THOMPSON, Judge.
¶ 1 Joseph Ken Cotten (defendant) appeals his convictions and sentences for one count of theft and three counts of misconduct involving weapons. Regarding his theft conviction, defendant argues that he was deprived of his constitutional right to a unanimous verdict because the indictment was duplicitous. He also claims that the trial court improperly imposed consecutive sentences for the theft conviction and one of the misconduct convictions
¶ 2 The trial evidence reveals the following.
¶ 3 After the close of evidence, defendant requested a special verdict that would require that a conviction on either of the theft charges be based on the jury unanimously determining whether defendant stole the guns or possessed them knowing that they were stolen. See A.R.S. §§ 13-1802(A)(1) (a person commits theft by knowingly controlling, without lawful authority, property of another with the intent to deprive the other person of such property) and A.R.S. § 13-1802(A)(5) (a person commits theft by knowingly controlling, without lawful authority, property of another knowing or having reason to know that the property was stolen). The court rejected the request, reasoning that defendant was "entitled to a unanimous verdict on whether the crime charged was committed but not on a specific manner in which it was committed."
¶ 4 Defendant argues that "the court erred in submitting two different theft theories to support one theft charge in the indictment, without any special verdict form . . . to cure the defect of the duplicitous indictment."
¶ 5 Arizona courts have repeatedly held that theft as defined in A.R.S. § 13-1802 is a single unified offense. State v. Tramble, 144 Ariz. 48, 52, 695 P.2d 737, 741 (1985); State v. Paredes-Solano, 223 Ariz. 284, 289-90, ¶ 14, 222 P.3d 900, 905-906 (App. 2009); In re Jeremiah T., 212 Ariz. 30, 34,
¶ 6 As for the indictment's purported duplicity,
State v. Hamilton, 177 Ariz. 403, 410, 868 P.2d 986, 993 (App.1993) (citations omitted). The indictment in this case was not duplicitous. As noted supra, theft is a single, unified offense. The subsections contained in A.R.S. § 13-1802 do not reference separate crimes. An indictment's general citation to A.R.S. § 13-1802 is sufficient to charge a violation of the statute's subsections. No more particular pleading is required. See Winter, 146 Ariz. at 465, 706 P.2d at 1232. For these reasons, the court did not err in refusing defendant's request for a special verdict.
¶ 7 Defendant contends that the trial court violated A.R.S. § 13-116 (2009) by imposing consecutive sentences for his theft conviction (count 1) and one of the misconduct convictions (count 3) because they both involved the Glock. Defendant argues that concurrent sentences are mandated by State v. Gordon, 161 Ariz. 308, 315, 778 P.2d 1204, 1211 (1989). We disagree because the convictions did not arise from a "single act."
¶ 8 "An act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent." A.R.S. § 13-116. We review de novo whether a superior court has complied with A.R.S. § 13-116 in imposing consecutive sentences. State v. Urquidez, 213 Ariz. 50, 52, ¶ 6, 138 P.3d 1177, 1179 (App.2006) (citation omitted).
¶ 9 As the Arizona Supreme Court explained in Gordon, in determining whether a defendant has committed a single act pursuant to A.R.S. § 13-116, the court first considers "the facts of each crime separately, subtracting from the factual transaction the evidence necessary to convict on the ultimate charge—the one that is at the essence of the factual nexus and that will often be the most serious of the charges." 161 Ariz. at 315, 778 P.2d at 1211. "If the remaining evidence satisfies the elements of the other crime, then consecutive sentences may be permissible under A.R.S. § 13-116." Id. The next consideration is "whether, given the entire `transaction,' it was factually impossible to commit the ultimate crime without also committing the secondary crime." Id. If so, the likelihood that the defendant committed a
¶ 10 Applying Gordon, defendant's theft and misconduct convictions regarding the Glock clearly exposed him to consecutive sentences. For purposes of the Gordon framework, the "ultimate" or "most serious" of defendant's charges was the misconduct involving weapons charge, a class 4 felony. Considering the factual transaction presented in this case, defendant could have committed misconduct involving weapons without committing the secondary crime, theft. The misconduct offense (but not the theft offense) required evidence that defendant was a prohibited possessor, while the theft offense (but not the misconduct offense) required proof that the weapon was stolen, whether defendant stole the weapon or knew it was stolen. See A.R.S. §§ 13-1802(A)(1), (5), -3102. Police found defendant with the gun under his pillow, which was sufficient evidence alone to convict him on the ultimate charge. See id. Thus, defendant could have illegally possessed the weapon without stealing it.
¶ 11 Next, having "subtracted" this evidence from the factual transaction, we consider whether the remaining evidence was sufficient to convict defendant of theft. See Gordon, 161 Ariz. at 315, 778 P.2d at 1211. At trial, the following evidence was presented. Defendant's acquaintance, Daniel, saw the Glock at the victim's house. Later, when he described the Glock to defendant at a party, defendant evinced interest in the gun. Specifically, Daniel told Officer Harrison that defendant's "eyes lit up, because [he] likes guns." The gun was stolen in May 2009.
¶ 12 Subsequently, the victim's roommate, Aimee, was talking with her friend about the stolen gun in defendant's presence. Defendant stated that he had the gun, a comment which Aimee overheard. Later, on June 17, 2009, the stolen gun was found under defendant's pillow. This last fact alone, together with defendant's stipulation that he was a prohibited possessor, established defendant's guilt on the weapons misconduct charge. All of the incidents prior to the search on June 17, 2009 constitute evidence that defendant stole the gun.
¶ 13 Finally, we consider the last prong of the Gordon analysis, "whether the defendant's conduct in committing the lesser crime caused the victim to suffer an additional risk of harm beyond that inherent in the ultimate crime." 161 Ariz. at 315, 778 P.2d at 1211. As the state argues, the risk of harm presented by a prohibited possessor is that society is exposed to heightened criminality from a felon's possession of a firearm.
