Peo v. West

Opinion

24CA0530 Peo v West 12-24-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0530 Douglas County District Court No. 22CR1202 Honorable Natalie Girard Stricklin, Judge Honorable Patricia D. Herron, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Devon Brandon West,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V Opinion by JUDGE YUN Freyre and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 24, 2025

Philip J. Weiser, Attorney General, Cata A. Cuneo, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Emma Berry, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Devon Brandon West appeals his designation by the district

court as a sexually violent predator (SVP). He argues that the court

violated his statutory and due process rights by (1) basing its SVP

designation on unreliable results from the Sexually Violent Predator

Assessment Screening Instrument (SVPASI) and (2) failing to make

specific findings to support the SVP designation. We disagree and

therefore affirm his designation.

I. Background

¶2 Between August 2020 and February 2022, West engaged in a

sexual relationship with a fifteen-year-old coworker who was twenty

years his junior. Following an anonymous report, West was

charged with one count of sexual exploitation of a child and one

count of sexual assault. He pleaded guilty to both charges.

¶3 Before West’s sentencing hearing, a probation officer

completed Colorado’s mandatory recidivism assessment: the

SVPASI. The officer used the 2020 SVPASI, which employs the

2018 Sex Offender Risk Scale (SORS) formula to quantify an

offender’s recidivism risk. Under this formula, West received a

SORS score of 22.19:

22.19 = (6 Adult Cases × 2.1) + (3 Juvenile Cases × 3.1)

1 + (4 Cases with a Revocation × 2.2)

– (37 Earliest Sex Offense Filing Age × .23).

This calculation included West’s six adult cases, three juvenile

cases, and four cases with a revocation of probation or community

corrections. His age was entered as thirty-seven.

¶4 According to the SVPASI, West was considered likely to

reoffend because his SORS score of 22.19 placed him in “a risk

category with a 50-60% likelihood of a new sex or violent crime

court filing within 8 years.” The probation officer forwarded the

SVPASI to a Sex Offender Management Board (SOMB) evaluator,

who indicated that she “agree[d] with the instrument findings for

[the SORS score].”

¶5 At sentencing, the district court asked whether either side had

“[a]ny changes [or] modifications” to the presentence investigation

report detailing West’s criminal history. Defense counsel did not

respond. Later, the district court granted the prosecution’s request

to designate West as an SVP, finding that (1) West’s victim was

significantly younger; (2) West’s conduct would amount to a felony

under current law; and (3) West groomed the victim to maintain an

ongoing abusive relationship with her. Defense counsel filed a

2 motion for reconsideration and requested a hearing on his

designation.

¶6 At the SVP hearing, defense counsel argued that West barely

qualified for designation under the SVPASI because he scored a

22.19 — .19 above the 22-point threshold. She argued that

imposing lifetime registry “because of a .190 on an assessment” was

“not in the interest of justice.” To illustrate how minor changes to

the SORS formula could place West below the 22-point threshold,

she presented two hypothetical calculations — one that excluded

West’s 2002 juvenile case and one that entered West’s age as

thirty-eight instead of thirty-seven. She argued that the number of

West’s juvenile cases should be reduced to two, remarking he would

have “scored a 19.090 without” the “Class III misdemeanor theft in

2002 . . . when Mr. West was a juvenile.” As to West’s age, she

observed that he was “two months shy of his 38th birthday” and

remarked, “If he had been 38 instead of 37, he would have scored

under 22, at 21.960.”

¶7 The prosecutor supported West’s designation, contending that

his SORS score of 22.19 understated his true risk. She argued

that, based on her review of the Offense-Specific Evaluation (OSE)

3 containing West’s criminal history, the evaluator undercounted two

variables in the SORS formula: (1) West’s juvenile cases, by

excluding a case in which he was charged but not convicted; and

(2) West’s cases with a revocation, by omitting the revocation of a

juvenile probation sentence.

¶8 The chart below summarizes the variables advanced by the

parties as well as the resulting SORS scores:

Evaluator’s Defense Defense Prosecutor’s SORS Counsel’s Counsel’s Proposed Score (from Proposed Proposed SORS Score SVPASI) SORS SORS (with Score (with Score (with juvenile and modified juvenile revocation age) cases cases modified) corrected) Adult Cases 6 6 6 6 (filed) Juvenile 3 3 2* 4* Cases (filed) Cases with a Revocation (from 4 4 4 5* probation or community corrections) Earliest Sex Offense 37 38* 37 37 Filing Age SORS Score 22.19 21.96* 19.09* 27.49*

*Indicates a hypothetical value advanced by one of the parties.

