                               IN THE
              ARIZONA COURT OF APPEALS
                             DIVISION TWO


                       THE STATE OF ARIZONA,
                              Appellee,

                                  v.

                     FRANCISCO XAVIER VELOZ,
                            Appellant.

                       No. 2 CA-CR 2014-0121
                       Filed January 29, 2015

        Appeal from the Superior Court in Graham County
                        No. CR201300318
               The Honorable Peter J. Cahill, Judge

           AFFIRMED IN PART; VACATED IN PART


                              COUNSEL

Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee

Hariette P. Levitt, Tucson
Counsel for Appellant


                              OPINION

Presiding Judge Miller authored the opinion of the Court, in which
Chief Judge Eckerstrom and Judge Espinosa concurred.
                          STATE v. VELOZ
                         Opinion of the Court



M I L L E R, Presiding Judge:

¶1             Francisco Veloz was convicted after a jury trial of
organized retail theft and theft, and sentenced to concurrent prison
terms totaling 4.5 years, with restitution to the victim. On appeal, he
contends the organized retail theft statute is unconstitutionally
vague, the evidence was insufficient to convict him of organized
retail theft, the trial court erred when it failed sua sponte to instruct
the jury on shoplifting as a lesser-included offense of organized
retail theft, and his theft conviction should be vacated because it
violates the prohibition against double jeopardy. For the following
reasons, we vacate the theft conviction and the criminal restitution
order (CRO) and otherwise affirm Veloz’s remaining conviction and
sentence as corrected.

                 Factual and Procedural Background

¶2            We view the evidence in the light most favorable to
sustaining the jury’s verdict. See State v. Haight-Gyuro, 218 Ariz. 356,
¶ 2, 186 P.3d 33, 34 (App. 2008). In June 2013, an asset protection
manager at a store witnessed Veloz conceal several DVDs in a shirt
he removed from a shelf, place the shirt containing the DVDs in a
shopping cart, and walk past the cash registers out of the store
without stopping to pay. The manager called police, who reviewed
the store’s surveillance video. An officer recognized Veloz, which
led to an interview in his home. Veloz admitted that he took the
DVDs, and an officer observed that the DVD cases had been opened.
The value of the stolen DVDs and shirt totaled $157.62. Veloz was
charged, convicted, and sentenced as described above, 1 and this
timely appeal followed.




      1Velozalso was sentenced to a consecutive term of 2.5 years in
prison due to a probation violation in another case that is not at
issue here.

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                         Opinion of the Court


                           Double Jeopardy

¶3           We begin with Veloz’s final argument because it
requires us to interpret the organized retail theft statute, which
informs our analysis of Veloz’s other arguments. Veloz contends his
conviction for theft must be vacated because theft is a lesser-
included offense of organized retail theft. The state contends this
argument is forfeited for failure to argue fundamental, prejudicial
error. We do not ignore fundamental error when we find it, State v.
Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007), and a
double jeopardy violation is fundamental, prejudicial error, State v.
Ortega, 220 Ariz. 320, ¶ 7, 206 P.3d 769, 772 (App. 2008).

¶4            The double jeopardy clauses of the federal and state
constitutions protect criminal defendants from multiple convictions
for the same offense. Id. ¶ 9; see also U.S. Const. amend. V; Ariz.
Const. art. 2, § 10. This prohibition also protects against a conviction
for a lesser-included offense when the defendant is convicted of the
greater offense. State v. Chabolla-Hinojosa, 192 Ariz. 360, ¶ 10, 965
P.2d 94, 96-97 (App. 1998). A defendant’s double jeopardy rights are
violated even when the two sentences are concurrent. State v. Brown,
217 Ariz. 617, ¶ 13, 177 P.3d 878, 882 (App. 2008); see also Ball v.
United States, 470 U.S. 856, 864 (1985). We review de novo whether a
double jeopardy violation has occurred. State v. Garcia, 235 Ariz.
627, ¶ 4, 334 P.3d 1286, 1288 (App. 2014).

