People v. Rojas , 2018 COA 20 ( 2018 )

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
February 22, 2018
2018COA20
No. 15CA0126, People v. Rojas — Crimes — Theft — Colorado
Public Assistance Act — Food Stamps — Fraudulent Acts
A division of the court of appeals considers whether a
defendant can be prosecuted for theft of food stamps under the
general theft statute, section 18-4-401, C.R.S. 2017, or whether
that defendant can only be prosecuted under a more specific
statute criminalizing the theft of food stamps by a fraudulent act,
section 26-2-305, C.R.S. 2017. Applying the test from People v.
Bagby, 734 P.2d 1059 (Colo. 1987), the majority concludes that the
defendant here could only be prosecuted under the more specific
statute. The dissent disagrees.
COLORADO COURT OF APPEALS 2018COA20
Court of Appeals No. 15CA0126
Larimer County District Court No. 13CR1903
Honorable Daniel J. Kaup, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Brooke E. Rojas,
Defendant-Appellant.
JUDGMENT VACATED AND CASE
REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE FURMAN
Taubman, J., concurs
Richman, J., dissents
Announced February 22, 2018
Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Rachel K. Mercer, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 In this appeal, we are asked to determine whether defendant,
Brooke E. Rojas, could be prosecuted for theft of food stamps under
the general theft statute, as the People argue, or whether she could
only be prosecuted under a more specific statute criminalizing the
theft of food stamps by a fraudulent act, as Rojas argues. We agree
with Rojas that the legislature intended that she could only be
prosecuted under the more specific theft of food stamps statute.
Accordingly, we vacate Rojas’s theft convictions.
I. Rojas’s Theft
¶2 Rojas was working at a restaurant supporting her family until
she was laid off in August 2012. She then applied for food stamps
from the Larimer County Department of Human Services. On
January 13, 2013, when requesting an extension of food stamp
benefits, Rojas reported that she had no employment income. But,
she had been hired as a restaurant manager with an annual income
of $55,000 per year. While continuing to work as a restaurant
manager, Rojas received $5632 worth of food stamps to which she
was not entitled.
1
¶3 The prosecution eventually charged Rojas with two counts of
theft under the general theft statute, section 18-4-401, C.R.S. 2017.
Count 1 alleged that she had received food stamps between
February 1, 2013 and June 1, 2013; count 2 alleged that she had
received food stamps on July 1, 2013. In response, Rojas filed a
motion to dismiss these charges, arguing that pursuant to our
supreme court’s decision in People v. Bagby, 734 P.2d 1059 (Colo.
1987), the prosecution was barred from prosecuting her under the
general theft statute and could only prosecute her under a more
specific statute criminalizing the theft of food stamps by a
fraudulent act, section 26-2-305(1)(a), C.R.S. 2017. The trial court
denied this motion, ruling that under Bagby, the prosecution could
charge Rojas under the general theft statute.
¶4 Rojas then asked the court to add a lesser non-included
offense instruction under section 26-2-305(2), C.R.S. 2017, which
makes it a crime for a participant in the food stamp program not to
report a change in that participant’s financial circumstances that
affects that participant’s eligibility for food stamps. The prosecution
agreed that this subsection “sets forth a completely new crime.”
2
The court granted Rojas’ request. The jury found her guilty of this
offense, and two counts of theft under the general theft statute.
¶5 On appeal, Rojas challenges the trial court’s denial of her
motion to dismiss the general theft counts.
II. Standard of Review
¶6 In determining whether Rojas could be prosecuted under the
general theft statute or whether she could only be prosecuted under
the more specific statute, we recognize that a single transaction
may establish the commission of more than one criminal offense.
See People v. James, 178 Colo. 401, 404, 497 P.2d 1256, 1257
(1972). And, usually, if a single transaction establishes the
commission of more than one offense, the prosecution may
prosecute the defendant for each offense committed. See
§ 18-1-408(2), C.R.S. 2017; see also People v. Clanton, 2015 COA 8,
¶ 10. But, our supreme court has determined that the prosecution
is barred from prosecuting under a general criminal statute when
the legislature evinces a clear intent to limit prosecution to a more
specific statute. See People v. Smith, 938 P.2d 111, 115-16 (Colo.
3
1997); Bagby, 734 P.2d at 1061; People v. Montante, 2015 COA 40,
¶ 14; Clanton, ¶ 11. This intent is not always explicitly stated.
¶7 To determine whether the legislature intended to limit
prosecution to a more specific statute, our supreme court in Bagby
has directed us to consider three factors. Smith, 938 P.2d at 116.
These Bagby factors are:
(1) whether the [specific] statute invokes the
full extent of the state’s police powers; (2)
whether the specific statute is part of an act
creating a comprehensive and thorough
regulatory scheme to control all aspects of a
substantive area; and (3) whether the act
carefully defines different types of offenses in
detail.