¶ 14 Thus, we conclude defendant's theft of the Glock and his misconduct involving
¶ 15 Finally, defendant raises two arguments regarding the court's use of his prior California felony conviction for sentence enhancement purposes. First, he contends that the conviction would not qualify as a felony conviction in Arizona. He also asserts that the record is insufficient to show that the California offense was committed within five years of the instant Arizona offenses. Based on our de novo review, we are not persuaded by either of these arguments. See State v. Crawford, 214 Ariz. 129, 131, ¶ 6, 149 P.3d 753, 755 (2007) (we review de novo whether a foreign conviction constitutes a felony in Arizona); State v. Rasul, 216 Ariz. 491, 496, ¶ 20, 167 P.3d 1286, 1291 (App.2007) (a determination that a prior conviction constitutes a historical prior felony conviction for sentence enhancement purposes is subject to de novo review).
¶ 16 A person convicted of a felony in Arizona is subject to the sentence enhancement provisions of A.R.S. § 13-703(J) (2009) if he has two or more historical prior felony convictions. A.R.S. § 13-703(C). A historical felony conviction refers to a conviction of any class four, five or six felony that was committed within five years immediately preceding the date of the present offense. A.R.S. § 13-105(22)(c) (2009). When calculating the five-year limit, any time spent incarcerated during that period is excluded. Id. A prior conviction in another state may be used for enhancement purposes if the criminal offense underlying the conviction qualifies as a felony in Arizona. A.R.S. § 13-703(M).
¶ 17 Here, the state alleged three prior felony convictions to enhance defendant's sentences. The court, after considering its records and certified copies of defendant's criminal records from California, found two of the alleged convictions to qualify as historical priors: a misconduct involving weapons conviction from Mohave County committed on September 27, 2006 and a 2003 attempted burglary conviction in California.
¶ 18 Defendant first contends that the 2003 California conviction would not necessarily qualify as a burglary in Arizona because "the structures listed in the California statute are not the same as the structures listed in the Arizona statute." He similarly argues that an "attempt" in California would not qualify as an "attempt" in Arizona.
¶ 19 As relevant here, a person commits felony burglary in Arizona by entering or unlawfully remaining in or on a residential or nonresidential structure with the intent to commit any theft or felony therein. A.R.S. §§ 13-1506 (2009), -1507 (2009). "`Structure' means any vending machine or any building, object, vehicle, railroad car or place with sides and a floor that is separately securable from any other structure attached to it and that is used for lodging, business, transportation, recreation or storage." A.R.S. § 13-1501(12) (2009). "`Residential structure' means any structure, movable or immovable, permanent or temporary, that is adapted for both human residence and lodging whether occupied or not." A.R.S. § 13-1501(11). "`Nonresidential structure' means any structure other than a residential structure and includes a retail establishment." A.R.S. § 13-1501(10).
¶ 20 Compared to the Arizona burglary statute, the California burglary statute under which defendant was convicted in 2003 does not refer generally to "residential" or "nonresidential structures." Instead, it lists the following specific locations into which one who enters intending "to commit grand or petit larceny or any felony is guilty of burglary[:]"
Cal.Penal Code § 459 (West 1991).
¶ 21 Because Arizona prohibits unlawfully entering or remaining in "structures," and the latter term includes the prohibited locales listed in the California statute, we conclude that any conviction under Cal.Penal Code § 459 would necessarily constitute a felony in Arizona pursuant to A.R.S. §§ 13-1506 and 13-1507.
¶ 22 Turning to his argument regarding "attempt," defendant contends that his California conviction also would not qualify as a felony in Arizona because "in Arizona, specific mental states are required to be proven by statute which are not required to be proven in the California attempt statute." We summarily reject this argument. See A.R.S. § 13-1001(A) (2003) (a person commits attempt by intentionally engaging in conduct that either constitutes an offense if the person was not mistaken as to the attendant circumstances, is in furtherance of a crime that is not completed, or to assist another in committing a crime); Cal.Penal Code § 21a (West 1999) ("An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission."); State v. Miller, 123 Ariz. 491, 493, 600 P.2d 1123, 1125 (App.1979) ("In order to sustain a conviction for attempt there must be proof of a specific intent on the defendant's part to commit the substantive crime.") (citation omitted); People v. Gutierrez, 112 Cal.App.4th 704, 5 Cal.Rptr.3d 256, 260 (2003) ("An attempt to commit a crime requires a specific intent to commit the crime."). Thus, defendant's attempted burglary conviction in California would have been a felony in Arizona had he committed the offense in this state.
¶ 23 When calculating whether defendant committed the California offense within the five-year time limit of the current Arizona offenses, the court noted that the California offense was committed sometime in 2003. Giving defendant the benefit of any doubt, the court assumed for purposes of its calculation that the date of the California offense was January 1, 2003. The court then excluded the time that it determined defendant was in custody from 2003 to the date of his present offenses, June 17, 2009,
¶ 24 On appeal, defendant does not challenge the propriety of the court's findings or calculations relating to the periods of his incarceration. Instead, he merely asserts that because the records do not indicate the specific date of the California offense, "the timeliness of the conviction cannot be established beyond a reasonable doubt. . . ." This argument is meritless. The certified records indicate the offense was committed in 2003, and the court assumed, for purposes of calculating the excludable time, that the offense occurred on the earliest date possible, January 1, 2003. Even if the court was incorrect in this assumption and the actual date of the offense was sometime after January 1, 2003, defendant would have then committed the California offense even more recently, and therefore within five years of the current Arizona offenses. Accordingly, we discern no error.
¶ 25 Defendant's convictions and sentences are affirmed.