People v. Rojas

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
February 22, 2018

2018COA20

No. 15CA0126, People v. Rojas — Crimes — Theft — Colorado
Public Assistance Act — Food Stamps — Fraudulent Acts

A division of the court of appeals considers whether a

defendant can be prosecuted for theft of food stamps under the

general theft statute, section 18-4-401, C.R.S. 2017, or whether

that defendant can only be prosecuted under a more specific

statute criminalizing the theft of food stamps by a fraudulent act,

section 26-2-305, C.R.S. 2017. Applying the test from People v.

Bagby, 734 P.2d 1059 (Colo. 1987), the majority concludes that the

defendant here could only be prosecuted under the more specific

statute. The dissent disagrees.
COLORADO COURT OF APPEALS 2018COA20

Court of Appeals No. 15CA0126
Larimer County District Court No. 13CR1903
Honorable Daniel J. Kaup, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Brooke E. Rojas,

Defendant-Appellant.

JUDGMENT VACATED AND CASE
REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE FURMAN
Taubman, J., concurs
Richman, J., dissents

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
¶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.

1
¶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.”

2
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. 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.

3
1997); Bagby, 734 P.2d at 1061; People v. Montante, 2015 COA 40,

¶ 14; 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

4
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 . . . .

5
§ 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).

6
¶ 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

7
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

8
device through which food stamp benefits may be delivered

the value of which is greater than that to which the person

is justly entitled”;

(3) “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.”

Section 26-2-305(1)(a) also gives specific directions for determining

the classification of, and the penalty for, an offense under this

section.

¶ 16 In interpreting section 26-2-305(1)(a) in this way, we note that

this statute includes an additional penalty not included in the

general theft statute, which suggests that the General Assembly

intended to create a specific criminal offense separate from an

offense under the general theft statute. Section 26-2-305(1)(a)

states that “[a]ny person violating the provisions of this subsection

(1) is disqualified from participation in the food stamp program for

one year for a first offense, two years for a second offense, and

permanently for a third or subsequent offense.” This penalty

9
applies to the “offense” of “violating the provisions” of section

26-2-305(1)(a) and not to an offense under the general theft statute.

¶ 17 We also note that our interpretation of section 26-2-305 as

creating a more specific criminal offense is supported by section

18-1-202, C.R.S. 2017. This section gives a prosecutor authority to

try a defendant for multiple crimes committed in different judicial

districts in a single proceeding if the crimes “aris[e] from the same

criminal episode.” § 18-1-202(7)(a). One criminal offense that may

be considered part of the same criminal episode if committed more

than once within a six-month period is “[f]raud in connection with

obtaining food stamps” under section 26-2-305.

§ 18-1-202(7)(b)(II)(T). This suggests that the General Assembly

intended section 26-2-305(1)(a) to create a separate and more

specific criminal offense. See Clanton, ¶ 13.

¶ 18 And, although the dissent argues that “[n]either the title nor

the text of [section 26-2-305] names a separate crime,” we disagree.

Infra ¶ 46. The title of section 26-2-305 is “Fraudulent acts —

penalties,” specifying that the criminal offense outlined in this

section involves fraudulent acts. And, again, in section

10
18-1-202(7)(b)(II)(T), the General Assembly titled the criminal

offense described in section 26-2-305 as “Fraud in connection with

obtaining food stamps.”

¶ 19 The dissent also suggests that section 26-2-305(1)(a) only

exists to specify that a food stamp is “a thing of value” that belongs

to “another” — that is, a government agency. Infra ¶ 49. But, we

disagree for a number of reasons. First, we cannot discern why

there would be a need to specify that a food stamp is “a thing of

value” or that a government agency is “another” under the general

theft statute. Second, section 26-2-305(1)(a) nowhere references

subsection (1) of the general theft statute, which describes the

elements of theft and includes the terms “thing of value” and

“another.” § 18-4-401. Instead, section 26-2-305(1)(a) only

references subsection (2) of the general theft statute, which outlines

the classification of offenses based on the value of the thing taken.

