People v. Jesus Rodriguez-Morelos

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
September 15, 2022

2022COA107

No. 19CA0915, People v. Rodriguez-Morelos — Crimes —
Identity Theft — Personal Identifying Information — Financial
Identifying Information

As is relevant to this appeal, the crime of identity theft,

proscribed by section 18-5-902(1)(a), C.R.S. 2021, occurs when “[a]

person . . . [k]nowingly uses the personal identifying information

. . . of another without permission or lawful authority with the

intent to obtain cash, credit, property, services, or any other thing

of value.” The definition of “personal identifying information,” found

in section 18-5-901(13), C.R.S. 2021, states that it is “information

that may be used . . . to identify a specific individual.” A division of

the court of appeals interprets “personal identifying information” to

mean only specified information concerning single, identified

human beings. The division therefore concludes that defendant did
not commit the crime of identity theft when he used a nonprofit’s

name and documents, without its permission, to recruit people to

take classes from him.

The division also concludes that the record of defendant’s trial

did not contain any evidence to show that defendant used the

nonprofit’s “financial identifying information,” which is defined by

section 18-5-901(7), with the intent to obtain cash or any other

thing of value.

As a result of these two conclusions, the division further

concludes that defendant’s conviction for identity theft must be

vacated.
COLORADO COURT OF APPEALS 2022COA107

Court of Appeals No. 19CA0915
Arapahoe County District Court No. 17CR1064
Honorable Jeffrey K. Holmes, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jesus Rodriguez-Morelos,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART, VACATED IN PART,
ORDER AFFIRMED, AND CASE REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE BERNARD*
Dunn and Johnson, JJ., concur

Announced September 15, 2022

Philip J. Weiser, Attorney General, Christine Brady, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Julia Chamberlin, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2021.
¶1 A jury found defendant, Jesus Rodriguez-Morelos, guilty of one

count of identity theft, three counts of felony theft, and one count of

criminal impersonation. He appeals the judgment of conviction and

the trial court’s restitution order. We vacate the conviction for

identity theft but affirm the other convictions, and we remand the

case to the trial court to amend the mittimus accordingly. We also

affirm the restitution order.

I. Background

¶2 The Colorado Department of Regulatory Agencies investigated

defendant after it received complaints that he was taking money for

teaching certified nursing assistant classes that the state had not

approved. Colorado law states that people can only become

certified nursing assistants if they complete a state-approved

program.

¶3 Defendant also did volunteer work for a nonprofit organization

called United for Migrants that supported migrant workers. He

participated in the nonprofit’s food and toy drives, and he helped

some immigrants get their GEDs. He started administering

unsanctioned certified nursing assistant classes in 2015. Without

the nonprofit’s authorization, defendant told at least some of the

1
students that these classes were affiliated with the nonprofit and

that he was acting on its behalf. For example, he referred to

himself as the nonprofit’s “Director of Education,” a position that

did not exist. Without the nonprofit’s knowledge, he gave some

students a tax-exempt document bearing the nonprofit’s name.

¶4 The students saw the class as a path to obtaining better

employment opportunities. Most, if not all, of the students in the

class were Spanish-speaking immigrants, and at least some of them

were undocumented. The class cost $63, and, over time, defendant

added other certification programs at various costs, all related to

the medical profession.

¶5 To induce students to take the certified nursing assistant

class, defendant made two material misrepresentations. First, he

said the class had been approved by the state. Second, he said that

students did not need a social security number to become a

certified nursing assistant. Although Colorado does not require a

person to have a social security number to become a certified

nursing assistant, one must be lawfully in the United States to

become licensed and to work as a certified nursing assistant.

2
¶6 Defendant told students who did not have a social security

number or lawful status that he would still be able to find them a

job in the nursing field. This was not true.

¶7 Before long, various problems with the courses started to

arise. The classes were overcrowded, and students felt that they

were not learning the requisite skills to become certified nursing

assistants. Defendant frequently refused to provide students with

receipts for their payments. And none of the students who testified

at trial had been hired as certified nursing assistants.

¶8 Defendant’s theory of defense at trial was that he simply

wanted to help the immigrant community by providing a legitimate

service.

