v. Hernandez

     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                July 25, 2019

                               

No. 17CA0775, People v. Hernandez — Criminal Law —
Sentencing — Restitution; Criminal Procedure — Presence of
Defendant; Constitutional Law — Due Process

     In this appeal of a restitution order, a division of the court of

appeals concludes that a defendant has a right to be present at a

restitution hearing. And based on the particular facts presented,

the trial court plainly erred by holding the restitution hearing in

Hernandez’s absence, despite his attorney’s attempted but

ineffective waiver of his presence.
COLORADO COURT OF APPEALS                                     

Court of Appeals No. 17CA0775
Weld County District Court No. 14CR2052
Honorable Thomas J. Quammen, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Joey Ray Hernandez,

Defendant-Appellant.


                        ORDER VACATED AND CASE
                       REMANDED WITH DIRECTIONS

                                 Division III
                          Opinion by JUDGE WEBB
                        Furman and Brown, JJ., concur

                           Announced July 25, 2019


Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Julia Chamberlin, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    In this appeal of a restitution order, defendant, Joey Ray

 Hernandez, presents a novel question in Colorado — does a

 defendant have a right to be present at a restitution hearing? We

 conclude that the answer is “yes.” Turning to the particular facts

 presented, next we conclude that the trial court plainly erred by

 holding the restitution hearing in Hernandez’s absence, despite his

 attorney’s attempted but ineffective waiver of his presence. So, the

 restitution order must be vacated and the case remanded for

 further proceedings. But if on remand the trial court determines

 that Hernandez had authorized his attorney to waive his presence,

 a new restitution hearing need not be held.

                             I. Background

¶2    A jury convicted Hernandez of first degree assault for having

 stabbed the victim. The trial court imposed a sentence to the

 custody of the Department of Corrections and gave the prosecutor

 sixty days to file a notice of restitution. The prosecutor timely

 sought restitution of $2518.82 to compensate the Crime Victim

 Compensation Fund.

¶3    Defense counsel filed a general objection. But neither counsel

 nor Hernandez appeared at two scheduled status conferences.


                                    1
 Counsel did not respond to the trial court’s direction to file a

 clarification of his objection. Nor did counsel request the court to

 perform an in camera review of any information related to the claim.

¶4    Eventually, defense counsel — but not Hernandez — appeared

 at the restitution hearing. Counsel explained, “I was going to writ

 him here. I didn’t do that. But given all the circumstances in this

 case, I’m prepared to proceed to [sic] restitution hearing without his

 presence.” The court did not reply to this statement and the

 hearing went forward.

¶5    The prosecutor called the Crime Victim Compensation

 Coordinator for the Nineteenth Judicial District as the sole witness.

 The coordinator described how the Crime Victim Compensation

 Board (CVCB) evaluates restitution applications. Where medical

 expenses are involved, the review includes looking at the nature of

 the services provided in light of the offense and at the dates of those

 services compared to the date of the offense. Next, the coordinator

 identified the victim’s application. Then she explained that the

 process for determining proximate cause of the medical expenses

 had been followed in this case. Defense counsel neither cross-

 examined her nor presented any evidence.


                                    2
¶6     The trial court found that the prosecutor had proved by a

 preponderance of the evidence that the medical expenses described

 in the restitution notice had been proximately caused by

 Hernandez’s criminal conduct. The court awarded the amount

 requested.

       II. Issues Presented, Preservation, and Standard of Review

¶7     Hernandez raises three contentions.

     • Despite the statements of defense counsel, the trial court erred

       by proceeding with the restitution hearing in his absence.

     • Applying the post-assault amendment to section 18-1.3-603,

       C.R.S. 2018, which lessens the prosecution’s burden of

       proving causation, violated the Ex Post Facto Clauses of the

       United States and Colorado Constitutions.

     • Applying section 18-1.3-603(10) also violated Hernandez’s due

       process rights by creating a rebuttable presumption of

       causation that he cannot overcome because of limitations on

       information held by a CVCB.

