Background
A jury convicted Javier Vega Dominguez of soliciting for child prostitution, criminal attempt to commit patronizing a prostituted child, and other offenses. In a prior opinion, the Colorado Court of Appeals upheld the solicitation conviction but vacated the attempted-patronizing conviction on equal-protection grounds. Because it vacated that conviction, the division did not reach two additional constitutional challenges.
The Colorado Supreme Court affirmed the ruling concerning the solicitation instruction but reversed the equal-protection ruling and remanded for consideration of the previously unresolved issues. On remand, Vega Dominguez argued that the patronizing-a-prostituted-child statute was unconstitutionally vague and that the Colorado Sex Offender Lifetime Supervision Act rested on an unconstitutional conclusive presumption about sex offenders’ dangerousness and likelihood of reoffending. He acknowledged that neither challenge had been preserved in the trial court.
The Court’s Holding
The Court of Appeals affirmed the judgment. Because the constitutional claims were unpreserved, Vega Dominguez had to establish plain error—an error that was both obvious and substantial. The division concluded that it did not need to decide whether either challenged law was unconstitutional because any error was not obvious under existing law.
As to vagueness, another Court of Appeals division had rejected an identical challenge, and that precedent was binding on the trial court. As to the lifetime-supervision law, Vega Dominguez acknowledged that no prior decision had held that the statute rested on an unconstitutional presumption. General due-process and Eighth Amendment principles did not make the alleged errors plain because no existing authority established that these specific statutes violated those principles.
Key Takeaways
- An unpreserved constitutional challenge warrants reversal only if the asserted error is obvious and substantial under the plain-error standard.
- A trial court does not plainly err by following binding Court of Appeals precedent upholding a statute against the same constitutional challenge.
- Broad constitutional principles alone do not make an alleged statutory defect obvious when no existing authority holds that the particular statute is unconstitutional.
Why It Matters
The decision underscores the difficulty of obtaining appellate relief on an unpreserved constitutional claim. Even when a defendant advances a potentially debatable constitutional theory, the absence of supporting precedent—or the existence of contrary binding precedent—may prevent the alleged error from qualifying as plain.
The ruling also leaves the merits of Vega Dominguez’s vagueness and conclusive-presumption theories unresolved. The court affirmed because any error was not plain, not because it independently upheld the challenged statutes against those theories.