II. Sufficiency of the Evidence

¶9 As is pertinent to this appeal, “[a] person commits identity

theft if he or she . . . [k]nowingly uses the personal identifying

information [or] financial identifying information . . . of another

without permission or lawful authority with the intent to obtain”

money. § 18-5-902(1)(a), C.R.S. 2021.

¶ 10 Section 18-5-901(13), C.R.S. 2021, defines “personal

identifying information” as

3
information that may be used, alone or in
conjunction with any other information, to
identify a specific individual, including but not
limited to a name; a date of birth; a social
security number; a password; a pass code; an
official, government-issued driver’s license or
identification card number; a government
passport number; biometric data; or an
employer, student, or military identification
number.

(Emphasis added.)

¶ 11 “Financial identifying information” includes “[a] number

representing a financial account or a number affecting the financial

interest, standing, or obligation of or to the account holder,” § 18-5-

901(7)(b), “that can be used, alone or in conjunction with any other

information, to obtain cash, credit, property, services, or any other

thing of value or to make a financial payment,” § 18-5-901(7).

¶ 12 The phrase “of another” “means that of a natural person, living

or dead, or a business entity.” § 18-5-901(11).

¶ 13 Defendant contends that the evidence in the record is not

sufficient to support the identity theft conviction because (1) his use

of the nonprofit’s name and tax-exempt document did not

constitute the use of personal identifying information as defined by

section 18-5-901(13); and (2) although the tax-exempt document he

4
gave to some of the students was financial identifying information

under section 18-5-901(7), there is no evidence in the record that

he used this document to obtain money or any other thing of value

as required by section 18-5-902(1)(a). We agree with both

contentions.

A. Personal Identifying Information Concerns Information
Belonging Only to Human Beings

1. Standard of Review and General Principles of Statutory
Construction

¶ 14 Statutory interpretation is a question of law that we review de

novo. People v. Perez, 2016 CO 12, ¶ 8. The primary purpose in

interpreting statutes is to give effect to the General Assembly’s

intent. Hunsaker v. People, 2015 CO 46, ¶ 11. If the statutory

language is clear, we apply its plain and ordinary meaning. Id.

¶ 15 “[W]e presume that the legislature [does] not use language

idly.” Robinson v. Colo. State Lottery Div., 179 P.3d 998, 1010

(Colo. 2008). “Rather, the use of different terms signals an intent

on the part of the General Assembly to afford those terms different

meanings.” Id.; see also People v. Gulyas, 2022 COA 34, ¶ 38

(concluding that the rape shield statute’s use of the separate terms

“witness” and “defendant” meant that a defendant was not

5
considered a witness for purposes of that statute). “[W]e may not

construe a statute so as to render any statutory words or phrases

superfluous.” People v. Rediger, 2018 CO 32, ¶ 22.

2. Discussion

¶ 16 Defendant asserts that the term “specific individual,” which is

contained in the definition of “personal identifying information”

found in section 18-5-901(13), refers only to human beings and not

to business entities such as the nonprofit. This means, he

continues, that he did not commit identity theft under section 18-5-

902(1)(a) because he did not use personal identifying information

when he used the nonprofit’s name and tax-exempt document.

(Defendant does not assert that the trial evidence was insufficient to

show that he used the nonprofit’s name to obtain cash or anything

of value. Even if he did, such an assertion would be unsuccessful

because there was at least some testimony to that effect.)

¶ 17 The prosecution responds that the crime of identity theft

requires proof that defendant used the personal identifying

information “of another.” The phrase “of another,” the prosecution

goes on, defines who the victims of identity theft are, and that class

of victims includes business entities such as the nonprofit.

6
Limiting the definition of “personal identifying information” “to

natural people,” the prosecution’s response finishes up, “would

effectively nullify or render superfluous the General Assembly’s

chosen use of the phrase ‘of another’” to define the universe of

potential victims of identity theft.

¶ 18 On the one hand, we think that the prosecution’s response

misses the mark. True, the phrase “of another” sets out who the

victims of identity theft might be. But the definition of “personal

identifying information” does not describe or affect the class of

victims of identity theft; rather, it defines the types of information,

documents, or items that defendants may take from victims to

commit that crime. In other words, if the prosecution charges a

defendant with identity theft for using personal identifying

information, but the thing used does not fit within the definition of

that term, then the defendant has not committed the crime.

