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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

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2

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 nondangerous 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).
STATE v. CARDONA RODRIGUEZ

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3

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 exgirlfriend 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.
STATE v. CARDONA RODRIGUEZ

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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 
STATE v. CARDONA RODRIGUEZ

Decision of the Court

5

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.
STATE v. CARDONA RODRIGUEZ

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¶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.”
STATE v. CARDONA RODRIGUEZ

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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.
STATE v. CARDONA RODRIGUEZ

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¶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. 
STATE v. CARDONA RODRIGUEZ

Decision of the Court

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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 
STATE v. CARDONA RODRIGUEZ

Decision of the Court

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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.

 

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.