State v. Lara

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

MONICA LARA, Appellant.

No. 1 CA-CR 15-0506

Appeal from the Superior Court in Yuma County

No. S1400CR201400967

The Honorable Maria Elena Cruz, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Joseph T. Maziarz

Counsel for Appellee

Yuma County Public Defender’s Office, Yuma

By Edward F. McGee

Counsel for Appellant

OPINION

Presiding Judge Margaret H. Downie delivered the opinion of the Court,

in which Judge Kent E. Cattani and Judge Donn Kessler joined.

STATE v. LARA

Opinion of the Court

D O W N I E, Judge:

¶1 Monica Lara appeals her shoplifting conviction. We hold

that in this felony prosecution brought pursuant to Arizona Revised

Statutes (“A.R.S.”) section 13-1805(I), Lara’s prior shoplifting convictions

are elements of the charged offense, not sentencing enhancements. As a

result, the superior court properly declined to bifurcate the trial, and we

affirm the ensuing conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶2 Lara was charged with one count of shoplifting with two or

more prior convictions — a class 4 felony in violation of A.R.S. § 13-

1805(A), (I). Specifically, the State alleged that Lara stole merchandise

from a Walmart store and that she had been convicted of shoplifting twice

previously within the past five years.

¶3 Lara moved to bifurcate the trial so that jurors would learn

of her prior convictions only if they first found her guilty of

“misdemeanor shoplifting.” The superior court denied the motion,

concluding Lara’s prior convictions were elements of the charged offense.

¶4 At trial, witnesses testified that Lara shoplifted the items in

question and that she admitted doing so when confronted with the stolen

merchandise. The State introduced certified copies of Lara’s 2009 and

2012 shoplifting convictions. The jury found her guilty as charged.

¶5 Lara timely appealed. We have jurisdiction pursuant to

A.R.S. §§ 12-120.21(A)(1) and 13-4031.

DISCUSSION

¶6 Lara contends her prior shoplifting convictions are

sentencing enhancements, not elements of the charged offense. As such,

she argues, the court should have ordered bifurcation because she was

entitled to have the jury first determine whether she was guilty of

shoplifting before the State introduced evidence of her prior convictions.

¶7 Whether a prior conviction is an element of an offense is an

issue of statutory interpretation that we review de novo. See Robbins v.

Darrow, 214 Ariz. 91, 93, ¶ 12 (App. 2006). An element is any constituent

part of an offense that the prosecution must prove to obtain a conviction.

See State v. Geschwind, 136 Ariz. 360, 362 (1983).

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STATE v. LARA

Opinion of the Court

¶8 “Much turns on the determination that a fact is an element of

an offense rather than a sentencing consideration, given that elements

must be charged in the indictment, submitted to a jury, and proven by the

Government beyond a reasonable doubt.” Jones v. United States, 526 U.S.

227, 232 (1999). The indictment at issue here alleged that Lara committed

the offense of shoplifting with two or more prior convictions — a class 4

felony in violation of A.R.S. § 13-1805(I). As relevant, A.R.S. § 13-1805(I)

provides:

A person who . . . commits shoplifting and who has

previously committed or been convicted within the past five

years of two or more offenses involving burglary,

shoplifting, robbery, organized retail theft or theft is guilty

of a class 4 felony.

¶9 This statutory language establishes the State’s obligation to

prove that Lara had “previously committed or been convicted within the

past five years of two or more” shoplifting offenses in order to convict her

of the charged offense. The prior convictions did not simply enhance the

range of Lara’s potential sentence; they elevated her offense to a class 4

felony. Cf. State v. Brown, 204 Ariz. 405, 408, 411, ¶¶ 11, 25 (App. 2003)

(holding the “facilitation portion of § 13-1805(I) creates a greater offense to

the lesser offense of shoplifting”). And consistent with Jones, 526 U.S. at

232, the superior court instructed jurors regarding this element of proof,

stating:

The defendant is charged with Shoplifting with Two or More

Prior Convictions.

The crime of Shoplifting with Two or More Prior

Convictions requires proof that the defendant:

1. was in an establishment in which merchandise was

displayed for sale; and

2. while in such establishment, knowingly obtained goods

of another with the intent to deprive the other person of

such goods by,

removing any of the goods from the immediate display

or from any other place within the establishment without

paying the purchase price.

