. People v. Trujillo

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 8, 2018

2018COA12

No. 14CA0144, People v. Trujillo — Criminal Law — Sentencing
— Probation — Indeterminate Sentence

A division of the court of appeals considers whether a

Colorado statute authorizes imposition of a sentence to an

indeterminate term of probation and whether the defendant was

entitled to the benefit of amendments to the statute criminalizing

theft. Relying on People v. Jenkins, 2013 COA 76, 305 P.3d 420,

the division concludes that section 18-1.3-202(1), C.R.S. 2017,

provides statutory authority for the imposition of an indeterminate

probation sentence. Following People v. Stellabotte, 2016 COA 106,

___ P.3d ___ (cert. granted Feb. 6, 2017), the majority further

concludes that the defendant is entitled to the benefit of

amendments to the theft statute. The partial dissent concludes
that the amendments to the theft statute do not apply retroactively,

and would therefore affirm the sentence in full.

Additionally, the division rejects the defendant’s contentions

that reversal is required due to the trial court’s rejection of

defense-tendered jury instructions, wrongfully admitted character

evidence, and prosecutorial misconduct. However, the division

remands for the trial court to make findings of fact concerning the

assessment of the costs of prosecution.

Accordingly, the division affirms the conviction, affirms the

sentence in part, vacates the sentence in part, and remands the

case with directions.
COLORADO COURT OF APPEALS 2018COA12

Court of Appeals No. 14CA0144
Mesa County District Court No. 11CR447
Honorable Valerie J. Robison, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Michael Floyd Trujillo,

Defendant-Appellant.

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

Division I
Opinion by JUDGE TAUBMAN
Richman, J., concurs
Furman, J., concurs in part and dissents in part

Announced February 8, 2018

Cynthia H. Coffman, Attorney General, Joseph G. Michaels, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, James S. Hardy, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Michael Floyd Trujillo, appeals his judgment of

conviction entered on a jury verdict finding him guilty of one count

of theft of more than $20,000 and one count of criminal mischief of

$20,000 or more. He also appeals his sentence. We perceive no

basis for reversing his convictions, but remand for the trial court to

make findings of fact regarding the assessment of the costs of

prosecution and to reclassify his theft conviction as a class 4 felony.

I. Background

¶2 In 2007, Trujillo began building a home, doing much of the

labor himself and initially using his own money to fund the project.

He later took out a construction loan from the victim, a bank, for

just under $255,000. After construction was completed on the

house, Trujillo stopped making his monthly loan payments. The

bank declined to restructure the loan and initiated foreclosure

proceedings in September 2010.

¶3 Before the foreclosure sale, Trujillo removed or destroyed

property in the house, including kitchen cabinets, countertops,

interior and exterior doors, doorjambs and casings, flooring,

baseboards, light fixtures, bathroom fixtures, the fireplace,

handrails, the boiler, the air conditioner, and the garage door.

1
 Because of this damage, the house was appraised at $150,000;

however, the appraiser estimated that if the house were in good

repair, it would have been worth $320,000.

¶4 Trujillo was charged with defrauding a secured creditor, theft

of $20,000 or more, but less than $100,000, and criminal mischief

of $20,000 or more, but less than $100,000. The jury found him

not guilty of defrauding a secured creditor and guilty of theft and

criminal mischief.

¶5 On appeal, Trujillo raises six contentions: (1) the trial court

erred in rejecting defense-tendered jury instructions; (2) the trial

court erred in allowing evidence of a prior foreclosure against

Trujillo; (3) prosecutorial misconduct during direct examination of a

witness and closing rebuttal argument warrants reversal; (4) the

trial court imposed an illegal sentence of indeterminate probation;

(5) the trial court erred in awarding the People costs of prosecution;

and (6) an amendment to the theft statute applies to his conviction.

We perceive no basis for reversal with respect to the first four

contentions, but agree with Trujillo’s final two contentions. We

therefore affirm the convictions and the sentence in part but vacate

the sentence in part and remand with directions.

2
 II. Jury Instructions

¶6 Trujillo asserts that the trial court erred in rejecting various

jury instructions regarding his theory of the case. We disagree.

A. Additional Facts

¶7 Throughout trial, the defense’s theory of the case was that

Trujillo lacked the requisite intent to commit the charged offenses

because he believed that the property he removed from the house

belonged to him. The defense tendered five jury instructions related

to this theory of the case.

¶8 Trujillo’s tendered jury instructions detailed property law

concepts. For example, the first tendered instruction stated that

“the person who has title to real property is still the owner of the

property even if there is a lien or secured interest on the property.”

Another tendered instruction defined “title,” “deed of trust,” and

“holder of a certificate of purchase[].” One instruction described the

lien theory detailed in section 38-35-117, C.R.S. 2017, and another

instructed that title to property “does not vest with the purchaser

until eight days after [a] foreclosure sale.”

¶9 The trial court declined to give these instructions as tendered.

However, portions of the defense-tendered instructions were

3
 included in a final definitional jury instruction. The final

instructions defined “deed of trust” and stated that the title to

property is transferred to the holder of the certificate of purchase

eight days after a foreclosure sale. Though it rejected other

portions of the defense-tendered instructions, the trial court

permitted defense counsel to argue the issues raised in the

instructions during closing argument.

¶ 10 The defense also tendered an instruction which the trial court

modified and gave as a theory of the case instruction. That

instruction stated, “Trujillo contends that the items removed from

the home . . . were his; purchased by him and installed by him. . . .

