                                                    131 Nev., Advance Opinion 11
                         IN THE SUPREME COURT OF THE STATE OF NEVADA


                  ERNESTO MANUEL GONZALEZ,                              No. 64249
                  Appellant,
                  vs.
                  THE STATE OF NEVADA,
                  Respondent.                                                 DEC 3 1 2015
                                                                             Tfic; IE K. LINDEMAN
                                                                           CT.     FASIAP3/44.E.E. ct;i5


                                                                             ;Hit F DEFE Dy LTRK ----
                              Appeal from a judgment of conviction, pursuant 't o a jury
                  verdict, of one count each of conspiracy to engage in an affray, carrying a
                  concealed weapon, discharging a firearm in a structure, murder in the
                  first degree with the use of a deadly weapon with a gang enhancement,
                  and conspiracy to commit murder. Second Judicial District Court, Washoe
                  County; Connie J. Steinheimer, Judge.
                              Reversed and remanded.


                  Richard F. Cornell, Reno,
                  for Appellant.

                  Adam Paul Laxalt, Attorney General, Carson City; Christopher J. Hicks,
                  District Attorney, and Terrence P. McCarthy, Deputy District Attorney,
                  Washoe County,
                  for Respondent.




                  BEFORE THE COURT EN BANC.

                                                   OPINION

                  By the Court, SAITTA, J.:
                              In the instant case, appellant challenges his conviction
                  arguing that the district court abused its discretion when it refused to
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                 answer two questions from the jury during deliberations, when it gave a
                 defense-of-others jury instruction that was unduly confusing and not
                 supported by the evidence, when it refused to give his proffered
                 accomplice-distrust jury instruction, and when it refused to bifurcate the
                 gang-enhancement portion of the trial from the guilt phase. We agree
                 with appellant in several respects and hold that in situations where a
                 jury's question during deliberations suggests confusion or lack of
                 understanding of a significant element of the applicable law, the judge has
                 a duty to give additional instructions on the law to adequately clarify the
                 jury's doubt or confusion. We also hold that, to provide the defendant with
                 a fair trial, the guilt phase of trial must be bifurcated from the gang-
                 enhancement phase. Because the district court failed to answer the jury's
                 question regarding a significant element of conspiracy, refused to bifurcate
                 the guilt and gang-enhancement portions of Gonzalez's trial, and
                 committed other errors, we hold that the cumulative effect of these errors
                 deprived appellant of his right to a fair trial. We therefore reverse
                 Gonzalez's judgment of conviction and remand for a new trial.
                                FACTUAL AND PROCEDURAL HISTORY
                             In 2011, a brawl between members of two motorcycle gangs,
                 the Vagos and the Hell's Angels, occurred in a Sparks casino. The fight
                 was instigated by Stuart Rudnick, a member of the Vagos. During the
                 fight, another member of the Vagos, appellant Ernesto Manuel Gonzalez,
                 shot and killed Jethro Pettigrew, a member of the Hell's Angels.
                             Rudnick was initially charged as a coconspirator, but he
                 pleaded guilty to reduced charges and ultimately testified against
                 Gonzalez. Although Rudnick pleaded guilty prior to Gonzalez's trial, he
                 was not sentenced until after he testified against Gonzalez. At trial,
                 Rudnick testified that he and Gonzalez had a meeting prior to the fight
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                       with the president of the international chapter of the Vagos. Rudnick
                       further testified that the president put out a "green light" on Pettigrew,
                       meaning that Pettigrew was to be killed, and that Gonzalez said he would
                       kill Pettigrew. No other witnesses testified to the existence of this
                       conspiracy to kill Pettigrew.
                                   The jury found Gonzalez guilty on all counts. The district
                       court merged the convictions of challenge to fight resulting in death with
                       the use of a deadly weapon and second-degree murder with the conviction
                       of first-degree murder with the use of a deadly weapon. Although the jury
                       found the alleged deadly-weapon and gang enhancements, the district
                       court only imposed sentences for the weapons enhancement.          See NRS
                       193.169(1) (providing that additional enhancement sentence may be
                       imposed for only one enhancement "even if the person's conduct satisfies
                       the requirements for imposing an additional term of imprisonment
                       pursuant to another one or more" of the enhancement statutes).
                                                       DISCUSSION
                                   On appeal, Gonzalez argues, among other claims, that the
                       district court abused its discretion: (1) when it refused to answer two
                       questions from the jury during deliberations, (2) when it gave a defense-of-
                       others jury instruction that was unduly confusing and not supported by
                       the evidence, (3) when it refused to give his proffered accomplice-distrust
                       jury instruction, and (4) when it refused to bifurcate the gang-
                       enhancement portion of the trial from the guilt phase.
                       The district court's refusal to answer jury inquiries during deliberations
                                   This court reviews the refusal to respond to jury inquiries for
                       an abuse of discretion. Tellis v. State, 84 Nev. 587, 591, 445 P.2d 938, 941
                       (1968).

