v. Pellegrin

2021 COA 118, 500 P.3d 384

• Court: Colorado Court of Appeals
• Decided: September 2, 2021
• Docket: 18CA1847, People
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY September 2, 2021

2021COA118

No. 18CA1847, People v. Pellegrin — Crimes — Posting a Private Image for Harassment — Stalking — Harassment; Criminal Law — Prosecution of Multiple Counts for Same Act — Lesser Included Offenses

In this “revenge porn” case, a division of the court of appeals

decides two novel issues. First, does the term “breast of a female,”

in section 18-7-107, C.R.S. 2020 (posting a private image for

harassment), require the image to display the whole breast or only a

portion of the breast? The division holds that an image posted for

harassment need only display a portion of the female breast.

Second, is harassment, § 18-9-111(1)(e), C.R.S. 2020, a lesser

included offense of stalking, § 18-3-602(1)(c), C.R.S. 2020, under

section 18-1-408(5)(c), C.R.S. 2020? The division concludes that it

is not because the harassment and stalking statutes fail the single

distinction test required by section 18-1-408(5)(c). COLORADO COURT OF APPEALS 2021COA118

Court of Appeals No. 18CA1487 El Paso County District Court No. 17CR4220 Honorable William B. Bain, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Trevor A. Pellegrin,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I Opinion by JUDGE FREYRE Yun and Graham*, JJ., concur

Announced September 2, 2021

Philip J. Weiser, Attorney General, Brittany L. Limes, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Emily C. Hessler, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2020. ¶1 In this “revenge porn” case, we are asked to decide two novel

issues. First, we are asked to interpret the term “breast of a female”

under the posting a private image for harassment statute, § 18-7-

107, C.R.S. 2020. Section 18-7-107(1)(a) criminalizes the posting

or distribution of an image displaying the private intimate parts of

an identified or identifiable person on social media or any website.

“Private intimate parts” is defined as “external genitalia or the

perineum or the anus or the pubes of any person or the breast of a

female.” § 18-7-107(6)(c). The statute, however, does not define

“breast of a female.”

¶2 We first conclude that “breast of a female” is ambiguous and

can reasonably be interpreted to mean either the whole breast or

simply a portion of the breast. We next conclude, consistent with

the legislative history, that “breast of a female” means any portion

of the female breast. Finally, we conclude that the statute is not

unconstitutionally vague or overbroad.

¶3 We are also asked to decide whether harassment, § 18-9-

111(1)(e), C.R.S. 2020, is a lesser included offense of stalking, § 18-

3-602(1)(c), C.R.S. 2020, under section 18-1-408(5)(c), C.R.S. 2020.

We conclude that the statutes fail the single distinction test set

1 forth in section 18-1-408(5)(c) because they differ in more than one

respect and, therefore, affirm the convictions for stalking, posting a

private image for harassment, and harassment.

I. Background

¶4 Defendant, Trevor A. Pellegrin, and the victim began dating in

2016, and they moved in together shortly thereafter. They were

later engaged. During their relationship, the victim allowed

Pellegrin to take private, intimate photos of her in various stages of

undress. The victim ended the relationship in April 2017 and

moved into an apartment with her sister.

¶5 After the breakup, the victim had limited contact with Pellegrin

until July 2017. Although the victim was in a new relationship with

another man, she and Pellegrin spent time together between July

16 and July 19, 2017. Unbeknownst to Pellegrin, the victim had

plans to see the other man on the evening of July 19.

¶6 After learning the victim was seeing someone else, Pellegrin

repeatedly called and texted the victim from July 19 into July 20.

He called the victim lewd names and sent nude photos he had

taken of her during their relationship. Pellegrin threatened to post

the nude photos online and to send them to her twelve-year-old

2 brother. Distraught by Pellegrin’s texts, the victim left work early

on July 20 and reported the texts to the police. The police viewed

the text messages, but they told the victim they could do nothing

until Pellegrin posted the photos online. Pellegrin continued

repeatedly texting the victim until July 23, 2017.

¶7 Between July 20 and July 23, 2017, multiple family members

told the victim that her Facebook profile had been altered. She

looked at her Facebook profile page and saw that her cover and

profile photos had been changed to nude photos of her on a bed.

The cover photo was of her nude buttocks, legs, and back, while her

profile page displayed a nude photo of her lying on her stomach

propped up by her elbows with the side of her right breast exposed.

She recognized these as photos Pellegrin had taken while they were

dating. Her profile biography had also been changed to say the

victim was an “awful” person, a “cheater,” and a “slut.”

¶8 Additionally, on July 23, 2017, the victim received numerous

text messages and photos from strangers responding to a Craigslist

advertisement. They included messages saying unknown people

were driving by her home and random, unknown photos of male

3 genitalia. She learned that a Craigslist ad had been posted on the

“casual encounters” board stating,

So my name’s [victim’s name] I live in the springs I’m looking for a few guys to come show me a good time I’ve never tried this but I’m willing to try it you can find me on Facebook just search my name [victim’s name] my phone number is [victim’s phone number] please call me with what your interested in and maybe we can get together tonight I stay off [directions to the victim’s home]. Surprise me [emojis] text me a nude photo of yourself to get mines [emoji][.]

The ad also showed four photos of her — the two photos posted on

Facebook, a photo of her clothed lying on a bed, and an additional

photo showing the side of her nude breast.

¶9 A second Craigslist advertisement was posted on the “free

stuff” board titled “Free engagement ring.” The ad included the

same photos as the “casual encounters” ad and it said, “Text or call

for a free good time [the victim’s phone number].”

¶ 10 The victim again contacted the police and provided a

statement and her cell phone. The police arrested Pellegrin at his

home. He admitted to posting “some photos that he considered

butt shots, and that he had posted them for approximately an hour

and then they were pulled down.”

4 ¶ 11 The State charged Pellegrin with one count of stalking, two

counts of posting a private image for harassment (one for Facebook

and one for Craigslist), and one count of harassment. At trial,

defense counsel argued that the victim posted nude photos of

herself and then blamed Pellegrin because she wanted to get him in

trouble. A jury convicted Pellegrin of stalking, posting a private

image for harassment (Craigslist), and harassment, but it acquitted

him of the other charge of posting a private image for harassment

(Facebook).

