v. Hernandez

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
July 25, 2019

2019COA111

No. 17CA0775, People v. Hernandez — Criminal Law —
Sentencing — Restitution; Criminal Procedure — Presence of
Defendant; Constitutional Law — Due Process

In this appeal of a restitution order, a division of the court of

appeals concludes that a defendant has a right to be present at a

restitution hearing. And based on the particular facts presented,

the trial court plainly erred by holding the restitution hearing in

Hernandez’s absence, despite his attorney’s attempted but

ineffective waiver of his presence.
COLORADO COURT OF APPEALS 2019COA111

Court of Appeals No. 17CA0775
Weld County District Court No. 14CR2052
Honorable Thomas J. Quammen, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Joey Ray Hernandez,

Defendant-Appellant.

ORDER VACATED AND CASE
REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE WEBB
Furman and Brown, JJ., concur

Announced July 25, 2019

Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Julia Chamberlin, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 In this appeal of a restitution order, defendant, Joey Ray

Hernandez, presents a novel question in Colorado — does a

defendant have a right to be present at a restitution hearing? We

conclude that the answer is “yes.” Turning to the particular facts

presented, next we conclude that the trial court plainly erred by

holding the restitution hearing in Hernandez’s absence, despite his

attorney’s attempted but ineffective waiver of his presence. So, the

restitution order must be vacated and the case remanded for

further proceedings. But if on remand the trial court determines

that Hernandez had authorized his attorney to waive his presence,

a new restitution hearing need not be held.

I. Background

¶2 A jury convicted Hernandez of first degree assault for having

stabbed the victim. The trial court imposed a sentence to the

custody of the Department of Corrections and gave the prosecutor

sixty days to file a notice of restitution. The prosecutor timely

sought restitution of $2518.82 to compensate the Crime Victim

Compensation Fund.

¶3 Defense counsel filed a general objection. But neither counsel

nor Hernandez appeared at two scheduled status conferences.

1
 Counsel did not respond to the trial court’s direction to file a

clarification of his objection. Nor did counsel request the court to

perform an in camera review of any information related to the claim.

¶4 Eventually, defense counsel — but not Hernandez — appeared

at the restitution hearing. Counsel explained, “I was going to writ

him here. I didn’t do that. But given all the circumstances in this

case, I’m prepared to proceed to [sic] restitution hearing without his

presence.” The court did not reply to this statement and the

hearing went forward.

¶5 The prosecutor called the Crime Victim Compensation

Coordinator for the Nineteenth Judicial District as the sole witness.

The coordinator described how the Crime Victim Compensation

Board (CVCB) evaluates restitution applications. Where medical

expenses are involved, the review includes looking at the nature of

the services provided in light of the offense and at the dates of those

services compared to the date of the offense. Next, the coordinator

identified the victim’s application. Then she explained that the

process for determining proximate cause of the medical expenses

had been followed in this case. Defense counsel neither cross-

examined her nor presented any evidence.

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¶6 The trial court found that the prosecutor had proved by a

preponderance of the evidence that the medical expenses described

in the restitution notice had been proximately caused by

Hernandez’s criminal conduct. The court awarded the amount

requested.

II. Issues Presented, Preservation, and Standard of Review

¶7 Hernandez raises three contentions.

• Despite the statements of defense counsel, the trial court erred

by proceeding with the restitution hearing in his absence.

• Applying the post-assault amendment to section 18-1.3-603,

C.R.S. 2018, which lessens the prosecution’s burden of

proving causation, violated the Ex Post Facto Clauses of the

United States and Colorado Constitutions.

• Applying section 18-1.3-603(10) also violated Hernandez’s due

process rights by creating a rebuttable presumption of

causation that he cannot overcome because of limitations on

information held by a CVCB.

¶8 The Attorney General asserts that Hernandez waived the first

contention and challenges preservation of the second and third

contentions. Hernandez disputes waiver, concedes that he did not

3
 preserve the first or second contentions, and argues that he

preserved the third contention. In any event, he urges us to

exercise our discretion and take up his statutory contentions in the

interest of judicial economy.

