People v. Cunefare

Justice BENDER,

concurring in Part II.A., but dissenting to Part II.B., and dissenting in part to the judgment.

The majority affirms Cunefare's conviction for felony forgery under section 18-5-102(1)(c), C.R.S.2004, for falsely writing and *311sending, under his wife's signature, a letter to the district attorney claiming that his wife's previously alleged assault charge against him never occurred. In my view, the plain language of section 18-5-102(1)(c) is ambiguous as to whether the forgery statute encompasses such a letter within its ambit. Applying traditional rules of statutory construction to determine the General Assembly's intent, I conclude that liability for felony forgery is strictly limited to those instruments that pertain to financial or property matters or have legal efficacy in and of themselves. Because Cunefare's letter to the prosecutor is clearly not one of these instruments, I respectfully dissent and would affirm the judgment of the court of appeals on this issue.

Discussion

Pursuant to section 18-5-102(1)(c), a person may be convicted of felony forgery if, with intent to defraud, such person falsifies a written instrument which is, purports to be, or is calculated to become or to represent a "deed, will, codicil, contract, assignment, commercial instrument, promissory note, check, or other instrument which does or may evidence, create, transfer, terminate, or otherwise affect a legal right, interest, obligation, or status." The statute thus prescribes eight specific types of instruments that qualify for forgery liability. Cunefare's letter to the prosecutor does not fit within any of these types of instruments.

The ambiguity in the statute lies in the language, "or other instrument which does or may ... otherwise affect a legal right, interest, obligation, or status." The term "affect" is broad in and of itself. Its definition is made even less precise because the General Assembly failed to define the terms "legal right," "legal interest," "legal obligation,". or "legal status." Whether the written instrument must directly affect, or indirectly affect, a legal right, interest, obligation, or status remains ambiguous. It is equally unclear as to whose legal right, interest, obligation, or status must be affected. For example, by influencing the district attorney to not proge-cute, a forged letter, such as Cunefare's, could be viewed as having indirectly affected both the outcome of the case and the People's legal interest in seeking justice. Even if the forged letter had no impact on the People's decision to prosecute because this decision rests solely within the discretion of the district attorney, it could still be construed as having either directly, or indirectly, affected the prosecutor's legal obligation to consider the contents of the letter in reaching that decision. On the other hand, the letter might have had no effect-direct or indirect-on the decision to 'prosecute. Determining whether to include Cunefare's letter in the types of instruments prescribed .in section 18-5-102(1)(c) thus becomes a question of determining how far the undefined terms in that statute should be stretched and to whom they should be applied.

Because a reading of the plain language of section 18-5-102(1)(c) does not resolve the ambiguity present in the statute, it is necessary to consult rules of statutory construction. The first relevant tool of statutory construction is the principle of ejusdem gen-eris, which embodies the rule that "when a general word or phrase follows a list of specific persons or things, the general word or phrase will be interpreted to include only, persons or things of the same type as those listed." Davidson v. Sandstrom, 83 P.3d 648, 656 (Colo.2004) (quoting Black's Law Dictionary 535 (7th ed.1999)).

Each of the specific types of instruments listed in section 18-5-102(1)(c) is either an instrument that affects a financial or property matter, i.e., a deed, will, codicil, commercial instrument, promissory note, or check, or is an instrument that has some legal effect standing by itself, 4:6, a contract or assignment.1 Here, the letter clearly does not *312transfer any interest or right pertaining to financial or property matters. Standing alone, this letter has no legal efficacy in and of itself. The letter, consisting of two simple statements that the alleged events never occurred, cannot be construed as having any binding legal effect on anyone. The letter was not part of a required transaction of any kind and does not transfer, or even purport to affect, any legal right or interest. At the most, the letter is a written plea seeking the prosecutor's sympathies for a man it claims is wrongfully accused.

