In Arizona felony shoplifting includes two prior convictions within the past five years as elements of the offense. As is relevant, 13 A.R.S. § 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.”
In State v. Monica Lara, Arizona Court of Appeals No. 1 CA-CR 15-0506, (7/5/16), the defendant was charged with and convicted of felony shoplifting based on two prior convictions. Before trial the defendant filed a motion in which she contended the alleged prior convictions were not elements of the offense but rather sentence enhancements. If she was correct then the jury would only hear about her then-current case and, if guilty, then the court would determine the validity of the prior convictions in a second trial; if the priors were proven, they could be used to enhance (or make worse) the sentence. This is known as a bifurcated, or two-part trial. If she was not correct, then the jury would hear evidence about the prior convictions. The trial court denied her motion and she was convicted at trial.
On appeal the trial court agreed with the trial court and affirmed the defendant’s convictions. In doing so the court of appeals said that the language of the statute makes clear the elements of the offense the prosecutor must prove include that the defendant has two prior convictions. Therefore the jury must be told about the prior convictions and the defendant is not entitled to a bifurcated trial. The court analogized to the felony DUI statute which makes it a felony to be guilty of DUI with two prior convictions within the past seven years.
The opinion may be found at:
http://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2016/CR15-0506.pdf
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