v. Pellegrin

     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
                                                          September 2, 2021

                               2021COA118

No. 18CA1847, People v. Pellegrin — Crimes — Posting a
Private Image for Harassment — Stalking — Harassment;
Criminal Law — Prosecution of Multiple Counts for Same Act —
Lesser Included Offenses

     In this “revenge porn” case, a division of the court of appeals

decides two novel issues. First, does the term “breast of a female,”

in section 18-7-107, C.R.S. 2020 (posting a private image for

harassment), require the image to display the whole breast or only a

portion of the breast? The division holds that an image posted for

harassment need only display a portion of the female breast.

     Second, is harassment, § 18-9-111(1)(e), C.R.S. 2020, a lesser

included offense of stalking, § 18-3-602(1)(c), C.R.S. 2020, under

section 18-1-408(5)(c), C.R.S. 2020? The division concludes that it

is not because the harassment and stalking statutes fail the single

distinction test required by section 18-1-408(5)(c).
COLORADO COURT OF APPEALS                                         2021COA118


Court of Appeals No. 18CA1487
El Paso County District Court No. 17CR4220
Honorable William B. Bain, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Trevor A. Pellegrin,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                  Division I
                         Opinion by JUDGE FREYRE
                        Yun and Graham*, JJ., concur

                        Announced September 2, 2021


Philip J. Weiser, Attorney General, Brittany L. Limes, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Emily C. Hessler, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
¶1    In this “revenge porn” case, we are asked to decide two novel

 issues. First, we are asked to interpret the term “breast of a female”

 under the posting a private image for harassment statute, § 18-7-

 107, C.R.S. 2020. Section 18-7-107(1)(a) criminalizes the posting

 or distribution of an image displaying the private intimate parts of

 an identified or identifiable person on social media or any website.

 “Private intimate parts” is defined as “external genitalia or the

 perineum or the anus or the pubes of any person or the breast of a

 female.” § 18-7-107(6)(c). The statute, however, does not define

 “breast of a female.”

¶2    We first conclude that “breast of a female” is ambiguous and

 can reasonably be interpreted to mean either the whole breast or

 simply a portion of the breast. We next conclude, consistent with

 the legislative history, that “breast of a female” means any portion

 of the female breast. Finally, we conclude that the statute is not

 unconstitutionally vague or overbroad.

¶3    We are also asked to decide whether harassment, § 18-9-

 111(1)(e), C.R.S. 2020, is a lesser included offense of stalking, § 18-

 3-602(1)(c), C.R.S. 2020, under section 18-1-408(5)(c), C.R.S. 2020.

 We conclude that the statutes fail the single distinction test set


                                    1
 forth in section 18-1-408(5)(c) because they differ in more than one

 respect and, therefore, affirm the convictions for stalking, posting a

 private image for harassment, and harassment.

                           I.    Background

¶4    Defendant, Trevor A. Pellegrin, and the victim began dating in

 2016, and they moved in together shortly thereafter. They were

 later engaged. During their relationship, the victim allowed

 Pellegrin to take private, intimate photos of her in various stages of

 undress. The victim ended the relationship in April 2017 and

 moved into an apartment with her sister.

¶5    After the breakup, the victim had limited contact with Pellegrin

 until July 2017. Although the victim was in a new relationship with

 another man, she and Pellegrin spent time together between July

 16 and July 19, 2017. Unbeknownst to Pellegrin, the victim had

 plans to see the other man on the evening of July 19.

¶6    After learning the victim was seeing someone else, Pellegrin

 repeatedly called and texted the victim from July 19 into July 20.

 He called the victim lewd names and sent nude photos he had

 taken of her during their relationship. Pellegrin threatened to post

 the nude photos online and to send them to her twelve-year-old


                                    2
 brother. Distraught by Pellegrin’s texts, the victim left work early

 on July 20 and reported the texts to the police. The police viewed

 the text messages, but they told the victim they could do nothing

 until Pellegrin posted the photos online. Pellegrin continued

 repeatedly texting the victim until July 23, 2017.

¶7    Between July 20 and July 23, 2017, multiple family members

 told the victim that her Facebook profile had been altered. She

 looked at her Facebook profile page and saw that her cover and

 profile photos had been changed to nude photos of her on a bed.

 The cover photo was of her nude buttocks, legs, and back, while her

 profile page displayed a nude photo of her lying on her stomach

 propped up by her elbows with the side of her right breast exposed.

 She recognized these as photos Pellegrin had taken while they were

 dating. Her profile biography had also been changed to say the

 victim was an “awful” person, a “cheater,” and a “slut.”

¶8    Additionally, on July 23, 2017, the victim received numerous

 text messages and photos from strangers responding to a Craigslist

 advertisement. They included messages saying unknown people

 were driving by her home and random, unknown photos of male




                                   3
  genitalia. She learned that a Craigslist ad had been posted on the

  “casual encounters” board stating,

            So my name’s [victim’s name] I live in the
            springs I’m looking for a few guys to come
            show me a good time I’ve never tried this but
            I’m willing to try it you can find me on
            Facebook just search my name [victim’s name]
            my phone number is [victim’s phone number]
            please call me with what your interested in
            and maybe we can get together tonight I stay
            off [directions to the victim’s home]. Surprise
            me [emojis] text me a nude photo of yourself to
            get mines [emoji][.]

  The ad also showed four photos of her — the two photos posted on

  Facebook, a photo of her clothed lying on a bed, and an additional

  photo showing the side of her nude breast.

¶9     A second Craigslist advertisement was posted on the “free

  stuff” board titled “Free engagement ring.” The ad included the

  same photos as the “casual encounters” ad and it said, “Text or call

  for a free good time [the victim’s phone number].”

¶ 10   The victim again contacted the police and provided a

  statement and her cell phone. The police arrested Pellegrin at his

  home. He admitted to posting “some photos that he considered

  butt shots, and that he had posted them for approximately an hour

  and then they were pulled down.”


                                     4
¶ 11   The State charged Pellegrin with one count of stalking, two

  counts of posting a private image for harassment (one for Facebook

  and one for Craigslist), and one count of harassment. At trial,

  defense counsel argued that the victim posted nude photos of

  herself and then blamed Pellegrin because she wanted to get him in

  trouble. A jury convicted Pellegrin of stalking, posting a private

  image for harassment (Craigslist), and harassment, but it acquitted

  him of the other charge of posting a private image for harassment

  (Facebook).

¶ 12   The court sentenced Pellegrin to three years of supervised

  probation and ninety days in jail. It also made a domestic violence

  finding and ordered Pellegrin to participate in a domestic violence

  evaluation and comply with its recommendations.