¶5           “A lesser-included offense is one ‘composed solely of
some but not all of the elements of the greater crime so that it is
impossible to have committed the crime charged without having
committed the lesser one.’” Chabolla-Hinojosa, 192 Ariz. 360, ¶ 11,
965 P.2d at 97, quoting State v. Woods, 168 Ariz. 543, 544, 815 P.2d 912,
913 (App. 1991). Here, organized retail theft is the greater offense.
Compare A.R.S. § 13-1802(G) (theft of property valued at less than
$1,000 is class one misdemeanor) with A.R.S. § 13-1819(B)
(organized retail theft is class four felony). The subsection of the
organized retail theft statute under which Veloz was charged
provides:



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                          STATE v. VELOZ
                         Opinion of the Court


             A person commits organized retail theft if
             the person acting alone or in conjunction
             with another person does any of the
             following:

             ....

             2.      Uses    an   artifice,  instrument,
             container, device or other article to
             facilitate the removal of merchandise from
             a retail establishment without paying the
             purchase price.

§ 13-1819(A). The applicable portion of the theft statute defines theft
as when a person, without lawful authority, knowingly “controls
property of another with the intent to deprive the other person of
such property.” § 13-1802(A)(1).

¶6           The state argues § 13-1819, unlike theft, does not require
an intent to deprive. If accurate, theft cannot be a lesser-included
offense of organized retail theft.2 The state is correct inasmuch as
the plain language of § 13-1819(A)(2) does not mention a culpable
mental state. But the state makes no attempt to clarify what appears
on its face—and was instructed to the jury—as a strict liability
offense that carries the penalty of a class four felony. See
§ 13-1819(B).

¶7           A statute lacking a culpable mental state generally
indicates the legislature intended to create a strict liability offense,
“unless the proscribed conduct necessarily involves a culpable

      2The  state specifically argues that shoplifting is not a lesser-
included offense of organized retail theft. Although the argument is
inapplicable because Veloz was not convicted of shoplifting, it
would not change the analysis here. Shoplifting, like theft, requires
intent to deprive. See A.R.S. § 13-1805(A); see also State v. Teran, 130
Ariz. 277, 278, 635 P.2d 870, 871 (App. 1981) (“[A] finding of guilty
on shoplifting would mean that [the defendant] was also guilty of
theft.”).

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                           STATE v. VELOZ
                          Opinion of the Court


mental state.” A.R.S. § 13-202(B). Strict liability is considered the
exception, not the rule; therefore, we will find strict liability only
where there is a clear legislative intent. State v. Yazzie, 232 Ariz. 615,
¶ 6, 307 P.3d 1042, 1043 (App. 2013). Moreover, strict liability
offenses generally are limited to “regulatory offenses that result in
no direct or immediate injury to person or property, carry relatively
small penalties, and do not seriously damage the reputation of those
convicted of them.” State v. Slayton, 214 Ariz. 511, ¶ 20, 154 P.3d
1057, 1062 (App. 2007). Because the plain language of subsection B
does not include a mental state, we must determine whether the
prohibited conduct necessarily involves a scienter requirement by
examining the words of the statute and legislative intent. See State v.
Mincey, 115 Ariz. 472, 478, 566 P.2d 273, 279 (1977) (scienter inferred
in felony murder statute), rev’d on other grounds, 437 U.S. 385 (1978).

¶8            Section 13-1819 was added in 2009 3 and is found in
chapter 18 of the criminal code, which generally addresses theft
offenses, including larceny, embezzlement, shoplifting, and more
specific offenses such as issuing a bad check. See A.R.S. §§ 13-1801
through 13-1820. With the exception of the portion of the organized
retail theft statute applicable here, every offense in chapter 18 has a
required mental state, such as knowledge, intent to deprive, or
intent to defraud. See A.R.S. §§ 13-1803 (knowledge required for
unlawful use of means of transportation); 13-1805 (intent to deprive
required for shoplifting); 13-1817 (intent to cheat or defraud
required for unlawful possession, use or alteration of retail sales
receipt). The organized retail theft statute is not markedly different
except for the omission of an express scienter requirement.

