139 Nev., Advance Opinion 3S 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

No. 85399 

No. 85400 

FIL 

SEP 1 4 2023 

THE STATE OF NEVADA, 

Appellant, 

vs. 

DANIEL ADRIAN GONZALEZ, 

Respondent. 

THE STATE OF NEVADA, 

Appellant, 

vs. 

DANIEL ADRIAN GONZALEZ, 

Respondent. 

Consolidated appeals from a district court order granting 

respondent's motion to dismiss a criminal complaint. Second Judicial 

District Court, Washoe County; Egan K. Walker, Judge. 

Reversed and remanded. 

Aaron D. Ford, Attorney General, Carson City; Christopher J. Hicks, 

District Attorney, Jennifer P. Noble, Chief Appellate Deputy District 

Attorney. and Marilee Cate and Kevin P. Naughton, Appellate Deputy 

I.Kstrict Attorneys, Washoe County, 

for Appellant. 

Evelyn Grosenick, Public Defender, and Kathryn E. Reynolds, Chief Deputy 

Public Defender, Washoe County, 

for Respondent. 

SUPREME COURT 

OF 

NEVADA 

i4 I q4 AR* 
BEFORE THE SUPREME COURT .EN BANC. 

OPINION 

By the Court, STIGLICH, C.J.: 

In this opinion, we consider whether the dismissal of a criminal 

complaint against respondent Daniel Adrian Gonzalez was an appropriate 

remedy for the violation of his due process rights arising from a delay in 

competency restoration treatment pending trial. After the State charged 

Gonzalez with sexual assault, the district court found him to be incompetent 

to stand trial and ordered him remanded to a psychiatric hospital for 

competency restoration treatment. Gonzalez remained in jail for 160 days 

before being transferred to the hospital. After being transferred to the 

hospital, Gonzalez moved to dismiss the complaint, arguing that his 

continued detention in jail after the district court's order and before being 

transferred to the hospital violated his due process rights. The district court 

agreed and granted the motion to dismiss. 

The State appeals. The State concedes that Gonzalez's due 

process rights were violated but argues that the district court abused its 

discretion in granting the extreme remedy of dismissal under the facts of 

this case. We agree. Although we acknowledge the gravity of Gonzalez's 

situation, this court's precedent does not support the district court's 

conclusion that aggravated circumstances warranted disrnissing the 

complaint against Gonzalez with prejudice. Furthermore, the district court 

neglected to balance the deterrent objectives of dismissal against society's 

interest in prosecuting criminal acts. We conclude the district court 

therefore abused its discretion in dismissing the complaint with prejudice, 

and we reverse and remand this case for further proceedings. 

SUPREME COURT 

OF 

NEVADA 

2 

101 1947A 
SUPREME COURT 

OF 

NEVADA 

t<tt I t.>47A 

FACTS AND PROCEDURAL HISTORY 

The State charged Gonzalez by way of complaint with one count 

of sexual assault, a category A felony. During the proceedings, Gonzalez 

was assessed for competency and received two psychiatric evaluations, each 

of which concluded that Gonzalez was not competent to proceed with 

adjudication and recommended that he receive inpatient competency 

restoration treatment. After a hearing on the matter, the district court 

found Gonzalez to. be incompetent, that he may pose a danger to himself and 

to society, and•that commitment was necessary•to determine his ability to 

attain competency. To that end, the court ordered Gonzalez remanded to 

Lake's Crossing Center, a psychiatric hospital, for restorative treatment. 

Gonzalez remained in custody at the Washoe County jail for 160 

days before being transported to Lake's Crossing. Lake's Crossing reported 

that staffing shortages, a lack of available beds, and COVID-19 protocols 

contributed to the delay. Because of the delay, the Division of Mental 

Health and Developmental Services of the Department of Human Resources 

(the Division) notified the district court that its initial competency reports, 

mandated by NRS 178.450(2), would not be timely submitted. 

Gonzalez moved to dismiss the criminal complaint, arguing that 

his continued detention in jail prior to being transferred to Lake's Crossing 

constituted a violation of his due process rights. The district court granted 

Gonzalez's motion to dismiss. The court relied on Jackson u. Indiana, 406 

U.S. 715 (1972), and its progeny to conclude that Gonzalez's detention 

before being transferred to Lake's Crossing was not reasonably related to 

his receiving competency restoration treatment and therefore violated his 

due process rights. 

• On appeal, the State concedes that the district court's 

conclusion as to the due process violation was correct. The legal basis 

3 
justifying dismissal, however, is somewhat less evident from the district 

court's order. The district court concluded that "it is obvious that the 160-

day delay and the Division's failure to comply with its mandatory reporting 

requirements is 'shocking and outrageous' and warrants dismissal." The 

district court invoked State v. 