                              II.   Jury Poll

¶ 13   Pellegrin first contends that the trial court abused its

  discretion by not granting a mistrial after polling revealed that the

  verdicts were not unanimous. He asserts that the manner in which

  the court conducted the jury poll was coercive. We disagree.




                                     5
                          A.   Additional Facts

¶ 14   After deliberations, the jury returned guilty verdicts on all

  counts. The trial court polled the jury at defense counsel’s request,

  asking each juror “if these are indeed your verdicts.” Juror 8

  responded, “No”; and when the court asked, “These are not your

  verdicts,” Juror 8 said, “Nope.” The court ceased polling and

  provided the following instruction:

            Well, members of the jury, I’m going to send
            you back for continuing deliberations. It is a
            requirement of the law that all verdicts be
            unanimous. And it sounds like . . . we have
            not reached unanimity. So it’s about 4:35. I’ll
            have you head back into the jury deliberation
            room. Again, I plan to let you go at 4:50. So
            we’ll come back and get you at 4:50. All right.

¶ 15   Defense counsel moved for a mistrial. He was concerned

  about potential juror misconduct or the “jury bullying with Juror 8”

  to return a guilty verdict. The prosecutor argued that these

  concerns were “purely speculative.” In the alternative, defense

  counsel asked the trial court to individually question Juror 8 about

  the nonunanimous verdict. The court denied the motion for a

  mistrial and denied the request to question Juror 8. It reasoned

  that there was



                                    6
             no evidence on which to base a conclusion that
             the other jurors are back there right now
             improperly coercing Juror Number 8 to reach a
             guilty verdict. As I mentioned earlier when I
             asked Number 8 if these were her verdicts, she
             very assertively . . . said no, these are not her
             verdicts. So at least by appearances, she
             [does] not present as somebody [who] was
             meek and to be bullied into reaching a
             decision. I’ll add that she said these are not
             her verdicts almost with a tone of defiance.

  And the court found it lacked the authority to question Juror 8

  about deliberations under CRE 606(b).

¶ 16   Later, and immediately following the court’s evening recess

  instruction, Juror 8 stated, “[T]hey cleared it up for me what’s I was

  confused about, so now I agree.” The prosecutor asked the court to

  allow the jury to deliberate a “bit longer . . . because it sounds like

  they’re close.” The court declined the request and again instructed

  the jury to return the next day.

¶ 17   The following day, the jury deliberated two more hours before

  returning new verdict forms finding Pellegrin guilty of stalking,

  posting a private image for harassment (Craigslist), and

  harassment, and acquitting him of posting a private image for

  harassment (Facebook). Subsequent polling confirmed a

  unanimous verdict.


                                     7
              B.    Standard of Review and Applicable Law

¶ 18   We review a trial court’s denial of a motion for a mistrial for an

  abuse of discretion. People v. Johnson, 2017 COA 11, ¶ 39. A trial

  court abuses its discretion when its decision is manifestly arbitrary,

  unreasonable, or unfair, or when it misapplies the law. Id. Under

  this standard, the test is not “whether we would have reached a

  different result but, rather, whether the trial court’s decision fell

  within a range of reasonable options.” People v. Salazar, 2012 CO

  20, ¶ 32 (Bender, C.J., dissenting) (quoting E-470 Pub. Highway

  Auth. v. Revenig, 140 P.3d 227, 230-31 (Colo. App. 2006)).

¶ 19   A trial court is responsible for ensuring that a conviction is the

  result of a unanimous verdict. People v. Rivera, 56 P.3d 1155,

  1160-61 (Colo. App. 2002); see also § 16-10-108, C.R.S. 2020;

  Crim. P. 23(a)(8), 31(a)(3). “Unanimity requires a deliberative

  process that expresses the conscientious conviction of each

  individual juror.” People v. Phillips, 91 P.3d 476, 479 (Colo. App.

  2004).

¶ 20   Under Crim. P. 31(d),

             [w]hen a verdict is returned and before it is
             recorded, the jury shall be polled at the
             request of any party or upon the court’s own


                                      8
             motion. If upon the poll there is not
             unanimous concurrence, the jury may be
             directed to retire for further deliberations or
             may be discharged.

¶ 21   The right to a jury poll, however, is not absolute. Phillips, 91

  P.3d at 479. The manner of conducting a jury poll is within the

  trial court’s discretion. Id.

                                  C.   Analysis

¶ 22   Relying on several factors considered in Harris v. United

  States, 622 A.2d 697, 705 (D.C. 1993), Pellegrin argues that after

  Juror 8 identified herself as a dissenting juror, the court should

  have inquired into whether the jury was deadlocked and provided

  further instructions to alleviate any coercive effect. However, we

  decline to adopt the Harris factors as the exclusive means of

  analyzing this issue and, instead, apply a general abuse of

  discretion standard consistent with our case law and the jury poll

  rule. See People v. Barnard, 12 P.3d 290, 295 (Colo. App. 2000)

  (“We review the court’s consideration of a juror’s doubt as to his or

  her verdict under an abuse of discretion standard.”); see also

  Phillips, 91 P.3d at 479. Under this standard, we conclude, for

  three reasons, that the trial court acted within its discretion by



                                       9
  declining to declare a mistrial after instructing the jury to continue

  deliberations.

¶ 23   First, the trial court’s instruction to continue deliberations

  was not coercive. The court did not set a deadline to return

  verdicts. Nor did it tell the jury that unless its deliberations

  resulted in a unanimous verdict, a mistrial would be declared. Cf.

  Allen v. People, 660 P.2d 896, 898 (Colo. 1983) (“[T]he court’s

  arbitrary fifteen minute deadline [to return a verdict or a have a

  mistrial declared] may have prevented the jury from reaching a well-

  considered verdict.”). It told the jury to continue deliberations until

  4:50 p.m., the time at which the court had previously instructed the

  jury it would be excused. And, when the jury returned, the court

  declined to take a verdict, and instead told the jurors to “take a

  break from the case” for the evening and resume deliberations the

  following morning. Indeed, the jury deliberated for an additional

  two hours the following morning and returned a different verdict.

¶ 24   Second, though Pellegrin relies on People v. Black, 2020 COA

  136, for the proposition that the trial court should have inquired

  into whether the jury was deadlocked, that reliance is misplaced.

  In Black, a deliberating juror asked the court, “What happens if we


                                     10
  can’t come to a unanimous decision on only one charge?” Id. at ¶

  8. The court instructed the jury to continue deliberations without

  first determining whether it was deadlocked and, if so, how

  intractably. Id. The division found error in the trial court’s failure

  to inquire about whether the jury was deadlocked and thus, it could

  not determine whether the court’s instruction to continue

  deliberating was coercive. Id. at ¶¶ 24, 31.

