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 September 15, 2022
2022COA107
No. 19CA0915, People v. Rodriguez-Morelos — Crimes — Identity Theft — Personal Identifying Information — Financial Identifying Information
As is relevant to this appeal, the crime of identity theft,
proscribed by section 18-5-902(1)(a), C.R.S. 2021, occurs when “[a]
person . . . [k]nowingly uses the personal identifying information
. . . of another without permission or lawful authority with the
intent to obtain cash, credit, property, services, or any other thing
of value.” The definition of “personal identifying information,” found
in section 18-5-901(13), C.R.S. 2021, states that it is “information
that may be used . . . to identify a specific individual.” A division of
the court of appeals interprets “personal identifying information” to
mean only specified information concerning single, identified
human beings. The division therefore concludes that defendant did not commit the crime of identity theft when he used a nonprofit’s
name and documents, without its permission, to recruit people to
take classes from him.
The division also concludes that the record of defendant’s trial
did not contain any evidence to show that defendant used the
nonprofit’s “financial identifying information,” which is defined by
section 18-5-901(7), with the intent to obtain cash or any other
thing of value.
As a result of these two conclusions, the division further
concludes that defendant’s conviction for identity theft must be
vacated. COLORADO COURT OF APPEALS 2022COA107
Court of Appeals No. 19CA0915 Arapahoe County District Court No. 17CR1064 Honorable Jeffrey K. Holmes, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jesus Rodriguez-Morelos,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART, VACATED IN PART, ORDER AFFIRMED, AND CASE REMANDED WITH DIRECTIONS
Division VI Opinion by JUDGE BERNARD* Dunn and Johnson, JJ., concur
Announced September 15, 2022
Philip J. Weiser, Attorney General, Christine Brady, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Julia Chamberlin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2021. ¶1 A jury found defendant, Jesus Rodriguez-Morelos, guilty of one
count of identity theft, three counts of felony theft, and one count of
criminal impersonation. He appeals the judgment of conviction and
the trial court’s restitution order. We vacate the conviction for
identity theft but affirm the other convictions, and we remand the
case to the trial court to amend the mittimus accordingly. We also
affirm the restitution order.
I. Background
¶2 The Colorado Department of Regulatory Agencies investigated
defendant after it received complaints that he was taking money for
teaching certified nursing assistant classes that the state had not
approved. Colorado law states that people can only become
certified nursing assistants if they complete a state-approved
program.
¶3 Defendant also did volunteer work for a nonprofit organization
called United for Migrants that supported migrant workers. He
participated in the nonprofit’s food and toy drives, and he helped
some immigrants get their GEDs. He started administering
unsanctioned certified nursing assistant classes in 2015. Without
the nonprofit’s authorization, defendant told at least some of the
1 students that these classes were affiliated with the nonprofit and
that he was acting on its behalf. For example, he referred to
himself as the nonprofit’s “Director of Education,” a position that
did not exist. Without the nonprofit’s knowledge, he gave some
students a tax-exempt document bearing the nonprofit’s name.
¶4 The students saw the class as a path to obtaining better
employment opportunities. Most, if not all, of the students in the
class were Spanish-speaking immigrants, and at least some of them
were undocumented. The class cost $63, and, over time, defendant
added other certification programs at various costs, all related to
the medical profession.
¶5 To induce students to take the certified nursing assistant
class, defendant made two material misrepresentations. First, he
said the class had been approved by the state. Second, he said that
students did not need a social security number to become a
certified nursing assistant. Although Colorado does not require a
person to have a social security number to become a certified
nursing assistant, one must be lawfully in the United States to
become licensed and to work as a certified nursing assistant.
2 ¶6 Defendant told students who did not have a social security
number or lawful status that he would still be able to find them a
job in the nursing field. This was not true.
¶7 Before long, various problems with the courses started to
arise. The classes were overcrowded, and students felt that they
were not learning the requisite skills to become certified nursing
assistants. Defendant frequently refused to provide students with
receipts for their payments. And none of the students who testified
at trial had been hired as certified nursing assistants.
¶8 Defendant’s theory of defense at trial was that he simply
wanted to help the immigrant community by providing a legitimate
service.