¶9 We reject the Attorney General’s waiver assertion but agree

that Hernandez did not preserve the third contention. We exercise

our discretion in the interest of judicial economy, but only to a

point.

¶ 10 Alleged violation of a defendant’s due process right to be

present at all critical stages of a criminal proceeding is a

constitutional question reviewed de novo. People v. Wingfield, 2014

COA 173, ¶ 13. And “Crim. P. 43(a) also requires as much, subject

to a few exceptions.” People v. Janis, 2018 CO 89, ¶ 16 n.2.

¶ 11 Where this due process right has been violated and the error

preserved, reversal is required unless the Attorney General proves

that the error was harmless beyond a reasonable doubt. Zoll v.

People, 2018 CO 70, ¶ 17. If the error is unpreserved — but not

waived — plain error review applies. See Hagos v. People, 2012 CO

63, ¶ 14. Under that test, reversal occurs only if the error was

obvious and so undermined the fundamental fairness of the

4
 proceeding that it casts serious doubt on the reliability of the

outcome. Id.

¶ 12 No Colorado case has addressed whether violation of a

defendant’s right to be present under Crim. P. 43 is also reviewed

de novo. However, we discern no reason to apply a different

standard of review to the same right merely because the right is

guaranteed by rule rather than by statute. But reversal for failure

to follow a court rule is subject to the harmless error limitation in

Crim. P. 52(a) rather than to the constitutional harmless error

standard. See Dawson v. People, 30 P.3d 213, 220 (Colo. 2001)

(Crim. P. 11).

¶ 13 The constitutionality of a statute is also subject to de novo

review. See, e.g., Coffman v. Williamson, 2015 CO 35, ¶ 13. The

reviewing court presumes the statute is constitutional. Morris-

Schindler, LLC v. City & Cty. of Denver, 251 P.3d 1076, 1084 (Colo.

App. 2010). And “[i]n both facial and as-applied challenges, the

challenging party must prove that a statute is unconstitutional

beyond a reasonable doubt.” Heotis v. Colo. State Bd. of Educ.,

2019 COA 35, ¶ 17.

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 III. The Law of Restitution

¶ 14 Criminal defendants must “make full restitution to those

harmed by their misconduct.” § 18-1.3-601, C.R.S. 2018.

“‘Restitution’ means any pecuniary loss suffered by a victim and

includes but is not limited to all out-of-pocket expenses . . . .”

§ 18-1.3-602(3)(a), C.R.S. 2018. “The prosecution bears the burden

of proving, by a preponderance of the evidence, the amount of

restitution owed and, generally, that the defendant’s conduct was

the proximate cause of the victim’s loss.” People v. Henry, 2018

COA 48M, ¶ 15.

¶ 15 A CVCB exists in each judicial district. § 24-4.1-103(1), C.R.S.

2018. The restitution statute’s definition of “victim” includes these

boards. § 18-1.3-602(4)(a)(IV). Losses compensable by a CVCB

include “[r]easonable medical and hospital expenses.”

§ 24-4.1-109(1)(a), C.R.S. 2018.

¶ 16 Documents submitted to a CVCB for purposes of receiving

compensation are “confidential” under section 24-4.1-107.5(2),

C.R.S. 2018. As a result, “a defendant generally cannot obtain

access to them.” Henry, ¶ 28.

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¶ 17 But in restitution proceedings, section 24-4.1-107.5(3) creates

a two-step process through which a defendant can obtain

information in CVCB records. First, the defendant may make a

request that “is not speculative and is based on an evidentiary

hypothesis that warrants an in camera review.” Id. Second, after

conducting such a review, the court may release information if it

finds that the information:

(a) Is necessary for the defendant to dispute
the amount claimed for restitution; and

(b) Will not pose any threat to the safety or
welfare of the victim, or any other person
whose identity may appear in the board’s
records, or violate any other privilege or
confidentiality right.

Id.

¶ 18 After a CVCB determines that compensation should be

awarded, it submits a statement to the court administrator, “who

shall remit payment in accordance with the statement of award.”