Trujillo conten[d]s that the items that he took and damaged were

his sole property.”

B. Standard of Review

¶ 11 We review jury instructions de novo to determine whether, as

a whole, they accurately informed the jury of the governing law.

Riley v. People, 266 P.3d 1089, 1092-93 (Colo. 2011). If the jury

instructions properly inform the jury of the law, the district court

has “broad discretion to determine the form and style of jury

instructions.” Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011).

4
 Accordingly, we review a trial court’s decision concerning a

proposed jury instruction for an abuse of discretion and will not

disturb the ruling unless it is manifestly arbitrary, unreasonable, or

unfair. Id.

¶ 12 When a defendant objects to the trial court’s ruling on a jury

instruction, we review for nonconstitutional harmless error and will

thus affirm if “there is not a reasonable probability that the error

contributed to the defendant’s conviction.” People v. Garcia, 28

P.3d 340, 344 (Colo. 2001) (quoting Salcedo v. People, 999 P.2d

833, 841 (Colo. 2000)).

C. Applicable Law

¶ 13 “[A]n instruction embodying a defendant’s theory of the case

must be given by the trial court if the record contains any evidence

to support the theory.” People v. Nunez, 841 P.2d 261, 264 (Colo.

1992). Moreover, a trial court has “an affirmative obligation” to

work with counsel to correct a tendered theory of the case

instruction “or to incorporate the substance of such in an

instruction drafted by the court.” Id. at 265; see also People v.

Tippett, 733 P.2d 1183, 1195 (Colo. 1987) (a trial court may refuse

to give an instruction already embodied in other instructions).

5
¶ 14 In considering whether a jury was adequately informed of a

defendant’s theory of the case, a reviewing court can take into

account whether defense counsel’s closing argument “fairly

represented” the theory to the jury. People v. Dore, 997 P.2d 1214,

1222 (Colo. App. 1999).

D. Analysis

¶ 15 Trujillo contends that the trial court abused its discretion in

rejecting the tendered instructions. We disagree.

¶ 16 Trujillo asserts that the tendered instructions were essential

because they communicated his theory of the case. However, the

trial court instructed the jury on his theory of the case in an

instruction that clearly stated that he believed the property he took

from the house was “his sole property.” To the extent that the trial

court had a duty to work with the defense in crafting a proper

theory of defense instruction, we conclude that the trial court

fulfilled that duty here by giving an alternative theory of the case

instruction that encompassed Trujillo’s tendered instructions. See

Nunez, 841 P.2d at 265 n.9. Moreover, the trial court specifically

stated that defense counsel would be allowed to incorporate the

6
 property law concepts into her closing argument, which defense

counsel did.

¶ 17 Trujillo asserts that the instructions he tendered were

accurate statements of property law. In contrast, the People argue

that the instructions misstated the law as it applies in criminal

prosecutions for theft and criminal mischief. Because we conclude

that the trial court did not abuse its discretion in drafting a theory

of defense instruction that encompassed the defense’s tendered

instructions, we do not address whether the rejected instructions

were accurate statements of the law.

¶ 18 The jury instructions, as a whole, “fairly and adequately

cover[ed] the issues presented.” People v. Pahl, 169 P.3d 169, 183

(Colo. App. 2006). Thus, we conclude that the trial court did not

abuse its discretion in rejecting in part the defense-tendered jury

instructions.

III. Evidence of Prior Foreclosure

¶ 19 Trujillo next asserts that the trial court erred in allowing the

People to introduce evidence that another property of his had been

foreclosed. We disagree.

7
 A. Additional Facts

¶ 20 Before trial, Trujillo filed a motion to exclude evidence of other

acts or res gestae evidence. Trujillo’s motion addressed several

categories of other acts evidence, including evidence related to any

“financial and/or legal problems” unrelated to the charged offenses.

During a motions hearing, the People stated that they did not

intend to introduce any other acts or res gestae evidence. In a

written ruling, the trial court granted Trujillo’s motion to exclude

evidence of his unrelated financial and legal problems “unless the

prosecution fe[lt] that the ‘door ha[d] been opened.’” The trial court

further ordered that, if the People felt Trujillo introduced evidence of

his other financial and legal problems, the People could request a

bench conference during trial.

¶ 21 On the first day of trial, defense counsel stated that she was

withdrawing her motion to exclude other acts evidence insofar as it

pertained to evidence of Trujillo’s bankruptcy proceedings. During

her opening statement, defense counsel then mentioned those

proceedings.

¶ 22 Later, the People called the bank’s former vice president as an

expert witness. During direct examination, the prosecutor asked

8
 the witness why the bank had declined to restructure Trujillo’s

loan. The prosecutor also asked about Trujillo’s demeanor during

interactions with the bank. Trujillo objected. After a bench

conference, the trial court allowed the witness to testify on both

matters.

¶ 23 Specifically, the witness testified that, during a conversation

about restructuring the loan, Trujillo “seemed like he was very

upset.” The witness recalled, “He got into [that] he had a piece of

property that [another bank] had foreclosed on and it sounded like

they had sold it for what [Trujillo] believed was a lot less, leaving

him a large deficiency balance.”

¶ 24 During closing argument, the People alluded to the witness’s

testimony and referred several times to Trujillo’s general animosity

against banks.

B. Standard of Review

¶ 25 We review a trial court’s decision to admit other acts or res

gestae evidence for an abuse of discretion. People v. Jimenez, 217

P.3d 841, 846 (Colo. App. 2008). A court abuses its discretion if its

decision to admit such evidence is manifestly arbitrary,

unreasonable, or unfair. Id.

