                                                      130 Nev., Advance Opinion
                            IN THE SUPREME COURT OF THE STATE OF NEVADA
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                     ULISES J. GOMEZ,
                     Appellant,
                     vs.
                                                                          N°    VIED
                     THE STATE OF NEVADA,                                       MAY 2 9 2014
                     Respondent.                                                TRA   IE K. LINDEMAN
                                                                           CLEry
                                                                              E                        T
                                                                           BY
                                                                                 IEF DE


                                Appeal from a judgment of conviction, pursuant lo a guilty
                     plea agreement, of murder, conspiracy to commit robbery, and conspiracy
                     to commit first-degree kidnapping. Eighth Judicial District Court, Clark
                     County; Jerome T. Tao, Judge.
                                Affirmed.

                     Karen A. Connolly, Ltd., and Karen A. Connolly, Las Vegas,
                     for Appellant.

                     Catherine Cortez Masto, Attorney General, Carson City; Steven B.
                     Wolfson, District Attorney, and Steven S. Owens, Chief Deputy District
                     Attorney, Clark County,
                     for Respondent.




                     BEFORE THE COURT EN BANC,

                                                     OPINION

                     By the Court, GIBBONS, C.J.:
                                After pleading guilty, appellant Ulises Gomez requested that
                     the district court amend his Presentence Investigation Report (PSI)
                     because it included inaccurate information regarding his gang
                     involvement. The district court refused to do so, finding that the police
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                  department's incident reports provided a factual basis for the gang
                  information that was included in the PSI. In this opinion, we address
                  whether the district court properly relied on the incident reports when
                  determining whether to amend the PSI and whether a defendant is
                  entitled to due process protections when erroneous statements in his or
                  her PSI will potentially affect his or her prison classification and
                  compromise whether he or she will be released on parole.

                                   FACTS AND PROCEDURAL HISTORY
                              Gomez was arrested for his involvement in a robbery and
                  homicide at Llantera Del Norte Tire Shop in North Las Vegas. Gomez
                  ultimately agreed to plead guilty to murder, conspiracy to commit robbery,
                  and conspiracy to commit first-degree kidnapping Under the plea
                  agreement, the parties agreed to recommend a term of life with the
                  possibility of parole after 20 years for the murder and that the sentences
                  on the other charges run concurrently with the murder sentence. The
                  Nevada Division of Parole and Probation (P&P) prepared a PSI before
                  sentencing as required by NRS 176.135. Gomez's PSI stated, "[pier
                  contact with the Las Vegas Metropolitan Police Gang Unit, the defendant
                  is a known. . . primary member of, 'Brown Pride Locotes' and a secondary
                  member of '18th Street,' with a last known contact date of July 23, 2009."
                              Gomez filed an objection to his PSI, arguing that the
                  statements about his gang membership were false and unsupported by
                  "factual information." The district court delayed sentencing and ordered
                  the Las Vegas Metropolitan Police Department (LVMPD) to produce
                  documentation supporting the representation that Gomez was a gang
                  member In response, LVMPD produced several field interview cards and
                  incident reports. One specific incident report dated February 13, 2002,
                  noted that Gomez "admitted Blythe Street [gang]." Another incident
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                report dated May 8, 2007, noted that Gomez was a known member of the
                18th Street gang as determined by his "gang dress/frequents gang
                area/affiliates w/gang."
                            After LVMPD produced Gomez's incident reports, the district
                court heard argument on Gomez's objection. Gomez argued that the
                incident reports were not sufficiently reliable to demonstrate his gang
                membership because they do not explicitly state that Gomez was a gang
                member and only concluded he was affiliated with gangs because he was
                "giving a ride to somebody who was a gang member." The district court
                noted that the incident report stated that Gomez "admitted Blythe—
                association with the Blythe Street Gang. So that's more than just giving a
                ride to a guy." Additionally, the district court found that the reports
                provided a factual basis for the information in the PSI and thus the PSI
                was not based on "impalpable or highly suspect information."           See
                Stockmeier v. State, Bd. of Parole Comm'rs,   127 Nev. „ 255 P.3d
                209, 213 (2011). In response, Gomez requested an evidentiary hearing in
                order to ensure that his sentence was "based upon accurate information."
                The district court denied Gomez's request for an evidentiary hearing,
                reasoning that it was not sentencing Gomez based on his gang affiliation
                or a gang enhancement. Rather, the district court stated that the gang
                information was "not actually even part of the sentence. It's just a
                classification problem which is an administrative issue." The district
                court then adjudged Gomez guilty and sentenced him to life in prison with
                the possibility of parole after 20 years for murder and 28-72 months for
                each conspiracy offense, with the sentences to run concurrently. Gomez
                now appeals.



