BY THE COURT
prosecution for identity theft for using another person's
Social Security number to obtain employment was expressly
preempted by the federal Immigration Reform and Control Act
of the judgment of the Court of Appeals in 52 Kan.App.2d 86,
362 P.3d 606 (2015).
from Johnson District Court; Kevin P. Moriarty, judge.
Kittel, of Kansas Appellate Defender Office, was on the brief
J. Obermeier, senior deputy district attorney, Stephen M.
Howe, district attorney, and Derek Schmidt, attorney general,
were on the brief for appellee.
companion case to State v. Garcia, 306 Kan.___, ___
P.3d ___ (No. 112, 502, this day decided), and State v.
Morales, 306 Kan.___, ___ P.3d ___ (No. 111, 904, this
day decided), involves defendant Guadalupe Ochoa-Lara's
convictions on two counts of identity theft.
two convictions arose out of a single period of restaurant
employment. One conviction covered the portion of the period
before a 2011 criminal statute recodification went into
effect; the other covered the portion of the period after the
recodification went into effect. Each count was based on
Ochoa-Lara's use of Tiffany McFarland's Social
Security number to obtain the employment at the beginning of
the first period.
district court judge convicted Ochoa-Lara based on stipulated
facts. Ochoa-Lara's appeal to the Court of Appeals raised
two issues: (1) whether the federal Immigration Reform and
Control Act of 1986 (IRCA) preempted the prosecution; and (2)
whether the two counts were multiplicitous. A Court of
Appeals panel affirmed Ochoa-Lara's convictions. See
State v. Ochoa-Lara, 52 Kan.App.2d 86, 362 P.3d 606
granted Ochoa-Lara's petition for review of both issues.
Because we decide that IRCA preempts this prosecution and
thus both of Ochoa-Lara's convictions must be reversed,
we do not reach the multiplicity claim.
and Procedural Background
State initially charged Ochoa-Lara with two counts of
identity theft and one count of making a false information.
The two identity theft counts recited that Ochoa-Lara had
"obtain[ed], possess[ed] or use[d]" a Social
Security number and a resident alien card number belonging to
another person during the entire time Ochoa-Lara was employed
at Longbranch Steakhouse. On the first count, the Social
Security number belonged to Tiffany McFarland; on the second,
the resident alien card number belonged to Pierrie Lecuyer.
The making of a false information count recited that
Ochoa-Lara "ma[de], generate[d], or distribute[d]"
a false I-9 form, which is used to determine employment
eligibility under IRCA.
trial, Ochoa-Lara filed two motions to dismiss. The first
motion argued that the first identity theft count should be
dismissed because it alleged that Ochoa-Lara violated K.S.A.
2011 Supp. 21-6107 between May 10, 2011, and December 6,
2011, and the recodified statute was not effective until July
1, 2011. The second motion challenged subject matter
jurisdiction on ...