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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    JORGE LUIS CALDERON, Appellant.

                             No. 1 CA-CR 17-0412
                               FILED 8-28-2018


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201500883
                The Honorable Billy K. Sipe Jr., Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Nicholas Chapman-Hushek
Counsel for Appellee

Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
                          STATE v. CALDERON
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Lawrence F. Winthrop
joined.


M c M U R D I E, Judge:

¶1             Jorge Luis Calderon appeals his conviction and sentence for
aggravated driving a vehicle while under the influence of a drug (“DUI”).
He argues three reversible errors occurred during his trial. First, the
superior court erred by instructing the jury that notice of his license
suspension could be presumed upon mailing. Second, he claims there was
insufficient evidence he knew his driver’s license was suspended. Finally,
the court erred by failing to instruct the jury that it could find Calderon
guilty of a lesser-included offense. For the following reasons, the conviction
and sentence are affirmed.

             FACTS 1 AND PROCEDURAL BACKGROUND

¶2           Calderon, whose driver’s license was suspended in
California, was driving on a highway in Arizona when he rear-ended a
police vehicle. Law enforcement noticed Calderon exhibited signs of
impairment; and his blood samples confirmed the presence of drugs.

¶3            Calderon was found guilty of aggravated DUI. He was placed
on probation and ordered to serve four months in prison. He timely
appealed his conviction and sentence. We have jurisdiction pursuant to
Article 6, Section 9 of the Arizona Constitution, and Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).




1      We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against Calderon. State v.
Harm, 236 Ariz. 402, 404, ¶ 2, n.2 (App. 2015).



                                      2
                           STATE v. CALDERON
                            Decision of the Court

                               DISCUSSION

   I.     The Superior Court Did Not Err by Instructing the Jury It
          Could Presume Calderon had Notice of His License
          Suspension.

¶4             To be convicted of aggravated DUI based on a suspended
license, the evidence must show the defendant drove the motor vehicle
when he knew or should have known his license was suspended. State v.
Cifelli, 214 Ariz. 524, 527, ¶ 12 (App. 2007). The court instructed the jury it
could presume Calderon received notice of the suspension if it determined
that a suspension notice was mailed to his address in California. Because
this instruction was based on Arizona’s notice law and not California’s
notice law, Calderon argues the provision of the instruction was error.
Calderon did not object to the jury instruction, so we review for
fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005).

¶5             In Arizona, notice of license suspension is effective according
to the laws of the issuing state. A.R.S. § 28-1383(C). Calderon’s license
issued from California. According to California law, if the notice of
suspension is mailed to the person’s address, knowledge of the suspension
is presumed. Cal. Veh. Code § 13106(a). Although the instruction did not
specifically reference California law, the presumption in the jury instruction
accurately stated the law.

¶6            The facts presented by the State likewise supported giving the
instruction. One month before the accident, notice of Calderon’s license
suspension was mailed to his address. At that point, under both California
and Arizona law, Calderon presumptively received the notice. The superior
court did not err by accurately instructing the jury on this presumption.

¶7             Calderon also argues the court should not have instructed the
jury on the presumption because his testimony rebutted it. However, the
mailing of the suspension notice provided the “slightest evidence” needed
to give the jury the instruction. See State v. Almeida, 238 Ariz. 77, 79, ¶ 9
(App. 2015) (“The ‘slightest evidence’ is sufficient [to give a jury
instruction]). Further, the wording of the instruction enabled the jury to
reject the presumption if it found his testimony credible. We find no error.

   II.    Sufficient Evidence Showed Calderon Knew or Should Have
          Known His License was Suspended.

¶8          Calderon argues there was insufficient evidence to prove his
knowledge of the license suspension. Calderon testified he was not aware


                                      3
                           STATE v. CALDERON
                            Decision of the Court

of the suspension because he was not living at the California address where
the notice of license suspension was sent. In reviewing the sufficiency of the
evidence, we determine whether there is substantial evidence from which
a reasonable trier of fact could have found guilt beyond a reasonable doubt.
State v. Routhier, 137 Ariz. 90, 99 (1983).

¶9             The record contains sufficient evidence to support the jury’s
verdict. Following his arrest, Calderon provided the California address as
his present address for his booking paperwork, and stated he had been
living at that address for ten years. Calderon never notified the California
Motor Vehicle Department of any other address. The jury was not bound to
believe Calderon’s testimony regarding where he was living. A rational
jury could have rejected Calderon’s testimony and found Calderon knew
or should have known about his license suspension.

    III.   The Superior Court Did Not Err by Failing to Give the Jury a
           Lesser-Included Offense Instruction.

¶10            Calderon also argues the court committed fundamental error
because it did not provide a lesser-included jury instruction. The court
asked Calderon on three different occasions if he was requesting a lesser-
included jury instruction. Each time Calderon told the court he did not want
the instruction. As the Arizona Supreme Court has stated, “[w]hen both
parties object to a lesser included offense instruction, the trial court should
be loath to give it absent compelling circumstances to the contrary.” State v.
Gipson, 229 Ariz. 484, 487, ¶ 17 (2012). Here, both parties agreed they did
not want the court to give a lesser-included offense jury instruction for the
aggravated DUI charge. The court did not give the instruction. Given the
parties’ agreement, and the lack of compelling circumstances to include
such an instruction, the court’s decision was not error. 2




2      The State argues the invited-error doctrine should apply, precluding
review of Calderon’s claim. Under the invited-error doctrine, a party that
causes or initiates the error is prevented from “profiting from the error on
appeal.” State v. Lucero, 223 Ariz. 129, 136, ¶ 17 (App. 2009). Because there
was no error, we do not need to determine whether Calderon’s actions
amount to an invited-error. See id. at 134, ¶ 12 (“Before we may rule on an
error under either the invited error standard or the fundamental error
standard, we must first determine that there has been error.”)



                                      4
                 STATE v. CALDERON
                  Decision of the Court

                     CONCLUSION

¶11   Calderon’s conviction and sentence are affirmed.




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




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