Id.; see Clanton, ¶ 12.
¶8 We review de novo whether the General Assembly intended to
supplant a general criminal statute by enacting a more specific
statute. Clanton, ¶ 13. This is so because this question is one of
statutory interpretation. Id.
¶9 With this in mind, we turn to the parties’ contentions.
III. “Independent” Criminal Offense
¶ 10 Initially, the People contend that the more specific statute,
section 26-2-305(1)(a), is not subject to the Bagby analysis because
4
it actually does not create a criminal offense “independent” of the
general theft statute. We disagree. Bagby and its progeny only
require that the statute be more “specific” than the general statute,
and we conclude that section 26-2-305(1)(a) is a more “specific”
statute separate from the general theft statute. Smith, 938 P.2d at
116; People v. Warner, 930 P.2d 564, 568 (Colo. 1996); Bagby, 734
P.2d at 1061.
¶ 11 The general theft statute, under which Rojas was prosecuted,
reads, in pertinent part as follows:
A person commits theft when he or she
knowingly obtains, retains, or exercises control
over anything of value of another without
authorization or by threat or deception; or
receives, loans money by pawn or pledge on, or
disposes of anything of value or belonging to
another that he or she knows or believes to
have been stolen, and:
(a) Intends to deprive the other person
permanently of the use or benefit of the thing
of value;
(b) Knowingly uses, conceals, or
abandons the thing of value in such manner
as to deprive the other person permanently of
its use or benefit; [or]
(c) Uses, conceals, or abandons the thing
of value intending that such use, concealment,
or abandonment will deprive the other person
permanently of its use or benefit . . . .
5
§ 18-4-401(1).
¶ 12 In contrast, the theft of food stamps by a fraudulent act
statute, section 26-2-305(1)(a), reads, in pertinent part, as follows:
Any person who obtains, or any person who
aids or abets another to obtain, food stamp
coupons or authorization to purchase cards or
an electronic benefits transfer card or similar
credit card-type device through which food
stamp benefits may be delivered to which the
person is not entitled, or food stamp coupons
or authorization to purchase cards or an
electronic benefits transfer card or similar
credit card-type device through which food
stamp benefits may be delivered the value of
which is greater than that to which the person
is justly entitled by means of a willfully false
statement or representation, or by
impersonation, or by any other fraudulent
device with intent to defeat the purposes of the
food stamp program commits the crime of
theft, which crime shall be classified in
accordance with section 18-4-401(2), C.R.S.,
and which crime shall be punished as provided
in section 18-1.3-401, C.R.S., if the crime is
classified as a felony, or section 18-1.3-501,
C.R.S., if the crime is classified as a
misdemeanor.
Section 26-2-305 then enumerates administrative penalties for
individuals who have committed the types of thefts described above.
See § 26-2-305(1)(a)-(e).
6
¶ 13 The People urge us to interpret section 26-2-305(1)(a) as
simply reiterating that fraudulently obtaining food stamps is a theft
under the general theft statute, and not as creating an
“independent” criminal offense, because it “(1) defines such conduct
as being the ‘crime of theft’; (2) cross-references the theft statute as
defining the classification and penalties of this ‘crime of theft’; and
(3) merely provides for additional administrative penalties for one
who commits such thefts.” We decline to do so.
¶ 14 The interpretation of section 26-2-305(1)(a) suggested by the
People would render most, if not all, of the language of section
26-2-305(1)(a) quoted above superfluous. See Welby Gardens v.
Adams Cty. Bd. of Equalization, 71 P.3d 992, 995 (Colo. 2003) (“In
construing a statute, interpretations that render statutory
provisions superfluous should be avoided.”). Indeed, it would be
unnecessary for the General Assembly simply to reiterate that
fraudulently obtaining food stamps is a theft under the general theft
statute considering that this activity is already a theft under the
general theft statute. Likewise, it would be unnecessary for the
7
General Assembly simply to reiterate that crimes of theft under the
general theft statute are classified under the general theft statute.
¶ 15 We conclude that a better interpretation of section
26-2-305(1)(a) is that it creates a more specific criminal offense of
the theft of food stamps by a fraudulent act. See People v. Joyce, 68
P.3d 521, 523 (Colo. App. 2002) (“The goal in interpreting any
statute is to determine and give effect to the intent of the General
Assembly by looking first to the language of the statute itself.”).