4 ¶9 Once both parties presented their arguments, the district

court clarified which parts of the record it considered:

• “the Presentence Investigation Report, which includes

both the [OSE] as well as the [SVPASI]”;

• “collateral sources of information, to include . . . the

Affidavit”;

• “the review of the Index Offense provided in the [OSE],

which also includes a section designated client version of

the Index Offense”;

• “the determination that Mr. West is in a low-to-moderate

range” according to some risk assessments; and

• Allen v. People, 2013 CO 44, which the district court

interpreted as holding, “if I make specific findings

regarding the risk of recidivism that [sic] I can deviate

from [the SVPASI’s results].”

¶ 10 After this clarification, the court concluded:

I have considered the determination that Mr. West is in a low-to-moderate range on the [OSE] Risk Assessment; however based upon the record as a whole, I find that I am unable to make specific findings based upon that alone and in the light of the circumstances which led to the conviction to deviate from the

5 SVP scoring instrument. So based upon that record, I will find that Mr. West is appropriately designated a sexually violent predator.

Consistent with the SVPASI’s results, the district court upheld

West’s designation as an SVP.

¶ 11 West now appeals his SVP designation.

II. Standard of Review

¶ 12 We interpret the SVP statute de novo. Allen, ¶ 4. We review

the district court’s “SVP designation — a mixed question of law and

fact — by deferring to the [district] court’s factual findings when

they are supported by the record, and reviewing de novo the

[district] court’s legal conclusions regarding whether an offender

should be designated as an SVP.” Id.

III. SVPASI and Applicable Law

¶ 13 To qualify for SVP designation by the district court, an

offender must meet the following statutory criteria:

(I) [the offender] is eighteen years of age or older as of the date the offense is committed . . . ;

(II) [the offender] has been convicted on or after July 1, 1999, of one [of the enumerated sex offenses];

6 (III) [the offender’s] 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

(IV) [the offender], based upon the results of [the SVPASI] developed by the division of criminal justice in consultation with and approved by the [SOMB] established pursuant to [statute] is likely to subsequently commit one [of the enumerated sex offenses] under the circumstances described in subparagraph (III) . . . .

§ 18-3-414.5(1)(a), C.R.S. 2025.

¶ 14 Only the fourth criterion — the recidivism criterion — is at

issue in this case. An offender meets the recidivism criterion when,

“based upon the results of” the SVPASI, he is deemed “likely to

subsequently commit” a sexually violent crime in the manner

described in the relationship criterion. Allen, ¶ 14 (quoting

§ 18-3-414.5(1)(a)(IV)).

¶ 15 Based upon the 2020 SVPASI, one way a defendant can meet

the recidivism criterion is by receiving a SORS score of 22 or higher.

The SORS score is calculated using the following 2018 formula:

SORS Score = (# Adult Cases × 2.1) + (# Juvenile Cases × 3.1)

+ (# Cases with a Revocation × 2.2)

7 – (Earliest Sex Offense Filing Age × .23).

Regarding the filing age, the SVPASI instructs the evaluator to input

the “age at filing date” and “[r]ound age to the nearest full year.” A

SORS score above 22 — achieved by fewer than 5% of those

assessed — indicates a 50-60% probability of a new sex or violent

crime within eight years.

¶ 16 The SVPASI functions as “the foundation” and “primary aid”

for a district court’s SVP designation. Allen, ¶¶ 14-15. Thus, a

district court is encouraged to “substantially defer to the scored

[SVPASI’s results],” including when “mak[ing] a decision regarding

an offender’s likelihood to [recidivate].” Id. at ¶¶ 14, 16. Moreover,

the district “court should not re-score the [SVPASI]” because the

“SOMB develops the [SVPASI] using the most up-to-date sex

offender risk assessment research and trains evaluators on how to

properly score the [SVPASI] to ensure less variation between

offenders’ scores.” Id. at ¶ 16.

¶ 17 Though the SVPASI’s results are foundational, under limited

circumstances, the district court must supplement the SVPASI’s

results with its own specific findings. Id. at ¶ 17. For example, a

district court can deviate from the SVPASI’s recommendation, but it

8 “may only do so after making specific findings justifying the

deviation.” Id. at ¶ 12.1 Additionally, divisions of this court have

held that if an outcome determinative fact in the SVPASI is factually

disputed, then “due process and [the SVP statute] require the trial

court to make further factual findings before adopting the

assessment.” People v. Lopez, 2020 COA 41, ¶ 8; People v. Tuffo,

209 P.3d 1226, 1231-32 (Colo. App. 2009).

¶ 18 In Lopez, the division vacated the SVP order because the

district court relied exclusively on the SVPASI’s results, even

though the SVPASI contained two outcome determinative facts that

were factually disputed. Lopez, ¶¶ 16, 21. The first fact — whether

the offender had lived at three different residences — was disputed

as inaccurate by defense counsel at sentencing. Id. at ¶ 18. It was

outcome determinative because, but for this fact, the offender

“would not have been eligible for an SVP designation.” Id. at ¶ 21.

