COCODE

18-4-409. Motor vehicle theft - definitions.

Statute text

(1) As used in this section, unless the context otherwise requires:

(a) "Motor vehicle" means any self-propelled vehicle that is designed primarily for travel on public highways and that is generally and commonly used to transport persons and property over the public highways.

(b) "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.

(2) A person commits motor vehicle theft in the first degree if the person knowingly obtains, exercises control over, receives, or retains the motor vehicle of another person; and the person knows or reasonably should have known that the act was without authorization or was by threat or deception; and the person has two prior convictions or adjudications of charges separately brought and tried for an offense involving motor vehicle theft or unauthorized use of a motor vehicle in this state, a municipality, another state, the United States, or any territory subject to the jurisdiction of the United States.

(3) A person commits motor vehicle theft in the second degree if the person knowingly obtains, exercises control over, receives, or retains the motor vehicle of another person; and the person knows or should reasonably have known that the act was without authorization or was by threat or deception; and:

(a) The person retains possession or control of the motor vehicle for more than twenty-four hours;

(b) The person attempts to alter or disguise or alters or disguises the appearance of the motor vehicle;

(d) The person removes the motor vehicle from this state;

(e) The person unlawfully attaches or displays a license plate in or upon the motor vehicle other than those plates officially issued for the motor vehicle;

(f) The person or a participant causes one thousand dollars or more property damage, including property damage to the motor vehicle involved, in the course of obtaining control over, in the exercise of control of, in the course of receiving, or in the course of retaining the motor vehicle;

(g) The person causes bodily injury to another person other than to a participant while in the exercise of control of the motor vehicle;

(h) The person uses or attempts to use the motor vehicle in the commission of a crime other than:

(I) A traffic offense except eluding a police officer as described in section 42-4-1413; or

(II) A first or second degree criminal trespass of the motor vehicle; or

(i) At the time of the act, the motor vehicle displayed a license plate or placard indicating the motor vehicle belongs to a person with a disability.

(4) A person commits motor vehicle theft in the third degree if the person knowingly:

(a) Obtains or exercises control over the motor vehicle of another person; and the person knows or should reasonably have known that the act was without authorization or was by threat or deception; or

(b) Receives or retains the motor vehicle from another person who is not the owner of the motor vehicle; the person exercises control over the motor vehicle; and the person knows or should reasonably have known that the act was without authorization of the owner.

(4.5) Repealed.

(5) 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.

(6) (a) Motor vehicle theft in the first degree is a class 3 felony.

(b) Motor vehicle theft in the second degree is a class 4 felony.

(7) A person whose conduct is limited to the elements of this section is not subject to prosecution pursuant to section 18-4-401.

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. L. 2023: (1)(a), (2), (3), and (4) amended and (6) and (7) added, (SB 23-097), ch. 309, p. 1885, 1, effective July 1.

Annotations

Editor's note: (1) Subsection (4.5)(b) provided for the repeal of subsection (4.5), effective January 1, 2022. (See L. 2021, pp. 3099, 3104.)

(2) Section 7 of chapter 309 (SB 23-097), Session Laws of Colorado 2023, provides that the act changing this section applies to offenses committed on or after July 1, 2023.

Annotations

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.

Annotations

ANNOTATION

Annotations

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).