Gonzalez (David) v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
DAVID ANTHONY GONZALEZ, No. 67148
Appellant,
vs.
THE STATE OF NEVADA,
Respondent. FILED
MAY 1 2 2016
ORDER AFFIRMING IN PART,
REVERSING IN PART AND REMANDING
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of conspiracy to commit robbery, first-degree kidnapping, and
robbery with the use of a deadly weapon. Eighth Judicial District Court,
Clark County; David B. Barker, Judge.
Appellant David Gonzalez first argues that the district court
abused its discretion in denying his motion to sever his trial from• that of
his codefendants. He argues that he suffered prejudice because he was
precluded from eliciting testimony from his codefendants that there was
no gun present. The district court should grant a motion for severance
when there is a serious risk that a joint trial would impair one of the
defendants' specific trial rights or prevent the jury from reliably
determining guilt or innocence. Marshall v. State, 118 Nev. 642, 647, 56
P.3d 376, 379 (2002). We will not reverse "unless the appellant carries the
heavy burden of showing that the trial judge abused his discretion."
Chartier v. State, 124 Nev. 760, 764, 191 P.3d 1182, 1185 (2008) (internal
quotation marks omitted). The joinder did not impair Gonzalez's limited
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ability to elicit his codefendants' testimony regarding the presence of the
gun, as his codefendants retained their Fifth Amendment rights against
self-incrimination. See Marshall, 118 Nev. at 647, 56 P.3d at 379.
Gonzalez's argument that codefendant Alejandra Trujillo would not have
invoked her Fifth Amendment right if her trial were before his when she
was ultimately acquitted in their joint trial relies on an attenuated chain
of speculation and does not show a specific trial right that was actually
impaired. See id. Gonzalez's argument that the police statements in
which his codefendants stated that there was no gun would have been
admissible under NRS 51.315 if his codefendants declined to testify in a
severed trial lacks merit because the police statements in which each
codefendant sought to minimize his or her role in the crimes were not
made under circumstances offering "strong assurances of accuracy." See
NRS 51.315(1); Miranda v. State, 101 Nev. 562, 565-66, 707 P.2d 1121,
1123 (1985).
Further, Trujillo's counsel's references to Trujillo's lack of a
criminal history did not necessarily imply that Gonzalez had a criminal
history when his counsel did not pursue the same inquiry because counsel
may ask or not ask any question for any number of strategic reasons, and
Gonzalez has failed to indicate a specific trial right that was impaired in
this regard. His argument that joinder precluded him from testifying on
his own behalf because the district court said that it would open the door
to impeachment by inconsistencies with his statement and that of the
codefendants is belied by the record, as the district court made clear that
discussion of each codefendant's police statement would be limited to that
individual's statements about his or her own involvement. And his
argument that his codefendant's mere-presence argument precluded his
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raising "every possible defense" likewise fails to identify a specific trial
right that was impaired by the joinder. We conclude that the district court
did not abuse its discretion in denying Gonzalez's motion to sever.
Second, Gonzalez argues that the evidence presented at trial
was insufficient to support the jury's finding of guilt. Our review of the
record on appeal, however, reveals sufficient evidence to establish guilt
beyond a reasonable doubt as determined by a rational trier of fact. See
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Origel-Candido v. State, 114
Nev. 378, 381, 956 P.2d 1378, 1380 (1998).
The victim testified that he met Gonzalez at a supermarket
and agreed to sell him several gift cards. They left the supermarket, went
to Gonzalez's car, and were approached by codefendant Sean Larson, to
whom the victim voluntarily handed the gift cards so that Larson could
check their value. The victim entered the backseat of the car, next to
Trujillo. Gonzalez immediately began to drive, and the victim observed a
handgun in Gonzalez's lap. The victim did not consent to being driven to
another location. The door was locked when the victim tried to exit the
car. Trujillo told the victim to remain calm and that they would not hurt
him. Gonzalez drove to a secluded residential area. Larson told the
victim, "You know what the fuck this is," and ordered the victim to get out
of the car. When the victim refused, Larson opened the victim's car door,
pulled the victim out by his shirt collar, and punched him in the face.
Gonzalez stood next to Larson, brandishing the handgun. Larson, who
still retained the gift cards, took the victim's cell phone and wallet from
his pockets and threw the victim's personal property onto the backseat,
where Trujillo gathered it. Larson and Gonzalez reentered the car and
drove away.