§ 24-4.1-108(3), C.R.S. 2018. Then under section

18-1.3-603(10)(a), “[i]f, as a result of the defendant’s conduct,” a

CVCB has “provided assistance to or on behalf of a victim,” a trial

court must “presume[]” that the amount of the assistance that the

7
 CVCB paid out was “a direct result of the defendant’s criminal

conduct,” which the court “must . . . consider[] . . . in determining

the amount of restitution ordered.”

IV. The Trial Court Plainly Erred by Proceeding with the
Restitution Hearing in Hernandez’s Absence

¶ 19 First, we consider whether a restitution hearing is a

proceeding at which a defendant has a right to be present. Because

we conclude that it is, we next consider whether counsel can

unilaterally waive a defendant’s presence. We conclude that

counsel cannot do so. Last, because Hernandez did not preserve

this issue, we consider whether the trial court committed plain

error by proceeding in Hernandez’s absence. We conclude that

because plain error occurred, the restitution order must be vacated.

A. The Restitution Hearing Is a Proceeding at which a Defendant
Has a Right to be Present

¶ 20 Everyone would agree that as a matter of due process, both

the United States and Colorado Constitutions “guarantee the right

of a criminal defendant to be present at all critical stages of the

prosecution.” People v. White, 870 P.2d 424, 458 (Colo. 1994).

Still, because not every step in a criminal proceeding is a critical

stage, “[t]he right to be present is not absolute.” Id.

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¶ 21 Rather, a “critical stage of criminal proceedings is one where

there exists more than a minimal risk that the absence of the

defendant might impair his or her right to a fair trial.” People v.

Cardenas, 2015 COA 94M, ¶ 22. In other words, “due process does

not require the defendant’s presence when it would be useless or

only slightly beneficial.” People v. Isom, 140 P.3d 100, 104 (Colo.

App. 2005).

¶ 22 In Colorado, “[s]entencing is a critical stage of a criminal

proceeding.” People v. Luu, 983 P.2d 15, 19 (Colo. App. 1998). And

“[r]estitution is part of the district court’s sentencing function in

criminal cases.” People v. Vasseur, 2016 COA 107, ¶ 16. Indeed, “a

sentence is illegal if the court fails to consider restitution,” and “a

restitution order is appealable in accordance with ‘the statutory

procedures applicable to the appellate review of a felony sentence.’”

Id. (citation omitted).

¶ 23 In other jurisdictions, restitution hearings are a critical stage.

See, e.g., L.W. v. State, 163 So. 3d 598, 600 (Fla. Dist. Ct. App.

2015) (right to be present); Gibson v. State, 737 S.E.2d 728, 730

(Ga. Ct. App. 2013) (same); State v. Ball, 293 P.3d 816 (Kan. Ct.

App. 2013) (same); State v. Rodriguez, 889 N.W.2d 332, 334 (Minn.

9
 Ct. App. 2017) (same); cf. State v. Alspach, 554 N.W.2d 882, 884

(Iowa 1996) (right to counsel); State v. Jamieson, 414 P.3d 559, 567

(Utah Ct. App. 2017) (same), cert. granted, 421 P.3d 439 (Utah May

9, 2018) (No. 2018140). While the Attorney General challenges the

rationale in some of these cases, he cites no directly contrary

authority. Nor have we found any.

¶ 24 But does the “useless or only slightly beneficial” test serve to

limit the “critical stage” analysis or only to identify case-specific

circumstances where a defendant’s absence at a critical stage is

harmless? In our view, sentencing — including imposition of

restitution — is a critical stage at which a defendant has a due

process right to be present. Still, if particular facts show that the

defendant’s presence would be useless or only slightly beneficial,

proceeding in the defendant’s absence will be harmless beyond a

reasonable doubt. See People v. Munsey, 232 P.3d 113, 120 (Colo.

App. 2009) (“The record in this case shows that defendant’s

presence [when the court responded to a jury question] would have

been useless, rendering any constitutional error harmless beyond a

reasonable doubt.”). But our inquiry does not end here.

