v. Lopez , 2020 COA 41 ( 2020 )

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
March 19, 2019
2020COA41
No. 16CA1830, People v. Lopez — Crimes — Unlawful Sexual
Behavior — Sexually Violent Predators
This proceeding involves the designation of a convicted sex
offender as a sexually violent predator (SVP) under section 18-3-
414.5(1)(a), C.R.S. 2019. A division of the court of appeals
considers when a trial court must determine whether an offender is
developmentally disabled. The division holds that a trial court may
not rely on a sex-offense specific evaluation to designate an offender
as an SVP unless (1) the offender does not have a developmental
disability; or (2) the offender was evaluated by a professional
qualified to evaluate adults with developmental disabilities.
COLORADO COURT OF APPEALS 2020COA41
Court of Appeals No. 16CA1830
Montezuma County District Court No. 15CR208
Honorable Todd Jay Plewe, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Nicholas Ray Lopez,
Defendant-Appellant.
JUDGMENT VACATED AND CASE
REMANDED WITH DIRECTIONS
Division VI
Opinion by JUDGE GROVE
Richman and Freyre, JJ., concur
Announced March 19, 2020
Philip J. Weiser, Attorney General, Christine Brady, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Mackenzie Shields, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Nicolas Ray Lopez appeals his designation as a sexually violent
predator (SVP) under section 18-3-414.5(1)(a), C.R.S. 2019. We
hold that the trial court erred by (1) failing to make specific findings
before designating Lopez as an SVP; and (2) relying on an
evaluation that did not comply with the governing statutes and
regulations. For these reasons, we vacate the trial court’s order and
remand the case with instructions.
Background
¶2 Lopez pleaded guilty to two counts of attempted sexual assault
on a child in exchange for the dismissal of five other sex assault
charges, a stipulated sentence of six years in prison, and six years
of sex offender intensive supervision probation. He was required by
statute to undergo a sex offense specific evaluation (SOSE) to
determine treatment needs and the likelihood that he would
reoffend. § 18-3-414.5(2). A licensed psychologist evaluated Lopez
and reported on his findings. The trial court, relying on the
evaluation as well as argument by the People at the sentencing
hearing, determined that Lopez was an SVP as defined in section
18-3-414.5. Lopez appeals this designation.
1
Analysis
¶3 Lopez raises two issues on appeal. First, he argues that the
trial court violated the SVP statute and his due process rights by
failing to make specific factual findings on the record regarding its
determination that he was an SVP. Second, Lopez asserts that he
potentially has a developmental disability, and therefore should
have been evaluated by a psychologist qualified to evaluate
individuals with developmental disabilities. Because the
psychologist who evaluated him was not so qualified, he argues, the
assessment did not comply with the governing statutory and
administrative standards and could not be relied upon by the trial
court in designating him as an SVP. We agree with both of his
contentions.
A. Standard of Review
¶4 We review and interpret section 18-3-414.5 de novo. Allen v.
People, 2013 CO 44, ¶ 4. An SVP designation involves a mixed
question of law and fact. Id. When reviewing a mixed question, we
will defer to a trial court’s factual findings absent clear error, People
v. Brosh, 251 P.3d 456, 460 (Colo. App. 2010), but review de novo
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the trial court’s legal conclusions regarding whether an offender
should be designated as an SVP, Allen, ¶ 4.
B. SVP Statute
¶5 To be designated an SVP, an offender must (1) be over
eighteen years of age when the offense is committed; (2) be
convicted of one of an enumerated class of sexual offenses
(including sexual assault); (3) have perpetrated the offense upon a
victim who was a stranger to the offender or one with whom the
offender established or promoted a relationship primarily for the
purpose of sexual victimization; and (4) be likely to commit a similar
sexual offense based upon a risk assessment screening. § 18-3-
414.5(1)(a).1
¶6 An offender who meets the first two prongs will be evaluated
by a trained professional to determine if he or she is an SVP. § 18-
3-414.5. The evaluation has two parts — the SOSE and the
sexually violent predator assessment screening instrument
(SVPASI). Based on the results of the assessment, the trial court
must “make specific findings of fact and enter an order concerning
1Lopez does not dispute that he meets the first two statutory
criteria.
