Modified on Denial of Rehearing November 4, 2019
Certiorari to the Colorado Court of Appeals, Court
of Appeals Case No. 15CA126.
for Petitioner: Philip J. Weiser, Attorney General, Kevin E.
McReynolds, Assistant Attorney General, Denver, Colorado
Attorneys for Respondent: Megan A. Ring, Public Defender,
Rachel K. Mercer, Deputy Public Defender, Denver, Colorado
Brooke E. Rojas received food stamp benefits to which she was
not legally entitled. The prosecution charged her with two
counts of theft under the general theft statute, section
18-4-401(1)(a), C.R.S. (2019). Rojas moved to dismiss these
charges, arguing that she could only be prosecuted under
section 26-2-305(1)(a), C.R.S. (2019), because it created the
specific crime of theft of food stamps. The trial court
denied the motion, and a jury convicted Rojas of the two
general theft counts.
Rojas contends that the trial court erred by denying the
motion to dismiss because section 26-2-305(1)(a) abrogated
the general theft statute in food stamp benefit cases. A
split division of the court of appeals agreed with her.
We disagree with Rojas and the division majority. Based on
the statutes plain language, we hold that the legislature
didnt create a crime separate from general theft by enacting
I. Facts and Procedural History
The relevant facts unfolded over the course of a year. In
August 2012, Rojas applied for food stamp benefits from the
Larimer County Department of Human Services ("the
Department") because she had no income. She received a
recertification letter in December, which she submitted in
mid-January, stating that she still had no income. And
technically that was true. Rojas had started a new job on
January 1, but she
hadnt yet received a paycheck when she submitted her
recertification letter. Consequently, Rojas and her family
received $1,052 per month in food stamp benefits even though
they were ineligible.
Fast forward to August 2013 when Rojas reapplied for food
stamp benefits. Although she was still working, she reported
that she had no income. When the Department checked Rojass
employment status, it learned that she was not only employed,
but making some $55,000 a year (to help support a family of
seven). After some more digging, the Department determined
that Rojas had received $5,632 in benefits to which she was
not legally entitled.
The prosecution charged Rojas with two counts of theft (for
two time periods) under section 18-4-401(1)(a), the general
theft statute. Rojas moved to dismiss the charges, asserting
that she could only be prosecuted under section
26-2-305(1)(a) because it created the specific crime of theft
of food stamps. The court denied the motion, and a jury found
Rojas guilty of the two general theft charges. (Rojas had
requested that the jury also be instructed on the lesser
non-included offense of fraud in connection with obtaining
food stamps. The jury convicted her of that, too.)
Rojas appealed. Applying the factors from People v.
Bagby,734 P.2d 1059, 1062 (Colo. 1987), a split
division of the court of appeals concluded that "the
General Assembly intended section 26-2-305 to supplant the
general theft statute." SeePeople v.
Rojas,2018 COA 20, ¶ 38, __ P.3d __. It then held that
"the prosecution was barred from prosecuting ...