Colorado v. Gallegos
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Defendant Carlos Gallegos pled guilty to attempted sexual assault on a child after admitting to sexually assaulting his live-in-girlfriend's six-year-old daughter. The trial court found that defendant met the relationship criterion of the sexually violent predator (SVP) statute because he established a relationship with the victim primarily to sexually assaulting her. The issue on appeal to the Supreme Court was the interpretation of "established a relationship" and "promoted a relationship" in the SVP statute. Applying the definition of these phrases to defendant's case, the Supreme Court affirmed the appellate court's decision to reverse defendant's SVP designation because he had not "established a relationship" with the victim primarily for the purpose of assaulting her because he lived with her and treated her as a stepdaughter preceding the assault.
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Opinions of the Colorado Supreme Court are available to the public and can be accessed through the Court s homepage at http://www.courts.state.co.us Opinions are also posted on the Colorado Bar Association homepage at www.cobar.org ADVANCE SHEET HEADNOTE July 1, 2013 2013 CO 45 No. 09SC1084, People v. Gallegos sexually violent predator established a relationship promoted a relationship section 18-3-414.5(1)(a)(III) The supreme court affirms in part and reverses in part the court of appeals decision affirming petitioner s designation as a sexually violent predator under section 18-3-414.5(1)(a), C.R.S. (2012). The supreme court holds that an offender established a relationship with his victim primarily for the purpose of sexual victimization where he created, started, or began a relationship primarily for that purpose. Applying that definition of established a relationship to the record in this case, the supreme court affirms the court of appeals decision reversing petitioner s sexually violent predator designation because the petitioner had not established a relationship with the victim primarily for the purpose of sexual victimization where the petitioner had lived with the victim and treated her as his stepdaughter for the three years preceding the assault. The supreme court also holds that an offender promoted a relationship if, excluding the offender s behavior during the commission of the sexual assult that led to his conviction, the offender otherwise encouraged a person with whom he had a limited relationship to enter into a broader relationship primarily for the purpose of sexual victimization. Because the trial court failed to consider whether petitioner promoted a relationship with his victim primarily for the purpose of sexual victimization, the supreme court remands this case to the court of appeals with instructions to remand to the trial court to make specific factual findings and determine whether petitioner promoted a relationship with his victim primarily for the purpose of sexual victimization. Supreme Court of the State of Colorado 2 East 14th Avenue ¢ Denver, Colorado 80203 2013 CO 45 Supreme Court Case No. 09SC1084 Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 07CA2373 Petitioner: The People of the State of Colorado, v. Respondent: Carlos Anthony Gallegos. Judgment Affirmed in Part and Reversed in Part en banc July 1, 2013 Attorneys for Petitioner: John W. Suthers, Attorney General Rhonda L. White, Assistant Attorney General Denver, Colorado Attorneys for Respondent: Leslie A. Goldstein, L.L.C. Leslie A. Goldstein Steamboat Springs, Colorado JUSTICE RICE delivered the Opinion of the Court. JUSTICE Mà RQUEZ concurs in part and concurs in the judgment. JUSTICE COATS dissents. ¶1 This sexual assault case requires us to interpret the phrases established a relationship and promoted a relationship in the relationship criterion of the sexually violent predator ( SVP ) statute, section 18-3-414.5(1)(a)(III), C.R.S. (2012). We hold that an offender established a relationship with his victim primarily for the purpose of sexual victimization where he created, started, or began a relationship primarily for that purpose. Applying the definition of established a relationship to the record in this case, we affirm the court of appeals decision reversing Respondent Carlos Anthony Gallegos SVP designation because Gallegos had not established a relationship with the victim primarily for the purpose of sexual victimization by living with the victim and treating her as his stepdaughter for the three years preceding the assault. ¶2 In addition, we hold that an offender promoted a relationship if, excluding the offender s behavior during the commission of the sexual assault that led to his conviction, he otherwise encouraged a person with whom he had a limited relationship to enter into a broader relationship primarily for the purpose of sexual victimization. Because the trial court determined that Gallegos met the relationship criterion by having established a relationship with his victim primarily for the purpose of sexual victimization, it did not make factual findings regarding whether Gallegos promoted a relationship for the same purpose. Therefore, we remand to the court of appeals with instructions to remand to the trial court to make specific factual findings and determine whether Gallegos promoted a relationship with his victim primarily for the purpose of sexual victimization. 