¶ 20 The dissent then relies on three cases for the proposition that

defendants have “been convicted under the general theft statute for

fraudulently obtaining food stamps.” Infra ¶ 46. But, these three

cases are inapplicable to Rojas’s case. In Valenzuela v. People, 893

11
P.2d 97, 99 (Colo. 1995), the supreme court addressed whether

interest could be charged in connection with restitution for the theft

of food stamps and other public benefits, and there is no indication

that the Bagby issue was raised in this case. Likewise, in People v.

Davalos, 30 P.3d 841, 843-45 (Colo. App. 2001), a case involving

theft of food stamps and other public benefits, the division

addressed an evidentiary issue, prosecutorial misconduct,

instructional issues, and restitution issues, but there is no

indication that the Bagby issue was raised. And, in People v. Witt,

15 P.3d 1109, 1110 (Colo. App. 2000), the division addressed a

restitution issue in connection with the theft of food stamps, but,

again, there is no indication that the Bagby issue was raised in this

case.

¶ 21 The dissent also relies on the legislative history of section

26-2-305(1)(a) in determining whether this section creates a

separate criminal offense. But, for the reasons stated above, we

conclude that it is clear that section 26-2-305(1)(a) creates a

separate, more specific criminal offense; thus, we need not consider

section 26-2-305(1)(a)’s legislative history. See Dillard v. Indus.

12
Claim Appeals Office, 121 P.3d 301, 303-04 (Colo. App. 2005) (The

court may consider legislative history if “the meaning of a statute is

unclear, ambiguous, or uncertain as to its intended scope.”), aff’d,

134 P.3d 407 (Colo. 2006).

IV. Bagby Analysis

¶ 22 Having determined that section 26-2-305(1)(a) creates a

separate, more specific criminal offense, we now consider the Bagby

factors to determine whether the General Assembly intended

section 26-2-305 to supplant the general theft statute. We

conclude that each Bagby factor suggests that the General

Assembly intended section 26-2-305(1)(a) to supplant the general

theft statute.

A. Full Police Powers

¶ 23 We first conclude that section 26-2-305 invokes the full extent

of the state’s police powers. See Smith, 938 P.2d at 116.

¶ 24 In Bagby, our supreme court determined that the Liquor Code

invoked the full extent of the state’s police powers when the Liquor

Code’s legislative declaration stated that it was adopted as “an

exercise of the police powers of the state for the protection of the

13
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)); see Clanton, ¶ 14. The supreme 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 most appropriate for violations

of the Liquor Code.’” Clanton, ¶ 14 (quoting Bagby, 734 P.2d at

1062).

¶ 25 And, in Warner, 930 P.2d at 568, the supreme court found

that, like the Liquor Code, the Limited Gaming Act invoked the full

extent of the state’s police powers. In so doing, the supreme court

cited to the Limited Gaming Act’s legislative declaration, id., which

states that limited gaming establishments must “be licensed,

controlled, and assisted to protect the public health, safety, good

order, and the general welfare of the inhabitants of the state to

foster the stability and success of limited gaming and to preserve

the economy and policies of free competition of the state of

Colorado,” § 12-47.1-102(1)(c), C.R.S. 2017.

14
¶ 26 Section 26-2-305 is part of the Colorado Public Assistance Act,

sections 26-2-101 to -1104, C.R.S. 2017. The legislative

declaration to the Public Assistance Act reads as follows:

It is the purpose of this article to promote the
public health and welfare of the people of
Colorado by providing, in cooperation with the
federal government or independently, public
assistance for needy individuals and families
who are residents of the state and whose
income and property are insufficient to meet
the costs of necessary maintenance and
services as determined by the state
department and to assist such individuals and
families to attain or retain their capabilities for
independence, self-care, and self-support, as
contemplated by article XXIV of the state
constitution and the provisions of the social
security act and the food stamp act. The state
of Colorado and its various departments,
agencies, and political subdivisions are
authorized to promote and achieve these ends
by any appropriate lawful means through
cooperation with and utilization of available
resources of the federal government and
private individuals and organizations.

§ 26-2-102, C.R.S. 2017.

¶ 27 Sections 26-2-305 and 26-2-306, C.R.S. 2017, create several

criminal offenses related to obtaining, using, transferring, and

disposing of food stamps in ways not authorized by the Public

Assistance Act. These sections also include directions on how to
15
determine the classification of, and penalties for, such offenses.

