State v. Becerra

• Decision Date: 10 January 2013
• Docket Number: No. 2 CA–CR 2012–0063.,2 CA–CR 2012–0063.
• Citation: 231 Ariz. 200,651 Ariz. Adv. Rep. 22,291 P.3d 994
• Parties: The STATE of Arizona, Appellee, v. Guillermo C. BECERRA, Appellant.
• Court: Arizona Court of Appeals

231 Ariz. 200

291 P.3d 994

651 Ariz. Adv. Rep. 22

The STATE of Arizona, Appellee,

v.Guillermo C. BECERRA, Appellant.

No. 2 CA–CR 2012–0063.

Court of Appeals of Arizona, Division 2, Department B.

Jan. 10, 2013.

Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Joseph T. Maziarz, and David A. Sullivan, Tucson, Attorneys for Appellee.

Harriette P. Levitt, Tucson, Attorney for Appellant.

OPINION

KELLY, Judge.

¶ 1 Guillermo Becerra appeals from his convictions and sentences for one felony count of aggravated driving with a prohibited drug in his body and one misdemeanor count of driving with a prohibited drug in his body. He argues the trial court erred by denying his motion to suppress, he was denied his constitutional right to a jury trial, and the combined convictions and sentences violate his double jeopardy rights. We conclude the court did not err in denying Becerra's motion to suppress, but vacate his convictions and sentences and remand for a new trial.

Factual and Procedural Background

¶ 2 We view the facts in the light most favorable to upholding Becerra's convictions and sentences. See State v. Francis, 224 Ariz. 369, ¶ 2, 231 P.3d 373, 374 (App.2010). Around 9:00 one evening, Graham County Sheriff's Deputy Jacob Carpenter pulled over the vehicle Becerra was driving after he noticed the right taillight was not working. Based on observations that suggested Becerra was under the influence of a stimulant, Carpenter administered field sobriety tests and ultimately arrested him. Becerra was charged with driving while under the influence of an intoxicant (DUI), aggravated DUI, driving with a prohibited drug in his body, and aggravated driving with a prohibited drug in his body.

¶ 3 Becerra filed a motion to suppress evidence, arguing the stop of his vehicle was illegal. The trial court denied the motion after a hearing. Following a two-day bench trial, the court found Becerra guilty of driving with a prohibited drug in his body and aggravated driving with a prohibited drug in his body, and not guilty of the other DUI charges. The court suspended imposition of sentence, placed Becerra on concurrent four-year and three-year terms of supervised probation, and imposed six-month and ten-day prison terms as a condition of probation. This appeal followed.

Discussion

Motion to Suppress

¶ 4 Becerra first argues the trial court erred by denying his motion to suppress because the initial stop of his vehicle was illegal. We review the court's denial of a motion to suppress for an abuse of discretion. State v. Gay, 214 Ariz. 214, ¶ 30, 150 P.3d 787, 796 (App.2007). We consider only the evidence presented at the suppression hearing, and view it in the light most favorable to upholding the court's ruling. Id.

¶ 5 “An investigatory stop of a vehicle constitutes a seizure under the Fourth Amendment,” State v. Fornof, 218 Ariz. 74, ¶ 5, 179 P.3d 954, 956 (App.2008), and is permissible only if the officer has reasonable suspicion of criminal activity, State v. Teagle, 217 Ariz. 17, ¶ 20, 170 P.3d 266, 271–72 (App.2007). Becerra maintains Carpenter testified “the only reason” he had stopped Becerra's vehicle “was that the right taillight was inoperable.” He argues a broken tail lamp does not provide reasonable suspicion of criminal activity to justify an investigatory stop because the relevant statute regulating vehicle safety, A.R.S. § 28–925, requires only that one tail lamp function properly.

¶ 6 Becerra contends State v. Fikes, 228 Ariz. 389, 267 P.3d 1181 (App.2011) is dispositive of this issue. In Fikes, an officer observed that one of three brake lights on the defendant's vehicle was not working and stopped him for violating A.R.S. § 28–939. 228 Ariz. 389, ¶ 2, 267 P.3d at 1182.Section 28–939(B)(1) provides that stop lamps shall be “maintained at all times in good working condition.” The court concluded § 28–939 required only one stop lamp be maintained, based on the statute's language and context. Id. ¶¶ 7, 11. For that reason, the officer had lacked reasonable suspicion to stop the defendant's vehicle based on a violation of the statute. Id. ¶ 16.

¶ 7 The relevant statute in this case, § 28–925, is similar to that discussed in Fikes; it requires vehicles to be equipped with “at least one tail lamp.” § 28–925(A). Therefore, Fikes would suggest that stopping a driver solely to investigate a suspected violation of § 28–925 would be improper if at least one other tail lamp was working. However, the state argues this case is not controlled by the narrow holding of Fikes because Carpenter provided additional reasons for stopping Becerra's vehicle based on public safety concerns. We agree.

