COLORADO COURT OF APPEALS                                           2016COA106


Court of Appeals No. 14CA1954
El Paso County District Court No. 12CR3669
Honorable Thomas L. Kennedy, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

John Arthur Stellabotte,

Defendant-Appellant.


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

                                    Division I
                          Opinion by JUDGE TAUBMAN
                                Freyre, J., concurs
                 Dailey, J., concurs in part and dissents in part

                           Announced July 14, 2016


Cynthia H. Coffman, Attorney General, Patricia R. Van Horn, Senior Assistant
Attorney General, Matthew S. Holman, First Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Lynn C. Hartfield, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
¶1    Defendant, John Arthur Stellabotte, appeals the judgment of

 conviction entered after a jury verdict finding him guilty of one

 count of aggravated motor vehicle theft, two counts of felony theft,

 and one count of misdemeanor theft. He also appeals his sentence,

 as enhanced by three habitual criminal counts. We affirm the

 conviction, vacate the sentences for felony theft, affirm the other

 sentences, and remand for resentencing on the felony theft

 convictions.

                            I.   Background

¶2    Stellabotte, owner of J&J Towing, was charged with six counts

 of first degree aggravated motor vehicle theft, under section 18-4-

 409(2) and (3)(a), C.R.S. 2015; four counts of theft, under section

 18-4-401(1), C.R.S. 2015; and five habitual criminal counts

 pursuant to section 18-1.3-801, C.R.S. 2015. The counts related to

 J&J towing five vehicles. A jury convicted Stellabotte of one count

 of aggravated motor vehicle theft, a class 4 felony; two counts of

 theft, class 4 felonies; and one count of theft, a class 2

 misdemeanor relating to two tows — the B.W. and P.H. tows.




                                    1
                          A.    The B.W. Tow

¶3    In June 2012, B.W. parked her car at an apartment complex.

 The following morning, her car was missing. A sign in the parking

 lot stated that cars without parking permits would be towed by J&J

 Towing. B.W., whose car did not have a parking permit sticker,

 called J&J to recover her car, but the company stated that it did not

 have it. B.W. reported her car stolen.

¶4    Five days later, J&J towed the car to a police station.

 Stellabotte said that J&J had notified the police of the initial tow on

 June 8, as required by state towing regulations. The officer,

 however, could not find such a notification.

¶5    J&J initially requested that B.W. pay $215 to release her car

 but eventually returned it to her without her making any payment.

 However, several days later, Stellabotte told B.W. that he would put

 a lien on her car and tow it again if she did not pay him the money.

 The next day, he towed B.W.’s car, which was parked on a public

 street across from her house. Stellabotte refused to release the car

 to B.W. until she paid him $498.50, which she did. She noticed

 damage to her car, and Stellabotte said if she did not sign a release

 form he would charge her another $200, so she signed the form.


                                    2
¶6    Teresa Hill, the apartment complex property manager, testified

 that rules in place for the property required license plate stickers

 indicating that any parked car belonged to a resident.1 As manager,

 she entered into a contract with J&J, through an employee named

 James Ward.2 The complex permitted J&J to tow cars without the

 proper stickers without first contacting management at the

 apartment complex.

¶7    B.W. reported J&J to the Colorado Public Utilities Commission

 (PUC).

                           B.   The P.H. Tow

¶8    In July 2012, K.S. parked a truck, registered to her father,

 P.H., in the parking lot of a shopping mall, where she worked at a

 yogurt shop. She arranged for P.H. to pick up the truck the

 following day, but when he arrived to pick up the truck, it was

 missing.




 1 Visitors were required to park on the street.
 2 Although he denied being a partner at J&J, Ward testified that
 when he signed documents on behalf of J&J, he designated himself
 as an owner. One of J&J’s drivers testified that Ward hired
 employees, obtained the majority of the towing contracts, and was
 in charge of day-to-day operations.

                                    3
¶9     K.S.’s mother, R.H., and P.H. contacted Griffis-Blessing, the

  company they believed to be the property manager for the mall.

  Griffis-Blessing could not provide them with any information about

  whether the truck had been towed, but the family later received an

  unsigned letter from J&J, which advised them that J&J had towed

  the truck. At the time the truck was towed, its registration had

  expired. P.H. paid $583 to retrieve the truck.

