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Ramirez v. Baker

United States District Court, D. Nevada

August 26, 2019

ARMANDO RAMIREZ, Petitioner,
v.
BAKER, et al., Respondents.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE.

         I. SUMMARY

         This represented habeas matter under 28 U.S.C. § 2254 comes before the Court for a final decision on the remaining grounds. For the reasons discussed below, the Court denies the amended petition, seeking federal habeas relief.

         II.BACKGROUND

         A. Introduction

         Petitioner Armando Ramirez seeks to set aside his 2007 Nevada state conviction, pursuant to a jury verdict, of first-degree murder with the use of a deadly weapon and conspiracy to commit murder. He was sentenced to consecutive sentences of life with the possibility of parole along with a concurrent sentence of 2 to 10 years. He challenged the conviction on direct appeal and state post-conviction review.

         As will be discussed infra, the remaining grounds present substantive claims and/or ineffective-assistance claims relating to: (a) an erroneous jury instruction on coconspirator liability to which no objection was raised at trial, (b) an incomplete jury instruction on aider and abettor liability for the deadly weapon enhancement also as to which no trial objection was raised; and (c) trial counsel's failure to properly preserve a request for a self-defense instruction. The state supreme court held on direct appeal, in reviewing for plain error, that Ramirez failed to establish that the two jury instruction errors affected his substantial rights. The court held on state post-conviction review that Ramirez could not demonstrate prejudice from counsel's failure to properly preserve a request for a self-defense instruction because, inter alia, there was not a reasonable probability that the jury would have acquitted Ramirez had the jury been instructed on self-defense. (ECF No. 21-9 at 4-8; ECF No. 22-12.)

         B. Summary of Relevant Facts

         Evidence presented at trial tended to establish the following.[1]

         On the morning of July 14, 2003, Brandi Robinson-Monge and her brother Robert Monge were walking to a neighborhood 7-Eleven in Las Vegas, Nevada to gamble. As they were walking, Armando “Creeper” Ramirez and Alejandro “Mouse” Manzo pulled up in a white Ford F-150 pickup truck. Robinson-Monge knew both men; and she had, “[f]or lack of a better word, ” “dated” Ramirez. (ECF No. 19-4 at 34-35, 46-47, 53.)

         According to Robinson-Monge's testimony, Ramirez wanted to go to the nearby Eureka Casino, a small casino on East Sahara Avenue, to gamble.[2] (Id. at 35, 47, 54.) Monge, who was declared a hostile witness during the State's direct at trial, testified initially that it was his sister's idea to go to the Eureka to gamble. However, he acknowledged that he previously had testified under oath that “the whole reason we went to the Eureka” was because “[t]hey [referring to Ramirez and Manzo] were going to meet a dude they knew that owed them some money.” (ECF No. 20-3 at 9-10.)

         According to Robinson-Monge's at times wavering testimony and stills from the Eureka surveillance video, Ramirez was wearing an untucked red t-shirt; Manzo and Monge both were wearing white tank tops; and Robinson-Monge was wearing a black shirt with white shorts. (ECF No. 19-4 at 35-36, 54, 60; ECF No. 20-3 at 18.)

         At the Eureka, while Robinson-Monge and Monge gambled, Ramirez and Manzo interacted with Miguel “Nino” Ortega. The latter eventually told the four that he had a place where they could smoke some drugs. At this point, Robinson-Monge whispered to Ramirez that they could smoke at her apartment. She testified that Ramirez then said to her “no, because you don't know who will show up there, ” which she found odd because he had never been to her apartment. (ECF No. 19-4 at 36, 47-48, 54-55.)

         Ortega left first for his nearby apartment on his bicycle; and Ramirez, Manzo, Robinson-Monge, and Monge followed in the F-150. On the way over, Ramirez said to someone on the phone: “I want to run him over, I'm going to run him over.” Robinson-Monge testified that while Ortega had left before them on the bike, she did not see him at this point and only saw him get off the bike at the apartment. She previously had told the police that she saw Ortega on the bike when Ramirez made the statement. She testified that, on the way, Ramirez asked them to “have his back.” Monge further testified that Ramirez asked them to not call him Creeper at Ortega's. (ECF No. 19-4 at 37, 61; see also ECF No. 20-3 at 10-11, 18.)