¶8     The Attorney General asserts that Hernandez waived the first

 contention and challenges preservation of the second and third

 contentions. Hernandez disputes waiver, concedes that he did not

                                    3
  preserve the first or second contentions, and argues that he

  preserved the third contention. In any event, he urges us to

  exercise our discretion and take up his statutory contentions in the

  interest of judicial economy.

¶9     We reject the Attorney General’s waiver assertion but agree

  that Hernandez did not preserve the third contention. We exercise

  our discretion in the interest of judicial economy, but only to a

  point.

¶ 10   Alleged violation of a defendant’s due process right to be

  present at all critical stages of a criminal proceeding is a

  constitutional question reviewed de novo. People v. Wingfield, 

, ¶ 13. And “Crim. P. 43(a) also requires as much, subject

  to a few exceptions.” People v. Janis, 

, ¶ 16 n.2.

¶ 11   Where this due process right has been violated and the error

  preserved, reversal is required unless the Attorney General proves

  that the error was harmless beyond a reasonable doubt. Zoll v.

  People, 

. If the error is unpreserved — but not

  waived — plain error review applies. See Hagos v. People, 

. Under that test, reversal occurs only if the error was

  obvious and so undermined the fundamental fairness of the


                                     4
  proceeding that it casts serious doubt on the reliability of the

  outcome. 

¶ 12   No Colorado case has addressed whether violation of a

  defendant’s right to be present under Crim. P. 43 is also reviewed

  de novo. However, we discern no reason to apply a different

  standard of review to the same right merely because the right is

  guaranteed by rule rather than by statute. But reversal for failure

  to follow a court rule is subject to the harmless error limitation in

  Crim. P. 52(a) rather than to the constitutional harmless error

  standard. See Dawson v. People, 

 (Colo. 2001)

  (Crim. P. 11).

¶ 13   The constitutionality of a statute is also subject to de novo

  review. See, e.g., Coffman v. Williamson, 

. The

  reviewing court presumes the statute is constitutional. Morris-

  Schindler, LLC v. City & Cty. of Denver, 

 (Colo.

  App. 2010). And “[i]n both facial and as-applied challenges, the

  challenging party must prove that a statute is unconstitutional

  beyond a reasonable doubt.” Heotis v. Colo. State Bd. of Educ.,

  

, ¶ 17.




                                     5
                        III. The Law of Restitution

¶ 14   Criminal defendants must “make full restitution to those

  harmed by their misconduct.” § 18-1.3-601, C.R.S. 2018.

  “‘Restitution’ means any pecuniary loss suffered by a victim and

  includes but is not limited to all out-of-pocket expenses . . . .”

  § 18-1.3-602(3)(a), C.R.S. 2018. “The prosecution bears the burden

  of proving, by a preponderance of the evidence, the amount of

  restitution owed and, generally, that the defendant’s conduct was

  the proximate cause of the victim’s loss.” People v. Henry, 

, ¶ 15.

¶ 15   A CVCB exists in each judicial district. § 24-4.1-103(1), C.R.S.

  2018. The restitution statute’s definition of “victim” includes these

  boards. § 18-1.3-602(4)(a)(IV). Losses compensable by a CVCB

  include “[r]easonable medical and hospital expenses.”

  § 24-4.1-109(1)(a), C.R.S. 2018.

¶ 16   Documents submitted to a CVCB for purposes of receiving

  compensation are “confidential” under section 24-4.1-107.5(2),

  C.R.S. 2018. As a result, “a defendant generally cannot obtain

  access to them.” Henry, ¶ 28.




                                     6
¶ 17    But in restitution proceedings, section 24-4.1-107.5(3) creates

  a two-step process through which a defendant can obtain

  information in CVCB records. First, the defendant may make a

  request that “is not speculative and is based on an evidentiary

  hypothesis that warrants an in camera review.” Id. Second, after

  conducting such a review, the court may release information if it

  finds that the information:

             (a) Is necessary for the defendant to dispute
             the amount claimed for restitution; and

             (b) Will not pose any threat to the safety or
             welfare of the victim, or any other person
             whose identity may appear in the board’s
             records, or violate any other privilege or
             confidentiality right.

