134 Nev., Advance Opinion q5
IN THE SUPREME COURT OF THE STATE OF NEVADA
JUAN JOSE RODRIGUEZ, No. 73154
Appellant,
vs. F r-13 LTh •
THE STATE OF NEVADA,
Respondent. DEC 2018
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BY
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Appeal from a judgment of conviction, pursuant to a guidty plea,
of battery resulting in substantial bodily harm committed against an older
person. Second Judicial District Court, Washoe County; Connie J.
Steinheimer, Judge.
Affirmed.
John L. Arrascada, Public Defender, and John Reese Petty, Chief Deputy
Public Defender, Washoe County,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Christopher J. Hicks,
District Attorney, and Joseph R. Plater, Deputy District Attorney, Washoe
County,
for Respondent.
BEFORE THE COURT EN BANC,
OPINION
By the Court, CHERRY, J.:
In this appeal, we consider whether the district court
impermissibly imposed double sentencing enhancements for the same
primary offense when it sentenced Juan Jose Rodriguez to a maximum of
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6ff months' imprisonment for the crime of battery resulting in substantial
bodily harm under NRS 200.481(2)(b) and an additional 120 months'
maximum imprisonment under NRS 193.167 for committing that crime
against an older person. We conclude that NRS 200.481(2)(b) is not an
enhancement statute. Accordingly, the addition of an older person
enhancement to Rodriguez's sentence under the primary offense statute,
NRS 200.481(2)(b), did not violate Nevada law prohibiting multiple
sentencing enhancements for the same primary offense. Therefore, we
affirm the judgment of conviction.
FACTS AND PROCEDURAL HISTORY
Sixty-eight-year-old Henry Sosnowski observed Rodriguez
defacing property with graffiti and confronted him. Rodriguez struck
Sosnowski, causing him to fall and suffer permanent brain damage.
Rodriguez was arrested and charged with battery resulting in substantial
bodily harm committed against an older person. Rodriguez pleaded guilty
to the offense. The district court sentenced him to 18 to 60 months for the
primary offense and a consecutive term of 48 to 120 months for the older-person enhancement, resulting in an aggregate term of 66 to 180 months
DISCUSSION
Rodriguez argues that the district court erroneously imposed
two sentencing enhancements in this case. Specifically, Rodriguez claims
that the primary offense in this case was simple battery (a misdemeanor),
and the district court impermissibly imposed both a substantial-bodilyharm enhancement and an older-person enhancement. We disagree.
Rodriguez's trial counsel failed to object and never argued that
the older-person-sentencing enhancement should not apply because the
battery statute has a built-in enhancement when a battery results in
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substantial bodily harm. Therefore, we review for plain error, Mendoza-Lobos v. State, 125 Nev. 634, 644,
218 P.3d 501, 507 (2009), and will reverse
only if Rodriguez demonstrates that "there was 'error,' ... the error was
'plain' or clear, and. . . the error affected [his] substantial rights," Anderson
v. State, 121 Nev. 511, 516,
118 P.3d 184, 187 (2005).
"Battery' [is] any willful and unlawful use of force or violence
upon the person of another." NRS 200.481(1)(a). The classification of the
offense—whether it is a misdemeanor, a category C felony, or a category B
felony—depends on additional facts identified in NRS 200.481(2). The facts
that determine whether the battery is a felony and, if so, the category of
felony, include how the battery was committed (with or without a deadly
weapon, or by strangulation); whether the battery was committed upon a
person in a protected class of employment (a law enforcement officer, for
example); the extent of any physical injury to the victim; and the
defendant's status as a probationer or prisoner. See NRS 200.481(2). If the
battery does not involve any of those facts, the offense is a misdemeanor.
NRS 200.481(2)(a). But, for example, if the battery results in substantial
bodily harm to the victim, as happened here, the offense is a category C
felony. NRS 200.481(2)(b). According to Rodriguez, by elevating battery
from a misdemeanor to a category C felony based on substantial bodily
harm, NRS 200.481(2)(b) is an enhancement statute, and the district court
could not impose an additional enhancement under NRS 193.167 based on
the victim's age.
We recognize that this court has held that a district court may
not enhance a primary substantive offense under more than one
enhancement statute. See, e.g., Barrett v. State, 105 Nev. 361, 365,
775 P.2d
1276, 1278 (1989). For example, a primary substantive offense cannot be
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enhanced based on both the use of a deadly weapon under NRS 193.165 and
the victim's age under NRS 193.167. 1 Carter v. State, 98 Nev. 331, 335,
647
P.2d 374, 377 (1982). Similarly, a primary substantive offense cannot be
enhanced based on both the use of a deadly weapon under NRS 193.165 and
the defendant's status as a habitual criminal under NRS 207.010. Odoms
v. State, 102 Nev. 27, 34,
714 P.2d 568, 572 (1986).
We disagree, however, with Rodriguez's characterization of
NRS 200.481(2)(b) as an enhancement statute. The enhancement statutes
addressed in Barrett, Carter, and Odoms increased or added to the penalty
for the primary substantive offense based on facts that were not addressed
in the primary offense statute. In contrast, the primary offense statute at
issue here—NRS 200.481—provides that battery is a felony if certain facts
have been shown in addition to a willful and unlawful use of force or violence
upon the person of another. When the primary offense statute provides
different classifications of the offense based on certain facts, nothing in our
prior decisions prevents the district court from also applying a separate
enhancement statute. This is true regardless of whether the additional
'This limitation has since been codified in NRS 193.169(1):
A person who is sentenced to an additional term of
imprisonment pursuant to the provisions of
subsection 1 of NRS 193.161, NRS 193.162,
193.163, 193.165, 193.166, 193.167, 193.1675,
193.1677, 193.168, subsection 1 of NRS 193.1685,
NRS 453.3335, 453.3345, 453.3351 or subsection 1
of NRS 453.3353 must not be sentenced to an
additional term of imprisonment pursuant to any of
the other listed sections even if the person's conduct
satisfies the requirements for imposing an
additional term of imprisonment pursuant to
another one or more of those sections.
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facts addressed in the primary offense statute are characterized as an
element of the primary offense or as a fact only relevant to sentencing.
Whether characterized as an element of the offense or a sentencing factor,
the additional facts are part of the primary offense statute, not a separate
enhancement statute. See People v. Anderson, 211 P.3d 584, 599 (Cal. 2009)
(explaining that a sentencing enhancement statute differs from a statute
defining "greater and lesser degrees of the same offense" in that the
enhancement addresses specified circumstances of the crime but "does not
set forth. . . a greater degree of the offense charged" (emphasis added)
(internal quotation omitted)). The district court therefore did not err—
plainly or otherwise—by imposing the older-person enhancement.
CONCLUSION
We conclude that NRS 200.481(2)(b) is not an enhancement
statute and, therefore, a battery causing substantial bodily harm can be
enhanced under NRS 193.167 based on the victim's age without running
afoul of Nevada cases prohibiting multiple sentencing enhancements for the
same primary offense. Accordingly, we affirm the judgment of conviction.
, J.
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AIA.Stun , J.
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