25CA0013 Peo v Bement 08-20-2026 COLORADO COURT OF APPEALS
Court of Appeals No. 25CA0013 Delta County District Court No. 23CR79 Honorable Steven L. Schultz, Judge
The People of the State of Colorado, Plaintiff-Appellee, v. David Wilson Bement, Defendant-Appellant.
SENTENCE AFFIRMED, ORDERS AFFIRMED IN PART AND VACATED IN PART
Division II
Opinion by JUDGE BROWN
Tow, C.J., and Harris, J., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 20, 2026
Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Kori Keil Zapletal, Deputy State Public Defender, Montrose, Colorado, for Defendant-Appellant
¶1 Defendant, David Wilson Bement, appeals the sentence imposed on his petty offense criminal mischief conviction and the district court’s simultaneous orders requiring that he engage in domestic violence treatment and comply with firearms restrictions. Bement also appeals the court’s order denying his request to stay his sentence pending his appeal. We vacate the order imposing a firearms restriction but otherwise affirm the court’s other orders and Bement’s sentence.
I. Background
¶2 According to the arrest affidavit,1 in May 2023, Bement and his wife were involved in an argument after she came home and found him in their bedroom with a shotgun. When she attempted to take the shotgun away, he grabbed her wrist and hit her. The two continued to fight in the bedroom and out in the hallway. At one point, Bement retrieved a handgun from under a pillow, put the barrel to his wife’s chin, and said, “I could shoot you right now.” Bement put the gun down and grabbed his wife’s neck with his left hand while striking her face with an open right hand. During the
1 We summarize the facts from the arrest affidavit because Bement did not designate all trial transcripts for the record on appeal.
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altercation, Bement and his wife also wrestled over her phone. Bement threw the phone out the front door into the street, damaging it. The couple’s two children witnessed these events.
¶3 The prosecution charged Bement with second degree assault, third degree assault, menacing, harassment, prohibited use of a weapon, two counts of child abuse, and misdemeanor criminal mischief for the damaged phone. A jury acquitted Bement of all charges except for criminal mischief, but it found that the value of the phone was less than three hundred dollars, making the conviction a petty offense.
¶4 At sentencing, the court found that the conduct underlying Bement’s conviction included an act of domestic violence. It sentenced Bement to ten days in jail with credit for time served and fined him $300. The court also ordered Bement to engage in a domestic violence evaluation and complete any recommended treatment. It suspended the fine’s imposition for six months and explained that it would “dismiss” the fine if Bement provided written proof that he completed domestic violence treatment within that period. It further ordered Bement to comply with domestic violence
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restrictions on firearms. Defense counsel requested a stay of the sentence pending appeal, which the court denied.
II. Domestic-Violence-Related Orders
¶5 Bement challenges the district court’s orders requiring that he engage in domestic violence treatment and comply with domestic violence firearms restrictions. He makes three overarching contentions: (1) the court erred in making its domestic violence finding; (2) the orders render his sentence illegal; and (3) the court violated his constitutional rights. We vacate the order imposing a firearms restriction but otherwise affirm.
A. Generally Applicable Law and Standard of Review
¶6 If a person is convicted of a petty offense, the trial court may sentence them to “a fine of not more than three hundred dollars, imprisonment for not more than ten days in a county jail, or both.” § 18-1.3-503(1.5), C.R.S. 2025.
In addition to any sentence that is imposed upon a person for violation of any criminal law . . . , any person who is convicted of any crime, the underlying factual basis of which has been found by the court on the record to include an act of domestic violence, as defined in section 18-6-800.3(1)[,C.R.S. 2025], or any crime against property . . . when such crime is used as a method of coercion, control, punishment,
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intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship shall be ordered to complete a treatment program and a treatment evaluation that conform with the standards adopted by the domestic violence offender management board . . . .
§ 18-6-801(1)(a), C.R.S. 2025. “Domestic violence” is defined as “an act or threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship” and “includes any other crime against a person, or against property . . . when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship.” § 18-6-800.3(1).
¶7 We review a challenge to a domestic violence finding as a mixed question of fact and law, deferring to the court’s factual findings if they have record support but reviewing de novo any legal conclusions. See People v. Ehlebracht, 2020 COA 132, ¶ 25 (applying a mixed standard of review to a court’s designation of a defendant as a sexually violent predator (SVP)). We review de novo the legality of a sentence, Magana v. People, 2022 CO 25, ¶ 33, as well as a constitutional challenge to a sentencing determination, Pellegrin v. People, 2023 CO 37, ¶ 49.