  Id.

¶ 18    After a CVCB determines that compensation should be

  awarded, it submits a statement to the court administrator, “who

  shall remit payment in accordance with the statement of award.”

  § 24-4.1-108(3), C.R.S. 2018. Then under section

  18-1.3-603(10)(a), “[i]f, as a result of the defendant’s conduct,” a

  CVCB has “provided assistance to or on behalf of a victim,” a trial

  court must “presume[]” that the amount of the assistance that the



                                     7
  CVCB paid out was “a direct result of the defendant’s criminal

  conduct,” which the court “must . . . consider[] . . . in determining

  the amount of restitution ordered.”

           IV. The Trial Court Plainly Erred by Proceeding with the
               Restitution Hearing in Hernandez’s Absence

¶ 19   First, we consider whether a restitution hearing is a

  proceeding at which a defendant has a right to be present. Because

  we conclude that it is, we next consider whether counsel can

  unilaterally waive a defendant’s presence. We conclude that

  counsel cannot do so. Last, because Hernandez did not preserve

  this issue, we consider whether the trial court committed plain

  error by proceeding in Hernandez’s absence. We conclude that

  because plain error occurred, the restitution order must be vacated.

   A. The Restitution Hearing Is a Proceeding at which a Defendant
                      Has a Right to be Present

¶ 20   Everyone would agree that as a matter of due process, both

  the United States and Colorado Constitutions “guarantee the right

  of a criminal defendant to be present at all critical stages of the

  prosecution.” People v. White, 

 (Colo. 1994).

  Still, because not every step in a criminal proceeding is a critical

  stage, “[t]he right to be present is not absolute.” 

                                     8
¶ 21   Rather, a “critical stage of criminal proceedings is one where

  there exists more than a minimal risk that the absence of the

  defendant might impair his or her right to a fair trial.” People v.

  Cardenas, 

, ¶ 22. In other words, “due process does

  not require the defendant’s presence when it would be useless or

  only slightly beneficial.” People v. Isom, 

 (Colo.

  App. 2005).

¶ 22   In Colorado, “[s]entencing is a critical stage of a criminal

  proceeding.” People v. Luu, 

 (Colo. App. 1998). And

  “[r]estitution is part of the district court’s sentencing function in

  criminal cases.” People v. Vasseur, 

. Indeed, “a

  sentence is illegal if the court fails to consider restitution,” and “a

  restitution order is appealable in accordance with ‘the statutory

  procedures applicable to the appellate review of a felony sentence.’”

  

 (citation omitted).

¶ 23   In other jurisdictions, restitution hearings are a critical stage.

  See, e.g., L.W. v. State, 

 (Fla. Dist. Ct. App.

  2015) (right to be present); Gibson v. State, 

  (Ga. Ct. App. 2013) (same); State v. Ball, 

 (Kan. Ct.

  App. 2013) (same); State v. Rodriguez, 

 (Minn.


                                      9
  Ct. App. 2017) (same); cf. State v. Alspach, 

  (Iowa 1996) (right to counsel); State v. Jamieson, 

  (Utah Ct. App. 2017) (same), cert. granted, 

 (Utah May

  9, 2018) (No. 2018140). While the Attorney General challenges the

  rationale in some of these cases, he cites no directly contrary

  authority. Nor have we found any.

¶ 24   But does the “useless or only slightly beneficial” test serve to

  limit the “critical stage” analysis or only to identify case-specific

  circumstances where a defendant’s absence at a critical stage is

  harmless? In our view, sentencing — including imposition of

  restitution — is a critical stage at which a defendant has a due

  process right to be present. Still, if particular facts show that the

  defendant’s presence would be useless or only slightly beneficial,

  proceeding in the defendant’s absence will be harmless beyond a

  reasonable doubt. See People v. Munsey, 

 (Colo.

  App. 2009) (“The record in this case shows that defendant’s

  presence [when the court responded to a jury question] would have

  been useless, rendering any constitutional error harmless beyond a

  reasonable doubt.”). But our inquiry does not end here.




