ULISES J. GOMEZ, Appellant,
THE STATE OF NEVADA, Respondent
Appeal from a judgment of conviction, pursuant to 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.
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.
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 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 bye NRS 176.135. Gomez's PSI stated, " [p]er 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 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."
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 ...