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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-CR 21-0154

Appeal from the Superior Court in Maricopa County

No. CR2011-161993-001

The Honorable Warren J. Granville, Judge Retired

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Jillian Francis

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Jesse Finn Turner

Counsel for Appellant

FILED 6-2-2022
STATE v. VAZQUEZ

Decision of the Court

2

MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding 

Judge Cynthia J. Bailey and Judge D. Steven Williams joined.

S W A N N, Judge:

¶1 Luis Fernando Vazquez appeals from his conviction and 

resulting sentence for theft of means of transportation. Vazquez argues the 

superior court committed reversible error by denying his motion for a

mistrial based on prosecutorial error1 in closing argument. For the 

following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 The relevant facts are uncontested. John worked as a

customer service representative for Penske Truck Leasing in September 

2011. One night that month, he was monitoring the truck yard when he 

saw Vazquez attempting to get into one of the trucks. John immediately 

recognized Vazquez because Vazquez worked as a commercial driver for 

SP Richards, a company that regularly leased trucks from Penske, and the 

two had interacted frequently over the past year. Vazquez told John that 

he was there to pick up a truck for SP Richards but the key he had been 

given did not work. John helped Vazquez open the door and start the truck, 

then Vazquez drove away.

¶3 While reviewing rental contracts a few minutes later, John

noticed that the truck Vazquez had taken was scheduled for a different 

company that night. Believing the truck had mistakenly been leased to two 

companies at the same time, John immediately told his manager about the 

problem. The manager soon discovered that SP Richards had not reserved

any trucks for that night. After further learning Vazquez had stopped 

working for SP Richards several weeks earlier, the manager called the 

1 Because there is no allegation that the prosecutor committed 

intentional misconduct in this case, we refer to the prosecutor’s conduct as 

“prosecutorial error.” See State v. Murray, 250 Ariz. 543, 548, ¶ 12 (2021)

(characterizing a prosecutor’s incorrect reasonable-doubt statement as 

“error” rather than “misconduct” in the absence of evidence that the 

prosecutor’s actions were intentional).
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3

police and reported the truck stolen. The next day, police officers found the 

truck abandoned several miles away from Penske.

¶4 A grand jury indicted Vazquez on one count of theft of means 

of transportation, a class three felony. At trial, defense counsel explained

in their opening statement that the state would not be able to prove the 

charged offense because, inter alia, Vazquez had “been charged with the 

wrong statute,” a theory he later repeated in closing argument. Vazquez 

testified and acknowledged that when he took the truck, he no longer 

worked for SP Richards. According to Vazquez, John had allowed him to 

borrow the truck for a few hours that night so he could complete a few side 

jobs. Vazquez also explained that John called him shortly after he had left 

and asked him to return the truck right away. When Vazquez said he could 

not do so because he had already started a job, John told him to leave the 

truck somewhere close to Penske when he was done.

¶5 In pertinent part, the final jury instructions included an 

instruction on the lesser-included offense of unlawful use of means of 

transportation, which directed the jurors to consider the lesser offense only 

if they either found Vazquez not guilty of theft of means of transportation

or, “after full and careful consideration of the facts,” could not agree on a 

verdict for that charge. The prosecutor addressed the lesser-included

offense instruction in closing argument:

The defense included a lesser included. And that’s on Page 5. 

It’s fair game for you all. The State did not charge this. It’s 

up to the jury to consider. . . . If you find that the defendant[,]

without the intent to permanently deprive, knowingly took 

unauthorized control over another person’s transportation, 

the tractor, that’s a violation of that lesser included statute.

The State did not charge that[.]

¶6 Following the state’s closing argument, the superior court 

excused the jurors, and Vazquez moved for a mistrial based on the 

prosecutor’s statement that the defense had requested the lesser-included 

offense instruction. Declining to rule on the motion that instant, the court 

ordered the parties to provide case law supporting their positions, then 

recessed for the day.

