Salcido (Carlos) v. State ( 2014 )

 that the district court's involvement in the plea bargain process left him in
"a state of coercive confusion."
Salcido did not preserve this issue for appellate review, see id.
at 772, 137 P.3d at 1192 (it is defendant's responsibility to ensure that
"any alleged errors [are] properly preserved for appellate review"), so we
review for plain error, see NRS 178.602; Gallego v. State, 117 Nev. 348,
365, 23 P.3d 227, 239 (2001) (reviewing unpreserved claims for plain
error), abrogated on other grounds by Nunnery v. State, 127 Nev. ,
n.12, 263 P.3d 235, 253 n.12 (2011). "In conducting plain error review, we
must examine whether there was error, whether the error was plain or
clear, and whether the error affected the defendant's substantial rights."
Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003) (quotation marks
omitted). "[Tlhe burden is on the defendant to show actual prejudice or a
miscarriage of justice." Id.The record reveals that Salcido rejected the State's plea offer
prior to trial; the district court canvassed Salcido regarding the offer on
the first day of trial; Salcido acknowledged that he understood that the
offer would close when jury selection began, he would be tried on all of the
charged offenses, and there was a good chance that the district court
would impose consecutive sentences if he was convicted; and Salcido chose
to take his case to trial. We conclude from this record that Salcido has
failed to demonstrate actual prejudice or a miscarriage of justice and
therefore he has not shown plain error.
Sufficiency of evidence
Salcido claims that insufficient evidence supports his
convictions for attempted murder, battery, robbery, carrying a concealed
weapon, and the enhancements that were applied to those crimes. In
SUPREME COURT
OF
NEVADA
2
(0) [947A
particular, he argues that the State failed to prove that he possessed the
requisite intent to attempt murder; he promoted, furthered, or assisted a
criminal gang; his knife caused the cut to the victim's thumb; and his knife
was concealed. We review the evidence in the light most favorable to the
prosecution and determine whether "any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt."
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Mitchell v. State, 124 Nev.
807, 816, 192 P.3d 721, 727 (2008).
The jury heard testimony that Jesus Cadenas Pedraza and his
tenant, David Lazaro Salazar, were watching television late one evening
when Salcido knocked loudly on their door. Pedraza opened the door and
Salcido insulted him and accused him of calling the police. Salcido asked
Pedraza if he wanted to die, pulled a previously unseen knife from his
pants, and shouted "Surerios rule" before jumping onto Pedraza. Pedraza
defended himself by covering his chest and face with his arms and Salcido
stabbed him in the arm. The police later found Salcido's broken knife on
the ground where it had fallen when Pedraza shut the door on Salcido.
Salcido returned to Pedraza's residence with another knife
after the police left. He found Salazar standing in the garage with a beer
in his hand and told Salazar to give him the beer. When Salazar refused
to surrender the beer, Salcido seized the beer with his left hand and struck
Salazar with the knife he was holding in his right hand. Salazar did not
realize that he had been cut until he went inside and saw that he was
bleeding.
The Surerios is a gang that was created by the Mexican Mafia
to carry out criminal acts such as murder, robbery, and drug trafficking.
It is an umbrella organization that directs the operations of lesser-known
SUPREME COURT
OF
NEVADA
3
(0) 1947A
gangs such as the Pomona Sur Lokotes and the Brown Pride Lokotes. A
gangster promotes, furthers, and assists a gang when he calls out the gang
name while committing a crime because calling out a gang name instills
fear in the community, makes it easier for the gang to continue to
victimize the community, and reduces the risk of its crimes being reported.
Salcido admitted to the police during field interviews that he is a member
of the Pomona Sur Lokotes gang, and he also admitted that he is a
member of the Brown Pride Lokotes gang.
We conclude that a rational juror could infer from this
evidence that Salcido concealed a knife in his pants, he attempted to
murder and battered Pedraza with a knife for the purpose of furthering
the activities of a criminal gang, and he battered and robbed Salazar with
a knife See NRS 193.165(1); NRS 193.168(1); NRS 193.200; NRS
193.330(1); NRS 200.010(1); NRS 200.380(1); NRS 200.481(1); NRS
202.350(1)(d)(3); see also Sharma v. State, 118 Nev. 648, 659, 56 P.3d 868,
874 (2002) ("[I]ntent can rarely be proven by direct evidence of a
defendant's state of mind, but instead is inferred by the jury from the
individualized, external circumstances of the crime, which are capable of
proof at trial."); Hernandez v. State, 118 Nev. 513, 531, 50 P.3d 1100, 1112
(2002) (circumstantial evidence is enough to support a conviction). It is for
the jury to determine the weight and credibility to give conflicting
testimony, and the jury's verdict will not be disturbed on appeal where, as
here, substantial evidence supports the verdict. See Bolden v. State, 97
Nev. 71, 73, 624 P.2d 20, 20 (1981).
