CO Code § 18-4-409 (2021)
2021 Colorado Code|Title 18 - Criminal Code|Article 4 - Offenses Against Property|Part 4 - Theft|§ 18-4-409. Aggravated Motor Vehicle Theft - Repeal

  As used in this section, unless the context otherwise requires:   “Motor vehicle” means all vehicles of whatever description propelled by any power other than muscular, except vehicles running on rails.    “Vehicle identification number” means the serial number placed upon the motor vehicle by the manufacturer thereof or assigned to the motor vehicle by the department of revenue.       A person commits aggravated motor vehicle theft in the first degree if he or she knowingly obtains or exercises control over the motor vehicle of another without authorization or by threat or deception and:   Retains possession or control of the motor vehicle for more than twenty-four hours; or    Attempts to alter or disguise or alters or disguises the appearance of the motor vehicle; or    Attempts to alter or remove or alters or removes the vehicle identification number; or    Uses the motor vehicle in the commission of a crime other than a traffic offense; or    Causes five hundred dollars or more property damage, including but not limited to property damage to the motor vehicle involved, in the course of obtaining control over or in the exercise of control of the motor vehicle; or    Causes bodily injury to another person while he or she is in the exercise of control of the motor vehicle; or    Removes the motor vehicle from this state for a period of time in excess of twelve hours; or    Unlawfully attaches or otherwise displays in or upon the motor vehicle license plates other than those officially issued for the motor vehicle.       Aggravated motor vehicle theft in the first degree is a:   Class 5 felony if the value of the motor vehicle or motor vehicles involved is less than twenty thousand dollars;  (a.5) Class 4 felony if the value of the motor vehicle or motor vehicles involved is twenty thousand dollars or more but less than one hundred thousand dollars;     Class 3 felony if the value of the motor vehicle or motor vehicles involved is more than one hundred thousand dollars or if the defendant has twice previously been convicted or adjudicated of charges separately brought and tried either in this state or elsewhere of an offense involving theft of a motor vehicle under the laws of this state, any other state, the United States, or any territory subject to the jurisdiction of the United States.       A person commits aggravated motor vehicle theft in the second degree if he or she knowingly obtains or exercises control over the motor vehicle of another without authorization or by threat or deception and if none of the aggravating factors in subsection (2) of this section are present. Aggravated motor vehicle theft in the second degree is a:   Class 5 felony if the value of the motor vehicle or motor vehicles involved is twenty thousand dollars or more;    [ ] Class 6 felony if the value of the motor vehicle or motor vehicles involved is one thousand dollars or more but less than twenty thousand dollars;    [ ] Class 1 misdemeanor if the value of the motor vehicle or motor vehicles involved is less than one thousand dollars. (4.5)   Whenever a person is convicted of, pleads guilty or nolo contendere to, receives a deferred judgment or sentence for, or is adjudicated a juvenile delinquent for, a violation of this section, the offender's driver's license shall be revoked as provided in section 42-2-125, C.R.S.    This subsection (4.5) is repealed, effective January 1, 2022.          Consistent with section 18-1-202, if the theft of a motor vehicle occurs in one jurisdiction and the motor vehicle is recovered in another jurisdiction, the offender may be tried in the jurisdiction where the theft occurred, in any jurisdiction through which the motor vehicle was operated or transported, or in the jurisdiction in which the motor vehicle was recovered.    Editor's note: This version of subsection (4)(b) is effective until March 1, 2022.  (b) [ ] Class 6 felony if the value of the motor vehicle or motor vehicles involved is two thousand dollars or more but less than twenty thousand dollars;  Editor's note: This version of subsection (4)(b) is effective March 1, 2022. Editor's note: This version of subsection (4)(c) is effective until March 1, 2022.  (c) [ ] Class 1 misdemeanor if the value of the motor vehicle or motor vehicles involved is less than two thousand dollars.  Editor's note: This version of subsection (4)(c) is effective March 1, 2022.   