¶ 25   In contrast, the court here learned only that the verdict was

  not unanimous, not that the jury was deadlocked. Cf. People v.

  Martinez, 987 P.2d 884, 888 (Colo. App. 1999) (holding that if a

  juror gives an equivocal response to a jury poll, a trial court may

  make additional inquiries to determine if the verdict is unanimous).

  Without some indication that the jury could not reach a unanimous

  verdict, any extensive questioning about the deliberative process or

  about why the verdict was not unanimous would have been

  improper. Gibbons v. People, 2014 CO 67, ¶ 32 (“Absent some

  affirmative indication from the jury that it harbors this concern, the

  trial court should not interfere with the jury’s deliberative

  process.”); see also People v. Juarez, 271 P.3d 537, 544 (Colo. App.

  2011); Martinez, 987 P.2d at 888.


                                     11
¶ 26   Third, the trial court did not abuse its discretion by finding,

  based on her response to the poll and her demeanor, that Juror 8

  was unlikely to be bullied into a guilty verdict. See Barnard, 12

  P.3d at 295. And Pellegrin’s counsel presented no evidence, beyond

  mere speculation, that the remaining jurors bullied Juror 8 into

  finding him guilty. Indeed, the jury returned a different and more

  favorable (to Pellegrin) verdict after further deliberations.

¶ 27   Accordingly, we discern no error.

                III.    Constitutionality of Stalking Statute

¶ 28   Pellegrin next contends that the stalking statute, § 18-3-602,

  is unconstitutional on its face because the statute is overbroad.

  Because we are bound by the supreme court’s contrary holding in

  People v. Cross, 127 P.3d 71 (Colo. 2006), we reject his assertion

  and conclude the statute is facially constitutional.

              A.       Standard of Review and Applicable Law

¶ 29   We review the constitutionality of a statute de novo, but

  presume that statute is constitutional. People v. Folsom, 2017 COA

  146M, ¶ 70.

¶ 30   Section 18-3-602(1)(c) provides as follows:




                                      12
            (1) A person commits stalking if directly, or
            indirectly through another person, the person
            knowingly:

            ....

            (c) Repeatedly follows, approaches, contacts,
            places under surveillance, or makes any form
            of communication with another person, a
            member of that person’s immediate family, or
            someone with whom that person has or has
            had a continuing relationship in a manner that
            would cause a reasonable person to suffer
            serious emotional distress and does cause that
            person, a member of that person’s immediate
            family, or someone with whom that person has
            or has had a continuing relationship to suffer
            serious emotional distress. For purposes of
            this paragraph (c), a victim need not show that
            he or she received professional treatment or
            counseling to show that he or she suffered
            serious emotional distress.

¶ 31   In Cross, our supreme court concluded that a substantially

  similar stalking statute is not unconstitutionally overbroad. The

  court noted that the statute criminalizes only conduct that involves

  a “severe intrusion upon the victim’s personal privacy and

  autonomy, with an immediate and long-lasting impact on quality of

  life as well as risks to security and safety of the victim and persons

  close to the victim.” Cross, 127 P.3d at 79 (quoting former § 18-9-

  111(4)(a), C.R.S. 2005, repealed, amended, and relocated, §§ 18-3-



                                    13
  601 to -602, C.R.S. 2011 (effective Aug. 11, 2010)). It held that the

  sweep of the statute does not include a substantial amount of

  constitutionally protected speech because the statute criminalizes

  only acts of a particular nature — acts involving inappropriate

  intensity, persistence, and possessiveness, and severe intrusions on

  a victim’s personal privacy and autonomy — and that had a

  particular effect — objectively and subjectively causing serious

  emotional distress. Id.

                              B.   Analysis

¶ 32   We reject Pellegrin’s contention that the stalking statute is

  unconstitutionally overbroad and reject his reliance on the Illinois

  Supreme Court’s decision in People v. Relerford, 104 N.E.3d 341 (Ill.

  2017). In doing so, we follow our supreme court’s desicion in Cross,

  127 P.3d at 78-79, as we must. People v. Richardson, 181 P.3d

  340, 343-45 (Colo. App. 2007); see also People v. Smith, 183 P.3d

  726, 729 (Colo. App. 2008) (rejecting defendant’s argument that

  supreme court precedent was wrongly decided because we are

  bound by Colorado Supreme Court decisions).

¶ 33   We also reject Pellegrin’s contention that Reed v. Town of

  Gilbert, 576 U.S. 155 (2015), compels a different result. In Reed,


                                    14
  the Supreme Court held that the Town of Gilbert’s exemption of

  categories of signs including “ideological” and “political” signs from

  its prohibition on the display of outdoor signs without a permit was

  unconstitutional. Id. at 159-60. The Court reasoned that content-

  based laws — those that target speech based on the “topic

  discussed or the idea or message expressed” — are presumptively

  unconstitutional. Id. at 163. Content-based laws include laws that

  appear facially neutral but cannot be justified without reference to

  the content of the regulated speech or were adopted because of a

  disagreement with the message that the speech conveys. Id. at

  163-64. The Court went on to conclude that the laws in that case

  imposed content-based restrictions because the laws applied more

  stringent restrictions on various types of signs, which compelled an

  analysis of the content of the signs. Id. at 159, 171-72.

¶ 34   Colorado’s stalking statute, on the other hand, targets

  repeated conduct that would “cause a reasonable person to suffer

  serious emotional distress.” § 18-3-602(1)(c). Thus, whether

  speech is permitted under the stalking statute is not based on the

  content of that speech but, rather, on whether that speech is part of

  a series of conduct in which a defendant “[r]epeatedly follows,


                                    15
  approaches, contacts, places under surveillance, or makes any form

  of communication with another person . . . .” Id. Indeed, “the

  statute does not criminalize innocuous behavior,” but criminalizes a

  series of conduct without a significant impact on constitutionally

  protected speech. Cross, 127 P.3d at 78-79; see also Dugan v.

  State, 2019 WY 112, ¶ 22, 451 P.3d 731, 739 (The fact that the

  criminal stalking statute “identifies ‘lewd or obscene statements’ in

  the definition of harass does not make it a content-based regulation

  on speech rather than a regulation of conduct without a significant

  impact on protected speech.”).

                    IV.   Sufficiency of the Evidence

¶ 35   Pellegrin next contends that the photos posted in the

  Craigslist ads insufficiently established the element of “private

  intimate parts” required for his conviction of posting a private image

  for harassment. He asserts that the photo showing the side of the

  victim’s exposed breast is not a photo depicting the “breast of a

  female” under the definition of “private intimate parts” because the

  “entire breast” was not displayed. See § 18-7-107(1)(a), (6)(c).

  Alternatively, he argues that the statute is vague and overbroad if




                                    16
  “breast of a female” is interpreted to include less than the entire

  breast. We address each argument in turn.