3
whether the defendant is a sexually violent predator.” § 18-3-
414.5(2); see also People v. Torrez, 2013 COA 37, ¶ 82. The statute
does not outline specific procedures for making these findings.
C. Relevant Case Law
¶7 When deciding whether to impose an SVP designation, the
trial court should start with the findings and conclusions of the
SOSE and SVPASI. Allen, ¶ 14 (finding that “the scored Screening
Instrument will . . . serve as the foundation for a trial court’s SVP
designation”). A trial court may, in certain circumstances, adopt
the findings of the risk assessment evaluator without going through
the evaluation line by line. Torrez, ¶ 83. Even when a defendant
challenges the facts in the report, as Lopez does here, the People
are not required to prove those facts with the quality of evidence
required at a trial on the criminal charges themselves. See People v.
Buerge, 240 P.3d 363, 369 (Colo. App. 2009). General findings
“might suffice, or the lack of specific findings might be harmless
under Crim. P. 52(a)” if the general findings are clearly supported
by ample evidence in the record. Torrez, ¶ 84.
¶8 However, principles of due process, as well as the language of
the statute, require that an SVP designation be based on “reliable
4
evidence, not speculation or unfounded allegations.” People v.
Tuffo, 209 P.3d 1226, 1231 (Colo. App. 2009) (citation omitted).
Where a finding in an assessment is “unexplained, unsourced, . . .
disputed,” and unsupported by ample evidence, due process and
section 18-3-414.5(2) require the trial court to make further factual
findings before adopting the assessment. Torrez, ¶ 84 (quoting
Tuffo, 209 P.3d at 1232).
D. The Trial Court’s Factual Findings
¶9 At sentencing, after considering argument from both sides, the
trial court ruled as follows:
I’ve listened to the arguments of counsel
regarding the [SVP] status. I’ve reviewed the
evaluation of the evaluator, plus I reviewed the
Colorado [SVP] assessment screening
instrument. The offender meets the [SVP]
criteria as set forth on the [SVP] screening
instrument.
I disagree with the arguments of counsel that
somehow this was not valid or that the proper
procedure was not followed. Based upon the
nature of the offense, the evaluation that I
have reviewed, the pre-sentence investigation
report that I have reviewed, I’ll find that the
defendant is [an SVP] consistent with the
evaluation and I’ll make [sic] finding.
5
¶ 10 Defense counsel objected and asked the court — pursuant to
the express language of the SVP statute and the supreme court’s
decision in Allen — to “make specific findings based upon specific
facts and not just generally” based on the evaluation. The People
responded by arguing that, under Torrez, a trial court can “simply
adopt the findings of the risk assessment evaluator.” The trial court
agreed with the People and did not make any specific findings on
the record before designating Lopez as an SVP.
¶ 11 Lopez asserts that the trial court was required to explicitly
determine whether he “promoted a relationship” with the victim
and, in addition, make findings about the history of his residency to
ensure the accuracy of his score on the sex offender risk scale
(SORS). Both of these questions were disputed below, and factual
findings relating to both were a necessary component of his SVP
designation. § 18-3-414.5(1)(a)(III).
1. “Promoted a Relationship”
¶ 12 The third prong of the SVP designation is known as the
“relationship prong.” It requires findings as to whether the victim
was “a stranger to the offender or a person with whom the offender
established or promoted a relationship primarily for the purpose of
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sexual victimization.” Id. If, “excluding the offender’s behavior
during the commission of the sexual assault that led to his
conviction, he otherwise encouraged a person with whom he had a
limited relationship to enter into a broader relationship primarily for
the purpose of sexual victimization,” then the offender has
“promoted the relationship.” People v. Gallegos, 2013 CO 45, ¶ 14.
