People v. Armijo, 27985

• Decision Date: 29 January 1979
• Docket Number: No. 27985,27985
• Citation: 197 Colo. 91,589 P.2d 935
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Anthony ARMIJO, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 935

589 P.2d 935

197 Colo. 91

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Anthony ARMIJO, Defendant-Appellee.

No. 27985.

Supreme Court of Colorado, En Banc.

Jan. 29, 1979.

Robert N. Miller, Dist. Atty., William G. Pharo, Deputy Dist. Atty., Greeley, for plaintiff-appellant.

A. M. Dominguez, Jr., Greeley, for defendant-appellee.

LEE, Justice.

The district attorney appeals from a judgment of the District Court of Weld County dismissing a three-count information. The defendant, Anthony Armijo, was charged in Count I with theft, section 18-4-401, C.R.S. 1973 (1976 Supp.), in Count II with defrauding a secured creditor, section 18-5-206, C.R.S. 1973 (1976 Supp.), and in Count III with removal of secured property, section 18-5-504, C.R.S. 1973.

The dismissal was entered by the court at the conclusion of a preliminary hearing on the basis that the district attorney had failed to establish probable cause. We reverse.

Evidence presented at the preliminary hearing to establish probable cause showed, in summary, the following. The defendant was the owner of a 1974 Chevrolet Corvette. On August 9, 1976, the defendant sold the vehicle to Carol Martinez for $5,500. This transaction took place at The Eaton Bank. The purchase price was financed by the execution of a chattel mortgage in favor of The Eaton Bank. At that time, in the presence of Ms. Martinez and the bank officer, the defendant signed the title to the Corvette and delivered it to the bank which gave a cashier's check for $5,500 to defendant. Thereafter, the defendant cashed the check and received the proceeds. At the time of this transaction, the bank officer notarized defendant's signature on the title.

At the conclusion of the transaction, Ms. Martinez was given the title documents and chattel mortgage with instructions from the bank to file them with the Clerk and Recorder of Weld County. Ms. Martinez placed these documents in the Corvette but failed to file them with the County Clerk as instructed by the bank.

In December of 1976, Ms. Martinez loaned the automobile to Jim Armijo, a brother of the defendant. On December 15, 1976, the Corvette was impounded by the Greeley police department after it had been used in a robbery in which Jim Armijo was allegedly involved. Thereafter, on January 27, 1977, the defendant was successful in procuring the release of the Corvette from the Greeley police department by using a 1976 registration as identification of ownership.

Neither Carol Martinez nor The Eaton Bank had at any time authorized the defendant to take possession of the vehicle. The vehicle was never again seen.

At the conclusion of the probable cause hearing, the district court found that there was insufficient evidence to establish that Ms. Martinez was the owner of the vehicle. The court reached this conclusion because Ms. Martinez had not complied with the requirements of the Certificate of Title Act, section 42-6-101 Et seq., C.R.S. 1973. Specifically, the court found that Ms. Martinez failed to comply with the provisions of section 42-6-109(1), which provides as follows:

" * * * The purchaser or transferee, within twenty days thereafter, shall present such certificate, duly transferred, together with his application for a new certificate of title to the director or one of his authorized agents, accompanied by the fee required in section 42-6-135 to be paid for the issuance of a new certificate of title; whereupon, a new certificate of title shall be issued and disposition thereof made as required in this part 1."

The district court reasoned that since a title to the Corvette had not been issued in the name of Ms. Martinez defendant was still the owner of the vehicle and could not, therefore, be guilty of its theft.

Additionally, the court ruled that the bank's security interest in the vehicle had not been perfected by reason of the failure to file the chattel mortgage with the Clerk and Recorder as required by section 42-6-119, C.R.S. 1973. The court thereupon dismissed all three counts of the information.

Preliminarily, we observe that the issue here is whether the evidence offered by the People, viewed in the light most favorable to the prosecution, was sufficient to induce a person of ordinary prudence and caution to a reasonable belief that the defendant committed the crimes charged. People v. Treat, 193 Colo. 570, 568 P.2d 473 (1977). Evidence sufficient to support a conviction is not necessary at this stage of the proceedings. People v. District Court, 186 Colo. 136, 526 P.2d 289 (1974).

It is undisputed from evidence presented that the defendant sold his Corvette to Ms. Martinez for $5,500, which he received. He did everything required of him by statute to transfer the title. Section 42-6-109(1), C.R.S. 1973, requires that " * * * the person in whose name said certificate of title is registered * * * shall, in his own person or by his agent or attorney thereunto duly authorized, execute a formal transfer of the vehicle described in the certificate, which transfer shall be subscribed and sworn to before an officer authorized to administer oaths in this state. * * * " Here, defendant executed the formal transfer of the title by subscribing his name before a notary public at the bank, and he then delivered the title and possession of the vehicle upon receipt of the funds. Thus, he completely divested himself of ownership of the vehicle and any right to possession thereof.

The district court, apparently relying on the case of Codding v. Jackson, 132 Colo. 320, 287 P.2d 976 (1955), erroneously concluded that since the purchaser failed to obtain a certificate of title in her name the ownership still remained in the defendant. Codding involved a "title jumping" situation where the certificate of title was endorsed in blank and delivered to the purchaser who, without obtaining a new certificate, attempted to transfer the ownership of the vehicle to a third person. This court noted that the legislature intended to deprive the certificate of title of negotiability. See also Dreiling v. St. Paul Insurance, 28 Colo.App. 318, 472 P.2d 153 (1970).

We do not find Codding, supra, determinative of the issue of ownership as between the defendant seller and his immediate purchaser, Martinez, particularly when the rights of a remote purchaser are not involved. In United Fire & Cas. Co. v. Perez, 161 Colo. 31, 419 P.2d 663 (...