Martinez (Luis) v. State ( 2014 )

 acknowledged his membership in WI to him. Chavez testified further that
WI is a known rival of the CM gang (also known as "Criminal Mexicans").
Chavez testified about gang culture and explained how a gang might gain
street credibility from a drive-by shooting against a rival gang.
Alondra Perez testified that, on the night of the shooting, she,
Martinez, Joel Morillon, and an unknown person rode in Morillon's red
Ford Expedition in the Neil Road area, known to be CM territory. Perez
testified that they saw Manuel "Silent" Patino—a known CM member—on
Riley Avenue and that Martinez confronted Patino, who fired a bullet over
Martinez's head and yelled out the name of his gang. Perez asserted that
they had no firearms in the vehicle at this time. Perez continued that
Martinez ran back to the vehicle, and they drove to Martinez's house in
Sparks. Officer Chavez testified that failing to retaliate would cost a gang
street credibility in a situation like this. A neighbor testified that this
first gunshot occurred shortly after 8:00 p.m. and that he witnessed a red
Ford Expedition leave the scene after each of the three instances of
gunshots that night—he identified Morillon's vehicle as the vehicle on the
scene. Former gang member Cesar Romero testified that Martinez called
him, seeking Romero's support in something developing on Neil Road.
Cell phone records confirm that the call occurred at 8:43 p.m.
Cell phone records indicate that Martinez made more phone
calls while returning to his house in Sparks. Perez testified that
numerous people were waiting for them there and that three more
unknown persons entered the vehicle. Perez asserted that they searched
unsuccessfully for Patin° or other CM members before deciding to shoot at
Patino's apartment on Riley Avenue. Perez testified that six or seven
shots were fired from within the vehicle at Patino's apartment, including
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from the middle row of seats where Martinez and others were seated,
without recalling who fired those shots. Bullet strikes were found on
Patino's apartment walls, as well as neighboring apartments. Perez
testified that they drove away and dropped the unknown persons off with
the guns somewhere in Sparks.
Circumstantial evidence alone may support a conviction.
Deveroux v. State, 96 Nev. 388, 391, 610 P.2d 722, 724 (1980). Considering
the initial confrontation with Patino, the return to Sparks to get firearms
that were not previously in the vehicle, Perez's testimony that shots were
fired from within the vehicle and from the middle seat where Martinez
was seated, the location of Riley Avenue within the populated area of
Reno, and Martinez's continuous involvement in this sequence, the jury
could reasonably infer from the evidence presented that Martinez
wantonly or maliciously discharged a firearm from within a motor vehicle
in an area designated as populated or aided, abetted, counseled,
encouraged, commanded, or induced another to do so. See NRS 195.020,
NRS 202.287. Considering the above evidence, as well as Perez's
testimony that Martinez and the others searched for Patino or other CM
members before deciding to shoot at Patino's house, testimony that shots
were fired on Riley Avenue, and the bullet strikes found on apartment
walls, the jury could reasonably infer that Martinez willfully and
maliciously discharged a firearm at an occupied apartment or aided,
abetted, counseled, encouraged, commanded, or induced another to do so.
See NRS 195.020, NRS 202.285. Considering the phone calls to Romero
and others, the meeting at Martinez's house in Sparks, and the period of
collectively searching followed by agreeing to shoot at Patino's apartment,
the jury could also reasonably infer that Martinez conspired with another
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person to discharge a firearm into an apartment. See NRS 199.480.
Lastly, from the above evidence, as well as Martinez's admitted WI
membership and police testimony explaining the animosity between WI
and CM and the potential benefits of shooting at a rival's home, the jury
could reasonably infer that Martinez undertook his conduct to promote the
activities of a criminal gang. See NRS 193.168. Perez's inability at trial to
recall many details of that night does not warrant reversal, as "it is the
function of the jury, not the appellate court, to weigh the evidence and
pass upon the credibility of the witness." Walker v. State, 91 Nev. 724,
726, 542 P.2d 438, 439 (1975).
Having considered Martinez's contention and concluded that it
is without merit, we
ORDER the judgment of conviction AFFIRMED.
Hardesty
Douglas Cherry
cc: Hon. Scott N. Freeman, District Judge
Dennis W. Hough
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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