Elizondo (Damian) v. State ( 2014 )

 improperly noticed State's witnesses, (3) the State committed
prosecutorial misconduct requiring reversal, (4) the district court abused
its discretion by admitting evidence of gang members' felonious conduct to
prove the gang enhancement, (5) the State presented insufficient evidence
to support the convictions, (6) the district court abused its discretion by
denying Elizondo's motion for a new trial based on inconsistent verdicts,
and (7) his convictions and sentences for both attempted murder and
aggravated battery violate the Double Jeopardy Clause. Concluding that
these arguments lack merit, we affirm.
The district court did not abuse its discretion by refusing to excuse the
entire original venire for cause
Elizondo first argues that the district court improperly refused
to excuse the entire original venire for cause. During a break in voir dire,
several venire members overheard Elizondo speaking on his cellular
phone. Elizondo used profanity, mentioned marijuana, expressed his
opinion that the State was making a big deal out of the situation, and said
that he was "the only one out." The district court excused all venire
members who directly overheard the call and asked the remaining venire
members to raise their hands if they heard anything about the call second-
hand. The district court then individually questioned the venire members
who raised their hands and excused those venire members who said that
they could not remain impartial. One of the venire members said that the
call "caused a stir" amongst the other venire members. Elizondo moved to
excuse the entire venire for cause and the district court refused to do so.
We review a district court's decision whether to excuse
potential jurors for cause for an abuse of discretion. Weber v. State, 121
Nev. 554, 580, 119 P.3d 107, 125 (2005). When determining whether a
district court abused its discretion, the relevant inquiry is "whether a
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prospective juror's views would prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions
and his oath." Id. (quoting Leonard v. State, 117 Nev. 53, 65, 17 P.3d 397,
405 (2001) (internal quotation marks omitted)).
Here, the district court excused for cause all venire members
who directly overheard the call or heard about the call and could not
remain impartial. Elizondo argues that the comment that the call "caused
a stir" indicates that the entire venire was tainted and that other venire
members heard about the call but did not raise their hands. We cannot
assume that the venire members who did not raise their hands were lying.
See McConnell v. State, 120 Nev. 1043, 1062, 102 P.3d 606, 619 (2004)
("We presume that juries follow the instructions they are given."); State v.
Barnes, 481 S.E.2d 44, 56 (N.C. 1997) ("We presume that jurors will tell
the truth."). Moreover, the district court questioned the venire regarding
the call and excused all venire members who could not remain impartial.
Given this procedure, we conclude that the district court properly
exercised its discretion by refusing to excuse the entire venire for cause.
See Weber, 121 Nev. at 580, 119 P.3d at 125.
The district court did not abuse its discretion by refusing to exclude
testimony from improperly noticed State's witnesses
Elizondo next argues that the district court abused its
discretion by refusing to exclude testimony from certain improperly
noticed State's witnesses. On all of its notices of witnesses, the State
listed "C10 DA GANG UNIT" instead of last known addresses for five
witnesses, including Gil-Corona. The State's first notice of witnesses was
served almost two years before trial. Five days before trial, Elizondo
moved to exclude the testimony of these witnesses, and the district court
denied the motion, explaining that the motion was untimely. See EDCR
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3.20(a) (requiring pretrial motions to be filed at least 15 days prior to
trial). Although the State gave improper notice, see NRS 174.234(1)(a)(2),
the district court had discretion to "grant a continuance," exclude the
testimony, or "enter such other order as it deem[ed] just under the
circumstances." NRS 174.295(2); see also Mclellan v. State, 124 Nev. 263,
267, 182 P.3d 106, 109 (2008) (reviewing a district court's decision to
admit or exclude evidence for an abuse of discretion). Given that Elizondo
had the witnesses' names for almost two years before trial and took no
steps to seek them out until five days before trial, we conclude that the
district court did not abuse its discretion by admitting the witnesses'
testimony. See NRS 174.295(2); Mclellan, 124 Nev. at 267, 182 P.3d at
109.
