Villanueva v. State

• Docket Number: 81836-COA
• Decision Date: 17 November 2021
• Parties: JOSE VILLANUEVA, Appellant, v. THE STATE OF NEVADA, Respondent.
• Court: Nevada Court of Appeals

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JOSE VILLANUEVA, Appellant,
v.
THE STATE OF NEVADA, Respondent.

No. 81836-COA

Court of Appeals of Nevada

November 17, 2021

UNPUBLISHED OPINION

ORDER OF AFFIRMANCE

Jose Villanueva appeals under NRAP 4(c) from a judgment of conviction entered pursuant to a jury verdict of one count of conspiracy to commit murder, one count of conspiracy to commit kidnapping, one count of first degree kidnapping with use of a deadly weapon resulting in substantial bodily harm, one count of attempt murder with use of a deadly weapon, one count of conspiracy to commit robbery, and one count of robbery with use of a deadly weapon. Eighth Judicial District Court, Clark County; Jennifer P. Togliatti, Judge.

At some point, Yoandy Fernandez-Morales induced the victim, Osvaldo Perez-Palacio, to buy a life insurance policy and designate him as the beneficiary.^[1] Not long after, Fernandez-Morales also told Perez-Palacio that if Perez-Palacio wanted a new job (and he did), Fernandez-Morales would pick him up and take him to Fernandez-Morales's employer at an off-site laundry facility in the middle of the night. But Fernandez-Morales cautioned Perez-Palacio not to tell anyone about it and to bring his important legal documents with him.

When Fernandez-Morales came to pick up Perez-Palacio, he did so with another man, Jose Juarez-Hernandez. Fernandez-Morales told

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Perez-Palacio that he could not drive him because his car was full of laundry, but Juarez-Hernandez would wait with Perez-Palacio until Fernandez-Morales's other friends arrived. Not long after, those friends, Waldin Saenz-Villalta and appellant Jose Villanueva, arrived in a two-door sports car, and the four men piled into the car. At some point, the driver, Saenz-Villalta, stopped the car. While Perez-Palacio remained in the car, the others obtained firearms and agreed, at the very least, to do a drug deal and rob Perez-Palacio. After further driving, Saenz-Villalta eventually stopped the car in a desert area off a dark, dirt road and everyone but Perez-Palacio exited the car.

Juarez-Hernandez opened Perez-Palacio's door and ordered him out of the car at gunpoint. Villanueva and Saenz-Villalta stood next to Juarez-Hernandez. Juarez-Hernandez then ordered Perez-Palacio to hand over his documents, wallet, and phone. Somehow, Perez-Palacio placed most of the items on top of the handgun Juarez-Hernandez was brandishing, and then started running. Four-to-five shots rang out in total, but only one of them hit Perez-Palacio. Villanueva acknowledged that he fired at least once at Perez-Palacio. At least one of the men went searching for Perez-Palacio, but after about 20-30 minutes, they gave up and left. Perez-Palacio then walked for approximately five hours through the desert until he came to a factory where he could call the police. An ambulance rushed him to Sunrise Hospital with a gunshot wound to his lower abdomen.

After interviewing Perez-Palacio, detectives were able to track the phones of the individuals involved and eventually apprehend Saenz-Villalta and Villanueva. Perez-Palacio identified both men in a photo

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lineup, and detectives discovered other incriminating evidence that tied them to the crimes, none of which is at issue in this case.

Villanueva was convicted of all charged offenses and sentenced to an aggregate term of 21.5 years to life in prison. Villanueva now raises various issues on direct appeal stemming from alleged errors in his trial, each of which we address now in turn.

The district court did not abuse its discretion in canvassing Villanueva and finding his conflict waiver valid

Villanueva and his co-defendant Saenz-Villalta both retained the same lawyer to represent them. Villanueva argues that the district court abused its discretion by failing to make an adequate inquiry into the propriety of one lawyer representing two defendants and in finding that he had waived an actual conflict. Villanueva filed with the court a signed form in English that "waive[d] any conflict of interest which may now exist or may arise in the future in connection with the representation by THE LAW OFFICES OF CARL E.G. ARNOLD of any other parties in this matter." The waiver also authorized that firm to use any information for the benefit of either party, and acknowledged that the attorney advised Villanueva to seek independent counsel regarding the waiver.

At calendar call, the district court canvassed both defendants and orally reviewed the waiver with the assistance of a court-certified Spanish interpreter. First, the court warned Villanueva that there were risks in sharing counsel with a codefendant: his attorney may be ethically constrained in pursuing strategies that might otherwise benefit Villanueva and Villanueva would lose the ability to claim certain issues on appeal. Second, the court asked if Villanueva understood the rights he was giving up and if he had any questions about what he was giving up. Third, the court firmly reminded Villanueva that if he had questions "now is the time

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because you can't change your mind in the middle of trial." After these warnings, the court asked him if "this is what you wish to do? You wish to have Mr. Arnold represent you, give up your right to claim of conflict, and also have him represent your co-[d]efendant?" Villanueva responded, "Yes, that's why I hired him."

Finally, the district court asked Villanueva if he had the waiver form read or translated for him in Spanish to which he responded, "I don't remember." The court then had the following exchange with Villanueva regarding the waiver he signed:

THE COURT: Do you remember something to the [e]ffect of I Jose Villanueva, hereby retain the Law Offices of Carl Arnold with the knowledge that the Law Offices of Carl Arnold will also be representing other parties regarding kidnapping attempt -

DEFENDANT VILLANUEVA: Yes, yes

THE COURT: Okay. So you're cutting me off

DEFENDANT VILLANUEVA: I remember that

THE COURT: Okay. And it basically says that he's going to use any information and/or investigation or material or anything else in this case for the mutual benefit of both of you, not just you?

DEFENDANT VILLANUEVA: Yes.

THE COURT: And that basically you're giving up the right to challenge any conflict later. That doesn't say that here but I've asked you that.

DEFENDANT VILLANUEVA: Yes.

THE COURT: He also told you that you could talk to an independent lawyer about this waiver and if you wanted me to give you one for free I would.

DEFENDANT VILLANUEVA: No, I'm fine with the attorney I have.

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The court then performed a separate canvass for Saenz-Villalta and subsequently approved Villanueva's waiver allowing the dual representation.

Now on appeal, Villanueva argues that the district court abused its discretion by failing to make an adequate inquiry into the propriety of the dual representation and in finding that he had waived an actual conflict. Villanueva argues that he did not make a knowing and intelligent waiver because the district court never determined that the waiver had been translated into Spanish for him nor had he been given independent counsel to advise him regarding the waiver and risks of the dual representation.

This court reviews a district court's decision to allow a defendant to waive his right to conflict-free counsel for an abuse of discretion. See Hooks v. State, 124 Nev. 48, 55, 176 P.3d 1081, 1085 (2008) ("We give deference to the district court's decision to allow the defendant to waive his right to counsel."); see also Wheat v. United States, 486 U.S. 153, 163 (1988) ("[T]he district court must be allowed substantial latitude in refusing waivers of conflicts. . . ."). Criminal defendants have a constitutional right to conflict-free representation. Harvey v. State, 96 Nev. 850, 852, 619 P.2d 1214, 1215 (1980). But non-indigent defendants also have a qualified right to choose their own counsel. Patterson u. State, 129 Nev. 168, 175, 298 P, 3d 433, 438 (2013). At times, the "right to...