People ex rel. C.M.D.

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          Mesa County District Court No. 15JD140, Honorable Thomas M. Deister, Judge, Honorable William T. McNulty, Magistrate

         Cynthia H. Coffman, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee

          Megan A. Ring, Colorado State Public Defender, Ryann S. Hardman, Deputy State Public Defender, Denver, Colorado, for Juvenile-Appellant

         OPINION

         VOGT, JUDGE.^[*]

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         [¶ 1] C.M.D. was adjudicated delinquent based on an incident involving unlawful sexual contact. At sentencing, he was ordered to register as a sex offender under the Colorado Sex Offender Registration Act (CSORA), § § 16-22-101 to -115, C.R.S. 2018. Because C.M.D. had a previous adjudication for unlawful sexual contact, the magistrate was statutorily precluded from waiving the registration requirement, and C.M.D. is not eligible to petition to discontinue the registration.

         [¶ 2] On appeal, C.M.D. contends that, as applied to him and similarly situated juveniles, the CSORA violates constitutional prohibitions against cruel and unusual punishment and constitutional due process rights. Under the circumstances of this case, we disagree. We therefore affirm the order requiring C.M.D. to register as a sex offender.

          I. Background

         [¶ 3] At the time of the incident giving rise to the order, C.M.D. was serving a sentence in the Department of Youth Corrections (DYC) based on prior adjudications, one of which was also for unlawful sexual contact. Although the incident was reported to have occurred when C.M.D. was seventeen and a half years old, the petition in delinquency was not filed until one year later, when C.M.D. was eighteen and a half.

         [¶ 4] The petition alleged that C.M.D. had committed unlawful sexual contact against another DYC resident, who was then seventeen. C.M.D. had reported the incident to his case manager, stating that he "grabbed a girl’s ass" and that he did it because he "felt aroused and couldn’t help himself." The victim told law enforcement personnel that she had been in a transport van with C.M.D. and another girl on the way to court appearances. In the elevator at the courthouse, she felt C.M.D.’s hand brush her bottom, but was not sure if it was intentional. She then said that

[w]hen they were leaving court getting ready to get back in the transport van, she did not want to sit next to C.M.D. ... [H]e kept touching her back throughout the drive.

She told him to stop several times and he did not stop. He was only touching her back at this point, but this made her mad and uncomfortable.

When they arrived back at DYC ... C.M.D. scooted closer to [her], [and] grabbed her butt two times.

         [¶ 5] The People filed a petition in delinquency alleging that C.M.D. had committed an act which, if committed by an adult, would constitute misdemeanor unlawful sexual contact under section 18-3-404(1)(a), C.R.S. 2018. In exchange for dismissal of the charge, C.M.D. pleaded guilty to third degree assault, § 18-3-204(1)(a), C.R.S. 2018, with an underlying factual basis of unlawful sexual contact. The court sentenced C.M.D. to up to six months in the custody of the DYC, the sentence to run concurrent with his sentences in four other cases. C.M.D. acknowledged at the plea hearing that he knew he would be required to register as a sex offender.

         [¶ 6] As noted, this was not C.M.D.’s first adjudication for an offense with an underlying factual basis of unlawful sexual contact. He had previously been adjudicated for sexually assaulting his sister over the course of three to five years, beginning when she was approximately four years old and he was approximately six years old. The conduct giving rise to the adjudication included forced oral sex, digital penetration of the vagina, and attempted penile-vaginal intercourse. At sentencing in this case, the magistrate noted that he had no discretion to decline to impose the sex offender registration requirement, and then commented:

Even if I’d had discretion, I would feel somewhat conflicted about not requiring [C.M.D.] to register.... [C]onsidering some of the factors if I were allowed to under [section 16-22-103(5)(a) ], considering that, certainly lifetime registration

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would seem unfairly punitive under these circumstances.

But, it’s not the adjudication for this offense that makes it unfairly— that makes it lifetime. It’s the— of course, the existence of the other offense. But, the risk to the community may require that registration. And so, if I had that discretion, I’m not sure that I would actually go— and exercise that discretion.

         [¶ 7] C.M.D. petitioned for district court review of the magistrate’s order, arguing, among other things, that requiring him to register as a sex offender amounted to cruel and unusual punishment. The district court disagreed, citing cases holding that the requirement to register is not punishment, and adding:

However, even if the requirement to register were punishment, such a requirement here would neither be unfairly punitive nor cruel and unusual because of the Juvenile’s prior adjudication for unlawful sexual behavior. With two adjudications for this type of behavior, community safety requires registration. Such conclusion is necessary because the statute ...