                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

            LUIS RAUL CARDONA RODRIGUEZ, Appellant.

                             No. 1 CA-CR 14-0197
                               FILED 4-14-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-438080-001
              The Honorable Jeffrey Rueter, Judge Pro Tem

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa Office of the Legal Advocate, Phoenix
By Frances J. Gray
Counsel for Appellant
                    STATE v. CARDONA RODRIGUEZ
                          Decision of the Court



                       MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Peter B. Swann joined.


W I N T H R O P, Judge:

¶1            Luis Raul Cardona Rodriguez (“Appellant”) appeals his
conviction and sentence for aggravated assault, arguing the trial court
committed fundamental, reversible error by not sua sponte instructing the
jury on the use of force in crime prevention as a possible justification for his
actions. See Ariz. Rev. Stat. (“A.R.S.”) § 13-411 (West 2015).1 For the reasons
set forth below, we affirm.

                 FACTS AND PROCEDURAL HISTORY2

¶2            On August 20, 2013, a grand jury issued an indictment,
charging Appellant with aggravated assault, a class three dangerous felony
in violation of A.R.S. §§ 13-1203 and 13-1204. The State alleged Appellant
had used a shovel to physically injure the victim, and the offense was
dangerous because it involved the use of “a deadly weapon or dangerous
instrument and/or the intentional or knowing infliction of serious physical
injury upon [the victim].” The State later alleged Appellant had one non-
dangerous historical prior felony conviction, and also alleged the presence
of several aggravating circumstances.

¶3           At trial, the State presented the following evidence: In August
2013, C.D. and J.D. lived in a house at the front of a lot, and the victim lived
in a house in the back. Appellant would often pass by the houses and
request change or a glass of water.

¶4          On the evening of August 9, the victim washed his car and
was about to clean the car’s windows when Appellant approached and


1     We cite the current version of the statutes unless changes material to
our decision have occurred since the date of the crime.

2     We view the facts in the light most favorable to sustaining the verdict
and resolve all reasonable inferences against Appellant. See State v. Nihiser,
191 Ariz. 199, 201, 953 P.2d 1252, 1254 (App. 1997).


                                       2
                   STATE v. CARDONA RODRIGUEZ
                         Decision of the Court

offered to clean the windows in exchange for food. After Appellant cleaned
the windows, the victim drove Appellant and a neighbor to a nearby
restaurant and purchased dinner for the group. Appellant said he would
return the next day to wash the victim’s truck.

¶5            The next day, the victim began some work on his driveway
when his neighbor, J.D., came outside and said, “Why don’t you leave that?
Today is a day to rest.” The two men sat in the driveway and began
drinking; J.D. drank a bottle of whiskey, and the victim drank beer and
shots of Tequila.3 At some point, the victim went into his house and
brought out a small kitchen knife to cut some lemons or limes for his drinks.
Sometime between 3:00 and 5:00 p.m. – long after the victim and J.D. had
begun drinking – Appellant came by and requested a beer. The victim gave
Appellant a beer, but stated he no longer wanted Appellant to wash his
truck that day because it was late in the afternoon and he “didn’t really feel
like pulling out the hose and the soap and all of that.”

¶6             Later that evening, the victim entered his house to use the
bathroom and, when he came out, Appellant and J.D. were arguing. J.D.
threatened “to whop [Appellant’s] ass.” Appellant picked up the kitchen
knife the victim had been using, and J.D. brandished a knife he carried with
him. The victim stood between them, told J.D. to “calm down,” and asked
Appellant to leave. J.D. agreed to “let it go” and, according to the victim,
Appellant left.4

¶7            The victim and J.D. continued drinking for another couple of
hours, until it was “pretty late,” before they went into their respective
houses. J.D. eventually went to bed and fell asleep.

¶8            Approximately an hour and a half after he went into his
house, the victim was on his cellphone talking to an ex-girlfriend, when he
looked out the window and noticed his gate was open. He advised his ex-
girlfriend he would call her back and went outside to close the gate.

¶9           Appellant was lurking next to the victim’s car in the driveway
and accosted the victim. Appellant demanded money, but the victim
refused because he had no money. The victim’s cell phone rang, and as he


3      Another neighbor briefly joined J.D. and the victim, but then left for
a family party.

4     J.D. testified Appellant continued to “hang around” for at least a
couple of hours after being told to leave.


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                    STATE v. CARDONA RODRIGUEZ
                          Decision of the Court

turned and answered the phone, Appellant struck the side of his head with
a shovel. The victim dropped his cell phone and fell to the ground.
Appellant exclaimed, “You fucking dog. You called the police,” and struck
the victim on the nose with the shovel. As Appellant repeatedly struck him
with the shovel, the victim attempted to pull himself up by the car’s door
handle, but Appellant would not let him get up, shouting, “Die[,] you
fucking dog.” The victim yelled for J.D., but Appellant threatened, “Don’t
call anyone, you fucking dog.” Appellant hit the victim in the face with the
shovel and pushed the shovel into the victim’s mouth, chipping a tooth and
knocking out one of the victim’s back teeth.

