instructed the jurors to
disregard grandmother’s comment, and, absent exceptional
circumstances where the evidence against Salas is thin, we
presume that the jury followed such an instruction. This is
8
particularly the case here because, unlike in Goldsberry, the
remark was not intentionally elicited to prejudice Salas. See
Goldsberry, 181 Colo. at 409, 509 P.2d at 803. Rather, the counsel
for the defense elicited this information when she pressed
grandmother further on whether Salas was employed full time.
¶ 18 Because grandmother’s remark was fleeting, minimally
prejudicial, and immediately followed by a curative instruction, we
conclude that the trial court did not abuse its discretion when it
denied Salas’ motion for a mistrial.
III. Grandmother’s Interview Video
¶ 19 Salas next contends that the district court abused its
discretion when it denied his request to play a videotaped interview
of grandmother after concluding that she had not denied anything
that would be subject to impeachment through a collateral source.
We disagree.
¶ 20 After the victim told a family friend in California about Salas’
actions in August 2012, a San Bernardino sheriff contacted
grandmother to talk about the sexual assault allegations.
Grandmother told the sheriff that she knew of “one or two —
possibly two occasions” that Salas had been alone with the victim.
9
Grandmother told the sheriff that the victim lived with her “99
percent of the time.”
¶ 21 In October 2013, Detective Nash Gurule of the Denver Police
Department interviewed grandmother. During the recorded
interview, grandmother relayed information about the sexual
assaults that she had learned from the victim, specifically: (1)
“[mother] told me that . . . Salas would have [the victim] grab him”;
(2) “according to [mother], [the victim] said she never let him touch
her uh, without any clothes on”; and (3) mother told grandmother
that the victim had touched Salas while he did not have clothes on,
but that the victim had never taken her clothes off.
¶ 22 Detective Gurule also asked grandmother how long Salas and
mother had lived together in their Denver apartment. Grandmother
explained that they lived there “maybe November of 2011 into like
maybe January, February 2012. Right around that time . . . I know
Christmas for sure of 2011. . . .” The detective then asked her,
“[D]uring that time, how long do you think you had [the victim] at
your house?” Grandmother misunderstood and replied, “[H]ow long
did [the victim] stay there? Maybe, maybe a half a dozen times. . .
.” The detective asked: “Stayed with you or stayed there?”
10
Grandmother clarified and reiterated that the victim stayed at
mother’s and Salas’ apartment “[m]aybe a half a dozen times” but
did not identify any specific dates, nor did the detective ask for any.
¶ 23 At trial, grandmother testified that Salas, mother, and the
victim lived with her in Denver from about September to November
2011 until Salas and mother moved into their own apartment. The
victim continued to live with grandmother because she was
attending a school near grandmother’s house, but would
occasionally visit and spend the night with mother and Salas on the
weekends. Grandmother testified that one such occasion was
during Christmas vacation. Grandmother testified that “once or
twice Salas came himself to take [the victim] over there because
[mother] was working and he would be watching her. The other
times [mother] would come or maybe [mother] and Salas would
come. It is a short period of time just to pinpoint those days.”
¶ 24 During cross-examination, defense counsel asked
grandmother if she had spoken to the San Bernardino sheriff,
mother, and Detective Gurule about the allegations, and
grandmother answered affirmatively. Defense counsel asked if she
had testified previously, and grandmother again affirmed. Defense
11
counsel also asked if she had spoken with mother about the
allegations on “numerous occasions,” and grandmother denied that
she had spoken in detail with mother. Defense counsel then
confronted grandmother with the statements she had made to
Detective Gurule in which she relayed information she had learned
from mother. Grandmother admitted to making each statement.
Defense counsel then asked grandmother, “And nowhere in this
interview do you say anything about [the victim] spending time with
[mother] and Salas over Christmas vacation?” Grandmother agreed
and explained that Detective Gurule did not ask her that question.
Defense counsel later asked grandmother if she did not mention
Christmas to the detective because of a lack of recollection.
Grandmother reiterated that she did not mention it because she
was “never asked the question.”
¶ 25 During redirect examination, the prosecutor asked
grandmother if she had spoken to mother “in detail” about the
sexual assaults, and grandmother denied doing so.
¶ 26 During recross-examination, defense counsel again questioned
grandmother about the “details” she had learned from mother.