¶9           The legislative history of the statute also includes no
reference to strict liability. Although the introduced version of the
bill lacked a mental state for two out of the original four ways of
committing the offense, intent—specifically intent to resell—was
discussed both times the bill was amended.4 See Senate Fact Sheet,

      32009   Ariz. Sess. Laws, ch. 127, § 3.
      4Thefirst amendment to the bill required “attempt to resell”
for every means of committing the offense, and the second
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                          STATE v. VELOZ
                         Opinion of the Court


S.B. 1059, 49th Leg., 1st Reg. Sess. (Ariz. June 15, 2009); see Senate
Engrossed Version, S.B. 1059, 49th Leg., 1st Reg. Sess. (Ariz. 2009);
see also House Fact Sheet, S.B. 1059, 49th Leg., 1st Reg. Sess. (Ariz.
June 29, 2009); H. Comm. on Judiciary Amendment, S.B. 1059, 49th
Leg., 1st Reg. Sess. (Ariz. 2009). The legislative history lacks any
indication the offense was intended to be one of strict liability.
Absent a clear legislative intent that organized retail theft using an
artifice or device be a strict liability offense, we conclude a culpable
mental state is required.5 See Yazzie, 232 Ariz. 615, ¶ 6, 307 P.3d at
1043.

¶10           Next, we must determine what culpable mental state
necessarily is involved in organized retail theft. When a common
law offense is codified, even without any language of intent, courts
generally have continued to require the applicable intent. See
Morissette v. United States, 342 U.S. 246, 252 (1952). Organized retail

amendment resulted in “attempt to resell” appearing only in
subsection 1, as the statute now provides. See Senate Engrossed
Version, S.B. 1059, 49th Leg., 1st Reg. Sess. (Ariz. 2009); see also
House Fact Sheet, S.B. 1059, 49th Leg., 1st Reg. Sess. (Ariz. June 29,
2009). The stated purpose of the second amendment was to “narrow
the crime of organized retail theft on those with the intent to resell
the stolen merchandise.” See Hearing on S.B. 1059 Before the H. Comm.
on Judiciary, 49th Leg., 1st Reg. Sess. (June 25, 2009) (statement of
Brooke Olguin, assistant research analyst).
      5We    also note that without a required mental state, the statute
would criminalize the act of accidentally leaving a store without
paying for an item, as may happen, for example, when a child places
an item within a parent’s purchases without the parent’s knowledge.
Such a reading of the statute would lead to an absurd result. See
State v. Estrada, 201 Ariz. 247, ¶¶ 16-17, 34 P.3d 356, 360 (2001) (court
must interpret statutory language in way that will avoid absurd
result—one that is “‘so irrational, unnatural, or inconvenient that it
cannot be supposed to have been within the intention of persons
with ordinary intelligence and discretion’”), quoting Perini Land Dev.
Co. v. Pima Cnty., 170 Ariz. 380, 383, 825 P.2d 1, 4 (1992).

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                           STATE v. VELOZ
                          Opinion of the Court


theft requires a simple, completed theft of goods, with additional
requirements of intent to resell or use of an artifice or device; at its
core, it is common law larceny. See 50 Am. Jur. 2d Larceny § 1 (2014).
At common law, larceny requires intent to deprive. Id. We therefore
conclude the offense of organized retail theft necessarily involves
intent to deprive.

¶11           Our conclusion is supported by previous Arizona cases
in which courts found intent to deprive where not expressly stated
in other theft-related statutes. See Garcia, 235 Ariz. 627, ¶¶ 7, 11, 334
P.3d at 1289-90 (finding intent to deprive in armed robbery statute);
see also State v. Wood, 7 Ariz. App. 22, 24, 435 P.2d 857, 859 (1967)
(finding intent to permanently deprive in former grand theft
statute). As we noted in addressing a former grand theft statute that
required only a felonious stealing, taking, carrying, or driving away
of the motor vehicle of another, “it is unquestionably the law of this
jurisdiction that in order for there to be a theft of goods, there must
be an intent to permanently deprive the owner of the goods.” Wood,
7 Ariz. App. at 24, 435 P.2d at 859; see also State v. Celaya, 135 Ariz.
248, 252, 660 P.2d 849, 853 (1983) (culpable mental state in theft
necessary element of robbery despite language of statute). Section
13-1819(A)(2) requires intent to deprive; therefore, on these facts,6
theft is a lesser-included offense of organized retail theft, and
Veloz’s convictions for both violate double jeopardy.