1 West cites Allen v. People, 2013 CO 44, to support his contention

that the district court must make specific factual findings, but the court’s reasoning in Allen turned on different facts. In Allen, the SVPASI indicated the defendant was not an SVP, but the district court still designated him as an SVP. Id. at ¶ 2. The supreme court upheld the designation because the district court “[made] specific findings on the record to demonstrate the necessity of the offender’s SVP designation.” Id. at ¶ 24.

9 The second fact — whether the offender “promoted a

relationship” — was factually disputed due to contradictory answers

within the SVPASI. Id. at ¶ 15. It too was outcome determinative

because the SVPASI’s recommended designation depended on this

fact. Id. at ¶ 12.

¶ 19 Likewise, in Tuffo, 209 P.3d at 1232, the division held that the

district court was required to make specific findings because the

SVPASI contained an outcome determinative fact that was disputed

as inaccurate at the hearing — namely, whether the offender had

completed the first grade.

¶ 20 In sum, the district court should generally defer to the

SVPASI’s results. Allen, ¶ 24. However, if a finding within the

SVPASI is (1) factually disputed and (2) outcome determinative,

then the court must supplement the SVPASI with its own specific

findings before designating the offender an SVP. Lopez, ¶¶ 16, 21;

Tuffo, 209 P.3d at 1232.

IV. Obligation to Make Specific Findings

¶ 21 West contends that the district court was required to make its

own findings to support his SVP designation because the SVPASI’s

findings were “unreliable.” Specifically, he argues the SVPASI’s

10 findings were unreliable because (1) his SVPASI “contained at least

one error and two unexplained, unsourced, and disputed variables”;

and (2) the SVPASI, more generally, “doesn’t predict a defendant’s

likelihood to recidivate as specified in the SVP statute.”

A. Reliability of West’s SVPASI

¶ 22 We first address West’s argument that his SVPASI’s findings

were unreliable due to three variables in his SORS formula:

(1) earliest sex offense filing age; (2) juvenile cases; and (3) cases

with a revocation.

¶ 23 On appeal, West argues that his filing age was incorrectly

entered as thirty-seven in the SORS formula because the evaluator

did not round up “to the nearest full year,” per the SVPASI

instructions. However, we disagree that the district court was

required to make its own findings regarding West’s age for three

reasons.

¶ 24 First, this case is distinguishable from Lopez and Tuffo.

Although West’s age is an outcome determinative fact, it was not

factually disputed in the district court. Rather, at the SVP hearing,

defense counsel advanced a policy argument, asserting that even a

11 small change to West’s age in the SORS formula could unfairly

influence the SVPASI’s recommended designation.

¶ 25 Second, the SVPASI does not instruct evaluators to round up

the offender’s age. It says to input the “age at filing date” and to

“[r]ound age to the nearest full year.” A reasonable reading of this

instruction is to list the individual’s age as the nearest completed

“full” year, thereby avoiding unwieldy decimal points or fractions.

¶ 26 Third, to the extent that the instruction is unclear, the district

court properly deferred to the expertise of a trained evaluator. An

instruction may be capable of two interpretations, but the evaluator

is trained “on how to properly score the [SVPASI] to ensure less

variation between offenders’ scores.” Allen, ¶ 16.

¶ 27 West next argues that his juvenile cases and his cases with a

revocation included in the SORS formula were “unexplained,

unsourced, and disputed.” As we understand West’s argument, he

contends that these two variables are “unreliable” because the

parties argued, and the psychosexual evaluation listed, different

values than those the evaluator ultimately entered into the SORS

formula. We disagree that the district court was required to make

12 its own findings regarding the number of juvenile cases or cases

with a revocation for several reasons.

¶ 28 First, the district court was not required to supplement the

SVPASI’s finding of three juvenile cases simply because West now

argues on appeal that the psychosexual evaluation lists only two.

Unlike in Lopez and Tuffo, whether West had two or three juvenile

cases was not “factually disputed.” At sentencing, when the district

court asked if either party had “[a]ny changes” to West’s criminal

history, defense counsel was silent. At the SVP hearing, she

objected to the injustice of including older juvenile cases, not to the

accuracy of those cases.