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                            During jury deliberations, a juror sent two questions to the
                district court judge. The first question stated:
                                   Legal Question:
                                  Looking at Instruction no. 17: If a person
                            has no knowledge of a conspiracy but their actions
                            contribute to someone [else's] plan, are they guilty
                            of conspiracy?
                The second question stated:
                                  People in here are wondering if a person can
                            only be guilty of 2nd degree murder or 1st. Can it
                            be both?
                             Both Gonzalez's attorney and the State agreed that the
                answers to both questions were no. The district court refused to answer
                the first question, instead stating:
                            It is improper for the Court to give you additional
                            instruction on how to interpret Instruction no. 17.
                            You must consider all the instructions in light of
                            all the other instructions.
                             The district court also refused to answer the second question,
                stating:
                            You must reach a decision on each count separate
                            and apart from each other count.
                       We create an exception to the rule in Tellis in situations where the
                      jury's question suggests confusion or lack of understanding of a
                      significant element of the applicable law
                             The current law regarding a judge's duty to answer a jury's
                questions was promulgated in Tellis:
                             The trial judge has wide discretion in the manner
                             and extent he answers a jury's questions during
                             deliberation. If he is of the opinion the
                             instructions already given are adequate, correctly
                             state the law and fully advise the jury on the
                             procedures they are to follow in their deliberation,

