People v. Gallegos

• Citation: 260 P.3d 15
• Decision Date: 15 July 2010
• Docket Number: No. 07CA0125.,07CA0125.
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee,v.Isaac Leroy GALLEGOS, Defendant–Appellant.
• Court: Court of Appeals of Colorado

260 P.3d 15

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Isaac Leroy GALLEGOS, Defendant–Appellant.

No. 07CA0125.

Colorado Court of Appeals, Div. I.

March 4, 2010.As Modified on Denial of Rehearing May 13, 2010.Certiorari Dismissed July 15, 2010.

John W. Suthers, Attorney General, Wendy Ritz, First Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.Law Firm of Richard A. Hostetler, Richard A. Hostetler, Denver, Colorado, for Defendant–Appellant.Opinion by Judge TAUBMAN.

Defendant, Isaac Leroy Gallegos, appeals the judgment of conviction entered on jury verdicts finding him guilty of embezzlement and criminal extortion. We conclude that the indictment was legally sufficient on the embezzlement charge and affirm that conviction. We also conclude that the indictment was legally insufficient on the criminal extortion charge and we vacate the judgment pertaining to that charge.

I. Background

In February 2005, Gallegos was indicted for embezzlement of public property, criminal extortion, and intimidation of a witness while he served as the Sheriff of Conejos County. The charges stemmed from Gallegos's use of inmates at the Conejos County Jail for construction work on an addition to his home and cutting firewood for his personal business.

Count one of the indictment alleged in relevant part that from 2000 to 2002 Gallegos used jail inmates to build an addition to his home without compensation; from 1998 to 2003 he had the inmates cut firewood, sold the wood, and kept the money; and during this period he used county vehicles and personnel to transport the inmates to perform this work. Count two of the indictment alleged Gallegos made a substantial threat to confine or restrain a jail inmate. The witness intimidation charge was dropped prior to trial.

In July and August 2005, the district attorney filed a bill of particulars and a supplement to the bill of particulars, alleging Gallegos obtained a substantial financial benefit as a result of utilizing inmate labor, the inmates were not paid for their labor, and the county was not reimbursed for the income generated by the inmates. The People also alleged that Gallegos threatened to “ship off” inmates to another jail if they refused to perform work for him, in addition to other allegations not relevant here.

A jury found Gallegos guilty of embezzlement of public property and criminal extortion and the trial court sentenced him to two years of community corrections on each count, to be served concurrently. The jury returned separate verdict forms on the embezzlement count, one involving the work on Gallegos's home and the other involving the cutting of firewood. This appeal followed.

II. Motion to Dismiss Indictment

Gallegos contends the trial court erred in denying his motion to dismiss the indictment on the ground it did not properly allege the commission of either embezzlement or extortion. We disagree as to the embezzlement charge, but agree as to the extortion charge.

The sufficiency of an indictment is reviewed de novo. See People v. Melillo, 25 P.3d 769, 777 (Colo.2001). A substantive defect in an indictment may be raised at any time because it is jurisdictional in nature. People v. Russell, 36 P.3d 92, 95 (Colo.App.2001).

A criminal indictment must answer the questions of “who, what, where, and when.” People v. Tucker, 631 P.2d 162, 164 (Colo.1981). In Tucker, the supreme court held that embezzlement may be committed in numerous ways and that an indictment that does not adequately address how an embezzlement was accomplished with sufficient factual particularity is fundamentally unfair. Id. The court also concluded that a bill of particulars cannot save an insufficient indictment. Id.

One purpose of a bill of particulars is to enable the defendant to prepare his defense in cases in which the indictment, although sufficient to advise him of the nature of the charges, is so indefinite in its statement that it does not afford him a fair opportunity to procure witnesses or to prepare for trial.

People v. Quintano, 81 P.3d 1093, 1096 (Colo.App.2003), aff'd, 105 P.3d 585 (Colo.2005). By specifically identifying the act or omission upon which a charge is based, a bill of particulars protects the defendant from being prosecuted twice for the same offense. Id.