II. Sufficiency of the Evidence
¶9 As is pertinent to this appeal, “[a] person commits identity
theft if he or she . . . [k]nowingly uses the personal identifying
information [or] financial identifying information . . . of another
without permission or lawful authority with the intent to obtain”
money. § 18-5-902(1)(a), C.R.S. 2021.
¶ 10 Section 18-5-901(13), C.R.S. 2021, defines “personal
identifying information” as
3 information that may be used, alone or in conjunction with any other information, to identify a specific individual, including but not limited to a name; a date of birth; a social security number; a password; a pass code; an official, government-issued driver’s license or identification card number; a government passport number; biometric data; or an employer, student, or military identification number.
(Emphasis added.)
¶ 11 “Financial identifying information” includes “[a] number
representing a financial account or a number affecting the financial
interest, standing, or obligation of or to the account holder,” § 18-5-
901(7)(b), “that can be used, alone or in conjunction with any other
information, to obtain cash, credit, property, services, or any other
thing of value or to make a financial payment,” § 18-5-901(7).
¶ 12 The phrase “of another” “means that of a natural person, living
or dead, or a business entity.” § 18-5-901(11).
¶ 13 Defendant contends that the evidence in the record is not
sufficient to support the identity theft conviction because (1) his use
of the nonprofit’s name and tax-exempt document did not
constitute the use of personal identifying information as defined by
section 18-5-901(13); and (2) although the tax-exempt document he
4 gave to some of the students was financial identifying information
under section 18-5-901(7), there is no evidence in the record that
he used this document to obtain money or any other thing of value
as required by section 18-5-902(1)(a). We agree with both
contentions.
A. Personal Identifying Information Concerns Information Belonging Only to Human Beings
1. Standard of Review and General Principles of Statutory Construction
¶ 14 Statutory interpretation is a question of law that we review de
novo. People v. Perez, 2016 CO 12, ¶ 8. The primary purpose in
interpreting statutes is to give effect to the General Assembly’s
intent. Hunsaker v. People, 2015 CO 46, ¶ 11. If the statutory
language is clear, we apply its plain and ordinary meaning. Id.
¶ 15 “[W]e presume that the legislature [does] not use language
idly.” Robinson v. Colo. State Lottery Div., 179 P.3d 998, 1010
(Colo. 2008). “Rather, the use of different terms signals an intent
on the part of the General Assembly to afford those terms different
meanings.” Id.; see also People v. Gulyas, 2022 COA 34, ¶ 38
(concluding that the rape shield statute’s use of the separate terms
“witness” and “defendant” meant that a defendant was not
5 considered a witness for purposes of that statute). “[W]e may not
construe a statute so as to render any statutory words or phrases
superfluous.” People v. Rediger, 2018 CO 32, ¶ 22.
2. Discussion
¶ 16 Defendant asserts that the term “specific individual,” which is
contained in the definition of “personal identifying information”
found in section 18-5-901(13), refers only to human beings and not
to business entities such as the nonprofit. This means, he
continues, that he did not commit identity theft under section 18-5-
902(1)(a) because he did not use personal identifying information
when he used the nonprofit’s name and tax-exempt document.
(Defendant does not assert that the trial evidence was insufficient to
show that he used the nonprofit’s name to obtain cash or anything
of value. Even if he did, such an assertion would be unsuccessful
because there was at least some testimony to that effect.)
¶ 17 The prosecution responds that the crime of identity theft
requires proof that defendant used the personal identifying
information “of another.” The phrase “of another,” the prosecution
goes on, defines who the victims of identity theft are, and that class
of victims includes business entities such as the nonprofit.
6 Limiting the definition of “personal identifying information” “to
natural people,” the prosecution’s response finishes up, “would
effectively nullify or render superfluous the General Assembly’s
chosen use of the phrase ‘of another’” to define the universe of
potential victims of identity theft.
¶ 18 On the one hand, we think that the prosecution’s response
misses the mark. True, the phrase “of another” sets out who the
victims of identity theft might be. But the definition of “personal
identifying information” does not describe or affect the class of
victims of identity theft; rather, it defines the types of information,
documents, or items that defendants may take from victims to
commit that crime. In other words, if the prosecution charges a
defendant with identity theft for using personal identifying
information, but the thing used does not fit within the definition of
that term, then the defendant has not committed the crime.