2 I. Facts and Procedural History Gallegos pleaded guilty to attempted sexual assault on a child after admitting to ¶3 sexually assaulting his live-in girlfriend s six-year-old daughter. The trial court found that Gallegos met the relationship criterion of the SVP statute because he established a relationship with the victim primarily for the purpose of sexual victimization. Specifically, the trial court consulted the police report, the victim s report, and Gallegos statements and determined that no other legitimate relationship [existed] other than [one established primarily] for the purpose of sexual victimization. In making its determination, the trial court employed the definition of established a relationship 1 The Screening Instrument used to evaluate Gallegos defines established a relationship by listing four criteria and instructing that where two of the listed criteria [are] checked . . . the offender established a relationship with the victim. SOMB Handbook: Sexually Violent Predator Assessment Screening Instrument for Felons, Background and Instruction 22 (June 2003), http://dcj.state.co.us/ors/pdf/docs/Final%20SVP.pdf. The four criteria are: 1 1. Offender has a history of multiple victims and similar behavior -- a history of multiple victims does not require documentation in official court records. Self-report, clinical records, prison or community supervision records are important sources of this information. 2. Offender has actively manipulated the environment to gain access to this victim -- this includes use of the offender s residence, workplace, and leisure activities. Use of the internet to gain access to the victim is also included within this criterion. 3. Introduction of sexual content in the relationship -- this criterion indicates that content such as inappropriate sexual discussions or pornographic material was introduced into the relationship. The introduction of sexual content is a deliberate attempt to gauge the victim s interest or curiosity in sexual issues. This criterion should not be confused with the one listed below referring to sexual contact. 4. Offender persisted in the introduction of sexual contact or inappropriate behavior of a sexual nature despite lack of consent or the absence of the ability to consent -- Non-consensual activity is the emphasis of this criterion. Not only must a lack of consent be taken 3 prescribed in the Sex Offender Management Board s (the SOMB ) risk assessment screening instrument (the Screening Instrument ). ¶4 Gallegos appealed his SVP designation and the court of appeals reversed. People v. Gallegos, 240 P.3d 882, 886 (Colo. App. 2009). The court of appeals determined that the facts in the record do not support the [trial] court s finding that Gallegos established the relationship with the victim primarily for the purpose of sexual victimization. Id. at 883. Ignoring the Screening Instrument s definition of established, the court of appeals instead interpreted the term established in the relationship criterion consistent with its plain meaning: The commonly accepted definition of establish, when used as a verb, is to bring into existence, create, make, start, originate, or found. Id. at 884 (quoting Webster s Third New International Dictionary 778 (2002)). Applying this definition, the court of appeals concluded that Gallegos did not establish a relationship primarily for the purpose of sexual victimization with his victim as required by the SVP statute because the relationship already existed at the time of the sexual victimization. Id. at 886. ¶5 Contrary to its decision to disregard the Screening Instrument s definition and separately define established a relationship, the court of appeals deferred to the into consideration, but also the inability of an individual to give appropriate consent. Individuals who are under the legal age for giving consent or who are developmentally disabled would fit this criterion. Id. at 22-23. 