Indeed, this section includes a detailed description of the elements
of a more specific criminal offense. Under section 26-2-305(1)(a), a
person “commits the crime of theft” under the food stamp program
when that person
(1) “obtains, or . . . aids or abets another to obtain”;
(2) “food stamp coupons or authorization to purchase cards or
an electronic benefits transfer card or similar credit card-
type device through which food stamp benefits may be
delivered to which the person is not entitled, or food stamp
coupons or authorization to purchase cards or an
electronic benefits transfer card or similar credit card-type
8
device through which food stamp benefits may be delivered
the value of which is greater than that to which the person
is justly entitled”;
(3) “by means of a willfully false statement or representation,
or by impersonation, or by any other fraudulent device with
intent to defeat the purposes of the food stamp program.”
Section 26-2-305(1)(a) also gives specific directions for determining
the classification of, and the penalty for, an offense under this
section.
¶ 16 In interpreting section 26-2-305(1)(a) in this way, we note that
this statute includes an additional penalty not included in the
general theft statute, which suggests that the General Assembly
intended to create a specific criminal offense separate from an
offense under the general theft statute. Section 26-2-305(1)(a)
states that “[a]ny person violating the provisions of this subsection
(1) is disqualified from participation in the food stamp program for
one year for a first offense, two years for a second offense, and
permanently for a third or subsequent offense.” This penalty
9
applies to the “offense” of “violating the provisions” of section
26-2-305(1)(a) and not to an offense under the general theft statute.
¶ 17 We also note that our interpretation of section 26-2-305 as
creating a more specific criminal offense is supported by section
18-1-202, C.R.S. 2017. This section gives a prosecutor authority to
try a defendant for multiple crimes committed in different judicial
districts in a single proceeding if the crimes “aris[e] from the same
criminal episode.” § 18-1-202(7)(a). One criminal offense that may
be considered part of the same criminal episode if committed more
than once within a six-month period is “[f]raud in connection with
obtaining food stamps” under section 26-2-305.
§ 18-1-202(7)(b)(II)(T). This suggests that the General Assembly
intended section 26-2-305(1)(a) to create a separate and more
specific criminal offense. See Clanton, ¶ 13.
¶ 18 And, although the dissent argues that “[n]either the title nor
the text of [section 26-2-305] names a separate crime,” we disagree.
Infra ¶ 46. The title of section 26-2-305 is “Fraudulent acts —
penalties,” specifying that the criminal offense outlined in this
section involves fraudulent acts. And, again, in section
10
18-1-202(7)(b)(II)(T), the General Assembly titled the criminal
offense described in section 26-2-305 as “Fraud in connection with
obtaining food stamps.”
¶ 19 The dissent also suggests that section 26-2-305(1)(a) only
exists to specify that a food stamp is “a thing of value” that belongs
to “another” — that is, a government agency. Infra ¶ 49. But, we
disagree for a number of reasons. First, we cannot discern why
there would be a need to specify that a food stamp is “a thing of
value” or that a government agency is “another” under the general
theft statute. Second, section 26-2-305(1)(a) nowhere references
subsection (1) of the general theft statute, which describes the
elements of theft and includes the terms “thing of value” and
“another.” § 18-4-401. Instead, section 26-2-305(1)(a) only
references subsection (2) of the general theft statute, which outlines
the classification of offenses based on the value of the thing taken.
¶ 20 The dissent then relies on three cases for the proposition that
defendants have “been convicted under the general theft statute for
fraudulently obtaining food stamps.” Infra ¶ 46. But, these three
cases are inapplicable to Rojas’s case. In Valenzuela v. People, 893
11
P.2d 97, 99 (Colo. 1995), the supreme court addressed whether
interest could be charged in connection with restitution for the theft
of food stamps and other public benefits, and there is no indication
that the Bagby issue was raised in this case. Likewise, in People v.
Davalos, 30 P.3d 841, 843-45 (Colo. App. 2001), a case involving
theft of food stamps and other public benefits, the division
addressed an evidentiary issue, prosecutorial misconduct,
instructional issues, and restitution issues, but there is no
indication that the Bagby issue was raised. And, in People v. Witt,
15 P.3d 1109, 1110 (Colo. App. 2000), the division addressed a
restitution issue in connection with the theft of food stamps, but,
again, there is no indication that the Bagby issue was raised in this
case.
¶ 21 The dissent also relies on the legislative history of section
26-2-305(1)(a) in determining whether this section creates a
separate criminal offense. But, for the reasons stated above, we
conclude that it is clear that section 26-2-305(1)(a) creates a
separate, more specific criminal offense; thus, we need not consider
section 26-2-305(1)(a)’s legislative history. See Dillard v. Indus.
12
Claim Appeals Office, 121 P.3d 301, 303-04 (Colo. App. 2005) (The
court may consider legislative history if “the meaning of a statute is
unclear, ambiguous, or uncertain as to its intended scope.”), aff’d,
134 P.3d 407 (Colo. 2006).
IV. Bagby Analysis
¶ 22 Having determined that section 26-2-305(1)(a) creates a
separate, more specific criminal offense, we now consider the Bagby
factors to determine whether the General Assembly intended
section 26-2-305 to supplant the general theft statute. We
conclude that each Bagby factor suggests that the General
Assembly intended section 26-2-305(1)(a) to supplant the general
theft statute.