         Ortega's apartment was at 209 Kendale Street, which was only a short distance away from the Eureka, around the corner and on the next cross street to the east off Sahara Ave. (See ECF No. 19-1 at 11-15; ECF No. 19-4 at 49; ECF No. 20-3 at 10, 21.)

         As they arrived at the apartment, Ramirez told Robinson-Monge that there would be someone parked at the end of the street and that she was to go get in the car and get something for him. She went down the street and got into the car, encountering a male that she knew and another female. She got back out of the car, however, without picking up anything, after she saw her brother come back outside of Ortega's apartment apparently looking for her. (ECF No. 19-4 at 37; see also ECF No. 20-3 at 12-13.)

         When Robinson-Monge walked back up to the apartment and the nearby parked truck, she saw Manzo with a gun “like he was fixing a gun or loading a gun.” She asked him what he was doing, but he did not respond. She did not believe that he spoke very much English, however, as he never said anything. (ECF No. 19-4 at 37-38, 49, 59.)

         When Robinson-Monge went inside she saw someone named Ray-Ray who she believed owed her money. She testified initially on direct that when she confronted Ray-Ray over the money Ramirez told her “to cut it, to be quiet.” On cross-examination, she elaborated that Ramirez said “be quiet, that's not what we're here for.” (ECF No. 19-4 at 38-39, 55; see also ECF No. 20-3 at 13-14.)

         Ray-Ray then recognized Ramirez, and he said “what's up, Creeper.” When Ortega thereby discovered that Ramirez was “Creeper, ” a confrontation immediately ensued. The confrontation ultimately settled down. Ortega and Ramirez appeared to resolve their differences, which concerned an earlier deal for guns that had “gone bad.” Ortega indicated that he was going to get the guns in question for Ramirez. Some of those present then did some lines of methamphetamine. (ECF No. 19-4 at 39-40, 42-43, 50, 55; ECF No. 20-3 at 10-12, 18-19.)

         The dispute flared back up again thereafter. Ramirez, Ortega, and Manzo went out into the enclosed patio at the front entrance to the apartment, which faced out onto Kendale Street. (ECF No. 19-4 at 40-41, 55-57; ECF No. 20-3 at 14, 19.)

         According to Robinson-Monge's testimony, she saw a scuffle. She then heard shots fired from off to her left side. She could not see who fired the shots; but Manzo at that time was standing to her right, not her left. Robinson-Monge got up and pushed her brother, who was standing by the patio door, out of the way. As she was moving, she heard a second set of shots coming instead then from in front of her, and she saw Manzo firing those shots. Robinson-Monge pushed her brother out through the patio, stepping over Ortega to get out of the patio gate. She testified that she heard Ortega say “I was going to get them back for you, ” to which Ramirez responded: “Too fucking late.” (ECF No. 19-4 at 41-42, 46, 51, 56-57.)

         According to her testimony, Robinson-Monge was the first one out of the gate and then the first one back in the parked truck. Ramirez then got into the driver's seat. Ortega meanwhile was grasping at Monge's leg, and Robinson-Monge prevailed upon him to break free and get in the truck. Ramirez then pulled forward a few yards before Manzo got in, and they drove away north on Kendale St. toward Sahara Ave. (ECF No. 19-4 at 41-42, 51, 57.)

         According to Robert Monge's testimony, there was a commotion after Ramirez, Ortega, and Manzo went out onto the patio. He then heard several gun shots in rapid succession, as in “bang, bang, bang, ” followed by a louder “boom.” At that time, he saw Ramirez in his red shirt on the patio and Ortega in front of the gate, but he could not see Manzo. He did not see Ramirez, Manzo, or Ortega with a gun or reaching for a gun at any time. In prior statements to the police, however, he had said that he saw Manzo reaching in his pocket or waistband area and that he was pretty sure that Manzo had a gun. (ECF No. 20-3 at 14-17, 19-20.)

         As Monge's sister was pushing him out through the patio, Ortega by then was out through the gate “laying down a little bit.” Monge heard Ortega “babbling” words to the effect of “I was getting the guns.” Monge, who as noted by then was a hostile witness to the State, testified at trial that Ortega told him, Monge, “don't shoot me, ” and that Ortega apparently thought that Monge had been shooting him. Monge previously had stated to the police, however, that Ortega instead was asking why did “they” shoot him, saying that he was getting the gun, and pleading “don't shoot me.” Monge maintained at trial, however, that Ortega's questions, pleas, and comments instead were directed to and at him rather than anyone else. (ECF No. 20-3 at 14-15, 19-20, 30.)