¶ 19 The term “of another” is not rendered superfluous by

interpreting “personal identifying information” to include only

specified information concerning human beings. For example,

section 18-5-902(1)(a) contemplates that a person may commit

identity theft by using the “financial identifying information” or the

7
“financial device” of another. No language in the definition of

financial identifying information, see § 18-5-901(7), or the definition

of financial device, see § 18-5-901(6), limits those terms to

information concerning only human beings. So defendants may be

convicted of identity theft if they use financial identifying

information or a financial device belonging to a business entity,

such as the nonprofit.

¶ 20 On the other hand, we think that defendant’s contention hits

the target. We conclude that the plain and ordinary meaning of the

statutory language is clear and unambiguous, see Hunsaker, ¶ 11,

and we further conclude that the term “specific individual” means

one identified human being.

¶ 21 We begin our analysis by considering the dictionary definitions

of the noun “individual” and the adjective “specific.”

¶ 22 According to Webster’s Third New International Dictionary

1152 (2002), the first sense of the noun “individual” has two

potential subsenses that are pertinent:

 “a particular being or thing as distinguished from a class,

species, or collection . . . a single human being as

contrasted with a social group or institution”; and

8
 “a particular person.”

¶ 23 The first sense of the adjective “specific” is “constituting or

falling into the category specified.” Id. at 2187. The verbal

illustration for this sense of the word is “[specific] fertilizing agents

such as nitrogen or phosphate.” Id.

¶ 24 When we put these definitions together, we see that the

second subsense of “individual” — “a particular person” — would

make the adjective “specific” superfluous: a specific particular

person. We cannot “render any statutory word[] . . . superfluous,”

Rediger, ¶ 22, and we must presume that the legislature did not use

the phrase “specific individual” idly, see Robinson, 179 P.3d at

1009.

¶ 25 This problem is eliminated, however, if we employ the first

subsense of the definition of “individual” — “a single human being

as contrasted with a social group or institution.” This subsense

recognizes the generic notion of single human beings. By adding

the adjective “specific,” the generic notion — for example, there are

approximately 740,000 single human beings who live in Denver —

becomes the unique — one identified human being out of 740,000.

9
Using this subsense gives voice to both the noun and the adjective:

one identified human being.

¶ 26 As a result, we additionally conclude that defendant’s conduct

of using the nonprofit’s name and tax-exempt document was not

the use of personal identifying information. This means that his

conviction for identity theft for such usage based on that charging

theory cannot stand. See Rediger, ¶ 31.

B. Defendant Did Not Use the Nonprofit’s Financial Identifying
Information with the Intent to Obtain Cash or Any Other Thing
of Value

¶ 27 We must next decide whether the record contains evidence

showing that defendant used the nonprofit’s financial identifying

information with the intent to obtain cash or any other thing of

value.

1. Standard of Review

¶ 28 We review de novo whether the evidence before the jury was

sufficient both in quantity and quality to sustain a conviction.

Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010). We must

determine “whether the relevant evidence, both direct and

circumstantial, when viewed as a whole and in the light most

favorable to the prosecution, is substantial and sufficient to support

10
a conclusion by a reasonable mind that the defendant is guilty of

the charge beyond a reasonable doubt.” Id. (quoting People v.

Bennett, 183 Colo. 125, 130, 515 P.2d 466, 469 (1973)).

2. Discussion

¶ 29 For the purposes of this contention, defendant concedes that

he used a tax-exempt document bearing the nonprofit’s name and

that the document was financial identifying information. See § 18-

5-901(7). But he submits that there was insufficient evidence to

show that he used the document to obtain cash or anything of

value. See id. Instead, he asserts that the only evidence about his

use of the tax-exempt document showed that he gave it to students

after they paid for his classes or at an unknown point in time.

¶ 30 The prosecution, in response, cites the theft statute for the

proposition that a person can commit theft by retaining cash or a

thing of value by threat or deception. See § 18-4-401(1), C.R.S.

2021. So, the prosecution’s response proceeds, the timing of when

defendant gave the tax-exempt document to the students was

immaterial.