History. Source: L. 71: R&RE, p. 430, § 1. C.R.S. 1963: § 40-4-409 . L. 77: Entire section R&RE, p. 974, § 4, effective July 1. L. 79: (2)(e) amended and (2)(f) added, p. 736, § 1, effective April 25; (2)(e) and (4) amended and (2)(g) and (2)(h) added, p. 727, §§ 4, 5, effective July 1. L. 80: IP(2), IP(3), and (4) amended, p. 532, § 1, effective January 29. L. 87: (2)(a) and (2)(g) amended, p. 668, § 2, effective July 1. L. 92: (3) amended, p. 434, § 3, effective April 10. L. 95: (3)(b) and (4) amended, p. 1253, § 12, effective July 1. L. 99: Entire section amended, p. 1164, § 1, effective July 1, 2000. L. 2001: (2)(e) amended, p. 59, § 1, effective August 8. L. 2003: (4.5) added, p. 1845, § 1, effective July 1. L. 2007: (3) and (4) amended, p. 1692, § 5, effective July 1. L. 2014: (3) amended,(HB 14-1266), ch. 155, p. 539, § 6, effective August 6. L. 2021: (4)(b) and (4)(c) amended,(SB 21-271), ch. 462, p. 3177, § 207, effective March 1, 2022; (4.5)(b) added by revision,(HB 21-1314), ch. 460, pp. 3099, 3104, §§ 9, 22.    Editor's note:    Section 22(2) of chapter 460 (HB 21-1314), Session Laws of Colorado 2021, provides that the act changing this section applies to offenses committed and applications submitted on or after January 1, 2022.    Section 803(2) of chapter 462 (SB 21-271), Session Laws of Colorado 2021, provides that the act changing this section applies to offenses committed on or after March 1, 2022.     Cross references:   For the legislative declaration contained in the 2007 act amending subsections (3) and (4), see section 1 of chapter 384, Session Laws of Colorado 2007.   ANNOTATION   Annotator's note. Since § 18-4-409 is similar to former § 40-5-2 , C.R.S. 1963, relevant cases construing that provision have been included in the annotations to this section.   Elements of the crimes of theft and motor vehicle theft are clearly different, and therefore it does not violate equal protection to prosecute under the latter rather than the former. People v. Westrum, 624 P.2d 1302 (Colo. 1981).   This section is not intended to control all aspects of motor vehicle theft. The legislature is within its powers to punish the same conduct with more than one offense by creating multiple statutory sections related to the conduct. Thus, motor vehicle theft is not exclusive of another crime, such as criminal trespass, § 18-4-502 . People v. Wentling, 2015 COA 172 , 409 P.3d 411.   Proof of prior convictions is not an element of the class 3 felony described in this section. Subsection (3) addresses only the class of felony; this statutory structure does not create separate crimes. Therefore, the trial court was not required to submit this “element” to the jury for its determination beyond a reasonable doubt. People v. Hopkins, 2013 COA 74 , 328 P.3d 253.   Where conduct violates two provisions, prosecutor determines under which provision crime prosecuted. Where the alleged conduct of a defendant violates both the general theft statute and the more specific motor vehicle theft statute, it is the function of the prosecuting attorney and not the trial court to determine under which statute the alleged crime shall be prosecuted. People v. Westrum, 624 P.2d 1302 (Colo. 1981).   Crime defined by offender's conduct and mental state. This section defined the crime of aggravated motor vehicle theft in terms of the offender's conduct and his culpable mental state and does not condition criminal responsibility on the action of a third party after the prohibited conduct already has occurred. People v. Andrews, 632 P.2d 1012 (Colo. 1981).   Inference based on possession of recently stolen automobile. If there is independent evidence which proves beyond a reasonable doubt that a theft occurred, defendant's possession of a recently stolen automobile permits the jury to infer that defendant was the person who exercised control from the time of the theft to the time of apprehension. People v. Clay, 644 P.2d 81 (Colo. App. 1982).   Jury could reasonably conclude that defendant exercised dominion and control over a car where the evidence supported a reasonable inference that the defendant (1) had possession of the car keys, (2) was in the car long enough to gather items of value, (3) poured accelerant on the car and set it on fire, and (4) walked away as it burned, still carrying the keys. People v. Harper, 205 P.3d 452 (Colo. App. 2008).   Elements of culpable mental state. Subsection (2)(a) contemplates a culpable mental state involving an awareness by the offender that he is obtaining or exercising control over the vehicle of another and that his control is indeed without authorization. People v. Andrews, 632 P.2d 1012 (Colo. 1981); People v. Marquez, 107 P.3d 993 (Colo. App. 2004).   Liability for first degree aggravated motor vehicle theft is to be imposed whenever a person who has knowingly stolen a motor vehicle uses that motor vehicle in the commission of a crime other than a traffic offense, regardless of the mens rea associated with the particular crime committed. People v. Marquez, 107 P.3d 993 (Colo. App. 2004).   