¶ 12 The court sentenced Pellegrin to three years of supervised

probation and ninety days in jail. It also made a domestic violence

finding and ordered Pellegrin to participate in a domestic violence

evaluation and comply with its recommendations.

II. Jury Poll

¶ 13 Pellegrin first contends that the trial court abused its

discretion by not granting a mistrial after polling revealed that the

verdicts were not unanimous. He asserts that the manner in which

the court conducted the jury poll was coercive. We disagree.

5 A. Additional Facts

¶ 14 After deliberations, the jury returned guilty verdicts on all

counts. The trial court polled the jury at defense counsel’s request,

asking each juror “if these are indeed your verdicts.” Juror 8

responded, “No”; and when the court asked, “These are not your

verdicts,” Juror 8 said, “Nope.” The court ceased polling and

provided the following instruction:

Well, members of the jury, I’m going to send you back for continuing deliberations. It is a requirement of the law that all verdicts be unanimous. And it sounds like . . . we have not reached unanimity. So it’s about 4:35. I’ll have you head back into the jury deliberation room. Again, I plan to let you go at 4:50. So we’ll come back and get you at 4:50. All right.

¶ 15 Defense counsel moved for a mistrial. He was concerned

about potential juror misconduct or the “jury bullying with Juror 8”

to return a guilty verdict. The prosecutor argued that these

concerns were “purely speculative.” In the alternative, defense

counsel asked the trial court to individually question Juror 8 about

the nonunanimous verdict. The court denied the motion for a

mistrial and denied the request to question Juror 8. It reasoned

that there was

6 no evidence on which to base a conclusion that the other jurors are back there right now improperly coercing Juror Number 8 to reach a guilty verdict. As I mentioned earlier when I asked Number 8 if these were her verdicts, she very assertively . . . said no, these are not her verdicts. So at least by appearances, she [does] not present as somebody [who] was meek and to be bullied into reaching a decision. I’ll add that she said these are not her verdicts almost with a tone of defiance.

And the court found it lacked the authority to question Juror 8

about deliberations under CRE 606(b).

¶ 16 Later, and immediately following the court’s evening recess

instruction, Juror 8 stated, “[T]hey cleared it up for me what’s I was

confused about, so now I agree.” The prosecutor asked the court to

allow the jury to deliberate a “bit longer . . . because it sounds like

they’re close.” The court declined the request and again instructed

the jury to return the next day.

¶ 17 The following day, the jury deliberated two more hours before

returning new verdict forms finding Pellegrin guilty of stalking,

posting a private image for harassment (Craigslist), and

harassment, and acquitting him of posting a private image for

harassment (Facebook). Subsequent polling confirmed a

unanimous verdict.

7 B. Standard of Review and Applicable Law

¶ 18 We review a trial court’s denial of a motion for a mistrial for an

abuse of discretion. People v. Johnson, 2017 COA 11, ¶ 39. A trial

court abuses its discretion when its decision is manifestly arbitrary,

unreasonable, or unfair, or when it misapplies the law. Id. Under

this standard, the test is not “whether we would have reached a

different result but, rather, whether the trial court’s decision fell

within a range of reasonable options.” People v. Salazar, 2012 CO

20, ¶ 32 (Bender, C.J., dissenting) (quoting E-470 Pub. Highway

Auth. v. Revenig, 140 P.3d 227, 230-31 (Colo. App. 2006)).

¶ 19 A trial court is responsible for ensuring that a conviction is the

result of a unanimous verdict. People v. Rivera, 56 P.3d 1155,

1160-61 (Colo. App. 2002); see also § 16-10-108, C.R.S. 2020;

Crim. P. 23(a)(8), 31(a)(3). “Unanimity requires a deliberative

process that expresses the conscientious conviction of each

individual juror.” People v. Phillips, 91 P.3d 476, 479 (Colo. App.

2004).

¶ 20 Under Crim. P. 31(d),

[w]hen a verdict is returned and before it is recorded, the jury shall be polled at the request of any party or upon the court’s own

8 motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.

¶ 21 The right to a jury poll, however, is not absolute. Phillips, 91

P.3d at 479. The manner of conducting a jury poll is within the

trial court’s discretion. Id.

C. Analysis

¶ 22 Relying on several factors considered in Harris v. United

States, 622 A.2d 697, 705 (D.C. 1993), Pellegrin argues that after

Juror 8 identified herself as a dissenting juror, the court should

have inquired into whether the jury was deadlocked and provided

further instructions to alleviate any coercive effect. However, we

decline to adopt the Harris factors as the exclusive means of

analyzing this issue and, instead, apply a general abuse of

discretion standard consistent with our case law and the jury poll

rule. See People v. Barnard, 12 P.3d 290, 295 (Colo. App. 2000)

(“We review the court’s consideration of a juror’s doubt as to his or

her verdict under an abuse of discretion standard.”); see also

Phillips, 91 P.3d at 479. Under this standard, we conclude, for

three reasons, that the trial court acted within its discretion by

9 declining to declare a mistrial after instructing the jury to continue

deliberations.

¶ 23 First, the trial court’s instruction to continue deliberations

was not coercive. The court did not set a deadline to return

verdicts. Nor did it tell the jury that unless its deliberations

resulted in a unanimous verdict, a mistrial would be declared. Cf.

Allen v. People, 660 P.2d 896, 898 (Colo. 1983) (“[T]he court’s

arbitrary fifteen minute deadline [to return a verdict or a have a

mistrial declared] may have prevented the jury from reaching a well-

considered verdict.”). It told the jury to continue deliberations until

4:50 p.m., the time at which the court had previously instructed the

jury it would be excused. And, when the jury returned, the court

declined to take a verdict, and instead told the jurors to “take a

break from the case” for the evening and resume deliberations the

following morning. Indeed, the jury deliberated for an additional

two hours the following morning and returned a different verdict.

¶ 24 Second, though Pellegrin relies on People v. Black, 2020 COA

136, for the proposition that the trial court should have inquired

into whether the jury was deadlocked, that reliance is misplaced.

In Black, a deliberating juror asked the court, “What happens if we

10 can’t come to a unanimous decision on only one charge?” Id. at ¶

8. The court instructed the jury to continue deliberations without

first determining whether it was deadlocked and, if so, how

intractably. Id. The division found error in the trial court’s failure

to inquire about whether the jury was deadlocked and thus, it could

not determine whether the court’s instruction to continue

deliberating was coercive. Id. at ¶¶ 24, 31.