9
¶ 26 We review a preserved claim of nonconstitutional error for

harmless error, reversing only if any error “substantially influenced

the verdict or affected the fairness of the trial proceedings.” Hagos

v. People, 2012 CO 63, ¶ 12, 288 P.3d 116, 119 (quoting Tevlin v.

People, 715 P.2d 338, 342 (Colo. 1986)).

C. Applicable Law

¶ 27 Evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without

the evidence.” CRE 401. Generally speaking, “[t]he Colorado Rules

of Evidence strongly favor the admission of relevant evidence.”

People v. Brown, 2014 COA 155M-2, ¶ 22, 360 P.3d 167, 172.

However, relevant evidence is nevertheless inadmissible when “its

probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury.” CRE

403. Similarly, evidence of “other crimes, wrongs, or acts” is

inadmissible to prove a person’s character “in order to show that he

acted in conformity therewith,” though it may be admissible for

other purposes, including proving intent. CRE 404(b).

10
¶ 28 “Res gestae is a theory of relevance which recognizes that

certain evidence is relevant because of its unique relationship to the

charged crime.” People v. Greenlee, 200 P.3d 363, 368 (Colo. 2009).

However, “there is no need to consider an alternative theory of

relevance, such as res gestae, where the evidence is admissible

under general rules of relevancy.” Id.

D. Analysis

¶ 29 Trujillo contends that the evidence of the prior foreclosure

action portrayed him as a “serial defaulter” and was impermissible

under CRE 404(b) and 403. The People assert that the evidence

was admissible as “directly relevant” to Trujillo’s intent and motive.

In the alternative, the People argue that the evidence was res gestae

evidence. We agree with the People’s first argument that the

evidence was admissible under CRE 401, and was not barred by

CRE 403.1

1 During the bench conference, the trial court allowed the bank’s
former vice president to testify after conducting an abbreviated CRE
404(b) analysis that did not specifically address the four-factor test
set forth in People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990). The
trial court did not admit the evidence under the res gestae doctrine.
However, we can affirm a trial court’s evidentiary ruling on any
ground supported by the record, “even if that ground was not

11
¶ 30 The evidence of the prior foreclosure was probative of the

interactions between Trujillo and the bank — it made it more

probable that Trujillo had the requisite intent to commit theft. It

was therefore relevant under CRE 401. Further, the risk of unfair

prejudice did not substantially outweigh the probative value of the

evidence, especially where the prior foreclosure was referenced only

in passing and the details of that foreclosure were not revealed.

Thus, the evidence was not barred by CRE 403.

¶ 31 Because we conclude that the evidence of the prior foreclosure

was relevant under CRE 401 and admissible under CRE 403, we

need not address whether the evidence was res gestae evidence or

“other acts” evidence under CRE 404(b). See Greenlee, 200 P.3d at

368-69. Accordingly, we conclude that the trial court did not err in

allowing the testimony concerning the prior foreclosure action.

IV. Prosecutorial Misconduct

¶ 32 Trujillo argues that the prosecutor improperly commented on

the district attorney’s screening process for bringing charges and

articulated or considered by the trial court.” People v. Phillips, 2012
COA 176, ¶ 63, 315 P.3d 136, 153.

12
 Trujillo’s right not to testify, and improperly denigrated defense

counsel. We perceive no basis for reversal.

A. Additional Facts

¶ 33 During redirect examination of one of the People’s expert

witnesses, an attorney who worked at the bank, the prosecutor

asked whether the bank played a role in charging Trujillo. The

prosecutor asked if the witness himself made the decision to file a

criminal case, to which the witness replied, “No.” The prosecutor

then asked, “[W]ho is it, according to your understanding, that

makes those decisions on whether a case gets filed criminally?” The

witness responded, “A complaint’s made to a police department or

sheriff’s department and they make that decision in conjunction

with I believe you.” The prosecutor clarified that “you” meant the

district attorney’s office. The defense did not object.

¶ 34 During rebuttal closing argument, the prosecutor said,

Did you hear all that? [Defense counsel]’s
talking about all of this stuff, about what
Trujillo’s intent was. And then did you hear
her towards the end what she did? She says,
and correct – this part was correct of what she
said. My job is to prove intent, right. That is
my burden. And she’s absolutely right. The
Defendant has every right to remain silent,

13
 and he exercised that right and that is
something that you cannot use against him.

But it is completely ridiculous for [defense
counsel] to get up here and say that [Trujillo]
didn’t testify to what his intent was and then
to go on and talk about what his intent
actually was. We don’t know what his intent
was because he never testified to that, which
he has every right to do. But did you hear
her? She’s up here saying his intent was this.

¶ 35 Trujillo objected on the basis that the prosecutor was

denigrating defense counsel. The trial court sustained the objection

as to the prosecutor’s tone, but overruled it as to content. The

prosecutor then argued, “[I]f you go out and run somebody over and

– and think that you had the right to do that, is that gonna be a

legitimate defense by saying, well, I thought I could do that. I didn’t

– nobody ever told me. Nobody put it in writing. When I bought my

car, in the instruction manual, nothing said that about that. That’s

preposterous.” Trujillo did not renew his objection.

B. Standard of Review

¶ 36 In reviewing alleged prosecutorial misconduct, an appellate

court engages in a two-step analysis. First, we determine whether

the prosecutor’s conduct was improper based on the totality of the

circumstances. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010).

14
 Second, we determine whether any misconduct warrants reversal

under the proper standard of review. Id.