¶ 29 Additionally, unlike in Lopez, the SVPASI’s results here are

internally consistent. See Lopez, ¶ 16. Although West points out

that the psychosexual evaluation contradicts the SVPASI, the

SVPASI itself — the document to which courts are directed to

“substantially defer” — remains consistent. Allen, ¶ 16. Moreover,

West refers to the psychosexual evaluation only to highlight the

different values. He never argues that the evaluation contains the

correct number of juvenile cases.

13 ¶ 30 Second, the district court was not required to supplement the

SVPASI’s finding of three juvenile cases because the prosecution

argued that four was the correct entry. Whether West had three or

four juvenile cases was “factually disputed” because the

prosecution challenged three as factually inaccurate. However,

whether West had three or four juvenile cases is not an outcome

determinative fact: He was already eligible for SVP designation, even

if the evaluator undercounted.

¶ 31 Third, the district court similarly was not required to

supplement the SVPASI’s finding of four cases with a revocation

because the prosecution argued that five was the correct number.

Again, this finding was “factually disputed” by the prosecution, but

it was not outcome determinative.

¶ 32 In conclusion, this analysis reinforces the rationale behind our

supreme court’s directive that district courts should “substantially

defer” to the SVPASI’s results. Allen, ¶ 16. Evaluators receive

specialized training on how to “properly score” the SVPASI —

including which cases to include or exclude and how to determine

the filing age. Id. Unless an outcome determinative input is

14 objected to as fabricated or factually inaccurate, the district court

should refrain from “re-scor[ing] the instrument.” Id.

¶ 33 On these facts, we cannot say the SVPASI’s findings were

unreliable.

B. Reliability of the SVPASI

¶ 34 West contends that all SVPASI results are “inherently

unreliable” because the SVPASI measures a broader recidivism risk

than the SVP statute specifies. He further contends that prior

divisions’ decisions upholding an older SORS formula are

inapposite because he was evaluated under the 2020 SVPASI using

the 2018 SORS formula. We address each contention in turn.

¶ 35 As for the SVP statute’s specifications, the statute’s recidivism

criterion is satisfied if, “based upon the results of [the SVPASI],” an

offender is found “likely to subsequently commit [one of the

enumerated sex offenses] under the circumstances described.”

§ 18-3-414.5(1)(a)(IV). The 2020 SVPASI, which employs the 2018

SORS formula, classifies offenders with a SORS score of 22 or

higher as having “a 50-60% likelihood of a new sex or violent crime

court filing within 8 years.” (Emphasis added.) West argues that

this metric —by including violent crimes — encompasses a broader

15 recidivism group than those “likely to subsequently commit [one of

the enumerated sex offenses] under the circumstances described.”

¶ 36 However, the statute accounts for this apparent discrepancy

by incorporating both the SVPASI and the SOMB’s SORS scoring

into its definition of the recidivism group. The phrase “based upon

the results” indicates that the legislature intended for the SOMB’s

SORS scoring to affect the statute’s application.

§ 18-3-414.5(1)(a)(IV). While the statute identifies the recidivism

risk group that the SOMB should target, it delegates to the SOMB

the responsibility of creating an assessment that predicts the

likelihood that an offender falls within this risk group. Inevitably,

the risk group identified through the SOMB’s probability

assessment may not perfectly align with the statute’s target risk

group. But the statute contemplates this result.

¶ 37 Turning to prior divisions’ decisions, the analyses in People v.

Brosh, 251 P.3d 456 (Colo. App. 2010) and People v. Mendoza,

313 P.3d 637 (Colo. App. 2011) remain persuasive. In Brosh, the

court held the research-driven SORS scoring satisfied the SVP

statute’s objectives in part because the SOMB noted “the risk of

arrest for violent crimes as a ‘reasonable proxy’ in measuring

16 recidivism of sex offenders.” 251 P.3d at 460 (citation omitted).

Similarly, in Mendoza, the court concluded that “based on the

[SOMB’s] research, the SVPASI was not invalid for lacking sufficient

bases upon which to predict the likelihood of committing a future

SVP offense.” 313 P.3d at 642.

¶ 38 West correctly asserts that the SORS scoring mechanism has

changed significantly since Brosh and Mendoza were decided, but

he offers no evidence that it has become less reliable than older

versions. On the contrary, West admits that the current version

resulted from the SOMB addressing criticisms of its older SORS

scoring mechanisms. This suggests the 2018 version serves as a

better proxy for recidivism than the older version upheld in Brosh

and Mendoza. Accordingly, we cannot say the SVPASI’s results, in

general, are “inherently unreliable,” as West contends.

¶ 39 Because the SVPASI generally, and West’s SVPASI specifically,

were reliable, the court was not required to make its own findings to

support West’s SVP designation.

VI. Disposition

¶ 40 The judgment is affirmed.

JUDGE FREYRE and JUDGE PAWAR concur.