See §§ 26-2-305(1)(a), -306(2), C.R.S. 2017.

¶ 28 Section 26-2-305(4) contemplates district attorneys enforcing

this section as follows:

Additional costs incurred by district attorneys
in enforcing this section, in accordance with
the rules of the state department, shall be
billed to county departments in the judicial
district in the proportion to each county as
specified in section 20-1-302, C.R.S., and the
county departments shall pay such costs as an
expense of food stamp administration.

¶ 29 We conclude that the Public Assistance Act’s legislative

declaration contains “broad” language, similar to that in Warner,

that invokes the full extent of the state’s police powers. See Warner,

930 P.2d at 568; Bagby, 734 P.2d at 1062. But cf. Montante, ¶¶ 16-

17 (holding that the statute did not invoke full police powers where

purpose of law was to create limited exceptions to criminal laws for

providers and users of medical marijuana); People v. Stansberry, 83

P.3d 1188, 1190 (Colo. App. 2003) (holding that the purpose of the

statute was merely to assess and collect motor vehicle taxes); People

v. Tow, 992 P.2d 665, 667-68 (Colo. App. 1999) (holding that the

purpose of the statute was merely to achieve uniformity among

16
traffic laws). The legislative declaration states that the purpose of

the Public Assistance Act is “to promote the public health and

welfare of the people of Colorado by providing . . . public assistance

for needy individuals and families who are residents of the

state . . . .” § 26-2-102. Although this declaration does not

explicitly mention “safety” and “order,” it does authorize state

agencies to achieve the goals of the Public Assistance Act “by any

appropriate lawful means.” Id. Also, considering that the Public

Assistance Act creates several criminal offenses and contemplates

district attorneys prosecuting these offenses suggests that the

General Assembly intended to invoke the state’s law enforcement

powers to achieve the goals of the Public Assistance Act. See

Bagby, 734 P.2d at 1062; Clanton, ¶ 14.

¶ 30 Nevertheless, the People contend that the Public Assistance

Act’s legislative declaration “never invokes ‘police powers’ and this

declaration never even mentions penalties, fines or addressing

fraud in connection to these assistance programs.” We are not

persuaded by this argument. The legislative declaration in Warner

did not explicitly refer to “police powers” either. See Warner, 930

17
P.2d at 568. And, although the legislative declaration to the Public

Assistance Act does not mention “penalties, fines, or addressing

fraud,” nothing in Bagby or Warner suggests that the General

Assembly must specifically mention these types of things in a

legislative declaration to invoke the full extent of the state’s police

powers. See id.; Bagby, 734 P.2d at 1062. Also, the Public

Assistance Act does mention these types of things in sections

26-2-305 and 26-2-306.

¶ 31 Citing Clanton, ¶ 17, the People also contend that the Public

Assistance Act invokes the state’s police powers only in a limited

way. We disagree. The Public Assistance Act’s legislative

declaration includes language designed not to limit the state’s

power to achieve the goals of the Public Assistance Act. Indeed, the

legislative declaration authorizes state agencies to achieve the goals

of the Public Assistance Act “by any appropriate lawful means.”

§ 26-2-102. This type of language was not present in the legislative

declaration analyzed in Clanton. See Clanton, ¶ 16.

18
B. Comprehensive and Thorough Regulatory Scheme

¶ 32 We next conclude that section 26-2-305 is part of an act that

creates a comprehensive and thorough regulatory scheme to control

all aspects of Colorado’s food stamp program. See Smith, 938 P.2d

at 116. The Public Assistance Act regulates all aspects of this food

stamp program by dictating which agency will administer the

program, outlining the process for applying for the program,

criminalizing violations of the program’s rules, and providing for

numerous administrative and criminal penalties for violating the

program’s rules. See §§ 26-2-301 to -306; see also Clanton, ¶ 19

(holding that the Colorado Employment Security Act is a

comprehensive regulatory scheme under Bagby).