• 

Babayan, 106 Nev. 155, 787 P.2d 805 (1990), 

acknowledging that dismissal is an extreme remedy. After balancing 

deterrent interests against the violation of Gonzalez's due process rights, 

the district court found that the' 44aggravated circumstances" warranted 

dismissal.' The State appeals. 

DISCUSSION 

The State argues that the district court a.bused its discretio.n in 

grajn.ting Gonzalez's rnotion to dismiss the. criminal complaint based on 

circumstances outside a prosecutor's control--a lack of space at Lake's 

Crossing. The State argues that the penalty for a due process violation 

must. match the nature of the.violation and that the district court failed to 

consider the effect dismissal would have on society's interest in prosecuting 

crimes. We agree. 

• . 'The parties dispute whether the district court ordered dismissal with. 

prejudice or without. Where a district court does not. specify -whether 

dismissal is with or without prejudice, *e would generally presume that 

dismissal is without prejudice. See, e.g., District of ColUrnbia v. Whitley, 

934 A.2d. 387, 388 n.1 (D.C. 2007) (noting that where dismissal of criminal 

charges is not on the merits "and the trial court does not specify whether 

dismissal is with prejudice, dismissal is presumed to be without prejudice"); 

State v. Hunter, 968 N.E.2d 585, 589 (Ohic Ct. App. 2012) (explaining that 

disniissal of a criminal complaint is presumed to be without prejudice unless 

the trial court specifies otherwise). However, here, the district court 

referred to the dismissal it was ordering as "an extreme measure," and it 

applied the test for dismissal with prejudice as laid out in Babayan, 1.06 

Nev. at 173, 787 P.2d at 818. Therefore, upon the facts• before

.

 us, we infer 

that the district court intended to dismiss the charge with prejudice: . 

SUPDENE CODDT 

OF 

NEVADA 

(01 1447A ADP 

4 
Standard of review 

We review a district court's order dismissing a charging 

document for an abuse of discretion. Morgan v. State, 134 Nev. 200, 205, 

416 P.3d 212, 220 (2018). A district court abuses its discretion if its 

"decision is arbitrary or capricious or if it exceeds the bounds of law or 

reason." Jackson v. State, 117 Nev. 116, 120, 17 P.3d 998, 1000 (2001). 

The district court abused its discretion in ruling that dismissal with. 

prejudice was warranted 

"Dismissal is an extreme sanction . . . ." Morgan, 134 Nev. at 

205, 416 P.3d at 220. Dismissing a criminal complaint with prejudice "is 

most appropriate upon a finding of aggravated circumstances and only after 

a balancing of its deterrent objectives with the interest of society in 

prosecuting those who violate its laws." Babayan, 106 Nev. at 173, 787 P.2d 

at 81.8. For the reasons articulated below, we conclude that the district 

court abused its discretion both in finding aggravated circumstances and i.n 

neglecting to apply this balancing test. 

The district court failed to apply the appropriate standard in finding 

aggravated circumstances 

In Babayan, we considered the dismissal of criminal charges 

with prejudice for due process violations. There, the district court dismissed 

multiple indictments against Ruben Babayan with prejudice for 

prosecutorial misconduct before the grand jury. 106 Nev. at 163-65, 787 

P.2d at 812. This court reversed the district court's dismissal of the 

indictments with prejudice. Id. at 176, 787 P.2d at 819-20. In so doing, we 

explained that dismissal without prejudice is appropriate "to eliminate 

prejudice to a defendant and to curb the prosecUtorial excesses of a District 

Attorney or [their] staff." Id. at 173, 787 P.2d at 818. Conversely, dismissal 

with prejudice is an extreme remedy warranted when the eviden.ce against 

SUPREME COURT 

OF 

NEVADA 

to, 1)47A 

5 
a defendant is irrevocably tainted or the defendant's case on the merits is 

prejudiced to the extent that notions of due process and fundamental 

fairness would preclude reindictment." Id. (internal quotation marks 

omitted); cf. Langford v. State, 95 Nev. 631, 635-36, 600 P.2d 231, 234-35 

(1979) (concluding that, absent a showing of bad faith by the State or 

unalleviated prejudice to the defendant, the trial court properly denied the 

motion for a mistrial). Accordingly, this court held that dismissal with 

prejudice was not warranted, despite the due process violation. Babayan, 

106 Nev. at 173-74, 787 P.2d at 818. 

In Morgan, as similar here, the district court ordered John 

Demon Morgan to be transferred to Lake's Crossing. 134 Nev. at 202, 416 

P.3d at 217. After a delay of over 100 days, Morgan filed a motion to 

dismiss. Id. Although the time frame for transferring Morgan to Lake's 

Crossing had not been met, the district court denied Morgan's motion. Id. 

at 202, 416 P.3d at 217-18. Instead, the district court ordered that Morgan 

be transferred to Lake's Crossing within seven days. Id. at 205, 416 P.3d 

at 220. In considering the direct appeal of Morgan's eventual conviction, 

this court held that the district court did not abuse its discretion in denying 

Morgan's motion to dismiss. Id. at 205-06, 41.6 P.3d at 220. We noted that 

dismissal with prejudice is an extreme sanction and that after balancing 

dismissal's deterrent objectives with society's interest in prosecuting 

crimes, the facts of the case did not amount to aggravated circumstances 

warranting dismissal. Id. at 205, 416 P.3d at 220. 

