State v. Bernal

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

STEVEN BERNAL, Appellant.

No. 1 CA-CR 18-0441
FILED 2-26-2019

Appeal from the Superior Court in Maricopa County
No. CR2017-002543-002
The Honorable Monica S. Garfinkel, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By William Scott Simon
Counsel for Appellee

Maricopa County Legal Defender’s Office, Phoenix
By Cynthia Dawn Beck
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Kent E. Cattani joined.

M c M U R D I E, Judge:

¶1 Steven Bernal appeals his conviction of sale or transportation
of dangerous drugs, a Class 2 felony, and the resulting sentence. Bernal’s
counsel filed a brief in accordance with Anders v. California, 386 U.S. 738
(1967), and State v. Leon, 104 Ariz. 297 (1969), certifying that, after a diligent
search of the record, she found no arguable question of law that was not
frivolous. Counsel asks this court to search the record for arguable issues.
See Penson v. Ohio, 488 U.S. 75 (1988); State v. Clark, 196 Ariz. 530, 537, ¶ 30
(App. 1999). Bernal was given the opportunity to file a supplemental brief,
and raised the following issues: (1) the superior court judge lacked
statutory and constitutional authority to hear the case, and the labeling of
her as a commissioner created an unreliable record on appeal; (2) the court
erred by dismissing his motion under Arizona Rule of Criminal Procedure
20; and (3) the court erred by instructing the jury that methamphetamine is
a dangerous drug. 1 After reviewing the record, we affirm Bernal’s
conviction and sentence.

FACTS AND PROCEDURAL BACKGROUND

¶2 On October 17, 2016, Sergeant Ron Elcock of the Tempe Police
Department began undercover surveillance near the Pride gas station in
Tempe. At the same time, undercover officer Joseph Manchak provided
cover across the street. Both officers observed Bernal and another
individual, Patrick Johnson, standing at the gas station with a bicycle. Elcok
approached Bernal. Bernal told Elcock that he was selling the bicycle, and
Elcock mentioned he knew someone who might be interested in purchasing
the bike. To facilitate the purchase, Elcock and Bernal exchanged numbers.
At this time, Johnson offered to sell Elcock a small amount of

1 Bernal also filed motions for “reconsideration to proceed in
self-representation on appeal” and “for a finding of state confession of
error.” For the reasons stated in this court’s order dated December 7, 2018,
we deny these motions.

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methamphetamine. Bernal told Elcock that the methamphetamine was
“fire,” and Elcock purchased the methamphetamine.

¶3 Later that evening, Bernal reached out to Elcock via text
message. Elcock and Bernal also spoke on the phone to discuss two things:
the potential buyer of the bike and purchasing methamphetamine. Bernal
was reluctant to talk on the phone regarding the methamphetamine but
arranged for the two to meet up at a Circle K in Tempe. At the meetup,
Manchak, the interested buyer, tested the bicycle and Elcock discussed the
methamphetamine purchase with Bernal. Elcock indicated he would buy
one-eighth of an ounce of methamphetamine for $150. Bernal rebuffed this
offer, but the two ultimately negotiated a price of $200. The
methamphetamine was not available at that time, so Bernal told Elcock to
come back to the Circle K later.

¶4 Later, after a brief text message conversation regarding the
timing of the pickup, Elcock and Manchak returned to the Circle K to meet
Bernal. When the two detectives arrived, both Bernal and Johnson were
there. Elcock purchased the methamphetamine from Johnson, while Bernal
stood near the door of the Circle K.

¶5 Elcock then returned to the police station, searched Bernal’s
phone number on Facebook, and identified Bernal. The purchased drug
tested positive for methamphetamine after an initial test by Elcock. Elcock
then sent the methamphetamine to a Department of Public Safety (“DPS”)
laboratory for further testing, which confirmed that the substance was 3.45
grams of methamphetamine.

¶6 The State charged Bernal with one count of sale or
transportation of dangerous drugs. At trial, Elcock testified to his
encounters with Bernal, and Manchak testified to his observations. At the
close of the State’s presentation of evidence, Bernal moved for acquittal
under Arizona Rule of Criminal Procedure 20. The superior court found
sufficient evidence to support a guilty verdict.

¶7 At the close of the three-day trial, the jury found Bernal guilty
of one count of sale or transportation of dangerous drugs. After the trial,
the defense opposed the imposition of flat-time sentencing. At the
sentencing hearing, the court heard evidence regarding Bernal’s prior
felony convictions and oral argument on the issue of flat-time sentencing.
The court found Bernal had prior felony convictions and a flat-time
sentence was proper. Subsequently, the court imposed a 14-year prison

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sentence with 60 days’ presentence incarceration credit. Bernal timely
appealed.

DISCUSSION

¶8 We have read and considered counsel’s brief, as well as
Bernal’s supplemental brief, and have reviewed the record for any arguable
issues. See Leon, 104 Ariz. at 300. We find none.

