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REFERENCE TITLE: property crimes; classification; sentencing |
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State of Arizona House of Representatives Fifty-fourth Legislature First Regular Session 2019
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HB 2207 |
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Introduced by Representatives Rodriguez: Blanc, Cano, DeGrazia, Espinoza, Longdon, Terán, Tsosie
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AN ACT
amending section 13‑1802, Arizona Revised Statutes, as amended by laws 2013, chapter 163, section 1; amending section 13‑1802, Arizona Revised Statutes, as amended by laws 2018, chapter 298, section 1; amending sections 13‑1805, 13‑1814, 13‑1819, 13‑2002, 13‑2307 and 13‑2310, Arizona Revised Statutes; relating to sentencing.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 13-1802, Arizona Revised Statutes, as amended by Laws 2013, chapter 163, section 1, is amended to read:
13-1802. Theft; classification; definitions
A. A person commits theft if, without lawful authority, the person knowingly:
1. Controls property of another with the intent to deprive the other person of such property; or
2. Converts for an unauthorized term or use services or property of another entrusted to the defendant or placed in the defendant's possession for a limited, authorized term or use; or
3. Obtains services or property of another by means of any material misrepresentation with intent to deprive the other person of such property or services; or
4. Comes into control of lost, mislaid or misdelivered property of another under circumstances providing means of inquiry as to the true owner and appropriates such property to the person's own or another's use without reasonable efforts to notify the true owner; or
5. Controls property of another knowing or having reason to know that the property was stolen; or
6. Obtains services known to the defendant to be available only for compensation without paying or an agreement to pay the compensation or diverts another's services to the person's own or another's benefit without authority to do so; or
7. Controls the ferrous metal or nonferrous metal of another with the intent to deprive the other person of the metal; or
8. Controls the ferrous metal or nonferrous metal of another knowing or having reason to know that the metal was stolen; or
9. Purchases within the scope of the ordinary course of business the ferrous metal or nonferrous metal of another person knowing that the metal was stolen.
B. A person commits theft if, without lawful authority, the person knowingly takes control, title, use or management of a vulnerable adult's property while acting in a position of trust and confidence and with the intent to deprive the vulnerable adult of the property. Proof that a person took control, title, use or management of a vulnerable adult's property without adequate consideration to the vulnerable adult may give rise to an inference that the person intended to deprive the vulnerable adult of the property.
C. It is an affirmative defense to any prosecution under subsection B of this section that either:
1. The property was given as a gift consistent with a pattern of gift giving to the person that existed before the adult became vulnerable.
2. The property was given as a gift consistent with a pattern of gift giving to a class of individuals that existed before the adult became vulnerable.
3. The superior court approved the transaction before the transaction occurred.
D. The inferences set forth in section 13‑2305 apply to any prosecution under subsection A, paragraph 5 of this section.
E. At the conclusion of any grand jury proceeding, hearing or trial, the court shall preserve any trade secret that is admitted in evidence or any portion of a transcript that contains information relating to the trade secret pursuant to section 44‑405.
F. Subsection B of this section does not apply to an agent who is acting within the scope of the agent's duties as or on behalf of a health care institution that is licensed pursuant to title 36, chapter 4 and that provides services to the vulnerable adult.
G. Theft of property or services with a value of twenty‑five thousand dollars $50,000 or more is a class 2 felony. Theft of property or services with a value of four thousand dollars $20,000 or more but less than twenty‑five thousand dollars $50,000 is a class 3 felony. Theft of property or services with a value of three thousand dollars $10,000 or more but less than four thousand dollars $20,000 is a class 4 felony, except that theft of any vehicle engine or transmission is a class 4 felony regardless of value. Theft of property or services with a value of two thousand dollars $5,000 or more but less than three thousand dollars $10,000 is a class 5 felony. Theft of property or services with a value of one thousand dollars $2,000 or more but less than two thousand dollars $5,000 is a class 6 felony. Theft of any property or services valued at less than one thousand dollars $2,000 is a class 1 misdemeanor, unless the property is taken from the person of another, is a firearm or is an animal taken for the purpose of animal fighting in violation of section 13‑2910.01, in which case the theft is a class 6 felony.