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                            his refusal to answer a question already answered
                            in the instructions is not error.
                84 Nev. at 591, 445 P.2d at 941.
                            Here, because Gonzalez does not allege that the given jury
                instructions were inadequate or incorrectly stated the law, under our
                decision in Tellis, the district court did not abuse its discretion by refusing
                to answer the jury's questions. However, we are of the opinion that Tellis
                does not go far enough in describing a judge's duty to answer questions
                from the jury during deliberations.
                            We do not wish to completely overturn Tellis.        However, we
                believe that there should be an exception to the bright-line rule in Tellis
                regarding situations where the jury's question suggests confusion or lack
                of understanding of a significant element of the applicable law.            See
                United States v. Southwell, 432 F.3d 1050, 1053 (9th Cir. 2005) ("Because
                it is not always possible, when instructing the jury, to anticipate every
                question that might arise during deliberations, the district court has the
                responsibility to eliminate confusion when a jury asks for clarification of a
                particular issue." (internal quotations omitted)); see also Harrington v.
                Beauchamp Enters., 761 P.2d 1022, 1025 (Ariz. 1988) (holding that when
                jurors "express confusion or lack of understanding of a significant element
                of the applicable law, it is the court's duty to give additional instructions
                on the law to adequately clarify the jury's doubt or confusion"); State v.
                Juan, 242 P.3d 314, 320 (N.M. 2010) ("[W]hen a jury requests clarification
                regarding the legal principles governing a case, the trial court has a duty
                to respond promptly and completely to the jury's inquiry."). In such
                situations, the court has a duty to give additional instructions on the law
                to adequately clarify the jury's doubt or confusion.      See Southwell, 432
                F.3d at 1053; Harrington, 761 P.2d at 1025; Juan, 242 P.3d at 320. This is
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                true even when the jury is initially given correct instructions.   People v.
                Brouder, 523 N.E.2d 100, 105 (Ill. App. Ct. 1988); see also Harrington, 761
                P.2d at 1025 (holding that the court has a duty to respond to the jury even
                when "the original instructions were complete and clear").
                            Here, the jury's question on conspiracy went to the very heart
                of that offense. Conspiracy is a knowing agreement to act in furtherance
                of an unlawful act. Bolden v. State, 121 Nev. 908, 912, 124 P.3d 191, 194
                (2005). When a defendant does not know that he or she is acting in
                furtherance of an unlawful act, there can be no conspiracy. Because the
                jury's first question suggested confusion or a lack of understanding of this
                central element of the crime of conspiracy, we hold that the district court
                abused its discretion when it refused to answer the question. However,
                because the jury's second question did not suggest confusion or the lack of
                understanding of a significant element of first- or second-degree murder,
                the district court did not abuse its discretion when it refused to answer
                that question.
                The defense-of-others jury instruction
                            Whether a jury instruction accurately states the law is
                reviewed de novo. Funderburk v. State, 125 Nev. 260, 263, 212 P.3d 337,
                339 (2009). When the instruction concerns a defendant's right to self-
                defense, the issue is of constitutional magnitude.     See United States v.
                Sayetsitty, 107 F.3d 1405, 1414 (9th Cir. 1997) (stating that "a defendant
                has a constitutional right to have the jury consider defenses [that] negate
                [criminal liability]"); State v. Walden, 932 P.2d 1237, 1239 (Wash. 1997)
                (indicating that an erroneous instruction on self-defense is an error of
                constitutional magnitude); see also Harkins v. State, 122 Nev. 974, 989-90,
                143 P.3d 706, 716 (2006) (although not identifying the error as one of
                constitutional magnitude, reviewing whether an erroneous self-defense
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                 jury instruction was harmless beyond a reasonable doubt, which is a
                 review that is performed for constitutional errors). However, if the
                 defendant did not object to an instruction, the instruction is reviewed for
                 plain error. Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003).
                       The defense-of-others jury instruction improperly contained an
                       instruction on self-defense that was not supported by the record
                                   The trial court has the duty to instruct on
                             general principles of law relevant to the issues
                             raised by the evidence and has the correlative
                             duty to refrain from instructing on principles of
                             law which not only are irrelevant to the issues
                             raised by the evidence but also have the effect of
                             confusing the jury or relieving it from making
                             findings on relevant issues. It is an elementary
                             principle of law that before a jury can be
                             instructed that it may draw a particular inference,
                             evidence must appear in the record which, if
                             believed by the jury, will support the suggested
                             inference.
                 People v. Alexander, 235 P.3d 873, 935 (Cal. 2010) (citations omitted)
                 (internal quotations omitted).
                             Jury Instruction 34 states:
                                   The killing of another person in self-defense
                             or defense of another is justified and not unlawful
                             when the person who does the killing actually and
                             reasonably believes:
                                1. That there is imminent danger that the
                                   assailant will either kill him or any other
                                   person in his presence or company or cause
                                   great bodily injury to him or any other
                                   person in his presence or company; and
                                2. That it is absolutely necessary under the
                                   circumstances for him to use in self-defense
                                   or defense of another force or means that
                                   might cause the death of the other person,
                                   for the purpose of avoiding death or great
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                      bodily injury to himself or any other person
                      in his presence or company.
                      A bare fear of death or great bodily injury is
                not sufficient to justify a killing To justify taking
                the life of another in self-defense or defense of
                another, the circumstances must be sufficient to
                excite the fears of a reasonable person placed in a
                similar situation. The person killing must act
                under the influence of those fears alone and not in
                revenge.
                      An honest but unreasonable belief in the
                necessity for self-defense or defense of another
                does not negate malice.
                       The right of self-defense or defense of
                another is not available to an original aggressor,
                that is a person who has sought a quarrel with the
                design to force a deadly issue and thus through his
                fraud, contrivance, or fault, to create a real or
                apparent necessity for making a felonious assault.
                       However, where a person, without
                voluntarily seeking, provoking, inviting, or
                willingly engaging in a difficulty of his own free
                will, is attacked by an assailant, he has the right
                to stand his ground and need not retreat when
                faced with the threat of deadly force.
                      Actual danger is not necessary to justify a
                killing in self-defense or defense of another. A
                person has a right to defend from apparent danger
                to the same extent as he would from actual
                danger. The person killing is justified if:
                   1. He is confronted by the appearance of
                      imminent danger which arouses in his mind
                      an honest belief and fear that he or another
                      in his presence, is about to be killed or suffer
                      great bodily injury; and
                   2. He acts solely upon these appearances and
                      his fear and actual beliefs; and