¶ 19 The term “of another” is not rendered superfluous by
interpreting “personal identifying information” to include only
specified information concerning human beings. For example,
section 18-5-902(1)(a) contemplates that a person may commit
identity theft by using the “financial identifying information” or the
7 “financial device” of another. No language in the definition of
financial identifying information, see § 18-5-901(7), or the definition
of financial device, see § 18-5-901(6), limits those terms to
information concerning only human beings. So defendants may be
convicted of identity theft if they use financial identifying
information or a financial device belonging to a business entity,
such as the nonprofit.
¶ 20 On the other hand, we think that defendant’s contention hits
the target. We conclude that the plain and ordinary meaning of the
statutory language is clear and unambiguous, see Hunsaker, ¶ 11,
and we further conclude that the term “specific individual” means
one identified human being.
¶ 21 We begin our analysis by considering the dictionary definitions
of the noun “individual” and the adjective “specific.”
¶ 22 According to Webster’s Third New International Dictionary
1152 (2002), the first sense of the noun “individual” has two
potential subsenses that are pertinent:
“a particular being or thing as distinguished from a class,
species, or collection . . . a single human being as
contrasted with a social group or institution”; and
8 “a particular person.”
¶ 23 The first sense of the adjective “specific” is “constituting or
falling into the category specified.” Id. at 2187. The verbal
illustration for this sense of the word is “[specific] fertilizing agents
such as nitrogen or phosphate.” Id.
¶ 24 When we put these definitions together, we see that the
second subsense of “individual” — “a particular person” — would
make the adjective “specific” superfluous: a specific particular
person. We cannot “render any statutory word[] . . . superfluous,”
Rediger, ¶ 22, and we must presume that the legislature did not use
the phrase “specific individual” idly, see Robinson, 179 P.3d at
1009.
¶ 25 This problem is eliminated, however, if we employ the first
subsense of the definition of “individual” — “a single human being
as contrasted with a social group or institution.” This subsense
recognizes the generic notion of single human beings. By adding
the adjective “specific,” the generic notion — for example, there are
approximately 740,000 single human beings who live in Denver —
becomes the unique — one identified human being out of 740,000.
9 Using this subsense gives voice to both the noun and the adjective:
¶ 26 As a result, we additionally conclude that defendant’s conduct
of using the nonprofit’s name and tax-exempt document was not
the use of personal identifying information. This means that his
conviction for identity theft for such usage based on that charging
theory cannot stand. See Rediger, ¶ 31.
B. Defendant Did Not Use the Nonprofit’s Financial Identifying Information with the Intent to Obtain Cash or Any Other Thing of Value
¶ 27 We must next decide whether the record contains evidence
showing that defendant used the nonprofit’s financial identifying
information with the intent to obtain cash or any other thing of
value.
1. Standard of Review
¶ 28 We review de novo whether the evidence before the jury was
sufficient both in quantity and quality to sustain a conviction.
Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010). We must
determine “whether the relevant evidence, both direct and
circumstantial, when viewed as a whole and in the light most
favorable to the prosecution, is substantial and sufficient to support
10 a conclusion by a reasonable mind that the defendant is guilty of
the charge beyond a reasonable doubt.” Id. (quoting People v.
Bennett, 183 Colo. 125, 130, 515 P.2d 466, 469 (1973)).
¶ 29 For the purposes of this contention, defendant concedes that
he used a tax-exempt document bearing the nonprofit’s name and
that the document was financial identifying information. See § 18-
5-901(7). But he submits that there was insufficient evidence to
show that he used the document to obtain cash or anything of
value. See id. Instead, he asserts that the only evidence about his
use of the tax-exempt document showed that he gave it to students
after they paid for his classes or at an unknown point in time.
¶ 30 The prosecution, in response, cites the theft statute for the
proposition that a person can commit theft by retaining cash or a
thing of value by threat or deception. See § 18-4-401(1), C.R.S.
2021. So, the prosecution’s response proceeds, the timing of when
defendant gave the tax-exempt document to the students was
immaterial.