         Similar to his sister, Monge testified that he, Ramirez, and Robinson-Monge got into the truck with Ramirez pulling away a short distance before Manzo also got in. (ECF No. 20-3 at 15-16.)

         An uninvolved witness, James Daniel Ross, provided a contrasting account of the shooting. Ross was a maintenance person for the Palms Apartments, which included two-story multi-unit buildings extending along both sides of Kendale St. (ECF No. 19-1 at 6, 9-11, 14, 39-41.)

         On the morning of the shooting, Ross was on the roof of 613 Kendale, across the street from Ortega's apartment at 209 Kendale, servicing an air conditioning unit. Ross heard what he thought was a firecracker coming from the general direction of the street. He thought initially that some children were playing with firecrackers, as it was only a short time after July Fourth, so he walked over to the edge of the roof to tell the children to stop. (ECF No. 19-1 at 6-12, 39-41; ECF No. 19-2 at 4-5, 11, 17-18, 32.)

         By the time that he reached the roof's edge overlooking Kendale St., however, he then heard what he knew to be gunshots. He saw an unarmed portly Hispanic male who Ross believed had been shot backing out of the gate to the front patio of 209. Although Ross could not make out what he was saying, it appeared that he was begging. (ECF No. 19-1 at 13-15, 36-39, 42-44, 50-51; ECF No. 19-2 at 5, 11, 15, 17-20, 23-24, 32-33.)[3]

         Ross saw an apparently Hispanic male shooter coming through the patio gate wearing an oversized white t-shirt and firing a handgun. He was followed by another male in a white t-shirt together with a female. (ECF No. 19-1 at 13, 15, 18-21, 36-39, 44-48; ECF No. 19-2 at 6-7, 9, 16, 20.)

         Ross, who had experience with guns in the military, could not be sure as to the type of gun from his vantage point; but he believed it to be a semiautomatic pistol. The shots sounded to him to be from a 9 mm caliber gun rather than a larger round like from a .45 caliber pistol. The shots that he heard all sounded to him like they were from the same weapon. He did not see the shooter or anyone else there pick up any ejected casings, but he would not have seen any casings ejected inside the enclosed patio. (ECF No. 19-1 at 13, 16-17, 48-50; ECF No. 19-2 at 9, 12-14, 21, 24-25, 28, 32.)

         Ross saw and heard the shooter fire a number of rounds at Ortega while appearing to be speaking, although Ross could not hear what he was saying. Ortega kept moving away, staggering toward 211 Kendale, while the shooter pursued, shooting him also in the back. The shooter and the two companions then got into a parked F-150 truck and drove away north toward Sahara Ave., with the shooter driving. (ECF No. 19-1 at 13-15, 18, 21-27, 32-34, 50-52; ECF No. 19-2 at 10-11, 15-16, 21-23, 27-28.)

         Ross ran north on the roof trying to see the license plate, ultimately losing sight of the truck after it turned right on Sahara. Ross did not see anyone else come out of 209 before they drove off. He did not see anyone at any time wearing a red shirt. He could not see into the enclosed patio courtyard, however; and he testified that his attention was focused on the shooter and victim. (ECF No. 19-1 at 27-33, 37-38; ECF No. 19-2 at 2, 8, 10-11, 16, 20-21, 27-28, 33.)

         Robinson-Monge testified that after they left the Palms Apartments onto Sahara, they drove into a neighboring commercial area. Ramirez directed that Manzo and Monge each split off separately; and he and Robinson-Monge continued on together on foot. (ECF No. 19-4 at 43, 57.)[4]

         Ramirez and Robinson-Monge ran across Maryland Parkway into a shopping plaza area. Ramirez threw something in a dumpster that made a metal on metal sound as it hit the bottom. She later said to Ramirez that he threw a gun into the dumpster or garbage can. He said: “I did? Oh did I?” Robinson-Monge ultimately testified at trial-after stating at one point that she saw a gun-that she did not see a gun but she assumed that it was a gun from the sound that it made when Ramirez threw the object in the dumpster. (ECF No. 19-4 at 43, 57-58, 60; ECF No. 20 at 24-25.)