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B. Additional Background
¶8 In November 2024, the district court held a hearing intending to sentence Bement following his conviction for “a petty offense for criminal mischief as an act of domestic violence.” The parties agreed that Bement had already served ten days in jail, but the prosecutor asked that the court also impose a $300 fine and order Bement to complete domestic violence treatment. Defense counsel objected to domestic violence treatment, arguing that because Bement had “served the maximum sentence,” the court lost jurisdiction to order treatment.
¶9 The court explained that it had intended to place Bement on unsupervised probation, rather than sentence him to jail, because it was required by statute to impose domestic violence treatment and could make such treatment a condition of probation. But defense counsel argued that Bement did not consent to probation, the court could not force him to accept probation, and the court had no authority to require Bement “to do more things” once he completed his jail sentence. The court suggested that, in the absence of continuing supervision, the domestic violence treatment requirement could be enforced via “[c]ontempt of court,” which
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could result in “up to six months in the county jail for failing to complete the sentence.” Ultimately, the court continued the sentencing hearing until December and ordered the parties to brief whether Bement could be sentenced to probation or required to complete domestic violence treatment.
¶ 10 Defense counsel timely filed a written brief, arguing that the court could not impose domestic violence treatment because (1) a jury had not found that the conduct underlying the petty offense was an act of domestic violence; (2) the treatment requirement expanded the sentencing range for a petty offense; and (3) the court could not order unsupervised probation or monitor compliance with the treatment requirement.
¶ 11 At the December sentencing hearing, the court first explained that it was required to impose domestic violence treatment and that treatment was “not considered . . . punishment.” Then the court found that Bement had engaged in an act of domestic violence:
[I]t is — permissible for the court to make a finding of domestic violence in this case both by statute and under the case law. I will note that the underlying offense here, which involves criminal mischief of a cellphone and its cover — is a permissible predicate for a domestic violence finding. In this case[,] I am
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finding that Mr. Bement was in [an] intimate relationship with [his wife] at the time of the underlying offense. That he did then engage in criminal mischief as a petty offense and, therefore, I am finding that this was a domestic violence incident, and it will be sentenced as a domestic violence charge.
¶ 12 The court explained the ramifications of its domestic violence finding and, recognizing limitations on its sentencing authority, the mechanism it created to try to enforce it:
With respect to the sentence in this case, I should note, Mr. Bement, the court’s finding that this is domestic violence. It carries certain consequences for you. In particular, you’re required to refrain from possessing or purchasing any firearm or ammunition until your sentence is satisfied [and must]
relinquish any firearm or ammunition in your immediate possession. I’m supposed to schedule a compliance hearing, but I don’t know that I can do that in this case since we’ve already exceeded the maximum — sentence.
So, — what I’m inclined to do here is I am going to impose a $300 fine, but I’m going to suspend that fine. I’m also imposing a domestic violence evaluation and completion of any recommended treatment. And . . . the $300 fine is suspended for six months. If [Bement] files completion of the domestic violence classes by then[,] the court will dismiss the fine. Otherwise, it’ll get imposed.
¶ 13 Because the court believed that it could not set a review hearing or sentence Bement to probation without his agreement, it
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told the prosecutor that “it would be up to the District Attorney’s Office to enforce [the domestic violence treatment requirement] by way of contempt.” The court issued two written orders memorializing its ruling.
C. Domestic Violence Finding
¶ 14 Bement contends that the district court applied an incorrect legal standard when it found that Bement had committed domestic violence based solely on the existence of an intimate relationship between Bement and his wife. Thus, Bement seems to frame his challenge to the court’s domestic violence finding as a misapplication of the law. But Bement also argues that the court failed to find that he committed “an act or threatened act of violence” or that he damaged property as a “method of coercion, control, punishment, intimidation, or revenge” as required by the domestic violence statute. § 18-6-800.3(1). This argument seems to challenge the sufficiency of the court’s findings.
¶ 15 We agree with Bement that, for the requirements of section 18-6-801(1)(a) to apply, the defendant must have (1) committed either a threat or act of violence or a crime against property when used for the purposes described and (2) been in an intimate
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relationship with the victim. §§ 18-6-801(1)(a), 18-6-800.3(1). But it does not appear that the court applied a different standard. In addition to finding that Bement and his wife were in an intimate relationship, the court referenced the domestic violence statute and explained that Bement’s criminal mischief conviction was an appropriate “predicate” for a domestic violence finding; it did not indicate that an intimate relationship alone was enough to find that the underlying factual basis for the offense included an act of domestic violence. Accordingly, we reject Bement’s argument that the court misapplied the law. See Magana, ¶ 33.
