Guerrina v. State

Decision Date07 June 2018
Docket NumberNo. 71444,71444
Citation419 P.3d 705
Parties Robert GUERRINA, Appellant, v. The STATE of Nevada, Respondent.
CourtNevada Supreme Court

Sandra L. Stewart, Las Vegas, for Appellant.

Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson, District Attorney, Krista D. Barrie, Chief Deputy District Attorney, and Charles W. Thoman, Deputy District Attorney, Clark County, for Respondent.



By the Court, STIGLICH, J.:

In this appeal, we first determine whether a criminal defendant's request to represent himself was properly denied as "untimely" when the request was made 24 days prior to the scheduled trial date. We conclude that, under Lyons v . State ,1 such a request may be denied as untimely if granting it will delay trial. We further conclude that Lyons is consistent with United States Supreme Court precedent and decline to overrule it. We therefore affirm the district court's denial of Robert Guerrina's request to represent himself.

Next, we consider whether the State produced sufficient evidence to sustain convictions for robbery and kidnapping when both convictions stem from Guerrina's actions over the course of a single incident. As we held in Mendoza v. State, the dual convictions will be sustained if the perpetrator's movement or restraint of the victim "stand alone with independent significance from the act of robbery itself, create a risk of danger to the victim substantially exceeding that necessarily present in the crime of robbery, or involve movement, seizure or restraint substantially in excess of that necessary to its completion." 122 Nev. 267, 275, 130 P.3d 176, 181 (2006). We expressly overrule prior opinions inconsistent with Mendoza, and we affirm Guerrina's dual convictions of robbery and kidnapping.

Finally, we consider whether the State produced sufficient evidence to support charges that the defendant used or possessed a "deadly weapon" during the underlying acts. Because there was insufficient evidence that Guerrina's "weapon" satisfied an applicable definition of deadly weapon, we vacate and reverse his deadly weapon sentencing enhancements.


Ana Cuevas worked at FastBucks, a payday loan store in Henderson, Nevada. Each morning, she retrieved money from the store and deposited it in the bank before the store opened at 10 a.m. On most mornings, that money consisted of the business's proceeds from the previous day only, but on Mondays it included proceeds from both Friday and Saturday.

One Monday morning, as Cuevas was walking toward the store, a man wearing a hat and sunglasses approached her. He carried a plastic bag and an object that Cuevas believed to be a knife. The man ordered Cuevas to unlock the FastBucks door and accompany him inside.

Once inside, the man locked the door, stood with his back to it, and ordered Cuevas to "get the money." As Cuevas went to a back room to retrieve the store's money, the man removed a spray can from his bag and sprayed a surveillance camera above the door. After Cuevas handed him the money, the man demanded she give him her personal wallet and cellphone. Cuevas complied. The man then ordered Cuevas to disconnect a FastBucks telephone in the room and throw it onto the floor. Cuevas again complied. The man removed a container from his bag and poured its liquid contents onto the floor in front of the door. Finally, he exited the store and locked the door behind him using Cuevas's key. Once locked, the door could not be opened from the inside without a key—which Cuevas no longer possessed.

After the man departed, Cuevas reconnected the FastBucks telephone and called the police. Upon entering the building, police identified the liquid near the door as "chlorine or bleach, something nondangerous." Cuevas told a detective that the perpetrator was Robert Guerrina, a former FastBucks employee whom she had previously seen several times at work events. The detective showed her a photograph of Guerrina from DMV records. Cuevas confirmed that he was the perpetrator.

The detective subsequently learned that Guerrina had been staying at a Motel 6 in Las Vegas. The detective spoke with the Motel 6 manager and viewed surveillance video of the motel on the day of the robbery. The detective testified that the video showed Guerrina entering the Motel 6 at some time "after the incident" and then departing that same day. He further testified that Guerrina did not return to the Motel 6, despite having paid in advance for the following day. He explained that he did not make a copy of the security tape because "it didn't establish the probable cause of [his] case," and it would not have provided Guerrina with an alibi defense because "there wasn't a conflict with the time." The tape was subsequently destroyed.

At Guerrina's arraignment, the district court appointed a public defender to represent him. Ten weeks later, Guerrina moved to dismiss the public defender, claiming various inadequacies in representation. The district court granted Guerrina's motion and appointed Edward Hughes to replace the public defender. Eight months later—and 24 days before trial—Guerrina moved to dismiss Hughes and represent himself. In a hearing on that motion, Guerrina stated that he would require a continuance if he represented himself because he would need additional time to prepare for trial. The district court denied Guerrina's request as untimely.