¶ 33 Nevertheless, citing Montante, ¶ 24, the People contend that

the Public Assistance Act “does not expressly criminalize all

improper conduct by recipients in such a way as to suggest a

comprehensive and thorough regulatory scheme.” We disagree. In

Montante, the division concluded that medical marijuana

legislation, regulating the conduct of physicians with regard to

medical marijuana, was not a comprehensive and thorough

19
regulatory scheme because, while it provided comprehensive civil

regulations, it did not “criminalize all improper conduct by

physicians in connection with medical marijuana.” ¶ 24. But, the

Public Assistance Act does criminalize all improper conduct with

regard to food stamps by criminalizing obtaining, using,

transferring, and disposing of food stamps in ways not authorized

by the Public Assistance Act. See §§ 26-2-305(1)(a), -305(2),

-306(1).

C. Multiple and Detailed Penalties

¶ 34 We also conclude that the Public Assistance Act carefully

defines several different types of criminal offenses in detail. See

Smith, 938 P.2d at 116.

¶ 35 As discussed above, section 26-2-305(1)(a) creates the crime of

theft of food stamps by a fraudulent act, describing in detail the

elements of this crime and giving directions as to how to determine

the classification of and the penalty for the commission of this

offense.

¶ 36 And, as noted, section 26-2-305(2) makes it a crime for a

participant in the food stamp program not to report a change in

20
that participant’s financial circumstances that affects that

participant’s eligibility for food stamps. Subsection (2) gives a

detailed description of the elements of this offense, classifies the

offense as a class 3 misdemeanor, and gives direction as to how to

determine the penalty for the offense.

¶ 37 Section 26-2-306 of the Public Assistance Act creates the

criminal offense of “trafficking in food stamps.” In short,

“trafficking in food stamps” involves knowingly obtaining, using,

transferring, or disposing of food stamps in a way not authorized by

the food stamp program. See § 26-2-306(1). But, section

26-2-306(1) gives very detailed descriptions of various ways that a

person can commit the offense of “trafficking in food stamps.”

Section 26-2-306(2) provides specific standards for classifying an

offense under the statute and includes classifications from a class 2

misdemeanor to a class 3 felony.

¶ 38 Given that each Bagby factor suggests that the General

Assembly intended section 26-2-305 to supplant the general theft

statute, we conclude that the prosecution was barred from

prosecuting Rojas under the general theft statute. See Smith, 938

21
P.2d at 115; Bagby, 734 P.2d at 1061; Montante, ¶ 14; Clanton,

¶ 11. Accordingly, we vacate Rojas’s convictions under the general

theft statute.

V. Remedy

¶ 39 Rojas contends that if we vacate her convictions under the

general theft statute, section 18-1-408(2) and Crim. P. 8(a)(1) do not

permit the prosecution to then charge her under section

26-2-305(1)(a). We do not address this issue because it is not

properly before us. If the prosecution chooses to prosecute Rojas

under section 26-2-305(1)(a), Rojas may raise this contention before

the trial court.

VII. Conclusion

¶ 40 Rojas’ convictions under the general theft statute are vacated.

In light of our holding, we need not address the parties’ remaining

contentions.

JUDGE TAUBMAN concurs.

JUDGE RICHMAN dissents.

22
JUDGE RICHMAN, dissenting.

¶ 41 I disagree with the majority’s conclusion that section

26-2-305, C.R.S. 2017, precludes defendant’s conviction under the

general theft statute for two reasons. First, in my view, section

26-2-305 does not create a criminal offense separate from the

general theft statute, section 18-4-401, C.R.S. 2017. Therefore,

defendant’s conviction under 18-4-401 should stand. Second, even

if section 26-2-305 creates a separate offense, it does not meet the

Bagby factors suggesting that the statute supplanted the general

theft statute. See People v. Bagby, 734 P.2d 1059 (Colo. 1987).

Therefore, the prosecution acted within its discretion to proceed

under the general theft statute. See People v. Clanton, 2015 COA 8,

¶ 10 (“It is up to the prosecutor to determine which crimes to

charge when a person’s conduct arguably violates more than one

statute.”).

¶ 42 I also discuss two issues that the majority did not reach: (1)

the propriety of the prosecution’s choice to aggregate the thefts into

one class 4 felony and one class 6 felony and (2) an evidentiary

issue.

