Because we perceive his challenge as an as-applied challenge to the constitutionality of the statute, we disagree. In People v. Ford, 232 P.3d 260, 263 (Colo. App. 2009), a division of this court held that a guilty plea waives an as-applied challenge to the constitutionality of the statute under which the conviction was entered. "[A]n as-applied challenge alleges that the statute is unconstitutional as to the specific circumstances under which a defendant acted."
"[A]n as-applied challenge alleges that the statute is unconstitutional as to the specific circumstances under which a defendant acted." People v. Ford, 232 P.3d 260, 263 (Colo.App. 2009). Subject to a limited exception discussed below, a party "can only succeed in a facial challenge by 'establish[ing] that no set of circumstances exists under which the Act would be valid,' i.e., that the law is unconstitutional in all of its applications."
And where, as here, the constitutional challenge is as-applied, we must examine the case's circumstances. People v. Ford , 232 P.3d 260, 263 (Colo. App. 2009) ; compare People v. Jefferson , 748 P.2d 1223 (Colo. 1988) (facial equal protection challenge), with Slaughter , ¶ 15 (as applied equal protection challenge).
Id. at 1268(internal quotation marks omitted); accord Qwest Servs. Corp. v. Blood,252 P.3d 1071, 1085 (Colo.2011); People v. Ford,232 P.3d 260, 263 (Colo.App.2009); Sanger v. Dennis,148 P.3d 404, 410 (Colo.App.2006). ¶ 21 Trujillo raises only an as-applied challenge to the identity theft statute.
An as-applied challenge alleges that a statute is unconstitutional as to the specific circumstances under which a defendant acted. People v. Ford, 232 P.3d 260, 263 (Colo.App.2009). Whether a defendant has made a threshold showing that the First Amendment applies to his conduct is a question of law that we review de novo.
“[A]n as-applied challenge alleges that the statute is unconstitutional as to the specific circumstances under which a defendant acted.” People v. Gardner, 250 P.3d 1262, 1268 (Colo.App.2010) (quoting People v. Ford, 232 P.3d 260, 263 (Colo.App.2009)). The record is replete with evidence that defendant, via computer messages, described explicit sexual conduct to “Trista.”
Defendant's argument raises an as-applied challenge to the portion of the restitution statute requiring postjudgment interest. See People v. Ford, 232 P.3d 260, 263 (Colo. App. 2009)("an as-applied challenge alleges that the statute is unconstitutional as to the specific circumstances under which a defendant acted"). Thus, defendant bears the burden of proving, beyond a reasonable doubt, that the statute's application to him is unconstitutional.