¶ 31 The prosecution’s response, though, obviously relies on a

different statute — the theft statute — than the one central to

11
defendant’s contention — the identity theft statute. (We recognize

that defendant was also convicted of three counts of theft, but

defendant’s contention does not incorporate them.) The theft

statute is a proverbial apple, prohibiting a person from retaining

cash by threat or deception, while the identity theft statute is a

much narrower orange, focusing on whether the prosecution has

proved beyond a reasonable doubt that the person used another’s

financial identifying information with the intent to obtain cash or

any other thing of value. See § 18-5-902(1)(a).

¶ 32 As a result, the relevant question becomes whether defendant

used the document to induce students to pay him for any of the

courses that he offered. Based on our review of the record, we

conclude the answer to this question is “no.” To reach this

conclusion, we carefully analyzed the trial evidence, and we

determined that, in the light most favorable to the prosecution, the

evidence as a whole was not substantial and sufficient enough to

support a reasonable mind’s conclusion that defendant used the

document with the intent to obtain cash or any other thing of value.

See Clark, 232 P.3d at 1291.

12
¶ 33 The trial evidence included testimony from a detective, who

said that defendant gave some of the victims the document at the

same time that he distributed a certificate of completion or diploma

for taking a course. But, as far as the detective was aware, all the

victims paid for their courses upfront, and he confirmed that no

victim withheld payment until after receiving a diploma or a

certificate of completion.

¶ 34 Some of the victims also testified about the document. None

of them said that defendant told them either that they would receive

the document if they signed up for the class or that there was a

connection between taking the class and receiving the document.

Although some of the contracts they signed to take the class

referred to a “tax deductible report,” none of the victims testified

that they enrolled in the class because of that reason; indeed, they

did not seem to know what the document was, and there was no

evidence that the “tax deductible report” and the document were the

same thing. Although some of the victims said that they had

received the document, none of them added that receiving the

document was one of the reasons why they took the class.

13
¶ 35 Therefore, we conclude that the evidence was insufficient to

prove that defendant used the document, which was financial

identifying information, with the intent to obtain cash or any other

thing of value. His conviction for identity theft based on that

charging theory therefore cannot stand. See Rediger, ¶ 31.

Because we have previously held that the conviction for identity

theft for using personal identifying information likewise cannot

stand, we therefore vacate defendant’s conviction for identity theft,

and, on remand, the trial court shall correct the mittimus

accordingly.

III. Motion to Strike Victims’ Testimony

¶ 36 Defendant asserts that the court erred because it denied his

request to strike the testimony of two victims who invoked their

Fifth Amendment privilege with respect to cross-examination about

their immigration status. We are not persuaded.

A. Standard of Review and Applicable Law

¶ 37 We review a trial court’s decision to deny a motion to strike the

testimony of a witness for an abuse of discretion. See People v.

Ray, 109 P.3d 996, 1002 (Colo. App. 2004). A court abuses its

discretion when its ruling is manifestly arbitrary, unreasonable, or

14
unfair, or if it misapplies the law. People v. Payne, 2019 COA 167,

¶ 5.

¶ 38 The decision whether to strike a witness’s testimony based on

the invocation of the Fifth Amendment privilege should focus on

“whether the sought answer was closely related to the commission

of the crime, or involved collateral or cumulative testimony

concerning credibility.” Ray, 109 P.3d at 1002 (quoting People v.

Coca, 39 Colo. App. 264, 268, 564 P.2d 431, 434 (1977)).

B. Discussion

¶ 39 Defendant asserts that he should have been allowed to cross-

examine two victims about their immigration status to impeach

their testimony that they believed him when he told them that they

could each work in Colorado as a certified nursing assistant

without a social security number. He argued that, if a victim was

undocumented, then it necessarily meant that the victim had

submitted a false social security number at some point in the past,

which called the victim’s credibility into question.

¶ 40 True, as defendant points out, in some circumstances a

person’s immigration status may be a key consideration for the

jury. See Doumbouya v. Cnty. Ct., 224 P.3d 425, 430 (Colo. App.

15
2009)(defendant had a right to cross-examine his wife, the

complaining witness, about whether she understood the

immigration consequences of his potential conviction because it

supported the defendant’s theory that she had fabricated the claims

against him to gain custody of their son).