¶ 10   R.H. requested a refund from J&J after Griffis-Blessing

  advised her that it had not authorized the tow. However, Ward

  advised her that she could only claim her refund if she signed a

  letter of final settlement, stating that the refund settled all

  outstanding amounts and that R.H. would “not slander or speak of

  this matter to any partys [sic] outside of this matter,” including the

  PUC. When she refused to sign the acknowledgment, Ward called

  Stellabotte, who reiterated that if R.H. refused to sign the

  agreement, he would not give her a refund.

¶ 11   Kelly Clay, a property manager who worked for Griffis-

  Blessing, testified that she was unaware of any towing contract with

  J&J for the portion of the shopping mall that she managed and that

  she had not authorized the tow of P.H.’s truck. She stated that a


                                      4
  different property management company managed the property

  where the yogurt shop was located.3

                     C.   PUC Investigation & Trial

¶ 12   Following B.W.’s complaint, Anthony Cummings, an

  investigator with the PUC, spoke with Ward, who provided towing

  invoices for both B.W. tows. Cummings determined that the

  documents did not comply with PUC regulations. Specifically, the

  invoices lacked authorizing signatures, a release date, and a

  specific rate statement, and they contained an incorrect address for

  the business. According to Cummings, these deficiencies rendered

  the towing contracts invalid and meant that J&J was not

  authorized to collect the $493 that B.W. had paid to have her car

  released.

¶ 13   Cummings found similar PUC violations regarding P.H.’s tow.

  Ward was unable to provide a written towing contract for the

  shopping mall property. Ward claimed that “S.R.,” which stood for

  Sean Reilly, had authorized the tow because his initials appeared

  on the towing invoice. Reilly, the former leasing agent for the

  3 At trial, no evidence indicated who managed the property where
  the yogurt shop was located, but Stellabotte does not raise this as
  an issue on appeal.

                                    5
  shopping mall, testified that his responsibilities did not include

  authorizing tows from the property. He denied authorizing the tow

  of the truck.

¶ 14   On August 22, 2014, after a trial and jury verdict, the court

  adjudicated Stellabotte a habitual criminal for convictions on three

  counts ― a 2005 aggravated motor vehicle theft, a 2003 attempted

  aggravated motor vehicle theft, and felony menacing in 1996.

¶ 15   In accordance with the habitual criminal statute, the court

  quadrupled the maximum sentencing ranges of the felony

  convictions, resulting in twenty-four-year sentences for each of the

  three felony convictions. The court sentenced Stellabotte to one

  year for the misdemeanor theft conviction. The sentences all ran

  concurrently.

¶ 16   Stellabotte raises four contentions on appeal: (1) the trial court

  erred in instructing the jury on aggravated motor vehicle theft; (2)

  the court erred in providing the jury with a dictionary definition of

  the term “authorization”; (3) the twenty-four-year sentences

  imposed for Stellabotte’s two felony theft convictions should be

  halved because of new legislation reducing the severity of those

  offenses; and (4) the twenty-four-year sentences imposed for


                                     6
  Stellabotte’s three habitual criminal counts are grossly

  disproportionate to the nature and severity of the offenses. We

  agree with Stellabotte’s third contention that he should benefit from

  the General Assembly’s amendatory legislation to reduce the

  severity of felony theft offenses. However, we disagree with his

  other contentions.

                         II.   Jury Instruction

¶ 17   Stellabotte contends that the trial court erred in instructing

  the jury on aggravated motor vehicle theft, where, in contrast to the

  theft instruction, the aggravated motor vehicle theft instruction did

  not convey that he had to act knowingly without authorization. We

  disagree.

                        A.     Standard of Review

¶ 18   We apply a two-tier standard of review to jury instructions.

  First, we review de novo the jury instructions as a whole to

  determine whether the instructions accurately informed the jury of

  the governing law. People v. Lucas, 232 P.3d 155, 162 (Colo. App.

  2009). Second, if the trial court correctly informed the jury of the

  governing law, we review the court’s formulation of the instructions

  for an abuse of discretion. People v. Pahl, 169 P.3d 169, 183 (Colo.


                                     7
  App. 2006). A court abuses its discretion when its ruling is

  manifestly arbitrary, unreasonable, or unfair, People v. Rath, 44

  P.3d 1033, 1043 (Colo. 2002), and when it misconstrues or

  misapplies the law, People v. Henson, 2013 COA 36, ¶ 9, 307 P.3d

  1135, 1136.

