     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
