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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

FILED 8-28-2018
STATE v. CALDERON

Decision of the Court

2 

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. 

FACTS1 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). 
STATE v. CALDERON

Decision of the Court

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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 
STATE v. CALDERON

Decision of the Court

4 

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 lesserincluded 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.”)
STATE v. CALDERON

Decision of the Court

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CONCLUSION

¶11 Calderon’s conviction and sentence are affirmed.