¶10            Meanwhile, C.D. had been awakened by a scraping noise on
the side of her house, and she went outside to investigate. As she went out
the front door, she heard the victim crying out for J.D., and saw Appellant
hitting the victim in the head with a shovel. Appellant saw C.D., dropped
the shovel, and ran. C.D. ran to the victim, saw blood on him, and began
screaming. J.D. was awakened by C.D.’s screams, went outside, saw the
victim lying on the ground and bleeding profusely, and also began
screaming. C.D. called 911.

¶11           Phoenix police officers arrived a few minutes later. Sergeant
Miaso arrived first and observed J.D. standing in the street flailing his arms
around and yelling. Officer Roberts also arrived and observed that the
victim’s face and shirt were “all bloody.” The victim sat on the sidewalk
and explained to Officer Roberts that someone named Luis had asked him
for money and then hit him with a shovel. The victim also kept repeating,
“He tried to kill me.”

¶12          Sergeant Miaso observed a truck parked in front of a car in
the driveway, and a trail of blood to the south of the vehicles. A “square
mouth shovel that had blood on the end of it, on the shovel part of it” was
on the ground near the vehicles, and there was a substantial amount of
blood on the ground and on the side of the car. Officers searching the area
found no other weapons of any kind.

¶13             Paramedics arrived and treated the victim, who was bloody
and had significant head injuries. The victim had a severe laceration to the
left side of his head at least three inches long; an inch-and-a-half laceration
across the bridge of his nose, “almost as if his nose was cut in half”; and a
three-inch laceration to his left ear, such that the ear was “pretty much split
off” and cut “in half.” He also had lacerations to his left shoulder, his right
chest, and across his stomach, and cuts and contusions to his back. After




                                      4
                   STATE v. CARDONA RODRIGUEZ
                         Decision of the Court

treating the victim’s wounds, the paramedics transported him to the
hospital.

¶14           While other police officers were responding to the scene of the
crime, Officer Werner had obtained a description of the suspect and his last
known direction of travel. As Officer Werner drove in that direction in a
marked police vehicle, he observed a person matching the description of
the suspect turn west onto Brill Street. Officer Werner turned onto the street
and saw the person, later determined to be Appellant, walking in a dirt area
between a wall and the sidewalk. Officer Werner shined his spotlight on
Appellant, drove to within fifteen to twenty feet of him, and got out of his
vehicle. Officer Werner, who was wearing his police uniform, identified
himself as a Phoenix police officer, and told Appellant to come toward him.
Appellant glanced in Officer Werner’s direction, turned, and attempted to
scale the wall, but was unable to do so despite repeated attempts. Officer
Werner continued giving commands, which Appellant ignored.

¶15            Appellant eventually dropped down from the wall and began
running westbound along the sidewalk. Officer Werner got back in his
patrol vehicle, activated the emergency lights, illuminated Appellant with
his spotlight, and pursued Appellant while radioing other police units in
the area. The officer also lowered his windows, continued to shout
commands, and utilized the “yelp” horn on his patrol vehicle, but
Appellant kept running. As Appellant continued to run, the height of the
nearby wall decreased from approximately eight to ten feet to only three to
four feet, and Appellant jumped the wall, into a residential backyard.
Officer Werner exited his patrol vehicle and chased Appellant, repeatedly
identifying himself as a Phoenix police officer, and commanding Appellant
to stop running.5

¶16          Appellant continued to flee, however, and eventually reached
the back porch of a residence, where he attempted to open a set of double
doors. Unable to do so, and with Officer Werner closing in on him,
Appellant sat down on a nearby couch. Officer Werner held Appellant at
gunpoint until other officers arrived, then arrested him.6 Appellant had no
injuries.



5     Officer Werner testified that, in his opinion, Appellant’s conduct
suggested he knew he was being chased by a police officer.

6      Appellant was arrested at 1:03 a.m.



                                      5
                   STATE v. CARDONA RODRIGUEZ
                         Decision of the Court

¶17           Appellant elected to testify in his defense, and his account of
the events differed significantly from that of the other witnesses. He stated
he had lived in the neighborhood for more than ten years, and would often
do odd jobs for the victim at the victim’s request.7 Appellant testified that,
at approximately 7:00 p.m. on August 10, as he walked past the victim’s
house, the victim requested he help wash the victim’s truck, and he agreed
to do so. Over the next hour-and-a-half to two hours, Appellant cleaned
the windows on the victim’s truck and car, drank some beer offered to him
by the victim, and then waited to be paid for the work.