¶ 25 In contrast, the court here learned only that the verdict was

not unanimous, not that the jury was deadlocked. Cf. People v.

Martinez, 987 P.2d 884, 888 (Colo. App. 1999) (holding that if a

juror gives an equivocal response to a jury poll, a trial court may

make additional inquiries to determine if the verdict is unanimous).

Without some indication that the jury could not reach a unanimous

verdict, any extensive questioning about the deliberative process or

about why the verdict was not unanimous would have been

improper. Gibbons v. People, 2014 CO 67, ¶ 32 (“Absent some

affirmative indication from the jury that it harbors this concern, the

trial court should not interfere with the jury’s deliberative

process.”); see also People v. Juarez, 271 P.3d 537, 544 (Colo. App.

2011); Martinez, 987 P.2d at 888.

11 ¶ 26 Third, the trial court did not abuse its discretion by finding,

based on her response to the poll and her demeanor, that Juror 8

was unlikely to be bullied into a guilty verdict. See Barnard, 12

P.3d at 295. And Pellegrin’s counsel presented no evidence, beyond

mere speculation, that the remaining jurors bullied Juror 8 into

finding him guilty. Indeed, the jury returned a different and more

favorable (to Pellegrin) verdict after further deliberations.

¶ 27 Accordingly, we discern no error.

III. Constitutionality of Stalking Statute

¶ 28 Pellegrin next contends that the stalking statute, § 18-3-602,

is unconstitutional on its face because the statute is overbroad.

Because we are bound by the supreme court’s contrary holding in

People v. Cross, 127 P.3d 71 (Colo. 2006), we reject his assertion

and conclude the statute is facially constitutional.

A. Standard of Review and Applicable Law

¶ 29 We review the constitutionality of a statute de novo, but

presume that statute is constitutional. People v. Folsom, 2017 COA

146M, ¶ 70.

¶ 30 Section 18-3-602(1)(c) provides as follows:

12 (1) A person commits stalking if directly, or indirectly through another person, the person knowingly:

....

(c) Repeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship to suffer serious emotional distress. For purposes of this paragraph (c), a victim need not show that he or she received professional treatment or counseling to show that he or she suffered serious emotional distress.

¶ 31 In Cross, our supreme court concluded that a substantially

similar stalking statute is not unconstitutionally overbroad. The

court noted that the statute criminalizes only conduct that involves

a “severe intrusion upon the victim’s personal privacy and

autonomy, with an immediate and long-lasting impact on quality of

life as well as risks to security and safety of the victim and persons

close to the victim.” Cross, 127 P.3d at 79 (quoting former § 18-9-

111(4)(a), C.R.S. 2005, repealed, amended, and relocated, §§ 18-3-

13 601 to -602, C.R.S. 2011 (effective Aug. 11, 2010)). It held that the

sweep of the statute does not include a substantial amount of

constitutionally protected speech because the statute criminalizes

only acts of a particular nature — acts involving inappropriate

intensity, persistence, and possessiveness, and severe intrusions on

a victim’s personal privacy and autonomy — and that had a

particular effect — objectively and subjectively causing serious

emotional distress. Id.

B. Analysis

¶ 32 We reject Pellegrin’s contention that the stalking statute is

unconstitutionally overbroad and reject his reliance on the Illinois

Supreme Court’s decision in People v. Relerford, 104 N.E.3d 341 (Ill.

2017). In doing so, we follow our supreme court’s desicion in Cross,

127 P.3d at 78-79, as we must. People v. Richardson, 181 P.3d

340, 343-45 (Colo. App. 2007); see also People v. Smith, 183 P.3d

726, 729 (Colo. App. 2008) (rejecting defendant’s argument that

supreme court precedent was wrongly decided because we are

bound by Colorado Supreme Court decisions).

¶ 33 We also reject Pellegrin’s contention that Reed v. Town of

Gilbert, 576 U.S. 155 (2015), compels a different result. In Reed,

14 the Supreme Court held that the Town of Gilbert’s exemption of

categories of signs including “ideological” and “political” signs from

its prohibition on the display of outdoor signs without a permit was

unconstitutional. Id. at 159-60. The Court reasoned that content-

based laws — those that target speech based on the “topic

discussed or the idea or message expressed” — are presumptively

unconstitutional. Id. at 163. Content-based laws include laws that

appear facially neutral but cannot be justified without reference to

the content of the regulated speech or were adopted because of a

disagreement with the message that the speech conveys. Id. at

163-64. The Court went on to conclude that the laws in that case

imposed content-based restrictions because the laws applied more

stringent restrictions on various types of signs, which compelled an

analysis of the content of the signs. Id. at 159, 171-72.

¶ 34 Colorado’s stalking statute, on the other hand, targets

repeated conduct that would “cause a reasonable person to suffer

serious emotional distress.” § 18-3-602(1)(c). Thus, whether

speech is permitted under the stalking statute is not based on the

content of that speech but, rather, on whether that speech is part of

a series of conduct in which a defendant “[r]epeatedly follows,

15 approaches, contacts, places under surveillance, or makes any form

of communication with another person . . . .” Id. Indeed, “the

statute does not criminalize innocuous behavior,” but criminalizes a

series of conduct without a significant impact on constitutionally

protected speech. Cross, 127 P.3d at 78-79; see also Dugan v.

State, 2019 WY 112, ¶ 22, 451 P.3d 731, 739 (The fact that the

criminal stalking statute “identifies ‘lewd or obscene statements’ in

the definition of harass does not make it a content-based regulation

on speech rather than a regulation of conduct without a significant

impact on protected speech.”).

IV. Sufficiency of the Evidence

¶ 35 Pellegrin next contends that the photos posted in the

Craigslist ads insufficiently established the element of “private

intimate parts” required for his conviction of posting a private image

for harassment. He asserts that the photo showing the side of the

victim’s exposed breast is not a photo depicting the “breast of a

female” under the definition of “private intimate parts” because the

“entire breast” was not displayed. See § 18-7-107(1)(a), (6)(c).

Alternatively, he argues that the statute is vague and overbroad if

16 “breast of a female” is interpreted to include less than the entire

breast. We address each argument in turn.