10
¶ 25 Under Crim. P. 43, entitled “Presence of the Defendant,” the

defendant “shall be present . . . at the imposition of sentence.”

Although no Colorado case has applied this rule to a restitution

hearing, a closer look shows that a restitution hearing is a

component of sentencing at which the defendant must be present.

Specifically, paragraph (e)(2) extends the option of presence “by the

use of an interactive audiovisual device” to “(VI) Restitution

hearings.”

¶ 26 Like the constitutional right to be present, however, the right

to be present under Crim. P. 43 is not absolute. “For instance, a

defendant need not be present at a conference or argument on a

question of law.” People v. Gallegos, 226 P.3d 1112, 1120 (Colo.

App. 2009) (citing Crim. P. 43(c)(2)). While Crim. P. 43(c) identifies

“situations” in which a defendant’s presence is not required,

restitution proceedings are not among those listed.

B. Defense Counsel Could Not Waive Hernandez’s Presence

¶ 27 The trial court may have chosen to proceed in Hernandez’s

absence because defense counsel not only failed to object to

proceeding, but invited the court to do so. In a felony proceeding,

however, a defendant’s right to be present “cannot be waived by

11
 counsel.” Penney v. People, 146 Colo. 95, 101, 360 P.2d 671, 673

(1961); accord Wingfield, ¶ 19 (“[D]efense counsel cannot waive a

defendant’s right to presence at critical stages of criminal

proceedings.”). Nor is this a situation where Hernandez was

initially present and then voluntarily absented himself from the

restitution hearing. See Crim. P. 43(b)(1). To the contrary, the

record does not show that Hernandez even knew of the restitution

hearing, much less that he authorized his counsel to waive his

presence.

¶ 28 The Attorney General does not argue otherwise. Instead, he

requests only that if we set aside the restitution order, the trial

court hear evidence and make a finding on counsel’s authorization.

See Janis, ¶ 17 (“A defendant may waive her right to be present

either expressly or through her conduct.”). We accede to this

request in formulating the scope of the remand.

¶ 29 In short, Hernandez “is entitled to plain error review because

his claim was merely forfeited and not validly waived.” People v.

Mumford, 275 P.3d 667, 672 (Colo. App. 2010), aff’d, 2012 CO 2.

12
 C. The Error Was Plain

¶ 30 Next we consider whether the error was obvious and, if so,

whether it cast serious doubt on the reliability of the restitution

award.

¶ 31 Under the plain error standard, “the defendant bears the

burden to establish that an error occurred, and that at the time the

error arose, it was so clear cut and so obvious that a trial judge

should have been able to avoid it without benefit of objection.”

People v. Conyac, 2014 COA 8M, ¶ 54. “An error is obvious if it

contravenes either a clear statutory command, a well-settled legal

principle, or Colorado case law.” People in Interest of T.C.C., 2017

COA 138, ¶ 15.

¶ 32 Colorado case law has not addressed whether a defendant has

a constitutional or statutory right to be present when restitution is

imposed. See, e.g., People v. Howard-Walker, 2017 COA 81M, ¶ 57

(Any error was not obvious because “no Colorado case has directly

addressed the distinction between lay and expert testimony with

respect to whether a gun depicted in a video is real or fake.”), rev’d

on other grounds, 2019 CO 69. The handful of out-of-state cases

cited above hardly establishes “a well-settled legal principle.” But

13
 while no statute recognizes a defendant’s right to be present, recall

that Crim. P. 43 does so.

¶ 33 No Colorado case has applied the “clear statutory command”

aspect of obviousness to a court rule. Cf. People v. Smalley, 2015

COA 140, ¶ 85 (“The error was obvious because the court’s

obligation to afford a defendant an opportunity to speak at

sentencing was well-settled under Colorado statutes, court rules,

and case law.”) (emphasis added). However, because we cannot

discern a principled basis on which to afford court rules less weight

than statutes in determining obviousness, we conclude that the

error was obvious.