¶ 13 Lopez’s evaluator checked a box on the SVPASI form indicating
that Lopez promoted his relationship with the victim for the purpose
of sexual victimization, but the trial court did not independently
address the issue in imposing the SVP designation. Lopez contends
that inconsistencies in the evaluation made specific findings
necessary. We agree.
¶ 14 While the SVPASI form itself permits the evaluator to simply
check a box reflecting the evaluator’s conclusion that the defendant
did or did not “promote[] a relationship” as contemplated by the
SVP statute, other portions of the form require the evaluator to list
the sources on which he or she relied to reach that conclusion. So
long as those sources are consistent with the evaluator’s findings,
they may be sufficient to support a trial court’s conclusion that the
defendant has satisfied the criteria set forth in the SVP statute.
7
¶ 15 Here, however, the evaluator’s conflicting answers on the
SVPASI form created ambiguity as to whether he actually concluded
that Lopez satisfied the “promoted a relationship” criterion.
Specifically, while the evaluator checked the box indicating that
Lopez had “promoted a relationship,” he also checked another box
indicating his overall conclusion that Lopez “DOES NOT Meet Any
Of The Above Relationship Criteria.” Lopez correctly points out that
these two answers cannot be reconciled. Thus, he argues, the trial
court could not simply accept the evaluator’s conclusion without
making its own specific findings.
¶ 16 Because the evaluator’s answers were internally inconsistent,
and because the remainder of the record does not resolve the
discrepancy, this part of the SVPASI could not be relied upon to
conclude that Lopez was an SVP. Therefore, the trial court was
required to make specific findings on the record with respect to the
relationship prong of the SVP designation.
2. Residential History
¶ 17 Lopez also argues that the trial court was required to make
specific factual findings as to his score on the SORS. In particular,
he argues that the evidence was insufficient to show that he resided
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at three or more different addresses in the two years prior to his
arrest and that without that evidence his risk score would have
totaled seven, instead of the eight that he received. The difference
is significant because, if he scored an eight or more on the SORS
scale while meeting the other criteria, he would be eligible for
designation as an SVP.
¶ 18 The sixth question on the SORS asks if “[t]he offender moved 2
or more times in the 2 years prior to arrest for the . . . current
offense.” It goes on to clarify, “[o]ffender resided at 3 or more
different addresses during this time frame.” The evaluator
answered, “Yes.” Lopez disputed this answer at the hearing,
arguing that his first move was from his parents’ house to the
victim’s home, and his second move was back to his parents’ house.
Thus, Lopez argues, while he did move twice in the two years
preceding his arrest, he did not have three different addresses;
therefore, the answer to the last question should have been “No,”
and his total SORS score should have been seven.2
2In Part 3 of the SVPASI, the evaluator must determine whether the
offender (1) has a prior sex crime conviction; (2) scored eight or
more on the SORS; or (3) “meets mental abnormality criteria” as
9
¶ 19 The People contend that the record establishes that Lopez
lived at three or more different addresses: (1) his parents’ house;
(2) the victim’s home (where he resided when he committed the
assaults); and (3) “whatever residence he moved to after” leaving the
victim’s home. However, the People offer no record support for their
suggestion that Lopez did not move back in with his parents after
moving out of the victim’s house. And although it is not definitive,
the record suggests that may have been what Lopez did.
¶ 20 A division of this court encountered an analogous situation in
Tuffo, 209 P.3d at 1230-31. One of the factors considered in the
SORS in that case was whether the offender failed the first or
second grade. Id. Although the evaluator indicated that the
offender had failed the first grade, defense counsel argued, and the
People did not challenge, that the offender had completed first grade
in a “special education sort of classroom.” Id. at 1231. Despite this
defined by statute. To be identified as an SVP, the offender must
satisfy at least one of these conditions. Here, the evaluator found
that Lopez neither met the mental abnormality criteria nor had a
prior sex crime conviction. Accordingly, a score of less than eight
on the SORS would have rendered Lopez ineligible for the SVP
designation. We acknowledge, however, that this result could
change if Lopez is re-evaluated after remand.
