§ 18-6-801 — Domestic violence - sentencing
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(1) (a) In addition to any sentence
that is imposed upon a person for violation of any criminal law under this title 18,
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), or any crime against property, whether or not such
crime is a felony, when such crime is 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 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 as required by
section 16-11.8-103 (4); except a person granted probation whose supervision is
transferred to another state pursuant to the interstate compact for the supervision
of adult offenders shall follow the requirements for a treatment evaluation and a
treatment program of the state where the person is being supervised. Except for a
person granted probation whose supervision is transferred pursuant to the
interstate compact for the supervision of adult offenders, if an intake evaluation
conducted by an approved treatment program provider discloses that sentencing to
a treatment program would be inappropriate, the person shall be referred back to
the court for alternative disposition.
(b) The court may order a treatment evaluation to be conducted prior to
sentencing if a treatment evaluation would assist the court in determining an
appropriate sentence. The person ordered to undergo such evaluation shall be
required to pay the cost of the treatment evaluation. If such treatment evaluation
recommends treatment, and if the court so finds, the person shall be ordered to
complete a treatment program that conforms with the standards adopted by the
domestic violence offender management board as required by section 16-11.8-103
(4); except a person granted probation whose supervision is transferred to another
state pursuant to the interstate compact for the supervision of adult offenders shall
follow the requirements for a treatment evaluation and a treatment program of the
state where the person is being supervised.
(c) Nothing in this subsection (1) shall preclude the court from ordering
domestic violence treatment in any appropriate case.
(2) Subsection (1) of this section shall not apply to persons sentenced to the
department of corrections.
(3) A person charged with the commission of a crime, the underlying factual
basis of which includes an act of domestic violence as defined in section 18-6-800.3
(1), shall not be entitled to plead guilty or plead nolo contendere to an offense
which does not include the domestic violence designation required in section 16-21-103, C.R.S., unless the prosecuting attorney makes a good faith representation on
the record that such attorney would not be able to establish a prima facie case that
the person and the alleged victim were currently or formerly involved in an intimate
relationship if the defendant were brought to trial on the original domestic violence
offense and upon such a finding by the court. The prosecuting attorney's record and
the court's findings shall specify the relationship in the alleged domestic violence
case which the prosecuting attorney is not able to prove beyond a reasonable doubt
and the reasons therefor. No court shall accept a plea of guilty or nolo contendere
to an offense which does not include the domestic violence designation required in
section 16-21-103, C.R.S., when the facts of the case indicate that the underlying
factual basis includes an act of domestic violence as defined in section 18-6-800.3
(1) unless there is a good faith representation by the prosecuting attorney that he or
she would be unable to establish a prima facie case if the defendant were brought
to trial on the original offense.
(4) No person accused or convicted of a 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), shall be eligible for home detention in
the home of the victim pursuant to section 18-1.3-105 or 18-1.3-106. Nothing in this
subsection (4) is intended to prohibit a court from ordering a deferred sentence for
a person accused or convicted of a 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).
(5) Before granting probation, the court shall consider the safety of the
victim and the victim's children if probation is granted.
(6) Nothing in this section shall preclude the ability of a municipality to enact
concurrent ordinances.
(7) (a) Any misdemeanor offense that includes an act of domestic violence is
a class 5 felony if the defendant at the time of sentencing has been previously
convicted of three or more prior offenses that included an act of domestic violence
and that were separately brought and tried and arising out of separate criminal
episodes.
(b) The prior convictions must be set forth in apt words in the indictment or
information. For the purposes of this section, conviction includes any federal,
state, or municipal conviction for a felony, misdemeanor, or municipal ordinance
violation.
(c) Trials in cases alleging that the defendant is an habitual domestic
violence offender pursuant to this subsection (7) must be conducted in accordance
with the rules of criminal procedure for felonies. The trier of fact shall determine
whether an offense charged includes an act of domestic violence.