                           B.   Applicable Law

¶ 19   Under section 18-4-409(2), a person commits first degree

  aggravated motor vehicle theft “if he or she knowingly obtains or

  exercises control over the motor vehicle of another without

  authorization or by threat or deception.”

¶ 20   The culpable mental state, “knowingly,” applies not only to a

  defendant’s exercise of control over the vehicle, but also to his or

  her awareness of lack of authority. People v. Bornman, 953 P.2d

  952, 954 (Colo. App. 1997). When a mental state is listed as a

  stand-alone element, it applies to the succeeding elements. See

  People v. Chase, 2013 COA 27, ¶ 62, ___ P.3d ___, ___ (“Knowingly”

  is set out “as a standalone element, thereby indicating that it

  applied to all of the subsequent elements of the offense.”); People v.

  Stephens, 837 P.2d 231, 234 (Colo. App. 1992) (stating that




                                     8
  “knowingly,” listed as separate element, applied to succeeding

  elements, including the “without authorization” element).

                              C.   Analysis

¶ 21   The court instructed the jury that the elements of first degree

  aggravated motor vehicle theft were that Stellabotte:

            1. In the State of Colorado, at or about the
            date and place charged,

            2. knowingly,

            3. obtained and exercised control over the
            motor vehicle,

            4. belonging to another person,

            5. without authorization, and

            6. the value of the motor vehicle involved is
            twenty thousand dollars or less, and

            7. the defendant,

            8. had possession and control over the motor
            vehicle for more than twenty-four (24) hours.

¶ 22   The court listed “knowingly” as the second element and listed

  “without authorization” as the fifth element. We conclude that the

  trial court did not err in instructing the jury on aggravated motor

  vehicle theft because the court listed the culpable mental state,

  “knowingly,” as a separate element. Therefore, “knowingly” applied



                                    9
  to the succeeding elements, including “without authorization,” and

  thus the instruction indicated that Stellabotte had to have known

  that possession of the automobile was without authorization.

¶ 23   Stellabotte next argues that when the jury read the theft and

  aggravated motor vehicle theft instructions together, it reasonably

  would have believed that the two offenses had different standards of

  proof because the theft instruction explicitly tied the “without

  authorization” element to the “knowingly” element, but the

  aggravated motor vehicle theft instruction did not. The court

  instructed the jury that the elements of theft were:

             1. That the defendant,

             2. in the State of Colorado, at or about the
             date and place charged,

             3. knowingly

             a. obtained or exercised control over

             b. anything of value

             c. which was the property of another person,

             d. without authorization . . . .

¶ 24   We conclude that the court properly instructed the jury as to

  the elements of theft. In the theft instruction, the court listed

  “without authorization” as a lettered subpart of the numbered


                                    10
  “knowingly” element. Albeit in a different manner, this instruction

  also conveyed that Stellabotte had to have known that he obtained

  or exercised control of the automobile without authorization.

¶ 25   While we agree with Stellabotte that “it is error for a court to

  instruct the jury in a manner that invites confusion,” Steward

  Software Co. v. Kopcho, 275 P.3d 702, 711 (Colo. App. 2010), rev’d

  on other grounds, 266 P.3d 1085 (Colo. 2011), we disagree that the

  two instructions, when read together, created confusion. In both

  instructions, the court set off the “knowingly” element. Although

  the court set off “knowingly” in different ways — in the aggravated

  motor vehicle theft instruction, as a separate numbered element,

  and in the theft instruction, as a heading for several elements,

  including “without authorization” — we nevertheless conclude that

  because both instructions were correct, the court did not err, even

  when we consider the two instructions together.

¶ 26   Stellabotte relies on Bornman to argue that the instructions

  created confusion. In Bornman, 953 P.2d at 954, the instruction for

  theft did not properly advise the jury that the defendant had to be

  aware that his possession of a vehicle was unauthorized. The

  instruction read:


                                    11
          1. That the defendant

          2. In the state of Colorado at or about the date
          and place charged,

          3. knowingly

             a. obtained or exercised control over

             b. anything of value,

             c. which was the property of another
             person,

          4. without authorization . . . .

Id. at 953. Bornman is distinguishable. There, the trial court erred

because the instruction did not explicitly require a finding that the

defendant knew that his possession or control of the item was

without authorization of the owner. The Bornman court added

subparts to the third element and did not include “without

authorization” as a subpart, but rather listed it as a separate

element. Here, as discussed above, in the aggravated motor vehicle

theft instruction, the court listed “knowingly” as a separate element,

with no subparts, so “knowingly” applied to all succeeding

elements, including “without authorization.” In contrast, in the

theft instruction, the court listed “without authorization” as a

subpart of the “knowingly” element, so “knowingly” applied to the



                                  12
  “without authorization” element. Therefore, we conclude that the

  trial court did not err in accurately informing the jury of the

  governing law, and it did not abuse its discretion in formulating the

  jury instructions.

