Garcia v. State

• Decision Date: 23 June 2005
• Docket Number: No. 42403.,42403.
• Citation: 113 P.3d 836,121 Nev. 327
• Parties: Ramon Jacobo GARCIA, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

113 P.3d 836

121 Nev. 327

Ramon Jacobo GARCIA, Appellant, v. The STATE of Nevada, Respondent.

No. 42403.

Supreme Court of Nevada.

June 23, 2005.

JoNell Thomas, Las Vegas, for Appellant.

Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, James Tufteland, Chief Deputy District Attorney, and Jerome T. Tao, Deputy District Attorney, Clark County, for Respondent.

Before ROSE, GIBBONS and HARDESTY, JJ.

OPINION

ROSE, J.

On appeal, Ramon Jacobo Garcia argues that his convictions should be reversed because (1) the jury instruction on false imprisonment must include an asportation requirement, (2) the State presented insufficient evidence to support a verdict on kidnapping and false imprisonment, (3) the district court failed to hold a hearing on his motion to dismiss counsel, (4) the statutory reasonable doubt instruction is unconstitutional, (5) the district court failed to permit cross-examination of certain non-adverse witnesses, and (6) the convictions for conspiracy to commit robbery and conspiracy to commit burglary violate the Double Jeopardy Clause. We hold that when a person is charged with false imprisonment and a separate associated offense, an additional instruction stating that the false imprisonment requires a factual basis independent of the associated crime is required. Accordingly, Garcia's convictions for false imprisonment must be set aside. However, we conclude that the State presented sufficient evidence on the charges of kidnapping, that the district court did not abuse its discretion in failing to hold a hearing on Garcia's motion to dismiss counsel, and that the reasonable doubt instruction required by NRS 175.211 is not unconstitutional. In addition, we conclude that the record is insufficient to establish that the district court erred by not permitting Garcia to cross-examine non-adverse witnesses at trial. Finally, we conclude that the evidence produced at trial is insufficient to support Garcia's conviction on the charge of conspiracy to commit robbery at the Silver Dollar Store, and we reverse the district court's judgment of conviction on that charge but affirm the conspiracy to commit burglary charge.

FACTS

Garcia, along with his brother Juan Garcia (Juan) and two other codefendants, Juan Cota (Cota) and Juan Castaneda (Castaneda), was charged with multiple counts of robbery, kidnapping, and other related offenses stemming from the robbery of four businesses in Clark County, Nevada, between July 23 and July 31, 2001. Cota and Castaneda pleaded guilty before trial pursuant to plea negotiations. Following a five-day jury trial, Garcia was convicted on all 12 counts of robbery, attempted robbery, first-degree kidnapping, and conspiracy stemming from his participation in two of the four incidents. He was sentenced to serve a minimum of 26 years and a maximum of 4 consecutive life sentences in the Nevada Department of Corrections, and ordered to pay restitution in the amount of $4,900.

On the afternoon of July 23, 2001, Garcia and one of his co-conspirators entered the automotive shop known as Fuel Injection Systems located at 642 North Main Street in Las Vegas, Nevada. The two men discussed having their vehicle repaired and then watched a soccer game while waiting for the remaining customers to leave. Garcia then pointed a handgun at Fernando Lozada, the owner of Fuel Injection Systems, and Remsjao Barre, one of his employees. Garcia ordered Lozada and Barre to the back of the store, told them to lie down on their stomachs, and bound their hands with duct tape. Garcia and his accomplice then demanded money from Lozada and Barre, who gave them $300. The two men then ransacked the store and fled with more than $3,000, along with a cordless telephone handset and a cellular telephone.

Initially, Lozada identified Garcia and his brother as suspects from a photographic lineup. However, at trial Lozada testified that Garcia was the assailant, and he exonerated Garcia's brother Juan. Barre also identified Garcia as the man who robbed them, testifying that he was 100% certain that Garcia was the man. A Las Vegas Metropolitan Police Department (LVMPD) crime scene analyst testified that she was unable to obtain fingerprints from the crime scene.

Following the Fuel Injection Systems robbery, two robberies occurred at Carniceria Los Alamitos and B & H Radiators on July 26 and 27, 2001, with similar factual circumstances. The victims in each incident identified Garcia's brother Juan as one of the gunmen. However, Garcia was not identified as an assailant in either incident and was not charged in connection with those robberies.