                                     10
¶ 25    Under Crim. P. 43, entitled “Presence of the Defendant,” the

  defendant “shall be present . . . at the imposition of sentence.”

  Although no Colorado case has applied this rule to a restitution

  hearing, a closer look shows that a restitution hearing is a

  component of sentencing at which the defendant must be present.

  Specifically, paragraph (e)(2) extends the option of presence “by the

  use of an interactive audiovisual device” to “(VI) Restitution

  hearings.”

¶ 26    Like the constitutional right to be present, however, the right

  to be present under Crim. P. 43 is not absolute. “For instance, a

  defendant need not be present at a conference or argument on a

  question of law.” People v. Gallegos, 

 (Colo.

  App. 2009) (citing Crim. P. 43(c)(2)). While Crim. P. 43(c) identifies

  “situations” in which a defendant’s presence is not required,

  restitution proceedings are not among those listed.

       B. Defense Counsel Could Not Waive Hernandez’s Presence

¶ 27    The trial court may have chosen to proceed in Hernandez’s

  absence because defense counsel not only failed to object to

  proceeding, but invited the court to do so. In a felony proceeding,

  however, a defendant’s right to be present “cannot be waived by


                                    11
  counsel.” Penney v. People, 

, 

  (1961); accord Wingfield, ¶ 19 (“[D]efense counsel cannot waive a

  defendant’s right to presence at critical stages of criminal

  proceedings.”). Nor is this a situation where Hernandez was

  initially present and then voluntarily absented himself from the

  restitution hearing. See Crim. P. 43(b)(1). To the contrary, the

  record does not show that Hernandez even knew of the restitution

  hearing, much less that he authorized his counsel to waive his

  presence.

¶ 28   The Attorney General does not argue otherwise. Instead, he

  requests only that if we set aside the restitution order, the trial

  court hear evidence and make a finding on counsel’s authorization.

  See Janis, ¶ 17 (“A defendant may waive her right to be present

  either expressly or through her conduct.”). We accede to this

  request in formulating the scope of the remand.

¶ 29   In short, Hernandez “is entitled to plain error review because

  his claim was merely forfeited and not validly waived.” People v.

  Mumford, 

 (Colo. App. 2010), aff’d, 

.




                                     12
                         C. The Error Was Plain

¶ 30   Next we consider whether the error was obvious and, if so,

  whether it cast serious doubt on the reliability of the restitution

  award.

¶ 31   Under the plain error standard, “the defendant bears the

  burden to establish that an error occurred, and that at the time the

  error arose, it was so clear cut and so obvious that a trial judge

  should have been able to avoid it without benefit of objection.”

  People v. Conyac, 

. “An error is obvious if it

  contravenes either a clear statutory command, a well-settled legal

  principle, or Colorado case law.” People in Interest of T.C.C., 

, ¶ 15.

¶ 32   Colorado case law has not addressed whether a defendant has

  a constitutional or statutory right to be present when restitution is

  imposed. See, e.g., People v. Howard-Walker, 

, ¶ 57

  (Any error was not obvious because “no Colorado case has directly

  addressed the distinction between lay and expert testimony with

  respect to whether a gun depicted in a video is real or fake.”), rev’d

  on other grounds, 

. The handful of out-of-state cases

  cited above hardly establishes “a well-settled legal principle.” But


                                    13
  while no statute recognizes a defendant’s right to be present, recall

  that Crim. P. 43 does so.

¶ 33   No Colorado case has applied the “clear statutory command”

  aspect of obviousness to a court rule. Cf. People v. Smalley, 

 (“The error was obvious because the court’s

  obligation to afford a defendant an opportunity to speak at

  sentencing was well-settled under Colorado statutes, court rules,

  and case law.”) (emphasis added). However, because we cannot

  discern a principled basis on which to afford court rules less weight

  than statutes in determining obviousness, we conclude that the

  error was obvious.