                   III.   Definition of Authorization

¶ 27   During deliberation, the jury asked for a definition of the term

  “authorization,” and the court used a “standard dictionary

  definition” to instruct the jury that the term “authorization” meant

  “to provide someone with legal authority to perform an act.”

¶ 28   Stellabotte contends that the court abused its discretion when

  it provided this definition because the definition differed from that

  in relevant case law. While we agree that the court provided a

  definition that differed from that found in case law, we conclude

  that the court did not abuse its discretion.

                          A.        Standard of Review

¶ 29   We apply the same standard of review as in Part II.A.

                               B.    Applicable Law

¶ 30   Absent evidence to the contrary, a jury is presumed to

  understand and follow the trial court’s instructions. Leonardo v.

  People, 728 P.2d 1252, 1255 (Colo. 1986). This presumption may


                                         13
  be overcome “when the jury indicates to the judge that it does not

  understand an element of the offense charged or some other matter

  of law central to the guilt or innocence of the accused.” Id. at 1256.

  On receipt of a jury’s question regarding a point of law, a court

  should give further instructions to the jury unless the question can

  be answered by the instructions already given, the question is not

  relevant to the law at issue, or the question asks the court to decide

  issues of fact. Chase, ¶ 38, ___ P.3d at ___.

¶ 31   “When a term, word, or phrase in a jury instruction is one

  with which reasonable persons of common intelligence would be

  familiar, and its meaning is not so technical or mysterious as to

  create confusion in jurors’ minds as to its meaning, an instruction

  defining it is not required.” People v. Thoro Prods. Co., 45 P.3d 737,

  745 (Colo. App. 2001), aff’d, 70 P.3d 1188 (Colo. 2003). However,

  Colorado’s appellate courts have consistently upheld courts giving

  the jury supplemental instructions, even when unnecessary, if the

  instructions properly state the law. People v. Holwuttle, 155 P.3d

  447, 449-50 (Colo. App. 2006).




                                    14
                              C.    Analysis

¶ 32   There is no statutory definition of the term “without

  authorization” or “authorization.” Thus, the court did not abuse its

  discretion in supplementing the jury instructions because

  “authorization” was related to a legal issue, the court’s response

  was simple and direct, and the jury expressed confusion over the

  term’s meaning. See People v. Cruz, 923 P.2d 311, 313 (Colo. App.

  1996) (holding that court did not err in giving the jury a dictionary

  definition of an undefined element of a crime); see also People v.

  Martin, 851 P.2d 186, 189 (Colo. App. 1992).

¶ 33   Divisions of our court have defined “without authorization” in

  the context of theft statutes to mean “that the owner of the

  property, or a person in possession of the property with the owner’s

  consent, has not given the actor permission to exercise control over

  the property.” People v. McCormick, 784 P.2d 808, 810 (Colo. App.

  1989) (quoting People v. Edmonds, 195 Colo. 358, 362, 578 P.2d

  655, 659 (1978)); see People v. Stell, 2013 COA 149, ¶ 14, 320 P.3d

  382, 385 (“A person acts ‘without authorization’ when the owner of

  the property has not given him or her permission to obtain or

  exercise control over the property.”).


                                    15
¶ 34   Generally, the use of an excerpt from an opinion in a jury

  instruction is an unwise practice because opinions and instructions

  have different purposes. Pahl, 169 P.3d at 183-84. Thus, the court

  was not required to use the definition of “authorization” or “without

  authorization” from our published decisions.

¶ 35   Further, we conclude that the court acted within its discretion

  when it tailored the wording of its response to the jury’s question

  because the court’s definition of “authorization” was a proper

  definition that fit the facts of the case and related to the issues the

  jury needed to resolve. Therefore, trial court did not abuse its

  discretion when it supplied the jury with its definition of

  authorization.