Where a statute defines an offense in general terms, the indictment must allege the acts and conduct of the defendant which are deemed to have violated the statute. People v. Buckallew, 848 P.2d 904, 909 (Colo.1993). The indictment must define the acts which constitute the crime with sufficient definiteness so that the defendant may plead resolution of the indictment as a bar to subsequent prosecution. Id.; see also Crim. P. 7(a)(2) (“Every indictment of the grand jury shall state the crime charged and essential facts which constitute the offense.”). The ultimate test of the sufficiency of an indictment is whether it provides the defendant with sufficient notice of the charged offenses and facts to allow adequate trial preparation and protect the defendant from subsequent prosecution for the same offense. People v. Palmer, 87 P.3d 137, 139 (Colo.App.2003). It is not necessary to allege every element that must be proven at trial. People v. Richardson, 58 P.3d 1039, 1044 (Colo.App.2002). However, a court lacks jurisdiction over a defendant if the indictment fails to charge an essential element of an offense. People v. Thomas, 832 P.2d 990, 992 (Colo.App.1991).

A. Sufficiency of Embezzlement Charge

First, Gallegos contends the indictment did not sufficiently address the “public moneys or public property” element of the embezzlement charge because it did not specify what was embezzled or how the embezzlement occurred. Gallegos concedes that he engaged in wrongdoing, but suggests the appropriate charge should have been for the crime of first degree official misconduct, a class two misdemeanor, § 18–8–404, C.R.S.2009. Whether Gallegos should have been charged with this offense or any other is not within our province to address. In any event, we reject his argument that the embezzlement charge here was insufficient.

The crime of public property embezzlement occurs when a “public servant who lawfully or unlawfully comes into possession of any public moneys or public property ... knowingly converts any of such public moneys or property to his own use or to any use other than the public use authorized by law.” § 18–8–407(1), C.R.S.2009.

The indictment alleged four facts to satisfy the public moneys or public property element of the embezzlement offense: (1) Gallegos used the manual labor of inmates to construct the addition to his home and to cut firewood; (2) Gallegos sold the firewood and kept the money for his personal use; (3) Gallegos benefitted from the inmate labor by a large increase in the value of his home; and (4) Gallegos used county vehicles and personnel to transport the inmates for this work.

Gallegos contends that none of the facts alleged in the indictment satisfies the public moneys or public property element of embezzlement. The People contend all four allegations do so. We agree with Gallegos that the first, second, and third facts alleged are not sufficient to satisfy the public moneys or public property element of the embezzlement charge. However, we conclude that the fourth factual allegation properly describes embezzlement.

Statutory interpretation is a question of law we review de novo. People v. Jaramillo, 183 P.3d 665, 671 (Colo.App.2008). In analyzing the language of a statute, we determine legislative intent by giving the words of the statute their plain and ordinary meaning. In re J.N.H., 209 P.3d 1221, 1223 (Colo.App.2009). “When a statute does not define its terms but the words used are terms of common usage, we may refer to dictionary definitions to determine the plain and ordinary meaning of those words.” People v. Daniels, 240 P.3d 409, 411 (Colo.App.2009).

The public property embezzlement statute does not define “public moneys or public property.” Black's Law Dictionary defines “public property” as “state- or community-owned property not restricted to any one individual's use or possession.” 1254 (8th ed. 2004). While ordinarily we would not look to the definition of a term in an unrelated statute, see Bertrand v. Bd. of County Comm'rs, 872 P.2d 223, 228 (Colo.1994), here there is no dictionary definition of the term “public moneys.” Accordingly we look to other statutory and constitutional provisions for guidance. The General Assembly defined the term “public moneys” as “all moneys under the control of or in the custody of governmental units” in a statute dealing with financial institutions. § 11–47–103(12), C.R.S.2009. The Colorado Constitution also refers to public money. In particular, article X, section 13 states that a public officer commits a felony involving public money when he or she directly or indirectly makes a profit “out of state, county, city, town or school district money.” Colo. Const. art. X, § 13. We will employ these definitions of “public property” and “public moneys” when interpreting these terms in the embezzlement statute.

We next analyze whether the four factual allegations in the indictment satisfy the public moneys or public property element of the embezzlement statute. First, we conclude that Gallegos's use of the manual labor of inmates to construct an addition to his home and cut firewood does not involve public moneys or public property because, contrary to the People's contention, the inmates are not public property.

We also reject the People's related contention that public moneys or public property was involved under the “work release theory.” ¹ Under that theory, the People contend that the inmates on work release were required to pay the county for their costs for board under the work release statute, § 18–1.3–106(4), C.R.S.2009. However, this statute only requires the sheriff to charge the...