v. Lopez

     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

                                

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                                       

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, 

. An SVP designation involves a mixed

 question of law and fact. 

 When reviewing a mixed question, we

 will defer to a trial court’s factual findings absent clear error, People

 v. Brosh, 

 (Colo. App. 2010), but review de novo




                                     2
 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, 

. 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, 

 (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, 

 (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, 

).

                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


                                     6
  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, 

.

¶ 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


                                      8
  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, 

. One of the factors considered in the

  SORS in that case was whether the offender failed the first or

  second grade. 

 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.” 

. 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. 

  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. 

¶ 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).




                                     11
¶ 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.

                                   12
  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.




                                    17