¶ 31 The prosecution’s response, though, obviously relies on a
different statute — the theft statute — than the one central to
11 defendant’s contention — the identity theft statute. (We recognize
that defendant was also convicted of three counts of theft, but
defendant’s contention does not incorporate them.) The theft
statute is a proverbial apple, prohibiting a person from retaining
cash by threat or deception, while the identity theft statute is a
much narrower orange, focusing on whether the prosecution has
proved beyond a reasonable doubt that the person used another’s
financial identifying information with the intent to obtain cash or
any other thing of value. See § 18-5-902(1)(a).
¶ 32 As a result, the relevant question becomes whether defendant
used the document to induce students to pay him for any of the
courses that he offered. Based on our review of the record, we
conclude the answer to this question is “no.” To reach this
conclusion, we carefully analyzed the trial evidence, and we
determined that, in the light most favorable to the prosecution, the
evidence as a whole was not substantial and sufficient enough to
support a reasonable mind’s conclusion that defendant used the
document with the intent to obtain cash or any other thing of value.
See Clark, 232 P.3d at 1291.
12 ¶ 33 The trial evidence included testimony from a detective, who
said that defendant gave some of the victims the document at the
same time that he distributed a certificate of completion or diploma
for taking a course. But, as far as the detective was aware, all the
victims paid for their courses upfront, and he confirmed that no
victim withheld payment until after receiving a diploma or a
certificate of completion.
¶ 34 Some of the victims also testified about the document. None
of them said that defendant told them either that they would receive
the document if they signed up for the class or that there was a
connection between taking the class and receiving the document.
Although some of the contracts they signed to take the class
referred to a “tax deductible report,” none of the victims testified
that they enrolled in the class because of that reason; indeed, they
did not seem to know what the document was, and there was no
evidence that the “tax deductible report” and the document were the
same thing. Although some of the victims said that they had
received the document, none of them added that receiving the
document was one of the reasons why they took the class.
13 ¶ 35 Therefore, we conclude that the evidence was insufficient to
prove that defendant used the document, which was financial
identifying information, with the intent to obtain cash or any other
thing of value. His conviction for identity theft based on that
charging theory therefore cannot stand. See Rediger, ¶ 31.
Because we have previously held that the conviction for identity
theft for using personal identifying information likewise cannot
stand, we therefore vacate defendant’s conviction for identity theft,
and, on remand, the trial court shall correct the mittimus
accordingly.
III. Motion to Strike Victims’ Testimony
¶ 36 Defendant asserts that the court erred because it denied his
request to strike the testimony of two victims who invoked their
Fifth Amendment privilege with respect to cross-examination about
their immigration status. We are not persuaded.
A. Standard of Review and Applicable Law
¶ 37 We review a trial court’s decision to deny a motion to strike the
testimony of a witness for an abuse of discretion. See People v.
Ray, 109 P.3d 996, 1002 (Colo. App. 2004). A court abuses its
discretion when its ruling is manifestly arbitrary, unreasonable, or
14 unfair, or if it misapplies the law. People v. Payne, 2019 COA 167,
¶ 5.
¶ 38 The decision whether to strike a witness’s testimony based on
the invocation of the Fifth Amendment privilege should focus on
“whether the sought answer was closely related to the commission
of the crime, or involved collateral or cumulative testimony
concerning credibility.” Ray, 109 P.3d at 1002 (quoting People v.
Coca, 39 Colo. App. 264, 268, 564 P.2d 431, 434 (1977)).
B. Discussion
¶ 39 Defendant asserts that he should have been allowed to cross-
examine two victims about their immigration status to impeach
their testimony that they believed him when he told them that they
could each work in Colorado as a certified nursing assistant
without a social security number. He argued that, if a victim was
undocumented, then it necessarily meant that the victim had
submitted a false social security number at some point in the past,
which called the victim’s credibility into question.
¶ 40 True, as defendant points out, in some circumstances a
person’s immigration status may be a key consideration for the
jury. See Doumbouya v. Cnty. Ct., 224 P.3d 425, 430 (Colo. App.
15 2009)(defendant had a right to cross-examine his wife, the
complaining witness, about whether she understood the
immigration consequences of his potential conviction because it
supported the defendant’s theory that she had fabricated the claims
against him to gain custody of their son).