              A.   Standard of Review and Applicable Law

¶ 36   In assessing the sufficiency of the evidence to support a

  conviction, we review the record de novo to determine whether the

  evidence, viewed in the light most favorable to the prosecution, was

  substantial and sufficient to support a conclusion by a reasonable

  mind that the defendant was guilty beyond a reasonable doubt.

  People v. Perez, 2016 CO 12, ¶ 8.

¶ 37   We also review questions of statutory interpretation de novo.

  Id. When construing a statute, our primary task is to ascertain and

  give effect to the General Assembly’s intent. Turbyne v. People, 151

  P.3d 563, 567 (Colo. 2007). We begin with the statute’s plain

  language. People v. Huckabay, 2020 CO 42, ¶ 13. “If the language

  is clear and unambiguous on its face, we simply apply it as written

  and will not resort to other interpretive aids.” Id. We “respect the

  legislature’s choice of language,” and we “do not add words to the

  statute or subtract words from it.” Turbyne, 151 P.3d at 567-68.

¶ 38   If, however, the language is susceptible of more than one

  reasonable meaning, it is ambiguous. Marquez v. People, 2013 CO


                                      17
  58, ¶ 7. “In that event, a number of intrinsic and extrinsic aids to

  construction have [been] developed to assist in resolving the

  ambiguity and determining which of the various reasonable

  interpretations is the appropriate one.” Id.

¶ 39   As relevant here, a person who is eighteen years or older

  commits the offense of posting a private image for harassment if

            he or she posts or distributes through the use
            of social media or any website any photograph,
            video, or other image displaying the private
            intimate parts of an identified or identifiable
            person eighteen years of age or older or an
            image displaying sexual acts of an identified or
            identifiable person:

            (I) With the intent to harass, intimidate, or
            coerce the depicted person;

            (II)(A) Without the depicted person’s consent;
            or

            (B) When the actor knew or should have
            known that the depicted person had a
            reasonable expectation that the image would
            remain private; and

            (III) The conduct results in serious emotional
            distress of the depicted person.

  § 18-7-107(1)(a). The term “‘[p]rivate intimate parts’ means external

  genitalia or the perineum or the anus or the pubes of any person or

  the breast of a female.” § 18-7-107(6)(c) (emphasis added).


                                    18
                         B.   Breast of a Female

¶ 40   The General Assembly did not define “breast of a female” when

  defining “private intimate parts.” Pellegrin argues that the term

  “breast of a female” is unambiguous and plainly means the “entire

  breast.” He reasons that because the photo here depicted only the

  right side of the victim’s exposed breast, not her entire breast or the

  nipple, insufficient evidence supports the jury’s verdict. We are not

  convinced and conclude instead that the term “breast of a female” is

  susceptible of more than one reasonable interpretation (i.e., the

  entire female breast, any portion of the female breast from the top

  of the areola down, the female nipple, etc.) and is therefore

  ambiguous as applied to this case. Accordingly, we turn to

  interpretative aids to resolve the ambiguity.

¶ 41   In People v. Gagnon, 997 P.2d 1278 (Colo. App. 1999), a

  division of this court considered whether a photo depicting a

  portion of a child’s breast was sufficient to support a conviction of

  sexual exploitation of a child, § 18-6-403, C.R.S. 2020. We find the

  Gagnon division’s analysis of the statutory definition of “erotic

  nudity” analogous here.




                                    19
¶ 42   A person commits sexual exploitation of a child by knowingly

  causing a child to engage in the making of any “sexually exploitative

  material.” § 18-6-403(3)(a). “Sexually exploitative material”

  includes “erotic nudity.” § 18-6-403(2)(e), (j). Similar to the

  inclusion of “breast of a female” in the definition of “private intimate

  parts” under section 18-7-107(6)(c), the definition of “erotic nudity”

  includes the display of “the human breasts, or the undeveloped or

  developing breast area of the human child.” § 18-6-403(2)(d). The

  division rejected the defendant’s contention that the statute did not

  apply to his conduct because the photos did not display the child’s

  whole breast or include the nipple. Gagnon, 997 P.2d at 1281. It

  reasoned that this argument ignored the requirement that “erotic

  nudity” — a display or picture of the human breasts or undeveloped

  or developing breast area of a child — “must be for the purpose of

  real or simulated overt sexual gratification or stimulation of one or

  more of the persons involved.” Id. at 1281-82. In doing so, the

  defendant had not considered the harm the statute was intended to

  address. Id. at 1282.

¶ 43   Similarly, Pellegrin’s argument emphasizes the term “breast of

  a female” in the definition of “private intimate parts” to the


                                     20
  exclusion of the statute’s purpose and the harm it was intended to

  address.

¶ 44   The General Assembly sought to protect victims of “revenge

  porn” by enacting the posting of a private image for harassment

  statute. H.B. 14-1378, 69th Gen. Assemb., 2d Reg. Sess. (Colo.

  2014). Testimony leading to the statute’s enactment focused on the

  harm caused to victims by posting images displaying “private

  intimate parts” on social media or any website — including job loss,

  humiliation with family and friends, unwanted sexual requests and

  comments, stalking, threats by intimate partners and strangers,

  and even suicide — and the inadequate protections for them. See

  Hearings on H.B. 14-1378 before the H. Judiciary Comm., 69th

  Gen. Assemb., 2d Reg. Sess. (Apr. 24, 2014); Hearings on H.B. 14-

  1378 before the S. Judiciary Comm., 69th Gen. Assemb., 2d Reg.

  Sess. (Apr. 30, 2014); 2d Reading on H.B. 14-1378 before the S.,

  69th Gen. Assemb., 2d Reg. Sess. (May 2, 2014).

¶ 45   In 2018, the statute was amended in multiple ways, most

  notably to include the posting of “an image displaying sexual acts of

  an identified or identifiable person.” Ch. 192, sec. 1, § 18-7-107,

  2018 Colo. Sess. Laws 1276-77. “Displaying sexual acts” is defined


                                    21
  as “any display of sexual acts even if the private intimate parts are

  not visible in the image.” Id. (emphasis added). This amendment

  closed a loophole that had allowed persons to avoid liability by

  posting images of sexual acts that did not depict private intimate

  parts. See Hearings on H.B. 18-1264 before the H. Judiciary

  Comm., 71st Gen. Assemb., 2d Reg. Sess. (Mar. 20, 2018). The

  testimony supporting this amendment focused on the trauma and

  psychological harm victims suffered even when their private parts

  were not shown in the image displaying a sexual act and described

  the need to strengthen safeguards for victims. Id.

