In Re C.D. , 240 Ariz. 239 ( 2016 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
IN RE C.D.
No. 2 CA-JV 2015-0183
Filed June 22, 2016
Appeal from the Superior Court in Pima County
No. JV18236702
The Honorable K.C. Stanford, Judge
AFFIRMED
COUNSEL
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
OPINION
Judge Staring authored the opinion of the Court, in which Presiding
Judge Howard and Judge Espinosa concurred.
IN RE C.D.
Opinion of the Court
S T A R I N G, Judge:
¶1 Appellant C.D. 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. C.D. 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 C.D. and his codefendants had entered a Tucson
convenience store, taken beer, and left without paying. In February
2015, the state charged C.D. 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 C.D. 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.” C.D. 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 C.D. 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 C.D.
responsible on all charges as alleged. Following a disposition
2
IN RE C.D.
Opinion of the Court
hearing, the court placed C.D. 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 C.D. 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”). C.D. 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, C.D.
1Although C.D. reached the age of eighteen years while this
appeal was pending, the issues raised in this appeal are not moot,
since a finding that he committed a class four felony could affect
him in the future. See In re Themika M., 206 Ariz. 553, ¶¶ 14-15,
81 P.3d 344, 346-47 (App. 2003).
3
IN RE C.D.
Opinion of the Court
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
juveniles, regardless of whether their acts resulted in delinquency
adjudications. The fact that in other statutes the legislature has
specified delinquency adjudications and could have done so here
does not make § 13-1805(I) unclear.
¶8 C.D. relies on State v. Gaynor-Fonte, 211 Ariz. 516,
123 P.3d 1153 (App. 2005), for the proposition that “committed”
must mean “convicted” and to interpret § 13-1805(I) any other way,
as the juvenile court did, renders it unconstitutionally vague. But
A.R.S. § 13-3601.02(A), at issue in Gaynor-Fonte, was part of an
interrelated statutory scheme pertaining to domestic-violence
offenses. And, although § 13-3601.02(A) provides the offense is
aggravated if the person “commits a third or subsequent” domestic-
4
IN RE C.D.
Opinion of the Court
violence offense within a specified period or has prior domestic-
violence convictions, other parts of that statute, as well as the related
statutes, plainly require previous convictions. See §§ 13-3601.01(B),
13-3601.02(B); Gaynor-Fonte, 211 Ariz. 516, ¶¶ 13-16, 123 P.3d at
1155-56. The use of the terms “commits” and “convicted” in
§ 13-3601.02(A) is not plain and straightforward as it is in
§ 13-1805(I). Gaynor-Fonte is therefore distinguishable, and we do
not find it persuasive here.
¶9 C.D. also contends that in the absence of the word
“adjudication,” “committed” must be the equivalent of “convicted.”
He insists that if we interpret the statute otherwise, as the juvenile
court did, it is “impermissibly aimed at unproven acts that are
merely alleged and have not been subjected to the requisite finding
of proof beyond a reasonable doubt.” C.D. argues that by
interpreting the statute to permit unproven acts to be a sufficient
basis for felony shoplifting, the juvenile court violated his due
process rights under the state and federal constitutions, an error he
claims cannot be regarded as harmless. We disagree.
¶10 First, statutes are “to be given such an effect that no
clause, sentence or word is rendered superfluous, void,
contradictory, or insignificant.” Marlar v. State, 136 Ariz. 404, 411,
666 P.2d 504, 511 (App. 1983); see also State v. Kozlowski, 143 Ariz. 137,
138, 692 P.2d 316, 317 (App. 1984) (legislature does not enact statutes
containing provisions that are redundant or trivial). Thus,
“committed” and “convicted” cannot refer to the same thing; rather,
the legislature’s use of these two distinct words reflects its intent to
include more than just adults previously convicted of two or more of
the specified offenses. By including the term “committed,” the
legislature was able to include juveniles who have perpetrated one
of the specified offenses, including shoplifting, a delinquent act,
whether the juvenile was adjudicated delinquent or not.
See A.R.S. § 8-201(11) (defining delinquent act as, inter alia, “an act
by a juvenile that if committed by an adult would be a criminal
offense or a petty offense”).
