18-3-412. Habitual sex offenders against children - indictment or information - verdict of the jury.

Statute text

(1) For the purpose of this section, "unlawful sexual offense" means sexual assault, as described in section 18-3-402, when the victim at the time of the commission of the act is a child less than fifteen years of age, sexual assault in the first degree, as described in section 18-3-402, as it existed prior to July 1, 2000, when the victim at the time of the commission of the act is a child less than fifteen years of age; sexual assault in the second degree, as described in section 18-3-403 (1)(a), (1)(b), (1)(c), (1)(d), (1)(g), or (1)(h), as it existed prior to July 1, 2000, when the victim at the time of the commission of the act is a child less than fifteen years of age, or as described in section 18-3-403 (1)(e), as it existed prior to July 1, 2000, when the victim is less than fifteen years of age and the actor is at least four years older than the victim; unlawful sexual contact, as described in section 18-3-404 (1)(a), (1)(b), (1)(c), (1)(d), (1)(f), or (1)(g), when the victim at the time of the commission of the act is a child less than fifteen years of age; sexual assault in the third degree, as described in section 18-3-404 (1)(a), (1)(b), (1)(c), (1)(d), (1)(f), or (1)(g), as it existed prior to July 1, 2000, when the victim at the time of the commission of the act is a child less than fifteen years of age; sexual assault on a child, as described in section 18-3-405; sexual assault on a child by one in a position of trust, as described in section 18-3-405.3; aggravated incest, as described in section 18-6-302; human trafficking of a minor for sexual servitude, as described in section 18-3-504 (2); sexual exploitation of a child, as described in section 18-6-403; procurement of a child for sexual exploitation, as described in section 18-6-404; soliciting for child prostitution, as described in section 18-7-402; pandering of a child, as described in section 18-7-403; procurement of a child, as described in section 18-7-403.5; keeping a place of child prostitution, as described in section 18-7-404; pimping of a child, as described in section 18-7-405; inducement of child prostitution, as described in section 18-7-405.5; patronizing a prostituted child, as described in section 18-7-406; or criminal attempt, conspiracy, or solicitation to commit any of the acts specified in this subsection (1).

(2) Every person convicted in this state of an unlawful sexual offense who has been previously convicted upon charges prior to the commission of the present act, which were separately brought, either in this state or elsewhere, of an unlawful sexual offense or who has been previously convicted under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States of an unlawful act that, if committed within this state, would be an unlawful sexual offense shall be adjudged an habitual sex offender against children. If the second or subsequent unlawful sexual offense for which a defendant is convicted constitutes a felony, the court shall impose a sentence to the department of corrections of not less than three times the upper limit of the presumptive range for that class felony as set out in section 18-1.3-401. If the second or subsequent unlawful sexual offense for which a defendant is convicted constitutes a misdemeanor, the court shall impose a sentence to the county jail of not less than three times the maximum sentence for that class misdemeanor as set out in section 18-1.3-501.

(3) Any previous conviction of an unlawful sexual offense shall be set forth in apt words in the complaint, indictment, or information. For purposes of trial, a duly authenticated copy of the record of previous convictions and judgments of any court of record for any of said crimes of the party indicted, charged, or informed against shall be prima facie evidence of such convictions and may be used in evidence against such party. A duly authenticated copy of the records of institutions of treatment or incarceration, including, but not limited to, records pertaining to identification of the party indicted, charged, or informed against, shall be prima facie evidence of the facts contained therein and may be used in evidence against such party.

(4) Any person who is subject to the provisions of this section shall not be eligible for suspension of sentence.

(5) The procedures specified in section 18-1.3-803 shall govern in a trial to which the provisions of this section are alleged to apply based on a previous conviction or convictions for an unlawful sexual offense as set out in the complaint, indictment, or information.

History

Source: L. 82: Entire section added, p. 316, 1, effective July 1. L. 85: (1) amended, p. 619, 13, effective July 1. L. 96: (5) amended, p. 1846, 18, effective July 1. L. 99: (1) amended, p. 1154, 18, effective July 1. L. 2000: (1) amended, p. 711, 49, effective July 1; (2) amended, p. 249, 1, effective August 2. L. 2002: (2) and (5) amended, p. 1513, 193, effective October 1. L. 2003: (2) and (4) amended, p. 1427, 7, effective April 29. L. 2010: (1) amended, (SB 10-140), ch. 156, p. 539, 10, effective April 21. L. 2014: (1) amended, (HB 14-1273), ch. 282, p. 1155, 18, effective July 1.

Annotations

Cross references: (1) For provisions concerning habitual child abusers that are similar to the provisions of this section, see 18-6-401.2; for limitations on collateral attacks on prior convictions, see 16-5-402.

(2) For the legislative declaration contained in the 2002 act amending subsections (2) and (5), see section 1 of chapter 318, Session Laws of Colorado 2002.

Annotations

 

ANNOTATION

Annotations

Law reviews. For article, "Review of New Legislation Relating to Criminal Law", see 11 Colo. Law. 2148 (1982).

The fact that this section allows a judge, not a jury, to find facts that increase a defendant's sentence beyond that authorized by the jury's verdict is not unconstitutional pursuant to Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 24228, 153 L. Ed. 2d 556 (2002); People v. Kyle, 111 P.3d 491 (Colo. App. 2004).

To calculate the maximum permissible minimum end of the indeterminate sentence for a defendant sentenced as a habitual sex offender against children, a trial court must triple the maximum of the presumptive range for the offense and then may double the resulting figure if the court finds aggravating circumstances under 18-3-401 (6). Isom v. People, 2017 CO 110, 407 P.3d 559.

A defendant sentenced pursuant to subsection (2) of this section and 18-1.3-1004 (1)(c) must be sentenced to an indeterminate prison sentence with a lower term of three times the maximum of the presumptive range, unless the court finds extraordinary aggravating circumstances under 18-1.3-401, then the lower term can be up to six times the maximum of the presumptive range. People v. Isom, 2015 COA 89, 410 P.3d 561, aff'd, 2017 CO 110, 407 P.3d 559.

There was no abuse of discretion by the court in the use of a prior conviction for sentencing purposes. People v. Quintano, 81 P.3d 1093 (Colo. App. 2003), aff'd on other grounds, 105 P.3d 585 (Colo. 2005).