People v. Rojas

• Decision Date: 22 February 2018
• Docket Number: Court of Appeals No. 15CA0126
• Citation: 490 P.3d 391
• Court: Colorado Court of Appeals
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Brooke E. ROJAS, Defendant-Appellant.

490 P.3d 391

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

v.Brooke E. ROJAS, Defendant-Appellant.

Court of Appeals No. 15CA0126

Colorado Court of Appeals, Division I.

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

Opinion by JUDGE FURMAN

¶ 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.

¶ 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." 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, 361 P.3d 1056. 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. 1997) ; Bagby , 734 P.2d at 1061 ; People v. Montante , 2015 COA 40, ¶ 14, 351 P.3d 530 ; 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 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....

§ 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).

¶ 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 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 device

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