¶ 46   Pellegrin does not argue that a female victim somehow suffers

  less harm when only a portion of her breast is exposed, as opposed

  to the entire breast. Instead, he argues that the limited discussion

  about “private intimate parts” during the legislative hearings favors

  his argument that “breast of a female” is limited to the display of

  the entire breast. And he contends that if the General Assembly

  had intended to include any portion of the female breast within the

  definition, it could have done so. See, e.g., § 18-7-501(7), C.R.S.

  2020 (“‘Sexually explicit nudity’ means . . . the showing of the

  female breast with less than a fully opaque covering of any portion


                                    22
  thereof below the top of the areola . . . .”); § 13-21-1402(7)(a), C.R.S.

  2020 (“‘Intimate image’ means a photograph, film, video recording,

  or other similar medium that shows . . . female postpubescent

  nipple of a depicted individual . . . .”).

¶ 47   In our view, however, the General Assembly did not

  communicate a clear intent to limit the term “breast of a female” to

  the entire female breast. Rather, the legislative history reveals a

  clear purpose to protect victims from the harm caused by the

  posting of private intimate parts images online and to strengthen

  protections from those harms. It does not follow that the harm is

  avoided or even lessened by posting a photo of only a portion of an

  identifiable person’s exposed breast. If the General Assembly had

  intended to limit the term “breast of a female” to the entire breast, it

  could have done so, and we may not add words to or subtract words

  from the statute. See Turbyne, 151 P.3d at 567.

¶ 48   Construing the statute as a whole, we conclude that the term

  “breast of a female” includes any display of an identifiable female’s

  exposed breast. To conclude otherwise would frustrate the statute’s

  purpose. See AviComm, Inc. v. Colo. Pub. Utils. Comm’n, 955 P.2d

  1023, 1031 (Colo. 1998) (“[T]he intention of the legislature will


                                       23
  prevail over a literal interpretation of the statute that leads to an

  absurd result.”); State v. Nieto, 993 P.2d 493, 501 (Colo. 2000) (“In

  any event, the ultimate goal is to determine and give effect to the

  intent of the General Assembly; in doing so, a reviewing court must

  follow the statutory construction that best effectuates the intent of

  the General Assembly and the purposes of the legislative scheme.”).

                          C.    Constitutionality

¶ 49   Pellegrin next contends that interpreting “breast of a female” to

  include any portion of the breast renders the statute

  unconstitutionally vague and overbroad on its face. We disagree.

¶ 50   Under the posting a private image for harassment statute,

  § 18-7-107(1)(a), the prosecution must prove beyond a reasonable

  doubt that the defendant intended to harass, intimidate, or coerce

  the victim when the defendant posted or distributed an image

  displaying the identifiable victim’s private intimate parts online

  without the victim’s consent, or if the defendant knew or should

  have known the victim had a reasonable expectation that the image

  would remain private. And the victim must suffer serious emotional

  distress. Id.




                                     24
¶ 51   The vagueness doctrine is rooted in principles of due process.

  People v. Shell, 148 P.3d 162, 172 (Colo. 2006). Due process

  requires that a law give fair warning of the prohibited conduct. Id.

  A law offends due process if “it does not provide fair warning of the

  conduct prohibited or if its standards are so ill-defined as to create

  a danger of arbitrary and capricious enforcement.” Id. (quoting

  Parrish v. Lamm, 758 P.2d 1356, 1367 (Colo. 1988)). Thus, a

  statute “is not void for vagueness if it fairly describes the conduct

  forbidden, and persons of common intelligence can readily

  understand its meaning and application.” Parrish, 758 P.2d at

  1367. To prevail on a facial challenge for vagueness, the challenger

  must show that the statute is incomprehensible in all its

  applications. People v. McCoy, 2015 COA 76M, ¶ 65, aff’d on other

  grounds, 2019 CO 44.1

¶ 52   Pellegrin argues that interpreting “breast of a female” to mean

  any portion of the female breast is unconstitutionally vague

  because it fails to give notice of how much of the breast must be



  1 Whether this principle remains valid “in all its applications” is
  questionable. See People v. Graves, 2016 CO 15, ¶ 25 n. 8; People
  v. Plemmons, 2021 COA 10, ¶¶ 18-19.

                                    25
  depicted and what conduct the statute criminalizes. However,

  Pellegrin focuses on one portion of the statute without considering

  the other elements of the offense.

¶ 53   In the context of the statute as a whole, our interpretation of

  “breast of a female” is specific enough to provide a person of

  common intelligence with notice that posting an image of any

  portion of the exposed female breast online is prohibited if such

  person posts the image with the requisite intent and without the

  victim’s consent, or with knowledge that the victim had a

  reasonable expectation that the image would remain private. Thus,

  Pellegrin has not established that the statute is incomprehensible in

  all of its applications. See Shell, 148 P.3d at 172.

¶ 54   Regarding overbreadth, a statute is not unconstitutionally

  overbroad simply because it could possibly be applied in some

  unconstitutional manner. People v. Baer, 973 P.2d 1225, 1231

  (Colo. 1999). “A statute is overbroad if it sweeps so

  comprehensively as to include within its proscriptions a substantial

  amount of constitutionally protected speech.” Id.

¶ 55   Pellegrin does not argue that the statute sweeps so

  comprehensively as to include a substantial amount of


                                    26
  constitutionally protected speech. Indeed, the posting a private

  image for harassment statute requires proof of (1) an identifiable

  victim; (2) intent; (3) lack of consent (or knowledge that the victim

  had a reasonable expectation that the image would remain private);

  and (4) serious emotional distress of the victim. These elements, in

  addition to displaying the private intimate parts, narrow the

  statute’s potential reach so as not to criminalize harmless behavior.

  See Cross, 127 P.3d at 78-79.

¶ 56   In this case, without the victim’s consent, Pellegrin posted on

  Craigslist a private photo showing the side of the victim’s exposed

  breast. The Craigslist ad invited strangers to contact the victim for

  a “good time” and included the victim’s name, photos showing her

  face, her phone number, and directions to her home. The victim

  then received numerous text messages requesting sexual

  encounters and photos of male genitalia. As a result, the victim

  contacted the police, moved from her home, and quit her job. She

  testified that seeing private photos of herself online made her feel

  “violated” and “humiliated.” This is precisely the type of harm

  section 18-7-107(1)(a) was intended to address.




                                    27
¶ 57   Viewing this evidence in the light most favorable to the

  prosecution, we conclude there was sufficient evidence to convict

  Pellegrin of posting a private image for harassment on Craigslist.

  See People v. Harrison, 2020 CO 57, ¶ 32 (“Under Bennett’s

  substantial evidence test, we inquire whether the evidence, ‘viewed

  as a whole and in the light most favorable to the prosecution, is

  substantial and sufficient to support a conclusion by a reasonable

  mind that the defendant is guilty of the charge beyond a reasonable

  doubt.’” (quoting People v. Bennett, 183 Colo. 125, 130, 515 P.2d

  466, 469 (1973))).