4 Screening Instrument s definition of promoted a relationship 2 later in its analysis. Despite this deference, the court of appeals express[ed] no opinion as to whether Gallegos might fit the definition of an SVP under the promoted a relationship component of the relationship criterion. Id. Instead, the court of appeals simply reversed Gallegos SVP designation on the grounds that Gallegos did not establish the relationship primarily for the purpose of sexual victimization. Id. The People then petitioned this Court for certiorari review of the court of ¶6 appeals decision. We granted certiorari to address: (1) whether the court of appeals erred by proffering its own definition of established a relationship in the relationship criterion; and (2) whether the court of appeals should have addressed whether Gallegos met the relationship criterion by having promoted a relationship with his victim primarily for the purpose of sexual victimization.3 We address each issue in turn. Like its definition of established a relationship, the Screening Instrument defines promoted a relationship by providing a list of descriptors and indicating that [t]he presence of the first item and the presence of any one or more factors will make the determination for this criterion. SOMB Handbook: Sexually Violent Predator Assessment Screening Instrument for Felons, Background and Instruction 23 (June 2003), http://dcj.state.co.us/ors/pdf/docs/Final%20SVP.pdf. 3 Specifically, we granted certiorari on two issues: 2 1. Whether the court of appeals erred by not following the Sex Offender Management Board s criteria and creating its own dictionary definition of established a relationship under section 18-3-414.5(1)(a)(III), C.R.S. (2009), and whether the court of appeals erred in its conclusion that the defendant did not meet the established a relationship criterion to be classified as a sexually violent predator. 2. Whether the court of appeals should have made findings on the alternate grounds that the defendant promoted a relationship with the victim primarily for the purpose of sexual victimization. 5 II. Analysis ¶7 This case requires us to construe the relationship criterion in the SVP statute. We review questions of law involving statutory interpretation de novo. Grant v. People, 48 P.3d 543, 546 (Colo. 2002). This Court s familiar role interpreting statutes requires that we interpret the plain language of a statute to give full effect to the intent of the General Assembly. Colo. Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist., 109 P.3d 585, 593 (Colo. 2005). Where the statutory language is clear, we apply the plain and ordinary meaning of the provision, Lobato v. Indus. Claim Appeals Office, 105 P.3d 220, 223 (Colo. 2005), giving that language consistent, harmonious, and sensible effect to each part whenever possible, People v. Banks, 9 P.3d 1125, 1127 (Colo. 2000) (citation and internal quotation marks omitted). Moreover, [w]e interpret every word, rendering none superfluous; undefined words and phrases are read in context and construed literally according to common usage. Sooper Credit Union v. Sholar Grp. Architects, P.C., 113 P.3d 768, 771 (Colo. 2005). We first describe the SVP designation in light of our holding in Allen v. People, 2013 CO 44 (released concurrently). A. The SVP Designation and Allen v. People ¶8 The trial court designates an offender as an SVP when the offender: (1) was eighteen years of age or older as of the date of the offense; (2) was convicted of an enumerated sexual offense; (3) committed the offense against a victim who was a Alternatively, whether the appropriate remedy is to remand the case to the trial court for further proceedings. 6 stranger or was a person with whom the offender established or promoted a relationship primarily for the purpose of sexual victimization; and (4) is likely to recidivate. § 18-3-414.5(1)(a)(I)-(IV). The SVP designation process is unique. See Allen, ¶ 6. When an offender is ¶9 convicted of an enumerated offense, see § 18-3-414.5(1)(a)(II), a SOMB-trained evaluator administers the Screening Instrument4 to determine whether an offender meets the recidivism criterion of the SVP statute. See § 18-3-414.5(1)(a)(IV). Although the SVP statute only expressly directs the SOMB to address the recidivism criterion in the Screening Instrument, see id., the SOMB developed the Screening Instrument in such a way that requires the evaluator to confirm that the offender has satisfied the first three criteria of the SVP statute before reaching the recidivism analysis. See SOMB Handbook: Sexually Violent Predator Assessment Screening Instrument for Felons, Background and Instruction 66-70 http://dcj.state.co.us/ors/pdf/docs/Final%20SVP.pdf. (June 2003), To assist the evaluator, the Screening Instrument provides definitions for the first three criteria, including defining when an offender established a relationship or promoted a relationship primarily for the purpose of sexual victimization. Id. at 22-26. In addition to administering the Screening Instrument, the SOMB works with the division of criminal justice to create the Screening Instrument. § 16-11.7-103(4)(d), C.R.S. (2012); § 18-3-414.5(1)(a)(IV). The Screening Instrument employs the most current sex offender risk assessment research available to assist the trial court in determining the likelihood that an adult sex offender will recidivate. See § 16-11.7103(4)(d). 