Sanchez-Dominguez v. State

• Decision Date: 27 February 2014
• Docket Number: No. 58345.,58345.
• Citation: 318 P.3d 1068,130 Nev. Adv. Op. 10
• Parties: David SANCHEZ–DOMINGUEZ, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

318 P.3d 1068

130 Nev. Adv. Op. 10

David SANCHEZ–DOMINGUEZ, Appellant,

v.The STATE of Nevada, Respondent.

No. 58345.

Supreme Court of Nevada.

Feb. 27, 2014.

Richard F. Cornell, Reno, for Appellant.

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

BEFORE THE COURT EN BANC.¹

OPINION

By the Court, PICKERING, J.:

First-degree felony murder occurs when a murder is “[c]ommitted in the perpetration or attempted perpetration of” certain felonies, including burglary. NRS 200.030(1)(b). In this appeal, we address the meaning of “in the perpetration or attempted perpetration of” a burglary, specifically, whether a killing must be caused by, and occur at the exact moment of, a burglar's entry into a protected structure. Because NRS 200.030(1)(b) holds felons strictly responsible for killings that result from their felonious actions, we affirm the judgment of conviction, even though the killing here occurred after the offense of burglary was complete.

I.

David Sanchez–Dominguez married Maria Angustias Corona in 2002. Over the course of their seven-year marriage, Sanchez–Dominguez subjected Maria to physical and mental abuse, Maria attempted to leave Sanchez–Dominguez several times, but always returned. In September 2009, Maria again left Sanchez–Dominguez and moved into her mother's home. She also obtained a temporary protective order that forbade Sanchez–Dominguez from coming within 100 yards of Maria, her mother's home, or her place of work. Despite the protective order, Sanchez–Dominguez continued to pursue Maria.

On November 13, 2009, Sanchez–Dominguez drove to Maria's mother's home. He entered the home, uninvited, through the unlocked front door. Inside, he encountered several of Maria's relatives, including her mother, two cousins, and two brothers. Repeatedly, Sanchez–Dominguez asked for Maria and was told that she was not home. Maria's relatives told Sanchez–Dominguez to leave, but he refused. When Maria's cousin Jose moved toward the phone to call 911, Sanchez–Dominguez pulled a gun from the waist of his pants and told Jose not to move. He then pointed the gun at Maria's mother. Hearing the commotion, Roberto Corona, Maria's brother, came downstairs. Upon realizing what was happening and seeing that Sanchez–Dominguez had the gun drawn, Roberto stepped between his mother and Sanchez–Dominguez and said, “if you're going to shoot, shoot.” Immediately, Sanchez–Dominguez held the gun to Roberto's chest and fired a single shot, killing him.

The State charged Sanchez–Dominguez with burglary, aggravated stalking, and murder. The murder count was charged as willful, deliberate, and premeditated murder and, alternatively, as felony murder in the perpetration of burglary. After a seven-day trial, the jury found Sanchez–Dominguez guilty on all three counts. The jury then chose a sentence of life imprisonment without parole for the murder, and the district court sentenced Sanchez–Dominguez on the remaining counts.

Sanchez–Dominguez raises two issues on appeal, only one of which warrants extended discussion: Did the district court err by issuing an incomplete jury instruction regarding felony murder and rejecting the alternative instructions Sanchez–Dominguez proffered, thereby allowing the jury to base a first-degree murder conviction on the felony-murder theory predicated on a completed felony? ²

II.

In the district court, Sanchez–Dominguez's theory of defense was that the felony-murder rule did not apply because the underlying felony, burglary, was complete before the killing happened, and thus, the death did not occur “during the perpetration or attempted perpetration” of a felony. He offered three jury instructions consistent with his theory of the case:

(1) Burglary is confined to a fixed locus in time. The crime of Burglary is complete at entry into a house where the necessary specific intent is also determined to exist at that same fixed locus in time. All matters following the burglary are not a part of the Burglary. Thus, any act of violence following the actual entry into a house cannot be an act done during the perpetration or attempted perpetration of a Burglary.

Because the evidence in this case demonstrates that ROBERTO CORONA was killed after the defendant's entry into the house ..., you may not consider the alternativetheory of felony murder as a basis for conviction of First Degree Murder. That theory is therefore removed from your consideration.

The only theory of First Degree Murder that you may consider is premeditated and deliberate murder as defined in these instructions.

(2) In order to find that the defendant willfully and unlawfully killed ROBERTO CORONA in the perpetration or attempted perpetration of a Burglary ..., you must find beyond a reasonable doubt that the killing occurred while the defendant was entering the house.