A. Full Police Powers
¶ 23 We first conclude that section 26-2-305 invokes the full extent
of the state’s police powers. See Smith, 938 P.2d at 116.
¶ 24 In Bagby, our supreme court determined that the Liquor Code
invoked the full extent of the state’s police powers when the Liquor
Code’s legislative declaration stated that it was adopted as “an
exercise of the police powers of the state for the protection of the
13
economic and social welfare and the health, peace and morals of
the people of the state.” 734 P.2d at 1062 (quoting § 12–47–102(1),
C.R.S. 1985)); see Clanton, ¶ 14. The supreme court “viewed this
‘broad’ language as ‘suggest[ing] that in adopting specific penal
provisions in the Liquor Code, the General Assembly exercised the
full police power of the state and considered the full range of
possible sanctions in selecting those most appropriate for violations
of the Liquor Code.’” Clanton, ¶ 14 (quoting Bagby, 734 P.2d at
1062).
¶ 25 And, in Warner, 930 P.2d at 568, the supreme court found
that, like the Liquor Code, the Limited Gaming Act invoked the full
extent of the state’s police powers. In so doing, the supreme court
cited to the Limited Gaming Act’s legislative declaration, id., which
states that limited gaming establishments must “be licensed,
controlled, and assisted to protect the public health, safety, good
order, and the general welfare of the inhabitants of the state to
foster the stability and success of limited gaming and to preserve
the economy and policies of free competition of the state of
Colorado,” § 12-47.1-102(1)(c), C.R.S. 2017.
14
¶ 26 Section 26-2-305 is part of the Colorado Public Assistance Act,
sections 26-2-101 to -1104, C.R.S. 2017. The legislative
declaration to the Public Assistance Act reads as follows:
It is the purpose of this article to promote the
public health and welfare of the people of
Colorado by providing, in cooperation with the
federal government or independently, public
assistance for needy individuals and families
who are residents of the state and whose
income and property are insufficient to meet
the costs of necessary maintenance and
services as determined by the state
department and to assist such individuals and
families to attain or retain their capabilities for
independence, self-care, and self-support, as
contemplated by article XXIV of the state
constitution and the provisions of the social
security act and the food stamp act. The state
of Colorado and its various departments,
agencies, and political subdivisions are
authorized to promote and achieve these ends
by any appropriate lawful means through
cooperation with and utilization of available
resources of the federal government and
private individuals and organizations.
§ 26-2-102, C.R.S. 2017.
¶ 27 Sections 26-2-305 and 26-2-306, C.R.S. 2017, create several
criminal offenses related to obtaining, using, transferring, and
disposing of food stamps in ways not authorized by the Public
Assistance Act. These sections also include directions on how to
15
determine the classification of, and penalties for, such offenses.
See §§ 26-2-305(1)(a), -306(2), C.R.S. 2017.
¶ 28 Section 26-2-305(4) contemplates district attorneys enforcing
this section as follows:
Additional costs incurred by district attorneys
in enforcing this section, in accordance with
the rules of the state department, shall be
billed to county departments in the judicial
district in the proportion to each county as
specified in section 20-1-302, C.R.S., and the
county departments shall pay such costs as an
expense of food stamp administration.
¶ 29 We conclude that the Public Assistance Act’s legislative
declaration contains “broad” language, similar to that in Warner,
that invokes the full extent of the state’s police powers. See Warner,
930 P.2d at 568; Bagby, 734 P.2d at 1062. But cf. Montante, ¶¶ 16-
17 (holding that the statute did not invoke full police powers where
purpose of law was to create limited exceptions to criminal laws for
providers and users of medical marijuana); People v. Stansberry, 83
P.3d 1188, 1190 (Colo. App. 2003) (holding that the purpose of the
statute was merely to assess and collect motor vehicle taxes); People
v. Tow, 992 P.2d 665, 667-68 (Colo. App. 1999) (holding that the
purpose of the statute was merely to achieve uniformity among
16
traffic laws). The legislative declaration states that the purpose of
the Public Assistance Act is “to promote the public health and
welfare of the people of Colorado by providing . . . public assistance
for needy individuals and families who are residents of the
state . . . .” § 26-2-102. Although this declaration does not
explicitly mention “safety” and “order,” it does authorize state
agencies to achieve the goals of the Public Assistance Act “by any
appropriate lawful means.” Id. Also, considering that the Public
Assistance Act creates several criminal offenses and contemplates
district attorneys prosecuting these offenses suggests that the
General Assembly intended to invoke the state’s law enforcement
powers to achieve the goals of the Public Assistance Act. See
Bagby, 734 P.2d at 1062; Clanton, ¶ 14.