(d) Following a conviction for an offense which underlying factual basis
includes an act of domestic violence:
(I) If any prior conviction included a determination by a jury or was admitted
by the defendant that the offense included an act of domestic violence, the court
shall proceed to sentencing without further findings as to that prior conviction by
the jury or by the court, if no jury trial is had;
(II) For any prior conviction in which the factual basis was found by the court
to include an act of domestic violence, but did not include a finding of domestic
violence by a jury or that was not admitted by the defendant, the trial court shall
proceed to a sentencing stage of the proceedings. The prosecution shall present
evidence to the trier of fact that the prior conviction included an act of domestic
violence. The prosecution has the burden of proof beyond a reasonable doubt.
(III) At the sentencing stage, the following applies:
(A) A finding of domestic violence made by a court at the time of the prior
conviction constitutes prima facie evidence that the crime involved domestic
violence;
(B) Evidence of the prior conviction is admissible through the use of certified
documents under seal, or the court may take judicial notice of a prior conviction;
(C) Evidence admitted in the guilt stage of the trial, including testimony of
the defendant and other acts admitted pursuant to section 18-6-801.5, may be
considered by the finder of fact.
(8) (a) Sentencing requirements. In addition to any sentence that is imposed
upon a defendant for violation of any criminal law under this title 18, 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. sec. 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:
(I) Shall order the defendant to:
(A) Refrain from possessing or purchasing any firearm or ammunition until
the defendant's sentence is satisfied; and
(B) Relinquish any firearm or ammunition in the defendant's immediate
possession or control or subject to the defendant's immediate possession or
control; and
(II) May require that before the defendant is released from custody on bond,
the defendant relinquish any firearm or ammunition in the defendant's immediate
possession or control or subject to the defendant's immediate possession or
control; and
(III) Shall schedule a compliance hearing pursuant to subsection (8)(e) of this
section and notify the defendant of the hearing date and that the defendant shall
appear at the hearing in person unless the hearing is vacated pursuant to
subsection (8)(e)(I) of this section.
(b) Time period to relinquish. The defendant shall relinquish, in accordance
with subsection (8)(d) of this section, any firearm or ammunition not more than
twenty-four hours, excluding legal holidays and weekends, after sentencing;
except that a court may allow a defendant up to an additional twenty-four hours to
relinquish a firearm if the defendant demonstrates to the satisfaction of the court
that the defendant is unable to comply within the time frame set forth in this
subsection (8)(b).
(c) Additional time to comply if defendant is in custody. If a defendant is
unable to satisfy the provisions of this subsection (8) because the defendant is
incarcerated or otherwise held in the custody of a law enforcement agency, the
court shall require the defendant to satisfy the provisions not more than twenty-four hours, excluding legal holidays and weekends, after the defendant's release
from incarceration or custody or be held in contempt of court. Notwithstanding any
provision of this subsection (8)(c), the court may, in its discretion, require the
defendant to relinquish any firearm or ammunition in the defendant's immediate
possession or control or subject to the defendant's immediate possession or control
before the end of the defendant's incarceration. In such a case, a defendant's
failure to relinquish a firearm or ammunition as required constitutes contempt of
court.
(d) Relinquishment options. To satisfy the requirement in subsection (8)(b)
of this section, the defendant shall either:
(I) Sell or transfer possession of the firearm or ammunition to a federally
licensed firearms dealer described in 18 U.S.C. sec. 923, as amended; except that
this provision must not be interpreted to require any federally licensed firearms
dealer to purchase or accept possession of any firearm or ammunition; or
(II) Arrange for the storage of the firearm or ammunition by a law
enforcement agency or by a storage facility with which the law enforcement
agency has contracted for the storage of transferred firearms or ammunition,
pursuant to subsection (8)(g) of this section; except that this provision must not be
interpreted to require any law enforcement agency to provide storage of firearms
or ammunition for any person; or
(III) Sell or otherwise transfer the firearm or ammunition to a private party
who may legally possess the firearm or ammunition; except that a defendant who
sells or transfers a firearm pursuant to this subsection (8)(d)(III) shall satisfy all of
the provisions of section 18-12-112 concerning private firearms transfers, including
but not limited to the performance of a criminal background check of the
transferee.