¶18          Appellant asserted the altercation began when J.D. began
insulting and yelling at him, and then pulled out a dagger or knife.8
Appellant became scared and asked the victim for help, but the victim
ignored him. Appellant tried to leave, but J.D. grabbed his hand, pulled
him down onto a plastic chair, and threatened to kill him if he moved. The
victim, who had been standing there the whole time, suddenly produced a
sharp, two-foot machete, put it against the left side of Appellant’s neck, and
asked, “[W]hat do you think about this?”9

¶19           Appellant further testified the victim and J.D. threatened him
for approximately thirty to forty-five minutes, until the victim’s phone
rang. The victim walked a couple feet away to talk, and J.D. simply went
home without explanation. When asked why he didn’t “just leave” at that
point, Appellant answered, “Because I couldn’t think and [the victim] has
other weapons and he could shoot me, and I feared for my life at that time.”
Appellant then saw a shovel leaning against a wall approximately three or
four feet away, grabbed the shovel, and struck the victim once in the chest
with it “[s]o he would faint so I could run away and save my life.” The
victim, however, did not fall to the ground; instead, he dropped his cell
phone and the machete, and grabbed the metal portion of the shovel.
Appellant and the victim struggled for it briefly before the victim called for

7     Nevertheless, Appellant testified the victim had previously
physically assaulted him.

8      Appellant initially testified he had never had any previous problem
with J.D. Later, in answering a juror question, he stated J.D. had been
aggressive toward him on approximately three previous occasions.

9      Appellant claimed he thought it was his “last moment” and he
“couldn’t do anything,” in part because he has “a very delicate hernia” near
his “private parts,” which “would make being hit particularly bad.”



                                      6
                    STATE v. CARDONA RODRIGUEZ
                          Decision of the Court

J.D. C.D. and J.D. shouted at Appellant, who released the shovel, opened
the nearby gate, and began running in an effort to save his life.

¶20           Appellant claimed he ran when Officer Werner drove up next
to him because he didn’t realize Werner was a police officer. Appellant
denied hearing the officer shouting “stop, Phoenix police,” hearing a siren
or horn blowing, or seeing the vehicle’s red and white flashing lights. When
asked if he remembered running and trying to enter a house through a
sliding door, Appellant answered, “It’s my kid’s house and I knocked on
the door so that I could go in and tell him what happened and to call the
police.”10

¶21            The parties agreed on final jury instructions and verdict
forms, which included defense counsel’s proffered instruction regarding
justification for self-defense. The court was not requested to and did not
instruct the jury regarding use of force in crime prevention.

¶22           The jury found Appellant guilty as charged, including finding
the offense was dangerous. After finding Appellant had one historical prior
felony conviction, the trial court sentenced him to a presumptive term of
7.5 years’ imprisonment, with credit for 215 days of presentence
incarceration. This court has jurisdiction over Appellant’s timely appeal.
See Ariz. Const. art. 6, § 9; A.R.S. §§ 12-120.21(A)(1), 13-4031, 13-4033(A).

                                 ANALYSIS

¶23           Appellant maintains the evidence presented supported a jury
instruction on the use of force in crime prevention, see A.R.S. § 13-411, and
argues the trial court committed fundamental, reversible error by failing to
provide such an instruction. We disagree.

¶24           Appellant did not raise this issue before the trial court;
accordingly, we review it only for fundamental error. See State v. Henderson,
210 Ariz. 561, 567-69, ¶¶ 19-26, 115 P.3d 601, 607-09 (2005); see also Ariz. R.
Crim. P. 21.3(c) (providing that the failure to distinctly object to a court’s
giving or failing to give an instruction waives any objection thereto on
appeal). To prevail under this standard of review, Appellant bears the
burden of proving that error occurred, the error was fundamental, and the
error caused him prejudice. See Henderson, 210 Ariz. at 567-69, ¶¶ 19-26, 115
P.3d at 607-09.



10     Appellant also admitted having a prior felony conviction.


                                      7
                    STATE v. CARDONA RODRIGUEZ
                          Decision of the Court

¶25            “[A] trial court has a duty to instruct on the law relating to the
facts of the case when the matter is vital to a proper consideration of the
evidence, even if not requested by the defense and failure to do so
constitutes fundamental error.” State v. Avila, 147 Ariz. 330, 337, 710 P.2d
440, 447 (1985) (citations omitted). To establish fundamental error,
Appellant must show the error complained of goes to the foundation of his
case, takes away a right essential to his defense, and is of such magnitude
that he could not have received a fair trial. Henderson, 210 Ariz. at 567-68,
¶¶ 19, 24, 115 P.3d at 607-08 (citations omitted).