Grandmother reiterated that she had heard things from mother, but
12
had no knowledge of certain details. Defense counsel then
confronted grandmother again with her statements to Detective
Gurule in which she relayed information she had learned from
mother. Grandmother again agreed that she had made the
statements. Counsel asked grandmother if those were “details.”
Grandmother agreed that they were.
¶ 27 The next day, defense counsel sought to admit and publish the
interview between grandmother and Detective Gurule. The
prosecutor objected, arguing that the video was not admissible
under section 16-10-201, C.R.S. 2016, because grandmother had
not denied at trial that she had made any inconsistent statements
in the interview. Defense counsel argued that (1) grandmother’s
testimony was “all over the board”; (2) she had been inconsistent
regarding whether she had given details to the detective; and (3) she
had made it sound as though she did not give certain evidence to
the detective because he had not asked her for it, while “the whole
flavor of that interview” demonstrated that the detective did not ask
many questions because grandmother was extremely talkative and
forthcoming, even volunteering information that the detective had
13
not asked about. Defense counsel also argued that any irrelevant
and prejudicial information on the video could easily be cut.
¶ 28 The court denied defense counsel’s request to play the
videotape, concluding that grandmother had not denied anything
that would be subject to impeachment through the videotape:
Okay. Well, I was taking pretty careful — I
paid pretty close attention to [grandmother’s]
testimony, and I was trying to take some notes
with respect to those areas in which she was
impeached, and she didn’t deny anything. She
didn’t claim lack of memory of anything.
When she was confronted with the transcripts
of things to impeach her, she agreed with what
was in the transcripts. So, I don’t find that
there’s anything more, or I don’t think there’s
anything that she denied which would be
subject to . . . impeachment through the
collateral source or the source of the tape,
which is — so, I just don’t find that, especially
that the evidence is sufficiently impeaching as
to the specific testimony that she gave here in
court. So, I don’t feel this is admissible. So, I
am going to deny the request, or refuse the
evidence.
A. Standard of Review
¶ 29 The People assert that Salas has not properly preserved this
issue for review because defense counsel did not identify whether
his request to admit the video fell under CRE 613 or section
16-10-201. We conclude that even though defense counsel did not
14
cite either the rule or the statute in court, he preserved such claims
for appeal because his arguments for submitting the video into
evidence identified the subject matter of both the rule and the
statute, and the trial prosecutor identified the statute on which
Salas relies on appeal. We conclude that these circumstances were
sufficient to preserve his claim. See People v. Melendez, 102 P.3d
315, 322 (Colo. 2004) (“We do not require that parties use
‘talismanic language’ to preserve particular arguments for appeal,
but the trial court must be presented with an adequate opportunity
to make findings of fact and conclusions of law on any issue before
we will review it.” (quoting People v. Syrie, 101 P.3d 219, 223 n.7
(Colo. 2004))); see also Martinez v. People, 2015 CO 16, ¶ 14, 344
P.3d 862, 868 (“An adequate objection allows the trial court a
meaningful chance to prevent or correct the error and creates a
record for appellate review.” (citing Melendez, 102 P.3d at 322)).
¶ 30 Accordingly, we review the trial court’s decision to exclude the
evidence for an abuse of discretion. People v. Welsh, 80 P.3d 296,
304 (Colo. 2003). However, a trial court’s interpretation of a statute
or rule governing the admissibility of evidence is reviewed de novo.
People v. Hill, 228 P.3d 171, 173 (Colo. App. 2009). A court abuses
15
its discretion when its decision is manifestly arbitrary,
unreasonable, or unfair, or when it misconstrues the law. People v.
Acosta, 2014 COA 82, ¶ 75, 338 P.3d 472, 485.
¶ 31 A court’s erroneous exclusion of a witness’ prior inconsistent
statements is reviewed for nonconstitutional harmless error. People
v. Komar, 2015 COA 171M, ¶ 55, __ P.3d __, __ (citing Hagos v.
People, 2012 CO 63, ¶ 12, 288 P.3d 116, 119). Reversal is
warranted only where the error “substantially influenced the verdict
or affected the fairness of the trial proceedings.” Id. (citation
omitted).