(e) Compliance hearing and affidavit. (I) The court shall conduct a
compliance hearing not less than eight but not more than twelve business days
after sentencing to ensure the defendant has complied with subsection (8)(e)(II) of
this section. The court may vacate the hearing if the court determines the
defendant has completed the affidavit described in subsection (8)(e)(II) of this
section. Failure to appear at a hearing described in this subsection (8)(e)(I)
constitutes contempt of court.
(II) The defendant shall complete an affidavit, which must be filed in the
court record within seven business days after sentencing, stating the number of
firearms in the defendant's immediate possession or control or subject to the
defendant's immediate possession or control, the make and model of each firearm,
any reason the defendant is still in immediate possession or control of such firearm,
and the location of each firearm. If the defendant does not possess a firearm at the
time of sentencing, the defendant shall indicate such nonpossession in the affidavit.
(III) If the defendant possessed a firearm at the time of the qualifying
incident giving rise to the duty to relinquish the firearm pursuant to this section but
transferred or sold the firearm to a private party prior to sentencing, the defendant
shall disclose the sale or transfer of the firearm to the private party in the affidavit
described in subsection (8)(e)(II) of this section. The defendant, within seven
business days after sentencing, shall acquire a written receipt and signed
declaration that complies with subsection (8)(h)(I)(A) of this section, and the
defendant shall file the signed declaration at the same time the defendant files the
affidavit pursuant to subsection (8)(e)(II) of this section.
(IV) The state court administrator shall develop the affidavit described in
subsection (8)(e)(II) of this section and all other forms necessary to implement this
subsection (8) no later than January 1, 2022. State courts may use the forms
developed by the state court administrator pursuant to this subsection (8)(e) or
another form of the court's choosing, so long as the forms comply with the
requirements of this subsection (8)(e).
(V) Upon the sworn statement or testimony of the petitioner or of any law
enforcement officer alleging there is probable cause to believe the respondent has
failed to comply with the provisions of this section, the court shall determine
whether probable cause exists to believe that the respondent has failed to
relinquish all firearms or a concealed carry permit in the respondent's custody,
control, or possession. If probable cause exists, the court shall issue a search
warrant that states with particularity the places to be searched and the items to be
taken into custody.
(f) Relinquishment to a federally licensed firearms dealer. A federally
licensed firearms dealer who takes possession of a firearm or ammunition pursuant
to this subsection (8) shall issue a written receipt and signed declaration to the
defendant at the time of relinquishment. The declaration must memorialize the sale
or transfer of the firearm. The federally licensed firearms dealer shall not return the
firearm or ammunition to the defendant unless the dealer:
(I) Contacts the Colorado bureau of investigation, referred to in this
subsection (8) as the bureau, to request that a criminal background check of the
defendant be performed; and
(II) Obtains approval of the transfer from the bureau after the performance
of the criminal background check.
(g) Storage by a law enforcement agency or storage facility. (I) A local law
enforcement agency may elect to store firearms or ammunition for a defendant
pursuant to this subsection (8). The law enforcement agency may enter into an
agreement with any other law enforcement agency or storage facility for the
storage of transferred firearms or ammunition. If a law enforcement agency elects
to store firearms or ammunition for a defendant:
(A) The law enforcement agency may charge a fee for the storage, the
amount of which must not exceed the direct and indirect costs incurred by the law
enforcement agency in providing the storage;
(B) The law enforcement agency shall establish policies for disposal of
abandoned or stolen firearms or ammunition; and
(C) The law enforcement agency shall issue a written receipt and signed
declaration to the defendant at the time of relinquishment. The declaration must
memorialize the sale or transfer of the firearm.
(II) If a local law enforcement agency elects to store firearms or ammunition
for a defendant pursuant to this subsection (8)(g), the law enforcement agency
shall not return the firearm or ammunition to the defendant unless the law
enforcement agency:
(A) Contacts the bureau to request that a criminal background check of the
defendant be performed; and
(B) Obtains approval of the transfer from the bureau after the performance
of the criminal background check.