¶ 36   Stellabotte argues that by defining the term “authorization” to

  require “legal authority,” the court injected a requirement that the

  authority to act derive from a law. We disagree. “[T]erms frequently

  have more than one ordinary meaning, or at least more than one

  shading or nuance of meaning . . . .” Marquez v. People, 2013 CO

  58, ¶ 8, 311 P.3d 265, 268. We conclude that the court did not

  inject a new requirement that lowered the prosecution’s burden of

  proof. Rather, the court chose a definition different from that in our


                                     16
  published decisions that was appropriate in the circumstances of

  this case.

¶ 37   Therefore, we conclude that the court did not abuse its

  discretion when it provided the jury with the dictionary definition of

  “authorization.”

                IV.   Effect of Amendatory Legislation

¶ 38   On June 5, 2013, the General Assembly lowered the

  classification of thefts of items valued between $5000 and $20,000

  from class 4 to class 5 felonies. See Ch. 373, sec. 1, § 18-4-401,

  2013 Colo. Sess. Laws 2196. The General Assembly did not include

  a specific effective date of the amendment.

¶ 39   Stellabotte committed his offenses in June and July 2012.

  The jury entered its verdict in May 2014, and the court sentenced

  Stellabotte in August 2014. Consequently, by the time the court

  sentenced Stellabotte, his offenses were considered class 5 felonies.

  However, the court entered a judgment of conviction and sentenced

  him under the prior laws as class 4 felonies.

¶ 40   Stellabotte contends that the reclassification should reduce

  the maximum of his sentencing range for his theft convictions from

  six years to three years, which in turn should reduce his sentence


                                    17
  for those offenses, as enhanced by the habitual criminal statute,

  from twenty-four years to twelve years. We agree.

                        A.        Standard of Review

¶ 41   We review de novo the legality of a sentence. People v. Hard,

  2014 COA 132, ¶ 46, 342 P.3d 572, 581.

¶ 42   Because Stellabotte did not raise this argument before the trial

  court, the People contend that we must review any error for plain

  error. See Hagos v. People, 2012 CO 63, ¶¶ 18-19, 288 P.3d 116,

  120-21. However, we need not review for plain error because a

  defendant may raise a claim at any time that his or her sentence

  was not authorized by law. People v. Fransua, 2016 COA 79, ¶ 17,

  ___ P.3d ___, ___.

                             B.    Applicable Law

¶ 43   In determining whether to apply amendments to legislation,

  we first look to the plain language of the statute. People v.

  Summers, 208 P.3d 251, 253-54 (Colo. 2009). Statutes that

  explicitly state that they are to apply only to offenses committed

  after the effective date are to be applied accordingly. See People v.

  McCoy, 764 P.2d 1171, 1174 (Colo. 1988).




                                       18
¶ 44   “A statute is presumed to be prospective in its operation.” § 2-

  4-202, C.R.S. 2015. However, where the legislative intent is silent,

  a defendant may seek retroactive application of a statute if he or

  she benefits from a significant change in the law. § 18-1-410(1)(f)(I),

  C.R.S. 2015. The supreme court extended this rule to defendants

  seeking relief on direct appeal. People v. Thornton, 187 Colo. 202,

  203, 529 P.2d 628, 628 (1974); see also People v. Russell, 2014

  COA 21M, ¶ 12, ___ P.3d ___, ___ (cert. granted Feb. 23, 2015).

  Whenever constitutionally possible, a defendant should be granted

  the benefits of amendatory legislation that mitigates the penalty for

  a crime. People v. Bloom, 195 Colo. 246, 251, 577 P.2d 288, 292

  (1978).

                              C.    Analysis

¶ 45   The theft amendment is silent as to whether it applies

  retroactively or prospectively, and the legislative history provides no

  guidance as to its application. However, several divisions of our

  court have considered whether amendments that are silent as to

  their effective dates apply retroactively. See People v. Boyd, 2015

  COA 109, ¶ 14, ___ P.3d ___, ___ (concluding that although

  Amendment 64 does not indicate a clear intent for retroactive


                                    19
  application, it applied retroactively to the defendant’s conviction for

  possession of marijuana) (cert. granted Mar. 21, 2016); Russell,

  ¶ 13, ___ P.3d at ___ (same); People v. Palmer, 42 Colo. App. 460,

  461-63, 595 P.2d 1060, 1062-63 (1979); People v. Jenkins, 40 Colo.