¶ 8 As the trial court noted, A.R.S. § 28–982 provides an officer may stop a vehicle “any time there is reasonable cause to believe that a vehicle is unsafe” in order to issue a written notice to the driver. And A.R.S. § 28–921 provides a person shall not drive a vehicle “in an unsafe condition that endangers a person.” Moreover, police officers frequently engage in “community caretaking functions” involving vehicle stops that are “totally divorced from” criminal investigations. Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). Evidence discovered without a warrant is admissible under the “community caretaker” doctrine if the intrusion is reasonable. State v. Mendoza–Ruiz, 225 Ariz. 473, ¶ 8, 240 P.3d 1235, 1237 (App.2010); State v. Organ, 225 Ariz. 43, ¶¶ 14–18, 234 P.3d 611, 615 (App.2010) (stop of vehicle proper as community caretaking function when reasonable to believe vehicle having trouble); see also State v. Harrison, 111 Ariz. 508, 509, 533 P.2d 1143, 1144 (1975) (proper exercise of police power to stop vehicle for public safety reasons because tire “bouncing”).

¶ 9 In Fikes, the officer “did not testify that he was motivated by public safety or community welfare.” 228 Ariz. 389, ¶ 15, 267 P.3d at 1184. And “nothing in the record indicate[d] any other driver was or could have been confused.” Id. ¶ 15. For those reasons, we explicitly declined to address in Fikes whether the stop may have been permissible “under a public-safety or community-welfare exception.” Id.

¶ 10 In this case, however, Carpenter testified that one reason he decided to stop the vehicle was that “it caused a danger to other vehicles on the road.” He was concerned another vehicle approaching from the rear would not be able to perceive accurately the vehicle's position and could “collide with it.” In its ruling on the motion, the trial court found Carpenter's stop of the vehicle justified because it “was being operated in an unsafe condition.” The reasonableness of an officer's response is a question of fact left to a trial court's discretion, Organ, 225 Ariz. 43, ¶ 16, 234 P.3d at 615, and Carpenter's testimony supports the court's conclusion that the stop was justified by considerations of public safety and did not violate the Fourth Amendment.¹Mendoza–Ruiz, 225 Ariz. 473, ¶ 8, 240 P.3d at 1237.

¶ 11 The record supports the trial court's conclusion that the stop of Becerra's vehicle was reasonable and Becerra does not dispute the constitutionality of any further investigation that occurred after the vehicle had been stopped. Therefore, the court did not abuse its discretion by denying Becerra's motion to suppress evidence. Gay, 214 Ariz. 214, ¶ 30, 150 P.3d at 796.

Waiver of Jury Trial

¶ 12 Becerra argues his state constitutional right to a jury trial was violated as a result of an invalid waiver. SeeAriz. Const. art. 2, §§ 23, 24. A defendant's waiver of his or her right to a jury trial must be knowing, voluntary, and intelligent. State v. Innes, 227 Ariz. 545, ¶ 5, 260 P.3d 1110, 1111 (App.2011). To be valid, the defendant must “manifest[ ] an intentional relinquishment or abandonment” of the right, id, and must “understand that the facts of the case will be determined by a judge and not a jury,” State v. Conroy, 168 Ariz. 373, 376, 814 P.2d 330, 333 (1991). The failure to obtain a defendant's waiver of his or her right to a jury trial constitutes structural error. Innes, 227 Ariz. 545, ¶ 9, 260 P.3d at 1112.

¶ 13 Rule 18.1(b), Ariz. R.Crim. P., protects a defendant's right to a jury trial by providing:

The defendant may waive the right to trial by jury with consent of the prosecution and the court....

(1) Voluntariness. Before accepting a waiver the court shall address the defendant personally, advise the defendant of the right to a jury trial and ascertain that the waiver is knowing, voluntary, and intelligent.

(2) Form of Waiver. A waiver of jury trial under this rule shall be made in writing or in open court on the record.

See alsoA.R.S. § 13–3983.

¶ 14 Becerra argues his convictions must be reversed because nothing in the record demonstrates he knowingly, intelligently, and voluntarily waived his right to a jury trial. During a pretrial status conference, the trial court asked whether Becerra desired to waive his right to a jury trial. Counsel replied that he “ha[d]n't talked about it with [Becerra], but ... could do so right now and see if he's willing to waive a jury.” After an off-the-record discussion, counsel stated: “my client indicates he'd be willing to waive a jury.” The court then vacated the jury trial and set the matter for a bench trial.

¶ 15 The record does not show a valid waiver and “[w]e cannot presume a valid waiver of a jury right based on a silent record” where the trial court has failed to address the defendant personally. State v. Baker, 217 Ariz. 118, ¶ 8, 170 P.3d 727, 729 (App.2007). The state concedes Becerra's waiver did not meet the requirements of Rule 18.1(b), but urges us to remand “for the limited purpose of determining whether he was sufficiently aware of his jury trial rights.” It contends a “proper colloquy between Appellant and the trial court will allow the trial court—and, upon appeal, this Court—to determine whether [Becerra]'s waiver was made knowingly,...