concurring in part and dissenting in part.
¶ 17 Like my colleagues, I conclude that A.R.S. § 13-901.01 has no bearing on this case. My colleagues point out that nothing in the literal wording of the statute precludes a conviction for personal drug possession from serving as a prior conviction to enhance the sentence for a later, different sort of crime. Neither, I would add, does such a consequence contravene the statutory purpose.
¶ 18 In the past, Arizona courts have rejected literal interpretations of § 13-901.01 that would have violated the statutory purpose and brought about an “absurd” or “illogical” result. See, e.g., Calik, 195 Ariz. at 499, ¶ 12, 990 P.2d at 1058; Stubblefield v. Superior Court, 197 Ariz. 382, 383, ¶ 6, 4 P.3d 437, 438 (App.2000); Goddard, 191 Ariz. at 404, ¶ 8, 956 P.2d at 531. This is not such a case. The statutory purpose is to assure court-supervised treatment for nonviolent persons convicted of personal drug use or possession and to free prison space for violent offenders. See Proposition 200, § 3(C), (E). Defendant’s present crime, however, is not personal drug use or possession, but theft of a means of transportation. And it is neither absurd nor illogical nor contrary to statutory purpose to conclude that a person convicted of drug possession and afforded the benefits of § 13-901.01 may later face sentence-enhancing consequences from that crime if he moves on to crimes such as auto theft that are beyond the remedial ambit of § 13-901.01.
¶ 19 The subject of my disagreement with the majority is, accordingly, not its interpretation of § 13-901.01, but rather its interpretation of § 13-604(V)(1). My colleagues profess to apply “the plain language of the [statute] as the most reliable indicator of [its] meaning.” Supra ¶ 5. But in practice they do just the reverse.
¶ 20 Section 13-604(V)(1) is quoted by the majority in ¶ 9, supra. We disagree over the meaning of the word “listed” in subdivision (V)(l)(c). That subdivision categorizes as an “historical prior felony conviction” (one with present sentence-enhancing consequences) a prior conviction for “[a]ny class 4, 5 or 6 felony, except the offenses listed in subdivision (a) of this paragraph, that was committed within the five years immediately preceding the date of the present offense.” A.R.S. *467§ 13-604(V)(l)(c). As Defendant had been convicted of a class 4 narcotics possession felony within five years preceding the present offense, his conviction qualifies as an historical prior unless it falls among the “offenses listed in subdivision (a).”
¶ 21 To examine whether Defendant’s prior offense falls among those listed in subdivision (a), we look specifically to part (a)(i), which defines as an “historical prior felony conviction” any prior felony conviction for which the law “Mandated a term of imprisonment except for a violation of chapter 31¡. of this title involving a drug below the threshold amount.” A.R.S. § 13-604(V)(l)(a)(i) (emphasis added and footnote omitted).
¶ 22 Subdivision (a)(i), in structure and effect, divides offenses subject to mandatory imprisonment into two categories: (1) violations of Chapter 34 involving drugs below the threshold amount; and (2) all other offenses subject to mandatory imprisonment. Offenses in the first category do not qualify as historical priors; offenses in the second category do qualify as historical priors. Offenses of both types, however, are identified and categorized by subdivision (a)(i). And because Defendant’s prior offense, one within the first category, is explicitly categorized in subdivision (a)(i), the conclusion follows, it seems to me, that it is one listed in subdivision (a).
¶ 23 “List,” as used in this statute, means “enumerate,” “include on a list,” or “place ... in a specified category.” See Webster’s Ninth New Collegiate Dictionary 697 (1985). And subdivision (a)(i) indeed enumerates Defendant’s prior offense, includes it, and places it in a specified category: the set of offenses designated as exceptions to the historical pri- or treatment otherwise accorded to offenses subject to mandatory imprisonment.
¶ 24 My colleagues, in effect, amend A.R.S. § 13-604(V)(l)(c) to refer to “[a]ny class 4, 5 or 6 felony, except the offenses [categorized as historical prior felonies] in subdivision (a) of this paragraph, that was committed within the five years immediately preceding the date of the present offence.” That, however, is not the present wording of the statute. The statute refers only to listed offenses, and Defendant’s prior offense is listed there.
¶25 I acknowledge that the legislature might have plausibly chosen to treat sub-threshold Chapter 34 violations as historical priors if committed within the past five years. But the legislature might also have plausibly chosen otherwise, regarding such offenses as insufficiently grave to require mandatory enhancement, and better left as potential aggravating factors within the discretion of the trial judge. See A.R.S. § 13-702(0(11) (permitting the sentencing judge to consider as an aggravating factor a felony conviction within the ten years immediately preceding the date of the offense).
¶ 26 The question before us, in any event, is not what the legislature might plausibly have done, but what it did do. Because the best indication on this point is, indeed, the plain language of the statute, I would resist the temptation to judicially amend the statute as my colleagues have done. I would hold instead that Defendant’s prior offense is listed in subdivision (a)(i) and, accordingly, does not qualify as an historical prior under subdivision (c).
¶27 I would add as a final note that I think the statute unambiguous on this issue. But if any ambiguity can be attributed to the statute, that ambiguity should be resolved in accordance with the rule of lenity. As our supreme court has recently reaffirmed, ‘When a statute is ‘susceptible to more than one interpretation, the rule of lenity dictates that any doubt should be resolved in favor of the defendant.’ ” State v. Tarango, 185 Ariz. 208, 210, 914 P.2d 1300, 1302 (1996) (quoting State v. Pena, 140 Ariz. 545, 549-50, 683 P.2d 744, 748-49 (App.1983)).
¶ 28 For the foregoing reasons, I concur in the majority’s interpretation of A.R.S. § 13-901.01, but respectfully dissent from its ultimate holding and its interpretation of A.R.S. § 13-604(V)(1).