         Ramirez and Robinson-Monge made their way into a nearby apartment complex. There they met up with the same male who had been in the car that Ramirez had sent Robinson-Monte to prior to going to Ortega's apartment. They rode in his car, and a female with them that Robinson-Monge had not met before gave her an I.D. that looked like her. They eventually wound up at the Longhorn Casino where they had a meal, meeting back up also with Manzo. They got a room at the Longhorn with Robinson-Monge's new fake I.D.; but Ramirez left, apparently with Manzo, a few hours later. (ECF No. 19-4 at 43-44, 52.)

         A couple of days later, Ramirez hid while someone else knocked on Robinson-Monge's door; and he showed himself only after she opened the door. Once inside, he asked her whether they could talk privately. They went into the bathroom, and he turned on the water to keep others from hearing their conversation. Over the course of her testimony, she testified that Ramirez then said “I never killed anybody before, ” “I'm not like him, ” and that he “didn't feel like a man.” (ECF No. 19-4 at 44-46, 52, 61.)

         Elaine Gibbs testified to a conversation with Ramirez at a party at her apartment during the early morning hours of November 1, 2003. She asked Ramirez whether he had killed someone referred to as “Flaka.” According to her testimony, he responded that he had not killed Flaka but that he had killed Nino, i.e., Ortega. (ECF No. 20 at 25-29.)

         The testimony of Brandi Robinson-Monge, Robert Monge, and Elaine Gibbs all were subject to multiple potential bases for impeachment. Inter alia, all three were frequent users of methamphetamine and may have been addicted. (ECF No. 19-4 at 48-49, 53, 58; ECF No. 20 at 27; ECF No. 20-3 at 20.) All three had prior convictions at the time of trial, and Robinson-Monge admitted that she lived on the “other side of the law.” (ECF No. 19-4 at 47, 51 -52; ECF No. 20 at 26-27; ECF No. 20-3 at 4-5.) All three further had had criminal cases pending against them recently, although all three denied having made any deals with the State in exchange for their testimony. (ECF No. 19-4 at 33-34; ECF No. 20 at 26-27; ECF No. 20-3 at 5.) However, the police threatened Robinson-Monge during an early interview that they would charge her and her brother as accessories and/or as conspirators if she were not more forthcoming. (ECF No. 19-4 at 59-60.) Gibbs did not come forward with Ramirez's inculpatory statement to her until several months later, after she had been arrested and jailed on a parole violation. Gibbs had wanted to make a deal when she did so, although she did not get one. (ECF No. 20 at 26-28.) Robert Monge professed a lack of recollection at trial, and he sought to discredit his more inculpatory prior statements and testimony on the basis that he simply had been repeating what his sister had said in her statements in an effort to try and keep her out of trouble. (ECF No. 20-3 at 4-8, 10-11, 16.) Other testimony suggested, however, that he potentially was concerned for his safety; and he was in prison at the time of the trial. (ECF No. 20-3 at 26-27, 29-30; see also ECF No. 20-5 at 9.)

         These potential bases for impeachment of their more inculpatory statements notwithstanding, the foregoing summary reflects facts that the jury could have found to be true if jurors found the witnesses' testimony or statements credible in whole or in part.

         Crime scene analysts recovered three ejected casings, one from outside the patio gate to 209 Kendale and the other two from within the patio courtyard.[5] It was possible that additional casings could have remained lodged within nearby thick bushes and not been recovered, although the bushes were examined by the analysts. The three casings consisted of two .32 auto caliber casings and one .32 Smith & Wesson caliber casing. A .32 auto caliber handgun and a .32 Smith & Wesson caliber handgun each could fire both caliber rounds. All three casings had extractor marks consistent with having been ejected from a semiautomatic weapon, and all three had been ejected from the same specific weapon. (ECF No. 20 at 8-9, 14-15, 17.)

         The autopsy reflected that Ortega sustained multiple gunshot wounds, including two entrance wounds in the back. There were no indications on the body itself that the gunshots were fired from a close range of less than two to three feet, although the clothing had been removed and was not examined for evidence of close proximity gunshots. Three bullets were recovered from Ortega's body, with two of the bullets being deformed by impact. (ECF No. 19-4 at 18-28.)

         One of the three bullets recovered was a .32 caliber lead bullet that was consistent with the .32 Smith & Wesson casing. A second .32 caliber full metal jacket bullet was consistent with the two .32 auto casings. The rifling characteristics on these two bullets were consistent with having been fired from a single firearm, but not conclusively so. (ECF No. 20 at 18.)

