Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 15CA126
Attorneys 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
OPINION
HOOD
JUSTICE.
¶1
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.
¶2
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.
¶3
We disagree with Rojas and the division majority. Based on
the statute's plain language, we hold that the
legislature didn't create a crime separate from general
theft by enacting section 26-2-305(1)(a).
I.
Facts and Procedural History
¶4
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 hadn't 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.
¶5
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
Rojas's 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.
¶6
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.)
¶7
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." See People v. Rojas,
2018 COA 20, ¶ 38, ___ P.3d___ . It then held that
"the prosecution was barred from prosecuting Rojas under
the general theft statute" and vacated her theft
convictions. Id.
¶8
Judge Richman dissented. He concluded that section
26-2-305(1)(a) didn't create a separate crime for theft
of food stamps. He noted that "[n]either the title nor
the text of the statute names a separate crime."
Rojas, ¶ 46 (Richman, J., dissenting). He cited
the statute's legislative history for further support of
this interpretation. Id. at ¶¶ 47-48.
Finally, he engaged in a Bagby analysis, concluding
that the first factor-invocation of the full extent of the
state's police powers-had not been met. Id. at
¶¶ 51-53.
¶9
We granted the People's petition for certiorari
review.[1]
II.
...