4 7 ¶10 Section 18-3-414.5, however, does not grant the SOMB the authority to define these terms. See Allen, ¶ 9 (opining that the SVP statute only expressly directs the SOMB to address the recidivism criterion in the Screening Instrument ). Accordingly, to guide the lower courts in their future SVP analyses, we review the relationship criterion de novo and, applying our tenants of statutory construction, we define the terms established a relationship and promoted a relationship as employed in that criterion. B. Established A Relationship ¶11 We hold that an offender established a relationship under the relationship criterion of the SVP statute where he created, started, or began the relationship primarily for the purpose of sexual victimization. ¶12 The leading legal dictionary defines the verb establish as [t]o make or form; to bring about or into existence. Black s Law Dictionary 626 (9th ed. 2004). Similarly, Webster s New College Dictionary defines establish, as to cause to be or happen; bring about. Webster s New College Dictionary 486 (2005). Considering these definitions in the context of the SVP statute, we hold that an offender established a relationship -- and therefore meets the relationship criterion of the SVP statute -- if he created, started, or began a relationship with his victim primarily for the purpose of sexual victimization. ¶13 In this case, Gallegos lived in the same house as his victim for three years prior to the incident and interacted with her as he would interact with a stepchild. Nothing in the record suggests that Gallegos created, started, or began his relationship with the 8 victim for the purpose of sexual victimization. Rather, Gallegos maintained a stepparent-like relationship with the victim for purposes unrelated to sexual victimization. The trial court therefore erred when it found that Gallegos established a relationship with the victim primarily for the purpose of sexual victimization. We now consider the meaning of the term promoted a relationship, in the relationship criterion of the SVP statute. C. Promoted A Relationship ¶14 We hold that an offender promoted a relationship if, excluding the offender s behavior during the commission of the sexual assault that led to his conviction, he otherwise encouraged a person with whom he had a limited relationship to enter into a broader relationship primarily for the purpose of sexual victimization. ¶15 Court of appeals precedent interpreting the phrase promoted a relationship informs our construction. For example, in People v. Tixier, the court of appeals addressed the meaning of promoted a relationship and held that it includes . . . efforts to encourage a victim with whom the offender has a limited relationship to enter into a broader relationship, primarily for the purpose of sexual victimization. 207 P.3d 844, 848 (Colo. App. 2008). Likewise, in People v. Valencia, the court of appeals opined that an offender can promote a proscribed relationship when he and the victim have had a previous relationship, which was limited in its nature, purpose, and customary time and place of interaction, but the offender encouraged the expansion of that relationship to foster sexual victimization. 257 P.3d 1203, 1207 (Colo. App. 2011). Thus, divisions of the court of appeals agree regarding the type of conduct that 9 indicates an offender promoted a relationship primarily for the purpose of sexual victimization; namely, an offender must engage in some conduct, beyond the sexual assault itself, which is designed to . . . expand an existing relationship into one primarily for the purpose of sexual victimization. Id. at 1208; Tixier, 207 P.3d at 848. ¶16 The court of appeals decisions in Tixier and Valencia are generally consistent with the plain meaning of promoted a relationship as used in the SVP statute. The word promoted is commonly understood as meaning to help bring about or further the growth or establishment of. Webster s New College Dictionary 1148 (2005). We recognize that this definition of promoted includes the phrase to help bring about, and therefore resembles our definition of established. Reading promoted in context, however, demonstrates a legislative intent for established and promoted to refer to alternative ways in which an offender might satisfy the relationship criterion because the General Assembly employed the disjunctive word or between the two verbs. § 18-3-414.5(1)(a)(III) (providing that the offender s victim must have been a person with whom the offender established or promoted a relationship primarily for the purpose of sexual victimization (emphasis added)); see Armintrout v. People, 864 P.2d 576, 581 (Colo. 1993) (noting that when the word or is used in a statute, it is presumed to be used in the disjunctive sense ). For example, a relationship between the victim and the offender will already exist for a trial court to find that the offender promoted a relationship primarily for the purpose of sexual victimization; whereas, in contrast, a relationship need not exist between the offender and the victim for the trial court to find that the offender established a relationship primarily for the 10 purpose of sexual victimization. See, e.g., Valencia, 257 P.3d at 1207 (interpreting promoted a relationship to refer to conduct that expanded an