                               Vagueness

¶12          Veloz also argues the organized retail theft statute is
unconstitutionally vague and overbroad without a definition for
“organized.” Because Veloz did not raise his claim below, we
review it only for fundamental error. State v. Henderson, 210 Ariz.
561, ¶ 19, 115 P.3d 601, 607 (2005); State v. Lefevre, 193 Ariz. 385, ¶ 15,

      6 Theft is not always “lesser” than organized retail theft,
because theft of more than $3,000 in property or services can be a
class four felony, and $25,000 or more is a class three felony;
organized retail theft is a class four felony regardless of the value of
goods. A.R.S. §§ 13-1802(G), 13-1819(B).

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                           STATE v. VELOZ
                          Opinion of the Court


972 P.2d 1021, 1025 (App. 1998) (constitutional claims generally
forfeited if not asserted below).

¶13         Veloz’s argument is based on a misreading of the
statute. He contends that the term “organized” is undefined,
providing no notice to a defendant of what conduct is prohibited.
But “organized” is only in the title, and is not an element of the
offense. § 13-1819. The entire statute defines what constitutes
“organized retail theft.” Id.

¶14          Veloz also argues the statute fails for vagueness because
there is no difference between organized retail theft and shoplifting
beyond the shoplifting statute’s explicit requirement of intent to
deprive. The basic offense of shoplifting, however, does not require
use of an artifice or device as an element of the offense. A.R.S. § 13-
1805(A).7 A person who leaves a store carrying an item in plain
view could not be charged with organized retail theft under § 13-
1819(A)(2). Although someone using an artifice arguably could be
charged with shoplifting or organized retail theft, exercise of
prosecutorial discretion does not render the latter void for
vagueness. See Hirschfeld v. Superior Court, 184 Ariz. 208, 215, 908
P.2d 22, 29 (App. 1995). The organized retail theft statute is not
facially vague.

                      Sufficiency of the Evidence

¶15          Veloz next claims there was insufficient evidence to
sustain a guilty verdict on the organized retail theft charge. We
review de novo the sufficiency of the evidence, State v. West, 226
Ariz. 559, ¶ 15, 250 P.3d 1188, 1191 (2011); and, in doing so, “‘we
view the evidence in the light most favorable to supporting the
verdict and will reverse only if there is a complete absence of
substantial evidence to support the conviction.’” State v. Ramsey, 211
Ariz. 529, ¶ 40, 124 P.3d 756, 769 (App. 2005), quoting State v.


       7We  note that shoplifting under A.R.S. § 13-1805(I) requires
use of an artifice or device, but, like organized retail theft, it is a class
four felony.

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                         STATE v. VELOZ
                        Opinion of the Court


Sullivan, 187 Ariz. 599, 603, 931 P.2d 1109, 1113 (App. 1996).
“Substantial evidence” is proof that reasonable people could accept
as sufficient to support a conclusion of guilt beyond a reasonable
doubt. West, 226 Ariz. 559, ¶ 16, 250 P.3d at 1191.

¶16          Veloz contends the theft was not organized because
none of his actions suggest a coordinated plan or a system,
suggesting “organization” is an element of the crime. As noted
above, however, the statute defines the act of “organized retail theft”
as when a person “[u]ses an artifice, instrument, container, device or
other article to facilitate the removal of merchandise from a retail
establishment without paying the purchase price.”               A.R.S.
§ 13-1819(A)(2). No additional organization need be shown.

¶17          Reviewing the record, it is apparent that Veloz put
several DVDs into a shopping cart and wrapped the DVDs in a shirt
before walking out of the store without paying. The shirt facilitated
the removal of merchandise, as required by § 13-1819(A)(2). The
DVDs were found in his house, opened, indicating intent to
permanently deprive the owner of them. There was sufficient
evidence to support Veloz’s conviction.

                          Jury Instructions

¶18          Veloz contends the trial court fundamentally erred
when it failed sua sponte to instruct the jury on shoplifting as a
lesser-included offense of organized retail theft, arguing the jury
“could have accepted [his] theory that the offense was nothing more
than a simple theft (or shoplifting), and that there was nothing
organized about it.” Because he did not raise this argument below,
we review for fundamental, prejudicial error. Henderson, 210 Ariz.
561, ¶ 19, 115 P.3d at 607.