¶ 30 Nevertheless, the People contend that the Public Assistance
Act’s legislative declaration “never invokes ‘police powers’ and this
declaration never even mentions penalties, fines or addressing
fraud in connection to these assistance programs.” We are not
persuaded by this argument. The legislative declaration in Warner
did not explicitly refer to “police powers” either. See Warner, 930
17
P.2d at 568. And, although the legislative declaration to the Public
Assistance Act does not mention “penalties, fines, or addressing
fraud,” nothing in Bagby or Warner suggests that the General
Assembly must specifically mention these types of things in a
legislative declaration to invoke the full extent of the state’s police
powers. See id.; Bagby, 734 P.2d at 1062. Also, the Public
Assistance Act does mention these types of things in sections
26-2-305 and 26-2-306.
¶ 31 Citing Clanton, ¶ 17, the People also contend that the Public
Assistance Act invokes the state’s police powers only in a limited
way. We disagree. The Public Assistance Act’s legislative
declaration includes language designed not to limit the state’s
power to achieve the goals of the Public Assistance Act. Indeed, the
legislative declaration authorizes state agencies to achieve the goals
of the Public Assistance Act “by any appropriate lawful means.”
§ 26-2-102. This type of language was not present in the legislative
declaration analyzed in Clanton. See Clanton, ¶ 16.
18
B. Comprehensive and Thorough Regulatory Scheme
¶ 32 We next conclude that section 26-2-305 is part of an act that
creates a comprehensive and thorough regulatory scheme to control
all aspects of Colorado’s food stamp program. See Smith, 938 P.2d
at 116. The Public Assistance Act regulates all aspects of this food
stamp program by dictating which agency will administer the
program, outlining the process for applying for the program,
criminalizing violations of the program’s rules, and providing for
numerous administrative and criminal penalties for violating the
program’s rules. See §§ 26-2-301 to -306; see also Clanton, ¶ 19
(holding that the Colorado Employment Security Act is a
comprehensive regulatory scheme under Bagby).
¶ 33 Nevertheless, citing Montante, ¶ 24, the People contend that
the Public Assistance Act “does not expressly criminalize all
improper conduct by recipients in such a way as to suggest a
comprehensive and thorough regulatory scheme.” We disagree. In
Montante, the division concluded that medical marijuana
legislation, regulating the conduct of physicians with regard to
medical marijuana, was not a comprehensive and thorough
19
regulatory scheme because, while it provided comprehensive civil
regulations, it did not “criminalize all improper conduct by
physicians in connection with medical marijuana.” ¶ 24. But, the
Public Assistance Act does criminalize all improper conduct with
regard to food stamps by criminalizing obtaining, using,
transferring, and disposing of food stamps in ways not authorized
by the Public Assistance Act. See §§ 26-2-305(1)(a), -305(2),
-306(1).
C. Multiple and Detailed Penalties
¶ 34 We also conclude that the Public Assistance Act carefully
defines several different types of criminal offenses in detail. See
Smith, 938 P.2d at 116.
¶ 35 As discussed above, section 26-2-305(1)(a) creates the crime of
theft of food stamps by a fraudulent act, describing in detail the
elements of this crime and giving directions as to how to determine
the classification of and the penalty for the commission of this
offense.
¶ 36 And, as noted, section 26-2-305(2) makes it a crime for a
participant in the food stamp program not to report a change in
20
that participant’s financial circumstances that affects that
participant’s eligibility for food stamps. Subsection (2) gives a
detailed description of the elements of this offense, classifies the
offense as a class 3 misdemeanor, and gives direction as to how to
determine the penalty for the offense.
¶ 37 Section 26-2-306 of the Public Assistance Act creates the
criminal offense of “trafficking in food stamps.” In short,
“trafficking in food stamps” involves knowingly obtaining, using,
transferring, or disposing of food stamps in a way not authorized by
the food stamp program. See § 26-2-306(1). But, section
26-2-306(1) gives very detailed descriptions of various ways that a
person can commit the offense of “trafficking in food stamps.”
Section 26-2-306(2) provides specific standards for classifying an
offense under the statute and includes classifications from a class 2
misdemeanor to a class 3 felony.
¶ 38 Given that each Bagby factor suggests that the General
Assembly intended section 26-2-305 to supplant the general theft
statute, we conclude that the prosecution was barred from
prosecuting Rojas under the general theft statute. See Smith, 938
21
P.2d at 115; Bagby, 734 P.2d at 1061; Montante, ¶ 14; Clanton,
¶ 11. Accordingly, we vacate Rojas’s convictions under the general
theft statute.