¶ 37 When the alleged misconduct is objected to at trial and is of

constitutional magnitude, we review for constitutional harmless

error. Id. When the alleged misconduct is not of a constitutional

magnitude, and when the defense objected at trial, we subject the

prosecutorial misconduct to harmless error review. Id. at 1097.

Such prosecutorial misconduct will be considered harmless

“whenever there is no reasonable probability that it contributed to

the defendant’s conviction.” Crider v. People, 186 P.3d 39, 42 (Colo.

2008). When the defense did not object to the misconduct, we

review for plain error. Wend, 235 P.3d at 1097-98.

C. Applicable Law

¶ 38 A prosecutor cannot comment on a “screening process” for

charging cases “because it both hints that additional evidence

supporting guilt exists and reveals the personal opinion of the

prosecutor.” Domingo-Gomez v. People, 125 P.3d 1043, 1052 (Colo.

2005). It is also improper for a prosecutor to make remarks “for the

obvious purpose of denigrating defense counsel.” People v. Jones,

832 P.2d 1036, 1038 (Colo. App. 1991). It is similarly improper for

15
 a prosecutor to comment on a defendant’s decision not to testify.

Griffin v. California, 380 U.S. 609, 614 (1965); see also People v.

Martinez, 652 P.2d 174, 177 (Colo. App. 1981) (noting that a

prosecutor’s comment on a defendant’s silence constitutes

reversible error when “the prosecution argued that such silence

constituted an implied admission of guilt”).

¶ 39 Nevertheless, “[a] prosecutor is allowed considerable latitude

in responding to the argument made by opposing counsel.” People

v. Ramirez, 997 P.2d 1200, 1211 (Colo. App. 1999), aff’d, 43 P.3d

611 (Colo. 2001). Further, “[a]lthough it is improper for a

prosecutor to assert that opposing counsel knows that the

accused’s case is not meritorious,” the prosecutor may permissibly

argue “that the evidence in support of defendant’s innocence lacked

substance.” Id. at 1211; see also People v. Samson, 2012 COA 167,

¶ 31, 302 P.3d 311, 317 (stating that a prosecutor may permissibly

“comment on the absence of evidence to support a defendant’s

contentions”).

¶ 40 Appellate courts consider several factors in determining

whether prosecutorial misconduct was prejudicial, including the

nature of the error, the pervasiveness of the misconduct, the

16
 context, and the overall strength of the evidence supporting the

conviction. People v. McBride, 228 P.3d 216, 225 (Colo. App. 2009);

see also Crider, 186 P.3d at 43. For example, a reviewing court may

consider whether proper jury instructions mitigated the prejudicial

effect of prosecutorial misconduct. See People v. Castillo, 2014 COA

140M, ¶ 78, ___ P.3d ___, ___ (concluding prosecutor’s

misstatements were harmless in light of instructions from the trial

court and the defense’s closing argument) (cert. granted in part Nov.

23, 2015).

D. Analysis

¶ 41 Trujillo contends that three instances of prosecutorial

misconduct require reversal. We disagree.

¶ 42 Trujillo first contends that the prosecutor improperly referred

to a screening process while examining the expert witness. We

perceive no prosecutorial misconduct. The prosecutor here did not

imply that he had engaged in a screening process to “weed out the

weaker cases and, implicitly, that the State d[id] not consider this a

weak case.” Domingo-Gomez, 125 P.3d at 1052 (concluding the

prosecutor’s comment that “it takes a lot more than somebody

saying that person did it” to bring charges was improper). Rather,

17
 the prosecutor clarified that the bank did not bring criminal

charges and that the witness himself did not stand to gain as a

result of Trujillo’s conviction. The People assert, and we agree, that

the prosecutor’s question merely elicited testimony to establish that

the district attorney’s office was responsible for pursuing the

criminal charges against Trujillo.

¶ 43 Second, Trujillo asserts that the prosecutor impermissibly

commented on his decision not to testify. We disagree. Even if we

assume the comment on Trujillo’s decision not to testify was

improper, not every comment on a defendant’s choice not to testify

requires reversal. See Martinez, 652 P.2d at 177. “The determining

factor is whether the defendant’s silence was used by the

prosecution as a means of creating an inference of guilt,” id., and

we conclude that the prosecutor’s comments here did not raise

such an inference.

¶ 44 Finally, Trujillo contends that the prosecutor impermissibly

denigrated defense counsel and the defense’s theory of the case

during rebuttal closing argument. We agree that the prosecutor

improperly denigrated defense counsel and the defense’s theory of

18
 the case when he characterized her arguments as “completely

ridiculous” and “preposterous.”

¶ 45 However, we perceive no basis for reversal as a result of these

improper remarks. The comments were limited to the People’s

rebuttal closing argument. Moreover, significant evidence

corroborated the jury’s finding of guilt — specifically, the

undisputed evidence that Trujillo had removed an extensive amount

of property from the house. Viewing the record as a whole, we

cannot say that there was a “reasonable probability” that the

prosecutor’s remarks denigrating defense counsel contributed to

Trujillo’s convictions. See Crider, 186 P.3d at 42. Thus, we

determine the error was harmless.

¶ 46 In sum, though we agree that the prosecutor improperly

denigrated defense counsel, we perceive no basis for reversal.

V. Indeterminate Probation

¶ 47 Trujillo contends that the trial court did not have the statutory

authority to sentence him to indeterminate probation. We disagree.