H. A person who is convicted of a violation of subsection A, paragraph 1 or 3 of this section that involved property with a value of one hundred thousand dollars $100,000 or more is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except pursuant to section 31‑233, subsection A or B until the sentence imposed by the court has been served, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted.
I. For the purposes of this section, the value of ferrous metal or nonferrous metal includes the amount of any damage to the property of another caused as a result of the theft of the metal.
J. In an action for theft of ferrous metal or nonferrous metal:
1. Unless satisfactorily explained or acquired in the ordinary course of business by an automotive recycler as defined and licensed pursuant to title 28, chapter 10 or by a scrap metal dealer as defined in section 44‑1641, proof of possession of scrap metal that was recently stolen may give rise to an inference that the person in possession of the scrap metal was aware of the risk that it had been stolen or in some way participated in its theft.
2. Unless satisfactorily explained or sold in the ordinary course of business by an automotive recycler as defined and licensed pursuant to title 28, chapter 10 or by a scrap metal dealer as defined in section 44‑1641, proof of the sale of stolen scrap metal at a price substantially below its fair market value may give rise to an inference that the person selling the scrap metal was aware of the risk that it had been stolen.
K. For the purposes of this section:
1. "Adequate consideration" means the property was given to the person as payment for bona fide goods or services provided by the person and the payment was at a rate that was customary for similar goods or services in the community that the vulnerable adult resided in at the time of the transaction.
2. "Ferrous metal" and "nonferrous metal" have the same meanings prescribed in section 44‑1641.
3. "Pattern of gift giving" means two or more gifts that are the same or similar in type and monetary value.
4. "Position of trust and confidence" has the same meaning prescribed in section 46‑456.
5. "Property" includes all forms of real property and personal property.
6. "Vulnerable adult" has the same meaning prescribed in section 46‑451.
Sec. 2. Section 13-1802, Arizona Revised Statutes, as amended by Laws 2018, chapter 298, section 1, is amended to read:
13-1802. Theft; classification; definitions
A. A person commits theft if, without lawful authority, the person knowingly:
1. Controls property of another with the intent to deprive the other person of such property; or
2. Converts for an unauthorized term or use services or property of another entrusted to the defendant or placed in the defendant's possession for a limited, authorized term or use; or
3. Obtains services or property of another by means of any material misrepresentation with intent to deprive the other person of such property or services; or
4. Comes into control of lost, mislaid or misdelivered property of another under circumstances providing means of inquiry as to the true owner and appropriates such property to the person's own or another's use without reasonable efforts to notify the true owner; or
5. Controls property of another knowing or having reason to know that the property was stolen; or
6. Obtains services known to the defendant to be available only for compensation without paying or an agreement to pay the compensation or diverts another's services to the person's own or another's benefit without authority to do so; or
7. Controls the ferrous metal or nonferrous metal of another with the intent to deprive the other person of the metal; or
8. Controls the ferrous metal or nonferrous metal of another knowing or having reason to know that the metal was stolen; or
9. Purchases within the scope of the ordinary course of business the ferrous metal or nonferrous metal of another person knowing that the metal was stolen.
B. A person commits theft if, without lawful authority, the person knowingly takes control, title, use or management of a vulnerable adult's property while acting in a position of trust and confidence and with the intent to deprive the vulnerable adult of the property. Proof that a person took control, title, use or management of a vulnerable adult's property without adequate consideration to the vulnerable adult may give rise to an inference that the person intended to deprive the vulnerable adult of the property.
C. It is an affirmative defense to any prosecution under subsection B of this section that either:
1. The property was given as a gift consistent with a pattern of gift giving to the person that existed before the adult became vulnerable.
2. The property was given as a gift consistent with a pattern of gift giving to a class of individuals that existed before the adult became vulnerable.
3. The superior court approved the transaction before the transaction occurred.
D. The inferences set forth in section 13‑2305 apply to any prosecution under subsection A, paragraph 5 of this section.
E. At the conclusion of any grand jury proceeding, hearing or trial, the court shall preserve any trade secret that is admitted in evidence or any portion of a transcript that contains information relating to the trade secret pursuant to section 44‑405.