¶ 32 The People contend that it is unclear which alleged
inconsistencies Salas relies on in his claim of error, arguing that
Salas only broadly contends that grandmother “made statements at
trial that were not consistent with prior statements she made to
Detective Gurule, including statements regarding how often the
victim spent time at her mother and Salas’ apartment.” Salas also
references testimony related to grandmother’s conversation with a
San Bernardino sheriff earlier in the year. To the extent Salas
argues inconsistencies that were never raised in the trial court, we
review them only for plain error. Melendez, 102 P.3d at 322; see
16
also People v. Ujaama, 2012 COA 36, ¶ 37, 302 P.3d 296, 304 (An
issue is unpreserved for review when an objection is made “on
unspecific grounds which would not have alerted the trial court to
the issue of which the defendant now seeks review.”). Plain error
must be both “obvious and substantial,” and must have “so
undermined the fundamental fairness of the trial itself so as to cast
serious doubt on the reliability of the judgment of conviction.”
People v. Miller, 113 P.3d 743, 750 (Colo. 2005) (citations omitted).
B. Applicable Law
¶ 33 The use of prior inconsistent statements in criminal trials is
expressly governed by both statute and rule. People v. Saiz, 32 P.3d
441, 445 (Colo. 2001); see also Montoya v. People, 740 P.2d 992,
995-96 (Colo. 1987).
CRE 613 comports generally with prior case
law by prohibiting examination of a witness for
impeachment by prior inconsistent statement
until his attention has been called to the time,
place, and circumstances of the prior
statement and by barring the admission of
extrinsic evidence to prove any prior statement
that is conceded by the witness.
Saiz, 32 P.3d at 445; see also Montoya, 740 P.2d at 995-96. In
contrast, section 16-10-201 creates “a new rule of substantive
17
evidence” for criminal cases by “eliminating the hearsay impediment
to using prior inconsistent statements for the purpose of
establishing a fact to which witness’ testimony and prior statement
relate, as long as the witness is still available and his prior
statement relates to a matter within his own knowledge.” Saiz, 32
P.3d at 445; see also Montoya, 740 P.2d at 997-98. The statute
“allows a prior inconsistent statement to be used as substantive
evidence of the fact to which the statement relates,” and it “does not
include the foundation requirement that a witness must have
denied or failed to remember the prior statement before it can be
proved by extrinsic evidence.” Montoya, 740 P.2d at 996. The
statute provides:
(1) Where a witness in a criminal trial has
made a previous statement inconsistent with
his [or her] testimony at the trial, the previous
inconsistent statement may be shown by any
otherwise competent evidence and is
admissible not only for the purpose of
impeaching the testimony of the witness, but
also for the purpose of establishing a fact to
which his [or her] testimony and the
inconsistent statement relate, if:
(a) The witness, while testifying, was given an
opportunity to explain or deny the statement
or the witness is still available to give further
testimony in the trial; and
18
(b) The previous inconsistent statement
purports to relate to a matter within the
witness’s own knowledge.
§ 16-10-201. While section 16-10-201 also relaxes the foundational
requirements for impeachment by prior inconsistent statement in
some respects, CRE 613 does not conflict with the statute and
continues to apply in civil cases and in criminal cases in which the
foundational requirements of the statute are not met. Saiz, 32 P.3d
at 445; see also Montoya, 740 P.2d at 997-98.
¶ 34 In Saiz, the supreme court addressed the admissibility of a
videotaped interview containing prior inconsistent statements under
the statute. It held that the trial court did not abuse its discretion
in excluding a videotape of the defendant’s minor son which
contained inconsistent statements. This was because, even though
the video evidence demonstrated inconsistent statements, “the
defense was in no way limited from introducing extrinsic evidence of
those statements.” Saiz, 32 P.3d at 447. This was particularly so
because the son contradicted himself during trial. Further, the
video was offered solely to impeach the witness; there was no
contention that the video would be any different from the testimony
already offered to impeach the witness. “Without offering the
19
videotape for any purpose other than to impeach [the witness’]
testimony . . . the defendant’s counsel asserted that this additional
extrinsic evidence was admissible simply because it was a videotape
of [the witness’] own words.” Id. The supreme court concluded:
In light of the other evidence already admitted
and the offer of proof before it, the trial court’s
ruling amounted to little more than a
determination that under the circumstances of
this case the defendant was not entitled to
introduce a videotape to show the same
statements that it had already shown by
uncontested testimony.