A. Additional Facts

¶ 48 During the sentencing hearing, the People requested that

Trujillo be placed on a “long period of probation . . . somewhere in

19
 the neighborhood of eight to ten years” because they anticipated

that Trujillo would be ordered to pay substantial restitution.2

Trujillo requested unsupervised probation with a collections

investigator monitoring his restitution payments.

¶ 49 The trial court imposed an “indefinite probation sentence”

because of the substantial restitution that Trujillo was expected to

owe. In imposing an indeterminate probation sentence, the trial

court stated, “There is case law that talks about whether

[indeterminate probation] is something that can or should be

imposed and it’s certainly something that is allowed regardless of

the type of conviction that has been entered.”

¶ 50 The mittimus states that the sentence imposed was a term of

probation for seven years to life.

B. Standard of Review

¶ 51 The People contend that we should not consider this claim

because a sentence to probation is not ordinarily subject to

2 The trial court ultimately ordered Trujillo to pay $171,421.97 in
restitution. Trujillo separately appealed that order, and a division
of this court affirmed in part, reversed in part, and remanded for
reconsideration. People v. Trujillo, (Colo. App. No. 14CA2486, Oct.
5, 2017) (not published pursuant to C.A.R. 35(e)).

20
 appellate review. However, “where, as here, a defendant contends

that ‘a court has exceeded its statutory authority’ in imposing a

probationary sentence, appellate review is warranted.” People v.

Jenkins, 2013 COA 76, ¶ 10, 305 P.3d 420, 423 (quoting People v.

Rossman, 140 P.3d 172, 174 (Colo. App. 2006)).

¶ 52 “We review sentencing decisions that are within the statutory

range for an abuse of discretion.” People v. Torrez, 2013 COA 37,

¶ 71, 316 P.3d 25, 37. However, where the defendant contends that

a court exceeded its statutory sentencing authority, our inquiry

involves statutory interpretation. Jenkins, ¶ 12, 305 P.3d at 423.

We review such issues of statutory interpretation de novo. Id.

C. Applicable Law

¶ 53 Under section 18-1.3-202(1)(a), C.R.S. 2017, a trial court “may

grant the defendant probation for such period and upon such terms

and conditions as it deems best.” Further, “[t]he length of probation

shall be subject to the discretion of the court and may exceed the

maximum period of incarceration authorized for the classification of

the offense of which the defendant is convicted.” Id.

¶ 54 In Jenkins, a division of this court concluded that section 18-

1.3-202(1) “authorizes a trial court to impose an indeterminate term

21
 of probation.” Jenkins, ¶ 38, 305 P.3d at 426. The Jenkins division

bolstered its conclusion by looking to the plain language of the

statute — which the division noted “contemplate[s] both

determinate and indeterminate terms of probation” — and to the

provision’s legislative history. Id. at ¶¶ 40, 42, 46, 305 P.3d at 426-

28. Finally, the division noted that section 18-1.3-202(1) “generally

pertains to a broad class of cases, and it simply allows a trial court

to elect an indeterminate term if it sentences an offender who has

been convicted of a felony to probation.” Id. at ¶ 50, 305 P.3d at

428 (upholding probationary sentence of ten years to life); see also

People v. Martinez, 844 P.2d 1203, 1206 (Colo. App. 1992)

(concluding that a trial court has authority to impose a term of

probation that exceeds the sentence to imprisonment in the

statutory aggravated range for an offense).

D. Analysis

¶ 55 Trujillo asserts that the trial court exceeded its statutory

authority in imposing an indeterminate probationary sentence. We

disagree.

¶ 56 Like the Jenkins division, we conclude that section 18-1.3-

202(1) gives a trial court the authority to sentence a defendant

22
 convicted of a felony to an indefinite probationary period. Trujillo

urges that the statute limits a trial court’s authority to impose an

indeterminate probation sentence. Under Trujillo’s logic, a sentence

to probation for 100 years is permissible, but an indeterminate

probation sentence is outside the trial court’s statutory authority.

The statute offers no basis for reaching this conclusion.

¶ 57 Trujillo asserts that Jenkins is distinguishable because that

case concerned whether a defendant convicted of a sex offense not

falling under the supervision scheme of the Colorado Sex Offender

Lifetime Supervision Act of 1998 (SOLSA), see §§ 18-1.3-1001

to -1012, C.R.S. 2017, could nevertheless be sentenced to

indeterminate probation. Jenkins, ¶ 1, 305 P.3d at 422. Trujillo

contends that Jenkins was limited to the particular circumstances

of that case, and does not widely apply to all offenses and

defendants. However, the Jenkins division made clear that section

18-1.3-202(1) “establishes a general rule as far as the possibility of

an indeterminate probationary term for felonies” and “authorizes a

trial court to impose an indeterminate term of probation.” Id. at

¶¶ 38, 50, 305 P.3d at 426, 428. In fact, Jenkins explicitly rejected

the argument that a sentence of indeterminate probation could be

23
 imposed only in sex offense cases subject to SOLSA. Id. at ¶¶ 49-

50, 305 P.3d at 428. Thus, Trujillo’s argument that Jenkins is

limited to sex offenses is unavailing.

¶ 58 In sum, we conclude that the trial court did not exceed its

statutory authority in imposing the probation sentence here.

VI. Costs of Prosecution

¶ 59 Trujillo next asserts that the trial court erred in awarding the

full costs of prosecution requested by the People without making a

finding on whether any portion of the costs was attributable to the

charge on which he was acquitted. We agree.