Even if eliciting testimony that witnesses could not be located or were
uncooperative was prosecutorial misconduct, reversal is unwarranted
Elizondo also argues that the State committed prosecutorial
misconduct by eliciting testimony from the lead detective on the case,
Detective Cook, that (1) three witnesses for whom the State improperly
listed "C/O DA GANG UNIT" could not be located or were uncooperative,
and (2) his investigations into related incidents were hindered by a lack of
cooperative witnesses. Because Elizondo did not object to this testimony
at trial, we review for plain error. See Valdez v. State, 124 Nev. 1172,
1190, 196 P.3d 465, 477 (2008).
First, the State's having a last known address for a potential
witness is not the same as being able to locate or gain useful information
from him. Thus, Cook's testimony was not necessarily inconsistent with
the State's improper notice of witnesses, and Elizondo has not shown that
any error in admitting Cook's testimony caused "actual prejudice or a
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miscarriage of justice." See Valdez, 124 Nev. at 1190, 196 13 .3d at 477
(quoting Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003)).
Second, Cook's testimony regarding a lack of cooperative
witnesses merely referred "to the general reluctance of witnesses to
testify" and did not imply that Elizondo or his codefendants engaged in
witness intimidation. See Lay v. State, 110 Nev. 1189, 1193-94, 886 P.2d
448, 450-451 (1994). Even if eliciting this testimony amounted to
prosecutorial misconduct, it was harmless. Id. Therefore, reversal is
unwarranted. See id.; Valdez, 124 Nev. at 1190, 196 P.3d at 477.
The district court did not abuse its discretion by admitting evidence of
other gang members' felonious conduct to prove the gang enhancement
Elizondo further argues that the district court abused its
discretion by admitting evidence of other gang members' juvenile
adjudications of delinquency and arrests to prove that the gang involved in
this case, Varrio Grande Vista (VGV), is a criminal gang.
In order to prove the gang enhancement, the State must
prove, inter alia, that the gang at issue "[Was as one of its common
activities engaging in criminal activity punishable as a felony, other than
the conduct which constitutes the primary offense." NRS 193.168(8)(c)
(emphasis added). It is clear that the State need not offer felony
convictions to prove this element because the statute says "punishable,"
not "punished." Moreover, NRS 193.168(7) allows the State to prove the
gang enhancement using expert testimony, further indicating that the
Legislature contemplated that the State could offer evidence other than
adult felony convictions to prove the gang enhancement.
Elizondo argues that juvenile adjudications are civil and
therefore cannot be used to prove the felonious activity element. Juvenile
proceedings are civil in nature, NRS 62D.010(1)(a); State v. Javier C., 128
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Nev. , 289 P.3d 1194, 1197 (2012) (recognizing that juvenile
proceedings and confinement resulting therefrom are civil, not criminal),
but this does not mean that a juvenile's conduct giving rise to a juvenile
adjudication of delinquency is also civil. Rather, juvenile proceedings may
be initiated due to a juvenile's acts that are designated felony criminal
offenses. NRS 62B.330(2)(c); see also Matter of Seven Minors, 99 Nev. 427,
432, 664 P.2d 947, 950 (1983) (explaining that juveniles come before the
juvenile courts after "committing crimes"), disapproved of on other
grounds by Matter of William S., 122 Nev. 432, 442 n.23, 132 P.3d 1015,
1021 n.23 (2006). Because juvenile proceedings may arise from a
juvenile's acts that are punishable as felonies, and no statute prohibits the
admission of juvenile adjudications of delinquency' to prove the gang
enhancement, we conclude that juvenile adjudications are admissible to
prove the felonious activity element of the gang enhancement. See NRS
193.168(8)(c).
Finally, Elizondo argues that NRS 193.168(8)(c) lacks
standards to guide courts in determining what evidence may be admitted
to prove the felonious activity element. While we agree that NRS
193.168(8)(c) contains few if any meaningful standards, we conclude that
the Legislature intentionally did not impose more stringent standards and
unambiguously expressed this intent in the statute itself. See State v.
Lucero, 127 Nev. , 249 P.3d 1226, 1228 (2011) (stating that
'Although NRS 62H.130 provides for the sealing of juvenile records,
nothing suggests that the records relating to the juvenile adjudications of
delinquency at issue here had been sealed, and Elizondo does not argue
that the juvenile adjudications of delinquency should have been excluded
pursuant to NRS 62H.130.
