                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                   v.

                      MONICA LARA, Appellant.

                         No. 1 CA-CR 15-0506
                           FILED 7-5-2016


            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.




                          :AA




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