¶26           Even assuming arguendo the trial court erred in not giving a
crime prevention instruction, Appellant fails to carry his burden of proving
fundamental error under the facts and circumstances of this case.
Appellant defended solely on the ground that he feared for his life and
struck the victim with the shovel in self-defense. He did not specifically
notice crime prevention as a defense, and his counsel made clear
throughout trial, including in opening and closing arguments, that
Appellant’s sole defense was self-defense. Furthermore, the jurors were
instructed:

               The use of physical force or deadly physical force is
       justified if a reasonable person in the situation would have
       reasonably believed that immediate physical danger appeared to
       be present. Actual danger is not necessary to justify the use of
       physical force or deadly physical force in self-defense.

(Emphasis added.) See generally A.R.S. §§ 13-404, -405. If the jurors had
believed Appellant’s testimony, they would have necessarily concluded he
faced an immediate threat of physical danger. Appellant testified J.D.
pulled out a foot-long “dagger” or knife approximately two to three inches
wide with a blade on both sides, forced Appellant down onto a chair, held
the dagger up to him, and “swore to God he would kill [Appellant]” if he
tried anything. Appellant claimed the victim then put a sharp, two-foot
long machete against Appellant’s neck. Appellant told jurors, “I thought it
was my last moment. I was scared. I couldn’t do anything.” The victim
“was to my left and [J.D.] was to my right.” According to Appellant, even
after the victim answered his cell phone and J.D. simply went home, the
victim was still armed with the machete, and Appellant grabbed the shovel
and struck the victim once in the chest because he “feared for [his] life at
that time.” Appellant concluded his testimony by telling the jurors, “To
save my life I did what I had to do.” If the jury believed Appellant’s account
of the events, they would have acquitted him under either the self-defense
or the crime prevention justification statute. See A.R.S. §§ 13-404, -411.


                                       8
                    STATE v. CARDONA RODRIGUEZ
                          Decision of the Court

Under the specific facts and circumstances of this case, any distinctions in
the statutes are irrelevant. Thus, not giving a crime prevention justification
instruction did not hamper Appellant’s defense or go to the foundation of
his case. See Henderson, 210 Ariz. at 567-68, ¶¶ 19, 24, 115 P.3d at 607-08
(citations omitted).

¶27            Appellant also fails to carry his burden of proving he was
prejudiced. See Henderson, 210 Ariz. at 568–69, ¶ 26, 115 P.3d at 608–09.
Prejudice results when an appellant shows there is a reasonable probability
under the facts of the case that the verdict might have been different had
the error not been committed. State v. Brady, 105 Ariz. 190, 196, 461 P.2d
488, 494 (1969). Appellant may not rely on mere speculation to demonstrate
prejudice. See State v. Munninger, 213 Ariz. 393, 397, ¶ 14, 142 P.3d 701, 705
(App. 2006); see also State v. Lowery, 230 Ariz. 536, 540, ¶ 9, 287 P.3d 830, 834
(App. 2012) (recognizing that, if a defendant fails to object to an alleged
error at trial, he must affirmatively show prejudice, not merely that the
error may have contributed to the verdict).

¶28           In this case, the jury rejected Appellant’s testimony, and it
would be speculative and inconsistent to conclude the jury could have
found the State proved beyond a reasonable doubt that Appellant was not
justified in defending himself with the shovel against the victim’s
threatened use of the machete, see A.R.S. § 13-404, but could have
nevertheless found the State failed to prove beyond a reasonable doubt that
Appellant was not justified in striking the victim with the shovel to prevent
a further aggravated assault or kidnapping. See A.R.S. § 13-411(A).
Moreover, Appellant’s testimony was internally inconsistent and failed to
account for at least two to three hours from the time he was allegedly
kidnapped until he struck the victim with the shovel. Finally, Appellant’s
testimony was controverted by his own actions (fleeing from Officer
Werner), the testimony of the victim and the other witnesses, and the
physical evidence (including that no weapons were found at the scene and
the victim’s numerous and severe injuries, despite Appellant’s testimony
that he only struck the victim once). The jury clearly rejected Appellant’s
testimony, and Appellant has not shown a reasonable probability the
verdict might have been different had the trial court given a crime
prevention justification instruction. Therefore, Appellant fails to carry his
burden of proving he was prejudiced by the alleged error. See Lowery, 230




                                       9
                   STATE v. CARDONA RODRIGUEZ
                         Decision of the Court

Ariz. at 540, ¶ 9, 287 P.3d at 834; Munninger, 213 Ariz. at 397–98, ¶¶ 14–15,
142 P.3d at 705–06.11

                              CONCLUSION

¶29          The trial court did not commit fundamental, reversible error
in not providing the jury with a crime prevention justification instruction.
Appellant’s conviction and sentence are affirmed.




                               :ama




11     Because we affirm on the aforementioned bases, we do not address
the State’s argument that the self-defense and crime prevention justification
defenses are now coterminous by implication because residual distinctions
between the defenses no longer exist.


                                      10