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unambiguous statutory language is given its plain meaning). Accordingly,
the district court properly construed NRS 193.168(8)(c) when it concluded
that evidence other than felony convictions, including testimony regarding
arrests and juvenile adjudications of delinquency, may be admitted to
prove the felonious activity element of the gang enhancement. See id.
(stating that this court reviews a district court's interpretation of a statute
de novo). As a result, the district court did not abuse its discretion by
admitting evidence of other gang members' arrests and juvenile
adjudications to prove that VGV engages in felonious conduct as a
common activity. See Mclellan v. State, 124 Nev. 263, 267, 182 P.3d 106,
109 (2008) (reviewing a district court's decision to admit evidence for an
abuse of discretion). 2
Sufficient evidence supports the convictions
Next, Elizondo argues that the State presented insufficient
evidence to support the convictions.
Attempted murder
"Attempted murder is the performance of an act or acts which
tend, but fail, to kill a human being, when such acts are done with express
2 To the extent that we have previously suggested in dicta that the
conduct used to prove the felonious activity element must also be
committed in furtherance of the criminal gang, such a conclusion is
unsupported by NRS 193.168(8)(c). See Origel-Candido u. State, 114 Nev.
378, 383, 956 P.2d 1378, 1381 (1998) ("The fact that individual members
committed felony crimes which benefitted the gang does not lead
necessarily to the conclusion that felonious action is a common
denominator of the gang." (Emphasis added.)). NRS 193.168(8)(c) does
not expressly impose this requirement, and because such a requirement
would make the gang enhancement all but impossible to prove, we decline
to infer that the Legislature intended to impose such a requirement. See
Lucero, 127 Nev. at , 249 P.3d at 1228 (2011).
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malice, namely, with the deliberate intention unlawfully to kill." Keys v.
State, 104 Nev. 736, 740, 766 P.2d 270, 273 (1988). "[D]eliberate intention
unlawfully to take away the life of a fellow creature, [may be] manifested
by external circumstances capable of proof" NRS 200.020(1) (emphasis
added); see also Dearman v. State, 93 Nev. 364, 367, 566 P.2d 407, 409
(1977) ("Intent to kill . . . may be ascertained or deduced from the facts
and circumstances of the killing, such as use of a weapon calculated to
produce death, the manner of use, and the attendant circumstances.").
Elizondo argues that the State presented insufficient evidence
of intent to support his conviction of attempted murder because Gil-
Corona's injuries were not life-threatening. Gil-Corona testified that a
sedan drove at him at full speed, he was beaten with hammers by five
males including Elizondo, and that he was stabbed in the head and torso
by Goode. Gil-Corona's injuries did not require surgery or an extended
hospital stay, but given the nature of the attack, the weapons used, and
the vital locations of Gil-Corona's injuries, a reasonable jury could
conclude that the non-life-threatening nature of Gil-Corona's injuries was
due to his luck or his attackers' ineptitude, not the absence of intent to
kill. See NRS 200.020(1); Dearman, 93 Nev. at 367, 566 P.2d at 409.
Accordingly, the State presented sufficient evidence to support Elizondo's
conviction of attempted murder. See McNair v. State, 108 Nev. 53, 56, 825
P.2d 571, 573 (1992) (stating that evidence is sufficient if, "after viewing
the evidence in the light most favorable to the prosecution, any rational
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trier of fact could have found the essential elements of the crime beyond a
reasonable doubt" (internal quotation marks omitted)). 3
Aggravated battery
Elizondo further argues that, although the evidence was
sufficient for the jury to convict him of simple battery, the evidence was
insufficient for the jury to find that the battery resulted in substantial
bodily harm, was accomplished using a deadly weapon, or was committed
in furtherance of a criminal gang. These arguments lack merit.
Substantial bodily harm
Substantial bodily harm is physical injury "which causes
serious, permanent disfigurement or protracted loss or impairment of the
function of any bodily member or organ; or . . . [p]rolonged physical pain."