23
I. Separate Offense

¶ 43 I reach my first conclusion by a plain reading of the language

of the statute. 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.”).

¶ 44 Section 26-2-305(1)(a) provides several methods by which a

person may commit the offense of obtaining food stamps by a

fraudulent act. A person may violate the statute by “means of a

willfully false statement or representation,” “impersonation,” or “any

other fraudulent device with intent to defeat the purposes of the

food stamp program.” § 26-2-305(1)(a).1

¶ 45 As the statute plainly states, any person who obtains food

stamps by means of one of those fraudulent acts “commits the

crime of theft.” Id. The statute further provides that the crime is

1 Under this reading, the intent requirement of “intent to defeat the
purposes of the food stamp program” attaches only to the use of a
fraudulent device. § 26-2-305, C.R.S. 2017. The intent
requirement in a case involving fraudulently obtaining food stamps
by means of a “willfully false statement or representation” or by
“impersonation,” id., is the intent requirement under section
18-4-401, C.R.S. 2017.  

24
classified as a felony or a misdemeanor in accordance with the

general theft statute and depends on the value of the food stamps

obtained. If the crime is a felony, punishment is determined under

section 18-1.3-401, C.R.S. 2017, and if a misdemeanor, under

section 18-1.3-501, C.R.S. 2017.

¶ 46 Neither the title nor the text of the statute names a separate

crime. To me, any offender reading the statute would be informed

that the offense committed would be theft and that the subject

punishment would be based on the theft statutes; any prosecutor

reading the statute would know to charge the offense as theft.

Historically, defendants have been convicted under the general theft

statute for fraudulently obtaining food stamps, just as defendant

was here. See Valenzuela v. People, 893 P.2d 97 (Colo. 1995);

People v. Davalos, 30 P.3d 841 (Colo. App. 2001); People v. Witt, 15

P.3d 1109 (Colo. App. 2000).

¶ 47 Moreover, if we look beyond the statutory language, the

legislative history evinces a clear intent to charge fraudulent

acquisition of food stamps under the general theft statute. The

General Assembly added the pertinent words to section 26-2-305 in

1989, as part of “An Act Concerning Criminal Offenses, and

25
Relating to the Classification Thereof,” changing the relevant

language from

[any person who fraudulently obtains food
stamp benefits] shall be punished as follows: If
such coupons or authorization to purchase
cards are of a value of five hundred dollars or
more, such person commits a class 5 felony
and shall be punished as provided in section
18-1-105, C.R.S. 1973; or, if such coupons or
authorization to purchase cards are of the
value of less than five hundred dollars, he
commits a class 3 misdemeanor and shall be
punished as provided in section 18-1-106,
C.R.S. 1973,

to

[any person who fraudulently obtains food
stamp benefits] 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
18-1-105, C.R.S., if the crime is classified as a
felony, or section 18-1-106, C.R.S., if the crime
is classified as a misdemeanor.

Ch. 148, sec. 119, § 26-2-305, 1989 Colo. Sess. Laws 820, 846-47

(emphasis added).2 The former version plainly described a separate

crime under this statute; the revision rendered the crime as theft.

2 In the same bill, the General Assembly substituted identical
language into section 26-1-127, regarding fraudulent acts to obtain

26
¶ 48 As noted above, case law reveals that defendants obtaining

food stamps by fraudulent means have been prosecuted under the

general theft statute since the 1989 amendment. And the

legislature left the pertinent language regarding the “crime of theft”

intact, despite having amended section 26-2-305 three additional

times since 1989.3 See Tompkins v. DeLeon, 197 Colo. 569, 571,

595 P.2d 242, 243-44 (1979) (holding that where the legislature

amends a statute and does not change a section previously

interpreted by settled construction, it is presumed that the

legislature agrees with the judicial construction).