  App. 140, 143, 575 P.3d 13, 15-16 (1977); see also Bloom, 195

  Colo. at 251-52, 577 P.2d at 292; Thornton, 187 Colo. at 203, 529

  P.2d at 628-29; People v. Thomas, 185 Colo. 395, 397-98, 525 P.2d

  1136, 1138 (1974). We follow the legal analysis presented in the

  above-cited decisions and apply them to the theft statutory

  amendment. We conclude that the theft amendment applies

  retroactively to cases pending in the trial court when the

  amendment was enacted.

¶ 46   In addition, both Boyd and Russell, although they dealt with

  constitutional amendments, relied on section 18-1-410(1)(f)(I).

  Section 18-1-410(1)(f)(I) expressly applies to statutory amendments.

  Thus, we find the analysis in Boyd and Russell particularly

  persuasive here where a statutory amendment is at issue.

¶ 47   The partial dissent relies on Riley v. People, 828 P.2d 254, 258

  (Colo. 1992); McCoy, 764 P.2d at 1174; and People v. Macias, 631

  P.2d 584, 587 (Colo. 1981), for the proposition that a defendant


                                    20
should not receive the benefit of legislation that lessens the

penalties for crimes committed before the legislation was enacted

unless the General Assembly clearly intended the legislation to be

applied retroactively. These cases are distinguishable. In Riley,

McCoy, and Macias, the supreme court considered cases where the

General Assembly provided that the statutory amendments applied

to offenses committed on or after the effective date. See also People

v. Pineda-Eriza, 49 P.3d 329, 333 (Colo. App. 2001). Thus, the

statements on which the dissent relies are dicta. Boyd, ¶ 29, ___

P.3d at ___.4 Further, because the three cases dealt with

amendatory statutes that applied only to offenses committed on or

after the effective date, we do not view Riley, McCoy, and Macias as

inconsistent with Russell and Boyd. Rather, the former apply to


4 We recognize that apparent conflict between section 2-4-202,
C.R.S. 2015, and section 18-1-410, C.R.S. 2015. Applying rules of
statutory construction, the Boyd majority concluded that section
18-1-410 should prevail over section 2-4-202 because the
propositions in Riley v. People, 828 P.2d 254, 258 (Colo. 1992), and
People v. McCoy, 764 P.2d 1171, 1174 (Colo. 1988), on which the
dissent relied constituted dicta and section 18-1-410 is the more
specific statutory provision. People v. Boyd, 2015 COA 109, ¶¶ 28-
32, ___ P.3d ___, ___ (cert. granted Mar. 21, 2016). The Boyd
majority ultimately resolved the conflict between section 2-4-202
and section 18-1-410 by reading section 18-1-410 as an exception
to section 2-4-202. We agree with that analysis.

                                  21
  legislative amendments with prospective effective dates, and the

  latter apply to legislative amendments, as here, with an effective

  date, but no indication whether they were to be applied

  prospectively or retroactively.

¶ 48   Therefore, we vacate and remand to the trial court to correct

  his sentence on the two felony theft convictions and corresponding

  habitual criminal sentence enhancement to reflect a twelve-year

  sentence for those offenses. We emphasize that our analysis only

  applies to the felony theft convictions, and not the aggravated motor

  vehicle theft and misdemeanor theft convictions.

                      V.        Proportionality Review

¶ 49   Stellabotte contends that the twenty-four-year sentences that

  the trial court imposed are disproportionate to the nature and

  severity of his offenses in violation of the Eighth Amendment. We

  disagree.

                           A.     Standard of Review

¶ 50   We review de novo whether a sentence is constitutionally

  proportionate. People v. Hargrove, 2013 COA 165, ¶ 8, 338 P.3d

  413, 416.




                                        22
                           B.    Applicable Law

¶ 51   The Eighth Amendment to the United States Constitution

  prohibits the imposition of sentences that are disproportionate to

  the crime committed. Solem v. Helm, 463 U.S. 277, 284 (1983).

  Although reviewing courts should grant substantial deference to the

  legislature’s authority to set penalty schemes, “no penalty is per se

  constitutional.” Id. at 290.

¶ 52   “In the absence of a need for a refined analysis inquiring into

  the details of the specific offenses or a detailed comparison of

  sentences imposed for other crimes in this or other jurisdictions, an

  appellate court is as well positioned . . . to conduct a proportionality

  review.” People v. Gaskins, 825 P.2d 30, 37-38 (Colo. 1992).

¶ 53   Upon request, a defendant is entitled to an abbreviated

  proportionality review of his or her sentence. People v. Deroulet, 48

  P.3d 520, 526 (Colo. 2002). An abbreviated proportionality review

  consists of a comparison of the gravity of the offense and the

  harshness of the penalty to discern whether it raises an inference of

  gross disproportionality. Id. at 527.