Id. at 449.
C. Analysis
¶ 35 Both parties concede that the video is not admissible under
CRE 613. Salas did not argue specifically that the video was
admissible under section 16-10-201 at trial, but asserts on appeal
that the district court misapplied section 16-10-201 in excluding
the tape because he was not required to confront grandmother with
her inconsistent testimony in order for it to be admissible.
¶ 36 Here, as in Saiz, the district court did not abuse its discretion
in excluding the videotaped interview of grandmother after defense
20
counsel sufficiently confronted grandmother with her inconsistent
statements and she either explained or conceded them.
¶ 37 The district court denied defense counsel’s request to play the
tendered videotape after concluding that grandmother had not
denied anything that would be subject to impeachment. During
grandmother’s trial testimony, defense counsel presented direct
quotes of her inconsistent statements from her videotaped
interview, and she conceded those inconsistencies. The statements
that she did not concede related to the amount of time that the
victim had spent with her, which she sought to explain. Defense
counsel argued that the videotape was admissible because the
applicable foundational requirements were met, the videotaped
interview demonstrated that grandmother was “talkative,” and the
jurors needed the overall “flavor” of the interview to assess
grandmother’s testimony.
¶ 38 Defense counsel thoroughly impeached grandmother during
cross-examination and, in offering the videotaped interview, did not
assert that anything in it would differ from grandmother’s
cross-examination testimony. See id. at 450. Further, “[t]he jury
was not shielded in any way from [the witness’] apparent
21
contradictions but was able to observe, first hand, the nuances in
questioning that led to his different responses.” Id. Thus, the trial
court did not abuse its discretion in excluding the videotape
because Salas’ offered purpose had already been accomplished by
his cross-examination of grandmother. To the extent there were
any inconsistencies between the interview and grandmother’s trial
testimony, grandmother admitted them. Thus, admission of the
video would have been cumulative. The trial court could have
properly excluded the video on that basis alone. See CRE 403
(“Although relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation of
cumulative evidence.”); see also Saiz, 32 P.3d at 445-49.
¶ 39 Accordingly, we conclude that the district court did not abuse
its discretion in refusing to admit the videotape.
IV. SVP Designation
¶ 40 Last, Salas contends that the trial court’s determination that
he qualified as an SVP failed to satisfy statutory and due process
requirements because the court never made specific findings of fact
22
in support of its determination as required by section 18-3-414.5(2),
C.R.S. 2016. We agree that the court’s analysis did not satisfy the
statute and related case law.
¶ 41 Prior to Salas’ sentencing, a probation officer completed a
Colorado Sexually Violent Predator Assessment Screening
Instrument (SVPASI), as required by section 18-3-414.5. The
probation officer found that Salas satisfied the criteria for SVP
designation, in part because he promoted a relationship with the
victim primarily for the purpose of sexual victimization. The
SVPASI was provided to the court at sentencing along with a
presentence investigation report (PSI) summarizing the facts and
background of the case. At sentencing, the prosecutor asked “that
the Court find that Salas is a sexually violent predator per the
assessment.” After imposing a sentence, the trial court stated, “Oh,
and also based upon the [SVPASI] report, Salas meets the criteria of
a sexually violent predator.”
A. Review of SVP Designation on Appeal
¶ 42 Initially, the People contend that because an SVP designation
is a civil matter and because Salas did not object to the SVP
designation in the trial court and preserve the issue for appeal, we
23
should not review this claim of error. See Estate of Stevenson v.
Hollywood Bar & Cafe, Inc., 832 P.2d 718, 721 n.5 (Colo. 1992)
(“Arguments never presented to, considered or ruled upon by a trial
court may not be raised for the first time on appeal.”). However, we
disagree.
¶ 43 The People assert that “though the SVP statute is housed in
the criminal code, the designation is met with a civil burden of
proof.” People v. Allen, 2013 CO 44, ¶ 7, 307 P.3d 1102, 1105. Cf.
People v. Daly, 313 P.3d 571 (Colo. App. 2011) (restitution is a civil
judgment independent of a defendant’s conviction). As a result,
they argue, an SVP designation is not part of a criminal proceeding
and it is not a punishment. Therefore, “a trial court’s decision to
designate an offender as an SVP is legally and practically distinct
from its sentencing function.” Allen, ¶ 7, 307 P.3d at 1105; see also
People v. Stead, 66 P.3d 117, 123 (Colo. App. 2002), overruled by
Candelaria v. People on other grounds, 2013 CO 47, 303 P.3d 1202.
