State v. Ochoa-Lara, 112,322.
Decision Date | 08 September 2017 |
Docket Number | No. 112,322.,112,322. |
Citation | 401 P.3d 159,306 Kan. 1107 |
Parties | STATE of Kansas, Appellee, v. Guadalupe OCHOA–LARA, Appellant. |
Court | Kansas Supreme Court |
Rick Kittel, of Kansas Appellate Defender Office, was on the brief for appellant.
Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
This companion case to State v. Garcia , 306 Kan. ––––, 401 P.3d 588 ( ), and State v. Morales , 306 Kan. ––––, 364 P.3d 305 ( ), involves defendant Guadalupe Ochoa–Lara's convictions on two counts of identity theft.
Ochoa–Lara's two convictions arose out of a single period of restaurant employment. One conviction covered the portion of the period before a 2011 criminal statute recodification went into effect; the other covered the portion of the period after the recodification went into effect. Each count was based on Ochoa–Lara's use of Tiffany McFarland's Social Security number to obtain the employment at the beginning of the first period.
A district court judge convicted Ochoa–Lara based on stipulated facts. Ochoa–Lara's appeal to the Court of Appeals raised two issues: (1) whether the federal Immigration Reform and Control Act of 1986 (IRCA) preempted the prosecution; and (2) whether the two counts were multiplicitous. A Court of Appeals panel affirmed Ochoa–Lara's convictions. See State v. Ochoa–Lara , 52 Kan.App.2d 86, 362 P.3d 606 (2015).
We granted Ochoa–Lara's petition for review of both issues. Because we decide that IRCA preempts this prosecution and thus both of Ochoa–Lara's convictions must be reversed, we do not reach the multiplicity claim.
The State initially charged Ochoa–Lara with two counts of identity theft and one count of making a false information. The two identity theft counts recited that Ochoa–Lara had "obtain[ed], possess[ed] or use[d]" a Social Security number and a resident alien card number belonging to another person during the entire time Ochoa–Lara was employed at Longbranch Steakhouse. On the first count, the Social Security number belonged to Tiffany McFarland; on the second, the resident alien card number belonged to Pierrie Lecuyer. The making of a false information count recited that Ochoa–Lara "ma[de], generate[d], or distribute[d]" a false I–9 form, which is used to determine employment eligibility under IRCA.
Before trial, Ochoa–Lara filed two motions to dismiss. The first motion argued that the first identity theft count should be dismissed because it alleged that Ochoa–Lara violated K.S.A. 2011 Supp. 21–6107 between May 10, 2011, and December 6, 2011, and the recodified statute was not effective until July 1, 2011. The second motion challenged subject matter jurisdiction on all three counts, alleging that the State's prosecution was preempted by federal immigration law.
At the hearing on the motions, the second identity theft count and the making of a false information count were dismissed after the State agreed they should be. The State successfully amended the remaining identity theft count of the complaint to split it into two counts, one under the recodified statute's predecessor provision and one under the recodified statute. This amendment left only Ochoa–Lara's jurisdictional challenge to the now-split identity theft count to be considered, and the district judge denied it.
The parties stipulated to the following facts at trial:
After reviewing these facts, the district judge convicted Ochoa–Lara on both counts. Although the stipulated facts had mentioned that Ochoa–Lara used McFarland's Social Security number to lease an apartment, the court's Journal Entry of Judgment relied exclusively on Ochoa–Lara's employment. The judge handed down a concurrent 7–month sentence on each count and granted 18 months' probation.
Our decision today in Garcia , 306 Kan. at ––––, ––––, 401 P.3d at 593, holds that State prosecutions such as the one in this case are expressly preempted by IRCA. Section 1324a(b)(5) of Title 8 of the United States Code (2012) provides that a federal I–9 form for employment verification "and any information contained in" such a form "may not be used for purposes other than for enforcement of" federal immigration law and certain federal criminal statutes. This State prosecution for identity theft relied on the Social Security number Ochoa–Lara included in the I–9 to ensure employment eligibility under federal law. Our Garcia holding recognized that this is exactly the situation Congress intended to address and control under federal law. Garcia dictates the outcome of this case and compels a decision in Ochoa–Lara's favor, reversing all of his convictions.
We pause briefly, however, to address preservation of the preemption issue in the circumstances of this case.
Ochoa–Lara advanced a preemption challenge in the district court through his pretrial motion to dismiss on subject matter jurisdiction grounds. And we are not limited to the precise preemption theories argued by a party when we analyze a challenge. See Garcia , 306 Kan. at ––––, ––––, 401 P.3d at 593 (...
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State v. Ochoa-Lara
...86, 362 P.3d 606 (2015). This court reversed on preemption grounds without addressing the multiplicity argument. State v. Ochoa-Lara , 306 Kan. 1107, 1108, 401 P.3d 159 (2017). The United States Supreme Court reversed and remanded. Kansas v. Garcia , 589 U.S. ––––, 140 S. Ct. 791, 206 L. Ed......
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State v. Morales
...certiorari in this case, as well as its companion cases, State v. Garcia , 306 Kan. 1113, 401 P.3d 588 (2017), and State v. Ochoa-Lara , 306 Kan. 1107, 401 P.3d 159 (2017), which the United States Supreme Court granted. In an opinion addressing all three cases, a majority of the Court held ......
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State v. Garcia
...certiorari in this case, as well as its companion cases, State v. Morales , 306 Kan. 1100, 401 P.3d 155 (2017), and State v. Ochoa-Lara , 306 Kan. 1107, 401 P.3d 159 (2017), which the United States Supreme Court granted. In an opinion addressing all three cases, a majority of the Court held......
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Appellate Decisions
...53 Kan.App.2d 86 (2015). Kansas Supreme Court reversed on preemption grounds without addressing multiplicity. State v. Ochoa-Lara, 306 Kan. 1107 (2017). U.S. Supreme Court reversed and remanded. Kansas v. Garcia, 589 U.S.__(2020)(state prosecution for identity theft is not preempted by fede......