Even if Cunefare's letter had in fact been written by the defendant's wife, it would represent the wife's recantation of her earlier allegations against the defendant. While it is not uncommon for victims of domestic abuse to recant their initial accusations before trial, it is likewise not uncommon for the People to continue with prosecution under such cireum-stances because ultimately the district attorney, and no one else, makes the decision whether to prosecute. The prosecutor, of course, retains significant discretion in determining who to prosecute, what erimes to charge, and whether to request the dismissal of pending charges. People v. Dist. Ct., 632 P.2d 1022, 1024 (Colo.1981) (holding that the broad nature of the prosecutor's discretion generally bars the judiciary from intervening to limit or otherwise control it); see also People v. Sepulveda, 65 P.3d 1002, 1008 (Colo.2003). Hence, whether a letter such as the one here had any effect, much less a binding effect, on this decision lies beyond our review.

Interpreting section 18-5-102(1)(c) to exclude, rather than include, Cunefare's letter is also consistent with the principle that a statute should not be interpreted in a manner that would render another statutory provision superfluous. People v. Terry, 791 P.2d 374, 376 (Colo.1990). Section 18-5-104, C.R.S.2004, defines the misdemeanor offense of second degree forgery as the falsifying of a written instrument "of a kind not described in section 18-5-102 ...." By creating this "catchall" lesser offense, the General Assembly intended for second degree forgery to cover all written instruments that were not otherwise specified in the provisions describing the more serious felonious crime of forgery. By forcing the fit of Cunefare's letter into the class of instruments specified in the felony forgery statute,2 the majority broadens the class of instruments that the General Assembly prescribed in that statute and thereby renders section 18-5-104, the misdemeanor catchall forgery statute, a nullity. The majority's construction of section 18-5-102(1)(c) runs afoul of the principle that the statutory scheme should be read as a whole so as not to render a statute meaningless.

Further support for these two principles of statutory construction, which dictate that Cunefare's letter be exeluded from the prohibition of our felony forgery statute, comes from the rule of lenity, a statutory construction principle which this Court recently embraced in People v. Thoro Products Co., Inc., 70 P.3d 1188, 1198 (Colo.2003). In Thoro Products, we recognized that it is "axiomatic that criminal law must be sufficiently clear such that a citizen will know what the law forbids" and that any ambiguity in a criminal statute's meaning must therefore be interpreted in the defendant's favor. Id. The majority notes, and I agree, that section 18-5-102(1)(c) is "not clear on its face." Maj. op. at 308. That the majority resorts to an examination of the statute's legislative history to decipher its meaning shows the ambiguity present in section 18-5-102(1)(c) and therefore the need to construe this statute in favor of the defendant.3 If the Court must *313consult legislative history to determine the sweep of a criminal statute's proscription, then surely -the ordinary citizen could not possibly be expected to know what the statute forbids. We should, then, under the rule of lenity, construe any ambiguity in section 18-5-102(1)(c) in favor of the accused and find that Cunefare's letter does not constitute felony forgery.

The majority construes an early version of our forgery statute, ch. 111, see. 21, § 40-6-1, 1963 Colo. Sess. Laws 828-29, to support its holding that the falsifying of a document affecting a legal proceeding constitutes forgery. See maj. op. at 308 (citing the statutory language, "Every person who shall falsely make, alter, forge ... any acquittance, release, or discharge ... action, suit, demand ..."). I disagree with such a construction, however, because the majority leaves out key language from the early statute in reaching its interpretation. In extracting the quoted language from the statute, the majority does not state that the language both directly before and after the quoted language refers only to instruments affecting financial or property matters or documents having legal efficacy in and of themselves:

Every person who shall falsely make, alter, forge, or counterfeit any record or other authentic matter of a public nature, or any charter, letters patent, deed, lease, indenture, writing obligatory, will, testament, codicil, annuity, bond, covenant, United States treasury note or, United States bond, bank bill or note, post note, check or draft, bill of exchange, contract, promissory note, due bill, for the payment of money or property, receipt for money or property, power of attorney, any warrant for the payment of money at the state treasury, county order or any accountable receipt, or any order or warrant or request for the payment of money or the delivery of goods or chattels of any kind, or for the delivery of any instrument of writing or acquittance, release, or receipt for money or goods, or any acquittance, release, or discharge for any debt, account, action, suit, demand, or other thing real or personal, or any transfer or assurance of money, stock, goods, chattels, or other property whatever.