Babayan and Morgan comport with this court's precedent 

related to the dismissal of charging documents in other situations where a 

d.efendant's due process rights may not specifically be at issue. For 

dismissal to be an appropriate remedy, these cases require some misconduct 

SUPREME COURT 

OF 

NEVADA 

10) P07A 

6 
on the part of the prosecution or some exten.ded prejudice to the defendant. 

For example, in State v. Tapia, the State charged Peter Tapia with 

embezzlement. 108 Nev. 494, 495, 835 P.2d 22, 23 (1992). After the State 

failed to immediately provide Tapia with a document it intended to use at 

trial, the district court found that the State had violated a discovery order 

permitting Tapia to examine everything in the State's file and excluded the 

document. Id. at 495-96, 835 P.2d at 23. Without the document, the district 

court belieYed the State's case Was too weak and dismissed the case.. Id.. On 

appeal, this court reversed. Id. at 498, 835 P.2d at 24. We held that the 

district court acted within its discretion in 'determining that the- State had 

violated the court's discovery order. Id. at 497, 835 P.2d at 24. We 

nevertheless concluded that "dismissal was an extreme remedy 

unwarranted under the circumstances." Id. at 498, 835 P.2d at 24. 

Specifically, we held that "where the State's non-compliance with a 

diScovery order is inadvertent and the court takes appropriate action to 

protect the defendant against prejudice, there is no error justifying 

dismissal of the case." Id. at 497, 83'5 P.2d at 24. 

Relatedly, this court has addressed the circumstances under 

which the prosecution may recharge a defendant if a case is dismissed for 

the prosecution's failure to comply with procedural rules. Explaining "that 

criminal accusations should proceed or terminate on principles compatible 

with judicial economy, fair play[i and reason," McNair v. Sheriff, 89 Nev. 

434, 438, 514 P.2d 1175, 1177 (1973), this court has held thatreprosecution 

is barred o:nly where "the prosecution ha.s wilfully disregarded or displayed 

a con.scious indifference to procedural rules," State v. Lamb, 97 Nev. 609, 

610-11, 637 P.2d 1201, 1202 (1981). Conscious indifference does not require 

a showing of "intentional acts or calculated bad faith by the prosecution." 

SUPREME COURT 

OF 

NEVADA 

101 pa7A Mi&-> 
Id. at 611, 637 P.2d at 1202 (internal quotation marks omitted). It does, 

however, require something more than mishandling the case or exercising 

poor judgment. Id. at 611, 637 P.2d at 1202-03. 

In light of the foregoing authority, we now clarify that 

"aggravated circumstances" may take the form of misconduct on the State's 

part, cf. Babayan, 106 Nev. at 173, 787 P.2d at 818, or unalleviated 

prejudice to the defendant, cf. Langford, 95 Nev. at 635-36, 600 P.2d at 234-

35. Here, without apportioning blame to the State or pointing to any 

prejudice Gonzalez suffered as to his ability to receive a fair adjudication, 

the district court summarily ruled that the due process violation in and of 

itself constituted aggravated circumstances warranting dismissal. The 

district court thus neglected to apply the standards demanded by our 

precedent. Given that the district court did not address these highly factbound inquiries in the first instance, however, we express no opinion as to 

whether the situation here amounted to aggravated circumstances. We 

conclude that its ruling exceeded the bounds of the law and therefore 

constituted an abuse of discretion. 

The district court failed to balance dismissal's deterrent objectiue with 

society's interest in prosecuting criminal acts 

Even where aggravated circumstances favor dismissal with 

prejudice, a district court's inquiry is not complete. Rather, the district 

court may dismiss a charging document with prejudice only after balancing 

the deterrent objectives of that sanction against society's interest in 

prosecuting criminal acts. Babayan, 106 Nev. at 173, 787 P.2d at 818. 

In United States u. Lawson, the United States District Court for 

the District of Maryland balanced the deterrent objectives of dismissing an 

indictment with prejudice against society's interest in prosecuting 

defendants charged with distributing controlled substances. 502 F. Supp. 

