Hernandez v. People

• Court: Colorado Supreme Court
• Writing for the Court: Hobbs
• Citation: Hernandez v. People, 176 P.3d 746 (Colo. 2008)
• Decision Date: 14 January 2008
• Docket Number: 07SC133
• Parties: Alfredo HERNANDEZ, Jr., Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

176 P.3d 746

Alfredo HERNANDEZ, Jr., Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 07SC133.

Supreme Court of Colorado, En Banc.

January 14, 2008.

Rehearing Denied February 4, 2008.^*

Douglas K. Wilson, Colorado State Public Defender, Rebecca R. Freyre, Deputy State Public Defender, Denver, Colorado, Attorneys for Petitioner.

John W. Suthers, Attorney General, Patricia R. Van Horn, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, Colorado, Attorneys for Respondent.

Justice HOBBS delivered the Opinion of the Court.

We granted certiorari in People v. Hernandez, Jr., 160 P.3d 263 (Colo.App.2007), to determine whether section 16-11.7-105(1), C.R.S. (2007), always requires a sentencing court to impose sex offender treatment as a condition of probation when a defendant previously convicted for a sex offense commits a subsequent offense that is not a sex offense.¹ The court of appeals' opinion appears to construe this statutory provision as requiring "trial courts to order treatment as part of every probationary sentence imposed on sex offenders" in all cases, even those in which the sex offender evaluation does not recommend treatment. Hernandez, 160 P.3d at 265.

Despite this apparent construction of the statute, the court of appeals specifically referenced the substance of the evaluation report in this case, and its specific recommendations for treatment appropriate for Hernandez, concluding that the sentencing court did not err in imposing sex offender treatment as a condition of Hernandez's sentence to probation. The court of appeals stated:

That evaluation recommended further sex offender treatment for defendant. The evaluator opined that defendant had "significant risk factors" and that his overall risk to reoffend was in the moderate to high range. The evaluator then made a number of specific recommendations regarding the extent of treatment that would be appropriate for defendant.

Id. at 266.

To the extent that the court of appeals construed the statute to eliminate the trial court's discretion not to impose sex offender treatment, when the, facts of the case and the recommendations of the evaluation do not support treatment, we disapprove of such a construction of the statute. We hold that section 16-11.7-105(1) does not always require a sentencing court to impose sex offender treatment as a condition of probation when a sex offender commits a subsequent offense of any kind. When the recommendations of the sex offender evaluation and the facts of the case do not support the need for sex offender treatment, a sentencing court is not required to order treatment.

On the other hand, when the sex offender evaluation and recommendations and the facts of the case support the need for sex offender treatment, the sentencing court's discretion is tightly constrained. Here, the sentencing court imposed sex offender treatment as a condition of Hernandez's probation. In accordance with section 16-11.7-105(1), that sentence is supported by the sex offender evaluation report and recommendations as well as the facts of this case. Thus, we reject Hernandez's contention that the trial court in this case had authority not to impose sex offender treatment as a condition of his probation, given the evaluation report and the facts of this case. To the extent that the court of appeals posited its judgment affirming Hernandez's sentence on this basis, we agree with its judgment. Section 16-11.7-105(1) requires a defendant to undergo treatment to the extent appropriate based upon the recommendations of the evaluation and the identification of the defendant as a sex offender.

Accordingly, we uphold the judgment of the court of appeals, affirming Hernandez's sentence under section 16-11.7-105(1).

I.

On June 5, 1984, Hernandez was convicted by a jury of attempted second degree sexual assault.² The facts of that case are that Hernandez assaulted a woman in, the rest-room of a bar by pushing her against the back of a toilet, pinning her against the wall, and forcing his fingers into her vagina.

On December 23, 2003, Hernandez was arrested and charged with possession of a schedule two controlled substance and introduction of contraband into a detention facility. He and the prosecution reached a plea agreement in which the prosecutor agreed to dismiss the introducing contraband charge in exchange for Hernandez's plea of guilty to the possession charge. He pled guilty to possession of less than one gram of a schedule two controlled substance. The plea agreement included a stipulation that Hernandez would not receive jail time, but would serve two years of probation.