¶ 16 Nor are we persuaded by Bement’s corollary argument that the court made insufficient findings to impose domestic violence treatment under section 18-6-801(1)(a). Essentially, Bement contends that, because he was convicted of a property crime, the court had to expressly find that he smashed his wife’s phone as a method of coercion, control, punishment, intimidation, or revenge against his wife. See § 18-6-801(1)(a).
¶ 17 We acknowledge that the court did not make the specific finding Bement argues was required. But Bement cites no authority mandating that the court’s findings be so granular, and
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nothing in the statutory language requires that. Indeed, a court is not required “to make scienter findings before finding an act of domestic violence and ordering an evaluation and treatment.” Pellegrin, ¶ 60 (making this observation when determining whether imposing domestic violence treatment constituted punishment under the factors articulated in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963)). Instead, if the court finds that the underlying factual basis for the conviction included an act of domestic violence and the record supports that finding, we will not overturn it. Cf. In re Parental Responsibilities Concerning S.Z.S., 2022 COA 105, ¶ 21 (recognizing that a court’s finding may be implicit in its ruling); People in Interest of J.M.B., 60 P.3d 790, 794 (Colo. App. 2002) (so long as a court’s findings conform to the statute and are supported by the record, we will not set aside its ruling for lack of specificity).
¶ 18 Notably, Bement failed to designate all the transcripts of his trial for the record on appeal. Thus, we presume that the trial record supports the court’s finding that the underlying factual basis for Bement’s criminal mischief conviction included an act of domestic violence. See People v. Duran, 2015 COA 141, ¶ 12 (“It is
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the appellant’s responsibility to designate the record on appeal, including those parts of the trial proceedings that are necessary for purposes of the appeal, and to ensure that the record is properly transmitted to an appellate court,” and “[t]he presumption is that material portions omitted from the record would support the judgment.”). Moreover, what we do have in the record certainly supports such a finding. According to the arrest affidavit, Bement physically assaulted his wife and wrestled with her over her phone before he took it away from her and threw it out into the street, damaging it. Those facts overwhelmingly support a finding that Bement’s conduct constituted either an act or threatened act of violence against his wife or that Bement smashed his wife’s phone to coerce, control, intimidate, punish, or take revenge against her. See § 18-6-800.3(1).
¶ 19 Because there is record support for the court’s finding that the underlying factual basis of Bement’s conviction included an act of domestic violence, we will not disturb it. See Ehlebracht, ¶ 25; see also People v. Folsom, 2017 COA 146M, ¶ 59 (we defer to a trial court’s factual findings unless clearly erroneous). But even if the court should have made more specific findings, we conclude that
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any error is harmless because no reasonable fact finder could find otherwise based on the record before us. Cf. People v. Shannon, 2024 COA 41, ¶ 31 (any failure by the trial court to expressly find that expert testimony was relevant was harmless because the relevance was obvious).
D. Illegal Sentence
¶ 20 Bement contends that the district court imposed an illegal sentence because (1) its order requiring domestic violence treatment amounted to a probationary sentence that exceeded the presumptive range for a petty offense, and (2) it was not authorized to impose a firearms restriction. Because we disagree with Bement’s characterization of the court’s sentencing orders, we reject his first contention. But to the extent the court imposed a firearms restriction, we vacate it.
1. Applicable Law
¶ 21 A sentence that fails to comply with the sentencing statutes is illegal and may be corrected at any time. Delgado v. People, 105 P.3d 634, 637-38 (Colo. 2005); see People v. Oliver, 2016 COA 180M, ¶ 16 (“An illegal sentence is one that is not authorized by law . . . .” (citation omitted)).
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¶ 22 “Generally, a court cannot sentence a defendant to both jail and to probation because probation is considered an alternative to imprisonment.” People v. Trujillo, 2019 COA 74, ¶ 30. “‘Court probation’ is a form of probation ‘in which the offender . . . reports only to the sentencing judge rather than [to] a probation officer.’” Id. at ¶ 29 (quoting Black’s Law Dictionary 1396 (10th ed. 2014)). But “an order requiring a defendant to complete domestic violence treatment is not a sentence because it is neither punishment nor penalty.” Id. at ¶ 31. And if a judge does not order the defendant to report back at a review hearing to ensure completion of domestic violence treatment, then the court has not taken on “a supervisory role” and has not ordered court probation. Id. at ¶ 32.