¶ 58   Accordingly, we discern no error.

                               V.   Merger

¶ 59   Pellegrin next contends that harassment, § 18-9-111(1)(e), is a

  lesser included offense of stalking, § 18-3-602(1)(c), under section

  18-1-408(5)(c) and, thus, the convictions must merge. For the

  reasons explained below, we disagree.

              A.   Standard of Review and Applicable Law

¶ 60   “Whether an offense is a lesser included offense of another

  requires statutory interpretation and therefore poses a legal

  question that we review de novo.” People v. Zweygardt, 2012 COA


                                    28
  119, ¶ 10. As well, we review de novo double jeopardy contentions.

  People v. Frye, 2014 COA 141, ¶ 30. But because this issue was

  not preserved, we review it for plain error. Reyna-Abarca v. People,

  2017 CO 15, ¶ 47.

¶ 61   As set forth above in Part IV, we review questions of statutory

  interpretation de novo, and when construing a statute, our primary

  task is to ascertain and give effect to the General Assembly’s intent.

  See Turbyne, 151 P.3d at 567.

¶ 62   The Double Jeopardy Clauses of the United States and

  Colorado Constitutions protect criminal defendants from multiple

  punishments for the same offense. U.S. Const. amends. V, XIV;

  Colo. Const. art. II, § 18; see also Reyna-Abarca, ¶ 49. Double

  jeopardy principles preclude the imposition of multiple

  punishments for the same offense unless the legislature has

  specifically authorized multiple punishments. Reyna-Abarca, ¶ 50.

¶ 63   Under section 18-1-408(1)(a), a court may not enter

  convictions for two offenses arising from the same conduct if “[o]ne

  offense is included in the other.” An offense is included in another,

  under section 18-1-408(1)(a), if “the elements of the lesser offense

  are a subset of the elements of the greater offense, such that the


                                    29
  lesser contains only elements that are also included in the elements

  of the greater offense.” Reyna-Abarca, ¶ 64.

¶ 64   Section 18-1-408(5) defines when an offense is included in a

  charged offense, and that definition is “substantially broader” that

  that in section 18-1-408(5)(a). People v. Raymer, 662 P.2d 1066,

  1069 (Colo. 1983). Under section 18-1-408(5)(c), an offense is an

  included one if “[i]t differs from the offense charged only in the

  respect that a less serious injury or risk of injury to the same

  person, property, or public interest or a lesser kind of culpability

  suffices to establish its commission.” (Emphasis added.) In other

  words, a lesser offense is included in the greater offense “if proof of

  the facts required to prove the statutory elements of the greater

  offense necessarily establishes all of the elements of the lesser

  offense except that the offenses require proof of a different mens rea

  element or degree of injury or risk of injury.” People v. Leske, 957

  P.2d 1030, 1040 (Colo. 1998) (emphasis added).

¶ 65   As relevant here, a person commits harassment if,

             with intent to harass, annoy, or alarm another
             person, he or she:

             ....



                                     30
            (e) Directly or indirectly initiates
            communication with a person or directs
            language toward another person, anonymously
            or otherwise, by telephone, telephone network,
            data network, text message, instant message,
            computer, computer network, computer
            system, or other interactive electronic medium
            in a manner intended to harass or threaten
            bodily injury or property damage, or makes
            any comment, request, suggestion, or proposal
            by telephone, computer, computer network,
            computer system, or other interactive
            electronic medium that is obscene.

  § 18-9-111(1)(e).

¶ 66   A person commits stalking if

            directly, or indirectly through another person,
            the person knowingly:

            ....

            (c) Repeatedly follows, approaches, contacts,
            places under surveillance, or makes any form
            of communication with another person, a
            member of that person’s immediate family, or
            someone with whom that person has or has
            had a continuing relationship in a manner that
            would cause a reasonable person to suffer
            serious emotional distress and does cause that
            person, a member of that person’s immediate
            family, or someone with whom that person has
            or has had a continuing relationship to suffer
            serious emotional distress.

  § 18-3-602(1)(c).




                                   31
                              B.    Analysis

¶ 67   Pellegrin does not argue that harassment is a lesser included

  offense of stalking under the strict elements test set forth in section

  18-1-408(5)(a). Instead, he argues that harassment is a lesser

  included offense under the broader test in section 18-1-408(5)(c).

¶ 68   The parties agree that harassment differs from stalking both in

  the degree of injury or risk of injury and the kind of culpability

  required. Indeed, harassment requires proof of intentional conduct

  while stalking requires proof of knowing conduct. As well,

  harassment is accomplished “in a manner intended to harass or

  threaten bodily injury,” § 18-9-111(1)(e), while stalking is

  accomplished “in a manner that would cause a reasonable person

  to suffer serious emotional distress and does cause . . . serious

  emotional distress,” § 18-3-602(1)(c). But the parties disagree

  about the meaning of the word “or” separating the mens rea

  language from the risk of harm language in section 18-1-408(5)(c).

  Pellegrin contends that “or” is not exclusive and means “and/or.”

  See In re Estate of Dodge, 685 P.2d 260, 265-66 (Colo. App. 1984)

  (explaining the difference between the “inclusive ‘or,’” “meaning A or

  B, or both,” and the “exclusive ‘or,’” “meaning A or B, but not both”).


                                    32
  The People, on the other hand, argue that “or” is limited by the

  word only and that only one distinction between the two offenses

  may exist for them to merge — either the mens rea or the risk of

  harm. They reason that because the statutes reflect two

  distinctions, they do not satisfy the single distinction test and

  cannot merge under section 18-1-408(5)(c). We agree with the

  People and conclude, for two reasons, that the word “or” in

  subsection (5)(c) is exclusive and that an offense is a lesser included

  one only where the lesser offense differs in the degree of injury or

  risk of injury or in the kind of culpability, but not both.

¶ 69   First, “when the word ‘or’ is used in a statute, it is presumed

  to be used in the disjunctive sense, unless legislative intent is

  clearly to the contrary.” Armintrout v. People, 864 P.2d 576, 581

  (Colo. 1993); see also People v. Valenzuela, 216 P.3d 588, 592 (Colo.

  2009) (“Use of the word ‘or’ is ordinarily ‘assumed to demarcate

  different categories.’” (quoting Garcia v. United States, 469 U.S. 70,

  73 (1984))); 1A Norman J. Singer & Shambie Singer, Sutherland

  Statutory Construction § 21:14, Westlaw (7th ed. database updated

  Nov. 2020) (“The literal meaning of [‘and’ and ‘or’] should be

  followed unless it renders the statute inoperable or the meaning


                                     33
  becomes questionable.”). A reviewing court may substitute the

  word “or” for “and” to avoid an absurd or unreasonable result. See

  Smith v. Colo. Dep’t of Hum. Servs., 916 P.2d 1199, 1201 (Colo. App.