¶ 41 But, in this case, we conclude that whether a victim at some

unknown point in the past submitted a false social security number

was not “closely related to the commission of the crime” and

involved collateral testimony about the victim’s credibility. See Ray,

109 P.3d at 1002; CRE 403. In this context, the key questions at

trial were whether defendant told the victims that the state had

approved the classes and that having a social security number was

not a prerequisite to becoming a certified nursing assistant in

Colorado. Whether the victims were undocumented workers and

whether they had previously submitted a false social security

number were collateral to those key questions.

¶ 42 The jury had heard other evidence that similarly impacted the

two victims’ credibility, such as testimony creating the inference

that they were undocumented workers. For example, one of them

said that she had asked defendant if she could get a certified

16
nursing assistant license without a social security number and that

she would not have taken any of defendant’s classes if she had

known that having a social security number was a prerequisite to

getting a license in Colorado. And there was testimony that

defendant targeted the victims in this case because they were

undocumented, so it would not surprise the jury to learn that two of

the victims fell into that category along with others.

¶ 43 We therefore conclude that the court did not err when it

denied defendant’s motion to strike the testimony of these two

witnesses.

IV. “Uncharged Misconduct”

¶ 44 Defendant asserts that the cumulative prejudicial effect of

what he deems as evidence of “uncharged misconduct” was so

pervasive at trial that we must reverse all his convictions. We

disagree.

A. Standard of Review

¶ 45 We review the trial court’s evidentiary rulings for an abuse of

discretion. People v. Clark, 2015 COA 44, ¶ 14.

17
B. Discussion

¶ 46 Defendant cites the following as evidence of uncharged

misconduct that the court should not have admitted at his trial:

1. One witness said that defendant is a threatening person.

2. A victim testified that defendant did not pay rent to her even

though she rented him a place to stay.

3. Six victims testified about classes that they had taken or paid

for, but this testimony that was not reflected in the bill of

particulars.

4. A detective said that some of the victims were not lawfully in

the United States.

5. A ledger recorded the payments defendant received for the

classes from victims and other students who had not testified.

¶ 47 With respect to the evidence in the preceding list’s first four

items, there was no error because, with two exceptions, the court

sustained defense counsel’s objections and instructed the jury to

disregard the testimony. See People v. Hogan, 114 P.3d 42, 55

(Colo. App. 2004).

¶ 48 In one instance, the court overruled defense counsel’s

objection to allow a student to clarify that he did not take a specific

18
class. Defendant does not explain how this testimony was

prejudicial. If anything, it appears to have benefitted defendant

because it clarified for the jury that the specific class was not

included in the theft counts.

¶ 49 In the other instance, a witness testified about a meeting

during which defendant angrily threatened her. Defendant did not

object to this evidence, which would normally call for plain error

review. See Hagos v. People, 2012 CO 63, ¶ 14. But we will not

address this issue because defendant’s explanation of why this

putative error was plain is both conclusory and underdeveloped.

See Sanchez v. Indus. Claim Appeals Off., 2017 COA 71, ¶ 41.

¶ 50 Turning to the fifth item on the list, the ledger, defendant

contends that it was unfairly prejudicial because it contained the

names of students who were not included in the theft counts, which

could have induced the jury to convict him “based on the sheer

quantity of uncharged victims/thefts.”

¶ 51 Although the majority of students named on the ledger were

not named as victims in the theft counts, we conclude that the

probative value of the ledger’s contents was not substantially

outweighed by the danger of confusing or misleading the jury, as

19
defendant asserts. See CRE 401, 403. Rather, the court’s verdict

forms made it clear that the jury could only consider the victims

named on the forms when deciding whether defendant had

committed theft, and we presume that the jury followed this

direction. See People v. Chase, 2013 COA 27, ¶ 37.

V. Constructive Amendment

¶ 52 Defendant submits that the trial court erred when it granted

the prosecution’s motion to amend the three theft counts mid-trial.

We are not persuaded.

A. Standard of Review and Applicable Law

¶ 53 We review a trial court’s decision to allow the amendment of

the information under Crim. P. 7(e) for an abuse of discretion.

People v. Palmer, 2018 COA 38, ¶ 12.

¶ 54 After a trial has begun, a court will only amend the

information as to form and only “if no additional or different offense

is charged and if substantial rights of the defendant are not

prejudiced.” Crim. P. 7(e). We construe Crim. P. 7(e) liberally.

