IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION TWO

THE STATE OF ARIZONA,

Appellee,

v.

GUILLERMO C. BECERRA,

Appellant.

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2 CA-CR 2012-0063

DEPARTMENT B

O P I N I O N

APPEAL FROM THE SUPERIOR COURT OF GRAHAM COUNTY

Cause No. CR2008191

Honorable C. Robert Pursley, Judge Pro Tempore

Honorable R. Douglas Holt, Judge

VACATED AND REMANDED

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

K E L L Y, Judge.

FILED BY CLERK

COURT OF APPEALS

DIVISION TWO

JAN 10 2013
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¶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 
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charges. The court suspended imposition of sentence, placed Becerra on concurrent fouryear 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 
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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 (1973). Evidence discovered without a warrant is admissible under the 

“community caretaker” doctrine if the intrusion is reasonable. State v. Mendoza-Ruiz, 
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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 
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public safety and did not violate the Fourth Amendment.1 Mendoza-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. See Ariz. 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.

 

1Becerra argues the lights on his vehicle necessarily “compli[ed] with the standard 

of care for public safety” because they complied with the requirements of § 28-925(A). 

However, he has not supported his suggestion that law enforcement’s public safety 

function is limited to identifying statutory violations, and relevant case law suggests 

otherwise. See Mendoza-Ruiz, 225 Ariz. 473, ¶ 9, 240 P.3d at 1237 (community 

caretaking function includes “infinite variety of services” including “prevent[ing] 

potential hazards from materializing”).
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¶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 also A.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 
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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, voluntarily, and 

intelligently.”

¶16 We conclude instead the proper remedy for the error is to order a new trial. 

See Innes, 227 Ariz. 545, ¶ 9, 260 P.3d at 1112 (failure to obtain valid waiver of right to 

jury trial structural error requiring reversal and new trial); see also State v. Offing, 113 

Ariz. 287, 289, 551 P.2d 556, 558 (1976) (remanding for new trial); but see State v. Le 

Noble, 216 Ariz. 180, ¶ 20, 164 P.3d 686, 691 (App. 2007) (remanding for finding 

regarding validity of waiver). To order a new trial “is consistent with the majority of 

reported decisions in Arizona in which the trial record failed to show a proper jury trial 

waiver.” Baker, 217 Ariz. 118, ¶ 21, 170 P.3d at 731-32 (listing cases). 

¶17 Additionally, as discussed in Innes, practical difficulties would arise if we 

were to remand for the limited purpose of determining whether Becerra had waived his 

right to a jury trial. 227 Ariz. 545, ¶ 13, 260 P.3d at 1112. The record shows Becerra’s 

counsel had consulted with him only immediately before informing the trial court Becerra 

would waive his right to a jury. To ascertain whether Becerra had understood fully his 

rights based on that discussion “likely would require an impermissible inquiry into 

privileged communications between him and his counsel.” Id.

¶18 Becerra also contends the state may not retry him because jeopardy has 

attached. However, he fails to develop or provide any authority in support of this 
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argument. Therefore, it is waived on appeal. See State v. King, 226 Ariz. 253, ¶ 11, 245 

P.3d 938, 942 (App. 2011) (opening brief must present significant argument supported by 

authority); Ariz. R. Crim. P. 31.13(c)(1)(vi) (same). Moreover, we note that federal and 

state prohibitions on placing a defendant in double jeopardy generally do not bar retrial 

after a successful appeal unless the conviction is reversed on grounds of insufficient 

evidence. State v. Porras, 133 Ariz. 417, 419, 652 P.2d 156, 158 (App. 1982); see also

State v. Moody, 208 Ariz. 424, ¶ 26, 94 P.3d 1119, 1134 (2004) (original conviction 

nullified when case reversed for reason other than insufficient evidence). 

Lesser-Included Offense

¶19 Becerra also argues driving with a prohibited drug in the body is a lesserincluded offense of aggravated driving with a prohibited drug in the body and, therefore,

his combined convictions violate A.R.S. § 13-116 and constitutional prohibitions against 

double jeopardy. Although we have determined Becerra’s convictions and sentences 

must be vacated, we address this issue because it might recur on remand. See State v. 

May, 210 Ariz. 452, ¶ 1, 112 P.3d 39, 40 (App. 2005).

¶20 A defendant’s right not to be subjected to double jeopardy is violated if he 

is convicted of both a greater and lesser-included offense. State v. Welch, 198 Ariz. 554, 

¶¶ 6, 13, 12 P.3d 229, 230-31, 232 (App. 2000). An offense is lesser-included if it 

contains all but one of the elements of the greater offense. State v. Estrella, 230 Ariz. 

401, ¶ 17, 286 P.3d 150, 155 (App. 2012). A person commits driving with a prohibited 

drug in the body by operating a vehicle while any drug defined in A.R.S. § 13-3401 or its 
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metabolite is in his or her system. A.R.S. § 28-1381(A)(3). And a person commits 

aggravated driving with a prohibited drug in the body by committing the simple 

misdemeanor offense while his or her license is suspended. A.R.S. § 28-1383(A)(1). 

Should this issue recur on remand, Becerra would be entitled to a curative instruction as 

described in Merlina v. Jejna, 208 Ariz. 1, ¶ 18, 90 P.3d 202, 206 (App. 2004), and may 

not be convicted and sentenced on both counts. See Welch, 198 Ariz. 554, ¶ 13, 12 P.3d 

at 232.

Disposition

¶21 For the foregoing reasons, the trial court’s ruling on Becerra’s motion to 

suppress is upheld. We vacate his convictions and sentences and remand for a new trial.

/s/ Virginia C. Kelly 

VIRGINIA C. KELLY, Judge

CONCURRING:

/s/ Garye L. Vásquez 

GARYE L. VÁSQUEZ, Presiding Judge

/s/ Philip G. Espinosa 

PHILIP G. ESPINOSA, Judge