10
discrepancy, the trial court still made no findings of fact, and
instead made a general finding that the offender was an SVP. Id.
Because the offender would not have had the requisite score on the
SORS without that factor, the supreme court found that the trial
court’s general SVP finding “did not satisfy statutory and due
process requirements,” and remanded for specific findings on the
contested factual issues. Id.
¶ 21 We find Tuffo persuasive. Without an explicit finding that
Lopez lived at three different residences in the past two years, he
would not have had an SORS score of eight and would not have
been eligible for an SVP designation. And while the trial court
found that the defendant qualified as an SVP “consistent with the
evaluation,” Lopez’s residential history was a contested factual
issue that the SOSE did not resolve. We therefore conclude that the
SVP statute and due process required the trial court to make
specific factual findings on this issue.
E. Evaluation of Sex Offenders with Developmental Disabilities
¶ 22 Lopez contends that his SOSE did not follow standards
promulgated by the Sex Offender Management Board (SOMB).
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¶ 23 Section 16-11.7-103(4)(a), C.R.S. 2019, directs the SOMB to
develop standards “to evaluate and identify adult sex offenders,
including adult sex offenders with developmental disabilities.” The
SOMB has done so by adopting standards for the “systematic
management and treatment of adult sex offenders.” See Sex
Offender Management Board, Standards and Guidelines for the
Assessment, Evaluation, Treatment and Behavioral Monitoring of
Adult Sex Offenders 3 (rev. Nov. 2011) (SOMB Standards).3 As
relevant here, section 2.000 of the SOMB Standards establishes the
parameters for conducting sex offense-specific evaluations, id. at
22-35, and section 4.000 lays out the necessary qualifications for
“providers, evaluators, and polygraph examiners working with sex
offenders,” id. at 50-77. Providers who evaluate offenders with
3 Lopez was designated as an SVP in July 2016. At that time, the
2011 revision was the most recent version of the SOMB Standards.
In their briefing, however, both parties rely on the SOMB’s 2018
version of the Standards. Although there are minor differences
between the two, both versions adopt the definitions of
“Developmental Disability” and “impairment of general intellectual
functioning” set forth in the Code of Colorado Regulations. See
Dep’t of Health Care Policy & Fin. Reg. 8.600.4(A)(1), 10 Code Colo.
Regs. 2505-10. Because Lopez was designated as an SVP in 2016,
all references to the SOMB Standards in this opinion rely on the
2011 version.
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developmental disabilities must have specific qualifications and
submit an application that demonstrates their competency to work
with this population. Id.
1. Lopez Was Potentially Developmentally Disabled
¶ 24 The SOMB Standards define “Developmental Disability” as “a
disability that is manifested before the person reaches twenty-two
[years] of age, which constitutes a substantial disability to the
affected person, and is attributable to . . . neurological conditions
when such conditions result in impairment of general intellectual
functioning.” Id. at 11. “Impairment of general intellectual
functioning,” in turn, “means that the person has been determined
to have an intellectual quotient equivalent which is two or more
standard deviations below the mean (70 or less assuming a scale
with a mean of 100 and a standard deviation of 15).” Id. at 11-12.
“The standard error measurement of the instrument should be
considered when determining the intellectual quotient equivalent.”
Id. at 12.
¶ 25 The evaluator reported three IQ scores for Lopez: a verbal scale
IQ of 90, a performance scale IQ of 66, and “a full-scale IQ of 76
plus or minus seven on the [Weschler Abbreviated Standard of
13
Intelligence].” Taking the margin of error into account, Lopez’s full-
scale IQ, as tested, appears to have been between 69 and 83. The
low end of this scale is within the applicable range for “impairment
of general intellectual functioning.” SOMB Standards at 11-12.