¶ 41 But, in this case, we conclude that whether a victim at some
unknown point in the past submitted a false social security number
was not “closely related to the commission of the crime” and
involved collateral testimony about the victim’s credibility. See Ray,
109 P.3d at 1002; CRE 403. In this context, the key questions at
trial were whether defendant told the victims that the state had
approved the classes and that having a social security number was
not a prerequisite to becoming a certified nursing assistant in
Colorado. Whether the victims were undocumented workers and
whether they had previously submitted a false social security
number were collateral to those key questions.
¶ 42 The jury had heard other evidence that similarly impacted the
two victims’ credibility, such as testimony creating the inference
that they were undocumented workers. For example, one of them
said that she had asked defendant if she could get a certified
16 nursing assistant license without a social security number and that
she would not have taken any of defendant’s classes if she had
known that having a social security number was a prerequisite to
getting a license in Colorado. And there was testimony that
defendant targeted the victims in this case because they were
undocumented, so it would not surprise the jury to learn that two of
the victims fell into that category along with others.
¶ 43 We therefore conclude that the court did not err when it
denied defendant’s motion to strike the testimony of these two
witnesses.
IV. “Uncharged Misconduct”
¶ 44 Defendant asserts that the cumulative prejudicial effect of
what he deems as evidence of “uncharged misconduct” was so
pervasive at trial that we must reverse all his convictions. We
disagree.
A. Standard of Review
¶ 45 We review the trial court’s evidentiary rulings for an abuse of
discretion. People v. Clark, 2015 COA 44, ¶ 14.
17 B. Discussion
¶ 46 Defendant cites the following as evidence of uncharged
misconduct that the court should not have admitted at his trial:
1. One witness said that defendant is a threatening person.
2. A victim testified that defendant did not pay rent to her even
though she rented him a place to stay.
3. Six victims testified about classes that they had taken or paid
for, but this testimony that was not reflected in the bill of
particulars.
4. A detective said that some of the victims were not lawfully in
the United States.
5. A ledger recorded the payments defendant received for the
classes from victims and other students who had not testified.
¶ 47 With respect to the evidence in the preceding list’s first four
items, there was no error because, with two exceptions, the court
sustained defense counsel’s objections and instructed the jury to
disregard the testimony. See People v. Hogan, 114 P.3d 42, 55
(Colo. App. 2004).
¶ 48 In one instance, the court overruled defense counsel’s
objection to allow a student to clarify that he did not take a specific
18 class. Defendant does not explain how this testimony was
prejudicial. If anything, it appears to have benefitted defendant
because it clarified for the jury that the specific class was not
included in the theft counts.
¶ 49 In the other instance, a witness testified about a meeting
during which defendant angrily threatened her. Defendant did not
object to this evidence, which would normally call for plain error
review. See Hagos v. People, 2012 CO 63, ¶ 14. But we will not
address this issue because defendant’s explanation of why this
putative error was plain is both conclusory and underdeveloped.
See Sanchez v. Indus. Claim Appeals Off., 2017 COA 71, ¶ 41.
¶ 50 Turning to the fifth item on the list, the ledger, defendant
contends that it was unfairly prejudicial because it contained the
names of students who were not included in the theft counts, which
could have induced the jury to convict him “based on the sheer
quantity of uncharged victims/thefts.”
¶ 51 Although the majority of students named on the ledger were
not named as victims in the theft counts, we conclude that the
probative value of the ledger’s contents was not substantially
outweighed by the danger of confusing or misleading the jury, as
19 defendant asserts. See CRE 401, 403. Rather, the court’s verdict
forms made it clear that the jury could only consider the victims
named on the forms when deciding whether defendant had
committed theft, and we presume that the jury followed this
direction. See People v. Chase, 2013 COA 27, ¶ 37.
V. Constructive Amendment
¶ 52 Defendant submits that the trial court erred when it granted
the prosecution’s motion to amend the three theft counts mid-trial.
We are not persuaded.
¶ 53 We review a trial court’s decision to allow the amendment of
the information under Crim. P. 7(e) for an abuse of discretion.
People v. Palmer, 2018 COA 38, ¶ 12.
¶ 54 After a trial has begun, a court will only amend the
information as to form and only “if no additional or different offense
is charged and if substantial rights of the defendant are not
prejudiced.” Crim. P. 7(e). We construe Crim. P. 7(e) liberally.