A. Additional Facts

¶ 60 Before sentencing, the People moved for reimbursement of the

costs of prosecution pursuant to section 18-1.3-701, C.R.S. 2017.

The People requested $768.70. Trujillo opposed the motion on the

basis that the People bore responsibility for the costs incurred to

prove the defrauding a secured creditor charge, of which Trujillo

was acquitted.

¶ 61 During the sentencing hearing, the trial court awarded the

requested costs of prosecution, ordering Trujillo to pay $768.70.

24
 B. Standard of Review

¶ 62 The trial court, in its discretion, may assess reasonable and

necessary costs of prosecution against a convicted defendant. See

§ 18-1.3-701(2)(j.5). Thus, we review an assessment of costs of

prosecution for an abuse of discretion, reversing if the trial court’s

determination is manifestly arbitrary, unreasonable, or unfair,

People v. Palomo, 272 P.3d 1106, 1110 (Colo. App. 2011), or if the

trial court misapplied the law, People v. Jefferson, 2017 CO 35,

¶ 25, 393 P.3d 493, 499.

C. Applicable Law

¶ 63 Under section 16-18-101(1), C.R.S. 2017, the state bears the

costs of prosecution when a defendant is acquitted. Such costs

may include witness fees, mileage, lodging expenses, transportation

costs, and other reasonable and necessary costs that directly result

from prosecuting the defendant. § 18-1.3-701(2); see also People v.

Sinovcic, 2013 COA 38, ¶¶ 15-16, 304 P.3d 1176, 1179. If a

defendant is convicted of fewer than all of the charged counts, the

court may assess only those costs attributable to the counts for

which the defendant was convicted, if an allocation is practicable.

Palomo, 272 P.3d at 1112.

25
 D. Analysis

¶ 64 Trujillo asserts that the trial court erred in not making a

finding as to whether some portion of the requested costs of

prosecution were allocable to the acquitted charge. We agree.

¶ 65 As Trujillo concedes, it is possible that the costs cannot be

allocated between the charge on which he was acquitted and the

two charges on which he was convicted. However, the trial court

did not find that such an allocation was impracticable. Because the

trial court was required to consider whether some portion of the

requested costs was practicably attributable to the acquitted

charge, the trial court abused its discretion. See DeBella v. People,

233 P.3d 664, 667 (Colo. 2010) (failure to exercise discretion

constitutes an abuse of the court’s discretion).

¶ 66 Accordingly, we vacate the order awarding the People costs of

prosecution and remand for the trial court to make appropriate

findings of fact and “assess only those costs that are related to the

prosecution of the . . . counts of which [Trujillo] was convicted, to

the extent an allocation is practicable.” Palomo, 272 P.3d at 1113.

26
 VII. Amendment to Theft Statute

¶ 67 Trujillo contends that he should have benefited from an

amendment to the theft statute reclassifying theft between $20,000

and $100,000 as a class 4 felony. We agree.

A. Additional Facts

¶ 68 The General Assembly amended the theft statute on June 5,

2013. See Ch. 373, sec. 1, § 18-4-401, 2013 Colo. Sess. Laws

2196. Under the amended statute, theft between $20,000 and

$100,000 constitutes a class 4 felony. See § 18-4-401(2)(h), C.R.S.

2017. Prior to the amendment, theft over $20,000 constituted a

class 3 felony. § 18-4-401(2)(d), C.R.S. 2011.

¶ 69 Trujillo was charged with theft of $20,000 or more in April

2011. He was convicted in October 2013 and sentenced in

December 2013. His theft conviction was recorded on the mittimus

as a class 3 felony.

B. Standard of Review

¶ 70 The People assert that, because Trujillo did not make this

argument before the trial court, we should review only for plain

error. However, the division in People v. Stellabotte rejected this

argument. 2016 COA 106, ¶ 42, ___ P.3d ___, ___ (noting that plain

27
 error review was inappropriate because “a defendant may raise a

claim at any time that his or her sentence was not authorized by

law”) (cert. granted Feb. 6, 2017). Following Stellabotte, we review

the legality of the sentence de novo. Id. at ¶ 4, ___ P.3d at ___.

C. Applicable Law

¶ 71 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). If a statute explicitly

states that it applies only to offenses committed after the effective

date, it must be applied accordingly. See People v. McCoy, 764 P.2d

1171, 1174 (Colo. 1988).

¶ 72 As a general rule, “[a] statute is presumed to be prospective in

its operation.” § 2-4-202, C.R.S. 2017. However, if a statute is

silent as to whether it applies only prospectively, a defendant may

seek retroactive application if he or she benefits from a significant

change in the law. § 18-1-410(1)(f)(I), C.R.S. 2017; see also People

v. Thornton, 187 Colo. 202, 203, 529 P.2d 628, 628 (1974) (allowing

defendant to seek relief on direct appeal under statute).

¶ 73 In Stellabotte, a division of this court concluded that the

amendatory theft legislation “applies retroactively to cases pending

28
 in the trial court when the amendment was enacted.” Stellabotte,

¶ 45, ___ P.3d at ___; People v. Patton, 2016 COA 187, ¶ 32, ___ P.3d

___, ___; see also People v. Patton, (Colo. App. No. 14CA2359, Aug.

11, 2016) (not published pursuant to C.A.R. 35(e)) (cert. granted

Feb. 6, 2017).

D. Analysis

¶ 74 Trujillo contends that the amendment to the theft statute

requires that we vacate his sentence and remand for the trial court

to enter his theft conviction as a class 4 felony. We agree.