¶7 The next morning, Vazquez argued that he was entitled to a 

mistrial under State v. Stambaugh, 121 Ariz. 226 (App. 1978). The prosecutor 

responded that although he had made a “mistake,” Stambaugh did not 

require a mistrial. After considering the parties’ arguments, the superior 
STATE v. VAZQUEZ

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court found that the prosecutor’s statement was improper but denied the 

mistrial motion. Over Vazquez’s objection, the court instead gave the 

following curative instruction:

[A]ny reference by counsel during closing argument as to 

which party requested a particular jury instruction is hereby 

stricken, and the jury is instructed to disregard that reference. 

You may not consider it in any way in reaching your verdict.

¶8 The jury found Vazquez guilty of theft of means of 

transportation, and the superior court later sentenced him to nine years’ 

imprisonment.2 Vazquez appeals.

DISCUSSION

¶9 Asserting the prosecutor’s “actions here are identical to those 

in Stambaugh,” Vazquez argues the superior court abused its discretion by 

denying his mistrial motion. For its part, the state contends (1) the absence 

of a contemporaneous objection limits our review to fundamental error, and 

(2) Vazquez is not entitled to relief under that standard because Stambaugh

is distinguishable. We need not resolve the parties’ standard-of-review 

dispute because, for reasons set forth infra ¶¶ 14–16, Vazquez’s claim fails

under any applicable standard of review. See State v. Diaz, 223 Ariz. 358, 

360, ¶ 11 (2010) (“Regardless of how an alleged error ultimately is 

characterized, . . . a defendant on appeal must first establish that some error 

occurred.”).

¶10 “Because the trial court is in the best position to determine the 

effect of a prosecutor’s comments on a jury, we will not disturb a trial 

court’s denial of a mistrial for prosecutorial [error] in the absence of a clear 

abuse of discretion.” State v. Newell, 212 Ariz. 389, 402, ¶ 61 (2006). To 

determine whether prosecutorial error warrants a mistrial, courts consider: 

“(1) whether the prosecutor’s statements called to the jury’s attention 

matters it should not have considered in reaching its decision and (2) the 

probability that the jurors were in fact influenced by the remarks.” Id. at 

¶ 60. “[R]eversal is warranted if a reasonable likelihood exists that the 

[prosecutorial error] could have affected the jury’s verdict, thereby denying 

the defendant a fair trial.” State v. Speer, 221 Ariz. 449, 458, ¶ 42 (2009) 

(citation and internal quotation marks omitted); see also State v. Nelson, 229 

Ariz. 180, 189, ¶ 38 (2012) (explaining prosecutorial error is harmless when 

2 Vazquez absconded on the final day of trial and was eventually 

sentenced in 2019.
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courts are satisfied “beyond a reasonable doubt it did not contribute to or 

affect the verdict” (citation omitted)).

¶11 As an initial matter, it is undisputed that the prosecutor’s

comment constituted error. See Stambaugh, 121 Ariz. at 228 (“[T]hat 

appellant . . . offered an instruction on the lesser included offense . . . was 

not a matter that the jurors would have been justified in considering in 

determining their verdict.”). We next address Vazquez’s contention that 

Stambaugh requires reversal of his conviction. In Stambaugh, the superior 

court instructed the jurors on the charged offense of second-degree murder

and the lesser-included offense of involuntary manslaughter. Id. at 227–28.

Despite the inclusion of the lesser offense, defense counsel asserted an “allor-nothing” defense in closing argument, urging the jurors to either find the 

defendant guilty of the charged offense or not guilty at all:

(The prosecutor) has tried every which way to get a 

conviction in this case. He starts out by saying: This murder 

is intentional. He will show there is some deliberate act with 

malice. Now, he is talking about involuntary manslaughter, 

talking about instructions on involuntary manslaughter.

Sometimes lawyers demand the moon hoping they can get 

something. I submit (the prosecutor) is asking for second 

degree murder hoping he can get involuntary manslaughter 

from you. I say to you: If [the defendant] did all the things 

(the prosecutor) says, convict him of second degree murder. 

If he is innocent, free him. Id. at 227.

