State v. Veloz

• Decision Date: 29 January 2015
• Docket Number: No. 2 CA–CR 2014–0121.,2 CA–CR 2014–0121.
• Citation: 236 Ariz. 532,705 Ariz. Adv. Rep. 16,342 P.3d 1272
• Parties: The STATE of Arizona, Appellee, v. Francisco Xavier VELOZ, Appellant.
• Court: Arizona Court of Appeals

236 Ariz. 532

342 P.3d 1272

705 Ariz. Adv. Rep. 16

The STATE of Arizona, Appellee

v.Francisco Xavier VELOZ, Appellant.

No. 2 CA–CR 2014–0121.

Court of Appeals of Arizona, Division 2.

Jan. 29, 2015.

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.

Presiding Judge MILLER authored the opinion of the Court, in which Chief Judge ECKERSTROM and Judge ESPINOSA concurred.

OPINION

MILLER, 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.

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, 105 S.Ct. 1668, 84 L.Ed.2d 740 (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:

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 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, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).

¶ 8 Section 13–1819 was added in 2009³ 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, 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, 72 S.Ct. 240, 96 L.Ed. 288 (1952). Organized retail 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 s...