Palmer, ¶ 12. An amendment is one of form if it neither adds an

additional element or a different offense nor deprives the defendant

20
of adequate notice of the charges. People v. Washam, 2018 CO 19,

¶ 16.

B. Discussion

¶ 55 We conclude, for the following reasons, that the mid-trial

amendment in this case (1) was one of form because it did not add

an additional element or a different offense to the charges and did

not deprive defendant of adequate notice of what the charges

against him were, see id.; and (2) did not prejudice defendant’s

substantial rights, see Crim. P. 7(e).

¶ 56 Before the prosecution rested, the court granted the

prosecutor’s request to amend the three theft counts to remove any

victims from the respective count who had not testified or whose

testimony had addressed events outside the time period for the

offenses as described in the information and in the bill of

particulars.

¶ 57 In other words, the amendment removed from the jury’s

consideration allegations concerning victims who had not testified

and limited the jury’s consideration to evidence that was within the

scope of the information and the bill of particulars. See People v.

Manzanares, 942 P.2d 1235, 1242 (Colo. App. 1996). So, contrary

21
to defendant’s assertion, the court did not submit a different offense

to the jury; he was still charged with theft. See Washam, ¶ 29 (in

assessing whether an amendment adds an additional or different

offense, we look at whether the amendment charges the defendant

under a different statutory scheme or increases the number of

counts a defendant faces).

¶ 58 Defendant contends that he was prejudiced because the

amendment precluded him from cross-examining witnesses. But he

does not explain how the amendment impacted his ability to do so;

indeed, he had the opportunity to cross-examine every victim whose

name appeared on the verdict forms.

¶ 59 Defendant asserts that the timing of the amendment was

prejudicial because he would have asked the court for a judgment

of acquittal but for the amendment. He bases this assertion on

People v. Moody, 674 P.2d 366, 369 (Colo. 1984).

¶ 60 But Moody is inapposite. In that case, the prosecution moved

to amend the information after the defendant had asked the court

to grant a judgment of acquittal; in this case, the court granted the

prosecution’s motion before defendant would have had an

opportunity to request a judgment of acquittal. In that case, the

22
variance between the evidence and the allegations was material and

granting a motion to amend would have prejudiced the defendant;

in this case, the variance between the evidence and the allegations

was not material, and the court’s decision to grant the amendment

did not prejudice defendant.

¶ 61 Finally, relying on People v. Ramos, 2017 COA 100, defendant

submits that the prosecution was required to prove each individual

theft alleged in each aggregated theft count to establish that he had

committed the crime of theft because each individual theft served as

an element of the aggregated theft counts. When the prosecution

amended the information to remove some of the victims from each

count, defendant’s submission goes on, it did not just remove

surplusage; it removed substance. The court therefore should have

dismissed all the aggregated theft counts, he finishes up, because

the prosecution had not proved all the elements of each count.

Echoing his assertion based on Moody, 674 P.2d at 369, he submits

that he was also prejudiced because the court allowed the

prosecution to amend the aggregated theft counts after he had

asked the court to dismiss them.

23
¶ 62 In Ramos, ¶ 4, a jury found that the defendant had stolen

money in only one of three individual thefts making up an

aggregated theft count. The division held that, under the plain

language of the aggregated theft statute, section 18-4-401(4)(a),

C.R.S. 2021, the prosecution must “prove all of the thefts

aggregated into a single count.” Ramos, ¶ 17. This is so because,

according to that statute, all thefts aggregated into a single count

“shall constitute a single offense.” Id. at ¶ 18 (quoting § 18-4-

401(4)(a)). As a result, the division decided that the trial court had

erred because it had not instructed the jury that it could only

convict the defendant of the aggregated theft count if it found that

she had committed all three of the individual thefts. Id. at ¶ 21.

¶ 63 Comparing Ramos to this case, we can see that Ramos is

distinguishable. The error in Ramos concerned defects in the

court’s instructions and in the jury’s verdict.

¶ 64 In this case, unlike in Ramos, the court’s decision to allow the

prosecution to amend the aggregated theft counts by removing

some victims occurred before the jury deliberated and convicted

defendant. The court’s instructions and verdict forms listed only

the named victims in each count who remained after the court

24
granted the prosecution’s motion to amend the counts. The jury

found, by way of interrogatories, that defendant had stolen money

from each of those remaining victims. In other words, the jury

found that the prosecution had proved all the individual thefts in

the aggregated counts beyond a reasonable doubt because it

convicted defendant of all those individual thefts.

