Opinion by
1 Defendant, Eddie Lee Hopkins, appeals the judgment of conviction entered upon a jury verdict finding him guilty of aggravated motor vehicle theft in the first degree. We affirm.
12 Aggravated motor vehicle theft in the first degree can be a class 4 or a class 8 felony.
(a) It is а Class 4 felony if the value of the motor vehicle or motor vehicles involved is twenty thousand dollars or less.
(b) It is a Class 3 felony:
[1] if the value of the motor vehicle or motor vehicles involved is more than twenty thousand dollars; or
[2] if the defendant has twice previously been convictеd or adjudicated of charges separately brought and tried either in this state or elsewhere of an offense involving theft of a motor vehicle under the laws of this state, any other state, the United States, or any territory subject to the jurisdiction of the United States.
§ 18-4-409(8)(a) and (b) (format modified).
13 Here, based on proof that defendant had two prior convictions involving theft of a motor vehicle, the court ruled that the current charge was punishable as a class 3 felony, and sentenced defendant to ten years in prison.
T4 Defendant contends that рroof of his prior convictions is an "element" of the class 8 felony and that the trial court erred when it did not submit this element to the jury for its determination beyond a reasonable doubt. In the alternative, he argues that even if proof of prior convictions is not аn element, due process required the court to subrit the question to the jury. We reject both arguments.
I. Apprendi Rule and Exeeption
T5 In Apprendi v. New Jersey,
1. submitted to the jury, and proved beyond a reasonablе doubt;
2. admitted by the defendant after an advisement of rights; or
3. found by a judge after the defendant has stipulated to judicial fact-finding for sentencing purposes.
People v. Huber,
T6 In Lopez v. People,
IIL Prior Convictions
T7 Defendаnt argues that notwithstanding the prior conviction exception, the General Assembly retains the power to include proof of one or more prior convictions in the defini
A. Elements
{T8 "The power to define criminal conduct and to establish the legal comрonents of criminal liability is vested in the General Assembly." Copeland v. People,
B. Not Separate Crimes
T9 Defendant contends that the General Assembly wrote sections 18-4-409(8)(a) and (8)(b) to create the class 4 and class 8 felonies as separate crimes with separate elements. For this argument, he relies on seetion 18-1-104(2), which sаys, "Each offense falls into one of eleven classes." From this he asserts that first-degree aggravated motor vehicle theft cannot be both a class 4 felony and a class 8 felony. Instead, the class 4 felony and the class 3 felony must be separate offеnses, each must have different elements, and each element must be proved beyond a reasonable doubt. We are not persuaded.
1. Statutory Interpretation
1 10 When construing a statute, we ascertain and give effect to the intent of the General Assembly. Dubois v. People,
11 "Words and phrases should be given effect according to their plain and ordinary meaning. ..." Barnes v. Colo. Dep't of Revenue,
2. Elements of Aggravated Motor Vehicle Theft in the First Degree
112 Section 18-4-409(@2)(a) states that a persоn commits aggravated motor vehicle theft in the first degree "if he or she knowingly obtains or exercises control over the motor vehicle of another without authorization or by threat or deception," and "[rJetains possession or control of the motоr vehicle for more than twenty-four hours." Thus, the elements of the offense as defined by the General Assembly include the following actus reus:
1. obtaining or exercising control over the motor vehicle of another;
2. without authorization or by threat or deception; and
3. retaining control of the motor vehicle for more than twenty-four hours.
In addition to these, the statute requires proof of mens rea, that the defendant acted "knowingly." Id.
{13 When the prosecution submits proof of each of these elements to the jury and the jury finds that they were proved beyond a reasonable doubt, thе court is authorized to enter a judgment of conviction for aggravated motor vehicle theft in the first degree.
$14 Section 18-4-409(8) addresses only the class of felony; it does not declare that the factors in subsection 409(8)(a) constitute a violation of any statute оther than section 18-4-409(2). This statutory struc
115 Contrary to defendant's contention, we also conclude that section 18-1-104(2) is descriptive and not prescriptive. That is, it simply explains that there is a system by which offenses are classified as felonies, misdemeanors, or petty offenses. The statute does not prevent the General Assembly from elevating the classification of an offense when it is committed by a prior offender.
3. Medina v. People
{ 16 We are not persuaded by defendant's argument that Medina v. People,
1 17 Therefore, we reject defendant's contention that class 3 and class 4 first-degree aggravated motor vehicle theft are separate crimes and that proof of prior convictions is an element of the class 3 felony.
C. Juxtaposition
1 18 Defendant notes that aggravated motor vehicle theft in the first degree can be a class 3 felony when:
•• the stolen vehicle has a value of more than $20,000; or
• the perpetrator has two prior convictions involving theft of a motor vehicle.
§ 18-4-409(8)(b).
119 He argues that proof that a vehicle has a value of more than $20,000 is an element of the class 3 felony, and that by including proof of prior convictions in the same subsection, the General Assembly demonstrated its intent that proof of prior convie-tions is also an element of the class 3 felony.
120 The worth of the vehicle is not at issue here. Therefore, we need not determine whether proof of a stolen vehicle's value is an element. However, applying, without accepting, defendant's premise that vehicle value is an element and must be determined by a jury, we conclude that the juxtaposition of the prior convictions factor in the same subsection as the vehicle value factor does not reflect a legislative intent tо treat prior convictions as an element. Instead, it unambiguously demonstrates the General Assembly's intent to make aggravated motor vehicle theft in the first degree a class 3 felony in
{21 Thus, we conclude that proof of two prior convictions related to motor vehicle theft is not an element of the class 3 felony.
D. Sentence Enhancers
122 We reject the People's argument that each of the fаcts described in section 18-4-409(8) is a sentence enhancer, and, therefore, does not need to be proven to a jury. Under Apprendi,Blakely, and Lopez, any fact other than the existence of a prior conviction that increases the statutory maximum penalty must be Blakely-compliant. Categorizing a fact as a sentence enhancer does not exempt it from due process and Sixth Amendment requirements of jury determination. See Apprendi,
1238 Therefore, except for a finding that a defendant has а prior conviction, any finding that increases the maximum penalty for a crime must be Blakely-compliant, regardless of whether the fact is an element or a sentence enhancer.
III Constitutionality of Prior Conviction Exception
" 24 In the alternative, defendant contends that the prior conviction exception is based on Almendarez-Torres v. U.S.,
125 Notwithstanding Justice Thomas's statement, the Supreme Court has not overturned the prior conviction exception set forth in Apprendi and Blakely, and these cases continue to control the question before us. See Oregon v. Ice,
T26 We conclude that, unless the General Assembly makes the fact of a prior conviction an essential element of the crime, thereby defining a crime that can be committed only by those who have a prior conviction, due process does not require that an offender's prior conviction be proved to a jury beyond a reasonable doubt.
T 27 Judgment affirmed.
Notes
. This is not to say that prior convictions can never be an element. Indeed, the General Assembly can make and has made proof of prior convictions an element of crimes such as possession of a firearm by a prior felon. See§ 18-12-108, C.R.S. ("Possession of weapons by previous offenders"); see also People v. Dist. Court,