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In re C.D.

Court of Appeals of Arizona, Second Division

June 22, 2016

In re C.D.

          Appeal from the Superior Court in Pima County No. JV18236702 The Honorable K.C. Stanford, Judge

          Barbara LaWall, Pima County Attorney By Kara Crosby and Jacob R. Lines, Deputies County Attorney, Tucson Counsel for State

          Steven R. Sonenberg, Pima County Public Defender By Susan C. L. Kelly and Sarah L. Mayhew, Assistants Public Defender, Tucson Counsel for Minor

          Judge Staring authored the opinion of the Court, in which Presiding Judge Howard and Judge Espinosa concurred.

          OPINION

          STARING, Judge

         ¶1 Appellant CD. contends the juvenile court erred in adjudicating him delinquent on a felony charge of shoplifting pursuant to A.R.S. § 13-1805(I), based on his having committed two or more previous shoplifting offenses. CD. argues the statute cannot constitutionally apply to juveniles because it does not state that prior shoplifting adjudications may be used as predicate offenses for the felony classification. He also challenges the sufficiency of the evidence to support the court's finding that he had two prior delinquency adjudications based on shoplifting and had therefore committed those offenses. We affirm for the reasons stated below.

         Factual and Procedural Background

         ¶2 The evidence presented at the adjudication hearing established CD. and his codefendants had entered a Tucson convenience store, taken beer, and left without paying. In February 2015, the state charged CD. by delinquency petition with two counts of shoplifting and one count of being a minor in possession of spirituous liquor. Pursuant to § 13-1805(I), the state charged count one of the petition as a class four felony based on CD. having "previously committed or been convicted within the past five years of two or more offenses involving burglary, shoplifting, robbery, organized retail theft or theft." CD. moved to dismiss the felony charge arguing § 13-1805(I) does not apply to juveniles because it does not state that it applies to previous delinquency adjudications. The court denied the motion after a hearing.

         ¶3 At the adjudication hearing, the state presented and the juvenile court admitted over C.D.'s objection, certified copies of minute entries from two disposition hearings establishing CD. had been adjudicated delinquent twice previously based on his having committed shoplifting four times. After further briefing on the question whether the state had sustained its burden of proving at least two previous shoplifting offenses, the court found CD. responsible on all charges as alleged. Following a disposition hearing, the court placed CD. on juvenile intensive probation supervision until his eighteenth birthday.[1] This appeal followed.

         Discussion

         ¶4 Section 13-1805(A) defines the offense of shoplifting, ordinarily a class one misdemeanor. See A.R.S. § 13-1805(H) ("Shoplifting property valued at less than one thousand dollars is a class 1 misdemeanor."). Section 13-1805(I) provides that "[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." Absent from the statute is any explicit reference to prior delinquency adjudications.

         ¶5 CD. contends that if the legislature had wanted to include prior delinquency adjudications in § 13-1805(I), it would have done so, just as it has in analogous circumstances. See, e.g., A.R.S. §§ 13-3101(7) (b) (defining prohibited possessor to include person "who has been adjudicated delinquent for a felony and whose civil right to possess or carry a gun or firearm has not been restored"); 13-3821 (D) (permitting court to require person "adjudicated delinquent for an act that would constitute an offense specified" in other subsection of statute to register as sex offender); 28-3320(E) (providing that for purposes of driver license suspension conviction includes "an order of the juvenile court finding that a juvenile violated any provision of this title or committed a delinquent act that if committed by an adult would constitute a criminal offense"). CD. also cites § 13-1805(E) as support for his contention that the legislature deliberately omitted delinquency adjudications from § 13-1805(I). Section 13-1805(E) provides that a parent or guardian of a minor who commits shoplifting may be held responsible for damages resulting from the offense, which, CD. argues, demonstrates the legislature was aware of the distinction between juvenile and adult offenders in the shoplifting context.

         ¶6 Statutory interpretation presents a question of law, which we review de novo. See In re Casey G., 223 Ariz. 519, 1, 224 P.3d 1016, 1017 (App. 2010). In interpreting a statute, we must ascertain and give effect to the legislature's intent in enacting it. Id. ¶ 2. "The best indicator of that intent is the language of the statute itself." Id. If the language is plain and unambiguous, we need not employ principles of construction to determine its meaning and the legislature's intent. See State v. Lee, 236 Ariz. 377, 16, 340 P.3d 1085, 1090 (App. 2014).

         ¶7 C.D. correctly points out that the legislature did not expressly state in § 13-1805(I) that prior delinquency adjudications may serve as a basis for the offense of felony shoplifting. He is also correct that delinquency adjudications are not the same as convictions. See Casey G., 223 Ariz. 519, ¶¶ 5-6, 224 P.3d at 1017-18. The legislature did specify, however, that "previously committed" shoplifting offenses may serve as predicate offenses. The statute is clear. Based on its plain language, including the use of the disjunctive, a person who commits shoplifting and has been convicted of two or more of the specified offenses within the past five years or has committed two or more such offenses within that period, is guilty of a class four felony. Section 13-1805(I) is a repetitive offender statute that plainly applies to adults whose acts may have but did not necessarily result in convictions, as well as ...


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