Sentencing – CDAC Member Portal

DV Evaluation and Treatment

Sentencing and in misdemeanor cases of domestic violence is largely the same as in other cases. The biggest distinction is that anyone convicted of a crime of domestic violence must complete a DV evaluation and any DV treatment recommended by that evaluation. § 18-6-801(1)(a). The evaluation and treatment is governed by the Colorado Domestic Violence Offender Management Board (“DVOMB”). Neither you nor the courts have any control over the evaluation or treatment, only the DV designation.

Some judges believe this evaluation and treatment can be ordered only when the court sentences the defendant to probation. That is incorrect. The statute unequivocally mandates evaluation and treatment for anyone convicted of a crime involving an act of domestic violence who is not sentenced to prison. Id. The evaluation may be ordered to be completed pre-sentencing to assist the court in sentencing. § 18-6-801(1)(b). In this scenario, if the evaluation recommends treatment, the court “shall” order the defendant to complete that treatment. People v. Trujillo, 487 P.3d 1051 (App. 2019).

A court may also order DV treatment even if the case does not include a finding of domestic violence. § 18-6-801(1)(c).

Firearms and Ammunition Relinquishment

The firearms relinquishment requirements for sentencing mirror those found in the DV protection order statute.

In addition to evaluation and treatment, at sentencing in a DV case, the court “shall” order a defendant to refrain from possessing or purchasing any firearms until the sentence is satisfied and relinquish any firearms and ammunition. The court may prohibit the defendant from being released from custody until the defendant complies with these requirements. § 18-6-801(8)(a)(II).

There are three legal ways the defendant can relinquish firearms and ammunition:

1. 1. Sell or transfer to a federally licensed firearms dealer,
  2. Arrange for storage by law enforcement, or
  3. Sell or transfer to a private party who may legally possess in accordance with section 18-12-112 concerning the private transfer of firearms, including conducing a criminal background check on the transferee.

§ 18-6-801(8)(d).

The court “shall” schedule a hearing on the defendant’s compliance with these requirements, although the court may vacate that hearing if the defendant files an affidavit within seven business days after sentencing stating:

1. 1. The number of firearms in the defendant’s immediate possession or control or subject to the defendant’s immediate possession or control, including at the time of sentencing;
  2. the make and model of each firearm;
  3. any reason the defendant is still in immediate possession or control of such firearm; and
  4. the location of each firearm.

See § 18-6-801(8)(a), (8)(e)(I) (outlining the firearms relinquishment requirements). With some exceptions, the defendant must relinquish firearms and ammunition within 24 hours of sentencing. § 18-6-801(8)(b), (8)(c). Courts rarely comply with mandatory compliance hearing requirement. It is up to you to enforce it.

In-Home Detention

A defendant cannot be sentenced to a term of in-home detention in the victim’s home. § 18-6-801(4).

Probation and Jail

By far, the most common sentence for a misdemeanor crime of domestic violence is probation. All misdemeanor acts of domestic violence except for Assault in the Third Degree on a Pregnant Victim are probation eligible. The only limitation is that the court must consider the safety of the victim and the victim’s children before imposing probation. § 18-6-801(5). You can, however, as always, request up to 60 days of jail as a condition of probation.

Diversion

Some District Attorneys permit their deputies to divert some domestic violence cases. This is usually highly restricted and subject to rigorous internal review. Because diversion precludes the entry of a conviction, it is unwise to divert repeat offenders or those who pose a high risk of re-offense. Speak with your chief about whether your jurisdiction permits diversion on DV cases and in what scenarios.

Special Sentencing

In DV cases, there are several scenarios where you may encounter special sentences.

Habitual DV

In Colorado, an offender’s fourth DV conviction is a felony.

Felony Child Abuse—Pattern of Abuse

A misdemeanor act of child abuse can be charged as class 5 felony if the defendant had a prior conviction for child abuse and the prosecution proves either:

(II) The defendant participated in a continued pattern of cruel punishment or unreasonable isolation or confinement of the child; or

(III) The defendant made repeated threats of harm or death to the child or to a significant person in the child’s life, which threats were made in the presence of the child.

§§ 18-6-401(7)(III); 18-6-401(7)(IV).

Assaults on Pregnant Persons

Regardless of whether the crime was an act of domestic violence, when a defendant commits Assault in the Third Degree a pregnant person, the court shall sentence the defendant to a term of jail of at least 6 months, and this sentence shall not be suspended in whole or in part.

At trial, in addition to the elements for Assault in the Third Degree, the prosecution must prove:

1. 1. The victim of the offense was pregnant at the time of commission of the offense; and
  2. The defendant knew or should have known that the victim of the offense was pregnant.

Although the crime is technically Assault in the Third Degree, caselaw requires that if you wish to seek the enhanced mandatory jail sentencing for this crime, you must allege these specific facts in your pleadings. To do so, use the ASSAULT IN THIRD DEGREE – PREGNANT VICTIM charge in Action, charge code 0203D. There is also a version of this enhancer that involves negligently causing bodily injury with a deadly weapon to a pregnant person. That charge code is 0203E.

Resources

Recorded Trainings

DVOMB: New Directions in Offender Treatment

Sentencing Considerations, Risk Assessment, and Differential Treatment for Domestic Violence Offenders

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