Palmer, ¶ 12. An amendment is one of form if it neither adds an
additional element or a different offense nor deprives the defendant
20 of adequate notice of the charges. People v. Washam, 2018 CO 19,
¶ 16.
¶ 55 We conclude, for the following reasons, that the mid-trial
amendment in this case (1) was one of form because it did not add
an additional element or a different offense to the charges and did
not deprive defendant of adequate notice of what the charges
against him were, see id.; and (2) did not prejudice defendant’s
substantial rights, see Crim. P. 7(e).
¶ 56 Before the prosecution rested, the court granted the
prosecutor’s request to amend the three theft counts to remove any
victims from the respective count who had not testified or whose
testimony had addressed events outside the time period for the
offenses as described in the information and in the bill of
¶ 57 In other words, the amendment removed from the jury’s
consideration allegations concerning victims who had not testified
and limited the jury’s consideration to evidence that was within the
scope of the information and the bill of particulars. See People v.
Manzanares, 942 P.2d 1235, 1242 (Colo. App. 1996). So, contrary
21 to defendant’s assertion, the court did not submit a different offense
to the jury; he was still charged with theft. See Washam, ¶ 29 (in
assessing whether an amendment adds an additional or different
offense, we look at whether the amendment charges the defendant
under a different statutory scheme or increases the number of
counts a defendant faces).
¶ 58 Defendant contends that he was prejudiced because the
amendment precluded him from cross-examining witnesses. But he
does not explain how the amendment impacted his ability to do so;
indeed, he had the opportunity to cross-examine every victim whose
name appeared on the verdict forms.
¶ 59 Defendant asserts that the timing of the amendment was
prejudicial because he would have asked the court for a judgment
of acquittal but for the amendment. He bases this assertion on
People v. Moody, 674 P.2d 366, 369 (Colo. 1984).
¶ 60 But Moody is inapposite. In that case, the prosecution moved
to amend the information after the defendant had asked the court
to grant a judgment of acquittal; in this case, the court granted the
prosecution’s motion before defendant would have had an
opportunity to request a judgment of acquittal. In that case, the
22 variance between the evidence and the allegations was material and
granting a motion to amend would have prejudiced the defendant;
in this case, the variance between the evidence and the allegations
was not material, and the court’s decision to grant the amendment
did not prejudice defendant.
¶ 61 Finally, relying on People v. Ramos, 2017 COA 100, defendant
submits that the prosecution was required to prove each individual
theft alleged in each aggregated theft count to establish that he had
committed the crime of theft because each individual theft served as
an element of the aggregated theft counts. When the prosecution
amended the information to remove some of the victims from each
count, defendant’s submission goes on, it did not just remove
surplusage; it removed substance. The court therefore should have
dismissed all the aggregated theft counts, he finishes up, because
the prosecution had not proved all the elements of each count.
Echoing his assertion based on Moody, 674 P.2d at 369, he submits
that he was also prejudiced because the court allowed the
prosecution to amend the aggregated theft counts after he had
asked the court to dismiss them.
23 ¶ 62 In Ramos, ¶ 4, a jury found that the defendant had stolen
money in only one of three individual thefts making up an
aggregated theft count. The division held that, under the plain
language of the aggregated theft statute, section 18-4-401(4)(a),
C.R.S. 2021, the prosecution must “prove all of the thefts
aggregated into a single count.” Ramos, ¶ 17. This is so because,
according to that statute, all thefts aggregated into a single count
“shall constitute a single offense.” Id. at ¶ 18 (quoting § 18-4-
401(4)(a)). As a result, the division decided that the trial court had
erred because it had not instructed the jury that it could only
convict the defendant of the aggregated theft count if it found that
she had committed all three of the individual thefts. Id. at ¶ 21.
¶ 63 Comparing Ramos to this case, we can see that Ramos is
distinguishable. The error in Ramos concerned defects in the
court’s instructions and in the jury’s verdict.
¶ 64 In this case, unlike in Ramos, the court’s decision to allow the
prosecution to amend the aggregated theft counts by removing
some victims occurred before the jury deliberated and convicted
defendant. The court’s instructions and verdict forms listed only
the named victims in each count who remained after the court
24 granted the prosecution’s motion to amend the counts. The jury
found, by way of interrogatories, that defendant had stolen money
from each of those remaining victims. In other words, the jury
found that the prosecution had proved all the individual thefts in
the aggregated counts beyond a reasonable doubt because it
convicted defendant of all those individual thefts.