See ch. 111, see. 21, § 40-6-1, 1968 Colo. Sess. Laws 828-29 (emphasis added).

In my view, this earlier statute supports the interpretation that felony forgery is, and always has been, intended to apply to only those forged instruments affecting financial or property matters or having legal effect standing alone.

I also disagree with the majority's statement that the 1971 amendments to the forgery statute included phrases, ie., "other instrument," which evidenced an intent "to allow more flexibility in applying the statute to forgery crimes." Maj. op. at 808. The 1971 statute, which contains language identical to that at issue here in section 18-5-102(1)(c), refers to "other instrument," but, as discussed above, "other instrument" must refer to the class of specific objects, i.e., those affecting financial or property matters or having legal effect in and of themselves, described in the same statutory provision. The 1971 amendments also provided for a misdemeanor catchall forgery offense. Ch. 121, see. 1, § 40-5-104, 1971 Colo. Sess. Laws 388, 435. As discussed, interpreting "other instrument" to apply to any kind of instrument renders meaningless the General Assembly's inclusion of the misdemeanor offense.

In describing the 1971 amendments as re-codifying the earlier forgery statute, the majority states that the legislature "preserv[ed] several examples that had explicitly appeared in section 40-6-1 ...." Maj. op. at 308. There is no indication in the earlier statute that the General Assembly was giving "examples" of the types of falsified instruments for which one may be held liable for forgery. Rather, in that statute, as in section 18-5-102(1)(c), the General Assembly prescribed specific instruments, and it is from this specificity that I glean the General Assembly's intent to restrict felony forgery to falsified instruments affecting financial or property matters or having legal effect in and of themselves.

*314Because the language at issue here in seetion 18-5-102(1)(c) has thus been used, in identical form, since 1971 to define the types of instruments for which a defendant may be held criminally liable for felony forgery, see ch. 121, see. 1, § 40-5-108, 1971 Colo. Sess. Laws 388, 484-35, it is instructive that our prior case law concerning this statute has involved only those instruments affecting financial or property matters or documents demonstrating legal efficacy in and of themselves.4

Lastly, I note that while the majority relies heavily on cases from other jurisdictions in support of its broad reading of our forgery statute, in my view these cases are inapposite to our inquiry because, except for People v. Pena, 169 Misc.2d 366, 642 N.Y.S.2d 807 (N.Y.Sup.Ct.1996), they involve statutes with language significantly distinct and different from section 18-5-102(1)(c).5 See also maj. op. at 308 (stating that "no other jurisdictions have interpreted the precise language of 'legal right, interest, obligation, or status' "). While the language of the New York forgery statute is similar to section 18-5-102(1)(c), Pena is inapposite because the instrument at issue in that case, ie, a cellular telephone altered to use a false billing number, necessarily possesses legal efficacy in and of itself. See Pena, 642 N.Y.S.2d at 810 ("the numbers allow the carrier properly to bill the user"). The Pena court's conclusion that such an instrument fits within the proscription of the forgery statute does not, in my view, support the inference or proposition that a letter such as Cunefare's, ie, an instrument with no legal effect standing alone, should also be so included.

Parenthetically, I note that limiting section 18-5-102(1)(c) to only those instruments affecting financial or property matters or having legal efficacy in and of themselves is consistent with the interpretation of this statute by the court of appeals. See People v. Cunefare, 85 P.3d 594, 597 (Colo.App.2003). While the majority characterizes the court of appeals' holding as stating that a forgery conviction may stand only where the contemplated interest or status relates to a "financial, testamentary or property interest," maj. op. at 308, it omits the court of appeals' complete holding that the instrument must relate to a "financial, testamentary, real property, personal property, or privilege interest." Cunefare, 85 P.3d at 597 (emphasis added). A "privilege interest" is something having legal effect in and of itself. See Black's Law Dictionary 12834 (8th ed.2004) (defining "privilege" as a "special legal right ... [that] grants someone the legal freedom to do or not to do a given act").