The trial court initially set sentencing for September 14, 2004. However, Hernandez refused' to submit to a sex offender evaluation as part of his pre-sentence investigation. He contended that a sex offender evaluation was unnecessary because his conviction for attempted sexual assault had occurred two decades earlier. The court ordered him to complete the evaluation:³ On advice from counsel, he submitted to the evaluation.

The evaluation report set forth facts and contained recommendations for sex offender treatment. After administering a number of tests to Hernandez, the evaluator found that the Penile Plethysmograph results demonstrated arousal "just below the established level of significance to the segments depicting a Female Adult in a Coercive Sexual Situation (middle 20th percentile range) and Female Teen in a Coercive Sexual Situation (lower 20th percentile range)." These responses were significantly higher than responses Hernandez demonstrated to other segments of the assessment. The evaluator observed that Hernandez did not demonstrate "significant arousal to the segments depicting a male and female adult in a consenting sexual situation." Additionally, he had a significant score on the Hare Psychopathy Checklist. The checklist results indicated that Hernandez "possesses a moderate level of psychopathic/antisocial traits."

The evaluator found that Hernandez's results for the Sexual Adjustment Inventory (SAI) were invalid because "he deliberately minimized sex-related and non sex-related problems and concerns or is reading impaired." According to the evaluation report, the SAI is "designed to identify sexually deviate and paraphilic behavior in people accused or convicted of sexual offenses. It has been standardized on thousands of offenders, and includes sexual deviance and commonly associated problematic behaviors, attitudes, substance abuse, and behavioral disorder screens."

The evaluator reported that Hernandez's "amenability to treatment is poor" and that he "fully denies committing his sexual offense, lacks victim empathy, lacks motivation to engage in offense-specific treatment, has a history of failure on conditional release (Probation), denies having a substance abuse problem, and has an extensive criminal history involving violent offenses."

The evaluator concluded that "the defendant does not appear to be a realistic candidate for being treated in a community-based setting at this time." Instead, the evaluator recommended he be placed in a setting with a "high level of containment and monitoring."

Of particular concern to the evaluator was that Hernandez demonstrated a high level of denial of the former offense, exhibited by his initial refusal to consent to the evaluation, his failure to attend appointments for the evaluation after having consented to it, and the results of the evaluation itself. The evaluator rated Hernandez as being at high risk for a repeat sexual offense based upon his: (1) denying having sexually assaulted the previous victim; (2) taking no responsibility for possessing cocaine in his most recent offense; (3) exhibiting defensiveness throughout the evaluation process; (4) lacking victim empathy; (5) lacking motivation to engage in offense specific treatment; (6) having previously used coercive force against a female adult victim and registering arousal levels to a female adult and a female teen in a coercive sexual situation, in comparison to a consensual sexual male/female adult encounter, during the assessment; and (7) having a considerable substance abuse history.

Accordingly, the evaluator recommended that Hernandez be committed to the Department of Corrections where he could obtain treatment at a time when he would be more amendable to successful treatment. However, the evaluator also recommended a number of provisions for sex offender treatment that would, be appropriate as conditions of probation should the court determine to place him on probation.

At the sentencing hearing, the prosecutor argued that the "gist" of the evaluation report was that Hernandez still needed treatment. Hernandez continued to resist treatment as a condition of probation. He argued that the sentencing court, as the final arbiter of the terms of any probation sentence, had absolute discretion not to order treatment.

In the course of imposing treatment conditions in its probation order, the trial court referred to Hernandez's sex offender evaluation and facts of the case that supported the imposition of treatment conditions. In this context, the court stated its view that it lacked discretion not to impose treatment conditions:

Well, I do believe it's mandatory and I'm looking at their case and trying to decide if, honestly, I believe that in my discretion, I would impose an offense specific evaluation (sic, offense specific treatment?). And I will tell you two things that lead me to think that I might is the combination of the facts of the sex offense back in 1983 coupled with this Defendant's attitude about that to the probation officer, and his continued substance abuse' since that time. Those three factors kind of lead me potentially to a discretionary decision to include an offense specific treatment, but I can't say I've reached the level where I feel, as a...