NRS 0.060. Photographs of Gil-Corona's injuries were admitted into
evidence and Gil-Corona showed the jury the scars on his torso. Gil-
Corona testified that at the time of trial he had ongoing pain in his torso,
suffered multiple severe headaches each week, and might not be able to
3 To the extent that Elizondo argues that he could not be criminally
liable for attempted murder because Goode was the one who stabbed Gil-
Corona, we also reject this argument. In order to be criminally liable as a
principal to a crime, an "aider or abettor must have knowingly aided the
other person with the intent that the other person commit the charged
crime." Sharma v. State, 118 Nev. 648, 655, 56 P.3d 868, 872 (2002); see
also NRS 195.020 (stating that aiders and abettors are liable as
principals). Gil-Corona testified that one of his attackers said "go ahead"
before Goode stabbed him, suggesting that the group intentionally aided
and abetted Goode's stabbing of Gil-Corona. Moreover, Elizondo admitted
to Cook that he hit Gil-Corona in the head with a hammer and hit him in
the hand when he tried to protect himself. From this evidence, a
reasonable jury could conclude that Elizondo intended to kill Gil-Corona.
See McNair, 108 Nev. at 56, 825 P.2d at 573.
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continue working in construction due to his pain. This evidence was
sufficient for a rational jury to conclude that the attack caused substantial
bodily injury. See id.; Levi v. State, 95 Nev. 746, 748, 602 P.2d 189, 190
(1979) (stating that serious, permanent disfigurement "includes cosmetic
disfigurement," and a jury determines whether an injury is serious);
McNair, 108 Nev. at 56, 825 P.2d at 573.
Deadly weapon
A deadly weapon is an instrument "which, under the
circumstances in which it is used, attempted to be used or threatened to be
used, is readily capable of causing substantial bodily harm or death." NRS
193.165(6)(b). The State presented evidence that Elizondo hit Gil-Corona
on the head with a hammer and aided and abetted Goode's stabbing of Gil-
Corona in the head and torso. This evidence, combined with the evidence
of Gil-Corona's injuries discussed above, was sufficient for the jury to
conclude that the battery was accomplished with a deadly weapon. See
NRS 193.165(6)(b).
Gang enhancement
A person who commits a felony "knowingly for the benefit of,
at the direction of, or in affiliation with, a criminal gang, with the specific
intent to promote, further or assist the activities of the criminal gang" is
subject to an additional penalty. NRS 193.168(1). A "criminal gang" is:
any combination of persons, organized formally or
informally, so constructed that the organization
will continue its operation even if individual
members enter or leave the organization, which:
(a) Has a common name or identifying symbol;
(b) Has particular conduct, status and customs
indicative of it; and
(c) Has as one of its common activities engaging in
criminal activity punishable as a felony, other
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than the conduct which constitutes the primary
offense.
NRS 193.168(8). Elizondo appears only to argue that the evidence was
insufficient to establish the final element of the gang enhancement: that
VGV engages in felonious conduct as a common activity. See NRS
193.168(8)(c). This argument lacks merit.
In Origel-Candido v. State, we concluded that a gang expert's
testimony was insufficient to prove the felonious activity element of the
gang enhancement. 114 Nev. 378, 382-83, 956 P.2d 1378, 1381 (1998).
The gang expert in Origel-Candido testified that the gang in that case
qualified as a criminal gang under Nevada law and that he was aware of
felonies committed by gang members that benefitted the gang. Id. at 382,
956 P.2d at 1381. However, he "did not testify as to an approximate
number of . . gang members who committed felonies" or "that incoming
members of the gang were exhorted to felonious acts by senior members."
Id. at 383, 956 P.2d at 1381. We criticized this "conclusory testimony,"
explaining that "[t]he fact that individual members committed felony
crimes which benefitted the gang does not lead necessarily to the
conclusion that felonious action is a common denominator of the gang."
Id. Because the gang expert's testimony failed to address whether
felonious conduct was a common activity of the gang, we held that the
evidence was insufficient to prove the gang enhancement beyond a
reasonable doubt. Id. at 382-83, 956 P.2d at 1381.