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                                 3. A reasonable person in a similar situation
                                    would believe himself or another in his
                                    presence to be in like danger.
                                    The killing is justified even if it develops
                              afterward that the person was mistaken about the
                              extent of the danger.
                                    If evidence of self-defense, or defense of
                              others is present, the State must prove beyond a
                              reasonable doubt that the defendant did not act in
                              self-defense or defense of others. If you find that
                              the State has failed to prove beyond a reasonable
                              doubt that the defendant did not act in self-
                              defense or defense of others, you must find the
                              defendant not guilty.
                              Thus, the defense-of-others instruction contained both an
                 instruction on defense of others and an instruction on self-defense.
                 However, Gonzalez never attempted to assert that he acted in self-defense
                 when he shot Pettigrew, and the evidence in the record does not support
                 that defense. No evidence was submitted at trial to support a finding that
                 Gonzalez was in, or believed he was in, imminent danger of serious bodily
                 harm or death when he shot Pettigrew.      See NRS 200.200 (defining self-
                 defense). Therefore, we hold that because the included self-defense
                 instruction was irrelevant to the issues raised by the evidence and had the
                 effect of confusing the jury, it was erroneous.   See Alexander, 235 P.3d at
                 935.
                        Intertwining the self-defense and defense-of-others instructions was
                        unduly confusing to the jury
                              Jury instructions that are unduly confusing may be erroneous.
                 United States v. Kalama, 549 F.2d 594, 596 (9th Cir. 1976).
                              Here, instructions on self-defense and defense of others were
                 bizarrely combined into a single instruction in a way that could be
                 confusing to the jury. By intertwining the two defenses, the instruction
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                was made unwieldy and unnecessarily confusing for the jury who was then
                expected to untangle the resulting amalgamation. It could also have
                misled the jury as to what defense Gonzalez was actually asserting.
                Therefore, we hold that because the defense-of-others instruction was
                unduly confusing, it was erroneous.
                      The district court did not commit plain error
                            However, Gonzalez failed to object to the defense-of-others
                jury instruction. Therefore, we must review this instruction for plain
                error. See Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003).
                            Plain error review considers "whether there was 'error,'
                whether the error was 'plain' or clear, and whether the error affected the
                defendant's substantial rights." Id. Here, while we find that the given
                defense-of-others instruction was erroneous, we are not convinced that it
                amounted to plain error. The given jury instruction, while confusing, does
                not appear to be an incorrect statement of Nevada law. Therefore, we hold
                that the district court did not commit plain error by giving its defense-of-
                others jury instruction.
                The district court abused its discretion by refusing to give an accomplice-
                distrust instruction
                            The district court is required to give a cautionary jury
                instruction when an accomplice's testimony is uncorroborated. Howard v.
                State, 102 Nev. 572, 576, 729 P.2d 1341, 1344 (1986). If the testimony is
                corroborated, a cautionary instruction is favored, but failure to grant it is
                not reversible error. Id. An accomplice-distrust instruction "advises the
                jury that it should view as suspect incriminating testimony given by those
                who are liable to prosecution for the identical charged offense as the
                accused." Riley v. State, 110 Nev. 638, 653, 878 P.2d 272, 282 (1994).


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                              At trial, Gonzales proffered the following jury instruction with
                  regard to the State's witness, Rudnick.
                                    You have heard testimony from            ,a
                              witness who had criminal charges pending against
                              him. That testimony was given in the expectation
                              that he would receive favored treatment from the
                              government in connection with his case;
                                    For this reason, in evaluating the testimony
                              of , you should consider the extent to
                              which or whether his testimony may have been
                              influenced by this factor. In addition, you should
                              examine the testimony of with greater
                              caution than that of other witnesses.
                  The district court rejected the instruction, stating that it was
                  "unnecessary given [the jury instruction on the duty of weighing the
                  witnesses' credibility]" and it is "inappropriate to single out any one
                  witness, especially in a case where most of the witnesses, the lay
                  witnesses certainly had interests other than solely being a lay witness
                  here."
                              The district court is incorrect in its belief that it is
                  inappropriate to single out any one witness as less reliable than others.
                  That is, in fact, the entire purpose behind our requirement that an
                  accomplice-distrust instruction be given when the accomplice's testimony
                  is uncorroborated. See Riley, 110 Nev. at 653, 878 P.2d at 282. Here, it is
                  uncontroverted that Rudnick was an accomplice of Gonzalez's because
                  they were both charged with conspiracy to commit the same murder.
                  Therefore, if Rudnick's testimony was uncorroborated, the district court