existing relationship into one primarily for the purpose of sexual victimization). Interpreting promoted a relationship to provide an alternative avenue by which an offender might satisfy the relationship criterion gives meaning to every word in the criterion and renders neither established nor promoted superfluous. See Sooper Credit Union, 113 P.3d at 771. ¶17 Having considered the plain language of promoted a relationship in context and in light of the court of appeals precedent, we hold that an offender promoted a relationship if, excluding the offender s behavior during the commission of the sexual assault that led to his conviction, he otherwise encouraged a person with whom he had a limited relationship to enter into a broader relationship primarily for the purpose of sexual victimization. ¶18 Because the trial court determined that Gallegos met the relationship criterion by having established a relationship with his victim primarily for the purpose of sexual victimization, it did not make factual findings regarding whether Gallegos promoted a relationship for the same purpose. As an appellate court, we are not in the best position for original fact-finding. People v. Rodriguez, 786 P.2d 1079, 1082 (Colo. 1989). Therefore, we remand to the court of appeals with instructions to remand to the trial court to make specific factual findings and determine whether Gallegos promoted a relationship with his victim primarily for the purpose of sexual victimization. 11 III. Conclusion ¶19 We hold that an offender established a relationship with his victim primarily for the purpose of sexual victimization where he created, started, or began the relevant relationship primarily for that purpose. Because our definition of established a relationship indicates Gallegos did not meet the relationship criterion, we affirm the court of appeals decision reversing Gallegos SVP designation on those grounds. ¶20 We additionally hold that an offender promoted a relationship if, excluding the offender s behavior during the commission of the sexual assault that led to his conviction, he otherwise encouraged a person with whom he had a limited relationship to enter into a broader relationship primarily for the purpose of sexual victimization. We reverse the court of appeals to the extent it failed to consider whether Gallegos might have promoted a relationship with his victim primarily for the purpose of sexual victimization. ¶21 Accordingly, we remand this case to the court of appeals with instructions to remand to the trial court to determine whether Gallegos met the relationship criterion in the SVP statute by having promoted a relationship with the victim primarily for the purpose of sexual victimization. JUSTICE Mà RQUEZ concurs in part and concurs in the judgment. JUSTICE COATS dissents. 12 JUSTICE Mà RQUEZ, concurring in part and concurring in the judgment. ¶22 To the extent that the majority relies here on its decision in Allen v. People, 2013 CO 44, I write separately to note my disagreement with that opinion. Maj. op. ¶¶ 9 10; Allen, ¶¶ 33 39 (Márquez, J., concurring in the judgment). Nonetheless, I concur in the remainder of the opinion and in the judgment today because I agree with the majority that Gallegos had not established a relationship with the victim primarily for the purpose of sexual victimization by living with the victim and treating her as his stepdaughter for the three years preceding the assault. Maj. op. ¶ 13. 1 JUSTICE COATS, dissenting. ¶23 For the reasons offered in my separate opinion in Allen v. People, 2013 CO 44, also released today, I disagree with the majority s interpretation of the established or promoted language of section 18-3-414.5(1)(a)(III), C.R.S. (2012), and in addition, I disagree with its decision to remand for further consideration by the sentencing court. The record (such as it is) of this plea of guilty, without factual basis, to a class 5 felony attempt to commit sexual assault on a child, reflects only that the incident from which the charges arose involved touching the vaginal area of the five-year-old daughter of the defendant s girlfriend while washing her in a bathtub. Although the contact clearly occurred as the result of, or was facilitated by, the defendant s two and one-half year, step-parent-like relationship with the victim, nothing in the record (including a prior sexual assault conviction) suggested that he at any time sought to cultivate a relationship with her for the purpose of sexual victimization; and given the timing and circumstances of the offense, such a suggestion would not appear to be serious. ¶24 Although I also disagree with the intermediate appellate court s distinction between established and promoted, I believe both that the sentencing court s finding of the requirements of subparagraph (III) was clearly erroneous and that a remand is unnecessary. Because I would simply affirm the judgment of the court of appeals on other grounds, I respectfully dissent. 1
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