¶ 65 The error that the division identified in Ramos did not occur in

this case. Because that error did not occur, defendant’s assertion

that he was prejudiced is unavailing. Even though the court’s

decision to grant the amendment modified the originally charged

class 5 felony to a class 6 felony, that modification reduced the

potential sentence that defendant faced if he was convicted. And,

because class 6 felony theft was a lesser included offense of class 5

felony theft, the prosecution could have, even in the absence of the

amendment, asked the court to instruct the jury on class 6 felony

theft. See People v. Garcia, 940 P.2d 357, 358 (Colo. 1997) (“[A]n

uncharged offense may be submitted to the jury over the

defendant’s objection if . . . the uncharged offense is a lesser

included offense of the charged offense . . . .”).

25
¶ 66 Defendant’s submission treats the court’s decision to allow the

prosecution to amend the aggregated theft counts as equivalent to

the jury’s verdict in Ramos finding that only one of three individual

thefts of an aggregated theft count had been proved. But Ramos

says nothing about what should happen before a jury is instructed

and returns a verdict; it focuses only on instructions and verdicts.

When Ramos, ¶ 17, holds that the prosecution must “prove all of

the thefts aggregated into a single count,” it means that the

prosecution must prove all the aggregated thefts that are submitted

to the jury. It does not mean that the prosecution must prove all

the aggregated thefts that may have, at one point, appeared in

counts and then been removed before the jury was instructed,

deliberated, and returned a verdict. The bottom line is that the

record shows defendant got what he claims Ramos required: the

jury found that the prosecution had proved each individual theft

that was contained in the instructions and listed on the verdict

forms.

VI. Restitution

¶ 67 Defendant raises two challenges to the trial court’s restitution

order. First, he contends that the court violated his right to be

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present at the restitution hearings. Second, he submits that the

court erred by ordering him to pay restitution for what he deems

“uncharged, unproven, or dismissed thefts.” We disagree with both

contentions. (In reaching this result, we are aware that our

supreme court recently decided People v. Weeks, 2021 CO 75,

which concerned a different restitution issue. But neither party

mentioned Weeks in the briefs, so we therefore decline to address

whether it applies to this case. See Galvan v. People, 2020 CO 82,

¶ 45 (“[C]ourts are well-advised to ‘wait for cases to come’ to them

and to ‘decide only questions presented by the parties.’” (quoting

United States v. Sineneng-Smith, 590 U.S. ___, ___, 140 S. Ct. 1575,

1579 (2020))).

A. Right to be Present

1. Standard of Review

¶ 68 Whether a trial court violated a defendant’s constitutional

right to be present at trial is reviewed de novo. People v. Janis,

2018 CO 89, ¶ 15. Because we conclude that the court did not err,

we need not wade into the dispute between defendant and the

prosecution about what the standard of reversal should be if there

were an error.

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2. Discussion

¶ 69 Defendants have a constitutional right to be present at a

restitution hearing. People v. Hernandez, 2019 COA 111, ¶ 1. But

a defendant may waive that right when the record as a whole shows

the waiver was knowing, intelligent, and voluntary. Janis, ¶ 26.

¶ 70 In this case, there were two restitution hearings. Defendant

was not present at either one.

¶ 71 At the first hearing, defense counsel said that she did not

know where defendant was, but she still wished to proceed. When

the court asked whether defendant had notice of the hearing, she

replied, “We have had a hard time getting in contact with him since

last time. There were some issues in regard to his immigration

status, so I don’t know. I don’t know.” She then said that she had

made many efforts to notify him. The court allowed the hearing to

proceed.

¶ 72 Defendant did not appear at the second restitution hearing,

either. Upon the prosecutor’s request, defense counsel made the

following record:

COURT: [D]o you have any information
regarding [defendant], whether he knew of the
hearing and chose not to be present and

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indicated to you he was not coming, or do you
have something more you can tell me?

DEFENSE COUNSEL: All three, Your Honor.
He does know about the hearing, we had a
conversation, he chose not to be present.