SUPREME COURT 

OF 

NEVADA 

((1 I 7 A A17.10,

8 
158, 161, 172-73 (D. Md. 1980). The court found that a prosecutor 

deliberately misled the grand jury in obtaining an indictment against the 

defendants. ld. at 163. As for the remedy for such misconduct, however, 

the court concluded that dismissal without prejudice was more appropriate. 

Id. at 172-73. Specifically, the court noted that the misconduct was 

committed by a single prosecutor, who was no longer associated with the 

case, and that there was not a pattern of widespread or conti.nuous 

prosecutorial misconduct in the district. Id. The court explained th.at

"[w]hile [the] defendants [were] entitled to the remedy of dismissal for 

violations of their constitutionally protected rights, they [were] not entitled 

to the reward of permanent immunity respecting their alleged criminal 

conduct." Id. at 173. Rather, on balance, the court concluded that the costs 

to society of dismissing the indictments with prejudice were "simply too 

high." Id. 

Here, the deterrent objective of dismissal with prejudice is not 

evidenced in the record. Indeed, the district court did not articulate any 

behavior on the prosecutor's part that it intended to deter with dismissal or 

how dismissal would accomplish such deterrence. Instead, the district court 

balanced the State's interest in prosecuting Gonzalez against Gonzalez's 

due process rights. As explained, this is not the inquiry used for 

determining whether dismissal with prejudice is warranted. 

As to society's interest in proSecuting Gonzalez, although 

presumed innocent, Gonzalez is charged with sexual assault—a crime so 

serious the Legislature has approved of life with the possibility of parole as 

a punishment for it. See NRS 200.366(2)(b). On balance, society's interest 

in prosecuting sexual assault outweighs any deterrent effect dismissal with 

SUPREME COURT 

OF 

NEVADA 

if» INTA • 

9 
prejudice may have had under -the facts of this case. And we conclude that 

the district court abused its discretion in ruling otherwise.2

We acknowledge that dismissal with prejudice was the only 

remedy that Gonzalez sought for the due process violation. Gonzalez 

languished in jail for five months before being transferred to Lake's 

Crossing fbr court-ordered competency restoration treatment. This is a 

troubling situation that, as the State concedes, violated Gonzalez's due 

process rights. We stress that difficulties involving the availability-of beds, 

staffing shortages, or other logistical challenges cannot justify detaining an 

individual in jail for month after Month without recourse. It is well 

established that district courts enjoy inherent powers to control proceedings 

before them, see Young v. Ninth Judicial Dist. Court, 107 Nev. 642, 646-47, 

818 P.2d 844, 846-47 (1991), and a lesser sanction may have been more 

appropriate to ensure Gonzalez's prompt transfer to Lake's Crossing, see, 

e.g., Dep't of Health & Human Servs., Div. of Pub. & Behavioral Health' v. 

Eighth Judicial Dist. Court (Aliano), 139 Nev., Adv. Op. 28, P.3d 

 (2023) (concluding that the district court did not err in holding Division 

of Public and Behavioral Health in contempt for failing to comply with court 

orders requiring that criminal defendants found to be incompetent be 

admitted for psychiatric care and imposing monetary sanctions); Morgan, 

2Gonzalez avérs that dismissal was consistent with NRS 178A25(5). 

However. the district court did not. dismiss t.he criminal complaint pursuant 

to NRS 178.425(5), nor did it make the required finding that there was no 

substantial probability that Gonzalez would attain competency in the 

foreseeable future under the statute. Indeed, the district court specifically 

stated at a hearing on the motion that it could not make such a finding 

because Lake's Crossing had not yet submitted a report as to Gonzalez's 

status. Accordingly, NRS 178.425(5) does not provide a basis for affirming 

the district court's order. 

SUPREME COURT 

OF 

NEVADA 

10 

0) I », 4 7A a 
Parraguirre Bell 

Pickerin 

, j 

Lee 

Cadish 

J. 

SUPREME COLIF1T 

OF 

NEVADA 

1,17A 

134 Nev. at 204-06, 416 P.3d at 219-20 (holding that a district court did not 

abuse its discretion in denying a defendant's motion to dismiss and instead 

ordering that the defend.ant be transferred to a psychiatric hospital within 

seven days). Regardless, the fact that dismissal was the only remedy sought 

does not justify the district court in dismissing with prejudice.3

CONCLUSION 

We conclude that the district court abused its discretion in 

finding aggravated circumstances without articulating some misconduct by 

the State or prejudice to Gonzalez's case and without balancing the relevant 

interests discussed above. Thus, the district court abused its discretion in 

granting the extreme remedy of dismissal with prejudice under the facts of 

this case. Accordingly, we reverse and remand this case for further 

proceedings in light of this opinion. 

, C.J. 

Stiglich 

We concur: 

31ti light of our disposition, we decline to reach the State's argument 

that the district court lacked inherent authority to enter an. order of 

dismissal. 

1.1