  1996).

¶ 70   The word “only” is restrictive and is synonymous with

  exclusively. Webster’s Third New International Dictionary 1577

  (2002); see also Pauma Band of Luiseno Mission Indians of Pauma

  & Yuima Rsrv. v. California, 813 F.3d 1155, 1175 (9th Cir. 2015)

  (“The use of the word ‘only’ is routinely defined to mean alone,

  solely or exclusively.”). Here, the General Assembly’s inclusion of

  the word “only” before the disjunctive “or” evidences its intent to

  limit “or” to a single distinction between the offenses, rather than

  the “and/or” meaning Pellegrin suggests. See 3 Shambie Singer,

  Sutherland Statutory Construction § 57:8, Westlaw (8th ed. database

  updated Nov. 2020) (“Legislatures may signal such an intent by

  using the word “only,” or by including a limiting clause after an

  affirmative direction.”) (footnote omitted); Bryan A. Garner, Garner’s

  Dictionary of Legal Usage 635 (3d ed. 2011) (the best placement for

  the word “only” is “before the words intended to be limited”); see

  also Stanley v. Cottrell, Inc., 784 F.3d 454, 466 (8th Cir. 2015)


                                    34
  (finding the use of limiting words or phrases helpful in a disjunctive

  reading of the word “or”); People in Interest of J.O., 2015 COA 119,

  ¶ 14 (“[T]he General Assembly’s use of ‘or’ is limited by the word

  ‘either.’”), overruled on other grounds by People in Interest of T.B.,

  2021 CO 59.

¶ 71   Second, our supreme court’s holdings in Leske and Raymer

  further counsel that the word “or” cannot be substituted with

  “and/or.” In Raymer, the court held that aggravated robbery is a

  lesser included offense of felony murder (based on robbery) by

  concluding, under 18-1-408(5)(c), that the only difference between

  aggravated robbery and felony murder is the victim’s death (risk of

  harm). Raymer, 662 P.2d at 1070 (“Where . . . the robbery victim is

  actually killed during the course of a robbery, then the crime of

  aggravated robbery differs from the charge of felony murder only in

  the sense contemplated by section 18-1-408(5)(c), namely, that an

  injury less serious than death suffices to establish its commission.”)

  (emphasis added).

¶ 72   Similarly, in Leske, the supreme court held that sexual assault

  on a child is not a lesser included offense of sexual assault on a

  child by one in a position of trust, under 18-1-408(5)(c). Leske, 957


                                     35
  P.2d at 1041. It noted that the two offenses do not differ in

  culpability or risk of injury but, instead, differed in several other

  respects. Id. It concluded that “[b]ecause the offenses differ in

  ways other than those contemplated by subsection (5)(c), that

  subsection is inapplicable.” Id.; see also People v. Chapman, 192

  Colo. 322, 325, 557 P.2d 1211, 1213-14 (1977) (holding that “one

  who commits reckless driving necessarily has been guilty of careless

  driving” because the offenses differ only in the degree of negligence);

  Gatrell v. Kurtz, 207 P.3d 916, 918 (Colo. App. 2009) (“[T]he

  commas, which separate several distinct actions, the last of which

  is preceded by the disjunctive ‘or,’ demarcate different categories.”).

¶ 73   As well, most of the divisions of this court that have applied

  subsection (5)(c) have applied a single distinction test. See People v.

  Oliver, 2020 COA 97, ¶ 63 (holding that second degree possession of

  contraband is a lesser included offense of first degree possession of

  contraband under section 18-1-408(5)(c) because the offenses differ

  “only as to the severity or risk of injury posed by the type of

  contraband each proscribe”) (emphasis added); People v. Hoggard,

  2017 COA 88, ¶¶ 32-33 (concluding second degree forgery is a

  lesser included offense of felony forgery because the “offenses differ


                                     36
  only with the respect to the type of document involved in the crime”)

  (emphasis added), aff’d on other grounds, 2020 CO 54; People v.

  Duran, 272 P.3d 1084, 1096 (Colo. App. 2011) (“[R]eckless

  manslaughter is a lesser included offense of first degree extreme

  indifference murder because the offenses differ only as to degree of

  culpability.”) (emphasis added); People v. Horton, 683 P.2d 358, 361

  (Colo. App. 1984) (holding that, where a first degree sexual assault

  victim is killed during the assault, first degree sexual assault is a

  lesser included offense of felony murder under section 18-1-

  408(5)(c) because the offenses differ only in the degree of injury);

  see also People v. Palmer, 944 P.2d 634, 639 (Colo. App. 1997)

  (“[B]ecause the offenses differ with respect to both the culpability

  required and the injury or risk of injury required, we conclude that,

  even under the provisions of [section] 18-1-408(5)(c), menacing is

  not a lesser included offense of second degree assault.”), rev’d on

  other grounds, 964 P.2d 524 (Colo. 1998).

¶ 74   Nevertheless, even if we accepted Pellegrin’s interpretation, the

  outcome would not change. Not only do stalking and harrassment

  differ in the degree of injury or risk of injury and the degree of

  culpability, but they also differ in the class of victims to which they


                                     37
  apply. The class of victims under the stalking statute includes not

  only another person but “a member of that person’s immediate

  family[] or someone with whom that person has or has had a

  continuing relationship.” § 18-3-602(1)(c); see Leske, 957 P.2d at

  1040 (holding that because the offenses addressed different classes

  of victims, section 18-1-408(5)(c) was inapplicable); see also

  Zweygardt, ¶ 26 (“Because this distinction is not one of the two

  ways that a lesser included offense can differ from the greater

  offense under section 18-1-408(5)(c), careless driving is not a lesser

  included offense of vehicular assault (reckless) under that

  subsection.”).

¶ 75   Accordingly, we conclude harassment is not a lesser included

  offense of stalking under section 18-1-408(5)(c).

                    VI.   Domestic Violence Finding

¶ 76   Pellegrin last contends that under Apprendi v. New Jersey,

  530 U.S. 466 (2000), he had a Sixth Amendment right to have a

  jury, not the trial court, determine whether the crime for which he

  was convicted included an act of domestic violence. We disagree

  and conclude a domestic violence finding under section 18-6-




                                    38
  801(1)(a), C.R.S. 2020, does not impose a “penalty” as contemplated

  by Apprendi.

              A.   Standard of Review and Applicable Law

¶ 77   Trial courts have broad discretion over sentencing decisions.