2. The Court Did Not Order Probation or a Sentence in Excess of the Statutory Maximum
¶ 23 Bement’s arguments are premised upon his assertion that the district court placed him under “court supervision” by requiring him to provide written proof of completion of domestic violence treatment, “suspending a fine upon completion,” and “telling [him] that six months of jail could be imposed for not completing the classes.” We do not read the court’s orders the same way.
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¶ 24 The record plainly establishes that the court sentenced Bement to ten days jail, with credit for time served, and fined him $300. These were the statutorily available penalties for Bement’s petty offense conviction. See § 18-1.3-503(1.5).
¶ 25 The court also ordered Bement to complete domestic violence treatment as it was required to do by statute after finding that Bement committed an act of domestic violence. See § 18-6- 801(1)(a). It sought to encourage Bement to complete the treatment by offering to “dismiss” the $300 fine if he filed proof of completion. For this reason, the court suspended the fine for six months. If Bement did not timely file proof that he completed the treatment, the fine would be imposed.
¶ 26 The court did not set a review hearing at which Bement would be required to report on his compliance with domestic violence treatment. It reasoned that doing so would amount to some form of probation and that it could not impose probation over Bement’s objection. Nor did the court order Bement to serve six months in jail if he did not complete the treatment. Instead, because the court could not supervise Bement’s compliance, it explained that it would be up to the prosecution to pursue contempt if Bement did not
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complete treatment. True, at an earlier hearing, the court noted that a finding of contempt could result in six months of jail. But that discussion was not part of the court’s sentencing order.
¶ 27 More importantly, whether a contempt proceeding resulting in additional jail time would give rise to a sentence exceeding the maximum penalty for a petty offense is not an issue that is ripe for review. See Trujillo, ¶ 36 (evaluating similar facts and explaining that “[r]ipeness tests whether the issue is real, immediate, and fit for adjudication” and that courts should not “consider uncertain or contingent future matters that suppose speculative injury that may never occur” (quoting Bd. of Dirs., Metro Wastewater Reclamation Dist. v. Nat’l Union Fire Ins. Co., 105 P.3d 653, 656 (Colo. 2005))). Bement has not alleged (nor does the record reveal) that he refused to comply with the domestic violence treatment order, that the prosecution moved for contempt, that the court held a contempt hearing, that the court found him in contempt, or that the court imposed additional jail time. See id. at ¶ 37. We will not render an advisory opinion on this question.
¶ 28 We conclude that the court imposed a legal sentence for a petty offense conviction by sentencing Bement to ten days in jail
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and fining him $300. See § 18-1.3-503(1.5); People v. Kendrick, 143 P.3d 1175, 1176 (Colo. App. 2006) (when a defendant receives a sentence within the presumptive range of the statute, the sentence “is neither illegal nor unconstitutional”). We also conclude that the court had the authority to order Bement to complete domestic violence treatment. See § 18-6-801(1)(a). None of the court’s sentencing orders subjected Bement to probation or to a jail sentence beyond what was authorized by statute.
3. The District Court Was Not Authorized to Impose a Firearms Restriction for a Petty Offense
¶ 29 As best we understand, Bement also contends that the district court imposed an illegal sentence by restricting him from possessing firearms under section 18-6-801(8)(a).
¶ 30 Under subsection (8)(a)(I),
if a defendant is convicted of any crime, the underlying factual basis of which is found by the court on the record to be a misdemeanor crime of domestic violence, as defined in 18 U.S.C. [§] 921(a)(33), or that is punishable by a term of imprisonment exceeding one year and includes an act of domestic violence, as defined in section 18-6-800.3(1), the court . . .
[s]hall order the defendant to . . . [r]efrain from possessing or purchasing any firearm or ammunition until the defendant’s sentence is satisfied[] and . . . [r]elinquish any firearm or
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ammunition in . . . or subject to the defendant’s immediate possession or control.
§ 18-6-801(8)(a)(I) (emphasis added).
¶ 31 We note that neither of the court’s written sentencing orders mentions a firearms restriction. And although an affidavit of firearms relinquishment was filed based on the mandatory protection order entered at the beginning of the case, the record is devoid of any affidavit or notice of relinquishment filed after the sentencing hearing. Thus, it is unclear to us whether any firearms restriction remains in place.
¶ 32 Still, the court clearly referenced section 18-6-801(8)(a)(I)’s firearm restriction when it told Bement that he was “required to refrain from possessing or purchasing any firearm or ammunition until [his] sentence [wa]s satisfied [and to] relinquish any firearm or ammunition in [his] immediate possession.” And to the extent the court imposed a firearms restriction, we agree with Bement that it was not authorized to do so under subsection (8)(a)(I), which applies only to misdemeanors or crimes punishable by a term of imprisonment exceeding one year. Because Bement was convicted
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of a petty offense with a maximum sentence of ten days in jail, subsection (8)(a)(I) does not apply to his conviction.