¶ 75 As the division noted in Stellabotte, the theft amendment does

not explicitly state that it is either retroactive or prospective.

Stellabotte, ¶ 45, ___ P.3d at ___. In the face of this legislative

silence, the division held that a defendant who committed theft

prior to the statutory amendment but was not convicted until after

its passage was entitled to the benefit retroactively. See id. at

¶¶ 39, 45, ___ P.3d at ___. The same is true here.

¶ 76 Trujillo was charged with theft before the statute was

amended, but was not convicted or sentenced until after the

General Assembly lowered the classification for theft between

29
 $20,000 and $100,000.3 Thus, like the defendant in Stellabotte,

Trujillo is entitled to the benefit of the amendment. As a result, we

vacate the sentence for the theft conviction and remand for the

conviction to be entered as a class 4 felony.

¶ 77 The partial dissent looks to several statutory provisions in

support of its conclusion that Trujillo is not entitled to the benefit of

the amendatory legislation. First, the partial dissent cites section

2-4-202, which states the general presumption that statutes apply

prospectively. However, as the division noted in Stellabotte, section

18-1-410 is a specific exception to the general rule expressed in

section 2-4-202. Stellabotte, ¶ 47 n.4, ___ P.3d at ___ n.4. We

agree with that analysis. Thus, the general presumption that

statutes apply prospectively does not apply here where Trujillo

seeks the benefit of a “significant change in the law, . . . allowing in

3 Trujillo asserts that the theft was between $20,000 and $100,000
based on testimony from trial. The People do not contest the value
of the stolen property in this case. We therefore assume that
Trujillo’s offense properly fell within the value range set forth in
section 18-4-401(2)(h), C.R.S. 2017.

30
 the interests of justice retroactive application of the changed legal

standard.”4 § 18-1-410(1)(f)(I).

¶ 78 The partial dissent also invokes section 2-4-303, C.R.S. 2017,

in support of its conclusion. Section 2-4-303 states:

The repeal, revision, amendment, or
consolidation of any statute or part of a statute
or section or part of a section of any statute
shall not have the effect to release, extinguish,
alter, modify, or change in whole or in part any
penalty, forfeiture, or liability, either civil or
criminal, which shall have been incurred
under such statute, unless the repealing,
revising, amending, or consolidating act so
expressly provides.

¶ 79 However, the supreme court has noted that the “general

saving” provision codified in this statute is not applicable to

criminal cases; instead, the court noted in dictum that it “has

4 The partial dissent also asserts that section 18-1-410(1)(f)(I),
C.R.S. 2017, does not provide any relief to Trujillo because that
provision requires that “there has been significant change in the
law, applied to the [defendant’s] conviction or sentence.” The
partial dissent asserts that the phrase “applied to” requires that the
legislation expressly state that it applies retroactively. We disagree
with that interpretation, and believe that our view finds authority in
supreme court case law. See People v. Thomas, 185 Colo. 395, 397,
525 P.2d 1136, 1137 (1974) (noting that “[t]he legislature intended
the changed legal standards to apply wherever constitutionally
permissible” but making no mention of whether the amendatory
legislation reclassifying attempted second degree burglary explicitly
stated that it applied retroactively).

31
 consistently adhered to the principle . . . that a defendant is entitled

to the benefits of amendatory legislation when relief is sought before

finality has attached to the judgment of conviction.” Noe v. Dolan,

197 Colo. 32, 36 n.3, 589 P.2d 483, 486 n.3 (1979).

¶ 80 In People v. Boyd, a division of the court of appeals concluded

that section 2-4-303 did not prevent the retroactive effect of an

amendatory constitutional provision. 2015 COA 109, ¶ 27, 395

P.3d 1128, 1134, aff’d, 2017 CO 2, 387 P.3d 755.5 The division

noted the supreme court’s language in Noe. Id. at ¶ 28, 395 P.3d at

1134. To the extent that other supreme court cases included

contrary statements, the Boyd division concluded that such

statements were dicta and that the supreme court had not

overruled or disapproved of either Noe or People v. Thomas, 185

Colo. 395, 398, 525 P.2d 1136, 1138 (1974) (holding that

“amendatory legislation mitigating the penalties for crimes should

be applied to any case which has not received final judgment”).

5 The supreme court in Boyd affirmed the Court of Appeals decision
on different grounds, concluding that the marijuana criminal
offense statute had been rendered inoperative by Amendment 64.
Neither the majority nor the dissent in Boyd cited section 2-4-303,
C.R.S. 2017.

32
 Boyd, ¶¶ 29-30, 395 P.3d at 1134-35. Finally, the Boyd division

concluded that section 18-1-410(1)(f)(I) controls over section 2-4-

303 because the former sets forth a specific exception to the latter,

which codifies a “general rule[] of construction regarding

prospective effect for amendatory legislation.” Id. at ¶¶ 31-32, 395

P.3d at 1135. We agree with the Boyd division’s analysis and

therefore do not perceive section 2-4-303 as a bar to the relief

Trujillo seeks.

¶ 81 In making its statutory arguments, the partial dissent relies

on the plain meaning of both section 2-4-303 and section 18-1-

410(1)(f)(I). However, as discussed, the supreme court has not

given either provision its plain meaning. Despite express reference

in section 2-4-303 to civil and criminal penalties, the supreme court

has indicated that the provision does not apply to criminal cases.

Noe, 197 Colo. at 36 n.3, 589 P.2d at 486 n.3. Similarly, while

section 18-1-410(1)(f)(I) by its express terms applies to defendants

seeking postconviction relief, the supreme court has held that the

statute also extends to defendants seeking relief on direct appeal.

