                              IN THE SUPREME COURT OF THE STATE OF NEVADA


                      DAVID ANTHONY GONZALEZ,                                No. 67148
                      Appellant,
                      vs.
                      THE STATE OF NEVADA,
                      Respondent.                                              FILED
                                                                               MAY 1 2 2016




                                         ORDER AFFIRMING IN PART,
                                     REVERSING IN PART AND REMANDING
                                  This is an appeal from a judgment of conviction, pursuant to a
                      jury verdict, of conspiracy to commit robbery, first-degree kidnapping, and
                      robbery with the use of a deadly weapon. Eighth Judicial District Court,
                      Clark County; David B. Barker, Judge.
                                  Appellant David Gonzalez first argues that the district court
                      abused its discretion in denying his motion to sever his trial from• that of
                      his codefendants. He argues that he suffered prejudice because he was
                      precluded from eliciting testimony from his codefendants that there was
                      no gun present. The district court should grant a motion for severance
                      when there is a serious risk that a joint trial would impair one of the
                      defendants' specific trial rights or prevent the jury from reliably
                      determining guilt or innocence. Marshall v. State, 118 Nev. 642, 647, 56
                      P.3d 376, 379 (2002). We will not reverse "unless the appellant carries the
                      heavy burden of showing that the trial judge abused his discretion."
                      Chartier v. State, 124 Nev. 760, 764, 191 P.3d 1182, 1185 (2008) (internal
                      quotation marks omitted). The joinder did not impair Gonzalez's limited

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                   ability to elicit his codefendants' testimony regarding the presence of the
                   gun, as his codefendants retained their Fifth Amendment rights against
                   self-incrimination.      See Marshall, 118 Nev. at 647, 56 P.3d at 379.
                   Gonzalez's argument that codefendant Alejandra Trujillo would not have
                   invoked her Fifth Amendment right if her trial were before his when she
                   was ultimately acquitted in their joint trial relies on an attenuated chain
                   of speculation and does not show a specific trial right that was actually
                   impaired.      See id.   Gonzalez's argument that the police statements in
                   which his codefendants stated that there was no gun would have been
                   admissible under NRS 51.315 if his codefendants declined to testify in a
                   severed trial lacks merit because the police statements in which each
                   codefendant sought to minimize his or her role in the crimes were not
                   made under circumstances offering "strong assurances of accuracy."          See
                   NRS 51.315(1); Miranda v. State, 101 Nev. 562, 565-66, 707 P.2d 1121,
                   1123 (1985).
                                  Further, Trujillo's counsel's references to Trujillo's lack of a
                   criminal history did not necessarily imply that Gonzalez had a criminal
                   history when his counsel did not pursue the same inquiry because counsel
                   may ask or not ask any question for any number of strategic reasons, and
                   Gonzalez has failed to indicate a specific trial right that was impaired in
                   this regard. His argument that joinder precluded him from testifying on
                   his own behalf because the district court said that it would open the door
                   to impeachment by inconsistencies with his statement and that of the
                   codefendants is belied by the record, as the district court made clear that
                   discussion of each codefendant's police statement would be limited to that
                   individual's statements about his or her own involvement. And his
                   argument that his codefendant's mere-presence argument precluded his

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                 raising "every possible defense" likewise fails to identify a specific trial
                 right that was impaired by the joinder. We conclude that the district court
                 did not abuse its discretion in denying Gonzalez's motion to sever.
                               Second, Gonzalez argues that the evidence presented at trial
                 was insufficient to support the jury's finding of guilt. Our review of the
                 record on appeal, however, reveals sufficient evidence to establish guilt
                 beyond a reasonable doubt as determined by a rational trier of fact.     See
                 Jackson v. Virginia, 443 U.S. 307, 319 (1979); Origel-Candido v. State, 114
                 Nev. 378, 381, 956 P.2d 1378, 1380 (1998).
                               The victim testified that he met Gonzalez at a supermarket
                 and agreed to sell him several gift cards. They left the supermarket, went
                 to Gonzalez's car, and were approached by codefendant Sean Larson, to
                 whom the victim voluntarily handed the gift cards so that Larson could
                 check their value. The victim entered the backseat of the car, next to
                 Trujillo. Gonzalez immediately began to drive, and the victim observed a
                 handgun in Gonzalez's lap. The victim did not consent to being driven to
                 another location. The door was locked when the victim tried to exit the
                 car. Trujillo told the victim to remain calm and that they would not hurt
                 him. Gonzalez drove to a secluded residential area. Larson told the
                 victim, "You know what the fuck this is," and ordered the victim to get out
                 of the car. When the victim refused, Larson opened the victim's car door,
                 pulled the victim out by his shirt collar, and punched him in the face.
                 Gonzalez stood next to Larson, brandishing the handgun. Larson, who
                 still retained the gift cards, took the victim's cell phone and wallet from
                 his pockets and threw the victim's personal property onto the backseat,
                 where Trujillo gathered it. Larson and Gonzalez reentered the car and
                 drove away.

