People v. Rojas

          As Modified on Denial of Rehearing November 4, 2019

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          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

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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." SeePeople v. Rojas,2018 COA 20, ¶ 38, __ P.3d __. It then held that "the prosecution was barred from prosecuting ...