¶ 49 I disagree with the majority that the language of section

26-2-305(1)(a) is rendered superfluous if the offense is prosecuted

as a theft. The theft statute provides that an offense is committed

when a person obtains anything of value of another without

authorization. By incorporating the theft statute, the effect of

“public assistance or vendor payments or medical assistance.” Ch.
148, sec. 118, § 26-1-127, 1989 Colo. Sess. Laws 846.
3 After the 1989 amendment, the legislature subsequently amended

section 26-2-305 in 1994, 1997, and 2002. Ch. 330, sec. 7, § 26-2-
305, 1994 Colo. Sess. Laws 2065; Ch. 234, sec. 27, § 26-2-305,
1997 Colo. Sess. Laws 1235-36; Ch. 318, sec. 273, § 26-2-305,
2002 Colo. Sess. Laws 1539.

27
section 26-2-305(1)(a) is to specify that food stamps are a thing of

value, akin to dollars, and that although obtained from a

government agency that issues but does not “own” the food stamps,

the agency nonetheless has a proprietary interest in the food

stamps, as provided in 18-4-401(1.5).

¶ 50 I also depart from the majority because if section

26-2-305(1)(a) is a separate offense, it is unclear what the

punishment or penalty would be. The majority suggests that the

General Assembly intended to create a specific criminal offense by

including “an additional penalty” (disqualification from participating

in the food stamp program). Supra ¶ 16. But that additional

penalty is administrative, not criminal, and as the majority

acknowledges, the administrative penalty is not the only penalty for

violation of the statute. The only other specified penalties are the

penalties under the theft statutes. If the General Assembly did not

intend for violations of section 26-2-305(1)(a) to be prosecuted as

theft, there would be no reason to import the penalties from the

theft statute. Conversely, if the General Assembly did intend

section 26-2-305(1)(a) to be a separate criminal offense, it would

have included separate penalties. The additional administrative

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penalty also shows that section 26-2-305(1)(a) is not superfluous to

the theft statute as it provides for a penalty separate from the

criminal penalties of the theft statute.

II. Bagby Analysis

¶ 51 If the same conduct is described as criminal in different

statutes, the offender may be prosecuted under any or all of the

sections. § 18-1-408(7), C.R.S. 2017. However, a more specific

statute precludes prosecution under a more general statute only

when “legislative intent is shown to limit prosecution to the

[specific] statute.” Bagby, 734 P.2d at 1061. Such legislative intent

may be demonstrated by the Bagby factors described in the

majority opinion. But unless the General Assembly’s intent to

supplant the more general offense is clear, an offender may be

prosecuted under the general statute. Clanton, ¶ 11; see People v.

Smith, 938 P.2d 111, 115 (Colo. 1997). I do not perceive any clear

indicia of the General Assembly’s intent to supplant the general

theft statute.

¶ 52 Bagby requires that the full extent of the state’s police powers

be invoked by the more specific act. In my view, section 26-2-305

does not invoke the full extent of the state’s police powers to

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prevent food stamp fraud because it does not purport to invoke any

of the state’s police powers.

¶ 53 In Bagby, the supreme court concluded that the Liquor Code

invoked the full extent of the state’s police powers because the

legislative declaration expressly stated the law was passed in

exercise of the police powers of the state. 734 P.2d at 1062. In

People v. Warner, 930 P.2d 564, 567-68 (Colo. 1996), the supreme

court concluded that the Limited Gaming Act invoked the full extent

of the state’s police powers because coincident to its enactment, the

General Assembly codified the offenses defined in the act in article

20 of the Criminal Code, and the legislative declaration in section

18-20-101, C.R.S. 2017, invoked the need for “the immediate and

future preservation of the public peace, health, and safety.” In

Clanton, a division of our court declined to conclude that the

defendant could not be prosecuted under a general forgery statute,

noting that while the Employment Security Act states that it was

enacted “under the police powers of the state,” the invocation was

“more limited” than the statutes at issue in Bagby and Warner.

Clanton, ¶¶ 16-17.

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¶ 54 In support of its conclusion that section 26-2-305 invokes the

full extent of the state’s police power with respect to food stamp

fraud, the majority cites to the legislative declaration attached to

the Public Assistance Act. See § 26-2-102, C.R.S. 2017. That

legislative declaration is not specifically attached to the provisions

prohibiting food stamp fraud, but even to the extent it can be read

in conjunction with section 26-2-305, it does not contain any

language regarding the police powers or the public peace and

safety. Rather, it refers to the promotion of public assistance

programs for the welfare of the people in cooperation with the

federal government. To the extent the statute can be read as

making any reference to the exercise of police powers, it does not

provide for the exercise of the “full extent” of such powers.