COURT: Okay. So I think . . . under those
circumstances and again, keeping in mind that
he did not appear at the initial hearing, that he
has chosen not to participate in this
proceeding.

¶ 73 We conclude that, even if the transcript of the initial hearing

does not clearly show that defendant was aware of it and that he

had decided not to attend it, the record as a whole, see id.,

nonetheless demonstrates that defendant knowingly, intelligently,

and voluntarily waived his right be present at the restitution

hearings. The court asked defense counsel if she had made “many

efforts” to notify defendant about the first restitution hearing, and

she replied, “Yes.” During the trial, defendant told the court that he

did not want to attend the instructions conference. And, at the

second restitution hearing, which was a continuation of the first,

defense counsel reported that defendant did not want to attend it.

¶ 74 A waiver is “knowing” when the “person waiving the particular

right . . . ‘know[s]’ of the existence of the right and any other

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information legally relevant to the making of an informed decision

either to exercise or relinquish that right.” Id. at ¶ 28 (quoting

People v. Mozee, 723 P.2d 117, 121 n.4 (1986)). The record as a

whole demonstrates that defendant generally understood he had a

right to be present during the trial proceedings, which included the

restitution hearings. Hernandez, ¶¶ 22-25.

¶ 75 A waiver is “intelligent” if the person waiving the right is “fully

aware of what he is doing and . . . make[s] a conscious, informed

choice to relinquish the known right.” Janis, ¶ 28 (quoting Mozee,

723 P.2d at 121 n.4). During the second restitution hearing,

defense counsel said that defendant knew about the hearing and

that he had chosen not to be present.

¶ 76 Defendant’s reliance on Hernandez, ¶ 27, for the proposition

that counsel cannot waive a defendant’s right to be present is

misplaced. In Hernandez, there was no indication that the

defendant knew of the restitution hearing. Id. Counsel’s statement

that he was “prepared to proceed” without the defendant’s presence

was insufficient to constitute a waiver. Id. at ¶¶ 4, 27. Unlike in

Hernandez, defense counsel in this case spoke to defendant, who

unambiguously said that he did not wish to participate.

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¶ 77 Finally, a waiver is “voluntary” when the person waiving the

right has “not [been] coerced by the state either physically or

psychologically.” Janis, ¶ 28 (quoting Mozee, 723 P.2d at 121 n.4).

Defendant does not point to any evidence, nor do we see anything

in the record to suggest, that the prosecution coerced defendant

into waiving his right to be present at the restitution hearings.

B. Amount of Restitution Awarded

¶ 78 Defendant last contends that the court should not have

imposed restitution for what he labels as “uncharged, unproven, or

dismissed thefts.” We disagree that the court did anything like this,

and we conclude that the record supports the court’s restitution

order.

¶ 79 Defendant correctly notes that a trial court is not permitted to

impose restitution for conduct for which he has been acquitted, see

Cowen v. People, 2018 CO 96, ¶ 2, for uncharged conduct, see

People v. Sosa, 2019 COA 182, ¶ 1, or for dismissed charges, see

People v. Roddy, 2021 CO 74, ¶ 5. While these propositions are

true as matters of law, they do not apply to this case. The

restitution order was based on the theft charges; the court did not

dismiss any of them, and the jury did not acquit defendant of any of

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them. Each of the victims who received restitution testified at trial,

and the jury specifically found that defendant had committed theft

as far as each of them was concerned.

¶ 80 Defendant appears to contend that the court could not impose

restitution for any amount greater than what the victims testified to

at trial. But no such limitation exists because section 18-1.3-

603(2)(a), C.R.S. 2021, requires the court to “base its order for

restitution upon information presented to the court by the

prosecuting attorney, who shall compile such information through

victim impact statements or other means to determine the amount

of restitution and the identities of the victims.” To the extent that

defendant asserts that the court could not rely on the victim impact

statements in crafting its restitution order, he is mistaken. See

People in Interest of A.V., 2018 COA 138M, ¶ 33.

¶ 81 The judgment of conviction is affirmed, with the exception that

the conviction for identity theft is vacated. The restitution order is

affirmed. The case is remanded to the trial court to correct the

mittimus accordingly.

JUDGE DUNN and JUDGE JOHNSON concur.

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