F. Subsection B of this section does not apply to an agent who is acting within the scope of the agent's duties as or on behalf of a health care institution that is licensed pursuant to title 36, chapter 4 and that provides services to the vulnerable adult.
G. Theft of property or services with a value of twenty‑five thousand dollars $50,000 or more is a class 2 felony. Theft of property or services with a value of four thousand dollars $20,000 or more but less than twenty‑five thousand dollars $50,000 is a class 3 felony. Theft of property or services with a value of three thousand dollars $10,000 or more but less than four thousand dollars $20,000 is a class 4 felony, except that theft of any vehicle engine or transmission is a class 4 felony regardless of value. Theft of property or services with a value of two thousand dollars $5,000 or more but less than three thousand dollars $10,000 is a class 5 felony. Theft of property or services with a value of one thousand dollars $2,000 or more but less than two thousand dollars $5,000 is a class 6 felony. Theft of any property or services valued at less than one thousand dollars $2,000 is a class 1 misdemeanor, unless the property is taken from the person of another, is a firearm or is an animal taken for the purpose of animal fighting in violation of section 13‑2910.01, in which case the theft is a class 6 felony.
H. A person who is convicted of a violation of subsection A, paragraph 1 or 3 of this section that involved property with a value of one hundred thousand dollars $100,000 or more is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except pursuant to section 31‑233, subsection A or B until the sentence imposed by the court has been served, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted.
I. For the purposes of this section, the value of ferrous metal or nonferrous metal includes the amount of any damage to the property of another caused as a result of the theft of the metal.
J. In an action for theft of ferrous metal or nonferrous metal:
1. Unless satisfactorily explained or acquired in the ordinary course of business by an automotive recycler that is licensed pursuant to title 28, chapter 10 or by a scrap metal dealer as defined in section 44‑1641, proof of possession of scrap metal that was recently stolen may give rise to an inference that the person in possession of the scrap metal was aware of the risk that it had been stolen or in some way participated in its theft.
2. Unless satisfactorily explained or sold in the ordinary course of business by an automotive recycler that is licensed pursuant to title 28, chapter 10 or by a scrap metal dealer as defined in section 44‑1641, proof of the sale of stolen scrap metal at a price substantially below its fair market value may give rise to an inference that the person selling the scrap metal was aware of the risk that it had been stolen.
K. For the purposes of this section:
1. "Adequate consideration" means the property was given to the person as payment for bona fide goods or services provided by the person and the payment was at a rate that was customary for similar goods or services in the community that the vulnerable adult resided in at the time of the transaction.
2. "Ferrous metal" has the same meaning prescribed in section 44‑1641.
3. "Pattern of gift giving" means two or more gifts that are the same or similar in type and monetary value.
4. "Position of trust and confidence" has the same meaning prescribed in section 46‑456.
5. "Property" includes all forms of real property and personal property.
6. "Vulnerable adult" has the same meaning prescribed in section 46‑451.
Sec. 3. Section 13-1805, Arizona Revised Statutes, is amended to read:
13-1805. Shoplifting; detaining suspect; defense to wrongful detention; civil action by merchant; public services; classification
A. A person commits shoplifting if, while in an establishment in which merchandise is displayed for sale, the person knowingly obtains such goods of another with the intent to deprive that person of such goods by:
1. Removing any of the goods from the immediate display or from any other place within the establishment without paying the purchase price; or
2. Charging the purchase price of the goods to a fictitious person or any person without that person's authority; or
3. Paying less than the purchase price of the goods by some trick or artifice such as altering, removing, substituting or otherwise disfiguring any label, price tag or marking; or
4. Transferring the goods from one container to another; or
5. Concealment.
B. A person is presumed to have the necessary culpable mental state pursuant to subsection A of this section if the person does either of the following:
1. Knowingly conceals on himself or another person unpurchased merchandise of any mercantile establishment while within the mercantile establishment.
2. Uses an artifice, instrument, container, device or other article to facilitate the shoplifting.
C. A merchant, or a merchant's agent or employee, with reasonable cause, may detain on the premises in a reasonable manner and for a reasonable time any person who is suspected of shoplifting as prescribed in subsection A of this section for questioning or summoning a law enforcement officer.