¶ 55 Because I conclude that the first Bagby factor is not met by

the provisions of section 26-2-305, I do not address the other two

factors.

III. Other Issues

A. Effect of 2013 Amendments to Theft Statute

¶ 56 On appeal, defendant argued two issues that the majority does

not reach. Because I would affirm defendant’s convictions but

31
change the classification of one conviction, I briefly address

defendant’s two additional arguments.

¶ 57 On June 5, 2013, the General Assembly amended the theft

statute to provide that a theft of at least $2000 or more but less

than $5000 was classified as a class 6 felony, and a theft of $5000

or more but less than $20,000 was classified as a class 5 felony.

Ch. 373, sec. 1, § 18-4-401, 2013 Colo. Sess. Laws 2196. Some of

the alleged acts of theft by defendant took place before June 5,

2013; others took place after June 5, 2013.

¶ 58 In an apparent recognition of the statutory amendment, the

prosecutor ultimately charged defendant with one count relating to

the alleged thefts that occurred before June 5, 2013, and charged

those as a class 4 felony under the provisions of the former statute,

and with a second count relating to the alleged thefts that occurred

after June 5, 2013, and charged those as a class 6 felony under the

amended statute.

¶ 59 Defendant asserts that the prosecution aggregated the

amounts at issue before June 5, 2013, so that defendant was

accused of stealing $3528 during that period (which under the

former theft statute would be a class 4 felony) and aggregated the

32
amounts at issue after July 5, 2013, so that defendant was accused

of stealing more than $2000 during this period (a class 6 felony

under the amended theft statute).

¶ 60 The jury was instructed on, and defendant was convicted of,

two separate counts of theft: a class 4 felony for the thefts occurring

before June 5, 2013, and a class 6 felony for the thefts occurring

after June 5, 2013. The trial court sentenced defendant to a

concurrent sentence of three years of probation on each count.

¶ 61 Defendant first contends that the prosecution was required to

aggregate the total amount of the thefts into one count because

they occurred within a six-month period. Defendant further

contends that the classifications under the amended theft statute

should be applied, and therefore had the amounts been aggregated

and defendant charged in one count and convicted, it would have

resulted in one conviction for a class 5 felony.

¶ 62 I agree with defendant’s contention that the classifications

under the amended theft statute should apply to her convictions. I

disagree with her remaining contentions.

¶ 63 Defendant was charged under 18-4-401(4)(a) for committing

theft twice or more within a period of six months. That statute and

33
case law permit, but do not require, the prosecution to aggregate

the thefts and charge them in a single count. Because aggregation

was not mandatory, the prosecution was not required to aggregate

defendant’s thefts into one count.

¶ 64 Defendant was convicted and sentenced after the June 2013

amendments to the theft statute. In People v. Stellabotte, 2016 COA

106, ¶ 45 (cert. granted Feb. 6, 2017), a division of this court

concluded that a defendant who committed thefts prior to the 2013

amendment was entitled to benefit from the amendment at

sentencing insofar as it reduced the classification of the offenses. I

agree with the reasoning of Stellabotte. Thus, defendant’s

conviction for acts occurring before the June 5, 2013, amendment

should be reduced to a class 6 felony.

B. Evidentiary Issue

¶ 65 On appeal, Rojas also contends that the trial court abused its

discretion by admitting as res gestae evidence that she lied about

her employment income on an August 9, 2013 reapplication for food

stamps. Because the application provided evidence of defendant’s

mental state and demonstrated that she had knowingly received a

thing of value of another by deception, it was “part and parcel” of

34
the crime charged. Callis v. People, 692 P.2d 1045, 1051 n.9 (Colo.

1984). Accordingly, I perceive no abuse of discretion by the trial

court.

IV. Conclusion

¶ 66 I respectfully dissent from the majority’s opinion. Because I

perceive no error in the admission of evidence or in prosecuting

defendant under the general theft statute, I would affirm the

convictions and remand for a correction of the mittimus to reflect

two class 6 felony convictions.

35