¶ 34   “The defendant must also establish that the error was so grave

  that it undermined the fundamental fairness of the trial itself . . . as

  to cast serious doubt on the reliability of the conviction.” Conyac,

  ¶ 54. In deciding whether Hernandez has met this burden, three

  considerations tilt the field in his favor.

¶ 35   First, the threshold is low. See, e.g., Wingfield, ¶ 18 (“Due

  process does not require the defendant’s presence when his or her

  presence would be useless.”). Second, where a defendant was

  absent — and here, through no fault of his own — determining


                                      14
  what the defendant’s presence could have added will often be

  difficult. See People v. Safety Nat’l Cas. Corp., 

 (Cal.

  2016) (“[T]he issue often involves determining whether the

  defendant’s absence from a proceeding constitutes a denial or

  violation of due process.”). And third, a defendant’s presence at

  sentencing “serves to advance the right of the accused to be

  informed directly of his sentence and to advance society’s interest in

  the appearance of fairness.” Luu, 

.

¶ 36   According to Hernandez, his presence at the hearing would

  have been useful because he and the victim were acquaintances in

  Fort Lupton, which is a small town, and he “could have provided

  defense counsel with critical information disputing the nature and

  extent of [the victim’s] injury.” See Zoll, ¶ 27 (noting the absence of

  any need “for Zoll to provide feedback to his counsel about any

  matter” as a 911 tape was replayed for the jury). Still, on the

  present record, what information Hernandez possessed is unknown

  and, more importantly, unknowable.

¶ 37   The Attorney General responds that because Hernandez lacks

  medical expertise, he could not have opined on either the extent of

  the victim’s injuries or the need for treatment. Also, the Attorney


                                    15
  General continues, albeit without record citations, Hernandez “was

  not present when the victim was taken to the emergency room or

  during any subsequent examinations or treatment.”

¶ 38   Yet, even if all that the Attorney General says is true,

  Hernandez bonded out December 15, 2014 — thirty days after the

  charged offense — and reimbursement included undescribed

  medical services rendered on March 12 and 19, 2015 — four

  months after the stabbing. So, at least in theory, had Hernandez

  been present at the hearing, he could have prompted his counsel to

  ask the coordinator whether she was aware that the victim had

  been physically active and appeared healthy between December 15

  and March 12. And if she denied such knowledge, he could have

  testified to his observations of the victim.

¶ 39   Either way, the need for ongoing treatment, the nature of

  which is not disclosed, could have been undercut. For this reason,

  the Attorney General’s reliance on People v. Rosales, 

 (Colo. App. 2005) (“Here, defendant has never asserted that no

  victim suffered any pecuniary loss . . . .”), is misplaced.

¶ 40   Instead, because restitution had not yet been addressed, the

  hearing was like imposing a new sentence based on new evidence.


                                     16
  See People v. Nelson, 

 (Colo. App. 2000) (“[W]hen

  the court imposes a new sentence,” the defendant must be

  present.). By the same token, it was unlike a court merely

  announcing its decision, based on evidence received earlier when

  the defendant was present. See Luu, 

 (“[D]efendant

  was present at both his sentencing and resentencing hearings,

  when the information relied upon by the court for its sentencing

  decision was presented.”). In other words, while a defendant’s

  presence may not be beneficial “at a conference or argument on a

  question of law,” Gallegos, 

, the proximate cause

  issue to be resolved at the restitution hearing raised a question of

  fact. See Wagner v. Planned Parenthood Fed’n of Am., Inc., 

 (“[P]roximate cause is typically a question of

  fact . . . .”) (citation omitted).

¶ 41    In sum, we conclude that the restitution award must be

  vacated as plain error.

  D. The Attorney General Has Not Shown that Hernandez’s Absence
             Was Harmless Beyond a Reasonable Doubt

¶ 42    Having resolved the plain error question in Hernandez’s favor,

  how we could in the next breath conclude that his absence was



                                       17
  harmless beyond a reasonable doubt is at best unclear. Be that as

  it may, because the Attorney General argues that the error was

  harmless beyond a reasonable doubt, we address it briefly.

