People v. Mendoza

313 P.3d 637, 2011 WL 4837499, 2011 Colo. App. LEXIS 1638
CourtColorado Court of Appeals
DecidedOctober 13, 2011
DocketNo. 08CA2453
StatusPublished
Cited by187 cases

This text of 313 P.3d 637 (People v. Mendoza) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Mendoza, 313 P.3d 637, 2011 WL 4837499, 2011 Colo. App. LEXIS 1638 (Colo. Ct. App. 2011).

Opinion

Opinion by

Judge DAILEY.

In this appeal, defendant, Tommie Corral Mendoza, challenges the district court's order designating him a sexually violent predator (SVP). Because we reject his challenges to the use of an SVP Assessment Sereening Instrument (SVPAST) and to the court's determination that he is an SVP, we affirm.

I. Background

In connection with numerous alleged sexual assaults of his teenage stepdaughter, defendant was charged with one count of sexual assault on a child, one count of sexual assault on a child as a pattern of abuse, five counts of sexual assault on a child by one in a position of trust, and three counts of habitual criminal. Defendant pleaded guilty to an added count of attempted sexual assault on a [640]*640child in exchange for dismissal of all other charges.

At sentencing, defendant filed a motion to, among other things, declare the sexually violent predator risk assessment part of the SVP statute, section 18-8-414.5, C.R.S.2011, unconstitutional and, consequently, to exclude consideration of his SVPASI Ultimately, the court denied defendant's motion and determined that he met the SVP criteria. The court sentenced him to a six-year term of imprisonment.

ILI. Overview

An SVP is an offender (1) who is eighteen years of age or older as of the date of the offense; (2) who has been convicted of an enumerated sexual offense; (8) whose victim was a stranger or was a person with whom the offender established or promoted a relationship primarily for the purpose of sexual victimization; and (4) who is likely to subsequently commit one or more of the enumerated offenses under the cireumstances specified in the statute. § 18-8-414.5(1)(a), C.R.S. 2011.

When a defendant is convicted of one of the enumerated offenses

the probation department shall, in coordination with the evaluator completing the mental health sex offense specific evaluation, complete the sexually violent predator risk assessment.... 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.

§ 18-3-414.5(2), C.R.S8.2011.1

With respect to the risk assessment, "[t]he General Assembly recognized the necessity of, among other things, providing for the comprehensive evaluation of sex offenders subject to the supervision of the criminal justice system and created a program that standardizes such evaluation." People v. Brosh, 251 P.3d 456, 459-60 (Colo.App.2010); see also § 16-11.7-101, C.R.S.2011.

As part of that program, the General Assembly created the Sex Offender Management Board (Board),2 which "consult[s] on, approvels], and revise[s], as necessary, the risk assessment screening instrument [the SVPASI] developed by the division of erimi-nal justice [Division] to assist the sentencing court in determining the likelihood that an adult sex offender will commit one or more of the offenses specified in [the SVP statute]." § 16-11.7-108(4)(d), C.R.S.2011; accord § 24-38.5-503(1)(0), C.RS.2011 (Division "develop({s], in consultation with the [Board] . the risk assessment sereening instrument"). In carrying out its duties as to the SVPASI, the Board is required to consider sex offender risk assessment research. § 16-11.7-103(4)(d).

The Division and Board created a three-part SVPASI: part one asks for information about the offender, including the erime for which he or she was convicted and whether it qualifies as an SVP enumerated offense; part two asks whether the offender meets the relationship criteria in section 18-3-414.5(1)(a)(III), C.R.S.2011, that is, whether the victim was a stranger to the offender or whether the offender established or promoted a relationship with the victim primarily for the purpose of sexual victimization; and part three assesses the offender's probability of reoffending, based, as pertinent here, on a Sex Offender Risk Seale (SORS).3

[641]*641At the time of defendant's evaluation, the SORS comprised ten items. Seven items called for certain data (Me., whether the offender had one or more juvenile felony adjudications, had one or more prior adult felony convictions, was employed full time at arrest, failed first or second grade, possessed or threatened use of a weapon during the current crime, or reported that he was not sexually aroused during the current crime, and whether the victim had ingested or was administered alcohol or drugs during the current crime). The remaining three items entailed evaluations of the offender's denial of the offense, deviant sexual practices, and motivation to participate in treatment.

The three evaluations were based on "scales." At the time of defendant's evaluation, each of the scales comprised an eight-factor checklist. For each individual factor on the checklist, a trained evaluator was required, based on an assessment of the offender, to enter a score of zero to five. If an offender scored twenty or more on the denial or deviancy scales or twenty or less on the motivation seale, that particular scale would be marked as counting against him or her on the overall SORS. A seore of four or more marks (out of the ten items on the SORS) against the offender qualified him or her as a high risk for reoffending. If an offender was categorized as high risk and met the requirements of parts one and two, he or she was considered, under Division and Board guidelines, to have met the SVP criteria.

SORS findings-including those based on the seales-are reviewable by sentencing courts. See § 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[n] [SVP]."); People v. Allen, 810 P.3d 83, 87 (Colo.App.2010) (cert. granted, 2011 WL 28148341 [July 18, 2011]) (plain language of section 18-8-414.5 indicates that the court is not bound by the SVPASI results in determining whether a defendant qualifies as an SVP).

III. Use of the SVPASI in This Case

On appeal, defendant contends that the district court erred in relying on the SVPASI to find that he was an SVP because (1) it failed to predict likely future commission of an SVP offense; (2) it violated equal protection and procedural due process guarantees; and (8) under a more recent, revised SVPASI, he would not qualify as an SVP.4

A. Prediction of Future Offenses

Initially, defendant contends that, contrary to the dictates of section 16-11.7-108(4)(d), the SVPASI does not predict likely future commission of an SVP offense but, instead, ouly identifies offenders who are likely to fail treatment or be rearrested for non-sexual violent crimes. We disagree.

In Brosh, the defendant similarly argued that the version of the SORS with which we are concerned here did not determine whether an offender was likely to reoffend by committing any of the offenses enumerated in the SVP statute. In rejecting this argument, the division cited research specifically [642]*642considered by the Board, and discussed in the Board Handbook: Sexually Violent Predator Assessment Screening Instrument (2008) 5

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Cite This Page — Counsel Stack

Bluebook (online)
313 P.3d 637, 2011 WL 4837499, 2011 Colo. App. LEXIS 1638, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mendoza-coloctapp-2011.