People v. Clanton, Court of Appeals No. 12CA1144

• Docket Nº: Court of Appeals No. 12CA1144
• Citation: 2015 COA 8, 361 P.3d 1056
• Case Date: February 12, 2015
• Court: Court of Appeals of Colorado

361 P.3d 1056
2015 COA 8

The PEOPLE of the State of Colorado, Plaintiff–Appellee,
v.
Ronald CLANTON, Defendant–Appellant.

Court of Appeals No. 12CA1144

Colorado Court of Appeals, Div. VI.

Announced February 12, 2015

Cynthia H. Coffman, Attorney General, Ethan E. Zweig, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Audrey E. Bianco, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion

Opinion by JUDGE J. JONES

¶ 1 Defendant, Ronald Clanton, appeals his conviction for forgery and the restitution portion of his sentence. We affirm the conviction but vacate that portion of his sentence that includes a statutory penalty as part of his restitution obligation and remand the case to the district court.

I. Background

¶ 2 Defendant obtained unemployment compensation benefits to which he was not entitled by using a false Social Security number and a fake military discharge form. The People charged him with one count of forgery and one count of attempt to influence a public servant based on his indorsement and cashing of state-issued checks.

361 P.3d 1058

¶ 3 The trial court found defendant not guilty of attempt to influence a public servant but guilty of forgery. The court sentenced defendant to eighteen months of probation and ordered him to pay $12,397.50 in restitution. That total included a fifty percent statutory penalty of $4132.50, which the court believed was required by section 8–81–101(4)(a)(II), C.R.S. 2014.

II. Discussion

¶ 4 Defendant contends that he was unlawfully convicted of forgery because: (1) his conduct could be charged only under section 8–81–101(1)(a); and (2) charging him with forgery when his conduct could have been charged under section 8–81–101(1)(a)violated his constitutional right to equal protection of the laws. He also contends that the court erroneously imposed the statutory penalty as part of restitution because the penalty does not represent a pecuniary loss to the victim.

A. General or More Specific Statutory Prohibition

¶ 5 The People charged defendant under the general forgery statute, section 18–5–102, C.R.S. 2014, which is part of the Colorado Criminal Code. Defendant contends that because his conduct fit the more specific statute prohibiting the making of a false statement of material fact, with intent to defraud, to obtain unemployment compensation benefits, section 8–81–101(1)(a), he could be charged only under the latter statute. The statutory basis of the charge matters because forgery is a felony, but making a false statement in violation of section 8–81–101(1)(a)is only a misdemeanor. Defendant asserts that it also matters because if the People could only have charged him under section 8–81–101(1)(a), he cannot be charged under that section if we reverse his forgery conviction. See§ 18–1–408(2), C.R.S. 2014(where several offenses are known to the prosecuting authority at the time charges are instituted, they must be prosecuted in a single prosecution if they arise out of the same act or series of acts; “any offense not thus joined by separate count cannot thereafter be the basis of a subsequent prosecution”).

¶ 6 We conclude that the People could charge defendant under the general forgery statute.

1. Applicable Law and Standard of Review

¶ 7 As relevant here, the general forgery statute under which the People charged defendant provides:

(1) A person commits forgery, if, with intent to defraud, such person falsely makes, completes, alters, or utters a written instrument which is or purports to be, or which is calculated to become or to represent if completed:

...

(e) A written instrument officially issued or created by a public office, public servant, or government agency....

§ 18–5–102(1)(e). “Forgery is a class 5 felony.” § 18–5–102(2).

¶ 8 The Colorado Employment Security Act (the Act), sections 8–70–101to 8–82–105, C.R.S. 2014, includes a provision, section 8–81–101, setting forth penalties for certain violations of the Act. Defendant contends that the conduct with which he was charged fits within subsection (1)(a) of that provision. It states, in relevant part:

Any person who makes [a] false statement or representation of a material fact knowing it to be false, or knowingly fails to disclose a material fact, with intent to defraud by obtaining or increasing any benefit under articles 70 to 82 of this title or under an employment security law of any other state, of the federal government, or of a foreign government, either for himself or for any other person, is guilty of a misdemeanor....

¶ 9 Whether a person may be charged under a generally applicable criminal statute or must be charged only under a more specific provision prohibiting the same conduct is an issue governed by now familiar principles.

¶ 10 “[A] single transaction may give rise to the violation of more than one statute.” People v. James,178 Colo. 401, 404, 497 P.2d 1256, 1257 (1972). “When any conduct of a defendant establishes the commission of more than one offense, the defendant may be prosecuted for each such offense.”

361 P.3d 1059

§ 18–1–408(2). And “[i]f the same conduct is defined as criminal in different enactments or in different sections of this code, the offender may be prosecuted under any one or all of the sections or enactments,” subject to certain limitations not relevant here. § 18–1–408(7). In this regard, “[i]t is immaterial to the prosecution that one of the enactments or sections characterizes the crime as of lesser degree than another, or provides a lesser penalty than another....” Id.It is up to the prosecutor to determine which crimes to charge when a person's conduct arguably violates more than one statute. James,178 Colo. at 404, 497 P.2d at 1258; see alsoPeople v. Smith,938 P.2d 111, 115 (Colo. 1997)(“Ordinarily, a prosecutor has discretion to charge any applicable offense.”); People v. Warner,930 P.2d 564, 568 (Colo. 1996).

¶ 11 Nevertheless, prosecution under a general criminal statute may be barred where “a legislative intent is shown to limit prosecution to the special statute.” People v. Bagby,734 P.2d 1059, 1061 (Colo. 1987); accordSmith,938 P.2d at 115. But we may not conclude that the General Assembly intended to supplant the more general offense by creating a more specific offense unless such intent is “clear.” Smith,938 P.2d at 115, see alsoHucal v. People,176 Colo. 529, 536, 493 P.2d 23, 27 (1971).

¶ 12 Beginning in Bagby,Colorado appellate courts have considered three factors in deciding whether the General Assembly has clearly intended to limit prosecution to a more specific statute: (1) “whether the [more 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.” Smith,938 P.2d at 116; accord, e.g.,Warner,930 P.2d at 568; Bagby,734 P.2d at 1062; People v. Tow,992 P.2d 665, 667 (Colo. App. 1999).

¶ 13 This mode of analysis presents an issue of statutory interpretation. SeeState v. Nieto,993 P.2d 493, 502 (Colo. 2000)(“ ‘Legislative intent is the polestar of statutory construction.’ ” (quoting Schubert v. People,698 P.2d 788, 793 (Colo. 1985))). We review an issue of statutory interpretation de novo. People v. McKimmy,2014 CO 76, ¶ 19, 338 P.3d 333; Finney v. People,2014 CO 38, ¶ 12, 325 P.3d 1044.

2. Analysis

a. Police Power

¶ 14 In Bagby,the court construed the Liquor Code, as then constituted, which stated that it was adopted as “ ‘an exercise of the police powers of the state for the protection of the 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). The 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...