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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, 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), C.R.S. 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), C.R.S.

(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 attorneys record and the courts 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 victims 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) In addition to any sentence that is imposed upon a defendant for violation of any criminal law under this title, 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 for the duration of the order; and

(B) Relinquish any firearm or ammunition in the defendants immediate possession or control or subject to the defendants immediate possession or control; and

(II) May require that before the defendant is released from custody on bond, the defendant shall relinquish, for the duration of the order, any firearm or ammunition in the defendants immediate possession or control or subject to the defendants immediate possession or control.

(II) In any subsequent prosecution for a violation of this paragraph (i), the court shall take judicial notice of the defendants failure to file a receipt or written statement, which will constitute prima facie evidence that the defendant has violated this paragraph (i), and testimony of the clerk of the court or his or her deputy is not required.

(b) Upon issuance of an order to relinquish one or more firearms or ammunition pursuant to paragraph (a) of this subsection (8), the defendant shall relinquish any firearm or ammunition not more than twenty-four hours after being served with the order; except that a court may allow a defendant up to seventy-two hours to relinquish a firearm or up to five days to relinquish ammunition pursuant to this paragraph (b) if the defendant demonstrates to the satisfaction of the court that he or she is unable to comply within twenty-four hours. To satisfy this requirement, the defendant may:

(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 shall not be interpreted to require any federally licensed firearms dealer to purchase or accept possession of any firearm or ammunition;

(II) Arrange for the storage of the firearm or ammunition by a law enforcement agency; except that this provision shall 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 subparagraph (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.

(c) If a defendant is unable to satisfy the provisions of paragraph (b) of this subsection (8) because he or she is incarcerated or otherwise held in the custody of a law enforcement agency, the court shall require the defendant to satisfy such provisions not more than twenty-four hours after his or her release from incarceration or custody or be held in contempt of court. Notwithstanding any provision of this paragraph (c), the court may, in its discretion, require the defendant to relinquish any firearm or ammunition in the defendants immediate possession or control or subject to the defendants immediate possession or control before the end of the defendants incarceration. In such a case, a defendants failure to relinquish a firearm or ammunition as required shall constitute contempt of court.

(d) A federally licensed firearms dealer who takes possession of a firearm or ammunition pursuant to this subsection (8) shall issue a receipt to the defendant at the time of relinquishment. The federally licensed firearms dealer shall not return the firearm or ammunition to the defendant unless the dealer:

(I) Contacts the bureau to request that a background check of the defendant be performed; and

(II) Obtains approval of the transfer from the bureau after the performance of the background check.

(e) A local law enforcement agency may elect to store firearms or ammunition for persons pursuant to this subsection (8). If an agency so elects:

(I) The agency may charge a fee for such storage, the amount of which shall not exceed the direct and indirect costs incurred by the agency in providing such storage;

(II) The agency may establish policies for disposal of abandoned or stolen firearms or ammunition; and

(III) The agency shall issue a receipt to each defendant at the time the defendant relinquishes possession of a firearm or ammunition.

(f) If a local law enforcement agency elects to store firearms or ammunition for a defendant pursuant to this subsection (8), the law enforcement agency shall not return the firearm or ammunition to the defendant unless the agency:

(I) Contacts the bureau to request that a background check of the defendant be performed; and

(II) Obtains approval of the transfer from the bureau after the performance of the background check.

 

(g) (I) 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 such 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.

(II) If a law enforcement agency elects to cease storing a firearm or ammunition for a defendant and notifies the defendant as described in subparagraph (I) of this paragraph (g), 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 said transfer within ninety days of receiving such notification.

(h) 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 subparagraph (III) of paragraph (b) of this subsection (8), the defendant shall acquire:

(I) From the transferee, a written receipt acknowledging the transfer, which receipt shall be dated and signed by the defendant and the transferee; and

(II) From the licensed gun dealer who requests from the bureau a background check of the transferee, as described in section 18-12-112, a written statement of the results of the background check.

 

(i) (I) Not more than three business days after the relinquishment, the defendant shall file a copy of the receipt issued pursuant to paragraph (d), (e), or (h) of this subsection (8), and, if applicable, the written statement of the results of a background check performed on the transferee, as described in subparagraph (II) of paragraph (h) of this subsection (8), with the court as proof of the relinquishment. If a defendant fails to timely file a receipt or written statement as described in this paragraph (i):

(A) The failure constitutes a class 2 misdemeanor, and the defendant shall be punished as provided in section 18-1.3-501; and

(B) The court shall issue a warrant for the defendants arrest.

 

(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)(b)(II) of this section shall not be held criminally or civilly liable for such election not to act.

(II) A law enforcement agency that returns possession of a firearm or ammunition to a defendant in good faith as permitted by paragraph (f) of this subsection (8) shall not be held criminally or civilly liable for such action.