¶ 34 “The defendant must also establish that the error was so grave

that it undermined the fundamental fairness of the trial itself . . . as

to cast serious doubt on the reliability of the conviction.” Conyac,

¶ 54. In deciding whether Hernandez has met this burden, three

considerations tilt the field in his favor.

¶ 35 First, the threshold is low. See, e.g., Wingfield, ¶ 18 (“Due

process does not require the defendant’s presence when his or her

presence would be useless.”). Second, where a defendant was

absent — and here, through no fault of his own — determining

14
 what the defendant’s presence could have added will often be

difficult. See People v. Safety Nat’l Cas. Corp., 366 P.3d 57, 62 (Cal.

2016) (“[T]he issue often involves determining whether the

defendant’s absence from a proceeding constitutes a denial or

violation of due process.”). And third, a defendant’s presence at

sentencing “serves to advance the right of the accused to be

informed directly of his sentence and to advance society’s interest in

the appearance of fairness.” Luu, 983 P.2d at 19.

¶ 36 According to Hernandez, his presence at the hearing would

have been useful because he and the victim were acquaintances in

Fort Lupton, which is a small town, and he “could have provided

defense counsel with critical information disputing the nature and

extent of [the victim’s] injury.” See Zoll, ¶ 27 (noting the absence of

any need “for Zoll to provide feedback to his counsel about any

matter” as a 911 tape was replayed for the jury). Still, on the

present record, what information Hernandez possessed is unknown

and, more importantly, unknowable.

¶ 37 The Attorney General responds that because Hernandez lacks

medical expertise, he could not have opined on either the extent of

the victim’s injuries or the need for treatment. Also, the Attorney

15
 General continues, albeit without record citations, Hernandez “was

not present when the victim was taken to the emergency room or

during any subsequent examinations or treatment.”

¶ 38 Yet, even if all that the Attorney General says is true,

Hernandez bonded out December 15, 2014 — thirty days after the

charged offense — and reimbursement included undescribed

medical services rendered on March 12 and 19, 2015 — four

months after the stabbing. So, at least in theory, had Hernandez

been present at the hearing, he could have prompted his counsel to

ask the coordinator whether she was aware that the victim had

been physically active and appeared healthy between December 15

and March 12. And if she denied such knowledge, he could have

testified to his observations of the victim.

¶ 39 Either way, the need for ongoing treatment, the nature of

which is not disclosed, could have been undercut. For this reason,

the Attorney General’s reliance on People v. Rosales, 134 P.3d 429,

433 (Colo. App. 2005) (“Here, defendant has never asserted that no

victim suffered any pecuniary loss . . . .”), is misplaced.

¶ 40 Instead, because restitution had not yet been addressed, the

hearing was like imposing a new sentence based on new evidence.

16
 See People v. Nelson, 9 P.3d 1177, 1178 (Colo. App. 2000) (“[W]hen

the court imposes a new sentence,” the defendant must be

present.). By the same token, it was unlike a court merely

announcing its decision, based on evidence received earlier when

the defendant was present. See Luu, 983 P.2d at 19 (“[D]efendant

was present at both his sentencing and resentencing hearings,

when the information relied upon by the court for its sentencing

decision was presented.”). In other words, while a defendant’s

presence may not be beneficial “at a conference or argument on a

question of law,” Gallegos, 226 P.3d at 1120, the proximate cause

issue to be resolved at the restitution hearing raised a question of

fact. See Wagner v. Planned Parenthood Fed’n of Am., Inc., 2019

COA 26, ¶ 27 (“[P]roximate cause is typically a question of

fact . . . .”) (citation omitted).

¶ 41 In sum, we conclude that the restitution award must be

vacated as plain error.

D. The Attorney General Has Not Shown that Hernandez’s Absence
Was Harmless Beyond a Reasonable Doubt

¶ 42 Having resolved the plain error question in Hernandez’s favor,

how we could in the next breath conclude that his absence was

17
 harmless beyond a reasonable doubt is at best unclear. Be that as

it may, because the Attorney General argues that the error was

harmless beyond a reasonable doubt, we address it briefly.