¶9 In his supplemental brief, Bernal argues: (1) the superior court
judge lacked constitutional and statutory authority to hear his case which
resulted in an unreliable record for appeal; (2) the court erred by denying
his Rule 20 motion at trial; and (3) the court erred by instructing the jury
that methamphetamine is a dangerous drug.

A. The Superior Court Judge Had Authority to Hear the Trial and
Labeling the Judge as a Commissioner Was Not an Error.

¶10 Bernal argues that because the judge who presided over his
trial was a commissioner, she lacked the authority to oversee and conduct
a jury trial, decide a Rule 20 motion, and administer all parts of the
sentencing in his case under Arizona Supreme Court Rule 96(a)(11). We
disagree.

¶11 Here, the judge who presided over Bernal’s trial and
sentencing was appointed as a pro tempore judge in accordance with
Arizona Revised Statutes (“A.R.S.”) section 12-141. See Maricopa County
Bd. of Supervisors, Formal Meeting Minutes 16 (March 21, 2018),
http://maricopa.siretechnologies.com/sirepubtest/cache/2/0dddwieqfv
qruqllsecwzx5r/338002142019030649612.pdf. As a judge pro tempore, she
had the same authority as a regularly seated superior court judge. See Ariz.
Const. art. 6, § 31(B); A.R.S. § 12-144(D); State v. White, 160 Ariz. 24, 32
(1989).

¶12 Next, Bernal argues labeling the judge a commissioner creates
an unreliable record on appeal. Labeling the judge a commissioner does not
violate A.R.S. § 12-223(B) (requiring the court reporter, upon request, to
“certify that [the] transcript is a correct and complete statement of [the]
proceedings”) and does not create any arguable issue of law.

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B. The Superior Court Did Not Erroneously Deny Bernal’s Rule 20
Motion.

¶13 We review the superior court’s ruling on a Rule 20 motion de
novo. State v. Florez, 241 Ariz. 121, 124, ¶ 7 (App. 2016). “[T]he relevant
question is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” State v. West, 226 Ariz.
559, 562, ¶ 16 (2011) (quoting State v. Mathers, 165 Ariz. 64, 66 (1990)). A
Rule 20 motion should only be granted if “there is no substantial evidence
to support a conviction.” Ariz. R. Crim. P. 20(a)(1). “‘Substantial Evidence’
under Rule 20 is ‘such proof that reasonable persons could accept as
adequate and sufficient to support a conclusion of defendant’s guilt beyond
a reasonable doubt.’” Florez, 241 Ariz. at 124, ¶ 7 (quoting Mathers, 165 Ariz.
at 67).

¶14 Bernal argues that the court erred by denying his Rule 20
motion because both officers testified that he did not personally sell the
methamphetamine. Under A.R.S. § 13-303(A)(3), “[a] person is criminally
accountable for the conduct of another if . . . [t]he person is an accomplice
of such other person in the commission of an offense.” The jury was
properly instructed on accomplice liability.

¶15 Based on the facts before us, we find substantial evidence
supports the jury’s verdict. Both officers testified that Bernal was present
during the sale of the methamphetamine. Elcock testified to and a recording
was played of Bernal negotiating the purchase price of the
methamphetamine. Further, Elcock and a DPS expert testified that the sold
substance tested positive for methamphetamine. The superior court did not
err by denying Bernal’s Rule 20 motion.

C. The Jury Instruction Does Not Create an Arguable Issue.

¶16 Bernal argues that the superior court erred by instructing the
jury that methamphetamine is a dangerous drug, an element of the charged
offense. A dangerous drug is defined by statute and includes
methamphetamine. A.R.S. § 13-3401(6)(c)(xxxviii). Therefore, the
legislature has determined that it is a dangerous drug. See State v. Light, 175
Ariz. 62, 63–64 (App. 1993) (finding the state need not prove that
methamphetamine is a dangerous drug because the legislature has already
made that determination). The court did not err by stating
methamphetamine is a dangerous drug.

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¶17 Bernal was present and represented by counsel at all stages of
the proceedings against him. The record reflects the superior court afforded
Bernal all of his constitutional and statutory rights, and the proceedings
were conducted in accordance with the Arizona Rules of Criminal
Procedure. The court conducted appropriate pretrial hearings, and the
evidence presented at trial and summarized above was sufficient to support
the jury’s verdict. Bernal’s sentence falls within the range prescribed by law,
with proper credit given for presentence incarceration.

CONCLUSION

¶18 We affirm Bernal’s conviction and sentence. After the filing of
this decision, defense counsel’s obligations about Bernal’s representation in
this appeal will end after informing Bernal of the outcome of this appeal
and his future options, unless counsel’s review reveals an issue appropriate
for submission to the Arizona Supreme Court by petition for review. See
State v. Shattuck, 140 Ariz. 582, 584–85 (1984).

AMY M. WOOD • Clerk of the Court
FILED: AA

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