¶ 36 In assessing the sufficiency of the evidence to support a

conviction, we review the record de novo to determine whether the

evidence, viewed in the light most favorable to the prosecution, was

substantial and sufficient to support a conclusion by a reasonable

mind that the defendant was guilty beyond a reasonable doubt.

People v. Perez, 2016 CO 12, ¶ 8.

¶ 37 We also review questions of statutory interpretation de novo.

Id. When construing a statute, our primary task is to ascertain and

give effect to the General Assembly’s intent. Turbyne v. People, 151

P.3d 563, 567 (Colo. 2007). We begin with the statute’s plain

language. People v. Huckabay, 2020 CO 42, ¶ 13. “If the language

is clear and unambiguous on its face, we simply apply it as written

and will not resort to other interpretive aids.” Id. We “respect the

legislature’s choice of language,” and we “do not add words to the

statute or subtract words from it.” Turbyne, 151 P.3d at 567-68.

¶ 38 If, however, the language is susceptible of more than one

reasonable meaning, it is ambiguous. Marquez v. People, 2013 CO

17 58, ¶ 7. “In that event, a number of intrinsic and extrinsic aids to

construction have [been] developed to assist in resolving the

ambiguity and determining which of the various reasonable

interpretations is the appropriate one.” Id.

¶ 39 As relevant here, a person who is eighteen years or older

commits the offense of posting a private image for harassment if

he or she posts or distributes through the use of social media or any website any photograph, video, or other image displaying the private intimate parts of an identified or identifiable person eighteen years of age or older or an image displaying sexual acts of an identified or identifiable person:

(I) With the intent to harass, intimidate, or coerce the depicted person;

(II)(A) Without the depicted person’s consent; or

(B) When the actor knew or should have known that the depicted person had a reasonable expectation that the image would remain private; and

(III) The conduct results in serious emotional distress of the depicted person.

§ 18-7-107(1)(a). The term “‘[p]rivate intimate parts’ means external

genitalia or the perineum or the anus or the pubes of any person or

the breast of a female.” § 18-7-107(6)(c) (emphasis added).

18 B. Breast of a Female

¶ 40 The General Assembly did not define “breast of a female” when

defining “private intimate parts.” Pellegrin argues that the term

“breast of a female” is unambiguous and plainly means the “entire

breast.” He reasons that because the photo here depicted only the

right side of the victim’s exposed breast, not her entire breast or the

nipple, insufficient evidence supports the jury’s verdict. We are not

convinced and conclude instead that the term “breast of a female” is

susceptible of more than one reasonable interpretation (i.e., the

entire female breast, any portion of the female breast from the top

of the areola down, the female nipple, etc.) and is therefore

ambiguous as applied to this case. Accordingly, we turn to

interpretative aids to resolve the ambiguity.

¶ 41 In People v. Gagnon, 997 P.2d 1278 (Colo. App. 1999), a

division of this court considered whether a photo depicting a

portion of a child’s breast was sufficient to support a conviction of

sexual exploitation of a child, § 18-6-403, C.R.S. 2020. We find the

Gagnon division’s analysis of the statutory definition of “erotic

nudity” analogous here.

19 ¶ 42 A person commits sexual exploitation of a child by knowingly

causing a child to engage in the making of any “sexually exploitative

material.” § 18-6-403(3)(a). “Sexually exploitative material”

includes “erotic nudity.” § 18-6-403(2)(e), (j). Similar to the

inclusion of “breast of a female” in the definition of “private intimate

parts” under section 18-7-107(6)(c), the definition of “erotic nudity”

includes the display of “the human breasts, or the undeveloped or

developing breast area of the human child.” § 18-6-403(2)(d). The

division rejected the defendant’s contention that the statute did not

apply to his conduct because the photos did not display the child’s

whole breast or include the nipple. Gagnon, 997 P.2d at 1281. It

reasoned that this argument ignored the requirement that “erotic

nudity” — a display or picture of the human breasts or undeveloped

or developing breast area of a child — “must be for the purpose of

real or simulated overt sexual gratification or stimulation of one or

more of the persons involved.” Id. at 1281-82. In doing so, the

defendant had not considered the harm the statute was intended to

address. Id. at 1282.

¶ 43 Similarly, Pellegrin’s argument emphasizes the term “breast of

a female” in the definition of “private intimate parts” to the

20 exclusion of the statute’s purpose and the harm it was intended to

address.

¶ 44 The General Assembly sought to protect victims of “revenge

porn” by enacting the posting of a private image for harassment

statute. H.B. 14-1378, 69th Gen. Assemb., 2d Reg. Sess. (Colo.

2014). Testimony leading to the statute’s enactment focused on the

harm caused to victims by posting images displaying “private

intimate parts” on social media or any website — including job loss,

humiliation with family and friends, unwanted sexual requests and

comments, stalking, threats by intimate partners and strangers,

and even suicide — and the inadequate protections for them. See

Hearings on H.B. 14-1378 before the H. Judiciary Comm., 69th

Gen. Assemb., 2d Reg. Sess. (Apr. 24, 2014); Hearings on H.B. 14-

1378 before the S. Judiciary Comm., 69th Gen. Assemb., 2d Reg.

Sess. (Apr. 30, 2014); 2d Reading on H.B. 14-1378 before the S.,

69th Gen. Assemb., 2d Reg. Sess. (May 2, 2014).

¶ 45 In 2018, the statute was amended in multiple ways, most

notably to include the posting of “an image displaying sexual acts of

an identified or identifiable person.” Ch. 192, sec. 1, § 18-7-107,

2018 Colo. Sess. Laws 1276-77. “Displaying sexual acts” is defined

21 as “any display of sexual acts even if the private intimate parts are

not visible in the image.” Id. (emphasis added). This amendment

closed a loophole that had allowed persons to avoid liability by

posting images of sexual acts that did not depict private intimate

parts. See Hearings on H.B. 18-1264 before the H. Judiciary

Comm., 71st Gen. Assemb., 2d Reg. Sess. (Mar. 20, 2018). The

testimony supporting this amendment focused on the trauma and

psychological harm victims suffered even when their private parts

were not shown in the image displaying a sexual act and described

the need to strengthen safeguards for victims. Id.