         The firearms expert referred to the third bullet initially as a “nine millimeter or .357 caliber jacketed bullet.” He opined that the round, which had mushroomed on impact, most likely was a brass jacketed hollow point 9 mm Luger round of a particular make. This round could not have been fired from a weapon that fired the .32 caliber rounds. While 9 mm semiautomatic pistols were more common, 9 mm revolvers were “not uncommon.” If the second weapon were a revolver, it would not have automatically ejected casings. However, most of the firearms that produced rifling marks like those on the recovered bullet were semi-automatic pistols. (ECF No. 20 at 15, 18-20.)

         The .32 caliber and 9 mm weapons would sound differently at a sufficient distance when fired in a controlled environment. However, whether fired in a confined space or outside, multiple variables, including echo, could affect how the sound of a weapon or weapons was perceived by an observer. (ECF No. 20 at 21-22.)

         III. PRINCIPLE GOVERNING STANDARD OF REVIEW

         When the state courts have adjudicated a claim on the merits, the Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a “highly deferential” standard for evaluating the state court ruling that is “difficult to meet” and “which demands that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170 (2011). Under this highly deferential standard of review, a federal court may not grant habeas relief merely because it might conclude that the state court decision was incorrect. Id. at 202. Instead, under 28 U.S.C. § 2254(d), the court may grant relief only if the state court decision: (1) was either contrary to or involved an unreasonable application of clearly established federal law as determined by the United States Supreme Court; or (2) was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. Id. at 181-88.

         A state court decision is “contrary to” law clearly established by the Supreme Court only if it applies a rule that contradicts the governing law set forth in Supreme Court case law or if the decision confronts a set of facts that are materially indistinguishable from a Supreme Court decision and nevertheless arrives at a different result. E.g., Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003). A state court decision is not contrary to established federal law merely because it does not cite the Supreme Court's opinions. Id. Indeed, the Supreme Court has held that a state court need not even be aware of its precedents, so long as neither the reasoning nor the result of its decision contradicts them. Id. Moreover, “[a] federal court may not overrule a state court for simply holding a view different from its own, when the precedent from [the Supreme] Court is, at best, ambiguous.” Id. at 16. For, at bottom, a decision that does not conflict with the reasoning or holdings of Supreme Court precedent is not contrary to clearly established federal law.

         A state court decision constitutes an “unreasonable application” of clearly established federal law only if it is demonstrated that the state court's application of Supreme Court precedent to the facts of the case was not only incorrect but “objectively unreasonable.” E.g., Esparza, 540 U.S. at 18; Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004).

         To the extent that the state court's factual findings are challenged, the “unreasonable determination of fact” clause of § 2254(d)(2) controls on federal habeas review. E.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004). This clause requires that the federal courts “must be particularly deferential” to state court factual determinations. Id. The governing standard is not satisfied by a showing merely that the state court finding was “clearly erroneous.” Id. at 973. Rather, AEDPA requires substantially more deference to the state court factual finding:

[I]n concluding that a state-court finding is unsupported by substantial evidence in the state-court record, it is not enough that we would reverse in similar circumstances if this were an appeal from a district court decision. Rather, we must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.

Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); see also Lambert, 393 F.3d at 972.

         Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be correct unless rebutted by clear and convincing evidence.

         The petitioner bears the burden of proving by a preponderance of the evidence that he is entitled to habeas relief. Pinholster, 563 U.S. at 569.

         IV. DISCUSSION

         A. Grounds 1 and 2: Jury Instruction Error

         Ramirez argues these claims together in the reply. In Grounds 1 and 2, Ramirez alleges that he was denied rights to due process and a fair trial in violation of the Fifth and Fourteenth Amendments due to erroneous jury instructions at trial. In Ground 1, he alleges that the jury was improperly instructed that a conspirator is liable for any act of a coconspirator that is a probable and natural consequence of the object of the conspiracy. In Ground 2, he alleges that the jury was improperly instructed that he could be found guilty of the weapon enhancement as an aider and abettor without also instructing the jury that he must have knowledge of the weapon and dominion and control over it by actual or constructive possession. (ECF No. 17 at 14-19.)