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The jury could reasonably infer from the evidence presented
that Gonzalez conspired to commit robbery by agreeing with his
codefendants to commit robbery and acting to implement a robbery. See
NRS 199.480(1)(a); NRS 200.380(1). The jury could also reasonably infer
that Gonzalez committed robbery with a deadly weapon by participating,
either directly or by aiding or abetting, in unlawfully taking personal
property from the victim by force through punching the victim in the face
and by fear through brandishing the handgun while the victim's property
was being taken from him. See NRS 193.165(1); NRS 195.020; NRS
200.380(1). And the jury could reasonably infer that Gonzalez kidnapped
the victim by carrying him away without his consent for the purpose of
committing robbery. See NRS 200.310(1). It is for the jury to determine
the weight and credibility to give witness testimony, and the jury's verdict
will not be disturbed on appeal where, as here, substantial evidence
supports the verdict. See McNair v. State, 108 Nev. 53, 56, 825 P.2d 571,
573 (1992).
Third, Gonzalez argues that the district court erred in failing
to give a jury instruction pursuant to Mendoza v. State, 122 Nev. 267, 130
P.3d 176 (2006). To sustain convictions for both kidnapping and robbery
arising from the same course of conduct, the victim's movement must have
had independent significance from the robbery, created a risk of danger
substantially exceeding that present in the robbery, or involved movement
or restraint substantially in excess of that required to complete the
robbery. See Mendoza, 122 Nev. at 275, 130 P.3d at 181. The district
court must accurately instruct the jury of the essential elements of the
offense charged, and we review unpreserved claims of instructional error
for plain error. Rossana v. State, 113 Nev. 375, 382, 934 P.2d 1045, 1049
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(1997). Though the district court erred when it did not instruct the jury in
any way on the requirements for a dual conviction of kidnapping and
robbery, see Pascua v. State, 122 Nev. 1001, 1005 & n.7, 145 P.3d 1031,
1033 & n.7 (2006) (concluding that dual convictions were proper where
jury was instructed on incidental movement), this error did not prejudice
Gonzalez's substantial rights. The record shows that the movement
involved created a greater danger and involved substantially more
movement than that present in the robbery itself when, after Gonzalez's
codefendant already possessed the victim's gift cards, Gonzalez drove the
victim away from the parking lot without the victim's consent, locked the
car doors and prevented the victim's escape, displayed a handgun in his
lap while driving, and transported the victim to a residential cul-de-sac
unknown to the victim where Gonzalez and his codefendants completed
the robbery. We conclude that Gonzalez has not shown plain error
affecting his substantial rights.'
Fourth, Gonzalez argues that the district court improperly
limited his cross-examination of the victim. Specific instances of a
witness's conduct may be inquired into on cross-examination as relevant to
truthfulness, but may not be proved by extrinsic evidence. NRS 50.085(3);
Collman v. State, 116 Nev. 687, 703, 7 P.3d 426, 436 (2000). The district
court sustained the State's objection that testimony regarding the victim's
employment was collateral to whether the defendants kidnapped and
robbed him. While Gonzalez correctly notes that he did not use extrinsic
'Regarding his proposed jury instructions, as Gonzalez has failed to
support his contention that the district court erred in denying his
proposed jury instructions with cogent argument, we need not address this
contention. Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987).
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evidence in attempting to discredit the victim, we conclude that the
probative value of this testimony was minimal and outweighed by the risk
of confusing the issues and misleading the jury. See NRS 48.035(1).
Accordingly, we conclude that the district court reached the right result in
limiting Gonzalez's cross-examination of the victim and that relief is not
warranted. See Wyatt v. State, 86 Nev. 294, 298, 468 P.2d 338, 341 (1970)
("If a judgment or order of a trial court reaches the right result, although
it is based on an incorrect ground, the judgment or order will be affirmed
on appeal.").
Fifth, Gonzalez argues that his sentence for kidnapping
improperly provides for parole eligibility after 6 years have been served.
We review issues of statutory interpretation de novo. State v. Catanio,
120 Nev. 1030, 1033, 102 P.3d 588, 590 (2004). When a statute is not
ambiguous, we give that statute its plain meaning. Id. A defendant
convicted of first-degree kidnapping may receive a sentence of "a definite
term of 15 years, with eligibility for parole beginning when a minimum of
5 years has been served." NRS 200.320(2)(b). We agree that the district
court's sentence is facially illegal, reverse the Gonzalez's sentence for first-
degree kidnapping, and remand to the district court to resentence
Gonzalez accordingly.
Sixth, Gonzalez argues that cumulative error warrants
reversal. Notwithstanding the sentencing error for which relief is
warranted in itself, Gonzalez has identified a single trial error—the
district court's failure to provide a Mendoza instruction, which did not
affect his substantial rights. "One error is not cumulative error." United
States v. Sager, 227 F.3d 1138, 1149 (9th Cir. 2000).
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Having considered Gonzalez's arguments and concluded that
his kidnapping-sentence challenge has merit and his other contentions
lack merit, we
ORDER the judgment of conviction AFFIRMED IN PART
AND REVERSED IN PART AND REMAND this matter to the district
court for proceedings consistent with this order.
/ J.
Hard”
J.
Saitta
J.
cc: Hon. David B. Barker, District Judge
Law Offices of Martin Hart, LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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