(3) The offense of Burglary is complete upon entry of a house only when at the time the house is entered, the defendant has the specific intent to commit assault or battery or coercion or kidnapping therein.

The district court rejected the proffered instructions on the grounds they did not accurately state the law.

Citing Carter v. State, 121 Nev. 759, 765, 121 P.3d 592, 596 (2005), Sanchez–Dominguez argues that defendants are entitled to have the jury instructed on their theory of the case. He urges that even if his proposed instructions were poorly worded, the district court had an obligation to provide the substance of the requested instructions to the jury. And because the district court refused to instruct the jury on the substance of his theory that the burglary ended before the murder, Sanchez–Dominguez maintains that the court violated his constitutional rights.

We review the district court's rejection of the proposed instructions for an abuse of discretion, keeping in mind that a defendant is not entitled to misleading, inaccurate, or duplicative jury instructions, Crawford v. State, 121 Nev. 744, 748, 754, 121 P.3d 582, 585, 589 (2005).

The first and second proposed instructions misstate the law regarding felony murder because the duration of felony-murder liability can extend beyond the termination of the felony. See infra § III(B). Thus, the district court had no obligation to give either instruction. See Barron v. State, 105 Nev. 767, 773, 783 P.2d 444, 448 (1989) (“if a proffered instruction misstates the law or is adequately covered by other instructions, it need not be given”); see also Eddy v. State, 496 N.E.2d 24, 27–28 (Ind.1986) (affirming district court's rejection of defendant's completed-felony instruction). The third instruction is an accurate statement of the law of burglary enumerated in NRS 205.060. Nonetheless, the court did not err by omitting this instruction because the instruction duplicates, and is less accurate than, the burglary instruction the court gave as instruction 31. ³See Crawford, 121 Nev. at 754, 121 P.3d at 589. Thus, the district court did not abuse its discretion by rejecting the three instructions that Sanchez–Dominguez proffered.

III.

Sanchez–Dominguez also argues that jury instruction number 24 did not include all the elements of felony murder. The instruction read:

The elements of the second category of First Degree Murder are:

1. During the defendant's perpetration or attempted perpetration of a Burglary;

2. a killing resulted.

Whenever death occurs during the perpetration or attempt to perpetrate certain felonies, including Burglary, the killing constitutes First Degree Murder. This second category of First Degree Murder is the “Felony Murder” rule.

While the district court was settling jury instructions, Sanchez–Dominguez objected that the phrase “a killing resulted” did not have the same meaning as “a murder committed in the perpetration.” He did not tender an alternative instruction to capture this concept or expand on this objection.

Now, for the first time on appeal, Sanchez–Dominguez argues that instruction 24 erroneouslyomitted the principle of causation from its definition of felony murder, thereby relieving the State of its burden of proving “that the killing [was] linked to or part of the series of incidents so as to be one continuous transaction,” as required by Payne v. State, 81 Nev. 503, 506–07, 406 P.2d 922, 924–25 (1965). At oral argument, Sanchez–Dominguez admitted that he did not request a causation instruction or use causation as a theory of his defense. And so, Sanchez–Dominguez essentially argues that the district court had a sua sponte obligation to instruct the jury on the required connection between the burglary and the killing.

Generally, a party's failure to object to or request an instruction precludes appellate review. Flanagan v. State, 112 Nev. 1409, 1423, 930 P.2d 691, 700 (1996); Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003) (failure to clearly object to a jury instruction generally precludes review). There is an exception to this rule, however, if a plain and obvious error occurred that is so serious, it affected the defendant's substantial rights. Green, 119 Nev. at 545, 80 P.3d at 95. “In conducting plain error review, we must examine whether there was ‘error,’ whether the error was ‘plain’ or clear, and whether the error affected the defendant's substantial rights.” Id. To demonstrate plain error, the appellant has the burden of demonstrating actual prejudice. Id.

A.

“A necessary antecedent to invoking the plain-error doctrine is to determine whether error occurred at all.” People v. Walker, 367 Ill.Dec. 591, 982 N.E.2d 269, 273 (Ill.App.Ct.2012); see also Archanian v. State, 122 Nev. 1019, 1031, 145 P.3d 1008, 1017 (2006) (the first step in conducting plain-error analysis is to consider whether an error exists).

NRS 200.030(1)(b) defines first-degree felony murder as a killing that is “[c]ommitted in the perpetration or attempted...