Thornton, 187 Colo. at 203, 529 P.2d at 628. In light of the

33
 supreme court’s interpretation of these statutes, we cannot give

them the meanings that the partial dissent ascribes to them.

¶ 82 Finally, the partial dissent also relies on Riley v. People, in

which the supreme court noted that it has “emphasized that a

defendant is not entitled to the ameliorative effects of amendatory

legislation if the General Assembly has not clearly indicated its

intent to require such retroactive application.” 828 P.2d 254, 258

(Colo. 1992). However, we do not consider this statement to have

the controlling effect the partial dissent gives it. In Riley, the

defendant committed a crime in April 1988 and sought relief under

two sentencing provisions that expressly stated they applied to acts

“committed on or after” July 1, 1988. Id. at 255-56. The Riley

court held the defendant there was not entitled to relief because

applying the statutes retroactively would require the court to ignore

the “clear legislative determination” that the amended sentencing

provisions would apply only to acts after that date. Id. at 257.

¶ 83 Thus, Riley is readily distinguishable from the present case,

where the amendments to the theft statute do not expressly provide

an effective date, and the language relied on by the partial dissent is

dicta. Accord McCoy, 764 P.2d at 1174 (noting that, where

34
 legislation expressly stated it applied to acts committed on or after

its effective date, a “defendant does not receive any ameliorative

benefit” because “retroactive application of the amendatory

legislation is clearly not intended by its own terms”); People v.

Macias, 631 P.2d 584, 587 (Colo. 1981) (same).

¶ 84 Thus, we conclude, in accordance with Stellabotte, that Trujillo

should receive the benefit of the amendment to the theft statute

reclassifying theft between $20,000 and $100,000 as a class 4

felony. See Stellabotte, ¶ 40, ___ P.3d at ___.

VIII. Conclusion

¶ 85 Accordingly, the judgment of conviction is affirmed. The

sentence is affirmed in part and vacated in part, and the case is

remanded for further proceedings consistent with the views

expressed in this opinion.

JUDGE RICHMAN concurs.

JUDGE FURMAN concurs in part and dissents in part.

35
 JUDGE FURMAN, concurring in part and dissenting in part.

¶ 86 I respectfully dissent from the majority’s opinion only as to the

effect of the 2013 amendments to the theft statute. I conclude that

the 2013 amendments to the theft statute do not apply retroactively

to Trujillo’s case. I reach this conclusion for several reasons.

¶ 87 First, the General Assembly has made it clear that a “statute is

presumed to be prospective in its operation.” § 2-4-202, C.R.S.

2017. The 2013 amendments to the theft statute are silent as to

whether they apply prospectively or retroactively. Therefore, I

presume that the 2013 amendments are prospective in operation

and do not apply to Trujillo’s offense, which occurred before 2013.

See id.

¶ 88 Second, an amendment to a criminal statute does not change

the penalty for crimes already committed under the statute unless

the amendatory legislation expressly provides for such a change.

See § 2-4-303, C.R.S. 2017. Section 2-4-303 provides, in relevant

part:

The . . . amendment . . . of any statute or part
of a statute . . . shall not have the effect to
release, extinguish, alter, modify, or change in
whole or in part any penalty, forfeiture, or
liability, either civil or criminal, which shall

36
 have been incurred under such statute, unless
the . . . amending . . . act so expressly
provides, and such statute or part of a statute
. . . so . . . amended . . . shall be treated and
held as still remaining in force for the purpose
of sustaining any and all proper actions, suits,
proceedings, and prosecutions, criminal as
well as civil, for the enforcement of such
penalty, forfeiture, or liability, as well as for
the purpose of sustaining any judgment,
decree, or order which can or may be rendered,
entered, or made in such actions, suits,
proceedings, or prosecutions imposing,
inflicting, or declaring such penalty, forfeiture,
or liability.

Because the 2013 amendments to the theft statute do not expressly

provide that they apply retroactively, and Trujillo committed his

crime before 2013, he is liable for theft as it was defined when he

committed the offense. See id.

¶ 89 Third, in Riley v. People, 828 P.2d 254, 258 (Colo. 1992), our

supreme court “emphasized that a defendant is not entitled to the

ameliorative effects of amendatory legislation if the General

Assembly has not clearly indicated its intent to require such

retroactive application.” Id. I consider this statement by the

supreme court about its own jurisprudence on this issue to be

controlling.

37
¶ 90 Fourth, section 18-1-410(1)(f)(I), C.R.S. 2017, does not allow

Trujillo, on direct appeal, to seek retroactive application of the 2013

amendments to his case. Section 18-1-410(1)(f)(I) allows a

defendant to seek retroactive application of a “significant change in

the law, applied to” a defendant’s “conviction or sentence.” I believe

that the phrase “applied to” reflects the General Assembly’s intent

that, for amendatory legislation to apply retroactively to a

defendant’s conviction or sentence, the legislation must state that it

applies retroactively. Thus, because, as noted, the 2013

amendments do not state that they apply retroactively to Trujillo’s

conviction and sentence, he may not seek retroactive application

under section 18-1-410(1)(f)(I).

¶ 91 Finally, and with all due respect, I decline to follow People v.

Stellabotte, 2016 COA 106 (cert. granted Feb. 6, 2017). Indeed, I

agree with Judge Dailey’s dissent in Stellabotte. See id. at ¶¶ 62-70

(Dailey, J., concurring in part and dissenting in part).

38