Unlike the gang expert in Origel-Candido, the State's gang
expert in this case, Detective Souder, asserted facts rather than the legal
conclusion that VGV is a criminal gang. Souder testified that VGV
members commonly engage in felony burglary, robbery, assault, battery,
and drug activity. He testified that when a VGV member commits a
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crime, other members and affiliates are expected to join him, failure to do
so may result in physical retaliation, and committing crimes with VGV is
a way to get into and earn respect within VGV. He testified that if a VGV
member is attacked, other members are expected to retaliate to protect
and promote the gang. He testified that VGV had approximately 30
members and affiliates at the time of the attack and approximately 60
members and affiliates at the time of trial, and that a majority of VGV
members engage in felonious conduct. Finally, Souder testified to specific
examples of VGV members' felonious conduct. 4 Unlike the testimony in
Origel-Candido, Souder's testimony addressed the approximate number of
VGV members who committed felonies and explained that VGV members
and affiliates are expected to commit crimes with and for VGV. Based on
this testimony, a rational jury could find that VGV had as a common
activity engaging in conduct punishable as a felony. See NRS
193.168(8)(c); McNair, 108 Nev. at 56, 825 P.2d at 573.
Accordingly, the State presented sufficient evidence to support
Elizondo's convictions. See McNair, 108 Nev. at 56, 825 P.2d at 573.
The district court did not abuse its discretion by denying Elizondo's motion
for a new trial based on inconsistent verdicts
Next, Elizondo argues that the district court abused its
discretion by denying his motion for a new trial based on inconsistent
verdicts. The jury found that the battery was accomplished with a deadly
weapon and in furtherance of a criminal gang, but did not find these facts
4As discussed above, we are not persuaded that only adult felony
convictions are admissible as examples of gang members' felonious
conduct. See NRS 193.168(8)(c).
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with regards to attempted murder. Despite this possible inconsistency, we
conclude that the district court did not abuse its discretion.
The fact that a jury returns inconsistent verdicts does not
justify reversal of a conviction because inconsistent verdicts "often are a
product of jury lenity." United States v. Powell, 469 U.S. 57, 65 (1984); see
also Bollinger v. State, 111 Nev. 1110, 1116-17, 901 P.2d 671, 675-76
(1995) (citing Powell, 469 U.S. at 64-69). Where a jury returns
inconsistent verdicts, review for sufficiency of the evidence protects a
defendant "against jury irrationality or error." Powell, 469 U.S. at 67.
Because Elizondo points only to the inconsistent verdicts as grounds for a
new trial, and because the evidence was sufficient to support the
convictions, we conclude that the district court did not abuse its discretion
by refusing to grant a new trial. See id.; Meyer v. State, 119 Nev. 554, 561,
80 P.3d 447, 453 (2003) (reviewing a district court's denial of a motion for
new trial based on juror misconduct for an abuse of discretion).
Elizondo's convictions and sentence do not violate double jeopardy
Finally, Elizondo argues that sentencing him for attempted
murder and aggravated battery violated the Double Jeopardy Clause.
"The Double Jeopardy Clause protects against . . . multiple punishments
for the same offense." Jackson v. State, 128 Nev. „ 291 P.3d 1274,
1278 (2012). This court reviews a claim that a conviction violates double
jeopardy de novo. Id. at , 291 P.3d at 1277. If "a state legislature has
clearly authorized multiple punishments for the same offense[,] . . dual
punishments do not offend double jeopardy." Id. at 291 P.3d at 1278.
Under Nevada law, "[n]othing . . protects a person who, in an
unsuccessful attempt to commit one crime, does commit another and
different one, from the punishment prescribed for the crime actually
committed." NRS 193.330(2). Therefore, we concluded in Jackson that
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the Legislature clearly authorized multiple punishments for the same
conduct where that conduct constitutes both attempted murder and
aggravated battery. 128 Nev. at 291 P.3d at 1279-80. We further
concluded that these crimes were not lesser included offenses of each
other. Id. at , 291 P.3d at 1280 (citing Blockburger v. United States,
284 U.S. 299, 304 (1932)). Accordingly, convicting and sentencing
Elizondo for attempted murder and aggravated battery based on the same
conduct did not violate double jeopardy. Id. at , 291 P.3d at 1279-80.
Elizondo further argues that his convictions and sentences for
both crimes violate double jeopardy because the attempted murder
conviction was conditionally dismissed on the State's motion and later
reinstated after we issued our decision in Jackson. Although resentencing
"a defendant to an increased term once the defendant has begun serving
the initial sentence" violates double jeopardy, Wilson v. State, 123 Nev.