¶ 43   This argument misses the mark in two ways. First, under

  constitutional harmless error review,

            the classic formulation for applying the
            harmless beyond a reasonable doubt test to
            improperly admitted evidence — see, e.g.,
            People v. Frye, 

            (considering whether the improperly admitted
            evidence contributed to the verdict, not
            whether the same verdict would probably have
            resulted regardless of the tainted evidence) —
            [is not] as easy to apply where evidence has
            been improperly excluded.

 People v. Dunham, 

. Second, proceeding without

  Hernandez present raises a problem like that noted in Dunham —

  who knows what he might have said? And third, the Attorney

  General’s burden — harmless beyond a reasonable doubt — is a

  “high bar.” People v. Godinez, 

, ¶ 84.

¶ 44   In the end, we conclude that the restitution order must be

  vacated and the case remanded. On remand, the trial court must

  hold a hearing, with Hernandez present. At that hearing, the court

  must first determine whether Hernandez authorized his counsel to



                                   18
  waive his presence at the earlier hearing. If the court so concludes,

  it shall reinstate the restitution award, subject to addressing any

  statutory issues that Hernandez may raise, as discussed below. If

  the court concludes otherwise, it shall proceed to hear both parties’

  evidence concerning restitution and make findings, again subject to

  any statutory issues that Hernandez may raise.

        V. We Decline to Address Whether Application of Section
         18-1.3-603(10) Constitutes an Ex Post Facto Violation

¶ 45   The assault occurred on November 16, 2014. By the time of

  the restitution hearing in 2017, the General Assembly had amended

  the restitution statute by adding subsection (10) to section

  18-1.3-603. Ch. 60, sec. 6, § 18-1.3-603, 

. Recall, this subsection creates a rebuttable presumption that

  assistance provided by a CVCB to or for the benefit of a victim was

  the “result of the defendant’s conduct.” In contrast, before this

  amendment, “a compensation board’s payment did not, by itself,

  establish its right to restitution. [A] trial court was still required to

  determine whether the amount paid was proximately caused by the

  defendant’s criminal conduct.” Henry, ¶ 20.




                                      19
¶ 46   Hernandez contends that because the new statutory

  presumption reduces the prosecution’s burden in proving

  restitution, applying it to him violated the ex post facto prohibition

  in article I, section 10 of the United States Constitution and article

  II, section 11 of the Colorado Constitution. But the parties’

  disagreement on exactly what the trial court did at the end of the

  restitution hearing clouds this issue. According to Hernandez, the

  court applied subsection (10). According to the Attorney General,

  the court appropriately exercised its discretion based on the

  evidence presented.

¶ 47   Two factors confound resolving this disagreement. On the one

  hand, the court did not refer to subsection (10) at all. On the other

  hand, and perhaps for this reason, Hernandez did not argue ex post

  facto below. Because we decline to address the merits of this issue,

  we need not consider the consequences of Hernandez’s failure to

  have preserved it.

¶ 48   Either way, because we have vacated the restitution order, on

  remand Hernandez can raise, and if he does so the trial court must

  address, the applicability of subsection (10). But instead of waiting,

  should we resolve the ex post facto question now?


                                    20
¶ 49   True, as Hernandez points out, a division of this court has

  exercised its discretion and addressed an unpreserved ex post facto

  challenge to “promote efficiency and judicial economy.” People v.

  DeWitt, 

 (Colo. App. 2011). He argues that we

  should do so because “[a]ll of the facts necessary for resolution of

  the constitutional challenge here are undisputed and appear in the

  record before us.” Wood v. Beatrice Foods Co., 

  (Colo. App. 1991).

¶ 50   We decline his invitation for two reasons. First, “under the

  doctrine of constitutional avoidance, we address constitutional

  issues only if necessary.” People v. Valdez, 

  (collecting cases). Second, probing the depths of ex post facto law

  would not necessarily promote judicial economy.