D. Reasonable cause is a defense to a civil or criminal action against a peace officer, a merchant or an agent or employee of the merchant for false arrest, false or unlawful imprisonment or wrongful detention.
E. If a minor engages in conduct that violates subsection A of this section, notwithstanding the fact that the minor may not be held responsible because of the person's minority, any merchant who is injured by the shoplifting of the minor may bring a civil action against the parent or legal guardian of the minor under either section 12‑661 or 12‑692.
F. Any merchant who is injured by the shoplifting of an adult or emancipated minor in violation of subsection A of this section may bring a civil action against the adult or emancipated minor pursuant to section 12‑691.
G. In imposing sentence on a person who is convicted of violating this section, the court may require any person to perform public services designated by the court in addition to or in lieu of any fine that the court might impose.
H. Shoplifting property with a value of two thousand dollars $5,000 or more, shoplifting property during any continuing criminal episode or shoplifting property if done to promote, further or assist any criminal street gang or criminal syndicate is a class 5 felony. Shoplifting property with a value of one thousand dollars $2,000 or more but less than two thousand dollars $5,000 is a class 6 felony. Shoplifting property valued at less than one thousand dollars $2,000 is a class 1 misdemeanor, unless the property is a firearm in which case the shoplifting is a class 6 felony. For the purposes of this subsection, "continuing criminal episode" means theft of property with a value of one thousand five hundred dollars $1,500 or more if committed during at least three separate incidences within a period of ninety consecutive days.
I. A person who in the course of shoplifting uses an artifice, instrument, container, device or other article with the intent to facilitate shoplifting or 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 6 felony.
Sec. 4. Section 13-1814, Arizona Revised Statutes, is amended to read:
13-1814. Theft of means of transportation; affidavit; classification
A. A person commits theft of means of transportation if, without lawful authority, the person knowingly does one of the following:
1. Controls another person's means of transportation with the intent to permanently deprive the person of the means of transportation.
2. Converts for an unauthorized term or use another person's means of transportation that is entrusted to or placed in the defendant's possession for a limited, authorized term or use.
3. 2. Obtains another person's means of transportation by means of any material misrepresentation with intent to permanently deprive the person of the means of transportation.
4. 3. Comes into control of another person's means of transportation that is lost or misdelivered under circumstances providing means of inquiry as to the true owner and appropriates the means of transportation to the person's own or another's use without reasonable efforts to notify the true owner.
5. 4. Controls another person's means of transportation knowing or having reason to know that the property is stolen.
B. The inferences set forth in section 13‑2305 apply to any prosecution under subsection A, paragraph 5 4 of this section.
C. A person who alleges that a theft of means of transportation has occurred shall attest to that fact by signing an affidavit that is provided by the law enforcement officer or agency when the report is taken in person or by signing and notarizing an affidavit that is provided by the law enforcement agency if the report is taken other than in person. If the affidavit is not taken in person by a law enforcement officer or agency, the person who alleges that a theft of means of transportation has occurred shall mail or deliver the signed and notarized affidavit to the appropriate local law enforcement agency within seven days after reporting the theft. If the appropriate law enforcement agency does not receive the signed and notarized affidavit within thirty days after the initial report, the vehicle information shall be removed from the databases of the national crime information center and the Arizona criminal justice information system. The affidavit provided by the law enforcement agency shall indicate that a person who falsely reports a theft of means of transportation may be subject to criminal prosecution.
D. Theft of means of transportation is a class 3 felony.
Sec. 5. Section 13-1819, Arizona Revised Statutes, is amended to read:
13-1819. Organized retail theft; classification
A. A person commits organized retail theft if the person, acting alone or in conjunction with another person, does any of the following:
1. removes merchandise from a retail establishment without paying the purchase price with the intent to resell or trade the merchandise for money or for other value.
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.
B. Organized retail theft is a class 4 6 felony.
Sec. 6. Section 13-2002, Arizona Revised Statutes, is amended to read:
13-2002. Forgery; classification
A. A person commits forgery if, with intent to defraud, the person:
1. Falsely makes, completes or alters a written instrument; or
2. Knowingly possesses a forged instrument; or
3. Offers or presents, whether accepted or not, a forged instrument or one that contains false information.
B. The possession of five or more forged instruments may give rise to an inference that the instruments are possessed with an intent to defraud.