¶ 46 Pellegrin does not argue that a female victim somehow suffers

less harm when only a portion of her breast is exposed, as opposed

to the entire breast. Instead, he argues that the limited discussion

about “private intimate parts” during the legislative hearings favors

his argument that “breast of a female” is limited to the display of

the entire breast. And he contends that if the General Assembly

had intended to include any portion of the female breast within the

definition, it could have done so. See, e.g., § 18-7-501(7), C.R.S.

2020 (“‘Sexually explicit nudity’ means . . . the showing of the

female breast with less than a fully opaque covering of any portion

22 thereof below the top of the areola . . . .”); § 13-21-1402(7)(a), C.R.S.

2020 (“‘Intimate image’ means a photograph, film, video recording,

or other similar medium that shows . . . female postpubescent

nipple of a depicted individual . . . .”).

¶ 47 In our view, however, the General Assembly did not

communicate a clear intent to limit the term “breast of a female” to

the entire female breast. Rather, the legislative history reveals a

clear purpose to protect victims from the harm caused by the

posting of private intimate parts images online and to strengthen

protections from those harms. It does not follow that the harm is

avoided or even lessened by posting a photo of only a portion of an

identifiable person’s exposed breast. If the General Assembly had

intended to limit the term “breast of a female” to the entire breast, it

could have done so, and we may not add words to or subtract words

from the statute. See Turbyne, 151 P.3d at 567.

¶ 48 Construing the statute as a whole, we conclude that the term

“breast of a female” includes any display of an identifiable female’s

exposed breast. To conclude otherwise would frustrate the statute’s

purpose. See AviComm, Inc. v. Colo. Pub. Utils. Comm’n, 955 P.2d

1023, 1031 (Colo. 1998) (“[T]he intention of the legislature will

23 prevail over a literal interpretation of the statute that leads to an

absurd result.”); State v. Nieto, 993 P.2d 493, 501 (Colo. 2000) (“In

any event, the ultimate goal is to determine and give effect to the

intent of the General Assembly; in doing so, a reviewing court must

follow the statutory construction that best effectuates the intent of

the General Assembly and the purposes of the legislative scheme.”).

C. Constitutionality

¶ 49 Pellegrin next contends that interpreting “breast of a female” to

include any portion of the breast renders the statute

unconstitutionally vague and overbroad on its face. We disagree.

¶ 50 Under the posting a private image for harassment statute,

§ 18-7-107(1)(a), the prosecution must prove beyond a reasonable

doubt that the defendant intended to harass, intimidate, or coerce

the victim when the defendant posted or distributed an image

displaying the identifiable victim’s private intimate parts online

without the victim’s consent, or if the defendant knew or should

have known the victim had a reasonable expectation that the image

would remain private. And the victim must suffer serious emotional

distress. Id.

24 ¶ 51 The vagueness doctrine is rooted in principles of due process.

People v. Shell, 148 P.3d 162, 172 (Colo. 2006). Due process

requires that a law give fair warning of the prohibited conduct. Id.

A law offends due process if “it does not provide fair warning of the

conduct prohibited or if its standards are so ill-defined as to create

a danger of arbitrary and capricious enforcement.” Id. (quoting

Parrish v. Lamm, 758 P.2d 1356, 1367 (Colo. 1988)). Thus, a

statute “is not void for vagueness if it fairly describes the conduct

forbidden, and persons of common intelligence can readily

understand its meaning and application.” Parrish, 758 P.2d at

1367. To prevail on a facial challenge for vagueness, the challenger

must show that the statute is incomprehensible in all its

applications. People v. McCoy, 2015 COA 76M, ¶ 65, aff’d on other

grounds, 2019 CO 44.1

¶ 52 Pellegrin argues that interpreting “breast of a female” to mean

any portion of the female breast is unconstitutionally vague

because it fails to give notice of how much of the breast must be

1 Whether this principle remains valid “in all its applications” is questionable. See People v. Graves, 2016 CO 15, ¶ 25 n. 8; People v. Plemmons, 2021 COA 10, ¶¶ 18-19.

25 depicted and what conduct the statute criminalizes. However,

Pellegrin focuses on one portion of the statute without considering

the other elements of the offense.

¶ 53 In the context of the statute as a whole, our interpretation of

“breast of a female” is specific enough to provide a person of

common intelligence with notice that posting an image of any

portion of the exposed female breast online is prohibited if such

person posts the image with the requisite intent and without the

victim’s consent, or with knowledge that the victim had a

reasonable expectation that the image would remain private. Thus,

Pellegrin has not established that the statute is incomprehensible in

all of its applications. See Shell, 148 P.3d at 172.

¶ 54 Regarding overbreadth, a statute is not unconstitutionally

overbroad simply because it could possibly be applied in some

unconstitutional manner. People v. Baer, 973 P.2d 1225, 1231

(Colo. 1999). “A statute is overbroad if it sweeps so

comprehensively as to include within its proscriptions a substantial

amount of constitutionally protected speech.” Id.

¶ 55 Pellegrin does not argue that the statute sweeps so

comprehensively as to include a substantial amount of

26 constitutionally protected speech. Indeed, the posting a private

image for harassment statute requires proof of (1) an identifiable

victim; (2) intent; (3) lack of consent (or knowledge that the victim

had a reasonable expectation that the image would remain private);

and (4) serious emotional distress of the victim. These elements, in

addition to displaying the private intimate parts, narrow the

statute’s potential reach so as not to criminalize harmless behavior.

See Cross, 127 P.3d at 78-79.

¶ 56 In this case, without the victim’s consent, Pellegrin posted on

Craigslist a private photo showing the side of the victim’s exposed

breast. The Craigslist ad invited strangers to contact the victim for

a “good time” and included the victim’s name, photos showing her

face, her phone number, and directions to her home. The victim

then received numerous text messages requesting sexual

encounters and photos of male genitalia. As a result, the victim

contacted the police, moved from her home, and quit her job. She

testified that seeing private photos of herself online made her feel

“violated” and “humiliated.” This is precisely the type of harm

section 18-7-107(1)(a) was intended to address.

27 ¶ 57 Viewing this evidence in the light most favorable to the

prosecution, we conclude there was sufficient evidence to convict

Pellegrin of posting a private image for harassment on Craigslist.