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                 was required to give an accomplice-distrust jury• instruction as to his
                 testimony, and failure to do so was error. 1
                       Rudnick's testimony was uncorroborated
                             The State argues that because Rudnick's testimony was
                 partially corroborated by such things as the casino video of Gonzalez
                 shooting Pettigrew, a cautionary instruction was not required. While it is
                 true that parts of Rudnick's testimony were corroborated by the casino's
                 video recordings of the fight between the Vagos and Hell's Angels and the
                 subsequent killing of Pettigrew by Gonzalez, Rudnick's testimony about
                 the alleged conspiracy, which formed the basis for several of Gonzalez's
                 convictions, was uncorroborated by any other witnesses or evidence.
                             Furthermore, one of the central issues in this case was
                 whether Pettigrew's death was part of a premeditated conspiracy or
                 occurred in the course of a spontaneous clash between two biker gangs. It
                 would be absurd to conclude, as the State urges, that because some of an
                 accomplice's testimony is corroborated by video that is publicly known to

                       'We agree with the State that Gonzalez's proffered jury instruction
                 was broader than the typical accomplice •jury instruction in that it
                 cautioned the jury against the testimony of any person with criminal
                 charges pending against them in exchange for favorable treatment, and
                 not just accomplices. A more appropriate instruction would be one similar
                 to that proffered in Howard. 102 Nev. at 576, 729 P.2d at 1344 ("The
                 testimony of an accomplice ought to be viewed with distrust. This does not
                 mean that you may arbitrarily disregard such testimony, but you should
                 give to it the weight to which you find it to be entitled after examining it
                 with care and caution and in light of all the evidence in the case." (internal
                 quotations omitted)). However, the district court nonetheless has "an
                 affirmative obligation to cooperate with the defendant to correct the
                 proposed instruction," Carter v. State, 121 Nev. 759, 765, 121 P.3d 592,
                 596 (2005) (internal quotations omitted), and the failure to do so in the
                 case of an accomplice-distrust instruction is error.

