218 P.3d 501 (Nev. 2009), 52110, Mendoza-Lobos v. State

Docket Nº:52110.
Citation:218 P.3d 501
Opinion Judge:HARDESTY, C.J.:
Party Name:Douglas MENDOZA-LOBOS, Appellant, v. The STATE of Nevada, Respondent.
Attorney:Catherine Cortez Masto, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Respondent.
Judge Panel:We concur: CHERRY, SAITTA and GIBBONS, JJ.DOUGLAS, J., with whom PARRAGUIRRE and PICKERING, JJ., agree, concurring in part and dissenting in part: We concur: PARRAGUIRRE and PICKERING, JJ.
Case Date:October 29, 2009
Court:Supreme Court of Nevada
 
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Page 501

218 P.3d 501 (Nev. 2009)

Douglas MENDOZA-LOBOS, Appellant,

v.

The STATE of Nevada, Respondent.

No. 52110.

Supreme Court of Nevada, En Banc.

October 29, 2009

Page 502

Catherine Cortez Masto, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Respondent.

OPINION

HARDESTY, C.J.:

In this appeal, we address two issues related to recent amendments to the deadly weapon enhancement statute, NRS 193.165(1), that require the district court to consider enumerated factors and state on the record that it has considered the factors in determining

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the length of the enhancement sentence.1 First, we consider whether these amendments to NRS 193.165(1) violate the separation-of-powers doctrine. Although we conclude that the amended statute violates the separation-of-powers doctrine to the extent that it requires the courts to state on the record that the enumerated factors have been considered and to make specific findings in that respect, we nonetheless elect to abide by the mandate contained therein because it serves a laudable legislative goal with respect to the length of enhancement sentences and facilitates appellate review. Second, we consider whether NRS 193.165(1) requires the district court to make findings on the record before imposing a sentence enhancement for the use of a deadly weapon. We conclude that it does and that findings must be made for each enhancement. Applying our holding to the instant case, we conclude that the district court's failure to make the required findings for two of appellant Douglas Mendoza-Lobos' enhancements does not amount to plain error warranting reversal of his conviction and sentence.2 Therefore, we affirm the judgment of conviction.

RELEVANT FACTS AND PROCEDURAL HISTORY

Mendoza-Lobos was convicted, pursuant to a jury verdict, of burglary, robbery with the use of a deadly weapon, sexual assault with the use of a deadly weapon, attempted sexual assault with the use of a deadly weapon, assault with a deadly weapon, and battery with a deadly weapon.

At sentencing, the district court heard argument from defense counsel and the State, and listened to the victim's impact statement and Mendoza-Lobos' statement in allocution. Before pronouncing sentence, the State reminded the district court that, pursuant to NRS 193.165, it was required to make " finding[s] on the record" regarding the sentences imposed for deadly weapon enhancements. The district court then made the following statement:

Well, there are several of these charges that involve the use of a deadly weapon. And it looks like we have No. II, No. III and No. IV all on additional terms for the use of a deadly weapon. The statute NRS 193.167[sic] talks about the enhancement for the use of a deadly weapon and calls on the court to consider the following information which are: the facts and circumstances of the crime or criminal violation, also the criminal history of the person, the impact of the crime or criminal violation on a victim, also any mitigating factors presented by the person and any other relevant information. And certainly when you look at the facts and circumstances of the crime or criminal violations, you know, this is a sexual assault at gunpoint, you know, a very, very serious crime. Hardly any crime could be worse than this one.

In addition, when you look at the impact of the crime on the victim and, you know, the victim we have here is just [sic] Ms. Quintero, but also the gentleman who arrived there was certainly also a victim and put into great anxiety, I'm sure, when the pistol was pointed at him and trigger pulled and he hears the click of the hammer. You know, you might think this is the end.

So, you know, when especially I hear Ms. Quintero, you know, talk about her circumstance and how she's been violated and ultimately now she will be forced to

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move, and something tells me that that would be reasonable for almost anybody in that same circumstance, is that you just couldn't remain in the same place and feeling alone and vulnerable there, at least some other place she could get a fresh start and a much better chance of coming to a more normal mental state in her home.

With regard to the criminal history, there is in fact a fairly minimal criminal history here. It's not nonexistent, but it's just careless driving and a minor in possession of alcohol. So, you know, in looking at all of these factors, the very serious nature of the crime and mitigation, et cetera, of course there isn't much in mitigation in a way when you look at the evaluation that Steven Ing has prepared, it doesn't portray a mental state for Mr. Mendoza-Lobos that's very favorable at all. Looks like he's somebody who does need extensive, you know, change of mind-set to be prepared to live out in society again and not be a serious threat. So I do find that the proposals for consecutive additional time due to the use of a deadly weapon are well appropriate.

Mendoza-Lobos did not object to the sufficiency of the district court's compliance with and findings under NRS 193.165(1).

The district court sentenced Mendoza-Lobos to serve various consecutive prison terms totaling 35 years to life. For the enhanced offenses, the district court imposed an enhancement sentence that was equal to the sentence for the underlying offense (48-120 months) with respect to the charges of robbery with the use of a deadly weapon and attempted sexual assault with the use of a deadly weapon and an enhancement sentence at the top end of the enhancement range (96-240 months) for the sexual assault with the use of a deadly weapon.

DISCUSSION

On appeal, Mendoza-Lobos contends that the district court failed to comply with NRS 193.165(1) in imposing the sentences for the deadly weapon enhancements because it failed to articulate sufficient findings on the record. However, as a threshold matter, we first elect to address the State's claim, raised during oral argument, that the Legislature lacks the power to require the district courts to consider specific factors and to state on the record that they have considered those factors when determining the length of the enhancement sentence.

Legislative authority

The State contends that because NRS 193.165(1) compels the district courts to consider certain factors when imposing sentences for deadly weapon enhancements and to state on the record that they have done so, the statute infringes on the power of the judiciary and therefore violates the separation-of-powers doctrine. We agree with the State to the extent that the statute requires the district courts to state on the record that they have considered the enumerated factors, but we elect to abide by the legislative mandate and direct the district courts to comply with the statute.

NRS 193.165(1) provides that persons using a deadly weapon in the commission of a crime shall, in addition to the punishment for that crime, be sentenced to a term in prison between 1 and 20 years. In determining the length of the additional penalty, the district court must consider: " (a) [t]he facts and circumstances of the crime; (b) [t]he criminal history of the person; (c) [t]he impact of the crime on any victim; (d) [a]ny mitigating factors presented by the person; and (e) [a]ny other relevant information." NRS...

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