See People v. Harrison, 2020 CO 57, ¶ 32 (“Under Bennett’s

substantial evidence test, we inquire whether the evidence, ‘viewed

as a whole and in the light most favorable to the prosecution, is

substantial and sufficient to support a conclusion by a reasonable

mind that the defendant is guilty of the charge beyond a reasonable

doubt.’” (quoting People v. Bennett, 183 Colo. 125, 130, 515 P.2d

466, 469 (1973))).

¶ 58 Accordingly, we discern no error.

V. Merger

¶ 59 Pellegrin next contends that harassment, § 18-9-111(1)(e), is a

lesser included offense of stalking, § 18-3-602(1)(c), under section

18-1-408(5)(c) and, thus, the convictions must merge. For the

reasons explained below, we disagree.

¶ 60 “Whether an offense is a lesser included offense of another

requires statutory interpretation and therefore poses a legal

question that we review de novo.” People v. Zweygardt, 2012 COA

28 119, ¶ 10. As well, we review de novo double jeopardy contentions.

People v. Frye, 2014 COA 141, ¶ 30. But because this issue was

not preserved, we review it for plain error. Reyna-Abarca v. People,

2017 CO 15, ¶ 47.

¶ 61 As set forth above in Part IV, we review questions of statutory

interpretation de novo, and when construing a statute, our primary

task is to ascertain and give effect to the General Assembly’s intent.

See Turbyne, 151 P.3d at 567.

¶ 62 The Double Jeopardy Clauses of the United States and

Colorado Constitutions protect criminal defendants from multiple

punishments for the same offense. U.S. Const. amends. V, XIV;

Colo. Const. art. II, § 18; see also Reyna-Abarca, ¶ 49. Double

jeopardy principles preclude the imposition of multiple

punishments for the same offense unless the legislature has

specifically authorized multiple punishments. Reyna-Abarca, ¶ 50.

¶ 63 Under section 18-1-408(1)(a), a court may not enter

convictions for two offenses arising from the same conduct if “[o]ne

offense is included in the other.” An offense is included in another,

under section 18-1-408(1)(a), if “the elements of the lesser offense

are a subset of the elements of the greater offense, such that the

29 lesser contains only elements that are also included in the elements

of the greater offense.” Reyna-Abarca, ¶ 64.

¶ 64 Section 18-1-408(5) defines when an offense is included in a

charged offense, and that definition is “substantially broader” that

that in section 18-1-408(5)(a). People v. Raymer, 662 P.2d 1066,

1069 (Colo. 1983). Under section 18-1-408(5)(c), an offense is an

included one if “[i]t differs from the offense charged only in the

respect that a less serious injury or risk of injury to the same

person, property, or public interest or a lesser kind of culpability

suffices to establish its commission.” (Emphasis added.) In other

words, a lesser offense is included in the greater offense “if proof of

the facts required to prove the statutory elements of the greater

offense necessarily establishes all of the elements of the lesser

offense except that the offenses require proof of a different mens rea

element or degree of injury or risk of injury.” People v. Leske, 957

P.2d 1030, 1040 (Colo. 1998) (emphasis added).

¶ 65 As relevant here, a person commits harassment if,

with intent to harass, annoy, or alarm another person, he or she:

30 (e) Directly or indirectly initiates communication with a person or directs language toward another person, anonymously or otherwise, by telephone, telephone network, data network, text message, instant message, computer, computer network, computer system, or other interactive electronic medium in a manner intended to harass or threaten bodily injury or property damage, or makes any comment, request, suggestion, or proposal by telephone, computer, computer network, computer system, or other interactive electronic medium that is obscene.

§ 18-9-111(1)(e).

¶ 66 A person commits stalking if

directly, or indirectly through another person, the person knowingly:

(c) Repeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship to suffer serious emotional distress.

§ 18-3-602(1)(c).

31 B. Analysis

¶ 67 Pellegrin does not argue that harassment is a lesser included

offense of stalking under the strict elements test set forth in section

18-1-408(5)(a). Instead, he argues that harassment is a lesser

included offense under the broader test in section 18-1-408(5)(c).

¶ 68 The parties agree that harassment differs from stalking both in

the degree of injury or risk of injury and the kind of culpability

required. Indeed, harassment requires proof of intentional conduct

while stalking requires proof of knowing conduct. As well,

harassment is accomplished “in a manner intended to harass or

threaten bodily injury,” § 18-9-111(1)(e), while stalking is

accomplished “in a manner that would cause a reasonable person

to suffer serious emotional distress and does cause . . . serious

emotional distress,” § 18-3-602(1)(c). But the parties disagree

about the meaning of the word “or” separating the mens rea

language from the risk of harm language in section 18-1-408(5)(c).

Pellegrin contends that “or” is not exclusive and means “and/or.”

See In re Estate of Dodge, 685 P.2d 260, 265-66 (Colo. App. 1984)

(explaining the difference between the “inclusive ‘or,’” “meaning A or

B, or both,” and the “exclusive ‘or,’” “meaning A or B, but not both”).

32 The People, on the other hand, argue that “or” is limited by the

word only and that only one distinction between the two offenses

may exist for them to merge — either the mens rea or the risk of

harm. They reason that because the statutes reflect two

distinctions, they do not satisfy the single distinction test and

cannot merge under section 18-1-408(5)(c). We agree with the

People and conclude, for two reasons, that the word “or” in

subsection (5)(c) is exclusive and that an offense is a lesser included

one only where the lesser offense differs in the degree of injury or

risk of injury or in the kind of culpability, but not both.

¶ 69 First, “when the word ‘or’ is used in a statute, it is presumed

to be used in the disjunctive sense, unless legislative intent is

clearly to the contrary.” Armintrout v. People, 864 P.2d 576, 581

(Colo. 1993); see also People v. Valenzuela, 216 P.3d 588, 592 (Colo.

2009) (“Use of the word ‘or’ is ordinarily ‘assumed to demarcate

different categories.’” (quoting Garcia v. United States, 469 U.S. 70,

73 (1984))); 1A Norman J. Singer & Shambie Singer, Sutherland

Statutory Construction § 21:14, Westlaw (7th ed. database updated

Nov. 2020) (“The literal meaning of [‘and’ and ‘or’] should be

followed unless it renders the statute inoperable or the meaning

33 becomes questionable.”). A reviewing court may substitute the

word “or” for “and” to avoid an absurd or unreasonable result. See

Smith v. Colo. Dep’t of Hum. Servs., 916 P.2d 1199, 1201 (Colo. App.