¶19         Contrary to Veloz’s assertions, and as noted above,
“organization” is not an element of organized retail theft. § 13-1819.
Veloz does not state which portion of the shoplifting statute should




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                          STATE v. VELOZ
                         Opinion of the Court


have constituted the lesser-included offense, 8 but none of the
subsections that would have resulted in a lesser charge require use
of an artifice or device, in contrast with the organized retail theft
statute.9 §§ 13-1805(A), 13-1819. Although Veloz briefly argued in
closing that the tee shirt and shopping cart were not instruments,
containers or devices, he acknowledged that “article” could
reference an article of clothing, such as the shirt here. Further, he
makes no argument on appeal that the artifice or device element was
not met. The evidence did not support a lesser-included offense
instruction of shoplifting, and the court did not commit
fundamental, prejudicial error in not sua sponte instructing on that
offense. See State v. Larin, 233 Ariz. 202, ¶ 17, 310 P.3d 990, 996 (App.
2013) (no error where evidence did not support lesser-included
offense instruction).10



      8 Because Veloz took less than $1,000 in property, any
shoplifting charge pursuant to A.R.S. § 13-1805(A) would have been
a class one misdemeanor. The only applicable subsections under
these facts would be §§ 13-1805(A)(1) and (5), which require
removing goods from the display without paying the purchase price
or concealment, respectively.
      9 The shoplifting statute does include an offense in which a
person uses an artifice or device “with the intent to facilitate
shoplifting,” but like organized retail theft, it is a class four felony.
§§ 13-1805(I); 13-1819(B).
      10We  note our conclusion regarding intent to deprive in the
organized retail theft statute renders the jury instruction on that
count incorrect. Although not objected to at trial or raised on
appeal, eliminating an element of an offense is fundamental error.
State v. DiGiulio, 172 Ariz. 156, 161, 835 P.2d 488, 493 (App. 1992).
We do not find prejudice, however, because the jury found Veloz
guilty of theft, which required it to find intent to deprive on the
same set of facts. Cf. DiGiulio, 172 Ariz. at 161-62, 835 P.2d at 493-94
(modifying conviction to lesser offense where jury verdict on other
charge necessarily satisfied all elements). Further, Veloz made no
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                         STATE v. VELOZ
                        Opinion of the Court


                    Criminal Restitution Order

¶20          Although not mentioned in the parties’ briefs, we find
fundamental, prejudicial error in the court’s imposition of a CRO.
See Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d at 650 (court will not
ignore fundamental error). The trial court ordered Veloz to pay a
fine, an assessment, a time payment fee, and restitution, and then
entered “a Criminal Restitution Order in favor of the Court for any
unpaid balance due for fines, fees, surcharges or assessments which
were previously imposed.” For the reasons set forth in State v. Cota,
234 Ariz. 180, ¶¶ 15-17, 319 P.3d 242, 246-47 (App. 2014), the CRO is
unauthorized except to the extent it pertains to restitution. See
A.R.S. § 13-805.

                   Sentencing Minute Entry Error

¶21           Finally, the sentencing minute entry incorrectly states
Veloz was sentenced to a “presumptive term of four (4) years” on
the organized retail theft charge. It is clear from the applicable
sentencing statute that the presumptive term is 4.5 years, see A.R.S.
§ 13-703(B), (I), and it is clear from the oral pronouncement of
sentence that the intended term was “the presumptive term . . . of
four years and six months.” We may order the minute entry
corrected if the record clearly identifies the intended sentence. State
v. Ovante, 231 Ariz. 180, ¶ 38, 291 P.3d 974, 982 (2013) (noting oral
pronouncement in open court controls over minute entry). We
correct the minute entry to reflect the intended sentence of 4.5 years’
imprisonment on Count 1.

                             Disposition

¶22           We vacate the portion of the CRO unrelated to
restitution, vacate Veloz’s conviction for theft, and otherwise affirm
Veloz’s conviction and sentence as corrected.




argument at trial that he did not intend to deprive the owner; rather,
he conceded, “It’s a simple case of simple theft. Nothing more.”

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