¶ 65 The error that the division identified in Ramos did not occur in
this case. Because that error did not occur, defendant’s assertion
that he was prejudiced is unavailing. Even though the court’s
decision to grant the amendment modified the originally charged
class 5 felony to a class 6 felony, that modification reduced the
potential sentence that defendant faced if he was convicted. And,
because class 6 felony theft was a lesser included offense of class 5
felony theft, the prosecution could have, even in the absence of the
amendment, asked the court to instruct the jury on class 6 felony
theft. See People v. Garcia, 940 P.2d 357, 358 (Colo. 1997) (“[A]n
uncharged offense may be submitted to the jury over the
defendant’s objection if . . . the uncharged offense is a lesser
included offense of the charged offense . . . .”).
25 ¶ 66 Defendant’s submission treats the court’s decision to allow the
prosecution to amend the aggregated theft counts as equivalent to
the jury’s verdict in Ramos finding that only one of three individual
thefts of an aggregated theft count had been proved. But Ramos
says nothing about what should happen before a jury is instructed
and returns a verdict; it focuses only on instructions and verdicts.
When Ramos, ¶ 17, holds that the prosecution must “prove all of
the thefts aggregated into a single count,” it means that the
prosecution must prove all the aggregated thefts that are submitted
to the jury. It does not mean that the prosecution must prove all
the aggregated thefts that may have, at one point, appeared in
counts and then been removed before the jury was instructed,
deliberated, and returned a verdict. The bottom line is that the
record shows defendant got what he claims Ramos required: the
jury found that the prosecution had proved each individual theft
that was contained in the instructions and listed on the verdict
forms.
VI. Restitution
¶ 67 Defendant raises two challenges to the trial court’s restitution
order. First, he contends that the court violated his right to be
26 present at the restitution hearings. Second, he submits that the
court erred by ordering him to pay restitution for what he deems
“uncharged, unproven, or dismissed thefts.” We disagree with both
contentions. (In reaching this result, we are aware that our
supreme court recently decided People v. Weeks, 2021 CO 75,
which concerned a different restitution issue. But neither party
mentioned Weeks in the briefs, so we therefore decline to address
whether it applies to this case. See Galvan v. People, 2020 CO 82,
¶ 45 (“[C]ourts are well-advised to ‘wait for cases to come’ to them
and to ‘decide only questions presented by the parties.’” (quoting
United States v. Sineneng-Smith, 590 U.S. ___, ___, 140 S. Ct. 1575,
1579 (2020))).
A. Right to be Present
¶ 68 Whether a trial court violated a defendant’s constitutional
right to be present at trial is reviewed de novo. People v. Janis,
2018 CO 89, ¶ 15. Because we conclude that the court did not err,
we need not wade into the dispute between defendant and the
prosecution about what the standard of reversal should be if there
were an error.
27 2. Discussion
¶ 69 Defendants have a constitutional right to be present at a
restitution hearing. People v. Hernandez, 2019 COA 111, ¶ 1. But
a defendant may waive that right when the record as a whole shows
the waiver was knowing, intelligent, and voluntary. Janis, ¶ 26.
¶ 70 In this case, there were two restitution hearings. Defendant
was not present at either one.
¶ 71 At the first hearing, defense counsel said that she did not
know where defendant was, but she still wished to proceed. When
the court asked whether defendant had notice of the hearing, she
replied, “We have had a hard time getting in contact with him since
last time. There were some issues in regard to his immigration
status, so I don’t know. I don’t know.” She then said that she had
made many efforts to notify him. The court allowed the hearing to
proceed.
¶ 72 Defendant did not appear at the second restitution hearing,
either. Upon the prosecutor’s request, defense counsel made the
following record:
COURT: [D]o you have any information regarding [defendant], whether he knew of the hearing and chose not to be present and
28 indicated to you he was not coming, or do you have something more you can tell me?
DEFENSE COUNSEL: All three, Your Honor. He does know about the hearing, we had a conversation, he chose not to be present.