(III) (A) A law enforcement agency that elects to store a firearm or
ammunition for a defendant pursuant to this subsection (8) may elect to cease
storing the firearm or ammunition. A law enforcement agency that elects to cease
storing a firearm or ammunition for a defendant shall notify the defendant of the
decision and request that the defendant immediately make arrangements for the
transfer of the possession of the firearm or ammunition to the defendant or, if the
defendant is prohibited from possessing a firearm, to another person who is legally
permitted to possess a firearm.
(B) If a law enforcement agency elects to cease storing a firearm or
ammunition for a defendant and notifies the defendant as described in subsection
(8)(g)(III)(A) of this section, the law enforcement agency may dispose of the firearm
or ammunition if the defendant fails to make arrangements for the transfer of the
firearm or ammunition and complete the transfer within ninety days after receiving
the notification.
(IV) A law enforcement agency that elects to store a firearm or ammunition
shall obtain a search warrant to examine or test the firearm or ammunition or
facilitate a criminal investigation if a law enforcement agency has probable cause
to believe the firearm or ammunition has been used in the commission of a crime, is
stolen, or is contraband. This subsection (8)(g)(IV) does not preclude a law
enforcement agency from conducting a routine inspection of the firearm or
ammunition prior to accepting the firearm for storage.
(h) Relinquishment to a private party. (I) If a defendant sells or otherwise
transfers a firearm or ammunition to a private party who may legally possess the
firearm or ammunition, as described in subsection (8)(d)(III) of this section, the
defendant shall acquire:
(A) From the federally licensed firearms dealer, a written receipt and signed
declaration memorializing the transfer, which receipt must be dated and signed by
the defendant, the transferee, and the federally licensed firearms dealer; and
(B) From the federally licensed firearms dealer who requests from the
bureau a criminal background check of the transferee, as described in section 18-12-112, a written statement of the results of the criminal background check.
(II) The defendant shall not transfer the firearm to a private party living in the
same residence as the defendant at the time of the transfer.
(III) Notwithstanding section 18-12-112, if a private party elects to store a
firearm for a defendant pursuant to this subsection (8), the private party shall not
return the firearm to the defendant unless the private party acquires from the
federally licensed firearms dealer, who requests from the bureau a criminal
background check of the defendant, a written statement of the results of the
criminal background check authorizing the return of the firearm to the defendant.
(i) Requirement to file signed declaration. (I) The defendant shall file a copy
of the signed declaration issued pursuant to subsection (8)(f), (8)(g)(I)(C), or
(8)(h)(I)(A) of this section, and, if applicable, the written statement of the results of
a criminal background check performed on the defendant, as described in
subsection (8)(h)(I)(B) of this section, with the court as proof of the relinquishment
at the same time the defendant files the signed affidavit pursuant to subsection
(8)(e)(II) of this section. The signed declaration and written statement filed pursuant
to this subsection (8)(i) are only available for inspection by the court and the parties
to the proceeding. If a defendant fails to timely transfer or sell a firearm or file the
signed declaration or written statement as described in this subsection (8)(i)(I):
(A) The failure constitutes a class 2 misdemeanor, and the defendant is
punished as provided in section 18-1.3-501; and
(B) The court shall issue a warrant for the defendant's arrest.
(II) In any subsequent prosecution for a violation of this subsection (8)(i), the
court shall take judicial notice of the defendant's failure to transfer or sell a
firearm, or file the signed declaration or written statement, which constitutes prima
facie evidence that the defendant has violated this subsection (8), and testimony of
the clerk of the court or the clerk of the court's deputy is not required.
(j) (I) A law enforcement agency that elects in good faith to not store a
firearm or ammunition for a defendant pursuant to subsection (8)(g) of this section
is not criminally or civilly liable for such inaction.
(II) A law enforcement agency that returns possession of a firearm or
ammunition to a defendant in good faith as permitted by subsection (8)(g) of this
section is not criminally or civilly liable for such action.
(k) Immunity. A federally licensed firearms dealer, law enforcement agency,
storage facility, or private party that elects to store a firearm pursuant to this
subsection (8) is not civilly liable for any resulting damages to the firearm, as long
as such damage did not result from the willful and wrongful act or gross negligence
of the federally licensed firearms dealer, law enforcement agency, storage facility,
or third party.
Colorado § 18-6-801 (Domestic violence - sentencing) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.