¶ 51   On remand, if the trial court finds that Hernandez authorized

  counsel to waive his appearance and reinstates the restitution

  award, Hernandez can then raise his ex post facto argument and

  ask the court to clarify whether it relied on subsection (10) in

  determining proximate cause. Likewise, if the court finds no such

  authorization and holds another hearing, Hernandez can also raise

  this argument. Either way, the court may moot the ex post facto


                                    21
  issue by explaining that it did not — or does not — rely on

  subsection (10).

¶ 52     Therefore, we leave the ex post facto question for another day.

           VI. We also Decline to Address Whether the Rebuttable
       Presumption in Section 18-1.3-603(10) Violates Due Process as
        Applied, but Conclude that this Statute Does not Violate Due
                             Process on its Face

¶ 53     Finally, Hernandez contends that because section

  18-1.3-603(10) creates a rebuttable presumption and the

  information submitted to the CVCB is confidential, he “cannot

  contest the CVCB’s request for restitution,” thus denying him due

  process. See Heiner v. Donnan, 

 (1932) (“[A]

  statute creating a presumption which operates to deny a fair

  opportunity to rebut it violates the due process clause of the

  Fourteenth Amendment.”).

¶ 54     But wait. As discussed in the previous section, we do not

  know whether the trial court applied, or whether if it conducts a

  new hearing it will apply, the rebuttable presumption in section

  18-1.3-603(10). So, for the same reasons we decline to address

  Hernandez’s ex post facto contention, should we also decline to

  address his due process contention?



                                     22
¶ 55   Answering this question is more difficult because even if the

  trial court did not, and on remand does not, apply section

  18-1.3-603(10), Hernandez could still be on the horns of a dilemma:

  to obtain an in camera review of information held by the CVCB, he

  must present “an evidentiary hypothesis.” § 24-4.1-107.5(3). Yet,

  without knowing what information the CVCB has, he says that he

  cannot present such a hypothesis.

¶ 56   Unsurprisingly, the Attorney General offers an easy answer —

  because Hernandez did not request an in camera review, much less

  raise a supposedly related due process problem in the trial court,

  we should not address this issue. To the extent that Hernandez

  asserts unconstitutionality as applied, the Attorney General is

  correct. Hernandez’s failures below resulted in an inadequate

  record. And “we cannot determine the constitutionality of an as

  applied challenge without a complete record of relevant facts.”

  People v. Torres, 

 (Colo. App. 2009) (collecting

  cases).

¶ 57   To the extent that his challenge is facial, however, lack of

  preservation is not a fatal flaw. See, e.g., Fuentes-Espinoza v.

  People, 

 (“We have long made clear that we will


                                    23
  exercise our discretion to review unpreserved constitutional claims

  when we believe that doing so would best serve the goals of

  efficiency and judicial economy.”). And because a facial challenge

  deals only with the statutory language, the challenge does not

  depend on factual development in the record.

¶ 58   Exercising our discretion here might further judicial economy

  by saving trial courts from having to revisit this question. And in

  any event, the principle that “a facial challenge can only succeed if

  the complaining party can show that the law is unconstitutional in

  all its applications,” Dallman v. Ritter, 

 (Colo.

  2010), provides a ready answer.

¶ 59   Consider the “Claimant Payment Summary” introduced during

  the restitution hearing. It included the names of two payees —

  Heather L. Rogers and SCL Health System — along with the

  amounts paid and the dates of payments. As to Ms. Rogers, who is

  not otherwise identified, because the payment could have been for

  anything, forming an “evidentiary hypothesis” might be difficult. In

  contrast, as to SCL, knowing that the victim had suffered a knife

  wound and that SCL is a health care provider, Hernandez could

  have easily formed such an hypothesis: “Defendant needs to


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  discover the nature and dates of the medical services provided to

  ascertain the nexus, if any, to the injury sustained.”

¶ 60   In the end, because the statute is not unconstitutional in all

  its applications, the facial challenge fails.

                              VII. Conclusion

¶ 61   The restitution order is vacated, and the case is remanded for

  further proceedings consistent with this opinion.

       JUDGE FURMAN and JUDGE BROWN concur.




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