However, the Allen court did not suggest that an SVP designation
imposed in a criminal case pursuant to a criminal statute is not
part of a criminal proceeding subject to direct appeal in a criminal
case. It only concluded that appellate courts must defer to a trial
24
court’s factual SVP findings when they are supported by the record
and review de novo the trial court’s legal conclusions regarding
whether an offender should be designated as an SVP. Allen, ¶ 4,
307 P.3d at 1105.
¶ 44 Before Allen, multiple divisions of this court held that when a
defendant fails to object to a lack of specific findings on an SVP
designation, we review for plain error. See, e.g., People v. Mendoza,
313 P.3d 637, 641 n.4 (Colo. App. 2011); People v. Loyas, 259 P.3d
505, 511 (Colo. App. 2010); People v. Buerge, 240 P.3d 363, 369
(Colo. App. 2009). However, since Allen established that an SVP
designation carries a civil burden of proof, no court has addressed
the People’s contention that we may not review an SVP designation
when a defendant has not preserved the issue for appeal.
¶ 45 We conclude that although the SVP designation is not a
criminal punishment, it is only imposed in conjunction with a
criminal conviction and thus should not be separated from the
appeal of criminal trial issues. This is particularly so because an
SVP designation only accompanies a conviction of a sexual offense.
See § 18-3-414.5(2) (When an offender has been convicted of a
sexual offense listed in this section, “the court shall make specific
25
findings of fact and enter an order concerning whether the
defendant is a sexually violent predator” based on the SVPASI.).
¶ 46 Considering the logic above and the holdings of various
divisions of this court prior to the decision in Allen, we reject the
People’s contention that we should not review Salas’ unpreserved
challenge to his SVP designation, and therefore review the merits of
his claim for plain error, following the pre-Allen decisions by
divisions of this court noted above. See, e.g., Mendoza, 313 P.3d at
641 n.4.
B. Standard of Review
¶ 47 A trial court’s SVP designation involves a mixed question of
law and fact. Allen, ¶ 4, 307 P.3d at 1105. We must defer to a trial
court’s factual findings if they are supported by the record, but
review any legal conclusions de novo. Id.
C. Applicable Law
¶ 48 A trial court shall designate an offender an SVP when the
offender: (1) was eighteen years of age or older as of the date of the
offense; (2) was convicted of an enumerated sexual offense; (3)
committed the offense against a victim who was a stranger or was a
person with whom the offender established or promoted a
26
relationship primarily for the purpose of sexual victimization; and
(4) is likely to recidivate. § 18-3-414.5(1)(a)(I)-(IV); Allen, ¶ 6, 307
P.3d at 1105.
¶ 49 When a defendant is convicted of an enumerated offense, the
probation department completes an SVP assessment.
§ 18-3-414.5(2). “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.” Id.
¶ 50 The trial court is ultimately responsible for determining
whether a defendant satisfies the four elements of the SVP statute.
Uribe-Sanchez v. People, 2013 CO 46, ¶ 8, 307 P.3d 1090, 1091-92.
“In making this ultimate determination, the trial court relies on
both the statute itself, and on the appellate courts’ interpretations
of the language employed by the General Assembly.” Candelaria,
¶ 9, 303 P.3d at 1204.
¶ 51 At the time of the trial court’s SVP determination, the supreme
court had already announced the legal test for trial courts to apply
when determining if a defendant established or promoted a
relationship for SVP purposes. See People v. Gallegos, 2013 CO 45,
307 P.3d 1096. In Gallegos, the court explained that the SVP
27
statute “does not grant the [Sex Offender Management Board
(SOMB)] the authority to define [the] terms” contained in the third
element of the statute. Id. at ¶ 10, 307 P.3d at 1100. The portion
of the SVPASI utilized in this case that provides definitions or
criteria for the qualifying relationship types (stranger, established,
or promoted) is not authorized by statute, and it is not the proper
test for determining whether a defendant’s relationship with the
victim satisfies the SVP statute. See id.; People v. Tunis, 2013 COA
161, ¶ 39, 318 P.3d 524, 531-32 (Because the statute does not
authorize the SOMB to define the phrases “established a
relationship” or “promoted a relationship,” the reviewing court
“must disregard the two-step inquiry and underlying criteria
identified in the screening instrument.”). In fact, because the
SOMB does not have the authority to define the terms in the
relationship criterion of the SVP statute, district courts should
disregard the screening instrument’s description of factors for
determining whether an offender established or promoted a
relationship with the victim primarily for purposes of sexual
victimization. See Gallegos, ¶ 10, 307 P.3d at 1100; see also Tunis,
¶ 39, 318 P.3d at 531 (after Gallegos, “we must disregard” the
28
screening instrument’s findings regarding the relationship
criterion).