¶12 In rebuttal, the prosecutor responded to the defense theory:

He says I’m talking about manslaughter; that I’m asking you 

to convict him of murder, yet I’m giving you a discussion 

relating to the crime of manslaughter. As (defense counsel)

indicated, before we came out here and started final 

arguments, we sat with the judge, spent the better part of an 

hour going over the instructions. The fact is (defense counsel)

requested an instruction on manslaughter. This is not 

something that I—[.] Id.

The superior court sustained defense counsel’s objection at that point, then

later instructed the jurors:

As a matter of law[,] I decide which instructions should be 

given regardless of which party requests those instructions. 

If an instruction is requested that I don’t think should be 
STATE v. VAZQUEZ

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given, I will not give it. If one is requested which I think must 

be given, I will give it. Id.

The jurors ultimately found the defendant guilty of involuntary 

manslaughter. Id.

¶13 On appeal, we vacated his conviction and sentence, 

concluding the superior court improperly denied the defendant’s 

subsequent mistrial motion. Id. at 228–29. We explained that “the 

prosecutor’s reference to defense counsel’s request for the instruction was 

doubly prejudicial: it implied, first, an admission that appellant was guilty 

of the lesser offense and, second, duplicity on the part of defense counsel.” 

Id. at 228. We also reasoned that the superior court’s instruction

emphasized rather than cured the resulting prejudice because it “tended to 

further disparage defense counsel’s argument for acquittal as the 

alternative to conviction of second degree murder.” Id.

¶14 We find Stambaugh distinguishable. Here, unlike in

Stambaugh, the jurors found the defendant guilty of the greater offense.

And as recounted supra ¶ 5, the lesser-included offense instruction

prohibited consideration of the lesser offense unless the jurors first found 

Vazquez not guilty of the greater offense or could not reach a verdict on 

that charge. Because we presume the jurors followed that instruction,

Newell, 212 Ariz. at 403, ¶ 68, we have no basis to conclude that the jurors 

ever confronted the prosecutor’s error in deciding the case, let alone that 

the error influenced the verdict. See Speer, 221 Ariz. at 458, ¶ 42; see also

Nelson, 229 Ariz. at 189, ¶ 38.

¶15 Nor is there merit to Vazquez’s argument that the superior 

court was nonetheless compelled to order a mistrial based on the

similarities his case shares with Stambaugh, notwithstanding the ultimate 

verdict. The Stambaugh prosecutor’s error severely damaged the credibility 

of the defendant’s unequivocal all-or-nothing defense, given that it

impermissibly implied that the defendant in fact believed the evidence 

supported the lesser offense. Here, on the other hand, the prosecutor’s 

error occurred in initial closing argument when defense counsel had 

already introduced the notion that the state had charged Vazquez with the 

wrong crime. Given these circumstances, the superior court could 

reasonably determine that Vazquez suffered less prejudice than did the 

Stambaugh defendant. See State v. Armstrong, 208 Ariz. 345, 354, ¶ 40 (2004) 

(explaining an abuse of discretion occurs when “no reasonable judge would 

have reached the same result under the circumstances”).
STATE v. VAZQUEZ

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¶16 Furthermore, the superior court’s curative instruction evaded

the flaw we identified in the Stambaugh instruction. Here, the court merely 

directed the jurors to disregard the improper comment whereas the 

Stambaugh instruction implicitly endorsed the propriety of the lesserincluded offense, thereby exacerbating the harm done to the defense theory.

Within the context of Vazquez’s trial, the court’s curative instruction 

sufficiently ameliorated any resulting prejudice. See State v. Adamson, 136 

Ariz. 250, 262 (1983) (explaining a mistrial “is the most dramatic remedy for 

trial error and should be granted only when it appears that justice will be 

thwarted unless the jury is discharged and a new trial granted”); State v. 

Herrera, 203 Ariz. 131, 135, ¶ 6 (App. 2002) (“A trial court is in the best 

position to determine an appropriate remedy for trial error that will 

preserve a defendant’s right to a fair trial.”). Accordingly, the superior 

court did not err, fundamentally or otherwise, in denying the mistrial 

motion.

CONCLUSION

¶17 We affirm.