People v. Gallegos, Court of Appeals No. 07CA2373 (Colo. App. 9/17/2009)
| Decision Date | 17 September 2009 |
| Docket Number | No. 07CA2373.,07CA2373. |
| Parties | The People of the State of Colorado, Plaintiff-Appellee, v. Carlos Anthony Gallegos, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
John W. Suthers, Attorney General, Rhonda L. White, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Leslie A. Goldstein, L.L.C., Leslie A. Goldstein, Steamboat Springs, Colorado, for Defendant-Appellant.
Opinion by JUDGE TAUBMAN
Gallegos pleaded guilty to attempted sexual assault on a child based on an incident during which he touched the vaginal area of his live-in girlfriend's daughter (victim) while bathing her. At sentencing, based on the results of the SVP assessment screening instrument, the court found Gallegos to be an SVP because he established the relationship with the victim primarily for purposes of sexual victimization, and that designation was noted on the mittimus. This appeal followed.
Gallegos contends that the trial court erred in finding that he met the criteria of an SVP under section 18-3-414.5, C.R.S. 2008. We agree.
As pertinent here, pursuant to section 18-3-414.5(1)(a), C.R.S 2008, an SVP is an offender (1) who is eighteen years of age or older as of the date the offense is committed; (2) who has been convicted on or after July 1, 1999, of one of several enumerated offenses, including sexual assault on a child, or of an attempt, solicitation, or conspiracy to commit any one of those offenses; (3) whose victim was a stranger to the offender or a person with whom the offender established or promoted a relationship primarily for the purpose of sexual victimization; and (4) who is likely, based upon the results of a risk assessment screening instrument, subsequently to commit another of the listed offenses under the same or similar circumstances. See People v. Rowland, 207 P.3d 890, 892-93 (Colo. App. 2009).
The statute requires the probation department, in coordination with an evaluator, to complete the SVP assessment screening instrument and make a recommendation regarding whether a defendant meets the SVP criteria. Then, using the results of the screening instrument, the district court must make specific findings of fact and enter an order as to whether the offender is an SVP. § 18-3-414.5(2), C.R.S. 2008; see People v. Tixier, 207 P.3d 844 847 (Colo. App. 2008).
Here, Gallegos was over eighteen when he committed the offense and his conviction was for an offense listed in section 18-3-414.5(1)(a)(II). As to the third criterion, which addresses the offender's relationship with the victim, it is undisputed that Gallegos and the victim were not strangers. Thus, his classification as an SVP depends on whether he established or promoted a relationship with the victim for the primary purpose of sexual victimization. See § 18-3-414.5(1)(a)(III); Tixier, 207 P.3d at 846. Because both the court and the evaluator classified Gallegos as an SVP based on a finding that he established the relationship with the victim primarily for the purpose of sexual victimization, we address only that prong of the SVP definition.
When construing a statute, our primary purpose is to ascertain and effectuate the intent of the General Assembly. People v. Weiss, 133 P.3d 1180, 1184 (Colo. 2006). We look first to the plain and ordinary meaning of the statutory language to determine legislative intent, and if the statutory language is clear and unambiguous, we apply the provision as written. Turbyne v. People, 151 P.3d 563, 567 (Colo. 2007). In so doing, we look to the language of the statute and give the words and phrases used their common meanings, and give effect to every word so as not to render any terms superfluous. See People v. Madden, 111 P.3d 452, 458 (Colo. 2005).
Because the legislature chose to include in its description of relationships with the victim instances where the offender either "established" or "promoted" the relationship, those phrases must be accorded different meanings to give effect to each word and avoid redundancy. See id.; People v. Guenther, 740 P.2d 971, 976 (Colo. 1987) ().
The commonly accepted definition of "establish," when used as a verb, is "to bring into existence, create, make, start, originate, or found." Webster's Third New International Dictionary 778 (2002).
In addition, we note that, in Tixier, a division of this court, interpreting the "promoted a relationship" criterion of section 18-3-414.5(1)(a)(III), stated that "establishing a relationship" under the statute occurs "when, prior to an assault, an offender establishes a relationship with a stranger or an acquaintance with whom the offender has no definable relationship and does so primarily for the purpose of sexual victimization." Tixier, 207 P.3d at 847. The division also recognized that the common element of both the "stranger" and "established a relationship" criteria is that the "predatory offender sought and found a victim from individuals with whom he or she did not have any definable relationship." Id.
Based on the foregoing, we conclude that only if an offender creates or starts a relationship primarily for the purpose of sexual victimization can he or she meet the statutory criterion of "establishing a relationship" for that purpose. See Hernandez v. People, 176 P.3d 746, 751 (Colo. 2008) (). In other words, "established a relationship" applies when an offender, from the outset, seeks out a victim from individuals with whom he or she has no definable relationship, and sexual victimization is the primary purpose of the relationship. Accordingly, it follows that where an offender already has a relationship with the victim independent of the sexual victimization, the offender cannot be considered to have established the relationship for that purpose.
The trial court, at sentencing, made the following findings of fact: (1) Gallegos was twenty-four years old and the victim was five or six years old at the time of the assault; (2) the victim was not defendant's natural child; (3) Gallegos and the victim had an established relationship because the victim was the child of Gallegos's girlfriend; and (4) based on the age difference, there was no logical reason for Gallegos's relationship with the victim other than for the purpose of victimization.
In addition, the following facts appear in the record: (1) Gallegos met the victim after he began dating the victim's mother; (2) Gallegos lived in the same household with the victim, the victim's mother, and the child he shared with the victim's mother for approximately two and a half to three years; (3) the living arrangements indicate that Gallegos and the victim had a relationship akin to a stepparent-stepchild; and (4) although Gallegos and the victim's mother were not married, he believed that the victim looked to him as a father figure.
The SVP assessment screening instrument mirrors the statute by classifying the offender's relationship with the victim into the three separate categories of "stranger," "established a relationship," and "promoted a relationship." With regard to the "established a relationship" prong, the screening instrument directs the evaluator to conclude that the offender fits that category if any two of the four following criteria apply: (1) the offender has a history of multiple victims and similar...
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