February 13, 2012
Colorado Supreme Court 2-13-12 criminal law decision - Lucero v. People
Lucero v. People 1˚ Burglary / Various Counts of Theft vs. Theft in a Series
Facts: A jury convicted Mr. Lucero of three counts of theft and 1˚ burglary. The thefts all took place during a six-month period, and Mr. Lucero never used or intended to use a deadly weapon during the burglary. Instead, the evidence only showed that Mr. Lucero stole some guns during a burglary.
Issue: Whether simply stealing guns amounts to using a deadly weapon during burglary?
Reasoning: Prior to 1981, such a factual scenario of simply stealing guns would get someone convicted of 1˚ burglary, a class 3 felony, rather than a less serious 2˚ burglary, a class 4 felony. However, in 1981 the legislature changed the statute removing any possible 'per se deadly weapon' reading, and thus excluded scenarios of simply stealing guns during a burglary. Here, in Mr. Lucero’s case, the Colorado Supreme Court held the statutory change specifically excluded scenarios where someone simply steals guns but does not use or intends to use the guns. (see identical holding in Montez v. People decided 2-13-12)
Issue: Whether three thefts in a six-month period must be merged into one count of theft under the theft-series statute?
Reasoning: In Roberts v. People, 203 P.3d 513 (Colo. 2009), the Supreme Court held that a series of thefts within a six-month period must be brought under a single theft count (statute since overruled the 2009 Roberts decision). Here, the jury found Mr. Lucero committed numerous thefts from different homes and automobiles between August 22, 2000, and September 18, 2000. Thus, the Supreme Court held that Mr. Lucero could only be convicted of one count of theft under the statute in place at the time the crimes occurred. The Court wrote, “On the first certiorari issue, we hold that Lucero cannot be punished for all three alleged thefts. As in Roberts, the statute in effect at the time of Lucero’s acts provided that multiple thefts within a six month period must be merged into a single theft conviction, in this case theft in the aggregate value of $15,000.00 or more.”