After a four-day trial, the jury convicted Guerrina of burglary while in possession of a deadly weapon, first degree kidnapping with use of a deadly weapon, robbery with use of a deadly weapon, and coercion.


Guerrina's Sixth Amendment right to self-representation was not violated

Guerrina argues that the district court violated his Sixth Amendment right to self-representation when it denied his request to represent himself. We review the district court's order denying Guerrina's request for an abuse of discretion. See Lyons v. State, 106 Nev. 438, 441, 796 P.2d 210, 211 (1990), abrogated in part on other grounds by Vanisi v. State, 117 Nev. 330, 341, 22 P.3d 1164, 1172 (2001).

"A criminal defendant has the right to self-representation under the Sixth Amendment of the United States Constitution and the Nevada Constitution." Vanisi, 117 Nev. at 337, 22 P.3d at 1169 (citing Faretta v. California , 422 U.S. 806, 818-19, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ). But that right is not absolute. In Nevada, "[a] court may ... deny a request for self-representation if the request is untimely, equivocal, or made solely for purposes of delay or if the defendant is disruptive." Id. at 338, 22 P.3d at 1170.

In Lyons v. State, this court created a two-part test to determine whether a request for self-representation (a Faretta request) is untimely. 106 Nev. at 445-46, 796 P.2d at 214. If the request can be granted "without need for a continuance, the request should be deemed timely." Id. at 446, 796 P.2d at 214. But if granting the request would require a continuance, the district court may deny the request as untimely if there is no "reasonable cause to justify [the] late request." Id.

Guerrina argues that the Lyons timeliness test violates Faretta v. California, the Supreme Court case establishing a criminal defendant's Sixth Amendment right to self-representation. 422 U.S. at 817-19, 95 S.Ct. 2525. In that case, a defendant made a request for self-representation "weeks before trial."2 422 U.S. at 835, 95 S.Ct. 2525. The trial court found that the defendant lacked the ability to adequately defend himself, so it denied his request. Id. at 808-10, 95 S.Ct. 2525. The Supreme Court vacated and remanded, holding that the Sixth Amendment includes a "right of self-representation," and the trial court violated that right when it denied the defendant's request. Id. at 821, 836, 95 S.Ct. 2525. But Faretta did not address the issues of timeliness and delay.3 Rather, a subsequent Supreme Court opinion implicitly approved courts' practices of denying Faretta requests as untimely. Martinez v. Court of Appeal of Cal., 528 U.S. 152, 161-62, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000) ("The defendant must voluntarily and intelligently elect to conduct his own defense, and most courts require him to do so in a timely manner." (internal quotation marks and citation omitted) ). In short, Faretta held that a defendant's request to represent himself, submitted an unspecified number of "weeks before trial," could not be denied merely because the district court found his legal acumen to be lacking. 422 U.S. at 835-36, 95 S.Ct. 2525. It "nowhere announced a rigid formula for determining timeliness without regard to the circumstances of the particular case." People v. Lynch, 50 Cal.4th 693, 114 Cal.Rptr.3d 63, 237 P.3d 416, 439 (2010), abrogated in part on other grounds by People v. McKinnon , 52 Cal.4th 610, 130 Cal.Rptr.3d 590, 259 P.3d 1186, 1212 (2011).

We conclude that the Lyons timeliness rule is consistent with Supreme Court precedent. In affording district courts discretion to deny unjustifiably late Faretta requests that will cause delay, Lyons furthers the State's interest "in avoiding disruptions and delays" while protecting defendants' Sixth Amendment right to self-representation. See Williams v . State , 655 P.2d 273, 276 (Wyo. 1982).

In this case, Guerrina insisted that he would require a continuance if his Faretta request was granted, so, under Lyons, the district court had discretion to deny Guerrina's request as untimely unless Guerrina presented "reasonable cause to justify [his] late request." 106 Nev. at 446, 796 P.2d at 214. Guerrina presented no such "reasonable cause." He pointed to no event that triggered his loss of faith in counsel 8 months after counsel's appointment and 24 days before trial. Indeed, Guerrina admitted that he did not question Hughes' lawyering abilities, and Hughes was Guerrina's second appointed counsel due to Guerrina's dismissal of his first lawyer. In sum, because...

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