History

History.
Source: L. 88: Entire part added, p. 732, 1, effective July 1. L. 89: Entire section R&RE, p. 909, 2, effective April 4. L. 94: (1) amended and (3) to (6) added, p. 2026, 2, effective July 1. L. 95: (3) amended, p. 566, 2, effective July 1. L. 2000: (7) added, p. 1011, 1, effective July 1; (1)(a) and (1)(b) amended, p. 913, 2, effective January 1, 2001. L. 2002: (4) and (7) amended, p. 1515, 200, effective October 1. L. 2009: (1)(a) and (1)(b) amended,(SB 09-292), ch. 369, p. 1948, 32, effective August 5. L. 2013: (8) added,(SB 13-197), ch. 366, p. 2137, 5, effective June 5; (4) amended,(HB 13-1156), ch. 336, p. 1957, 5, effective August 7. L. 2014: (8)(i)(I)(A) amended,(HB 14-1363), ch. 302, p. 1264, 12, effective May 31. L. 2016: (7) amended,(HB 16-1066), ch. 106, p. 306, 1, effective July 1. L. 2018: (8)(j)(I) amended,(HB 18-1375), ch. 274, p. 1703, 27, effective May 29.

Annotations

Cross references: For the legislative declaration contained in the 2002 act amending subsections (4) and (7), see section 1 of chapter 318, Session Laws of Colorado 2002. For the legislative declaration in the 2013 act adding subsection (8), see section 1 of chapter 366, Session Laws of Colorado 2013.

ANNOTATION

Law reviews. For article, What Family Law Practitioners Should Know About Domestic Violence, see 19 Colo. Law. 53 . For article, Plea Bargaining, Legislative Limits, and the Separation of Powers, see 32 Colo. Law. 63 (March 2003). For article, The New Domestic Violence Treatment Standards for 2010, see 39 Colo. Law. 45 (Sept. 2010).

Subsection (1)(a), which allows a trial court to make a factual finding that a defendants underlying criminal conviction included an act of domestic violence, does not run afoul of the sixth amendmentof the federal constitution under Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013).People v. Heisler, 2017 COA 58, P.3d .

Court-ordered domestic violence treatment, imposed pursuant to subsection (1)(a), is not a form of punishment and, therefore, the statute does not mandate a penalty as contemplated by Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and its progeny. People v. Heisler, 2017 COA 58, P.3d .

Domestic violence sentencing statute regarding mandatory attendance of domestic violence treatment and evaluation is not facially violative of defendants constitutional right to a jury trial under the sixth amendment. Trial court made a factual finding that the defendants underlying criminal conviction included an act of domestic violence, and the court-ordered domestic violence treatment imposed by subsection (1)(a) does not mandate a penalty because this treatment prioritizes rehabilitation as well as victim and public safety and is not analogous to traditional forms of punishment. People v. Heisler, 2017 COA 58, P.3d .

Any form of treatment ordered for domestic violence offenders must conform with the standards adopted by the domestic violence offender management board, despite the seeming inconsistency between subsections (1)(a) and (1)(b) regarding recommendation for treatment and what treatment includes. Partners in Change, L.L.C. v. Philp, 197 P.3d 232 (Colo. App. 2008).

If a court sentences a defendant to prison, it cannot order the defendant to complete a domestic violence treatment program as provided in subsection (1). This exception in subsection (2), however, does not apply to a defendant who has been sentenced to jail. People v. Trujillo, 2019 COA 74, P.3d .

Subsection (3) does not provide that the absence of the required domestic violence designation in the complaint divests the court of jurisdiction. Because defendant did not object to the form of the complaint and did not show how he was prejudiced, the technical defect could be corrected by remanding the case to the trial court to allow the prosecution to amend the complaint to reflect that the underlying facts involved domestic violence. People v. Campbell, 174 P.3d 860 (Colo. App. 2007).

When there is no dispute that the underlying factual basis for the charges against defendant included an act of domestic violence and defendant is appropriately advised concerning the nature and consequences of his or her plea such that the placement of a domestic violence designation on the complaint will not alter defendants understanding of the agreement, the appropriate remedy for the trial courts technical violation of subsection (3) is to remand the case to allow the prosecution to amend the complaint to include a domestic violence designation. People v. Campbell, 174 P.3d 860 (Colo. App. 2007).

Under 16-5-301 and subsection (7) of this section, in order to demand and receive a preliminary hearing, defendant must be charged with a class 4, 5, or 6 felony. Here, the substantive offense with which defendant was charged was a misdemeanor. People v. Garcia, 176 P.3d 872 (Colo. App. 2007), overruled in People v. Vanness, 2020 CO 18, 458 P.3d 901.

Under subsection (7), defendant could only stand convicted of a class 5 felony if first convicted of the misdemeanor and subsequently adjudged a habitual offender by the court. Because count one of the information did not charge defendant with a substantive felony offense requiring mandatory sentencing, the exception in 16-5-301 (1)(a) allowing for a preliminary hearing under such circumstances is inapplicable. People v. Garcia, 176 P.3d 872 (Colo. App. 2007), overruled in People v. Vanness, 2020 CO 18, 458 P.3d 901.

Because the requirements of subsection (7) permit a defendant to be convicted of a felony, the defendant must also be provided with felony procedural protections. Defendant was charged with misdemeanor counts as well as felony counts pursuant to the statute, which exposed defendant to a felony conviction and entitled defendant to be tried in accordance with felony trial procedures. People v. Vigil, 2013 COA 102, 328 P.3d 1066.

Where jury found that defendant violated a protection order, but the verdict did not reflect a finding of coercion, control, punishment, intimidation, or revenge, defendants aggravated sentencing under subsection (7) violated defendants sixth amendment right to a jury trial under Apprendi v. New Jersey and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).People v. Jaso, 2014 COA 131, 347 P.3d 1174.