¶ 54   For purposes of proportionality review, we consider each

  sentence imposed separately. Close v. People, 48 P.3d 528, 539


                                    23
  (Colo. 2002). We scrutinize all the offenses in question, both

  triggering and predicate, to determine whether in combination they

  are so lacking in gravity or seriousness as to suggest that a

  sentence enhanced by the habitual criminal sentence is grossly

  disproportionate. People v. Patnode, 126 P.3d 249, 260 (Colo. App.

  2005). If an abbreviated review does not yield an inference of gross

  disproportionality, no further review is required. People v. Reese,

  155 P.3d 477, 479 (Colo. App. 2006). “[I]n almost every case, the

  abbreviated proportionality review will result in a finding that the

  sentence is constitutionally proportionate, thereby preserving the

  primacy of the General Assembly in crafting sentencing schemes.”

  Deroulet, 48 P.3d at 526.

¶ 55   When a court considers the gravity of the offense in an

  abbreviated proportionality review, it must determine whether the

  offense is grave and serious. People v. Strock, 252 P.3d 1148, 1158

  (Colo. App. 2010). In making the determination, courts consider

  the harm caused or threatened to the victim or to society and the

  culpability of the offender. Gaskins, 825 P.2d at 36.

¶ 56   Certain felonies are per se grave and serious crimes for

  purposes of proportionality review. Close, 48 P.3d at 538. If a


                                    24
  reviewing court is unable to conclude that a certain felony is

  categorically grave and serious on its face, the court may conduct a

  more refined inquiry into the case-specific facts and circumstances

  underlying the offense and determine if the offense is grave and

  serious. People v. Mershon, 874 P.2d 1025, 1032 (Colo. 1994).

                              C.    Analysis

¶ 57   Stellabotte contends all three of his twenty-four-year

  sentences are disproportionate to the nature and severity of the

  offenses. We disagree.

¶ 58   Stellabotte’s triggering offenses — two counts of felony theft

  and one count of aggravated motor vehicle theft — either

  individually or in combination, are grave and serious crimes for the

  purposes of an abbreviated proportionality review. See People v.

  Cooper, 205 P.3d 475, 481 (Colo. App. 2008) (even assuming that

  triggering and predicate car theft offenses were not individually

  grave and serious per se, in combination they were grave and

  serious); People v. Merchant, 983 P.2d 108, 117 (Colo. App. 1999)

  (felony theft is a serious offense); People v. Penrod, 892 P.2d 383,

  387 (Colo. App. 1994) (aggravated motor vehicle theft “may not be

  characterized as lacking in gravity”).


                                    25
¶ 59   Likewise, Stellabotte’s underlying offenses — attempted

  aggravated motor vehicle theft, aggravated motor vehicle theft, and

  felony menacing — are also grave and serious. People v. Cisneros,

  855 P.2d 822, 830 (Colo. 1993) (felony menacing is a grave and

  serious offense). These prior felonies triggered habitual criminal

  sentencing, which quadrupled his sentence.

¶ 60   Accordingly, Stellabotte’s triggering offenses and the three

  predicate offenses are sufficiently grave and serious to support a

  conclusion that his twenty-four-year concurrent sentences are

  constitutionally proportionate, particularly in light of the mandatory

  habitual criminal sentence enhancement. Given our conclusion in

  Part V, it follows that Stellabotte’s new theft sentences of twelve

  years also are not grossly disproportionate.

                           VI.   Conclusion

¶ 61   The judgment of conviction is affirmed, the felony theft

  sentences are vacated, the other sentences are affirmed, and the

  case is remanded for resentencing on the felony theft convictions.

       JUDGE FREYRE concurs.

       JUDGE DAILEY concurs in part and dissents in part.




                                    26
       JUDGE DAILEY, concurring in part and dissenting in part.

¶ 62   I agree with all but Part IV of the majority opinion. Contrary

  to the majority, I would decline to follow People v. Russell, 2014

  COA 21M (cert. granted Feb. 23, 2015), and People v. Boyd, 2015

  COA 109 (cert. granted Mar. 21, 2016), and, thus, I would uphold

  the class 4 felony classification of defendant’s convictions for theft.

¶ 63   Defendant’s convictions were based on acts committed in the

  summer of 2012. As noted by the majority, the General Assembly

  did not amend the law, lowering the classification of defendant’s

  criminal acts, until June 2013.