V. Remedy
¶ 39 Rojas contends that if we vacate her convictions under the
general theft statute, section 18-1-408(2) and Crim. P. 8(a)(1) do not
permit the prosecution to then charge her under section
26-2-305(1)(a). We do not address this issue because it is not
properly before us. If the prosecution chooses to prosecute Rojas
under section 26-2-305(1)(a), Rojas may raise this contention before
the trial court.
VII. Conclusion
¶ 40 Rojas’ convictions under the general theft statute are vacated.
In light of our holding, we need not address the parties’ remaining
contentions.
JUDGE TAUBMAN concurs.
JUDGE RICHMAN dissents.
22
JUDGE RICHMAN, dissenting.
¶ 41 I disagree with the majority’s conclusion that section
26-2-305, C.R.S. 2017, precludes defendant’s conviction under the
general theft statute for two reasons. First, in my view, section
26-2-305 does not create a criminal offense separate from the
general theft statute, section 18-4-401, C.R.S. 2017. Therefore,
defendant’s conviction under 18-4-401 should stand. Second, even
if section 26-2-305 creates a separate offense, it does not meet the
Bagby factors suggesting that the statute supplanted the general
theft statute. See People v. Bagby, 734 P.2d 1059 (Colo. 1987).
Therefore, the prosecution acted within its discretion to proceed
under the general theft statute. See People v. Clanton, 2015 COA 8,
¶ 10 (“It is up to the prosecutor to determine which crimes to
charge when a person’s conduct arguably violates more than one
statute.”).
¶ 42 I also discuss two issues that the majority did not reach: (1)
the propriety of the prosecution’s choice to aggregate the thefts into
one class 4 felony and one class 6 felony and (2) an evidentiary
issue.
23
I. Separate Offense
¶ 43 I reach my first conclusion by a plain reading of the language
of the statute. See People v. Joyce, 68 P.3d 521, 523 (Colo. App.
2002) (“The goal in interpreting any statute is to determine and give
effect to the intent of the General Assembly by looking first to the
language of the statute itself.”).
¶ 44 Section 26-2-305(1)(a) provides several methods by which a
person may commit the offense of obtaining food stamps by a
fraudulent act. A person may violate the statute by “means of a
willfully false statement or representation,” “impersonation,” or “any
other fraudulent device with intent to defeat the purposes of the
food stamp program.” § 26-2-305(1)(a).1
¶ 45 As the statute plainly states, any person who obtains food
stamps by means of one of those fraudulent acts “commits the
crime of theft.” Id. The statute further provides that the crime is
1 Under this reading, the intent requirement of “intent to defeat the
purposes of the food stamp program” attaches only to the use of a
fraudulent device. § 26-2-305, C.R.S. 2017. The intent
requirement in a case involving fraudulently obtaining food stamps
by means of a “willfully false statement or representation” or by
“impersonation,” id., is the intent requirement under section
18-4-401, C.R.S. 2017.
24
classified as a felony or a misdemeanor in accordance with the
general theft statute and depends on the value of the food stamps
obtained. If the crime is a felony, punishment is determined under
section 18-1.3-401, C.R.S. 2017, and if a misdemeanor, under
section 18-1.3-501, C.R.S. 2017.
¶ 46 Neither the title nor the text of the statute names a separate
crime. To me, any offender reading the statute would be informed
that the offense committed would be theft and that the subject
punishment would be based on the theft statutes; any prosecutor
reading the statute would know to charge the offense as theft.
Historically, defendants have been convicted under the general theft
statute for fraudulently obtaining food stamps, just as defendant
was here. See Valenzuela v. People, 893 P.2d 97 (Colo. 1995);
People v. Davalos, 30 P.3d 841 (Colo. App. 2001); People v. Witt, 15
P.3d 1109 (Colo. App. 2000).
¶ 47 Moreover, if we look beyond the statutory language, the
legislative history evinces a clear intent to charge fraudulent
acquisition of food stamps under the general theft statute. The
General Assembly added the pertinent words to section 26-2-305 in
1989, as part of “An Act Concerning Criminal Offenses, and
25
Relating to the Classification Thereof,” changing the relevant
language from
[any person who fraudulently obtains food
stamp benefits] shall be punished as follows: If
such coupons or authorization to purchase
cards are of a value of five hundred dollars or
more, such person commits a class 5 felony
and shall be punished as provided in section
18-1-105, C.R.S. 1973; or, if such coupons or
authorization to purchase cards are of the
value of less than five hundred dollars, he
commits a class 3 misdemeanor and shall be
punished as provided in section 18-1-106,
C.R.S. 1973,
to
[any person who fraudulently obtains food
stamp benefits] commits the crime of theft,
which crime shall be classified in accordance
with section 18-4-401(2), C.R.S., and which
crime shall be punished as provided in section
18-1-105, C.R.S., if the crime is classified as a
felony, or section 18-1-106, C.R.S., if the crime
is classified as a misdemeanor.