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                                The jury could reasonably infer from the evidence presented
                  that Gonzalez conspired to commit robbery by agreeing with his
                  codefendants to commit robbery and acting to implement a robbery. See
                  NRS 199.480(1)(a); NRS 200.380(1). The jury could also reasonably infer
                  that Gonzalez committed robbery with a deadly weapon by participating,
                  either directly or by aiding or abetting, in unlawfully taking personal
                  property from the victim by force through punching the victim in the face
                  and by fear through brandishing the handgun while the victim's property
                  was being taken from him.         See NRS 193.165(1); NRS 195.020; NRS
                  200.380(1). And the jury could reasonably infer that Gonzalez kidnapped
                  the victim by carrying him away without his consent for the purpose of
                  committing robbery. See NRS 200.310(1). It is for the jury to determine
                  the weight and credibility to give witness testimony, and the jury's verdict
                  will not be disturbed on appeal where, as here, substantial evidence
                  supports the verdict. See McNair v. State, 108 Nev. 53, 56, 825 P.2d 571,
                  573 (1992).
                                Third, Gonzalez argues that the district court erred in failing
                  to give a jury instruction pursuant to Mendoza v. State, 122 Nev. 267, 130
                  P.3d 176 (2006). To sustain convictions for both kidnapping and robbery
                  arising from the same course of conduct, the victim's movement must have
                  had independent significance from the robbery, created a risk of danger
                  substantially exceeding that present in the robbery, or involved movement
                  or restraint substantially in excess of that required to complete the
                  robbery.   See Mendoza, 122 Nev. at 275, 130 P.3d at 181. The district
                  court must accurately instruct the jury of the essential elements of the
                  offense charged, and we review unpreserved claims of instructional error
                  for plain error. Rossana v. State, 113 Nev. 375, 382, 934 P.2d 1045, 1049

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                 (1997). Though the district court erred when it did not instruct the jury in
                 any way on the requirements for a dual conviction of kidnapping and
                 robbery, see Pascua v. State, 122 Nev. 1001, 1005 & n.7, 145 P.3d 1031,
                 1033 & n.7 (2006) (concluding that dual convictions were proper where
                 jury was instructed on incidental movement), this error did not prejudice
                 Gonzalez's substantial rights. The record shows that the movement
                 involved created a greater danger and involved substantially more
                 movement than that present in the robbery itself when, after Gonzalez's
                 codefendant already possessed the victim's gift cards, Gonzalez drove the
                 victim away from the parking lot without the victim's consent, locked the
                 car doors and prevented the victim's escape, displayed a handgun in his
                 lap while driving, and transported the victim to a residential cul-de-sac
                 unknown to the victim where Gonzalez and his codefendants completed
                 the robbery. We conclude that Gonzalez has not shown plain error
                 affecting his substantial rights.'
                             Fourth, Gonzalez argues that the district court improperly
                 limited his cross-examination of the victim. Specific instances of a
                 witness's conduct may be inquired into on cross-examination as relevant to
                 truthfulness, but may not be proved by extrinsic evidence. NRS 50.085(3);
                 Collman v. State, 116 Nev. 687, 703, 7 P.3d 426, 436 (2000). The district
                 court sustained the State's objection that testimony regarding the victim's
                 employment was collateral to whether the defendants kidnapped and
                 robbed him. While Gonzalez correctly notes that he did not use extrinsic


                       'Regarding his proposed jury instructions, as Gonzalez has failed to
                 support his contention that the district court erred in denying his
                 proposed jury instructions with cogent argument, we need not address this
                 contention. Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987).

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                   evidence in attempting to discredit the victim, we conclude that the
                   probative value of this testimony was minimal and outweighed by the risk
                   of confusing the issues and misleading the jury.           See NRS 48.035(1).
                   Accordingly, we conclude that the district court reached the right result in
                   limiting Gonzalez's cross-examination of the victim and that relief is not
                   warranted. See Wyatt v. State, 86 Nev. 294, 298, 468 P.2d 338, 341 (1970)
                   ("If a judgment or order of a trial court reaches the right result, although
                   it is based on an incorrect ground, the judgment or order will be affirmed
                   on appeal.").
                                Fifth, Gonzalez argues that his sentence for kidnapping
                   improperly provides for parole eligibility after 6 years have been served.
                   We review issues of statutory interpretation de novo.         State v. Catanio,
                   120 Nev. 1030, 1033, 102 P.3d 588, 590 (2004). When a statute is not
                   ambiguous, we give that statute its plain meaning.           Id.   A defendant
                   convicted of first-degree kidnapping may receive a sentence of "a definite
                   term of 15 years, with eligibility for parole beginning when a minimum of
                   5 years has been served." NRS 200.320(2)(b). We agree that the district
                   court's sentence is facially illegal, reverse the Gonzalez's sentence for first-
                   degree kidnapping, and remand to the district court to resentence
                   Gonzalez accordingly.
                                Sixth, Gonzalez argues that cumulative error warrants
                   reversal. Notwithstanding the sentencing error for which relief is
                   warranted in itself, Gonzalez has identified a single trial error—the
                   district court's failure to provide a Mendoza instruction, which did not
                   affect his substantial rights. "One error is not cumulative error."      United
                   States v. Sager, 227 F.3d 1138, 1149 (9th Cir. 2000).



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                            Having considered Gonzalez's arguments and concluded that
                his kidnapping-sentence challenge has merit and his other contentions
                lack merit, we
                            ORDER the judgment of conviction AFFIRMED IN PART
                AND REVERSED IN PART AND REMAND this matter to the district
                court for proceedings consistent with this order.



                                                                    /               J.
                                                             Hard”


                                                                                    J.
                                                             Saitta


                                                                                    J.



                cc: Hon. David B. Barker, District Judge
                     Law Offices of Martin Hart, LLC
                     Attorney General/Carson City
                     Clark County District Attorney
                     Eighth District Court Clerk




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