         In its October 17, 2008, decision on direct appeal, the Supreme Court of Nevada held as follows with regard to these two claims:

Second, Ramirez claims that the district court erred when it gave an instruction on vicarious coconspirator liability that included reference to the “natural and probable consequences doctrine, ”[FN4] an instruction that this court found erroneous in Bolden v. State.[FN5] Ramirez failed to object to this instruction at trial. Generally, the failure to object at trial precludes appellate review of an issue.[FN6] Nonetheless, this court may address an error if it was plain and affected a defendant's substantial rights. [FN7] To establish that his substantial rights were affected, the appellant bears the burden of showing that the error was prejudicial.[FN8]
[FN4] Jury Instruction 8 advised that “[e]very conspirator is legally responsible for an act of a co-conspirator that follows as one of the probable and natural consequences of the object of the conspiracy even if it was not intended as part of the original plan and even if he was not present at the time of the commission of such act.” This language is identical to the instruction that we found mandated reversal in Bolden.
[FN5] 121 Nev. 908, 922-23, 124 P.3d 191, 200-01 (2005).
[FN6] Gallego v. State, 117 Nev. 348, 365, 23 P.3d 227, 239 (2001).
[FN7] Id.; NRS 178.602.
[FN8] Gallego, 117 Nev. at 365, 23 P.3d at 239.
In Bolden, we concluded that it was error to instruct the jury on the natural and probable consequences doctrine of coconspirator liability in relation to specific intent crimes because that instruction allowed the prosecution to obtain a conviction for those crimes without proving the requisite intent.[FN9] Because Bolden was established law at the time of Ramirez's trial, it was error not to instruct the jury regarding the specific intent required to establish liability under a theory of vicarious coconspirator liability.
FN9] Bolden, 121 Nev. at 921, 124 P.3d at 200.
However, Ramirez must also demonstrate that the error affected his substantial rights. Here, in addition to finding Ramirez guilty of first-degree murder, the jury also convicted Ramirez of conspiracy to commit murder. The jury was correctly instructed that “[t]o be guilty of conspiracy, a defendant must intend to commit, or to aid in the commission of, the specific crime agreed to.” Accordingly, in convicting Ramirez of conspiracy to commit murder, the jury necessarily found that Ramirez possessed the specific intent to murder Ortega. Further, the jury was instructed that “[i]f you find that . . . the defendant was a party to the conspiracy and possessed the intent to kill the victim then he is also guilty of First Degree Murder.” When viewing the jury instructions as a whole and the jury's findings of guilt as to conspiracy to commit murder, we conclude that the jury would have convicted Ramirez of first-degree murder even without the erroneous instruction. Accordingly Ramirez has failed to demonstrate that the error affected his substantial rights.
Third, Ramirez complains that the jury was erroneously instructed on aiding and abetting liability for the deadly weapon enhancement. Specifically, he argues that the jury instructions did not inform the jury that the State had to prove that he had knowledge of the firearm used and actual or constructive possession of it in order to be subject to the enhancement as an unarmed offender. Trial counsel did not object to the instruction that was given, and thus Ramirez's claim is reviewed for plain error affecting his substantial rights.[FN10]
[FN 10] Browning v. State, 124 Nev.__, __, 188 P.3d 60, 71 (2008).
In Anderson v. State, which was the law at the time of Ramirez's trial, we held that a deadly weapon enhancement can be based on either actual or constructive possession and that constructive possession existed where an unarmed participant in a crime had both knowledge that the other offender was armed and the ability to exercise control over the firearm.[FN11] Here, jury instruction 10 read simply that “[t]he participation of a defendant not actually in possession of the weapon by aiding or abetting the actual user in the unlawful use of the weapon, makes a defendant equally subject to the added weapon enhancement available.” The instruction fails to inform the jury that the unarmed participant must have had knowledge of and control over the weapon used to commit the crime in order to be subject to the deadly weapon enhancement. Accordingly, we conclude that it was error to give this instruction.
[FN11] 95 Nev. 625, 630, 600 P.2d 241, 244 (1979), abrogated by Brooks v. State, 124 Nev.__, 180 P.3d 657 (2008).
However, Ramirez is not entitled to relief unless he can demonstrate that his substantial rights were violated. In light of the evidence presented at trial, we conclude that if the jury had been instructed on the elements of actual and constructive possession it still would have convicted Ramirez of the deadly weapon enhancement. In particular, the evidence at trial was such that the jury could have found that Ramirez and Manzo both shot the victim. The forensic evidence showed that two different firearms were used in the shooting. A witness testified that the shooter got into the driver's side of the truck, which was testified to by others as the seat occupied by Ramirez. ...

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