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STATE v. LARA

Opinion of the Court

transferring the goods from one container to another

container.

concealment.

and

3. has previously committed or been convicted within the

five-year period prior to this offense with two or more

offenses involving shoplifting.

In its verdict, the jury found that the State proved Lara “had previously

committed or been convicted within the past five years of two or more

offenses of Shoplifting.”

¶10 Our conclusion is consistent with, though not dependent on,

other statutory schemes. In the context of aggravated domestic violence

and aggravated DUI, for example, we have held that the applicable

statutes set forth elements by requiring the State to prove that the

defendant previously committed similar offenses. See, e.g., State v.

Newnom, 208 Ariz. 507, 508, ¶ 5 (App. 2004) (“[T]he existence of two or

more prior convictions for domestic violence is an element of the offense

of aggravated domestic violence.”); State v. Superior Court (Walker), 176

Ariz. 614, 616 (App. 1993) (aggravated DUI based on prior violations

“establishes an element of the substantive offense . . . and the state cannot

convict defendant unless it proves that fact”).1

¶11 State v. Burns, 237 Ariz. 1 (2015), is distinguishable. In

Burns, the Arizona Supreme Court held that a weapons misconduct

charge should be severed from other counts because trial for that offense

included evidence of a prior conviction, which was unfairly prejudicial as

it related to other charges. But Burns does not address bifurcation of a

1 Lara’s reliance on Robbins v. Darrow, 214 Ariz. 91, 92, ¶ 1 (App.

2006), is unavailing. Although Robbins held that the existence of a prior

DUI conviction was not an element of misdemeanor DUI under A.R.S. §

28-1381, this Court relied on the “critical significance” of the applicable

statutory language, which differs materially from A.R.S. § 13-1805(I). The

statute at issue in Robbins required the State to allege “for the purpose of

classification and sentencing” prior DUI convictions within the past 36

months “unless there is an insufficient legal or factual basis to do so.” See

id. at 94, ¶ 16. Under the statutory scheme at issue in Robbins, a prior

conviction did not elevate the offense to a felony.

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STATE v. LARA

Opinion of the Court

charge for which a prior conviction is an element of the offense, and under

Geschwind, bifurcation is not required:

Our characterization of the prior conviction [for DWI] as an

element of the crime [of felony DWI] rather than a mere

sentencing consideration settles the question of appellant’s

entitlement to a bifurcated trial. The procedure used in the

trial court, as to proof of the prior DWI conviction, was

proper under 17 A.R.S. Rules of Criminal Procedure, rule 19,

because proof of the prior conviction was part of the state’s

burden of proving all the elements of the crime charged.

136 Ariz. at 362.

¶12 Geschwind’s statement that characterizing a prior conviction

as an element of the crime settles the bifurcation question is arguably

inconsistent with subsequent capital case jurisprudence, in which

aggravating circumstances in first-degree murder cases are treated as the

“functional equivalent of an element of a [first-degree murder] offense”

under Ring v. Arizona, 536 U.S. 584, 609 (2002), but are nonetheless

submitted to the jury after a finding of guilt for first-degree murder. See

A.R.S. § 13-752. Nevertheless, Geschwind remains the controlling law.

¶13 As Lara concedes, when prior convictions are elements of a

charged offense, trial courts may not preclude them as evidence. See State

ex rel. Romley v. Superior Court (Begody), 171 Ariz. 468, 471 (App. 1992)

(“[T]he trial court possessed no discretion to bifurcate defendants’ trials to

eliminate the ‘prejudice’ resulting from proof of an element of the offense

charged.”). Lara’s prior shoplifting convictions were “an integral part of

the crime with which [she] was charged.” Geschwind, 136 Ariz. at 363. As

such, the superior court properly refused to bifurcate the trial. See id. at

362 (“Our characterization of the prior conviction as an element of the

crime rather than a mere sentencing consideration settles the question of

appellant’s entitlement to a bifurcated trial.”).

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STATE v. LARA

Opinion of the Court

CONCLUSION

¶14 We affirm Lara’s conviction and sentence.

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