Ch. 148, sec. 119, § 26-2-305, 1989 Colo. Sess. Laws 820, 846-47
(emphasis added).2 The former version plainly described a separate
crime under this statute; the revision rendered the crime as theft.
2 In the same bill, the General Assembly substituted identical
language into section 26-1-127, regarding fraudulent acts to obtain
26
¶ 48 As noted above, case law reveals that defendants obtaining
food stamps by fraudulent means have been prosecuted under the
general theft statute since the 1989 amendment. And the
legislature left the pertinent language regarding the “crime of theft”
intact, despite having amended section 26-2-305 three additional
times since 1989.3 See Tompkins v. DeLeon, 197 Colo. 569, 571,
595 P.2d 242, 243-44 (1979) (holding that where the legislature
amends a statute and does not change a section previously
interpreted by settled construction, it is presumed that the
legislature agrees with the judicial construction).
¶ 49 I disagree with the majority that the language of section
26-2-305(1)(a) is rendered superfluous if the offense is prosecuted
as a theft. The theft statute provides that an offense is committed
when a person obtains anything of value of another without
authorization. By incorporating the theft statute, the effect of
“public assistance or vendor payments or medical assistance.” Ch.
148, sec. 118, § 26-1-127, 1989 Colo. Sess. Laws 846.
3 After the 1989 amendment, the legislature subsequently amended
section 26-2-305 in 1994, 1997, and 2002. Ch. 330, sec. 7, § 26-2-
305, 1994 Colo. Sess. Laws 2065; Ch. 234, sec. 27, § 26-2-305,
1997 Colo. Sess. Laws 1235-36; Ch. 318, sec. 273, § 26-2-305,
2002 Colo. Sess. Laws 1539.
27
section 26-2-305(1)(a) is to specify that food stamps are a thing of
value, akin to dollars, and that although obtained from a
government agency that issues but does not “own” the food stamps,
the agency nonetheless has a proprietary interest in the food
stamps, as provided in 18-4-401(1.5).
¶ 50 I also depart from the majority because if section
26-2-305(1)(a) is a separate offense, it is unclear what the
punishment or penalty would be. The majority suggests that the
General Assembly intended to create a specific criminal offense by
including “an additional penalty” (disqualification from participating
in the food stamp program). Supra ¶ 16. But that additional
penalty is administrative, not criminal, and as the majority
acknowledges, the administrative penalty is not the only penalty for
violation of the statute. The only other specified penalties are the
penalties under the theft statutes. If the General Assembly did not
intend for violations of section 26-2-305(1)(a) to be prosecuted as
theft, there would be no reason to import the penalties from the
theft statute. Conversely, if the General Assembly did intend
section 26-2-305(1)(a) to be a separate criminal offense, it would
have included separate penalties. The additional administrative
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penalty also shows that section 26-2-305(1)(a) is not superfluous to
the theft statute as it provides for a penalty separate from the
criminal penalties of the theft statute.
II. Bagby Analysis
¶ 51 If the same conduct is described as criminal in different
statutes, the offender may be prosecuted under any or all of the
sections. § 18-1-408(7), C.R.S. 2017. However, a more specific
statute precludes prosecution under a more general statute only
when “legislative intent is shown to limit prosecution to the
[specific] statute.” Bagby, 734 P.2d at 1061. Such legislative intent
may be demonstrated by the Bagby factors described in the
majority opinion. But unless the General Assembly’s intent to
supplant the more general offense is clear, an offender may be
prosecuted under the general statute. Clanton, ¶ 11; see People v.
Smith, 938 P.2d 111, 115 (Colo. 1997). I do not perceive any clear
indicia of the General Assembly’s intent to supplant the general
theft statute.
¶ 52 Bagby requires that the full extent of the state’s police powers
be invoked by the more specific act. In my view, section 26-2-305
does not invoke the full extent of the state’s police powers to
29
prevent food stamp fraud because it does not purport to invoke any
of the state’s police powers.
¶ 53 In Bagby, the supreme court concluded that the Liquor Code
invoked the full extent of the state’s police powers because the
legislative declaration expressly stated the law was passed in
exercise of the police powers of the state. 734 P.2d at 1062. In
People v. Warner, 930 P.2d 564, 567-68 (Colo. 1996), the supreme
court concluded that the Limited Gaming Act invoked the full extent
of the state’s police powers because coincident to its enactment, the
General Assembly codified the offenses defined in the act in article
20 of the Criminal Code, and the legislative declaration in section
18-20-101, C.R.S. 2017, invoked the need for “the immediate and
future preservation of the public peace, health, and safety.” In
Clanton, a division of our court declined to conclude that the
defendant could not be prosecuted under a general forgery statute,
noting that while the Employment Security Act states that it was
enacted “under the police powers of the state,” the invocation was
“more limited” than the statutes at issue in Bagby and Warner.