When faced with the ambiguity presented in section 18-5-102(1)(c), our precedent and traditional rules of statutory construction require us to interpret the statute in a manner *315that does not create criminal Hability for felony forgery for all forged instruments. The General Assembly listed specific types of instruments for which a defendant may be held liable for felony forgery, and Cunefare's letter is not one of them.

I am authorized to state that Justice MARTINEZ joins in this concurrence and dissent.

. I note that it is consistent with our prior Colorado case law on forged instruments to interpret section 18-5-102(1)(c) to apply to only those instruments that either affect financial or property matters or demonstrate legal efficacy in and of themselves. See, eg., Duncan v. People, 178 Colo. 314, 497 P.2d 1029 (1972) (forged bank check); Gentry v. People, 166 Colo. 60, 441 P.2d 675 (1968) (false date on bank check); People v. McDonald, 53 Colo. 265, 125 P. 114 (1912) (forged signature on bank check); People v. Miralda, 981 P.2d 676 (Colo.App.1999) (forged resident alien card); People v. Avila, 770 P.2d 1330 (Colo.App.1988) (falsified driving records). In *312fact, the majority acknowledges that "[ujntil this case, Colorado courts have dealt primarily with forgery convictions involving negotiable instruments." Maj. op. at 308 (emphasis added).

. As noted, the General Assembly prescribed a specific class of instruments in section 18-5-102(1)(c), te., those affecting property or financial matters or having legal effect in and of themselves. f

. For example, while the majority interprets the statutory term "legal status" to apply to Cune-fare's position as a defendant in a pending criminal case, maj. op. at 310, it is not evident that the General Assembly intended such a meaning. Perhaps, construing any ambiguities in favor of the defendant and consistent with the class of instruments specified in the statute, i.e., those affecting financial or property matters or having a legal effect in and of themselves, the General Assembly intended "legal status" to refer to one's *313position as a beneficiary, trustee, assignee, offer-ee, etc.

. While the majority indicates that the case of People v. Medina, 926 P.2d 149 (Colo.App.1996), signified a broadening of the type of instruments that Colorado courts would consider for forgery purposes, maj. op. at 308, the issue in that case concerned a proportionality review of the defendant's sentence. Further, although the defendant there had been convicted of forgery for falsifying a prescription for a controlled substance, that case, in my view, did not broaden the class of instruments subject to felony forgery liability. Rather, because a prescription for a controlled substance would entitle the holder to receipt of a good, this case reinforces the interpretation that felony forgery applies to only those instruments affecting financial or property matters or having legal efficacy in and of themselves.

. See Evans v. State, 794 So.2d 415 (Ala.Crim.App.2000) (interpreting statutory language similar to our section 18-5-102(1)(d), C.R.S.2004, i.e., involving public records or instruments, as opposed to the language at issue here in section 18-5-102(1)(c)); People v. Hagan, 145 Ill.2d 287, 164 Ill.Dec. 578, 583 N.E.2d 494 (1991); People v. Muzzarelli, 331 Ill.App.3d 118, 264 Ill.Dec. 536, 770 N.E.2d 1232, 1234 (2002) (under Illinois forgery statute, "To establish the offense of forgery, the State must prove that a defendant (1) had an intent to defraud; (2) knowingly made or altered a document; (3) did so in such a manner that the document purported to have been made by another; and (4) that the document was apparently capable of defrauding another""); People v. Merchant, 5 Ill.App.3d 636, 283 NE.2d 724 (1972). See also People v. Gaul-Alexander, 32 Cal.App.4th 735, 38 Cal.Rptr.2d 176, 178-79 (1995) (under California forgery statute, a person is guilty of forgery if: "(1) 'with intent to defraud, [he or she] signs the name of another person ... knowing that he or she has no authority so to do'; (2) '{alsely makes, alters, forges, or counterfeits," any of a long list of writings; (3) forges the handwriting of another; (4) attempts to pass any of the above; or (5) falsifies a judgment or a record which is by law evidence").