The culpable mental state “knowingly” in subsection (2) applies to a defendant's exercise of control over a vehicle and also to his or her awareness of lack of authority. People v. Stellabotte, 2016 COA 106 , 421 P.3d 1164, aff'd on other grounds, 2018 CO 66, 421 P.3d 174.   The trial court did not err in instructing the jury because the court listed the culpable state “knowingly” as a separate element. Therefore, “knowingly” applied to the succeeding elements of first degree aggravated motor vehicle theft, including “without authorization”, indicating that the defendant had to know that his possession of the automobile was not authorized. People v. Stellabotte, 2016 COA 106 , 421 P.3d 1164, aff'd on other grounds, 2018 CO 66, 421 P.3d 174.   Not every alteration is a subsection (2)(b) aggravating factor. Not every act that alters the appearance of a vehicle is an aggravating factor falling within the purview of subsection (2)(b). People v. Hale, 654 P.2d 849 (Colo. 1982).   Such as changing license plates. Prior to adoption of subsection (2)(h), placing unrelated license plates on a car did not constitute altering or disguising the appearance of the vehicle within the meaning of subsection (2)(b). People v. Hale, 654 P.2d 849 (Colo. 1982).   Trial court erred in its answer to a jury question regarding whether defendant had to know license plates on stolen truck did not belong to the truck. Trial court's response telling the jury that defendant did not have to know that the plates did not belong to the truck was incorrect, and its subsequent reminder that all elements of the relevant jury instruction had to be proved beyond a reasonable doubt was inadequate to rectify the error. People v. Manier, 197 P.3d 254 (Colo. App. 2008).   Such error was not harmless. While there was ample evidence connecting defendant with the stolen truck, there was little if any evidence that could be inferred that defendant had any involvement in attaching or displaying fictitious license plates on it. People v. Manier, 197 P.3d 254 (Colo. App. 2008).   The evidence was sufficient, however, to establish defendant's liability for second degree aggravated motor vehicle theft. People v. Manier, 197 P.3d 254 (Colo. App. 2008).   Under previous version of statute, aggravator that yields a felony only if “committed by a person who has been twice previously convicted” requires that both prior convictions have entered before the commission of the instant offense. People v. Houcks, 75 P.3d 1155 (Colo. App. 2003).   Defendant convicted of aggravated motor vehicle theft even though vehicle was taken after crime of first-degree assault had been committed because the vehicle was used to flee the scene of the crime of first degree assault. People v. McCoy, 944 P.2d 577 (Colo. App. 1996).   Defendant was not entitled to instructions on intoxication defense and defining “voluntary act” as provided in § 18-1-501 (9) where he was charged with aggravated motor vehicle theft under this section. People v. Huskey, 624 P.2d 899 (Colo. App. 1980).   Court did not abuse its discretion in supplementing jury instructions by providing a standard dictionary definition of the term “authorization”. The court provided a proper definition that fit the facts of the case and related issues the jury needed to resolve. People v. Stellabotte, 2016 COA 106 , 421 P.3d 1164, aff'd on other grounds, 2018 CO 66, 421 P.3d 174.   Joyriding is less severe offense than larceny of motor vehicle. People v. Rivera, 185 Colo. 337 , 524 P.2d 1082 (1974).   The crime of joyriding is not a lesser included offense of the crime of theft, nor is attempted joyriding a lesser included offense of attempted theft. Sandoval v. People, 176 Colo. 414 , 490 P.2d 1298 (1971).   Crime of joyriding is not a lesser included offense of the crime of theft. People v. Gilmer, 182 Colo. 96 , 511 P.2d 494 (1973).   Vehicular homicide is not a lesser included offense of aggravated motor vehicle theft under the strict elements test even if its proof might satisfy an element of aggravated motor vehicle theft under the facts of a particular case. People v. Marquez, 107 P.3d 993 (Colo. App. 2004).   Convictions for aggravated motor vehicle theft and attempted aggravated robbery are factually and legally inconsistent. People v. James, 981 P.2d 637 (Colo. App. 1998).   No private cause of action under this section. In re Duran, 483 F.3d 653 (10th Cir. 2007).   Applied in People v. R.V., 43 Colo. App. 349, 606 P.2d 1311 (1979); Chavez v. District Court, 648 P.2d 658 (Colo. 1982); People v. Simien, 656 P.2d 698 (Colo. 1983); People v. Martinez, 656 P.2d 1317 (Colo. 1983); People v. Eastepp, 884 P.2d 305 (Colo. 1994).