The fourth robbery occurred on July 31, 2001, at the Silver Dollar Family Discount Store, located at 33 North 25th Street in Las Vegas, Nevada. As the owner, Darryl Stuckert, returned to the store he noticed an older model white Cadillac at the far end of the parking lot. Inside the store were Stuckert's wife and four Hispanic men. One was a customer, and the other three participated in the robbery. Garcia pointed his gun at Mr. Stuckert, and one of his two accomplices pointed a gun at the customer who was still in the store. Mrs. Stuckert set off two alarms, one silent and the other audible. The men ordered Mrs. Stuckert to open the cash register, but she refused. Garcia ordered all three victims into the back office and directed one of his accomplices to grab the cash register. Garcia ordered Mr. Stuckert to turn off the alarm, but when he was unable to do so, Garcia unsuccessfully attempted to disarm it by smashing the keypad with his gun. Garcia and his two accomplices were in the store for approximately three to four minutes. Before leaving, Garcia locked the Stuckerts and the remaining customer in the back office by throwing the deadbolt on the security door from the outside. Fortunately, the three were able to escape the office by way of a side door that was not locked.

The police investigated all four incidents and learned that Garcia, his brother Juan, Cota, and Castaneda might be involved in the crimes. The four men lived together in an apartment a few blocks from the locations of the crimes. The police conducted a search of the apartment — initially pursuant to consent from Juan, and subsequently with a warrant. As a result, the police recovered several items including the cordless telephone handset taken from Fuel Injection Systems and the cash register from the Silver Dollar Family Discount Store.

At trial, Garcia's girlfriend, Kacey Nicole Mix (Mix), testified that she stayed in the apartment with the four men and that they drove a white Cadillac matching the description Mr. Stuckert provided. She testified that there were guns in the apartment and that the group had a lot of money in their possession, although to her knowledge none of them maintained a job. Witnesses from both the Fuel Injection Systems and Silver Dollar robberies identified Garcia from the photographic lineup shown to them by the LVMPD. The police arrested all four men and charged Garcia with crimes stemming from the Fuel Injection Systems and Silver Dollar Discount Store robberies. Before trial, on August 21, 2003, Garcia filed a proper person motion to dismiss counsel and motion for appointment of alternate counsel. Garcia's motion was based on his attorney's alleged failure to (1) communicate with him, (2) investigate, (3) discuss Garcia's being forced into plea bargains on January 1, 2003, (4) address mistaken information regarding prior felonies and the influence of this information on the plea negotiations, and (5) investigate and use available resources to obtain a fair sentence. Garcia filed the motion in open court, but he refused to speak to the court regarding the matter. Garcia's attorney, Joseph Sciscento, explained to the court that he had visited Garcia at the jail and discussed the case through an interpreter because Garcia speaks only Spanish. Sciscento noted that he had gone over the discovery with Garcia, but that he had refused to leave the discovery information with Garcia at the jail out of concern that another inmate would have to translate the information and could then testify against him at trial. The district court denied Garcia's motion. Sciscento noted his concerns and agreed to deliver all discovery to Garcia for his review.

Following trial, the jury convicted Garcia of the following crimes for his participation in the Fuel Injection Systems incident: one count of burglary while in possession of a firearm, two counts of robbery with the use of a deadly weapon for taking money from Fernando Lozada and Remsjao Barre, and two counts of first-degree kidnapping with the use of a deadly weapon also pertaining to Lozada and Barre.

For his actions in the Silver Dollar Store, the jury convicted Garcia of: one count of conspiracy to commit burglary, one count of burglary while in possession of a firearm, one count of conspiracy to commit robbery, one count of attempted robbery with the use of a deadly weapon for attempting to take money from Darryl Stuckert, Marie Stuckert, and Leonardo Jeminez, and three counts of false imprisonment with the use of a deadly weapon also involving the Stuckerts and Jeminez.

DISCUSSION

Jury instruction on false imprisonment

Garcia argues that his convictions for false imprisonment in the Silver Dollar robbery must be reversed because the district court did not properly instruct the jury on the elements of the offense. Garcia contends that to convict him of false imprisonment, the jury had to find that the detention of the victims was not incidental to the robbery. Garcia concedes that false imprisonment is a lesser-included offense of the crime of kidnapping, but he argues that because some movement or confinement is inherent in any robbery, punishment for robbery and false imprisonment in this case amounts to a double punishment not contemplated by the Legislature.

While Garcia makes a...