COURT: Okay. So I think . . . under those circumstances and again, keeping in mind that he did not appear at the initial hearing, that he has chosen not to participate in this proceeding.
¶ 73 We conclude that, even if the transcript of the initial hearing
does not clearly show that defendant was aware of it and that he
had decided not to attend it, the record as a whole, see id.,
nonetheless demonstrates that defendant knowingly, intelligently,
and voluntarily waived his right be present at the restitution
hearings. The court asked defense counsel if she had made “many
efforts” to notify defendant about the first restitution hearing, and
she replied, “Yes.” During the trial, defendant told the court that he
did not want to attend the instructions conference. And, at the
second restitution hearing, which was a continuation of the first,
defense counsel reported that defendant did not want to attend it.
¶ 74 A waiver is “knowing” when the “person waiving the particular
right . . . ‘know[s]’ of the existence of the right and any other
29 information legally relevant to the making of an informed decision
either to exercise or relinquish that right.” Id. at ¶ 28 (quoting
People v. Mozee, 723 P.2d 117, 121 n.4 (1986)). The record as a
whole demonstrates that defendant generally understood he had a
right to be present during the trial proceedings, which included the
restitution hearings. Hernandez, ¶¶ 22-25.
¶ 75 A waiver is “intelligent” if the person waiving the right is “fully
aware of what he is doing and . . . make[s] a conscious, informed
choice to relinquish the known right.” Janis, ¶ 28 (quoting Mozee,
723 P.2d at 121 n.4). During the second restitution hearing,
defense counsel said that defendant knew about the hearing and
that he had chosen not to be present.
¶ 76 Defendant’s reliance on Hernandez, ¶ 27, for the proposition
that counsel cannot waive a defendant’s right to be present is
misplaced. In Hernandez, there was no indication that the
defendant knew of the restitution hearing. Id. Counsel’s statement
that he was “prepared to proceed” without the defendant’s presence
was insufficient to constitute a waiver. Id. at ¶¶ 4, 27. Unlike in
Hernandez, defense counsel in this case spoke to defendant, who
unambiguously said that he did not wish to participate.
30 ¶ 77 Finally, a waiver is “voluntary” when the person waiving the
right has “not [been] coerced by the state either physically or
psychologically.” Janis, ¶ 28 (quoting Mozee, 723 P.2d at 121 n.4).
Defendant does not point to any evidence, nor do we see anything
in the record to suggest, that the prosecution coerced defendant
into waiving his right to be present at the restitution hearings.
B. Amount of Restitution Awarded
¶ 78 Defendant last contends that the court should not have
imposed restitution for what he labels as “uncharged, unproven, or
dismissed thefts.” We disagree that the court did anything like this,
and we conclude that the record supports the court’s restitution
order.
¶ 79 Defendant correctly notes that a trial court is not permitted to
impose restitution for conduct for which he has been acquitted, see
Cowen v. People, 2018 CO 96, ¶ 2, for uncharged conduct, see
People v. Sosa, 2019 COA 182, ¶ 1, or for dismissed charges, see
People v. Roddy, 2021 CO 74, ¶ 5. While these propositions are
true as matters of law, they do not apply to this case. The
restitution order was based on the theft charges; the court did not
dismiss any of them, and the jury did not acquit defendant of any of
31 them. Each of the victims who received restitution testified at trial,
and the jury specifically found that defendant had committed theft
as far as each of them was concerned.
¶ 80 Defendant appears to contend that the court could not impose
restitution for any amount greater than what the victims testified to
at trial. But no such limitation exists because section 18-1.3-
603(2)(a), C.R.S. 2021, requires the court to “base its order for
restitution upon information presented to the court by the
prosecuting attorney, who shall compile such information through
victim impact statements or other means to determine the amount
of restitution and the identities of the victims.” To the extent that
defendant asserts that the court could not rely on the victim impact
statements in crafting its restitution order, he is mistaken. See
People in Interest of A.V., 2018 COA 138M, ¶ 33.
¶ 81 The judgment of conviction is affirmed, with the exception that
the conviction for identity theft is vacated. The restitution order is
affirmed. The case is remanded to the trial court to correct the
mittimus accordingly.
JUDGE DUNN and JUDGE JOHNSON concur.