Members of the Colorado Supreme Court last week appeared willing to uphold a man’s conviction for an attempted child prostitution offense, which the state’s second-highest court previously found to be a violation of his right to equal protection under the law.

An El Paso County jury convicted Javier Vega Dominguez of two attempted child prostitution offenses, one of which carried a specific number of years in prison and the other resulted in a potential life sentence behind bars. The Court of Appeals concluded that, under Colorado’s equal protection guarantee, the fact Vega Dominguez received two different sentences for the same underlying conduct violated his rights.

But some members of the Supreme Court were hesitant to accept that conclusion during the Jan. 14 oral arguments. Specifically, while the Court of Appeals believed the error was obvious at the time of trial, the appellate court acknowledged it was “extending the analysis” of earlier precedent to Vega Dominguez’s convictions.

“The definition of obvious error, I’m simplifying, is a case right on point and that is so obvious the trial court should have intervened itself. I’m having trouble seeing how this was obvious,” said Justice Richard L. Gabriel.

“The legislature didn’t do us any favors with all these crimes, right? Pretty confusing,” added Justice Carlos A. Samour Jr. “I find it interesting when we argue about what’s obvious error and what should have been obvious to the poor trial court here. We are all trying to put our heads together and make sense of all these statutes, and it’s interesting.”

Colorado courts have interpreted the constitutional guarantee of equal protection to forbid the state from creating two laws that criminalize identical conduct but impose harsher consequences for one offense than the other. Under state law, patronizing a prostituted child involves a completed sex act or an agreement to perform such an act, with the potential for life in prison. Inducement of child prostitution, on the other hand, involves a person’s “word or action” to encourage a child’s prostitution.

In reviewing Vega Dominguez’s convictions for attempted patronizing and attempted inducement, a three-judge Court of Appeals panel looked at his arrangement via text message to pay a 15-year-old boy — who was actually an undercover officer — for sex acts. The judges concluded Vega Dominguez violated both laws in the same way: attempting to exchange money for sex. Yet, he was serving a possible life sentence for patronizing and only four years for inducement.

“We therefore conclude that Vega Dominguez’s conviction for attempted patronizing a prostituted child violates his right to equal protection,” wrote Judge Ted C. Tow III, adding that the violation was “obvious” in light of court precedent.

Senior Assistant Attorney General Jessica E. Ross argued to the Supreme Court that any error was not obvious, even if the laws theoretically prohibited the same conduct. Moreover, she cautioned against finding an equal protection violation because the effect is to constrain a prosecutor’s charging decisions and the legislature’s ability to define criminal offenses.

Colorado’s equal protection principle is “really narrowly focused on situations where the legislature has left up to the prosecutor no legislatively bound guidance for that decision,” Ross said.

Public defender Kamela Maktabi countered that, if two laws prohibit the same conduct and one carries a harsher punishment, “and there’s no distinction why one defendant gets a harsher sentence than the other, then I think it makes it more difficult for prosecutors to fulfill their mission of equal application of the law,” she said.

“How important is it in this case, if at all, that the charges were attempts to induce and attempt to patronize?” asked Justice Maria E. Berkenkotter.

Very important, responded Maktabi, because patronizing requires the act of prostitution, while inducement does not.

“That distinction doesn’t separate the patronizing from the inducement because both were attempted offenses” in Vega Dominguez’s case, she said.

The case is People v. Vega Dominguez.