1996).

¶ 70 The word “only” is restrictive and is synonymous with

exclusively. Webster’s Third New International Dictionary 1577

(2002); see also Pauma Band of Luiseno Mission Indians of Pauma

& Yuima Rsrv. v. California, 813 F.3d 1155, 1175 (9th Cir. 2015)

(“The use of the word ‘only’ is routinely defined to mean alone,

solely or exclusively.”). Here, the General Assembly’s inclusion of

the word “only” before the disjunctive “or” evidences its intent to

limit “or” to a single distinction between the offenses, rather than

the “and/or” meaning Pellegrin suggests. See 3 Shambie Singer,

Sutherland Statutory Construction § 57:8, Westlaw (8th ed. database

updated Nov. 2020) (“Legislatures may signal such an intent by

using the word “only,” or by including a limiting clause after an

affirmative direction.”) (footnote omitted); Bryan A. Garner, Garner’s

Dictionary of Legal Usage 635 (3d ed. 2011) (the best placement for

the word “only” is “before the words intended to be limited”); see

also Stanley v. Cottrell, Inc., 784 F.3d 454, 466 (8th Cir. 2015)

34 (finding the use of limiting words or phrases helpful in a disjunctive

reading of the word “or”); People in Interest of J.O., 2015 COA 119,

¶ 14 (“[T]he General Assembly’s use of ‘or’ is limited by the word

‘either.’”), overruled on other grounds by People in Interest of T.B.,

2021 CO 59.

¶ 71 Second, our supreme court’s holdings in Leske and Raymer

further counsel that the word “or” cannot be substituted with

“and/or.” In Raymer, the court held that aggravated robbery is a

lesser included offense of felony murder (based on robbery) by

concluding, under 18-1-408(5)(c), that the only difference between

aggravated robbery and felony murder is the victim’s death (risk of

harm). Raymer, 662 P.2d at 1070 (“Where . . . the robbery victim is

actually killed during the course of a robbery, then the crime of

aggravated robbery differs from the charge of felony murder only in

the sense contemplated by section 18-1-408(5)(c), namely, that an

injury less serious than death suffices to establish its commission.”)

(emphasis added).

¶ 72 Similarly, in Leske, the supreme court held that sexual assault

on a child is not a lesser included offense of sexual assault on a

child by one in a position of trust, under 18-1-408(5)(c). Leske, 957

35 P.2d at 1041. It noted that the two offenses do not differ in

culpability or risk of injury but, instead, differed in several other

respects. Id. It concluded that “[b]ecause the offenses differ in

ways other than those contemplated by subsection (5)(c), that

subsection is inapplicable.” Id.; see also People v. Chapman, 192

Colo. 322, 325, 557 P.2d 1211, 1213-14 (1977) (holding that “one

who commits reckless driving necessarily has been guilty of careless

driving” because the offenses differ only in the degree of negligence);

Gatrell v. Kurtz, 207 P.3d 916, 918 (Colo. App. 2009) (“[T]he

commas, which separate several distinct actions, the last of which

is preceded by the disjunctive ‘or,’ demarcate different categories.”).

¶ 73 As well, most of the divisions of this court that have applied

subsection (5)(c) have applied a single distinction test. See People v.

Oliver, 2020 COA 97, ¶ 63 (holding that second degree possession of

contraband is a lesser included offense of first degree possession of

contraband under section 18-1-408(5)(c) because the offenses differ

“only as to the severity or risk of injury posed by the type of

contraband each proscribe”) (emphasis added); People v. Hoggard,

2017 COA 88, ¶¶ 32-33 (concluding second degree forgery is a

lesser included offense of felony forgery because the “offenses differ

36 only with the respect to the type of document involved in the crime”)

(emphasis added), aff’d on other grounds, 2020 CO 54; People v.

Duran, 272 P.3d 1084, 1096 (Colo. App. 2011) (“[R]eckless

manslaughter is a lesser included offense of first degree extreme

indifference murder because the offenses differ only as to degree of

culpability.”) (emphasis added); People v. Horton, 683 P.2d 358, 361

(Colo. App. 1984) (holding that, where a first degree sexual assault

victim is killed during the assault, first degree sexual assault is a

lesser included offense of felony murder under section 18-1-

408(5)(c) because the offenses differ only in the degree of injury);

see also People v. Palmer, 944 P.2d 634, 639 (Colo. App. 1997)

(“[B]ecause the offenses differ with respect to both the culpability

required and the injury or risk of injury required, we conclude that,

even under the provisions of [section] 18-1-408(5)(c), menacing is

not a lesser included offense of second degree assault.”), rev’d on

other grounds, 964 P.2d 524 (Colo. 1998).

¶ 74 Nevertheless, even if we accepted Pellegrin’s interpretation, the

outcome would not change. Not only do stalking and harrassment

differ in the degree of injury or risk of injury and the degree of

culpability, but they also differ in the class of victims to which they

37 apply. The class of victims under the stalking statute includes not

only another person but “a member of that person’s immediate

family[] or someone with whom that person has or has had a

continuing relationship.” § 18-3-602(1)(c); see Leske, 957 P.2d at

1040 (holding that because the offenses addressed different classes

of victims, section 18-1-408(5)(c) was inapplicable); see also

Zweygardt, ¶ 26 (“Because this distinction is not one of the two

ways that a lesser included offense can differ from the greater

offense under section 18-1-408(5)(c), careless driving is not a lesser

included offense of vehicular assault (reckless) under that

subsection.”).

¶ 75 Accordingly, we conclude harassment is not a lesser included

offense of stalking under section 18-1-408(5)(c).

VI. Domestic Violence Finding

¶ 76 Pellegrin last contends that under Apprendi v. New Jersey,

530 U.S. 466 (2000), he had a Sixth Amendment right to have a

jury, not the trial court, determine whether the crime for which he

was convicted included an act of domestic violence. We disagree

and conclude a domestic violence finding under section 18-6-

38 801(1)(a), C.R.S. 2020, does not impose a “penalty” as contemplated

by Apprendi.

¶ 77 Trial courts have broad discretion over sentencing decisions.