¶ 43 This argument misses the mark in two ways. First, under

constitutional harmless error review,

the classic formulation for applying the
harmless beyond a reasonable doubt test to
improperly admitted evidence — see, e.g.,
People v. Frye, 2014 COA 141, ¶ 15
(considering whether the improperly admitted
evidence contributed to the verdict, not
whether the same verdict would probably have
resulted regardless of the tainted evidence) —
[is not] as easy to apply where evidence has
been improperly excluded.

People v. Dunham, 2016 COA 73, ¶ 64. Second, proceeding without

Hernandez present raises a problem like that noted in Dunham —

who knows what he might have said? And third, the Attorney

General’s burden — harmless beyond a reasonable doubt — is a

“high bar.” People v. Godinez, 2018 COA 170M, ¶ 84.

¶ 44 In the end, we conclude that the restitution order must be

vacated and the case remanded. On remand, the trial court must

hold a hearing, with Hernandez present. At that hearing, the court

must first determine whether Hernandez authorized his counsel to

18
 waive his presence at the earlier hearing. If the court so concludes,

it shall reinstate the restitution award, subject to addressing any

statutory issues that Hernandez may raise, as discussed below. If

the court concludes otherwise, it shall proceed to hear both parties’

evidence concerning restitution and make findings, again subject to

any statutory issues that Hernandez may raise.

V. We Decline to Address Whether Application of Section
18-1.3-603(10) Constitutes an Ex Post Facto Violation

¶ 45 The assault occurred on November 16, 2014. By the time of

the restitution hearing in 2017, the General Assembly had amended

the restitution statute by adding subsection (10) to section

18-1.3-603. Ch. 60, sec. 6, § 18-1.3-603, 2015 Colo. Sess. Laws

147. Recall, this subsection creates a rebuttable presumption that

assistance provided by a CVCB to or for the benefit of a victim was

the “result of the defendant’s conduct.” In contrast, before this

amendment, “a compensation board’s payment did not, by itself,

establish its right to restitution. [A] trial court was still required to

determine whether the amount paid was proximately caused by the

defendant’s criminal conduct.” Henry, ¶ 20.

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¶ 46 Hernandez contends that because the new statutory

presumption reduces the prosecution’s burden in proving

restitution, applying it to him violated the ex post facto prohibition

in article I, section 10 of the United States Constitution and article

II, section 11 of the Colorado Constitution. But the parties’

disagreement on exactly what the trial court did at the end of the

restitution hearing clouds this issue. According to Hernandez, the

court applied subsection (10). According to the Attorney General,

the court appropriately exercised its discretion based on the

evidence presented.

¶ 47 Two factors confound resolving this disagreement. On the one

hand, the court did not refer to subsection (10) at all. On the other

hand, and perhaps for this reason, Hernandez did not argue ex post

facto below. Because we decline to address the merits of this issue,

we need not consider the consequences of Hernandez’s failure to

have preserved it.

¶ 48 Either way, because we have vacated the restitution order, on

remand Hernandez can raise, and if he does so the trial court must

address, the applicability of subsection (10). But instead of waiting,

should we resolve the ex post facto question now?

20
¶ 49 True, as Hernandez points out, a division of this court has

exercised its discretion and addressed an unpreserved ex post facto

challenge to “promote efficiency and judicial economy.” People v.

DeWitt, 275 P.3d 728, 730 (Colo. App. 2011). He argues that we

should do so because “[a]ll of the facts necessary for resolution of

the constitutional challenge here are undisputed and appear in the

record before us.” Wood v. Beatrice Foods Co., 813 P.2d 821, 822

(Colo. App. 1991).

¶ 50 We decline his invitation for two reasons. First, “under the

doctrine of constitutional avoidance, we address constitutional

issues only if necessary.” People v. Valdez, 2017 COA 41, ¶ 6

(collecting cases). Second, probing the depths of ex post facto law

would not necessarily promote judicial economy.