587, 594, 170 P.3d 975, 979 (2007), this case involves an initial sentencing
on a count for which Elizondo was not previously sentenced. Accordingly,
principles of double jeopardy are not violated merely because Elizondo was
sentenced on the aggravated battery count first and the attempted murder
count later. Moreover, Elizondo cites and we can find no authority that
mandates the conclusion that reinstating his attempted murder conviction
after conditional dismissal violated the Double Jeopardy Clause. We
therefore reject Elizondo's double jeopardy arguments. 5
Accordingly, we
5 Inaddition, Elizondo argues that cumulative error warrants
reversal. Because we conclude that Elizondo's assertions of error lack
merit, his cumulative error argument also fails. See Valdez v. State, 124
Nev. 1172, 1195, 196 P.3d 465, 481 (2008).
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ORDER the judgment of the district court AFFIRMED.
J.
Pickering
a---9-CM J.
Parraguirre
cc: Hon. Valorie J. Vega, District Judge
Law Office of Betsy Allen
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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SAITTA, J., concurring:
Though I concur with the majority in affirming Elizondo's
conviction, I write separately to comment on the issue of NRS 193.168(8)'s
gang enhancement provision.
NRS 193.168(8)(c) requires the State to prove, inter alia, that
the gang at issue "[h]as as one of its common activities engaging in
criminal activity punishable as a felony, other than the conduct which
constitutes the primary offense." The majority correctly observes that
NRS 193.168(8)(c) uses the term "punishable" as opposed to "punished"
and that NRS 193.168(7) allows the State to prove the gang enhancement
using expert testimony. Since a statute's plain meaning controls its
interpretation, State v. Lucero, 127 Nev. , , 249 P.3d 1226, 1228
(2011), I must agree with the majority's conclusion that the Legislature
intended to allow the State to offer evidence other than prior convictions to
prove the gang enhancement.
The majority concludes that juvenile adjudications are
admissible to prove a gang sentencing enhancement because no statute
expressly prohibits their use for this purpose. However, a cornerstone of
juvenile justice law is that juvenile adjudications are civil and "not
criminal in nature." NRS 62D.010(1)(a); see also State v Javier C., 128
Nev. , 289 P.3d 1194, 1197 (2012). Thus, the majority allows the
admission of the juvenile records of other purported gang members to
prove the gang sentencing enhancement for the present defendant.
This analysis is troubling because juvenile adjudications
typically use less formal processes and fewer procedural safeguards than
are present in criminal trials. See NRS 62D.010(1). Consequently, the use
of juvenile adjudications to provide evidence in a criminal trial—as was
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done here—can allow the admission of evidence that has not been subject
to the procedural standards required in a criminal trial.
Furthermore, the admission of other individuals' unrelated
juvenile adjudications is troubling because it allows a defendant's
wrongdoing to be judged by misconduct that is not connected to the
charged crime and in which the defendant was not involved. I can identify
no other area of criminal law that allows the use of other individuals'
unrelated conduct to increase a defendant's punishment. Though the
present record does not suggest, and Elizondo does not argue, that the
juvenile adjudication records at issue here had been sealed and therefore
excluded under NRS 6211.130, 1 this does not alleviate my concerns about
using others' unrelated crimes activity against a criminal defendant.
Finally, I write separately to express my concern about NRS
193.168(8)(c)'s lack of standards to assist our courts in determining what
evidence can be admitted to prove the felonious activity element. While
the majority recognizes that the statute contains few, if any, meaningful
standards, it nonetheless concludes that this is evidence of the
Legislature's unambiguously expressed intent not to restrict the type of
evidence that could be considered for a gang sentencing enhancement.
While this conclusion may be correct in light of the statute's plain
meaning, see Lueero, 127 Nev. at , 249 P.3d at 1228, it leaves the
district courts in an unenviable position of making decisions that lack any
'Nor does Elizondo argue that any other provision of NRS Chapter
62H requires the exclusion of these records.
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type of direction or standard. As a result, this statute promotes
inconsistent and unpredictable applications.
Although I write separately to express my concerns about this
standardless statute and the troubling use of other gang members' conduct
to prove that a defendant was a member of a gang, I join my colleagues in
their disposition of this matter because their ultimate conclusions about
the application of NRS 193.168(8)(c) and the other issues presented in the
present case are correct.
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