Villanueva v. People, 199 P.3d 1228, 1231 (Colo. 2008). “However,

we review constitutional challenges to sentencing determinations de

novo.” People v. Jaso, 2014 COA 131, ¶ 8. Where an error of

constitutional dimension occurs, “the sentence must be vacated

unless the error was harmless beyond a reasonable doubt.” Id. at

¶ 9 (quoting Villanueva, 199 P.3d at 1231).

¶ 78 The Sixth Amendment requires that any fact, other than the

fact of a prior conviction, that increases the prescribed statutory

maximum penalty must be submitted to a jury and be proved

beyond a reasonable doubt. Apprendi, 530 U.S. at 490; see also

Alleyne v. Unites States, 570 U.S. 99, 102 (2013) (extending

Apprendi by holding that any fact that increases a defendant’s

mandatory minimum sentence must also be found by a jury under

the Sixth and Fourteenth Amendments); Blakely v. Washington, 542

U.S. 296, 303 (2004). But, “an essential prerequisite to the Sixth

Amendment inquiry under Apprendi and Alleyne is that the

39 sentence must be punitive in nature.” People v. Heisler, 2017 COA

58, ¶ 46; see also People v. Rowland, 207 P.3d 890, 895 (Colo. App.

2009) (concluding that where a sentence is not punitive, Apprendi is

inapplicable).

¶ 79 Section 18-6-801(1)(a) authorizes a trial court to make a

factual determination that the crime for which a defendant was

convicted included an act of domestic violence, as defined by

section 18-6-800.3(1), C.R.S. 2020. If the court makes such a

finding, domestic violence treatment is mandated in addition to any

sentence imposed on the person. § 18-6-801(1)(a).

¶ 80 In Heisler, ¶¶ 44-45, a division of this court held that section

18-6-801(1)(a) “does not run afoul of the Sixth Amendment” under

Alleyne because “court-ordered domestic violence treatment . . . is

not a form of punishment and, therefore, the statute does not

mandate a ‘penalty’ as contemplated by Apprendi.” Applying the

seven-factor test set forth in Kennedy v. Mendoza-Martinez, 372

U.S. 144, 168-69 (1963), the division concluded that domestic

violence treatment was not “punishment” because it (1) imposes no

affirmative disability or restraint; (2) was not historically regarded

as punishment; (3) requires no finding of scienter; (4) is

40 rehabilitative, not retributive, in nature; (5) has no alternative,

punitive purpose that undercuts its rehabilitative purpose; and (6)

does not impose excessive burdens on a defendant. Heisler, ¶¶ 49-

64.

¶ 81 We find the reasoning in Heisler persuasive and apply it here.

In doing so, we reject Pellegrin’s contention that Heisler was

wrongly decided. Specifically, he argues the division in Heisler

applied the seven-factor test in Mendoza-Martinez without first

determining whether a domestic violence finding is a criminal or

civil punishment. See People in Interest of T.B., 2019 COA 89, ¶ 21

(“To decide whether a statute creates a punishment, a court must

first ‘ascertain whether the legislature meant the statute to

establish ‘civil’ proceedings.’”) (citations omitted), aff’d in part and

rev’d in part, 2021 CO 59. The Supreme Court, however,

established the seven-factor test to assist in determining the

punitive nature of a sanction. Mendoza-Martinez, 372 U.S. at 168;

see also United States v. Ward, 448 U.S. 242, 249 (1980) (noting

that the seven factors in Mendoza-Martinez are helpful

considerations in determining whether Congress provided for

41 sanctions so punitive as to transform a civil remedy into a criminal

penalty); People in Interest of T.B., ¶¶ 31-47 (applying the Mendoza-

Martinez factors in its analysis of whether a statute created a

punishment). And we agree that the Mendoza-Martinez factors were

the appropriate analytical framework to determine whether a

domestic violence finding is a penalty.

¶ 82 In addition, we reject Pellegrin’s reliance on People v. Jaso,

2014 COA 131. In Jaso, the trial court’s domestic violence finding

was used not only to mandate domestic violence treatment, but also

as part of a larger habitual domestic violence offender

determination. Id. at ¶ 1. Because the prosecution sought to

increase the defendant’s misdemeanor to a felony under the

habitual domestic violence statute, thereby increasing the penalty

for the crime, the defendant was entitled to have the jury make the

domestic violence finding. Id. at ¶ 23.

¶ 83 In contrast, the domestic violence finding here did not increase

the maximum or minimum punishment for the crime. Instead, the

finding added a condition to Pellegrin’s sentence — a domestic

violence evaluation and any recommended treatment. See § 18-6-

801(1)(a) (“In addition to any sentence that is imposed upon a

42 person for violation of any criminal law . . . .”) (emphasis added);

see, e.g., Christensen v. People, 869 P.2d 1256, 1259 (Colo. 1994)

(“[I]f the parole board determines an [incarcerated person] is in need

of further treatment, it can condition parole upon participation in a

sex offender treatment program.”).

¶ 84 Still, Pellegrin maintains that the court’s domestic violence

finding is a penalty because it restricted his access to firearms

pursuant to section 18-6-801(8)(a) and it could subject him to a

felony domestic violence conviction in the future. We do not agree.

First, when adding section 18-6-801(8), the General Assembly did

not intend for the firearm restrictions to be punitive. Rather, the

purpose of prohibiting domestic violence offenders from possessing

firearms is to protect the community. See S.B. 13-197, 69th Gen.

Assemb., 1st Reg. Sess. (Colo. 2013); see also Mayo v. People, 181

P.3d 1207, 1212 (Colo. App. 2008) (concluding that the sex offender

registration requirement is not punitive in nature, but, rather, is

designed to aid law enforcement officials and protect public safety);

People v. Milton, 732 P.2d 1199, 1203-04 (Colo. 1987) (holding that

a forfeiture sanction is not punitive, but remedial, in nature).

Second, any future conviction and sentence based on the court’s

43 domestic violence finding here is speculative and is therefore not

ripe for our review. See Stell v. Boulder Cnty. Dep’t of Soc. Servs., 92

P.3d 910, 914 (Colo. 2004) (“In the interest of judicial efficiency,

courts will not consider ‘uncertain or contingent future matters’

because the injury is speculative and may never occur.”) (citation

omitted).

VII. Conclusion

¶ 85 The judgment is affirmed.

JUDGE YUN and JUDGE GRAHAM concur.