¶ 51 On remand, if the trial court finds that Hernandez authorized

counsel to waive his appearance and reinstates the restitution

award, Hernandez can then raise his ex post facto argument and

ask the court to clarify whether it relied on subsection (10) in

determining proximate cause. Likewise, if the court finds no such

authorization and holds another hearing, Hernandez can also raise

this argument. Either way, the court may moot the ex post facto

21
 issue by explaining that it did not — or does not — rely on

subsection (10).

¶ 52 Therefore, we leave the ex post facto question for another day.

VI. We also Decline to Address Whether the Rebuttable
Presumption in Section 18-1.3-603(10) Violates Due Process as
Applied, but Conclude that this Statute Does not Violate Due
Process on its Face

¶ 53 Finally, Hernandez contends that because section

18-1.3-603(10) creates a rebuttable presumption and the

information submitted to the CVCB is confidential, he “cannot

contest the CVCB’s request for restitution,” thus denying him due

process. See Heiner v. Donnan, 285 U.S. 312, 329 (1932) (“[A]

statute creating a presumption which operates to deny a fair

opportunity to rebut it violates the due process clause of the

Fourteenth Amendment.”).

¶ 54 But wait. As discussed in the previous section, we do not

know whether the trial court applied, or whether if it conducts a

new hearing it will apply, the rebuttable presumption in section

18-1.3-603(10). So, for the same reasons we decline to address

Hernandez’s ex post facto contention, should we also decline to

address his due process contention?

22
¶ 55 Answering this question is more difficult because even if the

trial court did not, and on remand does not, apply section

18-1.3-603(10), Hernandez could still be on the horns of a dilemma:

to obtain an in camera review of information held by the CVCB, he

must present “an evidentiary hypothesis.” § 24-4.1-107.5(3). Yet,

without knowing what information the CVCB has, he says that he

cannot present such a hypothesis.

¶ 56 Unsurprisingly, the Attorney General offers an easy answer —

because Hernandez did not request an in camera review, much less

raise a supposedly related due process problem in the trial court,

we should not address this issue. To the extent that Hernandez

asserts unconstitutionality as applied, the Attorney General is

correct. Hernandez’s failures below resulted in an inadequate

record. And “we cannot determine the constitutionality of an as

applied challenge without a complete record of relevant facts.”

People v. Torres, 224 P.3d 268, 273 (Colo. App. 2009) (collecting

cases).

¶ 57 To the extent that his challenge is facial, however, lack of

preservation is not a fatal flaw. See, e.g., Fuentes-Espinoza v.

People, 2017 CO 98, ¶ 19 (“We have long made clear that we will

23
 exercise our discretion to review unpreserved constitutional claims

when we believe that doing so would best serve the goals of

efficiency and judicial economy.”). And because a facial challenge

deals only with the statutory language, the challenge does not

depend on factual development in the record.

¶ 58 Exercising our discretion here might further judicial economy

by saving trial courts from having to revisit this question. And in

any event, the principle that “a facial challenge can only succeed if

the complaining party can show that the law is unconstitutional in

all its applications,” Dallman v. Ritter, 225 P.3d 610, 625 (Colo.

2010), provides a ready answer.

¶ 59 Consider the “Claimant Payment Summary” introduced during

the restitution hearing. It included the names of two payees —

Heather L. Rogers and SCL Health System — along with the

amounts paid and the dates of payments. As to Ms. Rogers, who is

not otherwise identified, because the payment could have been for

anything, forming an “evidentiary hypothesis” might be difficult. In

contrast, as to SCL, knowing that the victim had suffered a knife

wound and that SCL is a health care provider, Hernandez could

have easily formed such an hypothesis: “Defendant needs to

24
 discover the nature and dates of the medical services provided to

ascertain the nexus, if any, to the injury sustained.”

¶ 60 In the end, because the statute is not unconstitutional in all

its applications, the facial challenge fails.

VII. Conclusion

¶ 61 The restitution order is vacated, and the case is remanded for

further proceedings consistent with this opinion.

JUDGE FURMAN and JUDGE BROWN concur.

25