¶11 Second, § 13-1805(I) requires proof of additional
elements, in this instance proof C.D. committed two or more of the
qualifying offenses within the past five years, in order for the
5
IN RE C.D.
Opinion of the Court
offense of shoplifting to be a class four felony. Cf. State v. Brown,
204 Ariz. 405, ¶ 17, 64 P.3d 847, 851 (App. 2003) (state must prove as
additional elements of offense that person entered store “with
something he or she intended to [use to] facilitate the shoplifting” to
establish person committed felony-facilitated shoplifting under
§ 13-1805(I)). The juvenile court required the state to prove those
elements of the offense beyond a reasonable doubt, just as it did
with respect to the primary offense of shoplifting. Thus, as it was
applied to him, the statute did not violate C.D.’s due process rights
by permitting unproven acts to be the basis for designating the
offense as a class four felony. As discussed below, the state
sustained that burden by proving C.D. had two previous
delinquency adjudications based on shoplifting, which necessarily
constitutes proof beyond a reasonable doubt that he committed the
offenses. We see no error in the juvenile court’s interpretation and
application of the statute, nor did the court violate C.D.’s due
process rights.
¶12 C.D. next contends that, in addition to the fact that he
had not been “convicted of any offense,” the state did not sustain its
burden of proving beyond a reasonable doubt that he had
committed two previous shoplifting offenses. He argues that
although the state introduced and the court admitted, over his
objection, two minute entries showing a person had been
adjudicated delinquent based on those offenses, it did not introduce
identifying evidence, such as a thumbprint or signature establishing
he was the person referred to in the minute entries.
¶13 “In reviewing the juvenile court’s adjudication of
delinquency, we review the evidence and resolve all reasonable
inferences in the light most favorable to upholding its judgment.”
In re Jessi W., 214 Ariz. 334, ¶ 11, 152 P.3d 1217, 1219 (App. 2007). In
the analogous situation of sentence enhancement in adult
prosecutions based on prior felony convictions, the state must
“‘submit positive identification establishing that the accused is the
same person who previously was convicted.’” State v. Bennett,
216 Ariz. 15, ¶ 2, 162 P.3d 654, 655 (App. 2007), quoting State v. Cons,
208 Ariz. 409, ¶ 16, 94 P.3d 609, 615 (App. 2004). Authenticated
documents such as certified minute entries from court records may
6
IN RE C.D.
Opinion of the Court
be proper evidence that a person previously committed an offense.
See Cons, 208 Ariz. 409, ¶ 18, 94 P.3d at 616 (certified copies of court
records “proper, self-authenticated documents that are properly
offered in support of an allegation of prior convictions”).
¶14 The juvenile court did not err in finding the state
sustained its burden here. Not only did the state introduce certified
copies of the minute entry orders showing the prior adjudications
for shoplifting, but the probation officer identified C.D. at the
hearing and testified he was C.D.’s current probation officer and had
been his probation officer “on his first term of probation,” imposed
in connection with two prior shoplifting adjudications. The
probation officer testified he was the one who had prepared the
probation revocation report in connection with the previous
probationary terms.
¶15 This was the kind of information that was not presented
in two of the cases upon which C.D. relies, State v. Pennye, 102 Ariz.
207, 427 P.2d 525 (1967), and State v. Terrell, 156 Ariz. 499, 753 P.2d
189 (App. 1998), superseded by statute on other grounds, as recognized in
Cons, 208 Ariz. 409, ¶ 9, 94 P.3d at 613. Here, unlike in Pennye,
102 Ariz. at 208, 427 P.2d at 526, identity was established by more
than just a similar name linking C.D. to the instant charge as well as
to the prior offenses and adjudications. And, unlike in Terrell, 156
Ariz. at 503, 753 P.2d at 193, the probation officer here was able to
identify C.D., the person in the courtroom facing the instant charges,
as the same person he was supervising for a probationary term
imposed for prior shoplifting offenses. In addition, as the juvenile
court noted, the court file included the prior adjudications.
Disposition
¶16 The juvenile court did not err in adjudicating C.D.
delinquent on, inter alia, the charge of felony shoplifting based on
his having committed shoplifting on two prior occasions. We
therefore affirm the adjudication.
7