¶ 52 The Gallegos court further held that a defendant’s conduct
during the commission of the sexual assault or offense cannot be
used to satisfy the relationship element of the SVP statute.
Gallegos, ¶¶ 10-21, 307 P.3d at 1101-02; see also Uribe-Sanchez,
¶¶ 4-11, 307 P.3d at 1091-92 (defendant’s conduct during offense
could not be considered in determining whether he promoted
relationship with victim for purpose of sexualization); Tunis, ¶ 41,
318 P.3d at 532 (recognizing that reliance on the facts of the
assault “is now precluded” by Gallegos). To satisfy the “promoted a
relationship” criterion under the SVP statute, the offender,
excluding his or her behavior during the commission of the
offense(s), must have “otherwise encouraged a person with whom he
had a limited relationship to enter into a broader relationship
primarily for the purpose of sexual victimization.” Gallegos,
¶¶ 14-15, 307 P.3d at 1100-01.
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D. Analysis
¶ 53 Here, the district court erred in not using the legal definitions
established in Gallegos. Thus, a remand is necessary for the trial
court to apply those definitions after making findings of fact.
¶ 54 The SVPASI concluded Salas did not meet the “stranger”
criterion or the “established a relationship” criterion but met the
“promoted a relationship” criterion. While the district court
designated Salas as an SVP “based on the assessment,” it made no
factual findings on whether Salas “encouraged” the victim “to enter
into a broader relationship primarily for the purpose of sexual
victimization,” as required by statute. See, e.g., id. at ¶¶ 14-17, 307
P.3d at 1100-01; Tunis, ¶¶ 37-40, 318 P.3d at 531-32.
¶ 55 The People assert that because the PSI and SVPASI included
other accounts of sexual assault between Salas and the victim and
because the court explicitly stated that it was relying on the
assessment in making its determination, the court did not err in
designating Salas as an SVP. However, “we examine the court’s
findings and the testimony at the sentencing hearing using the
definition in Gallegos . . . .” Tunis, ¶ 39, 318 P.3d at 532. Because
the court relied on the screening instrument’s description of factors
30
when determining whether Salas met the relationship criterion of
the SVP statute and made no findings on any of the criteria in the
statute, we are unable to determine whether the court erred in
designating Salas an SVP.
¶ 56 Having determined that the court should not have relied on
the screening instrument for its finding that Salas met the
relationship criterion of the SVP statute, we next consider whether
that error requires reversal, as Salas asserts.
¶ 57 We conclude that the error committed in this case was plain.
It was obvious because the court did not follow the holding in
Gallegos in making its own factual findings relevant to whether
Salas was an SVP. While evidence in the record might support the
conclusion that Salas either established or promoted a relationship
with the victim primarily for purposes of sexual victimization under
the Gallegos standards, the court did not make specific factual
findings on the matter. Other evidence might lead to the opposite
conclusion. We perceive that such error was substantial and casts
serious doubt on the reliability of the SVP designation. Therefore,
we vacate the court’s SVP designation and remand to the trial court
31
so that it can make specific findings of fact regarding Salas’ SVP
designation. See Gallegos, ¶ 2, 307 P.3d 1098.
V. Conclusion
¶ 58 Accordingly, the judgment and sentence are affirmed. The
SVP designation is vacated, and the case is remanded to the trial
court to make specific findings of fact supporting its determination
whether Salas is an SVP, including regarding the relationship
criterion of the SVP statute, in accordance with the holding in
Gallegos.
JUDGE GRAHAM and JUDGE NAVARRO concur.
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