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                 exist and is uncontroverted by the defendant, the entirety of the
                 accomplice's testimony is considered to be corroborated for the purposes of
                 Howard. Therefore, we hold that because material portions of Rudnick's
                 testimony were uncorroborated, the district court abused its discretion by
                 refusing to give an accomplice-distrust instruction.
                 The district court abused its discretion by refusing to bifurcate the
                 presentation of gang-enhancement evidence from the guilt phase of the trial
                             We normally review decisions regarding bifurcation of
                 enhancement portions of a trial for an abuse of discretion.    See People v.
                 Hernandez, 94 P.3d 1080, 1085 (Cal. 2004) (reviewing district court's
                 refusal to bifurcate gang-enhancement portion of trial from guilt phase for
                 abuse of discretion). However, we have held that in situations where a
                 failure to bifurcate compromises a defendant's right to a fair trial,
                 bifurcation is mandatory. See Brown v. State, 114 Nev. 1118, 1126, 967
                 P.2d 1126, 1131 (1998) (holding that severance is mandatory in multicount
                 indictments where one count is of possession of a firearm by an ex-felon);
                 see also Morales v. State, 122 Nev. 966, 970, 143 P.3d 463, 465 (2006)
                 (holding that bifurcation procedure accomplishes the same policy goals as
                 the severance mandated in Brown).
                             "Mnstitutional values such as judicial economy, efficiency, and
                 fairness to criminal defendants often raise competing demands."      Brown,
                 114 Nev. at 1126, 967 P.2d at 1131. However, in balancing these
                 demands, ensuring that a defendant's right to a fair trial is not
                 compromised is paramount. Id. We have previously held that when the
                 State seeks convictions on multiple counts, including a count of possession
                 of a firearm by an ex-felon, the prejudice to the defendant of introducing
                 evidence of prior convictions in order to establish that the defendant is an
                 ex-felon requires the severance of the counts. Id.
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                            The State attempts to distinguish Brown from the current
                case by alleging that evidence of a prior conviction is uniquely prejudicial.
                However, we are not so certain. Is evidence of a prior conviction more
                prejudicial than the evidence presented here by a gang expert—namely,
                that Gonzalez was a member of a criminal gang whose members in
                Arizona commonly sell narcotics, possess stolen property, and commit
                assault and homicide? Is it more prejudicial than the evidence presented
                by another gang expert that Gonzalez is a member of a criminal gang that
                moves firearms, tries to set up robberies on dope dealers, tries to extort
                motorcycles from people, traffics in narcotics, and commits rape? This,
                among other highly prejudicial evidence used to prove the existence of a
                criminal gang, is a type of evidence that would generally not be admissible
                during a guilt phase of a trial but is statutorily admissible in order to
                prove a gang enhancement. See NRS 193.168(7)(a)-(g).
                            This is not to say that evidence of gang affiliation is not still
                admissible for other purposes, such as to show motive. See Butler v. State,
                120 Nev. 879, 889, 102 P.3d 71, 78 (2004) ("This court has repeatedly held
                that gang-affiliation evidence may be relevant and probative when it is
                admitted to prove motive."). However, such evidence will not be
                admissible in the guilt phase of a trial solely for the purpose of proving a
                gang enhancement. Here, while some of the evidence admitted to prove
                the gang enhancement would have also been admissible for other purposes
                in Gonzalez's trial, other evidence, such as the evidence discussed above of
                the types of crimes commonly committed by members of the Vagos, would
                not have been. Although the gang enhancement in this case was
                ultimately not imposed, the admittance of this evidence allowed the State



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                to tie Gonzalez to unrelated crimes committed by other members of the
                Vagos.
                            Therefore, because the admission of highly prejudicial
                evidence to prove a gang enhancement that would not otherwise be
                admissible to prove the underlying crime compromises a defendant's right
                to a fair trial, we hold that the guilt phase of a trial must be bifurcated
                from the gang-enhancement phase. Thus, we conclude that the district
                court abused its discretion by refusing to bifurcate the guilt and gang-
                enhancement portions of the trial.
                Cumulative error
                            "[1]f the cumulative effect of errors committed at trial denies
                the appellant his right to a fair trial, this court will reverse the
                conviction." DeChant v. State, 116 Nev. 918, 927, 10 P.3d 108, 113 (2000).
                "Relevant factors to consider in deciding whether error is harmless or
                prejudicial include whether the issue of innocence or guilt is close, the
                quantity and character of the error, and the gravity of the crime charged."
                Id. (internal quotations omitted).
                            Here, the errors directly affected Gonzalez's convictions for
                conspiracy and, by extension, undermined his affirmative defense that he
                was acting in defense of others. Furthermore, the crimes he was convicted
                of were grave. Therefore, we hold that the cumulative effect of these
                errors has denied Gonzalez the right to a fair trial.
                                               CONCLUSION
                            The district court abused its discretion when it refused to
                answer the jury's question that suggested the jury was confused or lacked
                understanding of a significant element of conspiracy to commit murder. It
                also abused its discretion when it refused to give an accomplice-distrust
                instruction regarding Rudnick's uncorroborated testimony and refused to
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                     bifurcate the guilt and gang-enhancement phases of Gonzalez's trial.
                     Therefore, because the district court's errors cumulatively denied
                     Gonzalez of his right to a fair trial, we order his judgment of conviction
                     reversed and remand to the district court for a new tria1. 2




                                                                                      J.
                                                            Saitta

                     We concur:


                                                     C.J.
                     Ha

                                                     J.
                     Parraguirre




                           2 Because  we hold that the district court's errors discussed above
                     were enough to cumulatively warrant reversal, we do not reach the other
                     issues raised by Gonzalez.

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