Bad acts evidence
Salcido claims that district court erred by admitting evidence
that he made threatening hand gestures towards Salazar during a
SUPREME COURT
OF
NEVADA
4
(0) 1947A e
preliminary hearing without conducting a hearing as required by
Petrocelli v. State, 101 Nev. 46, 51-52, 692 P.2d 503, 507-08 (1985), and
instructing the jury as required by Tavares v. State, 117 Nev. 725, 733, 30
P.3d 1128, 1133 (2001). The record suggests that Salcido objected to this
evidence and the district court ruled on his objection. However, the
objection and the ruling were made during an unrecorded bench
conference and Salcido failed to make a record of what transpired during
that conference. See Greene v. State, 96 Nev. 555, 558, 612 P.2d 686, 688
(1980) (appellant has the burden to make a proper appellate record).
Without such a record we are unable to identify the grounds for Salcido's
objection or the basis for the district court's ruling. Accordingly, we
conclude that Salcido has failed to overcome the presumption that the
district court properly ruled on his objection. Cf., Lee v. Sheriff, 85 Nev.
379, 380-81, 455 P.2d 623, 624 (1969).
Judicial notice
Salcido claims that the district court erred by granting the
State's motion for judicial notice of the contents of two preliminary
hearing transcripts, which demonstrate that Salazar identified Salcido in
court during prior proceedings in this case. However, Salcido did not
object to the State's motion and he has not demonstrated plain error
because there was no error. See NRS 47.130(2) (identifying matters of fact
that may be judicially noticed); In re AMERCO Derivative Litigation, 127
Nev. , n.9, 252 P.3d 681, 699 n.9 (2011) ("[Glenerally, this court will
not take judicial notice of facts in a different case." (emphasis added));
Occhiuto v. Occhiuto, 97 Nev. 143, 145, 625 P.2d 568, 569 (1981) (allowing
judicial notice of a prior proceeding where the cases are closely related);
Sheriff, Clark Cnty. v. Kravetz, 96 Nev. 919, 920, 620 P.2d 868, 869 (1980)
SUPREME COURT
OF
NEVADA
5
(0) 1 ,147A en
(relying upon a preliminary hearing transcript to judicially notice the
location of a crime scene).
Improper expert opinion
Salcido claims that the district court erred by permitting the
State's expert witness to testify that the Brown Pride, Pomona Sur
Lokotes, and Surerios gangs meet the statutory definition of a criminal
gang because the expert's testimony was an improper opinion on an issue
of law. However, Salcido did not object to this testimony and he has not
demonstrated plain error because there was no error. See NRS 50.295
("Testimony in the form of an opinion or inference otherwise admissible is
not objectionable because it embraces an ultimate issue to be decided by
the trier of fact."). But see Origel-Candido v. State, 114 Nev. 378, 383, 956
P.2d 1378, 1381 (1998) (where an expert's testimony as to the definition of
a criminal gang followed by his conclusory statement that the gang in
question was a criminal gang was held to be insufficient to prove that the
gang was in fact a criminal gang).
Prosecutorial misconduct
Salcido claims that the prosecutor committed misconduct by
asking Pedraza, "And did [Salcido] ever mention anything about the
Surerios?" because the question was leading and its sole purpose was to
establish facts that would substantially enhance his prison sentence.
However, Salcido did not object to this question and he has not
demonstrated plain error because there was no error. See 1 McCormick on
Evid. § 6 (7th ed.) ("A leading question is one that suggests to the witness
the answer desired by the examiner."). People v. Pearson, 297 P.3d 793,
825 (Cal. 2013) ("Questions calling for a 'yes' or 'no' answer are not leading
SUPREME COURT
OF
NEVADA
6
(0) 1947A
questions unless they are unduly suggestive under the circumstances."),
cert. denied, U.S. , 134 S. Ct. 198 (2013).
Cumulative error
Salcido claims that cumulative error deprived him of a fair
trial and warrants reversal of his judgment of conviction. However,
because Salcido has failed to demonstrate any trial error, we conclude that
he was not deprived of a fair trial due to cumulative error.
Having concluded that Salcido is not entitled to relief, we
ORDER the amended judgment of conviction AFFIRMED.
Parraguirre Saitta
cc: Hon. Valerie Adair, District Judge
Coyer Law Office
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
7
(0) 1947A cogV7.0