     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


                                    28
  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


                                    29
  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.




                                   30
¶ 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