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                                                DISCUSSION
                  Gomez was not entitled to an evidentiary hearing
                              Gomez argues that he should have been able to challenge the
                  allegations in his PSI through an evidentiary hearing. We disagree.
                              Nevada law affords a defendant the opportunity to object to
                  factual errors in his or her PSI. NRS 176.156(1). But, as this court
                  acknowledged in Stockmeier, "the process by which the district court must
                  resolve objections to a PSI is not entirely clear." 127 Nev. at , 255 P.3d
                  at 213. Apart from the provision mandating an opportunity to object to
                  factual errors, Nevada statutes are "silent as to the process to be followed
                  by either [P&P] or the district court for allowing the defendant to make
                  such objections, or for resolving the objections."   Id. at , 255 P.3d at
                  213-14.
                              Contrary to Gomez's contention, we conclude that Stockmeier
                  does not require the district court to hold evidentiary hearings to address
                  alleged factual errors in a defendant's PSI. Here, the district court
                  reviewed the LVMPD incident reports and determined that there was a
                  factual basis to support them. The district court properly ensured that the
                  information in the reports was not based on impalpable or highly suspect
                  evidence.' See Stockmeier, 127 Nev. at 255 P.3d at 212-14.




                        'Further, we note that the process by which a defendant addresses
                  factual errors in a PSI was not intended to become a small-scale trial.


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                The statements in Gomez's PSI were not based on impalpable or highly
                suspect evidence
                            Gomez argues that the incident reports produced by LVMPD
                do not establish that he was a gang member. We disagree based on the
                Stockmeier standard for PSI information.
                            NRS 176.135(1) mandates that P&P "prepare a PSI to be used
                at sentencing for any defendant who pleads guilty to or is found guilty of a
                felony." Stockmeier, 127 Nev. at , 255 P.3d at 212. Because a court
                cannot base its sentencing decision on information or accusations that are
                founded on "'impalpable or highly suspect evidence," the PSI must not
                include information based on "impalpable or highly suspect evidence." Id.
                at , 255 P.3d at 213 (quoting Goodson v. State, 98 Nev. 493, 495-96, 654
                P.2d 1006, 1007 (1982)); see Goodson, 98 Nev. at 496, 654 P.2d at 1007
                (holding that information in a PSI indicating that the defendant was a
                drug trafficker was impalpable and highly suspect because it was merely a
                "bald assertion," and "unsupported by any evidence whatsoever").
                            We conclude that the district court did not abuse its discretion
                in ruling that the gang information in Gomez's PSI was not based on
                impalpable or highly suspect evidence. See Nunnery v. State, 127 Nev. at
                      , 263 P.3d 235, 241 (2011). LVMPD produced several field
                interview cards and incident reports indicating that Gomez was a known
                gang member. The incident report which states that Gomez "admitted
                Blythe Street [gang1" is especially noteworthy. Admittedly, this would be
                a closer issue if the State only produced the incident report that concluded
                Gomez was affiliated with gangs based on his dress and associations. But
                given the admission, we conclude that the district court did not abuse its
                discretion in refusing to amend Gomez's PSI. Thus, the information in

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                 Gomez's PSI is more than a bald assertion and is supported by the reports.
                 See Goodson, 98 Nev. at 496, 654 P.2d at 1007. 2

                 Gomez's remaining arguments are moot
                             Gomez does not contend that the allegations of gang
                 membership within his PSI affected his sentence. 3 Rather, Gomez argues
                 that although the alleged inaccuracies in his PSI did not affect his actual
                 sentence, they still are materially prejudicial because of their potential
                 effect on his prison classification or his chances of being released on
                 parole. Based on our conclusion that the district court did not err in
                 finding that the information in Gomez's PSI regarding his gang affiliation
                 was not based on impalpable or highly suspect evidence, we do not need to
                 consider whether the gang affiliation within his PSI could possibly
                 materially prejudice his prison classification or his chances of being
                 released on parole.

                                               CONCLUSION
                             The district court did not abuse its discretion when it
                 determined that the LVMPD reports provided a factual basis for the gang
                 affiliation noted in Gomez's PSI. Further, we decline to consider Gomez's




                       Despite Gomez's argument that the State should bear the burden of
                       2
                 proving the information in Gomez's PSI, we conclude that the State does
                 not have the burden of proof regarding the information in a defendant's
                 PSI.

                       BEven though Gomez does not argue that the allegations of gang
                 membership within his PSI affected his sentence, we take this opportunity
                 to note that the district court may take many different items into
                 consideration when determining the appropriate sentence for a defendant.


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                   claims that his PSI will affect his parole and prison classification.
                   Accordingly, we affirm Gomez's judgment of conviction. 4




                                                                                 CA.
                                                       Gibbons



                                                  J.




                       J Ars„t fres_,L;         , J.
                   Hardesty



                   Parraguirre


                                                  J.
                   Douglas




                   Saitta




                            4 We
                              have considered the parties' remaining arguments and conclude
                   that they are without merit.


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