¶ 33 But the firearms restriction is not punishment or a part of Bement’s sentence. See S.B. 13-197, 69th Gen. Assemb., 1st Reg. Sess. (Colo. 2013) (explaining that the purpose of amending, as relevant, section 18-6-801 to restrict firearms was to “help protect victims of domestic violence and their children”); see also Hitch v. State, 51 N.E. 3d 216, 225 (Ind. 2016) (concluding that a firearm prohibition statute is nonpunitive under the Mendoza-Martinez factors); State v. Felix, 105 P.3d 427, 430-31 (Wash. Ct. App. 2005) (restricting a defendant who was convicted of a domestic violence misdemeanor from possessing firearms is clearly “an attempt to increase the safety of potential future domestic violence victims” and thus not a punishment). So we vacate the firearms restriction without disturbing Bement’s sentence. Cf. People v. Salas, 2017 COA 63, ¶ 57 (vacating the trial court’s SVP designation but affirming the sentence); People v. Raehal, 2017 COA 18, ¶ 39 (same); see also Beagle v. People, 2026 CO 24M, ¶ 58 (concluding an SVP designation does not constitute punishment).
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E. Constitutional Violations
¶ 34 Bement next contends that the district court violated his constitutional rights by ordering domestic violence treatment because (1) the court was required to submit the question of whether Bement committed an act of domestic violence to a jury under the Sixth Amendment, and (2) the treatment requirement amounts to excessive punishment under the Eighth Amendment. Because the Colorado Supreme Court has already concluded that domestic violence treatment is not punishment, Pellegrin, ¶ 65, we necessarily reject both contentions.
¶ 35 The Sixth Amendment guarantees a defendant’s right to a jury trial. U.S. Const. amend. VI. Under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Pellegrin, ¶ 50. “This test applies, however, only when the fact at issue increases a defendant’s punishment.” Id. at ¶ 51.
¶ 36 The Eighth Amendment protects a defendant from cruel and unusual punishment. U.S. Const. amend. VIII. If a statute does not impose a punishment, however, it does not implicate the Eighth
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Amendment. Beagle, ¶ 16 (“Evaluating whether a law constitutes ‘cruel and unusual punishment’ requires us to determine if it imposes punishment in the first place.” (citation omitted)).
¶ 37 After undertaking a detailed analysis, the Colorado Supreme Court concluded that the imposition of domestic violence treatment under section 18-6-801(1)(a) does not constitute a punishment. Pellegrin, ¶ 65; see People v. Harmon, 2019 COA 156, ¶ 3 n.1 (we are bound by the supreme court’s holding). Consequently, the domestic violence treatment requirement did not implicate Bement’s Eighth Amendment right to be free from cruel and unusual punishment, see Beagle, ¶ 16, and Bement had no Sixth Amendment right to have a jury determine whether the crime for which he was convicted included an act of domestic violence, see Pellegrin, ¶ 65.
¶ 38 We are not persuaded by Bement’s attempt to distinguish his case from Pellegrin because “the domestic violence finding subjects [him] to additional jail time if he does not comply.” We have already
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rejected this characterization of the court’s sentencing orders.2 Accordingly, we conclude that the district court did not violate Bement’s constitutional rights. See id. at ¶ 49.
III. Stay of Sentence
¶ 39 Bement contends that the district court erred by denying his request for a stay of his sentence pending his appeal. In support of this contention, Bement cites C.A.R. 8.1(a)(3), which provides that a court may stay fines pending an appeal; section 16-4-201(d)(2), C.R.S. 2025, which allows for a stay of probation; Crim. P. 37(h), which details stays of execution on appeals from county court to the district court; and section 16-2-114(6), C.R.S. 2025, which also allows stays of execution for appeals from county court. Because the cited authorities either do not mandate a stay of a sentence pending an appeal from a district court (as opposed to a county court) or do not apply since Bement was not sentenced to probation, we reject Bement’s contention.
2 To the extent Bement argues that the firearms restriction
increased his punishment, we need not address that argument because we have vacated the restriction.
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IV. Disposition
¶ 40 We vacate the district court’s order imposing a firearms restriction but otherwise affirm Bement’s sentence and the court’s order requiring domestic violence treatment.
CHIEF JUDGE TOW and JUDGE HARRIS concur.