  Villanueva v. People, 199 P.3d 1228, 1231 (Colo. 2008). “However,

  we review constitutional challenges to sentencing determinations de

  novo.” People v. Jaso, 2014 COA 131, ¶ 8. Where an error of

  constitutional dimension occurs, “the sentence must be vacated

  unless the error was harmless beyond a reasonable doubt.” Id. at

  ¶ 9 (quoting Villanueva, 199 P.3d at 1231).

¶ 78   The Sixth Amendment requires that any fact, other than the

  fact of a prior conviction, that increases the prescribed statutory

  maximum penalty must be submitted to a jury and be proved

  beyond a reasonable doubt. Apprendi, 530 U.S. at 490; see also

  Alleyne v. Unites States, 570 U.S. 99, 102 (2013) (extending

  Apprendi by holding that any fact that increases a defendant’s

  mandatory minimum sentence must also be found by a jury under

  the Sixth and Fourteenth Amendments); Blakely v. Washington, 542

  U.S. 296, 303 (2004). But, “an essential prerequisite to the Sixth

  Amendment inquiry under Apprendi and Alleyne is that the


                                    39
  sentence must be punitive in nature.” People v. Heisler, 2017 COA

  58, ¶ 46; see also People v. Rowland, 207 P.3d 890, 895 (Colo. App.

  2009) (concluding that where a sentence is not punitive, Apprendi is

  inapplicable).

¶ 79   Section 18-6-801(1)(a) authorizes a trial court to make a

  factual determination that the crime for which a defendant was

  convicted included an act of domestic violence, as defined by

  section 18-6-800.3(1), C.R.S. 2020. If the court makes such a

  finding, domestic violence treatment is mandated in addition to any

  sentence imposed on the person. § 18-6-801(1)(a).

¶ 80   In Heisler, ¶¶ 44-45, a division of this court held that section

  18-6-801(1)(a) “does not run afoul of the Sixth Amendment” under

  Alleyne because “court-ordered domestic violence treatment . . . is

  not a form of punishment and, therefore, the statute does not

  mandate a ‘penalty’ as contemplated by Apprendi.” Applying the

  seven-factor test set forth in Kennedy v. Mendoza-Martinez, 372

  U.S. 144, 168-69 (1963), the division concluded that domestic

  violence treatment was not “punishment” because it (1) imposes no

  affirmative disability or restraint; (2) was not historically regarded

  as punishment; (3) requires no finding of scienter; (4) is


                                     40
  rehabilitative, not retributive, in nature; (5) has no alternative,

  punitive purpose that undercuts its rehabilitative purpose; and (6)

  does not impose excessive burdens on a defendant. Heisler, ¶¶ 49-

  64.

                                B.   Analysis

¶ 81    We find the reasoning in Heisler persuasive and apply it here.

  In doing so, we reject Pellegrin’s contention that Heisler was

  wrongly decided. Specifically, he argues the division in Heisler

  applied the seven-factor test in Mendoza-Martinez without first

  determining whether a domestic violence finding is a criminal or

  civil punishment. See People in Interest of T.B., 2019 COA 89, ¶ 21

  (“To decide whether a statute creates a punishment, a court must

  first ‘ascertain whether the legislature meant the statute to

  establish ‘civil’ proceedings.’”) (citations omitted), aff’d in part and

  rev’d in part, 2021 CO 59. The Supreme Court, however,

  established the seven-factor test to assist in determining the

  punitive nature of a sanction. Mendoza-Martinez, 372 U.S. at 168;

  see also United States v. Ward, 448 U.S. 242, 249 (1980) (noting

  that the seven factors in Mendoza-Martinez are helpful

  considerations in determining whether Congress provided for


                                      41
  sanctions so punitive as to transform a civil remedy into a criminal

  penalty); People in Interest of T.B., ¶¶ 31-47 (applying the Mendoza-

  Martinez factors in its analysis of whether a statute created a

  punishment). And we agree that the Mendoza-Martinez factors were

  the appropriate analytical framework to determine whether a

  domestic violence finding is a penalty.

¶ 82   In addition, we reject Pellegrin’s reliance on People v. Jaso,

  2014 COA 131. In Jaso, the trial court’s domestic violence finding

  was used not only to mandate domestic violence treatment, but also

  as part of a larger habitual domestic violence offender

  determination. Id. at ¶ 1. Because the prosecution sought to

  increase the defendant’s misdemeanor to a felony under the

  habitual domestic violence statute, thereby increasing the penalty

  for the crime, the defendant was entitled to have the jury make the

  domestic violence finding. Id. at ¶ 23.

¶ 83   In contrast, the domestic violence finding here did not increase

  the maximum or minimum punishment for the crime. Instead, the

  finding added a condition to Pellegrin’s sentence — a domestic

  violence evaluation and any recommended treatment. See § 18-6-

  801(1)(a) (“In addition to any sentence that is imposed upon a


                                    42
  person for violation of any criminal law . . . .”) (emphasis added);

  see, e.g., Christensen v. People, 869 P.2d 1256, 1259 (Colo. 1994)

  (“[I]f the parole board determines an [incarcerated person] is in need

  of further treatment, it can condition parole upon participation in a

  sex offender treatment program.”).

¶ 84   Still, Pellegrin maintains that the court’s domestic violence

  finding is a penalty because it restricted his access to firearms

  pursuant to section 18-6-801(8)(a) and it could subject him to a

  felony domestic violence conviction in the future. We do not agree.

  First, when adding section 18-6-801(8), the General Assembly did

  not intend for the firearm restrictions to be punitive. Rather, the

  purpose of prohibiting domestic violence offenders from possessing

  firearms is to protect the community. See S.B. 13-197, 69th Gen.

  Assemb., 1st Reg. Sess. (Colo. 2013); see also Mayo v. People, 181

  P.3d 1207, 1212 (Colo. App. 2008) (concluding that the sex offender

  registration requirement is not punitive in nature, but, rather, is

  designed to aid law enforcement officials and protect public safety);

  People v. Milton, 732 P.2d 1199, 1203-04 (Colo. 1987) (holding that

  a forfeiture sanction is not punitive, but remedial, in nature).

  Second, any future conviction and sentence based on the court’s


                                    43
  domestic violence finding here is speculative and is therefore not

  ripe for our review. See Stell v. Boulder Cnty. Dep’t of Soc. Servs., 92

  P.3d 910, 914 (Colo. 2004) (“In the interest of judicial efficiency,

  courts will not consider ‘uncertain or contingent future matters’

  because the injury is speculative and may never occur.”) (citation

  omitted).

                             VII. Conclusion

¶ 85   The judgment is affirmed.

       JUDGE YUN and JUDGE GRAHAM concur.




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