¶ 64   The issue is whether the 2013 legislation applies retroactively

  to lower the felony classification for acts committed nearly a year

  earlier. Relying on Russell and Boyd, the majority holds that it

  does. Both Russell and Boyd addressed the retroactivity of an

  amendment to the state constitution which decriminalized certain

  theretofore illegal offenses related to marijuana use. In Russell, the

  division said:

             In general, when construing a constitutional
             amendment, unless its terms clearly show
             intent that the amendment be retroactively
             applied, “we presume the amendment has
             prospective application only.”


                                     27
             . . . The general presumption of prospective
             application, however, is subject to a doctrine
             established by our General Assembly and
             supreme court enabling a defendant to benefit
             retroactively from a significant change in the
             law.

  Russell, ¶¶ 11-12 (citations omitted) (quoting Huber v. Colo. Mining

  Ass’n, 264 P.3d 884, 889 (Colo. 2011)).

¶ 65   The “doctrine” the Russell division identified as the exception

  to the general rule of prospective application originated in a line of

  supreme court cases holding that a defendant whose conviction is

  not yet final is entitled to the benefit of amendatory legislation

  mitigating the penalties for crimes. See People v. Thomas, 185 Colo.

  395, 397-98, 525 P.2d 1136, 1138 (1974); see also People v. Bloom,

  195 Colo. 246, 251-52, 577 P.2d 288, 292 (1978); People v.

  Thornton, 187 Colo. 202, 203, 529 P.2d 628, 628-29 (1974).

¶ 66   However, a subsequent, and inconsistent, line of supreme

  court cases states that a defendant should not receive the benefit of

  legislation that lessens the penalties for crimes committed before

  the new legislation was enacted unless the legislation was clearly

  intended to be applied retroactively. See Riley v. People, 828 P.2d




                                     28
  254, 258 (Colo. 1992); People v. McCoy, 764 P.2d 1171, 1174 (Colo.

  1988); People v. Macias, 631 P.2d 584, 587 (Colo. 1981).

¶ 67   The majority finds this second line of authority inapposite

  because, although there is no clear indication of an intent to apply

  the new legislation retroactively, there is also no clear indication of

  intent to apply it only prospectively to acts committed on or after a

  certain date.

¶ 68   I do not believe that this second — and, in my view, controlling

  — line of authority can be so easily dismissed. It is premised on the

  rule of construction that presumes a statute is “prospective in its

  operation.” § 2-4-202, C.R.S. 2015. “The General Assembly may

  override this presumption by clearly expressing a contrary intent.”

  People v. Summers, 208 P.3d 251, 256 (Colo. 2009); see Riley, 828

  P.2d at 257 (“Legislation is presumed to have prospective effect

  unless a contrary intent is expressed by the General Assembly.”);

  see also McCoy, 764 P.2d at 1174 (“Our cases also establish that a

  defendant does not receive any ameliorative benefit when retroactive

  application of the amendatory legislation is clearly not intended by

  its own terms.”); People v. Pineda-Eriza, 49 P.3d 329, 333 (Colo.

  App. 2001) (“A defendant is not entitled to the ameliorative effects of


                                     29
  amendatory legislation if the legislature has not indicated its intent

  to require retroactive application thereof.”).

¶ 69   Contrary to the majority’s belief, the absence of an explicit

  prospective application provision cannot undermine the

  presumption of prospective application. That presumption “is only

  strengthened by the insertion of an effective date clause that

  explicitly mandates prospective application.” Summers, 208 P.3d at

  257 (emphasis added). In the absence of such a clause, the

  presumption would still exist, unless and until the General

  Assembly expressed an intent to apply the enactment retroactively,

  Riley, 828 P.2d at 257.

¶ 70   Because no intent to apply the 2013 legislation retroactively is

  suggested from its language, the presumption of prospective

  application applies. Thus, I would hold that the 2013 legislation

  did not retroactively re-classify the felony level of defendant’s 2012

  criminal conduct. See § 2-4-303, C.R.S. 2015 (“The repeal,

  revision, amendment, or consolidation of any statute . . . or section

  . . . shall not have the effect to release, extinguish, alter, modify, or

  change in whole or in part any penalty . . . either civil or criminal




                                      30
. . . unless the repealing, revising, amending, or consolidating act so

expressly provides . . . .”) (emphasis added).




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