¶ 26 Despite this finding — and the evaluator’s observation that
Lopez’s “statements of ‘understanding’ should be questioned”
because he is “intellectually dull” — the evaluator never definitively
stated that Lopez did or did not have a developmental disability.
Nor was the evaluator specially qualified to work with
developmentally disabled offenders.
2. This Determination Cannot Wait Until After the SOSE
¶ 27 The People maintain that Lopez “presented no evidence to the
sentencing court that he had ever been diagnosed as
developmentally disabled” and argue further that the SOSE did not
classify him as developmentally disabled. However, at the hearing,
both sides and the trial court acknowledged that Lopez “potentially”
had a developmental disability. The People also concede in their
answer brief that the evaluator identified Lopez as “someone who
might need treatment tailored to developmentally disabled”
individuals.
14
¶ 28 Still, the People assert that an SOSE is not the time to
diagnose an individual with a developmental disability. They
argued at the hearing that Lopez “could be reevaluated at DOC. He
could be reevaluated on parole . . . when evaluating the need for
specific types of treatment.” The court ultimately accepted the
People’s argument on this issue and concluded that “[t]he fact that
someone has a potential developmental disability doesn’t mean the
Court can’t proceed based upon the [SOMB] evaluation [of] someone
who’s not approved to conduct those for developmental disabilities.”
We disagree.
¶ 29 Section 18-3-414.5(2) requires the trial court to make specific
findings of fact “[b]ased on the results of the assessment.” Inherent
in this mandate is the assumption that the “assessment” was
completed in compliance with the SOMB Standards. The SOMB
Standards make clear that the evaluation of an offender with a
developmental disability is “a highly specialized field” that requires
special expertise on the part of the evaluator to ensure accurate
outcomes. SOMB Standards at 4.
¶ 30 Specific guidelines for the assessment of offenders with
developmental disabilities — labeled “DD/ID” — are included in
15
every section of the SOMB Standards. They address different
issues that arise when evaluating and treating individuals with
disabilities and explain methods to be used in those situations. The
intent of these standards is to address “the specific needs . . . of sex
offenders with developmental disabilities.” Id.
¶ 31 We do not conclude here that Lopez is in fact developmentally
disabled as defined by the SOMB Standards, statute, and
regulations. That is a question for the trial court to resolve on a
more complete record. However, we do hold that — based on
section 18-3-414.5 and the SOMB Standards — a trial court cannot
designate an offender with a potential developmental disability as
an SVP based on an SOSE and SVPASI unless either (1) the
offender does not have a developmental disability; or (2) the offender
was evaluated by a professional qualified to evaluate adults with
developmental disabilities. Where, as here, the evaluator’s
assessment does not definitively establish whether the offender has
an “impairment of general intellectual functioning” under the SOMB
Standards, a trial court must make findings on that point before
determining that the offender qualifies as an SVP.
16
¶ 32 We also disagree with the People’s assertion that determining
whether an offender has a developmental disability can wait until
the individual is being “managed, monitored, and treated.” The
People claim that the statute “allows for [Lopez] to be
reevaluated . . . for treatment purposes.” It may allow for that, but
the initial SOSE must be tailored to the individual offender
“[b]ecause of the importance of the information to subsequent
sentencing.” Id. at 22. The standards and guidelines on the
subject would be rendered superfluous if the probation department
and SOMB could avoid the question altogether until after the SOSE.
Conclusion
¶ 33 The trial court’s order is vacated and the case is remanded for
a hearing to determine whether Lopez is developmentally disabled.
If so, Lopez should be reassessed consistent with SOMB standards.
Additionally, the trial court must make specific factual findings
regarding both the “promoted a relationship” criterion and the
SORS score to determine whether the SVP designation is
appropriate.
JUDGE RICHMAN and JUDGE FREYRE concur.
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