Clanton, ¶¶ 16-17.
30
¶ 54 In support of its conclusion that section 26-2-305 invokes the
full extent of the state’s police power with respect to food stamp
fraud, the majority cites to the legislative declaration attached to
the Public Assistance Act. See § 26-2-102, C.R.S. 2017. That
legislative declaration is not specifically attached to the provisions
prohibiting food stamp fraud, but even to the extent it can be read
in conjunction with section 26-2-305, it does not contain any
language regarding the police powers or the public peace and
safety. Rather, it refers to the promotion of public assistance
programs for the welfare of the people in cooperation with the
federal government. To the extent the statute can be read as
making any reference to the exercise of police powers, it does not
provide for the exercise of the “full extent” of such powers.
¶ 55 Because I conclude that the first Bagby factor is not met by
the provisions of section 26-2-305, I do not address the other two
factors.
III. Other Issues
A. Effect of 2013 Amendments to Theft Statute
¶ 56 On appeal, defendant argued two issues that the majority does
not reach. Because I would affirm defendant’s convictions but
31
change the classification of one conviction, I briefly address
defendant’s two additional arguments.
¶ 57 On June 5, 2013, the General Assembly amended the theft
statute to provide that a theft of at least $2000 or more but less
than $5000 was classified as a class 6 felony, and a theft of $5000
or more but less than $20,000 was classified as a class 5 felony.
Ch. 373, sec. 1, § 18-4-401, 2013 Colo. Sess. Laws 2196. Some of
the alleged acts of theft by defendant took place before June 5,
2013; others took place after June 5, 2013.
¶ 58 In an apparent recognition of the statutory amendment, the
prosecutor ultimately charged defendant with one count relating to
the alleged thefts that occurred before June 5, 2013, and charged
those as a class 4 felony under the provisions of the former statute,
and with a second count relating to the alleged thefts that occurred
after June 5, 2013, and charged those as a class 6 felony under the
amended statute.
¶ 59 Defendant asserts that the prosecution aggregated the
amounts at issue before June 5, 2013, so that defendant was
accused of stealing $3528 during that period (which under the
former theft statute would be a class 4 felony) and aggregated the
32
amounts at issue after July 5, 2013, so that defendant was accused
of stealing more than $2000 during this period (a class 6 felony
under the amended theft statute).
¶ 60 The jury was instructed on, and defendant was convicted of,
two separate counts of theft: a class 4 felony for the thefts occurring
before June 5, 2013, and a class 6 felony for the thefts occurring
after June 5, 2013. The trial court sentenced defendant to a
concurrent sentence of three years of probation on each count.
¶ 61 Defendant first contends that the prosecution was required to
aggregate the total amount of the thefts into one count because
they occurred within a six-month period. Defendant further
contends that the classifications under the amended theft statute
should be applied, and therefore had the amounts been aggregated
and defendant charged in one count and convicted, it would have
resulted in one conviction for a class 5 felony.
¶ 62 I agree with defendant’s contention that the classifications
under the amended theft statute should apply to her convictions. I
disagree with her remaining contentions.
¶ 63 Defendant was charged under 18-4-401(4)(a) for committing
theft twice or more within a period of six months. That statute and
33
case law permit, but do not require, the prosecution to aggregate
the thefts and charge them in a single count. Because aggregation
was not mandatory, the prosecution was not required to aggregate
defendant’s thefts into one count.
¶ 64 Defendant was convicted and sentenced after the June 2013
amendments to the theft statute. In People v. Stellabotte, 2016 COA
106, ¶ 45 (cert. granted Feb. 6, 2017), a division of this court
concluded that a defendant who committed thefts prior to the 2013
amendment was entitled to benefit from the amendment at
sentencing insofar as it reduced the classification of the offenses. I
agree with the reasoning of Stellabotte. Thus, defendant’s
conviction for acts occurring before the June 5, 2013, amendment
should be reduced to a class 6 felony.
B. Evidentiary Issue
¶ 65 On appeal, Rojas also contends that the trial court abused its
discretion by admitting as res gestae evidence that she lied about
her employment income on an August 9, 2013 reapplication for food
stamps. Because the application provided evidence of defendant’s
mental state and demonstrated that she had knowingly received a
thing of value of another by deception, it was “part and parcel” of
34
the crime charged. Callis v. People, 692 P.2d 1045, 1051 n.9 (Colo.
1984). Accordingly, I perceive no abuse of discretion by the trial
court.
IV. Conclusion
¶ 66 I respectfully dissent from the majority’s opinion. Because I
perceive no error in the admission of evidence or in prosecuting
defendant under the general theft statute, I would affirm the
convictions and remand for a correction of the mittimus to reflect
two class 6 felony convictions.
35