C. Forgery is a class 4 6 felony, except that if the forged instrument is used in connection with the purchase, lease or renting of a dwelling that is used as a drop house, it is a class 3 felony. For the purposes of this subsection, "drop house" means property that is used to facilitate smuggling pursuant to section 13‑2319.
Sec. 7. Section 13-2307, Arizona Revised Statutes, is amended to read:
13-2307. Trafficking in stolen property; classification
A. A person who recklessly traffics in the property of another that has been stolen is guilty of trafficking in stolen property in the second degree.
B. A person who knowingly initiates, organizes, plans, finances, directs, manages or supervises the theft and trafficking in the property of another that has been stolen is guilty of trafficking in stolen property in the first degree.
C. This state shall apply the aggregation prescribed by section 13‑1801, subsection B to violations of this section in determining the applicable punishment.
C. D. Trafficking in stolen property in the second degree of property with a value of $50,000 or more is a class 2 felony. Trafficking in stolen property in the second degree of property with a value of $20,000 or more but less than $50,000 is a class 3 felony. Trafficking in stolen property in the second degree of property with a value of $10,000 or more but less than $20,000 is a class 4 felony. Trafficking in stolen property in the second degree of property with a value of $5,000 or more but less than $10,000 is a class 5 felony. Trafficking in stolen property in the second degree of property with a value of $2,000 or more but less than $5,000 is a class 6 felony. Trafficking in stolen property in the second degree of property with a value of less than $2,000 is a class 1 misdemeanor. Trafficking in stolen property in the first degree of property with a value of $20,000 or more is a class 2 felony. Trafficking in stolen property in the first degree of property with a value of $10,000 or more but less than $20,000 is a class 3 felony. Trafficking in stolen property in the first degree of property with a value of $5,000 or more but less than $10,000 is a class 4 felony. Trafficking in stolen property in the first degree of property with a value of $2,000 or more but less than $5,000 is a class 5 felony. Trafficking in stolen property in the first degree of property with a value of less than $2,000 is a class 6 felony.
Sec. 8. Section 13-2310, Arizona Revised Statutes, is amended to read:
13-2310. Fraudulent schemes and artifices; classification; definition
A. Any A person commits fraudulent schemes and artifices who, pursuant to a scheme or artifice to defraud, knowingly obtains any benefit by means of false or fraudulent pretenses, representations, promises or material omissions is guilty of a class 2 felony.
B. Reliance on the part of any person shall not be a necessary element of the offense described in subsection A of this section.
C. A person who is convicted of a violation of this section that involved a benefit with a value of one hundred thousand dollars $100,000 or more or the manufacture, sale or marketing of opioids is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except pursuant to section 31‑233, subsection A or B until the sentence imposed by the court has been served, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted.
D. This state shall apply the aggregation prescribed by section 13‑1801, subsection B to violations of this section in determining the applicable punishment.
E. Fraudulent schemes and artifices to obtain any benefit with a value of $50,000 or more is a class 2 felony. Fraudulent schemes and artifices to obtain any benefit with a value of $20,000 or more but less than $50,000 is a class 3 felony. Fraudulent schemes and artifices to obtain any benefit with a value of $10,000 or more but less than $20,000 is a class 4 felony. Fraudulent schemes and artifices to obtain any benefit with a value of $5,000 or more but less than $10,000 is a class 5 felony. Fraudulent schemes and artifices to obtain any benefit with a value of $2,000 or more but less than $5,000 is a class 6 felony. Fraudulent schemes and artifices to obtain any benefit with a value of less than $2,000 is a class 1 misdemeanor.
E. F. For the purposes of this section, "scheme or artifice to defraud" includes a scheme or artifice to deprive a person of the intangible right of honest services.
Sec. 9. Conditional enactment
Section 13‑1802, Arizona Revised Statutes, as amended by Laws 2018, chapter 298, section 1 and this act, becomes effective on the date prescribed by Laws 2018, chapter 298, section 12 but only on the occurrence of the condition prescribed by Laws 2018, chapter 298, section 12.